United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR RICHARD O'DAIR (of Counsel) Instructed by: Messrs sas daniels LLP Solicitors County Chambers 6 Chestergate Macclesfield Cheshire SK11 6BA
For the Respondent	MS JOANNA HEAL (of Counsel) Instructed by: Messrs John & Co Solicitors Suites G H & 1 1st Floor 135-143 Stockwell Road London SW9 9TN


 


SUMMARY

STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES

Whether infringed

UNFAIR DISMISSAL

Reasonableness of dismissal

SEX DISCRIMINATION

Burden of proof

The Employment Tribunal erred in relation to the Disputes Procedure: finding that the Appellant employer failed to provide a statement in compliance with Step 1 (Alexander considered) when it plainly did, and that the Respondent employee complied with the grievance procedure when he did not put his grievances into writing (a note taken at the meeting by the Appellant's note-taker being insufficient: Kennedy Scott distinguished). No error of law in relation to the dismissal being unfair or discriminatory.


 


THE HONOURABLE MR JUSTICE BURTON

1. The Respondent, Aramark Ltd, appeals against the decision of the Employment Tribunal at Stratford, in a judgment sent to the parties on 27 January 2009, which concluded that the Claimant Mr Yahiaoui was unfairly dismissed, that such unfair dismissal was automatically unfair, that he was treated less favourably and dismissed on the grounds of sexual orientation, and that he was sexually harassed within the meaning of the Employment Equality (Sexual Orientation) Regulations 2003 in respect of eight incidents between August 2005 and October 2007: his claims for race discrimination were dismissed and there is no cross-appeal. Mr Richard O'Dair of Counsel has appeared for the Appellant (the Respondent below) and Ms Joanna Heal of Counsel for the Claimant, neither of whom appeared before the Tribunal.
2. The incident which led to the Claimant's dismissal took place at about 10.15am on 11 October 2007 in the kitchen of the catering operation at News International, where the Claimant was employed as a chef in the worldwide business of the Appellant, which involved contract catering at various premises. It is common ground that work in the kitchen, in close proximity both to other employees and to food and equipment, is hazardous, and that violence or boisterous behaviour must be avoided. The Appellant's executive chef on the premises, Mark Geis, complained at the Claimant's behaviour and made a written statement on the day. Mr Geis recorded that, as he passed the Claimant on his way through the kitchen to the store, he tapped the Claimant on the side lightly and asked if everything was okay. As a result the Claimant screamed at him, shouting "Don't you fucking touch me" and he heard a rattling metal sound. Mr Geis described in his statement how he saw an object flying towards his head, and he put his arm up to block it, so that it fell to the floor, then the Claimant came towards him and threw a punch at his face which he managed to block: the Claimant followed through with his other fist and caught him on the upper part of his other arm. The Claimant was screaming that Mr Geis "cannot touch him: it was sexual harassment and he was going to get legal representation". What had been thrown, Mr Geis then discovered, was a large steel mixing bowl and a metal spoon. This incident led to the Claimant's immediate suspension, and to an investigatory meeting held by a Ms Marva Ingram, to which the Claimant was invited by a letter which said (inter alia) as follows:

"At the hearing you will be asked to respond to the allegation that your behaviour was uncontrolled, aggressive and violent towards your colleague, which occurred on the day shift of Thursday 11 October 2007.

I must inform you that should you be found guilty of gross misconduct it may result in your employment being reviewed with Aramark.

The purpose of the interview is to:

present the evidence and any allegation against you

listen to your response

decide what disciplinary action, if any, might be appropriate in accordance with our disciplinary procedures …"

3. The investigatory meeting was held on 16 October, attended by Ms Ingram, by the Claimant (who chose not to have a representative, although he was told he could) and by a Phil Nudd, whom Ms Ingram informed the Claimant, as was indeed the case, was present to take notes on her behalf and not to comment. We have a copy of the notes taken by Mr Nudd. The Claimant, in explanation of what had happened, described an incident that he alleged he had had previously with Mr Geis on 11 September, when he had "prodded my bottom with a steel (knife sharpening tool). This I found to be unacceptable behaviour. I told him next time don't touch me like that, that we are men and we shouldn't play around like that". He admitted that "when Mark touched me, I told him not to do that to me and I was angry and threw a metal bowl, there were two spoons in the bowl, which I threw at the hot plate. I was very angry … I did not aim them at Mark, I let my frustration get the better of me".
4. Ms Ingram highlighted at the end of the meeting that this was a very serious matter, and that she would consider everything that had been discussed and would contact him in due course. Ms Bridget Lee, the deputy manager, wrote a letter dated 17 October 2007 further to the investigative meeting, inviting the Claimant:

"… to a disciplinary meeting in order to discuss an allegation of Gross Misconduct as defined within the Company Handbook. I must make you aware that should this matter progress to a disciplinary hearing a potential outcome is that your continued employment with Aramark may be reviewed."

5. Apart from giving the date (22 October) and time of the meeting between Ms Lee and the Claimant, the rest of the letter continued in much the same terms as the letter of 11 October. Again we have notes of the disciplinary meeting of 22 October, taken by Mr Nudd, and again the Claimant declined the opportunity for a representative. The incident was explored, and Mr Geis's version of events was put to the Claimant, including Mr Geis's denial of the alleged incident on 11 September to which the Claimant had made reference at the 11 October meeting. For the first time, the Claimant now mentioned another alleged incident of sexual harassment in the kitchen, not involving Mr Geis. The Claimant said "I just don't like being touched". Ms Lee asked why the Claimant had not reported any alleged previous incident, and he said that he had made an oral report to Mr Geis. Ms Lee concluded as follows, after an adjournment for her to consider the position:

"I have taken time to consider all the notes from the investigative meeting and today's meeting. I have listened to everything you have said regarding past incidents, however as there is no backup or written complaints regarding these allegations, I have no evidence this took place. On Thursday 11 October 2007 it is clear you threw the bowl and spoons, even if you did not throw them in Mark's direction. You cannot show such frustration in a kitchen, as it is a very dangerous area: who is to say a knife would [not] be thrown next time? I have two statements which state you approached Mark in an aggressive manner [this is a reference to statements from two other members of the kitchen staff] and Mark's statement said that you did punch him as he had to defend himself. Even if you did not like what Mark had done there is no excuse for your excessive, physical and violent behaviour and such behaviour cannot be tolerated. Aramark considers threatening, aggressive and violent behaviour is unacceptable and I am left with no alternative but to dismiss you for gross misconduct."

6. Such dismissal was confirmed by letter dated 31 October 2007 to the Claimant, which recorded that the Claimant's behaviour was "uncontrolled, aggressive and violent towards your colleague. Such behaviour is unacceptable and sets a bad example to the rest of the team and could bring Aramark into disrepute with its clients and customers". It was recorded that the dismissal was for gross misconduct. The Claimant took the opportunity of an appeal before the general manager Ms Danni Povey. This meeting, as Mr O'Dair described it before us, doubled as an appeal against the dismissal and an investigation of the Claimant's complaints of alleged sexual harassment on a number of occasions, not now limited to the incidents previously mentioned. Again Mr Nudd took notes, which were before us. Again the Claimant admitted throwing the bowl and denied hitting Mr Geis. Ms Povey wrote a lengthy letter dated 21 December 2007 by which "having reviewed all points raised I find I cannot uphold your grievance against Mark Geis; and I uphold the decision taken by Ms Lee to dismiss you".
7. The Claimant's application, which was the subject matter of the Tribunal's decision, contained claims of unfair dismissal (including automatic dismissal) and alleged that that dismissal amounted to an act of sexual orientation discrimination (I leave aside the allegation of race discrimination). In addition, the Claimant alleged further sexual orientation discrimination, the alleged acts of less favourable treatment being set out in paragraph 3(1)(a) to (c) of the judgment, and eight allegations of sexual harassment set out in paragraph 5(i) to (viii) of the judgment, the last being Mr Geis's touching of him on his back on 11 October which had led to the incident in question from which his dismissal had resulted. The judgment is lengthy, 102 paragraphs and 58 pages, and is diffuse. The facts are said to be set out in paragraphs 9 to 60, but include a number of findings and conclusions along the way, such that some matters and/or conclusions are referred to on more than one occasion: in particular the same matters are touched on several times e.g. in paragraphs 35 to 36, 53 to 55, 90 and 91, such that, in the course of argument, both Counsel had from time to time, in order to make points or resist them, to make reference to more than one part of the judgment, and this also led to a rather more prolix Notice of Appeal than otherwise might have been desirable. Nevertheless, as will be seen, the general gist of the Tribunal's conclusion was clear, namely that, on the main issue, that of the incident of 11 October and the resulting dismissal and investigations, the Tribunal concluded that the Appellant had not carried out sufficient or fair investigation, such that the dismissal was rendered unfair; and the conclusion was reached that the dismissal, with the failure of adequate investigation, was unfavourable treatment on the grounds of sexual orientation, the Claimant's complaints of sexual harassment not having been adequately or at all investigated.
8. It appeared to us that there were two issues which could be conveniently dealt with discretely and first at the hearing, and both of them arose out of the frequently litigated provisions of the Statutory Disciplinary and Grievance Procedures introduced by the Employment Act 2002 ("the 2002 Act"), and the Employment Act (Dispute Resolution) Regulations 2004 ("the 2004 Regulations"). The Tribunal found that there was non-compliance by the Appellant with the provisions of the Standard Dismissal and Disciplinary Procedures under Schedule II, Part I, Chapter 1 of the 2002 Act, so that the Claimant was automatically unfairly dismissed, and that the Claimant did comply with the Standard Grievance Procedure under Schedule II, Part II, Chapter 1 of the same Regulations, so that the Claimant was entitled to pursue (and indeed in the event succeeded on) the raft of allegations of discrimination and harassment referred to in paragraphs 3(1)(a) to (c) and paragraphs 5(i) to (viii) of the judgment, referred to above. Just as they were dealt with first at the hearing, so we shall deal with them first in this judgment.

Automatically Unfair Dismissal

9. Step 1 "Statement of grounds for action and invitation to meeting" of the Standard Disciplinary Procedure requires by paragraph 1(1) that "the employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee".
10. It was common ground before us between Counsel that both of the letters from which we have cited above, dated 11 October and 17 October, were candidates for compliance by the Appellant with Step 1. The Tribunal only recited the letter of 11 October, the contents of which it set out in paragraph 13 of the judgment.
11. The Employment Tribunal did not specifically address in its judgment the authorities on compliance with Step 1 of the Disciplinary Procedure. At the time of the Tribunal's judgment, there were two such authorities, Alexander v Brigden Enterprises [2006] ICR 1277 and Homeserve v Dixon [2007] UKEAT/0127/CEA: a third relevant authority, Zimmer Ltd v Brezan UKEAT/0294/08/ZT was only handed down at the Employment Appeal Tribunal on 24 October 2008, and is unlikely to have been available for consideration. All these three authorities are at EAT level. The conclusion of Elias P in the first of them, Alexander, was that the wording of paragraph 1(1), which we have set out above, requires that the employer's statement not only sets out in writing what the employee's alleged conduct is which leads the employer to contemplate dismissal, but also requires there to be set out in the said statement that the employer is contemplating dismissal or taking disciplinary action against the employer, and if so which. