Mr S Conway v Advocate General for Scotland as Representing the MOD: 4105895/2022
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4105895/2022Venue GlasgowHearing 2, 3, 6 and 16 March 2023
Between
Mr S ConwayClaimantAdvocate General for ScotlandRespondent
Before
Employment Judge M KearnsMr J Wales for claimantLay Representative for claimantDate 24 March 2023
JUDGMENT
The Judgment of the Employment Tribunal was to dismiss the claim.
REASONS
[1]The claimant who is aged 58 years was employed by the respondent as a security guard from 5 February 2018 until 29 June 2022 when he was dismissed by reason of ill health absence. On 7 November 2022, having complied with the early conciliation requirements, the claimant presented an application to the employment tribunal in which he claimed that his dismissal was unfair.
Issues
[2]The respondent admitted dismissal. The issues for the employment tribunal were:(i) Whether the dismissal was unfair contrary to section 98 Employment Rights Act 1996 (“ERA”);(ii) If it was unfair, what remedy would be appropriate;(iii) If the dismissal was unfair, the percentage or other chance a fair procedure would have reached the same result;
Evidence
[3]The parties had prepared a joint bundle of documents (J) and referred to them by page number. Both parties lodged one additional document at the hearing and these were received without objection and incorporated into the bundle. The claimant gave evidence on his own behalf and called his trade union representative, Iain Cormack. The respondent called Kathryn Malough, Regional Manager with Ministry of Defence Guard Service (“MGS”), based in Cosham, Wiltshire, who took the decision to dismiss the claimant; Keith Basham, Business Resilience Manager, MGS, who decided the claimant’s bullying and harassment complaint; John McConnachie, Assistant Head – Unarmed Guarding – Service Delivery, MGS, who heard his appeal against Mr Basham’s decision; Joanne Peel, Head of HR who made the decision on his grievance; James Crosfield, Head of Defence Infrastructure, South West Region, who heard the claimant’s appeal against Ms Peel’s grievance decision and Kieran Ward, Assistance Head Portfolio, Programme Development and Challenge Group, Defence Infrastructure Organisation who heard his appeal against dismissal. Findings in fact[4]The following relevant facts were admitted or found to be proved:[5]The claimant was employed by the respondent as an unarmed guard for the MGS. MGS is an unarmed security department responsible for the ingress to and egress from MOD sites in the UK. MGS staff are mainstream civil servants. The claimant was based at Faslane Naval Base. His employment commenced on 5 February 2018 and ended on 29 June 2022.[6]On 14 October 2020, the claimant was suspended from work pending an investigation into an incident on 12 October 2020 in which a delivery driver was allowed into a particular area of the base without pass checks being done and a barrier protocol was not followed. The claimant’s suspension was carried out by Ms Duff, service delivery manager, with no one else present. The meeting was calm and respectful on both sides. An investigation into the 12 October incident was carried out promptly by Mr Martin Rooney and Mr Kevin Graham was appointed decision maker. Mr Rooney issued his report on or around 23 October 2020. He found that there was a disciplinary case to answer but stated that the claimant had been open and honest with him throughout and that as soon as the claimant realised he had made a mistake, he had taken full responsibility. There were also mitigating circumstances. Mr Graham telephoned the claimant and his trade union representative, Mr Cormack on or around Friday 23 October 2020 to say he would be lifting the claimant’s suspension with effect from Thursday 29 October and that the claimant should resume normal duty thereafter. The claimant was advised that he would be contacted to attend a decision meeting in relation to the incident in due course.[7]On or about 27 October 2020, the claimant received a copy of Mr Rooney’s investigation report (J27) into the incident as part of the pack for the decision meeting. When the claimant looked at the report he discovered that Ms Duff’s notes of the suspension meeting (J50) contained the following words: “Prior to meeting Concern had been raised in relation to Mr Conway having an anger management issue by his line manager, therefore in order not to put myself at risk I had a confidential discussion with the MDP Chief to request an MDP officer would attend MGS HQ at 1900 in case of any issues. (MDP did not attend)”. [MDP stands for Ministry of Defence Police.][8]The claimant was horrified when he saw these words. He does not have an anger management issue and could not understand how others could think he did. On no occasion had his line manager or anyone else within MGS ever suggested to him that he had such an issue. The claimant’s reaction to the allegation was that on 29 October 2020 the claimant went off sick with work related stress and anxiety. He never returned to work.