Mr G Nisbet v Notus Heavy Lift Solutions Ltd: 6001564/2023

EMPLOYMENT TRIBUNALS

Case No 6001564/2023

Between

Mr G NisbetClaimant

Notus Heavy Lift Solutions LtdRespondent

Before

Employment Judge C H O’Rourke

Mr I Pearson - solicitor for claimant

Miss E Wheeler - counsel for respondent

Date 3 October 2024

JUDGMENT

[2]By a combination, however, of the application of the Polkey principle and s.123(6) Employment Rights Act 1996, as to contributory conduct, no compensation is awarded to the Claimant.

[3]The Claimant’s claim of breach of contract in respect of notice fails and is dismissed. EMPLOYMENT TRIBUNALS Claimant: Mr Garrick Nisbet Respondent: Notus Heavy Lift Solutions Limited Heard at: Bristol On: 1 to 3 October 2024 Before: Employment Judge O’Rourke Representation: Claimant: Mr I Pearson - solicitor Respondent: Miss E Wheeler - counsel Amended REASONS (having been requested subject to Rule 62(3) of the Employment Tribunal’s Rules of Procedure 2013) Background and Issues 1. The Claimant was employed by the Respondent as a projects director at Hinckley Point C (HPC), in Somerset. The Respondent company is a subcontractor at HPC, reporting to the main contractor (EDF). The points of contact between HPC and the Respondent were Mr Daniels of EDF and the Claimant. In April 2023, he was accused of being involved in bribery and corruption of Mr Daniels, which led to his summary dismissal, on 12 April 2023. 2. As a consequence of that dismissal, the Claimant brings claims of unfair dismissal and breach of contract in relation to notice pay. 3. The issues in respect of those claims are set out in the Case Management Order of Employment Judge Dawson, dated 20 February 2024 and were confirmed, at the outset of this Hearing, to be as follows:a. Unfair Dismissal i. Has the Respondent shown the reason for dismissal? The Respondent states that it relates to conduct which is potentially a fair reason. The Claimant states that the true reason was an inter-company dispute between the Respondent and the previous owners of that Company, in which he was ‘collateral damage’. ii. Did the Respondent have a genuine belief in the Claimant’s misconduct, on reasonable grounds, based on as much investigation as was reasonable in the circumstances? The Claimant disputes such belief, reliant on the following factors: 1. A failure to carry out a proper investigation; 2. failure to follow procedure, setting out of precise allegations, the holding of a disciplinary hearing, being accompanied, or being allowed to appeal. iii. It is not in dispute that if the Respondent did have a genuine belief in the Claimant’s misconduct that dismissal, in those circumstances, would have been within the range of reasonable responses test. iv. Did the Respondent follow a fair procedure? The Claimant says not, referring to the above matters and which are not really contested by the Respondent. v. In the event of there being an unfair procedure and therefore an unfair dismissal, is the principle in Polkey engaged, as to remedy, in any event? vi. If the Claimant was unfairly dismissed, did he contribute to his dismissal by culpable conduct?

b. Breach of Contract in respect of Notice Pay. i. It was agreed that the Claimant’s notice entitlement was six months. ii. He was not given or paid for that notice. iii. Was the Respondent entitled to dismiss without notice? The Law

[4]I reminded myself of s.98 of the Employment Rights Act and that when hearing a case of unfair dismissal, a Tribunal’s powers are limited, specifically that I am not permitted to substitute my judgment for that of the employer. Rather, it is for me to say whether both the decision to dismiss (Iceland Frozen Foods –v- Jones

[1983] ICR 17

EAT) and the way in which the investigation was conducted (J Sainsbury Plc –v- Hitt

[2003] ICR111

CA) fell within the range of responses of the reasonable employer, in the circumstances in which the Respondent found itself. If the dismissal or the conduct of the investigation falls within the range, it is fair, if outside, then it is unfair. The Facts

[5]I heard evidence from the Claimant. On behalf of the Respondent, I heard evidence from Ms Hannah Mather, Group HR Director and Mr Dave Vaughan, a then Managing Director of the Respondent.

[6]It is clear that while the Respondent itself is a small company, its membership of the BES group of companies indicates that it had all the management and administrative resources one would expect from an organisation of that size.

[7]Chronology. I set out the following chronology: April 2017 – the Claimant commenced employment with the Respondent, then owned by two directors/shareholders, a Mr Walberg and a Mr Mohammed, to work at HPC. In or about October 2018 – he was promoted to lifting manager and shortly afterwards met Mr Daniels, who had recently been appointed by EDF, to be head of lifting and temporary works at HPC. 2019 – he was further promoted, to ‘head of lifting assurance’, with a pay rise and an annual personal allowance of £800, to cover some personal ‘entertaining’. June 2020 – he was made a director of the Respondent, with some share allocation. May 2022 – another company, British Engineering Services Ltd (BES) bought out the shareholders in the Respondent company, retaining the employment of the Claimant and Mr Mohammed. The Claimant had a side-agreement with the previous two directors, to buy out his shares, in three tranches, which shareholding he then surrendered. 18 August 2022 – the Claimant arranged a meeting with Mr Vaughan, at which he raised concerns about payments that had been made to Mr Daniels, with the implication that he (Mr Daniels) was being bribed by Mr Muhammed, to ensure that work was directed the Respondent’s way [notes 164]. The Claimant said that he believed that Mr Daniels was already under investigation by EDF/HPC. The matter was left in Mr Vaughan’s hands. It was considered, at the time, by the Respondent that the Claimant was a whistleblower. October 2022 – Mr Mohammed was dismissed/resigned on three months’ notice, to expire on 13 January 2023. 2 December 2022 – The Respondent’s evidence was that Ms Mather, Mr Vaughan and a Mr Rowe, met to discuss the evidence that had been gathered in an ‘investigation’ and concluded that the Claimant was also implicated and should be dismissed. They said, however that they had been advised/directed by their legal advisors that as the matter was to be reported to the Serious Fraud Office (SFO), they should take no action, until informed by the SFO/their solicitors that they could do, in order not to prejudice the SFO’s investigation. 13 January 2023 – Mr Mohammed’s employment terminated. 31 March 2023 – Ms Mather stated that on or just before that date, having been informed via their solicitors that they could proceed, she and the others mentioned above, exchanged emails [179-181], effectively agreeing that the Claimant had committed gross misconduct and that he should be dismissed. 3 April 2023 – Mr Vaughan met with the Claimant and gave him a letter of suspension [167]. Ms Mather agreed, in evidence that this letter was a ‘sham’, as it was never intended, as stated in the letter that there would be a disciplinary process (beyond summary dismissal). The Claimant had been living in Company-provided accommodation from which he was evicted. 11 April 2023 – The Claimant was summarily dismissed, with effect the next day, by letter of that date [169]. He was not offered an appeal.

