Mr M Scholfield v Apple Retail UK Ltd: 6000605/2023
EMPLOYMENT TRIBUNALS
Case No 6000605/2023
Between
In PersonClaimantMr M. Humphreys (Counsel)Respondent
Before
Employment Judge SmailIn person for claimantMr M. Humphreys (instructed by Counsel) for respondentDate 4 July 2024
JUDGMENT
The claimant’s application of 1 August 2024 for reconsideration of the judgment
REASONS
There is no reasonable prospect of the original decision being varied or revoked, for the following reasons.[1]The Claimant has repeated some points and submissions that were made to the Tribunal at the full hearing. These matters were taken into account when the Tribunal made its decision.[2]The Claimant has also expanded on some of his points and submissions. He says, “…there are some points that may not have been taken into account that are relevant, and I ask that they are taken and reconsidered”. However, the reconsideration process is not an opportunity to make new points or arguments that could have been made during the hearing. There should, where possible, be finality of litigation. A Tribunal cannot reconsider its judgment because a party has thought of additional arguments that could have made at the hearing, or because a party does not agree with the Tribunal’s decision.[3]The Claimant has also produced some new evidence – a text exchange which he says shows he was not at work when a particular incident is alleged to have happened, and a photograph from social media of physical contact between the person who made the complaint and another employee.[4]New evidence may be grounds for a reconsideration. However, this will only be in the interests of justice if it could not have been obtained with reasonable diligence for use at the original hearing, was relevant and would probably have had an important influence on the hearing, and is apparently credible (Ladd v Marshall 1954 3 All ER 745, CA). The Claimant has not explained why this evidence could not have been obtained for the 11.6C Judgment – Reconsideration refused – claimant - rule 72 Case No: 6000605/2023 hearing. I also note that this evidence is only relevant to some of the issues in the case. The Tribunal’s decision was not based on certainty about the date of the relevant incident, or on whether the individual who complained had issues with physical contact between employees more generally. I do not consider that either of these new documents would have had an important influence on the hearing.[5]The test for a reconsideration is whether this would be in the interests of justice. This decision is based on the facts found at the hearing and the application of the relevant law to those facts, and took into account all of the submissions that both parties made at the hearing. Full reasons were given for this decision. The Claimant does not agree with the outcome. However, the Tribunal is not able to reconsider its judgment simply because the Claimant does not agree with it or wishes to explain his position further after receiving the decision.[1]This is a claim for unfair dismissal and age discrimination.[2]By a claim form dated 5 April 2023, the Claimant brought complaints of unfair dismissal and discrimination on the grounds of age. At a hearing on 8 November 2023 EJ Smail refused permission to amend the claim to add new complaints of sex, race and disability discrimination. He held that the Amended Particulars of Claim may stand insofar as they engage the existing claims of unfair dismissal and age discrimination.[3]The full hearing was originally listed for April but no evidence was heard, largely due to issues with disclosure of documents by the Respondent (as dealt with in separate case management orders). The Claimant was also permitted to submit a new version of Ms Lo’s statement which contained additional information. The hearing was adjourned and reconvened for 17-20 June 2024.[4]The Appellant made a further application before the adjourned hearing to amend the claim to add disability discrimination, based on the additional documents that had been disclosed during the first part of the hearing. The Tribunal considered this application on the morning of 17 June. The Tribunal refused the application as it did not meet the criteria for overturning the previous decision by EJ Smail. The Judge gave full oral reasons for this decision.[5]We took regular breaks during the hearing and ensured the hearing ended by 4pm each day in order to accommodate the needs of some of the participants in the hearing, including the Claimant.
Issues
[6]There was a Case Management Preliminary Hearing on 9 August 2023. The issues were agreed as follows, as discussed and amended at the start of the first part of the hearing. At the start of day three of the reconvened hearing, the Claimant confirmed that he no longer wished to pursue the age discrimination claim and agreed that this claim could be dismissed upon withdrawal.[7]Unfair dismissala. Was the Claimant dismissed? It is common ground that the Claimant was dismissed on 4 November 2022.b. What was the reason for dismissal? The Respondent asserts that it was a reason related to conduct, which is a potentially fair reason for dismissal under s. 98(2) of the Employment Rights Act 1996.c. Did the Respondent hold a genuine belief in the Claimant’s misconduct on reasonable grounds and following as reasonable an investigation as was warranted in the circumstances?d. Was the decision to dismiss a fair sanction, that is, was it within the range of reasonable responses open to a reasonable employer when faced with these facts? This includes consideration of the two previous disciplinaries involving the Claimant, for which he was given a first written warning and a final written warning.e. Did the Respondent adopt a fair procedure? The Claimant challenges the fairness of the procedure in the following respects; i. The Respondent removed evidence from the investigation pack in the investigation of conduct in October 2021. ii. The Respondent failed to consider or investigate whether the complaint against the Claimant had been made in bad faith (due to the Claimant reprimanding Ms Said for inappropriate language). iii. The Respondent failed to interview the following people in connection with the incident: 1. Harry Williams 2. Brendan Marshall Evans 3. Benjamin Spencer 4. Daisy Ng 5. Lexi Nyeko iv. The Respondent failed to secure CCTV footage of the incident. v. The Respondent manufactured aspects of the account, namely relating to Ms Said’s religion which was not part of her complaint. vi. The Respondent coerced Kieran Rogers into giving evidence against the Claimant. vii. Failing to take notes during the dismissal meeting. viii. Forcing the Claimant to sign documentation (in relation to his final written warning). ix. The Respondent alleging that the Claimant was dishonest. x. The Claimant alleges the decision was predetermined.f. If it did not use a fair procedure, would the Claimant have been fairly dismissed in any event and/or to what extent and when?g. If the dismissal was unfair, did the Claimant contribute to the dismissal by culpable conduct? This requires the Respondent to prove, on the balance of probabilities, that the Claimant actually committed the misconduct alleged.
