Mr J Fisher v University Hospitals Dorset NHS Foundation Trust: 6011467/2024

EMPLOYMENT TRIBUNALS

Case No 6011467/2024

Between

Mr J FisherClaimant

University Hospitals Dorset NHS Foundation TrustRespondent

Before

Employment Judge Dawson

Representing himself for claimant

Ms Ibbotson (instructed by counsel) for respondent

Date 3 July 2026

JUDGMENT

[1]The claimant was unfairly dismissed by the respondent.

[2]The respondent must pay to the claimant:a. A basic award of £2380.

b. A compensatory award of £10,571.31.

[3]For the purposes of the Employment Protection (Recoupment of Benefits) Regulations 1996

a. The monetary award is £12,951.31

b. The prescribed element is £8063.41

c. The dates of the period to which the prescribed element is applicable is 14 June 2024 to 3 July 2026.

d. The monetary award exceeds the prescribed element by £4887.90. JUDGMENT having been sent to the parties and written reasons having been requested in accordance with Rule 60 Employment Tribunal Procedure Rules 2024 the following reasons are provided under rule 60(4E) Introduction and overview

[1]By a claim form presented on 12 September 2024, the claimant presented a claim of unfair dismissal. The issues

[2]The issues were recorded in an order following a case management hearing, heard by EJ Cadney, which took place on 10 July 2025. The general issues were identified as follows: 1.1Was the Claimant dismissed? 1.2 What was the reason for dismissal? The Respondent asserts that it was a reason related to conduct which is a potentially fair reason for dismissal under s. 98 (2) of the Employment Rights Act 1996. 1.3 Did the Respondent hold a genuine belief in the Claimant’s misconduct on reasonable grounds and following as reasonable an investigation as was warranted in the circumstances? 1.4 Was the decision to dismiss a fair sanction, that is, was it within the range of reasonable responses open to a reasonable employer when faced with these facts? 1.5 Did the Respondent adopt a fair procedure? 1.6 If it did not use a fair procedure, would the Claimant have been fairly dismissed in any event and/or to what extent and when? 1.7 If the dismissal was unfair, did the Claimant contribute to the dismissal by culpable conduct? This requires the Respondent to prove, on the balance of probabilities, that the claimant actually committed the misconduct alleged.

[3]More specifically, it was recorded that the claimant challenged the fairness of the dismissal for the following reasons: i) The conclusions were pre-determined; and/or ii) The investigation did not fall within the range reasonably open to the respondent in that the investigating officer failed to identify disputes of fact in the report and/or failed to identify that there was little or no corroborating evidence for the complaints; and/or that the claimant had provided significant quantities of evidence which was not considered adequately or at all; and in consequence the investigation outcome was either pre- determined and/or the investigation was conducted in bad faith and/or was inadequate; and/or iii) No or no adequate weight was given to the claimant’s evidence which was also ignored / omitted in the management report setting out the basis of the decision to dismiss; and/or iv) The management report did not set out the competing evidence / versions of events and did not set out any basis for the conclusion that the evidence of the complainants was preferred to the claimant; and/or did not address any other possible basis for the breakdown of the working relationship between the claimant and the complainant in the most serious allegation and/or the possible conflict of interest of Ms Brucolerri- Aitchison (see F and BPs paras16 and 22); and /or did not consider or address evidence that Ms Brucolerri-Aitchison had also frequently referred to female colleagues as “girls” without complaint (see Fand BPs paras 18 – 20) whereas the same was used as evidence in support of the conclusion that the claimant had a problem with female colleagues. v) The failure to deal with the allegations informally before proceeding to formal disciplinary proceedings was a breach of the respondent’s disciplinary policy; vi) The allegations were all historic, the most recent and most serious (the inadvertent display of adult/pornographic photographs on his mobile phone)was alleged to have occurred in July 2023; vii) The incidents had already been dealt with informally and there was no reasonable basis to re-open / re-investigate them and pursue further disciplinary allegations in respect of incidents that had already been dealt with(the most serious having already been investigated and concluded by way of an apology) ; and/or the decision to do so was in breach of the respondents Civility Respect and Dignity at Work policy; viii) In so far as the allegations related to his management style they were not misconduct issues but at worst performance issues and it was not reasonable to include them in a disciplinary process.i x) The conclusion that one of the allegations involved and/or amounted to sexual harassment was not an allegation that was ever notified or put to the claimant(and first appeared in the dismissal letter) and it was not reasonably open to the respondent to find an allegation proven of which he had never been notified or put to him; and/or had he been notified of the allegation he would have adduced further witness evidence and the failure to do so renders the dismissal both procedurally and substantively unfair; x) The conclusion that the allegations constituted gross misconduct was not reasonably open to the respondent and/or the decision to dismiss fell outside the range of reasonable responses for the misconduct found; xi) The decision to dismiss failed adequately or at all to reflect his previous clean disciplinary record and fell outside the range of reasonable responses. Conduct of the Hearing The evidence

[4]I was provided with a bundle of witness statements running to 71 pages and a bundle running to 773 pages. Except where otherwise stated, references to page numbers in this judgment are to the hearing bundle.

[5]I heard evidence from the claimant and for the respondent I heard from Vicky Douglas Investigating Officer Lisa McManus Commissioning/Case Manager, Associate Director of Education Lisa White Disciplinary Hearing Chair, Associate Director of HR Operations and Wellbeing Sarah Herbert Appeal Hearing Chair, Chief Nursing Officer

[6]I explained to the parties that I would not take into account documents which were in the bundle but which I had not been referred to (whether in witness statements or in the course of the hearing). That was partly for reasons of time (the tribunal only having been provided with limited time for reading) and partly because, if I took account of documents on which I had not been addressed, I may be relying upon documents which one party would dispute, either in terms of genuineness or context. Therefore, I told the parties that they would need to take me to the relevant documents. However, I also informed the parties that if I did, for any reason look at documents which I thought were important, I would ensure that the parties had the opportunity to address me on them. Timetable

[7]The timetable which had been set down at the case management hearing on 10 July 2025 was discussed at the outset of the hearing and I explained to the parties the importance of sticking to it.

[8]I drew the parties’ attention to the principles laid down in the Presidential Guidance for General Case Management about asking important questions first and avoiding irrelevant questions. Both parties finished well within the time allocation they had been given. The Law

[9]Section 98 Employment Rights Act 1996 provides that it is for the Respondent to show the reason for dismissal and that it is a potentially fair reason.

[10]Section 98(4) states that “The determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)- depends on 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”.

[11]In considering a dismissal for misconduct the tribunal must have regard to the test in BHS v Burchell that “First, there must be established by the employer the fact of that belief; that the employer did believe it. Second, it must be shown that the employer had in his mind reasonable grounds upon which to sustain that belief. And, third, the employer at the stage at which he formed that belief on those grounds, must have carried out as much investigation into the matter as was reasonable in all the circumstances of the case”

[12]In Sainsbury’s Supermarkets Ltd v Hitt

[2003] IRLR 23

the Court of Appeal held that the range of reasonable responses test (or to put it another way, the need to apply the objective standards of the reasonable employer) applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision.

[13]In Ramphal v Department for Transport

[2015] IRLR 985

a dismissing officer changed his mind as to the culpability of an employee following the involvement of human resource advisers. In the EAT HHJ Serota QC stated “[55] In my opinion, an investigating officer is entitled to call for advice from human resources; but human resources must be very careful to limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability, let alone advising on what was the appropriate sanction as to appropriate findings of fact in relation to culpability in so far as the advice went beyond addressing issues of consistency. It was not for human resources to advise whether the finding should be one of simple misconduct or gross misconduct… [56]… I consider that an employee facing disciplinary charges and a dismissal procedure is entitled to assume that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings he should make as to culpability, and that he should be given notice of any changes in the case he has to meet so that he can deal with them, and also given notice of representations made by others to the dismissing officer that go beyond legal advice, and advice on matter of process and procedure”.

