Miss A Bowden v Highland Country Buses Ltd: 8000543/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8000543/2024Venue AberdeenHearing 10 and 11 September 2024
Between
Miss Alison BowdenClaimantHighland Country Buses LimitedRespondent
Before
Employment Judge N M HosieMrs N Main for claimantSister for claimantMs M Dalziel (instructed by Solicitor) for respondentDate 23 September 2024
JUDGMENT
[1]the claimant was unfairly dismissed by the respondent;[2]the claimant is entitled to an award of compensation comprising a Basic Award and a Compensatory Award;[3]the Basic Award will be reduced by 25 per cent to reflect the claimant’s contributory fault;[4]as the dismissal was unfair, only on procedural grounds, the Compensatory Award will be reduced by 90 per cent; E.T. Z4 (WR)[5]the Compensatory Award will be reduced by a further 25 per cent to reflect the claimant’s contributory fault;[6]parties are directed to liaise with a view to agreeing the award of compensation, failing which a Remedy Hearing will be fixed; and[7]the claim of a failure to allow the claimant to be accompanied at various hearings is dismissed.
REASONS
[1]Miss Alison Bowden claimed that she was unfairly dismissed by the respondent Company, Highland Country Buses Limited. The respondent admitted the dismissal but claimed that the reason was conduct and that it was fair.[2]In her claim form, Miss Bowden had also intimated a claim of a failure to allow her to be accompanied at various meetings/hearings. However, it became clear during the hearing that this claim was without foundation. This was accepted by Miss Bowden. The claim is therefore dismissed.
The evidence
[3]On behalf of the respondent I heard evidence from: Paul Fenner, Operations Manager, who took the decision to dismiss Alexander Flanagan, Operations Director, who heard Miss Bowden’s first appeal against her dismissal David Beaton, Managing Director, who heard Miss Bowden’s second appeal against her dismissal James Anderson, Operations Manager, who carried out the investigation of allegations of misconduct by Miss Bowden[4]I then heard evidence from Miss Bowden. With the agreement of the respondent’s solicitor, she spoke to a written statement which is referred to for its terms.[5]Miss Bowden submitted a number of documents in five bundles (“C 1-5)”). The respondent also submitted a bundle of documents (“R”).[6]It emerged during the hearing that the main issue in the case was whether the respondent had carried out a reasonable procedure, in particular whether Miss Bowden had been provided with the relevant documentation before the investigation meeting and the subsequent disciplinary meetings. The respondent’s solicitor conceded that had she not been, then her dismissal would be procedurally unfair.
The facts
[7]Having heard the evidence and considered the documentary productions, I was able to make the following findings in fact. Miss Bowden was employed by the respondent as a “Passenger Carrying Vehicle (PCV) Driver” from 17 September 2018 until her dismissal, with effect from 5 January 2024. She was originally based at the respondent’s Inverness depot, but latterly was based at the respondent’s Aviemore depot. Final written warning[8]Miss Bowden was dismissed from her employment with the respondent on 1 March 2023, the respondent having decided that she had committed gross misconduct (C1/13). However, she appealed against her dismissal. Her appeal was successful. She was reinstated and issued with a final written warning on 6 March 2023 by Alex Flanagan, Divisional Traffic Manager (R53). It was in the following terms:- “Following the first stage appeal meeting held on 06th March 2023 at 8:45, this letter is to confirm that the outcome of the disciplinary appeal proceedings is that you have been given a final written warning. The circumstances resulting in the issue of this warning were repeated early operation whilst operating Service 110. We discussed the matter fully at the meeting and, having taken your explanations into account, have concluded that your conduct justifies a final written warning. It was agreed at the meeting that you would ensure that there is no further misconduct on your part. You were also informed that a failure to improve or a repeat of similar misconduct or any other instance of misconduct is likely to lead to further disciplinary action and could result in your dismissal. This warning will remain live on your file as a final written warning for a period of 12 months reducing to a written warning for a further 12 months, after which it will automatically expire. You have the right to appeal against the decision to give you a final written warning. If you wish to appeal, you should do so in writing within 7 days of the date of this letter to me. Your written notice should state the grounds for your appeal.”[9]Miss Bowden and her representative had submitted documentation relating to the final written warning. However, I explained that it was not the Tribunal’s function to reopen a final warning and judge whether it was reasonably given. There was nothing to suggest that the warning, which was the result of a successful appeal against dismissal, was issued in bad faith, was issued for an “oblique motive” or was “manifestly inappropriate” (Davies v Sandwell Metropolitan Borough Council [2013] IRLR 374 CA; Co-operative Retail Services Ltd v Lucas EAT145/93). This was accepted by Miss Bowden’s representative. Indeed, Miss Bowden accepted in cross examination that she was pleased with the outcome, pleased that she had not been dismissed but issued with a final written warning instead. Circumstances leading to the claimant’s dismissal Trade Union Grievance[10]On 23 November 2023, the respondent received an email, from Graham Haines, the Convenor of Unite the Union and Lawrence Ingram a driver and Union representative based in Inverness, informing the respondent that the Union had received a number of complaints about Miss Bowden’s behaviour (R60/61). The purpose of notifying the respondent was to raise a formal grievance in relation to the complaints received. The grievance alleged that Miss Bowden had engaged in bullying and harassing behaviour, “directed towards various staff members at various times across her tenure at our company” (R60/61). It was alleged that, “her poor behaviour has now been directed most notably towards Michael Duncan”, a driver based in Inverness but who had been working in Aviemore. Mr Duncan had been diagnosed with, “moderate to severe mental health conditions and PTSD”. Investigation[11]Upon receipt of the grievance, Jay Anderson, Operations Manager, was appointed to investigate. He was provided with handwritten statements, all dated 11 November 2023, from Lawrence Ingram (R54); from Tony Gordon, an engineer/mechanic based in Aviemore (R55); and from Michael Duncan (R55).[12]Mr Anderson interviewed Mr Duncan on 24 November 2023. Notes of his meeting were produced (R62-64). I was satisfied that the Notes were reasonably accurate. The following are excerpts:- “JA It has been brought to our attention that some inappropriate comments have been made to you from a member of staff MD Yes, from Alison Bowden. JA Would you be OK to elaborate and tell me about it? MD Today I heard a conversation between Alison and Murdo involving me and whether I was back to work today after being off yesterday due to a migraine. Alison responded to Murdo that I was just playing at it and making the most of it. They then realised I was around so started to whisper after that. JA Were these comments made inside work or out of work? MD They were inside work. JA Has there been any other incidents/altercations with Alison? MD Yes, they were the ones we discussed briefly, they were at the end of October – I think it was the 17th October. JA And what was said? MD It was in the driver’s canteen, I was in the driver’s room at the time and she went off in a tirade against me saying that ‘I shouldn’t be in Aviemore, I was playing at my medical condition and that I have not got it, making comments regarding my personal hygiene and that people had to watch what they were saying around me due to my PTSD’. JA Were there any witnesses to this? MD Yes, Laurence Ingram. JA How did that make you feel MD It made me feel uncomfortable, I’m not sure why but every time I see her there seems to be an attack – I feel targeted. JA Has there been any other occasions of inappropriate behaviour? MD A few occasions but I can’t give any details on that, I have normally treated it as banter, but she has now crossed the line and it feels personal now. JA Before the incidents above, generally, how is your relationship with Ben? (sic) MD Generally ok. JA Are you comfortable with Alison in the workplace? MD No, I’m now at a point where I avoid her in the workplace as I don’t want the confrontation. JA How do you feel you can resolve – what would be your desired outcome? MD I would be open to mediation, but I know it will only last a short time and this has happened in the past with other people. It would also be very difficult to get how I feel across to Alison JA We can act formally on this if you feel it would be too much? MD That is something I would prefer.”[13]Mr Anderson went on leave after this. On his return, he received a further written statement from Martin McCool, a driver based in Inverness, dated 12 December 2023 (R65). According to Mr McCool, Miss Bowden had shouted at Mr Duncan in front of other staff members and had attempted to embarrass him in front of colleagues. His statement also made reference to this being a repeated pattern of behaviour for Miss Bowden as she would take things out of proportion and that she had, “taken this approach with several people in Aviemore depot”. Suspension[14]On 15 December 2023, Mr Anderson wrote to Miss Bowden to advise her that she was suspended on full pay, “pending an investigation into the allegations of inappropriate comments and conduct towards a work colleague” (R66). Investigation meeting[15]At the same time, Mr Anderson invited Miss Bowden to attend an investigation meeting (R67). He accepted that at that time he did not send Miss Bowden copies of the statements which he had received or the Notes of his investigation meeting with Mr Duncan. He said that he, “wanted to protect them”. Investigation meeting[16]Mr Anderson met Miss Bowden on 21 December 2023. There was noone else in attendance. Notes of the meeting were produced. I was satisfied that they were reasonably accurate (R56-58). No specific details of the allegations were put to Miss Bowden. The following are excerpts from the Notes:- “JA Do you understand why you are here? AB Yes, I think so. JA Have you received notification of this meeting, had sufficient time to prepare and happy all procedures have been followed prior to this meeting? AB Yes. JA Happy to proceed? AB Yes. JA It has been brought to our attention that there have been occasions that you have made inappropriate comments to a work colleague, and I would like to discuss in detail if that’s OK with you? AB Yes, that’s fine. JA Thank you. Could I firstly discuss your relationship with Michael Duncan please? AB I used to talk to him, but I don’t interact with him these days. The reason for this is that I used to have a set shift but it was changed on numerous occasions to accommodate other drivers, he was one of those. JA And do you feel you have ever at any point said something you shouldn’t have? AB I don’t think so no – if I have, I never meant to and if I have taken it too far, I would like to apologise. It has never been my intention to upset him. JA The main concern is some of the comments that have been reported – have you at ever any point (sic) made comments about his personal hygiene? AB Not directly to him although I have spoken to other drivers about it – I was too busy dealing with my own personal issues and my own headspace. JA It was also reported that you had to told (sic) others to watch what they say around him as you believed Michael was playing at his PTSD and that you believed he did not have this medical condition. AB I didn’t – it was other drivers telling me about his condition – Laurence for example was telling me how he was a union rep and how he was going to resolve it. I’ve also heard other drivers calling him pongo but I don’t want to mention any names. Laurence is a shit stirrer and wants to know everyone’s business. ……………………………………………………………………………. JA Is there anything else you want to add? AB I’m more than happy to apologise directly to Michael and clear the air but not sure why I have been singled out when there are others that have made inappropriate comments about him to me. If anything, I don’t want to talk to people just now as I have a lot going on and am just trying to get on with my job. I am a strong person but I’m struggling just now with everything that’s going on. I love my job and if I must change to keep it – I will.” Disciplinary Written statements and Notes[17]On 22 December, Mr Anderson wrote to Miss Bowden to invite her to attend a Disciplinary Meeting with Paul Fenner, Operations Manager, Skye, on 29 December (P68).[18]Mr Anderson said he also sent along with that letter copies of the four written statements which he had received and copies of his Notes of his meetings with Mr Duncan and Miss Bowden. However, this was disputed by Miss Bowden. Her evidence was that she only received copies of these documents when she received the bundle of documents from the respondent’s solicitor in August 2024, in connection with the Tribunal Hearing.[19]While Miss Bowden did not raise this either at the disciplinary meeting or at the two subsequent appeal meetings, I was persuaded, on balance, that Miss Bowden’s evidence in this regard was to be preferred.[20]There is no reference in any of the respondent’s correspondence to the documentation being sent to Miss Bowden; Paul Fenner who conducted the disciplinary meeting, Alexander Flanagan who heard the first appeal and David Beaton who heard the second appeal were only able to say that they “understood” that Miss Bowden had received the documents; they were unable to refer to any other evidence in that regard; some of Miss Bowden’s comments at the various meetings were consistent with her not having received the documentation; for example, at the disciplinary meeting she asked who had made a particular statement (R70); she also asked about witness statements at the first Appeal (R76); and Miss Bowden’s consistent position throughout was that she had not received the statements and Notes.[21]I find in fact, therefore, that Miss Bowden did not receive the relevant documentation and in particular the written statements and the Notes of Mr Anderson’s meeting with Mr Duncan and her at any time before her dismissal took effect, following the investigation and disciplinary meetings and the two appeal meetings. Disciplinary meeting[22]Mr Fenner’s Notes of the disciplinary meeting on 29 December 2023 were produced (R69-71). I was satisfied that they were reasonably accurate. The following are excerpts:- “PF asked regarding the incident with the damaged bus. AB Did not really recall this as an incident saying she just mentioned to him that the bus had some damage, and it was not recorded on the Defect sheet. PF said that both Michael and a witness who had made a statement said that this interaction was extremely aggressive. AB said that it was not and wanted to know who had made the statement. PF then asked regarding 2 other statements that had been received stating that AB was displaying bullying actions towards Michael Duncan. In particular his personal Hygiene, his PTSD (that he was putting it on) and not carrying out proper first use checks. AB said that she swears she did not do that and again wanted to know who had made the statement. She then offered to apologise to Michael Duncan for any offence she had caused. She said she did not want to lose who (sic) job over this. PF asked how she could explain how 3 people had said she had displayed bullying behaviour towards Michael. AB said look in my eyes I swear I did not”.[23]After a fifteen minute adjournment, the Notes record that Mr Fenner said this:- “Said he had considered everything in AD (sic)and MD statement plus the other statements he had received. And on the balance of probability that AB had in fact shown bullying behaviour towards MD. PF said in isolation this was a warning offence. However, AB was on a final written warning for conduct and as such should be dismissed for misconduct as of 29-12-23. As such she was entitled to be paid her notice period and all outstanding Holidays. She had a right to appeal this decision and needed to do so within 7 working days of receipt of the letter he would be sending. AB became extremely upset by this and pleaded for her job. PF said he had sympathy for her but she had committed another conduct offence while being under a final written warning and as such he had no choice but to dismiss her.”[24]On 29 December, Mr Fenner wrote to Miss Bowden to confirm his decision (R72). First stage appeal[25]On 29 December, Miss Bowden intimated that she wished to appeal against her dismissal (R73).[26]The appeal meeting was conducted by Alex Flanagan, Operations Director, on 5 January 2024. Notes of the meeting were produced (R75- 77). I was satisfied that the Notes were reasonably accurate. The following are excerpts:- “AF asked if AB was appealing on grounds of leniency or technicality? AB Appealing for leniency, desperately trying to keep my job. AF Do you understand the reason why you were dismissed? AB Not really, no. AF You were dismissed following a report of a misconduct offence surrounding inappropriate comments/behaviour towards a colleague in Aviemore. Comments largely concerning their personal hygiene, mental state and alleged non-reporting of damage on a bus/failure to first use checks. There are 3 witness statements to various incidents/run-ins from colleagues who have witnessed incidents, as well as Michael Duncan’s (MD) own personal statement to offences he’s been subject to. AF asked if AB had any issues with the process/paperwork issued up to this point, or if an agreement everything was above board. AB No issues with process …… AF Do you feel you have been inappropriate in any exchanges with MD? AB No I don’t, and you said there’s witness statements, from when? AF There are dates mentioned from October, November and early December 2023 about various altercations/comments you had made either to or about, MD in front of colleagues about his mental state or hygiene. AB You are just trying to get rid of me that’s all you are doing.”[27]After a “recess” of fifteen minutes, the Notes record that Mr Flanagan said this when the meeting reconvened (R77):- “Informed AB that it was my decision to uphold Paul Fenner’s decision to dismiss on the grounds of misconduct. AB’s existing poor conduct record, together with the witness statements supplied to various incidents within Aviemore Depot towards MD, I feel that to overturn the decision would do neither MD or AB any good, and feel we would be back in the same scenario a few months down the line. Explained to AB that she had the right to a final appeal which will be heard by the Managing Director.”[28]On 5 January 2024, Mr Flanagan wrote to Miss Bowden to confirm his decision (R79). Second stage appeal[29]On 5 January 2024, Miss Bowden intimated that she wished to appeal further (R80). The second stage appeal was conducted by David Beaton, Managing Director. His personal assistant, Kim Shaw, was also present at the meeting and took Notes which were produced. I was satisfied that they were reasonably accurate (R82-84). The following are excerpts:- “DB What you are saying is that you haven’t done what they have said. AB No. AB pulled out a ring binder folder. DB I’m here to discuss the decision from Alex, I am not here to discuss anything else that you want to bring up. I want to understand whether Alex was over-zealous or a lesser disciplinary action should have been taken or if Alex’s decision was correct. I am not here to discuss what the Company has done wrong. I must decide whether I should uphold Alex’s decision. You are saying you did not do anything wrong. AB No. DB I have several statements. AB tried to steer the conversation towards her folder of documents DB I’m here to discuss Alex’s decision, that’s how the process works. DB They (sic) way you have been portrayed isn’t very good, I have a statement from the Union which is very unusual, they felt that strongly about you that they have went to the management to complain about your actions towards other members of staff, I also have three statements from staff all saying the same thing. AB I did not do anything ………… DB Despite the second warning you have done the same thing again. AB I disagree. DB Why would individuals come forward? AB I think it’s because I reported them for vaping. DB So, it’s retaliation? AB I’ve messaged Jay about vaping. DB You don’t know if the members of staff have been dealt with by Jay. What you did constitutes bullying. AB I disagree, I’ve been here 5 years, if you knew what has been going on. DB Do you think bullying is acceptable, do you think the language you use is acceptable or the way you have spoken to a member of staff is acceptable. On the balance of probability I think you did bully a member of staff and I am upholding Alex’s decision to dismiss you. My decision is you are dismissed with notice.”[30]The meeting lasted 10 minutes.[31]On 10 January 2024, Mr Beaton wrote to Miss Bowden to confirm his decision (R85). Respondent’s submissions[32]The respondent’s solicitor made oral submissions. The following is a brief summary. She submitted that the reason for Miss Bowden’s dismissal was conduct. She further submitted that the respondent had satisfied the test of reasonableness in British Home Stores v Burchell [1978] IRLR 379 EAT. In particular, she submitted that the respondent had carried out a reasonable investigation. The allegations were put to Miss Bowden; it was accepted that she was not given the names of the people who had complained but the allegations were put to her.[33]So far as the issue of whether or not Miss Bowden had received all the relevant documentation was concerned, the respondent’s solicitor submitted that if she had not it was, “very strange” that she didn’t say anything. Indeed, she said she was, “satisfied with the process”.[34]However, the respondent’s solicitor accepted that were I to find that Miss Bowden had not received the relevant documentation, this would render her dismissal procedurally unfair.[35]Finally, the respondent’s solicitor submitted, with reference to Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 EAT, that Miss Bowden’s dismissal was, “within the band of reasonable responses”.[36]Miss Bowden was on a final written warning which was in clear terms. Miss Bowden confirmed that she was aware of that. Mr Fenner who took the decision to dismiss accepted that so far as the present allegations were concerned, these would not have merited Miss Bowden’s dismissal in themselves, but Miss Bowden was on a final warning and that was the reason why he decided to dismiss her.[37]In the alternative, the respondent’s solicitor submitted, with reference to Polkey v AE Dayton Services Ltd [1987] IRLR 503 HL, that were I to find that Miss Bowden had not been provided with the relevant documentation and that the dismissal was procedurally unfair, it would have made no difference: Miss Bowden would still have been dismissed. Accordingly, there should be no Compensatory Award.[38]Further, the respondent’s solicitor submitted that Miss Bowden had contributed to her dismissal to the extent of 100 per cent. At every stage in the disciplinary process she had the opportunity of saying that she had not received the statements and when she was asked specifically about the “process” by Mr Flanagan she said that she was satisfied. Accordingly, there should be no Basic Award either. In support of her submission in this regard, she referred to Steen v ASP Packaging Ltd [2014] ICR 56 EAT. Claimant’s submissions[39]The claimant’s representative made oral submissions. The following is a brief summary. She submitted that Miss Bowden had never received the relevant documentation. She referred to her comment at the first appeal to Mr Flanagan (R76) in response to his question, “Do you feel you have been inappropriate in any exchanges with MD?” when she said: “No I don’t, and you said there’s witness statements, from when?”[40]She also referred to Mr Anderson’s email of 15 December 2023 when, in response to Miss Bowden’s enquiry about the allegations, he said: “I’ll be in a position to tell you next Thursday”. (C2/5)[41]She also referred to an email of 24 January 2024 to Mr Flanagan in which she requested “witness statements” and said: “I was never ever shown or given them” (C3/3). However, this was never put to Mr Flanagan in cross examination.[42]She also referred to an email from the respondent’s Data Controller dated 15 March 2024 in which she said that the respondent was not in a position to disclose the statements “as doing so would identify third party individuals” (C3/18). However, this was also not raised with the witnesses.[43]Nor was an email from the respondent’s People Director, Joanne Smith, dated 29 April 2024, in which she advised that “The witness statements were not shared within this file” (Miss Bowden’s personnel file) (C3/24).[44]Miss Bowden’s representative submitted that if she had seen the statements, she “may have saved her job”.[45]She also submitted that the motive behind the complaints about Miss Bowden’s conduct could have been considered. Discussion and Decision[46]In every unfair dismissal case where dismissal is admitted, s.98(1) of the Employment Rights Act 1996 (“the 1996 Act”) requires the employer to show the reason for the dismissal and that it is an admissible reason, in terms of s.98(2), or some other substantial reason of a kind such as to justify dismissal of an employee holding the position which the employee held. An admissible reason is a reason for which an employee may be fairly dismissed and among them is conduct. That was the reason which the respondent claimed was the reason for Miss Bowden’s dismissal. I was satisfied that she was dismissed for that reason. That was not an issue between the parties. However, that is not to say that Miss Bowden was guilty of the conduct complained of, only that Mr Fenner who took the decision to dismiss, Mr Flanagan who heard the first Appeal and Mr Beaton who heard the second Appeal, believed that she was and that was the reason she was dismissed.[47]The remaining question which I had to determine, therefore, under s.98(4) of the 1996 Act, was whether the respondent had acted reasonably in treating that reason for dismissing Miss Bowden as a sufficient reason and that question had to be determined in accordance with equity and the substantial merits of the case.[48]The question of whether the employer acted reasonably, particularly where the reason for dismissal was related to the conduct of an employee, frequently involves consideration of the adequacy of the employer’s investigation into some alleged wrongdoing and thus whether a reasonable employer could have concluded that he or she was guilty (i.e. the test in Burchell, to which I was referred).[49]As I recorded above, I found in fact that Miss Bowden was not provided with copies of the relevant documents at any stage throughout the disciplinary process. This meant that, as Miss Bowden was not afforded the opportunity of responding to the specific allegations in the statements, the respondent had not complied with the final branch of the Burchell test, namely to carry out as much investigation into the matter as was reasonable in all the circumstances of the case.[50]The ACAS Code of Practice on Disciplinary and Grievance procedures sets out the basic requirements for fairness that will be applicable in most conduct cases. This includes a requirement to, “inform the employee of the problem”. That is fundamental to the fairness of the procedure.[51]I had no difficulty, therefore, deciding that Miss Bowden’s dismissal was procedurally unfair. Indeed, it was accepted by the respondent’s solicitor that were I to find that Miss Bowden had not been provided with the relevant documentation this would render her dismissal procedurally unfair. Compensation[52]However, the matter does not end there. In Polkey, to which I was also referred, the House of Lords held that in determining the fairness or otherwise of a dismissal, it is not open to the Employment Tribunal to consider whether if the employer had taken the appropriate procedural steps, the employee would still have been dismissed. However, Polkey also established that, when the Tribunal comes to calculate compensation for the unfair dismissal it “can take into account the probability that – even if the employer had taken those steps which it failed to take before dismissing – a fair procedure would have affected the outcome (that is, the decision to dismiss)”.[53]I decided that a “just and equitable” reduction in the Compensatory Award, under s.123(1) of the 1996 Act, should be made as in my view Miss Bowden could have been dismissed fairly by the respondent if a proper procedure had been followed. So, what was the chance of that expressed in percentage terms? Percentage chance of a fair dismissal[54]In Polkey, Lord Bridge explained that there is no need for an “all or nothing” approach, when making an appropriate reduction. He cited, with approval, the case of Sillifant v Powell Duffryn Timber Ltd [1983] IRLR 91, EAT, where Mr Justice Browne-Wilkinson pointed out that, “If the … tribunal thinks there is a doubt whether or not the employee would have been dismissed, this element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment”. Thus, it would be quite reasonable to make a 20 per cent award if, for example, there was only a one in five chance that a fair procedure would have made any difference to the outcome.
Lord Bridge said this: “If it is held that taking the appropriate steps which the employer failed to take before dismissing the employee would not have affected the outcome this will often lead to the result that the employee, though unfairly dismissed, will recover no compensation, or in the case of redundancy no compensation in excess of his redundancy payment.” That was the basis for the alternative submission by the respondent’s solicitor.
[56]It was significant, of course, that Miss Bowden was on a final written warning at the time. It had been made clear in the warning (R53) that: “You would ensure that there is no further misconduct on your part. You were also informed that a failure to improve or a repeat of similar misconduct or any other instance of misconduct is likely to lead to further disciplinary action and could result in your dismissal”. Miss Bowden confirmed in evidence that she was aware of this.[57]The respondent’s position was that the further misconduct would not in itself have led to Miss Bowden’s dismissal but when taken with the final written warning this was sufficient to justify her dismissal.[58]Miss Bowden was not afforded an opportunity of challenging the specifics of the allegations against her. For example, she gave evidence that there was an issue with the dates of the allegations when she maintained that she was in Inverness and not in Aviemore where the misconduct was alleged to have occurred. I also noted that Mr Duncan had indicated that he would be prepared to engage in mediation, although not optimistic that this would prove successful.[59]On the other hand, the respondent had received four witness statements alleging misconduct on Miss Bowden’s part. The statements appeared to have been unsolicited. They had been submitted by the Trade Union in support of a Grievance against Miss Bowden. There was no evidence of any ulterior motive. Miss Bowden said that she was seeking “leniency” and was prepared to apologise, which suggested an acceptance of at least a degree of fault on her part. Significantly, Miss Bowden was on a final written warning. The misconduct can be of a different kind from that for which the employee is ultimately dismissed (Auguste Noel Ltd v Curtis [1990] ICR 604, EAT) and the final written warning said that. A fair dismissal only requires to be within the band of reasonable responses which a reasonable employer might have adopted (Iceland Frozen Foods Ltd).[60]In all the circumstances, I decided that it was extremely likely that Miss Bowden would still have been dismissed had the respondent followed a reasonable procedure and provided her with the relevant documentation. In my view, there was only a very slim chance that she would not have been dismissed, which I assess at 10 per cent. This means that, in accordance with Polkey, the Compensatory Award should be reduced by 90 per cent, on the basis that it is just and equitable to do so. Claimant’s contributory fault[61]The respondent’s solicitor also submitted that Miss Bowden had contributed to her dismissal, in particular by failing to raise the issue of a failure to provide her with the relevant documentation saying that she was satisfied with the “process” and prepared to proceed. In my view, that submission was well founded.[62]However, in deciding the extent of Miss Bowden’s contributory fault, and the percentage amount by which it would be just and equitable to reduce the Compensatory Award for that reason under s.123(6) of the 1996 Act, the Court of Appeal in Rao v Civil Aviation Authority [1994] ICR 495 made it clear that the Tribunal should bear in mind that there has already been a “Polkey deduction” under the “just and equitable” provision in s.123(1) of the 1996 Act.[63]The “fault”, so far as the procedure was concerned, was due primarily to the respondent who should have provided Miss Bowden with the documentation at the outset but Miss Bowden was also at fault, to a much lesser extent, in not raising the matter, not objecting and actually saying she was satisfied with the process and prepared to proceed.[64]In all the circumstances, and having regard to the guidance in Steen v ASP Packaging Ltd [2014] ICR 56, I decided that it would be just and equitable to reduce the amount of the Compensatory Award by a further 25 per cent and the Basic Award by the same percentage, to reflect Miss Bowden’s contributory fault.[65]In this regard, I should record, for the sake of completeness, that I was unable to make a finding in fact that there was contributory fault, on her part, in respect of her alleged treatment of Mr Duncan. I did not hear evidence from Mr Duncan or the three other employees who had submitted statements to the respondent and Miss Bowden denied that she had acted as alleged. Compensation[66]It was agreed at the Hearing that I should determine liability only and that if required a Remedy Hearing would be fixed to determine the award of compensation, in the event that the claim was successful.[67]I direct the parties, in the first instance, to endeavour to agree an award of compensation. Basic Award[68]In summary, Miss Bowden will be entitled to a Basic Award of 7.5 weeks’ pay to reflect the fact that she was 55 years of age at the date of her dismissal and that she had 5 years’ complete service. However, the Basic Award will require to be reduced by 25 per cent to reflect her contributory fault. Compensatory Award[69]So far as the Compensatory Award is concerned, in my view, provided Miss Bowden has taken reasonable steps to mitigate her loss, it would be just and equitable to award Miss Bowden compensation to reflect her financial loss from the effective date of termination of her employment to the date of the Tribunal hearing. As I understand that she has secured alternative employment but that she is earning less than she earned when she was employed by the respondent, there is also likely to be an award for future loss for a period, to reflect her ongoing loss of earnings. However, the Compensatory Award will fall to be reduced by 90 per cent in the first instance in respect of the “Polkey reduction” and then by a further 25 per cent, in respect of Miss Bowden’s contributory fault.[70]If parties are unable to agree a settlement, a Remedy Hearing will be fixed to consider and determine the award of compensation.