Mr B O’Connor v The Watches of Switzerland Group plc: 4107434/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4107434/2024Venue GlasgowHearing 28 and 29 July 2025
Between
Mr B O’ConnorClaimantThe Watches of Switzerland Group PlcRespondent
Before
Employment Judge N M HosieMs J Barnett for claimantHolly Blue Employment for claimantLaw for claimantMr M Haworth (instructed by Solicitor) for respondentDate 25 August 2025
JUDGMENT
The Judgment of the Tribunal is that the claim is dismissed.
REASONS
[1]Blaine O’Connor, claimed that he was unfairly dismissed by the respondent Company, The Watches of Switzerland Group Plc (“WOSG”). The respondent admitted the dismissal but claimed that the reason was conduct, “gross misconduct”, and that it was fair.[2]The respondent is a retailer of jewellery and time pieces. The claimant was employed as Sales Floor Manager in its “Rolex Boutique” in Glasgow. Following a whistleblowing complaint about the claimant’s behaviour, and in particular an allegation that he had been consuming alcohol in the shop premises, the respondent initiated a disciplinary procedure which resulted in the claimant’s dismissal. The claimant maintained that the consumption of alcohol was, “taken out of context and wholly influenced by a permissive work environment whereby management tolerated the behaviours now alleged to amount to gross misconduct” and he believed that this “Company culture” had “impacted his actions.” It was also maintained by the claimant’s representative that not only was the dismissal substantively unfair, but also that the respondent had failed to follow a fair procedure, in that they had not carried out a proper investigation, particularly when it came to interviewing potential witnesses.
The evidence
[3]On behalf of the respondent I heard evidence from:- Boyd Anderson, Director and Showroom Manager, who took the decision to dismiss; Ashok Pankhania, Regional Director, who heard the claimant’s appeal against his dismissal. I then heard evidence from the claimant. A joint bundle of documentary productions was submitted by the parties (“P”), along with a “Chronology of Undisputed Events”. Observations on the evidence[4]The respondent’s witnesses were both experienced Managers. They gave their evidence in a measured, consistent and convincing manner. They were open, not evasive or guarded, in any way. Each was prepared to make concessions in cross-examination. There was no suggestion that they were other than impartial. They were not part of the claimant’s management structure. In my view, they both presented as credible and reliable.[5]However, there were certain aspects of the claimant’s evidence which were inconsistent and neither credible nor reliable. In particular, the evidence which he gave about his conduct on 27 July 2024 which the respondent found amounted to gross misconduct. This is dealt with more fully below. His evidence about the timing and his explanation as to why he had left customers in the showroom, gone to his office and poured malt whisky into a coca cola can, which on investigation by the respondent was captured on CCTV, was inconsistent and not credible and reliable. In evidence he said that it was a “spontaneous action” and that he “didn’t like it”. However, in his “Grounds for Appeal” he claimed that he “quickly thought better of my actions and, after one sip did not consume any more” (P.140). I remained unclear as to why he had done so.[6]He also claimed that he did not have knowledge of the claimant’s Policies but he was in a managerial position and he referred to the respondent’s Code of Conduct and Hospitality & Alcohol Policy when responding, in writing, to his suspension, invitation to the disciplinary hearing and the allegations of misconduct (P122-124.)[7]These inconsistencies led me to treat the claimant’s evidence, in general, with some caution.
The facts
[8]Having heard the evidence and considered the documentary productions, I was able to make the following findings in fact.[9]The respondent is a retailer of jewellery and time pieces, trading in the United Kingdom under the brands of Goldsmiths, Mappen & Webb and Watches of Switzerland. The respondent also operates a number of “Monobrand Boutiques”, each of which sells watches produced by a single manufacturer. These include the Rolex Boutique in Buchanan Street, Glasgow (“the Boutique”). The claimant was employed there from 10 August 2009 until 23 August 2024 as Sales Floor Manager. His Contract of Employment was one of the productions (P.60-65). At the relevant time, David Ferguson was the Manager and the claimant was his Deputy. The claimant was in charge of the Boutique, therefore, when Mr Ferguson was away. Whistleblowing complaint[10]On 29 July 2024, the respondent received an anonymous complaint, about the claimant drinking alcohol in the Boutique while at work, through its whistleblowing platform, “Safecall” (P.88). This is an independent reporting system that allows employees to report incidents of alleged wrong doing. The following are excerpts from the Report:- “Report Details 1. The following details were received via Safecall’s web platform dated 29/07/24 18:34. Blaine O’Connor, Sales Manager of Boutique, Glasgow has been consuming alcohol on the shop floor as well as at the back office. He is telling staff members to pour him glasses of whisky which he keeps in his desk drawer. At few occasions (sic) he got drunk with his family and his clients on the shop floor. A recent incident took place on Saturday 27 July 2024 at 5:39pm. Expectations of person reporting: I’m concerned about his drinking problem as well as behaviour towards staff. I think that should stop as its affecting everyone’s wellbeing and safety. Has the person reporting raised the concern(s) internally?: No. Why did the person reporting choose to be anonymous?: Because I am worried I may lose my job or be bullied by my manager.”[11]The complaint was referred to the Boutique Manager, David Ferguson, who viewed the CCTV for the whole day of 27 July 2024. On 30 July, he reported his findings by email to Marcus Robertson, Regional Director (P.92-93). The following are excerpts:- “Initial summary: 1. Although Blaine had a few breaks during the day the longest he was out was 5 minutes. Ostensibly for a cigarette. Not enough time to get a drink from the local pub. 2. During the day he served a few clients, but did not drink with them on the shop floor. 3. During the day I saw him drinking two cans of coke plus a glass of water. 4. His last client came into the VIP area at 1620 and left at 1735. Once they had left at 1736 Blaine hands a bottle of whisky from under/within his desk and Ewelina puts some in a glass with water. Blaine drinks it behind the scenes awaiting Ting Ting’s last client to leave the showroom a few minutes later. Additional finding: Due to the seriousness of the allegation I went through the day’s CCTV footage a second time, and caught an incident I had initially missed. During his interaction with his last client (who came in at 1620 and left at 1735) Blaine left the interaction and went down to his desk at the client experience area. It was quick and I nearly missed it as it was done quickly and furtively. At 1645 he took out a boxed bottle of Glenmorangie and quickly poured some into his can of coke that was still on the desk while no colleagues were about. He quickly put the top back and put it under his desk/in the desk drawer. (This was the same bottle he gave to Ewelina at 1736 hrs). He wiped the top of the can with a napkin he then disposed off and drunk from the can. At 1735 he reengaged with his clients as they left the showroom. I’ve sent the timed image still from the CCTV footage to you on WhatsApp.”[12]The “timed image still” was one of the documentary productions (P.114). Suspension[13]Nicola Edwards, Showroom Director, was appointed to carry out an investigation. She was not part of the claimant’s management structure. On 1 August 2024, she wrote to the claimant to confirm his suspension from work (P.94-95 ). Investigation[14]She interviewed and took statements from four of the claimant’s colleagues in the Boutique: Ting Ting Gu (P.96-99); Zoe Kourkourlou (P.100-104); Elaine McGhee (P.105-108); and Ewelina Wisniewska (P.109-113). It emerged in the course of Ms Edwards’ investigation that there were two further allegations of the claimant drinking alcohol in the Boutique, on 30 March 2024 and 5 April 2024, in addition to 27 July 2024. Disciplinary[15]Boyd Anderson, Showroom Director, was appointed to conduct the Disciplinary. He was provided with the statements and Mr Ferguson’s Report. On 14 August 2024, he wrote to the claimant to invite him to attend a disciplinary hearing on 16 August 2024 (P.115-116). The venue was chosen as it was close to the Boutique and was known to the claimant.[16]In his email, Mr Anderson specified the allegations: “ On 30 March 2024 it is alleged that you were intoxicated with your family whilst the Duty Manager of the Boutique, Glasgow drinking WOSG purchased alcohol on the sales floor; On 5 April 2024 it is alleged that you were intoxicated on the sales floor after drinking with clients whilst the Duty Manager of the Boutique, Glasgow, to the extent your colleagues stayed to ensure the Boutique was locked securely as you appeared incapable; On 27 July you were seen on CCTV pouring whisky directly into a can of coke whilst Duty Manager of the Boutique, Glasgow.”[17]He enclosed with his email Mr Ferguson’s CCTV findings dated 31 July 2024; the notification of his suspension; the statements from the four witnesses; and the CCTV still image.[18]He also said this in his email:- “The following policies in relation to this meeting can be found on One: Watches of Switzerland Disciplinary Policy (One - Policies & Procedures – HR Recruitment & Business P&Ps Disciplinary Policy); Watches of Switzerland Hospitality & Alcohol Policy (One – Policies & Procedures – HR/Business/Legal – Hospitality & Alcohol Policy).” Respondent’s Policies[19]The respondent’s “Hospitality & Alcohol Policy” was included in the bundle (P.66-68). It contained the following provisions:- “The Serving of Alcohol We may serve alcohol; free of charge; to clients who are over the legal age limit to consume alcohol in all showrooms (except in the Netherlands – until further notice) as long as it is not on condition they purchase anything. Consumption of Alcohol by Colleagues The WoS Group colleagues are not permitted to consume alcohol beverages on Company premises. If a client invites you to participate in a celebratory drink in work time, join them with a non-alcoholic beverage. The same rule applies to external client events that take place during work time if you are going to be returning to your duties following the event. If that is not the case it may be acceptable for you to accept a drink, but this must be in moderation. Please ensure you follow the guidelines set out in the Code of Ethics policy.” Code of Ethics[20]This was also included in the bundle (P.69-77). Disciplinary Policy[21]This was also included in the bundle (P.78-86). Disciplinary Hearing[22]As it transpired, the disciplinary hearing was rescheduled to 23 August 2024 at the claimant’s request (P.117-118).[23]In response to the suspension and the invitation to the disciplinary hearing, on 15 August the claimant wrote to Mr Anderson and Andy Windle, Senior Employee Relations Advisor, with his “version of events, in light of the almost entire character assassination of the other statements from my team, who have been nothing short of a nightmare to manage these last months. This is evidenced by the statement of Ting Ting Gu.” (P.122-124)[24]The following are excerpts:- “I have 15 years’ service with the company and in that time I have amassed hundreds of thousands of pounds of sales. Part of my job, in the chase for sales, has been to develop relationships and entertain clients. The company even has an Alcohol & Hospitality Policy. I feel that this has in no small part contributed to my reliance on alcohol in the preceding months. I have formed close relationships with clients, to the point that they ask for me by name when they come to the store. Admittedly, even I would agree that my use of alcohol has gotten out of control in recent months and the boundaries of what may be considered ‘normal’ hospitality have been blurred. In their statements staff expressed alarm at my alcohol intake, and the fact that I was hungover on several occasions in work. In (sic) both these occasions I was entertaining Rolex clients the night before. I am now in a position where I feel forced to leave the company with an unhealthy relationship to alcohol that went unchecked until I was told to leave the premises on August 1 and not even allowed back in to collect my belongings. A few years ago I was under extreme duress to meet sales targets, and I can pin point that as the moment when things began to unravel. I relied more heavily on alcohol to maintain the upbeat, happy–go-lucky persona that make clients feel important and sold watches. I began sertraline, an anti-depressant not long after this.”[25]He then went on to refer to the three allegations and said this:- “I would like to address that at no point was I informed of the first two allegations against me (30 March 2024 and 5 April 2024) nor was I informed on my suspension date 1 August 2024 that I would be investigated in relation to same.”[26]He then went on to make reference to the respondent’s Code of Conduct and said this:- “It is apparent to me that the Watches of Switzerland Group have failed in their duty of care towards me. When concerns had been raised in relation to me and my “excessive” alcohol consumption there has been no correspondence from the Group either investigating me or offering support for my mental wellbeing. I feel that the Watches of Switzerland Group has breached their obligation as an employer.”[27]Finally, he said this:- “Whilst there are instances of my wrongdoing in relation to alcohol, I would say in my defence that the culture of alcohol consumption in the company is pervasive and a cultural thing. For instance, the Watch Technician regularly gets provided with glasses of whiskey from Carol (during working hours), something which has been a regular occurrence for many years. There is a culture within Rolex that revolves around alcohol – amusing almost given that there is a ‘Watches of Switzerland Hospital & Alcohol Policy’ which indicates that ‘you’re expected to perform your job duties free from the influence of any substance that could impair your job performance and/or pose an unacceptable safety risk to yourself and/or others.” Disciplinary hearing on 23 August 2024[28]Minutes of the disciplinary hearing were produced (P.126-135). I was satisfied that they were reasonably accurate. At the start of the meeting the claimant asked if he would be allowed to resign “If the meeting had a negative outcome”. Having taken advice from Mr Windle, Mr Anderson advised the claimant that would not be possible. Mr Anderson suggested that he discuss the matter with someone which he did. He then said he was happy to proceed. Mr Anderson understood that the claimant had spoken with his family.[29]The hearing started at 12:30pm. It was adjourned by Mr Anderson at 13:40pm to enable him to consider the matter and make a decision. The meeting reconvened at 14:09pm when, according to the Minutes, Mr Anderson said this:- “BA – Anything to add? BO – No. BA – I have made a decision – you have made some points around the showroom, and I will be taking that further. The 3 allegations – the first one – I find your mitigation adequate especially given the evidence you had provided. The other two I am upholding. Whether the can of coke was drunk from – there was obviously intent there. From my point of view, whilst I understand your argument about intervention, but I do think there is a responsibility on you as well. You are a manager, and you are part of setting that culture. I’m sorry – I do find those gross misconduct. I will get a letter drafted and sent to you. You have the right to appeal against this decision…… As I’ve explained your last day of service with the company is 23/08/2024.” Outcome letter[30]On 27 August 2024, Mr Anderson wrote to the claimant to confirm his decision (P.136-137). The following are excerpts:- “I want to make it clear that I did accept your mitigation (at least in part) for the first allegation listed (that of 30 March 2024). You provided evidence that your medication was changed around the time of that incident. Without medical advice I am unable to make a judgment on that particular allegation. Therefore, it does not form part of my decision. However, it is my belief, that on the balance of probabilities, your conduct in relation to the other 2 allegations amounted to gross misconduct. Although you have provided some of the information which I need to look into further I believe that you (as a member of the showroom’s management team) are culpable of gross misconduct in relation to the consumption of alcohol whilst working and the use of showroom stock for personal/family use. I believe that (on balance) the statements from your colleagues were not made with a malicious intent, indeed you described during the hearing that your relationship with Ting Ting was good.” Appeal[31]By email on 4 September 2024, the claimant intimated that he wished to appeal against his dismissal (P.139-141). He intimated the following grounds for his appeal:- “Unreasonable delay in raising allegations; Prejudged decision to terminate; Failure to properly investigate or accept mitigation; Unjust conclusion of gross misconduct.”[32]He also made an allegation of “discrimination based on gender”, but that complaint was not pursued in his Employment Tribunal claim.[33]Mr Ashok Pankhania, Regional Director, was appointed to conduct the appeal.[34]On 20 September, Mr Pankhania wrote to the claimant to invite him to attend an appeal hearing “via Teams”, on 24 September 2024 (P.144-145).[35]However, the claimant advised that he did not feel able to attend a hearing and asked if the appeal could be conducted in writing (P.146).[36]Mr Pankhania agreed and on 2 October 2024 he wrote to the claimant with a list of questions (P.149–150).[37]The claimant responded by email on 3 October 2024 (P.151-153).[38]Mr Pankhania carried out further investigations with the “management team” namely David Ferguson (P.154 -157); Marcus Robertson (P.158–160); and Boyd Anderson (P.162 -163).[39]He also interviewed again the four employees who had been interviewed as part of Nicola Edwards’ original investigation, namely Elaine McGhee (P.164- 167); Ewelina Wisniewska (P.168-172); Ting Ting Gu (P.173-176); and Zoe Kourkoulou (P.177-181). Outcome of the appeal[40]On 5 November 2024, Mr Pankhania wrote to the claimant to advise him that he had decided not to uphold his appeal (P.182-184). He advised him of the further investigations he had carried out; and responded to his grounds of appeal and the evidence which the claimant had presented to him. The following are excerpts from his letter:- “1. Unreasonable delay in raising allegations You stated in your email that it is your belief that too much time had passed since the alleged incidents in March and April for the company to fairly bring these matters to light. You state that concerns were not raised with you at the time and that a delay in addressing these undermines their validity and fairness. From my investigation the allegations concerning incidents on 30 March 2024 and 5 April 2024, where it was alleged that you were intoxicated whilst at work and as the Duty Manager, were brought to our attention as part of the investigation carried out in August 2024 and it was only right that these were investigated as well as the incident on 27 July 2024. Had these matters been brought to our attention formally prior to this, we would have reviewed and taken further action at that time. In regard to the customer complaints, my investigation found that any customer complaints that had been received had been raised with you at the relevant time. You further stated that this was a collaboration between three colleagues, with whom you had had previous conflict, to ‘cause me trouble’. My investigation found no evidence to corroborate this and, in fact, I found that those issues had been resolved and the evidence presented to me was that the relationship between yourself and these colleagues was much improved. 2. Prejudged decision to terminate You state in your grounds for appeal that the decision to terminate your employment seemed rushed, suggesting that the outcome was pre-judged and the process was neither fair nor impartial. You further stated that a decision was reached despite the disciplining manager stating that some points required investigation. You believe that further investigation would have resulted in a different outcome. As part of my investigation, I did obtain further information from Boyd Anderson who was the Disciplining Manager. Boyd acknowledges that whilst there were further investigations that were possible a reasonable investigation had been completed and given the evidence he had available to him at the time there were reasonable grounds to warrant your summary dismissal. As part of my investigation, I have looked further into the points raised and conclude that there was sufficient evidence of gross misconduct and any further investigation would not have changed the outcome of the disciplinary irrelevant of the time taken to make that decision. 3. Failure to properly investigate or accept mitigation In your appeal you state that you provided substantial mitigation which was dismissed without proper consideration or further enquiry. You go on to explain that you were taking medication for mental health issues which would sometimes make you tired and drowsy, but not to the point of incapability. As part of the appeal process, I investigated this point further. I conclude that the Management Team were aware of your mental health issues and supported you by checking in on you, with attending appointments as required and signposted you to the help and support available through the company EAP. The evidence provided to me is that you were getting the help and support required through medication and counselling and that since starting the medication you appeared to be happier in the workplace. You state that alcohol was poured for you by a colleague as it was for others on the day, it was the end of the day and a common occurrence for all staff. Following my investigation, I find no evidence to support that it was a common occurrence for all colleagues to drink in the showroom. My investigation found that you would often request colleagues to pour a drink for you during showroom opening hours and colleagues felt they could not question this or refuse due to your position as Manager. There is also evidence of you drinking with clients, friends and family and this behaviour was only evident when Marcus and/or David were not in the showroom, and you had overall responsibility. The CCTV footage clearly shows you pouring whiskey into a coke can. Although I find it unlikely that on the balance of probabilities you chose that moment to ‘try’ whiskey and coke I believe the intent was there to consume alcohol, and this was within showroom trading hours. The evidence also states that following this you requested a colleague to pour you another alcoholic drink. My investigation also brought to light your request for colleagues to pour you a ‘special tea’, which was described to me as ‘whiskey in a teacup so no-one would know it was alcohol’. As the manager of the colleagues in the showroom at the time of the allegations I believe there was a pressure to follow the instructions given to them by their line manager. 4. Unjust conclusion of Gross Misconduct You state in your appeal that drinking on-site has been a common practice within the company, with alcohol readily available and provided by the company. You go on to state that it is something that everyone has done and continues to do. As part of my further investigation, it was clear that was not the case. I found no evidence of other colleagues drinking in the showroom during trading hours whilst they were on duty. The alcohol supplied to the Boutique is for the hosting of our clients and not for the consumption by colleagues. With regards to policy changes, you admitted to taking responsibility for ensuring that you were up-to-date with all changes in policies. Considering your role as manager this is particularly disappointing as you would be pivitol in ensuring that all colleagues are aware of the policy change. The evidence obtained during my investigation shows that other colleagues in the showroom are aware that drinking during trading hours, with or without clients is not acceptable. Respondent’s submissions[41]The respondent’s solicitor spoke to written “Skeleton Submissions” which are referred to for their terms. The following is a brief summary.[42]In support of his submissions he referred to the following cases:- British Home Stores v. Burchell [1978] IRLR 379; Iceland Frozen Foods Ltd v. Jones [1982] IRLR 439; Taylor v. OCS Group Ltd [2006] IRLR 613; Adeshina v. St. George’s University Hospitals NHS Foundation Trust UKEAT/0293/14.[43]In his “Outline Submissions” he said this: “The claimant has admitted that he regularly drank alcohol at work during the working day. He has suggested that there was a culture at the Glasgow Boutique of drinking at work, and has stated that his actions in this respect are known to management. The claimant has referred to a watchmaker having a weekly drink of Scotch on a Friday. There is no independent evidence of this, but even if the claimant is correct on this point this is a very different situation from his own. The claimant was regularly drinking, to the point of incapacity, on the shop floor when he was the duty manager in charge of the Boutique. The respondent’s case is that, whilst there may have been a different general culture a number of years in the past, this changed when Mr Robertson took over the running of the Boutique. For the avoidance of doubt, Mr Robertson’s tenure at the Glasgow Boutique began on 3 February 2020. There are clear statements from Mr Ferguson (P.155) and Mr Robertson (P.159) to the effect that there was in fact no drinking culture at the Boutique at the relevant time. It is not only management who have said that: Elewina Wisniewska (P.169) and Ting Ting Gu (P.174) also stated there was no such culture.”[44]He submitted that the claimant drank at work and required colleagues to provide drinks to him and that this took place when he was in charge, when Mr Ferguson was not present. He invited the Tribunal to find that there was no drinking culture at the material times, despite the claimant’s assertions.[45]The respondent’s solicitor also submitted that the claimant’s assertion that he “did not feel he had anything to hide” was inconsistent with his conduct on 27 July 2024 when he poured whisky from a bottle into a can of coke in a “quick and furtive” manner, according to Mr Ferguson (P.93). The respondent’s solicitor submitted that, the claimant knew that what he was doing was wrong and that he was trying to hide his drinking from colleagues and clients.[46]He also submitted that the claimant’s evidence was inconsistent.[47]So far as the claimant’s assertion that the respondent should have made allowances for his poor mental health was concerned, the respondent’s solicitor submitted there was no supporting medical evidence in relation to the claimant’s mental health which would suggest the respondent was under any such duty. In any event, “the claimant only indulged in these activities when other managers were not present and he was in charge of the Boutique. He was able to pick and choose the times when he was drunk at work” and as second-in-command that was often the case.[48]Further, he stated at his disciplinary hearing, that, “If you are going to be told not to do something and you’d been doing it for ages then you are going to continue to do it” (P.130). It was submitted that, “the claimant should not have had to be told not to drink on duty, particularly when taking medication, on days when he was in charge of the Boutique, in order for him to know that it was wrong to do so.”[49]The respondent’s solicitor also disputed the contention that there were “procedural flaws”. In this regard, he referred to Taylor and the requirement to look at the process as a whole.[50]The events on 30 March and 5 April were “sufficiently recent for the claimant to be able to discuss them with the respondent and to give an explanation.”[51]It was submitted that there was a fair procedure and it was reasonable for the respondent to treat the claimant’s actions on 5 April and 27 July as amounting to gross misconduct, warranting summary dismissal.[52]In conclusion, he submitted that the “three-stage test” in Burchell had been met and that the overall disciplinary and appeal process, when taken as a whole, was fair and reasonable and that the decision to dismiss the claimant was within the band of responses open to a reasonable employer. Claimant’s submissions[53]The claimant’s representative produced written “Skeleton Submissions” prior to the commencement of the Hearing and written “Supplementary Submissions” at the Hearing. These are referred to for their terms. The following is a brief summary.[54]In support of her submissions she referred to the following cases:- Burchell; Sainsbury’s Supermarkets Ltd v. Hitt [2003] IRLR 23; Paull v. East Surrey District Health Authority [1995] IRLR 305; Hadjionnou v. Coral Casinos Ltd [1981] IRLR 352; London Ambulance NHS Trust v. Small [2009] EWCA Civ 2020.[55]In her “Outline Submissions” the claimant’s representative submitted that the respondent had failed to follow a fair process: the suspension letter did not provide the required specification; “the decision to proceed to a formal hearing was made without ever giving the claimant the chance to respond to the allegations, explain his actions, or offer mitigating context.” This, it was submitted, was in breach of the ACAS Code of Practice and natural justice.[56]It was further submitted that, “the claimant’s actions were consistent with a workplace culture where alcohol was stored at desks and occasionally shared after client interactions.” The claimant’s conduct was not gross misconduct as,“it tolerated similar conduct previously, failed to ensure clear communication of any policy change and did not apply those consistently.”[57]It was further submitted that, “the appeal process did not cure the original defects of the disciplinary hearing.”[58]She further submitted that:- “This isn’t about excusing the claimant’s conduct, it’s about recognising that when a breach occurs in plain sight, and others, including managers, participate or turn a blind eye, you don’t have a rogue employee. You have a broken culture.”[59]Further, the investigation was inadequate as the respondent did not speak to “key individuals named in multiple witness statements, including Rebecca, Carol, Violeta, Kelly or Liene.” Nor was there any attempt to determine if others had engaged in similar conduct which meant that, “the claimant’s version of events was not tested fairly against others and material witnesses were ignored despite being named by multiple parties.”[60]Further, the claimant’s “mental health struggles and medication that may have affected judgment were ignored in the final outcome.”[61]In conclusion, the claimant’s representative submitted that:- “The respondent failed to conduct a reasonable and balanced investigation; treat the claimant consistently with others; consider relevant mitigation and cultural context; or apply the alcohol policy in a clear, communicated, and nonretrospective manner”. In light of Burchell and Sainsbury’s, the dismissal was outside the band of reasonable responses and therefore unfair under s.98(4) ERA 1996.”[62]In her Supplementary Submissions the claimant’s representative emphasised the “procedural deficiencies”.[63]Further, she submitted that there was “no documentary evidence that the claimant was ever made aware of the created Hospital and Alcohol Policy.”[64]The issue of whether there was a culture of alcohol consumption in the workplace was not properly tested by the respondent as, “they took witnesses’ assertions at face value, asked no follow up questions and failed to explore the full picture.”[65]The claimant’s representative then detailed alleged failures in the appeal process.[66]She also submitted that there was an “inconsistency in enforcement as there was evidence that colleagues had consumed alcohol in the workplace.”[67]She submitted that there was a “clear failure” of the Burchell test.[68]Finally, the claimant’s representative invited the Tribunal to “consider the claimant as a credible and forthright witness notwithstanding some imperfections in his presentation or articulation under questioning.”[69]She invited the Tribunal to consider the claimant’s conduct in light of his 15 years’ unblemished service with the respondent and that he had been promoted and named employee of the year on 3 occasions.[70]So far as the issue of the CCTV footage was concerned, the claimant’s representative said this: “It is accepted the claimant was seen pouring whisky into a can of coca cola. He did not deny this. He acknowledged the act from the outset and did not attempt to disguise or minimise it during the proceedings. While it may have been poor judgment and he himself admits as much he did not seek to evade responsibility. The Tribunal is invited to treat this not as a sign of habitual concealment, but as a moment of weakness in an environment where alcohol had long been tolerated and, at times, facilitated by colleagues and management. It has been implied that the claimant’s action in pouring a drink with his back to the camera is evidence of a level of guilt or deceit. The claimant’s position is that there was no deliberate concealment; the drink was prepared casually, and had occurred many times before in the showroom. The fact that this incident happened to be captured on CCTV does not render it exceptional”.
Discussion and Conclusions
[71]In every unfair dismissal case where dismissal is admitted, s.98(1) of the Employment Rights Act 1996 (“the 1996 Act”) requires the employer to show the reason for the dismissal and that it is an admissible reason, in terms of s.98(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. An admissible reason is a reason for which an employee may be fairly dismissed and among them is conduct. That was the reason which the respondent claimed was the reason for the claimant’s dismissal. I was satisfied that the claimant was dismissed for that reason. However, that is not to say that it followed that the claimant was guilty of the alleged misconduct, only that Mr Anderson who took the decision to dismiss the claimant and Mr Pankhania who heard the Appeal believed that he was and that was the reason for the claimant’s dismissal.[72]The remaining question which I had to determine, therefore, under s.98(4) of the 1996 Act, was whether the respondent had acted reasonably in treating that reason as a sufficient reason for dismissal and that question had to be determined in accordance with equity and the substantial merits of the case.[73]The claimant’s position, of course, was that when set in context and, in particular, what he maintained was an established and accepted culture in the Boutique concerning the consumption of alcohol, the respondent had not acted reasonably in treating his conduct as a sufficient reason for his dismissal.[74]When considering this issue, I was mindful that the respondent had categorised the allegations against the claimant as “gross misconduct”. However, in terms of s.98(4) the real focus of an unfair dismissal complaint is a substantive one of whether the claimant’s conduct in itself can reasonably have been considered by a reasonable employer to be “sufficient” for dismissal. When conduct is put forward by a respondent as the reason for the dismissal, the primary focus as to whether that is reasonable has to be on the character of that conduct.[75]The point I make is that the question of whether a dismissal is fair or unfair under s.98(4), is not answered by deciding whether or not the employee has been guilty of gross misconduct. This was confirmed by the EAT in Western Recovery Services v. Fisher EAT 0062/10: when considering the fairness or otherwise of a dismissal, the only relevant question is whether the conduct was “sufficient for dismissal”, according to the standards of a reasonable employer and whether dismissal accorded with “equity and the substantial merits of the case”.[76]Accordingly, I was required to consider in the present case, the nature, character and the effect of the claimant’s conduct, in the context of his employment as a manager at the Boutique.[77]To determine whether a dismissal for conduct is fair, valuable guidance was provided in the well-known case of Burchell, to which I was referred. Mr Justice Arnold gave the following guidelines in that case at page 380:- “What the Tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the conduct in question (usually, but not necessarily dishonest conduct), entertained a reasonable suspicion amounting to a belief in the guilt of that employee of that misconduct at that time. That is really stating shortly and compendiously what in fact is more than one element. First of all, there must be established by the employer the fact of that belief: that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief and thirdly, we think that the employer, at the stage at which he formed that belief, on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.”[78]This means that the employer need not have conclusive direct proof of the employee’s misconduct – only a genuine and reasonable belief, reasonably tested. This is an objective test to be judged according to what would be expected of a reasonable employer. It is not a matter in which the Tribunal is entitled to substitute its personal view of what it might have done had it been the employer, but rather to consider the matter objectively and only in terms of what a reasonable employer might have done, recognising that in many cases there is a range of reasonable responses which one employer might reasonably take one view, and another quite reasonably take another (Iceland Frozen Foods).[79]In regard to the matter of substitution, the employer, of course, cannot be the final arbiter of its own conduct in dismissing an employee. It is for the Employment Tribunal to make the judgement, always bearing in mind the test is whether the dismissal in the whole circumstances is something that a reasonable employer could have done (Bowater v. North West London Hospitals NHS Trust [2011] EWCA Civ 63).[80]I also remained mindful, with reference to Sainsbury’s Supermarkets, to which I was also referred, that the objective standards of the reasonable employer must be applied to all aspects of the question of whether an employee was fairly and reasonably dismissed. This was of particular significance in the present case because of the criticism by the claimant’s representative of the adequacy of the respondent’s investigation. ACAS Code of Practice[81]I also remained mindful that an Employment Tribunal is obliged by s.207(2) of the Trade Union & Labour Relations (Consolidation) Act 1992 to take into account the provisions of the ACAS Code of Practice on Disciplinary and Grievance Procedures (2015). I also had regard to the accompanying Code (a non-statutory guide “Discipline & Grievances at Work”) (“the ACAS Guide”), which was most recently updated in July 2020.[82]The employers’ compliance with the Code is a factor to be taken into account when determining the reasonableness of the dismissal, in accordance with the statutory test of reasonableness under s.98(4).[83]What then of the three-fold test in Burchell?[84]So far as the first branch of the test was concerned, I was satisfied that the “decision makers”, namely Boyd Anderson who took the decision to dismiss and Ashok Pankhania who heard the claimant’s appeal against the dismissal, believed the claimant was guilty of misconduct.[85]The second branch of the test is whether the decision makers had in their minds reasonable grounds upon which to sustain that belief. This, along with the adequacy of the respondent’s investigation were the pivotal issues in the case. The investigation[86]I decided to address this issue, the third branch of the three-fold test in Burchell, first. Under paragraph (a) of sub-section 98(4) the question of whether the employer acted reasonably, particularly where the reason for dismissal was related to the conduct of an employee, frequently involves consideration of the adequacy of the employer’s investigation into some alleged wrong doing and thus whether a reasonable employer could have concluded that he or she was guilty.[87]In the present case, the claimant’s representative made a forceful submission, which she had pursued in some detail in cross-examination, that the respondent had not acted reasonably as they failed to investigate, “the wider workplace culture of alcohol consumption”; and there was a failure to take statements from a number of “key witnesses such as Carol, Kelly, Violeta, Rebecca, or Liene”. She also submitted that the respondent had not acted reasonably by failing to interview the claimant and to get a response from him to the allegations before deciding to initiate disciplinary proceedings.[88]However, it seemed to me that what the claimant’s representative was advocating was nothing short of a counsel of perfection: a requirement to interview each and every person who had been mentioned in the course of the investigation and who might possibly shed some light on the issues under investigation.[89]That is not the legal test. The test is whether the investigation the respondent carried out was within the band of reasonable responses open to a reasonable employer (Sainsbury’s Supermarkets).[90]The claimant’s representative submitted that the dismissal was unfair, procedurally as the claimant was “not invited to give his version of events at an investigation”, before the respondent commenced the disciplinary process. However, my task, as the Court of Appeal said in Taylor, to which I was referred by the respondent’s solicitor, was not only to assess the disciplinary process as a whole, but also to consider the respondent’s reason for dismissal, as the two impact upon each other. I had to decide whether the respondent acted reasonably in treating the claimant’s misconduct as a sufficient reason to dismiss him. I was satisfied that they had. While the respondent did not interview the claimant before engaging the disciplinary process, he was made fully aware of the allegations against him at the start of the process, provided with copies of all the relevant documentation, given adequate time to prepare before the hearings and afforded a reasonable opportunity to respond and “give his version of events”. Both the disciplinary and appeal hearings were thorough. Both decision makers were openminded. The overall disciplinary process was fair and reasonable.[91]On receipt of the anonymous whistleblowing complaint, David Ferguson, the claimant’s line manager, reviewed the CCTV footage for 27 July and discovered the claimant pouring whisky into a Coca-Cola can (P.114). In his view he did so “furtively and quickly”. He reported his findings to Marcus Robertson, Regional Director (P.92-93). In light of this, along with the whistleblowing complaint, it was reasonable for the respondent to suspend the claimant pending further investigations (P.94-95).[92]These investigations were carried out by Nicola Edwards, Showroom Director. She was not in the claimant’s management structure and there was no suggestion that she was other than impartial.[93]The statements which Ms Edwards obtained painted a clear picture and confirmed that the claimant was regularly drinking at work during opening hours when in sole charge; and there was not a culture of drinking alcohol in the Boutique, as he maintained, subsequently. Admittedly, the attitude to drinking alcohol in the Boutique had been more relaxed some time previously, but this changed when Marcus Robertson took over as Manager in February 2022.[94]The following are excerpts from the statements Ms Edwards took.[95]Ting Ting Gu only saw the claimant drinking in the Boutique at the end of the day on 27 July but it was before the Boutique closed (P.97).[96]Zoe Kourkoulou saw him drinking alcohol in the Boutique on 27 July and saw him telling Ewelina to pour him a drink of whisky (P.101); that she’d seen him drinking alcohol whilst on duty “several times”; and that colleagues had come to her with concerns about his drinking (P.102). She spoke of the claimant being intoxicated on 30 March with his family and of him going out on to the street outside the Boutique, “being silly” and shouting things like “Merry Christmas and Happy New Year”. She also spoke of the claimant being intoxicated on 5 April and of Violeta and Elaine being concerned as he was in charge that day and he was responsible for locking up the Boutique (P.102- 103). She also witnessed the claimant asking Kelly and Ewelina to get him “special tea which is whisky in a teacup often before closing as Blaine often leaves prior to closing to catch a train.” (P.303)[97]Elaine McGhee also witnessed the claimant having a large glass of whisky in the Boutique on 27 July (P.106). She also corroborated Zoe’s evidence about the events of 30 March (P.106).She also witnessed the claimant being intoxicated, “not long after Easter (could be 6 April) in the Boutique before it closed, of being concerned along with Liene and Violeta as he was responsible for locking up.” (P.107).[98]Ewelina Wisniewska confirmed that she poured the claimant a drink of whisky on 27 July on his instructions (P.109-110). She said that “he would usually ask us to put it in a teacup so others wouldn’t see what was in it. That would usually be in the afternoon.” (P.110). She spoke of the claimant telling her on 27 July to make him a drink of whisky and of him taking the whisky bottle and filling up the glass even more than she had done (P.110). She also spoke of him coming to work every week with a hangover and smelling of alcohol (P.110); and of him always drinking whisky (P.111).[99]Further, so far as the investigation was concerned, Mr Pankhania who heard the claimant’s appeal against his dismissal interviewed each of these witnesses again. This went beyond what would be required of a reasonable employer (P.164-181).[100]He also went further by interviewing the Boutique Manager, David Ferguson, (P.155-157) who confirmed there was not a drinking culture in the Showroom (P.155); and that he was “upset” when he learned what the claimant had been doing and that the two occasions, which the respondent considered amounted to gross misconduct, had occurred when he wasn’t in the Boutique (P.156).[101]Mr Pankhania also interviewed Marcus Robertson (P.158-160) who also confirmed that there was not a drinking culture in the Boutique (P.160). Finally, he interviewed Boyd Anderson who had taken the decision to dismiss the claimant (P.162-163).[102]These statements were consistent with previous statements which had been given and were corroborative in many respects. The respondent’s conclusion, therefore, that there was not a “drinking culture” in the Boutique, as the claimant maintained, was within the band of reasonableness which a reasonable employer might have adopted.[103]I found Mr Pankhania’s explanation, in evidence at the Tribunal Hearing, for the alleged “delay” in the claimant’s colleagues raising their concerns about the claimant’s conduct on 30 March and 5 April , persuasive. He said this: “My overall view was that they had a lot of respect for the claimant but it had become a concern. No one wanted to approach him because of his position. So they decided that whistleblowing, anonymously, was the only way. The claimant was at the heart of everything. As a duty of care to them and him”.[104]This was consistent with the terms of the whistleblowing complaint : the complainer had explained that they wished to remain anonymous , “ because I am worried I may lose my job or be bullied by my manager “ (P.89).[105]Further, the claimant was not prejudiced by the “delay” as he was able to recall the events of those days and respond to the allegations.[106]I arrived at the view, therefore, with reference to the third branch of the test in Burchell, that the respondent had carried out as much investigation into the matter as was reasonable in all the circumstances.[107]I was also satisfied that the respondent had complied with the ACAS Code and Guide.[108]It followed from that, and from the wealth of evidence which the respondent had obtained; the claimant’s admissions about his problem with alcohol consumption and admission of wrong doing; the CCTV “still image”; and no suggestion of any bias or ill feeling towards the claimant, that the respondent, and in particular the decision makers namely, Mr Anderson and Mr Pankhania, had in their minds reasonable grounds upon which to sustain their belief in the claimant’s misconduct.[109]Indeed, an indication of the reasonableness of Mr Anderson’s decision and his objectivity, was his decision, on the basis of insufficient medical evidence, not to find that the claimant’s conduct on 30 March amounted to misconduct. The reason for this was that the claimant had maintained that his medication had been increased around that time and Mr Anderson did not have any medical evidence as to how that might have impacted upon his conduct. In other words, he gave the claimant the benefit of the doubt.[110]I arrived at the view, therefore, that the three-fold test in Burchell had been satisfied.[111]I was satisfied that the respondent had a genuine and reasonable belief that the claimant was guilty of the alleged misconduct, reasonably tested. Was dismissal a reasonable sanction?[112]I then went on to consider, whether, in all the circumstances, dismissal was a reasonable sanction. In this regard, I was mindful of the guidance given in such well-known cases as Iceland Frozen Foods, to which I was referred, that there is a band of reasonableness within which one employer might reasonably dismiss the employee, whereas another would quite reasonably keep him on. It depends entirely on the circumstances of the case whether dismissal is one of the penalties which a reasonable employer would impose. If no reasonable employer would have dismissed, then dismissal is unfair; but if a reasonable employer might reasonably have dismissed, then dismissal is fair. Inconsistency of treatment[113]The claimant’s representative submitted that the dismissal was unfair because “comparable employees” had not been disciplined for misconduct of a similar nature. The word “equity” in the phrase “having regard to equity and the substantial merits of the case” in s.98(4) comprehends the concept that employees who behave in much the same way should have meted out to them much the same punishment.[114]However, in the present case the respondent established that there was not a “drinking culture” in the Boutique, as the claimant maintained; and they had evidence from Mr Ferguson who viewed the CCTV footage for 27 July, that when the claimant poured whisky into the Coca-Cola can he was alone and he did so “furtively and quickly”. Further, the claimant’s colleagues were not “comparable employees”. The claimant was in a senior, managerial position; the respondent had evidence of him drinking alcohol in the Boutique, during opening hours, when the Manager, Mr Ferguson, was away and he was in sole charge. The claimant’s conduct was not “mirrored by other staff and management”, as the claimant’s representative submitted.[115]I was of the view, therefore, that this submission was not well-founded.[116]Having regard to the gravity of the misconduct and the fact that the claimant was in a managerial position and, as the respondent’s witnesses. put it “expected to set the tone”, I was satisfied that, in all the circumstances, the claimant’s dismissal was within the band of reasonable responses which a reasonable employer might have adopted and that it was fair. Gross misconduct[117]I was also satisfied that a reasonable employer could have concluded that the claimant was guilty of gross misconduct and that summary dismissal was justifiable.[118]The claimant’s conduct was clearly in breach of the respondent’s Hospitality & Alcohol Policy which specifically prohibits the consumption of “alcoholic beverages on Company Premises” by employees (P.67); and also the respondent’s Code of Ethics and the provisions relating to “Drugs and Alcohol” (P73).[119]It was clear that the claimant knew what he was doing was wrong. He admitted as much in the email he sent on 15 August in response to his suspension and invitation to a disciplinary hearing (P.122-124). He admitted that his use of alcohol had “gotten out of control in recent months” and “the boundaries of what might be considered normal hospitality have been blurred.” (P.122)[120]Further, “incapability through alcohol or drugs at or in connection with the employment” and “serious breach of any company policy” were both given as examples of gross misconduct in the respondent’s Disciplinary Policy (P.84) which was referred to in the claimant’s Contract of Employment (P.63).[121]It was reasonable, therefore, to dismiss the claimant summarily. It was within the band of reasonable responses which a reasonable employer might have adopted.[122]Having arrived at the view that the claimant’s dismissal was not unfair, his claim is dismissed.