Ms F Dewar v Alliance Property Holdings Ltd: 4107407/2023

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4107407/2023

Venue Edinburgh

Hearing 20th August 2024

Between

Ms F DewarClaimant

Alliance Property Holdings LimitedRespondent

Before

Employment Judge McFatridge

Mr Tweedie, lay (instructed by Representative) for claimant

Mr Singer, Counsel for respondent

Date 28 August 2024

JUDGMENT

[1]The Judgment of the Tribunal is that the claimant’s application to amend her claim so as to include claims of age discrimination, sex discrimination and disability discrimination is refused.

[2]A Final Hearing shall take place in order to deal with the claimant’s sole remaining claim of unfair dismissal. ETZ4(WR)

REASONS

Oral reasons were given at the Hearing. CERTIFICATE OF CORRECTION Employment Tribunal Procedure Rules 2024 In accordance with the power set out in Rule 67 of the Employment Tribunal Procedure Rules 2024, Employment Judge Sutherland hereby corrects the clerical mistake(s), error(s)or omissions(s) in the Judgment sent to the parties on 06/02/2025 by deleting: 4107407/2024 and substituting therefore 4107407/2023. A corrected version of the Judgment is attached. Important note to parties: Any dates for the filing of appeals or reconsideration are not changed by this certificate of correction or the corrected Judgment. These time limits still run from the date of the original Judgment, or if reasons were provided later, from the date that those were sent to you. Date: 7 February 2025 Sent to parties 10 February 2025 EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4107407/2023 Held in Edinburgh on 13, 14 and 15 January 2025 Employment Judge M Sutherland Fiona Dewar Claimant Represented by Mr T Tweedie, Lay representative Alliance Property Holdings Limited Respondent Represented by Mr N Singer, Counsel Instructed by Blacks Solicitors LLP JUDGMENT OF THE EMPLOYMENT TRIBUNAL The judgment of the Tribunal is that the complaint of unfair dismissal does not succeed and is accordingly dismissed. REASONS Introduction

[1]The final hearing was held in person. The claimant was represented by a lay representative. The respondent was represented by Counsel. E.T. Z4 (WR)

[2]The claimant made a complaint of unfair dismissal, which was denied by the respondent. In summary she asserted that she was unfairly dismissed following an incident at a convenience store in Danderhall.

[3]The respondent called the following witnesses: Graham Shields (Disciplinary Chair) and Hayley Hutton (Appeal Chair). The claimant gave evidence on her own behalf and called the following witnesses: Barry Hogg (friend) and Laura Pottinger (Daughter).

[4]Evidence in chief was given by recourse to witness statements. The claimant’s witness statements did not describe in the introduction how they were taken, did not contain a statement of truth from the witness, and were not signed and dated. This information was obtained from the witness under oath or affirmation.

[5]The claimant had obtained a witness order requiring the attendance of Brian Henderson. Following discussion it was established he was a hostile witness and the claimant confirmed he was no longer being called.

[6]The claimant had sought a witness order requiring the attendance of Lee Swann which was refused because he was unable to give evidence relevant to the issues to be determined. He did not attend and his witness statement (prepared for this hearing) was not therefore relied upon.

[7]The claimant initially sought to call Terri Mackenzie to evidence that Brian Henderson had asked her to make changes to her initial witness statement (by deletion as noted below). This issue was not raised at any time during the disciplinary process or in her claim. Following discussion this issue was excluded and the claimant elected not to call her. Her witness statement (prepared for this hearing) was not therefore relied upon.

[8]Parties lodged a joint bundle to which supplementary documents were added during the hearing.

[9]The respondent made oral submissions. The claimant made written and oral submissions.

[10]The following initials are used in this judgment - Initials Name Job Title (Relevance) BaH Barry Hogg Family friend (attended hearings) BrH Brian Henderson Regional Risk and Compliance (present during incident) FD Fiona Dewar Shop Supervisor (Claimant) GS Graeme Shields Area Manager (Disciplinary Chair) HH Hayley Hatton Area Manager (Appeal Chair) KM Kenneth MacInnes (Investigation Manager) LP Laura Pottinger Manager (present during incident) LS Lee Swann Manager from Sept 2022 to April 2023 NH Nazir Habib Store Manager (present during incident) TM Terri Mackenzie Colleague (present during incident) List of Issues

[11]There was a discussion at the start of the hearing with a view to identifying the basis upon which the claimant asserted that her dismissal was unfair. That discussion centred around the issues of which the respondent had fair notice having regard the particulars of claim together with the detailed grounds of appeal. In light of that discussion the issues agreed by the parties were as follows – Issues of liabilitya. Was the principal reason for dismissal her conduct?

b. If so, was the dismissal fair or unfair in accordance with s98(4) Employment Rights Act 1996?

c. The respondent asserts that the dismissal was fair in summary because – i) The claimant used foul and abusive language towards colleagues in front of customers on the shopfloor ii) They had a reasonable basis for that belief following a reasonable investigation iii) The decision to dismiss and procedure adopted fell within the range of reasonable responses.

d. The claimant asserts that the dismissal was unfair in summary because – i) She was not given written notice of the investigation meeting. She was not warned that this was a disciplinary process which may result in the termination of her employment. She was not advised that she could be accompanied. ii) The notes of the disciplinary hearing were not signed by the note taker or the claimant and may therefore be inaccurate. iii) There is no policy against swearing and all staff and management swear. iv) Her conduct arose in response to being accused of bullying NH and breaching holiday policy and has not been considered in that context. v) They failed to take into consideration that her perimenopausal symptoms contributed to the incident which exculpated or mitigated her conduct. vi) Dismissal was too harsh - she should not have been dismissed for a first offence Issues of remedy

e. If the respondent did not adopt a reasonable procedure was there a chance that the claimant would have been dismissed in any event? (Polkey v AE Daton Services Ltd

1987 3 All ER 974

f. To what basic award is the claimant entitled? Did the claimant engage in conduct which would justify a reduction to the basic award?

g. What compensatory award would be just and equitable? Was the dismissal caused or contributed to by action of the claimant?

h. Has there been an unreasonable failure to comply with the ACAS Code?