[9]The claimant contacted his line manager, Mr Sharkey to ask him whether he had told Ms Duff he had an anger management issue as stated. Mr Sharkey denied all knowledge of any such conversation. On 19 November 2020 the claimant lodged a bullying and harassment complaint (J68) against Ms Duff. He complained that the ‘anger management’ allegation she had made about him (J50) had no substance and was false and defamatory. The claimant pointed out that he had never been spoken to by his line manager in relation to his attitude or behaviour. He asked the following questions:• “What evidence Ms Duff has based her allegation on?• Where my line manager has provided the evidence why was I unaware of his concerns or content of any report?• Did Ms Duff consider her statement a true reflection of my character?• Also, who was the Chief Inspector Ms Duff approached to request a police presence at the meeting to suspend me?• Why the Chief Inspector decided not to provide a police presence?”[10]On 21 November 2020 the claimant’s line manager, Mr Sharkey spoke to the claimant about his continuous absence from work from 29 October 2020. By letter dated 26 November 2020 (J72) Mr Sharkey invited the claimant to an absence review meeting on 3 December 2020. The claimant attended remotely with Mr Cormack, his trade union representative. This was the first of three such meetings, following which Mr Sharkey decided not to progress the claimant’s absence to formal action.[11]Mr Keith Basham, MGS regional manager for North Wales, East Midlands, Essex, East Anglia and Kent was appointed decision officer for the claimant’s bullying and harassment complaint. He interviewed the claimant by video conference on 4 January 2021 with Mr Cormack present. Mr Basham explained that after the meeting, he would have a meeting with Ms Duff and then take a decision on whether or not an investigating officer should be appointed to fully investigate the complaint. The claimant read out a prepared statement (J79) and sent Mr Basham a copy of it. Mr Basham asked the claimant to consider formal mediation to resolve the issue. Mr Cormack discussed this with the claimant after the meeting but the claimant was not in the right frame of mind to consider it.[12]On 12 January 2021 Mr Basham interviewed Ms Duff, who had sent him her statement ahead of the interview (J89). In the statement, Ms Duff said that Laurence Holloway, day shift manager on the day of the claimant’s suspension had said to her of the claimant: “I’ve had a couple of run ins with him on the phone where he has been quite animated and angry”. She also said that Mr Sharkey, the claimant’s line manager had suggested to her that the claimant had anger management issues and had told her: “Be careful, I don’t think you should be in a room on your own with him”.[13]After questioning the claimant and Ms Duff and reviewing their statements, Mr Basham decided not to appoint an investigating officer to carry out a full investigation. He took a narrow approach to the issue before him and viewed it as purely a question of whether or not Ms Duff had made the remarks complained of. Since she admitted having made them and since they were, in any event contained within her written record of the suspension meeting, Mr Basham considered that his work was done. He elected not to address the wider issue of whether or not she had any basis for the remarks, nor to address the claimant’s questions. He considered it a ‘bit of a stretch’ to call it bullying and harassment, but reasoned that Ms Duff’s suspension meeting report did not need to contain the remarks and they had been hurtful to the claimant. He decided that the right thing to do was to uphold the complaint. He wrote to Ms Duff informing her that as she had accepted responsibility for the behaviour complained of and “accepting that you were acting on information from others” there was no requirement for further investigation. He stated that he considered the substance of the complaint to be relatively minor in nature and that he would pass it to her line manager to action informally with her.[14]In terms of updating the claimant, Mr Basham drafted a letter (J94) informing him that the complaint was upheld, that there was no requirement for it to be investigated further and that follow up action would be taken by Ms Duff’s line manager.[15]Notwithstanding the upholding of his complaint, the claimant appealed “the recent process by which Mr Basham came to his decision” to Mr John McConnachie by letter dated 28 January 2021 (97A). The main point of his appeal was that Mr Basham should have appointed a Harassment Investigation Officer. He stated that Ms Duff had claimed to receive information besmirching his character from Mr Sharkey, whereas Mr Sharkey had vehemently denied all knowledge of this. He stated that Mr Basham had failed to answer the questions at the heart of his complaint.