[8]Ms Mather’s Evidence. I summarise Ms Mather’s evidence as follows:a. She became aware of the Claimant’s meeting with Mr Vaughan in August 2022. She agreed that the Claimant, while titled ‘project director’, was simply an employee, not an officer of the Company.

b. In view of the serious nature of the allegations it was decided to carry out an investigation. On legal advice, the Respondent reported the matter to the SFO, in late December 2022.

c. Consent was not given by the SFO to disclose the fact of the investigation, until late March 2023, in order, Ms Mather said, to avoid ‘tipoffs’. No action was taken against the Claimant in the intervening period and Mr Mohammed’s employment had terminated in January 2023. Ms Mather said no action was taken against Mr Mohammed, as his employment was ending in any event. She confirmed that the Respondent was acting on legal advice that until SFO approval, no action could be taken. She said that an overwatch was kept on activity that might be concerning and she confirmed that nothing was reported to her of any adverse inference in respect of the Claimant.

d. She said that evidence was found that implicated the Claimant in the misconduct he had accused Mr Mohammed/Mr Daniels of, as follows: i. Emails from the Claimant in which he refers jokingly to EDF’s ‘gifts and hospitality’ policies, in January 2018, saying ‘do you think someone has grassed him up??!!’, which the Respondent believed referred to Mr Daniels [93-96]. Ms Mather was asked whether, in fact, as the Claimant said, that reference could have related to a Mr Milledge, a former employee of the Respondent, who, the Claimant said, was inviting bribes at the time and accepted that that was the Claimant’s assertion, but she did not necessarily agree with it. ii. A further ‘jokey’ email, in relation to a similar policy document, in July 2018, stating ‘thought you might like the attached !!!’, when sending the policy to Mr Mohammed and Mr Walberg [97-108]. iii. Another ‘jokey’ email of December 2018, again in relation to the policy for ‘Gifts and Hospitality at Christmas’, stating ‘Oh Oh!! (smiley face)’ [109- 110]. Again, Ms Mather said that this related to Mr Daniels and that the Respondent took a ‘holistic’ view of the evidence, cumulatively, which pointed to the Claimant’s involvement in bribery. iv. Evidence of the Claimant being aware of the purchase of a ‘package’ hospitality deal for a professional boxing match, in London, in May 2019, with the invite being sent to Mr Daniels’ personal email address [111], which Ms Mather considered significant. When challenged that in fact nobody attended the match, which, it was stated, she would have known if a proper disciplinary process had been followed, she said that it ‘didn’t matter, as the offer was enough’. She referred to the Respondent’s hospitality policy which she said could only be offered in respect of workrelated events, which this boxing match clearly wasn’t, she describing it as ‘an unrelated jolly’. She agreed/was unsure, however that if, following a ‘proper’ investigation, the event had been shown to be registered, it could, accordingly, be considered legitimate. v. Evidence of the Claimant being aware of the purchase of an £11,000 quad bike for Mr Daniels [114-116], with, in the same email chain, Mr Mohammed stating to the Claimant that ‘he can’t expect to use your company expenses as a personal bank, it’s too easy [115]. vi. Evidence of the Claimant purchasing an ink refill for Mr Daniels’ ‘Montblanc’ pen [114-116]. In that correspondence, the Claimant referred to Mr Downs Daniels as ‘a wee piss taker, to be honest, he’s hard to say no to, but I’ll be a bit stricter with him going forward’. Mr Mohammed responds ‘he’s not exactly squeaky clean here either and I don’t want him to just take liberties and expect a ‘yes’ every time he fancies something.’ While Ms Mather accepted that the cost of a refill would be minimal (perhaps £7.50) she said that any use of expenses to pay for somebody else outside the Company was improper – the value was irrelevant. vii. Evidence from November 2019 of the Claimant booking flights for himself and Mr Daniels to go to Amsterdam (although the Respondent subsequently accepted that these were legitimately for attendance at a trade event). Ms Mather pointed out her view that the use of Mr Daniels’ work email address for this legitimate purchase, as opposed to his personal email address for other suspect purchases, indicated a desire to cover tracks. She agreed that if there had been a disciplinary process the fact of the flights being for a legitimate purpose would have emerged at the time, rather than subsequently, in these proceedings.

e. She also referred to evidence subsequently disclosed by the Claimant in these proceedings, as to a chain of texts, with direct reference to the quad bike [113], where he passes a text from Mr Daniels, to him, onto Messrs Walberg and Mohammed, with a picture of a quad bike and Mr Daniels referring to ‘needing a hand’, to which the Claimant replied with ‘LoL!’ and a ‘thumbs up’ emoji. Mr Daniels goes on to explain that ‘I’m getting new mortgage and it will fuck my credit’, followed immediately by another message referring to ‘10th your man starts ...approved by HR’. The Claimant comments, on passing the message to Messrs Walberg and Mohammed ‘FFS!’. Mr Walberg responds, ‘haven’t we just spent £2k+ on boxing tickets!’ Mr Walberg then goes on to say ‘Don’t suppose we can if he now wants a new Tonka toy!’ Further on, he says, ‘I know what my priority would be’ ... ‘maybe he could give us some of that Training budget in return’ (questioning emoji), to which Mr Mohammed adds ‘That’s an idea haha’. Ms Mather believed that this indicated the Claimant’s involvement or connivance with the bribery of Mr Daniels. She did not accept that nothing in this correspondence and the earlier correspondence found in the investigation showed that the Claimant was ‘acknowledging’ that correspondence. She did accept, however that she was unaware of any documentation showing actual purchase of such a bike.

f. She and what she referred to as the other ‘decision-makers’ met in December and decided that the Claimant would be dismissed, but that nothing could be done until the SFO approved further action.

g. She said that on 30 March 2023, they received that approval and exchanged emails on that date, confirming the decision to dismiss [179-180]. Those emails do not reference the earlier decision in December and are written as if it is only at this point that the decision is being made. Ms Mather agreed that they were written in a ‘contemporaneous way’. She agreed that, in hindsight, it would have been more sensible to write it in the present tense, recording the reality of the situation.

h. She was challenged as to her knowledge of the ‘side deal’ between the Claimant and Messrs Walberg and Mohammed and said that because Mr Vaughan had recorded the Claimant mentioning such a deal to him in his notes of the August 2022 meeting, she was aware of its existence, but not its detail, or when it would come to be paid. When it was suggested to her that in fact she was aware of the significance of the 31 March 2023 date, because that was when the Claimant would be due payment of the third tranche of his share buyout (approximately £95,000), as well as Messrs Walberg and Mohammed being due much larger payments, from the Respondent and that these payments could be withheld because of the bribery allegations, thus rendering it ‘inconvenient’ for the Claimant to remain in post, she said she was unaware of any significance to that date, stating that it was prompted only by being granted the authority by the SFO to proceed.

i. Mr Vaughan issued a letter of suspension to the Claimant on 3 April 2023 [167]. Ms Mather agreed in evidence that that letter’s reference to no decision to either discipline or dismiss the Claimant having been made and the possibility of a forthcoming disciplinary process being arranged was a sham. She also agreed that the detail as to the allegations against the Claimant (‘you may have been involved in instances of very serious allegations of bribery and/or secret commissions’ and, in the dismissal letter ‘you were involved in providing gifts and bribes to Ashley Daniels at EDF which included your knowledge and involvement in the purchase of a £11,000 quad bike in the summer of 2019’ and ‘other evidence of bribery including the misuse of company expenses’) ‘was not as clear as it could be’.

