Mr D Woolley v The Secretary of State for Justice: 6019492/2024
EMPLOYMENT TRIBUNALS
Case No 6019492/2024
Between
Mr D WoolleyClaimantThe Secretary of State for JusticeRespondent
Before
Employment Judge Adkinson sitting aloneIn person for claimantMr J Hurd (instructed by Counsel) for respondentDate 25 March 2026
JUDGMENT
UPON hearing from the claimant in person and Counsel for the respondent AND for the reasons given below IT IS THE TRIBUNAL’S JUDGMENT THAT[1]The respondent unfairly dismissed the claimant;[2]There is a chance the respondent would have fairly dismissed the claimant in any event, and the claimant’s award is therefore reduced by 80% to reflect that chance;[3]The claimant was guilty of contributory fault and so the basic award and compensatory award shall be reduced by 15%;[4]There will be a further hearing to decide remedy and consequential issues. Directions will follow.
REASONS
[5]There is an anonymity order in force in respect of 3 people connected with this case. The order and full reasons for it have been sent to the parties separately. Any person with a legitimate interest may apply on notice to the parties for it to be varied or discharged. Page 1 of 21
Introduction
[6]Mr Woolley claims he was unfairly dismissed from his position as a prison governor at HMP Foston Hall. The Secretary of State denies this.[7]The Secretary of State dismissed him because he believed that Mr Woolley was guilty of unprofessional conduct and sexual harassment and that these amounted to gross misconduct. Mr Woolley confirmed at the start of the hearing that there is no other complaint before the Tribunal. Thus there is no claim for wrongful dismissal, and so I am not required to decide if in fact Mr Woolley were guilty of gross misconduct.[8]While Mr Woolley hopes to vindicate himself, it follows that whether Mr Woolley was guilty of sexual harassment or unprofessional conduct is not an issue for me when I consider if the dismissal was fair or unfair. It is wrong therefore to interpret my decision on whether the dismissal was fair or unfair as showing whether the allegation is true or untrue.
Hearing
[9]The hearing proceeded as follows. 9.1. Mr Woolley represented himself. 9.2. Mr J Hurd, Counsel instructed by DAC Beachcroft Solicitors, represented The Secretary of State. 9.3. The Tribunal heard the following oral evidence: 9.3.1. On Mr Woolley’s behalf from Mr Woolley himself; 9.3.2. On The Secretary of State ’s behalf from: 9.3.2.1. Ms Geraldine Hollingworth, governor and head of business assurance, investigating officer; 9.3.2.2. Ms Michelle Quirke, governing governor and dismissal officer; and 9.3.2.3. Ms Carlene Dixon, prison group director and appeal officer. 9.4. Mr Woolley was intending to call Mr Gary Dutton, a governor and the employee who accompanied Mr Woolley during the process. He attended the hearing and was prepared to be called and give evidence. The Secretary of State indicated though he had no questions for Mr Dutton. Therefore he was not formally called, and I treat his statement as unchallenged evidence and his credibility as unchallenged. 9.5. There were an agreed bundle of 488 pages and an agreed supplemental bundle of 31 pages. 9.6. The Tribunal has considered the oral evidence, documents to which the parties referred me and their closing arguments. 9.7. The case was listed for 2 days. It was sufficient to hear evidence and submissions from each party. It was not sufficient to reach a decision and deliver judgment. I therefore reserved judgment. Page 2 of 21 9.8. By agreement I have heard evidence only on liability, contributory fault and in relation to whether to make a deduction under the rule in Polkey v AE Dayton Ltd [1988] ICR 142 UKHL or for contributory fault. 9.9. During the hearings, we took appropriate breaks. No-one requested other reasonable adjustments. There was nothing about the hearing that alerted the Tribunal to the need for any, either. 9.10. No party has complained this was an unfair hearing. The Tribunal is satisfied the hearing was fair.[10]Many points have been made by both sides. I have considered all of them. However I only deal with what I consider to be the main points relevant to the issue I must decide.
Issues
[11]The issues were as follows. 11.1. What was the reason or principal reason for dismissal? The Secretary of State says the reason was conduct. The Tribunal will need to decide whether The Secretary of State genuinely believed Mr Woolley had committed misconduct. 11.2. If the reason were misconduct, did The Secretary of State act reasonably in all the circumstances in treating that as a sufficient reason to dismiss Mr Woolley? This involves reflecting on whether: 11.2.1. there were reasonable grounds for that belief; 11.2.2. at the time the belief was formed The Secretary of State had carried out a reasonable investigation; 11.2.3. The Secretary of State otherwise acted in a procedurally fair manner; and 11.2.4. dismissal was within the range of reasonable responses.[12]Mr Woolley cites number of alleged defects. In my view only the following have any particular substance: 12.1. The fairness of the investigation, 12.2. Occupational health referrals, 12.3. The refusal to let Mr Dutton speak at the disciplinary hearing, 12.4. The questions Ms Quirke asked of others at the hearing, 12.5. The confusion over the exact allegations, and 12.6. The proportionality of the outcome.
Facts
[13]There is no question the witnesses were doing their best to tell me what they honestly believed to be the truth. Page 3 of 21[14]I turn to the findings of fact. I am only going to set out those which I believe are necessary to make and understand my decision. I make the following findings of fact on the balance of probabilities. About The Secretary of State[15]The Secretary of State is the Minister of State responsible for prisons in England and Wales. The Secretary of State has not set out how many people are employed in prisons, or the Ministry of Justice more widely. However, it is clear that prisons are a large employer, are a part of a larger Government Department and the state more widely. I take judicial notice of the fact significant resources are available to him to discharge his duties. There is no suggestion the size of the prison’s staff or resources impact on the conduct a dismissal procedure. PSI 6/2010[16]Prisons have a staff conduct and discipline policy, PSI 6/2010. While Mr Woolley referred to it in the most general terms, no party took me to any paragraphs from it. It is 84 pages. I noted from my reading the following matters appeared relevant. 16.1. Its process reflects that set out in the Acas Code of Practice 1 on disciplinary procedures. 16.2. The prison cannot dismiss a member of staff for the first disciplinary action except in the case of gross misconduct (paragraph 2.10). 16.3. Investigations are about establishing facts relevant to the term of reference. It is for the disciplinary hearing to make a judgment based on them (4.16). 16.4. Staff may be accompanied at the disciplinary hearing by a trade union representative or work colleague (5.13). It reminds the reader that an employee’s trade union representative or companion has a statutory right to address the hearing but not to answer questions on the employee’s behalf (Annexe A). 16.5. Gross misconduct is a ground for dismissal (8.2). 16.6. Gross misconduct expressly includes sexual harassment and serious unprofessional conduct (section 8). 16.7. Appeals are a review of the process and not a rehearing (section 9). 16.8. The standard of proof is the balance of probabilities (Annexe A). 16.9. Gross misconduct is “Misconduct that is so serious as may make any further relationship and trust between [employer and employee] impossible”.[17]Mr Woolley never suggested he was unaware of the contents of the policy. He did not suggest he did not access to is. As a governor, I would expect him to know of its general gist at least and have access to it. I would have been surprised if he had suggested otherwise. Page 4 of 21 Prison ranks[18]A governor is a senior rank, and a leadership rank. A governor is senior to custody managers, prison officers and officer support grades. A director is senior to governors. A prison may have multiple governors, each responsible for some aspect of the prison or for the prison more generally. About Mr Woolley[19]The Secretary of State employed Mr Woolley as a prison governor at HMP Foston Hall.[20]Mr Woolley was the line manager of 5 custody managers. Below them were about 68 other employees. His line manager was deputy governor Lisa Garnett.[21]In July 2022 Ms Garnett spoke to Mr Woolley as part of performance management monitoring about Mr Woolley’s conduct towards one of the custody managers, LD.[22]In September 2023 a female member of staff had lodged a grievance against Mr Woolley. The details do not matter because it was not upheld. However Ms Garnett had to discuss with Mr Woolley that there were reports he spoke in a flirty manner with young female members of staff and reminded him of the importance of treating everyone the same. The notes of the meeting record Mr Woolley said he “[felt the need] to be more supportive of female staff in a patriarchal manner.”[23]Other conversations about relationships with females in the workplace took place in December 2023, with a reminder of the need for all communication to be professional and that he was to remember his position as a senior manager. The background allegation[24]Ms Clark (another governor) and Mr Cooper (a custody manager) raised concerns with Ms Garnett on 14 March 2024 about Mr Woolley’s conduct towards LD. These were as follows. 24.1. Mr Woolley had followed LD in his car after work. LD had pulled into the car park of the Boar’s Head Hotel over concerns that Mr Woolley was following her. She believed Mr Woolley had also pulled into the car park. 24.2. Concerns about text messages Mr Woolley had sent to LD that were believed to be inappropriate. 24.3. LD had said to others that she did not want to be left alone in the office with Mr Woolley.[25]The matter was referred to Ms Quirke. She discussed it with Ms Garnett. They decided there needed to be an investigation because it might be professional misconduct and possibly sexual harassment. Suspension[26]On 21 March 2024, Ms Garnett informed Mr Woolley of the allegations, that there would be an investigation and that he was suspended during the full process on full pay. Page 5 of 21 The investigation[27]Ms Quirke appointed Ms Hollingworth as investigation officer. Ms Quirke drafted the terms of reference. They were as follows. “To investigate whether the actions of [Mr Woolley] between 7 March 2024 and 21 March 2024 fell below that expected of a senior leader and constitute sexual harassment/assault and contravened professional standards taking account of the allegations that it “●Mr Woolley followed [LD] on her route home “● he made [LD] feel uncomfortable on 20 March 2024 at approximately 14:00 in A wing office as detailed in the attached e-mail from [Mr Cooper].” Ms Quirke had no further involvement in the investigation process.[28]Ms Hollingworth interviewed several people who might be relevant witnesses. These included: 28.1. Mr Woolley on 12 April 2024, 28.2. LD on 8 April 2024, 28.3. Ms Clarke on 3 April 2024, 28.4. Mr Cooper on 3 April 2024, and 28.5. Ms Garnett on 10 April 2024.[29]She also examined a number of pieces of other evidence. These included 29.1. CCTV of A wing and D wing at the relevant times. 29.2. A text message exchange which included the following from about 8 March 2024: “Claimant [DW]: You OK xx “DW: Sorry for being a jealous prick xxx “LD: I’m fine, it’s fine x “DW: I hate it x” She also carried out a site visit to A wing and D wing and the offices.[30]She produced a detailed report. The report (with annexes that include documentary evidence and interviews) is about 200 pages.[31]I have read the interviews with everyone. They do not lead or coach witnesses. They show Ms Hollingworth asking reasonable questions to allow witnesses the best opportunity to give their evidence.[32]I have read the interview with Mr Woolley in particular. It shows a conversation backwards and forwards. Ms Hollingworth set out the allegations clearly and reasonably to him and gave him a fair chance to answer. He was able to deal with all the questions she asked of him. The contents persuade me that Mr Woolley understood the issues and allegations being investigated. Mr Woolley did not raise any complaint about the manner in which the interview is being conducted or about the matters she asked him about. While Mr Woolley came across to me as a little unsure of himself, I am satisfied that, at this stage when there was only Page 6 of 21 the investigation, he would have been able to raise any concerns he had. I am also satisfied from Ms Hollingworth’s demeanour and answer to questions she would have considered thoroughly any concerns he had raised.[33]The investigation eventually explored 4 allegations. 33.1. “The D wing allegation”: This is that in an office on D wing Mr Woolley had touched LD’s leg 3 or so time and that he had generally flicked her hair, patted her on the head and touched her. The CCTV shows it occurred about 16:30 on 19 March 2024. The terms of reference were extended to cover this after it became known during the investigation. 33.2. “The following allegation”: This is that LD told Mr Woolley not to follow her to an office on A wing, but that he followed her anyway. This allegedly occurred after the D wing allegation though the exact chronology was not clear to me at the hearing. This was explored in the investigation, and Mr Woolley given a chance to comment. 33.3. “The A wing allegation”: This is that on 19 March 2024, LD alleged asked Ms Clarke and Mr Cooper not to leave her alone with Mr Woolley. CCTV suggests this would have occurred at about 14:30. This is what prompted Mr Clarke to submit his complaint. This too was explored in the investigation report. 33.4. “The Boars Head Hotel allegation”: This is that Mr Woolley had in his car followed LD on her drive home to the Boars Head Hotel and into the car part. Ms Hollingworth did not seek any CCTV from the Boars Head Hotel or seek to interview anyone from there as part of her investigation.[34]Ms Hollingworth explored each with Mr Woolley and afforded him a fair opportunity to provide his side of the story. I note particularly Nothing in the interview suggests Mr Woolley at any point did not understand what the questions related to, what incident they were discussing or that he was unable to respond fully to questions about the allegation.[35]Ms Hollingworth established the following about the D wing allegation in particular. 35.1. Ms Hollingworth established with Mr Woolley that: 35.1.1. they were discussing the office on D wing, 35.1.2. Mr Woolley managed D wing and so would have reason to go into that office, 35.1.3. the office is a small office with 2 desks, and 35.1.4. at the time of the alleged incident there were 5 people in there including LD and Mr Woolley. 35.2. Mr Woolley said he could not remember where people were stood or sat. Page 7 of 21 35.3. When asked if he touched LD’s leg in that office on that occasion he replied “No. No I wouldn’t have thought, no.” 35.4. When asked if he had flicked her hair, hugged her or kissed her, he answered he had not. She said he had never asked him to back off. 35.5. Ms Hollingworth later returned to this incident and again asked if Mr Woolley had touched LD’s leg in D wing. He said he had not.[36]Ms Hollingworth weighed up all the evidence and reflected on the definition of harassment in the Equality Act 2010, the Acas definition of sexual harassment and The Secretary of State ’s own guidance when reaching her conclusions. She wrote a detailed, thorough investigation report to which all the evidence was attached. She cross-referenced the various pieces of evidence when she considered her conclusions and noted the evidence both for and against the allegations. She recommended there be a disciplinary hearing.[37]She concluded her investigation on 1 March 2025 and sent it to Ms Quirke. The occupational health report[38]When Ms Garnett suspended Mr Woolley, she was concerned for his mental health. LD had expressed similar concerns in the investigation. She referred him to occupational health. Ms C Moylan, a mental health advisor, spoke to Mr Woolley. She prepared a report dated 22 March 2024. She advised Mr Woolley had symptoms consistent with moderately severe depression and severe anxiety (though she makes it clear that this was not a diagnosis). She signposted a number of independent support resources. She opined Mr Woolley was unfit for work because of the workplace issues, rather than medical issues. She advised he be referred back in 2-3 weeks to monitor progress and capacity to work, and to design a plan to return to work, if appropriate at that time.[39]The Secretary of State did not refer Mr Woolley back to occupational health. The disciplinary hearing process[40]On 28 May 2025 the Ms Quirke invited Mr Woolley to a disciplinary hearing. In the invite she set out the charges as follows: “● That your actions between 7-21 March 2024 towards LD constituted sexual harassment assault and contravened professional standards; “● That she followed a female member of staff on her route home (unprofessional conduct) “● That you made a female member of staff feel uncomfortable on 20 March 2024 at approximately 1400 in A wing office. (sexual harassment assault and unprofessional conduct)” The letter made clear this could be considered gross misconduct and result in summary dismissal. It identified the witnesses she would call and attached the whole of the investigation report.[41]The second charge is the Boar Head Hotel allegation I note above. Page 8 of 21[42]The last charge is incorrect in 2 ways. Ms Quirke told me in evidence that it ought to refer to D wing. I infer that it was the D wing allegation (touching LD’s leg 3 times). I come to this conclusion because it is the only alleged misconduct involving D wing, and it tallies with her correction. The reason I have to make an inference is that Ms Dixon in her evidence-in-chief told me that during the appeal she considered that Ms Quirke’s references to D wing in the disciplinary process were errors on her part, and she should have referred to A wing. It is not to the Secretary of State’s credit his disciplinary and appeal manager are still inconsistent about what the allegation is, nearly 18 months after ending Mr Woolley’s employment. At no point before dismissal did Ms Quirke issue any document highlighting the error or correcting the charge.[43]When asked in the hearing about the generality and non-specificity of the first charges and the fact that the last charge cited A wing and not D wing, Ms Quirke said that her expectation was that Mr Woolley to read the report and that he would have been able to deduce the actual details of the allegations from that report. She believed it would have been clear to Mr Woolley that the third charge related to the D wing allegation.[44]Before the hearing Mr Woolley and Mr Dutton met and prepared written questions. Their intention was Mr Dutton would ask written questions, and Mr Woolley would ask any follow up questions that arose from the answers of witnesses.[45]The hearing took place on 26 June 2024 at 10am. Mr Woolley attended with Mr Dutton. Ms Quirke chaired the meeting with a human resources caseworker, Ms Shahi, in attendance too. The notes of the meeting show Ms Shahi’s role was to advise Ms Quirke and ensure policy and process was adhered to. Ms Quirke conducted the hearing though and made the decision alone.[46]As part of the introductions, Ms Quirke told Mr Woolley that Mr Dutton could not address the hearing. Ms Quirke says this was in line with the training she had received about 20 or so years ago. With what came across to the Tribunal as reluctance, she accepted in evidence that this was contrary to the law in the Employment Rights Act 1999 section 10 (which says the employer must permit the companion to put the employee’s case, sum it up and respond to views). I note that it is also contrary to The Secretary of State ’s own policy PSI 6/2010. Ms Shahi did not intervene to correct this error and ensure adherence to policy or statute. The Secretary of State did not call Ms Shahi to explain why she did not intervene. She attended the hearing to observe, so was available to be called. If there was a good reason for her not intervening, I would expect her to have given evidence and explained it. In the circumstances, I infer that Ms Shahi had no good reason for not intervening to correct Ms Quirke and her departure from law, Acas Code and PSI 6/2010. I infer therefore that she could have done so and, given her purpose for being there, should have done so.[47]That aside, the transcripts show that the hearing was thorough and detailed. The transcript shows that Mr Woolley was able to ask all his written questions, and to follow up with questions when he wished to do so. It is undisputed that Mr Woolley became emotional during the hearing and that Page 9 of 21 Ms Quirke was sympathetic, did her best to calm him. She allowed him time to regain his composure. She also allowed Mr Woolley to consult with Mr Dutton as required. However she did not change her position to allow Mr Dutton to address the meeting or to ask questions. This is even though, as Mr Dutton’s unchallenged evidence confirmed, Mr Woolley was very emotional and struggling to read the questions.[48]In the hearing Ms Quirke asked of a few witnesses the following question: “Have you ever witnessed [Mr Woolley] being tactile with LD – flicking her hair, patting her on the head, kissing her cheek?”. When Mr Cooper was asked this, he eventually confirmed he had seen all three. A Mr Pedley replied he had only seen Mr Woolley flick her hair, but nothing else. Mr Woolley alleges the question is leading and unfair. I find as a fact the question is fair. I can see an argument it might have been better if it had stopped at the word “tactile”. That is however with the benefit of hindsight, on cool reflection, 2 years later and ignores both that this was a live event, and it was not a court room or process subject to the strict rules of evidence. It is an open question, and it is apparent from the transcripts that witnesses they were not feeling that they were led into simply agreeing with the suggestion. Ms Quirke cannot be criticised fairly I find for those questions.[49]During the hearing there was a lot of evidence given and questions asked about the D wing allegation. It is clear that the hearing was addressing the question of whether Mr Woolley had touched LD’s leg 3 times in D wing. The transcript shows Mr Woolley did not ever suggest that he was unprepared to deal with the allegation. There is no evidence was unable to address the D wing allegation or that he did not understand what the allegation was about. He did not say that he considered it irrelevant because it was not a charge identified on the hearing invite. Mr Dutton’s evidence did not suggest he had similar concerns and would have mentioned it but for Ms Quirke denying him the chance to speak.[50]The evidence both at the investigation and disciplinary hearing established that none of the other people in the room saw Mr Woolley touch LD’s leg – a point that Mr Woolley made in the disciplinary hearing. However LD said he had, and Mr Cooper said LD asked him in the office immediately after Mr Woolley had left if he had seen Mr Woolley touch her leg.[51]Ms Quirke took time that day to consider the evidence before her. Her decision was as follows. 51.1. She dismissed the Boar Head Hotel allegation. The evidence was not clear – indeed LD could not confirm it was Mr Woolley after all. 51.2. She accepted that LD had said she did not want to be alone with Mr Woolley in A wing. She concluded this was because LD knew that Ms Garnett was going to speak to Mr Woolley about his behaviour, and she wanted to avoid uncomfortable conversation between them. 51.3. She found proven the D wing allegation because of Page 10 of 21 51.3.1. LD’s own evidence that it had happened, 51.3.2. that she reported it to Mr Cooper immediately after it happened, 51.3.3. and the general evidence of Mr Woolley’s tactile behaviour. She concluded this was sexual harassment/assault. 51.4. She also found proven that Mr Woolley was guilty of unprofessional conduct because of the text messages to LD and that he had been spoken to about his behaviour before.[52]She gave Mr Woolley an opportunity to put forward his mitigation. He drew attention to his clean disciplinary record, that he was friends with LD outside of work and was a single parent. He also apologised.[53]Ms Quirke took time to consider the sanction. She decided on dismissal. She believed he lacked insight and had not improved his behaviour even though he had been spoken to in the past. She said she had no confidence he would improve. She did not accept the apology as demonstrating insight. She noted his senior position within the organisation. She considered a lesser sanction was not appropriate because of the breakdown in trust.[54]She told Mr Woolley the outcome at the hearing and confirmed it in her letter dated 1 July 2024. Appeal[55]Mr Woolley appealed against dismissal on 8 July 2024. His appeal letter is detailed and lengthy, but I can summarise it as follows. 55.1. The D wing allegation was not in the investigation’s terms of reference. 55.2. Mr Dutton was not allowed to speak. 55.3. Evidence from outside of that allegation was heard at the disciplinary hearing. If he had known that such evidence would be adduced, he would have provided evidence from texts with LD outside of work. 55.4. It was irrational to find the D wing allegation proven and that the weight of the evidence supported the findings in relation to the D wing allegation because: 55.4.1. witnesses had provided (what he called) “generic” answers about his behaviour, 55.4.2. had not seen him touch LD’s leg even though it was a small office and there were a number of them there when it was alleged to have happened, 55.4.3. their evidence was not reliable enough to prove the Boar’s Head Hotel allegation. 55.5. He said Ms Quirke had applied too low a standard of proof. Page 11 of 21 55.6. Classing tapping as unwanted touching is “disproportionate and excessive”. 55.7. Dismissal was too severe.[56]Ms Dixon heard the appeal on 25 September 2024. Mr Woolley attended, supported by Mr Dutton. Ms Dixon let Mr Dutton address the meeting (but not answer questions). This accords with the law, Acas code and with PSI 6/2010. Mr Woolley himself explained his appeal.[57]At the hearing Mr Woolley did not provide any examples of how he might have conducted the disciplinary hearing differently if Mr Dutton had been allowed to ask questions and address the meeting.[58]After the appeal hearing finished, Ms Dixon invited Mr Woolley to send in anything if he wanted to explain anything further. He sent in some other text messages between him and LD. They show him asking LD about various things unconnected with work. They give the impression of him communicating with her in a way that is not professional, but him trying to be friendly.[59]After the meeting Ms Dixon considered the occupational health referrals and reflected on the information. She found as follows. 59.1. There had been a typographical error in the outcome letter and the incident referring to touching LD’s leg should have referred to A wing not D wing. I have already noted that this is inconsistent with Ms Quirke’s evidence to me the charges should refer to D wing and not A wing and my concerns about it. The contents of the investigation are clear the alleged D wing incident did occur on D wing. 59.2. The lack of referral back to occupational health was not relevant. She concluded that there was no expectation at that time he was returning to work because he was suspended. Therefore a referral was not necessary to arrange a return back to work. She noted that he was in any case being cared for by his general practitioner and talking therapies and had access to and had been signposted to other sources of support. 59.3. She considered the weight of the evidence supported Ms Quirke’s conclusions. 59.4. She agreed that dismissal was the appropriate sanction.[60]On 2 October 2024 she wrote to Mr Woolley dismissing his appeal. That was his last day of employment.[61]Early conciliation took place between 19 September and 25 October 2024. He presented his claim on 22 November 2024.
Law
[62]The law so far as relevant is as follows. 62.1. Conduct is a potentially fair reason for dismissal under the Employment Rights Act 1996 section 98. Page 12 of 21 62.2. It is for The Secretary of State to prove on the balance of probabilities that the conduct of Mr Woolley was the sole or principal reason for dismissal: section 98(1). 62.3. If he does, then the Tribunal must decide whether the dismissal was fair or unfair in accordance with the equity and substantive merits of the case, considering the size and administrative resources of The Secretary of State: section 98(4). The burden of proof at this stage is neutral. 62.4. There is guidance to the Tribunal found in cases such as British Home Stores Ltd 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. The tribunal understands of the effect of the guidance in these cases is as follows. 62.4.1. Was there a reasonable basis for The Secretary of State ’s belief? 62.4.2. Was that based upon a reasonable investigation? 62.4.3. Was the procedure that the employer followed within the “range of reasonable responses” open to the employer? 62.4.4. Was the decision to dismiss summarily within the “range of reasonable responses” open to the employer? 62.4.5. The Tribunal is not entitled to substitute its own view for that of the employer. 62.4.6. The Tribunal is entitled to consider and measure the employer’s conduct and decision against the employer’s own disciplinary or conduct codes. 62.5. The ACAS Code of Practice on Disciplinary and Grievance Procedures sets out the basic requirements for fairness applicable in most conduct cases and the Tribunal must have regard to it: Trade Union and Labour Relations (Consolidation) Act 1992 section 207A. 62.6. The employee’s length of service is relevant when deciding the appropriate sanction: Strouthos v London Underground Ltd [2004] IRLR 636, CA. 62.7. Despite the code of practice and guidelines in the cases, they are not statute: Anandarajah v Lord Chancellor’s Department [1984] IRLR 131 EAT. Ultimately each case must turn on its own facts and be broadly assessed in accordance with the equity and substantial merits: Jefferson (Commercial) LLP v Westgate UKEAT/0128/12 EAT; Bailey v BP Oil Kent Refinery [1980] ICR 642 CA. 62.8. When a person is dismissed for gross misconduct, but the only claim is one of unfair dismissal, then the Tribunal does not have Page 13 of 21 to determine if there is gross misconduct to decide if the dismissal is fair or unfair. The factual enquiry is in relation to the matters dictated by the Employment Rights Act 1996 section 98, not what happened which is dictated by the contractual enquiry: West v Percy Community Centre [2016] ELR 223 EAT. 62.9. In Polkey v AE Dayton Ltd [1988] ICR 142 UKHL the House of Lords said that where a fair procedure would be “utterly useless or futile”, a dismissal that is otherwise unfair should be held to be unfair. Explaining this, the Lord Chancellor the Lord Chancellor agreed with the analysis of the Employment Appeal Tribunal in Polkey (see page 358) that the correct approach is to consider the reasonableness of the employer’s decision to dismiss at the time dismissal took effect, focusing on the circumstances known to the employer, recognising there may be offences “so heinous and the facts so manifestly clear, that a reasonable employer could on the facts known at the time of dismissal, take the view that dismissal was the only reasonable outcome (The House used the label “utterly useless or futile”). It is only therefore in rare cases that this no-difference rule would be effective. The Appeal Tribunal’s judgment that the Lord Chancellor adopted cited as an example of unfairness not letting the employee have a chance to explain. 62.10. If the dismissal were unfair, the case of Polkey directs Tribunal to consider whether the respondent would have been dismissed fairly in any event for this or another reason. This is a predicative assessment on the information before me: Polkey; explained in Software 2000 Ltd v Andrews [2007] IRLR 568 EAT, Hill v Governing Body of Great Tey Primary School [2013] ICR 691 EAT. 62.11. Objectively culpable and blameworthy conduct that contributes to the dismissal requires me to consider reduction of the basic and compensatory awards. Department for Work and Pensions v Coulson UKEAT/0572/12 EAT; Employment Rights Act 1996 122(2) and 123(6). When deciding to make an adjustment I can consider any adjustment made under Polkey, bearing in mind that such an adjustment applies only to the compensatory element of the award. Conclusions The Secretary of State ’s honest belief[63]The first question is whether The Secretary of State, through his employees, had an honest belief that Mr Woolley was guilty of gross misconduct. I am satisfied The Secretary of State did hold such a belief. My reasons are as follows. 63.1. Mr Woolley did not challenge the suggestion this was The Secretary of State’s honest belief. Page 14 of 21 63.2. Nonetheless, I am satisfied from the oral evidence of the Ms Quirke and Ms Dixon, whom I have been able to observe give evidence, that this is what they honestly believed. I remarked they are honest witnesses earlier. There is nothing that suggests their evidence on this point is in any way unreliable. 63.3. In any event there is plenty of material which could point to that conclusion, which lends credibility to the idea the belief was honestly held. The main factors in my view are. 63.3.1. The investigation interviews and documents accompanying it. These contain evidence from which one can readily conclude there was a case to answer, and there may have been sexual harassment of LD and unprofessional conduct when one remembers that he was LD’s manager. 63.3.2. LD’s evidence in the investigation and disciplinary hearing that he touched her leg, and Mr Cooper’s evidence of her complaint about it after it is alleged to have occurred. 63.3.3. The policies available to all staff that make clear the respondent considers serious unprofessional misconduct and sexual harassment to be gross misconduct. Had The Secretary of State carried out a reasonable investigation?[64]Yes. I refer to my findings above in paragraph 27 above onwards. The investigation was detailed, thorough and well-reasoned in its conclusions. There are only 2 aspects that in my view require mention. 64.1. The first relates to the failure to seek CCTV from the Boars Head Hotel. In my view it is not reasonable to expect an employer to contact another organisation to obtain CCTV as part of an investigation. It has no right to the CCTV, it raises potential dataprotection issues for The Secretary of State to grapple with even if he did acquire the CCTV, and in any even Ms Hollingworth had enough evidence from the witnesses about what had happened to be able to complete her report. I am not persuaded that every reasonable employer would have sought it. I think it reasonable for an employer to say they had enough to proceed with. I also make the observation in passing that, since the allegation was ultimately dismissed, having the CCTV would not have benefitted Mr Woolley. 64.2. The second related to the expansion of the terms of reference to include the D wing allegation. I do not consider this is unfair in the circumstances. It is apparent that other potential misconduct had become known that involved Mr Woolley and LD and was of a similar character to that which the terms of reference covered. It would be unreasonable and artificial to ignore it simply because it was not in the terms of reference. In the Page 15 of 21 circumstances I consider a reasonable employer would bring that into scope of the investigation. There is no benefit to ignoring it or setting it to one side to be investigated separately. The only caveat is Mr Woolley is given a fair opportunity to provide his evidence on the D wing allegation as part of the investigation. He was given that chance and indeed he did so, as the transcript of interview confirms. None of these points undermine the reasonableness of the investigation. Were there reasonable grounds to believe Mr Woolley was guilty of misconduct?[65]I am satisfied that Ms Quirke was entitled to conclude on the evidence that the D wing allegation was made out. LD said he had toucher leg 3 times. Mr Cooper had provided evidence of LD complaining afterwards when Mr Woolley had left that he had done so. There was evidence about Mr Woolley’s general demeanour to LD being tactile. Ms Quirke also had the benefit of observing witnesses’ demeanour and hearing their answers to questions.[66]It is reasonable to conclude it was sexual harassment/assault. It is clearly capable of being unwanted conduct that is sexual. LD’s evidence was it made her uncomfortable. Since deliberately touching someone without consent is an assault in law, then it was reasonable to decide it was an assault.[67]It was reasonable for Ms Quirke to conclude that: 67.1. the fact others present did not see it does not mean it did not happen and to give greater weight to the direct evidence of LD and Mr Cooper. Ms Hollingworth had visited the office as part of her investigation. It is clear nothing about its layout caused her to consider that if it occurred as alleged it was more likely others would have seen it. 67.2. the fact the Boars Head Hotel allegation was not proven does not mean the same witnesses cannot be believed about the D wing allegation. It is inherently plausible that witnesses can be wrong about one thing and right about another. There is nothing to which Mr Woolley pointed that showed their evidence in relation to the Boars Head Hotel allegation was of such a quality that they could not be believed about the D wing allegation. There is in my view nothing inherently unusual or concerning that Ms Quirke accepted witnesses’ evidence about one allegation but not another. In any event, reading the disciplinary meeting transcript shows she properly explored the evidence before her and tested it. It was therefore a conclusion open to her.[68]If that had been the extent of matters, I would end my analysis under this issue here. There is however in my opinion a fundamental flaw in the disciplinary process that is as convenient to deal with here as under procedural fairness because it affects both. I do not consider the actual categorisation is important. Page 16 of 21[69]Mr Woolley raised the issue about the charges he faced and highlighted both the vagueness of the first charge and the issue over the A-wing charge. These are the ones which she found proven and therefore dismissed him for.[70]The charges however are flawed that in my view make the process unfair. 70.1. The first charge (“That your actions between 7-21 March 2024 towards LD constituted sexual harassment assault and contravened professional standards;”) is vague in the extreme. I accept it is wide enough to include the D-wing allegation. However no employee reading it would know that it specifically included the D wing allegation. They would instead be faced with being told there were non-specified behavioural concerns in a 14-day period. A reasonable employer with the respondent’s resources would not rely on just a vague charge but would set out the factual acts or omissions that the disciplinary hearing was going to consider. The respondent had the resources to be able to do so since Ms Quirke is a senior member of staff and had Human Resources support. She had the same detailed investigation report that Mr Woolley had. If she expected him to be able to deduce from reading it what the actual allegations were, then there is no reason why she could not do so and set it out. The two consequences are the claimant is not going to know what acts are covered by the charge. It also means that Ms Quirke lacks a definition of the alleged actual state of affairs (i.e. acts proven and not proven) against which to measure the charge to see if this allegation is proven. Without this, I consider that she has acted unlike a reasonable employer. 70.2. In particular, I do not consider it an answer to say Mr Woolley could read the report and annexes. The respondent is implementing the process. It has no reason not to be clear. No reasonable employer would expect a claimant to read 100-odd pages of an investigation report to work out what the allegations against him are, particularly as The Secretary of State is considering serious allegations that could end Mr Woolley’s employment. 70.3. I do not consider it an answer that it would have been clear at the meeting what was being discussed, and that he had no issue answering questions about the D wing allegation. That may be relevant to a deduction under Polkey, but it does not cure the unfairness in the vaguely worded charge. The claimant was very emotional and struggling at times. I consider it unfair to rely on Mr Woolley to highlight the problems, particularly in the state he was in. 70.4. The third charge is also problematic. As I remarked in the facts, it is still unclear if it should refer to A wing like it originally said, D wing as Ms Quirke said in evidence, or if refence to D wing is an error itself like Ms Dixon told me. The findings do not make it clear whether it should be A or D that is the erroneous reference. Page 17 of 21 I repeat my observations about the resources available to Ms Quirke, and that it is unfair to expect an employee to work out what the charge is. I cannot help but note this is highlighted by the fact that the respondent even now seems unclear which incident this charge relates to. If the respondent is unclear about the charge, I consider it cannot reasonably find it proven. Proportionality of outcome[71]The Secretary of State believed Mr Woolley was guilty of sexual harassment. PSI 6/2010 cites this as an example of gross misconduct. He was in a senior position. It is reasonable to conclude that sexual harassment of a junior is professional misconduct. He had been spoken to previously about it. It is reasonable to conclude therefore that, even though he had a clear disciplinary record dismissal would be justified. If the belief in his misconduct were reasonable, then dismissal would have been a reasonable sanction. Procedural fairness[72]I do not consider the lack of a further occupational health referral makes the dismissal unfair. Its focus was on Mr Woolley returning to work, after present troubles had resolved. The return to work depended on the outcome of the disciplinary process. Mr Woolley has not persuaded me all reasonable employers would have made another referral because he has not shown why a reasonable employer would think it beneficial.[73]I commented on Ms Quirke’s questions above in the findings of fact (see paragraph 48 above). For clarity they do not undermine the fairness of the hearing.[74]I repeat my observations about the charges in paragraph 70 above, following.[75]I add only one further matter. I consider that it the decision not to let Mr Dutton address the disciplinary hearing was unfair. I accept that a breach of the Employment Relations Act 1999 section 10 (right to be accompanied) in this way does not automatically make a dismissal unfair. However it is clearly a part of what Parliament considers a fair procedure and such an important right they have enshrined it in legislation. It is also cited in the Acas Code of Practice 1 as part of a fair procedure. It is also cited as a right in The Secretary of State ’s own process. The decision breaches all three of these. A reasonable employer with The Secretary of State’s resources and size would have allowed Mr Dutton to ask questions and to address the meeting, particularly when the claimant was very emotional and struggling to ask questions. Ultimately there is no excuse for it. Ms Quirke should have known that Mr Dutton had the right to address the meeting. It was in the PSI she was following. Ms Shahi should have told her. She had no good reason for not doing so. A reasonable employer in The Secretary of State ’s position would either not have refused to let Mr Dutton give evidence or would have corrected the error.[76]I do not consider it an answer to say that Mr Woolley was able to ask the pre-written questions and to follow up with questions as Mr Dutton and he planned. Nor do I consider it an answer to say he cannot point to how it Page 18 of 21 would make a difference. I repeat Mr Dutton’s evidence that Mr Woolley was very emotional and struggling to read the questions. That does not excuse the fact that the reasonable employer would not have done this in the first place.[77]The appeal was a review and not a rehearing. I do not consider it addressed these defects therefore that occurred at the first stage. The fact Mr Dutton was able to address the appeal does not alter the fundamental defect in the dismissal stage. The appeal did address the charges but did not address the problems with them. The fact there is still today confusion about whether it was D or A wing in the third charge positively undermines the idea the appeal cured any defects in the disciplinary process.[78]I now turn to consider the arguments under the Polkey principle. Polkey - same outcome making dismissal fair?[79]The Secretary of State suggested to me that the dismissal was fair because there is no evidence of what difference it would have made if Ms Quirke had let Mr Dutton address the meeting and because it was always clear what allegations Ms Quirke was addressing at the disciplinary meeting. In other words he would have been dismissed anyway.[80]In my view, this is not the type of case contemplated in Polkey. The facts are not so manifestly clear and heinous, and a fair process would be utterly useless or futile. The criticism of the charges still stands. The evidence was insufficient to establish one charge. While I accept Ms Quirke was entitled to reach the conclusion, she did about the D wing allegation, she could reasonably have concluded the fact others did not see what happened in a small office meant she could not decide on the balance of probabilities that the allegation was proven. I consider that the confusion even now about whether the third charge relates to A or D wing undermines this argument.[81]I consider the example that the Appeal Tribunal gave in Polkey as instructive. Not allowing Mr Dutton to address the meeting contrary to the statutory right and in breach of the Acas code of practice and of the respondent’s own policy is unfair. it would clearly have alleviated the emotional stress on Mr Woolley. That in turn could have permitted clearer thinking, substantive challenges. Mr Dutton may have been able to make points on Mr Woolley’s behalf too that would carry weight. I come to that conclusion because of his evidence about the process and his involvement in preparing questions and expecting to be able to speak, and because it is inherently plausible that if Mr Dutton could speak, it would take some pressure off Mr Woolley. Dismissal therefore unfair[82]The equity and substantial merits are such that the process was not fair. The charges are not clear. Not permitting Mr Dutton to address the meeting was unfair. They cannot be ignored or swept away by the points the respondent has made. Therefore there was an unfair dismissal of Mr Woolley by The Secretary of State. Polkey - Chance of a fair dismissal in any event[83]I consider the following factors are relevant. Page 19 of 21 83.1. As I have noted above, 83.1.1. Mr Woolley has not set out what difference there would have been to the outcome if Ms Quirke had allowed Mr Dutton to address the disciplinary hearing, 83.1.2. If Mr Dutton could have addressed the meeting it would reduce the pressure on Mr Woolley, and it is reasonable to conclude things may have developed differently. 83.2. Whatever the confusion about the evidence, there is sufficient evidence that would enable a reasonable employer to find the D wing allegation happened as alleged, like Ms Quirke concluded. Therefore there is a significant chance she would have come to the same conclusion. I repeat my earlier comments (at paragraph 65 above and following). I think it also likely she would have dismissed him if proven. 83.3. Therefore it follows that The Secretary of State could have fairly dismissed Mr Woolley.[84]Weighing up the above, I conclude the chance The Secretary of State would have dismissed Mr Woolley if he had followed a fair procedure is 80%. The compensatory award will be adjusted accordingly. Contributory fault[85]Objectively culpable and blameworthy conduct that contributes to the dismissal requires me to consider reduction of the basic and compensatory awards. Department for Work and Pensions v Coulson UKEAT/0572/12 EAT; Employment Rights Act 1996 122(2) and 123(6).[86]I am not persuaded that Mr Woolley is guilty of objectively culpable and blameworthy conduct in relation to the D wing incident. I am not therefore making a positive finding it did not happen.[87]What concerns me about the D Wing incident is that 87.1. the witness evidence was rejected in relation to the Boar Head Hotel incident yet accepted here, 87.2. a number of people present did not see the alleged touching of LD’s leg. It is a small office. The evidence I have does not persuade me on the balance of probabilities it happened.[88]Ms Quirke was at the hearing and heard the witnesses give evidence. I did not. I look at it from a distance. If I were there, I could well have reached the same conclusion as Ms Quirke. Therefore I am not concluding it did not happen, not saying I do not believe LD and am not saying Ms Quirke was wrong in her conclusion.[89]I cannot find the third charge proven, because it is unclear what it should be.[90]One matter that does concern me is the text messages. Some are arguably overfamiliar chat between a manager and his junior. However the “jealous prick” text of 8 March 2024 is clearly inappropriate as a manager of LD and Page 20 of 21 is entirely the sort of thing that could well bring suspicion onto him. It is in reality though a relatively minor part of the case.[91]I reflect on the size of the Polkey reduction and the above. I consider I should reduce the compensatory award by 15%. I have considered whether the basic award should be reduced by a larger amount because Polkey does not affect it. I consider that justice in this case does not require a further reduction to that award to mark the culpability. Therefore I reduce the basic award by 15% too.
Conclusions
[92]The respondent unfairly dismissed the claimant.[93]There is a chance the respondent would have fairly dismissed the claimant in any event, and the claimant’s award is therefore reduced by 80% to reflect that chance.[94]The claimant was guilty of contributory fault and so the basic award and compensatory award shall be reduced by 15%.[95]There will be a further hearing to decide remedy and consequential issues. Directions will follow. Approved by the Judge