Mr L Weston v Royal Mail Group Ltd: 4105584/2023 and 4100179/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4105584/2023, 4100179/2024Venue Glasgow TribunalHearing 12-15 August and 2-3 December 2024 and in Chambers on 5 December 2024
Between
Mr L WestonClaimantRoyal Mail Group LtdRespondent
Before
Employment Judge MurphyDate 12 February 2025
JUDGMENT
The unanimous judgment of the Tribunal is that:(i) the claimant was unfairly dismissed. The respondent shall pay the claimant compensation in the total sum of THREE THOUSAND AND ELEVEN POUNDS STERLING AND TWENTY-THREE PENCE (£3,011.23) (which includes a basic award of £1,494 and a compensatory award of £1,517.23);(ii) the claimant’s complaints of harassment related to disability are not well founded and are dismissed;(iii) the claimant’s complaints of victimisation are not well founded and are dismissed; and(iv) the claimant’s complaint of wrongful dismissal is not well founded and is dismissed.
REASONS
[1]This final hearing took place as an in-person hearing at the Glasgow Tribunal.[2]The respondent (R) led evidence from AM, SD, and PH. The claimant (C) gave evidence on his own behalf. Evidence was taken orally from the witnesses. The witnesses were referred to a joint bundle of productions running to 353 pages. Not all productions in the bundle were spoken to. In relation to several documents, we were referred to and read only selected excerpts. Only the documents admitted into evidence in the usual way (or parts thereof which the Tribunal was given the opportunity to read) have been considered by the Tribunal.[3]The following abbreviations are used in relation to individuals referred to in this judgment. AM Andrew Mullan, People Case Support Manager and grievance manager re C’s March 23 grievance DH David Houten, C’s TU representative ID Ian Dunn, C’s line manager at Inverclyde DO PC Paul Corrigan, Manager at R’s Inverclyde Delivery Office and investigating manager PH Philip Hulme, Independent Case Manager (C’s disciplinary appeal manager) SB Samantha Brown, a manager at R’s Inverclyde DO SD Stuart Donaldson, Lead Customer Operations Manager (and C’s dismissing officer)
Issues to be determined
[4]During the preliminaries on 12 August 2023, the issues to be determined in the case were identified as follows: Disability related harassment 1) Did C have a disability for the purposes of section 6 of the Equality Act 2010 (EA) at the time of the events the claim is about (March to September 2023) in respect of the asserted impairment of depression and anxiety? 2) Did R do the following things:a. Refuse to allow C to return to work on ‘each occasion’?b. Did Paul Corrigan (PC) behave in an aggressive or hostile manner towards C at the investigation meeting on 17 June 2023?c. Did SD behave in an aggressive or dismissive manner towards C at the disciplinary hearing on 29 August 2023?d. R accepts SD wrote a letter dismissing C dated 13 September 2023 with contents as to his reasons.e. R accepts SD dismissed C with effect on 16 September 2023. 3) If the conduct occurred, in each case, was it unwanted? 4) In each case, did the conduct relate to C’s asserted disability of depression and anxiety?[5]In each case, did the conduct have the purpose of violating C’s dignity or creating a hostile, degrading, humiliating or offensive environment for C?[6]If not, did it have that effect? The Tribunal will take into account C’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Victimisation[7]The claim form 4100179/2024 containing the victimisation complaint was presented on 12 January 2024. Early Conciliation started on 24 November 2023 and ended on 5 January 2024. Any complaint about something that happened before 25 August 2023 is potentially out of time. Were the victimisation complaints relating to events before 25 August 2023 made within the time limit in section 123 of EA?[8]R accepts that C raised a tribunal claim against R in 2021 alleging sexual orientation discrimination and that C raised a further tribunal claim against R on 3 October 2023 (claim number 4105585/2023) which also alleged discrimination. R further accepts that that these were protected acts.[9]R accepts that C raised a grievance on 26 June 2023. Was this a protected act?[10]Did C raise concerns with PH at the appeal hearing on 11 October 2023 that Paul Corrigan’s actions during the investigation and disciplinary process were motivated by C’s earlier claims? If so, was this a protected act?[11]Did R do the following things?a. Substantially delay in addressing grievances raised by C on 17 March 2023, 26 June 2023 and 8 August 2023;b. Fail to fairly and objectively investigate C’s grievances;c. Fail to hold a grievance meeting with C;d. Fail to uphold C’s grievances;e. Fail to address C’s grievances dated 26 June and 8 August 2023;f. Fail to fairly and objectively deal with C’s appeal against dismissal;g. Substantially delay in addressing C’s appeal against dismissal;h. Fail to uphold C’s appeal against dismissal;[12]In each case, by doing so, did R subject C to a detriment?[13]If so, in each case was it because C did a protected act or acts?[14]R says the reason or principal reason for dismissing C was conduct. Was C’s dismissal for the potentially fair reason of conduct?[15]If the reason was conduct, did R act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant?a. At the time the belief was formed, had R carried out a reasonable investigation?b. If so, were there reasonable grounds for that belief?c. If so, did R otherwise act in a procedurally fair manner?d. If so, was dismissal in the range of reasonable responses?[16]The parties agree the arithmetic calculation of the basic award is £2,988. Would it be just and equitable to reduce the basic award because of any conduct of C before the dismissal? If so, to what extent?[17]If there is a compensatory award, how much should it be?a. What financial losses has the dismissal caused C?b. Is there a chance that C would have been fairly dismissed anyway if a fair procedure had been followed?c. If so, should C’s compensation be reduced? By how much?d. If C was unfairly dismissed, did he cause or contribute to the dismissal by blameworthy conduct?e. If so, would it be just and equitable to reduce C’s compensatory award? By what proportion? Findings in Fact 5. The following facts, and any further facts set out in the ‘Discussion and Decision’ section, are found to be proved on the balance of probabilities or were agreed by the parties. The facts found are those relevant and necessary to our determination of the issues. They are not intended to be a full chronology of events. 6. R is a limited company which provides postal and courier services. It employs approximately 143,000 employees across the UK. It is supported by a centralised Human Resources service (known as the ERCM Team) which is available to provide advice and support to managers throughout the UK in relation to staffing issues and on its HR policies and procedures. 7. R employs a team of approximately 18 Independent Casework Managers. They sit outside the operational structure and their function is to hear (among other things) appeals by employees against dismissals. Over the festive period, these Casework Managers are pulled into operational duties to support R’s operation in what is R’s biggest pressure period. 8. C was employed in or around November 2007 until he was dismissed by R with effect on 16 September 2023. He was employed throughout as a postman. He worked out of Inverclyde Delivery Office. C’s duties involved delivering letters and parcels on foot. His contracted duties as a postman always involved substantial walking, sometimes up to 10 miles in a single shift. 9. Latterly, C’s line manager was ID, Customer Operations Manager. Two other managers at the Delivery Office with whom he also had interactions were Samantha Brown SB and PC. C was previously lined managed by PC. He had problematic relationships with PC and SB. He had made complaints and raised grievances about them in the period from at least 2021. 10. C experienced symptoms of depression and anxiety for a number of years. Events in 2021 and 2022 11. He first began receiving treatment for these symptoms under his GP’s care in April 2021 when he was prescribed medication. He was prompted in 2021 to seek treatment by a serious mental health crisis. Across the period from 2021 until the date of his dismissal, C was for the most part, on prescribed medication to treat his symptoms. He was initially prescribed propranolol in April 2021 and (additionally) prescribed Sertraline in in December 2021. Both are anti-depressants. C’s medication was adjusted from time to time. He paused taking propranolol between January 2022 and June 2023. He paused taking Sertraline between March 2022 and October 2022. This meant that between March and October 2022, he was taking neither medication. C feared reliance on the anti-depressant medication. His experience was, however, that without medication his symptoms were much worse. 12. C found his symptoms varied from day to day and week to week. Sometimes he could function normally. At other times he struggled with basic household tasks like cleaning, washing up and cooking. C relied heavily on practical support from his mother with these matters. When his symptoms were severe, he would also withdraw from socializing with friends and from playing golf which he enjoyed doing when his symptoms were less severe. 13. C raised a claim against R in 2021 alleging sexual orientation discrimination. Conduct by PC and SB was complained about. One outcome was that R arranged mediation between C and PC. This was not wholly successful in that the relationship between C and PC continued to be very strained after the mediation. 14. C had an accident in February 2022 at work. He injured his hip. He was off sick until May 2022 when he returned to work on full duties as a postman, doing deliveries on foot. In the period between May and November 2022, C also worked as a taxi driver in the local area for commercial gain. His working hours in the taxi were outside of the shift hours he worked for R. R’s managers in the Inverclyde DO were aware of this. C was latterly contracted to work 16 hours per week over 3 days for R and there was therefore fairly substantial opportunity for him to undertake other work around his shifts for R. It was not uncommon for C’s postman colleagues to have second jobs. 15. C drove his taxi on a self-employed basis. He had no fixed hours and could drive as frequently or infrequently as he chose. In the period between May and November 2022, he could and did select his hours spent working in the taxi to fit round his hours with R. In some weeks, he worked few or no hours taxi driving and, in others, he worked more often, depending on how severe his mental health symptoms were at the time. C found that his mental health symptoms fluctuated through this period (and in general). 16. Though his colleagues and managers at the Inverclyde DO were aware of C’s work as a taxi driver, there was no express term of C’s contract of employment nor of any policy or procedure which obliged him to disclose to R that he was working elsewhere outside of his contracted hours with R. There was no express term of his contract or any policy which obliged him to seek permission from R to work elsewhere. There was an instruction for individuals employed as drivers by R (which C was not) to provide R from time to time with a record any hours spent driving in other employments. The purpose was to ensure that, when driving hours in all employments were taken cumulatively, the rules on drivers’ hours and rest breaks were not breached. 17. In November 22, C’s hip pain deteriorated. R put him on light duties, also known as ‘indoor duties’. This meant he worked inside the Delivery Office and performed duties which were different to his contracted duties. He did not require to work as a postman delivering mail on foot. C remained on light duties until January 2023. January to April 2023[18]In January 23, C resumed full duties working as a postman. He continued this work for a brief period until 10th February 2023.[19]On 10 February 2023, he was working on full duty. He informed ID towards the end of his shift that he couldn't continue as his hip was too sore and he asked if he could work indoors on the following day. ID said no. He told C that if he was not fit to do his duty, he was to call in sick on Saturday the 11th of February. C did so. C remained off sick thereafter. ID refused to allow C to do indoor working because, to his mind, C had already had a period of indoor working in late 22 / early 23 and Mr Dunn did not consider it reasonable for R to accommodate a further period of light duties in the Inverclyde DO at that time. The busy Christmas period had, of course, by then concluded.[20]C also ceased his work as a taxi driver around this time due to his deteriorated health. Because C had undertaken his taxi driving work on a casual self-employed basis, he did not require to obtain sick lines from his GP in connection with that work as he did not have an employer who required these. C was not in receipt of sick pay for his absence from taxi driving. During sick leave from R, he therefore only required to obtain GP certificates (fit notes) in connection with his employment by R as a postman and all fit notes he obtained were for the purpose of providing these to R.[21]On 16th March 2023, C contacted ID and said that he would return to work on full duty. His next shift was due to be the 23rd of March. During the conversation on the 16th of March ID said that was fine.[22]Mr Dunn then consulted with HR and reviewed the OH report which had been obtained following a consultation with C on 14 March 2023. The report said, among other things: In my opinion, Mr Weston is fit to return to work following the advised recommendations. I advise indoor working with the ability to sit or stand at will, due to pain swelling and limitations when walking. It is also likely a return to work in some capacity will be beneficial to Mr Weston’s mental health as it will provide routine and focus. I suggest Mr Weston remains on indoor duties until he has his MRI scans and the results. Following the results of his scan I suggest a re-referral to Occupational Health to offer further guidance with input from his GP.[23]On 17 March 2023, C raised a grievance in which he alleged that SB, a manager at Inverclyde DO, had been filming him outside work. AM, People Case Support Manager, was allocated to hear C’s grievance.[24]AM was not based in Inverclyde. He was part of a central team based in Sheffield which did casework for R including hearing grievances, complaints under R’s Bullying and Harassment Policy and attendance management cases. AM was not aware when allocated C’s grievance dated March 2023 that C had previously raised an employment Tribunal claim in 2021 against R alleging sexual orientation discrimination (in which SB had been named), nor of the details of that claim. He did not become aware of this at all during the period between 17 March and 12 October 2023 when AM concluded his involvement with C’s grievance.[25]AM significantly delayed in dealing with C’s grievance about SB. In the intervening period, there were other events with which this case is concerned.[26]On 22 March 2023, C received a phone call from ID informing him not to return to work on the 23rd of March. C told Mr Dunn he was fit and able to return and would be able to work with painkillers. ID advised C he must wait until he had his MRI scan. ID’s refusal was because of the HR and OH advice he received which recommended against a return to full duty, based on what C told the OHA on 14 March 23 about his hip pain. C was shocked and disappointed by ID’s change of position. It was the first time C had experienced a manager within R querying his decision to return to work following a spell of absence when he had indicated a willingness to do so.[27]There was an exchange of text messages between C and ID on 23rd March 23. C sent a message as follows: Hi ian just to confirm our phone chat yesterday. I was due to be back into work today on my full duty obviously you called me yesterday and told me not to come into work as per your advice you took off HR. I'm just texting before my shift's about to start I just want to keep myself right. Cheers[28]ID replied the same day: Yes, as stated yesterday that was the advice I was given after taking your OH report under consideration. You should speak to your GP to discuss a possible return to work[29]In April 2023, C was still off sick. He had a meeting with ID. Mr D Houten, C’s trade union representative, was also present. ID asked C whether he was any further forward with the MRI scan and C said no. C asked ID if light duties were available and ID said no.[30]In April 2023, ID asked C if he was driving his taxi and C responded that he was not. C told ID that, however, that in the future it was possible he would return to doing so. ID asked if the car was clutch or automatic and C replied it was clutch. ID said he would check with HR. He didn’t say what he was going to check with HR. He never followed up with C on this and did not raise the issue of taxi driving with him again. May and June 2023[31]C remained on sick leave from R. He was also still not driving his taxi.[32]On 25 May 2023, C had a telephone consultation with R’s OH advisor, Judith Brown. Following the consultation, Ms Brown prepared a report which was made available to C and R. At that time C reported to Ms Brown severe ongoing symptoms of anxiety and depression that impacted his daily activities. He described personal issues and some perceived workplace stressors. He reported that he was sleeping poorly and that his hip pain was exacerbating his mental health. He advised he was waiting for an MRI scan and that he did not go out socially because he would get anxious around friends. Ms Brown confirmed in her report that “following the completion of a well recognised mental health assessment tool, it indicates that he is suffering from severe anxiety and depression.” Ms Brown’s report also recorded that C still awaited his MRI scan of his hip. It said, “He says his hip is less painful since being at home. He remains under the care of his GP …”[33]In the section headed Current Outlook, she wrote: Mr Weston is currently unfit for work due to ongoing severe symptoms of anxiety and depression that impact on his daily activities. It is difficult to predict the outlook with any certainty, however I anticipate that given appropriate time and treatment, there is scope for improvement but to what degree is unknown at this time. I am unable to predict the likelihood of recurrence.[34]In the section headed Follow on Action, she added “No follow on actions required”. R did not hold any attendance management meeting or call with C to discuss the report, and C did not contact R to discuss his health situation in the aftermath of the report.[35]He remained signed off sick. He provided R with fit notes, including four fit notes, respectively covering periods from 16 to 26 April, 26 April to 17 May, 17 May to 14 June and 12 June to 12 July 2023. In each case the GP’s statement said C was not fit for work. The statements did not tick the box to say he was fit for work with any stated adjustments. The fit notes recorded a diagnosis of hip pain and stress.[36]C experienced some improvement in his mental health in the period after 25 May 23. He still felt some symptoms of stress and anxiety. He remained on antidepressant medication. He was concerned about his financial situation and his ability to pay his bills on the reduced sick pay he was getting. He was still experiencing some knee pain.[37]On 12 June 23, C attended his GP for a consultation. He discussed stress and anxiety symptoms including heart palpitations. His GP adjusted his medication to take the same daily amount of Sertraline but in two separate doses instead of one single tablet. His GP also restarted C on propranolol. C also discussed with his GP knee pain and his long standing left hip issues. The GP recorded in the notes that it was suspected that the knee pain related to compensating with C’s hip.[38]C began driving his taxi again for commercial gain on 12 June 2023. He did not inform R of his intention to resume his taxi driving work. He attempted to call ID on 2 occasions on 12 June 2023 to inform him of his intention to resume taxiing. ID did not answer, and C made no further attempts to contact ID whether by phone, email or text. Nor did C contact any other manager or R’s HR team.[39]C was taxiing in Inverclyde close to where he worked. He made no effort to conceal his taxi driving in the local area where there was a fair chance of being sighted by a Royal Mail colleague at some stage. C’s perception at the time, based on previous interactions with ID, was that there was no scope for him to return to work for R on adjusted duties. Based on those interactions, he also perceived that there was no scope to return to his full contracted duties as a postman, pending his MRI scan.