[16]On 3 March 2021, Mr Sharkey invited the claimant to a second absence review meeting on 10 March 2021, following which Mr Sharkey again decided not to progress to formal action.[17]On 18 March 2021, the claimant attended a videocall disciplinary meeting about the incident on 12 October 2020 in relation to his failure to carry out a security check on a delivery van and the barrier protocol matter. Mr Graham advised the claimant that although he found the misconduct proven, he had decided against issuing a first written warning and had decided instead to recommend refresher training.[18]On 21 April 2021, Mr McConnachie held a video conference meeting in the claimant’s appeal against Mr Basham’s conduct of his bullying and harassment complaint. During the meeting the claimant told Mr McConnachie that lies had been told about him and his name had been dragged through the mud and that Mr Basham had not answered his questions. Without investigating further to any extent, Mr McConnachie (wrongly) assumed that Mr Basham had answered the claimant’s original questions (J107) and he did not uphold the appeal.[19]On 7 June 2021, Mr Sharkey obtained an occupational health report on the claimant (J110). The report stated that the claimant was currently unable to consider a return to work in any capacity and that he needed to get his work related issues resolved as soon as possible to prevent them impacting on his mental well-being due to the severity of his current symptoms. On 9 July 2021 Mr Sharkey had a third continuous absence review meeting with the claimant and Mr Cormack. By letter dated 16 July 2021 (J117) Mr Sharkey informed the claimant that he had again decided not to progress to formal action.[20]On 1 October 2021 the claimant sent a letter to David Brewer DIO – COO (J119) making a formal complaint against senior management within MGS. He explained that although his grievance within his own management area had been upheld, the questions in his complaint had never been answered and no resolution had been achieved. The claimant stated (with some justification): “No effort whatsoever had been made to address my questions or get to the root cause of the ‘anger management’ accusation made against me.” He said he had no faith that his bullying and harassment complaint had been dealt with fairly or objectively. He asked for his concerns to be fully and fairly investigated, his questions answered and all those implicated given the opportunity to explain the extent of their involvement.[21]On 8 November 2021 Mr Sharkey held a fourth absence review meeting with the claimant and Mr Cormack. The outcome letter dated 10 November 2021 informed the claimant that he was to be invited to a formal attendance hearing with a decision manager to discuss his absences and that a letter would be issued shortly.[22]On 28 October 2021 (J129), at the request of Mr Brewer, Joanne Peel, Head of People and Capability, contacted the claimant in response to his letter of 1 October. Following a conversation with the claimant and Mr Cormack on or around 10 November 2021, Ms Peel emailed the claimant summarising that his issue was that his case had been upheld but he did not get answers to his questions; and that the resolution he was seeking was that “You want to understand – who has said what and why/where is the evidence. You are keen to come back to work. Your health has suffered over the last year and you want some ‘normality’ back in your life. There has been consequential impact on your family. You are concerned, among other things about the reputational damage this has caused you in the community.” Ms Peel felt that there needed to be conversations between the claimant and the person or people who had made the ‘anger management’ allegation. She identified this as the root cause of the claimant’s stress and anxiety and she felt they needed to get to the bottom of it. She was strongly of the view that mediation was the way forward.[23]On or around 8 December 2020, Mr Sharkey left the employment of the respondent for another job.[24]On 9 December 2020, Ms Peel wrote an informal memo to the claimant and Mr Cormack setting out where she was at with her thinking. She stated: “I hope that with (preferably) – or without a professional mediator – you and your supervisor can have an open and frank conversation about what was really said and meant and how you can return to the workplace with confidence and support. I cannot see any other resolution other than an open conversation that will enable you to put this hurt behind you.”