Mr A Fraser v Wesleyan Financial Services Ltd and Mrs L Wallace: 4106635/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4106635/2024Venue GlasgowHearing 30 June & 1 – 4 July 2025
Between
Mr A FraserClaimantWesleyan Financial Services Ltd and Mrs L WallaceRespondent
Before
Employment Judge S CowenMs S Mechan for claimantLay Representative for claimantMr A Hodge (instructed by Counsel) for respondentDate 30 September 2025
JUDGMENT
[1]The claim for unfair dismissal succeeds and a remedy hearing will be listed in accordance with availability of the panel and the parties.[2]The claims for discrimination arising from a disability, harassment and victimisation are dismissed.
REASONS
[1]This claims for unfair dismissal and discrimination arising from a disability, harassment and victimsation were heard before a full Tribunal panel, over 4 days. An agreed prepared bundle of productions was used. Witnesses gave oral evidence and the parties provided both written submissions and made oral closing submissions.[2]The Tribunal apologises for the delay in sending this Judgment. This has been due to the workload of the Tribunal.
Facts
[3]The Claimant worked as a Specialist Financial Adviser for the Respondent from 28 April 2003. His role involved provided financial advice to medical professionals. He had almost 23 years of service at the point where he was dismissed. The Claimant worked exclusively from home, in his role.[4]In April 2021the Claimant was diagnosed with anxiety and depression. He was medicated for this and was absent from work for a period of 5 months. He also undertook talking therapies. The respondent was aware of his condition due to his absence and his fit notes. Mrs Wallace, a Director kept in touch with the Claimant by email. The Respondent arranged a phased return to work in late 2021. In September 2021 the Claimant told both Mrs Wallace and Alec Collie, Head of Medical about his positive feelings of being back at work. The Claimant returned to full time work in January 2022.[5]In his evidence to the Tribunal the Claimant said that at the time of the incident featured in this claim he was ‘fine’. There was no detail in the Claimant’s impact statement which indicated that he had difficulty with any day to day activities, since his return to work in September 2021 and his subsequent return to full time work. Nor was there any evidence in relation to how the Claimant would able to carry out such activities if he were not medicated. When asked about this, the Claimant said that he and his GP preferred to ‘look forward’.[6]The Claimant was invited to a ‘reward and recognition’ event by Mrs Wallace which was held in Birmingham on 2 May 2024. This was the first time he had been invited to such an event. Approximately 20 employees were invited to the event. The Claimant travelled to Birmingham to attend and to stay overnight. The event started with a lunch and a meeting at the company headquarters. The Claimant was introduced to Ms A by Mrs Wallace at the start of the event and they chatted about their different length of service for the company. Ms A being a relatively new employee and the Claimant having long service.[7]The Claimant fully participated in the lunch and the meeting, giving his opinion to the group on the topics raised. After the meeting concluded, some employees, including some who subsequently became witnesses, went for a drink, whilst others including the Claimant, returned to the hotel.[8]The attendees then met for pre-dinner drinks in Malmaison hotel, where they were all staying. The Claimant bought Ms A and some others a drink and had 2 beers himself before they moved on to a Marco Pierre White restaurant for dinner. This pre-dinner drink was not mentioned by Ms A in her evidence.[9]At the dinner, the Claimant sat on the same table as Ms A and others. There was a prearranged table plan. The Claimant denied that he had altered the position of the placecards on the table. Mrs Wallace had a place at each table around the room and sat with a different table for each course of the meal. She sat at the Claimant’s table for dessert. She sat next to the Claimant and spoke to him about plans for holidays. Mrs Wallace was not interviewed for the investigation, but did not recall in her witness statement at the appeal stage, that such conversation had taken place.[10]After dinner a group of six people, including the Claimant and Ms A, continued to drink at the bar in the restaurant and then walked back to the hotel, where they continued to drink in the hotel bar at approximately 1.30am.[11]The Claimant drank a significant amount of alcohol that evening, including beer and wine. This was more than he had drunk previously whilst he continued to take his anti-depressant medication. The Claimant had no recollection of the events once the group returned to the bar in the Malmaison hotel and no recollection of going up to bed that night. He left both his jacket and keys in the hotel bar and had to call the hotel after his departure to retrieve them.[12]The following morning the Claimant had a hangover, but was able to take breakfast in the hotel, before catching the 8am train back to Glasgow, as planned. The Claimant had no idea that there had been any difficulty with his behaviour until he was asked to attend an interview by Ms Erbe, who had been appointed investigator, as an allegation of inappropriate behaviour was made against the Claimant, by witnesses and Ms A.