[40]There was no express contractual or policy term which obliged C to inform R during sick leave of an intention to work with a different employer or of an intention to undertake other self-employed work. There was no express contractual or policy term which obliged C to update R on any improvement in his capacity to undertake other types of work which he was not contracted to perform for R while he remained incapable of performing his contracted duties. C had provided such input to R’s OH Advisor, Ms Brown, and to his manager, ID, in the past. There was no evidence that this was done pursuant to any express or implied obligation. Given C’s previous recent attempts to negotiate alternative lighter duties with R had been to no avail, he perceived no benefit in keeping R updated on his capacity to perform work which was not his contracted duties to deliver mail on foot as a postman.[41]R’s Sick Pay Policy included the following provisions: Entitlement to sick pay is always subject to strict observance of the following conditions: … The business must be satisfied that employees’ absence is necessary and due to genuine illness The business reserves the right to refuse sick pay if an absence is due to, or is aggravated by, causes within the employee’s control or if the employee has neglected instructions given by a doctor[42]Though C had a consultation with his GP on 12 June 23, he did not discuss with his doctor his intention to return to taxi driving work. Their consultation was focused upon C’s fitness to work as a postman for R, on obtaining a further fit note certificate and discussing C’s symptoms and treatment for his anxiety and his knee pain. C did not seek advice from his GP about whether he was fit to perform taxi driving work or about whether there was any risk that doing so might aggravate his symptoms.[43]There was no medical evidence before R at any stage which addressed the question of whether C’s driving of a taxi might or might not aggravate his health conditions (either his knee and hip pain or his mental health conditions) and thereby extend his absence. R did not seek any medical opinion on the matter or ask C to do so. There was likewise no medical evidence before the Tribunal on the issue.[44]C returned to working as a taxi driver on 12 June 2023. He also obtained a fit note, signing him off as unfit for work on that date. As had the previous recent fit note, the fit note recorded that C was unfit for work due to ‘hip pain / stress’. Like the other, it was in the standard template format and C’s GP had ticked the box “you are not fit for work”. The GP did not tick the alternative box “you may be fit for work taking account of the following advice”.[45]From 12 June 2023 and thereafter, C worked as a taxi driver. His hours driving his taxi commercially sometimes encroached into the hours he was contracted to carry out shifts for R had he been fit to do so. At the material time in June 23, C was in receipt of half pay from R in respect of his contracted hours.[46]On 15 June 2023, while off sick, C was seen by managers PC and Alex Learie driving his taxi at a local rank. They observed him interacting with other drivers at the rank and also pointing at landmarks to a passenger he was driving through the window. PC or Mr Learie photographed C. They did not approach him at the time. On 16 June 2024, PC phoned C and told him he had caught him taxiing or words to that effect. C did not deny having done so. C did not use foul language. He asked, ‘Where did you catch me?’ in response.[47]Later on 16 June 23, C sent PC a text message which said in capital font: “DO NOT PHONE ME IF YOU NEED TO SPEAK TO ME SEND A LETTER”.[48]By letter dated 15 June 23, PC invited C to a fact-finding meeting on 17 June 2023. The letter indicated the meeting would concern an allegation of “dishonesty / fraud in relation to working in other employment while declaring not to be fit for any forms of work. Observed working in other employment on 15 June 2023”. The letter gave no indication that the meeting would discuss allegations about C’s conduct during the phone call with PC the day before. It referred to no allegation that C had shouted or sworn during that call.[49]The fact-finding meeting took place on 17 June at around 8 am. C was accompanied by DH. PC began the meeting by alleging that C had responded with foul language in his call with PC after PC put to him that he had been observed taxiing. He said that shouting and swearing at him was not acceptable. C denied swearing at PC and PC alleged again that C had done so. PC didn’t specify during the meeting what C was alleged to have said.[50]There was tension at the meeting. C had a poor relationship with PC. However, no foul language was used by either C or by PC. Both raised their voices and spoke over each other at times. PC repeated the same question about whether C was taxiing more than once. C had accepted that he was taxiing and was exasperated by PC’s repetition of the question. The tone of the meeting was unpleasant, but neither individual interacted in a physically aggressive or intimidating manner with the other. C pointed his finger at PC at one point and PC asked him not to.[51]PC behaved as he did in the meeting because he had spotted C driving his taxi on 15 June 2023 and he believed that C’s conduct in doing so was a disciplinary matter. He had, with or without input from HR, identified C’s conduct in taxiing to be potentially dishonest or fraudulent. PC considered that, based on his ability to drive a taxi, C’s absence from work with R may, in PC’s view, have been unnecessary. During the meeting, PC said words along the lines, “the reason you are here today is because I have two conflicting reports here to say you are unfit for any form of work an OH report…”. PC was referring to the OH report dated 25 May 2023. (That report did not say C was unfit for ‘any form of work’, It said C was ‘unfit for work’). PC had interpreted the report as referring to any form of work. PC’s conduct during the meeting was also influenced by a poor personal relationship with C and the fact that PC perceived C’s attitude during the meeting to be confrontational.[52]Following the interview, PC sent some further written queries to which C responded by email on or about the 20th June 2023. C’s responses included the following when asked about his interactions with his coworkers on the taxi rank when spotted on 15 June: “I .. find you very creepy following me and taking pictures”, “if taking pictures … please can you get my right side”. PC also asked C in writing about a brief TV interview appearance. He put to C that this would suggest C was able to socialise and was confident enough to speak on TV in front of millions. C admitted he had been at the football stadium spending his birthday money when a reporter asked to speak to him. He said he had not given false information [about his state of health] and that his counsellor had encouraged him to challenge himself when he was feeling down or struggling. C also added: “I hope you enjoyed the interview I thought it went quite well … I am totally buzzing Brendan Rodgers is back”.[53]PC prepared a note of the meeting which C declined to agree. In it, PC recorded that C had responded with foul language during the call on 16 June 23. He recorded in his note that he went on to say to C that “shouting and swearing is not acceptable”. His note records that C responded, “I didn’t swear at you” and that PC replied, “Yes you did.”.[54]PC’s note does not record any examples of swearing on C’s part during the meeting. PC’s note says at one point “Leigh continued to talk over me” and at another “Leigh then just told me to write my notes and I found it difficult to ask other questions because of his aggressive manner in the interview”.[55]When PC’s notes were sent to C for review and signature, C sent back a version which said: Amended 27/06/2023 LW: these notes are not entirely accurate as David Houten had to step in and prompt Paul to ask why I was working my taxi or what my situation is. I told Paul and this is not in the notes I am struggling financially as I am unhappy and that I was also instructed not to come back to work until I had my MRI scan. Paul has conveniently left out of the notes and I would like this amended. Therefor [sic] I can't sign these notes as a true reflection.[56]C raised a grievance on 26 June 2023 in the following terms (sic) so far as relevant: Today I put a grievance in with the EMRC team... I also want to put this in writing and have a copy of this put in with the investigation which I was interviewed for on the 17th of June 2023. I had an accident in February 2022 at work which I was off a few months sick with, I returned to work taking painkillers to get through my duty. In November 2022 I was put on light duties as my hip was getting worse, I was on light duties until January 2023. I then resumed full duties until 10th February 2023. The 10th February I was out on duty and informed Ian Dunn that I couldn't continue on as my hip was too sore and I asked him if there was any chance I could do indoor work on the 11th February 2023, he said no, he carried on to say if I was not fit to do my duty I was to call in sick on the Saturday the 11th of February 2023 which I did do. I then informed Ian Dunn on the 16th March 2023 that I would return to work on my full duty. My next shift to return to work was March 23rd 2023 he said ok that is fine. I then received a phone call off of Ian Dunn on Wednesday 22nd March informing me not to return to work on Thursday the 23rd March 2023. I told him I was fit and able to return as I was going to take painkillers... and he said I must wait until I have my MRI scan which I am currently waiting on. In between 10 February and the 16th March I have had a few meetings with Ian Dunn which David Houten (union rep) has been present and I expressed my concerns that if I came back to work and my hip went again would I have to go off sick again or could I do indoor work. If I came back and I had to go off sick again due to my hip, I would trigger a third stage warning and be up for dismissal. Ian said I would have to go off sick. I have been struggling with my mental health because of this and I have been fearful of losing my job if I came back and was up for dismissal due to my attendance, I do suffer from mental health issues and have for a few years now. Paul Corrigan and Alex Learie had been following me and sent me pictures they have taken of me I find this very disturbing and not good for mental health. I would like to know what legal basis they had for following me and breaching my personal data and data protection, I would like an answer for this? Paul Corrigan has also questioned my mental health which has really upset me I have struggled with depression and severe anxiety for years. Paul has also accused me of swearing on the phone to him which I didn't I know what I said I am not happy with this. I have had issues with Paul Corrigan for years now I have had several complaints put in against him and a few bullying and harassment complaints. It is very personal with Paul who says I was aggressive in the fact finding interview on the 17th of June 2023 I have my union rep David Houten as a witness who states I was not aggressive towards Paul Corrigan. In the fact finding investigation Paul had to be prompted by David Houten (union rep) to ask me what my situation is i.e. why I had to work my second job. I told Paul that I am on half pay and can't survive on half pay as I have bills to pay and we're in a cost of living crisis. I believe Paul wants to dismiss me and has been waiting on any opportunity to do so. I am currently on a 3-day week contract and my shift pattern doesn't suit Paul he has already tried to change my shifts last year and asked me to work Wednesday, Thursday and Friday doing what is called pressure 5 I said no. There is a revision going on at the moment in my office and my shifts don't suit the office. I feel it is very personal with Paul. Paul has stated that I have had opportunities to return to work this is not true as I have been told not to come back until I have had an MRI scan. I feel it is very inappropriate that Paul Corrigan is taking this investigation about me as I have had so many issues with him. The reason I didn't inform Paul Corrigan I was going back to do my 2nd job is I have no trust or confidence in Paul Corrigan as I have had so many previous issues with him. I did try and phone Ian Dunn on the 12th of June 2023 to inform him I would be doing my 2nd job but his phone didn't even ring. I informed Ian Dunn on the 16th of March I would return to work for my next shift which was the 23rd of March 2023 and on Friday the 17th of March Samantha brown a previous manager from my unit was filming me driving by in her car as I was sitting in my car. I put in a grievance for this and I haven't heard anything back from Royal Mail regarding this. This highlight my lack of trust and confidence withing my unit in particular my managers in the Inverclyde unit.[57]AM, who was designated to hear C’s March grievance, was aware of C’s grievance dated 26 June 2023 which was sent to him on that date. AM took advice from R’s ERCM (HR) team about the procedure to be followed. He was told that as the 26th June grievance related to a disciplinary related incident, the grievance could not be accepted. AM telephoned C on 27 June 2023 and told C that he would not be dealing with C’s grievance of 26 June 2023 as C had conduct proceedings pending. On 3 July 2023, AM sent C an email regarding the 26th June grievance in the following terms: To confirm, I was advised on your grievance submitted last week that Royal Mail cannot accept it as you have an ongoing conduct matter. However, you can raise at the formal conduct appeal process. Events in July and August 2023[58]C remained off sick after the fact-finding meeting with PC. He continued to work as a taxi driver for commercial gain, including, at times during hours he was contracted to work for R if not off sick. He continued to receive sick pay though at some stage between mid-June and the end of August this reduced from half pay to SSP rate.[59]On 8 August 2023, C emailed AM, seeking to lodge a third grievance in addition to those dated March and June 2023. He complained his grievance of 17 March had not been dealt with and that AM had told him that he, AM, could not deal with his 26th June grievance.[60]On 8 August, S Lester of the ERCM Team emailed C as follows: As you have stated that Andrew Mullen is the case owner I have copied him in and he will respond to you and your concerns. It is not appropriate to log another grievance about this as Andrew is dealing and will respond...[61]On the same date, AM sent an email to C as follows: I will investigate the grievance dated 17th March 2023 this month. I have been delayed due to the significant amount on industrial action cases I have supported with. The grievance dated 26th June 2023 - As I explained previously, the business could not accept the grievance as you have an ongoing conduct matter. However, you can raise at the formal conduct appeal process.[62]In the event, AM did not investigate the March grievance that month or the following month.[63]In early August 2023, SD, Lead Customer Operations Manager for R’s Motherwell Delivery Office, was appointed by an Area Manager in Royal Mail to be the disciplinary manager regarding the allegations raised against C in June 2023. SD had no prior involvement in the matter and had not met C before.[64]SD was not aware when allocated C’s disciplinary case in August 2023 that C had previously raised an employment Tribunal claim in 2021 against R alleging sexual orientation discrimination, nor of the details of that claim. SD did not become aware of this at all in the period from his appointment until 18 December 2023 when SD concluded his involvement in C’s disciplinary process on giving a statement to the appeal manager, PH.[65]On being appointed Disciplinary Manager, SD was not aware of, and was not provided with a copy of C’s grievance dated 26 June 2023. SD was not aware of C’s grievance of 17 March 2023 at that time nor of C’s grievance of 8 August 2023 at that time. On being appointed, SD did not hold a grievance meeting with C in relation to his grievances of 26 June and 8 August was because he was unaware of their existence at the time, not having been allocated to consider these.[66]SD remained unaware of these until he later held a formal disciplinary hearing with C. SD invited C by letter to the disciplinary hearing which took place on 29 August 2023. In the invite letter, SD set out the allegations, (‘Notifications’) as follows: 1. Gross misconduct in that during your current sick absence you have been dishonest regarding your capability for work to both your manager and Occupational Health. This is due to you being seen driving a taxi on 15th June 2023 whilst on sick leave. This is a breach of Royal Mail Business Standards. 2. Gross misconduct in that on various occasions during your absence including the fact finding interview you have used abusive language and behaved inappropriately and aggressively towards your manager when questioned about your other employment. This is a breach of Royal Mail Business Standards. 3. Gross misconduct in that you have been in receipt of Royal Mail sick pay during an unnecessary absence from work. This is a breach of Royal Mail Business Standards.[67]The disciplinary hearing went ahead, conducted by SD. C was represented by DH. At the hearing, C said to SD: “I had a homophobic comment made about me. I had to go to mediation with Paul Corrigan. You are quoting Royal Mail Standards when Royal Mail Managers haven’t behaved this way with me. I have submitted grievances, what is happening with those?” SD replied: “I don’t know, I am not dealing with that.” C said: “No one is dealing with it” SD did not ask for and did not receive a copy of the grievances to which C had referred. SD did not ask C what the content of those grievances was, and C did not outline the contents.[68]SD began the disciplinary hearing by speaking about Notification 2. He said “I would like to start by addressing notification 2 and your behaviour throughout this investigation. Why do you think it’s acceptable to behave in this manner?” C then denied the behaviour. SD later said, “You were swearing and aggressive.” C said, “I would like to know what I said”. SD replied, “It was your behaviour in general”. SD later said “Your comments and demeanour in the fact finding was arrogant and rude. Why do you behave like this?”[69]DH had also been present at the fact-finding meeting on 17 June. SD did not ask DH for his recollection of the events at that meeting and did not ask specifically whether DH recalled C speaking to PC aggressively or abusively. Though not asked, DH made some comments about the meeting on 17 June. DH said SD was taking PC’s word for what was said on the call (on 15 June 23). He went on “Leigh came into the office that day and there was a lot of shouting going on about various things.” DH did not say who was shouting. It was not clear whether DH was referring specifically to the meeting that DH attended with C and PC. C repeatedly denied swearing and being aggressive to PC. DH made no contradiction of C’s account.[70]Later in the meeting on 29 August 23, DH said this: With regards to the fact finding interview on the Saturday morning, in Notification 3 it mentions working as a taxi driver which Leigh has admitted. However, regarding Notification 2, it mentions abusive language. You cannot prove either way that abusive language has been used so I think that this notification should be removed. On the Saturday, I was in the room with Leigh and it was a tense environment but I wouldn't say that Leigh was going to jump over the table or anything like that. The meeting only lasted a few minutes. In fact my coffee was still hot when we had finished the interview. I would definitely say that the interview was tense.[71]This was the only evidence SD had from DH about the events of the meeting on 16 June 2023. Neither PC nor SD interviewed DH separately, in C’s absence, as any part of the disciplinary process. Noone from R asked DH whether he heard C swear during the meeting. SD did not interview PC to obtain details of what abusive or foul language C was alleged to have used during the call on 16th or the meeting on 17th June 23 or how specifically his alleged aggression manifested.[72]At the hearing, SD also asked a number of questions regarding C’s illnesses and capabilities. This included some questions in relation to C’s anxiety and depression. He asked C whether C was truthful with the OH Advisor at the consultation in May 2023. C replied he was. SD put to C excerpts from the OH report and asked C if he considered the OH comments about C’s fitness for work and the future outlook was accurate. C agreed that they were. SD then observed that the report was dated 25 May and that 3 weeks later, C was seen driving a taxi. SD asked C what had changed in the 21 days. C advised he had been helped by friends and family and getting out the house. He said he had returned to his GP and upped his dose of Sertraline at the beginning of June. He said he was on half pay so he had to do something because he couldn’t afford to survive.