Mr K O’Connor v Compass Group UK and Ireland Ltd: 6017884/2025
EMPLOYMENT TRIBUNALS
Case No 6017884/2025
Between
Mr K O’ConnorClaimantCompass Group UK and Ireland LtdRespondent
Before
Employment Judge Milner-Moore sitting aloneIn person for claimantMr Byrne (instructed by Solicitor) for respondentDate 15 June 2026
REASONS
[1]The respondent is a large company providing catering services. Until his dismissal, the claimant was employed by the respondent as a catering manager at St Charles College (“the College”). In that capacity, he was responsible for the management of the kitchen and its staff, cooking and overseeing food preparation, ensuring compliance with food safety standards and providing management reports to the respondent regarding matters such as sales, stock counts, wastage and gross profit. He began his employment working for a company called Pabulum, but his employment transferred to the respondent under a TUPE transfer.[2]I heard oral evidence from the following witnesses: the claimant, Carl Evans (the claimant’s line manager and the investigating officer), David Hatherall (who took the decision to dismiss the claimant) and Catherine Medhurst (who had intended to hear the claimant’s appeal). The claimant submitted a number of statements by way of character evidence and also submitted a statement from an individual (Nhamingha) who was a member of staff who had been interviewed in the investigation. I attached very limited weight to statements from witnesses who did not give evidence before me and whose evidence had not been tested in cross examination.[3]I received a bundle of around 280 pages, and, during the hearing, two additional documents were provided. The first was a complete copy of a health and safety audit, only the first page of which been included in the investigation report. The second document was an email sent by the claimant requesting a change to the notes of the investigation meeting.[4]The case was listed for two days to deal with issues of liability and remedy. I was able to complete hearing the evidence and closing submissions but there was insufficient time to reach a decision and deliver judgment. For that reason, I reserved my decision.[5]By agreement with the parties, I heard evidence and submissions on matters relating to liability and also to the appropriateness of reductions under the rule established in Polkey v Dayton [1988] ICR 142 UKHL and on grounds of contributory conduct.[6]I have considered all the points raised by the parties during the hearing including those raised in closing submissions or in skeleton arguments. However, my decision only deals with the main points relevant to the issues that I have to decide. Preliminary issue[7]The parties had been ordered to exchange documents by 10 November 2025, the respondent was to send a bundle by 14 November 2025, and statements were to be exchanged by 8 December 2025. The respondent failed to comply with the directions. It provided disclosure electronically on 6 March 2026 and then supplied a Tribunal bundle electronically (with 6 additional pages of disclosure) on 20 April 2026. The claimant emailed on 21 April 2026 saying that he would objecting to the bundle being included in evidence as it had been supplied late. However, his email did not suggest that he was unable to access the electronic bundle. On 7 May 2026, the respondent supplied 7 additional pages to be added to the back of the bundle. A hard copy bundle was received by the claimant on Saturday 16 May 2026. The claimant sought to have all the evidence in the bundle excluded or, alternatively sought to have the hearing postponed. He suggested that he had been prejudiced by the delay because it had been difficult for him to access the electronic bundle, which he had to read on his phone, and that he had only had access to the hard copy bundle since Saturday.[8]Whilst it was disappointing that a represented respondent had failed to comply with directions and could offer no good reason for that failure, I did not consider that it would be in the interests of justice either to exclude the contents of the bundle from the evidence, or to postpone the case. In reaching that decision, I had regard to the overriding objective, to rule 32 of the Tribunals procedure rules and the Presidential Guidance on postponements. There had been non-compliance with directions by the respondent, but I did not consider that any prejudice caused to the claimant was of such a degree that the evidence should be excluded, or the hearing postponed. I considered that, even before litigation, began the claimant would already have seen most of the documents in the bundle (namely the investigation report and correspondence sent to him during the disciplinary process). I also noted that he had received the bulk of the bundle in March 2026 through the disclosure process. The additions to the bundle made in April and May were minor. I therefore considered that the claimant had been afforded sufficient time to consider the bundle contents and to arrange to have the bundle printed, or to request a hard copy if reading the electronic bundle was difficult. Issues[9]After discussion with the parties, it was agreed that the issues were as follows: 9.1. What was the reason or principal reason for dismissal and was it a potentially fair reason? 9.1.1. The respondent says that the reason for dismissal was conduct 9.1.2. The ET1 alleges that the respondent dismissed the claimant because he had communicated concerns raised by the College about lack of transparency in the respondent’s pricing, and the level of prices charged. 9.2. If the reason was misconduct, 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. 9.3. That will require consideration of the following matters: 9.3.1. Whether there were reasonable grounds for that belief; 9.3.2. Whether, at the time the belief was formed, the respondent had carried out a reasonable investigation; 9.3.3. Whether the respondent otherwise acted in a procedurally fair manner; 9.3.4. Whether dismissal was within the range of reasonable responses. 9.4. If the claimant was unfairly dismissed what was the likelihood that a fair dismissal could have occurred following a fair process? 9.5. Had the claimant caused or contributed to his dismissal by blameworthy conduct such that it would be appropriate to make reductions to any award of compensation.[10]The claimant raised a number of challenges to the fairness of dismissal in his ET1: 10.1. accusations were made against him with little or no proof and/or were based on hearsay; 10.2. evidence that he obtained, or concerns that he raised about defective equipment, was disregarded; 10.3. the respondent had put him on a PIP, but he had met the targets set for him but had nonetheless been disciplined; 10.4. he had been blamed for things which he did on the advice of his manager; 10.5. during the investigation staff who were interviewed by the respondent were pushed to say things that were not true; 10.6. during the disciplinary hearing the HR adviser was not neutral and kept intervening with her own views; 10.7. the decision to dismiss the claimant was a foregone conclusion; 10.8. the respondent kept moving the appeal dates and dragging out the process so that the claimant had no choice but to give up on the appeal and proceed to ACAS early conciliation. Facts[11]I have recorded such findings of fact as I considered necessary for me to make my decision and for others to understand that decision. I have made findings of fact on the balance of probabilities (i.e. based on what appeared likely to have happened).