j. On 11 April 2023, without any other procedure, the Claimant was summarily dismissed, with effect the next day [169]. He was not offered an appeal. Ms Mather agreed that the only purpose of the time period between the two letters was to attempt some settlement with the Claimant, which was unsuccessful, not to follow any disciplinary process. Ms Mather was challenged on this lack of procedure and whether it had been fair, and she said ‘not by the letter of ACAS, but this was an extremely unusual situation. We took a holistic view of all the evidence; the importance of the Claimant’s role and that it was too big a risk to permit him to remain. It would have been the same outcome in any event.’ When further challenged that there was ‘no evidence that the Claimant was complicit in bribery’, with the evidence indicating that Mr Daniels had bought the quad bike himself, she said that it was the cumulative evidence, over a twelve-month period, to include the ‘jokey’ emails and the fact that the Claimant was aware of the purchase of the bike for Mr Daniels, with whom, as the Respondent’s senior person on site, he had a direct relationship.

k. She did not believe, if any further investigation had been carried out and a disciplinary process gone through, allowing the Claimant to offer explanations, that the Respondent’s view would have changed. When it was suggested to her that the Claimant had now ‘explained three of the four’ allegations against him, she said that he was ‘attempting now, looking at the evidence, to explain them away’, but she still believed, based on all the evidence, to include the ‘jokey’ emails that the Respondent’s decision was proportionate, bearing in mind that he was the senior person on site; the reputational risk to the Respondent; ‘fears as to a criminal angle’ and that the anti-bribery and corruption policy was clear, that he had committed gross misconduct and that all trust and confidence in him was gone.

l. She considered that previously as a shareholder in the Respondent company and then hoping to profit from his share buy-out, the value of which was dependent on the success of the Company that the Claimant had a clear financial motive to be involved in the bribery of Mr Daniels, in order to secure more work for the Company. When challenged, therefore that this statement indicated that she was aware of the financial significance of the 31 March date for the Claimant, she said that she was referring to the ‘sale of notice’ of 27 May 2022.

[9]Mr Vaughan’s Evidence. I summarise Mr Vaughan’s evidence as follows:a. Prior to his meeting with the Claimant in August 2022 and the subsequent investigation, Mr Vaughan had had no concerns about the Claimant’s performance.

b. His understanding of Mr Daniels’ role at HPC was that he ‘had full authority to decide who came on site … and without Ashley’s approval, Notus would not have any personnel on site.’.

c. Having been asked for a face-to-face meeting by the Claimant, he arranged that, at his offices in Warrington, on 18 August 2022. He was asked if he could recall a previous face-to-face meeting a week before, with the Claimant, at which staffing issues were discussed, to include the loss of staff and concerns about them being underpaid and he said he couldn’t. He made written notes at the time of 18 August meeting, which he subsequently had typed up. He confirmed that the notes were accurate and said, on questioning that they reflected the sequence of the meeting, being noted in the order in which were discussed. Beyond this point, no challenge was made to him as to the accuracy of the notes. He said that the Claimant brought ‘a raft of paperwork’ to the meeting, which the Claimant showed him, but did not permit copies to be made, taking it away with him. He said that he could not recall if the Claimant had shown him all the documents now listed by the Claimant at page 163, documents being ‘flashed in front of me’ but can recall seeing a 2021 payment ledger, showing various payments to Mr Daniels (or a company in his name), classed as ‘consultancy fees’ [166] and a copy of the ‘side agreement’ between the Claimant and Messrs Walberg and Mohammed, but he did not read the detail of it [159].

d. He said that the Claimant began by explaining the side agreement and said that he had not been paid the amount he should have been and that ‘it was clear that there was a strained relationship between Garrick and James’.

e. After that the Claimant went directly on to say that he had evidence of money being paid to Mr Daniels to facilitate the presence of the Respondent’s personnel at HPC. The Claimant is recorded in the note as stating ‘GN advised that he believes AD (Mr Daniels) is currently under investigation by HPC/EDF Security.’ When questioned if it ‘was not surprising that the Claimant would turn up on 18 August and provide details of payments to Mr Daniels, if he was involved’, he said that the Claimant ‘may have assumed he wouldn’t be considered as involved, if he whistle blew’.

f. Mr Vaughan said that the Claimant said something along the lines of ‘I am trusting you with this’, which Mr Vaughan took to mean that the Claimant did not wish the matter escalated to BES (although he agreed, in crossexamination that the Claimant had not specifically asked him not to pass his concerns on). He didn’t agree the suggestion that what the Claimant really meant was that his name be kept out of any subsequent investigation. He did, however, in any event, escalate the matter and while he was unaware of the details of the subsequent investigation, he was kept generally informed as to its progress. He subsequently took part in the March 2023 email exchange, agreeing that the Claimant should be dismissed. He said that he was unaware of the earlier December 2022 decision to do so, in any event and it was only in March 2023 that he was aware of the detail of the allegations ‘the quad bike, the pen and the airline ticket’. He agreed that subsequently he was informed that the airline tickets were for legitimate reasons.

g. He signed both the suspension and dismissal letters. He personally handed the suspension letter to the Claimant and also supervised his eviction from the Company-owned accommodation the Claimant had lived in for some time. Mr Vaughan was asked about his knowledge as to the Claimant’s assertion of the significance of the 31 March date, in relation to the ‘earn out’ and he said that he was not aware of any such significance. He said he could see now, as he was being asked the question that 31 March would be ‘logical’, but had not at the time.

h. He was also asked if he recalled authorising the purchase of ten Christmas hampers, at £200 each, as gifts for persons at HPC (with the implication by the Claimant that this indicated ‘gifts’ by the Respondent to external persons) and he said that he couldn’t remember any such authorisation.

i. He reiterated Ms Mather’s rationale as to the need for dismissal and that the implementation of any disciplinary process would not have made any difference to the outcome.

[10]The Claimant’s Evidence. I summarise the Claimant’s evidence as follows:a. He believed that his dismissal was not because of involvement by him in acts of bribery (which he denied), but by way of him being ‘collateral damage’ in a dispute between the Respondent/BES and Messrs Walberg and Mohammed. The allegations against him and Messrs Walberg and Mohammed permitted BES to withhold remaining payments due to them, in the sum of £1.9m and that retaining him in employment would put BES ‘into a more difficult position vis a vis their position with their former directors.’ When challenged as to what he based this allegation on, he said he ‘didn’t know, but was suspicious and couldn’t trust Mr Vaughan.’ (On being asked to clarify this point, he said the lack of trust was because of Mr Vaughan not keeping his name out of the subsequent investigation.) He said that Ms Mather was lying about her stated lack of knowledge of the significance of the 31 March date. In respect of the SFO investigation and the instruction to the Respondent to hold off any action, when it was suggested that he had no reason to doubt that chain of events, he said that he had ‘no knowledge’ of that matter.

b. When he first started working at HPC, the person he eventually replaced, a Mr Milledge, was involved in bribery. He said that when he found out of this, only when the report was produced, it ‘was a shock’ to him. It was suggested that that could not be correct, as why else was he ‘joking’ in the early 2018 emails, which he was asserting related to Mr Milledge, not Mr Daniels.

c. Shortly after he replaced Mr Milledge, in or about October 2018, as Lifting Manager, Mr Daniels was appointed to his role at HPC. He said that while he had a good relationship with him, Mr Mohammed and he had a ‘very friendly relationship’. The Claimant and Mr Daniels ‘often sat next to each other in the office’. He said that he was ‘not sure’, however that he was the ‘key contact’ for the Respondent at HPC.