[25]The claimant responded to Ms Peel on 10 December 2020 (J153) to say that he had contacted Mr Sharkey on numerous occasions asking him if he had told Ms Duff that the claimant had an anger management issue and that she should not be in a room on her own with him and Mr Sharkey said he knew nothing about it. Ms Peel initially understood that the claimant was open to mediation to try and resolve the problem. By email dated 7 January 2022 (J158) she introduced the claimant to Laura Mosely in the DBS mediation team to take forward mediation. Ms Mosely emailed the claimant on 10 January (J170) to give him some information about mediation.[26]The claimant replied to this email (J160) with the words: “What do you expect to be achieved by mediation?” He said that he did not believe mediation would be constructive or that his questions would be answered. He said that Mr Sharkey was not only his line manager but a personal friend and that: “Having questioned him deeply on four separate occasions he categorically denies ever speaking to Miss Ruth Duff about my alleged bellicose personality.” By email dated 10 January 2022 Ms Peel reminded the claimant that when she had spoken to him on 20 December, he had agreed to her setting up the mediation approach. If he had changed his mind, Laura Mosely would stand down.[27]By 21 January 2022, Ms Peel had concluded that an informal resolution of the claimant’s grievance through the mediation service was not going to be possible, so she wrote to him on that date (J183) with a formal invitation to a grievance meeting on 28 January 2022 (re-arranged to 4 February to enable Mr Cormack to attend). In advance of the meeting, the claimant sent Ms Peel a detailed letter and background statement dated 3 February 2022 (J194). At the meeting, Ms Peel agreed to interview the key witnesses and parties and investigate the grievance. Thereafter, Ms Peel interviewed the claimant, Ms Duff, Mr Holloway, Ms McManus and the MOD police. She did not interview Mr Sharkey because he was no longer employed by the respondent. Ms Peel contacted MOD Police (J212) and received from them confirmation that there had been no police record kept of Ms Duff’s request for a police presence in the area at the time of the claimant’s suspension.[28]In the meantime, under the separate absence management process, Ms Kathryn Malough, Regional Manager MGS, was appointed decision maker. She had no prior knowledge of the claimant, his managers or the facts of his case. By letter dated 11 February 2022 (J210), the claimant was invited to a formal attendance hearing with Ms Malough by Skype on 7 March 2022. He was informed of his right to be accompanied.[29]On 25 February 2022, Ms Peel prepared a full report of her investigation into the claimant’s grievance (J214). So far as relevant to the claimant’s case before the Tribunal, Ms Peel identified the points the claimant had asked her to address as follows: “ii Mr Conway would like to know whether there is a MDP police record held against him. iii In reference made to his alleged ‘anger management issues’ Mr Conway would like to know whether those remarks were actually made.”[30]With regard to point ii, Ms Peel stated in the report: “I have been in touch with the MDP, and I can confirm that there is no Police record of this incident.” With regard to point iii, Ms Peel chose not to speak to Mr Sharkey because he was no longer employed by the respondent. She did speak to Mr Holloway, day shift manager who had been named by Ms Duff in her statement to Mr Basham as having said of the claimant: “I’ve had a couple of run ins with him on the phone where he has been quite animated and angry”. Ms Peel asked Mr Holloway if he had made reference to “anger management”. Mr Holloway said he was not sure he had used that phrase but that shortly before the incident on 12 October 2020, he had taken a phone call from the claimant telling him he would not be coming in to work. [The claimant’s sister in law was dying at this point.] When Mr Holloway asked the claimant how he would like the leave recorded, the claimant had responded: “I don’t give a f*** what you record it as, I won’t be in.” Mr Holloway told Ms Peel that he had found this mildly aggressive, very dismissive and inappropriate. He said that he had mentioned it to Ms Duff, his own line manager and flagged that he was concerned the claimant was under stress. He told Ms Peel that he had been taken aback because his prior interactions with the claimant had all been cordial. They always exchanged pleasantries and this was why he had been “knocked off” by the conversation. Ms Peel asked Mr Holloway if he knew what Mr Sharkey’s views were about the claimant. Mr Holloway said he believed Mr Sharkey thought the claimant was ‘highly strung and a bit stressed’ at this time. He also said that the claimant and Mr Sharkey had a good relationship and he thought Mr Sharkey would be prepared to speak to Ms Peel.