[14]The effect of an appeal on earlier deficiencies in a disciplinary process was considered in Taylor v OCS Group Ltd

[2006] ICR 1602

. The Court of Appeal stated:47. Although, as we have said, both Whitbread & Co plc v Mills

[1988] ICR 776

and Adivihalli v Exports Credits Guarantee Department contain a correct statement of the law, it would be advisable for Whitbread not to be cited in future. The use of the words “rehearing” and “review”, albeit only intended by way of illustration, does create a risk that employment tribunals will fall into the trap of deciding whether the dismissal procedure was fair or unfair by reference to their view of whether an appeal hearing was a rehearing or a mere review. This error is avoided if employment tribunals realise that their task is to apply the statutory test. In doing that, they should consider the fairness of the whole of the disciplinary process. If they find that an early stage of the process was defective and unfair in some way, they will want to examine any subsequent proceeding with particular care. But their purpose in so doing will not be to determine whether it amounted to a rehearing or a review but to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the open-mindedness (or not) of the decision-maker, the overall process was fair, notwithstanding any deficiencies at the early stage.

48. In saying this, it may appear that we are suggesting that employment tribunals should consider procedural fairness separately from other issues arising. We are not; indeed, it is trite law that section 98(4) of the Employment Rights Act 1996 requires the employment tribunal to approach its task broadly as an industrial jury. That means that it should consider the procedural issues together with the reason for the dismissal, as it has found it to be. The two impact upon each other and the employment tribunal's task is to decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason it has found as a sufficient reason to dismiss. So, for example, where the misconduct which founds the reason for the dismissal is serious, an employment tribunal might well decide (after considering equity and the substantial merits of the case) that, notwithstanding some procedural imperfections, the employer acted reasonably in treating the reason as a sufficient reason to dismiss the employee. Where the misconduct was of a less serious nature, so that the decision to dismiss was nearer to the borderline, the employment tribunal might well conclude that a procedural deficiency had such impact that the employer did not act reasonably in dismissing the employee.

[15]In circumstances where it is found a decision to dismiss was unfair the tribunal must consider how much compensation to award in accordance with sections 122 and 123 the employment rights 1996.

[16]In respect of the basic award, section 122 (2) ERA 1996 provides “Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly”

[17]In respect of the compensatory award, s123 ERA 1996 provides (1)Subject to the provisions of this section and sections … , the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. ... (6)Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.

[18]In Optikinetics Ltd v Whooley, it was held From the various authorities and taking into account the submissions made before us, we think that the following propositions of law emerge:(1) Before making any finding of contribution the applicant must be found guilty of culpable or blameworthy conduct. The enquiry is directed solely to his conduct and not that of the employer or others.

(2) For the purposes of s 123(6) the employee's conduct must be known to the employer at the time of the dismissal (cf. the just and equitable provision under s 123(1)) and have been a cause of the dismissal.

(3) Once blameworthy conduct causing, in whole or in part, the dismissal has been found, the tribunal must reduce the compensatory award by such proportion as it considers just and equitable. It must make a reduction. See Slack, para 31-32, per Woolf LJ, approving the approach of the EAT in Warrilow v Robert Walker Ltd

(1984) IRLR 304

, para 19.

(4) A finding of contribution under s 122(2) does not require a finding that the conduct is causatively linked to the dismissal. It may be first discovered after dismissal cf Devis v Atkins

(1977) 3 All ER 40

(1977) ICR 662

. The wording of s 122(2) grants to the Employment Tribunal a wide discretion as to whether to make any, and if so what reduction in the basic award on the grounds of the applicant's conduct.

(5) After some uncertainty, see Chaplin v H J Rawlinson Ltd

(1991) ICR 553

, it is now clear that different proportionate reductions are permissible in relation to the basic and compensatory awards - see Rao, Slack, and White.

(6) The appellate courts will rarely interfere with the Employment Tribunal's assessment of the percentage reduction for contribution. Hollier v Plysu.

[19]In Nelson v BBC the court of appeal stated “It is necessary, however, to consider what is included in the concept of culpability or blameworthiness in this connection. The concept does not, in my view, necessarily involve any conduct of the complainant amounting to a breach of contract or a tort. It includes, no doubt, conduct of that kind. But it also includes conduct which, while not amounting to a breach of contract or a tort, is nevertheless perverse or foolish, or, if I may use the colloquialism, bloody-minded. It may also included action which, though not meriting any of those more pejorative epithets, is nevertheless unreasonable in all the circumstances. I should not, however, go as far as to say that all unreasonable conduct is necessarily culpable or blameworthy; it must depend on the degree of unreasonableness involved.”

[20]When considering a section 123(6), the tribunal must consider whether the conduct was blameworthy, whether it caused or contributed to the claimant’s dismissal and whether, if so, it would be just and equitable to reduce the basic and/or compensatory awards and, if so, by how much.

[21]It is also necessary to take account the principles laid down in Rao v Civil Aviation Authority

[1994] IRLR 240

. In making the calculation, the Employment Tribunal should first assess the amount of the loss taking account of Polkey, including the chance of employment continuing if the employee had not been unfairly dismissed. Thereafter, and in light of that finding, the Tribunal should decide the extent to which the employee caused or contributed to the dismissal and the amount by which it would be just and equitable to reduce the compensatory award in that respect. Findings of Fact

[22]In an attempt to keep this judgment to a manageable length and comply with the overriding objective, I have not sought to resolve every factual conflict or make findings on every point raised. I set out the findings I have found necessary to reach my conclusion.

[23]The claimant was employed by the respondent as a Senior Communications Manager. He had been employed (including by the respondent’s predecessor) since 13 June 2011. He was summarily dismissed on 14 June 2024.

[24]The claimant says, and it is not in dispute, that he had no previous disciplinary warnings or disciplinary findings against him before the process which led to his dismissal.

[25]The claimant was part of a communications team as set out at page 640. He reported to the Associate Director of Communications Mr Donald and two employees, Ms Channon and Ms Cox, reported to him. The members of the team included Ms Van-der-zee and Ms Welham (who were junior to the claimant) and Ms Bruccoleri-Aitchison and Mr Moreman who were of the same or higher seniority.

[26]On 17 July 2023, Ms Cox approached Mr Donald and reported to him that she had been shown a video by Mr Fisher of his daughter and at the bottom she could see thumbnail images of pornographic material. She was, according to a statement later given by Mr Donald, very upset and said she had been avoiding him since the incident. It is not in dispute that Ms Cox and Mr Fisher had shared a small office.

[27]Mr Donald spoke to the claimant about the matter and Mr Fisher wrote to the claimant on 26 July 2023 as follows Hi Yaluska, am writing following a conversation I had with Jamie yesterday. Was hoping to say this to you personally today. I wanted to give you my sincere apologies that you saw something on my phone/screen that I had no intention of you seeing. This was a very regrettable accident and I'm not sure how it happened. I had no idea anything other than Maeve's video was on screen, I do not believe I was looking at the screen when showing you the film of Maeve, and if I was, I did not notice any unintended inappropriate content. I'm really sorry. I would like to assure you that if I had noticed anything untoward I would immediately have stopped showing it to you. I apologise for any distress this caused you and I hope you accept that this was a genuine and innocent accident.

[28]Shortly before that complaint was made, on 29 June 2023, Ms Cox sent an email to Mr Fisher in which she wrote, in response to Mr Fisher declining a request for time off on 30 June 2023: Oooo that’s exciting! Garden kitchen piccys next week?! That’s ok, totally get it! I know it was V last minute anyway but thought I’d ask. I do have an appointment at 3.30pm, so could I leave just before 3pm and make the time back?

[29]Mr Fisher replied, a few moments later: Ah thanks for being understanding. Bit of a perfect storm of leave and meetings. No problem about the appointment, yep leave at 3, then maybe just work through a lunch break next week rather than add in an extra 1/1.5 hrs somewhere?