[73]C spoke in error when he referred to his medication being increased at the beginning of June 23. In fact, the change to his medication was not an increase in Sertraline (which he had been taking continuously) but a restarting of propranolol. This was not prescribed at the beginning of June but on 12 June 23 which was the day C restarted his work as a taxi driver. There was an adjustment to C’s Sertraline medication on that date too but the overall dose was not increased. It was instead split across two tablets instead of one.[74]The following exchanges are recorded in the agreed notes of the disciplinary hearing on 29 August: SD - … On 25th May the report was produced, and we accepted that you are not coming back to work anytime soon due to your illness and injury. There is no predicted return to work date, so it reads that it is open-ended. Three weeks later, you are seen driving a taxi. How do you think that looks? LW - it doesn't look good. But I don't trust the managers in this office. If I had called the manager and told him that I was going to drive the taxi, I would have been in the same position as I am in now. … SD - To clarify. You are unfit to return to work due to anxiety which also stops you from socialising and you feel anxious around friends, but you are fit to drive a taxi with strangers in your vehicle? Is that correct? LW - that is correct. SD - you have to see this from my point of view, this doesn't add up. … SD - we have an occupational health report that states that you are unfit for any work and then three weeks later you are working. LW – that’s your opinion. … SD- why were you fit enough to drive a taxi but not fit enough to work for Royal Mail? LW - because I need to pay my bills and I am not fit enough to come back here. ….[75]SD misspoke when he said the OH report stated C was unfit for ‘any work’. The report stated that C was “unfit for work”. The word ‘any’ was not used.[76]C didn’t like SD’s questions but SD asked them in a structured, controlled way. C was given the opportunity to answer. SD asked his questions with a view to coming to conclusions about the disciplinary charges which had been levelled at C in the invite letter. He did not ask them with the intention of violating C’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for C. September 2023 – C’s dismissal[77]AM in the meantime, had not progressed C’s grievance dated 17 March. He had a substantial caseload arising from strike action within R’s organization which generated a large volume of conduct-related cases for his team to deal with. R decided that his team should prioritise these cases.[78]On 11 September 23, after C’s disciplinary hearing with SD but before SD had issued an outcome, AM sent C an email inviting him to a grievance meeting on 13 September 2023. On the same date, C replied to advise he was not available. Later that day, AM sent C a revised invite to a grievance meeting on 14 September 23. C advised he was unavailable. Based on the availability C provided, AM sent a further invite, inviting C to a grievance meeting on 29 September 2023.[79]In the period from and after 29 August 23, SD did not hold a grievance meeting with C or otherwise progress C’s grievances of 26 June and 8 August 2023. Though C made reference to having raised grievances at the disciplinary hearing, SD did not ask for copies of these and C didn’t furnish him with copies. SD did not progress the grievances because he believed they did not fall within his remit as disciplinary manager and he presumed they had been allocated to some other manager to deal with.[80]On 13 September 2023, SD sent C a letter by email informing him of his dismissal with effect on 16 September 2023. At the time of dismissing him, SD still had not seen and didn’t know about C’s ET claim lodged in 2021. He had not seen and was not aware of the contents of C’s grievance dated 26 June 2023 (or those dated 17 March and 8 August 2023), although he had been told at the disciplinary hearing that C had “submitted grievances”.[81]SD upheld all three Notifications and decided to dismiss C. He enclosed a decision report setting out his findings and reasons. In relation to Notification 1, his conclusion included the following (sic): After taking all the information into consideration that Mr Weston provided during the interview, it is my belief that he has misled both Royal Mail and occupational health. I'm struggling to understand how Mr Weston can go from being affected by the symptoms of his depression to the point where he struggles to socialise with his friends to 3 weeks later, he is driving strangers around in his taxi and being interviewed for national television. These actions are not in keeping with the description on his doctor's certificates, the occupational health report and what the management team at Inverclyde were led to believe about his absence and illnesses. I am certainly not suggesting that Mr Weston isn't ill, however, the question I have to ask is whether I believe he was too ill to come to work at Royal Mail and unfortunately, based on his behaviour whilst on sick leave the simple answer is no. … Mr Weston was prepared to resume work in March 2023 but was told not to by Mr Dunn due to the absence of an MRI scan date. Phased return to work plans are usually for between 4-6 weeks and should see a gradually improvement in the employees ability to carry out their contractual role. In the absence of an MRI scan date, a phased return to work in March would have resulted in an open-ended plan which would not be considered a reasonable adjustment. It is also worth noting that as of the date of the formal conduct interview, Mr Weston is still waiting for his MRI appointment and therefore in my opinion, Mr Dunn made the right decision to refuse his request to return to work.[82]Regarding Notification 2, SD’s report included the following reasoning: There is no doubt in my mind that Mr Weston has behaved inappropriately and in particular, towards Mr Corrigan during this investigation... The fact finding interview was aborted due to the behaviours displayed by Mr Weston and the remaining questions sent in document form to his home address ... In the follow up document... a number of his responses are questionable and would support the concerns that Mr Corrigan had with his behaviour during the fact finding. These comments were as follows: I also find you very creepy following me and taking pictures if taking pictures of me can you please get my right side I look better from that side In my opinion, these comments show a clear disregard and disrespect for both the management team at Inverclyde and their right to be treated with dignity and respect…[83]Regarding Notification 3, SD’s report included the following reasoning: Mr Weston was fit enough to drive his taxi despite his illnesses therefore it is reasonable to believe that there may have been suitable work for him to carry out for Royal Mail. The question I need to ask myself is if I believe the absence was necessary and based on the information provided by Mr Weston, I do believe that he was fit to resume work in some way and therefore the absence was unnecessary. It is also worth noting that Mr Weston himself agreed that working as a taxi driver whilst on sick leave could be deemed as unnecessary absence… ... I can see that he is still in receipt of statutory sick pay. Whilst I appreciate that whilst his absence is supported by a doctor's certificate, clearly the information on the certificate is inaccurate therefore I would have to question whether he should still be in receipt of this payment. Mr Weston was also asked if he was continuing his taxiing and he said yes. You could argue that as Mr Weston is earning an income from taxiing, he shouldn't be getting statutory sick pay.[84]There was no evidence before SD about the hours during which C was taxiing and whether these conflicted with his contracted hours for R in respect of which he was receiving sick pay. SD made no enquiries about that issue.[85]Having set out his reasons for upholding all three notifications, SD then ended his letter with a section headed ‘Overall Conclusion’. This section included the following observations: … there is no doubt in my mind that Mr Weston has misled not only his managers at Royal Mail but his GP and Occupational health with his description of his illnesses and how these affect his day-to-day living. I'm certainly no expert in mental health, however, I am struggling to understand how an increase in medication would have resulted in Mr Weston going from being unfit for work and socialising with his friends due to the symptoms of his depression, to driving a taxi with unfamiliar customers and being interviewed by a reporter for national television within a period of 3 weeks. Mr Weston claims that the interview was not stressful as it was just him and the reporter speaking but I would beg to differ….[86]SD came to these conclusions because he genuinely believed them to be correct and because he believed them to be in line with the remit he had been given as disciplinary manager of deciding the allegations against C.[87]C felt degraded and let down when he read these parts of SD’s letter. He disagreed with the conclusions and felt he wasn’t taken seriously by SD in relation to the background he had described including ID’s refusal to permit a return to work. He felt that SD was someone who didn’t understand mental health challenges. He felt upset because he had struggled badly with his mental health at times and had required to seek GP support for this for a few years.[88]On 14 September, C emailed AM to tell him he was being dismissed and to ask if the grievance meeting scheduled for 29 September 23 was going ahead. C received no reply.[89]On 14 September 23, C entered an appeal against his dismissal in the following terms: I feel the decision is unfair and you have been very selective in some of this stuff you have said, for example you said I submitted a grievance recently and that's why it wasn't getting dealt with. I told you my grievance is from 17th March which you also left out of the notes which I asked to be amended. You said David Houten said there was a lot of shouting in the fact finding. I was given no back to work plan. My injury happened at work due to Paul Corrigan's negligence in giving me a high capacity trolley and making me put it in a van and use it when it's not fit for purpose. You have questioned my mental health which I find insulting. I have a disability. Also I have not once used abusive language. I asked you to tell me what I was alleged to have said. You could not tell me.[90]At some stage in the latter half of September, PH, an Independent Case Manager based in Chorley was allocated to hear C’s appeal against his dismissal. When PH was allocated to deal with C’s case, he was aware that C had previously raised an Employment Tribunal claim in 2021. PH was not involved with the claim but worked with colleagues who were. PH knew a claim had been raised but did not know the details of the claim.[91]On 28 September, AM asked C to confirm that he would attend the grievance meeting scheduled for the following day. C said he was not available as he could not get hold of his TU rep. October – December 2023: Disciplinary Appeal hearing and Grievance outcome[92]Following advice AM took from R’s ERCM team, AM decided to deal with C’s grievance in writing as opposed to holding a meeting with him. On 2 October 2023, AM emailed C as follows: “As you have been dismissed, our policy is to continue the grievance investigation through writing, therefore, there is no need to attend a meeting. I will commence my investigation.[93]C raised a tribunal claim against R on 3 October 2023 (claim number 4105585/2023 with which, inter alia, this judgment is concerned) alleging discrimination. AM was made aware that C had lodged this claim against R in October. However, he was not aware of the details of the claim. On 28 October 2023, Thompsons entered further and better particulars which provided extensive further factual allegations and clarified C’s legal claims. AM investigated C’s grievance and took his decision before these further and better particulars were lodged. PH, who had been allocated to hear C’s dismissal appeal was also aware that C had lodged tribunal claim number 4105585/2023. PH became aware of this between 3 and 11 October 2023.[94]AM began to investigate C’s March grievance on 4 October 2023. He emailed C on that date with some follow up questions. On 5 October, AM then emailed Ms S Brown putting C’s allegation to her for comment. She denied filming C.[95]On 11 October 2023, PH conducted a dismissal appeal meeting with C via Zoom. Tam Dewar, TU representative, accompanied C. At the appeal hearing, C referred to a settlement in 2022 but did not provide any more details. PH’s knowledge of the 2021 tribunal claim remained vague and undetailed.[96]During the appeal meeting on 11 October, C made comments about PC’s actions during the disciplinary and investigation process, which were accurately recorded in PH’s note of the meeting, as follows: [Tam Dewar, C’s TU rep]… Mr Weston was awarded a conduct penalty by Mr Corrigan which was reversed at appeal and removed from his record. Mr Corrigan and Mr Weston took part in the internal mediation process as part of a settlement in 2022.... Mr Weston believes that both events have given Mr Corrigan a reason to treat him differently since that time. Mr Weston believes this lies at the heart of this latest conduct case and that it was inappropriate for Mr Corrigan to have any involvement in this case. Mr Corrigan should have asked himself if he is the appropriate manager to deal with this and given his past record should have resolved not to. Mr Weston believes that Mr Corrigan failed to do so to settle old scores. ... Mr Weston refutes these allegations [Notification 2], Mr Corrigan had alleged behaviours towards Mr Weston in the past that were overturned at appeal, he had undergone mediation with Mr Weston and independent parties, he was responsible for issuing a managerial instruction which had caused considerable pain and discomfort to Mr Weston and Mr Weston believed that Mr Corrigan had involved himself in this case as retribution against Mr Weston The allegation that the fact finding meeting was adjourned due to Mr Weston’s behaviour is not supported in the paperwork, there is no mention of that in the notes and the amendment to the notes accepted by Mr Corrigan make no mention of the meeting being abandoned. It does note that Mr Houten had to prompt Mr Corrigan to direct questions to Mr Weston. The only independent witness Mr Houten merely added that “there was a lot of shouting at the meeting”. ... LW: I'd also point out that I've had history with Paul Corrigan since I came into the unit. ... At no point were David Houten, my CWU Rep, or I told that the meeting was being terminated early. Paul Corrigan said that the meeting was over. He asked me the same question five times and I don't know why. …. [PH] I have no more questions to ask, is there any thing additional you’d like? [C] – I would just add that I believe the discrimination against me in respect the homophobic comment, the recording of the AOD and my complaints that I believe there is a clear pattern of behaviour against me.[97]On 12 October 23, AM wrote to C, declining to uphold C’s March grievance about SB. He preferred S Brown’s account which he had obtained around 5 October. He said this in his outcome emailed to C: Leigh states he was filmed by Customer Operations Support Manager, Samantha Brown whilst in his car. I asked Leigh if there were any witnesses to this, which he replied there were not. He did state he had contacted the police to report the incident. I asked Samantha if she had filmed Leigh, which she denied, and that she had not been contacted by the police regarding the alleged incident. I contacted Police Scotland who state it is not a crime to take a picture of it, or film in a public area. When I asked for confirmation if Leigh had contacted the police, I was told through the General Data Protection Regulation, she could not disclose this detail… ... as there were no witnesses to the alleged incident, I therefore cannot uphold the grievance[98]When he investigated and decided C’s grievance about S Brown, AM had no knowledge of any comments C had raised with PH at his dismissal appeal hearing on 11 October 2023 regarding PC’s actions during the disciplinary and investigation process. AM had not seen the appeal hearing notes and had not discussed the appeal with PH or anyone else within R at the material time. The notes PH took were not produced and sent to C until 25 October 2023, nearly two weeks after AM issued his grievance outcome.[99]After some adjustment by email, PH’s appeal hearing notes were amended and agreed by C on 26 October 2023. After their agreement, there was a period of a further 7 or 8 weeks when PH made no progress with C’s dismissal appeal. In that time, PH sent C some email updates. On 27 November 23, PH emailed C as follows: Further to my consideration of your case. I am writing to inform you that I'm currently unable to make a decision. The delay is due to needing to complete the investigation and decision write up. I do apologise for the delay in resolving the matter but please be assured that I am prioritising your case and working as quickly as possible to reach a decision. I will contact you again as soon as possible, I do not however anticipate this taking more than two weeks.[100]Although PH said he was prioritising C’s case, in fact he was busy with other work which meant he did not progress the appeal in the ensuing twoweek period. In the period of C’s appeal, PH had between 5 and 12 other live appeals to deal with at various times. He was also asked by R to perform operation duties on 6 working days during the Christmas pressure period. On 9 December, there had been little or no further progress on C’s case. PH emailed C on that date as follows: Further to my previous note concerning a delay in completion. I am writing to inform you that I'm still to complete the investigation and write up your case. I do apologise for this. The unfortunate delay is in part due to this being the Christmas pressure period. Your case is my priority and aiming to complete the investigation this week around my commitments in the delivery operation. I will then send the decision as soon as practicable after this, hopefully by the end of this week or early next week.[101]On 14 December, PH had still not sent a decision and C chased PH regarding the appeal outcome. C observed it had been 91 days since he lodged his appeal. He said the delay was unacceptable and was having a further detrimental effect on his mental health.[102]The next day, PH began some follow up investigations. He had, however, already formed a view that, based on what he knew of the case already, he did not propose to uphold C’s appeal. He had begun to draft the outcome report rejecting the appeal before he undertook his follow up investigations. He made enquiries of SD, PC and ID.[103]On 15 December 23, PH spoke to ID on the phone. On 16 December, ID sent him the OH reports dated March and May 2023 and a copy of the text messages exchanged between ID and C on 23 March 23. On 17 December, PH sent ID a written note of their call in an email which ID approved on 19 December 23. ID denied having refused C to be allowed to come back to do any work. He alleged he had asked him to come back and do “any work including collections”, driving a Royal Mail van. This had never been alleged to C before.[104]On or about 15 December, PH had a call with PC about C’s case. He followed up by emailing PC a note of the call on 17 December 2023. PC agreed these on the same date, subject to a small addition. In relation to Notification 2, the questions asked by PH and answers received from PC were recorded as follows in PH’s email: Leigh Weston denied having used abusive language in the fact finding meeting. When asked what it was he had said, Stuart Donaldson had said he didn't know. After having seen him at the waterfront in a taxi uniform, I contacted HR and they said that in the circumstances it would be possible to phone him to seek an explanation for this. When I did so, his response had been aggressive and offensive effing and blinding at me, so much so that I terminated the call. For some unknown reason during the fact finding you'd asked Leigh Weston the same question about driving a taxi five times and had then informed him the meeting was over. It wasn't the same question repeatedly, I was trying to get the information from him. However I couldn't get a straight answer, it was a very difficult situation, I was struggling to get my questions then, he was talking over the top of me asking where he'd been seen. Whilst in the amendments these states the CWU Rep had said there was a lot of shouting, this wasn't from me. Leigh Weston said that at no point was either he or David Houton informed that the meeting was being terminated early. That's just not the case and I did make him aware that I would have to close the meeting if he continued on more than one occasion. The allegation that the fact finding meeting had been adjourned was not supported by the documentation in the case file. There was no mention of this in the notes, similarly the amendments that had been accepted by you made no mention of the meeting having been abandoned. I disagree, the notes do state that I would have to end the meeting and that I'd also directed this to the CWU Rep. Leigh Weston had said to just write my notes, in my view it was obvious from the notes that the meeting was foreshortened.