[12]Following discussion it was agreed that the following issues were not being relied upon –a. The claimant was unreasonably barred from entering the shop in 2020;

b. BrH had orchestrated the incident because she had raised an issue with the shop keys;

c. The claimant was off sick and therefore unfit to attend the investigation meeting;

d. The claimant had made a false admission in the investigation meeting;

e. BrH had materially influenced the content of TM’s initial witness statement. Findings in fact relevant to liability

[13]The Tribunal makes the following findings in fact relevant to liability:

[14]The respondent traded as McColl’s and operates convenience shops and newsagents.

[15]The claimant was employed by the respondent from 22 July 2021 to 22 September 2023 as a Supervisor in their Danderhall shop. (She also has a previous period of employment with them prior to 2020).

[16]LS was the manager of the Danderhall shop from September 2022 to April 2023. NH was the manager from August 2023.

[17]An incident occurred in the Danderhall shop on Friday 8 September 2023 involving the claimant, NH and BrH. BrH required the staff who were present to provide a witness statement (the ‘initial witness statements’). He did not obtain a statement from the Claimant’s daughter LP who was present during the meeting but left immediately thereafter. BrH reported the incident and KM was appointed as investigation manager.

[18]On 10 September 2024 BrH sent an email to KM providing a statement of events in the Danderhall store on Friday 8 September 2023. It stated in summary as follows:a. I was in store completing a safe and legal audit. FD (the claimant) enters the store with her daughter to have a look at the rota for the following week as they were both on holiday.

b. initially we were having a bit of banter.

c. FD wanted a word with him and came through the back. She started mouthing off that NH was talking about her to other colleagues and she was not putting up with this shit. I told her to calm down.

d. She said she was not treating him like shit and I said you are. At this point FD lost it and staring shouting and saying she was going to see him now. She stormed out to the front and started bawling at NH do I treat you like shit.

e. I asked her to calm down and when she would not I asked her to leave. Customers were in the store. FD then told me to fuck off. I asked her to leave and told her I would report her behaviour. More verbal abuse came including that we were all snakes. She was pacing in and out of the store in an aggressive manner. She continued to shout and bawl.

f. The CCTV footage shows FD’s actions from 12.45pm to 12.50pm.

g. I have attached statements from NH and TM.

h. TM does not want her name used because she is concerned about FD’s reaction.

i. “Giving FD’s behaviour; not interfering with your investigation I would take someone in with you, I believe FD will react in a similar way to Friday.”

[19]On 8 September 2023 NH provided a handwritten statement signed and dated by him. It stated in summary as follows:a. FD wanted to a word with BrH. They went in the back store. I was serving customers and I heard shouting at the back. She came to me and said am I treating you like

b. BrH came to tell her to calm down and leave the shop. FD told BrH to fuck off. BrH said to leave the shop and he is reporting his. FD said you are all snakes. She left the shop still swearing and shouting again calling us snakes. She called me Paki.

c. She came back to back to the shop front door continuing shouting and bawling.

d. Apparently after it had been signed the following was inserted: she was rude and disrespectful when asking about the rota.

[20]On 8 September 2023 TM provided a handwritten statement signed and dated by her. It stated in summary as follows including any deletions:a. FD wanted to talk to Brian (deleted ‘BrH wanted to talk to her’)

b. When she came back to the front shop she was not happy (deleted ‘BrH try to ask her to calm down’) and started shouting a NH.

c. BrH asked her to calm down because there were some customers in

d. He got called to fuck off and called all of us snake as she left

[21]The respondent’s disciplinary policy provides:… clear explanations will be made, allowing colleagues to respond appropriately; no action will be taken until a thorough investigation and hearing are completed; … notes will be taken at all meetings and copies will be made available; ... When an incident arises, a manager on duty will ask questions to understand the situation and decide next steps. For serious matters, an investigation will take place as soon as possible to establish the facts, to confirm whether there is a case to answer, and whether a disciplinary hearing is appropriate. This can include holding investigations meetings with colleagues, customers or anyone involved with or witnessed the incident; collating and reviewing… CCTV or any other relevant evidence; Colleagues don't require notice to attend an investigation meeting, nor do they need to be invited in writing, given documentation beforehand or have the right to have a representative present. The outcome of an investigation will either be no action; informal action - for minor breaches; formal action - if a disciplinary hearing is required; gross misconduct is an act so serious it may warrant summary dismissal without notice for a first offence.

[22]The respondent’s disciplinary policy provides: “Examples of gross misconduct: an act of misconduct so serious we no longer have enough trust or confidence that a working relationship can be maintained; acts committed, either inside or outside of work,... which make the colleague unsuitable for continued employment. Usually this would be where the act committed has an adverse impact on: the colleague suitability for their position; McColl's or Morrisons brand or reputation, relationships with other colleagues, customers, … fighting, physical assault, verbal or physical abuse, violent, threatening behaviour or unwanted contact... Rude, inappropriate or offensive behaviour or comments towards another person”.

