B ChiltonClaimantCroft Design Studio LtdRespondent
Before
Employment Judge SkehanMs Phumaphi (instructed by counsel) for claimantDate 26 May 2025
JUDGMENT
[1]The Claimant’s claim for unfair dismissal contrary to Section 98 of the Employment Rights Act 1996 is well founded. The claimant was unfairly dismissed on 15 May 2024.[2]However the claimant had resigned from his employment on 19 April 2024 and his employment would have come to an end in any event on 17 May 2024. Further, the claimant’s blameworthy conduct has contributed to his dismissal to the extent that it is just and equitable to reduce the basic and compensatory awards by 100% to nil. .
REASONS
[1]The Claimant issued proceedings in this matter on 30 July 2024. The ACAS process was started on 21 May 2024 and concluded on 1 July 2024. The Claimant’s claims were discussed during a preliminary hearing held on 10 December 2024 before EJ Hutchings. The claims were identified as for unfair dismissal and age discrimination only. The age discrimination claim has been withdrawn by the claimant.[2]Ms Phumaphi made submissions requesting that the tribunal refuse to admit the respondent’s witness statement other than that of Mr Armstrong. These written statements had been exchanged simultaneously with the claimant. I noted the background correspondence from the tribunal however I did not consider it in line with the overriding objective to restrict admission of these documents. I explained to both parties that where a witness did not attend tribunal to be cross-examined this reduced the weight that the tribunal could place upon the witness evidence.[3]I noted that the bundle appeared to contain potentially privileged documentation. The bundle was prepared when both parties were acting in person. It was agreed that pages relating to legal advice from solicitors and correspondence relating to potential settlement should be treated as removed from the bundle for this reason. It was agreed that I should disregard references to without prejudice or privileged communication within the witness statements.[4]The issues were set out in writing following the previous hearing and revisited on the first morning of our hearing. It was agreed as previously set out within the case management order that the tribunal would deal with liability only considering the issues set out below alongside the questions of a ‘Polkey deduction‘ and potential contributory conduct on the claimant’s part to his dismissal. It was agreed to that the tribunal would need to determine whether the claimant resigned on 19 April 2024 as alleged by the respondent. The issues were: Unfair dismissala. Was the claimant dismissed? Parties agree that the claimant was dismissed on 15 May 2024, without notice.b. What was the reason or principal reason for dismissal? The respondent says the reason was conduct. The Tribunal will need to decide whether the respondent genuinely believed the claimant had committed misconduct.c. If the reason was misconduct, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will usually decide, in particular, whether: i. there were reasonable grounds for that belief; ii. at the time the belief was formed the respondent had carried out a reasonable investigation; iii. the respondent otherwise acted in a procedurally fair manner; iv. dismissal was within the range of reasonable responses.d. Did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant?[5]As is not unusual in these cases, the parties have referred in evidence to a wider range of issues than I deal with in my findings. Where I fail to deal with any issue raised by a party, or deal with it in the detail in which I heard, it is not an oversight or an omission but reflects the extent to which that point was of assistance in determining the issues. I only set out our principal findings of fact. I make findings on the balance of probability taking into account all witness evidence and considering its consistency or otherwise considered alongside the contemporaneous documents.[6]All witnesses gave evidence under affirmation. Their witness statements were adopted and accepted as evidence-in-chief. All witnesses were crossexamined. We heard from the claimant on his own behalf. On behalf of the respondent, we heard from Mr Armstrong and Ms Y. While I read the remainder of the witness statements, reduced weight was placed upon them as the individuals had not attended tribunal to be cross-examined.[7]The Claimant was employed by the respondent as a picture framer from 1 October 2015 to 15 May 2024. The respondent is a small business employing 7 people. Mr Armstrong is the sole director. The claimant and Mr Armstrong were socially connected outside of work. Mr Armstrong and his wife were very close personal friends of the claimant’s daughter and son-in-law. The claimant normally travelled to and from work with Mr Armstrong.[8]At some time between in March/April 2024, the claimant hurt his knee. The claimant’s evidence on this matter was confused and at times contradictory. He said that he hurt his knee in a fall at work on 15 March 2024. There is no paperwork recording the accident. Previously when the claimant suffered an injury at work he had completed internal paperwork. The claimant told Mr Armstrong, Ms Y and some colleagues that he hurt his knee as he had fallen over at home on the weekend of 23/24 March 2024. The claimant acknowledges that he said this, but claims to have done so to save Mr Armstrong’s embarrassment and the claimant says that he had not told Mr Armstrong that his injury happened at work. The claimant’s evidence in relation to when he told Mr Armstrong of his alleged injury at work was confused and contradictory. It is unsurprising that Mr Armstrong and Ms Y believed that the claimant injured his knee at home rather than at work. I make no findings in relation to how or when the claimant injured his knee. However, I conclude that, at least from the claimant side, his relationship with Mr Armstrong deteriorated from this time.[9]The claimant says that he tried to have a discussion about Mr Armstrong with Ms Y on 15 March 2024, however Ms Y was unwilling to have this discussion in the office as Mr Armstrong was there, the claimant says that Ms Y invited hiim to her house early Sunday morning. The claimant attended Ms Y’s home at 7.50am on Sunday 17 March. He said that he wanted to discuss Mr Armstrong that Ms Y, ‘didn’t really want to discuss anything about Mr Armstrong’. Ms Y offered him a cup of tea, which he declined and he left.