Mr M Fulton v Choice Start Ltd T/a Monkey Puzzle Glasgow Central: 8000072/2022

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000072/2022

Venue Glasgow

Hearing 19 August 2024 (continuing on 20, 21, 22 and 23 August 2024)

Between

Mr M FultonClaimant

Choice Start Limited trading asRespondent

Before

Employment Judge M Whitcombe

Date 15 January 2025

JUDGMENT

[1]In so far as various preliminary applications made by the parties entailed the making of judgments as defined by rule 1(3)(b) of the Rules of Procedure, the Tribunal unanimously finds as follows.(1) The respondent’s application that the complaint of unfair dismissal should be struck out under rule 37(1)(a) of the Rules of Procedure on the basis that it has no reasonable prospect of success is well-founded. The claimant accepts that he has less than 2 years’ service and does not rely on any of the Case No.: 8000072/2022 Page 2 exceptions listed in section 108(3) of the Employment Rights Act 1996. That complaint is therefore struck out and dismissed.

(2) The claimant’s application that the response to the complaint of unfair dismissal should be struck out under rule 37(1)(a) of the Rules of Procedure on the basis that it has no reasonable prospect of success is refused, not only because the complaint itself has been struck out, but also because the facts (if established) that the dismissing officer lacked authority to dismiss and that the claimant was an apprentice would not necessarily mean that the complaint of unfair dismissal would succeed. The respondent’s defence had a reasonable prospect of success which should have been assessed at a full hearing.

(3) The claimant’s application for an award of 100 hours of preparation time (amounting to £4,400 at the current hourly rate) following the postponement of the final hearing on 21 November 2023 is refused because:

a. the claimant has not established the necessary vexatious, abusive, disruptive or unreasonable conduct of proceedings by the respondent or its representative for the purposes of rule 76(1)(a); and

b. it has not been established that the respondent or its representative was at fault, so it would not be just for there to be an award of preparation time under rule 76(1)(c) either, even though that hearing was postponed at less than 7 days’ notice.

(4) Oral reasons for all of those unanimous judgments were given in the presence of the parties or their representatives. Case No.: 8000072/2022 Page 3

[3]The unanimous judgment of the Tribunal is as follows.(1) The claim for breach of contract was presented outside the time limit defined by article 7 of The Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994. Consequently, the Employment Tribunal has no jurisdiction to hear it. Further, the claimant was guilty of gross misconduct and the respondent was entitled to dismiss him without notice, so the claim would have failed on its merits anyway.

(2) The claimant was not less favourably treated because of sex contrary to section 13 of the Equality Act 2010 when he was issued with a final written warning on 28 April 2022. The reason for that treatment had nothing whatsoever to do with sex.

(3) The claimant was not subjected to harassment related to sex contrary to section 26 of the Equality Act 2010 when he was issued with a final written warning on 28 April 2022.

(4) The claimant was not victimised contrary to section 27 of the Equality Act 2010 when he was summarily dismissed on 29 April 2022.

(5) Consequently, none of the complaints are well-founded and they are all dismissed.

(6) Oral reasons for this judgment were given in the presence of the parties on 15 January 2025. There was no request for written reasons at the hearing.

REASONS

[1]These are the written reasons for the unanimous judgment of the Tribunal set out above, originally delivered with oral reasons on 15 January 2025. The written record of that judgment was sent to the parties by the Tribunal administration on 21 January 2025. These written reasons have been produced following the claimant’s subsequent request under rule 60(4)(b) of the Employment Tribunal Procedure Rules 2024 in an email dated 29 January 2025. The production of written reasons has been delayed slightly by the need to deal first with two separate applications made by the claimant under rule 49.

[2]In the same email of 29 January 2025 the claimant applied for a reconsideration of this judgment. That application was refused under rule 70(2) without a hearing. The reasons for that refusal are set out in the Tribunal’s letter of 31 January 2025 and are not repeated here. Brief summary

[3]The claimant was formerly employed by the respondent nursery business as a “graduate trainee in childcare” from 16 July 2020 until his dismissal for gross misconduct on 29 April 2022. The respondent employs around 24 members of staff and can take up to 122 children.

[4]On 28 April 2022 the claimant received a final written warning for an incident on 21 April 2022 when he left children in his care unattended in one room while he dealt with the needs of another child in the toilet area.

[5]Later on 28 April 2022 the claimant behaved towards his professional colleagues in a way which the respondent found wholly unacceptable, amounting to gross misconduct. He was dismissed for gross misconduct on 29 April 2022. The respondent’s case is that the very recent final written warning was part of the background but did not influence the decision to dismiss because the claimant’s conduct that afternoon was so serious that it amounted to gross misconduct on its own. The claimant argues that the final written warning formed part of the reason for dismissal.

[6]The complaints before the Tribunal arise both from the events which led to the final written warning and also from the events which led to dismissal. Procedural history

[7]This case has had a long and difficult procedural history, with many unsuccessful attempts to start and finish the final hearing. There have been many different reasons for the various postponements and adjournments but there is no need to list them. The key points in the case management history and the evolution of the issues for the final hearing can be found in the following judgments and orders:a. EJ Kearns, 18 January 2023 (case management);

b. EJ MacLean, 1 March 2023 (case management, including a detailed summary of the issues);

c. EJ Wiseman, 8 June 2023, postponement of the final hearing listed on 12-15 June 2023;

d. LO Doherty, 4 September 2023, postponement of the final hearing listed on 26-29 September 2023;

e. EJ Kearns, 21 November 2023, a summary of the issues discussed by her with the parties at the start of a final hearing on 20 November 2023. That hearing was ultimately adjourned because of the withdrawal of the respondent’s representative. EJ Kearns directed that the list of issues should filed for future reference.

f. EJ Kearns, 4 December 2023, stating that the Tribunal understood the date of the final act of alleged discrimination to have been 29 April 2022, the date of the claimant’s dismissal. The claimant did not dispute that in subsequent correspondence.

g. EJ Kearns, 7 February 2024, postponing the final hearing listed for 4- 7 March 2024.

h. EJ Whitcombe, TM McDougall and TM Grant, 19 August 2024, judgment on various preliminary issues and applications on day 1 of the final hearing. Appealed in part and subsequently rejected by the EAT (Judge Stout) under rule 3(7ZA) as “totally without merit” on 9 January 2025.

i. EJ Whitcombe, TM McDougall and TM Grant, 19 August 2024, order on various preliminary applications on day 1 of the final hearing. Also appealed in part, but apparently overlooked by the EAT and still waiting to be sifted at the time of writing.

j. EJ Whitcombe, TM McDougall and TM Grant, 21 August 2024, adjourning the part-heard final hearing and case management orders.

k. EJ Whitcombe, 7 October 2024, refusing the claimant’s application to re-start his evidence and lengthen the part-heard final hearing at a point when his evidence in chief had been completed and crossexamination had begun.

l. VP Eccles, 18 October 2024, postponing the planned resumed dates of 22 to 24 October 2024.

Issues

[8]The issues were discussed and recorded in the case management orders set out above. They were also narrowed by our own judgment on preliminary issues at the start of this hearing, which dismissed the unfair dismissal complaint for lack of continuous service. At this hearing the claimant put the case more narrowly than the case management orders and further specification had suggested. For example, he abandoned the argument that his dismissal was an act of direct sex discrimination and confined that argument to the final written warning. In his closing submissions the claimant also abandoned the argument that the final written warning was an act of victimisation, no case of that sort having been put to Natalie Dolan who made the decision. The claimant explained in submissions that he did not believe that Natalie Dolan or Leanna MacAree were guilty of victimisation and the victimisation argument was confined to dismissal. The claimant did not pursue the argument that the failure to hold a disciplinary hearing (presumably in relation to dismissal, because there plainly was a hearing prior to the final written warning) was an act of discrimination.

[9]By the end of the case, the issues we had to decide were as follows:a. Whether the claimant was dismissed in breach of contract. The respondent’s case was that the claimant was lawfully dismissed for gross misconduct. The precise nature of the breach of contract relied on by the claimant was not always clear or consistent, but the starting point was a denial of gross misconduct. Against that background, he alleged: i. that he could not be dismissed for gross misconduct because his contract was a contract of apprenticeship. ii. That the respondent was in breach of an implied contractual duty of care to ensure a safe place of work and a safe system of work. iii. The respondent was in breach of an implied duty to hold fair disciplinary procedures. iv. The person who dismissed him did not have the authority to dismiss. v. The respondent was in breach of the implied term of trust and confidence.

b. Whether the final written warning given to the claimant on 28 April 2022 amounted to: i. Direct sex discrimination, contrary to s.13 EqA 2010; ii. Harassment related to sex, contrary to s.26 EqA 2010.

c. Whether the claimant’s dismissal on 29 April 2022 amounted to Victimisation, contrary to s.27 EqA 2010.

[10]There was no complaint before us in relation to the internal appeal. This was one of the matters dealt with on 19 August 2024 (the first day of the final hearing), when we unanimously ruled at point (2) that a claim in relation to the appeal had not been identified in the claim form, the case management agenda or the case management orders and notice of EJ MacLean and/or EJ Kearns, which summarised the issues for determination at this hearing. Further, on 4 December 2023 EJ Kearns had highlighted that the Tribunal was proceeding on the basis that the final alleged act of discrimination was the dismissal on 29 April 2022. The claimant had not taken any issue with that in subsequent correspondence.

[11]We therefore invited the claimant to apply for permission to amend to add complaints in relation to the appeal, which he did. We refused permission to amend with oral reasons. It is unfortunate that the live appeal against that order only came to light after we had given the final judgment in this case. The claimant did not mention it at any point during the second portion of the final hearing or submissions and had told us that the challenge to the decisions made on 19 August 2024 was at an end.

[12]Although there was no complaint before us of a breach of the Equality Act 2010 in relation to the internal appeal, that did not mean that it could not be referred to for other purposes. As we made clear to the claimant, if something had been said or done during the appeal process which had a bearing on any of the claims before us then that is something he was free to explore. The claimant therefore marked up the passages in the appeal notes which he considered relevant and we took them into account. He also cross-examined on them. Additional support given to the claimant

[13]The claimant represented himself but this was not his first experience of the Employment Tribunal, having recently represented his partner in an unrelated case. He carried out his own online legal research.

[14]The claimant was given considerable support during the hearing, though he did not often see it as support. To ensure that the claimant was not disadvantaged by his lack of legal representation he was given explanations of relevant legal principles. Those explanations were repeated as and when necessary or requested. Sometimes the claimant did not accept those explanations or interrupted them even though he had asked for them.

[15]When the claimant said that he felt unwell during the hearing, he was offered a break, which he took. The hearing was also eventually adjourned by reason of the claimant’s ill health, and then postponed again by the Vice President, despite her noting a lack of satisfactory medical evidence complying with the 2014 Presidential Guidance on postponements.

[16]Further examples of additional support are set out below in the section headed “The management of evidence”.

Evidence

[17]We were provided with documentary evidence as follows:a. a joint combined file of documents running to 265 pages;

b. additional documents submitted by the claimant in January 2025 running to 49 pages (annotated appeal notes showing the passages which the claimant considered important to the issues).

[18]All the witnesses gave oral evidence in chief on oath or affirmation without the use of written witness statements. They were all cross-examined. We heard from the following witnesses in the following order:a. the claimant.

b. Natalie Dolan, the respondent’s Head of Service, the most senior person in the nursery with 17 years of experience in the nursery sector.

c. Leeanne MacAree, the respondent’s Assistant Manager at the relevant time with 9 years of experience in the nursery sector. She was effectively Natalie Dolan’s deputy and staff would report to her when Natalie Dolan was absent. The management of evidence

[19]With the agreement of the respondent’s counsel, the claimant was allowed to take notes with him to the witness table. They served as a prompt and the claimant was encouraged to use them to check that he had covered everything that he wanted to cover. The claimant confirmed twice during his evidence in chief, and once again after the equivalent of his own reexamination, that he had given all the evidence that he wanted to give. We encouraged him to deal with the contractual terms relied on, because he had not initially dealt with them at all.

[20]From time to time the claimant was prompted to ensure that he had covered the relevant issues and was reminded of the issues summarised in the various relevant case management orders. The claimant was also asked to explain lines of cross-examination which had no obvious connection to the list of issues so that their relevance would become clear, or he could be asked to move onto more relevant ground. The claimant was also asked to slow down, and to clarify his evidence on important issues such as the things said and done on 28 April 2024, because his chronology was sometimes difficult to follow. We encouraged the claimant to follow a chronological order of events where possible. The claimant sometimes indicated that he did not appreciate those interventions and regarded them as an unwelcome interference with his evidence.

[21]On 7 October 2024, while the hearing was adjourned, EJ Whitcombe refused the claimant’s application to re-start his evidence in chief and to lengthen the part-heard final hearing at a point when his evidence in chief had been completed and cross-examination had begun.

[22]The hearing was timetabled in accordance with rule 45 of the 2013 Rules of Procedure, which were the procedural rules in force when the final hearing began. The timetable was constructed in a way intended to ensure that both sides had a fair share of the time available. The timetable gave the claimant all the time that he had requested, whereas the respondent was required to reduce the time taken in cross-examination of the claimant and the evidence in chief of its own witnesses. All three members of the Tribunal thought that the respondent’s initial requests were excessive, and they would also have resulted in the hearing exceeding its allocation of time by some margin. The claimant later criticised the timetable as “rushed”, even though it had given him all the time that he had asked for.

[23]As the case developed, the respondent decided not to call all the witnesses it had originally intended to call. That freed up some more time. We therefore allowed the claimant to exceed his time allocation significantly when crossexamining the respondent’s witnesses. However, that came at the price of allowing many questions of doubtful relevance or appropriateness which we would not normally have allowed. The claimant had made no secret of his displeasure at our attempts to guide his evidence in chief, so we made a policy decision to allow his questions even if they seemed irrelevant, inappropriate or repetitive. Subject only to the most generous limits, the claimant was free to cross-examine as he wished. Eventually, the respondent made some well-founded objections to some questions. Ultimately, at a point when the claimant had been cross-examining Leeanne MacAree for about 2 hours and 20 minutes, compared to a requested allocation of 60 minutes, we felt it necessary to intervene. We asked the claimant how much longer he planned to take and initially he declined to say, before eventually replying that he would take as long as it took. We decided to limit cross-examination to 30 further minutes at that point. The claimant’s reaction was to say that he did not see any point in continuing since he was going to lose anyway, and that the hearing was not balanced. We did not share that perception. If anything, the respondent might have argued that we had allowed the claimant excessive latitude.

[24]In his closing submissions the claimant wrongly asserted that we had prevented him from adducing evidence in relation to the appeal. However, we had the claimant’s marked up version of the appeal notes in our possession, we had read it, and the Employment Judge had twice arranged for correspondence to be sent to the claimant chasing the production of that evidence. The claimant had also cross-examined the respondent’s witnesses on the appeal notes. Credibility of witnesses

[25]The respondent’s witnesses both gave their evidence in a calm, straightforward and reasonable manner. Their answers were coherent and appeared broadly consistent with the documents prepared at the time. They engaged thoughtfully with the questions asked of them even if they were long or difficult to understand. We detected no hint of exaggeration, evasion or the pursuit of an agenda. We were impressed by the respondent’s witnesses and thought that they were doing their honest best to help us. Not only did we gain the firm impression that they were being truthful, we also thought that their recollections were reliable.

[26]In contrast, the claimant was not an impressive witness and was far less credible. He was regularly argumentative when cross-examined. For example, saying ‘do you want me to answer?’ in a combative tone when a question was quite properly asked for a second time, and saying repeatedly “Skye didn’t get one” (meaning a disciplinary hearing) when Mr Cunningham asked a series of relevant questions about the possible reason for a difference in the treatment of Skye Main and the claimant. It amounted to a somewhat belligerent refusal to engage with very relevant questions. Sometimes, the claimant repeatedly interrupted cross-examination questions which irritated him. Sometimes, instead of answering straightforward questions directly the claimant was evasive, asking a question back or deflecting the question and shifting the subject matter to a different issue. That happened sufficiently often in cross-examination that we concluded that it was a deliberate attempt to deflect questions when the claimant perceived that the answer might harm his case.

[27]The claimant also made some dramatic but unfounded allegations, for example, suggesting that the respondent’s counsel was lying when he was merely asking appropriate questions in an appropriate manner and putting the respondent’s case. The claimant also suggested at one point that his written contractual terms might have been altered after he had agreed to them, even though there was absolutely no evidence to support that.

[28]Perhaps most importantly of all, the claimant contradicted himself on oath on an important issue. During cross-examination in January 2025 the claimant firmly denied ever having said “fuck off” to a particular colleague, but in his own account of the same incident in his evidence in chief in August 2024 the claimant had said very clearly “I told him to fuck off”. When this was pointed out to the claimant he indicated that his evidence in chief in August 2024 had been correct. We do not accept that the claimant’s memory of such an important detail is likely to have faded significantly over the course of a few months. We think it is more likely that the claimant was changing his evidence to suit his objectives in the litigation.

[29]Overall, we all formed the impression that the claimant was reluctant to engage with questions on potentially damaging points and that he was not giving us the whole unvarnished truth as he saw it. Unfortunately, we did not feel we could trust the evidence that the claimant gave on oath. Therefore, where there was a conflict between the claimant’s evidence and that of the respondent, we preferred the latter. Factual findings

[30]Where facts were disputed we made our findings on the ‘balance of probabilities’, in other words the ‘more likely than not’ basis applicable to almost all civil litigation. If a fact appeared to us more likely to be true than false, then for the purposes of our decision it was treated as being true. If a fact appeared to us more likely to be false than true, then for the purposes of our decision it was treated as being false. Nothing must be proved beyond reasonable doubt in an Employment Tribunal, and we do not have to be sure of facts in order to base our decision upon them. Contractual terms

[31]The claimant’s “Contract for Graduate Trainee in Childcare” was dated 27 August 2020. It stated that it incorporated the written statement of employment particulars required by statute. The claimant signed it, indicating his agreement to the terms.

[32]The agreement was for a fixed term ending on 30 September 2022. There was expressly no guarantee of continued employment after that (clause 2), a point which would affect the value of any claim for breach of a contract of apprenticeship. Employment commenced on 16 July 2020 (clause 3).

[33]The disciplinary procedure was not itself contractual (clause 21) but was set out in the “Staff Handbook and Policies”. At first sight that position appears inconsistent with clause 30 which stated that the Staff Handbook and Policies did form part of the contract of employment. However, that general incorporation of the Staff Handbook and Polices by reference must be read subject to the clear and specific exclusion in clause 21 of the disciplinary policy contained within the Handbook. On that basis, we find that the disciplinary procedure did not have contractual effect.

[34]Clause 29 dealt with “Termination of Employment”. The claimant was entitled to 1 week’s notice of termination when he had between 1 month and 2 years’ continuous service, rising after 2 years’ continuous service to 1 week for each year of continuous employment up to a maximum of 12.

[35]Importantly, a separate paragraph within clause 29 stated, “In the event that your employment with the company is terminated for gross misconduct the notice detailed above will not apply.” Disciplinary Policy

[36]The disciplinary policy also stated explicitly that it did not form part of any employee’s contract of employment. One of the “Objectives and Guiding Principles” was that “The employee will not normally be dismissed for a first act of misconduct, unless we decide that it amounts to gross misconduct or the employee has not yet completed their probationary period.” The possibility of dismissal for a first act of gross misconduct was therefore envisaged in the disciplinary policy.

[37]Final Written Warnings could be authorised by the Head of Service or a Director. They were usually appropriate for misconduct where there was already an active written warning on the employee record, or misconduct that the respondent considered sufficiently serious to warrant a final written warning even though there were no active warnings on the employee record.

[38]Dismissal could be authorised by the Head of Service, Directors or Owner. It would usually only be appropriate for misconduct during the probationary period, misconduct when there was an active final written warning on record, or “any gross misconduct regardless of whether there are active warnings on the employee record. Gross misconduct will usually result in immediate dismissal without notice or payment in lieu of notice (summary dismissal).” That policy statement reflects the contractual power set out in clause 29 of the contract.

[39]Employees (such as the claimant) with less than 2 years’ service were not entitled to a hearing in gross misconduct cases, but did have a right of appeal.

[40]The disciplinary procedure included the customary non-exhaustive list of examples of gross misconduct. It included “Obscene language or other offensive behaviour”. The incident on 21 April 2022

[41]The claimant was working in a room with exits to a garden, another room, a kitchen and a cloakroom. He was washing bottles near the door to the garden when one of the girls approached him to say that she needed the toilet. The claimant stopped what he was doing and took her through to the toilet. No other children were present in the room at that stage. The girl had an accident in the toilet and needed other clothes. The claimant went back to the main room to get them. The claimant then saw that 2 or 3 children were playing in the art area within the room. The girl also needed a change of footwear, so the claimant went to get her wellies from the cloakroom. While the claimant was doing that another member of staff called Skye Main came out of the kitchen and saw children playing in the room with no staff present. She went into the garden with Shannon Carey (Apprentice) to ask Shannon Donnelly why children had been left in the room by themselves. Shannon Donnelly replied that the claimant was in the room and shouted to him, but there was no reply. A few minutes later they heard the claimant in the toilets changing a child and Skye Main told Shannon Donnelly to stay in the room until the claimant returned.

[42]On 27 April 2022 the claimant was invited to a formal disciplinary meeting scheduled for 28 April 2022. The meeting would be chaired by Natalie Dolan, Head of Service, with notes taken by Leeanne MacAree. In connection with that hearing, the respondent took statements from the claimant, Shannon Duffy who received a report of the incident, Skye Main (Practitioner) and Shannon Carey (Apprentice).

[43]At the disciplinary meeting on 28 April 2022 the claimant blamed Skye Main for the incident and reasoned that her presence made it unnecessary for him to have any further discussion with Shannon Donnelly. The claimant also disputed that the children were ever left on their own without a supervising adult. We were not shown the CCTV recording of events on 21 April 2022 and were told that it is no longer available. However, we accept Natalie Dolan’s firm and clear evidence that it showed that children had indeed been left to play without a supervising adult present, just as Skye Main had suggested. The hearing notes show that Natalie Dolan told the claimant that children had been alone without a supervising adult for about 42 seconds. The notes also show the claimant agreeing that at one point that the CCTV showed the children unsupervised.

[44]Although the claimant argued at this hearing that the CCTV would have exonerated him, we do not accept that. We have already given reasons above for doubting the claimant’s credibility, and we prefer the evidence of Natalie Dolan, supported by the disciplinary notes, which suggests that the CCTV showed unsupervised children.

[45]Having questioned the claimant further during the disciplinary meeting on 28 April 2022, Natalie Dolan’s view was that the claimant was at fault. He had not established a clear understanding either with Skye Main or Shannon Donnelly that they would remain in the room to supervise the children present while he was away. He had not reached any agreement with them that they would supervise in his absence. Skye Main was on her lunch break and had been walking through the room solely to use the kitchen, she was not planned cover or offering to cover and she had not taken control of the room. The claimant had not asked her to stay in the room or to cover his absence. Skye Main was not part of the staff team in the room. Shannon Donnelly had been working in the garden and had only entered the room to get a tissue to blow her nose. The claimant had not asked her to wait and she had not realised that the claimant planned to leave the room.

[46]By the end of the disciplinary meeting the claimant accepted, with hindsight, that he should have communicated more effectively with Skye Main and/or Shannon Donnelly to see if they could wait, but he was more equivocal about accepting responsibility for the children having been unsupervised in the room. However, the claimant told us that he did not really believe that and was simply telling the respondent what he thought the respondent wanted to hear. The claimant argued that even though he was paid to be in the room, Skye Main was responsible for the failure rather than him because she had been the last person present. Final written warning 28 April 2022

[47]The claimant was issued with a final written warning for serious misconduct which would have remained live for 24 months. The reasoning was that:a. the claimant had committed misconduct and a breach of the health and safety policy by leaving children in his care unsupervised;

b. it was also a breach of Care Inspectorate Requirements and SSSC Codes of Practice;

c. the claimant had failed to communicate to colleagues that support was required;

d. the claimant was unwilling to recognise the severity of the incident or to take “accountability” and to uphold the respondent’s policies.

[48]The final written warning also drew the claimant’s attention to his right of appeal to Brian Doherty or Della Martin.

[49]The claimant accepted in cross-examination that the safety of children was paramount, and that leaving children unsupervised would be a safety and welfare issue.

[50]In cross-examination, Natalie Dolan explained why she did not think that a less severe penalty such as a written warning would have been sufficient. She was concerned that the claimant showed little remorse and little inclination to take responsibility, so she was also concerned that he would not learn from the incident without the serious sanction of a final written warning. Incident on 28 April 2022 – the claimant’s account

[51]The claimant’s own account of what happened next is a useful starting point, although we find that further details must be added to tell the whole story.

[52]The claimant explained matters in the following way. After receiving the final written warning he went to the toilet and cried for about 10-15 minutes at around 1600. He was due to work until 1830. The children had all gone home by about 1810 or 1815. By 1830 the claimant was very emotional. During the day the register, an extremely important document, had been misplaced. It was found in the art area shortly before 1830. The claimant wanted to go home. There were problems with the electronic version of the register, which a colleague called Rafaela Angeli said staff would need to solve. The claimant resented being required to stay any later than 1830, and thought it was the fourth time in recent days that Rafaela Angeli had required him to stay later than 1830. About 4 or 5 members of staff were present. The claimant said that he needed to go and would see his colleagues on Monday. Bronwyn said that it was the claimant’s room, the claimant’s register and his responsibility to complete it. The claimant said, “why is it just me, there are two other staff members right next to you, it was the same on Monday when you pulled me up, and the same on Tuesday when you pulled me up.”

[53]The claimant admitted to shouting and swearing, explaining that the conversation then went as follows.a. I said “sorry guys, I do need to leave, I’ll see yous on Monday” and started walking towards the exit.

b. Then Bronwyn said, “That’s not very fair Mark, it is your responsibility, your room and your register”.

c. I then replied, “It’s not just my room, there are two more staff members right next to you, and why is it only me that you are speaking to. It was the same on Monday when Nicola only pulled me up and on Tuesday when you only pulled me up, it is the same again, why is it always me, why is it just me?”

d. I then asked, “Did you speak to them about the dishes?” Bronwyn said nothing.

e. Bronwyn then reiterated something to the effect that it was my responsibility. That’s when I got overly emotional.

f. I said, “Fuck this, I am out of here, this place is a joke”.

g. Bronwyn then said, “That’s not very mature Mark”.

h. I scoffed a little bit and said, “Fuck off you numpty”.

i. Then another colleague Robert, came. He said, “What’s gone on here?” I was trying to get my stuff together in the cloakroom. I said, “let me out, let me fucking out”. He said, “I am going to let you out but you need to calm down first”.

j. In the attachment to the claim form, the claimant stated that he then said, “Why is it always me? It’s a fucking pisstake.”

k. I believe Robert said something like, “you can’t talk like that”.

l. I told him to “fuck off”, he said something back to me, like I was acting like a child. With hindsight I probably do agree. He walked me out to the door them that was it.

[54]In cross-examination the claimant accepted that he had used obscene language and that he had engaged in offensive behaviour. Those are examples of gross misconduct set out in the disciplinary procedure. Additional findings regarding the incident on 28 April 2022

[55]We add the following facts to those admitted by the claimant.

[56]The claimant initially accepted in cross-examination that he had said to Robert, “what you gonna do about it” but avoided answering the question whether that was a threatening thing to say, claiming instead to have felt threatened himself. Later in cross-examination the claimant changed his evidence and denied using that phrase. We find it likely that the claimant did say “what you gonna do about it?”, as Robert Bell had claimed. The change in the claimant’s story was not convincing and we have already set out the reasons why we found that he was not a credible witness overall.

[57]The claimant denied punching the door on his way to the cloakroom and said that he only palmed it open, but we do not accept that. We prefer the evidence contained in the statements taken from Natalie Dolan (recording the version of events the claimant gave to her shortly after the incident) and Robert Bell (an eye-witness). Additionally, Leeanne MacAree had seen the CCTV footage of events on 28 April 2022, and vividly described having seen the claimant’s closed fist punch the door as he went past. Subsequent disciplinary action

[58]Natalie Dolan was not scheduled to work on 29 April 2022. The incident was investigated by Leeanne MacAree, acting on Natalie Dolan’s authority in Natalie Dolan’s absence. The decision to dismiss was ultimately Natalie Dolan’s, although the correspondence was sent out in Leeanne MacAree’s name. Both thought that the claimant’s conduct had involved quite a high level of aggression.

[59]The statements produced by or taken from Natalie Dolan, Robert Bell (Afterschool practitioner), Rafaela Angeli (Childcare Practitioner) and Skye Main (Practitioner) were not absolutely consistent in every detail but a consistent core account certainly emerged. The claimant had not been asked to give a statement, but he had given an account of the incident to Natalie Dolan by telephone and it was reflected in her statement. There was no formal disciplinary hearing, a possibility envisaged by the respondent’s disciplinary procedure in cases where the employee has less than 2 years’ service.

[60]Leanne MacAree signed the letter which dismissed the claimant for gross misconduct. While she used the words, “following your recent Final Warning…” and the email said, “in addition to your recent Final Warning”, we find that this was a simple and correct summary of the chronology, rather than an indication that the final written warning had played a part in the decision to dismiss. The letter is clear: the claimant’s employment was being terminated with immediate effect for “verbal communications/verbal harassment with Bronwyn & Robert which was witnessed by Skye, Joseph and Rafaela, upon review this constitutes Gross Misconduct.” We also accept the oral evidence of Natalie Dolan and Leanne MacAree that the decision to dismiss was based solely on the claimant’s behaviour on 28 April 2022. Legal principles Jurisdictional time limits

Legal principles

[61]The time limit for complaints of breach of contract is set out in article 7 of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 which, so far as relevant, provides as follows: Subject to article 8B, an employment tribunal shall not entertain a complaint in respect of an employee’s contract claim unless it is presented-(a) within the period of three months beginning with the effective date of termination of the contract giving rise to the claim, or

(b) [not relevant in this case] (ba) [not relevant in this case]

(c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable.

[62]The key phrase “reasonably practicable” has been explained as meaning “reasonably feasible” (Palmer v Southend-on-Sea Borough Council

[1984] ICR 372

, CA), though that may be no easier to apply. The test is not concerned solely with physical impracticability (Lowri Beck Services Ltd v Brophy

[2019] EWCA Civ 2490

, CA), but it entails more than merely acting reasonably (Stratford on Avon District Council v Hughes (

EAT/0163/20

)). In the latter case the claimant had not received the necessary EC certificate in time, but the correct question for the Tribunal was whether it would have been reasonably practicable to obtain the EC certificate earlier, and not whether the claimant acted reasonably in waiting until after the expiry of the primary limitation period before contacting ACAS.

[63]Article 8B implements the effect of ACAS Early Conciliation on time limits. Rather than set it out in full, we will provide a summary of its effect which is intended to be more readable. For the purposes of jurisdictional time limits the period between the day on which the claimant contacts ACAS (“Day A”) and the day on which the claimant receives the certificate (“Day B”) is not counted. Further, if the time limit would otherwise expire in the period between Day A and one month after Day B the time limit expires instead at the end of that period.

[64]The time limit applicable to complaints brought under the Equality Act 2010 is set out in section 123 of that Act which, so far as relevant, provides as follows:(1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.

(2) [Not relevant in this case]

(3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.

(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[65]Some factors of potential relevance to the test of justice and equity in section 123(1)(b) of the Equality Act 2010 are set out in British Coal Corporation v Keeble

[1997] IRLR 336

, EAT, though that is certainly not a checklist (Southwark LBC v Afolabi

[2003] ICR 800

, CA) and not all of them need to be considered in every case (Department of Constitutional Affairs v Jones

[2008] IRLR 128

, CA). We must consider the prejudice to each party and all the circumstances of the case, including the length of and the reasons for the delay, the extent to which the cogency of the evidence is likely to be affected by the delay, the extent to which the respondent has complied with requests for information, the promptness with which the claimant acted once he knew of the facts giving rise to the claim and the steps taken by him to obtain appropriate advice.

[66]Section 140B implements the effect of ACAS Early Conciliation on time limits, and its effect is the same as that already set out above. Implied terms

[67]The law assumes that the parties to a contract of employment intend that contract to contain certain implied terms because they are necessary features of the relationship. There can be some overlap between them. The following are of potential relevance to this case.

[68]The most well-known, and arguably the most potent and flexible, is the implied term of trust and confidence as set out in Malik v BCCI

[1997] ICR 606

, HL: both parties to the contract are subject to an implied obligation that they will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between them. Any breach of that term is repudiatory. However, it is important to note that this implied term does not extend to include the manner of an employee’s dismissal. In Johnson v Unisys Ltd

[2001] ICR 480

the House of Lords reasoned that the implied term of trust and confidence was concerned only with the maintenance of the relationship between the employer and the employee, and not with the termination of that relationship. That said, events preceding dismissal, including disciplinary procedures themselves, may still form the basis of a breach of the implied term of trust and confidence (Eastwood v Magnox Electric plc

[2004] ICR 1064

, HL).

[69]There is also an implied and non-delegable contractual duty (mirrored by a duty in delict or tort) that the employer will take reasonable care and reasonable steps to ensure the safety of its employees while at work. That can also be expressed as a duty to ensure a safe system of work. Similarly, employers are under an implied duty to provide and monitor so far as reasonably practicable a working environment which is reasonably suitable for the performance of the employee’s contractual duties (Waltons and Morse v Dorrington

[1997] IRLR 488

, EAT).

[70]It is an implied term of contracts of employment that disciplinary processes will be conducted fairly and without unjustified delay (Lim v Royal Wolverhampton Hospitals NHS Trust

[2011] EWHC 2178

, QBD, Chakrabarty v National Clinical Assessment Service [2014] EWHC, 2735, QBD, and the non-binding observations of Singh and Underhill LJJ in Burn v Alder Hay Children’s NHS Foundation Trust

[2022] ICR 492

, CA).

[71]A term cannot be implied into a contract if it contradicts an express term, whether that results from direct linguistic inconsistency or substantive inconsistency (Marks & Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd

[2015] UKSC 72

, and Chitty on Contracts Vol 1 17- 019). It might be possible to finesse an implied term to make it consistent with an express term, though the existence of an express term on a particular subject makes the co-existence of a further implied term on the same subject less likely. Compensation for breach of contract

[72]The starting point for calculating damages for wrongful dismissal is the amount of money the employee would have earned during their notice period or until the expiry of a fixed term (Addis v Gramophone Co Ltd

[1909] AC 488

, HL). It is only possible to recover compensation for losses extending beyond the notice period if the employee’s loss results from a breach of contract by the employer which is not the wrongful dismissal itself (Johnson v Unisys Ltd

[2001] ICR 480

, HL). Apprenticeship

[73]While true contracts of apprenticeship cannot normally be terminated prior to the expiry of their fixed term, there is an exception for repudiatory misconduct by the employee (Wallace v CA Roofing Services Ltd

[1996] IRLR 435

, QBD). That should not be surprising, because the concept of a repudiatory breach is part of the general law of contract. It is not a special feature of employment law or the common law of apprenticeship. One example of its application to apprenticeship is the very old case of Learoyd v Brook

[1891] 1 QB 431

, in which the apprentice’s dishonesty had made it impossible to teach him the trade. Discrimination - Burden of Proof

[74]The burden of proof in proceedings relating to a contravention of the Equality Act 2010 is governed by section 136 of that Act. The correct approach is set out in section 136(2) and (3). References to “the court” are defined so as to include an employment tribunal. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[75]The Court of Appeal has repeatedly stressed that judicial guidance on the burden of proof is no more than guidance and that it is no substitute for the statutory language.

[76]We have applied the well-known guidance given by the Court of Appeal in Igen Ltd v Wong

[2005] ICR 931

(sometimes referred to as “the revised Barton guidance”), which although concerned with predecessor legislation remains good law. It was approved by the Supreme Court in Hewage v Grampian Health Board

[2012] ICR 1054

. Ayodele v Citylink Ltd

[2018] ICR 748

, CA confirmed that differences in the wording of the Equality Act 2010 have not changed the test or undermined the guidance in Igen Ltd v Wong.

[77]However, we can curtail the discussion of those authorities because of the conclusion we ultimately reached. The Supreme Court in Hewage (above) observed that it was important not to make too much of the role of the burden of proof provisions. They required careful attention where there was room for doubt as to the facts necessary to establish discrimination, but they have nothing to offer where the tribunal can make positive findings on the evidence one way or the other. Direct Discrimination

[78]Section 13 of the Equality Act 2010 defines direct discrimination as follows: a person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[79]By virtue of section 23(1) of the Equality Act 2010 when carrying out that comparison there must be “no material difference” between the circumstances relating to each case.

[80]In Shamoon v Chief Constable of the RUC

[2003] UKHL 11

at paragraphs 8 and 11 Lord Nicholls encouraged Employment Tribunals to concentrate on the “reason why” question when considering a complaint of direct discrimination. That is often less complicated than identifying a comparator whose circumstances are materially the same and almost invariably the answer to it will determine the claim. Lord Nicholls framed the questions as “why did the alleged discriminator act as he did? What, consciously or unconsciously, was the alleged discriminator’s reason?”. That is a question of fact.

[81]It is an elementary feature of direct discrimination law that discrimination may be subconscious as well as conscious (Kohli v Department for International Trade

[2023] EAT 82

). Harassment

[82]The definition is contained in section 26 of the Equality Act 2010.(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i)violating B's dignity, or (ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2) A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b).

(3) A also harasses B if— (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b) the conduct has the purpose or effect referred to in subsection (1)(b), and (c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

(5) The relevant protected characteristics are—

• age;

• disability;

• gender reassignment;

• race;

• religion or belief;

• sex;

• sexual orientation.

[83]Whether conduct is unwanted is assessed from the employee’s subjective point of view. Paragraph 7.8 of the EHRC Code of Practice suggests that “unwanted” includes “unwelcome” and “uninvited”.

[84]In Richmond Pharmacology v Dhaliwal

[2009] ICR 724

EAT, Underhill P suggested that it would be good practice to address separately the unwanted conduct, the proscribed purpose or effect, and whether it related to a relevant protected characteristic.

[85]In the same case, Underhill P said in relation to the proscribed purposes or effects, “Not every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended.”

[86]Similarly, Elias LJ said in Grant v HM Land Registry

[2011] EWCA Civ 769

that the words “violating dignity” and “intimidating, hostile, degrading, humiliating, offensive” were significant words and Tribunals should not cheapen their significance. They were an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.

[87]Those remarks were endorsed by Langstaff P in Betsi Cadwaladr UHB v Hughes and others (

UKEAT/0179/13/JOJ

). He added that the strength of the words “violating” and “intimidating” etc. was sometimes overlooked. They all looked for effects which were serious and marked, and not those which were, though real, truly of lesser consequence. Victimisation

[88]The definition is in section 27 of the Equality Act 2010:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

(4) This section applies only where the person subjected to a detriment is an individual.

(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.

[89]Effectively there is a three-stage test, as outlined in Derbyshire & ors v St Helens Metropolitan Borough Council and ors

[2007] ICR 841

, HL and Chief Constable of West Yorkshire Police v Khan

[2001] ICR 1065

, HL, with some updating to reflect the differences between the wording of the Equality Act 2010 and its predecessor legislation.a. Did the alleged victimisation arise in any of the prohibited circumstances covered by the Act?

b. If so, did the employer subject the claimant to a detriment?

c. If so, was the claimant subjected to that detriment because of having done a protected act, or because the employer believed that the claimant had done, or might do, a protected act.

[90]For these purposes, “detriment” means something that a reasonable person would or might think put them at a disadvantage (Shamoon v Chief Constable of the RUC

[2003] UKHL 11

, MOD v Jeremiah

[1980] ICR 13

). Submissions

[91]The parties made their submissions primarily in writing. Extra time was allowed for them to prepare those submissions, and they were exchanged in advance. The Tribunal pre-read the written submissions before the parties made their supplementary oral submissions. Little useful purpose would be served by setting them out in full here. We will deal with the key points while setting out our reasoning and conclusions. Reasoning and conclusions Jurisdictional time limits (a) The complaint of breach of contract

[92]It is common ground that the effective date of termination was 29 April 2022. The time limit for a contractual claim started to run on that date. ACAS EC notification took place on 8 July 2022 and the certificate was issued on 18 August 2022. That means that 18 September 2022 was the last date on which a complaint could have been presented within time.

[93]The Tribunal received an ET1 from the claimant on 18 September 2022, but it was properly rejected by the administration and Legal Officer Demir on 22 September 2022 because the name of the respondent on the ET1 (“Monkey Puzzle Day Nurseries”) did not match the name of the respondent on the EC certificate (“Choice Start Limited, Monkey Puzzle Day Nurseries”). The claimant applied for reconsideration of that decision on 22 September 2022 attaching an altered ET1 which corrected the original defect. That came to EJ Whitcombe acting as the Glasgow Duty Judge and he allowed the reconsideration with effect from the date on which the defect was corrected, 22 September 2022. The claimant did not appeal the decisions to reject his claim, or to accept it on reconsideration with effect from 22 September 2022. The claim was therefore deemed received on 22 September 2022, 4 days out of time.

[94]The claimant has failed to persuade us that it was not reasonably practicable to have presented the complaint within the time limit defined by article 7(c). He presented a defective ET1 just within time, and it was well within the limits of reasonable practicability to have presented an ET1 without the relevant defect on or before the same date. A claimant who waits until the last day of a limitation period takes the risk that the time taken up by rejection and the need to correct a defect causes them to miss the jurisdictional time limit. Any confusion on the claimant’s part regarding the correct identity of the respondent was irrelevant, because the name of the respondent on the ET1 does not have to be correct, it merely has to be the same as that on the ACAS certificate. The procedural requirements are fairly minimal. It is common for claimants to make a mistake regarding the respondent’s name at the start of the process, but their claim will be accepted if the mistaken name of the respondent on the ET1 is consistent with name of the respondent on the ACAS Certificate. Matters are then corrected by way of subsequent amendment of the ET1. We find that it was reasonably practicable for the claimant to have filed an ET1 on which the respondent’s name matched that on the ACAS certificate on or before 18 September 2022.

[95]The complaint of breach of contract was therefore presented outside the time limit defined by article 7 of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 and is dismissed because we have no jurisdiction to hear it. Additionally, it would have failed on its merits anyway, for the reasons set out below. (b) Time limit for complaints brought under s.120 of the Equality Act 2010

[96]We reach a different conclusion in relation to the jurisdictional time limit for the complaints brought under the Equality Act 2010 because the test is more flexible. For complaints about the final written warning, time began to run on 28 April 2022 and for complaints about dismissal time began to run on 29 April 2022. It follows that those complaints were presented 4 or 5 days outside the primary time limit, allowing for the extension generated by ACAS Early Conciliation (see above).

[97]The most important discretionary factors are as follows. The delay was very small and there is no suggestion that it was deliberate or that it secured the claimant any tactical advantage. We are satisfied that it resulted from a genuine error on his part. The respondent has not identified any forensic or other prejudice to its position resulting from that delay, nor is it likely that the cogency of any evidence has been adversely affected by a delay of 4 or 5 days. A fair trial of the merits remains entirely possible. For those reasons, we find that although the claim form was received after the period defined by section 123(1)(a) of the Equality Act 2010, it was nevertheless presented within a just and equitable other period for the purposes of section 123(1)(b). We therefore have jurisdiction to hear it on its merits. Breach of contract - merits

[98]For the reasons already set out above, we have concluded that the Tribunal has no jurisdiction to hear this complaint. However, it would have failed on its merits anyway, for the following reasons.

[99]Clause 29 of the claimant’s contract gave the respondent the right to terminate without notice for gross misconduct. Had it been necessary, then we would also have found that a contract of apprenticeship could be terminated by the employer for a fundamental breach by the claimant as a matter of contractual first principles, regardless of express terms. We note in passing that the maximum value of a wrongful dismissal claim for breach of contract would appear to have been 1 week’s pay given the claimant’s length of service and the terms relating to notice entitlement. Even if that were not correct, the fixed term would have expired 5 months after dismissal.

[100]We are satisfied that the claimant was guilty of gross misconduct, giving the respondent the right to terminate the contract without notice. Assessed objectively, the claimant’s conduct on 28 April 2022 reached the level of gross misconduct and fell fairly within the example of “obscene language and offensive behaviour” set out in the Disciplinary Policy.

[101]We would have reached that conclusion even on the claimant’s own version of events. Even on the claimant’s account, we consider that his behaviour was inappropriate, disrespectful, offensive, abusive, hostile and aggressive. We do not think that the mitigating factors put forward by the claimant in any way justify that behaviour or reduce its seriousness. The claimant’s belief that he had been persecuted, both in relation to the final written warning and the need to complete the register before leaving, did not justify or reduce the seriousness of the abuse that he directed at colleagues, who had done nothing to deserve that treatment. The same can be said of the fact that the claimant had previously been reprimanded by Bronwyn Coyne about some dishes or allegedly intimidated by Rafaela Angeli. Even if established by credible evidence, those unconnected events were no mitigation at all.

[102]In addition to the claimant’s own account we have found that the claimant punched a door, making the incident more serious still. That is violent behaviour for which there was no justification. The comment “what you gonna do about it” to the co-worker Robert was a threatening remark as well as a truculent one. Those additional details only strengthen our conclusion that the claimant’s misconduct reached the level of gross misconduct.

[103]The combination of express contractual terms and the claimant’s behaviour fully entitled the respondent to terminate the contract without notice. Had we not dismissed that complaint because it fell outside our jurisdiction then we would have dismissed it on its merits.

[104]In those circumstances we will deal very shortly with the other contractual arguments, because in our judgment the respondent was fully entitled to dismiss summarily.a. We find no breach on the respondent’s part of the implied term of trust and confidence. None was clearly identified in submissions. In any event, the scope of that implied term does not include dismissal.

b. There was no breach of the respondent’s implied contractual duties to provide a safe place and system of work. They were safe and it has not been demonstrated that the respondent failed to take reasonable care in that regard. The claimant did not pursue this argument in his closing submissions, unless it is what he meant by a passing reference to “duty of care”.

c. Natalie Dolan decided to dismiss the claimant. She had the authority to do so. The correspondence bore Leanne MacAree’s name because she was Natalie Dolan’s deputy on non-working days and had been asked to take charge of the investigation. There was no breach of contract in this respect. In any event, it caused no loss because Natalie Dolan could and would have done the same thing.

d. The respondent was not in breach of the implied duty to conduct disciplinary procedures fairly. Fairness is inevitably informed by the employer’s disciplinary procedures, whether or not those procedures are also contractual. The respondent’s action was consistent with its procedures. In particular, an employee with less than 2 years’ service was not entitled to a disciplinary hearing in a gross misconduct case, so we are unable to regard the failure to hold a disciplinary hearing to investigate gross misconduct as a breach of the implied term relied on by the claimant. If the claimant’s argument were correct, then employees with insufficient service to claim unfair dismissal would nevertheless have similar expectations of procedural fairness as a matter of contract, whatever the express terms or disciplinary procedure said. The final written warning – direct sex discrimination and harassment

[105]Having considered the evidence, we decided that this was a “Hewage” case, in which the burden of proof had little role to play. On the evidence, we can make firm and positive findings that sex had nothing whatsoever to do with the claimant’s treatment. It was not less favourable treatment because of sex for the purposes of section 13 of the Equality Act 2010 (direct discrimination), nor was it related to sex for the purposes of section 26 (harassment). Direct sex discrimination

[106]Quite simply, the claimant was culpable and the comparators Skye Main and Shannon Donnelly were not. That fully explains the less favourable treatment of the claimant when compared to the treatment of the comparators. The claimant was in charge of the room and he had noticed children playing in it. It was therefore his obligation to ensure that they were supervised, either by him, or by a colleague. He did not make any such arrangement with a colleague and the children were left unattended because of the claimant’s failures. That is blameworthy. In comparison, Skye Main was on a break and was only walking through the room to use the kitchen. She had not taken control of the room, offered to cover, or been asked to cover. The same can be said of Shannon Donnelly who was working outside and had only entered the room to get a tissue to blow her nose.

[107]The claimant was certainly less favourably treated than Skye Main and Shannon Donnelly because he was disciplined and received a final written warning whereas they did not. However, that difference in treatment is fully explained by the fact the claimant was culpable and his comparators were not. Their circumstances were materially different. Given the seriousness of leaving children unattended even for a short time, we are satisfied that a female worker who had done what the claimant did would also have been disciplined. If the attitude of that hypothetical female comparator had been the same as the claimant’s, showing little insight or inclination to take responsibility, then the outcome would likely have been the same. She would also have been given a final written warning. The claimant’s treatment had nothing whatsoever to do with sex.

[108]While it was not his main argument, the claimant also raised other alleged instances of children having been left unattended. However, we are satisfied that the respondent’s witnesses were telling the truth when they said they were unaware of those incidents. If it is assumed for the purposes of analysis that the incidents happened and that the claimant’s description of them is accurate, but they did not come to the attention of Natalie Dolan or Leeanne MacAree, then that explains why no disciplinary action was against the member of staff involved. It had nothing to do with sex. We should add that we did not think the claimant’s description of an occasion when Natalie Dolan briefly lost track of the whereabouts of her own child when preparing to leave work to be at all comparable. She was not on duty at the time, and the child concerned was her own. She was acting as a parent, not as a member of staff on that occasion. Harassment related to sex

[109]As for harassment, we readily accept that the claimant found the disciplinary process and the final written warning to be unwanted conduct. However, we are not persuaded that the unwanted conduct related to sex, since it would have been the same if a female co-worker had done what the claimant did. There was nothing else in the background circumstances to suggest that the claimant’s treatment related to sex in any way.

[110]Additionally, we are quite satisfied that the respondent took that disciplinary action for genuine reasons of health and safety and professional standards and did not have any of the proscribed purposes listed in section 26 of the Equality Act 2010. As for the proscribed effects, they are not made out either. We find that the final written warning was permissible, proportionate and issued by the respondent in good faith. Applying the test in section 26(4) of the Equality Act 2010, we do not think it would be reasonable for genuine disciplinary action in those circumstances to have such serious effects as violating dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. We have no difficulty accepting that the claimant was upset by the disciplinary action, but the bar is set much higher than that in relation to the proscribed effects necessary to satisfy the requirements of section 26. Our conclusion is therefore that the claimant’s treatment did not have the proscribed purposes or effects, even if it had in some way been related to sex.

[111]The complaints of direct sex discrimination and harassment related to sex therefore fail on their merits and are dismissed. Victimisation

[112]The detrimental treatment relied on is dismissal. Dismissal is admitted and is also plainly something that a reasonable person would regard as putting them at a disadvantage. The live issue is the reason for that detrimental treatment.

[113]The claimant’s case was that the respondent anticipated that he would do a protected act, in that the respondent suspected that he would allege a breach of the Equality Act 2010 in relation to the final written warning issued on 28 April 2022. If the claimant established that on the evidence, then it would certainly fall within section 27(1)(b) and 27(2)(d) of the Equality Act 2010.

[114]However, it is necessary to analyse the conscious and subconscious thought processes of those who subjected the claimant to the detrimental treatment of dismissal. We heard no evidence which could support a finding that those involved in the decision to dismiss were consciously or subconsciously influenced by a belief that the claimant might do a protected act for the purposes of section 27(1)(b) of the Equality Act 2010. It was not even put to the witnesses called by the respondent in cross-examination, despite a reminder to the claimant of the need to do so if it was his case. Those witnesses were the managers involved in the decision to dismiss.

[115]The claimant’s line of cross-examination appeared to suggest that it was really his case that more senior management believed that he would do a protected act. There was no cogent evidence to that effect beyond the claimant’s suggestion. Importantly, Natalie Dolan and Leeanne MacAree confirmed that more senior management were not involved in the decision to dismiss the claimant. We accept their evidence on that point, and there was nothing to contradict it beyond the claimant’s speculation. Similarly, Leanne MacAree did not think there was any possibility at all that HR advice was given to the dismissing managers following conversations between the HR contractor and senior management. Natalie Dolan was not asked about it. We reject the argument that senior management might have influenced the dismissal through the HR contractor.

[116]For those reasons the claimant has not satisfied us that the necessary protected act existed, nor has he proved facts from which it could be found, in the absence of a satisfactory explanation, that a protected act was a significant cause of his dismissal. On the contrary, we are quite satisfied that the reason for the claimant’s dismissal was his gross misconduct and that it had nothing whatsoever to do with a protected act. Overall conclusion

[117]None of the complaints that remained live by the time of closing submissions are well-founded. They are all dismissed. Therefore, the question of remedy does not arise.