[23]The claimant was called to an investigation meeting with KM on 14 September 2023. She did not receive written notice of that meeting but she was aware that it was a meeting to investigate the incident. Notes were taken of that meeting which were initialled by the claimant to confirm their content. The notes of that meeting provide in summary:a. FD: “I admit that I was shouting and swearing. I called them snakes, snakey bastards, snakey cunts. I deny any racial abuse. I want the police involved;”

b. FD: “I swore like a trooper but I didn’t call him that [a Paki]”; she was advised by KM that the allegation of racial abuse would not be taken any further because there were no witnesses;

c. FD: “I wanted to talk to BrH about why staff were talking about me…He just kept saying NH was leaving it was my fault and I should be nicer to him”;

d. FD: “I went to onto the shopfloor...to ask NH why he was leaving ‘What am I doing to make you leave’ I repeated this 3 time, he doesn’t answer he just seems taken aback; he and BrH made me so angry; BrH said you have to leave the shop and calm down;

e. FD: “I told him to fuck off. I then erupted and called them snakes”; KM: “you told BrH to fuck off”, FD “yes that any many variations”;

f. KM: “This took place on the shop floor in front of customers”; FD “I didn’t see customers”;

g. The CCTV footage was shown. KM: “Looking at the CCTV when you come out of the stock room to post office counter at till 2 you have an altercation, you leave the store, a customer enters the store, you return and ask NH why am I making you leave, he doesn’t answer, more customers enter, several young kids and other customers are now in the store, the argument continues, gesticulating and pointing”;

h. FD: “Nasir told me to piss off…he is consistently lying”;

i. KM: “would you say your behaviour was aggressive”, FD “that day it was normally it is not”;

j. KM “Is there anything else around the events of that day”; FD “we have pretty much covered it”; KM asks if she wants to bring anything else up and she says not;

k. KM notes that it was the issues raised by BrH that triggered her reaction but that she should have instead contacted him to address the situation;

l. he advised her that the matter would proceed to a disciplinary hearing and that she would be suspended.

m. Immediately after the meeting had ended she advised him that she was perimenopausal and this may have contributed in some way to her outburst.

[24]On 14 September 2023 following the meeting she was formally invited to a disciplinary hearing to respond to an allegation of gross misconduct: “following an incident on 8 September 2023 you used foul and abusive language towards colleagues while in front of customers on the shop floor”. She was suspended on full pay. She was provided with investigation notes and the initial witness statements (she was not provided with BrH’s statement). She was advised that CCTV footage was available on request. She was advised of her right to be accompanied. She was provide with a Guide to Representation. She was warned of the risk of dismissal.

[25]GS was appointed as chair of the disciplinary hearing. Prior to the hearing he read the initial witness statements, the notes of the investigation and viewed the CCTV footage which showed that a conversation was taking place between the Claimant, Mr Henderson and Mr Habib whilst other colleagues and customers were present. He inferred from the Claimant’s body language that the conversation was heated.

[26]On 20 September 2023 the claimant attended a disciplinary hearing chaired by GS. The claimant elected not to be accompanied. Notes were taken of that meeting but these were not initialled by the claimant who immediately left the meeting. The notes of that meeting provide in summary:a. GS: “You had a conversation with BrH that got heated”, FD “Yes on my part”:

b. GS: “why did that happen”. FD: “He just didn’t answer me. I kept asking hm ‘What am I doing’…I asked NH…’What am I doing to make you leave’ He looked astonished.

c. BrH said I need to calm down and leave the shop. I told him to fuck off. I left but I came back in and I blew up and called them snakes and snakey bastards”;

d. GS: “Do you think that was the right thing to do”; FD: “No I’m not proud of it”;

e. GS read out to her BrH’s statement; FD: “The first part is a lie, I am calling him a liar on most of that”;

f. FD: “I became agitated because he wouldn’t answer me”;

g. GS: “Is there anything happening in your life which made you behave the way you did”; FD: “I am perimenopausal, I can’t stand liars they are sneaky”;

h. the meeting was adjourned for 30 mins; FD was then advised that GS’s decision was to dismiss her with immediate effect;

i. FD asked for a copy of BrH’s statement and asked why LP wasn’t asked for a statement;

j. FD left the meeting without reading the notes to check and sign.

[27]The claimant was provided with a written outcome of the disciplinary hearing which noted that she was summarily dismissed for using foul language whilst in the shop towards colleagues while in the presence of customers; you indicated you are perimenopausal and this has not been brought to the attention of the business previously. She was advised of her right of appeal.

[28]On 2 October 2023 the claimant submitted the following grounds of appeal in summary:a. “The whole issue has been taken out of context. I was trying to find out my rota for the following week and nobody was giving an answer”

b. “I was not informed that the meeting I was asked to attend could result in my termination of employment”. Had I been informed of the seriousness of the alleged incident I would have brought along a representative.

c. The record of the disciplinary hearing was not signed or initialled by me or the note taker

d. “I informed the investigating manager that I am peri menopausal and have been for some time. This has not been given any consideration at all… I feel within myself this is what may have contributed in some way to my outburst. I am suffering from extreme mood swings… I have been trying to get a doctor's appointment for the last four weeks… I've been trying to find the right moment to share this with my manager”.

e. “Morrisons Daily does not have a specific policy on ‘swearing’ but yet all staff and management swear”.

f. “Prior to my outburst I was a model employee with an almost unblemished record”. The penalty for a first offence is too severe especially since I am not really in control of my emotions at the moment.