[10]Ms Y says that the claimant arrived at her house unannounced and uninvited. She does not socialise with the claimant outside of work and the claimant was aware that she lived alone. Ms Y invited the claimant into her kitchen and asked him why he was there. He replied, ‘I am here to take you upstairs’. Ms Y replied, ‘no you are not, that’s not happening’. The claimant said he better leave and Ms Y agreed. Ms Y says that she was shocked and frightened to find herself in her own home with a man who had propositioned her for sex and felt acutely vulnerable. At her front door, the claimant said, ‘if you give me a kiss on the lips I will leave’. Ms Y interpreted this as a threat in an already bizarre situation. Ms Y believed that the claimant tended to carry a knife in his pocket as she had seen it previously on occasions at work and social events. Ms Y states that she acquiesced. This made her feel physically sick and violated. She noted that the claimant had not parked outside her house.[11]The respondent produced documentation showing that Mr Armstrong was out of the country on Friday, 15 March 2024 and therefore not in the office on that day. It is common ground that there were private parts of the respondent’s premises where a private discussion could be held.[12]Ms Y said that she spoke to the claimant on Monday, 18 March 2024 and told him not to ever come to her house uninvited again. The claimant told her to forget the incident and requested that she delete the footage from her ring doorbell. She says that she did so, not to antagonise the claimant as she was left feeling vulnerable from the incident.[13]Ms Y did not report the incident to Mr Armstrong. She explained that she learned at a young age that the best response to abusive bullying behaviour was silence and her natural response was to block it out. During the course of cross examination she also explained that she was aware that Mr Armstrong had a strong social connection to the claimant outside of work.[14]Ms Y says that following this time she only interacted with the claimant when it was required for work. She continued to feel shocked, numb and detached from what had happened. The claimant says that following his visit to Ms Y’s their working relationship continued as normal and there was no issue on Ms Y’s part.[15]The claimant was off sick due to his knee injury between 8 April 2024 and 15 April 2024. The claimant returned to work on Monday 15 April 2024 however it was noted that his fit note lasted for a further week. The claimant was off sick for the rest of that week.[16]On 19 April 2024 the claimant contacted Ms Y. What was said during this call is disputed.a. Ms Y says that she took handwritten notes and the notes were used to put together the respondent’s timeline and witness statements but not retained. No notes were disclosed. Ms Y said that the claimant told her that he had been signed off sick from work for another week meaning his sick leave would come to an end on 28 April 2024. However, he said that this was irrelevant because he was ‘taking this opportunity to hand in his notice’. The claimant said that he would attend the office the following week to collect his belongings. Ms Y asked the claimant if he was sure that he wished to hand in his notice and he replied ‘yes’. Ms Y asked the claimant if he would change his mind and the claimant replied ‘no’. Ms Y accepted the claimant’s verbal resignation and informed the claimant that he would need to sign the appropriate paperwork to transfer his shares and the respondent back to the company. This was standard procedure when any shareholder left the company. There was no discussion in relation to notice and Ms Y assumed that the claimant wished to give the standard 4 weeks’ notice.b. The claimant says he did not resign on 19 April 2024. He says he was upset with he was treated and said that he felt like handing in his notice. He claims it was not a verbal resignation.[17]Following this call, Ms Y spoke to Mr Armstrong and told him that the claimant had resigned. Mr Armstrong was aware that the claimant had literacy difficulties and prepared a short letter of resignation dated 19 April 2024. However this letter was kept as Mr Armstrong considered that the claimant may contact him to change his mind. Mr Armstrong had a text message exchange with his friend, the claimant’s son-in-law on Friday, 19 April 2024 that included: ➢ [the claimant] handed his notice in this morning. ➢ Wtf Something happen? ➢ Got knows what’s going on in his head. All I said to him was on Monday I know you not been resting it properly. Like I said he’s been strange for a while now.[18]Ms Y had further discussions with the claimant on Monday, 22 April 2024 relating to the claimant’s Fit Note that she required to process the payroll. During one of these discussions the claimant told Ms Y that he would bring his sick note to work the next day along with his resignation letter and collected belongings from the workplace at the same time.[19]Mr Armstrong says that the claimant attended the workplace on 23 April 2024 at approximately 9.30. Mr Armstrong said, ‘Morning Barry’ and the claimant replied, ‘I’m not a happy bunny and I’m going to kick off’ while pointing his finger in Mr Armstrong’s face in an intimidating and aggressive manner. The claimant did not mention his resignation to Mr Armstrong. Mr Armstrong saw the claimant gathering his belongings and noted that the claimant retrieved a large bladed knife. This was described variously as a Rambo knife or a hunting knife or a knife with approximately a 10 inch blade. Mr Armstrong describes the claimant as angry and erratic and says that he and the claimant’s colleagues were feeling intimidated by his behaviour. Within his witness statement, the claimant acknowledges that he retrieved a large bladed knife from his workstation and explains that he used this knife in his job as a picture framer. During cross examination the claimant accepted that he only required use of a Stanley knife for his work. He denied that he had collected any large bladed knife and when referred to his witness statement said that his witness statement was incorrect. The claimant admits that he pointed at Mr Armstrong but says he asked Mr Armstrong and a colleague to join him in the office which they refused to do. The claimant denies that his behaviour was aggressive.[20]Ms Y describes how the claimant came to her office on Tuesday, 23 April 2024 and appeared highly agitated. Ms Y discussed the claimant’s sick note and asked the claimant for his resignation letter. The claimant did not have a resignation letter and declined to sign the letter prepared for him. He appeared to Ms Y to wish to retract his resignation. The claimant says that he told Ms Y that he was not resigning and did not give any formal notice.[21]The claimant referred to his knee injury having taken place at work. Ms Y did not believe the claimant as he had previously told her that the injury had taken place at home and there was no record of the injury in the accident book. The claimant alleged that Mr Nunn had seen him fall in the workshop. The claimant requested unrelated health and safety documentation. He was described by Ms Y as, ‘very angry, ranting and making no sense’.[22]Later, on 23 May 2024, the respondent posted the acceptance of the claimant’s resignation to him by tracked first class mail.