[30]Whilst there is no doubt that employees who find bosses intimidating will often, through necessity, hide their feelings when sending emails, the impression which one gets from that exchange (which formed part of the ultimate investigation) gives the impression that, at that stage, Ms Cox was not finding the relationship with Mr Fisher to be particularly difficult.

[31]The way that Mr Donald dealt with the phone incident was to speak with Mr Fisher about it, he assisted in drafting the apology and then arranged that some of the work that Ms Cox would normally have sent to Mr Fisher was sent to him instead (see page 301). According to an email at page 300, he also had encouraged Ms Cox to speak to HR several times.

[32]The claimant was unhappy with the way Mr Donald had dealt with the allegation (or at least the ongoing consequences of Mr Fisher’s actions) and raised a grievance. His grievance stated as follows: I have managed Yaluska Cox, comms assistant, for around a year since she joined the team. In August she raised a concern with my line manager, Jamie Donald, around feeling unsafe around me. This was raised with me by Jamie on 25 August. My reaction of course was one of shock, and to reassure to Jamie that I did not recognise this concern. I feel that contrary to Yaluska’s assertion – whatever that might be – I have in fact bent over backwards to manage her sensitively and delicately. I fully expected a formal process to quickly follow this conversation, in which I would learn details about Yaluska’s concerns, and be given an opportunity to address them. Some six weeks later, I am still waiting for this opportunity and have no more information than I did when Jamie first raised it with me on 25 August. I understand that to date, no specific claims or allegations have been made against me by Yaluska. Despite this, and in the meantime…

[33]Part of the claimant’s argument before me is that the issue with the phone had been dealt with informally under the Civility policy. I do not find that was the case. The claimant’s grievance was that the matter had not been dealt with at all, it was still hanging over him.

[34]From mid-October Ms Cox was on long-term sick leave. On 20 December 2023 she, along with Ms Van-der-zee, Ms Channon and Ms Welham raised a complaint “in accordance with the UHD civility, respect and dignity at work policy” (page 315). The document is five pages long and written in emotive language. It sets out a large number of complaints against Mr Fisher going back to September 2022. It states that the writers have been advised by HR to take a formal approach and in the opening paragraph states: From a practical point of view, the work that we are covering as a result of this absence is causing stress and we feel action must be taken - we cannot normalise a cover rota or make it ok in any way that a colleague is unable to come to work. As things stand there is no possible way to bring our colleague back because of the way Jon has treated her. She does not have the emotional or mental capacity to deal with working with him and she shouldn’t have to. There have been a number of incidents that have caused this which are addressed later. Collectively, we have also had to adapt our own behaviour for selfpreservation. Many of us do not feel comfortable sharing an office space alone with Jon, and part of the reason the Poole communications office was moved was to ensure people were not left alone in an isolated work environment with him.

[35]It is not possible to easily summarise the document, beyond saying that it makes a number of allegations against Mr Fisher but it also states “While we do feel proud to work in the comms team, we feel a deep sense of despair because we do not know where to go from here. We have normalised his behaviour and have normalised a lack of action from senior leadership for meaningful change. These are not the high standards that we expect of a senior manager.” (Page 314). The allegations are not only about Mr Fisher’s conduct towards the signatories to the document but also about how he treats other colleagues. A number of emails were attached by way of evidence.

[36]As I have said, the complaint was raised under the Civility, Respect and Dignity at Work Policy and Procedure (the Civility Policy). Much time was spent in this hearing discussing the 13-week requirement in respect of that policy. The overall policy is in two parts, a policy document and a procedure document. At paragraph 4 of the policy document are the “Guiding Principles”. One of them is as follows: Timeliness - this policy allows for a complaint to be made within 13 weeks of the alleged occurrence. Any complaints raised will be dealt with quickly as practicable

[37]In the procedure document it states “All formal complaints should be lodged in writing, within 13 weeks of the alleged event. Managers who receive a complaint regarding bullying or harassment should complete the monitoring form at Appendix 7 of the Civility, Respect and Dignity at Work policy”. It also states, in the appeal section, “Once a complaint has been dealt with there will be no opportunity to revisit the same event once the 13 week period has lapsed”(page 182)

[38]The policy does not set out any exceptions to the 13-week rule.

[39]It is not in dispute that Ms McManus was appointed as the Commissioning/Case manager for the investigation under the Civility policy. That role meant that she was responsible for defining and agreeing the terms of reference for the investigation, ensuring the investigation was conducted in accordance with trust policy and procedural fairness and deciding whether there was sufficient evidence to proceed under the disciplinary policy.

[40]Ms McManus, in her witness statement, states that she considered whether it was appropriate to restrict the investigation to the three-month timeframe and, having spoken to Human Resources, decided that it was not necessary to do so because it was a collective complaint and alleged a pattern of behaviour, that the alleged incidents were said to have an ongoing impact, the allegations included serious matters and the complaint context included a staff members sickness absence and concern about returning to work. She did not record that decision contemporaneously.

[41]It appears, however, that in reaching her decision, she did not consider any questions of prejudice to Mr Fisher. In her evidence, when asked whether she considered that extending the time might prejudice Mr Fisher, she stated that she did not, she was thinking about the complainants and the fairness of the situation and, she told me, it felt fair to go back as much as required to cover everything.

[42]Ms McManus commissioned an investigation and appointed Ms Douglas to be the investigating officer. In the “Terms”, she expressly required Ms Douglas to go back to 2022 when Ms Cox joined the team and also included a requirement there should be an investigation into “allegedly continuing to vape in the office in front of YC when JF had been spoken to regarding this” (page 322).

[43]In respect of the phone incident the investigation required was into “allegedly showing YC porn on his phone”.

[44]Ms McManus included a further term of reference, which was “To investigate any related matters, which might be deemed relevant, which become apparent as part of the investigation”.

[45]Ms Douglas, who conducted the investigation, interviewed a large number of people in January and February 2024. They were:a. Ms Channon

b. Ms Welham

c. Ms Van-der-zee

d. Ms Cox

e. Ms Bruccoleri-Aitchison

f. Mr Fisher

g. Ms Mack Nava

h. Mr Moreman

i. Mr Donald

j. Ms Greenall and

k. Ms Moore.

[46]Prior to his interview with Ms Douglas, Mr Fisher wrote an initial response to the complaint (page 336). In relation to the vaping allegation he admitted that he had vaped twice in the office and went on to state that he had asked Ms Cox subsequently if there is a reason why she had felt unable to raise the matter with him directly. He said that Ms Cox would not give him an answer so he dropped the issue.

[47]In relation to the phone incident under a subheading “Inadvertent Showing of Adult Content” the claimant wrote “this was a terrible accident…”. I find that the claimant had seen the joint complaint against him by that point because he writes “I read this complaint with great sadness and frustration”. That is significant because the complaint asserts that when Ms Cox was watching the video on his phone “she could see multiple porn images at the bottom of the screen.”

[48]At this hearing the claimant has put forward a forceful case that he never admitted showing pornographic material to Ms Cox, he says he could not make that admission because he did not see it at the time. He says that he only ever admitted that he showed her inappropriate material. From that assertion he moves to an argument that the respondent failed to properly investigate what the alleged pornographic material was. In my judgment that is an argument which is being made with the benefit of hindsight (although that, of itself, does not necessarily make the argument wrong). Had the claimant really not known whether he had shown pornographic material to the claimant, having written the subheading “Inadvertent showing of adult content”, rather than writing “this was a terrible accident”, it is much more likely that he would written words to the effect that he did not know what Ms Cox was saying that she had seen. I find that Mr Fisher believed that Ms Cox had seen pornographic material of some sort on his phone and it was reasonable for all of the respondent’s witnesses to believe that he had admitted that.

[49]Nevertheless, in the investigation, Ms Douglas did not ask Ms Cox what she had seen, she told me that Ms Cox had been very upset and she did not want to press her. She told me that it was not in her mind at that point that the claimant might be dismissed.