[12]The claimant’s employment began on 20 August 2021. He was employed by the respondent as the catering manager at the College and managed a small number of kitchen staff. The contract between the respondent and the College was “a costs plus contract” under which the College paid all the running costs of the catering service, but any profits achieved would be applied to reduce those running costs.[13]The respondent had a conduct and discipline policy. The policy distinguished between conduct and capability issues “Conduct refers to the actions or behaviour or an employee. Conduct is where the employer could and has the ability but chooses not to achieve the standard required by the Company. Misconduct means unacceptable conduct, actions which breach the Company’s code of behaviour and are detrimental to the business or interfere with the wellbeing of other employees. Matters of capability (the ability of an employee to carry out the assigned task to the standards required by the company) are dealt with under the Company’s Performance improvement Procedure.”[14]The Policy also contained a non-exhaustive list of the types of behaviours that would be regarded as misconduct, serious misconduct, or gross misconduct. The matters relied on as gross misconduct in this case included: serious breach of trust and confidence, failure to implement/action appropriate management control, workplace bullying, harassment and discrimination and serious breach of health, safety and hygiene procedures including food safety. There were also allegations of serious misconduct: failure to work professionally with colleagues and acts likely to affect the efficiency or smooth running of the unit.[15]The process described the disciplinary policy was as follows: there would be no dismissal for a first offence save where there was gross misconduct, the respondent would conduct investigations before proceeding to a disciplinary hearing, staff were permitted to be accompanied by a colleague or TU representative at any disciplinary hearing and the policy explained the role of any companion at a hearing. The policy allowed for suspension on full pay (as occurred in the claimant’s case). It provided for a right of appeal. The background to the Performance Improvement Plan (PIP)[16]Mr Evans took over as claimant’s manager in March 2024. He asked all Catering Managers to complete a weekly report to be sent to him on Friday a with a summary of key management information including: the weekly sales total, the GP (gross profit) figure achieved and, where the GP figure was below the 40% target set, an explanation for the failure to meet target. Managers were also asked to send a wastage report detailing amounts of food wastage. Mr Evans became concerned that the claimant was not completing these reports accurately, or regularly and that he was not hitting the GP target. A development chef (Adam) was sent to work with the claimant. His assessment was negative in several respects, and he recorded that the claimant had not been calculating costings correctly, which was impacting his GP figures.[17]Mr Evans began a PIP in relation to the claimant in June 2024. The claimant maintains in his ET1 that he passed the PIP, but that does not appear to have been the case. Whilst some improvements were recorded, Mr Evans remained dissatisfied with the standard of the claimant’s weekly reports and the claimant’s performance against the GP target remained inconsistent. After receiving a weekly report on 23 October 2024, in which the claimant had omitted to include a weekly sales figure and reported a GP of 25.6% without explanation, Mr Evans decided to commence a disciplinary process. On 30 October 2024, he notified the claimant that an investigation would take place into three charges of misconduct: 1. “neglect of duties relating to operating procedures, sales figures and GP submissions”, 2. “not completing weekly reports correctly leading to potentially false information” and 3. “lack of communication relating to operating procedures”.[18]On 5 November 2024, the senior management of the college sent an email of complaint to the respondent stating that the costs of the catering service were unsustainable for the College and could not continue. The email raised several complaints including that the costs charged for food were high but also stating that the “GP Margin is too low, and something isn’t adding up”.[19]An investigation meeting took place on 6 November 2024. Mr Evans put to the claimant that he had failed to provide complete information in the 23 October report or to explain why the GP target was not met, had failed to respond promptly to requests for supplementary information, and had produced stock information which appeared to be anomalous (showing that £3000 of stock had been used in a single week). The claimant attributed his failings in reporting to difficulties with internet access. His failure to achieve the GP target he put down to the fact there had only been two days of trading. He also maintained that it was impacted by rising food prices, his inability to increase the prices charged and by uncertainty as to student numbers. He could not explain the stock figures.[20]On 13 November 2024, Mr Evans produced an investigation report. He did not accept the explanations volunteered by the claimant. He considered the GP target was achievable, in that other catering managers were achieving it, and that the claimant was not submitting reports that were accurate, or detailed enough, to identify the reasons for his failure to achieve it. He considered that the claimant was not accepting responsibility for providing accurate management information. He considered that the matter needed to be referred for a disciplinary hearing and this was scheduled to take place on 5 December 2024.[21]On Friday 22 November 2024, Ms Watkins, an employee of the respondent, conducted a health and safety audit of the kitchen at the College. The report identified some matters that required attention though these were identified as “minor non-conformance”. The audit was sent to the claimant and Mr Evans. The first page of the audit formed part of a subsequent disciplinary investigation report. It showed that the kitchen was assessed as receiving a food safety score of 83.99% and a workplace safety score of 66.79%. The issues identified as requiring correction related to recording staff training on food safety on the respondent’s system, making allergen information accessible and completing further risk assessments.[22]It is relevant to record some of the more detailed findings of the audit in relation to food storage as these were inconsistent with the evidence that emerged subsequently. The audit recorded that food was stored in a clean and hygienic manner and that fridges and freezers were “clean, in good working order and operating at their correct temperature range”. It recorded one failure to segregate raw and ready to eat foods in the fridge. In relation to the cooling of food, the audit records that foods must be cooled to below 20c within 90 minutes and refrigerated as quickly as possible. The audit records compliance with cooling requirements with a comment “minimal cooling, has blast chiller for use”.