[13]Ms Erbe was appointed as investigator. She commenced her investigation by speaking to Ms A and asking her what she would like to occur. Ms A told her she would like an apology, but did not want to speak to the Claimant. She said she did not want to get him dismissed. Ms Erbe did not ask Ms A for a detailed account of the actions of the Claimant, during her investigatory interview. Ms A therefore did not tell Ms Erbe that the Claimant had touched her vagina four times, which is what she had told the witnesses to the incident. Ms Erbe did not ask Ms A what clothes she was wearing, the conversation which took place around the incident, what others were doing in response to the incident, or how much Ms A had had to drink. All of these were relevant details which could have been used to assess the extent of the credibility and recall of Ms A and other witnesses.[14]The Claimant was first interviewed on 10 May 2024 by Ms Erbe. She had spoken to Ms A earlier that day, but did not tell the Claimant that in the course of the interview. She told him that the allegation was about “inappropriate touching”. When the Claimant asked for details she told him that she could not tell him as the allegation was “confidential”. The Claimant told Ms Erbe that he had been drinking alcohol and that he could not remember anything untoward happening. He said that he recalled buying Ms A and a colleague a drink in Malmaison before dinner and possibly speaking to her as they walked back to the hotel after dinner. He thought he may have accidentally brushed her chest at some point in the evening, which was an accidental contact as he moved around the room.[15]The Claimant asked Ms Erbe if he could contact Ms A to apologise for his behaviour. Ms Erbe told him that he could not phone her, but that if he wrote a letter and sent it via HR, Ms A would accept it. The Claimant therefore wrote a letter of apology to Ms A for his behaviour. At the time he wrote the letter, he was not aware of the specific details of the allegation against him. The letter said that the Claimant was “dreadfully sorry” for his behaviour. It said “ I have no recollection of the incident and I am disgusted with myself for subjecting you to that type of behaviour that has been relayed to me”. He went on to explain that he was going to visit his GP about the effects of mixing his prescription medication and alcohol. He concluded by saying “I am utterly devastated to have learned of my behaviour and for the distress and embarrassment I have caused you”…”. Once again [Ms A], I am so sorry, and I hope that we can both move on from this and work together for many years to come”. The Claimant’s letter of apology was therefore written when he did not know what he was apologising for.[16]This letter of apology was not sent to Ms A because she later changed her mind and said that she did not want an apology. The Claimant was not told that his letter was not passed on until around the time of the appeal meeting.[17]The Claimant was interviewed for a second time by Ms Erbe on 21 May. At that time she told him “it’s not good” and provided him with the details of the allegation of inappropriately touching Ms A. The Claimant said that he had no recollection of what happened after the group returned to Malmaison and therefore no recollection of the incident. The Claimant said he could neither admit nor deny that it happened, as he had no idea. He was distressed by this.[18]During the second investigation meeting the Claimant offered that the Respondent should contact his GP, to find out more about the effect of alcohol on his prescription medication. He indicated that he had spoken to his GP and considered that this may be the reason that he had no recollection of the incident, but Ms Erbe did not engage with the GP. Neither did Mr Brown, the dismissing officer, nor Ms Oldstein, the appeal officer.[19]Ms Erbe interviewed four other members of staff, who were present in Malmaison at the time of the alleged incident. Each of them gave an account which did not include seeing the Claimant touch Ms A in any way, bar one who talked of the Claimant placing his head of Ms A’s shoulder (not part of Ms A’s allegation). Ms Erbe did not ask any of the witnesses whether they had seen the Claimant carry out the actions which Ms A alleged. Each of the witnesses recounted Ms A’s reaction once the Claimant had left the bar and that she had told them that he had touched her intimately, whilst they had all been sitting at a high table in Malmaison.[20]The witnesses told Ms Erbe that they spoke to each other the next morning about the incident, before reporting it to management. Ms Erbe did not ask any of the witnesses how much they had had to drink, nor how much Ms A had drunk. She did ask about how much the Claimant had drunk and relied on their account of this in her investigation report. The witnesses all described a level of distress by Ms A immediately after the Claimant left the bar.[21]In Ms Erbe’s investigation report, she concluded that on the basis that the Claimant was prepared to write a letter of apology and that he had no memory of the event, this was tantamount to an admission that he had acted inappropriately. This conclusion was accepted by Mr Brown who also relied on it, in his decision making. As did Mrs Ornstein.[22]Mr Brown considered that Ms A’s evidence should be accepted and did not consider that he needed to question her, or challenge her account in any way. He did not consider it was his role to check whether there were any inconsistencies in the evidence before him. Nor to consider whether there was more information required before he took his decision. He did not consider that any of the witnesses needed to be asked further questions about their discussion before reporting the incident, nor about how much they had each had to drink. Nor did Mr Brown consider that he ought to re-arrange the meeting when he saw that Mr Brown was taking the call in his car.[23]Mr Brown told the Tribunal that he did not see the Claimant’s letter of apology and therefore was not aware of the content of it, or the lack of detailed account of the allegation.[24]The Claimant was dismissed on 30 May 2024 for gross misconduct, namely “inappropriately touched a work colleague and committed an act which would be considered sexual assault”. Mr Brown told the Tribunal that it was the individual’s responsibility to know that drinking may cause memory loss and that he therefore had to be responsible for the consequences. He said that he had no reason not to believe Ms A’s version of events, as no-one was offering an alternative version. He admitted that he did not consider whether Ms A’s version could have happened as she described. Mr Brown’s conclusion was that “based on what I believed happened, there was no coming back from that”.[25]Ms Oldstein, Group Customer and Marketing Director, was asked to hear the appeal, which the Claimant made. This was the first time she had undertaken an appeal hearing. She decided to reinterview the witnesses, but did not ask them questions to fill the gaps in Ms Erbe’s investigation, which she considered to be thorough. She also acknowledged that the witnesses had been sent a copy of the investigation report.[26]Ms Oldstein said that she noted the inconsistencies in Ms A’s evidence, such as her assertion that she had not met the Claimant, but had acknowledged that they had spoken to each other at the afternoon meeting.[27]When interviewed by Ms Oldstein, Ms A added detail about her upset after the incident and that she had spent the night on the bathroom floor. Ms Oldstein did not consider this to be a dramatic shift in her version of events. Ms Oldstein chose to rely on the ‘authenticity’ of the way in which Ms A delivered her evidence and the fact she was visibly distressed when interviewed.[28]Ms Oldstein also considered the alcohol consumption of the Claimant in comparison to others, because she said it was raised by the Claimant and that no-one else was claiming memory loss.[29]She concluded that based on the evidence and the fact that the Claimant did not offer any new explanation in the appeal, she considered the dismissal was appropriate. She said that she did not have information on the effect of drink on prescription medication, but it would not have made a difference to the outcome. The Law Unfair Dismissal
The Law
[30]S.98 Employment Rights Act 1996: “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—(a) the reason (or, if more than one, the principal reason) for the dismissal, and(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it— … (b) relates to the conduct of the employee, ….(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”[31]The Tribunal must consider whether the dismissal was unfair. In doing so they consider the following issues in accordance with s.98 Employment Rights Act 1996 (‘ERA’) and BHS v Burchell [1978] ICR 303:a. What was the principal reason for the dismissal and was it a potentially fair reason in accordance with section 98 of the Employment Rights Act 1996? The respondent asserts that it was a reason relating to the claimant’s conduct.b. Was the dismissal fair in all the circumstances in accordance with equity and the substantial merits of the case (and section 94 of the Employment Rights Act 1996)?c. Did the respondent have a genuine belief in the misconduct which was the reason for dismissal?d. Did the respondent hold that belief in the claimant’s misconduct on reasonable grounds?e. Did the respondent carry out a reasonable investigation in all the circumstances?f. It is also contended by the claimant that an unfair procedure was followed.[32]In considering s.98(4) the ET must be satisfied that the employer has acted reasonably in all the circumstances in treating that reason as sufficient. We note that there is no burden of proof and we must consider all the facts in order to reach our own conclusion as to whether the decision to dismiss lay within the band of reasonable responses. In accordance with Iceland Frozen Food v Jones [1982] IRLR 439 the Tribunal will consider whether the decision to dismiss was a fair sanction. The fact that other employers might reasonably have been more lenient is irrelevant (see the decision of the Court of Appeal in British Leyland (UK) Ltd v Swift [1981] IRLR 91).[33]It is not necessary to consider whether the appeal was a review or a rehearing as Taylor v OCS Group Limited [2006] IRLR 613, CA indicated that what is important is that the procedure was fair overall. It also sets out that an appeal can correct any defect in the initial investigation or procedure. Disability[34]Section 6(1) Equality Act 2010 (EqA) states: “A person (P) has a disability if— P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.”