[50]Mr Moreman, in his investigation meeting with Ms Douglas, stated that he had a lot of time for the claimant and although he referred to his shortcomings (and the need to remind the claimant to be kind) he believed that the claimant’s heart was in the right place but his strong character made it difficult for him to bond with certain personalities and for those to bond with him. The claimant made the point, which I did not understand to be in dispute, that the “kind” comment was made when Mr Moreman was his line manager and so at least four years previously.

[51]Ms Douglas interviewed the claimant, he said that he was aware that Ms Cox was quite a sensitive individual. He said that he adjusted his management style accordingly (page 350).

[52]The following exchange is recorded in the meeting: JF: Ok, well that’s double standard because Jane talks about her girls, you know, the girls are going on this, that and the other, and we can get one of the girls to do it…. VD:That’s fine that’s in context…. (p375)

[53]I asked Ms Ibbotson in the course of the case how she put the respondent’s case on the issue of the girl comment and she told me that the respondent was not necessarily saying it was a sexist point but that it was belittling. She put to the claimant that the reason using the word “girl” was patronising was because “girl” is a word used to describe a child rather than an adult.

[54]Ms Douglas compiled an investigation report. She made reference to the fact that it is usual to investigate incidents only in the three months prior to the date when the complaint is made. She stated that the commissioning manager had agreed to make an exception which was reflected in the terms of reference, but there is no record of the reasons for that exception or any analysis of the issues which might be taken into account in deciding to depart from the 13-week policy.

[55]Ms Douglas did not ask any of the signatories to the December complaint any questions about why they had not made the complaint within the 13 week period. In her report she notes in relation to the allegation that staff felt unable to work with the claimant due to his behaviour: The inappropriate messaging/comments mostly occurred several months prior to the joint statement being written, with little evidence of recent incidents being available from the complainants (p426)

[56]The investigation report sets out Ms Douglas’ findings. In respect of the vaping, she states that the claimant’s behaviour was not in line with the vaping policy and, also stated that Mr Donald had vaped to provoke and challenge both him and Ms Cox.

[57]In respect of the phone incident, her finding was that the matter had been dealt with informally with the claimant apologising soon after and Ms Cox being relocated to work at Bournemouth and reporting to a different manager. She went on to state “however, showing sexually explicit material to a colleague is not acceptable and considered under trust policy to be sexual harassment” (page 436)

[58]One of the matters that Ms Douglas had been asked to investigate was “Allegedly showing lack of respect and disregard for his colleagues and other teams. He regularly throws out derogatory comments about other colleagues across the trust and belittles their intelligence”. In that respect:a. One of the findings made by Ms Douglas was that the claimant had said to Ms Cox something like “you’re the third person after her husband and child”. There is no finding as to when that was said.

b. Another finding was in relation to comments made by the claimant in emails on 11 January 2023.

c. A further allegation was in relation to Mr Cox’s description of Roland as an “internal terrorist” in February 2023. The claimant said that was an obvious joke

[59]In respect of another of the terms of reference (JF’s behaviour was often challenging and intimidating…):a. Ms Duncan made a finding that the claimant had referred to a colleague as a minion.

b. She also found that the claimant had referred to Ms Channon as a good girl. Her report gives the date of that comment as 24 January 2024 which is incorrect. The date according to page 326 was 24 January 2023. From the relevant interview it can be seen that Ms Channon was making a complaint about a meeting that she had not been at and, of course, at that point the allegation was one year old.

[60]Another finding by Ms Duncan was that in May 2023 Mr Fisher had written to Ms Van-der-zee addressing her as “Hello Tiger”. She replied to say “please do not call me Tiger” and he had replied “yikes, sorry Paige”.

[61]Ms Douglas found that there was a case to answer and the matter was referred to a disciplinary hearing by Ms McManus.

[62]On 17 April 2024 Ms McManus wrote to the claimant inviting him to a disciplinary meeting on 1 May 2024 and set out the allegations which he must answer. They were as follows: -Sickness of YC since mid-October 2023 allegedly due to the poor behaviourand incivility of JF - Staff feeling unable to work alone with JF due to the alleged behaviour- It is alleged that when YC joined the team in 2022 JF’s behaviour was often challenging and intimidating- he would act generally agitated and act erratically - blasting out loud music and leaving the office for long periods of time to vape. Allegedly continuing to vape in the office in front of YC when JF ad already been spoken to regarding this - Allegedly showing YC porn on his phone - Allegedly showing lack of respect and disregard for his colleagues and other teams. He regularly throws out derogatory commences about other colleagues across the trust and belittles their intelligence - Staff having been asked to call out inappropriate behaviour but feeling that this has ultimately made no difference

[63]The report of Ms Duncan was enclosed with the letter (page 450).

[64]The disciplinary hearing was heard by Ms White. Ms White is the Associate Director of HR Operations and Well-Being.

[65]The first disciplinary meeting took place on 1 May 2024. Ms McManus presented the management case and Ms White says that during the course of the hearing she identified areas where the evidence lacked sufficient clarity. She therefore adjourned the meeting and it was reconvened on 8 May 2024, where Mr Fisher continued to present his case. Mr Donald attended.

[66]The meeting on 8 May 2024 concluded with Ms White stating that she would make a decision within 14 days.

[67]In the course of that meeting Mr Fisher raised that he had had an affair with one of the witnesses who had been interviewed by Ms Douglas, Ms Bruccoleri-Aitchison. On 4 June 2024, Ms White stated that she would like to interview Ms Bruccoleri-Aitchison and proposed to reconvene the disciplinary hearing in order to allow her to do so. Thus the matter reconvened on 6 June 2024.

[68]By letter dated 13 June 2024, the claimant was dismissed. The dismissal letter set out the conclusions which Ms White had reached. Ms White set out a summary of the hearing process in which she set out witnesses she had heard from but she admitted in cross-examination that she had failed to note that she had heard from Mr Donald or include any of his evidence in her letter. She reviewed the evidence and concluded that the allegations were “upheld” One of the findings she made was “in a conversation with a trust colleague, you were overheard referring to another female staff member as a “minion”. In her evidence Ms White accepted the claimant’s case that there was no basis for her finding that the staff member being referred to was a female and said that was an error. She also concluded that the claimant had described Ms Channon as a good girl on 24 May 2023. That date would appear to be inconsistent with the interview of Ms Channon referred to above. However, Ms White was not asked questions about that and I, therefore, make no further finding in that respect.

[69]Ms White made reference to the fact that Mr Moreman had spoken to the claimant about his style and reminded him to be kind.

[70]Ms White’s findings in respect of vaping were as follows: In relation to vaping we heard that during October 2022 (approximately) your line manager, JD, was made aware by a colleague of YC, that you had been vaping in the small office at Poole, with YC present. JO spoke with you to tell you that you must refrain from doing this. Some time after (a few weeks later) you vaped in that office again, directly going against a reasonable management instruction and JD describes this as a direct and inappropriate challenge to him and YC. After this, no further reports of vaping in the office were made. You said at the disciplinary hearing that you have a nicotine addiction and accept that this was inappropriate. You felt that this was dealt with informally at the time. In JBA's statement, she describes that you told her you were testing the boundaries to see how much you could get away with. The letter goes on It is acknowledged that the acts relating to the vaping issue were some time ago and discussed informally at time, on two occasions. It is also noted that you are the communications lead for the Trust’s Smoke Free Campaign. It is clear, however, that through your actions you demonstrated defiance and disregard of rules and instructions, together with a conscious decision to inappropriately challenge YC in raising the concern. (Page 582)

[71]To the extent that the respondent sought argue at this hearing that the issue with vaping was mainly around the fact that Mr Fisher spoke to Ms Cox afterwards to challenge her as to why she had not spoken to him directly, I reject that argument. I find that the act of vaping on two occasions was as much in the mind of Ms White as the fact that Mr Fisher spoke to Ms Cox afterwards about why she had not spoken to him directly.