[105]On or about 18 December 23, PH had a call with SD about C’s case. PH sent SD a written note of the call in an email of 18 December which SD approved that day.[106]PH accepted the accounts of PC, SD and ID. Nothing in their accounts caused him to change his view that C’s appeal should not be upheld. He did not send the notes of his calls with these witnesses to C before he made his decision or finalised his report. On 19 December 23, he issued a letter with an appeal outcome report including his reasoning. This confirmed he upheld the dismissal and upheld all notifications.[107]With regard to Notification 2, PH said “I do not believe there to be any reasonable grounds to challenge this [i.e. the alleged misconduct] …”. He found there was no reasonable doubt that PC had had to terminate the meeting early. This was based on what PC had recorded. PH also drew support for his belief in C’s guilt of Notification 2 from C’s flippant responses to being asked about being seen on TV. Observations on the evidence[108]We found all witnesses to be credible and broadly reliable. Their evidence to the Tribunal was generally consistent with each other’s and with the contemporaneous notes and other documents which were produced. There was little material dispute on the primary facts regarding the process R followed. C disputed aspects of the substantive disciplinary allegations brought against him but there is little dispute regarding what evidence R had before it at material times in relation to these allegations.[109]The dispute relates instead (in part) to the reasonableness of R’s investigation, procedure, conclusions and decision to dismiss (in relation to the unfair dismissal claim). As might be expected, R said these were reasonable while C maintained they were not. The case is also centred around disputes as to whether the conduct of R’s witnesses was prohibited conduct related to C’s alleged disability and whether it was because of C having done alleged protected acts. The conduct founded upon was not materially disputed. The key disputes in the case concern what might be described as the ‘secondary’ conclusions to be drawn from the largely non contentious primary facts.[110]We have made findings in fact based on the evidence before us about what happened on 15 and 16 June 2023 as well as the history of communications between C and I Dunn regarding his absence. We recognise that, for the purposes of deciding liability in C’s unfair dismissal claim (as discussed in the section headed ‘Relevant Law’) the question is not what facts we may or may find or what sanction we may or may not have been inclined to visit on C. We have made findings in fact on these matters because of their relevance to remedy issues for unfair dismissal, including in particular, the question of contributory fault as well as to C’s complaint of wrongful dismissal.[111]C was asked by Mr Taggart whether, on his return to taxiing from 12 June, the hours of taxi driving conflicted with the shifts he would have done for R if he had been at work. C said he wasn’t 100% sure. The impression of C’s evidence when answering this question was that it was the first time he had ever considered the matter of whether there was a conflict in the hours and that it was not something to which he had turned his mind previously as a matter of relevance or significance. C returned to taxi driving on 12 June and he admitted to SD to continuing to drive the taxi for commercial gain thereafter in the period to the disciplinary hearing. C was contracted to work 16 hours over 3 days per week. We have made a finding in fact on the balance of probabilities that C did drive the taxi professionally during periods when he was contracted to work for R had he not been off sick. He didn’t deny having done so, and without having specifically applied his mind to avoiding those times when he planned his taxi shifts, it seems virtually inevitable that sooner rather than later, he would have found himself working in his taxi during his contractual hours with R.[112]C’s fit notes were not produced to the Tribunal. However, Medical notes were produced which recorded, among other things, the issuing of fit notes and the diagnoses recorded thereon. Mr Gibson cross examined C on which ‘box’ was ticked by his GP on the relevant fit note(s) C submitted to R. It is within judicial notice that the standard fit note template has two boxes, one which says, “you are not fit for work” and the other which says, “you may be fit for work taking account of the following advice.” Relevant Law Harassment
Relevant Law
[113]Section 26 of EA deals with harassment and is in the following terms, so far as material: 26 Harassment (1) A person A harasses another (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of – (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to in subsection (1)(b) each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. …[114]For a complaint of harassment, it is not necessary that the conduct be ‘on the grounds of’ the protected characteristic, but only that it is ‘related to’ that characteristic (in line with the Directive). It is not necessary to construct a comparison with a real or hypothetical comparator. The intention of the actors in question is relevant to but not determinative of the question; we must apply an objective test in deciding whether the acts related to the protected characteristic of race.[115]In Richmond Pharmacology v Dhaliwal [2009] IRLR 336, in the context of harassment related to race, the EAT’s made the following observations. ‘Not every racially slanted adverse comment or or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particulary if it should have been clear that any offense was unintended. Whilst it is very important that employers and Tribunals are sensitive to the hurt that can be caused by racially offensive comments or conduct… it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in every unfortunate phrase.’ That case involved a stereotyping comment by an employer to a female employee of Indian ethnicity. The employer was found to have said: “We will probably bump into one another unless you are married off in India”. The EAT upheld the Tribunal’s finding that this, while close to the borderline, met the threshold for harassment. While its comments about a culture of hypersensitivity were directed to a case of race harassment, the expressed concern regarding the potential fostering of such a culture would extend to all protected characteristics.[116]Section 136 of EA deals with the burden of proof. It is set out in full in paragraph [123] below under the heading ‘Victimisation’, where the provisions are discussed more fully. Although the provisions are perhaps most commonly invoked in relation to direct discrimination complaints, they are equally applicable to harassment complaints and indeed to victimisation complaints. Victimisation[117]Section 27 EA is concerned with victimisation and provides, so far as material, as follows: “27 Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.[118]For the purposes of section 27(2)(d), the allegation relied on need not state explicitly that an act of discrimination has occurred … All that is required is that the allegation relied on should have asserted facts capable of amounting in law to an act of discrimination by an employer (Waters v Metropolitan Police Commissioner [1997] IRLR 589).[119]For a disadvantage to qualify as a detriment, it must be found that a reasonable worker would or might take the view that he had thereby been disadvantaged. The test must be applied by considering the issue from the point of view of the victim. An unjustified sense of grievance about an allegedly discriminatory decision cannot constitute a detriment but a justified and reasonable sense of grievance may well do so (Shamoon).[120]The detriment must be 'because' of the protected act. The protected act must be 'the reason' for the treatment. In Greater Manchester Police v Bailey [2017] EWCA Civ 425 confirmed the test remains the ‘reason why’ question not a 'but for' test.[121]In Nagarajan v London Regional Transport [1999] IRLR 572, the House of Lords ruled that conscious motivation was no more needed in the establishing of victimisation under the old Race Relations Act 1976 than it was in relation to ordinary direct discrimination under that Act. In that case, it was enough that the employment tribunal had found victimisation to exist on the ground that 'consciously or subconsciously' the interviewers for a vacancy had been influenced by the fact that Mr Nagarajan had previously brought proceedings against the employer.[122]It is not required, in order to successfully establish victimisation, to show that the alleged perpetrator was wholly motivated by the claimant’s behaviour in carrying out the protected act (Nagarajan v Agnew [1994] IRLR 61, EAT). Where there are found to be mixed motives for a detriment, it is desirable that there be an assessment of causation of the unlawful motive or motives which must be of sufficient weight to be treated as a cause though need not be the sole cause (Owen & Briggs v James [1982] IRLR 502). What is needed is that the discriminatory reasons should be ‘of sufficient weight’ or that the protected acts should have a ‘significant influence on the outcome’ (O’Donoghue v Redcar and Cleveland Borough Council [2001] IRLR 615, CA; Nagarajan v London Regional Transport).[123]Section 136 of EA deals with the burden of proof. It provides, so far as material, as follows: “136 Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.(4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule.(5) …(6) A reference to the court includes a reference to— (a) an employment tribunal; …”[124]The effect of section 136 is that, if the claimant makes out a prima facie case of prohibited conduct, it will be for R to show an explanation which is not harassment or victimisation.[125]There are two stages: Under Stage 1, the claimant must show facts from which the Tribunal could decide there was harassment or victimisation. This means a ‘reasonable tribunal could properly conclude’ on the balance of probabilities that there was prohibited conduct (Madarassy v Nomura International plc [2007] IRLR 246, CA). The Tribunal should take into account all facts and evidence available to it at Stage 1, not only those which the claimant has adduced or proved. If there are disputed facts, the burden of proof is on the claimant to prove those facts. R’s explanation is to be left out of account in applying Stage 1.[126]However, merely showing a protected characteristic plus less favourable treatment is not generally sufficient to shift the burden. Those bare facts only indicate a possibility of discrimination or other prohibited conduct. They are not, without more, sufficient material from which a tribunal could conclude that, on the balance of probabilities, R had committed a prohibited act. ‘Something more’ is, therefore, required (Madarassy). This requirement for ‘something more’ than merely showing a protected act plus a detriment applies equally in victimisation cases as in discrimination cases (Bailey).[127]Direct evidence of direct discrimination or victimisation may be rare. Depending on the facts and circumstances, various types of evidence have been held in different cases to have supplied that ‘something more’ which has allowed an inference of prohibited conduct to be drawn.[128]If the claimant shows facts from which the Tribunal could decide a prohibited act has occurred, then, under Stage 2, R must prove on the balance of probabilities that the treatment was ‘in no sense whatsoever’ because of the protected characteristic or protected act (Igen v Wong [2005] IRLR 258).[129]There are cases where it is unnecessary to apply the burden of proof provisions. These provisions will require careful attention where there is room for doubt as to the facts necessary to prove prohibited conduct. However, they have nothing to offer where the Tribunal is in a position to make positive findings one way or the other (Hewage v Grampian Health Board [2012] IRLR 870).[130]Section 94 of ERA provides that an employee has the right not to be unfairly dismissed. It is for the employer to show the reason or the principal reason (if more than one) for the dismissal (s98(1)(a) ERA). A reason that relates to the conduct of the employee is one of the ‘potentially fair reasons’ listed (s98(2)(b) ERA). Where, as here, the employer relies upon a reason relates to conduct, it does not have to prove at this stage of the analysis that the conduct actually did justify the dismissal; the Tribunal will later assess the question of reasonableness for the purposes of section 98(4).[131]At this stage, the burden on the respondent is not a heavy one. A “reason for dismissal” has been described as a “set of facts known to the employer or it may be of beliefs held by him which cause him to dismiss the employee.” (Abernethy v Mott Hay and Anderson [1974] ICR 323).[132]Once a potentially fair reason for dismissal is shown, the Tribunal must be satisfied that in all the circumstances the employer acted fairly in dismissing for that reason (Section 98(4) of ERA). There is no burden of proof on either party when it comes to the application of section 98(4).[133]The Tribunal must not substitute its own decision for that of the employer in this respect. Rather, it must decide whether the respondent’s response fell within the range of reasonable responses open to a reasonable employer in the circumstances of the case (Iceland Frozen Foods Limited v Jones [1982] IRLR 439). In a given set of circumstances, one employer may reasonably decide to dismiss, while another in the same circumstances may reasonably decide to impose a less severe sanction. Both decisions may fall within the band of reasonable responses. The test of reasonableness is an objective one.[134]In a case concerned with conduct, regard should be had to the test set out by the EAT in British Home Stores v Burchell [1978] IRLR 379 in considering section 98(4) of ERA: What the Tribunal have to decide …. whether the employer … entertained a reasonable suspicion amounting to a belief in guilt of the employee of that misconduct at that time … First of all there must be established by the employer the fact of that belief, that the employers did believe it. Secondly that the employer had in his mind reasonable grounds upon which to sustain that belief. Thirdly, we think that the employer at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.[135]This well-established guidance was endorsed and summarized by Mummery LJ in London Ambulance Service NHS Trust v Small [2009] IRLR 536 where he said the essential enquiry for Employment Tribunals in such cases is whether, in all the circumstances, the employer carried out a reasonable investigation and at the time of dismissal genuinely believed on reasonable grounds that employee is guilty of misconduct. If satisfied in those respects, the Tribunal then must decide whether dismissal lay in the range of reasonable responses.[136]Further points on investigation and procedure: ACAS publishes a Code of Practice (COP) on Disciplinary and Grievance procedures. A failure to follow the COP will not, of itself, make an individual or organisation liable to proceedings, however Tribunals will take the COP into account when considering relevant cases. A Tribunal should consider both the COP and an employer’s own internal policies and procedures in assessing the reasonableness of a dismissal. In making an assessment of the reasonableness of the procedure, Tribunals should apply the range of reasonable responses test (J Sainsbury’s Plc v Hitt [2003] ICR 111).[137]With regard to investigations, the COP states: It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases, this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing.[138]Where the evidence consists of diametrically conflicting accounts of an alleged incident with no or little evidence to provide corroboration one way or the other, employers ought at least to have tested the evidence where it was possible to do so. They are not obliged to believe one employee and disbelieve another – there will be cases where it is perfectly proper to say they are not satisfied that they can resolve the conflict of evidence and consequently do not find the case proved (Salford Royal NHS Foundation Trust v Roldan [2010] ICR 457).[139]Paragraph 4 of the COP provides that 'Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made.' This is one of the basic elements of fairness within the ACAS Code. The COP further provides that: If it is decided that there is a disciplinary case to answer, the employee should be notified of this in writing. This notification should contain sufficient information about the alleged misconduct or poor performance and its possible consequences to enable the employee to prepare to answer the case at a disciplinary meeting. It would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification.[140]In para 12 of the COP, it is stated that: 12 … At the meeting, the employer should explain the complaint against the employee and go through the evidence that has been gathered. The employee should be allowed to set out their case and answer any allegations that have been raised. The employee should also be given a reasonable opportunity to ask questions, present evidence, and call relevant witnesses. They should also be given an opportunity to raise questions about any information provided by witnesses.[141]There is similarly support in caselaw for the importance of letting the accused know of the case against them and the evidence in support of it to allow the employee to contest it. The EAT in Spink v Express Foods Group Ltd [1990] IRLR 320 opined: … fairness surely requires in general terms that someone accused should know the case to be met; should hear or be told the important parts of the evidence in support of that case; should have an opportunity to criticise or dispute that evidence, and to adduce his own evidence and argue his case…[142]If an appeal is held, but the procedure is unfair, it can render an otherwise fair dismissal procedure unfair (West Midlands Co-operative Society v Tipton [1986] AC 536). Employers must act fairly in relation to the whole of the dismissal procedure. On the other hand, procedural defects in a disciplinary hearing may be remedied on appeal provided that in all the circumstances the later stages of a procedure are sufficient to cure any earlier unfairness. The ET is bound to consider the process overall (Taylor v OCS Group Ltd [2006] EWCA Civ 702), applied, for example, in Adeshina v. St George's University Hospitals NHS Foundation Trust 2015 IRLR 704).[143]Paragraph 29 of the Code provides: Employees should be informed in writing of the result of the appeal hearing as soon as possible.[144]Further points about whether dismissal in range of reasonable responses: Single breaches of a company rule may found a fair dismissal (e.g., The Post Office t/a Royal Mail v Gallagher EAT/21/99). Exactly what type of behaviour amounts to gross misconduct will depend on the facts of the individual case. However, it is generally accepted that it must be an act which fundamentally undermines the contract of employment (i.e., it must be repudiatory conduct by the employee going to the root of the contract – Wilson v Racher 1974 ICR 428, CA). Moreover, the conduct must be a deliberate and willful contradiction of the contractual terms or amount to gross negligence (Sandwell and West Birmingham Hospitals NHS Trust v Westwood EAT 0032/009). Even if an employee has admitted to committing the acts of which he is accused, it may not always be the case that he acted willfully or in a way that was grossly negligent (e.g., Burdett v Aviva Employment Services Ltd EAT 0439/13).[145]Neither party cited the EAT case of Perry v Imperial College Healthcare NHS Trust UKEAT0473/10 to the Tribunal. This case concerned a dismissal for gross misconduct which the first instance Tribunal had found to be fair. The EAT disagreed. The facts are not, as would be rare, precisely on all fours with the present case. However, there are sufficient parallels with a number of the issues for consideration in the present case that it may be instructive to set them out in a little detail.