[29]HH was appointed as chair of the appeal hearing. Prior to the hearing she read the initial witness statements, the notes of the investigation and disciplinary hearing. She had a discussion with KM, Investigation Manager and GS, Disciplinary Chair about the grounds of appeal. The CCTV footage was no longer available. The claimant was invited to an appeal hearing.

[30]On 8 November 2023 the claimant attended an appeal hearing chaired by HH. The claimant was accompanied by a friend, BaH. BaH was advised that he was unable to answer questions on the claimant’s behalf. Notes were taken of that meeting which were initialled by the claimant to confirm their content. The notes of that meeting provide in summary:a. FD: BrH kept saying I was the reason NH was leaving.

b. HH established that the Claimant had received written notice of the disciplinary hearing which warned of the risk of dismissal and advised of the right to be accompanied.

c. FD: I could have been called back to sign the minutes. HH: is there anything in the minutes you disagree with? FD: I would have to read them again.

d. HH: You advised being perimenopausal and been trying to get an appointment for 4 week. FD: Been feeling menopausal for 2 ½ years. HH: Did you speak to HR? FD: Not about this. HH: Have you had previous outbursts? FD: Yes with Carl – he told me to calm down and to come back – I did that

e. FD: everyone swears – the customers and colleagues. HH: Language was aggressive and abusive; there were customers present.

f. HH: Have you and BrH had any issues? FD: I thought we were fine although an issue with missing keys.

g. FD: I had one blowout and they put me out the door. HH: You should have left and raised the issue with your manager.

[31]HH discussed the grounds of appeal with HR. HH noted that the claimant had not sought any medical help regarding her menopausal symptoms prior to the disciplinary investigation which suggested they were not serious. She thought the claimant could have been more remorseful. The claimant was advised the outcome of the appeal on 8 November which was followed up in writing on 9 November 2023. HH refused her appeal and upheld the decision to dismiss noting the following in summary:a. A letter was issued to you by GS outlining outcomes and right to representation.

b. You left the meeting quite promptly and did not raise any inaccuracies with the minutes.

c. You mentioned being perimenopausal after the investigation meeting had concluded and you hadn’t disclosed it to anyone else prior. Whilst it can affect your mood, the foul language and agitation you displayed is not behaviour we can condone

d. The handbook states you are expected to avoid distressing and offending others. You admit using foul language and becoming agitated towards your store manager on the shop floor in front of customers and colleagues. Observations on the evidence on liability

[32]The standard of proof is on balance of probabilities, which means that if the Tribunal considers that, on the evidence, the occurrence of an event was more likely than not, then the Tribunal is satisfied that the event did occur. Facts may be proven by direct evidence (primary facts) or by reasonable inference drawn from primary facts (secondary facts).

[33]The evidence of GS was consistent with the contemporaneous minutes of the disciplinary meeting and there was no reason to doubt his credibility and reliability.

[34]GS stated that it was not unusual for a manager to on site to arrange for statements to be taken. This is consistent with their disciplinary policy. He had noted that BrH had advised the investigating manager KM to take someone with him because he believed FD would react in a similar way. GS accepted in cross examination that BrH should probably not have made that comment in the email that also set out his witness statement but he didn’t see it as relevant. The investigation meeting with the claimant had been held by an independent manager KM and during the investigation meeting the claimant readily admitted to the conduct.

[35]GS accepted in cross examination that with the benefit of hindsight perhaps KM should have taken statements but there was no need for supplementary statements because the claimant had admitted the conduct. He did not consider that she had been provoked by BrH and NH to react in that way – it was not a normal reaction in the circumstances. He accepted that staff sometimes swear but it was the manner and context. He had not asked the claimant to sign the minutes of the meeting because she had stormed out.

[36]The evidence of HH was consistent with the contemporaneous minutes of the appeal hearing and gave no reason to doubt her credibility and reliability.

[37]It was put to HH in cross that BrH’s warning to the investigation manager was biased and he had tainted the disciplinary process by making that comment and by taking the initial witness statements. HH stated in response that she did not consider his comment particularly important and it was customary for manager at the store to arrange for statements to be given then and there - there was no need for supplementary statements given FD’s own admission.

[38]It was put to HH in cross that LP (the claimant’s daughter) should have been asked to provide a statement. HH noted that LP had left the shop with FD but that KM could have asked her if required.

[39]BaH and the claimant stated in evidence that BaH was informed by HH that he wasn’t allowed to speak. BaH said that he was only there as basically a comfort blanket for the claimant. He asserted that the only time he was allowed to speak was to confirm his name and to console the claimant. This was put to HH in cross who denied this under explanation that he was told he was unable to answer questions on the claimant’s behalf during the meeting. The respondent has a guide to representation which it provided to the claimant. HH has significant experience in dealing with disciplinary and appeal hearings. It is standard practice to advise a colleague or representative that they cannot answer questions of an employee’s behalf. In these circumstances it is considered more likely that BaH was not advised that he wasn’t allowed to speak but he formed that impression because he was told he was not able to answer questions on her behalf.