[35]Part 1 of Schedule 1 to the EqA: “Long-term effects The effect of an impairment is long-term if—a. it has lasted for at least 12 months,b. it is likely to last for at least 12 months, orc. it is likely to last for the rest of the life of the person affected. If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur. … Effect of medical treatment An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if— a. measures are being taken to treat or correct it, and b. but for that, it would be likely to have that effect. “Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid.”[36]‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (2011) (‘the Guidance’) sets out: 36.1. that anything which occurs after the date of the discriminatory act will not be relevant to the consideration of definition of disability. 36.2. The time at which the Tribunal is to consider the disability is the date of the alleged act of discrimination. This is also the relevant date when considering whether any impact is long term. All Answers Ltd v W 2021 IRLR 612, CA, set out that the Tribunal must look at the facts and circumstances existing at the date of the discrimination and not to events which occurred subsequently. 36.3. The Tribunal must consider the things that a person cannot do, or can only do with difficulty (B9). This is not offset by things that the person can do: Aderemi v London and South Eastern Railway Ltd 2013 ICR 391. Day to day activities are things people do on a regular or daily basis such as shopping, reading, watching TV, getting washed and dressed, preparing food, walking, travelling and social activities. This includes work related activities such as interacting with colleagues, using a computer, driving, keeping to a timetable etc (Guidance D2 – D7)[37]In Paterson v Commissioner of Police of the Metropolis [2007] IRLR 763, Elias J said:''… when assessing the effect, the comparison is not with the population at large. As paragraphs A2 and A3 [of the then Guidance] make clear, what is required is to compare the difference between the way in which the individual in fact carries out the activity in question and how he would carry it out if not impaired.”[38]The burden of proving disability lies with the Claimant who must provide evidence of circumstances which fall within s.6 Equality Act 2010. Each disability must be considered independently.[39]The claims in this case relating to disability discrimination cover the period of 2 May 2024 to 25 July 2024. The Tribunal therefore had to decide whether the Claimant was a disabled person within the meaning of s.6 Equality Act 2010 at that time.[40]The Claimant asserted that his disability was depression and anxiety and therefore the Tribunal considered the Claimant’s evidence in relation to his depression and anxiety which was first diagnosed in 2021. The Tribunal were satisfied that depression and anxiety could amount to a mental impairment. However, the Tribunal went on to consider whether, in this case, there was evidence that the Claimant’s symptoms during the material time had a substantial effect on his ability to carry out day to day activities.[41]The Tribunal found that the Claimant’s evidence was that during the material time, he continued to take medication prescribed by his GP. No evidence was provided by the Claimant with regard to what the effect of his condition would be if he didn’t take his medication. The Tribunal therefore could not be satisfied what, if any, effect he would experience without his medication.[42]Further, the Tribunal heard no evidence that at the material time the Claimant suffered any effects on his day to day activities, substantial or otherwise. The Claimant’s impact statement set out his circumstances in 2021 and then the effects following his dismissal. When the Tribunal enquired whether any of the problems experienced post dismissal were present immediately before (i.e during the material time), the Claimant denied this.[43]The Tribunal therefore concluded that there was no evidence that the Claimant suffered any substantial effect on his ability to carry out day to day activities at the material time.[44]For completeness sake, the Tribunal also enquired of the Claimant whether he had been advised that his condition may recur. He said that this had never been suggested by his GP and they preferred to concentrate on his continued good health.[45]For these reasons the Tribunal concluded that the Claimant failed to prove that he fell within the definition of s.6 Equality Act 2010 at the material time. The Claimant was not therefore a disabled person and could not bring claims under the Equality Act 2010.[46]The claims in relation to s.15, s.26 and s.27 Equality Act 2010 were all dismissed as against both the First and Second Respondent. Unfair Dismissal[47]The parties agreed and the Tribunal accepted that the Claimant was dismissed and that the reason given by the First Respondent for the dismissal was misconduct. The Tribunal accepted that this is a potentially fair reason under s.98 Employment Rights Act 1996. This claim was made against the First Respondent only, as the Claimant’s employer.[48]The Tribunal took into account the evidence of Stuart Brown and Claire Oldstein in considering whether the Respondent had a genuine belief that the Claimant had committed the misconduct. The evidence relied upon by the First Respondent was the interview of MsA and those of the four witnesses. Mr Brown relied on their first interviews and Ms Oldstein on the interviews that she carried out. The Claimant was not able to provide any alternative version of events due to his memory loss. The evidence of Ms A was therefore not challenged with any alternative narrative. Some of the evidence of some of the witnesses supported some aspects of what Ms A alleged, but none had witnessed the inappropriate touching which Ms A alleged.