[146]The dismissed employee was a midwife. She was employed by the Trust to work 19 hours a week. Her job consisted of conducting home visits for which she had to be mobile. She had to be capable of going to a number of different places in the community and accessing different types of accommodation, including, high-rise council flats with broken lifts. Ms Perry developed a chronic knee problem and underwent surgery which made it worse.[147]In September 2007 she took up another part-time employment as a family planning nurse for another employer (‘Ealing’). The Ealing job was clinicbased and was situated within 100 yards of her home. She thus had two jobs at the relevant time, both of them part time and both of them involving working at mutually exclusive hours.[148]From December 2007, Ms P’s knee condition was such that she could no longer perform her work for the Trust because it was too difficult and painful for her to access the community locations her job required. However, she was able to continue to do the clinic-based job for Ealing. She was off sick from the Trust’s employment but carried on working for Ealing. At no time did the work for Ealing overlap with the hours of work she would otherwise have worked for the Trust. She was in receipt of sick pay from the Trust but there was no point at which she was drawing sick pay in respect of hours for which she was working for Ealing.[149]Ms Perry did not notify the Trust of the fact that her Ealing employment was continuing, notwithstanding the fact that she was signed off sick from working for Trust. Towards the end of 2008, it came to the Trust’s attention that she had been continuing to work for Ealing whilst off sick. On 23 December 2008, her manager wrote to her, informing her that it had been brought to her attention that an allegation of fraud had taken place in respect of her working for Ealing. The Trust investigated and dismissed Ms P for gross misconduct following a disciplinary hearing. The Trust found that there had been an intention to defraud because Ms Perry had claimed and received sick pay from the Trust while concurrently working for Ealing.[150]The EAT referred to an extract from governmental guidance on statutory guidance E14 (the Employer Help Book for Statutory Sick Pay published by the Government at the material time in 2010 /11). The advice said among other things: “Your employee has two contracts. It is possible for an employee, who has two distinct contracts, with the same or different employers, to be incapable of work under one contract but capable of working under the other.”[151]The EAT observed that, based on the information before the Trust, it was or should have been known to the employer that the employments were at different hours and there was no time when Ms Perry was working for Ealing while she was contracted to work for the Trust and being paid sick pay by the Trust. Nevertheless the alleged defrauding was central to the Trust’s reasoning at the stage of dismissing Ms P.[152]At the appeal stage the reasoning of the Trust shifted from a focus on an intention to defraud the Trust to founding on an allegation of deception. The Trust asserted that Ms P’s contract stated she was not permitted, while off sick, to work in other employment without her manager’s consent which had not been sought or received. It took the position that, by failing to inform it that she was continuing to work for Ealing, Ms Perry had deprived the Trust of the opportunity to consider whether she might be capable of being redeployed to amended duties.[153]The relevant clause in Ms P’s contract said: “If you are absent on sick leave, you are not expected to do anything that is inconsistent with being unfit for your duties or which would delay your return to work. This includes working for another employer without the prior permission of your manager ... If it is found that you have done something inconsistent …, this may result in … disciplinary action.” Ms Perry had read the term of her contract at the time she was off and her position was that there was nothing in it which required her to seek permission from the Trust in the circumstances she faced. The Trust’s view was that it was such an obvious piece of common sense that she required to do so that she could not have honestly thought that she was not obliged to seek their permission. The first instance Tribunal found as a matter of fact, in effect, that Ms P’s view that she didn’t need to ask permission was genuinely held. The EAT acknowledged this fact. It found, however, that Ms P was wrong in her interpretation of the contractual term though there had been no dishonesty in declining to seek permission.[154]The EAT observed that nowhere in Ms P’s terms and conditions, nor in the Trust’s sickness absence policy was there “any hint that there is any practice, or any possibility, of someone who is off sick being either requested, or required, to provide information which would enable the [Trust] to consider whether, during their sickness absence, they might be deployed to do work which they were capable of doing, even though the work which they were employed to do was outwith their capabilities whilst sick.” (para 39).[155]The EAT ultimately held that the Trust’s decision to uphold the dismissal on appeal was “plainly, not a conclusion which was open to any reasonable employer in the context of the situation which had developed.” It reasoned that:(1) the Appellant was permitted to take second employment whilst working for the Trust;(2) she was under no obligation to inform them that she was so doing;(3) that the hours of the two employments were mutually exclusive;(4) it was permissible for the Appellant to be off sick from work for the Trust whilst, at the same time, being fit to continue her work with Ealing and continuing to do so;(5) in the circumstances which, by then, must have been apparent to the Trust, there was no question of the Appellant having obtained statutory sick pay from the Trust for hours during which she was working for Ealing and, therefore, there was no basis for any contention that they had suffered any loss;(6) the Trust was entitled to view her failure to ask for permission to continue to work for Ealing as a breach of her contractual obligation based on the clause set out in paragraph [153] above(7) The Trust was entitled to form the view that she was not acting in good faith in asserting her belief that she was not required to ask for permission.(8) There was no basis, whether in terms of their sickness management policy, or their contractual documentation, or in any statutory guidance, for any suggestion that, by failing to inform them, she was, in any way, standing in the way of any scheme, or arrangement, or individual consideration of her redeployment to other work which she might have been capable of doing.(9) It followed that, in the particular circumstances, it was unreasonable for the Trust, at the dismissal appeal stage, to have concluded that summary dismissal for gross misconduct was a warranted sanction for what, by that stage, had emerged was a minor deception, if, indeed that was what it was.(10) Dismissal was not a sanction which was within the range of reasonable responses.[156]Though not a case on unfair dismissal, the EAT case of Scottish Courage Ltd v Guthrie UKEAT/0788/03 (5 February 2004, unreported) also provides some guidance regarding an employer’s assessment of an employee’s capability in circumstances where a GP certificate has been tendered for an absence. It was a Wages Act claim regarding the withholding of sick pay. There, the employee's contract provided that 'Payment for sickness absence is conditional upon all appropriate procedures being followed and on management being satisfied that the sickness absence is genuine.' Following an accident at work, G was signed off work and received contractual sick pay. Scottish Courage then received conflicting medical evidence about his fitness to return. Their company medical doctor on 27 February opined he was fit to resume full duties following a consultation.[157]On 28 February, his GP signed him off until 10 March. He stayed off sick for the further week and SC refused him sick pay for that period on the grounds that it no longer believed his sickness absence was genuine. His claim for sick pay for this final week was upheld by an employment tribunal, which held that the employer's decision had been perverse, particularly as G had been signed off by his GP for the relevant period and none of the medics involved in his case had suggested he was malingering. The EAT (Judge Peter Clark presiding) upheld the Tribunal’s decision, and observed: '…the tribunal is entitled to test whether the employer reached [its] conclusion in good faith and reached a conclusion that was not perverse, that is to say, was not one which no reasonable employer could have reached on the evidence before him, consistent with the implied term of trust and confidence…''[158]In Merseyrail Electrics 2002 Ltd v Taylor UKEAT/0162/07 (18 May 2007, unreported) the EAT considered a contract which allowed for the suspension of sick pay if there was 'any doubt' as to the reason for absence. This was also an unauthorised deduction from wages case. The employer said it had such a doubt, as T had absented herself from work not because she was unwell but in a fit of pique. However, there was a medical certificate covering the relevant period from T’s GP. In those circumstances, the EAT held that Merseyrail would need further medical evidence undermining the GP’s opinion to justify withholding sick pay. “Where the Respondent, it seems to me, went wrong was to disregard the medical certificates and instead focus, in their subsequent investigation, on the Claimant's apparent reason for leaving the workplace in the first instance. Even if she was feeling piqued .. if that led to stress which in turn caused her absence, then she was entitled to sick pay, provided there was no doubt about that causative link. From the general practitioner's certificate there was none. Where I respectfully agree with the approach of the Chairman, is his observation … that there should at least be some medical investigation. Had there been a medical investigation undertaken by the Respondent, which put in doubt the opinion of the general practitioner, then the power to withhold sick pay under the relevant provision would have been made out.”
Compensation
[159]An award of compensation for unfair dismissal consists of a basic award and /or a compensatory award.[160]The formula for calculating the basic award is prescribed by legislation. Where the Tribunal considers that any conduct of the claimant before the dismissal was such that it would be just and equitable to reduce the amount of the basic award, the Tribunal shall reduce that amount accordingly (s.122(2) of ERA). In contrast to the compensatory award, a basic award may be reduced for conduct which was not causative of the dismissal.[161]The compensatory award is such amount as the Tribunal considers just and equitable in all the circumstances, having regard to the loss sustained by the employee as a result of dismissal insofar as attributable to actions of the employer. The compensatory award is to be assessed so as to compensate the employee, not penalise the employer and should not result in a windfall to either party (Whelan v Richardson [1998] IRLR 114).[162]Where a Tribunal concludes a dismissal was unfair, it may find that the employee would have been dismissed fairly in any event, had the employer acted fairly, either at the time of the dismissal or at some later date. The Tribunal must assess the chance that the employee would have been dismissed fairly in any event then reduce the losses accordingly. Such reduction may range from 0% to 100% (Polkey v AE Dayton Services Ltd 1988 ICR 142, HL).[163]If the Tribunal finds that the employee has, by any action, caused or contributed to his dismissal, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding (s.123(6) ERA). If the Tribunal determines that there is culpable or blameworthy conduct of the kind outlined, then it is bound to make a reduction by such amount as it considers just and equitable (which might range from 0 to 100%). The misconduct need not be gross misconduct to warrant a reduction nor need it necessarily amount to a breach of contract (Jagex Ltd v McCambridge [2020] IRLR 187, Nelson v British Broadcasting Corporation (No. 2) [1979] IRLR 346, [1980] ICR 110, CA.) Submissions[164]Both Mr Gibson and Mr McKinlay handed up written submissions which both supplemented with oral submissions. The entire content of both submissions has been carefully considered and taken into account in making the decisions in this judgment. Failure to mention any part of these submissions in this judgment does not reflect their lack of consideration. The submissions are addressed in the ‘Discussion and Decision’ section below, which sets out where the submissions were accepted and where they were not with the reasons for this. Discussion and Decision Victimisation – Protected Acts?[165]The ET claims dated April 2021 and October 2022 are accepted by R to be protected acts (Protected Acts 1 and 3 respectively).[166]Alleged Protected Act 2 (26 June 23 grievance). We carefully considered the terms of the letter dated 26 June 2023.[167]C says that PC has upset him by questioning his mental health. Mr McKinlay submits that this statement amounts to an allegation of harassment for the purposes section 26 of EA. In Mr Gibson’s submission, the asserted facts are not capable of amounting to a breach of the Act and were certainly not sufficiently clear to do so.[168]In the letter, C observes he has suffered poor mental health on a number of occasions and says he has done so for a few years. He does not assert explicitly that this amounts to a disability. Not all mental health conditions will amount to a disability, even if they meet the requirement that they be ‘long term’. Even if we were willing to conclude that an asserted disability could be implied (a doubtful inference), we do not accept that C makes an allegation of harassment or other prohibited conduct related to a putative mental health disability in the letter. The words used are not sufficiently clear to sustain an implication that C is asserting his dignity has been violated or that a hostile or other environment proscribed by section 26 has been created. We note the EAT’s comments in Richmond Pharmacology that not all adverse conduct or comments will meet the bar for harassment and, specifically, the requirements of section 26(1)(b). Comments may cause upset and yet fall far short of that bar. It is not inferable that C is asserting in his letter that PC’s ‘questioning’ of his mental health is of a level of seriousness that might place it within the ambit of s.26.[169]Mr McKinlay further submits that C’s allegation that “Paul wants to dismiss me and has been waiting on any opportunity to do so” amounts to an allegation of victimisation for the purposes of section 27 of EA. Apparently by way of support for this contention, he observes that this observation follows a discussion of the complaints C has raised against PC including a harassment complaint.[170]C alleges in the letter that PC has a personal issue with him and refers to previous complaints he’s made about PC including bullying and harassment complaints. He does not specify the nature of these nor allude to any protected characteristic. C goes on to state in his letter that PC has made dishonest allegations about C swearing at the fact find meeting and that he believes PC wants him dismissed. He makes no suggestion that this is linked to either a protected characteristic or a protected act. On the contrary, the explanation C puts forward for PC’s alleged agenda to dismiss him is that he is on a 3-day week contract and his shift pattern doesn’t suit PC or the office. His grievance discloses no hint that either his current shift or PC’s desire to change it is linked to a protected characteristic. C does not allege a causal connection with any protected act either expressly or impliedly.[171]We conclude that the excerpts from the grievance letter on which C founds neither expressly nor impliedly alleges that R or Paul Corrigan or anyone else had breached the EA.[172]Alleged Protected Act 4 – raising of concerns at the October appeal hearing about PC’s actions in the disciplinary / investigation process. Mr McKinlay, in his submissions, founds upon C’s statement during the appeal hearing that “… I believe with the discrimination against me with respect the homophobic comment, the recording of the AOD and my complaints that I believe there is a clear pattern of behaviour against me”. Mr McKinlay says this effectively amounts to allegations of victimisation and harassment.[173]We reviewed the notes of the appeal hearing on 11 October 2023. We concluded that they did not make an allegation either express or implied that R or Paul Corrigan or anyone else had either harassed C contrary to s.26 or victimised him contrary to s.27. In the sentence Mr McKinlay cites, C refers to a homophobic comment and uses the word discrimination. However, it is not C’s pleaded case that an allegation of sexual orientation discrimination or harassment is made and that such assertion amounts to a protected act. The pleaded protected act is the averment that C raised concerns that PC’s conduct during the investigatory and disciplinary process (which took place over the summer of 2023) was motivated by C’s “earlier claims”. C had brought one earlier claim in April 2021.[174]We do not find it to be clear that C is asserting a causal link between the April 2021 Tribunal claim C or the asserted homophobic comment and PC’s behaviour in ’23 during the investigatory and disciplinary process. C talks about his having successfully appealed a conduct penalty previously imposed on him by PC and also about having taken part in an internal mediation as part of a settlement in 2022. He asserts twice that this lies at the heart of the conduct case against him. He does not give any background about the reversed penalty or link it to any protected characteristic under the EA. He does not, during the appeal hearing, provide sufficient information that might give PH to understand that the mediation he talks about related to a claim about a breach of the EA. C does not explain the nature of the settlement, or the claim being settled.[175]During the meeting on 11 October 2023, C talked about his mental health getting worse due to perceived poor treatment and asserted he had a disability. However, he does not assert that PC subjected him to unwanted conduct related to that disability or less favourable treatment because of his disability or make any other assertion of prohibited conduct under the EA. Nor was there scope to infer C was doing so based on the facts he alleged. Therefore, we find that C’s comments quoted by Mr McKinlay do not support a finding of the protected act asserted in C’s pleadings.[176]The only protected acts which have been established are, therefore, Protected Act 1 (the bringing of the April 21 ET claim, and Protected Act 3, the bringing of the October 23 ET claim. Victimisation – detriments because of protected acts?[177]Detriments about the March grievance (involving AM). AM was charged with dealing with the March 23 grievance about S brown filming C. grievance from the outset. We have found he was not aware of Protected Act 1 at all during the material period (17 March – 12 October 2023). He therefore did not victimise C by subjecting him to any detriment because of Protected Act 1.[178]Alleged Protected Acts 2 and 4 have not been established as protected acts so cannot found a successful victimisation complaint. (In any event, in relation to alleged Protected Act 4, we have found that AM was unaware of C’s comments during the appeal hearing).[179]The focus, therefore, turns to Protected Act 3. AM was aware that C lodged the ET claim 4105584/2023 (Protected Act 3) at some stage after C did so.[180]The earliest AM could have been made aware of Protected Act 3 was the date the claim was lodged (3 October 2023). Even assuming he knew of it immediately on the date of its submission, AM’s knowledge of that claim could not have contributed to any meaningful extent to the delay in AM dealing with the 17 March ‘23 grievance. During the vast majority of his delay, he had been unaware of Protected Act 3. If he was made aware of Protected Act 3 as soon as the ET claim was lodged, he engaged in no material delay thereafter. He started his investigations on 4 October 2023 and finalised the outcome by 12 October 2023. We conclude that AM did not delay in dealing with the March 2023 grievance because C did Protected Act 3.