d. He said that he had no access to the ‘financials’ at the Respondent Company, that being for the Directors only. Even after he was made a director and granted shares, he ‘was still very much the junior partner and had zero authority or influence within the Company.’ He agreed, however that he had subsequently complained to Mr Vaughan as to his loss of previous status, vis a vis the other directors, showing a structure chart where he had been previously on a par with them. He accepted that he was ‘a senior member of staff but had no involvement in the financials’.

e. On the sale of the Company to BES, he entered into the side agreement with the other directors, with payment for his shares to be in three tranches, the third due on 31 March 2023.

f. He agreed that he was aware of the Respondent’s anti-bribery policy and the zero-tolerance approach it took to such behaviour. He also agreed that any breach could lead to disciplinary action, resulting in dismissal. He further agreed that any concerns of that nature should be raised at the earliest opportunity.

g. At the point of sale, in May or June 2022, the Claimant gained access, for the first time, to accounts information for the Company and he discovered the payment ledger showing payments to Mr Daniels. He said that that this was the first point at which he had evidence of possible bribery. When asked, therefore, why he had ‘sat on’ this information for two months, despite the risks to BES, he said that it ‘was a surprise’ to him, and in which he had no involvement. He said that he needed to think about it, as the information had serious implications for both him and others and that two months was not unreasonable, particularly as he was unfamiliar with newly-in place BES personnel.

h. At the same time, he had concerns that the Respondent was losing its position at HPC, with more work being allocated to a competitor and staff turnover increasing. He raised this with Mr Muhammed, but he was not interested 'probably because he had a million or so pounds in his bank account’ (from the sale to BES). The Claimant was concerned about the Company’s profitability being sufficient to justify his third payment tranche.

i. He had the meeting with Mr Vaughan on 18 August 2022, raising these concerns and also his concerns about bribery of Mr Daniels. While he initially said that he was merely reporting his ‘suspicions’ as to such activity; was not involved in ‘financials’ and ‘was not the police’, he agreed, eventually, in cross-examination that the ‘notes record classic bribery’. When it was suggested to him that the notes indicate that this was an ongoing issue, he said ‘that’s what the notes say, I don’t know.’ He said, however that the notes were not in the correct, chronological order, in relation to how the discussion went. He said it was not correct that he didn’t want the matter escalated, he just hoped that it would be done so discreetly, keeping his name out of it, so Messrs Walberg and Mohammed would be unaware of his involvement, thus not prejudicing the final side deal payment due to him. He denied that he had referenced a dispute with Mr Mohammed, in this conversation, which he said was not ‘in the past, now settled’, or that any such dispute was at least partially his motivation for now raising his concerns about Mr Mohammed. He also agreed that he had referenced Mr Mohammed’s apparent drug problem. When challenged that Mr Vaughan’s notes were an accurate record of the meeting and in which he had extensively referred to his differences with Mr Mohammed, he said, for the first time that the notes covered a meeting that went on for two hours and ‘were riddled with inaccuracies’. When challenged as to why he had not said this previously, in his statement, or in crossexamination of Mr Vaughan, he said that he thought he had raised such concerns with his advisors.

j. The Claimant agreed that he had informed Mr Vaughan as to Mr Daniels being subject to investigation by HPC security. When it was suggested that this was another possible motivation for him to inform Mr Vaughan as to the bribery allegations, as he needed ‘to get ahead’ of that investigation, by presenting himself as a whistleblower, in a somewhat indirect answer, he said, for the first time, that he had previously mentioned these matters to two people he trusted. When challenged further that ‘getting ahead of the investigation’ was a logical explanation of his motivation, he said that he ‘understood, that is your narrative’.

k. He considered that Mr Mohammed was subsequently, in October 2022, ‘asked to leave’ the Respondent, his employment terminating on 13 January 2023, although he didn’t know for sure.

l. Nothing else occurred until 3 April 2023, when he was suspended by Mr Vaughan, which ‘came as a complete surprise’. He was unclear as to what was being alleged against him, but ‘it dawned’ on him that it might relate to his disclosures to Mr Vaughan in the previous August.

m. As is not really in dispute, he was subsequently summarily dismissed, without any further process being followed.

n. As to the evidence relied upon by the Respondent, the Claimant commented as follows: 1. The ‘jokey’ emails of 31 January and 5 July 2018 related to suspected activities of Mr Milledge, not Mr Daniels, who was not at that point in position at HPC. The Claimant said that he couldn’t ‘confirm what he was thinking at the time’. 2. The ‘Oh Oh’ comments on the Christmas hospitality email of December 2018 (sent after Mr Milledge had been dismissed and Mr Daniels was in post), were likely to be related to the ordering by the Respondent of Christmas hampers for ‘a number of HPC senior personnel’, which custom continued under Mr Vaughan, in December 2022. When asked, he said that he didn’t know if the provision of hampers was in breach of policy and then was further asked as to why, therefore, the matter was funny, if there was nothing suspect and he said he didn’t know, but ‘at the time there were thousands of pounds flying about’. When it was suggested to him that these three jokey emails in an 18- month period gave the impression that he knew bribery was occurring, but that EDF had not found out, he reiterated his explanation as to Christmas hampers. 3. The boxing match invites in May 2019 were sent by Mr Mohammed, without the Claimant’s involvement, or interest. The Claimant didn’t know if Mr Mohammed, or Mr Daniels followed any anti-bribery policy that was in effect at the time, before BES ‘was on the scene’, in making these arrangements, but it was nothing to do with the Claimant. He said that it would not just have been him and Mr Daniels attending, but eight to twelve others. He didn’t know why Mr Mohammed would have used Mr Daniels’ private email address and said that there were multiple other guests and multiple such other events. 4. In respect of the quad bike messages, in May 2019, the Claimant had no idea why Mr Daniels should have sent him such a message directly, as it was nothing to do with him. When asked why Mr Daniels would send the message direct to him, if he was not involved, he said that he ‘didn’t know at the time, but now wonder if Ashley had asked too much of them (the directors), but he knew I was not in a position to approve it, so it was strange. He was greedy and asked too much.’ He didn’t agree that his ‘LOL, ‘winky face’, ‘thumbs up’ comment made him appear complicit and he said that he sent a lot of messages with smiley faces, emojis and GIFs etc. He agreed, however, that he could ‘see how it looks’. When asked about his ‘FFS, rolling eyes emoji’ comment, he agreed that that indicated that he was exasperated by Mr Daniels, as he ‘was known as asking for favours, was self-entitled and greedy, was cheeky and a greedy little toad’. He said however, when challenged as to previous ‘favours’ (his word) he had done for Mr Daniels that these were limited to lunches, or coffee and biscuits. He had no further involvement in the matter, apart from having a discussion with Mr Daniels a week later, in which he said that he ‘didn’t want NOTUS to pay it for him, and that he would pay for it, but that he couldn’t get the credit himself’ due to him trying to get a mortgage at the time. However, when challenged, he denied that Mr Walberg stating in his email [115] that ‘I would expect the purchase of an £11k quad bike to give us a bit of breathing space’ could only mean that the bike had been purchased for Mr Daniels, as a bribe. When it was suggested to him that him saying, in response that ‘I agree mate, he’s a wee piss-taker, to be honest he’s hard to say no to, but I’ll be a bit stricter with him going forward’ [114], could only mean that he was clearly involved, he said that he ‘was worried’ about what was happening. When it was further suggested that if indeed, he was worried, then he had sat on this information for three years, he said that there were ‘no avenues’ for him to take, as there were only Messrs Walberg and Mohammed in the Company, so he had nobody else to go to. 5. The Montblanc pen refill was simply that the Claimant, having purchased a double pack of refills for his own Montblanc pen (a gift from Mr Mohammed), for £15, on his expense account and being asked by Mr Daniels if he could have one of them, for his Montblanc pen, he had agreed, with Mr Daniels saying that he would pay him back. 6. As agreed by the Respondent, the flights to Amsterdam were legitimate.