Evidence
[8]There was an agreed bundle of documents. Some additional documents were added by both parties following the first part of the hearing in April, and we had a supplemental bundle containing these and other relevant documents during the second part of the hearing. We read these documents and took them into account to the extent referred to by the parties in their witness statements and during the hearing.[9]We took witness statements as read. We heard evidence from the Claimant and from Briana Lo (the Claimant’s partner who is also an Apple employee). For the Respondent we had evidence from Mike Beahm (dismissing manager) and Paul McEvoy (appeal manager).[10]We had oral submissions from both parties at the conclusion of the evidence.
Facts
[11]We have considered all of the evidence and submissions, and find the facts necessary to decide the issues in the case.[12]The Claimant was employed by the Respondent between 30 January 2010 and 4 November 2022. At the time of his dismissal he was working in the role of Genius (a senior support technician).[13]On 11 December 2021 the Claimant was given a first written warning for not following the Respondent’s guidelines on isolating after experiencing suspected Covid-19 symptoms. The Respondent also deducted five days of special sick leave pay. The Claimant had left work with suspected Covid-19 symptoms. He initially tested negative using a lateral flow test. More than 24 hours later he tested positive using a lateral flow test, shortly before he was due to go out with some colleagues. His two colleagues came to his home to collect fancy dress costumes for night out. They were aware of the positive test. The Claimant’s position is that they took precautions (wearing masks and remaining more than 2 meters apart) in the same way as for a food delivery.[14]The written warning states that “your decision to meet up with colleagues was a breach of the instructions to isolate and our effort to remove you from putting the health and safety of others at risk”. The nature of the unsatisfactory conduct was described as, “Not following Apple’s guidelines on isolating after experiencing covid related symptoms.” This warning was live for six months. It was upheld on appeal. The appeal outcome letter explains the appeal manager’s belief that sufficient guidance was available on the need to isolate in these circumstances and what was expected by the Respondent during isolation.[15]The Claimant says that this warning was unfair. His statement explains that he spoke to Mr Podmore when he first felt unwell and was advised to stay at home until he was symptom free for at least 24 hours. He was planning to go out after being symptom free for 48 hours, but then took the lateral flow test which was positive. The incident was investigated by Mr Campbell, and he complains that there was a conversation between Mr Campbell and Mr Podmore about what advice he had been given on isolation which was not included in the investigation notes.[16]Mr Spencer dealt with the disciplinary hearing and issued the warning. The Claimant says that Mr Spencer made a mistake about him being required to isolate (as he had been symptom free for more than 24 hours), meaning it was wrong to base the disciplinary on him having been planning to go out. Mr Spencer explained that “the deduction was based on being under isolation”. The Claimant challenged this, and he says that Mr Spencer, “became visibly panicked and openly admitted that the reason for the sanction was not putting colleagues at risk at all but for planning to go out, if not actually going out, and that he was sorry but nothing could be done, a decision had been made and it would have to be appealed.” He then advised the Claimant to “lean on this fact” and his appeal would almost certainly succeed. Mr Spencer did not give evidence and so we find that conversation did occur as described by the Claimant.[17]On 22 March 2022 the Claimant was given a final written warning for failure to be honest about the reasons he was too unwell to work. The Claimant went home sick on the morning of 4 March 2022. He told his manager that he had various symptoms including a headache, sore throat and dizziness. The Claimant had been out late night before with colleagues, and sent a message in the morning on a work group thread saying he was “hanging out of my arse”, a phrase which suggests he was badly hungover, accompanied by a “sick” emoji. He returned to work the next day. The Claimant denied that he was unwell due to a hangover during the disciplinary investigation.[18]The disciplinary manager found a lack of openness and honesty on the reasons behind why the Claimant had been ill that day and what contributed to his symptoms. The conduct improvement expected was “to share with honesty the reasons behind an absence with full disclosure of all symptoms and their possible cause”, and “consider the impact of your activities outside of work on peers and Apple when making decisions”. The letter warned that a likely consequence of further misconduct would be dismissal. The action was a final written warning because the previous warning was still live and was taken into account. The Claimant did not appeal this decision. He said in evidence that this was because his previous appeal had not been successful even though Mr Spencer had suggested it would be.[19]The Claimant complains that this warning was unfair. It was investigated by Mr Campbell, who he says “repeatedly tried to make me refer to my condition as hung over”. He complains that he was told, “the decision was made for lying during my initial investigation and for being dishonest during the covid investigation”, when he did not lie at all. He also says that Mr Spencer (who conducted the first warning investigation) told him he thought he was “incredibly honest”.[20]In July 2022 a female colleague (Ms Said) made a complaint about the Claimant to the store manager Ross Campbell. This complaint was about physical and verbal conduct. She first raised this with Harry Williams (lead genius) on 23 July 2022, and Mr Campbell met with her to discuss on 24 July 2022.[21]Senior manager Katie Buckingham conducted an investigation. She held investigation interviews between 14 and 19 August 2022.[22]Ms Buckingham interviewed Ms Said on 14 August and we have seen the notes of this interview. She gave details about the four specific incidents involving the Claimant: He grabbed and rubbed her hand when they were walking to the car park, and grabbed it back after she took her hand away. He spoke to her in the corridor after a difficult customer incident (when two male customers ignored her and Lexi, another female employee), apologized and said he wanted to be a better ally, and then hugged her and rubbed her shoulders. The interview notes record, “I never felt so violated in my entire life. We don’t have a relationship where we would hug. He touched me up, he was rubbing me, it was so inappropriate, and I wasn't left to pull out and he was rubbing me. Eventually I left and walked off back on point, I didn't say anything to anyone, but I wanted to scream”. Later the same day outside the staff area he said sorry again, and then grabbed her hand and started rubbing her hand and shoulders, and then held her and wouldn’t let go. In late July he twice called her “my little sausage” when she came into the repair room, which she described as creepy and not professional. She said that the physical contact did not happen when there were a lot of other people around. She said that she had not spoken to the Claimant about any of this. She also said that two other people had referred to the Claimant as “the workplace creep” or “creepy”.[23]Ms Buckingham interviewed two other colleagues: Ryan Clarke – he was asked about the phrase “little sausage”, and could remember the Claimant saying it but not who it was directed to. Kieran Rogers – he was one of the people named as referring to the Claimant as “creepy”. He could not recall the conversation. He said the only one who would “sit on the line” would be the Claimant, this was “more notable” around female colleagues, his nature is to be “overtly friendly”, but he didn’t think there were bad intentions or concerns about his behaviour. He mentioned random start-up conversations or going up to a team member and giving them a hug.[24]At the interview on 14 August, Ms Said mentioned the possibility of CCTV footage relating to the hug. Ms Buckingham also referred to it in relation to the incident outside the staff area, although Ms Said then said she didn’t know if there was CCTV in that area. It appears that Ms Buckingham did not look into this further, as there is no evidence that she did so.[25]Ms Buckingham interviewed the Claimant on 22 August 2022. He was not made aware of the allegations before the interview. He initially said he could not recall any physical contact with Ms Said. When asked if there was anything in his interactions that may concern others he said, “I have a lot of close friends at work and I am big on hugging and I hug my friends, so if they want a hug, I’ll hug them”. The specific incidents were than explained to him. He could not remember holding Ms Said’s hand on the way to the car park. He remembered apologising to her for not being a good ally, but he could not remember hugging her or massaging her shoulders. He said he may have hugged her as a way to apologise, and may have put his hand on her shoulder. He said he had said “little sausage” multiple times to multiple people.[26]The Claimant raised an issue of retaliation during the interview. He explained he had called out Ms Said for using a really bad word in the middle of the shop, and it makes him wonder why she was doing this. The notes then record “that’s not part of this”. The Claimant says he was also told by Mr Paoli after the interview not to raise the issue of retaliation as it would make things worse. Mr Paoli did not give evidence and we find that this did occur as described by the Claimant.[27]Ms Buckingham provided an investigation outcome report on 5 September 2022. She found there was a case to answer and the matter should proceed to a disciplinary hearing. “The reasons for this is that you did not deny any of the incidents happening by saying it could have happened but can’t remember. You also touched David during the meeting without his permission or asking to demonstrate how you touch someone which indicates to me that you have no barriers around physical touch. I want to be clear that it’s not your intent that is in question here, it is how your actions have made [Ms Said] feel. I believe the above has amounted to a breach of the ‘Harassment and Bullying’ policy.”[28]Ms Buckingham sent the Claimant her investigation notes for agreement on 8 September, and he added some more information. He apologized for his demeanor and inability to recall events at the time, “with everything that I have going on right now it really knocked my senses”. He said he had no clear memory of the comment or touching of the shoulder, but either are plausible. He said he did have a clear memory of hugging Ms Said and squeezing her hand in the car park, and thought the dates were the same. He was disappointed with how he handled the situation with the two customers, and had the same conversation with both Ms Said and Lexi. He said that Ms Said’s response was “airy and dismissive”, but he knew it was a big deal so gave her a hug and a quick squeeze of the hand, and later when she passed him in the car park he squeezed her hand and reiterated how he would do better in the future.[29]The disciplinary hearing was on 28 October 2022. The disciplinary manager was Mr Beahm. The hearing had been delayed as the Claimant had been off work unwell following the illness and death of his mother.[30]The Claimant read out a statement at the start of the hearing which explained his version of events. He described Ms Said as being shy and reserved. He said he offered both Ms Said and Lexi a hug verbally and they accepted. He also said that he twice held out his hand to Ms Said, she gave him her hand, and he gave it a squeeze as an apology and reassurance. He provided a list of individuals who he wanted Mr Beahm to interview. He also asks that the CCTV footage is found to prove the innocent nature of the hug, although he could not pinpoint the date or time.[31]Mr Beahm asked the Claimant a series of questions about what happened. In relation to questions about consent, the Claimant is recorded as saying, “Specifically about that. I said “Can I give you a hug” and she really didn't seem to care about the whole situation. She went “eh” (Mike clarified that she didn’t say “eh” she said “yeah”) I put my arms around here and here. (Her shoulders) and she patted me with her right hand so she hugged me back as well”. The clarification in red text and brackets is a correction the Claimant made to the notes. Mr Beahm goes on to ask “From your perspective. Someone who said “eh” that’s accepting”, and the Claimant replies, “It was a nod and it was consensual”. Later he says that he did ask permission and she said “yeah”, and he goes on to say, “When I asked her she said “yeah”, her tone was “eh” but it was a yeah. I want to clarify that. It was a “yeah” like she didn’t care”. The Claimant also says that he finds the Respondent’s Harassment and Bullying policy very subjective and finds Ms Said’s reaction to be an overreaction.[32]During the meeting, Mr Beahm asked whether the Claimant was aware of Ms Said’s religion, and goes on to say that she is Muslim and “in the Muslim culture hugs and certain types of touch are not appropriate between a man and a woman when they aren’t in a relationship”.[33]After the meeting Mr Beahm considered whether he needed to interview the individuals suggested by the Claimant. He decided not to, because they would not add anything to the specific disciplinary allegations (apart from one person in relation to the “little sausage” comment which was not a major factor in his decision). Mr Beahm did not look into obtaining CCTV footage. In evidence at the hearing, Mr Beahm said that he did not think that CCTV footage was necessary in this case.[34]Mr Beahm’s evidence was that he initially concluded the Claimant should be issued with a final written warning for misconduct. He was satisfied the Claimant had acted in breach of the Harassment and Bullying policy, he had admitted three of the four allegations, and Ms Said had been negatively impacted by his behaviour. He was willing to give the Claimant an opportunity to think about and learn from his behaviour. He then spoke to Mr Campbell and discovered that the Claimant already had a live final written warning. This increased the sanction to dismissal. He took into account the fact the warning had made it clear that any further incidents of misconduct would be likely to lead to dismissal, and the warning had referred to a “lack of openness and honesty” which he felt was still present.[35]The disciplinary outcome meeting was on 4 November 2022 and was confirmed in writing. The outcome letter says: “The reasons for your dismissal are as follows:• That you have a clear understanding of Apple’s Business Conduct policies and Apple’s expectations on how we should treat each other.• That your belief that Apple’s Harassment and Bullying policy is “very subjective” to be concerning.• That your lack of empathy for [Ms Said], stating that she was overreacting without addressing your behaviours or what you could do differently troubling.• That you shifted your account of getting consent from [Ms Said] to hug/touch her throughout the process. Going so far as to say in your statement to me that you thought your previous comments made during this process are “invalid.”• That you already have a Final Written Warning live sanction from 25 March 2022 in which you also took no accountability for your actions and which clearly stated that your conduct must improve.• That I believe there is a lack of honesty and openness in this process as there was in the previous process that resulted in your Final Written Warning.”[36]Proper notes were not taken of the outcome meeting. They do record the Claimant asking to understand if Ms Said’s religion was a factor in the decision, and Mr Beahm replies “Yes it was”. Ms Lo was at this meeting and gave evidence confirming this answer.[37]The Claimant appealed on 9 November 2022. He listed 11 points of appeal. The appeal was dealt with by Mr McEvoy. The Claimant was unwell and so the appeal meeting did not take place until 15 December 2022. We have seen the full notes of this meeting.[38]Mr McEvoy carried out some further investigation after this meeting. He spoke to Mr Beahm, and looked into the issue of CCTV footage. His conclusions on points that are relevant to this hearing were: The Claimant had complained that there had been discussion about Ms Said’s faith during the hearing and this had been a big factor in the process. Mr McEvoy spoke to Mr Beahm about this and was told that it did not impact his decision, and he was satisfied that the same decision would have been reached irrespective of her faith (or no faith). The Claimant raised the issue of retaliation by Ms Said for the incident on the shop floor at the appeal. Mr McEvoy felt that there was nothing for her to retaliate against as the Claimant had not raised the issue with the leadership team. He was also satisfied that the Claimant’s actions had a negative impact on Ms Said in any case. The Claimant had complained that there had been a failure to interview people in his defence. Mr McEvoy had checked during the meeting whether any of the people listed by the Claimant would have witnessed any of these interactions, and the Claimant said they were not direct witnesses. Mr McEvoy felt that none of them would add anything to the allegations, as they were more in the nature of character witnesses. In relation to the CCTV, Mr McEvoy raised this with the ER Team and Loss Prevention. He was told that the system has “about” three weeks of footage, and would only be released if there are legitimate reasons and no data privacy implications.[39]Mr McEvoy provided the appeal outcome in writing on 7 February 2023. He did not allow the appeal. The letter explains Mr McEvoy’s findings on each of the appeal points. His overall conclusion was “I believe that [Mr Beahm’s] decision was a logical and reasonable response to the facts presented”. Applicable law Unfair dismissal
Applicable law
[40]The applicable law is set out in section 98 of the Employment Rights Act 1996 (“ERA”). Conduct is a potentially fair reason for dismissal.[41]The burden of proof is on the employer to show a potentially fair reason for dismissal. The test is whether the dismissal was fair or unfair, having regard to the reason shown by the employer, and in particular whether in the circumstances the employer acted reasonably or unreasonably in treating this as a sufficient reason for dismissing the employee (section 98(4)(a)). This is to be judged in accordance with the range of reasonable responses of a reasonable employer, and the Tribunal should not substitute its own judgment for that of the employer (Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 (EAT)). Under section 98(4) the Tribunal should also assess the fairness of the procedures used to dismiss the employee.[42]In conduct cases, a three-stage analysis for Tribunals to follow was set out in British Home Stores Ltd v Burchell [1978] IRLR 379 (EAT) –(1) did the employer believe the employee to be guilty of misconduct,(2) did the employer have reasonable grounds for believing that the employee was guilty of that misconduct, and(3) at the time it held that belief, had the employer carried out as much investigation as was reasonable in the circumstances of the case.[43]The range of reasonable responses test applies to the investigation (Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 23 (CA)). A more thorough investigation may be required where allegations are particularly serious and/or have the potential to have a serious effect on the employee’s future career (A v B [2003] IRLR 405 (EAT) and Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721 (CA)).[44]In relation to reliance on the previous live warning, as a general rule, it is not for the Tribunal to sit in judgment on whether a final warning was reasonably given, but it is entitled to satisfy itself that the warning was issued in good faith and that there were prima facie grounds for it. In particular, if there is anything to suggest that the warning was issued for an oblique motive or was manifestly inappropriate, the Tribunal can take that into account in determining the fairness of a later dismissal in reliance on that warning - Davies v Sandwell Metropolitan Borough Council 2013 IRLR 374 (CA). As was explained in Davies:a. The starting point should always be section 98(4) ERA. The question is whether it was reasonable for the employer to treat the conduct reason, taken together with the circumstances of the final written warning, as sufficient to dismiss the employee.b. It is not for the tribunal to reopen the final warning and consider whether it was legally valid or a nullity.c. The questions of whether the warning was issued in good faith, whether there were prima facie grounds for imposing it, and whether it was “manifestly inappropriate”, are all relevant to the question of whether dismissal was reasonable, having regard, among other things, to the circumstances of the warning.
Conclusions
[45]Our conclusions are as follows, taking the issues in turn. Unfair dismissal[46]What was the reason for dismissal? The Respondent asserts that it was a reason related to conduct. We accept on the evidence that this was a dismissal for misconduct and was not for a different reason, and so was for a potentially fair reason under the ERA.[47]Did the Respondent hold a genuine belief in the Claimant’s misconduct on reasonable grounds and following as reasonable an investigation as was warranted in the circumstances? We have considered each of these issues in turn.[48]We are satisfied that the Respondent held a genuine belief in the misconduct, based on the evidence in the documents and having heard from the witnesses at the hearing. There is nothing to suggest that the dismissal was for a different reason.[49]We are also satisfied that there were reasonable grounds. Ms Said had made a clear complaint which explained a serious impact on her. The Claimant had admitted during the disciplinary process that he had hugged her and twice squeezed her hand. Although he viewed these events differently from Ms Said, this was physical contact with a female colleague that was potentially in breach of the Respondent’s harassment and bullying policy. This policy makes clear that it is the effect on the individual which is important, not the intent of the harasser. The Claimant provided inconsistent answers during the disciplinary process about who he would hug, whether and how there had been physical contact with Ms Said, and whether and how he obtained her consent. He also questioned the subjective nature of the Respondent’s policy and did not accept the importance of the effect on the individual who felt harassed. In these circumstances, there were reasonable grounds for the Respondent’s belief that he had harassed the Claimant in breach of their policies.[50]We are also satisfied that there was a reasonable investigation in the circumstances. We have considered this issue carefully. The Claimant made a number of criticisms of the investigation, and Ms Buckingham did not give evidence so we did not have full information about what she chose to investigate and why. There are some points that the Tribunal considers could ideally have been handled differently, as explained below in relation to the allegation of bad faith/retaliation, and the CCTV footage. However, the relevant test is the range of reasonable responses. This is not a case where we need to apply a higher requirement for a thorough investigation because the allegations are particularly serious or have the potential to have a serious effect on the employee’s future career in the way suggested in the relevant caselaw - bearing in mind that the final disciplinary process would only have resulted in a final warning if the Claimant did not already have a live final warning. Overall, we find that the investigation did fall within the range of reasonable responses of a reasonable employer.[51]It is relevant to our assessment that the Claimant admitted having hugged Ms Said and twice squeezed her hand. The Claimant first referred to hugging people during his investigation interview, before the specific incidents had been explained to him. He said that the incidents could have happened, and later sent an email to Ms Buckingham confirming that he did hug Ms Said and squeeze her hand. By the point of the disciplinary hearing, the Claimant had admitted to things that were potentially unacceptable and in breach of the harassment policy. This reduced the need for further investigation. At the disciplinary hearing, he questioned this policy and gave some inconsistent answers. Mr Beahm also had concerns about his understanding of consent and was not satisfied that the Claimant would not do the same thing again. He based his decision on these issues and we do not find that it was reasonably necessary to investigate these further. Mr McEwen’s appeal also genuinely considered whether further investigation was required. We discuss below the reasons for our conclusions that specific investigations relating to other witnesses, the allegation of bad faith and the CCTV evidence were not required in order for the investigation to fall within the range of reasonable responses.[52]Was the decision to dismiss a fair sanction, that is, was it within the range of reasonable responses open to a reasonable employer when faced with these facts? Mr Beahm says that he had intended to give the Claimant a final warning, and only dismissed him because he already had a live final warning for misconduct. The issue of the fairness of the decision to dismiss therefore turns on whether it was within the range of reasonable responses to dismiss on the basis of the previous warning. The caselaw on this point as set out above is clear – the Tribunal should not reopen the previous warning, but should consider whether the warning was issued in good faith, whether there were prima facie grounds for imposing it, and whether it was “manifestly inappropriate”. The overall question is whether it was reasonable for the employer to treat the conduct reason, taken together with the circumstances of the final written warning, as sufficient to dismiss the employee.[53]We have considered the first written warning (as the Claimant would not have had a final warning if he did not have this first warning). The Claimant complains that his colleagues were not investigated, and says in his statement that this was “despite being the least culpable”. We do not find that this means the warning was not issued in good faith or was manifestly inappropriate, and we find that there were prima facie grounds for imposing it. We do not have evidence about what happened with the colleagues, but in any event the Claimant was clearly culpable as he tested positive for Covid-19 and then met with his colleagues inside his building. The Claimant says in his statement that this was for a “moment”, but during the investigation his colleagues both said it was for 15 minutes, and the Claimant himself said it was for “no more” than 10 minutes.[54]We have also considered the issue of Apple’s instructions on isolation and the Claimant’s conversation with Mr Spencer about the need to appeal his decision. There may not have been proper grounds for the warning if it was solely based on planning to go out while under isolation, because the Claimant had been symptom free for 48 hours at that point and had not yet tested positive. However, the warning itself was also based on his actions in meeting with his colleagues after testing positive. This is clear from the appeal outcome, which records that Mr Spencer had explained “how your decision to meet up with colleagues was a breach in the instruction to isolate and your choice to meet up with work colleagues in your corridor meant you put another Apple employee at risk of contracting COVID-19.” In context, we find that the conversation with Mr Spencer was about the decision to dock his pay, rather than about the entire warning. Again, we find that the warning was based on prima facie grounds, it was issued in good faith, and it was not manifestly inappropriate.[55]We have considered the final written warning, and whether any of the issues raised by the Claimant mean that it was not issued in good faith, it was manifestly inappropriate, or it was not based on prima facie grounds. We find that they do not. Mr Campbell did question the Claimant about being hungover, but this was appropriate as it was what the investigation was about. The Claimant says that he did not lie, but this is a finding that was open to the disciplinary manager in light of the message which suggested he was hungover, and his failure to acknowledge this during the investigation. The warning itself is not linked to dishonesty in the previous investigation, so any conversation with Mr Spencer about that investigation is not relevant to this warning. In addition, the Claimant did not appeal this warning. In Davies v Sandwell, Beatson LJ said that there would need to be “exceptional circumstances” for going behind an earlier disciplinary process where a final warning has not been appealed. There are no exceptional circumstances here.[56]We therefore find that it was within the range of reasonable responses to dismiss the Claimant on the basis of the live final written warning. The starting point is an expectation that any misconduct after a final warning will result in dismissal. The final warning expressly stated that the likely consequence of further misconduct would be dismissal. We also find that there is an overall pattern of a lack of honesty and openness between all three disciplinary findings which makes it particularly appropriate to link them together – the different accounts from the Claimant about how long his colleagues were in his building, his failure to acknowledge that a hangover may have caused him to be unwell so he could not continue at work, and differing accounts of the incident when he hugged Ms Said and squeezed her hand. We find that it was reasonable for the Respondent to treat the conduct reason, taken together with the circumstances of the final written warning, as sufficient to dismiss the Claimant.[57]Did the Respondent adopt a fair procedure? We deal with the specific points relied on by the Claimant in turn.[58]The Respondent removed evidence from the investigation pack in the investigation of conduct in October 2021. This relates to notes of the conversation between Mr Podmore and Mr Campbell about advice given to him on Apple’s isolation policy, which related to the period before the Claimant tested positive. As explained above, this was not the basis for the decision to give the Claimant a warning. The warning was based on him meeting colleagues after testing positive, as upheld on appeal. It is not an issue that makes the dismissal procedure unfair.[59]The Respondent failed to consider or investigate whether the complaint against the Claimant had been made in bad faith (due to the Claimant reprimanding Ms Said for inappropriate language). We have found that Mr Paoli did tell the Claimant not to raise this issue, and the investigation notes also record that Ms Buckingham said “that’s not part of this”. It is not good practice to discourage an employee from raising issues during a disciplinary investigation. The Claimant should not have been discouraged from putting this issue forward so the Respondent could have considered whether it needed to be investigated further during the investigation or disciplinary hearing. However, we find that this issue was addressed at the appeal. The Claimant was permitted to raise this argument and it was considered during the appeal. Mr McEvoy gave clear reasons why he did not believe this would affect the outcome, based on the fact the incident had not been reported to management by the Claimant, and the effect of the Claimant’s actions on Ms Said.[60]The Claimant says that Ms Said complained about him very shortly after this incident (as shown by a text message to Ms Lo), and the Respondent failed to see the significance of this. He says she may have reported him deliberately before he reported her. However, this was if anything more likely to bring the reprimand to the attention of management. We also note that the Claimant said in the appeal meeting that the reprimand was at the end of July or beginning of August, and his own witness statement says the reprimand happened a “few weeks” after the hug that Ms Said complained about. The timeline was not clear at the time, and the Claimant did not make this point about an immediate retaliatory complaint at the appeal meeting. In addition, in the circumstances, even if Ms Said had been motivated to complain because of the reprimand by the Claimant, it does not change the fact the Claimant had potentially behaved inappropriately. Ms Said’s account of the effect on her is serious, and the Claimant admitted to much of the physical contact. We therefore find that, looked at overall, this issue does not make the procedure unfair.[61]The Respondent failed to interview the following people in connection with the incident:a. Harry Williams – the Claimant says he discussed how to handle the customer incident with him.b. Brendan Marshall Evans – the Claimant says he discussed how to handle the customer incident with him.c. Benjamin Spencer – the manager who issued the first written warning.d. Daisy Ng – the Claimant says that others used the term “little sausage” with her.e. Lexi Nyeko – the Claimant says he gave her the same apology as to Ms Said. Mr McEvoy gave clear evidence that none of these individuals witnessed the actual incidents, and this is why he did not interview them. We agree that this was not a necessary part of a fair procedure when they were not direct witnesses, particularly where the Claimant had admitted that some of the incidents had occurred.[62]The Respondent failed to secure CCTV footage of the incident. The CCTV footage would have been available for roughly three weeks, so at the time of the investigation it may have been possible to obtain it. Ms Said herself raised the possibility at this time. Ms Buckingham appeared to be open to looking at it when she interviewed Ms Said, and as we did not hear evidence from her we do not know why she didn’t do so. However, we note that her investigation outcome is based on the Claimant not denying that the incidents had happened, and there was no accurate time or place (as the Claimant had not at this point provided his full explanation). Both Mr Beahm and Mr McEvoy said in evidence that they would have looked into whether CCTV footage was available at the investigation stage. But, by the time they were involved, the footage was very unlikely to be available. It is also difficult to see how it would have made any difference. The Claimant said he wanted the CCTV to verify whether there was consent. The CCTV does not have audio, so would be very unlikely to verify whether the Claimant asked for and received genuine consent (whether through “eh” or “yeah”) in circumstances where he did not deny having hugged Ms Said. Having considered this point carefully in all the circumstances, we do not find that it was unfair to fail to consider CCTV footage at the time of the disciplinary investigation. This was not necessary for a fair disciplinary procedure.[63]The Respondent manufactured aspects of the account, namely relating to Ms Said’s religion which was not part of her complaint. It appears that Mr Beahm did tell the Claimant that this was a factor in his decision, during the outcome meeting. This was looked into by Mr McEvoy. He was satisfied that Mr Beahm would have reached the same decision irrespective of Ms Said’s faith. Mr Beahm confirmed during his evidence that this was not the basis for his decision, which would have been the same if Ms Said had a different or no religion. This is consistent with the list of reasons for dismissal in the outcome letter which do not mention religion as a factor. It was potentially confusing to raise this issue with the Claimant during the disciplinary meeting when it had not been mentioned before. However, we do not find that this was “manufactured” by the Respondent or used during the disciplinary process in a way that made the overall procedure unfair.[64]The Respondent coerced Kieran Rogers into giving evidence against the Claimant. There is no evidence of coercion. The written notes show an interview with Mr Rogers that was based on open questions. In any event, the information given by Mr Rogers was not a factor in the decision to dismiss the Claimant.[65]Failing to take notes during the dismissal meeting. There are full notes of the disciplinary meeting. There are no proper notes of the outcome meeting during which the Claimant was dismissed. It seems that the Respondent did not intend to take full notes during this meeting. There is no requirement to do so to make a dismissal procedure fair. Having insufficient notes, as in this case, is likely to be less helpful than having no notes at all. However, the Claimant was able to clarify the basis for the dismissal decision as part of the appeal process. This does not make the dismissal procedure unfair.[66]Forcing the Claimant to sign documentation. This relates to the final written warning under the second disciplinary process. The Claimant says that he thought the notes of the investigation by Mr Campbell were not accurate. He says he was invited to the manager’s office and told by Mr Campbell “you have to sign these”. We do not see how this affects the fairness of the dismissal process. Even if it occurred as described by the Claimant, he went on to a disciplinary hearing at which he was able to give a full explanation before the final warning was issued. This is not an issue which enables us to reopen the final warning. It does not relate to the disciplinary process which led to dismissal, and does not make the dismissal procedure unfair.[67]The Respondent alleging that the Claimant was dishonest. The Respondent did identify a pattern of a lack of honesty running through the three disciplinary processes. This is a conclusion that was open to them in the circumstances. As already explained above, we also find that there is an overall pattern of a lack of honesty and openness – the different accounts from the Claimant about how long his colleagues were in his building, his failure to acknowledge that a hangover may have caused him to be unwell so he could not continue at work, and differing accounts of the incident when he hugged Ms Said and squeezed her hand. The documents we have seen relating to all three disciplinary processes show that on each occasion the Claimant changed his version of events and did not accept responsibility for his actions. We accept that the Respondent reasonably believed that the Claimant was not being open and honest. The Respondent’s conclusions that the Claimant had been dishonest does not make the dismissal procedure unfair.[68]The Claimant alleges the decision was predetermined. We have looked at the dismissal process overall. The managers asked appropriate questions. They did not always look into issues that the Claimant had raised, but they had valid reasons for this. Their decisions were based on the facts of the case. We have read the extensive documents relating to all three disciplinary processes. Mr Beahm and Mr McEvoy explained clearly the process that they followed and gave honest evidence. We understand that the Claimant does not agree with the Respondent’s interpretation of events or the outcome. However, we have not seen any evidence that the dismissal decision was predetermined. In fact, Mr Beahm had intended to give the Claimant another chance and issue a final warning. It is unfortunate for the Claimant that he already had a live final warning which caused him to be dismissed.[69]The Claimant clearly feels that he has been treated unfairly by the Respondent. We have considered his arguments carefully. Our role is not to re-decide the disciplinary process. It is to decide whether the decision to dismiss was reasonable in the circumstances (judged according to the range of reasonable responses), and whether a fair procedure was followed. We find that the Claimant’s dismissal was fair. His claim for unfair dismissal does not succeed. The Remedy Hearing that was provisionally listed for 25 October will no longer go ahead.