[181]AM decided not to hold a grievance meeting with C in relation to the 17 March grievance after C had been dismissed. He had, before C’s dismissal, proposed to hold a meeting and had sent C a meeting invite, the date of which he revised twice. His decision not to hold a meeting came at some stage between 28 September (when it is clear from his email still he envisaged holding the scheduled meeting the next day) and 2 October 2023 when he advised C he would deal with the matter in writing. At the time, AM could not know of Protected Act 3 because C did not raise the claim until the following day. Protected Act 3, therefore, had no bearing on AM’s decision not to hold a grievance meeting with C.[182]AM made the decision not to uphold C’s 17 March 2023 grievance at some stage between 5 October and 12 October 2023 when he issued a grievance outcome declining to uphold C’s grievance by email. He may have become aware that C had raised the October 23 ET claim at some stage before or during this period.[183]We applied Stage 1 of the burden of proof provisions in section 136 of EA. To succeed, C must show facts from which the Tribunal could properly conclude there was victimisation (Madarassy). We took into account all facts and evidence available to us in applying Stage 1, not only those which C has adduced or proved (but excluding AM’s explanation for his conduct in declining to uphold the grievance). We considered the requirement for ‘something more’ than merely showing a protected act plus a detriment and, on the facts and circumstances of this case, we found that C had not established the ‘something more’ from which we could draw the adverse inference that AM had been motivated (consciously or not) by C having raised the October ET claim.[184]Mr McKinlay suggested in his submissions that adverse inferences could be drawn from the substantial delays. However, the overwhelming majority of the delay took place before Protected Act 3, so does not assist C or offer that ‘something more’ from which we could properly infer a causal link between C making the ET claim and AM’s grievance decision. Mr McKinlay also suggested that the reluctance to progress the grievance may have arisen from the knowledge that C had made complaints before and was not afraid to stand up for his rights. Again, this argument is unpersuasive having regard to the facts found. AM did not know C had done any protected acts before 3 October 2023 at the earliest and, after that, there was manifestly no reluctance to progress the grievance.[185]Having considered all of the primary facts, but excluding R’s explanation, we find that C has not surmounted the hurdle of Stage 1 for the purposes of s.136. He has not shown facts from which this Tribunal, acting reasonably, could properly conclude that AM victimised him by declining his March grievance because he had brought the October claim.[186]In any event, had C surmounted Stage 1, we would have found at Stage 2 that R had in any event proved on balance that AM’s reason was not that C had done Protected Act 3. AM’s unchallenged evidence was that S Brown denied having filmed C in his car and that there were no witnesses to the alleged incident. Had a prima facie case of victimisation been made out by C with respect to the refusal to uphold the March 23 grievance, we would have found that R had proved AM’s reason was that there were conflicting accounts by C and S Brown and a lack of further evidence in support of C’s allegation as opposed to the fact C had lodged an ET claim.[187]We therefore find that AM did not victimise C by delaying in dealing with his grievance of March 2023, by failing to hold a grievance meeting, or by declining to uphold C’s March grievance.[188]Detriments concerning grievances of 26 June and 8 August 2023. The asserted detriments relating to these grievances are delay, a failure to investigate them and a failure to deal with them.[189]AM declined to address the grievance of 26 June on that date in a call with C and confirmed his refusal by email of 3 August. AM declined to consider C’s grievance of 8 August 2023 on that date. AM was not aware of Protected Act 1 and Protected Act 3 had not yet happened when AM declined to deal with the grievances of 26 June and 8 August 2023. Therefore, we make a positive finding that AM was not influenced by either of the established protected acts when he took the decision that he would not investigate or deal with these two grievances.[190]SD was given some awareness of the existence of an outstanding grievance by C at the disciplinary hearing on 29 August 2023. However, SD too was unaware at this time of Protected Act 1. Protected Act 3 had not yet happened at the time of SD’s involvement in late August with C relating to the grievance. Alleged Protected Act 2 and 4 have not been found to be protected acts but in any event, SD was unaware of either of these at the time. He did not victimise C by declining to investigate, deal with or uphold C’s grievances of 26 June and 8 August 2023 because of any protected act, not being aware of such acts. Again, there is no requirement to apply the burden of proof provisions because we were able to make a positive finding that SD was not aware of the established protected acts (or the other alleged ones) at the time when he declined to look into C’s grievance (between 29 August and, at latest, 14 September when he decided to dismiss C (Hewage).[191]We therefore find that R did not victimise C delaying in dealing with his grievances of 26 June 2023 and 8 August 23 or by failing to hold grievance meetings about these June and August grievances or by failing to uphold C’s June and August grievances.[192]Detriments concerning C’s appeal against dismissal. C asserts that there was a delay, a failure to deal fairly and objectively and ultimately a refusal of his appeal. He says these were detriments because he did protected acts.[193]PH was charged with dealing with C’s appeal. He was allocated to hear the appeal sometime in the latter half of September 2023. He held the appeal hearing on 11 October and issued his outcome on 19 December. He had some awareness of both ET claims (Protected Acts 1 and 3) at the time he was progressing the appeal (or delaying in doing so) and at the time he decided the outcome. He knew that the Tribunal claims had been lodged though his awareness of the content of the ET claims was vague and undetailed.[194]We applied Stage 1 of the burden of proof provisions in section 136 of EA. To succeed, C must show facts from which the Tribunal could properly conclude there was victimisation (Madarassy). We took into account all facts and evidence available to us in applying Stage 1, not only those which C has adduced or proved (but excluding PH’s explanation for his delay, for how he dealt with the appeal, and for his decision to refuse it).[195]We noted that there is a requirement for ‘something more’ than merely showing a protected act plus a detriment to surmount Stage 1 of the burden of proof provisions. Mr McKinlay suggested that what he described as the weak explanation for the delays by PH was a matter from which we could draw adverse inferences. He suggested a reluctance may well arise from the knowledge that C has made complaints before and is not afraid to stand up for his legal rights. In his evidence, C said that he thought the delay arose from a desire by R’s witnesses to ‘cover their tracks’ and a desire not to make a decision.[196]With respect to the alleged detriment of delay, the fact of the delay itself cannot and does not provide the ‘something more’ that might give this Tribunal to properly infer a causative link to the protected acts. It is merely re-stating the asserted detriment. We considered the suggestions of C and Mr McKinlay that the knowledge of Tribunal litigation, past and present meant PH wanted to ‘cover his tracks’ or resulted in a reluctance to make a decision. However, the evidence did not support any hint of so-called ‘track covering’ by PH during the period of the delay. There was no evidence that the period of the appeal delay (principally between 11 October and 19 December) was used by him to take constructive action with respect to the appeal which might ‘cover his tracks’ or in some way strengthen R’s position in any future Tribunal hearing.[197]There was little evidence either for the asserted ‘reluctance to take a decision’. This contention sits uneasily with Mr McKinlay’s submission elsewhere that, in fact, PH had premeditated his decision before carrying out any investigation with witnesses. In any event, we were not convinced that there was a logical inference to be drawn that knowledge of an ET case or cases would incline PH to delay or make an unfair decision. We heard evidence that PH and his colleagues receive continuous training including ‘lessons learnt’ from previous ET cases. It might seem more logical that knowledge of a live claim and the associated scrutiny this would entail would incline an appeal manager to err in the direction of being more expedient, objective and fair.[198]We discuss below in the context of C’s unfair dismissal complaint a number of criticisms of R’s approach to the disciplinary process, including some matters relating to PH’s appeal process. In that discussion, we find that there were indeed some weaknesses. We are not persuaded, however, that the primary facts found (excluding PH’s explanations) would allow us properly to infer that PH’s delay, approach and outcome were caused or influenced by such limited knowledge as he had of Protected Acts 1 and 3.[199]Even if C surmounted had Stage 1, we would, in any case, have found at Stage 2 that R proved on balance that PH’s reasons for his actions were not that C had done Protected Acts 1 and 3. With respect to the delay, PH’s evidence was that he was drafted in (as always happened in the festive season) to do operational work and that this and pressures of caseload accounted for the delay in dealing with C’s case. We accepted that evidence. Had a prima facie case been established for the purposes of section 136(2), we would have found (pursuant to s.136(3)) that R had shown that PH’s reason was not that C had done the protected acts. Regarding the delay, the reason was PH’s workload. With respect to his approach and decision, we accept that PH subjectively believed he was acting correctly within his remit notwithstanding our findings elsewhere in the judgment that, objectively, elements of his approach were outwith the range of reasonable responses. Harassment related to disability[200]R disputes disability. The asserted disability is depression and anxiety. R accepts that C experienced symptoms of depression and anxiety but disputes that C meets the test set out in section 6 of EA with reference to these conditions. On the facts of this case, it is unnecessary to decide the question of disability status in order to decide C’s harassment complaints. We approached the matter by applying the assumption for the time being that C was a disabled person and assess the other elements of the test. For the reasons set out below, we conclude that C’s disability-related harassment complaints do not succeed regardless of whether or not C was a disabled person for the purposes of the EA at the material times.[201]We considered each allegation of harassment in turn. The first was: Did R refuse C to return to work on ‘each occasion’?[202]We found that R (ID) did refuse on 10 February to allow C to return to work the next day on alternative ‘indoor’ duties when C requested this. On 23 March 23, ID refused to let C come back to work on his full postman duties when C requested this. Again, in April 2023, C asked ID if light duties were available and ID said no. We accept that ID’s refusals were unwanted conduct in that C wished to be permitted to return to work and the managerial refusals were unwelcome.[203]We considered whether Mr Dunn’s unwanted refusals of C’s requests to return related to C’s asserted disability of anxiety and depression. It was unnecessary to have recourse to the burden of proof provisions. We were able to make a positive finding that they did not (Hewage). The reason for C’s request to do indoor duties in February 2023 did not relate to his depression and anxiety; it related to his hip pain which had worsened on 10 February 23. C’s hip pain is not asserted to be a qualifying disability. ID refused the February request not because of C’s depression and anxiety but because C had already had a period of indoor working in late 22 / early 23 and Mr Dunn did not consider it reasonable to have to accommodate a further period of light duties in the DO at that time.[204]Whether this was a fair or reasonable decision is not the question for us. Nor, as Mr Gibson pointed out, are we tasked with deciding a failure to make reasonable adjustments claim in relation to ID’s refusal. No such claim is pursued. We are satisfied that the February refusal did not relate to C’s depression and anxiety. There was no evidence at all before us from which we could infer otherwise.[205]We turn to the March refusal. ID refused C’s request on 22 March to return to full duties the next day was because R’s OH advisor had told R that C was not fit to undertake his full duties in the March report and ID obtained HR advice on the strength of that not to permit C’s return. The reason for ID’s refusal, once again, related to C’s hip pain, not to his depression and anxiety. Because of his hip pain, the OHA recommended indoor duties pending an MRI scan. We make a positive finding that ID’s March refusal was because of the HR and OH advice which in turn related to C’s hip pain (Hewage). Again, there was no evidence at all before us from which we could infer that the refusal related to C’s depression and anxiety.[206]We turn to the April refusal. The status quo at the time was that C remained signed off sick by his GP for hip pain and stress. C had a discussion with ID in which he confirmed that he was no further forward with the MRI scan and in which he asked if indoor work was available and ID said no. The implication of the conversation was that nothing had changed for C or for R as regards the earlier conversations in February and March. R was not minded to permit C to return to his full contractual duties in the absence of progress with the MRI scan and did not consider it reasonable to offer C adjusted alternative indoor duties having previously already granted a period of indoor working in late 22 / early 23. We are satisfied that the April refusal was for the same reasons as the previous February and March refusals. It was known at the time of both the March and April refusals that the OH had indicated that C could returned to work if he remained on indoor duties until his MRI scan. The refusals indicated that this was not an adjustment R was willing to support. There was no evidence from which it could be inferred that ID’s reasons for his refusal had changed in April or that any of the refusals related to C’s depression and anxiety. We make a positive finding that the refusals did not relate to these conditions (Hewage).[207]We do not, therefore, uphold C’s complaint that R’s refusals to allow him to return to work amounted to disability related harassment.[208]The next alleged act of harassment is PC’s behaviour towards C at the meeting on 17 June 23. We have made findings in fact about the meeting at paragraphs [49] to [55]. We have accepted there was tension, that PC raised his voice (as did C), that PC spoke over C (as C spoke over him) and that PC unnecessarily repeated the same question to C despite C’s admission of taxiing. We accepted the tone was unpleasant. PC’s raised voice, repetition and tone were, we find, unwanted conduct.[209]However, we are again able to make a positive finding that the conduct did not relate to C’s asserted disability of anxiety and depression. We have found that PC behaved in the way he did because(i) he believed C to be guilty of some misconduct by working in his taxi (rightly or wrongly);(ii) he had a poor relationship with C; and(iii) he felt that C was behaving confrontationally. Given our positive findings on the reasons for PC’s conduct, we do not require to have recourse to the burden of proof provisions (Hewage). We recognise that the connection with the protected characteristic is wider in a harassment complaint than the causal connection required for a direct discrimination complaint. The unwanted conduct need only be related to the asserted disability; it need not be because of it. Even so, there is no evidence before us from which we could properly infer that PC’s conduct, to the extent that it was aggressive or hostile, related to C’s depression and anxiety.[210]We do not, therefore, uphold C’s complaint that PC’s behaviour at the investigation meeting on 17 June 2023 amounted to disability related harassment.[211]The next alleged act of harassment is that SD behaved in an aggressive or dismissive manner at the disciplinary hearing of 29 August 2023. In his written submission, Mr McKinlay said that “it is clear that [R] had preconceived notions of how a person with anxiety and depression would act and what they would be capable of doing, as demonstrated through comments during the disciplinary meeting…” He said that because C’s disability did not fit R’s ‘pre-conceived notions of how anxiety and depression should manifest, C was seen as dishonest and subjected to harassment.” In his oral submissions, he said that comments querying why C was fine sometimes and not at others was an act of harassment, stemming from a misunderstanding about the nature of C’s disability.[212]The relevant excerpts from the agreed disciplinary hearing notes are set out in the findings in fact at paragraphs [72] to [76]. There is no doubt that SD questioned C about his health, including his depression and anxiety. SD, in effect, queried how the information in the OH report dated 25 May 23 could be squared with C’s observed behaviour driving a taxi three weeks later and the social interaction that entailed. The allegation underpinning Notifications 1 and 3 was essentially one of malingering. We accept that SD’s questioning in relation to C’s depression and anxiety was unwanted conduct in that the calling into question of C’s mental health symptoms was most unwelcome to C.[213]However, we do not accept C’s characterisation of his questioning as aggressive. SD had been tasked with conducting the hearing and coming to a conclusion on whether C was guilty of the alleged misconduct. With respect to Notifications 1 and 3 (framed, as we understand it, not by SD but by PC perhaps with HR), this involved an enquiry into whether C was genuinely incapable for work. C had been assessed as unfit for work by OH ‘due to severe symptoms of anxiety and depression’ on 25 May 23, and had been signed off as unfit for work by his GP at the material time. Given the Notifications which SD was charged with deciding, it was inevitable that he would have to inquire into the impact of C’s mental health on his capacity to work for R as reported to his managers and the OH Advisor. SD would, no doubt, be criticised if he were to decide the Notifications without questioning C on his health and putting to C what SD saw (rightly or wrongly) as being an unexplained tension between C’s fitness to work as a taxi driver and the other evidence before him.[214]We consider next whether SD’s conduct in questioning C about his depression and anxiety in the way he did had the purpose of violating C’s dignity or creating an environment of the type proscribed by section 26. The question with which we are concerned is not whether SD came to a reasonable conclusion or whether he weighed the case up fairly. Nor is it whether he had a closed mind or even a poor grasp of mental health issues.[215]We readily conclude that SD’s purpose was not to violate C’s dignity or create an environment that was intimidating, hostile, degrading, humiliating or offensive. We are satisfied that SD questioned C in the way he did in order to come to conclusions about C’s guilt or otherwise of the disciplinary charges which levelled at him. C may not have liked the questions, but SD asked them in a structured and controlled way. He gave C the opportunity to answer. He signalled to C where he considered the tension lay between what C has told the OH Advisor on 25 May and the development in mid-June of C undertaking other work driving a taxi. Again, C had the opportunity to, and did, comment and record his disagreement with the premise of SD’s questioning.[216]We turn, therefore, to whether, in the alternative, SD’s questioning about C’s depression and anxiety had the effect of violating C’s dignity or creating a hostile, degrading, humiliating or offensive environment for C. In deciding this, we recognise we have to take into account C’s perception, the other circumstances of the case and whether it was reasonable for the conduct to have that effect.[217]C did not describe SD’s conduct in these or similar terms when giving evidence (i.e. words like hostile, degrading, etc). He said he found SD to be dismissive in his manner and responses and that he felt SD was not taking his answers on board. C said he felt SD’s mind was made up, that he had been poorly treated and that it made him upset.