[72]The disciplinary outcome letter dealt with the question of the phone incident as follows: The act of showing YC images of pornography on your phone, whether deliberate or negligent had a grossly significant and far-reaching impact on YC, resulting in her ill health, which is still present today. This constitutes sexual harassment, as the behaviour was unwanted, intimidating and violated YC's dignity, whether this was intended or not.

[73]The letter went on to state that that finding was capable of amounting to gross misconduct on its own (page 585).

[74]Ms White considered a lesser sanction and decided that it would not be appropriate for a number of reasons.

[75]The claimant was given the right to an appeal which he exercised.

[76]The disciplinary policy provides that in respect of appeals “The appeal will be heard by a panel of individuals consisting of a line manager with relevant and appropriate seniority, for example, the line manager’s manager, and an HR representative, who was not at the original meeting where formal action was taken.” (Page 136).

[77]The manager appointed in respect of the appeal was Ms Herbert. In her witness statement she states that she was accompanied by Ms Mardon, Deputy Chief people Officer, who gave her HR advice. She states that Ms Mardon was not a decision-maker. Ms Herbert’s witness statement is curious, in that in some places she describes herself in the first person as the decision-maker and talks about the decisions she made, however, additionally the following paragraphs appear in her witness statement:a. In paragraph 19 she writes “the panel deliberately adjourned to allow time for proper consideration of the procedural issues raised by Mr Fisher and the substance and seriousness of the underlying conduct”. Ms Herbert told me, and I accept, that the reference to the panel was to her and Ms Mardon.

b. In paragraph 20 she writes “this was because we were considering whether any alternative sanction might be appropriate” (my emphasis). Ms Herbert’s evidence in that respect was that Ms Mardon was there as HR support but the decision was hers.

c. In paragraph 24 Ms Herbert writes “the appeal panel was satisfied, having reviewed all available documentation, that the investigation and disciplinary hearing complied with the… Policy”. In that respect Ms Herbert told me that although she had referred to the “appeal panel” being satisfied, Ms Mardon was there to provide expert guidance.

d. In paragraph 29 Ms Herbert writes “the panel felt that the reasoning of the disciplinary panel was sufficient as the (somewhat generic) comment made by Richard Moremon (that he had to remind Mr Fisher to “be kind”) was relevant to the context of the Disciplinary process.”. As I understood Ms Herbert’s evidence in this respect, it was that the reference to the panel was a reference to her and Ms Mardon but that she had made the decision.

[78]I find the position in relation to the appeal to be as follows. The policy clearly anticipates that the panel hearing the appeal will include an HR representative. It does not suggest that the HR representative will only be there to provide advice. Given the way in which Ms Herbert switches in her witness statement from referring to decisions she made to decisions that the panel made I find that Ms Mardon was instrumental in some of the decisions made by Ms Herbert, in a way which went beyond giving advice. In particular I find that Ms Mardon was involved in deciding to adjourn the appeal on 27 August 2024, in deciding whether alternative sanctions might be appropriate, in deciding whether the original hearing had been sufficiently fair and thorough and in deciding the relevance of the fact that the “kind” remark had been relied upon in the disciplinary hearing. Conclusions

[79]I remind myself that it is not for me to substitute my decisions for those of a reasonable employer. The question for me is whether the decisions which were made in this case were within the range of reasonable responses, the question is not what I would have done.

[80]I will set out my conclusions by reference to the list of issues.

[81]There is no doubt that the claimant was dismissed and I accept that the reason for the dismissal was the claimant’s conduct. The claimant did not suggest that he was dismissed for some other reason and I accept the evidence of Ms White that she dismissed the claimant because she believed that he was guilty of misconduct.

[82]I also accept that Ms White had reasonable grounds for believing that the claimant was guilty of misconduct given the evidence collated by Ms Douglas.

[83]The real question in this case is whether there was a reasonable investigation.

[84]I will address the claimant’s particular concerns as identified by Employment Judge Cadney.

[85]The first question (labelled i at page 86) is whether the conclusions were predetermined. Having observed the respondent’s witnesses give evidence and considered their statements, I have concluded that they were somewhat swayed by way in which the initial allegations were written and the way in which Ms Cox presented herself in interview. That was the reason that Ms Cox was not probed as to what she had seen on the claimant’s phone and also the reason for going beyond the 13 week limitation (to which I will return).However, that is not the same as saying that the conclusions were predetermined. I do not find that they were.

[86]The next question is whether the investigation failed to identify disputes of fact and/or that there was little or no corroborating evidence for the complaints etc1. Generally I find that the investigation by Ms Douglas was thorough and did identify the issues of fact and made rational and reasonable conclusions. I find that two criticisms of substance can be made in respect of the investigation. The first is that whilst the investigation report highlights the age of some of the allegations, Ms Douglas did not question why the complainants had delayed in making their complaints or even ask any of the complainants about that. She appears to have simply proceeded on the basis that a decision had been taken by Ms McManus to include old allegations and proceeded accordingly. The second is the speed with which Ms Douglas dismissed the claimant’s arguments in his interview that he was being treated differently to Ms Bruccoleri-Aitchison in respect of the “girls” comment. Subject to those points which, I will return to below, in terms of the investigation report I do not think that Mr Fisher’s criticisms are fair.

[87]I am more concerned about the decision-making process of Ms White. Reading the dismissal letter as a whole, it seems to me that Ms White has focused on the evidence which points to the claimant’s guilt without taking any real account of other evidence. She admits that she made no reference to the evidence of Mr Donald in her letter and I am not satisfied that she properly considered that evidence, to the extent that it favoured the claimant. On her own admission she assumed that the claimant’s reference to a minion was to a female member of staff without knowing whether it did or not. I consider that 1 I have considered all matters contained in para 67ii of the Case Management Order of EJ Cadney. to be a failing of some significance given that part of her analysis in the outcome letter is “There is also a theme of a particular tone when referring to junior females that is unwanted and not acceptable, such as ‘good girl’, 'sass’, ‘minion’ and ‘hello tiger’”. I am also concerned about the fact that she took account of the reference by Mr Moreman to being kind despite the fact that it was over four years old. Of course, it is not necessary for an investigation to reach the standards of a judicial enquiry, however I will return to these matters when I look at the cumulative effect of the criticisms which the claimant makes of the respondent’s processes.

[88]The next allegation is that no adequate weight was given to the claimant’s evidence (p86 (iii)). It seems to me, and I find, that Ms Douglas did consider what the claimant had said and recorded it faithfully. In terms of the decision by Ms White, the fact that she rejected the claimant’s evidence does not mean that she did not give it adequate weight. To some extent there is an overlap between this allegation and the previous one in that I am concerned that Ms White overlooked evidence which was favourable to the claimant which may then have led her to give inadequate weight to the claimant’s evidence; however beyond that I do not think that this criticism is made out. There was a significant amount of evidence against the claimant, much of it at his own hand in terms of emails he had written and the way he had addressed people. He had also, in my judgment, effectively admitted to showing pornography to Ms Cox albeit accidentally.

[89]The claimant then asserts (iv) that the management report did not set out competing evidence or versions of events. In my judgment it did not need to. There is no particular format needed for an investigation report. The failure by the management report to address the potential conflict of interest of Ms Bruccoleri-Aitchison is also not, in my judgment, problematic. It is not necessary to weigh every piece of evidence and there is no doubt that Ms White took the allegation seriously.

