Mr C Bastin v Commissioner of the Police of the Metropolis: 6016669/2024
JUDGMENT
The claimant’s claim of unfair dismissal is well-founded. A remedy hearing will be listed to consider remedy.REASONS
Issues
[1]The issues for the hearing were:1.1 What was the reason or principal reason for dismissal? The respondent says the reason was capability (performance).1.2 If the reason was capability, did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the claimant? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. Evidence[2]The tribunal heard evidence from Victoria (Vicky) Philpin (Head of the Hazardous Sites and Substances Unit and the claimant’s line manager), Helen Williams (Detective Chief Superintendent and the dismissal manager) and Jonathan Savell (Deputy Assistant Commissioner and the appeal manager) on behalf of the respondent. The claimant gave evidence on his own behalf.[3]The tribunal had a bundle of documents running to 766 pages and, during the hearing, a further document entitled The Competency and Values Framework for Policing (CVF) was added. Relevant Facts[4]The claimant joined the respondent as a National Counter Terrorism Security Office Delivery Support officer on 6 September 2021. His role was categorised as Band D even though he had no supervisory or managerial responsibilities.[5]His employment was expressed to be subject to passing his probationary period. The reference document for conducting probation reviews (PDRs) was the CVF document which sets out the competencies and the levels expected (according to rank). The Band D role is assessed at Level 2, which incorporates Level 1 competencies.[6]In January 2022, the claimant’s first probation review meeting (PDR) was held in respect of the period to 6 December 2021 (3-month review). The claimant scored an overall rating of 3.[7]The second PDR took place in respect of the period to 6 March 2022 (6-month review). The claimant scored an overall rating of 3.[8]There were concerns about the claimant’s progress and the respondent put in place a training plan and started weekly meetings.[9]On 6 July 2022, the PDR for the period to 6 July 2022 (10-month review) was completed. The claimant scored an overall rating of 4. The PDR meeting took place on 18 July 2022. The respondent decided to extend the claimant’s probationary period by three months and created an Action Plan for him.[10]During the claimant’s probationary period and extended probationary period, he made a number of mistakes, which he accepted as mistakes and saw the probationary period as a time to learn from these.[11]The claimant appealed against the extension to his probationary period and the appeal was rejected.[12]The claimant’s probationary period was further extended by another month to 13 January 2023, due to annual leave and the Christmas break.[13]The claimant’s manager at the time, David Williamson, completed the PDR for the extended probationary period and rated him ‘4’ overall. Under the respondent’s probation process, this score resulted in a ‘recommendation for dismissal’ (RDF). A meeting was held on 13 February 2023 attended by Vicki Philpin, David Williamson, the claimant and the claimant’s union representative, Gary Hogg. Following the meeting, Vicki Philpin explained that she would recommend dismissal and would submit the paperwork to HR and seek their views on whether there was a case for recommendation for dismissal.[14]The claimant continued to work, pending hearing back from HR. In the period after the PDR in February 2023, no further performance reviews were undertaken although he had a weekly meeting with his manager to discuss the week’s tasks.[15]The claimant continued to perform his role, carrying out new responsibilities and going on training courses.[16]In April 2023, the claimant was required to be on a sensitive and confidential call but he had building works going on in his home which he thought would be too noisy. There is a public library with wifi near to his home and he decided to take the call there. Unfortunately, he forgot to take his headphones when he left home. He asked a librarian if there was anywhere quiet that he could take the call and she gave him a private room. The claimant accepts that it was his mistake not to bring the headphones. Although he agrees that he could have gone to a police station for the call, there are none within easy access of his home.[17]In February 2024 the claimant was asked to book a room for a team meeting. He looked online at the available rooms and selected a room ‘TS – Auditorium’ from the available rooms. He was aware from previous incidents that he must not book a STRAP room but he did not realised that TS stood for Top Secret. One of the delegates was unable to access TS or STRAP locations so it would have been embarrassing if the meeting had gone ahead in that room as she would have been excluded. In the event, another meeting room was arranged and the meeting went ahead without incident.[18]In April 2024 the claimant mentioned that he was intending to visit a conference site in Norwich. He did not obtain formal authorisation and made the travel arrangements. He was reminded that any such expenditure must be authorised in advance. The cost of the train fare, with the claimant’s railcard, was £27.[19]In April 2024, the claimant sent Vicki Philpin some EPP statistics which included errors. Vicki Philpin pointed this out and the claimant amended the statistics the same day.[20]On 22 April 2024, he received an email from HR inviting him to a Recommendation for Dismissal meeting to take place on 23 May 2024. This was approximately fifteen months after the previous discussion about dismissal.[21]In advance of the meeting, the claimant gathered evidence to support his improved performance. These included comments from former colleagues and people with whom he interacted but were not part of his team. The claimant’s Welfare Officer, Rasheed Alawiye emailed Helen Williams with his representations, commenting that the claimant was now ‘thriving in his role’.[22]On 2 May 2024, the Recommendation for Dismissal meeting was held under the respondent’s probation procedures. Helen Williams conducted the meeting with panel members, Kelly Cardwell and James Noble. The claimant was accompanied by Gary Hogg, Unite representative. Vicki Philpin presented the case for dismissal.[23]Helen Williams accepted that there was no excuse for the delay in holding the meeting and apologised. She made it clear that the hearing would only be considering the claimant’s performance up to the end of the extended probationary period. This is referred to as January 2023 and, elsewhere, as March 2023. In either case nothing after that time was taken into account. The case notes presented by Vicki Philpin included incidents that took place after the end of the probationary period, although not every matter raised in her presentation included the relevant dates. The claimant did not dispute the facts contained in the presentation but submitted that he had, by the time of the hearing, reached the required standard.[24]The panel restricted their considerations to the period within the probation process and disregarded anything after that, whether positive or negative. The panel determined that the claimant had not achieved the required standard during the initial and extended probationary period and it accepted the recommendation for dismissal.[25]The claimant’s dismissal was confirmed by letter dated 24 May 2024. He was given the right of appeal and, on 5 June 2024, he appealed on the grounds that there was a biased process and the hearing panel ignored relevant evidence by restricting the period of assessment to the probationary period.[26]The appeal hearing took place on 23 July 2024, conducted by Jonathan Savell accompanied on the panel by Tina Reay, Deputy Director for Operational Support Services. The claimant was accompanied by Gary Hogg from Unite.[27]Jonathan Savell read the bundle prepared for the hearing although, in evidence before the tribunal, he could not remember what documents he had read in advance of the hearing. He thought he had not seen the email from Rasheed Alawiye.[28]Jonathan Savell confirmed at the appeal hearing that it was a review of the dismissal decision, not a re-hearing. The claimant made representations at the hearing to support his grounds of appeal. These including the representation that it was unfair not to consider his recent performance and to restrict the decision to consideration of his performance over a year before.[29]The panel adjourned the hearing to consider the points of appeal. The panel determined that Helen Williams had made an error in limiting evidence to matters relating to the original probationary period. However, the panel considered that evidence of more recent performance issues had been raised in Vicki Philpin’s presentation and that, on that basis, the panel was satisfied that there had not been a sufficient improvement after the end of probation. On this basis the appeal was dismissed.Relevant Law
[30]An employee with more than two years’ service has the right not to be unfairly dismissed.[31]Section 98(2) (a) of the Employment Rights Act 1996 provides that a potentially fair reason for dismissal is where the dismissal ‘relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do’.[32]Section 98(3) of the Employment Rights Act 1996 provides that ‘capability in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality’.[33]The employer must follow a fair procedure including investigating the performance problems, giving the employee an opportunity to improve, supporting the employee, reviewing progress over the review period, holding a dismissal hearing and offering a right of appeal.[34]The decision to dismiss must be assessed as at the date of dismissal.[35]An appeal hearing can remedy a defective dismissal hearing if the appeal is sufficiently comprehensive. It is not a requirement that there is a re-hearing but the appeal hearing must itself be fair if it is to cure earlier defects (Byrne v BOV Ltd EAT/231/90). Determination of the Issues Dismissal[36]I find that the original dismissal was unfair because it was based on out-of-date information. The claimant’s performance, which was the reason for dismissal, had been assessed over a fixed period that had ended over a year before the decision was taken. No account was taken of any subsequent improvements or any further poor performance.[37]If at the time of the Recommendation for Dismissal hearing, the claimant did not have two years’ service (as would normally be the case for such a hearing which typically takes place after a year in post), there would have been no challenge to the decision. It appears that Helen Williams, in conducting the hearing under the respondent’s probation policy, took no account of the claimant’s status as an employee with employment protection rights. She therefore limited her reasoning to matters which fell within the respondent’s probation policy and did not make any adjustment in recognition of the claimant’s unfair dismissal rights.[38]Within the context of a probationary policy, Helen Williams’ conclusion was understandable. The point of a probationary period is to see how the employee performs and whether they show improvement after training and guidance. The test can be subjective, and an organisation is entitled to decide whether or not to continue employing an individual who is not meeting their standards. An employer can decide that the employment is ‘not working out’ and terminate the contract without having to follow the procedures that would be required for an employee with employment protection rights. That is the point of probationary periods.[39]Although it is hypothetical, if the Recommendation for Dismissal hearing had taken place at the end of the assessment period, it is likely that the dismissal would have been fair even if the claimant had had employment protection rights at that time. At that point, there were identifiable issues with his performance, he had been given guidance and training and an opportunity to improve, and he had not made the grade. However, there would have needed to be a deeper enquiry as to the legitimacy of the individual criticisms, the criteria by which the claimant was being assessed and any representations from the claimant in order to determine if those criticisms were reasonable.[40]I do not propose to deal with any of the mistakes or shortcomings within the probationary period as I accept that the claimant’s performance at that time generally fell short of what was expected of him. The matters raised by the respondent in evidence which were within the timeline of the PDRs include:40.1 taking a phone into a STRAP area (January 2023)40.2 contacting a laboratory in Scotland outside working hours without checking with a supervisor (January 2023)40.3 issues with the RADS course (November 2022).[41]Due to the delay in holding the dismissal hearing, for which no adequate explanation has been put forward, the claimant had accrued unfair dismissal rights by the time the hearing took place. As a result, Helen Williams should have considered the situation at the time of her decision. She should have determined whether the claimant’s performance at that time would be a sufficient reason to dismiss him. She would have had to gather evidence regarding his more recent performance, both positive and negative. The respondent had failed to carry out any further performance reviews pending the Recommendation for Dismissal hearing and therefore Helen Williams would have had to gather information from other sources about the claimant’s performance.[42]If ongoing issues had been identified, the claimant should have been informed what these were and given an opportunity to give an explanation or provide a context for each instance.[43]The presentation from Vicki Philpin refers to a number of issues but many of these are undated. I understand the following examples to refer to the period after March 2023:43.1 taking a sensitive call in a library with no headphones (April 2023)43.2 booking a TS (Top Secret) room for a meeting when not appropriate (February 2024)43.3 visiting a venue in Norwich without prior authorisation (April 2024)43.4 error in EPP statistics (April 2024).[44]These were not put to the claimant at the hearing because this time period had expressly been excluded from consideration.[45]As there were no further performance reviews after March 2023, there were no opportunities for the claimant to evidence improvements in his performance and for these to be formally recorded or to answer the criticisms made of him and to provide his explanation in a formal context.[46]It was unfair not to allow the claimant to bring evidence of his recent improvement and to limit the period of consideration of performance to an arbitrary period which had ended a significant time earlier. I find that the unfairness was substantive, not just procedural.[47]There is no evidence that the respondent considered whether any suitable alternative employment was available. The claimant was a well-liked member of the team and there may have been roles to which he was better suited. Given the size and administrative resources of the respondent, this step should have been taken.[48]In conclusion I find that the dismissal was unfair and outside the band of reasonable responses. Appeal[49]I find that the appeal hearing did not remedy the defects in the dismissal hearing. The appeal hearing itself was unfair leading to an unfair outcome that the appeal failed.[50]The claimant appealed on the grounds that the dismissal hearing had been biased, concentrating on his failings rather than his achievements and that it was unfair not to take into account his recent performance.[51]Jonathan Savell found that there had been no bias. However, he agreed that the whole of the claimant’s employment should be looked at in assessing performance. He effectively upheld that part of the claimant’s grievance. However, he did not see any need to reconvene the dismissal hearing or to reconvene the appeal hearing to consider any evidence of recent performance and any representations the claimant may want to make. Instead, he determined that there was sufficient evidence in the appeal pack to show that the claimant had not improved his performance. He therefore dismissed the appeal and confirmed the dismissal.[52]He relied on the matters raised in Vicki Philpin’s presentation as evidence of continued poor performance and the claimant’s acceptance that he had made mistakes. He was unable to recall if he had taken into account the claimant’s character references when reaching his decision and he did not recall seeing the letter from Rasheed Alawiye in support of the claimant’s improved performance. He relied on the transcript of the dismissal hearing despite that hearing being specifically limited to matters before March 2023.[53]Jonathan Savell accepted that the claimant had not been given an opportunity to present his case on the new basis but he considered that Vicki Philpin’s report was compelling. Under cross examination Jonathan Savell agreed that the claimant had been denied a basic tenet of fairness.[54]I find that the appeal hearing reached a conclusion based on evidence which it had not examined properly. It took Vicki Philpin’s comments at face value without asking the claimant if there was an explanation for the matters relied on. The appeal panel did not consider the date of the incidents to determine if they were recent enough to be taken into account. There is no evidence that the appeal panel considered any of the claimant’s character references, some of which spoke of his performance achievements. Although it is now said that these are of limited use as they did not come from the claimant’s team members, that was not the reason they were not considered by the appeal panel. The appeal panel does not record that it considered the evidence but gave it little weight for that reason and Jonathan Savell does not suggest that it did.[55]Having reviewed the incidents, I find as follows:55.1 The library incident which took place in April 2023 should not have been the basis for a dismissal in May 2024. In any event, the claimant has provided more information than was available to the appeal panel and this information suggests the situation was less severe than the respondent assumed.55.2 The incorrect room booking was a genuine error which arose from a misunderstanding of terminology and it was remedied quickly without any repercussions.55.3 The visit to Norwich without prior authorisation is, again, a misunderstanding as the claimant believed he had mentioned it in a meeting before booking. There were no major repercussions and the amount of money involved is not significant.55.4 The EPP statistics were wrong. The claimant’s manager noticed this and the claimant corrected them. This is not an unusual sequence of events in a workplace. There were no major repercussions.[56]I therefore find that if the dismissal hearing had been reconvened or the appeal hearing had been reconvened, these matters would have been addressed together with the claimant’s explanations and his other evidence of improved performance. It is unlikely that these isolated incidents, none of which had any serious repercussions and all of which could be remedied with guidance from a manager, would have led to a fair dismissal for poor performance, particularly in the absence of any performance review information giving a more rounded view.[57]I find that this unfairness is substantive not just procedural. The claimant was denied an opportunity to understand why his dismissal had been confirmed despite the appeal panel apparently agreeing with him that the assessment period was unfair. There was a lack of the basic principles of fairness in reaching a conclusion to dismiss without inviting the employee to make representations about the matters which were relied on as justifying the dismissal. The respondent’s representative suggested that the claimant had the opportunity to say whatever he wanted at the meeting. However, if he is not told the basis of the matters being considered, he cannot be expected to make relevant representations. In this case, he was expressly told at the dismissal meeting that matters after March 2023 would not be taken into account and it cannot reasonably be suggested that he had the opportunity to address those matters at that meeting. Similarly, at the appeal hearing, he was making the case that his whole period of employment should be taken into account. Until that premise had been accepted by the respondent, he cannot be expected to make representations on that basis in anticipation of succeeding on that point.[58]In conclusion, I find that the original dismissal and the appeal were both unfair. A remedy hearing has been listed for 28 May 2025 to address Remedy. Directions in respect of the hearing will be sent separately. REMEDY JUDGMENT The tribunal finds that it would not be practicable for the respondent to reinstate the claimant. The respondent is ordered to pay to the claimant the following sums: Basic Award £ 2,100 Compensatory award (six months) £13,936 Pension contributions £ 5,380 Loss of statutory rights £ 500 TOTAL £21,916 REMEDY JUDGMENT A REMEDY JUDGMENT, having been made orally at the hearing and a request having been made in accordance with Rule 60 of the Employment Tribunal Procedure Rules 2024, the Tribunal provides the followingIssues
[1]The claimant was successful in his claim for unfair dismissal following a liability hearing on 13 and 14 March 2025. This hearing was to determine remedy. The claimant requests reinstatement (but not re-engagement) and compensation.[2]The respondent maintains that reinstatement is not practicable for the following reasons. 2.1. The respondent does not have confidence that the claimant can perform the role to the required standard and, in any event, he would require a high degree of supervision and monitoring. He would need to work with Victoria Philpin who does not have confidence in him. 2.2. After the tribunal hearing, the case attracted a degree of media attention, including some of the errors made by the claimant. The respondent argues that reinstatement of the claimant might reduce its stakeholders’ confidence in the respondent. 2.3. There may be tensions due to comments that were made in the liability hearing about the claimant. 2.4. He may have difficulties getting STRAP clearance. 2.5. He will have to reapply for DV vetting which could take up to a year and he cannot perform the role without this clearance.[3]In response, the claimant believes that reinstatement would be practicable for the following reasons. 3.1. He accepts that he would need support in order to perform the role, but he should be given a chance to go through probation again. 3.2. He does not accept that any stakeholders would lose confidence in the respondent and the respondent could explain the situation if the issue came up. 3.3. The claimant bears no grudges and can put aside what was said about him at the liability hearing. 3.4. There are no reasons why he would not get STRAP clearance again as it was never removed from him despite the STRAP breaches. 3.5. If there are issues with DV vetting, these are of the respondent’s making and should not be used against the claimant. If there is a wait for him to get the right vetting, he could do another role in the meantime. Evidence[4]The tribunal heard evidence from the claimant and from Victoria Philpin and had a bundle of 235 pages. Facts[5]Since the claimant’s dismissal on 23 May 2024, he has not found new work. He started making applications for admin roles on 16 December 2024 when he made a number of applications. His explanation for the delay was that he was, at first, in shock from the dismissal and then looking for alternative sources of income, including sorting out his pension. He also had family issues which required his attention. In this time, he carried out voluntary roles. He accepts that if he had started earlier, he ought to have found a job within six months.[6]The claimant paused his job search from 3 January 2024 to 11 February 2024. His explanation for this was that he was disappointed by the lack of responses to his December applications.[7]The claimant appeared to believe that an impediment to him getting another job was that he was ‘barred’ as he was no longer employed by the respondent. The respondent confirmed that the claimant was not marked as ‘barred’ on their systems and this would generally only come into effect a year after someone has left their employment.[8]The claimant is 77 years old. He does not put his age on his job applications but he puts his work history, from which a prospective employer may ascertain his age.[9]If the claimant was reinstated, he would need new DV vetting (as this lapses after twelve months out of employment) and new STRAP clearance. The DV vetting process is lengthy (often up to twelve months and sometimes longer), although it was not apparent how long the process would take for the claimant, who had previously passed the vetting procedure.[10]The STRAP clearance is not as lengthy but Victoria Philpin would be asked whether she has any concerns about the claimant getting this clearance and she would have to disclose the STRAP breaches and other confidentiality concerns (as discussed in the liability hearing). She is not the decision-maker, but these comments would be taken into account and will inevitably be to the claimant’s disadvantage. Determination of the issues Reinstatement[11]I find that it would not be practicable to reinstate the claimant to his former role for the following reasons: 11.1. I accept that the respondent has genuine concerns about his performance. Although the respondent failed to conduct any ongoing formal performance management process after the Recommendation to Dismiss decision, I accept the respondent’s position that the claimant’s performance continued to be of concern as a generality. The fact that this was not recorded by way of performance management meetings does not mean that there were no concerns. 11.2. The specific incidents which were featured in the liability hearing may have been, on an individual basis, fairly trivial, but, taken as a whole together with other mistakes made by the claimant, the accumulation of errors means that the respondent does not have confidence that he could do the role adequately. To his credit, the claimant accepts that he makes mistakes but contends he learns from these. I accept the respondent’s contention that there are simply too many mistakes, and the effort required to monitor his performance is not sustainable. 11.3. The claimant suggests being reinstated and going back to a probationary period. However, that would not be practicable as he now has unfair dismissal rights and the normal decision-making process whether an employee passes or fails probation would not be available to the respondent. The claimant accepts that he would require supervision. This means that the respondent would have to take back an employee with pre-existing performance concerns, effectively starting immediately on a performance improvement process. If he is to be reappointed to the role on the seniority he would have (as required on a reinstatement order), that would result in the respondent having to treat a three-year post-employment employee as a probationer. 11.4. I find that the respondent’s belief that the claimant would not be able to perform to an acceptable level is both reasonable and genuine and renders reinstatement impracticable.[12]Dealing with the other representations regarding reinstatement: 12.1. I do not agree that the fact that evidence had been given in tribunal about the claimant by Victoria Philpin, whom he would have to work with, would be an issue. The claimant does not appear to bear any grudge. 12.2. I do not agree that loss of public confidence is a reason not to reinstate. This would be a factor that could be managed by the respondent. 12.3. I accept that the vetting is an issue, both STRAP and DV. I think it unlikely the claimant would get STRAP vetting based on what Ms Philpin would say. I cannot know how long re-vetting for DV would take but clearly some time. This is another reason why it may not be practicable to order reinstatement.[13]However, my primary reason is the respondent’s lack of trust and confidence in the claimant to do the role which renders reinstatement impracticable. Mitigation[14]I do not find the claimant’s reasons for delaying mitigation compelling. The claimant explains the delay as being shocked by his dismissal and having to find alternative sources of income, in particular sorting out his pension arrangements. During this time he also had family issues he had to deal with. He cannot have been surprised by his dismissal given that there had been a Recommendation to Dismiss in place for over a year. However, he may have needed some time to adjust but this should not have been more than a month.[15]I accept that the claimant is now struggling to find work. I cannot know whether starting earlier would have made a difference but he only needed one job and the claimant might have stood a better chance if he had less of a gap between leaving his previous job and starting his job search.[16]The claimant himself, who volunteers as a job counsellor and has some experience of this, was of the view it should not take more than six months to find something.[17]I also do not accept the claimant’s explanation for the gap in making job applications between 3 January 2025 and mid-February 2025 as valid. The claimant had only just made the applications before the Christmas period 2024 so it was unreasonable for him to be demoralised by a lack of response by 3 January 2025.[18]If the claimant is correct and he should have found work within six months if he had started shortly after his employment terminated, it is appropriate to award six months pay as a compensatory award.[19]In the alternative, the claimant has failed to mitigate his loss between May and December 2024. He did not find work between December 2024 and May 2025 (the date of the remedy hearing), and therefore it is appropriate to award him five months’ pay as a compensatory award together with one month between May 2024 and June 2024 when it was hard for him to start his job search. This makes a total of six months’ pay as a compensatory award.[20]In conclusion I award the claimant six months’ loss of pay as a compensatory award together with the basic award.[21]The amounts awarded are set out below Basic Award £ 2,100 Compensatory award (six months) £13,936 Pension contributions £ 5,380 Loss of statutory rights £ 500 TOTAL £21,916