[31]On 28 February 2022 Ms Peel issued her grievance decision letter to the claimant (J221). Ms Peel’s decision was to partially uphold the claimant’s grievance in relation to safe systems of work and whether Ms McManus should have been both witness and note-taker in relation to the 12 October 2020 incident. In relation to the MDP, Ms Peel confirmed to the claimant that there was no MDP record of the incident. With regard to the ‘anger management’ allegation, Ms Peel concluded: “you wanted to know whether those remarks were actually made. Having spoken with Mr Holloway I can confirm that he reported back a conversation which took place some days before the incident when you had spoken to Mr Holloway in an inappropriate manner: Mr Holloway had found your behaviour to be ‘mildly aggressive and very dismissive’. As this was out of character for you, Mr Holloway mentioned the matter to his line manager Ms Duff at his next meeting with her.” Ms Peel suggested that if the claimant would like to speak with Mr Holloway about the telephone call, Mr Holloway would be happy to participate with or without a mediator present. The claimant was informed of his right of appeal.[32]Under the separate absence management procedure, the claimant and Mr Cormack met with Ms Malough on 7 March 2022 by Teams Conference. A note taker and DBS adviser were also present. Ms Malough listened to the claimant and his representative and concluded that she could not decide on the claimant’s attendance case until he had received the outcome of his grievance appeal. The hearing was accordingly placed on hold pending the claimant receiving his final grievance outcome which - Ms Malough considered - would help him decide about the future. Ms Malough told the claimant that they would meet again in a month’s time to see if there was a prospect then of his return to work.[33]By letter dated 10 March 2022 (J229) the claimant appealed Ms Peel’s grievance decision.[34]By letter dated 21 March 2022 (J235), Ms Malough invited the claimant to the reconvened formal attendance hearing on 13 April 2022 via Skype. She advised the claimant of his statutory right to be accompanied. The letter indicated that a possible next step included dismissal. The claimant attended the hearing on 13 April along with Mr Cormack, his TU representative. At the meeting, Ms Malough asked for an update on the claimant’s grievance. The claimant said he had appealed Ms Peel’s decision to Mr Crosfield and was waiting for Mr Crosfield to get back to him with a date for a hearing. Nothing had been concluded either way. Ms Malough asked the claimant if there was anything she could do to help him back to work, like a phased return, reasonable adjustments or going to another site. The claimant said that his last occupational health report said that once the grievance was resolved, he would go back to a phased return once he had his health back. Ms Malough asked the claimant whether he felt ready to go back now. The claimant said no. At that point, Ms Malough did not have the claimant’s occupational health report. She decided for a second time to postpone the meeting and any decision for a month to enable them to discuss ‘where the appeal is’ and also the occupational health report. Ms Malough told the claimant that as this would be the third meeting, she would make a decision at that time. The claimant gave permission for his occupational health report to be accessed. Ms Malough told the claimant she very much wanted him back at work, even on a phased return. The claimant said he wanted to get back to work but he wanted answers to why this all came about. It was very unusual for a formal attendance hearing to be continued three times. However, Ms Malough wanted to give the claimant the benefit of the doubt because he was very stressed about something that had taken place in the workplace.[35]By letter dated 13 April 2022 (J240) Mr Crosfield invited the claimant to a grievance appeal meeting via Teams on 21 April 2022.[36]In the meantime, the claimant was referred to occupational health (“OH”) for information on the medical reasons for his non-attendance at work and the prospect of his return to work. The OH report was issued on 19 April 2022 (J242). The report stated that the claimant had been reviewed by OH on 19 April 2022 and his condition had not improved (since the previous report on 2 November 2020 (J110)). His symptoms were set out in detail. The report stated that the claimant remained unfit for his substantive duties due to his ongoing symptoms and that it was not possible to predict a timescale for full recovery and return to work date. With regard to the current outlook, the report stated that the prognosis was unknown as his recovery “will depend on the successful resolution of the issues that he feels were the cause.”[37]The claimant attended the grievance appeal meeting with Mr Crosfield on 21 April 2022 via Teams, accompanied by Mr Cormack. A Note was taken (J245). The appeal outcome letter (J249) was sent to the claimant on 27 April 2022. The appeal was not upheld.[38]On 19 May 2022 the claimant’s formal attendance meeting was convened for the third time. The meeting was again chaired by Ms Malough, who was assisted by Ryan Shaughnessy, DBS case advisor. A Note was taken (J254). The claimant attended, accompanied by Mr Cormack. Ms Malough asked the claimant if there was anything she could do to get him back to work: perhaps reduced hours or a different site that she could try and arrange. The claimant said he did not trust “any of you”. He told Ms Malough: “If you can help get answers to my initial grievance he would be grateful. The answer lies with Mr Sharkey, he is willing to speak, but nobody has spoke to him up till this point.” Ms Malough said she was very sorry but she was only there to deal with the continuous absence. She asked the claimant: “Are you saying you can’t come back to work until this is sorted?” The claimant did not answer this question. She asked two more times whether there was anything she could do to help the claimant return to work. The claimant said he didn’t trust anyone and asked Ms Malough whether she had received the OH report. Ms Malough said that she had received it and asked whether there were any reasonable adjustments that would help him return to work. The claimant said: “You have destroyed me.” Ms Malough said she was sad to hear that.[39]Ms Malough considered her decision carefully and ‘slept on it’. She reasoned that as a business, the respondent needed people to be in the workplace. She felt she had come to the end of trying to get the claimant back to work and that there was nothing further she could do. There had been a grievance and appeal process. The grievance appeal had not been upheld and it now had to be ‘put to bed’. She had offered the claimant part-time hours, a change of workplace, and a phased return. However, he did not want to come back to work and said he had lost all trust in the respondent. Ms Malough reasoned that the claimant was part of the staff complement at Faslane and part of the MGS guarding complement. The respondent was having to cover the claimant’s shifts with overtime, which was costing a lot of money and they needed people on the ground to do the operational business. There was no point in waiting any longer to see whether the claimant might return because the claimant was so bitter that there was no prospect of him returning. Thus, Ms Malough felt the decision to dismiss him had been forced on her. The claimant had had such strong emotions in all three of her interviews that he felt he could not go back to work.[40]Having made the decision that there was no alternative but to dismiss the claimant, Ms Malough wrote him a letter dated 25 May 2022 (J257). The letter advised the claimant that she had decided with regret that his employment would be terminated because he had been unable to return to work within a reasonable timescale. The letter explained that the claimant was entitled to five weeks’ notice and that his dismissal would therefore take effect on 29 June 2022. Ms Malough also awarded the claimant efficiency compensation of 100% because he had kept in touch with the department for most of his absence and co-operated with occupational health. The letter informed the claimant of his right of appeal. This was said to be an appeal to John McConnachie.[41]The claimant appealed against his dismissal (J266) but objected to Mr McConnachie hearing the appeal because he had been appeal hearer in his bullying and harassment complaint. Put shortly, the claimant’s grounds of appeal were that his grievance and his absence were inextricably linked; and that his absence was because all the questions he had asked in his original grievance and statement remained unanswered. (This was not completely correct because Ms Peel had confirmed that MDP had no record of Ms Duff’s original request for a police presence.)[42]The claimant’s appeal against dismissal was reallocated to Mr Kieran Ward, Assistance Head Portfolio, Programme Development and Challenge Group, Defence Infrastructure Organisation. Mr Ward invited the claimant to an appeal hearing on 21 July 2022 on MS Teams. The claimant attended the hearing along with Mr Cormack. Ryan Shaughnessy, DBS Caseworker was present to assist Mr Ward, who chaired the hearing. A Note was taken (J277). The appeal was not upheld. Discussion and Decision[43]The tasks of the tribunal in this case were to consider whether the reason or principal reason for the claimant’s dismissal was his capacity for work owing to his ill health; and if so, to assess whether the process and decisions of the respondent in relation to his dismissal for that reason were within the band of reasonable responses a reasonable employer might have made to that reason in the circumstances. I concluded that the respondent had shown that it dismissed the claimant by reason of his ill health which affected his capability of performing the work he was employed to do. Under s. 98(3)(a) ERA, capability may be assessed by reference to health. Capability is a potentially fair reason for dismissal under s 98(2). I therefore find that the respondent has shown the reason for dismissal and that it is a potentially fair reason as required by section 98(1) ERA.