[218]Not any conduct or comment slanted to a protected characteristic will meet the the threshhold to satisfy the requirements of s.26(1)(b). As the EAT has commented, “Dignity is not necessarily violated by things said or done which are trivial or transitory, particulary if it should have been clear that any offense was unintended” (Richmond Pharmacology). While C may have felt upset to be subjected to questions, we were not persuaded that it was truly his perception that his dignity was violated by the interrogation or that he genuinely perceived they created an environment of a proscribed kind. Even if C did have that perception, we were satisfied it was not objectively reasonable for SD’s conduct to have that effect in all of the circumstances of the case.[219]These were that SD had a role to play in a disciplinary process and the questions he asked about C’s mental health were entirely related to the disciplinary allegations. There was no sense that they were gratuitous or designed to embarrass. Even if C may regard SD’s questioning as illogical or demonstrative of an unwarranted scepticism about the variability of C’s symptoms, that does not necessarily place the conduct within the territory of s.26(1)(b). Likewise, even if, as C asserted, SD’s questioning indicated a closed mind and a failure to take on board his responses, we are not satisfied in all the facts and circumstances that it went as far as to violate C’s dignity or create an environment of the prohibited kind.[220]Having reviewed C’s own evidence about the effect on him (at its highest that he was upset) as well as the questions SD asked, how they were framed, and the context in which they were posed, we find that they did not have the proscribed effect and it was not reasonable that they should have done so.[221]We do not, therefore, uphold C’s complaint that SD’s behaviour towards C at the disciplinary hearing amounted to disability related harassment.[222]We consider the next alleged act of harassment which relates to the contents of SD’s dismissal letter and specifically what Mr McKinlay referred to in submissions as ‘the expression of doubt over the claimant’s honesty and presentation of his mental health issues’ (at p.178 and 184 of the bundle).[223]We have considered the passages of the letter on which C relies. Those are reproduced at paragraphs [81], [83] and [85] of the findings in fact. Essentially, SD expresses his disbelief that C’s symptoms of his illness (i.e. his depression and anxiety) were as C described them to the OH Advisor on 25 May. He makes clear in the sentences which C challenges as unlawful that he bases his view on the short space of time between the consultation and C being sufficiently fit to drive a taxi and be interviewed for National TV in the impromptu interview about his football team outside the stadium. SD says words to the effect that he struggles to understand how C could go from the state described in the OH report to being able to do these things in that short time.[224]We accept that the relevant parts of the letter relate to C’s depression and anxiety and we accepted that they were unwanted in that C did not welcome a letter in such terms.[225]We consider next whether the contents of the letter had the purpose of violating C’s dignity or creating an environment of the type proscribed. We do not require to have recourse to the burden of proof provisions because we are satisfied that SD wrote these conclusions and reasons because he believed them to be correct and because he believed them to be in line with his remit as the disciplinary manager and not for any nefarious purpose (Hewage). Even if Mr Donaldson’s letter was, as Mr McKinlay suggests, premised on preconceived notions of how anxiety and depression should manifest, that of itself does not inevitably bring it within the parameters of the conduct prohibited by s.26(1).[226]We went on to consider whether the contents of the letter had the effect described in s.26(1)(b). In his evidence, C described feeling degraded and let down when he read the relevant parts of SD’s letter. He disagreed with the conclusions and felt he wasn’t taken seriously by SD in relation to the background of a management refusal to allow him to return. He was upset because he had at times experienced very serious challenges with his mental health. We accept C felt this way on reading the letter and that his perception was that Mr Donaldson’s comments were degrading. However, as well as C’s perception, we must consider the other circumstances of the case and whether it was reasonable for the conduct to have had that effect (i.e. of creating a degrading environment).[227]We conclude that, when the overall circumstances are considered, it is not objectively reasonable that SD’s letter should have done so. SD made a point of saying that he did not suggest that C wasn’t ill. C may have perceived SD’s remarks as expressing scepticism about C’s whole mental health history, but, viewed objectively, SD’s remarks in his letter were not of such a broad nature; they were directed at a very specific frame (between 25 May and 15 June 2023). SD narrates his doubt that the improvement could be as marked as C maintained in that time scale. Even if SD’s conclusion about what might or might not be possible in that time scale were wrong – even if they were based on ill-informed preconceived ideas about depression and anxiety – it does not follow that it was reasonable for the comments in the letter to have the effect of creating a degrading or other proscribed environment or of violating C’s dignity. They were written in the context of SD’s remit as disciplinary manager. The comments in the letter were believed by SD to be relevant to conclusions on the allegations before him (and objectively they were relevant, whether or not they were reasonable conclusions reached on reasonable grounds). His observations were not superfluous or excessive, given his role as disciplinary manager and given the allegations.[228]As the EAT has alluded to in Richmond, there must be a balance between safegarding dignity at work based on protected characteristics and discouraging a culture of hypersensitivity. On all the facts and circumstances of the present case, we are not satisfied that SD’s expression in his letter of his genuinely held beliefs and his grounds for them falls on the wrong side of section 26(1)(b) so as to attach legal liability. That is a different test to the question of whether those beliefs were reasonable or were formed after reasonable investigation for the purposes of C’s unfair dismissal complaint.[229]We do not, therefore, uphold C’s complaint that the contents of SD’s letter dated 13 September 2023 and the enclosed report amount to disability related harassment.[230]The last alleged act of harassment is the dismissal itself. We accept the dismissal was unwanted conduct. We accept it related in a broad sense to C’s depression and anxiety. Mr McKinlay did not, either in his written or oral submissions, expand upon C’s contention that his dismissal amounted to harassment (as distinct from the conclusions in the dismissal letter discussed above). The dismissal was based substantially on those conclusions. We assume, therefore, that C relies upon the same or similar reasoning in claiming the dismissal amounted to harassment as he does in relation to the letter contents. This alleged act of harassment, therefore, stands or falls with the previous alleged act (the dismissal letter contents). Given our findings above, it falls. We do not accept that the dismissal had the purpose or effect of violating C’s dignity or creating a hostile, degrading, humiliating or offensive environment. We rely on the reasoning set out in paragraphs [222] to [229] above about the contents of the dismissal letter.[231]Given the foregoing, it is not necessary to decide C’s disability status in order to decide his harassment claim. Even assuming C was a disabled person at material times by virtue of his depression and anxiety, his harassment complaints fail for the reasons set out. Was the dismissal of the claimant by the respondent for the potentially fair reason of conduct?[232]We accept R dismissed C for a reason relating to C’s conduct for the purposes of s.98(2)(b) of ERA. Mr McKinlay did not develop any submission written or oral that SD dismissed C for a reason or reasons unrelated to C’s conduct albeit he disputed that the conduct should be characterised as gross misconduct or that dismissal fell within the range of reasonable responses to the conduct. A finding in fact has been made that SD dismissed C for the conduct related reasons set out in the decision report he enclosed with the dismissal letter of 13 Sep 23.[233]The question for the Tribunal is whether, applying section 98(4), in all the circumstances of the case, R acted unreasonably in treating the conduct relied upon as a sufficient reason to dismiss C. We reminded ourselves that we must avoid substituting our own view of the matter for that of R, and of the need to assess objectively whether R’s approach fell within the range of reasonable responses. Did R have a genuine belief that C was guilty of the allegations which led to dismissal?[234]We have found as a matter of fact that SD genuinely believed C to be guilty of the allegations which he found to be upheld in his decision report and that PH similarly held such a belief when he decided not to uphold C’s appeal against dismissal. Did R carry out a reasonable investigation / conduct a reasonable procedure in relation to its investigation?[235]Mr McKinlay argued there was a hostile relationship with PC who, he says, had a personal dislike of C. In his submission, the role PC played in the investigation was inappropriate. The concerns about PC’s partiality, were raised in C’s grievance of 26 June 23 which, Mr McKinlay points out, was not addressed. Mr McKinlay also criticises SD for not setting out unbiasedly to determine the truth. He further criticises PH’s delay in conducting such investigations as PH carried out at the appeal stage and asserts that, in any event, PH had made his mind up prior to the conclusion of his enquiries.[236]Mr Gibson says that the investigation was carried out via PC’s discussions with C on 16 and 17 June 2023 but also through investigations conducted by SD and PH as part of their processes. He refutes the suggestion that PC’s involvement led to procedural unfairness and argues the facts established by PC were not in dispute. PC’s involvement was, he says, due to ID being on annual leave. Notification 2 (which arose out of C’s interactions with PC on 16 and 17 June), could in Mr Gibson’s submission have been avoided had C behaved with respect and courtesy.[237]We consider R’s process holistically to decide whether its investigation and the procedure adopted in respect thereof fell within the range of reasonable responses. For these purposes, it is convenient to consider Notifications 1 and 3 together and the investigation of Notification 2 separately. The alleged conduct giving rise to Notifications 1 and 3 is essentially the same and is quite distinct from the conduct alleged in Notification 2.[238]R’s investigation into Notification 2. We begin by considering Mr McKinlay’s argument that it was not reasonable for R to appoint PC to investigate the allegations relating to the C’s conduct in the phone call on 16 June and at the fact find meeting on 17 June 23. At the time PC invited C to the investigation meeting by letter dated 15 June, the invite did not signal that the meeting would concern any allegations about C’s conduct during the call the previous day. Nevertheless, this was the first allegation discussed by PC during the meeting. After the fact-finding meeting, when the disciplinary invite letter was prepared on 11 August 2023, Notification 2 was added to the ‘charge sheet’. It was framed as follows: “on various occasions during your absence including the fact-finding interview you have used abusive language and behaved inappropriately and aggressively towards your manager when questioned about your other employment”.[239]Though there is reference to ‘various occasions’, the only evidence before R (and the Tribunal related) to the call between C and PC on 16 June and the fact-finding meeting on 17 June 2023. It was clear to PC that C denied PC’s allegation that C had sworn during the call on 16 June the previous day. PC recorded C’s denial in his note of the meeting.[240]PC himself could not impartially investigate the allegation about what happened during the call; he was himself a witness to the (disputed) allegation. Indeed, he was the complainer. The appointment of PC to investigate the contested nature of the call, to which he was the only other witness, was flawed. Irrespective of the historical problems in the relationship between the pair, PC as the maker of the allegation, could not (and did not) enquire into the facts in a balanced and unbiased manner. During the fact-finding meeting, he simply asserted that C had used foul language during the call and told C (with reference to the call) that shouting and swearing at him was not acceptable.[241]There was no further or independent investigation of the events at the factfinding meeting (which C also disputed) in the period before the disciplinary hearing on 29 August. Notification 2 had been inserted into the invite letter. It was known to R and recorded that C did not agree that PC’s note of the meeting on 17 June 2023 was entirely accurate. That note recorded that C had an ‘aggressive manner in the interview’. The note did not record the specific swear words or instances of ‘abusive language’ attributed to C during the meeting. It did not record specifically what swear word(s) or other ‘abusive language’ C was alleged to have used either during the meeting or during the phone call the day before. All R had before it at this stage was PC’s disputed record of events in his note, which lacked any specification of the words allegedly used by C or the nature of his alleged aggression.[242]We considered Mr Gibson’s contention that R’s investigation was not restricted to PC’s involvement but also included the enquiries made by both SD and PH. It is right that the investigation’s reasonableness should be assessed holistically.[243]SD referred to Notification 2 during the disciplinary hearing he conducted with C on 29 August 23. However, we readily conclude that SD’s exploration of the allegation did not assist in fulfilling the need for an objectively reasonable investigation. SD’s questions about the call and fact-find were not asked in an even-handed or open-minded way. They were manifestly not designed to elicit C’s account with a view to then assessing the evidence impartially. His questions indicated that he had already formed a view. He said “I would like to start by addressing notification 2 and your behaviour throughout this investigation. Why do you think it’s acceptable to behave in this manner?” He later said baldly: “You were swearing and aggressive.” C denied this. C repeatedly asked what he was alleged to have said and SD declined to give any specifics but told him “It was your behaviour in general”. SD’s approach showed little interest in C’s own account of the encounters. He did not ask C what happened during the encounters. He did not put to C what specifically PC alleged he had said or done.[244]Only C and PC were party to the phone call on the 16th. However, the factfinding meeting was also attended by David Houten, C’s TU representative. There was a third witness. Neither SD nor anyone else interviewed DH at a separate meeting (in the absence of C and PC) to obtain his account of what happened during the fact-finding meeting on 17 June. DH attended the hearing on 29 August not because he had been invited by C or R as a witness but in his capacity as C’s TU representative.[245]Such contributions as DH volunteered about Notification 2 during the disciplinary hearing on 29 August indicated that he believed it should be thrown out. DH said at one point: “Leigh came into the office that day and there was a lot of shouting going on about various things.” It was not clear who DH was saying was shouting, or even whether DH was referring specifically to the meeting. C repeatedly denied swearing and being aggressive to PC and DH made no contradiction of C’s account. He said it was a tense environment but that “I wouldn’t say that Lee was going to jump over the table or anything like that”. These recollections were volunteered haphazardly in the meeting. They were not elicited in response to enquiries by SD who did not ask DH for his account or put to DH what specifically PC alleged C had said or done for comment.[246]In circumstances where the allegations made by PC were contested, it was not objectively reasonable that R should decline to obtain proper specification of the alleged conduct or that it should decline to seek the accounts of two of the three witnesses who attended the meeting (that is, C and DH).[247]We acknowledge that in some circumstances, procedure on appeal may cure earlier procedural defects. However, on the facts of this case, the later stages of the procedure were not sufficient to cure the unreasonableness with respect to the investigation of Notification 2. PH did not at the appeal stage conduct a fact-finding meeting with DH or otherwise seek his account of the events on 17 June 2023. PH contacted PC regarding the allegations on 17 December 2023, some 6 months after the contested meeting and call. Even then, PC still did not give a specific account of what C was alleged to have said in the call, but he accused him of “effing and blinding”. PH did not seek more detail than that from PC. PH did not, before making his decision, put to C the additional evidence which PC had put forward in his email of 17 December 2023 to allow C to comment upon it. Fairness requires that an employee knows the case to be met, is told the important parts of the evidence and is given the opportunity to criticise or dispute it. While the omission may in some circumstances not render an otherwise fair dismissal unfair, that is not the proposition here. The question is whether PH’s investigations could cure earlier unfairness in the approach including not giving adequate specification of the case C required to meet. Given the weaknesses in PH’s own approach, they did not.[248]We are satisfied that R did not carry out a reasonable investigation / conduct a reasonable procedure in relation to its investigation of Notification 2. It fell outside the range of reasonable responses in the following respects:(i) The appointment of PC to ‘investigate’ C’s conduct during the phone call between PC and C on 16 June;(ii) the absence of enquiries of PC to obtain a reasonable level of specification of the swear words or other aggressive conduct complained and the omission to put properly specified allegations to C;(iii) the absence of reasonable, evenhanded investigation into C’s account of the call;(iv) the absence of a reasonable, even-handed investigation into C’s account and DH’s account of events at the meeting on 17 June.[249]R’s investigation into Notifications 1 and 3. In his oral submission, Mr McKinlay referred to the OH report dated 25 May 2023. He pointed out that the Occupational Health Advisor recognised the variability of C’s symptoms. He said the report highlighted the fact that things can change and referred to the gap which he described as ‘a little under a month’ between the date of the report and C resuming professional taxi driving duties. Mr McKinlay also referred in his oral submission to C’s position that his condition varies and that it had changed. He said R assumed that C was lying about his condition and his unfitness for work.[250]Central to Mr Gibson’s submissions is the contention that C’s GP’s sicknotes sign him off as incapable for any work [our emphasis]. He refers to C’s evidence that his anti-depressant medication being increased after 25 May and submits, “The dismissing manager took him at his word on this, but if he was feeling well enough to work as a taxi driver from 12 June 2023 why had he not also approached Royal Mail to tell them so he could be assessed to see if he was fit to work for Royal Mail. Saying he was fit to work as a taxi driver from 12 June 2023 conflicts with the fact his sick note signed him off as not fit to work in any capacity” [our emphasis].[251]C had been signed off for work with hip pain and stress from 11 February 2023. His most recent and most relevant fit note was issued on 12 June 2023. C’s fit notes were before SD when he made a decision (though as a matter of detail they were not enclosed with the case documents in the disciplinary invite letter). SD refers to C’s doctor’s certificate in his decision report and concludes the information in it is inaccurate. The fit notes recorded the reason for the absence as being hip pain and stress. SD also had before him the OH report of 25 May 23. As it was the most recent report before the alleged misconduct, it is the most relevant of the OH reports. In that report, Ms Brown recorded the following comments “Mr Weston is currently unfit for work due to ongoing severe symptoms of anxiety and depression… It is difficult to predict the outlook with any certainty, however, I anticipate that given appropriate time and treatment, there is scope for improvement but to what degree is unknown at this time. I am unable to predict the likelihood of recurrence.”[252]As set out in the findings in fact, it is not established that C’s fit note signed him off as unfit for “any work” as SD suggested during the disciplinary hearing or for work “in any capacity” as Mr Gibson suggested during his submissions. The fit notes themselves were not produced but the medical notes make clear that they were in the standard eMed3 template. The box ticked was “you are not fit for work”. The box unticked was “you may be fit for work with the following advice”. There was no evidence before the Tribunal that the GP had included non-standard wording in the fit note and the record of the consultation did not refer to such an inclusion. In addition to the OH reports and the fit notes, R had C’s evidence before it for Notifications 1 and 3, given at the fact-finding meeting and at the disciplinary hearing. R was aware that C maintained that he was truthful in his description of his symptoms at the OH consultation in May. He said he had been helped by friends and family, that he had returned to his GP and upped his Sertraline but also that “[he] was getting half pay so [he] had to do something because [he] couldn’t afford to survive.”[253]Notification 1 was an allegation that C had been dishonest to his manager and to Occupational Health regarding his capability for work. The basis for the allegation (as set out in the Notification itself) was that C had been seen driving a taxi on 15 June 2023 while on sick leave.[254]The circumstances known to R were that(1) C denied any dishonesty with the OH or his managers;(2) C’s absence from work with R at the material time (on 15 June 2023) was covered by a GP fit note dated 12 June 23 which recorded a diagnosis of hip pain and stress (as earlier fit notes had done)(3) the OH report of 25 May indicated that C was unfit to work at that time due to severe anxiety and depression but also that it was difficult to predict the outlook with any certainty. That OH report also made reference to C’s continuing hip pain.[255]R’s accusations of dishonesty are underpinned by an assumption (expressed by PC at the meeting on 17 June and SD at the hearing on 29 August) that the C’s fit note meant R was unfit for ‘any work’ and not just unfit his contracted duties with R. They were also underpinned by an assumption that C’s fitness to drive a taxi professionally was a reliable indicator of C’s fitness to undertake his duties for R.[256]It is possible to be fit to perform the duties of one job but not another (as was the situation, for example, in Perry). This may well arise so where, as in the present case, one job requires a high level of physical mobility, the other is sedentary and there is a health condition which impairs mobility. There may be circumstances too where symptoms of depression and anxiety might preclude an individual performing the duties of one job but not another, depending on the demands of the work and any stressors associated with job. Also as in Perry, C was also under no obligation to inform R of his work in a second occupation. As a matter of principle, it was possible and permissible for C to be off sick from work for R whilst, at the same time, being fit to continue his work as a self-employed taxi driver and for him to do so depending on his particular health situation. As in Perry, there was no term of a policy or contract which posed an obligation on C to keep R advised of his capability to undertake duties which were not his contractual postman duties for R while remaining unfit to perform those contracted duties.[257]Against that backdrop, it was outside the range of reasonable responses for R to decline to make investigations with their Occupational Health Advisor, Judith Brown, and / or with C’s GP in order to test the assumptions that they had made about the implications of C’s taxi-driving. It was not reasonable to decline to seek Ms Brown and the GP’s respective clarifications on whether the former’s OH report and the latter’s fit note advice were intended to be directed at all work or just C’s work for R. C had no reason to obtain a fit note from his GP for his taxi driving work at the material time on 12 June because he was self-employed so didn’t need one for his taxi work (and indeed he was working as a taxi driver from that date so wouldn’t have needed one even if he had a taxi firm employer). It was not reasonable in this context to assume, as R did, that the statements of the medical professionals were intended to relate to any work (including work outside R’s organisation) and not just C’s work for R without testing that view.[258]It was not reasonable for R to decline to seek medical advice from Ms Brown or C’s GP (or another medical professional) regarding whether C’s reported symptoms to Ms Brown on 25 May and to his GP on 12 June were incompatible with his observed fitness to work as a professional taxi driver. On the face of it, the two jobs are quite different in terms of their physical demands. Ms Brown’s report also referred to workplace stressors with R which may or may not have applied to other work. Her report also referenced the difficulty of predicting the outlook for C with any certainty. In all the circumstances, to omit to seek further medical advice about what could or could not be properly inferred about C’s state of health and capability to work as a postman from his working as a taxi driver did not fall within the range of reasonable responses.[259]Though not cases on unfair dismissal, we feel encouraged in our conclusions by the dicta of the EAT in Scottish Courage and Merseyrail. The test being applied in these wages claims regarding the withholding of sick pay was not that of reasonableness as it is for us. With that said, the approach has some relevance, particularly in circumstances where SD expressly concluded in relation to Notification 3 that he found it questionable that C should continue to receive sick pay because his absence was unnecessary. The EAT’s approach in these cases suggests that, where an absence is covered by a GP fit note, an employer should proceed with some caution in concluding that a fit note is inaccurate or unwarranted in the absence of obtaining any medical evidence to undermine the GP’s certificate.[260]We are satisfied that R did not carry out a reasonable investigation / conduct a reasonable procedure in relation to its investigation of Notifications 1 & 3. It fell outside the range of reasonable responses in the following respects:(1) R’s omission to enquire of Judith Brown whether her report conclusion that C was unfit for work as at 25 May 2023 was intended to extend to any work including work outside of R’s organisation;(2) R’s omission to enquire of C’s GP whether his fit note of 12 June declaring C unfit for work for a further month was intended to refer to his fitness to perform any work including work outside of R’s organisation;(3) R’s omission to seek a medical opinion on whether C’s working as a taxi driver from 12 June 2023 was irreconcilable with the symptoms he had reported to Ms Brown on 25 May and / or those he had discussed with his GP on 12 June 2023.[261]The belief in C’s guilt held by SD and PH was not formed on reasonable grounds, having regard to the inadequacies in the investigations conducted into all of the Notifications. We conclude that C’s dismissal was unfair. It is not necessary in these circumstances to go on to consider the other shortcomings in R’s approach and decision-making which Mr McKinlay has asserted. Remedy Basic Award
Remedy
[262]The claimant’s basic award (before the application of any deduction) is 15 years x 1 week’s gross pay. That is 15 x £199.20 = £2,988.[263]We apply s.122(2) of ERA and decide whether any conduct of C before the dismissal was such that it would be just and equitable to reduce the amount of the basic award.[264]Neither party addressed us specifically on the issue of culpable conduct and its impact on the basic award. However, it was clear from the thrust of Mr Gibson’s submissions on liability that R’s position was that C was guilty of culpable conduct which, in R’s submission, was sufficiently serious as to justify his summary dismissal.[265]We identified culpable conduct in which C engaged before his dismissal. Following the meeting with PC, C gave some flippant or unhelpful comments response to PC’s written queries such as, “if taking pictures … please can you get my right side” and “I hope you enjoyed the interview … I am totally buzzing Brendan Rodgers is back”. This conduct was unhelpful and carried a degree of blameworthiness. It fell far short of amounting to gross misconduct which might have reasonably founded the basis for a dismissal - though it need not have this character to sustain consideration of a reduction under section 122(2).[266]We find C’s conduct in omitting to consider and discuss with his doctor whether there was any risk that returning to taxi driving might aggravate his hip pain or his mental health symptoms was also culpable in all the circumstances. It is not known whether it might have done so. If it could or did aggravate C’s symptoms and absence, this would have brought him into conflict with R’s sick pay policy which reserved to R the right to refuse sick pay if an absence is aggravated by causes within the employee’s control. In circumstances where R was paying C sick pay, C’s conduct in omitting to seek medical opinion and support in relation to his plans carried a level of blameworthiness. Again, we find that C’s omission fell short of gross misconduct but – as before – we note it need not be characterised as such to be relevant for consideration.[267]Much more serious than the matters identified above, however, was C’s conduct in undertaking remunerative work during contracted hours with R in respect of which C was in receipt of sick pay (at half rate in June and latterly in August at SSP rate). C did this from the week in which he was spotted by PC in June and continued to do it in the period before his dismissal. He did not inform R of his decision to work elsewhere during the hours he was contracted to work for Royal Mail. Whether or not C had ever applied his mind to its implications, the fact was that it resulted in his obtaining a sick pay income in respect of hours during which he was being otherwise remunerated through self-employed taxi work.[268]We considered the mitigating factors which C outlined in his evidence. We accept that he was financially strapped and that this contributed to his decision to return to taxiing work. We acknowledge that, with good grounds, C did not believe R would accommodate a return to lighter duties or that they would allow him to return to his original postman duties before he had an MRI scan. We accept that he was not in any event fit to return to full duties as a postman with the significant walking entailed. It is also recognised that C did not seek to conceal his taxi driving from R. In fact, he had mentioned to ID that he may return to this work and ID had undertaken to check with HR the situation regarding C returning to driving his taxi but then omitted to follow up with C. This may have represented a missed opportunity for R to provide C with clear guidance about the implications regarding his sick pay and his taxiing hours.[269]Nevertheless, it was not given, and C did not chase up ID or HR. He decided to work as a taxi driver including during contracted hours with R for which he was receiving sick pay. The blameworthy nature of C’s taxi driving activities lies in the inappropriate financial gain he received in respect of taxi fare income earned in periods he was contracted to R and in receipt of sick pay. Whether C was alive to the inappropriateness or whether he recklessly ignored the implications of his taxi shift scheduling, the conduct was significant and culpable.[270]Taking all of aspects into account, we assess that it would be just and equitable to reduce the basic award by 50% in recognition of C’s predismissal conduct. C’s basic award is thereby reduced to £1,494. Compensatory award[271]C’s employment terminated on 16 September 2023. He was summarily dismissed and received no payment in lieu of notice from R. In his Schedule of Loss, he claims lost earnings based on net weekly pay of £173.91 and pension contributions of £19.92 per week for the period from 16 September 2023 to 15 August 2024. C does not claim any losses in the period from and after 15 August 2024. C calculates his losses before credit is given for any sums earned in mitigation as £9,248.46 (i.e. loss of 47.71 weeks’ net pay @ £8,297.99 plus loss of 47.71 weeks’ pension contributions @ £950.47). From this C asserts the sum of £4,162.31 falls to be deducted by way of sums earned in mitigation during the period. The loss of earnings and benefits deriving from the Schedule is, therefore, £5,086.15. Mr Gibson confirmed at the hearing that he takes no issue with the figures in the Schedule.[272]Polkey: We next considered whether there is a chance that C would have been dismissed fairly anyway if a fair procedure had been followed. When applying this test, we must consider what the actual employer would have done, not a hypothetical employer (Software 2000 Ltd v Andrews and others 2007 ICR 825). We should make an assessment about what is likely to have happened using its common sense, experience and sense of justice. Neither party gave focus to the Polkey question in their submissions.[273]The evidence before us does not sustain a finding that, if a fair procedure had been followed, the allegations underpinning Notifications 1, 2 and 3 would have been supported had a reasonable investigation been carried out. The inferences which R drew that C had been dishonest regarding his capability for work were not reasonable. There wasn’t medical evidence before the Tribunal which would allow us to find that the findings of a reasonable investigation would have sustained a reasonable belief that C’s driving activities were incompatible with his reported symptoms and diagnosed conditions or that C had lied about his capabilities or that he was malingering. We do not find that there is a probability that a reasonable procedure and investigation would have allowed R to dismiss C fairly based on the allegations as they were framed in Notifications 1 and 3.[274]With respect to Notification 2, we did not hear evidence from PC or DH and have made our findings in fact based on the evidence before the Tribunal. We recognise that what we must assess is the chance that SD would have upheld the notification based on a reasonable belief following reasonable investigation by R. However, it is simply too speculative an exercise to attempt to meaningfully assess what C, PC and DH might have said if they had been asked during a reasonably prompt and even-handed investigation for their accounts of what specifically took place on 16 and 17 June 2023. On the evidence before us, it is not established that there is a chance capable of meaningful quantification that if reasonably investigated, the resulting evidence would have sustained a reasonable belief on SD’s part that C had used abusive language and engaged in aggressive behaviour such as would warrant dismissal as a reasonable response.[275]However, the Polkey question is not limited to whether C would have been dismissed fairly for the allegations as framed in the case but also whether a fair dismissal would have occurred for other reasons. Had a reasonable procedure been followed, including a reasonable investigation into C’s rights, obligations and responsibilities with respect to sick pay and his second job as a taxi driver, we assess it is likely that Notification 3 would have been reframed in the disciplinary to focus not on alleged ‘unnecessary absence’ but on the receipt of sick pay for contractual hours during which C was earning remuneration from self-employment as a taxi driver. We assess there is a good chance that a reasonable investigation would have established that C was taxi driving during his contractual hours while simultaneously receiving sick pay for these. We assess there is a good chance that C would have been honest and upfront with SD or another investigator if he had been asked about his time spent taxiing.[276]This conduct was sufficiently serious that, had it been established by R, dismissal would have fallen in the band of reasonable responses. It does not necessarily follow that SD would have decided to dismiss C for that conduct in all of the circumstances. In assessing the chance that SD would have gone on to dismiss C for this single ‘charge’, we assume that SD, acting reasonably, would have had regard to C’s long service and clean record, to the background of C’s thwarted attempts to return to work for R, to the difficult financial circumstances which prompted C to return to taxi driving and to his right to do so, in principle, if there had been no conflict with his contracted hours and no aggravation of his symptoms which might exacerbate his absence from R. On the other hand, we assess that SD, acting reasonably, would be entitled to and would take into account the importance R places on honesty and operating within the law in their standards of behaviour. In a fair procedure, if SD decided to dismiss C, C would have the opportunity of appealing and, in accordance with R’s policies, that appeal would take the form of a re-hearing. We identified that there could be some prospect that SD and PH could come to different views, both of which were reasonable, about whether to dismiss C or impose a lesser sanction in all of the circumstances of his case.[277]We assess there is some chance that, when regard was given to C’s mitigating factors and clean record, SD or, more likely, PH would have decided on a lesser sanction than dismissal. However, having regard to the approach taken to matters related to absence and perceived dishonesty, we conclude that the chance of C being dismissed (and remaining dismissed at appeal) was more probable than not. Taking everything into account, we assess that there is a 60% chance that C would have been dismissed and would have remained dismissed on appeal. The compensatory award is thereby reduced to £2,034.46 (£5,086.15 LESS (60% of £5,086.15 = £3,051.69) = £2,034.46.[278]ACAS Code: Neither party addressed us specifically on whether there had been an unreasonable failure to follow the ACAS COP and whether an uplift should be applied. No uplift was contended for in the Schedule of Loss. We decline to award any uplift or reduction on this ground.[279]Contributory fault: We require to apply the provisions of section 123(6) of ERA. This is a case in which we have found, as set out at paragraphs [265] to [269] above, that C was guilty of culpable conduct before his dismissal.[280]For the purposes of a reduction in the compensatory award, we must be satisfied that the culpable conduct to a significant extent caused or contributed to C’s dismissal. We are satisfied that all of the conduct identified in those paragraphs did so. Although the Notifications were framed problematically by R, it was established before the Tribunal that it was R’s perception of C’s wrongdoing in taxi driving while signed off sick for work which gave rise to the dismissal. C’s conduct in driving his taxi commercially during the hours C was contracted to work for R was essentially part and parcel of the conduct being investigated and disciplined, albeit R’s focus in the charges was on malingering. Taking into account the blameworthiness of C’s conduct in driving during contracted hours as discussed above, we find that it is just and equitable to also reduce the amount of C’s compensatory award by 50%. C’s compensatory award is thereby reduced further from £2,034.46 to £1,017.23.[281]C also experienced a loss of statutory rights. We have allocated £500 for loss of statutory rights. The compensatory award total is therefore increased to £1,517.23.[282]Given the resulting figure for the compensatory award, there is no reduction by operation of the statutory cap and the final compensatory award is £1,517.23.[283]C’s total financial award (basic plus compensatory) is, therefore, £1,494 + £1,517.23 = £3,011.23. Wrongful Dismissal[284]C’s complaint of wrongful does not succeed standing our finding that C was guilty of conduct prior to his dismissal which would have entitled R to terminate his employment summarily.
Conclusion
[285]R did not victimise C.[286]R did not harass C by subjecting him to unwanted conduct related to disability.[287]R unfairly dismissed C. R is ordered to pay compensation in the global sum of £3,011.23. Employment Judge Murphy