[23]The planned disciplinary hearing did not take place because the claimant was taken ill on 27 November 2024 and was then signed off work until 18 December 2024. The claimant was then back at work on 19 December 2024 and worked for a few days before the college closed for Christmas. Following the claimant’s period of sickness absence, further matters came to light. An agency worker (Linda) made a complaint about the claimant’s behaviour. She alleged that he was reusing food and mixing old and new food, for example, when preparing porridge and chips. She alleged that the claimant was delegating most of his own work to the kitchen staff, with the result that they were working more than their contracted hours, but that they were told by the claimant that the company did not pay overtime. She alleged that the claimant made disgusting remarks and gave a specific example where she had reported complaints from students about the inconsistent portion sizes of some macaroni and cheese. The claimant was said to have replied saying that some chocolates were big some small and “some men have it big and some small.” (The inference drawn by the respondent was that this was a reference to male genitalia). She reported that she tried to draw the conversation to an end, but the claimant persisted. It was clear that she did not regard the comments as mere “banter” but considered them offensive. She also said that the claimant had been questioning staff when he returned to work on 19 December and saying that he knew someone had made a complaint about him to Carl Evans.[24]On 6 January 2025, a manager, Steve Wishart, interviewed the claimant and put to him the allegations raised by Linda. The claimant denied them. The claimant was then suspended on full pay pending a disciplinary investigation.[25]On 7 and 8 January 2025, Carl Evans attended the College to conduct a further investigation. He was accompanied by another Chef, Owen English. Carl Evans took photos to evidence the state of the kitchen and office and took copies of various documents.[26]Carl Evans interviewed the kitchen staff and the notes taken formed part of the investigation report. The notes record that the following words being used as part of an opening statement to the interviewees. “What you say in this meeting will be confidential and will not be shared with anyone outside of this investigation, so that includes not being shared with your manager. If you consent and are happy, we will share this as part of the investigation, but you can also be kept anonymous if you wish.” In oral evidence, Mr Evans confirmed that staff had been offered anonymity at the outset. The staff all elected to remain anonymous. Their statements were later included within the investigation report, but their names were replaced with a letter cypher. In one case a reference to an individual’s length of service was removed because it would have identified her. 26.1. All staff confirmed that there was no mixing of old and new food. Most staff confirmed that hot food (such as beef patties) were reused by the claimant and that hot food was not being cooled before being put into the fridge at the end of the day's kitchen service. 26.2. Staff confirmed that fridges were cleaned weekly but not the freezers. 26.3. All the staff said that the claimant delegated large amounts of his own work to the kitchen staff and spent a lot of time sitting in his office and chatting rather than working. 26.4. All the staff said that they had been required to work excess hours and had been told that there would be no overtime paid. They said that they had not been granted any time off in lieu of additional hours worked. 26.5. All the staff said that they had never been provided with any recipe sheets for the food that was being prepared in the kitchens. 26.6. In relation to the allegation that the claimant made sexual remarks the evidence was mixed. Mr Evans asked if staff had heard the claimant make inappropriate comments of a sexual nature, whether he had made them feel uncomfortable with something he had said or done and he asked about the “macaroni cheese” allegation reported by Linda. 26.6.1. Luisa answered that sometimes she heard conversation and laughter but gave no specifics of any inappropriate conduct. She denied that she had been made to feel uncomfortable by the claimant. 26.6.2. Nhamingha said “We play in the kitchen, he says its joking” “We all joke”. Asked about whether the claimant’s comments were inappropriate she answered, “he may say something and though I’m ok someone else may feel it”. 26.6.3. A third member of staff “F” stated “we do have jokes but nothing that is bad” 26.6.4. Two staff reported that they felt uncomfortable. One was Linda, the other was a member of staff called Irene. Irene said that the claimant talked a lot about sex and his own experiences with women, made rude comments about vegetables and that he had commented on her body when she bent over. At one point she stated, “Its sexual jokes but I’m not really offended by it”. Later on, she stated, “I do laugh it off but, yes, I think he does go too far sometimes” and “I’m the type of person I don’t mind but some other women might find it offensive”.[27]On 13 January 2025 the claimant was sent a letter inviting him to an investigation meeting to discuss the following allegations: 27.1. health and safety malpractices of mixing old and fresh food together to be served; 27.2. not fulfilling duties in the kitchen or further operational duties of accurate weekly reports, corrective actions from food safety audits, ensuring the cleanliness/tidiness of the site at Saint Charles; 27.3. sexual comments and innuendos made in the kitchen leading to colleagues feeling very uncomfortable; 27.4. misleading colleagues and managers on aspects like overtime and expectations; 27.5. food safety not being followed in storing food in freezer and fridge and cooling down process; and 27.6. not following recipe standards as the only recipe specifications that could be found in the office while absent were dated 2023.[28]On 16 January 2025, Carl Evans conducted an investigation meeting with the claimant. A note taker, an HR representative Charlotte Atkins, was present. It was a lengthy meeting, and a detailed note was taken.[29]The disciplinary allegations were put to the claimant by Carl Evans. 29.1. The claimant denied ever mixing old and new foods. He did, however, accept that he would reuse beef patties and serve them the next day. However, he said that he would always serve the old patties separately and first. 29.2. The claimant denied that he delegated the bulk of his work and spent a lot of time sitting in his office and chatting. He maintained that he was the only person cooking and that the kitchen staff were just engaged on preparation and clean up. However, he also described that Nahinghma did help cook pizzas. 29.3. He denied that his management reports were inadequate but stated that his ability to complete them had been affected by internet connectivity issues. He explained his inability to meet the GP target by rising food costs and an inability to increase prices charged without approval from the college. 29.4. In relation to the allegation that he made sexual remarks; he admitted that the kitchen staff engaged in banter and made jokes. He denied making any sexual comments. He accepted there was some joking around regarding the size of vegetables giving the example of referring to a “donkey sized carrot” but he did not regard this as a comment that was sexual or might cause offense. He denied making comments about anyone's body or his own sex life and asked who had made these allegations. 29.5. He admitted that he had told staff that he could not authorise overtime without Carl Evans’ agreement but that said that had allowed staff to take TOIL. He suggested that he maintained records of the excess hours worked by staff on bits of paper. 