J Ladley v Transport UK East Midlands Ltd T/a East Midlands Railway: 6014592/2024
EMPLOYMENT TRIBUNALS
Case No 6014592/2024
Between
J LadleyClaimantTransport UK East Midlands Ltd T/a East Midlands RailwayRespondent
Before
Employment Judge MuzafferIn person for claimantMs I.Brown (instructed by counsel) for respondentDate 17 February 2025
JUDGMENT
The complaint of unfair dismissal under Part X of the Employment Rights Act 1996 is not well-founded and is dismissed.
REASONS
[1]The claimant, Mr Jacob Ladley, was employed by the respondent, Transport UK East Midlands Ltd trading as ‘East Midlands Railway’ and ‘EMR’ from 04 October 2021 as a Senior Conductor. He resigned from his position on 17 September 2024.[2]The claimant claims that he was constructively dismissed within the meaning of section 95 of the Employment Rights Act 1996. He claims that the respondent breached the implied term of trust and confidence to the extent that he was entitled to resign and for that resignation to be construed as a dismissal.[3]The respondent contests the claim. It denies that the claimant was constructively dismissed, stating that he resigned in order to avoid the risk of being dismissed following disciplinary proceedings. In the alternative, it contends that, if the claimant was constructively dismissed (which is denied), then such constructive dismissal was for a permissible reason and that the respondent acted reasonably in all of the circumstances.
The hearing
[4]The hearing took place on 05-06 February 2025. The claimant represented himself and gave evidence on his own account. The respondent was represented by Ms I.Brown, counsel, who called evidence from Alice Kent, former HR Business Partner for the respondent, and Oliver Starbuck, an On Train Depot Manager for the respondent. Oliver Starbuck attended the hearing remotely.[5]I received multiple documents before and during the hearing, namely: i. A 178-page bundle prepared by the claimant; ii. A 181-page bundle prepared by the respondent; iii. A 51-page supplementary bundle; iv. A 16-page bundle on behalf of the claimant, containing ‘Claimant Document List’, ‘Claimant Document 1 - Claimant’s response to ET3’, ‘Claimant Document 2’ and ‘Claimant Document 3 – Chronology’ (which collectively stood as the claimant’s evidence-in-chief); v. Witness statements on behalf of Alice Kent and Oliver Starbuck; vi. A 3-page document that had been drafted by the claimant in response to the notes of the meeting held on 07 August 2024; vii. Notes from the meeting held on 07 August 2024 with handwritten annotations.[6]In addition, I received and considered an opening note on behalf of the respondent, and written closing submissions from both parties.
Preliminary matters
[7]At the beginning of the hearing, I dealt with a preliminary matter that was raised by the respondent regarding protected conversations and without prejudice correspondence. One aspect of the claimant’s claim was that he was advised by the union to resign following “off the record” discussions between union representatives and the respondent’s managers in which it was indicated that the outcome of potential disciplinary proceedings had been pre-determined and would result in his dismissal. The respondent understood that this was a reference to without prejudice negotiations and protected conversations upon which the claimant was seeking to rely, and thus included various documentation within the hearing bundle that directly pertained to these issues, including meeting minutes and emails. The respondent invited the Tribunal to either determine as a preliminary issue whether the ‘improper behaviour’ exception under section 111A(4) Employment Rights Act 1996 applied, or to hear the evidence in an unredacted form and make a determination at the conclusion of the hearing.[8]I dealt with this matter as a preliminary issue. The claimant confirmed that the discussions that he had referred to in his initial claim did not happen within the context of any without prejudice correspondence or protected conversations. He also expressly confirmed that he was not relying on anything said or done by the respondent during any without prejudice correspondence or protected conversations in direct support of his claim. I did not hear any evidence about the content of any without prejudice correspondence or protected communications, although I had had sight of the documents in the bundle.[9]Section 111A Employment Rights Act 1996 reads as follows: s.111A Confidentiality of negotiations before termination of employment(1) Evidence of pre-termination negotiations is inadmissible in any proceedings on a complaint under section 111. This is subject to subsections (3) to (5).(2) In subsection (1) “pre-termination negotiations” means any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee.(3) Subsection (1) does not apply where, according to the complainant’s case, the circumstances are such that a provision (whenever made) contained in, or made under, this or any other Act requires the complainant to be regarded for the purposes of this Part as unfairly dismissed.(4) In relation to anything said or done which in the tribunal’s opinion was improper, or was connected with improper behaviour, subsection (1) applies only to the extent that the tribunal considers just.[10]As neither subsection (3) nor (4) applied in this case, I concluded that evidence of any and all pre-termination negotiations were inadmissible by virtue of section 111A Employment Rights Act 1996. Neither party disagreed with that conclusion.[11]I indicated that I intended to disregard any material that I had seen in either the bundle or the respondent’s witness statements regarding any without prejudice correspondence or protected conversations. Both parties expressly confirmed that they were content for the case to proceed on that basis and did not make any application for recusal. Having regard to the overriding objective, I was also satisfied that the case could proceed on this basis and that it was not inappropriate for me to hear it. I have therefore not had any regard to any material relating to without prejudice correspondence or protected conversations when reaching my decision in this matter. Issues for the Tribunal to decide[12]The claimant stated that the respondent’s cumulative actions in August 2024 breached the implied term of trust and confidence. The Tribunal has considered each allegation of breach in more detail below but, in essence, they can be grouped into two main categories: i. Procedural acts or omissions; and ii. Pre-determination of the outcome of any disciplinary proceedings from the outset.[13]The Tribunal’s approach was to consider the following issues, which were agreed by the parties at the outset of the hearing: i. Do the incidents, so far as proven to have occurred, individually or cumulatively amount to conduct that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent? ii. If so, was there reasonable and proper cause for that conduct? iii. Was the breach a fundamental one, such that the claimant was entitled to treat the contract as being at an end? iv. Did the claimant resign in response to the breach? v. Did the claimant affirm the contract before resigning? vi. If the claimant was dismissed, what was the reason or principal reason for the dismissal? vii. Was it a potentially fair reason? viii. Did the respondent act reasonably in all of the circumstances in treating the reason as a sufficient reason to dismiss the claimant?