[23]There was email correspondence between the claimant and Ms Y and I note that Ms Y reiterates the company position that the claimant has resigned and his employment will come to an end on 17 May 2024. The claimant reiterates his position and notes that he still has several of his belongings in the premises.[24]Mr Armstrong said that on Thursday, 25 April 2024, he spoke to Mr Nunn who confirmed that he had not seen the claimant fall at work on 15 March 2024 as alleged. On Friday, 26 April 2024 Mr Armstrong had conversation with Ms Y. He told her that he was concerned about the claimant’s behaviour and that the claimant carried a knife. Mr Armstrong told Ms Y that he intended to call the police for advice and to report the incidents. At this point Ms Y told Mr Armstrong about the claimant’s visit to her house on Sunday, 17 March 2024. Ms Y said that the claimant’s behaviour over the last few days was frightening her even more.[25]The respondent contacted the police on 25 April 2024 in relation to the claimant’s conduct. There was contact between the police and the claimant, the claimant was arrested, but no further police action was taken.[26]Also on Friday, 26 April 2024 Mr Armstrong was informed that the claimant had visited the local pub of staff member Mr Nunn. A report had been passed by the landlady of the pub to Mr Nunn referring to a visitor (identified as the claimant) asking from Mr Nunn said to be ‘pissed off’ or ‘upset’. The claimant had recorded his visit to this pub. The claimant was aware that Mr Nunn at the time would be at work. The claimant said he wanted to pass a message to Mr Nunn to reassure him as Mr Nunn may be worried. The claimant’s evidence on this point made little sense. The claimant did not leave a message at the pub and stayed only 3 minutes. The claimant said that he had Mr Nunn’s telephone number and could have contacted him by phone but he was told not to do so by Mr Armstrong. The claimant also said that he did not have Mr Nunn’s telephone number because he had changed his phone. There was a suggestion within the papers that he did not have Mr Nunn’s number because he had been removed from the work WhatsApp group.[27]Mr Armstrong’s evidence was that he believed entirely Ms Y’s account of the claimant’s behaviour on 17 March 2024. He believed that the claimant’s conduct amounted to gross misconduct and there was nothing that the claimant could say that would change his mind.[28]Mr Armstrong makes repeated references to investigations and claims that the respondent carried out an investigation prior to dismissing the claimant. There is nothing whatsoever in the documentation that corroborates this. I accept that Mr Armstrong spoke to Ms Y and Mr Nunn prior to making his decision. I also accept that Mr Armstrong perceived his interaction with the claimant on 23 April 2024 as aggressive and intimidating. However this is the entirety of the investigation carried out by the respondent.[29]The claimant was not invited to a disciplinary meeting. There was no disciplinary process. This is at odds with the respondent’s internal processes set out within their handbook.[30]The respondent wrote to the claimant by letter dated 15 May 2024 confirming that his employment was terminated with immediate effect on the grounds of gross misconduct. The letter referred to:a. sexually harassing an employee of Croftb. intimidation relating to the claimant’s visit to Mr Nunn’s local pub:[31]On 23 May 2024 the claimant wrote to the respondent seeking to appeal the decision to terminate his employment. Mr Armstrong replied on 24 March 2024 asking for specific grounds on which the appellant based his appeal and stating that the appeal must be lodged within 10 days of receipt of the dismissal letter. This gave the claimant a further single day to lodge his appeal.[32]I note that Mr Armstrong sets out various historic allegations of misconduct on the claimant’s part. Mr Armstrong said that he should have but did not address these issues at the time. Mr Armstrong said that he was reluctant to address conduct issues with the claimant because of Mr Armstrong’s close relationship with the claimant’s daughter and her husband. There is no documentary evidence relating to any allegations of previous misconduct against the claimant however I have considered to matters which are relevant background matters to the events described above.a. Ms Y’s said that there was an incident, ‘a few years’, previously when the claimant smacked her backside in the workplace. This caused pain and upset and Ms Y reports that she immediately told the claimant never to touch her again. Ms Y did not report this to Mr Armstrong at the time due to his social connection with the claimant. Ms Y said that she did reported to a previous director of the company however she chose not to take the matter forward. The claimant says that this incident did not happen.b. Mr Armstrong’s evidence was that the claimant was believed by Mr Armstrong and the claimant’s colleagues to carry a knife. Mr Armstrong refers to an occasion on a client site where the claimant pulled a knife from his pocket when interacting with a security guard. Mr Armstrong describes a further occasion where the claimant pulled the same knife in a car park following a work social event at a local restaurant. Mr Armstrong says that he spoke to the claimant about inappropriate behaviour on these occasions but never took formal action, again due to their social connection. The claimant says that these incidents did not happen. The Law,[33]The right not to be unfairly dismissed is set out in s.94 of the Employment Rights Act 1996 (ERA 1996). The fairness of a dismissal is determined in accordance with the principles set out in s.98 of the ERA 1996. An employer bears the burden of establishing that the dismissal is for a potentially fair reason within the meaning of s.98(2) ERA 1996, and then, if that is established, the Tribunal will determine whether that dismissal was fair or unfair, (having regard to the reason shown by the employer). That determination will depend upon “whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and, shall be determined in accordance with equity and the substantial merits of the case”. The critical question, therefore, is whether, having regard to those matters, the employer acted reasonably or not in treating the particular, potentially fair reason, as a sufficient reason for dismissing a particular employee.