Royal Bank Of Scotland v Donaghay (Unfair Dismissal) [2011] UKEAT 0049_10_1111

EAT
Royal Bank Of Scotland v Donaghay (Unfair Dismissal)
[2011] UKEAT 0049_10_1111 · 2011-11-11
[1]This is an employer’s appeal from a Judgment of the Employment Tribunal sitting at Glasgow, Employment

Judge H J Murphy, registered on 16 June 2010 finding:

“(1) the claimant was unfairly dismissed by the respondents; (2) the respondents discriminated against the claimant within the meaning of section 1(1)(a) of the Sex Discrimination Act 1975 contrary to section 6(2)(b) of said act.”
[2]The case was continued for a hearing on remedy but, in the meantime, the Respondent presented this appeal.[3]For convenience, we will continue to refer to parties as Claimant and Respondent.[4]The Claimant was represented by Mr M Cameron, solicitor, before the Tribunal and by Mr Dunlop, advocate, before us. The Respondents were represented by Mr D Stirrit, solicitor, before the Tribunal and by Mr Napier QC, before us. Background[5]The Claimant was employed by the Respondent as a customer services officer from 7 July 2003 until his dismissal on 23 March 2009. For a period up to January 2009, he was in a relationship with another employee, LC. They lived together at a flat in Glasgow.[6]On Saturday 3 January 2009, the Claimant went out drinking with friends whilst LC remained in the flat. He returned late in the evening or in the early hours of 4 January. An argument took place between the Claimant and LC which culminated in him admittedly pushing her so as to cause her to fall onto the sofa. He then left but, having done so, tried to get back into the flat and caused a disturbance by shouting, swearing and kicking the front door so as to force his way back into the flat. He then left the building but returned shortly thereafter to find that the police were in attendance. He was detained by the police, subsequently charged with assault, vandalism, and breach of the peace and kept in police custody overnight. He appeared in Glasgow Sheriff Court on Monday 5 January and was released on bail on the standard bail conditions plus a special condition (which is common in such circumstances) that he refrain from approaching LC or the flat.[7]The Claimant alleged that, prior to him pushing LC onto the sofa, she had slapped him and scratched his face. He made no complaint to the police about that when he was detained and charged. He subsequently, on a date around the last week of March 2009, made a formal complaint to the police concerning LC’s conduct towards him on the night of 3- 4 January. The police took no action in relation to his complaint.[8]On 12 January, the Claimant was interviewed by the Respondent’s area manager, David Lowe. He said that he was arrested and charged with assault, breach of the peace and vandalism against property. He said that LC was slapping him and scratching his face and he pushed her off. He was suspended at the end of that meeting.[9]LC was interviewed on 16 January. Her account of events, which included that she had been assaulted by the Claimant, was noted, as was her indication that she would not be comfortable in the Claimant’s presence either outside or at work.[10]The Claimant was charged by the Procurator-Fiscal on Summary Complaint which alleged:
“(1) on 4 January 2009 at…….you CHRISTOPHER DONAGHAY did assault L…C….and did repeatedly push her on the body and cause her to fall onto a sofa (2) on 4 January 2009 at………you……did conduct yourself in a disorderly manner shout, swear, kick the front door and force your way into the locus and commit a breach of the peace.”
[11]At an intermediate diet on 26 January, the Claimant pled not guilty and a trial diet of 3 April 2009 was fixed.[12]On 20 February 2009, the Claimant attended at the Respondent’s St Enoch Square branch, where LC worked. He had tried to have certain charges which had been levied on his bank account with the Respondent, cancelled, by speaking to the manager at his local branch but without success. He thought that the manager of the St Enoch Square branch, Jennifer Kane, might be able to help him. LC saw the Claimant enter the branch; it worried and upset her. She told Jennifer Kane that she had seen him arrive. She spoke to the Claimant in a separate interview room. The Claimant, who was visibly upset, asked Jennifer Kane if she could look into the charges on his account. The Claimant then left. LC was crying and told Jennifer Kane that the Claimant knew he was not allowed near her. She contacted the police as they had asked her to do so if he attended at the office. They attended and told Jennifer Kane that the Claimant was not allowed to attend LC’s place of work if she was there; by doing so he had, they said, breached his bail conditions.[13]The Respondent decided to institute disciplinary proceedings against the Claimant. The part of the Respondent’s disciplinary policy relating to misconduct provides:
“Examples of Gross Misconduct Gross misconduct is a serious breach of the Group’s rules and procedures or of the recognised and accepted standards of conduct resulting in breakdown of the relationship of trust and confidence between the Group and the employee concerned. Gross misconduct may justify dismissal without notice and without previous warnings. Gross misconduct includes, but is not limited to: …………….. o. …conduct, both inside and outside employment, considered to be seriously detrimental to the Group, its property, employees, customers or members of the public, or creating a security, health or safety hazard.”
[14]The Claimant was asked, by letter of 10 March 2009, to attend a disciplinary meeting and advised that the Respondent wished to discuss four matters namely that he had, allegedly, assaulted LC, that he had, allegedly, vandalised her property, that he had been arrested and charged with assault, vandalism and breach of the peace and that he had, on 20 February 2009, entered LC’s place of work and by doing so breached his bail conditions. He was warned that the Respondent would be considering whether or not his conduct amounted to gross misconduct and that a potential outcome was that he might be dismissed.[15]The disciplinary meeting took place on 23 March 2009 and the Claimant was accompanied by his trade union representative, Simon Godfrey. The disciplinary manager was Les McNabney. In the course of the meeting the Claimant admitted having pushed LC onto the sofa and to having kicked the door, which he regretted. He said that his actions towards LC were in ‘self defence’ as she had slapped him. There was also discussion of the Claimant having attended at the St Enoch Square branch and Mr McNabney observed that the ‘commonsense thing’ for him to have done would have been to stay away from that branch of the bank. The Claimant advised that the vandalism charge had been dropped. Regarding the alleged breach of bail, he said that the police saw nothing amiss; he was not charged with breach of his bail conditions. Mr McNabney was not provided with a copy of his bail order.[16]After an adjournment, Mr McNabney returned to the meeting and gave his decision which was to dismiss the Claimant. He said he took no account of the vandalism allegation since it had been dropped. Regarding the alleged breach of bail, he accepted that there was no breach but expressed the view that it was a misjudgement on the part of the Claimant to go into the branch. Otherwise, however, he said he concluded that the Claimant’s conduct in having admittedly assaulted L C showed that he represented a risk. He confirmed his decision by letter dated 27 March 2009 in which he advised the Claimant:
“Taking all the information into consideration, I took my decision because I consider that you have failed to meet acceptable standards in relation to your conduct outside the workplace on 3 and 4 January 2009 where you confirmed that you assaulted LC who is an employee of the Group. You also confirmed that you have been charged with assaulting LC and Breach of the Peace. I consider your actions to be of Gross Misconduct under Section o: Other conduct, both inside and outside employment, considered to be seriously detrimental to the Group, its property, employees, customers or members of the public, or creating a security, health or safety hazard. …………… I consider that as a result of this assault, you present a risk to the Group, employees and property.”
[17]At the diet of Summary Trial on 3 April, the Claimant pled not guilty to charge 1 (the assault charge) and pled guilty to charge 2 (the breach of the peace charge). Those pleas were accepted by the Crown. The Claimant’s conviction was recorded as being “BREACH OF THE PEACE – (DOMESTIC)”.[18]At some point, presumably prior to 3 April, the Claimant had seen LC’s police statement.[19]The Claimant appealed against his dismissal and an appeal hearing took place on 13 May 2009. The Claimant was, again, accompanied by Mr Godfrey. The hearing was chaired by Jenny Moultrie. The Claimant was afforded the opportunity to make any representations that he wished and to say in his own words why he was appealing. He stated that the charges were unfair, disproven in court and that he had pushed LC in self defence. When asked why was only one person arrested, he answered:
“It is always the male.”
He said that there was an argument, that LC pushed him out of the flat, that he went back and kicked the door and that she opened it. Ms Moultrie said “L must have felt very threatened at this?” and he agreed. Regarding his allegation that LC had assaulted him that night he accepted that he made no complaint about that at the time. He was asked: “Why would LC say she didn’t hit you?” and was told by Ms Moultrie that LC was ‘petrified’ and ‘scared’ of him. Ms Moultrie told him that his behaviour worried her and that she found his behaviour quite threatening in the course of the hearing.[20]Ms Moultrie advised the Claimant of her decision by letter dated 25 May 2009. It was that the decision to dismiss was upheld. She advised:
“I made my decision to uphold the original decision to dismiss you from the information that I had available to me. Whilst you say you were acting in self defence, I do not consider that your subsequent actions on the night indicate this. Following the incident where you consider yourself to have been the victim, you returned to the flat after leaving and proceeded to kick the door (itself an act of aggression) which you admitted was something you should not have done and you acknowledged there were ‘raised voices’. You also attempted to return to the flat a third time and the only reason you didn’t was because you had been apprehended by the police and taken into custody. You subsequently pled guilty to the charge of breach of the peace even though in the meeting you indicated to me that the disturbance was due to ‘two females’ being involved. No one else was charged or convicted in relation to this incident which leads me to believe that you were considered to be the main perpetrator of the disturbance, to such an extent that it had prompted neighbours to call the police and subsequently you being taken into custody for 36 hours. You were also placed on bail with one of the conditions being that you made no contact with LC including not going to the flat you had shared with her. You stated in the meeting that whilst you admit you pushed LC this was self defence and at a later date you formally complained to the police that she had assaulted you. You confirmed that this formal complaint was some time after the incident, to which the police took no further action. You stated that male complaints of domestic violence are not normally taken seriously, however I have to consider the fact that you did not make a complaint until a later date even though you believed it was you who was the victim of an assault, not LC. …………… In summary, from the information I have available to me whilst you have not been found guilty of assault in the criminal courts, I consider from a Group perspective that your conviction in court and your actions and behaviour to be entirely inappropriate for an employee of the Group and that you are a risk to the Group, its members of staff and property. I therefore uphold the original decision to dismiss you from the Group for Gross Misconduct.”
The Tribunal Decision and Reasons Unfair Dismissal[21]The Tribunal approached matters on the basis that if an assault was in ‘self defence’, it could not be culpable. It is evident from various of their observations that they considered that a person who was slapped or scratched by another was entitled thereafter to use reasonable force to ‘defend’ himself (see e.g. paragraphs 92, 93, 102, 103) and that, in such circumstances, it would be illogical to consider the person to have committed assault (paragraphs 103 and 115). They refer to the meaning of ‘assault’ as having ‘bedevilled’ both the proceedings before the Respondent and the proceedings before them. They considered that the Claimant had not, when admitting what he did to LC, incriminated himself because of his ‘self defence’ explanation (paragraph 111). Surprisingly, nowhere do they show any awareness that in this jurisdiction, the societal attitude (and legal approach) to assault is such that where one person attacks another in any way, that he does so in response to some provocation, such as, in this case, prior slapping or scratching by the victim does not negative culpability. He still commits an assault [1] .[22]Against that background, the Tribunal found that the reason Mr McNabney had dismissed the Claimant was that he “believed the claimant had pushed the said LC” (paragraph 101). However, at the end of paragraph 101, they added:
“We are, however, convinced that the said McNabney, if he was not fully convinced that the claimant acted in self defence, at least harboured such doubt concerning the culpability of the claimant in pushing the said LC that it cannot be said that he believed that the claimant had culpably assaulted the said LC.”
[23]They found that the reason for the Claimant’s dismissal did not satisfy the requirement of section 98(2) of the Employment Rights Act 1996 in that it did not relate to the conduct of the Claimant because “the conduct must be in some way reprehensible” (paragraph 102) and, in their view, it was not. At paragraph 115, they refer to Mr McNabney ‘quite illogically’ having taken the view that the Claimant’s conduct was blameworthy. The dismissal was thus, they found, not for a potentially fair reason and was, accordingly, unfair.[24]The Tribunal considered what would have been their decision if the dismissal had been for a potentially fair reason. They found that it would still have been unfair. That was because they did not believe Mr McNabney when he said he proceeded only on the basis of the material provided to him by the Claimant. They inferred from comments made by Mr McNabney during evidence (which demonstrated knowledge of LC’s and Jennifer Kane’s statements) that, contrary to his stated position, he had taken account of material not made available to the Claimant (material contained in LC’s statements regarding the events of 3-4 January and 20 February and Jennifer Kane’s statement regarding the latter). It must, they considered, have been from that material that he satisfied himself that the Claimant’s conduct was culpable given that the Claimant’s stated position was of having acted in self defence and that did not demonstrate culpability on his part (paragraph 109). Reasonable investigation required that an employer give the employee an adequate opportunity to defend himself. That had not been afforded to the Claimant in respect that Mr McNabney must have been relying on statements that were not shown to the Claimant. The dismissal was, accordingly, procedurally unfair. We note, however, that the content of LC’s and Jennifer Kane’s statements were referred to in the form ET3, which Mr McNabney had seen prior to giving evidence. The Tribunal did not take account of that. Nor does the Tribunal’s hypothesis as to where he gained his understanding of the Claimant’s culpability from appear to have been put to Mr McNabney. Similarly, that he was not telling the truth when he said he had made his decision on the basis of material provided to him by the Claimant, does not appear to have been put to Mr McNabney.[25]The Tribunal also found that there was procedural failure in respect that the Respondent did not specifically put the Claimant’s position to LC. At paragraph 114, they state:
“The respondents could not simply assume that she would deny the claimant’s version of events.”
[26]The Tribunal rejected the proposition that any procedural failure had been cured on appeal. It, in their view, suffered from the same difficulties. They considered that Ms Moultrie was wrong to have proceeded on the basis that the Claimant was dismissed for culpable assault or that he had committed culpable assault. They did not consider her detailed reasons, as set out in her decision letter, for rejecting the Claimant’s case that he was acting in self defence. The Tribunal said that LC’s statement ought to have been disclosed to the Claimant and the Claimant’s position ought to have been put to LC. Sex Discrimination[27]The Tribunal found that LC was an appropriate comparator. At paragraph 155, they explain that the reason for that is that they both made allegations of assault.[28]Having found that LC was an appropriate comparator, the Tribunal referred to Igen v Wong [20050 IRLR 258 and B and another v A [2010] IRLR 400 . The latter post-dated the Tribunal hearing but they felt that it mirrored “more or less exactly Mr Cameron’s submissions.” and added that if the Respondent felt that they had misapplied it, they were free to apply for a review (paragraph 159), an approach which we consider surprising, particularly since BvA and another was not in point. Having referred to those authorities, the Tribunal gave no consideration to whether there were any findings in fact indicative of sexual stereotyping by the Respondent or Mr McNabney from which it could properly infer that in this case, the Respondent had decided against the Claimant on grounds of his sex. Rather, they proceeded to ask themselves whether Mr McNabney’s failures could be consistent with the hypothesis that he acted in reliance on an automatic sexist assumption (paragraph 164). They decided that it was possible to explain those failures on that basis and that therefore, the Claimant had discharged the initial onus on him. The Respondent had not, they stated, proved that they did not discriminate and therefore the allegation of discrimination was upheld. They followed similar reasoning in relation to the appeal. Relevant Law Unfair Dismissal[29]Where an employee claims that he has been unfairly dismissed, the first question that arises is whether or not he has been dismissed for a reason falling within s.98(2) of the Employment Rights Act 1996 . If the dismissal was not for one of those reasons, it cannot have been fair. S.98(2) contains a list of potentially fair reasons and the relevant one for the purposes of the present case was that it was a reason which:
“relates to the conduct of the employee.”
[30]The conduct in question does not require to be of any particular character. In particular, contrary to the approach of the Tribunal, it does not require to be conduct that is ‘reprehensible’.[31]Turning to procedural fairness, the Tribunal also required to, but did not, bear in mind the provisions of s.98A(2):
“…failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of s.98(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.”
[32]It was, in particular, incumbent on the Tribunal to address the issue raised by s.98A(2) because it was specifically addressed in the Respondent’s written submissions.[33]When it comes to considering whether or not a dismissal was fair, it is, as has repeatedly been said, not for the tribunal to substitute their own view. Their task is to assess, objectively, whether a reasonable employer could, in all the circumstances, have dismissed the employee, bearing in mind that there is usually a range of responses open to him within which dismissal may have been a reasonable option: Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 , London Ambulance Service NHS Trust v Small [2009] IRLR 563 . That objective test of reasonableness also applies at the investigation stage: Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23 . Thus, provided the employee knows the essence of the case against him, there are no hard and fast rules, such as that the employee must be provided with copy statements. As Mummery LJ observed, in Hussain v Elonex plc [1999] IRLR 420 :
“The question in a case of dismissal for misconduct such as this is whether there has been a fair and reasonable investigation of the alleged misconduct before a decision is made to dismiss or not to dismiss. In this case there was no contractual requirement that a particular procedure should be followed, other than it should be fair. There is no universal requirement of natural justice or general principle of law that an employee must be shown in all cases copies of witness statements obtained by an employer about the employee's conduct. It is a matter of what is fair and reasonable in each case………. I would repeat that there are no hard and fast rigid rules as to the procedures to be adopted in these cases, where there is no agreed code. What matters is fairness and reasonableness. Mr Hussain was treated fairly and reasonably because he was told of the accusations against him and was given a full opportunity to respond to them.”
Sex Discrimination[34]The first task for the Tribunal was to determine whether or not an appropriate comparator for the Claimant could be identified (see: Sex Discrimination Act 1975 ss.1 and 5(3)) and in doing so, it was incumbent on them to avoid a choice of comparator that was irrational ( Hewage v Grampian Health Board [2011] CSIH 4 ) . If an appropriate comparator and less favourable treatment can be identified, an Employment Tribunal then requires to consider whether or not facts have been established from which they could properly conclude that the explanation for it was that it was an act of discrimination. If that can properly be concluded, then the onus passes to the employer to satisfy the tribunal that the act was not in fact a discriminatory one (s.63A(2) of the 1975 Act [2] ). It is not enough simply to point to a difference in status as between claimant and comparator and a difference in treatment. As was explained by the Court of Appeal in Madarassy v Nomura International plc [2007] IRLR 246 , at paragraphs 56 and 57:
“56. The court in Igen v Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent ‘could have’ committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. 57. ‘Could conclude’ in s.63A(2) must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it……………..the tribunal would need to consider all the evidence relevant to the discrimination complaint.”
[35]This matches the approach taken by the Court of Session in a case which predated the implementation of the burden of proof directive: Fire Brigades Union v Fraser [1998] IRLR 697 where the Inner House dismissed a man’s claim of sex discrimination because there was no basis in the evidence before the tribunal for their conclusion that the respondent would have acted any differently in relation to a female employee seeking representation; there required to be factual basis for the drawing of an inference of unlawful discrimination.[36]A hypothesis constructed by the tribunal or by the claimant is not, plainly, ‘evidence’. The Appeal Unfair Dismissal[37]For the Respondent, Mr Napier submitted that the Tribunal’s decision was perverse. The law did not require that, for conduct to be a potentially fair reason, it had to be reprehensible yet that was the basis of their whole approach to the case. Further, although this was an incidental matter, the Tribunal had misunderstood the concept of assault and there was material which entitled the Respondent to conclude that the Claimant was culpable.[38]The Tribunal was, Mr Napier submitted, perhaps aware that it was on shaky ground – hence their dealing with what would have been their position if they had been satisfied that the dismissal was for a potentially fair reason. They had, however, also made fundamental errors there. They had disposed of Mr McNabney’s evidence on the basis that he was not to be believed when he said his decision had been based only on the material provided by the Claimant because he showed, in evidence, awareness of the content of LC’s and Ms Kane’s statements but it was not an inescapable conclusion that he was not telling the truth about what influenced him at the relevant time, given the period that had passed between dismissal and the Tribunal hearing and the fact that the ET3, which he had seen, set out the content of those statements. Further, the point had not been put to Mr McNabney and the Tribunal had no business finding him to have been untruthful without that being done.[39]Mr Napier submitted that the Tribunal’s written reasons were demonstrative of them falling into a substitution mindset. Paragraphs 109 and 111 were examples of that. It showed what they thought Mr McNabney should have concluded but they had not asked themselves whether the decision maker had a reasonable belief that the Claimant had conducted himself in a particular manner. Then, when it came to asking what the reason for dismissal was, the Tribunal failed to recognise that it was for them to decide what, on the whole evidence, was the reason ( Abernethy v Mott, Hay and Anderson [1974] IRLR 213). In this case, it was not only the assault that had weighed with Mr McNabney. He had taken account of the whole of the Claimant’s conduct and concluded that it showed that the Claimant was a risk to the Respondent and its employees. The Tribunal had, however, focussed solely on the assault element and discounted it because of their view that it could not be categorised as culpable.[40]In fact, Mr Napier submitted, the facts showed that the assault was culpable. The Claimant had admitted pushing LC so that she fell onto a sofa. That took place in the context of a heated argument. He had been taken into police custody and charged with assault. He made no complaint to the police of having himself been assaulted, at the time. There was simply no basis for the Tribunal to conclude, as they did, that Mr McNabney’s conclusion that the Claimant was culpable was illogical.[41]Regarding the Tribunal’s criticism of the Respondent’s failure to provide the Claimant with LC’s and Ms Kane’s statements, there was no rule that that was necessary. The Claimant knew the substance of the ‘charges’ he had to meet and the statements did not add anything to them ( Hussain v Elonex ). As for the suggestion that the Respondent required to revert to LC, it was ridiculous. The Respondent had taken a statement from her. They knew her position, which was that she had not slapped or scratched the Claimant. There was no reason, on the evidence, for them to think that she might change her mind if they went back to her and told her that the Claimant was saying that she did so. The procedural steps desiderated by the Tribunal were not such as to show that there had been unfairness.[42]As for the appeal, by that time, the outcome of the prosecution was known which involved the Claimant being convicted of a significant breach of the peace in domestic circumstances, the Claimant had every opportunity to tender his explanation, Ms Moultrie checked whether he had complained to the police and whether any charges had been brought against LC (they had not) and his arguments were plainly all properly considered. There was ample material on which she was entitled to conclude as she did and the procedural failings complained of did not show that dismissal was unfair, for the above reasons.[43]Finally, the Tribunal wholly ignored the Respondent’s case under s.98A(2) yet it was clear that even had the additional procedural steps been taken, dismissal for the reasons for which the Claimant was dismissed – namely that taking everything that happened into account, he was a risk - would still have taken place. There was nothing to show that providing him with copy statements or reverting to LC would have made any difference. He did, in any event, have copies of the police statements taken for the purposes of his court case.[44]For the Claimant, Mr Dunlop submitted that the reason for the Claimant’s dismissal was that he had assaulted LC. When the Tribunal referred to the need for conduct to be ‘reprehensible’ they were but being clumsy and they only used the expression once. The Tribunal were right to find that it was not a reasonable response to say that an assault in self defence justified dismissal.[45]Regarding s.98A(2), Mr Dunlop said that he did not know whether any evidence had been led about the question of whether or not the Respondent would have dismissed the Claimant in any event but a reasonable employer should, he said, have made further enquiries of LC. He did explain why that was so.[46]The Tribunal had not, he said fallen into a substitution mindset; they made repeated reference to the ‘reasonable employer’. Sex Discrimination[47]Mr Napier submitted that the Tribunal was quite wrong to have rejected the argument that LC was not an appropriate comparator. It was not simply a matter of looking at the fact that they had both alleged assault. Unlike LC, the Claimant had made no contemporaneous complaint of assault to the police, unlike LC, he had been charged, unlike LC, he had been taken into custody and released on bail subject to a special condition, unlike LC, he had turned up at her workplace whilst subject to that condition.[48]Then, even if the Tribunal had been entitled to find that LC was an appropriate comparator, the Tribunal’s approach thereafter was wholly flawed. They never considered whether there were facts from which they could properly infer that the Claimant’s dismissal was an act of unlawful discrimination. There were none. They set aside Mr McNabney’s denial of having acted on the basis of sexist assumption because few employers are prepared to admit discrimination (paragraph 161) and it was, in their view, improbable that he was not, at some stage, swayed by a sexist assumption (paragraph 162). Whilst they referred, in that context, to the Respondent’s failure to put the Claimant’s side of the story to LC that was not, Mr Napier submitted, a fact from which the requisite inference could be drawn. Nor was there anything in the facts at appeal level which justified the inference either. The Tribunal’s approach was to formulate a hypothesis and then ask whether it was possible for the facts to be explained by that hypothesis; they had begun by saying to themselves ‘this could have happened because of the claimant’s sex’ and then because they could not find a better hypothesis, concluded that it was because of sex. That was entirely the wrong approach.[49]Mr Dunlop submitted that the Tribunal had not erred in their identification of LC as comparator. Comparators did not need to be identical. He offered reasons why LC was an appropriate comparator which differed from those given by the Tribunal. That was, he said, that they were both employees who worked at the same branch, were in a relationship, were involved in the same incident and had each alleged assault against the other.[50]As to discrimination, he submitted that evidential support came from the failure to revert to LC with the Claimant’s account of events. He submitted that in the light of the issue of self defence which was, he said, accepted by the Respondent, the employer had a duty to investigate the matter further.[51]Mr Napier invited us to uphold the appeal and dismiss the claim in its entirety which failing, to remit the case to a freshly constituted Employment Tribunal. Mr Dunlop submitted that if there was to be a remit it should be to the same Tribunal and accompanied with proper directions in law (he seemed to accept that there was some degree of error). Discussion and Decision[52]We are readily satisfied that all Mr Napier’s submissions were well founded, as may be apparent from some of the comments we make in the ‘Background’ and ‘Relevant Law’ sections above.[53]In particular, the Tribunal misdirected itself regarding the meaning of ‘conduct’ in terms of s.98(2) of the 1996 Act. It is for the employer to show that the reason for dismissal was one of the reasons specified in that subsection. There is, however, no requirement that the conduct in question be reprehensible before the employer can be shown to have established that dismissal was for a potentially fair reason. Anything that an employee does or fails to do is ‘conduct’ under s.98(2) and dismissal for a reason relating to that conduct may or may not be fair, depending on the application of s.98(4). Whilst it is likely that the more reprehensible the conduct, the greater the likelihood of the dismissal being found to be fair, the conduct does not need to be reprehensible before the employer can be found to have discharged the onus on him and attention turned to the test in s.98(4), at which stage, he does not bear any onus. That, however, was the Tribunal’s approach and it was wrong.[54]Turning to the matter of the Claimant’s culpability, we are satisfied that the Tribunal misdirected themselves in determining, as they did, that it was not open to Mr McNabney or Ms Moultrie to regard the Claimant as having assaulted LC because his admission was qualified by saying it was in self defence. First, we would refer to Ms Moultrie’s carefully reasoned rejection of the Claimant’s case of self defence, in her decision letter of 25 May 2009, to which the Tribunal failed to have regard on this matter and so failed to appreciate that the Respondent’s final position was not that they accepted that he had acted in self defence but, rather, that they had had regard to the Claimant’s admission of his conduct towards LC and rejected his assertion of self defence. Secondly, we would refer to our observations regarding the nature of assault at the end of the first paragraph of our discussion of the Tribunal’s reasons.[55]The Tribunal required to take account of the fact that the assault was not the only aspect of the Claimant’s conduct that concerned the Respondent, as was clear from the terms of both Mr McNabney and Ms Moultrie’s decisions. They looked at his conduct as a whole, which included a disturbing incident of and conviction for breach of the peace (and, in the course of the appeal hearing, an admission that LC must have felt very threatened by his behaviour) and their assessment that in all the circumstances, he represented a risk to the Group and its employees. The Tribunal focussed, however, on the assault and failed to take account that he was dismissed for rather more than that.[56]Regarding the Tribunal’s findings of procedural failure, the relevant principle that an employee has fair notice of the case against him does not involve any rules as to how that is to be achieved ( Hussain v Elonex ). Although the Tribunal identify two things which could have been done – providing the Claimant with copy statements from LC and Ms Kane, and reverting to LC – there are no findings which show that the Claimant was prejudiced in any way by these steps not being taken. As regards the statements, it is evident from the terms of the appeal hearing that the Claimant had had sight of LC’s statement to the police and there is nothing to indicate that she would have changed her mind if the Respondent had reverted to her to advise her specifically that the Claimant did not accept that her account was accurate. The notes of the disciplinary and appeal hearings show that LC’s account was put to him for his comment. It is not the case that employers must, in all cases, shuttle back and forth between employee and witnesses to see if they wish to change their statement. It is not as if the Claimant’s account obviously called LC’s account into question; rather, the impression is of the common situation of one side of an incident giving one account of it and the other side giving another. Standing back and looking at matters objectively, as the Tribunal should have done, it could not have been concluded that the procedure adopted by the Respondent was not a fair one.[57]Regarding the issue of s.98A(2), the Tribunal wholly failed to consider it yet, had they done so, we are satisfied that, on the facts, they could only have concluded that the Claimant would still have been dismissed.[58]Turning to the case of sex discrimination, the Tribunal had no proper basis for finding that LC was an appropriate comparator. We accept Mr Napier’s submissions that the distinctions to be drawn between them were relevant and substantial. That is sufficient to dispose of the finding of discrimination. However, even if that had not been the case, we are satisfied also that the Tribunal misdirected itself as to the relevant law. The burden of proof could not pass to the Respondent unless there were facts from which it could properly be inferred that the Claimant’s dismissal was an act of unlawful discrimination. The Tribunal’s approach was, however, to start with a hypothesis – namely that dismissal occurred because the Respondent proceeded on the basis of sexual stereotyping – and then see whether any of the facts could possibly fit that hypothesis. For the reasons we explain above, particularly under reference to the cases of Madarassy and Fire Brigades Union that is an erroneous approach. Further, the only fact which the Tribunal really rely on is that the Respondent did not revert to LC with the Claimant’s account of events. We cannot accept that that matter alone could enable a Tribunal properly to conclude, taking account of the overall context – of the ‘whole evidence’, as explained in Madarassy - as they were obliged to do, that discrimination had occurred.[59]We are persuaded not only that we should uphold the appeal but that, on the facts, it was not open to the Tribunal to do other than dismiss the claim in its entirety. The dismissal was for a potentially fair reason, namely one relating to conduct. The Respondent’s investigation was detailed and the statement matters referred to do not show that it was not a reasonable one. The procedure adopted was evidently a fair one and even if there could be any criticism of the disciplinary stage (which, for the reasons we have explained, we do not accept) the appeal hearing was manifestly fair, allowing the Claimant a full opportunity to state his case. Ms Moultrie took time to consider her decision and gave full, clear and cogent reasons for deciding as she did. We cannot see that there is any basis on which an Employment Tribunal could conclude that to dismiss the Claimant in the circumstances was anything other than fair.[60]As regards the case of discrimination, the lack of an appropriate comparator means that it cannot get off the ground but, in any event, for the reasons we have explained, we cannot accept that the factual background was such that a Tribunal could properly conclude that the dismissal was an act of discrimination. Disposal[61]In these circumstances, we will pronounce an order upholding the appeal and dismissing the Claimant’s claims. [1] To say that a person committed an assault ‘in self defence’ as though it negatives the assault is, under our law, in all cases other than those where the prior attack put the person’s life at risk, a contradiction in terms. [2] S.63A(2) of the Sex Discrimination Act 1975, which applied to this claim, provided:
“Where on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent – (a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part 2,… the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed, that act.”