The relevant law
[14]The applicable sections of the Employment Rights Act 1996 are: s.94 The right(1) An employee has the right not to be unfairly dismissed by his employer. ….. s.95 Circumstances in which an employee is dismissed (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) only if) – (a) ….. (b) ….. (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct. ….. s.98 General (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it – (a) ….. (b) relates to the conduct of the employee, …..(3) …..(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) 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 (b) shall be determined in accordance with equity and the substantial merits of the case.[15]In the leading case of Western Excavating (ECC) Ltd v Sharp [1978] ICR 221, it was held that the question of whether there has been a constructive dismissal should be answered according to the rules of the law of contract, not whether the employer has been unreasonable. Lord Denning MR stated: “On the one hand, it is said that the words of subsection (c) express a legal concept which is already well settled in the books on contract under the rubric 'Discharge by breach'. If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.”[16]For an employee to claim constructive dismissal, there must be: i. A repudiatory or fundamental breach of the contract of employment by the employer; ii. A termination of the contract by the employee in response to the breach; and iii. The employee must not have lost the right to resign by affirming the contract after the breach.[17]It is an implied term of any contract of employment that the employer shall not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee (see Malik v Bank of Credit and Commerce International SA [1998] AC 20).[18]The test of whether there has been a breach of the implied term of trust and confidence is an objective one. As Lord Nicholls said in Malik, the conduct relied on as constituting the breach must “impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer. That requires one to look at all the circumstances”.[19]Any breach of the implied term of trust and confidence will amount to a repudiation of the contract. However, not every action by an employer which can properly give rise to a complaint by an employee will amount to a breach of trust and confidence. In Frenkel Topping Ltd v King UK [2015] 7 WLUK 661 the Employment Appeal Tribunal noted that the test for whether there had been a repudiatory breach of the implied term of trust and confidence between employer and employee was a demanding one, and that simply acting in an unreasonable manner was not sufficient.[20]The breach of the implied term of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, even though each individual incident may not do so. In particular in such a case, the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term? (see London Borough of Waltham Forest v Omilaju [2005] I.C.R. 481, affirmed in Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978).[21]When considering the alleged breach of the implied term in the context of a breach of an employer’s procedure (albeit a grievance procedure, not a disciplinary procedure), the Employment Appeal Tribunal in Blackburn v Aldi Stores Ltd [2013] I.C.R. D37 commented as follows: “In our judgment failure to adhere to a grievance procedure is capable of amounting to or contributing to such a breach. Whether in any particular case it does so is a matter for the Tribunal to assess. Breaches of grievance procedures come in all shapes and sizes. On the one hand, it is not uncommon for grievance procedures to lay down quite short timetables. The fact that such a timetable is not met will not necessarily contribute to, still less amount to, a breach of the term of trust and confidence. On the other hand, there may be a wholesale failure to respond to a grievance. It is not difficult to see that such a breach may amount to or contribute to a breach of the implied term of trust and confidence. Where such an allegation is made, the Tribunal's task is to assess what occurred against the Malik test”.
Factual background
[22]At 14:43 hours on Wednesday 31 July 2024, a member of the public made a report to the respondent via the respondent’s public social media account on ‘X’. The report complained about a post that the claimant had made on Facebook earlier that day, and asked whether the respondent was aware that one of their employees was “actively promoting violence and racism online”.[23]The report included a screenshot of part of a Facebook thread which showed a comment that had been posted by “Jacob Ladley”. The comment read [sic]: “[name redacted] and thant makes it ok does it? Either way, this country still needs to wake up and get the iligals out of the country and any Islamic militants, end of…if you disagree then you’re not British and you should fuck off on a boat with them back to their country”.[24]The report on ‘X’ also included a screenshot of the profile of “Jacob Ladley”, detailing his job as “Senior conductor – Guard at East Midlands Railway”.[25]The Facebook comment had been made in relation to the murders of three young girls in Southport on 29 July 2024.[26]The claimant attended for work at approximately 17:15 hours on 31 July 2024 and worked his full shift. No mention was made to him about the Facebook post or the complaint on ‘X’.[27]On the following day, Thursday 01 August 2024, an unscheduled meeting took place between the claimant and his line manager, Emily Hart, when he attended his workplace at approximately 17:15 hours to commence his shift. The exact nature and purpose of that meeting is disputed and is addressed further below. However, it is accepted that, during that meeting, the claimant was suspended on full pay for an initial period of fourteen calendar days.[28]The ”Issue of Suspension Record” read as follows: “I need to advise you that that on 31st July 2024 we were informed of a post that you made on Social Media which was inappropriate and included an offensive comment of a racist nature and in doing so this: 1) Is in breach of:a. EMR’s Acceptable Use of IT Systems, Social Networking sites and IT Equipment Policy, specifically Section 7.1b. Section 5b and Section 21 of EMR’s Code of Conduct. Furthermore, you were identified as an EMR employee when the comment was posted and a member of the public raised this with us and therefore if proven, your actions have caused reputational damage to EMR”.[29]On Wednesday 07 August 2024, a fact-finding meeting took place between the claimant and the investigating manager, Emily Hart. A union representative and a note-taker were also present. During the meeting, the claimant accepted that he had posted the comment on Facebook in a private and closed group.[30]On Thursday 08 August 2024, a letter was sent to the claimant from Emily Hart titled “Update: Notification of Investigation & Suspension”. In addition to repeating the text at paragraph 28 above, the letter also stated: “As part of the investigation, the additional allegations have come to light which alleges that by making a post on social media which was inappropriate and included an offensive comment of a racist nature and by doing so: 1) Is in breach of Section 9 of EMR’s Code of Conduct 2) EMR values, as you are aware, including embracing diversity and if the allegation against you is proven, this action contravenes the values and is not how EMR expects our colleagues to conduct themselves I will be adding this allegation into my investigation and will aim to conclude my investigation as soon as possible”.[31]On Monday 12 August 2024, the claimant was sent a report from the fact-finding meeting that took place on 07 August 2024.[32]On Thursday 15 August 2024, the claimant was sent a letter by Neil Sargent, Disciplinary Hearing Officer, notifying him that a decision had been made to issue him with an invite to a Clause 9 (Gross Misconduct) Disciplinary Hearing on 22 August 2024. He was provided with an Investigation Pack which included an Investigation Report prepared by Emily Hart, dated 15 August 2024.[33]On 19 August 2024, following receipt of a fit note, the claimant was notified that his suspension had been paused until he was well enough for it to resume.[34]On 17 September 2024, the claimant tendered his resignation. Alleged breaches of the implied term of trust and confidence[35]I have divided the conduct that is said by the claimant to breach the implied term of trust and confidence into two categories: i. Procedural acts or omissions; and ii. Pre-determination of the outcome of any disciplinary proceedings from the outset.[36]I now deal with each category and the individual alleged breaches in turn. Procedural acts or omissions Failure to suspend the claimant immediately following the complaint being made[37]The claimant asserted that the respondent should have suspended him immediately upon the complaint being received. He stated that he could have been provided with his suspension papers when he arrived for his shift at approximately 17:00 hours on 31 July 2024. Instead, he was not suspended until approximately twenty-seven hours later, on arriving for his shift on 01 August 2024. He stated that “It was a delay, and it’s one that shouldn’t have happened. It gave me a false sense of security that nothing would be done about it [the Facebook post]. It has an effect on you mentally”.[38]Alice Kent gave evidence that she first became aware of the complaint when she received notification of it from Oliver Starbuck. It was quite late in the day on 31 July 2024. She advised Oliver Starbuck that a conversation needed to take place with the claimant at the depo the following day to establish if he had posted the comment, as she was conscious that it may have been posted from a fake account. She subsequently provided the same advice to Emily Hart, who had been appointed as the Investigating Manager. Emily Hart had then spoken to the claimant to enquire whether he had posted anything on Facebook relating to the incident that had occurred in Southport the following day, 01 August 2024, when he arrived for his shift.