o. In summary, when it was suggested to him that he was well aware of ongoing bribery over a three-year period, but had not raised it until August 2022, he said that ‘it warranted a conversation, which I would have welcomed’.

p. He did not accept that the evidence indicated that he was clearly involved and that therefore there was no question that even with a disciplinary process, he would have been dismissed, stating that if there had been, he could have explained, but was not given the opportunity to do so. Findings

[11]As this claim involves consideration of both Polkey and contributory fault allegations, it has been necessary for me to consider the evidence provided in this hearing, in detail, not simply that evidence before the Respondent at the time of dismissal, as I must reach decisions as to what actually occurred at the time.

[12]That leads me, therefore, to consider the quality of the respective evidence I have heard in this hearing, weighing it accordingly. On balance, I consider that I prefer, generally, the evidence of the Respondent, over that of the Claimant, for the following reasons:a. While the Respondent clearly had not followed a proper procedure and presented sham correspondence to the Claimant, the Respondent witnesses readily admitted that fact, stating that due to the pressures that BES and the Respondent felt under at the time, as to reputational loss, possible criminal implications and the Claimant’s position at HPC, they felt that they had no option but to proceed as they did.

b. In contrast, the Claimant was on occasions evasive and self-serving in his evidence, as follows, by way of example: i. His belated decision to challenge the accuracy of Mr Vaughan’s notes, when he realised that their contents could be used against him. ii. His attempt to present Mr Milledge’s behaviour as being a belated ‘shock’, on seeing the report, when, on his own evidence, his early 2018 emails allegedly related to such behaviour. iii. His attempt to downplay his ‘key’ position at HPC, for the Respondent company, as being the senior person on site, with regular contact with Mr Daniels. iv. His refusal in cross-examination, until pressed, to accept that he was making a report of ‘classic bribery’ to Mr Vaughan, rather than, as he asserted, ‘suspicions’ indicating, still, an attempt to distance himself from intimate and personal knowledge of these matters. v. His disingenuous use of the word ‘favours’ when what was clearly taking place were the giving of bribes, indicating a desire to play down the seriousness of these matters. vi. His inability to offer an alternative, innocent explanation for his response to Mr Walberg’s comment that ‘purchase of an £11k quadbike giving them breathing space’, being that he would ‘be a bit stricter with him going forward’.

[13]Having reached that conclusion on the evidence, I turn now to the issues I need to decide on, which I do on the balance of probabilities, which evidential test applied equally to the Respondent’s decision-making.

[14]The Reason for Dismissal. I am quite clear that the reason for dismissal was the Claimant’s misconduct. The Claimant’s assertion that it was linked to or motivated by payments due to him and Messrs Walberg and Mohammed, is just that, an assertion. Both Ms Mather’s and Mr Vaughan’s evidence indicated that while there were aware of the fact of a side agreement, they had no knowledge at the time of the significance of the 31 March date and in any event any payment due from Messrs Walberg and Mohammed to the Claimant was nothing to do with the Respondent. The idea that, absent any allegations of involvement in bribery, that they would have nonetheless dismissed the Claimant, when by all accounts his performance was otherwise well regarded, simply because keeping him ‘would put BES into a more difficult position vis a vis their position with their former directors’, is fanciful.

[15]Genuine Belief in the Claimant’s Misconduct. It was clear to me from the Respondent witnesses’ evidence that they did and still believe that the Claimant was involved in bribery and corruption, which, being a clear breach of their policies in that respect, as well as being potentially criminal activity, justified dismissal. The core evidence upon which they relied were the exchanges about the quad bike which then (and now) are incapable of an innocent explanation and clearly implicate the Claimant in personal involvement in bribing Mr Daniels. The other emails and the pen refill incident are merely background to that exchange of emails and texts, which alone justified the Claimant’s dismissal, even if the Claimant’s explanations as to earlier emails and the pen are accepted.

[16]Dismissal within range of responses of the reasonable employer. As accepted by the Claimant at the outset of the Hearing, if it was found that an employer had a genuine belief in such misconduct, dismissal was certainly within the range of sanctions open to them, bearing in mind the seriousness of such conduct, the reputational and business risks to the Respondent and possible criminal implications.

[17]Fair Procedure. It was never really in dispute in this Hearing and as accepted in Miss Wheeler’s closing submissions that there has been a complete absence of fair procedure in this case, either of internal disciplinary procedure, or compliance with the ACAS code. Accordingly, therefore, on that basis alone, the Claimant was unfairly dismissed.

[18]Polkey. The decision to dismiss having already been made three months earlier, any attempt at carrying out a disciplinary procedure would have been pointless, unless designed to attempt to camouflage the Respondent’s unfair dismissal of the Claimant, which, in view of the evidence given, would have been seen through at this Hearing. Based on the evidence I’ve heard, I am in no doubt, even had no prior decision been made in December 2022 and a fair disciplinary procedure been followed that the outcome would have been the same. While the Claimant may have been able to explain away some of the allegations against him, or challenged the level of seriousness of them (the pen refill, for example), as he has done in this Hearing, the core allegation against him, in relation to the quad bike, which has been forensically examined in this Hearing, still remains incapable of an innocent explanation, as it would have done, I am confident, before any disciplinary panel that may have been convened by the Respondent. I conclude, therefore that the following of a fair disciplinary procedure would, in any event, have made no difference to the outcome of this case, the Claimant’s summary dismissal for gross misconduct and that therefore no compensation is awardable to the Claimant.

[19]Contributory Fault. Even if, however, there was some counterargument to that Polkey finding, it is clear from the evidence that the Claimant was, on the balance of probabilities, complicit in bribery and corruption involving Mr Daniels, over a two-year plus period and thus engaged in culpable behaviour. He only decided to disclose this information, carefully attempting to disengage himself from such activity, to Mr Vaughan, after two plus years of engagement in it because, as he stated to Mr Vaughan, Mr Daniels was by then already under investigation and therefore, as that investigation would inevitably lead to him, he decided to present himself as a whistleblower, in the hope (unsuccessfully) of evading blame. His argument that he had nobody to report his ‘concerns’ to, until Mr Vaughan was on the scene, is disingenuous, as he was never going to ‘report’ these matters to anybody, as he was personally involved in them, that is until forced to do so by his fear of being implicated by Mr Daniels. His conduct was clearly therefore a contributory factor in his dismissal which were it not for my finding in relation to Polkey, would have reduced any compensation awarded by 100%, particularly bearing in mind the seriousness of the allegations, the possible criminal implications, the reputational risk to the Respondent and his senior position, representing the Respondent, at HPC.

[20]Breach of Contract. Having found on the balance of probabilities that the Respondent was entitled to dismiss the Claimant without notice, as he had committed gross misconduct, his claim of breach of contract in respect of notice, must fail. The argument that the Respondent affirmed the Claimant’s contract in December 2022, despite an alleged breach of contract by him and thus that he is entitled to notice pay is not accepted. The alleged breach of contract I need to consider, in this case, is the potential breach of contract by the Respondent (not the Claimant) in declining to honour the term of the Claimant’s contract in relation to notice or PILON. As I have found, however, the Respondent was not in breach, as they were entitled, in these circumstances, to dismiss without notice. The Respondent unfairly dismissed the Claimant.

[2]By a combination, however, of the application of the Polkey principle and s.123(6) Employment Rights Act 1996, as to contributory fault, no compensation is awarded to the Claimant.

[3]The Claimant’s claim of breach of contract in respect of notice fails and is dismissed. COSTS JUDGMENT The Respondent’s application for costs is refused.

REASONS

[1]The Claimant worked for the Respondent until his summary dismissal with effect 12 April 2023.

[2]The Respondent dismissed him for gross misconduct, which he denies. As a consequence, he brought claims of unfair dismissal and breach of contract in respect of non-payment of pay in lieu of notice.

[3]The claims came before me on 1 to 3 October 2024, with written reasons being provided, on request, on 18 October 2024 (subject to subsequent minor amendment on 7 November 2024). The Judgment given on 3 October 2024 was that: The Respondent unfairly dismissed the Claimant.

[2]By a combination, however, of the application of the Polkey principle and s.123(6) Employment Rights Act 1996, as to contributory conduct, no compensation is awarded to the Claimant. 1 of 11

[3]The Claimant’s claim of breach of contract in respect of notice fails and is dismissed.

[4]The Respondent made a written application for costs on 11 November 2024, providing a small bundle of documents with it (to which I shall refer by way of page number) and the Claimant responded to that application via a letter from his solicitors, dated 28 November 2024. Both parties confirmed that they were content for the application to dealt with by way of written submissions. Subsequently, the Claimant wrote, personally, to the Tribunal (copied to the Respondent), on 18 February 2025, enclosing, as ordered, copies of bank statement and pay slips.

The Law

[5]Rule 76 of the Tribunal’s Rules of Procedure 2013 states: When a costs order … may or shall be made (1) A Tribunal may make a costs order … and shall consider whether to do so, where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success;

[6]Rule 84 provides that the Tribunal may have regard to the paying party’s ability to pay any costs order that may be made. The Application

[7]I summarise the application as follows:a. It was made on the basis that the Claimant had acted unreasonably in bringing the proceedings against the Respondent.

b. The Respondent had always maintained that the claims had no reasonable prospects of success, or, in the alternative that if the claim of unfair dismissal succeeded on the grounds of procedural fault only (which proved to be the case) that any award payable would be substantially reduced on the principles of contributory fault and/or ‘Polkey’.

c. Accordingly, the Respondent made four written offers to the Claimant, on a ‘Calderbank’ basis, each time of £5,576.92, calculated on pay due and one month’s projected bonus, for the three weeks the Respondent considers it would have taken to carry out a full disciplinary procedure. Those offers were made on 27 March 2024, 8 May 2024, 20 May 2024 and 12 August 2024. 2 of 11

d. The Respondent’s offer letters were detailed and explained in clear terms why the Respondent had formed the view that the claims had no reasonable prospects of success, or would result, if the unfair dismissal claim was successful on procedural grounds only, why any award would be substantially reduced.

e. The Respondent considered that they had clear evidence of the Claimant’s misconduct, of either being aware of, or engaging in bribery and corruption of an employee of a company to which the Respondent was contracted, which evidence they specifically referred to and provided to the Claimant.

f. The Respondent considered that the Tribunal’s written reasons supported their conclusions, in particular that the evidence provided to the Tribunal proved, on the balance of probabilities that the Claimant was complicit in bribery and corruption. Further, the Tribunal also found that an attempt by the Claimant, eight months before his dismissal, to ‘whistle blow’ to the Respondent about his apparent concerns about others being involved in such activity was not done in good faith and was motivated, instead, by a desire to attempt to distance himself from a pending investigation into these matters.

g. The Respondent referred to the Claimant’s representative’s response to the first offer [1], which stated that ‘it is obvious that there was no procedure or any attempt to follow ACAS guidelines and he is therefore unable to see how you can possibly defend an unfair dismissal claim.’ [8]. It went on to say that any further offer would need to include all of his notice period, loss of bonus, loss of wages and compensation for loss of ‘reputation’.

h. Following that response, the Respondent wrote again [7], stating that this was their only offer and that the Claimant’s belief that he would be able to obtain a higher sum, due to lack of procedure was ‘misguided’, particularly now following a recent disclosure exercise.

i. That offer was again rejected by the Claimant and the Respondent wrote again [12], reiterating the offer and its rationale and expressing it to be ‘full and final’.

j. The Claimant responded refusing the reiteration of the offer stating that he ‘believes that he was treated abominably by your client and that the real reason for his dismissal was nothing to do with his alleged misconduct’ and that he wished to expose the Respondent’s ‘wrongdoing’. It suggested that any settlement would require the Respondent ‘to take this somewhat more seriously’. [14].

k. On 7 August 2024, the Claimant put forward a counteroffer, in the sum of £80,000, on the basis that he had had £85,000 in his bank account at the time of dismissal, but a year later that was reduced to nearly zero and that he was unable ‘to quantify his loss in real terms’ [19]. 3 of 11

l. The Respondent replied to that counteroffer, restating its existing offer and pointing out the following: ‘… we consider £80,000.00 to be beyond what your client could conceivably be awarded at Tribunal. For example, taking your client’s claim at its highest, even if he were to be successful on all points of his claim, your client secured alternative employment less than 1 month after the termination of his employment. This alternative sum would be factored into any award that the Tribunal will make.’ [16]

m. Throughout, the Respondent made it clear that they would make an application for costs. They considered the Claimant’s refusal of their offers unreasonable and his decision to continue his claims unreasonable. They pointed to the Tribunal’s findings in respect of the quality of the Claimant’s evidence at the Hearing.

n. The Respondent’s total costs came to almost £27,000, exclusive of VAT, but they limited their application to the jurisdictional maximum of £20,000. The Claimant’s Response

[8]I summarise the Claimant’s response (as relevant to the issues I need to consider) as follows:a. The Claimant has always believed that ‘the actions he took were correct and proper in the circumstances’.

b. He had not had it made clear to him at the point of dismissal as to what his alleged misconduct consisted of, and it was not until the commencement of these proceedings that those issues became clarified.

c. He always considered that he would ‘clear his name’ and the Judgment ‘came as a complete shock’.

d. He believed that the true reason for the dismissal was the Respondent’s desire to avoid having to make payments to former directors of the Respondent.

e. The failure by the Respondent to carry out any disciplinary procedure prevented the Claimant from telling ‘his side of the story’ and which may have resulted in a different outcome.

f. He wanted to be told that that he’d been unfairly dismissed and achieved that result, asserting his right to bring a claim of unfair dismissal. That right should not be hampered or restricted by concerns about costs and ‘beating’ any offers made. Otherwise, that would be a ‘significant bar to him continuing with his right to be heard in Tribunal’. Reference was made to the case of Telephone Information Services Ltd v Wilkinson [1991] UKEAT IRLR 148. 4 of 11

g. The Judgment concluded that the Respondent’s representations as to its decision-making at the time of dismissal was a sham and was he considered, a ‘cruel and unnecessary deception’ and that to be entitled to a costs order ‘they should be beyond reproach and come to the matter with ‘clean hands’.