29.6. In relation to the concerns that the freezers were disorganised and contained out of date and improperly stored stock, the claimant maintained that he cleaned the freezers each Wednesday with two other staff members had been unable to do so on 27 November because he fell ill. He also maintained that the freezer in question had been faulty and that he had reported this. Carl Evans accepted that he had been aware that the freezer was faulty but not that the claimant had been using it to store high risk products like chicken. The claimant later contacted Charlotte Atkins to ask that a note be added to explain that meat was normally stored in a white chest freezer said that someone else must have been responsible for storing meat over the bread in the faulty freezer. This was added as a footnote to the notes of the investigation meeting. 29.7. The claimant denied failing to cool food properly. He said that the lunch service finished at 1:30 pm and that food was cool before it went into the fridge. When asked why cooling temperatures weren't being recorded in logbooks, the claimant said that he tracked temperatures on a piece of paper. 29.8. He stated that he did not need to print the recipe cards because he was the only person doing any cooking and was able to access the recipes online. Although he also conceded that Nhamingha did some cooking of pizzas under his verbal instructions. He also stated that he was unable to print them because the printer cartridge on site was out of ink.[30]The notes of the meeting were sent to the claimant subsequently for agreement. The claimant emailed Charlotte Atkins on 18 November 2024 volunteering additional information about his reasons for not hitting the GP target because he considered that these matters were not adequately recorded in the notes. From the record of the disciplinary hearing, it appears that the claimant had sent a further email to Charlotte Akins on 3 February 2025 raising an issue as to the accuracy of the notes but neither party was able to supply me with a copy of that e-mail nor to recall what the point of inaccuracy was said to have been.[31]On 26 January 2025 Mr. Evans produced an investigation report. He concluded that there was a disciplinary case to answer in relation to all the allegations except for the allegation of mixing old and fresh food which was not supported by the evidence. The investigation report was accompanied by pack of documents which included: 31.1. The statements given by kitchen staff (anonymised with letter cyphers rather than names). 31.2. Photos of the freezer which had been found to be iced up and in a disorganised state, with meat stored above ready to eat products such as bread. 31.3. Pictures of a folder showing that the staff training records were still not complete. 31.4. Pictures of the only printed recipe specifications that could be located, which were from 2023. 31.5. Copies of the kitchen’s food management book which the claimant had signed to state that he was aware of the requirements for safe chilling of food. 31.6. Copies of pages from logbooks showing that the claimant had been completing the required information concerning cooking times and temperatures of hot food but that he had completed no records whatsoever in relation to the cooling times of food. The logbook required the claimant to record when the cooling process began, when it went into the fridge and what the temperature of the food was so that it could be shown that the requirements for safe cooling were being observed. 31.7. Copies of a unit diary that the claimant had suggested that he used to record food temperatures, but which contained no such records. 31.8. Photographs of the claimants’ office to evidence its state of disorganisation. 31.9. Copies of weekly reports completed by the claimant. 31.10. An e-mail from Ms Watkins stating that the claimant had not complained about a faulty freezer when she conducted the audit. 31.11. A copy of the first page of the health and safety audit that Miss Watkins had completed and individual pages of two further health and safety audits conducted in 2023 showing that these recorded a failure to record that staff had completed requisite training. 31.12. Emails from Adam setting out his assessment of the claimant. These recorded that he considered the claimant to be untrustworthy and lazy, that he had not understood the GP budgeting processes and had been resistant to any feedback. He recorded that the freezers and storerooms were overstocked and not rotated and this could result in food hygiene issues, 31.13. An e-mail from Owen English, a chef who had worked in the kitchens on 7 and 8 January 2025. Mr English recorded that he had not been happy with the state of the kitchen. He recorded that he had found raw diced chicken in the freezer which smelt so unpleasant that he considered it must be out of date and had had to throw it away. He recorded that there was a double freezer in a very poor condition (overloaded and disorganised and containing out of date or unlabelled items). The freezer also contained raw meat stored above ready to eat items (bread). He stated that he had received an unnecessarily large food order whilst on site which could not be fitted into the freezers which meant that lower cost item low-cost items had been thrown away to make space. He recorded that the storeroom was messy, overloaded and with uncleaned spillages on the floor. He noted that the claimant’s office was very disorganised and there were no current recipe cards available in the office.[32]On 27 January 2025, the claimant was invited by letter to a disciplinary hearing to take place on 30 January 2025. The letter set out the allegations and attached the investigation report and accompanying documents. It advised the claimant that these matters might constitute gross misconduct and that dismissal was a potential outcome. The claimant was advised of his right to be accompanied.[33]The disciplinary hearing was rescheduled on a couple of occasions at the claimant’s request but eventually took place on 7 February 2025 before David Hatherall. The claimant was accompanied by a person (Ms Coaerr) who purported to be a trade union representative. However, when asked to identify the trade union in question she was evasive, eventually saying that she was a representative of ACAS. Mr Hatherall refused to allow her to accompany the claimant. The claimant was asked whether he was content to continue on his own, failing which the meeting would proceed in his absence. He elected to continue without a companion.[34]During the meeting, the disciplinary allegations were put to the claimant. It is relevant to record that although the claimant had been provided with anonymised witness statements from the kitchen staff, in fact, he appeared to know which staff had made which statements. In particular, he knew that and Linda and Irene were the individuals who had particularly complained about the making of sexual remarks. He maintained that Linda had introduced the topic of different size male genitalia on the occasion in question and that Irene was lying about what he had said because she “had beef with him” and did not like following instructions.[35]The claimant repeated his previous explanations in relation to his failure to achieve GP targets. He denied being lazy and maintained that he did fulfil his duties properly and that he did the cooking. He repeated explanations previously given regarding the freezers. However, on this occasion he said that he cleaned them weekly but did so on his own before the rest of the kitchen staff arrived. He maintained that he had actioned the outcome of the safety audit. He continued to maintain that he had kept a diary with overtime hours worked recorded in it and that he had allowed staff to take TOIL or sought permission for them to be paid overtime. In relation to the failure to follow procedures on cooling of foods, he maintained for the first time that he never reused hot food and that this was why there was no record of cooling temperatures. In relation to the failure to follow recipe standards or print cards for kitchen staff he repeated the explanation previously given that he was the person responsible for doing cooking and could access the recipes online, so staff did not need access to them. Although the claimant relied on internet connectivity issues for his difficulties in completing management reports fully and on time, he appeared to accept that the internet was adequate for him to do other work like accessing recipes and submitting stock orders. The claimant stated that he had further statements to provide from his own witnesses. He was asked to submit any further evidence he wished have considered by 10:00 AM on Monday 10 February 2025.[36]Before the hearing resumed the claimant sent across two statements, one from a Mr Baptiste (which was a character reference that praised the Claimant’s running of the kitchen in general terms) and one from Dr Robert Barr, who had been director finance at the College until September 2023 (which was along similar lines).[37]On 10 February 2025, the disciplinary hearing resumed. Mr Hatherall decided that the claimant should be dismissed. His reasons for that decision are recorded in a dismissal letter dated 14 February 2025. 37.1. In relation to allegation 1: not fulfilling duties in the kitchen or further operational duties of accurate weekly reports, corrective actions from food safety audits, ensuring the cleanliness/tidiness of the site at Saint Charles, he upheld the allegation. He considered that actions regarding staff training identified in the audit were still outstanding from on 24 January 2025. He considered that the kitchen under the claimant’s management was dirty and disorganised, with out of date food/unlabelled food stored in overloaded freezers. He did not accept that the claimant was conducting weekly deep cleans of the freezers. He did not accept the claimant’s explanations for his failure to submit sufficiently detailed or accurate weekly reports. He did not consider that these could be attributed to internet connectivity issues given that the claimant was apparently able to place orders and check recipe specifications using the internet. 37.2. In relation to allegation 2: sexual comments and innuendoes made in the kitchen leading to colleagues being very uncomfortable. He considered that the evidence established that the claimant had made sexual comments which had made some staff uncomfortable. 37.3. In relation to allegation 3: Misleading colleagues and managers on aspects like overtime. He found that overtime had been worked by staff and that the claimant had provided inconsistent explanations of whether and how he recorded overtime. He considered that staff had been expected to work overtime without being paid or granted TOIL. 37.4. In relation to allegation 4: Food safety not being followed in storing foods for freezer and fridge and cooling down process. He considered that the evidence established that food was being stored and put away warm, that there was no evidence of cooling times or temperatures being recorded. He also considered that high risk food (chicken) had been stored in a faulty freezer. 37.5. In relation to allegation 5: Not following recipe standard as only recipe specs that could be found in the office whilst absent were dated 2023, he considered that the claimant had failed to supply staff with up-to-date recipe specifications with current allergen details. He was not satisfied with the claimant’s explanation that he accessed recipe sheets online and that staff did not cook or could be verbally instructed. He considered that this was an unsafe way of working given the potential for allergen breaches.[38]The letter concluded “Overall, I am satisfied that your behaviour falls below what is reasonably expected of our employees and has significantly breached the trust and confidence placed in you as an employee and is sufficient to amount to gross misconduct”.[39]On 20 February 2025, the claimant submitted grounds of appeal. He said that his dismissal was unfair because the process had been biased (the HR person had had not been neutral and had intervened inappropriately during the hearings), the claimant did not consider that the evidence he submitted on 10 February 2025 had been properly looked into and he had further evidence that he wished to put forward. He maintained that the disciplinary process was not a balanced and fair investigation and was based on hearsay rather than factual evidence. He considered that the decision to dismiss had been predetermined.[40]Ms Medhurst was appointed to hear the claimant’s appeal. Two attempts were made to conduct an appeal over Teams but the claimant experienced connection problems on both occasions. As a result, a further appeal was scheduled for 9 May 2025, but the claimant requested a change of date which the respondent could not accommodate. There were some discussions about dates and venues but on 6 May 2025, the claimant wrote stating that he wished to withdraw the appeal as he was frustrated over the difficulties that had arisen with scheduling the appeal and felt that the entire process had been unfair. The respondent subsequently wrote to the claimant making clear that it remained willing to hear his appeal. However, the claimant did not take up that offer[41]In evidence, the claimant maintained that he had abandoned the appeal process because he was concerned that he might miss the timescale for starting ACAS conciliation if he continued to await the outcome of any appeal. Law[42]Section 98 of the Employment Rights Act 1996 provides 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)relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b)relates to the conduct of the employee, (c)is that the employee was redundant, or (d)is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. (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.[43]Conduct is a potentially fair reason for dismissal. However, it is for the employer to prove on the balance of probabilities that conduct was the sole, or principal, reason for dismissal. If the employer does so, the Tribunal must decide whether the dismissal was fair in the circumstances (which include the size and administrative resources of the employer) and shall determine that matter in accordance with equity and the substantial merits of the case. A neutral burden of proof applies when determining fairness.[44]The reason for dismissal is the set of facts known by the employer which caused him to dismiss. So, where there are multiple acts of misconduct, the question is whether the conduct, in its totality, represented a sufficient reason for dismissal.[45]The cases of BHS v Burchell [1980] ICR 303 EAT; Iceland Frozen Foods Ltd v Jones [1993] ICR 17 EAT, Foley v Post Office [2000] IRLR 82 CA and Sainsbury’s Supermarkets Limited v Hitt [2003] IRLR 23 CA have established guiding principles as to the approach to be adopted when applying the test in section 98 ERA 1996 in a misconduct dismissal. The Tribunal should consider: 45.1. whether there was a reasonable basis for the employer’s belief that the employee committed the misconduct alleged, 45.2. whether that belief was based upon a reasonable investigation, 45.3. whether the procedure followed was within the range of reasonable responses open to a reasonable employer, 45.4. whether the decision to dismiss fell within the range of reasonable responses open to a reasonable employer. 45.5. In addressing these questions, the Tribunal should not substitute its own view for that of the employer. The question is not “what would the Tribunal have done were it the employer?” but rather “was what this employer did within the range of responses which it was open to a reasonable employer to take?”[46]An employer is not expected to conduct a disciplinary process with the rigour required in civil court proceedings. However, any investigation must be careful and even handed. The investigator should not focus solely on evidence which proves the charges but should consider whether there is evidence which might exculpate the employee A v B [2003] IRLR 405.[47]In considering the fairness of the processes adopted the Tribunal must have regard to whether these were compliant with the key requirements set out in the ACAS Code of Conduct on Disciplinary and Grievance Procedures (section 207 TULRCA 1972). The Code requires that an employer must: investigate the issues sufficiently to establish the facts, inform the employee of the disciplinary charges in writing and provide any written evidence, conduct a disciplinary hearing (at which the disciplinary charges and evidence are put to the employee and the employee is given a reasonable opportunity put their case in response), give the employee a right to appeal and allow the employee to be accompanied at any hearings. The associated ACAS Guidance is not binding on Tribunals in the same way as the Code but is a useful point of reference as to what is good practice.[48]The fact that there may have been some flaws during a dismissal process will not invariably render a dismissal unfair. The question is whether, in light of all the circumstances including the reason for dismissal, the flaws were so significant that the dismissal should be viewed as unfair Sharkey v Lloyds Bank Plc 2015 UKEAT/005/15.[49]Where a dismissal was unfair, it is not a defence to liability for unfair dismissal to argue that a fair process would have made no difference to the outcome (Polkey v Dayton Ltd [1988] ICR 142 UKHL). However, the likelihood that a fair dismissal could have occurred following a fair process is a matter that should be considered when determining whether it is appropriate to make a reduction in any compensatory award made under section 123 ERA 1996. When making this assessment, the Tribunal is required to consider whether the particular employer could fairly have dismissed the employee following a fair procedure and whether it is likely that the employer would have done so, Hill v Great Tey Primary School Governors [2013] ICR 691. When making this assessment “the question is not whether the Tribunal can predict with confidence all that would have occurred; rather it is whether it can make any assessment with sufficient confidence about what is likely to have happened, using its common sense, experience and sense of justice” Software 2000 Ltd v Andrew UKEAT/0533/06.[50]A Tribunal may reduce the basic award payable under section 122 of the ERA 1996 where the claimant’s conduct before the dismissal is such that it would be just and equitable to reduce the award (it is not necessary for the conduct to have caused or contributed to the dismissal).[51]A Tribunal may reduce the compensatory award payable under section 123 of the ERA 1996 where it finds that dismissal was “to any extent caused or contributed to by any action of the complainant”. In such a case the reduction shall be by such proportion as it considers just and equitable (section 123(6) ERA 1996). The conduct in question must be culpable or blameworthy in some way and must have contributed to the dismissal.[52]Where a Tribunal makes reductions to the compensatory award on both Polkey and contributory conduct grounds, it must explain the basis for each deduction and ensure that there is no double counting of the same factors in a way that would be unfair to the Claimant, Rao v Civil Aviation Authority 1994 ICR 495. The same consideration does not apply to the basic award because it is not affected by the making of a Polkey reduction. Conclusions Was misconduct the reason or principal reason for dismissal? Did the employer genuinely believe the employee to have committed misconduct?
Conclusions
[53]The claimant asserts that the respondent was motivated to dismiss him because he had communicated concerns raised by the College about lack of transparency in the respondent’s pricing, and the level of prices charged. However, I did not consider that this was the reason for dismissal. The question of the pricing of goods bought and sold in the College was a feature in the case because it was part of the claimant’s explanation of his inability to meet the GP target set. However, I do not consider that the concerns referenced by the claimant triggered the disciplinary process or motivated the subsequent dismissal. The disciplinary process was triggered by the inadequacy in the management reports produced by the claimant and his failure to meet his GP targets without adequate explanation. The disciplinary case then expanded after further matters came to light at the time of the claimant’s sickness absence and during the visit to the kitchen conducted by Mr Evans on 7 and 8 January 2025.[54]I considered that Mr Hatherall genuinely believed the claimant to have been guilty of the misconduct alleged and that this was the reason for dismissal. There was nothing to suggest that his evidence on this point was unreliable or that he had some ulterior motive. The investigation had provided evidence from which he could form a genuine belief that gross misconduct had taken place. Was there a reasonable investigation?[55]In many respects, I considered the investigation to be a reasonable one: 55.1. The respondent interviewed all the kitchen staff about the misconduct allegations that they could address. They were asked open questions and the evidence that emerged was broadly consistent. The claimant alleged that the staff had felt compelled to give the answers that management wanted but there was no evidence that this had occurred. The claimant produced an email from Nhamingha dated 18 February 2025 which was, in some respects, inconsistent with what she had told the investigators. However, she did not attend to give evidence and so I did not consider it appropriate to place any weight on that email. I did not consider that it undermined the reasonableness of the investigatory interviews of staff or supported the claimant’s arguments. Nhamingha’s email was only made available after dismissal, and it did not state that she had been pressured into making criticisms of the claimant or that what she had told Mr Evans was not accurately recorded in the investigation report. 55.2. The respondent gathered relevant documents (internal logbooks, photographs, internal reports etc). On the allegation of improper practices relating to the cooling of foods, the respondent conducted further investigations after the claimant suggested that he might have recorded cooling times in an old logbook and established that this was not the case. 55.3. The respondent investigated some of the explanations raised by the claimant and established, for example, that there had been some internet connectivity difficulties and did consider this as a potential mitigation.[56]I was concerned that, when interviewing the kitchen staff, the respondent had proceeded from an assumption that anonymity was required and should be offered without much consideration of the impact on the claimant and his right to a fair process. The ACAS guidance, which accompanies the Code, provides that an employer may offer anonymity in exceptional circumstances, for example, if a witness has a genuine fear of retaliation. There was no evidence before me that this was the approach adopted here. Rather the respondent appeared to have volunteered that statements could be given anonymously which offer the kitchen staff, unsurprisingly, accepted. That said, I did not consider that this rendered the processes unfair viewed in the round. The claimant was provided with anonymised witness statements that were complete (with some minor omissions about matters such as length of service etc that would have identified the witnesses). So, the claimant was on notice of exactly what the individuals were recorded to have said. Furthermore, by the time of the disciplinary hearing, the claimant appeared to know which individuals had made which statements and so the impact of any anonymisation on the fairness of the disciplinary hearing was limited.