[34]It is implicit within those words that the question the Tribunal must address, is not whether the Tribunal members themselves would have made the decision to dismiss the employee; they must not simply substitute their view for that of the employer. Over the years, Tribunals have been reminded that they must judge the standard of a fair dismissal, not by that which they would, or might have done, but by reference to the options open to a reasonable employer, in other words by an objective standard. A dismissal is only to be held to be unfair if it was outside the range of reasonable responses open to a reasonable employer. This assessment, of whether the decision to dismiss this particular employee in respect of a particular matter or issue, came within the range of reasonable responses open to a reasonable employer lies at the heart of the law relating to unfair dismissal; it is the litmus test by which each stage of the dismissal process and the decision to dismiss is to judged. Sainsbury’s Supermarkets v Hitt [2003] IRLR 23, particularly para. 30. In the context of a conduct dismissal, it is clearly established that that test requires a Tribunal to address the following three matters:a. Whether the employer genuinely believed that the employee was guilty of the relevant misconduct; and, if so,b. Whether that belief was based on reasonable grounds; andc. Whether that genuine belief on those reasonable grounds had been formed after having carried out a reasonable investigation.[35]A fair process requires that an individual should know the case against them and have an opportunity to respond to it Spink v Express Foods Ltd [1990 IRLR 320: “Fairness requires that someone accused should know the case to be met; should hear or be told the important parts of the evidence in support of that case; should have an opportunity to criticise or dispute that evidence and to adduce his own evidence and argue his case.”[36]I also noted the case of Omar v Epping Forest District Citizens Advice. [2023] EAT 132 where the EAT took the opportunity to review the authorities and provide guidance on ‘heat of the moment’ resignations Deliberations and Findings[37]I start my deliberations by commenting in general terms upon the evidence heard. The claimant’s evidence was confused and inconsistent places and examples are set out above. There are 2 main matters, being the claimant’s resignation and his visit to Ms Y’s house where the claimant’s evidence directly conflicts with that of Ms Y. I have addressed both of these in detail below. I have taken into account that the claimant has difficulty with written documents. However, consider it likely that the claimant had assistance in preparing his witness statement, For example, I consider on the balance of probability, that the discrepancies within the claimant’s evidence in relation to a 10 inch blade was not caused by any difficulty the claimant’s part with reading or writing.[38]In general terms, I found Ms Y to be a persuasive and credible witness who gave clear and consistent evidence. It is the case that Ms Y referred to notes taken that she says were used to create the respondent’s documentation that were discarded or for other reasons not disclosed in course of the litigation. While this is obviously poor practice, the respondent is a small organisation and on balance I do not consider that this detracts from the credibility of Ms Y’s evidence.[39]In relation to Mr Armstrong’s evidence, I found that his evidence was confused and inconsistent relating to the alleged investigation followed by the respondent. However in general terms, I found Mr Armstrong’s evidence to be credible.[40]The gist of the claimant’s evidence was that his relationship with Mr Armstrong deteriorated following his accident at work on 15 March 2024 and he wished to discuss this difficult relationship with Ms Y, who invited him to her home early on 17 March 2024 because she did not wish to have that discussion in the office as they may be overheard by Mr Armstrong. However:a. Mr Armstrong has demonstrated that he was not in the office on Friday 15 March 2024 when the claimant says the accident occurred and there is simply no time for the claimant’s relationship with Mr Armstrong to have deteriorated at that time.b. As Mr Armstrong was not in the office on Friday 15 March 2024 there was no reason why the claimant and Ms Y could not have their discussion about him in private during that working day.c. The claimant’s evidence is that in any event, Ms Y refused to discuss Mr Armstrong and he left her home. It would be most unlikely for anybody to expressly invite a colleague to their home at an early hour on a Sunday morning to discuss a particular topic in private and thereafter refuse to do so.[41]The claimant refers to inconsistency within Ms Y’s account for example she refers to the claimant requesting to ‘take her upstairs’ and propositioning her for sex. Ms Y clearly explained that her understanding of the claimant’s words wanting to take her upstairs meant he was propositioning her for sex. I find Ms Y’s account to be consistent.[42]The claimant says that medical issues that prevent him from having sex make Ms Y’s account unlikely. I place little weight upon this. There was no previous relationship between the claimant and Ms Y that would have given the claimant any indication that his advances were likely to be reciprocated. The propositioning (that may possibly have been intended as a ‘joke’) and demand to be kissed in my view are not rendered less likely because the claimant may be unable to proceed in the unlikely event that his advances were reciprocated.[43]Taking into account the entirety of the evidence, on the balance of probability, I find Ms Y’s account of what happened on 17 March 2024 far more likely.[44]Turning to the issue of resignation. It is clear that at least from the claimant side, the claimant’s relationship with Mr Armstrong had deteriorated in the time before his discussion with Ms Y on 19 April 2024. The claimant’s evidence acknowledges that resignation was discussed but he denies using the words alleged by Ms Y. When looking at this matter, taking the entirety of the evidence into account, I consider that Ms Y’s account is far more likely because:a. Ms Y is detailed and consistent in her account. She specifically recalls asking the claimant whether he is sure that he wishes to resign and whether the claimant likely to change his mind. The claimant used clear wording and it was Ms Y’s genuine belief following her discussion with the claimant that he had resigned.b. This was not a heat of the moment resignation. The claimant had been absent from work on sick leave. There was no altercation between the claimant and Ms Y said to lead to the resignation. The claimant’s relationship with Mr Armstrong had deteriorated over time. While it is likely that the claimant was unhappy with the respondent and Mr Armstrong, the claimant had been off sick and there had been no incident with Mr Armstrong to trigger a heat of the moment resignation.c. the claimant choose not to speak to Mr Armstrong. Ms Y was the office administrator and with the administrative side of the respondent’s HR.d. Ms Y reported the claimant’s resignation to Mr Armstrong following the claimant’s resignation. This is a corroborated by Mr Armstrong’s text to the claimant’s son-in-law to tell him that the claimant had resigned.e. The claimant had a further conversation with Ms Y on 22 April 2024 where his resignation letter was mentioned. The claimant did not at this point say that he had not resigned. He did not seek to contact Mr Armstrong to say he had not resigned. It was not until the claimant attended work on 23 April 2024 that he was identified as wishing to retract his resignation. Should the claimant have believed that Ms Y lied about or made up his resignation, it would be expected that the claimant would seek to clarify the position with Mr Armstrong without delay. He did not.f. The claimant attended work to remove his personal belongings from the respondent’s unit on 23 April 2024. The claimant says that this action was because of a concern on his part in relation to theft and was wholly unconnected to his resignation. I found the claimant’s evidence on this point unconvincing. I consider it far more likely that the claimant had resigned and indicated he wished to collect his belongings from the respondent’s premises, however by 23 April 2024 the claimant had changed his mind and wished to withdraw his resignation but did not know how to properly go about it.[45]Ms Phumaphi argues that even if Ms Y’s account is accepted, the words used by the claimant do not amount to a resignation as they were unclear, no specific notice period was given there was no follow-up conversation and the claimant did not sign the letter of resignation that was prepared on his behalf. I have carefully considered these points. On review I consider that the claimant used the word as stated by Ms Y above amid the backdrop of being unhappy with Mr Armstrong. The words used were clear and I consider it likely that any reasonable bystander would have understood the claimant to have resigned. While the claimant did not give a specific period of notice I accept Ms Y’s evidence that all employees were subject to a standard notice period and the 4 week notice period was implied.[46]I conclude that the claimant resigned on 19 April 2024. The respondent accepted his resignation on that date. Mr Armstrong was open to the possibility of the claimant speaking to him to request withdrawing his resignation. In such circumstances the parties may have agreed for the resignation to be withdrawn and the claimant to continue his employment. This did not happen. Unfair dismissal 47. it is common ground that the claimant was dismissed on 15 May 2024, without notice. When taking the entirety of the evidence into account I accept that when Mr Armstrong made his decision to dismiss the claimant he had at the forefront of his mind:a. Ms Y’s report of sexual harassmentb. Mr Nunn’s report of intimidationc. and his own perception of aggression and intimidation displayed by the claimant on 23 April 2024.[48]The respondent has demonstrated on the balance of probability that Mr Armstrong genuinely believed the claimant to be guilty of these 3 matters that he considered to amount to gross misconduct. I therefore conclude that the respondent has demonstrated the reason for the termination of the claimant’s employment was the claimant’s conduct.[49]I now go on to consider whether the respondent acted reasonably in all the circumstances is treating that as a sufficient reason to dismiss the claimant. When looking at this question I note that at the time the belief was formed the respondent had spoken to Ms Y and Mr Nunn and heard their concerns. Mr Armstrong had seen pictures or stills showing the claimant’s attendance at Mr Nunn’s local pub. However this was the extent of the respondent’s investigation. No written witness statements had been taken. The respondent had not sought any input from the claimant.[50]It is also the case that the respondent abandoned all normal procedure. The respondent did not comply with the basic procedure as contained within their own company handbook. I have taken the size and administrative resources of the respondent into account however, it is clear from the HR advice that the respondent had access to HR advice at the time but chose not to follow a fair procedure. I have considered whether the police involvement in this matter mitigates the respondent’s position. It was the case that the respondent was aware prior to the termination of employment that the police were not taking further action in relation to the claimant. I do not consider that the police involvement provides mitigating circumstances.[51]I note Mr Armstrong’s evidence in relation to a potential fear of the claimant, however any fear for personal safety could be mitigated by offering remote or even telephone hearings. Mr Armstrong’s evidence was that on hearing Ms Y’s account, he had decided to dismiss the claimant and that there was nothing the claimant could do or say that could possibly changes mind. I accept that this was his position. However the inevitable result of such a fixed viewpoint was that the respondent did not conduct a reasonable investigation nor did the respondent follow a fair procedure. Fairness requires that the claimant should know the case to be met; should hear or be told the important parts of the evidence in support of that case; should have an opportunity to criticise or dispute that evidence and to adduce his own evidence and argue his case. For these reasons, I do not consider that the claimant’s dismissal could be said to fall within the band of reasonable responses of a reasonable employer. The claimant was unfairly dismissed.[52]In some circumstances it is possible for a fair appeal process to rectify procedural irregularities. In these circumstances, no fair appeal process was offered to the claimant. The claimant was unfairly dismissed on 15 May 2024.[53]I now look at whether the ‘Polkey principle’ applies. Polkey v AE Dayton Services Ltd 1988 ICR 142, HL, provides that a tribunal should consider not only how long a fair procedure might have taken but also whether there was a real chance that the claimant might have remained in employment if a fair procedure had been followed. The claimant circumstances are unusual in that, as I have set out above, I have found that he resigned from his employment. His wish to withdraw his resignation was not agreed by the respondent and his employment would in any event have come to an end on 17 May 2024. Therefore, regardless of the investigation of procedure carried out by the respondent, the claimant’s employment would have come to an end on 17 May 2024.[54]I now look at the question of contribution. I deal first with the allegation relating to the alleged intimidation of Mr Nunn. Mr Nunn was not present to give evidence to the tribunal. However the claimant’s behaviour giving rise to this allegation is odd. The claimant attended Mr Nunn’s local public house at a time when the claimant knew Mr Nunn would not be there. The claimant intended to leave a message but did not. I consider it more likely than not that the claimant did have Mr Nunn’s number but chose, for reasons that are not clear, not to contact him by phone. It was by chance reporting from the pub’s landlady that Mr Nunn learned of the claimant’s visit. While it is common ground that the respondent received a report of the claimant being angry or threatening in the pub, I conclude that this was not the case in reality by reference to the claimant video evidence. The respondent’s reaction to this incident was coloured by their belief that the claimant may carry a knife and had behaved at work in an aggressive manner however, there was no investigation into this incident. The claimant was not given the opportunity to explain his odd visit to the pub. I conclude that, on the balance of probability, the claimant’s visits to the pub did not constitute intimidating or inappropriate conduct. I do not consider that this can be reasonably viewed and blameworthy conduct capable of contribution to the dismissal.[55]I refer to my findings above and conclude that the incident on 17 March 2024 happened as set out by Ms Y. Further, on review of the entirety of the evidence, I conclude that the previous incident where the claimant is alleged to have slapped Ms Y happened as Ms Y has alleged. This is an old allegation and I consider it relevant only to the extent that I infer from it, that the claimant would or should be fully aware that any sexual advance to Ms Y would be wholly unwelcome. The claimant’s conduct of 17 March 2024 is obviously sexual harassment. Ms Phumaphi submitted that in the event Ms Y’s version of events is accepted that there are mitigating effects for example this was outside of work hours and that there were no previous offences are allegations that warranted even a written warning, that it was a one-off incident and no complaint was made by Ms Y immediately following the incident and they continued to work together. I do not accept the submissions. I consider that the visit to Ms Y’s home (rather than approaching her in the workplace) was an aggravating feature. It is a visit to a single female’s home on the pretense of work-related discussion. Physical contact was demanded. It is intimidating behaviour. It is entirely inappropriate and intimidating. While it is the case that the claimant had not received any formal warning of his behaviour previously I refer to my findings above in relation to previous behaviour. Finally, I do not consider that Ms Y chose to deal with the situation with which she was faced in the manner in which she did, to be a mitigating factor on the claimant’s part. Ms Y put up with the claimant’s behaviour as she believed at the time that that was the best course of action and that the claimant’s social connection to Mr Armstrong protected the claimant.[56]I next to deal with the allegations of intimidation made by Mr Armstrong against the claimant. In particular I look at the allegation that the appellant’s behaviour on 23 May 2024 was intimidating. It is common ground that the claimant used a Stanley knife in the course of his work as a picture framer. There is no confusion on the parties part between a Stanley knife and a knife with a 10 inch blade. Ms Phumaphi highlights the various descriptions of this alleged knife by Mr Armstrong, such as a ‘hunting knife’ or a ‘Rambo knife’. I do not consider that the use of these alternative descriptions detract from Mr Armstrong’s credibility on this matter. I consider that a knife with a 10 inch blade may reasonably be described these in alternative ways. I conclude that the claimant removed a knife with a large blade from his workplace as alleged by the respondent. On the balance of probability I accept Mr Armstrong evidence relating to the claimant’s behaviour on 23 May 2024. The claimant was seen to be in possession of a large bladed knife unconnected to his work in the workplace. The claimant acted in an aggressive and intimidating manner during his interaction with Mr Armstrong on 23 April 2024.[57]When assessing the blameworthy conduct on the claimant’s part as set out above, I consider both the claimant’s sexual harassment of Ms Y at her home on 17 March 2024 and behaving in an aggressive manner towards Mr Armstrong and being seen in possession of a large bladed knife in the workplace on 23 April 2024 to be extremely serious conduct issues. Either of these matters alone was conduct that could fairly be described as gross misconduct that would be more likely than not to bring the employment relationship to an end.[58]I note the provisions of section 123(6)ERA in that the tribunal must reduce the compensatory award where the employee’s conduct has been shown to have caused or contributed to the dismissal. I have considered the appropriate amount of the reduction, which must be ‘such proportion as it considers just and equitable’ having regard to the finding that the employee caused or contributed to his or her dismissal. In light of my findings above I conclude that this is a scenario where the claimant’s dismissal was entirely of the claimant’s making. It is just and equitable to reduce the compensatory award by 100%.[59]I have also considered whether the claimant’s basic award should be reduced due to his contributory conduct. Section 122(2) of the ERA provides that a reduction on the ground of the employee’s conduct must be made where ‘the tribunal considers that any conduct of the complainant before the dismissal … was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent’. I have found that the claimant’s conduct was culpable or blameworthy as set out above. Taking the entirety of the evidence into account I consider that it is just and equitable to reduce the claimant’s basic award by 100% to nil.[60]A remedy hearing in this matter had been provisionally listed for 23 July 2025. However in light of my findings above, this hearing has been vacated. Approved by[68](1) The Tribunal may… on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so.(2) A judgment under reconsideration may be confirmed, varied or revoked.(3) If the judgment under reconsideration is revoked the Tribunal may take the decision again. In doing so, the Tribunal is not required to come to the same conclusion. Application for reconsideration[69]Except where it is made in the course of a hearing, an application for reconsideration must be made in writing setting out why reconsideration is necessary and must be sent to the Tribunal within 14 days of the later of—(a) the date on which the written record of the judgment sought to be reconsidered was sent to the parties, or(b) the date that the written reasons were sent, if these were sent separately. Process for reconsideration 70.