h. Aside from the fact that the Claimant believed that he would prove his case, the offer made was far too low, as he expected, at very least, to recover his notice pay, of £37,500. His final schedule of loss reflected a figure close to this and which he had a realistic expectation of recovering.

i. His claim of unfair dismissal was, of course, successful.

j. He may not have given the best account of himself when giving evidence. Reasons for the Judgment

[9]As the Respondent sought to rely on the contents of the written reasons for my Judgment, I refer, in general, to that document, but, for context and background provide the following extracts from it (using the original paragraph numbering): d. ‘(paragraph 8) She (Ms Mather, on behalf of the Respondent) said that evidence was found that implicated the Claimant in the misconduct he had accused Mr Mohammed/Mr Daniels of, as follows: i. Emails from the Claimant in which he refers jokingly to EDF’s ‘gifts and hospitality’ policies, in January 2018, saying ‘do you think someone has grassed him up??!!’, which the Respondent believed referred to Mr Daniels [93- 96]. Ms Mather was asked whether, in fact, as the Claimant said, that reference could have related to a Mr Milledge, a former employee of the Respondent, who, the Claimant said, was inviting bribes at the time and accepted that that was the Claimant’s assertion, but she did not necessarily agree with it. ii. A further ‘jokey’ email, in relation to a similar policy document, in July 2018, stating ‘thought you might like the attached !!!’, when sending the policy to Mr Mohammed and Mr Walberg [97-108]. iii. Another ‘jokey’ email of December 2018, again in relation to the policy for ‘Gifts and Hospitality at Christmas’, stating ‘Oh Oh!! (smiley face)’ [109- 110]. Again, Ms Mather said that this related to Mr Daniels and that the Respondent took a ‘holistic’ view of the evidence, cumulatively, which pointed to the Claimant’s involvement in bribery. iv. Evidence of the Claimant being aware of the purchase of a ‘package’ hospitality deal for a professional boxing match, in London, in May 2019, 5 of 11 with the invite being sent to Mr Daniels’ personal email address [111], which Ms Mather considered significant. When challenged that in fact nobody attended the match, which, it was stated, she would have known if a proper disciplinary process had been followed, she said that it ‘didn’t matter, as the offer was enough’. She referred to the Respondent’s hospitality policy which she said could only be offered in respect of work-related events, which this boxing match clearly wasn’t, she describing it as ‘an unrelated jolly’. She agreed/was unsure, however that if, following a ‘proper’ investigation, the event had been shown to be registered, it could, accordingly, be considered legitimate. v. Evidence of the Claimant being aware of the purchase of an £11,000 quad bike for Mr Daniels [114-116], with, in the same email chain, Mr Mohammed stating to the Claimant that ‘he can’t expect to use your company expenses as a personal bank, it’s too easy [115]. vi. Evidence of the Claimant purchasing an ink refill for Mr Daniels’ ‘Montblanc’ pen [114-116]. In that correspondence, the Claimant referred to Mr Downs Daniels as ‘a wee piss taker, to be honest, he’s hard to say no to, but I’ll be a bit stricter with him going forward’. Mr Mohammed responds ‘he’s not exactly squeaky clean here either and I don’t want him to just take liberties and expect a ‘yes’ every time he fancies something.’ While Ms Mather accepted that the cost of a refill would be minimal (perhaps £7.50) she said that any use of expenses to pay for somebody else outside the Company was improper – the value was irrelevant. vii. Evidence from November 2019 of the Claimant booking flights for himself and Mr Daniels to go to Amsterdam (although the Respondent subsequently accepted that these were legitimately for attendance at a trade event). Ms Mather pointed out her view that the use of Mr Daniels’ work email address for this legitimate purchase, as opposed to his personal email address for other suspect purchases, indicated a desire to cover tracks. She agreed that if there had been a disciplinary process the fact of the flights being for a legitimate purpose would have emerged at the time, rather than subsequently, in these proceedings. e. She also referred to evidence subsequently disclosed by the Claimant in these proceedings, as to a chain of texts, with direct reference to the quad bike [113], where he passes a text from Mr Daniels, to him, onto Messrs Walberg and Mohammed, with a picture of a quad bike and Mr Daniels referring to ‘needing a hand’, to which the Claimant replied with ‘LoL!’ and a ‘thumbs up’ emoji. Mr Daniels goes on to explain that ‘I’m getting new mortgage and it will fuck my credit’, followed immediately by another message referring to ‘10th your man starts ...approved by HR’. The Claimant comments, on passing the message to Messrs Walberg and Mohammed ‘FFS!’. Mr Walberg responds, ‘haven’t we just spent £2k+ on boxing tickets!’ Mr Walberg then goes on to say ‘Don’t suppose we can if he now wants a new Tonka toy!’ Further on, he says, ‘I know what my priority 6 of 11 would be’ ... ‘maybe he could give us some of that Training budget in return’ (questioning emoji), to which Mr Mohammed adds ‘That’s an idea haha’. Ms Mather believed that this indicated the Claimant’s involvement or connivance with the bribery of Mr Daniels. She did not accept that nothing in this correspondence and the earlier correspondence found in the investigation showed that the Claimant was ‘acknowledging’ that correspondence. She did accept, however that she was unaware of any documentation showing actual purchase of such a bike.’ … i. Mr Vaughan issued a letter of suspension to the Claimant on 3 April 2023 [167]. Ms Mather agreed in evidence that that letter’s reference to no decision to either discipline or dismiss the Claimant having been made and the possibility of a forthcoming disciplinary process being arranged was a sham. She also agreed that the detail as to the allegations against the Claimant (‘you may have been involved in instances of very serious allegations of bribery and/or secret commissions’ and, in the dismissal letter ‘you were involved in providing gifts and bribes to Ashley Daniels at EDF which included your knowledge and involvement in the purchase of a £11,000 quad bike in the summer of 2019’ and ‘other evidence of bribery including the misuse of company expenses’) ‘was not as clear as it could be’. j. On 11 April 2023, without any other procedure, the Claimant was summarily dismissed, with effect the next day [169]. He was not offered an appeal. Ms Mather agreed that the only purpose of the time period between the two letters was to attempt some settlement with the Claimant, which was unsuccessful, not to follow any disciplinary process. Ms Mather was challenged on this lack of procedure and whether it had been fair, and she said ‘not by the letter of ACAS, but this was an extremely unusual situation. We took a holistic view of all the evidence; the importance of the Claimant’s role and that it was too big a risk to permit him to remain. It would have been the same outcome in any event.’ When further challenged that there was ‘no evidence that the Claimant was complicit in bribery’, with the evidence indicating that Mr Daniels had bought the quad bike himself, she said that it was the cumulative evidence, over a twelve-month period, to include the ‘jokey’ emails and the fact that the Claimant was aware of the purchase of the bike for Mr Daniels, with whom, as the Respondent’s senior person on site, he had a direct relationship. k. She did not believe, if any further investigation had been carried out and a disciplinary process gone through, allowing the Claimant to offer explanations, that the Respondent’s view would have changed. When it was suggested to her that the Claimant had now ‘explained three of the four’ allegations against him, she said that he was ‘attempting now, looking at the evidence, to explain them away’, but she still believed, based on all the evidence, to include the ‘jokey’ emails that the Respondent’s decision was proportionate, bearing in mind that he was the senior person on site; the reputational risk to the Respondent; ‘fears as to a criminal angle’ and that the anti-bribery and corruption policy was clear, that he 7 of 11 had committed gross misconduct and that all trust and confidence in him was gone. …

[11]That leads me, therefore, to consider the quality of the respective evidence I have heard in this hearing, weighing it accordingly. On balance, I consider that I prefer, generally, the evidence of the Respondent, over that of the Claimant, for the following reasons:a. While the Respondent clearly had not followed a proper procedure and presented sham correspondence to the Claimant, the Respondent witnesses readily admitted that fact, stating that due to the pressures that BES and the Respondent felt under at the time, as to reputational loss, possible criminal implications and the Claimant’s position at HPC, they felt that they had no option but to proceed as they did.

[12]Genuine Belief in the Claimant’s Misconduct. It was clear to me from the Respondent witnesses’ evidence that they did and still believe that the 8 of 11 Claimant was involved in bribery and corruption, which, being a clear breach of their policies in that respect, as well as being potentially criminal activity, justified dismissal. The core evidence upon which they relied were the exchanges about the quad bike which then (and now) are incapable of an innocent explanation and clearly implicate the Claimant in personal involvement in bribing Mr Daniels. The other emails and the pen refill incident are merely background to that exchange of emails and texts, which alone justified the Claimant’s dismissal, even if the Claimant’s explanations as to earlier emails and the pen are accepted. …

[13]Polkey. The decision to dismiss having already been made three months earlier, any attempt at carrying out a disciplinary procedure would have been pointless, unless designed to attempt to camouflage the Respondent’s unfair dismissal of the Claimant, which, in view of the evidence given, would have been seen through at this Hearing. Based on the evidence I’ve heard, I am in no doubt, even had no prior decision been made in December 2022 and a fair disciplinary procedure been followed that the outcome would have been the same. While the Claimant may have been able to explain away some of the allegations against him, or challenged the level of seriousness of them (the pen refill, for example), as he has done in this Hearing, the core allegation against him, in relation to the quad bike, which has been forensically examined in this Hearing, still remains incapable of an innocent explanation, as it would have done, I am confident, before any disciplinary panel that may have been convened by the Respondent. I conclude, therefore that the following of a fair disciplinary procedure would, in any event, have made no difference to the outcome of this case, the Claimant’s summary dismissal for gross misconduct and that therefore no compensation is awardable to the Claimant.

[14]Contributory Fault. Even if, however, there was some counterargument to that Polkey finding, it is clear from the evidence that the Claimant was, on the balance of probabilities, complicit in bribery and corruption involving Mr Daniels, over a two-year plus period and thus engaged in culpable behaviour. He only decided to disclose this information, carefully attempting to disengage himself from such activity, to Mr Vaughan, after two plus years of engagement in it because, as he stated to Mr Vaughan, Mr Daniels was by then already under investigation and therefore, as that investigation would inevitably lead to him, he decided to present himself as a whistleblower, in the hope (unsuccessfully) of evading blame. His argument that he had nobody to report his ‘concerns’ to, until Mr Vaughan was on the scene, is disingenuous, as he was never going to ‘report’ these matters to anybody, as he was personally involved in them, that is until forced to do so by his fear of being implicated by Mr Daniels. His conduct was clearly therefore a contributory factor in his dismissal which were it not for my finding in relation to Polkey, would have reduced any compensation awarded by 100%, particularly bearing in mind the seriousness of the allegations, the possible criminal implications, the reputational risk to the Respondent and his senior position, representing the Respondent, at HPC. 9 of 11 Findings 10. Relevant Factors. The factors I consider relevant to the matter of costs are as follows:a. The fact that the Claimant’s claim of unfair dismissal succeeded.

b. The fact that the Respondent maintained its position as to having conducted a fair procedure, until, at least by implication from their witnesses’ evidence and eventually, in counsel’s submissions, that position was conceded.

c. The fact that the Respondent conducted a sham and partial disciplinary process.

d. My findings as to Polkey and in particular contributory fault.

e. The offers made by the Respondent and the Claimant’s response to them. 11. Findings in respect of those Factors. a. The success of the Claimant’s unfair dismissal claim is clearly a factor in his favour. I note his reference to the case of Wilkinson, in which a tribunal rejected that respondent’s argument that, in pursuing his claim when he had already been offered the maximum sum awardable to him as compensation, the claimant was being wholly vexatious, and his claim should therefore be struck out. On appeal, the EAT upheld the tribunal’s decision. It pointed out that the claim was for more than just compensation: the employee was seeking a finding that he had been unfairly dismissed. He had every right to maintain his claim to the tribunal for that purpose. If the respondent wished to concede the matter it could do so by expressly admitting liability but could not do so merely by conceding the monetary part of it. The EAT’s reasoning in the Wilkinson case was subsequently affirmed by the Court of Appeal in Gibb v Maidstone and Tunbridge Wells NHS Trust

[2010] IRLR 786

, CA. b. In conjunction with the above point, the Respondent could have openly conceded that the dismissal was unfair on procedural grounds, relying simply on Polkey and contributory fault arguments, thus, on the guidance in Wilkinson, greatly strengthening the effect of their offers. As pointed out (correctly) by the Claimant in response to the first offer, ‘it is obvious that there was no procedure or any attempt to follow ACAS guidelines and he is therefore unable to see how you can possibly defend an unfair dismissal claim.’ [8]. c. Although the Tribunal is a ‘creature of statute’ and cannot rule on matters of Equity, the applicability of equity, in general terms, is set out in s.98 of the Employment Rights Act 1996 and it is an influential factor, I think, that the Respondent chose to conduct a sham and seriously flawed disciplinary process and to only admit that in evidence at the Hearing. 10 of 11 d. It is clear that the Claimant did not acquit himself well at the Hearing, with the Respondent’s evidence being preferred over his often evasive and self-serving evidence. My findings as to contributory fault make it clear that I judged the Claimant to have been involved in bribery, despite his protestations to the contrary. The Respondent’s offers to the Claimant considerably bettered the actual outcome for the Claimant, of no remedy being ordered, as opposed to the £5,576 on offer, to settle his claim. e. As indicated above, the offers made were, in the circumstances of the eventual outcome, generous. The Claimant’s response was somewhat dismissive and the initial counteroffer of £85,000 was entirely unrealistic and based on no logical calculation. 12. Conclusions. I find that the threshold for the making of a costs order in this case has not been reached, for the following reasons: a. The Claimant’s claim of unfair dismissal succeeded. b. Both Wilkinson and Gibb involved the making of offers by ex-employers in attempts to settle unfair dismissal/breach of contract claims by employees and both authorities conclude that such offers will not affect the right of an employee to bring a claim for unfair dismissal, unless the claim itself is conceded, which it was not in this case. Accordingly, therefore, it was not unreasonable conduct of the Claimant to continue with his unfair dismissal claim, even in the face of the offers made and which ‘beat’ the remedy judgment. c. I view my findings as to the Claimant’s credibility and behaviour as balanced out by the Respondent’s decision to conduct a sham disciplinary process. Judgment 13. The Respondent’s application for costs is refused.