[49]In the face of this evidence, the Tribunal accepted that both Mr Brown and Ms Oldstein believed Ms A’s allegation that some inappropriate touching had occurred. The Tribunal had no evidence before it to suggest that Mr Brown or Ms Oldstein found gross misconduct for any other reason. The Tribunal were therefore satisfied that both Mr Brown and Ms Oldstein had a genuine belief in the misconduct of the Claimant. Reasonable belief based on reasonable investigation[50]The Tribunal then went on to consider whether Mr Brown and Ms Oldstein had reasonable grounds to support their belief. In doing so the Tribunal considered whether the investigation by Melanie Erbe was reasonable in all the circumstances.[51]The Tribunal found that Ms Erbe failed to address a number of issues within her investigation. Firstly, she failed to investigate how much alcohol Ms A or any of the witnesses had drunk during the evening. In contrast her report details how much the Claimant drank. When asked by the Tribunal why she didn’t record this about the others, she said it was not relevant. The Tribunal considers this to be a significant error by Ms Erbe. The reliability of Ms A and the other witnesses may be impacted by their level of alcohol intake. Some of those present at the event had been drinking since the end of the afternoon meeting. As this incident did not occur until 1.30am it was important to understand how sober the recollections were. This was entirely ignored by Ms Erbe, who then accepted their evidence as reliable, but conversely considered it critically relevant to the Claimant’s evidence.[52]Secondly, Ms Erbe did not investigate the reason which the Claimant gave for his lack of memory of the incident. The Claimant highlighted to her, at their first meeting on 10 May, that he had mental health problems. The Tribunal accepted that Ms Erbe may not have realised as a result of this interview that the Claimant was suggesting that this was relevant to his reasons for not remembering the events. However, the Tribunal were satisfied that on 21 May, when they met again, the Claimant was very clear that he had visited his GP and that there was an issue about the effect on him of mixing his medication with large amounts of alcohol. Furthermore, the Claimant clearly told Ms Erbe that she had his permission to discuss the allegation (and thereby the Claimant’s issue about his memory, his medication and alcohol) with his GP. She ignored this and failed to investigate the Claimant’s reasons. The Tribunal consider that the evidence obtained from the Claimant’s GP, or from some other medical source, such as Occupational Health, or a consultant psychiatrist could have helped to inform her understanding of the Claimant’s position. This was a significant and potentially critical failure in the investigation process.[53]Unfortunately, as a result of this lack of investigation, Ms Erbe went on to make a further significant error in her investigation. She completed her report on 24 May, only 3 days after speaking to the Claimant. In her report she specifically concluded that the Claimant’s provision of an apology amounted to an admission that he had done something wrong. This was a conclusion which was relied upon by Mr Brown, without any further scrutiny or consideration. This was an error on his part. Mr Brown also accepted Ms Erbe’s conclusion that the witnesses corroborated MsA and that the inconsistencies were not substantial. Mr Brown admitted in evidence that he did not challenge MsA version of events.[54]The Tribunal accepted the Claimant’s evidence that it was Ms Erbe’s suggestion that rather than phoning Ms A, the Claimant could write an apology to her and that HR would pass it on. The Tribunal found that when Ms Erbe said this to the Claimant, she had spoken to Ms A earlier the same day and that Ms A had told her that this would be acceptable. The Tribunal also noted that when Ms Erbe made this suggestion to the Claimant, she had also told him that she would not reveal the nature of the allegation as it was “confidential”. The Tribunal considered that this was a further flaw in Ms Erbe’s investigation and that this had misled the Claimant with regard to the nature of the allegation against him. Ms Erbe failed to take into account in her report, when considering the apology letter, the fact that the Claimant did not know the detail of the allegation against him at the time. His apology was therefore not one which could be attributed to any acceptance of the allegation which Ms A had made.[55]The Tribunal also considered that Ms Erbe’s telling the Claimant that “it’s not good” during the second interview, indicated that she had a pre-determined view of the outcome of the investigation, before she completed gathering the evidence.[56]The Tribunal also considered it inappropriate of Ms Erbe to put information about the Claimant’s medication into her report, without also undertaking research about the effect of mixing these medications with alcohol. She therefore used information against the Claimant, without full investigation and without taking into account the Claimant’s comments about it.