Mr T Donaldson v Southern Electric Power Distribution plc: 8000700/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000700/2024

Venue Glasgow

Hearing 10 – 14 February 2025 Deliberation – 19 and 21 February 2025

Between

Mr T DonaldsonClaimant

Southern Electric Power Distribution PLCRespondent

Before

Employment Judge D Hoey

Ms K Norval (instructed by Solicitor) for respondent

Date 26 February 2025

JUDGMENT

The claimant’s dismissal was not unfair and the claim is dismissed.

REASONS

[1]Following case management, the claim that progressed to a full hearing was that the claimant was unfairly dismissed.

[2]The Hearing began by a reminder of the overriding objective and the need for both parties to work together to assist the Tribunal in ensuring that everything that was done was fair and just with due regard to cost and proportionality. A discussion took place as to how evidence was taken and the importance of ensuring relevant questions were put to each witness to ensure both parties cases were fairly put to each other’s witnesses and that relevant evidence was led. The parties were reminded that the Tribunal would only consider evidence that had been agreed or that was led before it. Case management

[3]The parties had worked together to focus the issues in this case. At the outset of the Hearing the parties agreed what the issues were. The parties were also able to agree timing for witnesses and the parties worked together to assist the Tribunal in achieving the overriding objective, in dealing with matters justly and fairly taking account of the issues, cost and proportionality.

[4]The Tribunal was able to assist the claimant to ensure that relevant questions were put to each witness and that the claimant’s case was advanced.

Evidence

[5]The parties had produced a joint bundle of 538 pages.

[6]The Tribunal heard evidence from Mr Cowdale (chair of disciplinary hearing, Ms Joynson (chair of appeal hearing) and the claimant. It was agreed that the claimant would provide a written witness statement to set out his evidence with the other witnesses giving their evidence orally. Relevant questions were put to each witness to ensure the parties’ respective cases were fully tested.

[7]The parties were able to assist the Tribunal by setting out the ley facts necessary to determine the issues in dispute and by making it clear what the factual disputes were.

[8]The claimant was given time to consider his questions for each witness and time to prepare for submissions, with the respondent providing the claimant with their submission in writing which the claimant was able to consider.

Facts

[9]The Tribunal is able to make the following findings of fact which it has done from the evidence submitted to it, both orally and in writing. The Tribunal only makes findings that are strictly necessary to determine the issues before it (and not in relation to all disputes that arose nor in relation to all the evidence led before the Tribunal). The Tribunal only records facts it found as necessary to determine the issues in this case.

[10]There were no material facts in dispute in this case and where there was a conflict in evidence, the conflict was resolved by considering the entire evidence and making a decision as to what was more likely than not to be the case with regard to what was written and said at the time (when viewed in context). The parties had agreed the key facts which was of considerable assistance to the Tribunal.

Background

[11]The respondent is part of the SSE Group, a large-scale energy company with employees based throughout the UK. The SSE Group is primarily involved in the generation, transmission and distribution of electricity and also in the supply of energy related services to its customers.

[12]The claimant was employed as a Tree Cutter Surveyor from 17 May 2021. He was responsible for surveying the overhead power line network, identifying and removing any vegetation encroachments, whilst liaising with customers and arranging for any necessary consents for work to be undertaken. The claimant had been asked by his line manager, and agreed, to undertake duties consistent with being second in command, which was a perception his colleagues had of the claimant in light of the work he undertook. Training

[13]The claimant attended a number of training courses which included Inclusion and Diversity Training on 23 June 2021 and a Corporate Induction session on 8 July 2021 (which also covered topics on ‘Inclusion and Diversity’ and ‘All Our Belonging Communities’). The ‘Inclusion and Diversity Training’ included detail on discrimination legislation. Contract of employment

[14]In the cover letter to the claimant’s contract of employment it said, “South Electric Power Distribution plc is your legal employer and by accepting employment with the Company you are also accepting the Company’s policies and procedures”.

[15]Section 26 said “In order to enable the Company to maintain a positive work environment, you are not to engage in or knowingly permit any fellow worker to engage in any harassment or discrimination on the grounds of sex, sexual orientation….disability…in the course of your duties. Such conduct will be treated very seriously as a disciplinary matter”. Policy documents

[16]The respondent operated a number of policies which set out the standards expected of employees and the consequences for failing to adhere. The Rules stated that employees are required to: “2. Conduct themselves in a manner consistent with the proper and professional performance of their duties and the maintenance of good working relationships… 5. Observe all relevant Company policies, directives and procedures… 10. Refrain from excessive personal use of work communication systems including email and telephone, or excessive internet usage.”

[17]The Rules expressly listed the following as examples of gross misconduct which could lead to summary dismissal without notice: “22. Any form of bullying or harassment against a fellow employee…, whether in person or using any form of communication system, platform or device including social media, text or other forms of messaging which constitutes unacceptable behaviour which is personally offensive, socially unacceptable and fails to respect the rights of others.”

[18]The respondent’s “Doing the Right Thing Guidelines” contained the following excerpts: “What is inclusion and diversity? Across SSE, we are focussed on building an inclusive and diverse team of people with a shared commitment to contributing positively to a great place to work, an ethical business and a successful company. This means employing people with a balance of skills, knowledge, experience, education and industry backgrounds and respecting and supporting all of the different characteristics that are protected under equality legislation, complying with the spirit as well as the letter of the law.” “What is bullying, harassment and discrimination? Bullying, harassment and discrimination relates to treating people in a negative way. Discrimination specifically refers to treating people differently for a specific reason, for example because of their age, disability, gender….” “Why is this important for business ethics? We must make sure our workplaces are free from discrimination, bullying and harassment so we promote an environment where our employees treat everyone as they would like to be treated themselves. That means we must treat each other, including people we work with from other organisations, with fairness, dignity, respect and open-ness.” “What are the right behaviours? At SSE we do not tolerate any form of harassment that fails to respect the rights of others. It’s the responsibility of all of us who work for SSE to provide a safe, engaging and inclusive working environment, and to observe the clear standards of conduct that apply to every one of us employed by SSE – up to, and including, the Chief Executive, as well all other members of the Board...”

[19]The Bullying and Harassment Procedure outlined the following: “No form of bullying or harassment will be tolerated at SSE. We treat each other with dignity and respect. “What seems like harmless “banter” to one person can be upsetting and offensive to someone else.”

[20]The Procedure also listed the following as examples of harassment:a. “sending or displaying material that is pornographic or that some people may find offensive (including e-mails, text messages, video clips and images sent by mobile phone or posted on the internet)”;

b. “racist, sexist, homophobic or ageist jokes, or derogatory or stereotypical remarks about a particular ethnic or religious group or gender”;

c. “offensive e-mails, text messages or social media content; or

d. “mocking, mimicking or belittling a person’s disability.”

[21]The Social Media Policy includes the following excerpts: “Many different social media channels exist and are used in a personal capacity by SSE employees every day.”; “All social media channels – external and internal – are forms of public communication and, as such, due care and attention must be shown when communicating through both Company and private accounts.”; “This procedure applies to all SSE employees when using social media in either official or unofficial capacity when the content is SSE related or if the employee’s affiliation to SSE is known or can be identified.”; “Internal social media refers to platforms including, but not restricted to, Yammer, Teams, sseapp, The Hub etc etc.” and “This procedure and associated policies in appendix 1.1 clearly set out what is expected of any SSE employee who posts content on social platforms, either externally and internally.” Investigation into inappropriate messages commenced

[22]On 30 June 2023 the claimant raised concerns that another employee had been exhibiting bullying behaviour. That led to an investigation which resulted in a counter allegation that the team of employees of which the claimant formed part had been posting inappropriate messages on WhatsApp group chats. Given the respondent’s approach to diversity, inclusion and discrimination, which was to view any material inconsistent with its Rules very seriously, an investigation was commenced.

[23]The investigation discovered that there were two WhatsApp groups operated by the claimant and his colleagues: one called “Work Stuff Only” and the other “Banter”. In practice there was crossover between the two. Both were used as a forum to communicate with colleagues and with the exception of one former employee, neither group included anyone who was external to the business. New employees were added to both as a matter of course. The “Work Stuff Only” chat had 13 members, whereas the “Banter” chat had 12 members. Sometimes the “Banter” chat included information pertaining to work and sometimes the “Work Stuff Only” chat included what could be described as “banter” (e.g. the icon for the group was a photo of a naked bottom). Both groups were used throughout the day including during working time by employees and both chats were on the claimant’s personal phone.

[24]A Senior Fraud Risk Auditor was appointed to investigate the behaviours and he interviewed thirteen employees and reviewed the WhatsApp messages, relevant policy documentation, as well as other background information. The Fact-Finding Report and ordered appendices was produced.

[25]During the investigation, the claimant provided the respondent with a video which appeared to show other inappropriate conduct of staff. This was investigated by the respondent and subsequently 2 employees were dismissed following a disciplinary process.

[26]The claimant met with the investigator and set out his response to the allegations. The claimant accepted was crossover between the two WhatsApp groups and that the “Banter” group went against the respondent’s values and policies.

[27]The claimant accepted he added the following content to the “Banter” group: 19 September 2023 at 21:58 – Video of 2 scantily clad women on an elephant; 25 September 2023 at 10:55 – Hornet with penis; 28 September 2023 at 11:56 – Cartoon of a female teacher with her legs open with students painting; 19 October 2023 at 15:42 - Porn video – women showing breasts; 20 October 2023 at 11:04 – Porn video – woman showing vagina; 20 October 2023 at 19:40 – Porn video – woman bouncing up and down on a man’s face; 31 October 2023 at 17:17 - Porn video starts as dancing then goes into couple having sexual intercourse; 31 October 2023 at 18:08 – Porn video of man riding a bike with a dildo on the saddle; 31 October 2023 at 18:48 – Porn video of a man masturbating in first floor window; 2 November 2023 at 8:42 – Porn video of a naked female doll being videoed; 7 November 2023 at 12:11 – Photo of Mayfair porn magazine; 17 November 2023 at 12:11 – Photo from porn magazine showing genitalia; 9 November 2023 at 8:08 – Porn video of training shoe boxes then shows sexual intercourse; A photo of a person with bloody fingers, and the caption reads, “When you realize she’s probably not as turned on as you think.” ; A picture of a man standing on a woman’s head whilst having intercourse, and the caption reads “Sexual position number 47, The George Floyd”; and the claimant posted a photo of a severely disabled girl, and the caption says, “when somebody pours ice down your back”?

[28]It was also accepted that the claimant added the following content to the “Work Stuff Only” group: A message asking for a new employee to be added to the group so that the claimant could “rip him a new one”; In response to the claimant’s colleague, saying to someone else “Wait til Saturday I’ll rape you in the bk of the van”, the claimant responded “it’s not rape when he pushes back”; In response to an employee, referring to a colleague as a “downie”, the claimant shared a photo of a person with down syndrome; In reference to another employee who had had testicular cancer, the claimant said “can’t produce fuck all with only one bollock”? ; the claimant referred to a colleague as a “ginger cunt”; the claimant asked employees to attend a briefing, then proceeded to call them “cunts” and after talk about allegations of bullying raised by a colleague, another colleague said “I didn’t bully him”, to which the claimant replied “you were the worst one you cunt”?” and then immediately proceeded to ask him if he had done his time sheet.

[29]There were a number of comments the claimant had made which showed the claimant’s awareness of the respondent’s approach to such comments and how inappropriate and unacceptable they would be viewed: “No more on this group (*embarrassed emoji* x 4) banter group”; “We don’t use that language on the work chat mate. I consulted the employee handbook and it says NOOOOOO FOUL LANGUAGE”; and “[We] are going to pick up apprentices tomorrow and will be with them at Theale. Its more than likely they will be added to this group over the next few days so this needs to remain strictly for work chat only please”.

[30]These posts showed that the claimant had an awareness that many of the comments were inappropriate and would not be acceptable to the respondent.

[31]The comments were made by the claimant, colleagues and his line manager each of whom used the chats to discuss work and exchange inappropriate comments, messages, pictures and videos.

[32]After concluding his investigation, the investigator recommended the matter proceed to formal action in respect of a number of individuals in the claimant’s team. The Investigation Report ran to 208 pages (inclusive of 27 appendices) and set out all the material relied upon. Invite to disciplinary hearing

[33]The claimant was invited to a Disciplinary Hearing by letter dated 30 January 2024. The letter confirmed the allegations against the claimant as follows:a. “You have been part of WhatsApp group chats and have sent and received inappropriate WhatsApp messages within these groups with other members of the treecutting team. These messages include highly offensive, discriminatory and pornographic content. As well as sharing inappropriate content on WhatsApp groups, it is alleged that you have made inappropriate comments which could constitute sexual harassment.”

b. “As 2nd in charge in the team you have failed to challenge inappropriate behaviours within the team; this includes inappropriate comments made to individuals, messages sent on the WhatsApp group, as well as safety violations identified through a review of the WhatsApp messages.”

[34]The invite letter informed the claimant that, if upheld, the allegations could potentially constitute gross misconduct, as well as be in breach of the Respondent’s policies, and result in the termination of his employment, without notice or payment in lieu. The letter enclosed the relevant documentation obtained as part of the investigation, including the detailed Investigation Report which included each of the claimant’s communications and all the material and the claimant was informed that such documentation would be referred to at the Disciplinary Hearing. Disciplinary hearing

[35]The Disciplinary Hearing took place on 5 February 2024 by video call. Mr Cowdale (Planned Work and Resource Manager) chaired the hearing. A Case Manager was present as procedural advisor and the hearing was recorded. The claimant was accompanied by a Trade Union Representative.

[36]In 2012 Mr Cowdale had posted one inappropriate Halloween message on his personal social media and had forwarded a post about theft of pub glasses in 2021. His posts had been removed and were of an entirely different character and volume from those of the claimant’s

[37]In response to the allegations, the claimant accepted responsibility for the WhatsApp messages he posted, saying that it was ‘banter’. However, the claimant denied asking a female colleague an inappropriate question which had been put to him. The claimant accepted that there was crossover between the two WhatsApp groups. The Hearing was adjourned, and the claimant was informed that he would be informed of the decision in due course.

Outcome

[38]At a reconvened Hearing on 23 February 2024 the outcome was confirmed. This was set out in detail in writing by letter dated 26 February 2024. The letter confirmed Mr Cowdale’s decision. He had decided the claimant had personally been responsible for sharing discriminatory, offensive and pornographic content, and had failed to challenge inappropriate behaviours within the team. These points were upheld. He found insufficient evidence to substantiate whether the claimant had made comments to a female colleague which could constitute sexual harassment and this allegation was not upheld.

[39]In response to the claimant’s position that he did not realise posting such messages using his personal phone was against the respondent’s rules, Mr Cowdale noted that a number of the messages were sent during work hours, to other individuals within the team and interspersed with work-related messages. Furthermore, Mr Cowdale noted that some of the inappropriate messages were sent on the WhatsApp ‘Work Group’. As such, Mr Cowdale concluded such behaviour was unacceptable.

[40]Mr Cowdale concluded that the allegations which were upheld against the claimant constituted gross misconduct and, due to their serious nature, the appropriate sanction in the circumstances was summary dismissal. He considered a sanction short of dismissal but in light of the context decided dismissal was an appropriate and fair sanction. Treatment of others

[41]Others within the claimant’s team who had been involved in the sending and receiving of the messages had also been engaged in a disciplinary process. Mr Cowdale considered each individual case on its merits, examining what each individual did, said or did not do and he reached a decision based upon the information before him in respect of each individual. Each case was considered independently. Following the process a number were dismissed on grounds of gross misconduct and 2 staff received a final written warning. The claimant’s line manager who had participated in the communications had resigned. A further 2 employees were dismissed by reason of gross misconduct subsequently.

[42]The outcome letter confirmed that the claimant’s final day of employment was 23 February 2024 and informed the claimant of his right of appeal.

[43]Following the issues that the respondent discovered in this case, information was disseminated to staff reminding them of the respondent’s position in relation to equality and staff communications. Claimant’s appeal

[44]The claimant appealed against the decision by email dated 29 February 2024 setting out a number of grounds which he said required the decision to be reconsidered. Others who had been dismissed had also appealed. The appeal officer was responsible for dealing with each appeal that arose. Given the number of individual arising and the challenges with diaries, she offered the individuals a collective appeal but this was rejected and each appeal was dealt with on an individual basis. There was no pressure applied upon the claimant to accept a collective appeal and he declined the offer and his individual hearing was arranged.

[45]The Appeal Hearing took place on 16 May 2024. Ms Joynson (Head of Minor Connections) chaired the Appeal Hearing. She was more senior to Mr Cowdale, and had not previously been involved in the disciplinary process. Another Case Manager attended as procedural advisor. The claimant was accompanied by a Trade Union Representative.

[46]At the appeal hearing the claimant set out in detail why he believed the decision should be revisited and each point was considered in detail. The claimant was told following the hearing, which lasted for around an hour, that a decision would be given in due course.

[47]Ms Joynson wrote to the claimant by letter dated 4 June 2024 to confirm her decision, and the rationale for it. It confirmed that after investigating each ground of appeal, Ms Joynson concluded that there were no grounds upon which to overturn, or interfere with, the original decision. Ms Joynson’s letter confirmed that her view was that a full and thorough investigation had been carried out and that dismissal was an appropriate and fair outcome. Observations on the evidence

[48]The Tribunal considered the evidence carefully and in context of all the evidence before this Tribunal, both in writing and that presented orally.

[49]Mr Cowdale was clear and consistent. He genuinely considered the claimant’s case on its own merits as he did the other individuals whose cases he heard. He properly identified the issues arising from the investigation and gave the claimant the opportunity to provide his response. He was candid and clear. His personal social media posts were entirely different from the claimant’s, being few in number and nowhere near as inappropriate.

[50]Ms Joynson similarly considered the appeal carefully and thoroughly. She fully examined the issues the claimant raised and reached her own view having assessed the points. Her evidence was clear and cogent and the Tribunal had no hesitation in accepting it.

[51]The claimant was also clear and candid. In a number of respects it was clear that it was only when he was presented with the facts that he understood the position. For example, initially he was arguing WhatsApp communications could not be covered by the social media policy but when presented with the Policy definitions, it was clear that the policy did cover such communications which he accepted. The same position applied to his argument as to inconsistency of treatment. Again this was an argument based upon the claimant’s belief but upon detailed analysis and scrutiny of the evidence, the claimant fairly and candidly accepted that he did not have the evidence upon which to prove that which he believed. The claimant accepted what he had done was wrong but believed that he should have received a second chance.

[52]The claimant accepted that the WhatsApp content he shared could be regarded as offensive and that there was no way of guaranteeing that others in the group were not offended by it. He accepted that even if someone had participated with the ‘banter’ previously, they could still be offended by some of the content shared and even although the WhatsApp groups were private, there would be nothing stopping people from screenshotting the content and disseminating the information elsewhere.

[53]The parties had been able to agree the key aspects of the evidence necessary to determine the issues in this case. The claimant accepted that he had sent the messages in question and that the messages were to be found in both groups and that there had been a merging on occasion of both chats. The claimant accepted he had been given the relevant training and understood the respondent’s position in relation to diversity, inclusion and equality, even if the training had been due to be re-run. The dispute in this case was essentially about whether the claimant’s admitted actions when viewed in context justified his dismissal, applying the legal tests.

[54]The claimant was also unhappy as to a consequence of his dismissal being that the respondent did not permit him to work on their network, but that was not relevant to the fairness of his dismissal, such action post dating it. While it may have been preferable for the respondent to have expressly let the claimant know of this potential outcome, there was no requirement to do so

Law

[55]This is a claim for unfair dismissal. The Tribunal has to decide whether the employer had a reason for the dismissal which was one of the potentially fair reasons for dismissal within section 98(1) and (2) of the Employment Rights Act 1996 and whether it had a genuine belief in that reason. One of the potentially fair reasons is for matters relating to “conduct”. The burden of proof here rests on the respondent who must persuade the Tribunal that it had a genuine belief that the employee committed the relevant misconduct and that belief was the reason for dismissal.

[56]Once an employer has shown a potentially fair reason for dismissal within the meaning of section 98(2), the Tribunal must go on to decide whether the dismissal for that reason was fair or unfair which involves deciding whether the employer acted reasonably or unreasonably dismissing for the reason given in accordance with section 98(4).

[57]Section 98(4) provides that the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer): “Depends on whether in the circumstances (including the size and administrative rescores of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and shall be determined in accordance with equity and the substantial merits of the case.”

[58]What a Tribunal must decide is not what it would have done but whether the employer acted reasonably; Grundy (Teddington) Ltd v Willis HSBC Bank Plc (formerly Midland Bank plc) v Madden

2000 ICR 1283

. It should be recognised that different employers may reasonably react in different ways and it is unfair where the conduct or decision making fell outside the range of reasonable responses. The question is not whether a reasonable employer would dismiss but whether the decision fell within the range of responses open to a reasonable employer taking account of the fact different employers can equally reasonably reach different decisions. This applies both to the decision to dismiss and the procedure adopted.

[59]Mr Justice Browne-Wilkinson in his judgement in Iceland Frozen Foods Ltd v Jones ICR 17, in the Employment Appeal Tribunal, summarised the law. The approach the Tribunal must adopt is as follows: “The starting out should always be the words of section 98(4) themselves. In applying the section, a Tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the Tribunal) consider the dismissal to be fair. In judging the reasonableness of the employer’s conduct, a Tribunal must not substitute its decision as to what was the right course to adopt. In many (though not all) cases there is a band of reasonable responses to the employee’s conduct in which the employer acting reasonably may take one view, another quite reasonably take another. The function of the Tribunal, as an industrial jury, is to determine whether in the circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which the reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair, it is falls outside the band it is unfair.”

[60]In terms of procedural fairness, the (then) House of Lords in Polkey v AE Dayton Services Ltd

1988 ICR 142

firmly establishes that procedural fairness is highly relevant to the reasonableness test under section 98(4). Where an employer fails to take appropriate procedural steps, the Tribunal is not permitted to ask in applying the reasonableness test whether it would have made any difference if the right procedure had been followed. If there is a failure to carry out a fair procedure, the dismissal will not be rendered fair because it did not affect the ultimate outcome; however, any compensation may be reduced. Lord Bridge set out in this case the procedural steps which an employer in the great majority of cases will be necessary for an employer to take to be considered to have acted reasonably in dismissing: ”in the case of misconduct, the employer will normally not act reasonably unless he investigates the complaint of misconduct fully and fairly and hears whatever the employee wishes to say in his defence or in explanation or mitigation.”

[61]Where the employer relies on conduct as the fair reason for dismissal, it is for the employer to show that misconduct was the reason for dismissal. According to the Employment Appeal Tribunal in British Home Stores v Burchell

1980 ICR 303

the employer must show: It believed the employee guilty of misconduct; It had in mind reasonable grounds upon which to sustain that belief; and At the stage at which that belief was formed on those grounds it had carried out as much investigation into the matter as was reasonable in the circumstances. The employer need not have conclusive evidence of misconduct but a genuine and reasonable belief, reasonably tested. The burden of proof is on the employer to show a fair reason but the second stage of reasonableness is a neutral burden. The Tribunal must be satisfied that the employer acted fairly and reasonably in all the circumstances in dismissing for that reason, taking account of the size and resources of the employer, equity and the substantial merits of the case.

[62]In Ilea v Gravett

1988 IRLR 487

the Employment Appeal Tribunal considered the Burchill principles and held that those principles require an employer to prove, on the balance of probabilities that he believed, again on the balance of probabilities, that the employee was guilty of misconduct and that in all the circumstances based upon the knowledge of and after consideration of sufficient relevant facts and factors he could reasonably do so. In relation to whether the employer could reasonably believe in the guilt, there are an infinite variety of facts that can arise. At one extreme there will be cases where the employee is virtually caught in the act and at the other extreme the issue is one of pure inference. As the scale moves more towards the latter, the matter arising from inference, the amount of investigation and inquiry will increase. It may be that after hearing the employee further investigation ought reasonably to be made. The question is whether a reasonable employer could have reached the conclusion on the available relevant evidence.

[63]In that case the Employment Appeal Tribunal upheld the Tribunal which found that the employer had not investigated the matter sufficiently and therefore did not have before them all the relevant facts and factors upon which they could reasonably have reached the genuine belief they held. The sufficiency of the relevant evidence and the reasonableness of the conclusion are inextricably entwined.

[64]The amount of investigation needed will vary from case to case. In Gray Dunn v Edwards

EAT/324/79

Lord McDonald stated that “it is now well settled that common sense places limits upon the degree of investigation required of an employer who is seized of information which points strongly towards the commission of a disciplinary offence which merits dismissal.” In that case the Court found that further evidence would not have altered the outcome as the employer had shown that they would have taken the same course even if they had heard further evidence. That was a case which relied upon the now superseded British Labour Pump v Byrne

1979 IRLR 94

principle but emphasises that the amount of investigation needed will vary in each case. Thus in RSPB v Croucher

1984 IRLR 425

the Employment Appeal Tribunal held that where dishonest conduct is admitted there is very little by way of investigation needed since there is little doubt as to whether or not the misconduct occurred.

[65]A Tribunal in assessing the fairness of a dismissal should avoid substituting what it considers necessary and instead consider what a reasonable employer would do, applying the statutory test, to ensure the employer had reasonable grounds to sustain the belief in the employee’s guilt after as much investigation as was reasonable was carried out. In Ulsterbus v Henderson

1989 IRLR 251

the Northern Irish Court of Appeal found that a Tribunal was wrong to find that in certain circumstances a reasonable employer would carry out a quasi-judicial investigation with confrontation of witnesses and crossexamination of witnesses. The court emphasised that the employer need only satisfy the Tribunal that they had reasonable grounds for their beliefs.

[66]In considering the procedure, a Tribunal should apply the range of reasonable responses test and not what it would have done (see Sainsburys v Hitt

2003 IRLR 23

[67]The Court in Babapulle v Ealing

2013 IRLR 854

emphasised that a finding of gross misconduct does not automatically justify dismissal as a matter of law since mitigating factors should be taken into account and the employer must act reasonably. Length of service can be taken into account (Strouthous v London Underground

2004 IRLR 636

[68]In considering a claim for unfair dismissal by reason of conduct, the Tribunal is required to consider the terms of the ACAS Code of Practice on Disciplinary and Grievance matters. This sets out what a reasonable employer would normally do when considering dismissal by reason of conduct. This includes conducting the necessary investigations, inviting the employee to a meeting, conducting a fair meeting, issuing an outcome letter and allowing an appeal.

[69]The reasonableness of the decision to dismiss is scrutinised at the time of the final decision to dismiss – at the conclusion of the appeal process (West Midland v Tipton

1986 ICR 192

). This was confirmed in Taylor v OCS

2006 IRLR 613

where the Court of Appeal emphasised that there is no rule of law that only a rehearing upon appeal is capable of curing earlier defects (and that a mere review never is). The Tribunal should consider the disciplinary process as a whole and apply the statutory test and consider the fairness of the whole disciplinary process. If there was a defect in the process, subsequent proceedings should be carefully considered. The statutory test should be considered in the round.

[70]Section 98(4)(b) requires tribunals to determine the reasonableness of a dismissal ‘in accordance with equity and the substantial merits of the case’. Equity, in this context, is equivalent to ‘fair play’. As Lord Simon stated in W Devis and Sons Ltd v Atkins

1977 ICR 662

‘the reference to “equity and the substantial merits of the case” merely shows that the word “reasonably” is to be widely construed’. Submissions

[71]The respondent had provided the claimant with detailed written submission which he was able to consider and the claimant had been able to set out in the statement of agreed facts and disputed issues what his position was in relation to each part of his complaint. Both parties were able to provide oral submissions on the final day and answer questions from the Tribunal. The submissions of both parties have been fully taken into account. Decision and discussion

[72]The Tribunal considered each aspect of the claim the claimant advanced in turn in light of the evidence and applicable law. Belief in guilt of claimant genuinely and honestly held

[73]The claimant accepted that the reason for his dismissal was a potentially fair one, namely matters relating to conduct and so the first issue was whether the respondent genuinely and honestly believed in his guilt. There was no real dispute in relation to this. The respondent had carefully investigated matters and concluded that the claimant had sent inappropriate messages which resulted in him having been guilty of misconduct. That was a belief that was genuinely and honestly held by the respondent. Was the investigation fair

[74]One of the key grounds of challenge was whether or not the respondent’s belief was arrived at following such investigation that was reasonable in the circumstances. The claimant’s position was that the respondent had not properly nor fully investigated the matter.

[75]The first challenge the claimant raised was that the respondent only discovered his misconduct because a colleague about whom the claimant had complained had raised the issue during the investigation against that individual. The claimant’s position was “that a responsible employer would have protected its staff especially as it was another case of bullying put”. This was not accepted by the respondent, and it was denied this was relevant to the points the Tribunal had to determine given since the claimant did not dispute the WhatsApp content.

[76]The fact the claimant’s misconduct arose in the course of an investigation into another employee is not a relevant consideration in determining whether the claimant’s dismissal was fair or not. There was no doubting the claimant had done the right thing in raising issues about inappropriate conduct of others, but that did not change the fact that the claimant himself (and others) had also been guilty of misconduct.

[77]The claimant also argued that the investigation was unfair because no “terms of reference” had been provided to him at the investigation stage. There is no rule of law that requires an employer to set out in writing precisely what is being investigated. It is common for employers to speak with employees to find out what the position is before reaching any conclusions to ensure all the facts have been obtained. The failure to set out the terms of reference of an investigation had no bearing on the fairness of the dismissal in this case given the clarity of the information provided to the claimant in relation to the disciplinary hearing where he was told precisely what the position was. In any event the claimant did not deny sending the messages in question.

[78]The claimant had also argued that the investigation was unfair because he had produced a message another employee had been sent and he said the respondent failed to timeously investigate such misconduct and this negatively impacted upon him because others had erroneously thought he was involved. In fact the individuals responsible for the other material had been dismissed. The time scale was different because they were subject to different proceedings. The respondent was right in its submission that this issue was not relevant to whether or not the claimant’s dismissal was unfair. The focus is in relation to what the claimant had done, his misconduct, and the respondent’s assessment of that in the circumstances.

[79]Finally the claimant argued that the investigation was poor because the Investigating Officer wrongly “used own personal feelings and opinions”. From the Tribunal’s assessment of the investigation, that was not a fair criticism to make. The investigation that was undertaken was thorough and even-handed. The investigator carefully considered all the material before him, examining each of the messages and communications and providing these in the Report. The claimant fully understood what the respondent’s concerns were. Given the claimant had sent the messages and accepted having done so and given it was clear he knew some of them were inappropriate, there was little more the investigator could have done. The claimant was given a fair chance to explain his position. There was no suggestion there were other matters the claimant had raised about his actions that were not taken into account. The material in question was so obviously material that would be reasonably regarded as inappropriate and inconsistent with the respondent’s approach.

[80]The respondent’s agent’s submissions that any relevant information which was provided by the claimant during the disciplinary process was properly taken into account and that evidence of other employees’ wrongdoing did not exculpate the claimant were sound. The investigation into the claimant’s wrongdoing was robust and fair. The claimant knew what he had sent and that they could fairly lead to disciplinary action being taken against him.

[81]The key question with regard to the investigation is whether the investigation fell within the range of responses available to a reasonable employer investigating the issues before the respondent pertaining to the claimant. In this case, the respondent went through scores of WhatsApp conversation transcripts and screenshots; interviewed thirteen employees including the claimant and reviewed a number of relevant policy documentation which resulted in an Investigation Report being produced which ran to 208 pages (inclusive of 27 appendices). The respondent ensured that it had everything it needed to make a reasonable and informed decision about the allegations against the claimant having given the claimant the opportunity to present a full response. His case was considered on its own merits.

[82]The respondent’s agent argued that in coming to its decision, the respondent followed a fair process and adhered to the standards set out in the ACAS Code of Practice. In particular:a. the respondent acted promptly and did not unreasonably delay the disciplinary process;

b. the respondent carried out an investigation to establish, so far as was possible, the facts of the case;

c. the claimant was informed of the allegations against him and provided with copies of all the material in question in advance of the Hearing;

d. the claimant was informed in advance that the allegations could constitute gross misconduct and could lead to summary dismissal without notice or payment in lieu;

e. the claimant was able to put forward his case at a Hearing;

f. an impartial decision maker was appointed to chair the Hearing;

g. the claimant was given the opportunity to be accompanied throughout the disciplinary process;

h. the claimant was afforded the opportunity to appeal the respondent’s decision, which he took;

i. a more senior and impartial decision maker was appointed to chair the Appeal Hearing; and

j. the claimant was informed of the respondent’s decision, and the rationale for it in detail, after both the Disciplinary and Appeal Hearing.

[83]That was a sound submission which the Tribunal accepted. The investigation (and process) was not perfect but it was reasonable and fair on the facts.

[84]The claimant argued that the respondent had “wrongly offered the claimant and his colleagues a collective appeal, and that pressure was placed on him in this regard”. The Tribunal found this not to be correct. The claimant, along with other employees who had been subject to disciplinary proceedings on similar terms, were offered a collective appeal hearing in order to expedite matters as there had been delays finding a suitable date for the Appeal Hearing. That was one option offered amongst many, no pressure was placed on the claimant in this regard and was ultimately not pursued. The approach the respondent took was fair and reasonable.

[85]The claimant argued the allegations against him were not framed correctly, and that the second part of allegation 1 should have been a standalone allegation. Nevertheless the claimant accepted that he was given fair notice of the allegations in advance of the Disciplinary Hearing and that, in any event, it had no bearing on the ultimate decision as the second part of Allegation 1 was not upheld. There was consequently no unfairness arising from that position as the claimant knew what each of the allegations were, his position was taken into account and a decision taken from the material available.

[86]Having carefully assessed the evidence, the Tribunal finds that the respondent genuinely and honestly believed in the guilt of the claimant following as much investigation that was reasonable on the facts. Decision to find the claimant guilty of gross misconduct

[87]The Tribunal then considered whether the respondent acted reasonably in light of the investigation and facts in concluding the claimant was guilty of conduct justifying his dismissal. There was no doubt that the claimant had participated in the WhatsApp chats both as an author and as a recipient. During the disciplinary process, the claimant admitted to sharing the content relied upon. The respondent’s agent correctly argued that given the nature of the content, it was self-evident it constituted misconduct. The claimant conceded this to be so.

[88]Examples relied upon from the “Banter” group included the claimant sharing pornographic videos, sharing a GIF of a severely disabled girl in a wheelchair, which stated “when someone puts ice down your back”, sharing an explicit image stating “sexual position, number 47, The George Floyd” with a man appearing to pin down a woman with his foot on her head whilst having intercourse, sharing an image of a person with bloody fingers, stating, “When you realize she’s probably not as turned on as you think”. Examples relied upon from the “Work Stuff Only” group included the claimant asking for a new employee to be added to the group so the claimant could “rip him a new one”, repeatedly using the word “cunt”, including in reference to colleagues, saying “it’s not rape when he pushes back”, saying to a colleague “now you know how your parents felt when they had you #letdown” and sharing a photo of a person with down’s syndrome, saying “can’t produce fuck all with only one bollock” in relation to an employee who had had testicular cancer and referring to colleagues as “cunts”. These were a sample of the type of content in which the claimant was involved which could reasonably be regarded as inappropriate justifying disciplinary action, being misconduct.

[89]The respondent’s agent was correct to refer to the context in which the material was shared – on both the “Banter” and “Work Stuff Only” groups. The Work Stuff Only group was intended as a forum used to communicate about work. It contained details of jobs, requests for timesheets, holiday requests, company credit card details. Work material was interspersed with inappropriate communications. It was clear that the Banter Group was not limited to a few of the claimant’s closest work friends. It was accepted new team members were added to it as a matter of course, and that what tied members together was their employment with the respondent. There was no way of knowing whether or not such individuals were happy with the material being sent. There was clear crossover between the two groups, with an evident nexus to work and a direct impact on the working environment. The Tribunal accepted the respondent’s agent’s assertion that as such, the claimant’s comments in both groups fell squarely within the respondent’s remit, entitling the respondent to regard it as misconduct.

[90]The Tribunal considered that even if only the work group material fell to be considered, the outcome of the Tribunal’s deliberations would have been no different given the nature of the material sent by the claimant on that chat.

[91]The claimant accepted that even although the WhatsApp groups were ostensibly private, there was nothing stopping people from screenshotting the content and disseminating the information elsewhere or if a person changed their mind as to the acceptability of such communications. There was also a clear risk of such content being leaked externally and picked up by the media which gave rise to severe reputational risk in an area known to be of concern to the respondent. The respondent also properly considered the frequency and timing of the claimant’s WhatsApp messages - throughout the day, including during working hours.

[92]The respondent’s agent noted that when deciding what constitutes misconduct, consideration must be given to the standards communicated by the respondent to its workforce. During cross-examination, the claimant conceded that some of the content he shared could be regarded as offensive and constituted a breach of his contract of employment, as well as the company’s policies given the definition of “bullying and harassment” as defined therein. He also accepted that the fact he used his personal phone in the WhatsApp groups was immaterial in terms of the respondent’s policies and procedures, in particular the Employee Rules. The claimant accepted that the Social Media policy was intended to be wide and all-encompassing such that WhatsApp, whilst not expressly referenced, was covered under the respondent’s definition of “social media”. The claimant accepted that his conduct could constitute gross misconduct under the respondent’s policies, and rightly conceded that the respondent was entitled to take disciplinary action as a result. That was a fair concession to make.

[93]The respondent’s agent submitted that the claimant accepted that he had received training on diversity and inclusion in June 2021 and should have been aware of the importance of this to the respondent. The training clearly outlined the respondent’s views on the topic, and what the law dictates in terms of discrimination and harassment. It also explained the costs of getting it wrong and the impact of not demonstrating inclusive behaviours. It is clear that the respondent had gone beyond what many employers deem necessary, both in terms of policies and investment in training – to make clear the standards expected of employees, and this is relevant when assessing the respondent’s belief in the claimant’s misconduct. The principles were known by the claimant (irrespective of any refresher training that was due).

[94]The final factor referred to by the respondent was the claimant’s awareness of wrongdoing. In the WhatsApp messages, the claimant made references to such conduct not being allowed under the employee handbook, such that he was clearly cognisant of the fact that the behaviour would not be condoned. That was a reasonable submission to make and the Tribunal accepted it.

[95]There was sufficient information on which a reasonable employer could uphold the first allegation, as the respondent did, which justified the finding that the claimant had been guilty of misconduct. Mr Cowdale said the first allegation by itself would have justified dismissal given its severity. That was a reasonable position to adopt given the nature of the conduct (even if one only takes into account the material on the work account).

[96]With regard to the second allegation, which was based on the claimant’s failure to challenge inappropriate behaviour within the team, as opposed to reporting the content of the chat to management or through the respondent’s Grievance or SafeCall procedures, Mr Cowdale was of the view that even if the claimant was not officially appointed as deputising for his manager, this was how others perceived him. From the evidence, this was an entirely reasonable belief to reach. The fact-find statements of others clearly showed that the claimant’s colleagues all considered the claimant to be second in command (ie more senior than themselves). That position was also consistent with the messages that the claimant sent in the “Work Stuff Only” group regarding timesheets, work instructions and job details. While the claimant was only doing that which he was asked by his line manager, it was clear his line manager trusted him sufficiently to delegate tasks to him such that his colleagues considered him to have a more senior role. The claimant who undertook some management duties failed to call out inappropriate material and took an active role in the group, knowing he was undertaking such duties.

[97]In any event, the respondent had shown the claimant that all staff require to take responsibility and call out any inappropriate material. There was no reason why the claimant could not have done so, given the different routes the respondent created to allow staff to report concerns. The claimant had used one such route to call out other inappropriate conduct and there was no reason he could not have done so in relation to the material he discovered, both from his line manager and his colleagues.

[98]The respondent did not uphold the allegation relating to the claimant having made inappropriate comments as to a female colleague. That showed that the respondent genuinely applied its mind to each issue and fairly considered the material. The allegations and facts were considered objectively.

[99]There was a clear and reasonable basis to uphold the second allegation from the information before the respondent. The claimant had undertaken some management tasks and knew that he was regarded as more senior by his colleagues in light of his agreement so to do. He ought to have challenged the inappropriate behaviour given the respondent’s approach and his role.

[100]The claimant argued that it was unfair to uphold the second allegation because he was been penalised for ‘helping out’ and he had never officially been appointed as a supervisor. The respondent accepted the claimant was never officially appointed as second in command, its position is that this is what he was in practice and that the evidence supports that is how others perceived him. That was the position as a matter of fact. The claimant accepted that his colleagues had formed the view that he was second in command and the conclusion reached by Mr Cowdale on the facts before him was reasonable given the facts and context.

[101]On the facts the claimant was fairly and properly found to have been guilty of conduct that could justify his dismissal. Sanction

[102]The next issue relates to the severity of the sanction since a finding of gross misconduct does not automatically mean a dismissal is fair, which is assessed from all the facts. The claimant accepted he was guilty of misconduct. During the Hearing he candidly and fairly conceded that his messages were legitimately taken into account by the respondent. While he had not checked the position at the time, having been presented with the relevant material, he accepted, correctly, that his messages were properly taken into account given the context (irrespective of the fact that the messages were sent from his personal phone or on WhatsApp).

[103]The claimant’s contention was that dismissal was disproportionate or in other words outside the range of responses open to a reasonable employer. He relies upon the size of the respondent and the fact that his training had not been repeated within the timescale set out and that his manager had been involved in the inappropriate messages.

[104]In assessing whether or not the respondent acted fairly and reasonably in dismissing the claimant, it is important to take into account the full factual background, including size, resources, equity and the substantial merits of the case. The Tribunal has taken time to do so in this case.

[105]In this case the claimant knew of the respondent’s approach to inappropriate messages. The claimant had undergone training and knew the respondent took a serious view of equality, diversity and inclusion. He understood that rather than simply paying lip service to these principles, the respondent regarded breaches of the principles seriously. He had noted this himself in his messages. In cross examination the claimant conceded that it was reasonable to expect that disciplinary action would be taken. The key issue was whether dismissal was within the range of reasonable responses on the facts.

[106]It is important not to substitute the Tribunal’s view as to whether it would have dismissed the claimant and instead look at matters from the perspective of a reasonable employer in all the circumstances given the size and resources of the employer in this case in light of equity and the merits of the case.

[107]The claimant initially argued that it was unfair to dismiss him because 2 others had not been dismissed. They had received a serious sanction, final written warning. However, the circumstances surrounding the individuals who had received a final written warning were not identical to the claimant. They had sent different messages, made different comments and there was no evidence as to what their response at the disciplinary hearing was (which could have explained why their outcome was different). The claimant accepted that it was not possible to say that those individuals’’ circumstances were the same as the claimant’s and he did not pursue that argument.

[108]The respondent’s agent argued that the claimant was found to have shared discriminatory, offensive and pornographic content with colleagues on WhatsApp and, as second in charge, failed to challenge inappropriate behaviours in the team. The claimant did not dispute that fact.

[109]The respondent’s agent noted that different employers take different approaches as to whether or not certain conduct justifies summary dismissal and discriminatory behaviour will almost always be found to constitute gross misconduct justifying dismissal. In this case, the conduct was in direct contravention of the respondent’s principles, which were clearly and repeatedly stated to employees, including the claimant. Diversity and inclusion was of the utmost importance to the respondent. That was evident in how the issue was dealt with once it was brought to their attention. There was no doubt that the respondent did not condone such behaviour and the claimant knew or ought to have known that. That was a fair submission.

[110]While the claimant’ s line manager had been involved, that did not absolve the claimant (or his colleagues) from individual responsibility for the material. Each individual had a duty not to send such material and call out any wrongdoing (even if their line manager did not comply with the rules). The claimant had failed to take any steps to call out the behaviour and instead fully participated in it and, at the very least, condoned the behaviour. He knew the material was inappropriate and contrary to the respondent’s stated position. The respondent took the line manager’s involvement into account but the claimant (and his colleagues) required to take responsibility for their actions.

[111]The respondent’s agent argued the respondent was entitled to conclude that the claimant’s conduct fundamentally undermined the trust and confidence in the employment relationship, such that a warning would not be sufficient to capture the seriousness with which they regarded his behaviours. That was a fair position to adopt given the seriousness of the behaviour. Mr Cowdale was clear that dismissal would have resulted from the first allegation alone which would have been a fair and reasonable position to adopt given the seriousness of the conduct in question.

[112]The respondent’s decision to dismiss the claimant was consistent with the decision taken in cases involving other employees where they were found to have shared discriminatory, offensive and pornographic content with colleagues on WhatsApp to a similar extent as the claimant whose conduct was considered to be sufficiently similar on their facts. It is important to note, however, that this Tribunal is only considering the claimant’s case given each employee’s circumstances are unique to them.

[113]The respondent was a large employer had the claimant had been clearly shown what their approach to this type of conduct was. The size of the respondent and its resources are taken into account. The claimant understood or ought reasonably to have understood that the nature of the communication was such that the respondent would consider sufficient to amount to gross misconduct. The claimant’s individual circumstances were fairly and fully taken into account. The context was carefully considered and weighed in the balance. The claimant’s knowledge and training was known as was his position in relation to the policies and his explanation and mitigation.

[114]The claimant argued that summary dismissal was “too severe a sanction” and that a final written warning would have been more appropriate taking account of the actions of management, as well as the fact that additional Social Media training was rolled out in January 2024, in support of his position. The Tribunal took this into account bearing in mind the Tribunal must not substitute its decision for that of the respondent but instead consider whether the decision in all the circumstances fell within the range of responses open to a reasonable employer on the facts.

[115]The fact there was some lack of clarity as to the policies or that further training was considered necessary did not alter the fact that the claimant’s conduct was such as to justify his dismissal in light of the facts of this case. The claimant knew the key principles from the training that he had and that was due to be repeated. There is no doubt an equally reasonable employer may well have considered a final written warning appropriate but there is no doubt that an equally reasonable employer could have chosen to dismiss. The fact the respondent chose to issue guidance or provide more information following this incident as to social media use etc did not alter the fairness of the decision in light of the material before the respondent (and claimant) at the time which fell within the range of responses open to a reasonable employer.

[116]The claimant also argued that the chair of the Disciplinary Hearing “used own personal feelings and opinions”. That was not a fair criticism. While the chair had issued personal posts on his own social media account that some might not like and some could consider offensive, the material the claimant had communicated was materially and demonstrably different and more severe and offensive. The claimant’s conduct demonstrated a clear pattern of behaviour (which was not evident from the chair’s approach). The chair of both the disciplinary and appeal hearings considered matters objectively and viewed the posts from the position of a reasonable observer (irrespective of their personal opinions, views or posts, which were entirely irrelevant). Their conclusions could not reasonably be challenged given the context and facts of this case. Mr Cowdale viewed matters objectively (as confirmed on appeal), irrespective of his personal position (or personal posts outside work).

[117]The respondent’s agent argued that employers should not be criticised for tackling harmful behaviours when they arise and that such actions are essential to maintaining a respectful and safe workplace, ensuring compliance with legal obligations and promoting a culture that values every individual’s contribution and rights. The Tribunal considered that submission to have merit. It is important employers ensure all employees are aware of the legal environment in which they operate to ensure equality of opportunity and fairness to all staff. The respondent’s agent was also correct to note that provided expectations and consequences are made clear to employees, and a fair process is followed, taking a strong stance against harmful behaviour demonstrates a commitment to upholding ethical standards and protecting the wellbeing of all employees. That is what the respondent did in this case.

[118]Taking a step back and considering all the circumstances, the claimant’s dismissal fell within the range of responses open to a reasonable employer. The Tribunal avoids applying counsel of perfection. The fact other reasonable employers may have chosen to issue a final written warning and give the claimant a further chance to improve, does not mean an equally reasonable employer could decide on the facts of this case that the claimant’s conduct and when fairly viewed in context could not justify his dismissal.

Procedure

[119]Finally, the Tribunal took a step back to consider whether the procedure that the respondent followed in this case was a procedure that fell within the range of responses open to a reasonable employer. On the facts, it was. The claimant was fairly told of what the issues were and given the full information. His view was fully taken into account and genuine consideration was given to the full picture in light of the claimant’s position. The procedure adopted fell within the range of responses open to a reasonable employer. Fair dismissal

[120]On the facts of this case, the claimant’s dismissal was not unfair. Claimant’s dismissal not unfair

[121]The claimant’s dismissal being for a potentially fair reason, relating to conduct, and it having been fair and reasonable to dismiss the claimant in all the circumstances for that reason, taking account of size, resources, equity and the merits, the claim is dismissed.