[57]However, there were two areas where I considered the investigation to fall outside the range of reasonable responses. 57.1. On the issue of cleanliness of the kitchen and unsafe storage of food in freezers, there was a significant disparity between what was found when the health and safety audit was conducted by Ms Watkins on 22 November 2024 and what Mr Evans found on 7 January 2025. He was aware that the claimant was out of the workplace (either on grounds of sickness or because the college was closed), during much of the period between 22 November and 6 January 2025. Additionally, he was aware that, although when interviewed, the claimant initially appeared to accept that he had put meat in the faulty freezer, he later stated that meat was usually put in a white chest freezer and that another member of staff must have put the it in the faulty freezer. Mr Evans took no steps to investigate the claimant’s case in this respect nor did he investigate whether the cleanliness of the kitchen and the food storage arrangements in the freezers had deteriorated since the audit and, if so, whether the claimant was solely responsible for that. He could have reinterviewed the kitchen staff, the auditor and any cover chef to establish the position. Mr Evans had also received the complete audit report but put only the first page of it in the investigation report so that the full findings of the audit on cleanliness and food safety were not before the Mr Hatherall. I considered that, a reasonable employer, concerned to conduct an even-handed investigation into this disciplinary allegation, would have conducted a more detailed investigation into these points. 57.2. On the allegation of “sexual comments and innuendoes made in the kitchen leading to colleagues being very uncomfortable”, I considered that, with the exception of the account reported by Linda, there was a lack of detail about what the inappropriate comments said to have been made by the claimant actually consisted of. Witnesses referred in general terms to comments being made but no one was asked for any specifics. Irene, for example, stated that the claimant commented on her body but she was not asked exactly what was said, when the comment was made, or who was present and although she was somewhat ambivalent about whether she was offended no follow up questions were asked. It was particularly important in circumstances where a number of witnesses were saying that they regarded any comments made as jokes or banter by which they were not personally offended for there to be clear and specific evidence about what the claimant was alleged to have said. I considered that a reasonable employer would have asked follow up questions of the kitchen staff to obtain specific information: first, because it was relevant to the assessment of the severity of any misconduct to know what had been said and whether these were comments that could reasonably be expected to cause offence and, second, so that the claimant was fully on notice of the case he had to meet and could put forward any evidence that he may have to deploy in defence of the allegations. Were there reasonable grounds to believe that the claimant was guilty of misconduct?[58]In dismissing the claimant, Mr Hatherall relied on the investigation report that had been produced by Mr Evans which put forward evidence which was sufficient to support most of the disciplinary charges.[59]Generally, I considered that Mr Hatherall had reasonable grounds to consider that the claimant was guilty of the misconduct alleged, with two exceptions. I did not consider that the investigation was reasonable and sufficient to establish that the claimant was guilty of misconduct in relation the state of the kitchen as found on 7 January 2025 or for the storage of out of date chicken, or of chicken over bread in a faulty freezer. I also did not consider that, other than the comment made to Linda, the evidence was sufficient to establish that the claimant had made sexually inappropriate comments to other members of staff which had caused them to feel “very offended”. Were the processes followed otherwise fair and such as to fall within the range of reasonable responses?[60]I have identified some deficiencies in the investigation above but, in other respects, I considered the process to be within the range of reasonable responses. The claimant was informed of the nature of the disciplinary charges in writing. He was provided with the investigation report and supporting documents. The disciplinary charges were put to him during the disciplinary hearing. The claimant had the opportunity to be accompanied by a colleague or a TU representative. I considered that it was reasonable for Mr Hatherall to refuse to allow the claimant to be accompanied by Ms Coaerr-Jarra given her inability to verify that she was a TU representative. The dismissal decision was deferred to allow him to submit further evidence. The respondent offered the claimant a right of appeal and repeated that offer, even after the claimant had stated that he was abandoning the appeal.[61]I have considered the specific points raised by the claimant in the ET1 as grounds of unfairness 61.1. In relation to the allegation that accusations were made against the claimant with little or no proof and/or were based on hearsay (subject to the two points that I have identified at paragraph 57), I did not consider that this criticism was well founded. 61.2. In relation to the allegation that the claimant’s evidence was disregarded, I did not consider that this was well founded. Mr Hatherall delayed reaching his decision to consider the further evidence submitted. He had regard to the claimant’s case that his performance was affected by internet connectivity issues but rejected that explanation on reasonable grounds. He did not accept the claimant’s case that he had not reused food and so had no need to record cooling temperatures but rejected that explanation on reasonable grounds 61.3. In relation to the allegation that the respondent had disciplined the claimant after he met the targets set for him under the PIP process. I did not consider that the claimant had shown that he had met all the PIP targets set and, in any event, it was clear that the disciplinary issues expanded beyond those raised in the PIP process. 61.4. In relation to the allegation that the claimant had been blamed for things which he did on the advice of his manager. It was not clear what the claimant was referring to here. 61.5. In relation to the allegation that, during the investigation, staff who were interviewed by the respondent were pushed to say things that were not true. There was no evidence that this had occurred. It was notable that this was not an assertion made in the email produced by Nhamingha after the dismissal. 61.6. In relation to the allegation that, during the disciplinary hearing, the HR adviser was not neutral and kept intervening with her own views. The HR adviser did intervene to clarify questions or point out evidence. However, I did not consider that her involvement was such as to render the process unfair. There was nothing to suggest that Mr Hatherall did not fully engage with his responsibilities as disciplinary decision maker. 61.7. In relation to the allegation that the decision to dismiss the claimant was a foregone conclusion. There was no evidence before me to support this beyond the claimant’s assertion. 61.8. In relation to the allegation that the respondent kept moving the appeal dates and dragging out the process, so that the claimant had no choice but to give up on the appeal and proceed to ACAS early conciliation, that was not borne out by the evidence. It was clear that there were difficulties with scheduling the appeal hearing but there is nothing to suggest that the respondent was solely responsible for these, or that it was deliberately drawing the process out. There was, in any event, nothing to stop the claimant pursuing ACAS conciliation and the appeal process simultaneously. Was dismissal within the range of reasonable responses?[62]The respondent’s dismissal letter makes clear that it relied on the claimant’s “overall” conduct as gross misconduct i.e. that it was the cumulative effect of multiple disciplinary charges that amounted to gross misconduct warranting dismissal. Given that I have found that the investigation was deficient in relation to two significant disciplinary charges, such that there was no reasonable or wellfounded belief that the claimant was guilty of those charges, I considered that the dismissal for the claimant’s overall conduct was outside the range of reasonable responses and so unfair. If the dismissal was unfair what was the likelihood that this employer could, and would, fairly have dismissed following a fair process?[63]It is inevitably an exercise in speculation to try to decide what the likelihood was of there being a fair dismissal had the respondent conducted a fair investigation. 63.1. I did not consider that any further investigation required would have significantly extended the time required for the disciplinary process to conclude or would have meant that the claimant’s period of employment would have been extended. 63.2. I considered that, if the respondent had interviewed the kitchen staff and sought specifics about the comments made, it was more likely than not that some of the staff would have provided specific details of further comments of a sexual nature. It seems unlikely that the comment recorded by Linda was an isolated instance of such conduct on the claimant’s behalf. It was likely that the respondent could reasonably have viewed such comments as gross misconduct. 63.3. It is more difficult to speculate on what the outcome of the further investigation of the issue of cleanliness of the kitchen and unsafe storage of food in freezers would have been. Such an investigation might have established that the claimant was solely culpable, or it might have identified that others were also at fault. However, I considered that, even if further investigation had exculpated the claimant on this specific matter, the respondent could, and would, still have dismissed the claimant in relation to the other matters. 63.4. I considered that, following a fair investigation process, the respondent would have concluded that the claimant had committed a number of acts of misconduct, some gross misconduct and some not, and that it would have dismissed the claimant. I considered that such a dismissal could have been a fair one. However, I did not consider that it could be said, as the respondent had contended in submissions, that the likelihood of dismissal was as high as 100%. I did not consider that it could be said that there was no chance that the respondent might have considered a final written warning appropriate. 63.5. However, I noted that the respondent was under pressure from the College to turn the catering service around and to reduce its costs and improve profitability. I did not consider that the respondent would have trusted the claimant to work constructively to achieve the GP targets that it and its client were requiring. It is also clear that the respondent had lost trust and confidence that the claimant could be relied upon to manage the kitchen and its staff appropriately, particularly given the inconsistent explanations that the claimant had volunteered during the disciplinary process about reuse of hot food, recording of cooling temperatures, maintenance of records of overtime etc. I considered that it was likely therefore that, had it followed a fair process, the respondent could, and would, have fairly dismissed the claimant for gross misconduct. I considered that the chance of a fair dismissal occurring was 80%, bearing in the factors identified above. What reduction should be made for contributory fault? Findings on contributory conduct[64]I have set out my factual findings on contributory conduct separately as, where it comes to the assessment of contributory conduct, I am not constrained to apply the range of reasonable responses test but must make my own assessment of the evidence. I considered that the evidence before me established, on the balance of probabilities, that the claimant was guilty of blameworthy conduct in a number of respects: 64.1. I considered that hot food was reused and stored without safe cooling arrangements (including record keeping) in place. I did not believe the claimant’s evidence that he did not reuse hot food. That was not what he had said during the investigation, where he had given a detailed explanation of exactly how he reused patties, nor was it consistent with the evidence of the other kitchen staff. 64.2. I considered that the claimant had failed to provide accurate, or sufficiently detailed, weekly management reports, and that this was not adequately explained given by any internet connection difficulties given his effective use of internet for other aspects of his role. I considered that the claimant was remiss in failing to prioritise this given his failure to consistently achieve the GP targets (which was adversely affecting the College and its relationship with the Respondent) and the fact that accurate data was key to establishing the reasons for this failure and addressing the problem. 64.3. I considered that the claimant adopted a lax attitude to the performance of his management duties; overseeing a situation where staff were working overtime without any official records being kept of the hours worked and where recipe sheets with allergen information were not made available to staff involved in preparing food. 64.4. I considered that it was more likely than not that the claimant had made the comment complained of by Linda and that she had had been offended by it, having reasonably inferred the claimant to be referring to male genitalia. A propensity to make such comments on the claimant’s part was consistent with the evidence of other members of staff. Although a number of the staff regarded such comments as banter, the fact remained that the claimant’s action could have exposed the respondent to complaints of sexual harassment from staff working in the kitchen.[65]Given my findings, I considered that it was appropriate to make a significant reduction in relation to the basic award in relation to the claimant’s conduct. I considered the figure of 60% to be an appropriate level of reduction.[66]Having borne in mind the substantial reduction made on Polkey grounds (in which the claimant’s conduct has been factored into the assessment of the likelihood of a fair dismissal) I did not think it just and equitable to make any further reduction to the level of compensatory award in relation to conduct; I considered that this would have involved double counting of factors to the claimant’s detriment. Approved by: