Mr S Waton v Clydesdale Bank plc T/a Virgin Money: 8001244/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8001244/2024Venue GlasgowHearing 3, 4, 5, 6 & 7 February 2025
Between
Mr S WatonClaimantClydesdale Bank plc t/a Virgin MoneyRespondent
Before
Employment Judge P O’DonnellMs L MacDonald (instructed by Solicitor) for respondentDate 20 February 2025
JUDGMENT
The judgment of the Employment Tribunal is that the claims of unfair dismissal and discrimination arising from disability are not well-founded and are hereby dismissed.
REASONS
[1]The claimant has brought complaints of unfair dismissal under s94 of the Employment Rights Act 1996 and discrimination arising from disability under ss15 and 39(2)(c) of the Equality Act 2010. Both claims relate to the claimant’s dismissal.[2]The respondent resists both claims; they do not concede that the claimant is disabled as defined in s6 of the Equality Act; they say that the claimant’s dismissal was fair; they argue that the claimant’s dismissal was not an act of discrimination but, if it was, they sat that it was objectively justified.
Evidence
[3]The Tribunal heard evidence from the following witnesses:a. The claimantb. Katy Simpson (KS), colleague enablement manager, who carried out the investigation into the allegations against the claimant.c. Alan Little (AL), head of business direct, who chaired the disciplinary hearing and made the decision to dismiss the claimant.d. Deyrick Smith (DS), head of strategic finance for East Scotland, who heard the claimant’s appeal.[4]There was an agreed bundle of documents prepared by the parties which ran to just over 550 pages. A reference to a page number below is a reference to a page in that bundle.[5]This was not a case where the relevant facts were substantially in dispute; the sequence of events leading to the claimant’s dismissal was the subject of broad agreement amongst the witnesses and recorded in contemporaneous documents. The real dispute was what weight or interpretation should have been given to certain events or facts by the decision-makers in the case as well as whether they had done enough in terms of process to be entitled to make the decisions which they had.[6]The Tribunal’s decision does not, therefore, turn on any question of credibility or reliability of witness evidence. The Tribunal did consider that all those giving evidence had done their best to provide an honest recollection of the events of the case. Findings in fact[7]The Tribunal made the following relevant findings in fact.[8]The respondent is a banking business which operates across the country. The claimant commenced employment with the respondent on 4 January 2018 and occupied a number of roles at different branches of the respondent. At the time of the events giving rise to the present claim, the claimant was employed as a customer consultant at the respondent’s Paisley branch.[9]Towards the end of December 2023, KS was asked to carry out a disciplinary investigation into three allegations concerning the claimant’s conduct.[10]The first allegation (hereinafter referred to as “allegation 1”) relates to a customer complaint form lodged on 12 December 2023 (pp179-184). The form sets out the complaint as follows:-a. The customer attended the Paisley branch on 12 December 2023 to find out why her new card was not working. She went to a desk with a member of staff to deal with this.b. Two other members of staff, one of which was the claimant, were having a loud conversation at a nearby desk. The member of staff with the customer asked her colleagues to quieten down because she was on the phone but they did not hear her.c. The customer then raised her voice and asked the others to be quiet as she could not hear what was being said on the phone.d. The claimant appeared to take offence to this and told the customer in an aggressive way that he did not like her attitude.e. The customer was upset and asked the claimant to not speak to her like that. The customer described an argument between her and the claimant which continued until the claimant walked away.f. The customer described the claimant as rude and disrespectful.g. The form included a section where the member of staff completing the form set out their position. In this case it was the person who had been assisting the customer, Julie Philp, that completed the form. She set out a version of events which was in accord with the customer’s version of events.[11]The second allegation (hereinafter referred to “allegation 2”) related to events on 13 December 2023 when the claimant refused to work at the front of branch because he said it was too cold. This led to an altercation with his manager, Fiona McMenemy, which resulted in her sending him home.[12]The third allegation (hereinafter referred to as “allegation 3”) related to a social media post (p178) made by the claimant on 13 December 2023 in the following terms “Toxic as fuck and freezing cold to boot #livingalifemorevirgin”. The hashtag “living a life more virgin” is a phrase used in the respondent’s branding and recruitment material.[13]KS began her investigation on 10 January 2024 by interviewing the claimant’s manager, Fiona McMenemy. A note of that meeting was at pp185-190 and sets out the following relevant matters:a. Ms McMenemy was off on 12 December 2023 and was informed about the customer complaint when she was back in the branch the next day.b. She set out what she understood to have occurred in relation to allegation 1. This had been described to her by her deputy manager. She stated that there had been a verbal confrontation between the claimant and the customer which had been triggered by the customer asking the claimant to quieten down. This continued back and forth until Julie had intervened and then the deputy manager came out to the front of the branch to deal with it.c. She had also called the customer directly about her complaint and reported that the customer appeared to be disturbed by what had happened. She described the customer as saying that she did not expect to be spoken to in the way that the claimant had spoken to her.d. Ms McMenemy stated that she had managed the claimant at another branch and that there had been what she described as an “attack” by the claimant on another colleague. She stated that she was nervous speaking to the claimant but had tried to build a better relationship.e. In relation to allegation 2, Ms McMenemy explaining that the claimant had been complaining about how cold it was in the branch previously and had reported it to health and safety. He had indicated to the deputy manager that he would refuse to work if it was not fixed.f. After the claimant had raised the issue, engineers had been sent out to check the hearing and they confirmed that it was working properly. Additional oil heaters had been ordered to assist but had not yet arrived. Ms McMenemy explained there was an issue when the doors opened and let in cold air.g. On 13 December 2023, Ms McMenemy had been dealing with a fraud issue when the claimant again complained to her about the temperature. She told him that he was welcome to contact properties to find out when the oil heaters would arrive but that she could not deal with the issue at that point because she was dealing with a fraud issue. She sent the claimant for his lunch at around 11.30am to calm him down.h. After his lunch, Ms McMenemy asked the claimant to go out on “stage” (this is a reference to working in the front of the branch) to help deal with the queue. He replied that he would not do so because it was too cold. She offered him a jacket to use but he still refused.i. Ms McMenemy described herself stating to the claimant that she was his manager and asking him to go out and serve customers. She stated that she told him that other staff had not had their lunches yet and that she was asking him to help his team to which the claimant responded “who do you think you are talking to?”.j. At this point, Ms McMenemy decided that, to defuse the situation she would send the claimant home. She considered that there was a risk that, given how she perceived he was behaving, he could be rude and aggressive with customers even if he did agree to go out to serve them.k. In relation to allegation 3, Ms McMenemy explained that she had not seen the social media post herself as she was not on Facebook but that it had been drawn to her attention by a colleague.[14]On 15 January 2024, KS conducted an interview with Julie Philp. A note of this meeting was at pp191-193 and sets out the following relevant matters:a. She explained that a customer had come in who was worried out potential fraud and Ms Philp had taken her into a private space at the back to discuss the issue.b. Whilst Ms Philp was with the customer, the claimant and another member of staff, Ruth Johnston, had been having a chat which Ms Philp described as being louder than usual. Ms Philp had the respondent’s fraud team on the phone and asked the claimant and Ms Jones to quieten because she could not hear the phone. They did not appear to hear her as they continued to talk loudly.c. At this point, the customer turned to them and said “I mean guys, can you please shut up? I’m trying to deal with fraud and I’m quite frightened”.d. Ms Philp described the claimant taking steps towards the customer saying “Who do you think you are talking to?”. She stated that the claimant and the customer began to argue with each other. She described standing up and saying “enough” to both of them. She stated that the claimant would not let the issue go and kept coming closer. She described the claimant pointing at the customer.e. Ms Philp stated that she had the panic alarm in her hand and was trying to message the deputy manager to get her to come out.f. She stated that it felt like the incident had gone one for some time but had probably only been a few minutes. She described the incident ending when the claimant walked away saying “for fuck’s sake, I’m done. I’m not being spoken to that way”.g. Ms Philp stated that she could normally talk the claimant down from his outbursts and tantrums but on that day he had “seen red”.[15]On 2 February 2024, KS conducted an interview with the claimant via Teams. At this time, he was absent from work; he had gone off sick shortly after the incidents giving rise to the investigation and remained absent from work until he was dismissed. The Tribunal does note that later fit notes state that the claimant would be fit to return to work if he was given alternative work or a different workplace.[16]A minute of the interview is at pp194-198 and records the following relevant matters:a. In relation to allegation 1, he described the customer coming into the branch and Ms Philp dealing with her. He stated that he was having a chat with Ms Jones and accepted that this could have been a bit loud.b. The claimant stated that the customer abruptly turned to him and Ms Jones and shouted at them to shut up and that they were being inappropriate and rude. The claimant stated that at this point he recognised the customer as someone he had dealt with previously when she had asked him to contact the fraud team and he explained that he could not do so.c. The claimant said that he said sorry to the customer and that they had not intended to be rude. He described saying to the customer that there was a way of saying things and she had not approached them in the right way but had been quite rude herself. He described the customer saying that he should be speaking back to her and should apologise. He replied asking what he had done wrong.d. He stated neither Ms Philp or Ms Jones intervened and just had their heads down.e. In relation to allegation 2, the claimant explained that he had been complaining about the temperature in the store for some time and that he had raised the fact that it was below the minimum temperature set by the government. However, he considered that nothing was being done about it.f. On the day in question, the claimant stated that he had told Ms McMenemy that he was loaded with the cold and that it was freezing, making him feel more ill. He went for his lunch and was then working on tasks in the back office.g. When Ms McMenemy asked him to work at the front, he said to her that he had told her that he was not going out there because it was freezing cold and making him ill. When she told him to go out to the front, he accepted that he had replied “who is it you think you’re speaking to?” and she said she was his boss and was telling him what to do. He replied he was going to contact HR and she replied “don’t bother, just go home, this isn’t working”.h. In respect of allegation 3, the claimant stated that there had been a lot of assumptions and no-one had asked him about it. He asserted that what he had written was not a bad thing and it was how he was feeling about everything in the world was and how his life was, toxic and cold.i. The claimant stated that the reference to the hashtag was about fresh starts and getting up and taking it a day at a time. He did not perceive it as a work thing. The hashtag was not trademarked by the respondent.[17]The claimant did not consider that the minute at pp194-198 accurately reflected his discussion with KS and he produced additional minutes (pp284- 291) which he said were missing. These were based on the recording of the meeting made as part of Teams and were provided to AL and DS later in the process.[18]The additional minutes do not fundamentally alter what was set out in the original minute but added more detail as to what was said during the meeting between the claimant and KS:a. In relation to allegation 1, the added detail related to the claimant saying to the customer that he and his colleague were just having a chat and not trying to be intrusive.b. The additional minutes sets out more detail of the claimant’s position that the branch was cold on the day in question and what he said to Ms McMenemy.c. In respect of allegation 3, the claimant’s additional minutes set out more detail of the discussion as to whether the phrase “living a life more virgin” was a trademark of the respondent or not as well as the claimant’s assertion as to how he used in his social media post.[19]After meeting the claimant, KS prepared a report which appears at pp199- 205. It summarises the information KS had received from the three interviews she had carried out and recommended that all three allegations should be considered for disciplinary action.[20]AL was appointed as the disciplinary manager and he contacted the claimant by letter dated 4 March 2024 (pp206-211) inviting the claimant to a disciplinary hearing on 7 March 2024. The letter sets out the allegations and the information that had been obtained from the investigation by KS including the claimant’s version of events. The letter made it clear that dismissal was one possible outcome of the process.[21]The meeting between AL and the claimant was held on 13 March 2024. A minute of the meeting was at pp212-219 and records the following relevant matters:a. The claimant raised the fact that the minutes of his meeting with KS were not accurate and it was agreed that he would send on details of this to AL after the meeting. The claimant subsequently provided the additional minutes at pp284-291 to AL.b. In respect of allegation 1, the claimant’s position was the same as he had set out at his meeting with KS; he did not consider that he had been rude or aggressive to the customer although he accepted that he had engaged with the customer asking what it was that he had done wrong.c. The claimant identified that there had been another colleague present, Ruth Johnston, who had not been interviewed by KS.d. He also denied swearing at the end of the incident with the customer stating that he used the word “feck” rather than “fuck”. He did not consider this to be a swear word.e. During the course of the discussion about allegation 1, the claimant stated that no account had been taken of the fact that his doctor had observed that he has ADHD and that he would talk with his hands. The claimant had not previously raised this. The Tribunal pauses to note that, at this time (and, indeed, by the time of the hearing) there had been no formal diagnosis of ADHD by any medical professional although the claimant’s GP has expressed the belief that the claimant has ADHD.f. AL queried with the claimant whether there had been a diagnosis and the claimant replied that there had not and he needs to be referred to a specialist. He asserted that the respondent, as an organisation, knew this.g. The claimant’s position in respect of allegation 2 was, again, fundamentally the same as during his discussion with KS; he alleged that the temperature in the branch was below the legal minimum and that he was feeling unwell anyway with working in the cold making him feel worse. This was his reason for refusing to work in the front of the branch when Ms McMenemy had directed him to do so.h. The claimant alleged that he believed Ms McMenemy had sent him home to prevent him contacting HR because this would have confirmed that her request was unreasonable. He rejected the suggestion made by Ms McMenemy that he had become confrontational and aggressive with her and that he might behave in the same way to customers if he did go out to the front of the branch.i. The claimant’s position in relation to allegation 3 was also the same as he had taken when interviewed by KS; the social media post was not about work and was about life in general and that the use of the hashtag was not about the respondent. The claimant maintained his position that the phrase used by him was not part of the respondent’s brand or a trademark nor was it used exclusively by the respondent.j. The claimant explained that his sister had asked him about the social media post and he said it was not about work but he took it down because it was not worth having it there. He said that, in hindsight, he could see why someone else might construe or misinterpret it as being about work.[22]AL did not make any decision at the meeting at 13 March 2024 because he wanted to carry out further investigations; he wanted to interview Ruth Johnston given that she was present at the incident with the customer; he wanted to re-interview Ms McMenemy to speak to her directly about some of the points being raised by the claimant; he wanted to check with HR what information they had about the claimant having ADHD; he wanted to review the information the claimant was going to send to him about inaccuracies in the previous minutes.[23]AL met with Ms McMenemy on 26 March 2024 and a minute of the meeting is at pp220-224. It records the following relevant matters:a. Ms McMenemy described her previous working relationship with the claimant and repeated her assertion that she was nervous about having conversations with the claimant because he could be difficult to manage.b. She stated that she had viewed the CCTV of the incident with the customer and that this showed the claimant going back and forward to the customer, waving his hands. AL commented that sound could not be heard on any CCTV.c. Ms McMenemy explained that engineers had been sent out to check the heating in the branch and that it was working to capacity. Oil heaters were to be sent out to support the existing hearing. She did state that it could be cold in the branch and that staff would have to “layer up”.d. AL asked if there had been any issue with the branch being too cold to work in and Ms McMenemy said there had been none until the claimant started raising it.e. Ms McMenemy denied that the claimant had said that he was unwell on the day of the incident. She explained that no-one else was present when they had the discussion which led to the claimant being sent home.f. AL asked whether the claimant had raised any support needs or health condition. Ms McMenemy replied that he had had absences due to stress and would mention mental health issues to other people but did not discuss this with her.g. AL also asked about an advert for a post in the branch. This was because the claimant had suggested that they were planning to replace him. Ms McMenemy explained that this was in relation to someone else who had left the branch.[24]On 27 March 2024, AL met with Ruth Johnston and a minute of this meeting is at pp225-228. It records the following relevant matters:a. Ms Johnston described her and the claimant having a conversation whilst the customer was being dealt with by Ms Philp. She recalled the customer saying something to the effect of “can you two be quiet” or “can you two shut up”. Ms Johnston does not like confrontation so was intending to be quiet but she described the claimant as having “flipped, like a snap”.b. She stated that she did not know what to do; she thought about whether she should press the panic button but wondered if what was happening was that bad; she was aware that the deputy manager was nine months’ pregnant and did not want her to come out.c. She described the claimant has reacting “like guns blazing, like explode” and moving from laughing with her to an argument with the customer almost immediately. She said that he was getting closer to the customer and was pointing at the customer.d. Ms Johnston heard the claimant mutter a swear word (she described it as “the F word”) as he walked away from the customer.[25]AL checked with HR about the claimant having ADHD and there was no information available about this.[26]After carrying out these further investigations, AL decided to uphold the allegations against the claimant:a. In relation to allegation 1, he took into account the claimant’s statement, the customer complaint and the statements from Ms Philp and Ms Johnston. He considered that the description of the event by Ms Philp and Ms Johnston was consistent with the customer complaint. He took the view that the claimant had shown no remorse or learnings from what had happened. AL considered that a similar situation could arise in the future and the claimant would behave in the same way.b. In relation to the claimant’s assertion that ADHD should be taken into account, AL considered that, even if it had been the case that this had affected the claimant’s behaviour, it did not excuse the claimant’s conduct.c. AL concluded that allegation 1, in itself, amounted to gross misconduct and that the appropriate sanction was dismissal.d. In respect of allegation 2, AL concluded that there had been a disagreement between the claimant and Ms McMenemy about the claimant working at the front of the branch but there was nothing to say that the branch was below the legal minimum temperature. He did not consider that the claimant had been sent home to avoid him calling HR.e. AL came to the view that allegation 2 would not, on its own, have warranted dismissal but some lesser sanction such as a warning.f. AL considered that the phrase “living a life more virgin” was something used by the respondent and the post was related to work. He considered that the fact that the respondent did not use the phrase exclusively was of limited bearing. Again, this was not something, on its own, which would have led to the claimant being dismissed and a lesser sanction would have been applied if this had been the only allegation.[27]AL met with the claimant on 4 April 2024 to give the claimant his decision. A minute of this meeting is at pp229-230. It summarises his decision as set out above and confirms that AL had decided that the claimant had breached the respondent’s code of conduct and social media guidelines. AL stated that, given the severity of the allegations, he had decided to dismiss the claimant with immediate effect.[28]At the meeting, the claimant’s only response related to allegation 3 where he continued to argue that the phrase “living a life more virgin” was not something which was part of the respondent’s brand or exclusive to them.[29]AL confirmed his decision by letter dated 5 April 2024 (pp231-237). This letter summarises the information gathered during the disciplinary process by both KS and AL. It sets out the claimant’s position in respect of each allegation as well as what was said by others. The letter goes on to set out what AL decided in respect of each allegation; this has been set out above and so, for the sake of brevity, the Tribunal does not intend to set this out again. The letter is referred to for its terms. The letter concludes by setting out the claimant’s right of appeal.[30]The claimant appealed the decision by email dated 15 April 2024 (pp238-239) which sets out the grounds of appeal as follows:a. He considered that the disciplinary process was unfair because there was no investigation into what the claimant described as his “recognised disability” and the extent to which this mitigated his behaviour.b. He alleged that key witnesses who were present at the incidents had not been interviewed.c. He did not consider that his actions breached the respondent’s code of conduct and that a reasonable decision-maker would not have concluded that he had committed gross misconduct.d. He asserted that benefit of the doubt should be given to employees and that there was a presumed guilt by those investigating the allegations.e. The claimant considered that he had not been given a fair opportunity to present his case and that none of the things he raised were investigated or taken into account.f. It was alleged that the decision to dismiss was tainted with discrimination as was the investigation because there had been a failure to investigate “the core characteristics of my asserted disability, its impact on my communication style etc”.g. The claimant also alleged a failure to make reasonable adjustments for his disability although he does not say what adjustments should have been made.[31]DS was appointed to hear the appeal. By letter dated 1 May 2024 (pp246- 247) he invited the claimant to an appeal hearing on 7 May 2024. The hearing was re-arranged on the claimant’s request and took place on 7 June 2024.[32]A minute of the hearing appears at pp253-257 and records the following relevant matters:a. The claimant started the hearing by saying that he had already contacted ACAS and asked if he could give them DS’s name as a contact.b. DS asked about the claimant’s disability and he replied that he had made the business aware in January 2024. He explained that, in December 2023, his GP had said it was likely he had ADHD and needed to be referred for assessment.c. DS asked if there had been any formal diagnosis and the claimant explained that he was awaiting this.d. DS asked how the symptoms of ADHD affected the claimant’s day-today activities and he replied that it made him talk louder, fast and he could appear pushy.e. In relation to the appeal point that key witnesses had not been spoken to, DS asked who these were. The claimant replied that HR process had not been followed and that minutes were not accurate.f. DS asked again which witnesses had not been spoken to and the claimant replied that he had not been given the opportunity to question witnesses which he asserted he had a right to do. He alleged this was in breach of the ACAS Code.g. DS asked the claimant what mitigation had not been listened to and he replied that this was about the effects of his ADHD.h. When asked about what failings there had been in the process, the claimant made reference to a failure to investigate his ADHD.i. When asked if there was anything else he wished to add, the claimant made reference to his manager victimising him. He considered that the process was biased and pre-determined; he had a simple disagreement with a customer; he had contacted HR about health & safety and this was why he refused to work; there was no proof that he was talking about the respondent in his social media post because they did not own the phrase “living a life more virgin”.[33]After the meeting, the claimant sent DS an email with additional documents he wished DS to take into account. These run from pp258-282 and include screenshots from the ACAS guidance to disciplinary and grievance procedures. The claimant sent three further emails on 17 June 2024; one of these (p283) includes links to information about the use of the “living a life more virgin” phrase; a second email (pp284-291) provided DS with the additions to the minutes of the claimant’s meeting with KS; the third email (p292) contained a link to information about the claimant complaining about the temperature in the branch.[34]DS contacted HR to find out if there was more information about the claimant having ADHD and discovered there was no formal record of the claimant having any disability. DS also spoke to AL to confirm with him that he had taken account of the claimant’s assertions about having ADHD and he confirmed that he had done so.[35]DS issued his decision by letter dated 13 September 2024 (pp313-327). DS did not uphold the claimant’s appeal and set out his reasons for doing so at some length. In particular, he explained that he was satisfied that the process had been fair and there had been no bias against the claimant. He considered that all relevant witnesses had been spoken to by either KS or AL.[36]In relation to the issue of the claimant having a disability which affected his behaviour, DS confirmed that he had spoken to AL who stated that he had taken this into account but had decided that it did not justify the claimant’s behaviour. DS set out his position that a referral to occupational health during the disciplinary process would not have told the respondent whether the claimant had ADHD or not. DS noted that the condition can affect people differently but he considered that it was still inappropriate for the claimant to behave in the way in which he had towards the customer. Submissions[37]Both parties produced written submissions and supplemented these orally. For the sake of brevity, the Tribunal does not intend to set out the submissions in details. These have been noted and the Tribunal will refer to any point raised that requires to be specifically addressed in its decision below.
Relevant Law
[38]The test for unfair dismissal can be found in s98 of the Employment Rights Act 1996 (ERA).[39]The initial burden of proof in such a claim is placed on the respondent under s98(1) to show that there is a potentially fair reason for dismissal. There are 5 reasons listed in s98 and, for the purposes of this claim, the relevant reason is conduct.[40]The test then turns to the requirements of s98(4) for the Tribunal to consider whether dismissal was fair in all the circumstances of the case. There is a neutral burden of proof in relation to this part of the test.[41]The test for whether a dismissal on the grounds of conduct (or misconduct) is fair is set out in the well-known case of British Home Stores Ltd v Burchell [1978] IRLR 379.[42]The test effectively comprises 3 elements:a. A genuine belief by the employer in the fact of the misconductb. Reasonable grounds for that beliefc. A reasonable investigation[43]In order for there to be a reasonable belief, especially where there is a dispute as to whether or not the employee committed the misconduct in question, the employer must have some form of objective evidence on which to base their conclusion.[44]If there was a potentially fair reason for dismissal, the test then turns to the requirements of s98(4) for the Tribunal to consider whether dismissal was fair in all the circumstances of the case. There is a neutral burden of proof in relation to this part of the test. The second and third elements of the Burchell test fall within s98(4).[45]In considering s98(4), the Tribunal should take into account all relevant factors such as the size and administrative resources of the employer. There are two matters which have generated considerable case law and which are worth highlighting[46]First, there is the question of whether an employer has followed a fair procedure in dismissing the employee. The well-known case of Polkey v AE Dayton Services Ltd [1987] IRLR 503 it was held that a failure to follow a fair procedure was sufficient to render a dismissal unfair in itself (although the compensation to be awarded in such cases may fall to be reduce to reflect the degree to which the employee would have been fairly dismissed if the procedural errors had not been made – the so-called “Polkey” reduction).[47]Procedural fairness includes giving an employee the opportunity to explain their actions or provide some form of mitigation. The “reasonable investigation” element of the Burchell test is part of procedural fairness.[48]The Tribunal should have regard to the ACAS Code of Practice on Disciplinary Practices and Procedures in Employment (“ACAS Code”) in assessing the procedural fairness of any dismissal as well as considering whether the employer had complied with their own procedures and policies.[49]On the question of whether the procedure followed by the employer (including any investigation) was reasonable, the case of Sainsbury’s Supermarket v Hitt [2003] IRLR 30 is authority for the proposition that the band of reasonable responses test applies to conduct of the process leading to dismissal.[50]The second broad issue in considering s98(4) is that the Tribunal needs to consider whether the dismissal was a fair sanction applying the “band of reasonable responses” test. The Tribunal must not substitute its own decision as to what sanction it would have applied and, rather, it must assess whether the sanction applied by the employer fell within a reasonable band of options available to the employer.[51]Disability is one of the protected characteristics covered by the Equality Act 2010 and s6 of the Act defines disability as a physical or mental impairment which has long-term, substantial adverse effects on a person’s day-to-day living activities.[52]The definition of discrimination arising from disability in the 2010 Act is as follows: 15 Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability[53]These provisions do not stand on their own and any discrimination must be in the context of the provisions of the Act which makes it unlawful to discriminate in particular circumstances. The relevant provision in this case is: 39 Employees and applicants An employer (A) must not discriminate against an employee of A's (B)— by dismissing B[54]The burden of proof in claims under the 2010 Act is set out in s136: 136 Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.[55]The burden of proving the facts referred to in s136(2) lies with the claimant. If this subsection is satisfied, however, then the burden shifts to the respondent to satisfy subsection 3.[56]Guidance as to how to apply the test under s15 was given in Pnaiser v NHS England [2016] IRLR 170, EAT:a. Was there unfavourable treatment and by whom?b. What caused the treatment, or what was the reason for it?c. Was the cause/reason 'something' arising in consequence of the claimant's disability?d. This stage of the test involves an objective question and does not depend on the thought processes of the alleged discriminator.e. The knowledge requirement is as to the disability itself, not extending to the 'something' that led to unfavourable treatment.[57]In terms of justification, the EAT in MacCulloch v ICI [2008] IRLR 846 set out four principles to be applied by the Tribunal. These have since been approved by the Court of Appeal in Lockwood v DWP [2013] IRLR 941: “(1) The burden of proof is on the respondent to establish justification: see Starmer v British Airways [2005] IRLR 862 at [31]. (2) The classic test was set out in Bilka-Kaufhaus GmbH v Weber Von Hartz (case 170/84) [1984] IRLR 317 in the context of indirect sex discrimination. The ECJ said that the court or tribunal must be satisfied that the measures must “correspond to a real need … are appropriate with a view to achieving the objectives pursued and are necessary to that end” (paragraph 36). This involves the application of the proportionality principle, which is the language used in reg. 3 itself. It has subsequently been emphasised that the reference to “necessary” means “reasonably necessary”: see Rainey v Greater Glasgow Health Board (HL) [1987] IRLR 26 per Lord Keith of Kinkel at pp.30–31. (3) The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it: Hardys & Hansons plc v Lax [2005] IRLR 726 per Pill LJ at paragraphs [19]–[34], Thomas LJ at [54]–[55] and Gage LJ at [60]. (4) It is for the employment tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer's measure and to make its own assessment of whether the former outweigh the latter. There is no “range of reasonable response” test in this context: Hardys & Hansons plc v Lax [2005] IRLR 726, CA.” Decision - unfair dismissal[58]The Tribunal will set out its decision on the claim of unfair dismissal first before dealing with the claim of disability discrimination.[59]The first question for the Tribunal in determining the unfair dismissal claim is whether there was a potentially fair reason for dismissal. The respondent relies on conduct as the reason for dismissal and the conduct in question being the three allegations made against the claimant.[60]The Tribunal has no hesitation in finding that there was a potentially fair reason for dismissal; the matters relied on by the respondent clearly amount to conduct on the part of the claimant. Indeed, the claimant does not seek to argue otherwise and accepts that conduct was the reason for his dismissal.[61]Further, the Tribunal is satisfied that the respondent had a genuine belief in the conduct in question. There was absolutely nothing in the evidence heard by the Tribunal that suggests any other reason for the claimant’s dismissal.[62]An important feature of this case which impacts on all of the questions to be determined by the Tribunal is that there is no dispute that the conduct in question occurred; there is no question that the claimant had an altercation with a customer, that he refused an instruction by his manager and that he posted the social media post in question. The fact of these events are not, and have never been, disputed by the claimant.[63]The dispute in this case centres on what interpretation has been placed on these events, that is, whether the claimant acted inappropriately and aggressively towards the customer, whether the instruction which the claimant refused was reasonable and whether the social media post was about the respondent.[64]The views reached by the respondent (specifically, Mr Little who made the decision to dismiss) are ones which the Tribunal considers were genuinely held. The claimant did not advance any other reason for his dismissal other than seeking to suggest that there had been some sort of “conspiracy” to dismiss him driven by his manager Ms McMenemy. There is, however, no evidence of this, either express evidence or evidence from which the Tribunal could draw any inference that this was the case.[65]It is true that Ms McMenemy was the one who raised the three allegations with HR and this prompted the disciplinary process that led to the claimant’s dismissal. However, the Tribunal finds nothing unusual or surprising in this; a manager who receives a customer complaint alleging aggressive behaviour from a member of staff, has the same member of staff refusing to obey an instruction and posting what may be a derogatory social media comment about the respondent is entitled to take action about that. In the Tribunal’s industrial experience, it would be more surprising if Ms McMenemy had not taken action about these matters.[66]After that Ms McMenemy was only involved in the process as a witness interviewed by Ms Simpson and Mr Little. There was no evidence that she had any influence over the decision to dismiss made by Mr Little or the appeal decision by Mr Simpson. They both sit above her in the management hierarchy and the Tribunal is satisfied that they came to their own independent decisions.[67]To the extent that the claimant seeks to argue that Ms McMenemy had influenced the other witnesses (whom she managed) then, again, there is no evidence of this. There is nothing to suggest that either of the members of staff who are present at the incident with the customer had given anything other than their genuine recollection of events.[68]The Tribunal also bears in mind that Ms McMenemy had no involvement with the customer complaint. She was not present in the branch on the day in question when the incident occurred and when the complaint form was completed. This complaint came about without any involvement of Ms McMenemy. This is important; the claimant’s conduct towards the customer was what made Mr Little decide that dismissal was the appropriate sanction; the complaint was consistent with what other staff members described about the incident.[69]In these circumstances, there is no evidence that there was any other reason for the claimant’s dismissal or that his dismissal came about because of some effort by Ms McMenemy (or anyone else) to get rid of the claimant.[70]Turning now to the question of whether the respondent had a reasonable belief in the conduct, the Tribunal reminds itself that there is a neutral burden of proof in respect of this and, as set out above, that the fact of the relevant conduct in not in dispute in this case.[71]The question for the Tribunal is whether the conclusions reached by the respondent about the conduct were reasonable. The Tribunal will deal with each allegation in turn.[72]The Tribunal does bear in mind that the question of reasonable belief is informed by the question of whether this belief had been reached after a reasonable investigation. The Tribunal will deal with the investigation when it addresses the question of fair procedure below but, for now, suffice it to say that the Tribunal is satisfied that there had been a reasonable investigation.[73]In respect of the first allegation, the respondent had to have a reasonable belief that the claimant acted in an inappropriate and aggressive manner towards the customer. The Tribunal considers that the respondent had evidence that the claimant had acted in such a manner; it had the customer complaint and statements from two members of staff, all of which gave a broadly consistent description of the claimant’s behaviour being aggressive and putting all three of them into a state of alarm.[74]The claimant denied that he had behaved in such a manner. However, the respondent is entitled to prefer the evidence from the other witness. There is absolutely no basis on which it could be said that the respondent did not act reasonably in preferring the consistent evidence from three witnesses who contradicted the claimant’s version of events.[75]Turning to the second allegation, the question for the Tribunal is whether it was reasonable for the respondent to conclude that the claimant had refused to obey a reasonable instruction. There is no question that asking the claimant to carry out the duties of his job is a reasonable instruction and he does not seek to argue otherwise. The claimant’s position is that he was being asked to work in temperatures below the legal minimum and that this was what made the instruction unreasonable.[76]The information available to the respondent during the disciplinary process was that the branch was cold (particularly when the doors opened) but that previous investigations had shown that the heating was working. There was no information about the temperature on the day on which the claimant refused the instruction; the claimant asserted during the disciplinary that he had brought a thermometer to work that day which showed the temperature being below the legal minimum but did not produce anything which confirmed this during the internal disciplinary process.[77]In these circumstances, the Tribunal considers that it was reasonable for the respondent to conclude that the temperature in the branch was not below the legal minimum and, therefore, it was reasonable for the respondent to conclude that the claimant had refused to obey a reasonable instruction.[78]In respect of the third allegation, the question is whether it was reasonable for the respondent to have concluded that the social media post was made in reference to the respondent. The claimant’s position throughout the disciplinary process was that the post was a comment on life in general and not about the respondent.[79]Taking account of the following matters, the Tribunal considers that it was reasonable for the respondent to have concluded that the social media post was related to the respondent:a. It was posted later on the same day that the claimant had been sent home by his manager.b. It made reference to “cold” which was the issue which the claimant had with his workplace that day.c. It used the hashtag “living a life more virgin” which is used by the respondent in its branding and communications.[80]The Tribunal considers that, when all of these matters are taken into account, it was reasonable for the respondent to read the post as a reference to what had happened with the claimant at work that day. It is difficult to see how it can be said that it was not reasonable for the post to be read in that way. Indeed, in his evidence, the claimant stated that he took down the post when his sister made the point to him that the post could be read as a reference to the respondent and he realised that it could.[81]The claimant did maintain throughout the disciplinary process that the post was a comment on life in general and not the respondent. Both Mr Little and Mr Smith did not accept this explanation and the Tribunal considers that it was reasonable for them to do so in light of the matters set out above in the context in which the post was made.[82]A lot of time, in both the internal process and at the Tribunal, in relation to this allegation was spent on the question of whether the hashtag was one which the respondent had trademarked or used exclusively. The Tribunal considers that this was irrelevant; it was not in dispute that this hashtag was one which the respondent used in its branding and communication and the claimant, as an employee of the respondent, knew that. The Tribunal considers that any suggestion that the claimant used the hashtag without the intention or realisation that this would be a reference to the respondent is, at best, disingenuous.[83]There is no question that it was reasonable for the respondent to conclude that the post was inappropriate given that it used profane language and described the respondent as toxic.[84]Turning now to the question of whether the respondent followed a fair procedure, the Tribunal bears in mind that the “band of reasonable responses” test applies to this issue. It may well be the case that there were other things that the respondent could have done but that is not the test being applied by the Tribunal. The question is whether what the respondent actually did was within a band of reasonable options open to them.[85]The Tribunal does consider that, when the whole disciplinary process is considered, the investigation was reasonable. The Tribunal does not consider that Ms Simpson’s investigation was as thorough as it could have been, specifically she did not interview the third employee present at the incident with the customer. However, the investigation did not end with Ms Simpson and Mr Little carried out his own investigations which included interviewing that additional witness.[86]When the whole process is considered, the respondent interviewed all the relevant witnesses and there has been no suggestion that there was anyone else present at the incident with the customer or when the claimant was sent home who could give relevant information about what occurred.[87]The claimant did suggest that there were further investigations that should have been made about his potential ADHD and the temperature of the branch on the day he was sent home. However, it is difficult to see what it was the respondent could have done that would have had any impact on their decisions.[88]For example, at the relevant time, the claimant had not received any diagnosis of ADHD or how it affected him. At best, any investigation (for example, a referral to occupational health or a query to the claimant’s GP) would have disclosed no more than what the claimant had already told Mr Little, that is, that there was a suspicion that he had ADHD. It is difficult to see what effect this would have had on the decision to dismiss the claimant especially given Mr Little’s view that any condition such as ADHD would not excuse the claimant’s conduct towards the customer.[89]Similarly, in relation to the temperature in the branch, the claimant did not suggest that there was some sort of record made about this that could have been found. Absent a record made at the time, it is difficult to see what investigation the respondent could have carried out that would have disclosed the temperature in the branch on a particular day in the past.[90]The claimant did spend much time at the hearing attacking the decision by Ms Simpson to recommend that the case proceed from investigation to a disciplinary hearing. In effect, he considered that she did not have sufficient information to proceed but it is the decision to dismiss and not the decision proceed to a disciplinary hearing with which the Tribunal is concerned.[91]Looking at the process as a whole, the Tribunal considers that it was a fair one. The claimant was given the opportunity to put his case on multiple occasions in the meetings that were held as part of the process. The claimant also had the opportunity to provide additional written information to support his case.[92]The claimant did seek to argue that there was no evidence that his side of things had been taken into account. The Tribunal was prepared to accept the evidence of Mr Little and Mr Smith that they did take account of everything provided to them. Further, the outcome letters from both of these managers record the claimant’s position in respect of all three allegations and his appeal points. The Tribunal considers that this shows that the claimant’s case had been considered and reflected in the decisions being made.[93]The Tribunal considers that the claimant’s argument on this point was, in reality, an argument that the respondent did not agree with what he had said. This was clearly the case but that does not mean that they did not take account of what he had said.[94]The Tribunal is satisfied that the procedure followed by the respondent complied with the ACAS Code of Practice. On this point, the claimant had produced screenshots in the productions (p262-267) that he referred to as the ACAS Code but was, in fact, a good practice guide produced by ACAS. This is a different document from the Code and does not carry the same statutory weight.[95]The claimant did criticise the length of time taken to conclude the investigation. The Tribunal does not consider that there was any undue or excessive delay in the investigation by Ms Simpson or the disciplinary process by Mr Little.[96]There was a gap of some length between the appeal hearing and Mr Smith’s decision. There is no doubt that Mr Smith produced a lengthy and detailed outcome letter and this would inevitably take some time to draft. There is also the fact that the appeal occurred after the decision to dismiss had been made. In all these circumstances, the Tribunal did not consider that the length of time to issue the appeal outcome was such that it rendered the dismissal unfair.[97]Turning now to the question of whether the decision to dismiss was within the band of reasonable responses, the Tribunal considers that there is no question that dismissal would be a reasonable option open to an employer who had concluded that one of their staff had behaved aggressively towards a customer as well as refusing to obey a reasonable instruction and making an inappropriate social media post referring to the respondent. Dismissal is clearly an option open to an employer in such circumstances.[98]The fact that the claimant’s behaviour may have been a manifestation of the undiagnosed condition of ADHD does not take the decision to dismiss out of the band of reasonable responses. Mr Little was clear in his evidence that even if it had been established that the claimant had ADHD and this was why he had behaved as did then the decision to dismiss would still have been made because the respondent could not tolerate such behaviour regardless of the reason. The Tribunal considers that this is a decision open to an employer and something which falls within the band of reasonable responses.[99]The claimant sought to suggest that the fact that he had not been suspended meant that his conduct was not so serious as to warrant dismissal. However, the claimant was absent from the workplace throughout the disciplinary process and so the issue of suspension never arose as a matter needing a decision. The fact that a claimant is not suspended does not mean that, once all the relevant information is known, dismissal is not within the band of reasonable responses.[100]The claimant did seek to argue that his dismissal was pre-determined. The Tribunal has already address above the issue of the “conspiracy” which the claimant considered had been directed by Ms McMenemy and does not propose to comment on that further.[101]However, the claimant did place reliance on a text message exchange he had with another employee (pp525-527) who worked at the branch in which it was said that the deputy manager had told this employee that the claimant would not be coming back as evidence of pre-determination. The Tribunal does not consider that third-hand hearsay is any basis on which it could conclude that the decision to dismiss had been pre-determined. The text exchange does not describe the actual words used by the deputy manager and there is nothing which sets out why she considered the claimant would not be coming back. The Tribunal, in its industrial experience, is well aware that people will speculate and gossip about what may or may not happen to someone subject to disciplinary proceedings but this is not a sound basis to conclude that there has been a pre-determined decision to dismiss.[102]In summary, the Tribunal considers that the respondent had a genuine and reasonable belief that the claimant had committed the misconduct in question and that this had been reached after a reasonable investigation. A fair procedure was followed which gave the claimant the opportunity to put his case and he was given the right of appeal. Dismissal was clearly within the band of reasonable responses and there was no pre-determined decision to dismiss.[103]For all these reasons, the Tribunal considers that the claim of unfair dismissal is not well-founded and it is hereby dismissed. Decision – disability discrimination[104]The claimant’s case in respect of discrimination arising from disability is that he was subject to unfavourable treatment (that is, dismissal) because of something (that is, his conduct in relation to allegation 1) arising from disability (that is, that this conduct was a manifestation of ADHD).[105]The respondent accepts that there was unfavourable treatment in the claimant’s dismissal but they argue that the claimant is not a disabled person, that the conduct in question is not something arising from a disability but, even if it was, there was objective justification for the claimant’s dismissal.[106]The submissions on behalf of the respondent primarily focussed on the lack of sufficient evidence led by the claimant in respect of the issue of disability status and in respect of whether the relevant conduct was something arising from any disability. There was said to be a particular issue in terms of the evidence given that the claimant relied on the undiagnosed condition of ADHD (as opposed to anxiety and depression) and there was little evidence about how this condition affected the claimant’s behaviour.[107]The Tribunal could see some force in the respondent’s submissions. Although a diagnosis is not required in respect of disability status and the focus should be on the effects of any impairment rather than the cause, there still needs to be evidence from which the Tribunal can conclude the claimant had an impairment which meets the test in s6 of the Equality Act.[108]More importantly, there needs to be evidence from which the Tribunal could, on the balance of probabilities, conclude that the relevant conduct by the claimant was a manifestation of the effects of any impairment found to be a disability. There was very little evidence other than the claimant’s assertion to this effect. The Tribunal considers that it would be entitled to take notice of what is said in the Equal Treatment Bench Book in respect of how ADHD can affect someone but that does not provide any basis from which the Tribunal could draw an inference about how the claimant’s conduct might be affected by ADHD (assuming that he does have that condition).[109]However, the Tribunal considers that these matters would, ultimately, be rendered academic. Taking the claimant’s case at its highest and assuming that he is disabled for the purposes of the Equality Act as well as assuming that his relevant conduct in respect of allegation 1 was something arising from that disability, the Tribunal considers that the claim of disability discrimination would still fail. This is because, for the reasons set out below, the Tribunal considers that the claimant’s dismissal was objectively justified.[110]The Tribunal should be clear that it was not decided the questions of disability status or whether the claimant’s dismissal was, on the face it, discrimination arising from disability. It is simply the case that, regardless of what the Tribunal might decide on those issues, the claim of discrimination would fail on the issue of justification.[111]The first question for the Tribunal is assessing objective justification is whether the respondent had a legitimate aim in dismissing the claimant. The respondent relies on the aim of seeking to avoid a repeat of the conduct involved in allegation 1 both in respect of customers and other employees.[112]It is clearly legitimate for a business to seek to ensure that their customers and staff are not subject to rude and aggressive behaviour. It is difficult to see any argument that this is not a legitimate aim.[113]In his submissions, the claimant asserted that the witnesses did not set out what their aim was in dismissing him. However, as Ms MacDonald submitted on behalf of the respondent, the aim does not have to be expressed at the time when the decision was made (Seldon v Clarkson Wright & Jakes [2012] ICR 716).[114]Further, it was quite clear from the evidence that this was the aim of the claimant’s dismissal. The dismissal letter from Mr Little made reference, on multiple occasions, to the claimant’s conduct falling below the standards expected of employees in terms of behaviour towards customers and other staff. The Tribunal considers that it is entitled to infer from this evidence that the respondent was seeking to avoid a repeat of such behaviour.[115]In terms of whether the claimant’s dismissal was a proportionate means of achieving this aim, there is no question that dismissing the claimant would achieve the aim. If he was no longer an employee then it is axiomatic that he could not repeat his conduct towards customers and other staff.[116]However, the Tribunal also has to consider whether there was some other means by which the aim could be achieved that would avoid any discrimination. There are two potential alternatives which the respondent could have used; a lesser sanction such as some form of warning which may have caused the claimant to behave differently in the future; moving him to a job which was not customer facing.[117]In respect of the lesser sanction option, the Tribunal is not persuaded that this would have achieved the aim. It was quite clear that, throughout the internal process, the claimant did not accept that he had done anything wrong; he showed no insight or awareness that engaging with a customer in the way which he did was not appropriate. In these circumstances, there was nothing at the time at which the decision to dismiss was made that would have indicated to the respondent that a warning or other lesser sanction would have achieved their aim.[118]The claimant continued to show no real awareness or understanding of his actions at the final hearing. The case he presented was effectively the same one that he had throughout the internal process, that is, that he had done nothing wrong. He did, during his evidence-in-chief, become upset when describing the impact of his dismissal on him but when he was then crossexamined he returned to his position that he had done nothing wrong. The Tribunal considers that there was nothing from which it could draw any inference that a lesser sanction would have achieved the respondent’s aim.[119]In respect of alternative employment, there are two difficulties with this. First, in practical terms, there was no evidence that there was any vacancy for a non-customer facing role to which the claimant could be transferred. Second, although this might have achieved the aim in respect of customers, it would not achieve the aim in respect of other employees. If the claimant was moved to another role then he would still have to interact with other employees and, given what is said above in respect of the claimant’s lack of insight that he had done anything wrong, there was still the risk that he would behave in this way towards other employees.[120]The claimant did not suggest any other alternative which the respondent could have employed to achieve their aim.[121]Taking all of this into account, the Tribunal considers that the balance between the respondent needing to achieve their legitimate aim and the need to avoid any discrimination against the claimant falls in favour of the respondent.[122]The respondent was faced with a situation where the claimant had behaved in such a way that a customer felt compelled to make a formal complaint and two employees describing the claimant’s conduct as being such that they contemplated pressing the panic button (something which would be used in the event of a robbery). They were entitled to take steps to avoid such a situation arising again and, in the absence of any alternative, dismissal was necessary to achieve that aim.[123]In these circumstances, the claim of discrimination arising from disability is not well-founded and is hereby dismissed.