[40]BaH stated in evidence that HH stated before the start of the meeting that she found the claimant’s swearing unacceptable. This was put to HH in cross who denied this under explanation that the claimant asked before the start of the meeting why the meeting was taking place (which is corroborate by BaH). HH stated she had reminded the claimant of the reason for the meeting – she had been dismissed for using foul and abusive language towards colleagues in front of customers and she was appealing that decision. HH has significant experience in dealing with disciplinary and appeal hearings. In these circumstances it is considered more likely that HH did not state before the start of the meeting that she found the claimant’s swearing unacceptable but BaH formed that impression because HH reminded the claimant of the reasons for her dismissal.

[41]It was put to HH is cross that the decision to dismiss was inconsistent because NH was not disciplined for telling her to “piss off”. She explained that NH had already resigned and no action could be taken.

[42]The claimant asserted in cross examination that she did not look at the CCTV footage when it was shown to her. The investigation minutes do not record that the claimant refused to look at the footage. The claimant had during the disciplinary process noted in her own handwriting the relevant position of each of the cameras. The claimant stated in chief “I was shown some CCTV footage but not all of the incident from Friday”. In the circumstances it is considered more likely that than not that the claimant had looked at the CCTV footage when it was shown to her and her evidence on this issue was not credible.

[43]It was put to the claimant in cross examination that her conduct amounted to verbal abuse which she initially denied and then ultimately admitted. She also reluctantly admitted that her conduct amounted to misconduct. She admitted that if customers were present that made it more serious and that it would be gossiped about in the local community. She thought she should have got a final warning rather than dismissal. Findings in fact relevant to remedy

[44]The tribunal makes the following findings of fact relevant to remedy-

[45]On 8 September 2024 the claimant was on annual leave. She entered the store with her daughter, LP (who is also employed by the respondent) to check the rota for the following week. FD sought to have a word with BrH about NH and they went to the stock room. During that discussion BrH said that she was the reason that NH was leaving. FD was upset and she went to ask NH why he was leaving. She asked him multiple times and he refused to answer. The claimant was shouting, angry and aggressive. BrH told the claimant to calm down and to leave the shop. FD told BrH to “fuck off”. FD went to the front door and called them “snakes, snakey bastards; snakey cunts”. There were customers in the shop including children. The incident lasted around 4 minutes.

[46]The claimant had been experiencing menopausal symptoms for a few years but these were mild and did not materially contribute to the incident.

[47]At the time of her dismissal the claimant was paid £2,200 gross a month; £512 a week. The respondent paid 3% into a pension plan.

[48]The claimant was certified as unfit for work on account of low mood and menopausal symptoms until 1 March 2024

[49]From 23 November 2023 until 7 October 2024 the claimant was in receipt of universal credit of £6,008.42.

[50]The claimant applied for one job in the period from March to September 2024. There were other jobs available that were suitable for her.

[51]From 2 September 2024 the claimant has been on a 6 month placement with Midlothian Council earning £1204 gross a month. The claimant has not applied for other work during that placement. Observations on the evidence on remedy

[52]The standard of proof is on balance of probabilities, which means that if the Tribunal considers that, on the evidence, the occurrence of an event was more likely than not, then the Tribunal is satisfied that the event did occur. Facts may be proven by direct evidence (primary facts) or by reasonable inference drawn from primary facts (secondary facts).

[53]The claimant gave evidence in summary that on 8 September 2023: I had asked BrH for a quick word, he directed me to the stock room; I asked why NH was being naughty to LP, BrH replied that we should not have been off work at the same time; he then aggressively said it was my fault NH was leaving; I asked NH what am I doing to make your leave; I was upset because I felt I had been blamed for something I hadn’t done; BrH then told me to leave the shop; I told him to fuck off; I went to the front door and called them snaky bastards.

[54]During the investigation meeting the claimant said she called them “snake-y bastards; snake-y cunts” during the incident. At this hearing the claimant’s representative sought to advance an argument that the Claimant had falsely admitted this because of duress/ menopause. The claimant did not raise this issue on appeal, in her claim, or in her witness statement and this issue was not put to the respondent witnesses. It subsequently transpired that the claimant’s representative had suggested this to her immediately prior to this hearing because that phrase did not appear in the initial witness statements.

[55]The claimant in cross examination denied having called them “snake-y bastards; snake-y cunts” during the incident. Neither BrH, NH’s or TM’s investigation statements referred to this phrase being used. TM’s statement was very brief and was not a full account of the incident. BrH’s investigation statement repeatedly referred to verbal abuse but he did not describe the words used. Likewise NH’s investigation statement referred to swearing but again did not described the words used. The initial witness statements are therefore not inconsistent with the claimant’s admission. When the claimant stated during in the investigation meeting that she had used this phrase it was without any prompting. She was unable to explain in cross examination why she stated that. When asked in the investigation if she told BrH to “fuck off” she said “yes that and many variations”. It is therefore considered likely that the claimant did say “snakey bastards; snakey cunts” during the incident and the claimant’s evidence on this issue was not credible.

[56]BrH described the claimant as having lost it, shouting and bawling, pacing in and out in aggressive manner. NH described her as shouting. TM described her as not happy and shouting. According to the investigation and disciplinary managers the CCTV footage showed that the claimant was upset and aggressive. In the investigation meeting the claimant stated that she was shouting, angry and aggressive and ultimately she erupted. In evidence in chief the claimant stated she was upset. She accepted in cross examination that she was upset and angry. In cross examination she initially admitted she was shouting and then subsequently denied it. It was put to the claimant that she had erupted which she denied despite her having used that phrase during the investigation meeting. It was put to the claimant was she was aggressive which she initially denied, then said it was a bit harsh and ultimately challenged its meaning. The claimant’s evidence on the issue was not reliable in light of these inconsistencies. It is considered likely that the claimant was shouting, angry and aggressive during the incident.

[57]The claimant’s daughter LP gave evidence in summary that her mother sought a meeting with BrH which they had in the stock room, her mother then asked NH what she had done to make him leave, he replied multiple times that it has nothing to do with me which made her upset, BrH returned from the stock room and asked my mother to leave and to calm down, my mother replied telling BrH to fuck off then she left the shop, my mother then return to the doorway of the shop and called them all snakes and liars, NH followed us outside and told my mother to piss off.

[58]Various issues were put to LP in cross which she denied: that her mother was shouting and aggressive during the incident; that she had said snakey bastards; snakey cunts; that there were customers in the shop when she swore. At times LP was categoric about what had happened and at times she said she unsure because she wasn’t paying attention e.g. she initially denied that her mother was shouting but she subsequently couldn’t recall if she raised her voice because she wasn’t paying attention, she then latterly stated she didn’t know if she shouted. Her initial denial that her mother was shouting was wholly inconsistent with the other evidence.

[59]LP first prepared notes of the incident in January 2024, 4 months after the incident. LP is employed by the respondent now as a Manager. She appeared to be a bright and highly capable individual. She was in the invidious position of trying to do right by both her mother and her employer and she sought to walk a careful path when giving evidence. Given the passage of time, the conflict of interest, and the inconsistencies, her evidence was not considered to be wholly reliable.

[60]The claimant was aged 50 at the time of the incident on 8 September 2023. The claimant stated in evidence that she had been suffering from (peri) menopausal symptoms for a few years which may have contributed to the incident. On 9 October 2023 the claimant attended her GP and described hot flushes, sweats, emotional labile and irritability. She was prescribed antidepressants. On 13 November 2023 the claimant was prescribed HRT for menopausal symptoms. It is considered likely that the claimant was suffering from menopausal symptoms at the time of the incident because she was aged 50 and was prescribed hrt shortly thereafter. It is considered likely that these symptoms were mild because she did not seek any medical advice from her GP about these symptoms until after the incident. She said in cross examination that the incident was a one-off – that she had never behaved like that before or after the incident. It is therefore considered likely that her menopausal symptoms did not materially contribute to the incident.

[61]The claimant’s schedule of loss stated (without explanation) that the claimant was earning £2,243 gross a month; £518 a week (£34,853/ 67.3 weeks). The respondent’s counter schedule of loss states that the claimant was earning £2,200 gross a month; £512 a week (under explanation the claimant was contracted to work 42 hours a week and to be paid £12.20 an hour). The claimant’s payslips state she was paid £13,471.83 gross over 45 weeks to 10 September 2023. She was paid £12.90 an hour. She was accordingly paid £1,297 gross a month (100 hours); £299 gross a week (23.17 hours). Notwithstanding the payslips the respondent’s more generous figures are relied upon.

[62]The respondent put to the claimant a list of job vacancies arising in the period 4 October 2024 to 5 November 2024 some of which the claimant accepted were suitable employment opportunities for her. The law Unfair dismissal

[63]Section 94 of Employment Rights Act 1996 (‘ERA 1996’) provides the claimant with the right not be unfairly dismissed by the respondent.

[64]It is for the respondent to prove the reason for the claimant’s dismissal and that the reason is a potentially fair reason in terms of Section 98 ERA 1996. A reason for dismissal is a set of facts known to the employer, or beliefs held by him, which cause him to dismiss the employee (Abernethy v Mott, Hay and Anderson

1974 ICR 323

, CA). If the reason is in dispute, the Tribunal must either make findings in fact on balance of probabilities as to what conduct caused the employer to dismiss or find that the employer has failed to discharge the burden of proving the reason. At this first stage of enquiry the Respondent does not have to prove that the reason did justify the dismissal merely that it was capable of doing so.

[65]The reason for dismissal is determined at the time of the decision to dismiss and not at the time of the internal appeal. However the issue of the fairness of that decision encompasses consideration of the whole process including any internal appeal and thus may take into account evidence relevant to that reason which emerges in the course of an internal appeal (West Midlands Cooperative Society Ltd v Tipton

[1986] ICR 192

, HofL).

[66]Where there are multiple reasons for dismissal the employer must establish the principal reason. The principal reason may encompass one reason or multiple reasons which are said to justify the dismissal cumulatively or individually.

[67]If the reason for the dismissal is potentially fair, the Tribunal must determine in accordance with equity and the substantial merits of the case whether the dismissal is fair or unfair under Section 98(4) ERA 1996. This depends whether in the circumstances (including the size and administrative resources of the respondent’s undertaking) the respondent acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the claimant. At this second stage of enquiry the onus of proof is neutral.

[68]Equity in this context is equivalent to fair play (e.g. that there should be a degree of consistency of treatment). It is part of and not separate to the test of reasonableness and is subject to the range of reasonable responses test. Inconsistency of treatment in sufficiently similar cases may support a complaint that it was not the real reason for dismissal or may be relevant to the fairness of the decision to dismiss (including that it has created a false sense of security) (Hadjioannou v Coral Casinos Ltd

1981 IRLR 352

, EAT).

[69]If the reason for the Claimant’s dismissal relates to conduct, the Tribunal must determine that at the time of dismissal the Respondent had a genuine belief in the misconduct and that the belief was based upon reasonable grounds having carried out a reasonable investigation in the circumstances (British Home Stores Ltd v Burchell

[1978] IRLR 379

[1980] ICR 303

[70]In determining whether the respondent acted reasonably or unreasonably the Tribunal must not “substitute itself for the employer or to act as if it were conducting a rehearing of, or an appeal against, the merits of the employer's decision to dismiss. The employer, not the tribunal, is the proper person to conduct the investigation... The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response” (Foley v Post Office; Midland Bank plc v Madden

[2000] IRLR 827

) The Tribunal must not substitute its own view as to what it would have done in the circumstances. Instead the Tribunal must consider the range of reasonable responses open to an employer acting reasonably in those circumstances.

[71]The tribunal is not conducting a rehearing or an appeal but determining whether the decision to dismiss was procedurally and substantively fair. The range of reasonable responses test applies both to the procedure adopted by the respondent and the fairness of their decision to dismiss (Iceland Frozen Foods Ltd v Jones

[1983] ICR 17

(EAT)). The need to investigate mitigation depends upon the degree of relevancy to sanction, whether the employee advanced any evidential basis which merited further inquiry, and the extent to which it could have revealed information favourable to the employee (Tesco Store Ltd v S EATS 0040/19).

[72]In determining whether the respondent adopted a reasonable procedure the Tribunal should also consider whether there was any unreasonable failure to comply with their own policies and procedure and the ACAS Code of Practice on Disciplinary and Grievance Procedures. The Tribunal should consider whether any procedural irregularities identified affected the overall fairness of the whole process in the circumstances having regard to the reason for dismissal (Taylor v OCS Group Ltd

[2006] IRLR 613

[73]Any provision of an ACAS Code of Practice which appears to the Tribunal may be relevant to any question arising in the proceedings shall be taken into account in determining that question (Section 207, Trade Union and Labour Relations (Consolidation) Act 1992). The ACAS Code of Practice on Disciplinary and Grievance Procedures provides in summary that: employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions; employers and employees should act consistently; employers should carry out any necessary investigations, to establish the facts of the case; 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; employers should allow employees to be accompanied at any formal disciplinary or grievance meeting; employers should allow an employee to appeal against any formal decision made.

[74]Compensation is made up of a basic award and a compensatory award. A basic award, based on age, length of service and gross weekly wage, can be reduced in certain circumstances.

[75]Section 123 (1) of ERA provides that the compensatory award is such amount as the Tribunal considers just and equitable having regard to the loss sustained by the claimant in consequence of dismissal in so far as that loss is attributable to action taken by the employer.

[76]Section 123(6) ERA provides that where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.

[77]Where a procedural irregularity renders a dismissal unreasonable it is not relevant to the question of fairness that a proper procedure would have made no difference unless, in exceptional circumstances, it was utterly futile or useless (Polkey v AE Dayton Services Ltd

[1987] IRLR 503

(HL)). However such considerations are relevant to whether it would be just and equitable to award compensation. Tribunal requires to engage in degree of speculation in assessing the percentage chance and timing of the claimant being fairly dismissed had a proper procedure been followed. Respondent’s Submissions

[78]The respondent’s oral submissions were in summary as follows -a. The dismissing manager held a reasonable belief the claimant had engaged in protracted verbal abuse towards two colleagues in the presence of other staff and customers including children

b. There were reasonable grounds to sustain that belief particularly in light of the CCTV footage and claimant’s admissions. It is their standard practice for a manager on site to arrange initial statements. There was no need for supplementary statements given the claimant’s admissions.

c. The ACAS code and the respondent’s disciplinary process does not require written notice of an investigation meeting

d. Verbal abuse was expressly described as gross misconduct in the disciplinary policy. It was accepted that the verbal abuse was triggered by the criticisms of BrH but that was not suitable mitigation

e. The claimant raised menopausal symptoms as an afterthought. They conclude her symptoms were insufficiently serious to mitigate her behaviour.

f. The claimant showed no remorse for her conduct and considered she had done nothing wrong

g. The decision to dismiss fell squarely within the range of reasonable responses. It was thoroughly reviewed and upheld on appeal.

h. If the claimant was unfairly dismissed (which is denied) her blameworthy conduct wholly caused or contributed to her dismissal and the basic and compensatory award should be reduced by 100%

i. The claimant has failed to take reasonable steps to mitigate her losses by applying for only 1 job in a year (Cooper Contracting Ltd v Lindsey

UKEAT/0184/15/JOJ

) Claimant’s Submissions

[79]The claimant’s oral and written submissions were in summary as follows -a. The incident was triggered as a result of serious allegations (that she had bullied NH) which upset the claimant and this explained and excused her subsequent behaviour

b. The claimant was menopausal and this was a contributory factor. She was diagnosed and medicated shortly after the incident and therefore must have been suffering from menopausal symptoms during the incident.

c. She was ambushed during the investigation meeting which was a fishing expedition to persuade her of her guilt (Retirement Security Ltd v A Wilson

UKEAT/0019/19

d. The claimant was completely honest about her behaviour and was remorseful.

e. BrH was the instigator and accordingly should not have taken statements from witnesses – they should have been taken by someone independent; his own version was incomplete (no mention of NH swearing); and no initial witness statement was taken from LP

f. The comments made by BrH to the investigating manager (“I would take someone in with you, I believe FD will react in a similar way”) tainted the entire disciplinary procedure rendering it impartial. Early bias renders a fair process impossible (Dronsfield v University of Reading

UKEAT/0255/18/LA

g. The claimant did not receive written notice of the investigation meeting and was not warned that the outcome of this meeting could result in her dismissal

h. The outcome of the investigation meeting was issued immediately and was therefore predetermined

i. All staff and customers swear. Dismissal was unreasonable and a final written warning would perhaps have been more appropriate Discussion and decision

[80]The reason for the claimant’s dismissal was not in dispute. It was her conduct during the incident of 8 September 2024. Conduct is a potentially fair reason for dismissal. It is therefore necessary to determine in accordance with equity and the substantial merits of the case whether her dismissal was fair or unfair. The tribunal must consider: whether there was a genuine belief in the misconduct that was based upon reasonable grounds having carried out a reasonable investigation; and whether the decision to dismiss is a reasonable response. The tribunal must not substitute its own view but must instead consider whether the procedure adopted and the decision to dismiss fell within the range of reasonable responses open to an employer acting reasonably in the circumstances.

[81]The respondent is a large employer with significant administrative resources including a dedicated HR function. The respondent has a disciplinary procedure and the respondent acted in compliance with it.

[82]In line with that procedure and their standard practice, BrH required the staff who were still on site after the incident to provide initial statements. Notwithstanding his involvement in the incident it was not unreasonable for him to do so. LP, the claimant’s daughter, was no longer on site and was accordingly not required to do so. These initial statements were brief and incomplete and supplementary statements could have been taken during the formal investigation if required. There was however no reasonable requirement to do so in light of the claimant’s admissions during the formal investigation.

[83]BrH advised the investigating manager KM to take someone with him because he believed FD would react in a similar way. The disciplinary manager GS accepted that this advice should not have been contained within the email that also set out his initial witness statement. However both he and the appeal manager HH considered this was advice to another manager which was irrelevant. The claimant did not allege on appeal or in her claim that this advice had unduly influenced KM, or that he had conducted the investigation in a biased manner, and there was no evidence to this effect (see below).

[84]The claimant submitted that the BrH’s initial statement was one sided. His initial statement acknowledged that they were initially “having a bit of banter;” he admitted himself he said “You are treating him [NH] like shit”, and he noted that LP her daughter did not at any point get involved. It does not therefore appear to be a one-sided account. It was arguably incomplete (it did not describe the verbal abuse in detail) but there are no material inconsistencies which would have reasonably indicated to those managing the disciplinary process that it was one-sided.

[85]The claimant was called to an investigation meeting with KM. The claimant did not receive written notice of the investigation meeting but this was in line with the respondent’s disciplinary procedure and their standard practice. She was fully aware that the purpose of that meeting was to investigate her conduct during the incident. Whilst ACAS guidance indicates that written notice amounts to best practice this is not a requirement of the ACAS Code. Some employers would have given written notice of such a meetings; some employers acting reasonably in the circumstances would not. The claimant submits that she was not warned of the risk of dismissal or advised of her right to be accompanied. There was however no risk of dismissal at that meeting and therefore no right to be accompanied.

[86]Having regard to the notes of the investigation meeting, which the claimant confirmed as accurate, KM regularly asked open questions ( “what happened next”; “can you explain what you mean”) and the investigation meeting appeared to have been conducted in an entirely balanced and reasonable manner. During the investigation meeting the claimant admitted: that she called them “snakes, snakey bastards, snakey cunts”; that she told BrH to “fuck off”; that she was aggressive and shouting. The CCTV footage showed that that the incident had lasted about 4 minutes, that she was gesticulating and pointing, and that there were customers and young children in the store.

[87]On the same day she was invited to a disciplinary hearing to respond to an allegation of gross misconduct that she used foul and abusive language towards colleagues while in front of customers on the shop floor. At the disciplinary hearing GS asked if there was anything which made her behave in that way – the claimant had adequate opportunity to respond to the allegations and to explain her behaviour. The claimant left the meeting before the minutes could be signed and she did not raise any issue with their accuracy on appeal or otherwise.

[88]The claimant submitted that her conduct was triggered by the serious criticisms made by BrH and that this excused or mitigated her conduct. Whilst the dismissal and appeal officers recognized this trigger they did not consider this to be sufficient excuse or mitigation for her behaviour. Whilst this explained her upset, it was not unreasonable for a disciplinary or appeal manager to consider that this did not explain or justify the verbal abuse of the manager that followed.

[89]The claimant submitted that her menopausal symptoms were a contributory factor. Whilst the disciplinary and appeal managers accepted that she may be menopausal they did not consider her symptoms had caused or contributed to her behaviour and that was not an unreasonable conclusion. She did not provide any details until her appeal when she noted that she had been menopausal for some time (including extreme moods swings) but she had not yet seen her GP.

[90]The claimant submitted that all staff swear, her dismissal was too harsh and a final written warning may have been more appropriate. The disciplinary and appeal manager considered that it was the nature and context of her swearing (using foul language in an aggressive manner towards colleagues in front of customers) which justified her dismissal. That was not an unreasonable decision. The disciplinary policy expressly described verbal abuse as gross misconduct entitling them to dismiss without notice for a first offence.

[91]In the circumstances (including their size and administrative resources) the respondent acted within the range of reasonable responses in treating the claimant’s conduct as sufficient reason to justify her dismissal. The procedure adopted in reaching that decision also fell within the range of reasonable responses having regard to the reason for dismissal. Accordingly the dismissal was fair in accordance with Section 98 of the Employment Rights Act 1996. Conclusion

[92]In conclusion the complaint of unfair dismissal does not succeed and is accordingly dismissed. 06/02/2025