—(1) The Tribunal must consider any application made under rule 69 (application for reconsideration). (2) If the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application must be refused and the Tribunal must inform the parties of the refusal. (3) If the application has not been refused under paragraph (2), the Tribunal must send a notice to the parties specifying the period by which any written representations in respect of the application must be received by the Tribunal, and seeking the views of the parties on whether the application can be determined without a hearing. The notice may also set out the Tribunal’s provisional views on the application. (4) If the application has not been refused under paragraph (2), the judgment must be reconsidered at a hearing unless the Tribunal considers, having regard to any written representations provided under paragraph (3), that a hearing is not necessary in the interests of justice. (5) If the Tribunal determines the application without a hearing the parties must be given a reasonable opportunity to make further written representations in respect of the application. The claimant’s application 3) I have had the opportunity to consider the claimant’s reconsideration request submitted on 26 June 2025 and sent to me on 30 July 2025. This application relates to the Judgment sent to the parties on 12 June 2025. I have considered the email from the claimant of 17 July 2025 with the attachments referred to therein that include:a. Document of 23 paragraphs headed ‘Reconsideration of Judgment’.b. A further submission document headed, ‘Document below to take into account for my reconsideration application’.c. What’sApp . messages said to be between the claimant and Mr Nunn’.d. A document entitled, ‘Police National Computer Nominal Report’. This records that the claimant was arrested on 13 May 2024 @ 23:28. The offence is described as, ‘sexual assault - intentionally touch female - no penetration’ and ‘pursued a course of conduct which amounted to harassment’. This document states that no further action was taken by the police in relation to either alleged offence.e. Exchange of WhatsApp messages relating to knives.f. A witness statement from Mrs Chilton dated 9 September 2024. Mrs Chilton sets out her view as to why the allegation in respect of harassment made by Ms Y was likely to be false and that her husband did not carry knives. The statement also referred to an undated incident outside of work where Mr Armstrong was said to have been aggressive in front of young girls.g. A 25 page document including screenshots of the respondent’s group chat and submissions. The main gist of the claimant’s submissions is that: Deliberation and decision 4) I have sought to address the matters raised by the claimant within the above documentation. I comment first in respect of the WhatsApp group chat evidence within the bundle. It appears that the claimant made a Data Subject Access Request (DSAR). In response, the respondent provided copies of the personal data (ie any information relating to an identified or identifiable living individual) it held on the claimant. The DSAR and response is a process entirely unrelated to the disclosure process within employment tribunal litigation and I make no comment in respect of either party’s compliance with the DSAR process. I note the claimant’s complaints to the ICO. However, this does provide a starting point for my understanding of the documentation within the bundle that is identified by reference to the DSAR. I consider it unsurprising that the respondent’s response to the DSAR contained only the messages sent by the claimant or where the claimant is identified or identifiable. I am unable to identify any reasonable argument that the respondent has sought a Lexus of Dublin to mislead the tribunal by reference to the DSAR response. I am unable to identify any matter relating to the DSAR response that would provide any reasonable prospect of the judgment being varied or revoked. 5) As the claimant was a member of the WhatsApp chat group, it should have been obvious to the claimant that the messages disclosed within the response to the DSAR related only to him. It was open to the claimant to disclose the entirety of the chat as he was a party to it. This is information that the claimant had prior to the hearing. There is no reasonable explanation as to why this was not disclosed by the claimant prior to the final hearing, if it was considered relevant. 6) Having seen the full further WhatsApp now disclosed from the claimant. I do not consider that this materially changes my view of the evidence in any way. This does not provide any reasonable prospect of the judgment being varied or revoked. 7) My judgment sets out the finding that the claimant’s dismissal was unfair [paragraph 28 and paragraph 47-52 of the judgment]. I described Mr Armstrong’s evidence in respect of the investigation carried out by the respondent prior to the claimant’s dismissal as confused and inconsistent [paragraph 39]. 8) When examining the documentation and submissions, I note that I have made no findings in respect of the claimant’s alleged accident at work. It was not necessary to do so to determine the subject matter of the litigation. It is only mentioned by way of background to the claimant’s resignation. In any event, the exchange of messages referred to by the claimant with Mr Nunn said to be related to the claimant’s fall at work would be of limited assistance in considering this matter further. The exchange provided in the additional documentation is dated 23 March 2024. The additional messages provided by the claimant do not expressly refer to a fall at work or anywhere else. The claimant said in his witness statement [paragraph 12] that he had an accident at work on Friday, 17 March 2024. While that date is obviously wrong, the claimant said during the hearing that he had injured his knee on Friday 15 March 2024 and he was confused during the hearing in respect of the date of his injury. There is nothing in the documentation that affects my conclusion that the claimant told Mr Armstrong and Ms Y (and they believed) that the claimant had injured his knee at home. The claimant accepted during the course of cross-examination that he had told Mr Armstrong that he injured his knee at home. I note that the claimant had [paragraph 15 of his witness statement] previously denied that this has happened. The respondent’s evidence in relation to scepticism as to the cause of the claimant’s injury was accepted. Even if it is the case that the claimant had injured himself at work, or Mr Nunn had been incorrect/untruthful in his account to Mr Armstrong, this would not provide any reasonable prospect of the judgment being varied or revoked. 9) The allegation of contributory conduct on the claimant’s part relating to an allegation of intimidation of Mr Nunn was not accepted by the tribunal. When considering all of the additional evidence relating to Mr Nunn or the claimant’s alleged fall at work, there is nothing within the application for reconsideration that provides any reasonable prospect of the judgment being varied or revoked. 10) I note the entirety of the claimant’s evidence in relation to the likelihood or otherwise of the incident happening with Ms Y at her home as she has alleged. I have considered the additional witness statement from the claimant’s wife and the complete WhatsApp chat. I have also noted the confirmation provided by the claimant that he was arrested on suspicion of sexual assault and harassment with no further action taken by the police. The claimant says that reference to sexual harassment by Ms Y, rather than sexual assault detracts from her credibility. I do not accept those submissions. The ‘kiss’ referred to in the evidence as a prerequisite to the claimant leaving Ms Y’s home may be described in different ways by parties. I have carefully considered the additional documentation provided in respect of the police response to the claimant’s DSAR and confirm that it does not (nor would its existence prior to the final hearing) provide any reasonable prospect of the judgment being varied or revoked. I do not consider that Ms Y’s interaction on a group chat, attendance at group social events, positioning within group photos or the taking and/or sharing of photos detract from the credibility of the evidence provided by Ms Y. The claimant’s submissions amount to a disagreement with my evaluation of the evidence that I heard. I do not consider that any of the further documentation or submissions raised by the claimant provides any reasonable prospect of the judgment being varied or revoked. 11) I note the additional information relating to knives. I note the lack of mention of knives contained within the police report. My comments relating to a knives within the judgment relates to the genuine belief of Mr Armstrong and Ms Y. Both were cross examined. I have made a finding in relation to the presence of a knife not connected to work in the workplace on 23 April 2024. I have set out the reasons for my conclusion within the judgment. This includes a material inconsistency within the claimant’s evidence. I do not consider that any of the further documentation or submissions raised by the claimant provides any reasonable prospect of the judgment being varied or revoked. 12) I have considered the claimant’s submissions in general terms in relation to the claimant’s ability to address the matters said to be contributory conduct. I was not present at any previous hearing and cannot comment in respect of the matters discussed. However my required findings in respect of contributory conduct was expressly discussed with counsel for the claimant during the substantive hearing. I wished to avoid making findings of fact in sensitive areas, particularly alleged sexual assault unless obliged to do so. I did not wish to revisit such evidence unnecessarily. I sought submissions from Ms Phumaphi who confirmed her understanding that I would be obliged to make findings in respect of the matters said to amount to contributory conduct on the claimant’s part. The claimant was ably represented at the final hearing. No submissions were made in relation to any procedural failings. No request was made for an adjournment or to submit further documentation. In any event, I have carefully considered the additional information now provided by the claimant. I do not consider that the information referred to by the claimant within his application to reconsider the judgment would have made any difference to the outcome of this matter had this information been within the original tribunal bundle. 13) It is correct that I have read the witness statements that had been simultaneously exchanged prior to the first morning of the hearing. However, I explained to the parties that reduced/little weight would be placed upon any witness statement from any party was not present to face cross-examination. My findings of fact were made on the balance of probability from assessing the witness evidence alongside the contemporaneous documentation. The claimant was represented and cross-examined the respondent’s witnesses. The claimant’s representative agreed that the tribunal would need to make findings of fact in respect of the matters said to be contribution by the respondent. The witness statements relating to contribution in particular Ms Y’s had been exchanged during the process of mutual exchange of witness statement. I therefore considered it proper and in line with the overriding objective to deal with the matter fairly and justly to allow Ms Y to give evidence and open herself to cross-examination. 14) I note that within the claimant’s correspondence it is stated, ‘EJ Hutchings notes that it is a matter for the respondent who the respondent intends to call’. While I note the directions that witness statements not exchanged should be provided within the disclosure documents, this direction appears to be confused. It is possible that the ‘witness statements’ referred to were intended to be those created the purposes of the internal process rather than those created for the purposes of giving evidence within the final hearing. In any event, the witness statements relied upon by the respondent for the final hearing were mutually exchanged. The claimant had access to legal advice and was represented at the hearing. The claimant was aware that his interaction with Ms Y was said to be a central reason for his dismissal. There was no application on the claimant’s part to adjourn the final hearing. 15) The judgment sets out that the claimant was arrested however no further action was taken. No other finding was made in respect of police involvement. This appears to be position set out within the claimant additional documentation. The addition of the police document does not provide any reasonable prospect of the judgment being varied or revoked 16) I note the reference to Mr Valambhia. I note that there is a statement in his name however he was not called to give evidence he did not face cross-examination and I have made no findings in respect of this individual nor have I made any findings based upon his witness statement. The further information relating to Mr Valambhia provided by the claimant does not provide any reasonable prospect of the judgment being varied or revoked. 17) In general terms, I have seen nothing within the claimant additional information that (either now or has it been included within the original bundle) materially changes my view of the evidence or provides any reasonable prospect of the judgment being varied or revoked. 18) I note that the original judgment makes the following fundamental findings: a. That the claimant had resigned and was dismissed during his notice period; b. That the claimant’s dismissal was unfair; c. The allegations relating to intimidation of Mr Nunn do not amount to contributory conduct. d. That the claimant’s conduct relating to the incident in Ms Y’s home and his behaviour on 23 April 2024 was such that it was right to reduce both the basic and compensatory award to nil in accordance with the ERA 1996. 19) In review, I considered that they claimant’s application for a reconsideration is an attempt to retry the case afresh. It rests on a selection of the evidence rather than the whole evidence that the tribunal heard. It disagrees with the tribunal in relation to the evaluation of the reliability of the witness evidence heard and attributed weight to the different strands of evidence. I conclude that there is no reasonable prospect of the original decision being varied or revoked by reference to any matter within the claimant’s application for reconsideration. Approved by