[90]I have been more concerned about the way in which the respondent, and in particularly Ms Duncan, dismissed Ms Bruccoleri-Aitchison’s reference to “girls” whilst seizing upon the claimant’s use of it as evidence of his inappropriate behaviour. I bear in mind that the context of the uses of the word was different. There is no evidence that Ms Bruccoleri-Aitchison referred to a “good girl”. However, I accept the respondent’s case that referring to women as girls is patronising and belittling. If that is the case, it must be just as inappropriate for Ms Bruccoleri-Aitchison to refer to women as girls as it is for the claimant to refer to them as girls. Whilst any judge who lives in the real world knows that on occasions, in conversation, women will refer to each other as girls, in a workplace there is a need for consistency. Either it is acceptable to refer to women as “girls” or it is not. In my judgment the respondent was too quick to dismiss the claimant’s argument that he was not being treated fairly in comparison with Ms Bruccoleri-Aitchison. I do not find that the respondent could only have resolved this point in the claimant’s favour; my finding is that the point was not adequately considered.

[91]It seems to me this point ties in with another point which is that the original complaint suggested that the culture which was being complained about had been normalised by a lack of action from senior leadership for meaningful change.

[92]Looking at the dismissal letter, Ms White appears to me to have given no real consideration to the question of the extent to which the claimant was uniquely to blame for the culture being complained about or the extent to which he was simply reflecting the environment in which he operated. That is a matter of concern when the respondent has chosen to rely on factual matters going back to 2022 and beyond. When considering dismissing an employee who has worked for 13 years, those matters are not irrelevant.

[93]The next allegation (v) is that there was a failure to deal with allegations informally before proceeding to formal disciplinary proceedings. In my judgment there is no merit in that allegation. There is no requirement to initially deal with allegations of misconduct informally and in the circumstances (subject to the arguments about the effect of the Civility policy) I do not see any reason why the respondent could not move straight to formal disciplinary proceedings in respect of these allegations.

[94]The next argument (vi) is that the allegations were all historic and (vii) is that the allegations had been delat with. I deal with both together. This does, to some extent, touch on the provisions of the Civility policy.

[95]I find that the allegations of vaping in the office were not only old but they had been dealt with at the time by the claimant’s manager. Whether they had been dealt with effectively or satisfactorily is, in my judgment, of little importance. The claimant was entitled to believe that misconduct had been dealt with. I find that in the context of the test in section 98(4) Employment Rights Act 1996, it was unreasonable to treat the allegation in respect of vaping as a reason to dismiss the claimant, even in conjunction with other allegations of misconduct. That is, however, a different point to whether the allegation about the way the claimant challenged Ms Cox in respect of her complaint about his vaping had been dealt with informally. It had not been.

[96]Many of the other allegations contained within the December complaint were also historic. Allegations became more historic when Ms Duncan started investigating and other points were raised. I accept that the 13-week rule in the policy must admit of exceptions. However, it seems to me that the respondent’s witnesses all downplayed the significance of the 13-week rule. Their evidence was to the effect that it can be ignored when it is considered in the interests of justice to do so, especially where there is a pattern of making people feel uncomfortable. I was told that the respondent had applied that approach in at least six cases since 2023. The difficulty with the respondent’s argument is that the policy itself does not suggest that there will be an exception in such circumstances. In my judgment, read as a whole, the policy clearly anticipates that it is a requirement that if people wish to bring complaints under the Civility policy they do so within 13 weeks of the events being complained of. In this case the complaints in December 2023 were not even within 13 weeks of the most recent allegation. There is no reason to doubt that the policy uses the period of 13 weeks for good reason, including, I anticipate, to prevent employees being faced with stale allegations. If the respondent was to disapply the 13 week requirement, it was incumbent upon it to do so with care and, in particular, take account of any unfairness to the claimant which might arise as a result of doing so. Ms McManus accepted that she had not considered the position of the claimant in deciding to disapply the 13 week requirement and I find that no other officer involved with this disciplinary process considered that either. To that extent, I find that the respondent behaved unreasonably.

[97]However, and importantly, the Civility policy is not the only route to a disciplinary process. Although employees must raise complaints about other members of staff within 13 weeks, I see no impediment to a manager taking the view that the disciplinary process should be invoked in respect of misconduct which is older than 13 weeks which is not disclosed under the Civility policy. In those circumstances I do not find that the Civility policy of itself prevented the respondent investigating either the pornography allegations (which in any event were not dealt with under the Civility policy) or the vaping issue which, also, was not dealt with under the Civility policy (although for reasons I have already given, I consider that pursuing it was unfair).

[98]Complaint (viii) is that the allegations relating to management style should have been dealt with as performance issues. This point ties in with the failure by the respondent to consider the allegation that senior management had knowingly allowed the claimant to behave as he was doing. If that allegation were correct then it seems to me that the claimant’s point would have some force. I have already expressed my concern that the respondent did not fully engage with this point. I reject, however, any suggestion that allegations relating to management style must always be seen as performance issues and in my judgment the claimant minimises many of the comments he makes. Whilst the claimant advances justification for the comments he has made such as “hello Tiger”, “good girl”, “minion”, “terrorist” and for his criticisms of other employees, there comes a point where an employer is entitled to regard such comments as conduct issues rather than capability issues. This complaint is only valid to the extent that the respondent should have given consideration to the extent to the claimant’s managers had condoned the claimant’s behaviour over a period of time.

[99]The next complaint made by the claimant (ix) is that the conclusion that the allegations amounted to sexual harassment was not one which was ever notified to him as being something that the respondent was considering. The claimant’s point is not an idle one. The disciplinary policy specifically states that harassment amounts to gross misconduct (page 139). The Civility policy has its own definition of harassment (page 153) and a specific section about the impact of harassment (page 152).

[100]The invitation to the disciplinary meeting did not say that the claimant would have to answer an allegation of harassment, it referred to “allegedly showing YC porn on his phone”. However, the invitation enclosed the investigation report which, as I have said, stated “however showing sexually explicit material to a colleague is not acceptable and considered under trust policy to be sexual harassment.” Significantly, earlier in the report definitions of harassment had been included. In the first disciplinary meeting of 1 May 2024, when presenting the management case, Ms McManus stated “showing sexually explicit material to colleagues is not acceptable and contravenes the Civility Policy and is considered, under Trust policy, to be sexual harassment...” (page 463).

[101]Although I am not unsympathetic to the claimant’s complaint in this respect, looked at overall, I am satisfied that he was put on sufficient notice that the Trust may consider that the showing of pornography amounted to sexual harassment. He was represented in the disciplinary meeting. Whilst it would certainly have been preferable for the disciplinary letter to refer to harassment, in this respect the process was fair and did not fall outside the range of reasonable responses from an employer.

[102]In the light of my conclusions set out above, it is not necessary for me to decide whether the decision to dismiss fell outside the range of reasonable responses therefore I decline to decide allegations x and xi as identified by employment Judge Cadney.

[103]In addition to those matters I also find that the involvement of Ms Mardon at the appeal level was inappropriate. She had strayed beyond areas of advice and into considering matters of culpability as I have set out in paragraph 78 above. It is inappropriate for the disciplinary process to be that an appeal will be heard by a panel including an HR officer, if the purpose of the HR officer is to give advice. Obviously, the position may be different if an HR officer has been appointed as the appeal officer and is hearing the appeal in that capacity, but that was not the case for Ms Mardon. Although this point is not in the list of complaints identified by EJ Cadney, it became obvious as a point during the course of the hearing and was addressed by Ms Ibbotson in closing submissions at my request. In those circumstances, it seems to me appropriate for me to take the point into account. I find this was a significant failing and, by itself, would mean that the respondent did not carry out a reasonable investigation (that is to say one which fell within the range of reasonable responses). An employee is entitled to an appeal which is determined without inappropriate input from Human Resources officers.

[104]Further, and in any event, I must consider the cumulative effect of the failings I have set out above. To summarise, those failings werea. The HR manager being overly involved in the appeal decision.

b. Taking into account the misconduct of the claimant in vaping in the office when that had been dealt with many months before.

c. Not investigating with the complainants why they had delayed making their complaints.

d. Relying on historic matters raised as part of the Civility complaint without considering whether it was prejudicial to the claimant to do so.

e. Dismissing without proper consideration, Mr Fishers assertion that Ms Bruccoleri-Aitchison referred to staff as “girls”.

f. The analysis of Ms White in the dismissal letter which i. Focusses solely or mainly on those matters which incriminate the claimant and ii. Was in error on respect of the “minion” comment.

g. The failure to properly consider the suggestion that the claimant was operating in a culture in which his behaviour had been normalised by his managers.

h. Taking into account the allegation that the claimant had been told to be kind, four years previously.

[105]Taking account of equity and substantial merits of the case and looking at the size and administrative resources of the respondent, the identified failings meant that the respondent behaved unreasonably in treating the claimant’s misconduct as a sufficient reason for dismissing him. It behaved unreasonably in terms of the investigation. The respondent fails on the third limb of the Burchell test because, for the reasons I have given, there was not a reasonable investigation. The cumulative effect of the failure to address those matters set out above means that the investigation fell outside the range of reasonable responses.

[106]Therefore, the dismissal was unfair.

[107]I must then consider the questions of whether a fair procedure would, or might, have resulted in the same outcome and whether the claimant contributed to his dismissal by his behaviour.

[108]I find that it is overwhelmingly likely that even if the respondent had not made the procedural errors which I have referred to, the outcome would have been the same. A fair procedure would have been likely to conclude that this was a case where the respondent could properly consider allegations under the Civility policy even though they were not made within 13 weeks. Even taking account of the potential prejudice to the claimant, the respondent would have been likely to conclude that it should investigate most of the allegations, except for the allegations in respect of vaping. Some of the evidence would not have been accepted given its antiquity, not least the advice by Mr Moreman to be kind, but a fair procedure would have admitted much of the same evidence which was considered in this case. In particular it is likely to have considered the comments made by the claimant about members of staff and the way he addressed members of staff in 2023. Although views may differ as to whether accidentally showing somebody pornography on a phone amounts to gross misconduct or not, it is likely Ms White would, permissibly, have taken the view that it did. Even taking account of evidence which was beneficial to the claimant and correctly addressing the “minion” comment, the respondent would have been likely to place significant weight on the way the claimant had addressed junior members of staff. It is unlikely that Ms Herbert would have come to any different conclusion at the appeal if Ms Mardon had properly adhered to her role.

[109]However, although I consider it highly likely that the claimant would still have been dismissed, I cannot be certain that he would have been. Ms White might have decided that the claimant’s managers had, effectively, condoned his behaviour and therefore it was appropriate for the claimant to receive a warning. It is possible that if questions had been properly asked as to why the complainants were only making allegations so long after the events complained of, the position would have seemed more nuanced than it did. I have referred to the seemingly good relationship between Mr Fisher and Ms Cox in June 2023 above. If Ms White had not been taking account of inappropriate historic allegations and taken more account of the evidence which favoured Mr Fisher, it is possible that she might have taken the view that accidentally showing pornography on his phone to Ms Cox did not amount to gross misconduct. However, I do not think that the chances of that happening are particularly high and I consider that there is an 80% chance that the claimant would still have been dismissed even if a fair process had been followed.

[110]I must also consider whether the claimant contributed to his dismissal. In my judgment he clearly did. He was guilty of culpable conduct. The way he had addressed junior staff was culpable as was the way he criticised other members of staff. Although the claimant seeks to explain away all of those incidents as being humorous or slips of the tongue, he was a senior employee who should have known better. Whilst it might be said that it is not morally culpable to look at pornography on one’s own phone (I need express no particular view), if the claimant was going to look at pornography and then show his phone to a junior member of staff who he knew had a sensitive nature, it was incumbent on him to make sure that the pornography would not be displayed. It is not good enough to say “it was an accident”; the claimant should have made sure that that accident did not happen and in that sense he was culpable.

[111]In terms of the basic award, I consider it just and equitable to reduce the basic award by 80%. In terms of the compensatory award, I must consider the combined effect of the 80% chance that a fair procedure would have resulted in the same outcome and the 80% contributory fault. Overall, I consider it just and equitable to reduce the compensatory award by 90%.

[112]Thus the claimant’s claim of unfair dismissal succeeds but he will only receive 20% of his basic award and 10% of his compensatory award, subject to any other necessary adjustments which arise in the course of the remedy hearing. Remedy Hearing- 3 July 2026

[113]For the purposes of the question of remedy, I have been provided with a further bundle running to 82 pages, two payslips of the claimant, an updated schedule of loss dated 2 July 2026 and a further chronology from the respondent.

[114]It is agreed that the basic award, prior to reduction for the reasons set out above, is £11,900. The effect of my judgment above is the claimant is entitled to receive 20% of that amount, being £2380.

[115]In terms of the compensatory award, the respondent submits and the claimant did not dispute, that the correct net weekly figure for the claimant’s pay, prior to his dismissal, is £753.59, based on a net monthly payment of £3274.36. That is the figure that I will use in these calculations.

[116]The basic principle for the calculation of losses in this case is not in dispute. In Whelan v Richardson

[1998] IRLR 114

, the Employment Appeal Tribunal stated (having made clear that every case should be assessed on its merits):(1) The assessment of loss must be judged on the basis of the facts as they appear at the date of the assessment hearing ('the assessment date').

(2) Where the applicant has been unemployed between dismissal and the assessment date then, subject to his duty to mitigate and the operation of the recoupment rules, he will recover his net loss of earnings based on the pre-dismissal rate. Further, the industrial tribunal will consider for how long the loss is likely to continue so as to assess future loss.

[117]Therefore, the starting point is to assess the claimant’s loss between the date of his dismissal and today’s date. At this stage I limit that analysis to the question of loss of earnings, not the other losses which the claimant has claimed as part of the compensatory award.

[118]It is not disputed that the claimant has remained out of work until 3 July 2026. That is a period of 107 weeks. The net loss for that period is £80,634.13.

[119]I must then consider the impact of the fact that the claimant has been ill for that period which, he says, has limited his ability to look for work. In a conspicuously fair submission, Ms Ibbotson submitted that the legal position is that illness following dismissal does not automatically break the chain of causation and the tribunal must assess what would have happened but for the dismissal. She points out, however, that the claimant has adduced no medical evidence that his dismissal caused his illness.

[120]More than in any other area where employment tribunals make findings of fact, remedy hearings seem to require them to make decisions based on limited and partial evidence. It is a curiosity that in many cases, parties spend huge amounts of time and money on questions of liability and very little on questions of remedy. That is not a criticism of parties generally or the particular parties in this case; it is simply an observation and an explanation that tribunals have to make the best findings they can on a limited amount of evidence.

[121]There is no suggestion that the claimant had any material absence due to ill health before the events that gave rise to his dismissal. He was absent due to ill-health once disciplinary proceedings against him had started. There is limited medical evidence as to the cause of his current ill-health. I accept that it is depression and anxiety and I note that, in or around 1 October 2024, he told Steps 2 Wellbeing “my main problem is a precarious financial situation. This is triggered by being dismissed at work and having a poor probability of finding another similar role due to the dismissal”.

[122]Having heard the claimant give evidence, considered the evidence in the liability bundle as to his engagement in work prior to the matters which led to his dismissal, considered his length of service and having considered the fit notes and the letter of 1 October 2024, I have concluded on the balance of probabilities that, had the claimant not been dismissed, it is likely that he would have returned to work and remained in employment until now. I also find that the claimant’s illness flows from his dismissal, which aligns with my finding that had he not been dismissed he would have returned to work without ill-health absence.

[123]Therefore, I conclude that the illness of the claimant has not broken the chain of causation in this case and that, but for the dismissal, the claimant would have earned £80,634.13 to 3 July 2026.

[124]I must then consider whether the claimant mitigated his loss or not. I find that in the period up to March 2025 the claimant made reasonable efforts to obtain alternative employment. He focused his search on jobs similar to those which he had been doing for the respondent and appears to have been active in searching for jobs to apply for. I find that he took advice about his CV and appropriately used LinkedIn and employment consultants.