[39]The claimant did not adduce any evidence to demonstrate that it was a requirement pursuant to the respondent’s policies that he be suspended immediately on receipt of a complaint. The respondent’s “Discipline Procedure” (which applies where an employee is charged with misconduct, rather than at a pre-investigation stage), indicated that an employee “will be informed in writing, as early as possible, of the nature of the offence”. Even if that same timeframe is imported into the situation where a complaint has been made, the concept of “as early as possible” does not equate to “immediately upon a complaint being made”. It is reasonable to infer that time would be required for the complaint to be seen on ‘X’ and for the relevant manager to be informed and to determine the appropriate next steps. I do not find that there has been any breach of the respondent’s policies or guidance, or any improper conduct by them, occasioned by the claimant only being notified of the complaint when he attended work for his shift on 01 August 2024. Failure to conduct a fact-finding meeting within 48 hours of the incident[40]Section 4.1.1 of the respondent’s “Management Guidelines for Investigations” stated as follows: “4.1.1 Meeting notification The employee/witness does not need to be notified prior to a fact-finding meeting. These should be held as soon as possible, where possible on the same day as the incident or at the latest withing 48 hours of notification of the incident”.[41]Section 2 of the same document stated as follows: “2 Purpose These guidelines provide Managers with the relevant tools and explanatory notes required to carry out a thorough investigation. ….. They have been written for guidance purposes only. It is recognised that a Manager will need to determine how best to manage any investigation given the individual circumstances for each case”.[42]In evidence, the claimant did not accept that the “Management Guidelines for Investigations” was guidance only. He asserted that the wording at section 2 only applied to that page, and that the use of the word ‘must’ or ‘shall’ in other parts of the document implied that parts of it were mandatory and applicable to all investigations. By contrast, Alice Kent’s evidence was that the document provided guidance only and did not import mandatory requirements.[43]I find as a fact that the “Management Guidelines for Investigations” is a guidance document only. It would be illogical to conclude that the wording of section 2 above only relates to that section/page, given that the words “these guidelines” are clearly used. However, whilst I accept that the Guidelines do not establish mandatory procedures that need to be followed in every case, there are instructive as to what may be deemed to be recommended or best practice.[44]The record of the meeting that took place on 01 August 2024 was titled “Fact Find Meeting” on the report. The claimant asserted that it was not a fact-finding meeting for two reasons – firstly, no note taker was present, as was required for a fact-finding meeting, and secondly, during the introductory remarks for the meeting that took place on 07 August 2024, Emily Hart stated “Today is a factfinding meeting following your suspension from 01 August 2024”, implying that the meeting on 01 August 2024 was a suspension meeting only.[45]The respondent’s case appeared to vary on this point. The title of the record of the meeting was “Fact Find Meeting”, and it was also referred to a “fact find” at paragraphs 2.2 and 3.1 of the Investigation Report dated 15 August 2024, indicating that the respondent viewed it as such. In submissions on behalf of the respondent, it was suggested that a fact-finding meeting was arranged for 01 August 2024 but that it was rescheduled for 07 August 2024 as the claimant wished for a union representative to be present. However, Alice Kent’s firm evidence was that there was no investigation meeting (a term which appears to have been used interchangeably with ‘fact-finding meeting’) on 01 August 2024, and that the meeting on 01 August 2024 was merely intended to be an initial conversation between Emily Hart and the claimant to establish whether he had, in fact, been the person who had posted the comment on Facebook. This is consistent with the claimant’s evidence that Emily Hart saw him by chance when he attended for work on 01 August 2024 and called him in for a meeting, rather than it being pre-arranged.[46]I am satisfied that the meeting on 01 August 2024 was not a fact-finding (or investigation) meeting within the procedures set out in the “Management Guidelines for Investigations” document, but was rather an initial short meeting to establish whether the claimant had posted the comment or whether there was an alternative explanation. I accept Alice Kent’s evidence that the holding of such an initial conversation was normal common practice. It therefore follows that the fact-finding meeting was not held within 48 hours of notification of the incident as per section 4.1.1 of the “Management Guidelines for Investigations”. Whilst I accept that the guidelines are not mandatory, I do find that this amounts to a procedural failing by the respondent in that context. Reliance on irrelevant policies[47]The claimant asserted that the respondent alleged that he was in breach of various policies which were not, in fact, applicable in his case. He also asserted that he was not bound by the terms of one policy – the “Acceptable Use of IT Systems, Social Networking Sites and IT Equipment Policy” (hereafter “The IT Policy”). It follows that it was his case that these actions by the respondent contributed to the breach of the implied term of trust and confidence.[48]The respondent’s position was that the actions of the claimant in making the post on Facebook potentially breached sections 5b, 9 and 21 of the EMR Code of Conduct, and also potentially breached the IT Policy, specifically section 7.1.[49]The claimant accepted that he was aware of the terms of the Code of Conduct and that he was bound by it. However, he stated that section 5b did not apply to his case as that section related to conduct in the workplace, and that section 21 did not apply because the individual who reported the Facebook post was neither a colleague, customer nor contractor.[50]The claimant stated that the IT Policy was not applicable in this case because he had never signed it to indicate that he was bound by its terms. A copy of the IT Policy had been sent to him in hard copy by letter dated 11 March 2022. The letter also contained a QR code so that the policy could be accessed electronically. The letter had not indicated that it was mandatory for employees to read the policy – instead it had stated that employees were encouraged to take the time to familiarise themselves with the policy – and so he had thrown it in the bin. He stated that, if EMR had wanted employees to take notice of the policy and be bound by it, they would have told them to read it and asked them to sign it. I do not find the claimant’s argument here to be compelling. His contract of employment imposed an express obligation, at paragraph 16, to become thoroughly acquainted with rules and regulations that were relevant to his work, and clearly stated that “as a condition of your employment you are subject to and are required to confirm with all rules, regulations and policies applicable to all employees of EMR which, from time to time, will be in force”. He cannot rely on his own wilful ignorance of a policy to assert that it was improper for the respondent to allege that he was potentially in breach of it.[51]During the fact-finding meeting on 07 August 2024, the claimant accepted that his actions were in breach of section 7.1 of the IT Policy and also of the EMR Code of Conduct. During the hearing, he asserted that he only made those admissions because he was told to do so by his union representative. I do not find it necessary to determine that issue for the purposes of deciding whether the claimant was dismissed. It is entirely proper that the respondent provided details of the policies that the claimant had potentially breached, both orally during the meeting on 07 August 2024 and in writing in the letter dated 08 August 2024, to enable him to understand the allegations that were being made against him and to give him the opportunity to respond to them. One of the purposes of the investigation was to determine whether there was a case to be answered at any subsequent disciplinary proceedings. The fact that it was alleged that the claimant’s actions may have been in breach of one or both of the policies does not equate to a finding that he was, in fact, in breach – the case was still at the investigation stage on 07 August 2024. I find that it would be illogical to conclude that the respondent had acted improperly by outlining the allegations to the claimant and giving him the opportunity to respond to them. Premature release of notes[52]The fact-finding meeting took place on Wednesday 07 August 2024. The notes of that meeting were not signed by either the claimant or the Investigating Manager, Emily Hart. The notes were not sent to the claimant until Monday 12 August 2024.[53]The Investigation Report was dated 15 August 2024 and was sent to the claimant on the same date. The Investigation Report included an analysis of the responses provided by the claimant during the fact-finding meeting and drew conclusions as to whether there was a case to be answered in relation to the alleged breaches of the IT Policy and the Code of Conduct.[54]The claimant relied on section 4.3.4 of the “Management Guidelines for Investigations” which read as follows: “4.3.4 Issue and approval of meeting notes All meeting notes must be sent to the employee for approval. It is the responsibility of the Note Taker to type up the notes and forward them to the Investigating Officer to check and issue to the employee. The Fact-finding Meeting Notes Approval Letter [INV03b] must be sent to the interviewee within 7 calendar days of the meeting. The employee then has 7 calendar days to sign and return the notes to the Investigating Officer. The employee can annotate the notes with any errors or misrepresentations. Upon receipt of any annotations the Investigating Officer will consider the amendments. If they determine that they significantly do, or do not, amend the context of the original notes, they may wish to discuss these further with the employee. If the employee does not respond to the Investigating Officer within this timescale, the notes will be used and filed as they are. Note: Meeting notes should not be shared until the employee has approved them or the 7 calendar days since receipt has lapsed”.[55]The last section, titled “Note”, was contained within a grey shaded box on the document, drawing specific attention to it.[56]The claimant submitted his comments on the meeting notes on Sunday 18 August 2024, leaving an envelope of about twenty pages in Emily Hart’s pigeon hole at work. I have seen a copy of the meeting notes with three handwritten annotations on them and a three-page typed document which includes “additional information” although it appears largely, in fact, to either repeat or expand upon the answers that are recorded in the meeting notes. The claimant did note in that document that “I would also like to point out that there are several bits of key response missing from within the notes”. In evidence, he stated that he had made further comments in relation to the meeting notes which had been included in the envelope but which were not available for the Tribunal. He stated that, if all of his notes had been included and considered, it would have made a difference to the subsequent outcome of the investigation as the respondent would have to have invited him to a further fact-finding hearing.[57]I remind myself that the “Management Guidelines for Investigations” is a guidance document only, and does not need to be followed in every case. I also note that, even where annotations submitted by the employee significantly did (or did not) amend the context of the original notes, it remained a matter for the discretion of the manager as to whether they discussed the annotations further with the employee. Notwithstanding that, it is clearly important that an employee has the opportunity to comment on the accuracy of the notes of a fact-finding meeting, and indeed this process was confirmed to the claimant during a call with his line manager on 09 August 2024. I am satisfied that the claimant was entitled to expect that he would be given the full seven days to comment on and return the notes of the meeting of 07 August 2024 and that the failure to allow him to do so was a procedural failure on the part of the respondent. Additional procedural issues[58]The claimant raised two further procedural matters during the course of the hearing which were not raised in his initial claim. I deal with them briefly here for the sake of completeness.[59]Firstly, the claimant asserted during his cross-examination of Alice Kent that he was suspended on 01 August 2024 before Emily Hart asked any questions of him during their meeting. Alice Kent indicated that, if that had been the chronology of events, that would have been contrary to the advice that she gave to Emily Hart. The claimant asserted that this was a further example of the respondent failing to follow the correct procedures.[60]The assertion that the suspension took place before any questioning was not included in the initial claim, and nor is it referenced in any of the claimant’s documents (Claimant Document 1, 2, and 3) which stood as his evidence-inchief. There is therefore no evidence before me to support the claimant’s assertion and I disregard it.[61]Secondly, the claimant questioned Alice Kent about the fact that no investigation plan (form INV02) was prepared, and asserted that this was a breach of the ACAS guidance. Alice Kent stated that she was not aware of the existence of such a form or the need to complete it.[62]The claimant has indicated that he became aware that an INV02 form was not completed following the making of a SAR request. I have seen an email from East Midlands Railway DSAR team to the claimant dated 30 January 2025 which states “The completion of an INV02 document is not mandatory during an investigation, and in this instance, it was not completed as part of the process”. It follows that, if the claimant only became aware that an INV02 form was not completed in January 2025, it cannot be relied upon by him as being one of the factors that contributed to his assertion that the respondent breached the implied term of trust and confidence in August 2024. Factual/spelling/grammatical errors[63]Whilst I have not detailed them all here, the claimant relied on a series of spelling/grammatical and factual errors in the documentation that was generated by the respondent between 31 July 2024 and late August 2024 as contributing to his lack of faith that the investigation had been completed in an unbiased manner or that any disciplinary hearing would be completed in a similar manner, including: i. The notes titled “Fact Find Meeting” on 01 August 2024 indicated that they comprised of three pages, whereas there were in fact only two pages; ii. The notes of the “Fact Find Meeting” on 07 August 2024 were mispaginated in the top right-hand corner; iii. Paragraph 1.1 of the Investigation Report stated that the Facebook post was made on 31 August 2024, not 31 July 2024; iv. Paragraph 2.2 of the Investigation Report referred to “an investigation meeting” on 07 August 2024, not “a fact find meeting”; v. Paragraph 3.1 of the Investigation Report stated that the claimant’s first shift on duty after the complaint was made was on 01 August 2024, whereas it was actually on 31 July 2024; vi. The “Invitation to Clause 9 (Gross Misconduct) Disciplinary Hearing” letter dated 15 August 2024 stated that the investigation meeting was held on 08 August 2024, rather than 07 August 2024; vii. The “Notice of paused suspension whilst unfit for work” letter dated 19 August 2024 did not include the date of the claimant’s fit note in the relevant place.[64]I fully recognise that these errors were very frustrating to the claimant and, as was accepted by Alice Kent, they should not have been made. However, I do not accept that clerical or typographical errors can be relied upon as evidence to support an assertion that an investigation was skewed from the outset in favour of one outcome only. It would be, in my opinion, a significant leap to conclude that the claimant was entitled to believe that any investigation would not be impartial, in whole or in part, due to the errors outlined above.[65]During the hearing, the claimant produced a copy of the Investigation Report which contained the date of 01 August 2024. This is plainly incorrect – there is no dispute that the correct date of the Investigation Report was 15 August 2024. The claimant relied on the incorrect date on this important document as one of the significant errors that demonstrated that the investigation was being handled in an unprofessional manner, with a predetermined outcome. However, during his questioning of Alice Kent, the claimant indicated that the incorrectly dated report had never been sent to him by the respondent and that he had only obtained a copy of it at a later date following a SAR request. As such, I find that he cannot rely on it as one of the factors contributing to his decision to resign, as he would not have been aware of the incorrectly dated report at the time that he did so. In addition, Alice Kent gave evidence – which I accept – that there would have been different versions/drafts of the report before it was formally issued on 15 August 2024. The version dated 01 August 2024 is not on EMR-headed paper and nor is it signed, and so I am satisfied that it is simply a draft of a document that was later finalised and sent to the claimant with the correct date on it. Pre-determination of the outcome of any disciplinary proceedings from the outset Discussions with union representatives[66]The claimant asserted that he was advised by three or four union representatives that, after “off the record” discussions between the union representatives and several different managers, he should resign as there was nothing that could be done in his case to downgrade the allegation, and that “he’s [the claimant] pretty much gone, it’s a dismissal”. Save for referring to the name of one individual (who does not, on the face of it, appear to have been directly involved in the investigation), the claimant did not provide any further details about these conversations or individuals, citing a concern for the safety of the individuals involved in the discussions who were still employed by the respondent. I cannot therefore sensibly assess the veracity of the claimant’s assertions that these conversations demonstrated that the outcome of the disciplinary process was pre-determined, and I do not find that this allegation by the claimant is proven. Misconduct / Gross misconduct[67]The claimant’s case was that the fact that he was being investigated for gross misconduct, rather than misconduct, was in breach of the respondent’s own policies and demonstrated that the investigation was being undertaken in a predetermined manner. It is correct that the “Management Guidelines for Investigations” define “misconduct” offences as including, but not being limited to, being late on duty, AWOL, inappropriate behaviours and attitude, [being] involved in a safety incident, and breach of policies and/or procedures, whereas “gross misconduct” is defined in the same document as “a deliberate act or omission which is so serious as to destroy the trust and confidence necessary for a working relationship to continue” and include, but is not limited to, fraud, aggressive and/or violent behaviour, [being] involved in a serious safety incident, and testing positive for drugs and/or alcohol.[68]I do not accept the claimant’s contention that the fact that he was being investigated for gross misconduct, rather than misconduct, demonstrated that his dismissal was an inevitable conclusion from that process or that it constituted evidence that the respondent had pre-judged the issues against him. Firstly, the “Management Guidelines for Investigations” make it clear that the examples of conduct that were included were examples only, and that the list in each case was non-exhaustive. It is clear that the concepts of “misconduct” and “gross misconduct” capture a whole range of behaviours, and it would be artificial to suggest that a breach of a policy – even if that breach led, for example, to a serious safety incident – could only ever be treated as misconduct because of a definition included in a guidance document.[69]Secondly, it is important to note that the investigation was exactly that – an investigation that had the purpose of determining whether an alleged incident or issue had occurred. As is outlined in the “Management Guidelines for Investigations”, there were four potential outcomes following the meeting that was scheduled for 22 August 2024 – No Further Action, a Letter of Suitable Advice, a finding of Misconduct, or a finding of Gross Misconduct. The documentation that was provided to the claimant – including the “Issue of Suspension Record” and the Investigation Report - states that the conduct, if proven, could (not would) (underlining added) be capable of being considered as a gross misconduct offence. No formal misconduct hearing ever took place because the claimant resigned before it could occur – it is therefore difficult to conclude in these circumstances that a decision was pre-determined when, in fact, the decision stage had not yet been reached. Use of wording on documents[70]The claimant submitted that the use of certain phraseology on the documentation prepared by the respondent demonstrated that they had already pre-determined the case and concluded that the claimant’s actions were in breach of company policy. He relied on the following examples: i. The use of the phrase “Racists Comments” at the top of the “Issue of Suspension Record” in the “Ref:” box; ii. The use of the phrase “We were informed of a post that you made on Social Media which was inappropriate and included an offensive comment of a racist nature and in doing so this: Is in breach of:……..” in the “Issue of Suspension Record” dated 01 August 2024 and the “Update: Notification of Investigation & Suspension” letter dated 08 August 2024; iii. The use of the phrase “This was posted on social media which was of a racist nature” in the Investigation Report; iv. The parts of the Investigation Report “such as where it states that the claimant admitted that the comments were racist”, which the claimant asserted at the hearing “are patently untrue”; v. The conclusion of Emily Hart in the Investigation Report that “I cannot conclude what Jacob’s rationale behind this comment was”.[71]I do not accept that the wording that is relied upon by the claimant demonstrated that his dismissal had been pre-determined by the respondent. It would be artificial to ignore the context in which the various words and phrases were used – for example, the “Issue of Suspension Record” stated “As this is regarded as a serious breach of our company policies which if proven (underlining added) could be considered to be a gross misconduct offence”, and the letter of 08 August 2024 made references throughout to “allegations” rather than asserting that the conduct was, without dispute, in breach of the applicable policies.[72]The claimant asserted that the Investigation Report wrongly concluded, based on the fact-finding meeting on 07 August 2024, that the claimant accepted that the comment was racist. The claimant stated at the hearing that it is untrue that he agreed that the comment was racist. However, it is very clear from the report of the fact-finding meeting that he did indeed indicate, on more than one occasion in the meeting, that the comment was racist. Whilst the claimant asserted that the report of the fact-finding meeting is incomplete, he does not contend that the phrases that are attributed to him are incorrectly recorded (save for one instance). Rather, he accepted that he made the various comments that are attributed to him but stated that he did so under pressure from his union. He cannot therefore now assert that the Investigation Report is wrong in stating that he admitted that the comment was racist, as he clearly did so, regardless of the reason that is put forward for doing so.[73]The claimant also asserted that the reason that Emily Hart could not conclude what his rationale was behind the comment was because the fact-finding meeting was entirely slated towards pushing him to admit that he was racist, and that he was not given proper opportunity to provide information relating to the context of the comment that he made. I do not find that this assertion by the claimant is supported by the evidence – he was given the opportunity to put forward a prepared statement during the fact-finding meeting, which is recorded in full in the notes, and he was also asked questions – on more than one occasion – about the background to the comment and his motivation for it. I am satisfied that he was afforded ample opportunity during the fact-finding meeting to put forward his account.[74]Furthermore, I am satisfied on the evidence that it was repeatedly emphasised to the claimant that the outcome of any potential next steps or disciplinary proceeding was undetermined. Such evidence includes: i. The use of “if proven” and “the suspension is not a disciplinary outcome” in the “Issue of Suspension Record”; ii. Emily Hart’s opening comments in the fact-finding meeting on 07 August 2024 including “I’m here to establish the facts of what happened. No decisions will be made today it’ll be me asking questions then going over to sum up and sending it to another person an hearing officer to make a decision” and that “allegations” would be put to the claimant; iii. The use of “…in relation to the following alleged irregularities of gross misconduct” in the “Invitation to Clause 9 (Gross Misconduct) Disciplinary Hearing” letter dated 15 August 2024; iv. The repeated references to “allegations” in the Investigation Report, and the conclusions of that report that “I consider that there is a case to be answered” and that “The appointed disciplinary officer may wish to consider if the findings and conclusions constitute a breach of trust between Jacob and EMR” – not that such findings should amount to gross misconduct or that dismissal should follow: v. The assertions given to the claimant in various welfare calls made by Thomas Dutton, including “I again reassured Jacob that the process will allow him an opportunity to state his case and he will be listened to” on 06 August 2024 and “I tried to explain the process of the investigation and disciplinary again and told him that I have been the manager on both sides and there is no pre determined decision from my experience so if he wants the opportunity to talk about it at a hearing he will have that” on 27 August 2024; vi. The statement that “….the suspension is not disciplinary action but a precautionary measure to allow a detailed investigation to be carried out”. Bullying behaviour by respondent, including making allegations of racism[75]The claimant stated that “the whole company, people dealing with the disciplinary process, branded me a racist”. He asserted that they had agreed with the views of the individual who reported the Facebook post that the comment was promoting violence and racism from the outset, without considering his version of events or conducting a fair fact-finding exercise and that, as a consequence, it was inevitable from the start that he would be dismissed.