[57]The Tribunal concluded that these flaws in the investigation gave rise to a report which Mr Brown relied upon which failed to give a detailed, fair and unbiased version of the events outlined by the parties. For these reasons, the Tribunal considered that the investigation report of Ms Erbe should not have been relied upon by Mr Brown as being reasonable or sufficient in all the circumstances. Disciplinary Process[58]The Tribunal also considered the procedure during the disciplinary process. The allegation itself was divided into two separate allegations, but it was never made clear to the Claimant what the distinction was between them. The Tribunal were satisfied that there was one allegation which was considered by the Respondent and there was no distinction between the two points.[59]The Claimant was not told the details of the allegation until during the second interview. He therefore was not told in advance of the interview and had no time to consider his position on any of the points raised. The suggestion that he could not be told because it was “confidential” is nonsensical in an investigation context and was contrary to the principles of natural justice. He was merely told that it was “very bad news” and then made to continue with the interview. This was not a fair handling of the process, which left the Claimant having to respond off the cuff to serious allegations. It also meant that the apology letter which he wrote to MsA which was heavily relied upon, was not written with a clear understanding of the allegation being made.[60]The Tribunal also considered it inappropriate and partial for Ms Erbe’s report to draw the conclusions that it did. The purpose of an investigation is to be independent and to present the facts to the disciplinary officer. The conclusion of Ms Erbe’s report clearly indicated to Mr Brown a decision of the guilt of the Claimant. This should not have occurred, in order to allow Mr Brown to make an unbiased decision.[61]The Tribunal also considered that the Claimant was given the impression by Alec Collie, Head of Medical, in a phone call prior to the disciplinary hearing, that this matter would result in a written warning (a sanction lesser than dismissal) and that this was taken by the Claimant as false sense of security in relation to his further participation in the process. Hence the reason that the Claimant conducted the hearing in his car, as he did not consider that it would result in anything more than a warning, after which he could move forward with his role.[62]The Tribunal concluded that in light of Ms Erbe’s report and the fact that Mr Brown undertook no further investigation or scrutiny of the evidence, but chose to accept the allegation of Ms A because it was clear; and the lack of notice to the Claimant of the allegation and the reliance on an apology written when he was not aware of the allegation, all amounted to a procedurally unfair disciplinary process, leading to an unfair dismissal. Appeal[63]The Tribunal considered whether the actions of Ms Oldstein in the appeal rectified the issues with Ms Erbe’s investigation and Mr Brown’s decision. Ms Oldstein’s evidence made it clear that she undertook a re- hearing of the disciplinary by re-interviewing all the witnesses, but failing to consider any inconsistencies in the evidence. The Tribunal considered that Ms Oldstein did not rectify the issue about failing to consider whether Ms A and the witnesses were reliable as a result of alcohol consumption. Nor did she consider the fact that all the witnesses had discussed the events before reporting them to their managers. She also continued to rely on the apology which was written without full knowledge of the allegation.[64]The Tribunal considered that Ms Oldstein in particular failed to consider whether Ms A giving a more detailed and possibly embellished account of the evening a further two months after the event, could be more reliable than the contemporaneous account. Ms Oldstein relied upon the ‘authenticity’ with which Ms A gave her more detailed account, as the basis for making her decision to accept this evidence.[65]The Tribunal also considered Ms Oldstein’s evidence that detailed evidence from the Claimant’s GP would not have made a difference, as it was the Claimant’s responsibility to modify his drinking. She considered that the Claimant had been drinking excessively and this was his choice of behaviour. This evidence indicated that Ms Oldstein did not engage in the appeal in an open minded manner, as she had no idea what explanation the GP might give for the Claimant’s actions/memory, but took the view that it was not worth obtaining. This indicates a predetermination of any response the GP might have given.[66]Ms Oldstein’s view that because this was considered gross misconduct the only outcome was dismissal was also not one which she could justify.
Conclusion
[67]The Tribunal therefore held that the procedure followed by the First Respondent in the inadequate investigation, followed by a lack of scrutiny by both the disciplinary and appeal officers meant that this was not a fair dismissal.[68]The Tribunal considered that serious consideration would have to be given to the position on both Polkey – i.e. what were the chances that the Claimant would have been fairly dismissed, had a reasonable and fair procedure been applied, and the level to which the Claimant’s conduct contributed to his dismissal. This was pleaded by the Respondent, but was not addressed by either party in their closing submissions.[69]The Tribunal therefore requests the parties to attend for a one day hearing for the purposes of considering Polkey, contribution and remedy. The parties are requested to complete the attached date listing letters.