[125]The claimant tells me, and I accept (not least because there is some contemporaneous evidence in the bundle at around pages 72 onwards) that as a result of losing his employment he ran into mortgage repayment arrears. He owned his house himself and lived by himself, except for his daughter. He was therefore under pressure from the mortgagor to resolve that situation. The claimant also told me and again I accept, that it was the pressure of that situation that drove him to keep applying for jobs even though he was not particularly well from a mental health perspective.

[126]There is no evidence in the bundle that the claimant continued to search for jobs from March 2025 onwards.

[127]The claimant did not sell his house until October 2025 but he did place it on the market in March 2025 (page 72) and taking account of what the claimant told me, I find that in March 2025 the pressure from the bank probably became less because his house was on the market. I find it likely, therefore, that the claimant’s job-hunting reduced.

[128]However, the claimant says that the reason it reduced was because when the bank stopped putting pressure on him, he was able to revert to the state that he was naturally in because of his ill-health, that is to say one of inability to look for work. It seems to me that once the pressure from the bank had alleviated, the claimant’s ill-health would start to take centre stage in his life and he may have found it more difficult to be motivated to get employment. The claimant told me and I accept that he was and is on antidepressants.

[129]The claimant also told me that he did not entirely stop looking for work after March 2025 and that he could have provided evidence of job searches in that period but he just has presented the tribunal with a selection. That evidence is difficult to accept at face value because the claimant was aware that the tribunal would need to see evidence of job searches and if such evidence exists, it is difficult to see why he has not provided it to the tribunal. It seems to me likely that from March 2025 onwards the claimant’s jobhunting declined dramatically although I accept that he may, on occasions, have forwarded his CV through media platforms such as LinkedIn. I do not find that the claimant broadened his job search significantly from senior jobs of the type in which he had been employed.

[130]The claimant says that not only was he ill but he was also focusing on this tribunal. I have little difficulty in believing that the claimant spent a lot of time preparing for this tribunal, he was well prepared, much better prepared than many litigants in person who appear before the tribunal, and for a layperson to get themselves into that position would take many hours of industry.

[131]The burden of proof is on the respondent to prove that the claimant failed to mitigate his loss. The respondent must do two things; it must show that the claimant unreasonably failed to make sufficient attempts to find alternative employment and show that if the claimant had tried harder he would have got alternative employment.

[132]I find that the claimant should have tried harder than he did; but it seems to me that he could not have been expected to hunt for jobs with the same vigour as a person without his health issues. The more difficult question for me is what would have happened if the claimant had been more vigorous in hunting for jobs and had expanded his search for different types of work. He would have faced the difficulties of a job market which is not easy for applicants at the moment, whilst having to inform employers that he had been dismissed for gross misconduct. Although he should have widened his job search, given that he had been in his current role for many years, it is not immediately obvious that he would have been successful in obtaining alternative work even if he had done.

[133]The respondent has placed no evidence before me as to jobs which the claimant might have applied for if he had broadened his search or been more vigorous and ultimately, I am not satisfied that the claimant has failed to mitigate his loss by obtaining employment which was available to him.

[134]I therefore make no reduction in respect of his loss of earnings for the period to date because the claimant failed to mitigate his loss.

[135]In my judgment it will be easier for the claimant to obtain employment going forward, he will be able to tell future employers that he was unfairly dismissed and general experience suggests that once tribunal proceedings are behind people, recovery from mental health illnesses accelerates. Hopefully, he will begin to put this difficult period of life behind him. The reality is that the claimant now needs to pursue his search for alternative employment as vigorously as if the bank was still threatening him in respect of mortgage arrears. If he does that, I consider that, on the balance of probabilities, he will obtain employment reasonably quickly. However, I am much less certain that he will obtain future employment at net pay of £753 a week. Doing the best I can I assess future loss of earnings as 22 weeks (being based on five months at 4.345 weeks in a month) at £753.59 a week. That gives a total of £16,578.98. The claimant may obtain alternative employment sooner than 22 weeks at the same rate of pay, alternatively he may obtain employment sooner but at a lower rate of pay, alternatively he may obtain employment later but at a higher rate of pay. The period I have chosen is an attempt to reflect the various possibilities.

[136]In addition, the claimant claims what he has described as consequential loss, in that he says he had to sell his house for £25,000 less than it was worth because he had to repay his mortgage. In support of that claim, he points to the fact that he sold his house on 12 September 2025 for £320,000. He says it had been marketed at below value for a quick sale. He says that repossession was imminent. The claimant has disclosed little evidence in support of this claim. I have seen no original valuation from the estate agent that he decided to market the property with, nor even a letter saying that they agree that the property was sold at an undervalue. There is evidence as to the actual sale price because the claimant has produced the completion statement. The best evidence which the claimant can offer as to value is a Zoopla search which, I understand, was done recently and which values the property within a range between 328,000 and £363,000. I accept, as a matter of principle, that if the claimant had to sell his house quickly, he is unlikely to have obtained the best value for it. To that extent I accept his evidence. However, I am not willing to accept that the property had a value higher than £328,000 at the time it was sold. I have no evidence as to what condition the property was in, where it was situated in the road, what the neighbours were like or any other of a number of factors which might influence a sale price. I have no evidence as to whether property prices have gone up or down in the period between the claimant selling his property and the date when the Zoopla search was carried out. Again doing the best I can on limited evidence, I assess the claimant’s loss in this respect at £8000.

[137]The claimant claims sums in respect of notice pay but that is taken into account in the fact that I have calculated loss of earnings from the date of dismissal.

[138]Finally the claimant claims £500 in respect of loss of statutory rights. Many claimants claim £750 in respect of such losses. The loss is designed to compensate a claimant who has been unfairly dismissed for the fact that they will have to work for a minimum period in a new job before they obtain employment rights. They have, therefore, suffered loss. The respondent’s argument is that when the relevant provisions of the Employment Rights Act 2025 come into effect, instead of having to work for two years to bring a claim of unfair dismissal, a claimant will only have to work for six months. Ms Ibbotson, therefore, argues that I should only award the claimant 25% of £500. Engaging though the argument is, I do not think the position is as straightforward as Ms Ibbotson suggests. It is yet to be seen how bringing in the new qualification period will affect industrial relations, but it is at least possible that employers will start to dismiss employees earlier than they otherwise would have done. If one takes an employee about whom an employer is currently unsure, an employer may, properly, decide to dismiss that employee at the 18 month mark to avoid any risk of an unfair dismissal claim being brought.. An employer in a similar position now may decide to dismiss an employee at the five-month mark. Thus, it is at least conceivable, that the Act will make the position more difficult for new employees. I do not suggest that it will, my point is, that we simply do not know, at this stage, what the practical effect of the legislation will be. In my judgment the claimant lost something of value when he was dismissed, which was that he did not need to work for a minimum period before he had employment protection. The claimant does now need to work for a minimum period, whether it be six months or two years. In this case I assess the value of that loss of £500.

[139]The claimant has asked for an order that the respondent should only give him a factual reference and not make reference to the circumstances of his dismissal. I have no power to make that order and give no indication of whether I would make such an order if I could.

[140]The claimant asks for an uplift because of the respondent’s failure to comply with the ACAS code. I do not find that there has been a breach of the Code of Practice on Disciplinary and Grievance Procedures. The Code sets out a number of steps which the respondent must take. In my judgment it took those steps. Although I have found that the procedure should have been better, that, by itself, does not amount to a breach of the ACAS code. In those circumstances I do not award any uplift.

[141]Subject to the necessary reduction of 90%, as set out above, the total of the awards I have made above is such that the claimant is awarded a compensatory award of £105,713.10.

[142]That must be reduced by 90%, which reduces the claimant’s compensatory award to £10,571 31.

[143]The claimant is awarded a basic award of £2380 and a compensatory award of £10,571.31.

REASONS

17 July 2026 Jade Lobb Notes