[44]Turning to the question of whether the dismissal was reasonable in all the circumstances for the purposes of section 98(4) ERA, Mr Wales’ argument was that within his bullying and harassment complaint, grievance and associated appeals, the claimant had asked a number of questions designed to vindicate himself from the allegation by Ms Duff that he had an anger management issue and her implication that she may require police protection when carrying out his suspension. The allegation was in the note she prepared of her suspension meeting with the claimant. For ease of reference, the allegation was in the following terms: “Prior to meeting Concern had been raised in relation to Mr Conway having an anger management issue by his line manager, therefore in order not to put myself at risk I had a confidential discussion with the MDP Chief to request an MDP officer would attend MGS HQ at 1900 in case of any issues. (MDP did not attend)”.[45]Whilst Ms Duff clearly had the right to make whatever arrangements she thought necessary for the suspension meeting, I consider that it was completely inappropriate and potentially seriously prejudicial for her to include such a statement in her suspension meeting note and to communicate it to the investigator and decision maker in the claimant’s conduct case. For what it’s worth, I agree with the claimant that this was not “relatively minor in nature” as characterised by Mr Basham. It was a serious slur made behind the claimant’s back from which the clear implication was that he presented a risk of violence.[46]Mr Wales complained that although Mr Basham had upheld the claimant’s complaint about this statement, he had not answered his questions and the claimant was therefore not vindicated from what he considered a defamatory slur on his character. Mr Wales had a point. Mr Basham’s approach to the claimant’s complaint was to restrict it solely to a technicality about whether or not Ms Duff had made the statement complained of (about which there was no dispute) and not to address the more troublesome issue of why she made it and what grounds (if any) she had for it. Mr Basham’s evidence was: “The main issue Stephen wanted addressed was did RD make that statement.” That was not the claimant’s issue at all. The claimant’s issue (J71) was that there was no substance to the statement. The claimant informed Mr Basham in his interview on 4 January 2021 that he had spoken to Mr Sharkey (the line manager apparently quoted by Ms Duff) and that Mr Sharkey denied having made the anger management remark to Ms Duff. There was accordingly a rather awkward conflict of evidence between two managers which Mr Basham simply sidestepped. He fairly stated in cross examination that he handled the complaint as he did because he didn’t want to ‘tie himself in knots and upset people’. It is fair to note here that ‘he said, she said’ cases, where two employees cannot both be telling the truth do present a particular difficulty for employers. Unless there is corroborating evidence to show which employee’s account is correct, employers cannot really resolve them. In any event, since none of the four complaint/ grievance hearers ever spoke to Mr Sharkey, (the line manager Ms Duff appeared to be quoting), the claimant’s main concerns were never squarely addressed and the claimant did not feel vindicated. Unfortunately, instead of moving on, the claimant ruminated on the matter and became seriously unwell. By the time it came to the final formal attendance hearing, the claimant had lost all trust and confidence in the respondent, felt they had destroyed him and there was no real prospect of him returning to work.[47]In his submissions, Mr Wales stated that the claimant understood that the length of time he had been absent had resulted in his dismissal. He said that the claimant’s argument was that he had asked for certain questions to be investigated by the respondent in order to vindicate himself; that he does not have an anger management issue and never has had and Mr Sharkey did not speak to Ms Duff about this. Despite the claimant’s complaint having been upheld, the failure to answer his questions meant that he was never vindicated. Mr Wales pointed out that Ms Malough had freely admitted that she was only looking at the claimant’s absence and not at what was causing his absence. He submitted that the claimant’s absence had been caused by management failures and in particular the failure to answer his questions and the claimant was accordingly unable to go back to work.[48]I drew the parties’ attention to the Court of Appeal’s decision in McAdie v Royal Bank of Scotland plc [2007] IRLR 895 in case they wished to address it in their submissions. I mentioned it because it seemed to me that the claimant’s case was that the respondent had caused his ill health by failing to properly investigate his grievance. In McAdie the tribunal at first instance had found that the claimant’s health condition had been caused by the respondent and their failure to properly address her grievance. The Ashford employment tribunal held that no reasonable employer would have dismissed Mrs McAdie in these circumstances because a reasonable employer would have investigated the grievance properly at an early stage and would not have found itself in that position. The tribunal found Mrs McAdie’s dismissal unfair. The Employment Appeal Tribunal (“EAT”) overturned that judgment on appeal. The EAT said that the question the tribunal ought to have asked itself was: “was it reasonable for the bank to dismiss Mrs McAdie on 22 December 2004, in the circumstances as they then were, including the fact that their mishandling of the situation had led to her illness?” The EAT said that this last fact might make it necessary for the employer to go the extra mile in finding alternative employment or put up with a longer period of sickness absence but it would not mean that there could never be a fair dismissal. The Court of Appeal agreed.[49]Addressing the issue of reasonableness under section 98(4), I considered whether it was reasonable for the respondent to dismiss the claimant in the circumstances (including the size and administrative resources of the employer’s undertaking) as they were on 19 May 2022. In considering those circumstances, I bore in mind that none of the respondent’s grievance hearers spoke to Mr Sharkey, with the result that arguably, the claimant’s grievance was not properly investigated and resolved. It is fair to point out, however, that the claimant refused mediation which the respondent offered on more than one occasion and that that might have been an alternative route to resolution. What is required in cases where a respondent’s handling of a situation may have led to ill health is that the respondent ‘goes the extra mile’. I did consider that Ms Malough did so. She postponed the claimant’s formal attendance hearing on two occasions to enable the claimant to receive the outcome of his grievance appeal. She offered to find him alternative employment, she offered reduced hours and/or a different site. Unfortunately, at the point where Ms Malough required to make her decision on 19 May 2022, there was no prospect of the claimant returning to work. He had been off sick for around eighteen months. His position was that his trust and confidence in the respondent had been completely destroyed.[50]With regard to the procedure which requires to be followed in an ill health case, in East Lindsey District Council v Daubney [1977] IRLR 181 the EAT said this: “Unless there are wholly exceptional circumstances, before an employee is dismissed on the ground of ill health it is necessary that he should be consulted and the matter discussed with him and that in one way or another steps should be taken by the employer to discover the true medical position. We do not propose to lay down detailed principles to be applied in such cases for what will be necessary in one case may not be appropriate in another. But if in every case employers take such steps as are sensible according to the circumstances to consult the employee and to discuss the matter with him and to inform themselves upon the true medical position, it will be found in practice that all that is necessary has been done.”[51]The respondent had obtained an updated OH report on 19 April 2022 and this was taken into account by Ms Malough. Ms Malough had held three consecutive meetings with the claimant to consult him. She had postponed the attendance meeting three times to enable the claimant to have the outcome of his grievance appeal and decide whether he felt able to come back to work.[52]The claimant was part of the MGS guarding complement at Faslane. The respondent was having to cover the claimant’s shifts with overtime, which was costing money and they needed people on the ground to do the operational business. There was no point in waiting any longer to see whether the claimant might return because the claimant told Ms Malough he had lost all trust and confidence in the respondent. As at 19 May 2022, there was no real prospect of him returning to any role with the respondent. I accepted Ms Malough’s evidence that she felt the decision to dismiss the claimant had been forced on her and that he had had such strong emotions in all three of her interviews with him that he felt he could not go back to work. The claimant was offered a right of appeal.[53]For the foregoing reasons, I concluded that the respondent’s decision to dismiss the claimant on 19 May 2022 by reason of ill health incapability was within the range of reasonable responses a reasonable employer might have made in all the circumstances. It follows that the claim is dismissed.