[76]It is not the role of the Tribunal to determine whether the comment made on Facebook was racist, or what the motivation of the claimant may have been at the time that it was made. Rather, the Tribunal must assess whether the conduct of the respondent that is complained of by the claimant took place. Whilst I do accept that it may have been the claimant’s subjective view that he personally was being labelled as a racist, I do not find that there is evidence before me to support this from an objective perspective. The claimant was asked questions during the fact-finding meeting on 07 August about the comment that he had put on Facebook, including whether the comment could be perceived as being racist, what the claimant meant by the wording used in the comment, and what his motivation was in posting the comment. Whilst I accept that the claimant does not accept that the notes are full and accurate, he did agree in cross-examination that Emily Hart did not, at any stage, allege that he himself was racist. In fact, she expressly concluded in her Investigation Report on 15 August 2024 that she could not determine what the claimant’s rationale behind the comment was – in other words, she did not conclude that it was motivated by racism. I am satisfied that it was entirely appropriate, in the context of the comment, for questions to be asked of the claimant about how the comment may be perceived by others and why he had posted it.[77]During the course of the fact-finding meeting, the claimant accepted – repeatedly – that the comment was racist and offensive. He retracted from that position in evidence, stating that he did not accept that the comment was racist and that he had only given his responses in interview because he was forced to do so by his union representative. Notwithstanding that change in stance, it is difficult to see how the claimant could then assert in his claim that the respondent was wrong to ask him questions about the nature of his Facebook comment.
Conclusions
[78]I have concluded that there were two procedural failings by the respondent in this case: i. A failure to hold a fact-finding (or investigation) meeting within 48 hours of the incident; and ii. A failure to permit the claimant to have seven days to review the notes of the fact-finding meeting before the notes were more widely released.[79]For the reasons outlined above, I am not satisfied that the other aspects of the claimant’s claim on which he seeks to rely are made out on the evidence.[80]I must first determine whether there was a repudiatory breach by the respondent, without reasonable and proper cause. I remind myself that the burden of proving that there was a dismissal is on the claimant.[81]I have initially considered each procedural failing as a stand-alone incident. Applying the timeframe set down in the (non-mandatory) “Management Guidance for Investigations” in this case, it was advisable that a fact-finding meeting should take place by the afternoon / early evening of Friday 02 August. Instead, it took place on Wednesday 07 August. I am not satisfied that the fact that a recommended (short) timetable was not met amounts to a breach of the term of trust and confidence.[82]Similarly, I have considered the premature release of the notes from the factfinding meeting. Whilst I conclude that it would have been strongly advisable for the claimant to be given the full seven days to review the notes, I am not satisfied that the failure to do so was sufficiently serious in all of the circumstances to amount to a breach of the implied term of trust and confidence. There is no factual dispute in this case – the claimant has always accepted that he made the Facebook post – and the claimant was still afforded the opportunity to submit his comments on the meeting notes for consideration by the Investigating Manager.[83]In his closing submissions, the claimant stated that “whilst it is true that each error made taken in isolation may appear to have little significance, taken together they clearly demonstrate that there was very poor attention to detail together little or no regard given to the effect of the whole process on my mental health”. In his submissions, he distinguished the alleged failure of the respondent to test the veracity of the allegation as being the only example which could not be referred to as insignificant. Whilst I have assessed the respondent’s actions objectively, I do note that the claimant’s submissions appear to be premised on his assessment that the majority of the errors, viewed in isolation, had or may appear to have had “little significance”.[84]The test that needs to be met is whether the conduct “destroys or seriously damages” the relationship of trust and confidence, not whether it ‘merely’ damages it or impacts on it. I am not satisfied that either procedural failing is sufficient to amount to a repudiatory breach of the contract by the employer.[85]I have then considered whether the two procedural failings, taken cumulatively, would be sufficient to amount to a repudiatory breach of the contract by the employer. I have concluded that, even cumulatively, they are insufficient to amount to a repudiatory breach of contract by the employer such that the claimant was entitled to resign. The procedural failings were not so serious – either individually or together – to entitle the claimant to treat the contract as being at an end.[86]Being satisfied that there was no fundamental breach of contract, I am not required to consider the other issues outlined in paragraph 13 of this judgment.[87]The claim of unfair constructive dismissal is dismissed. Approved by: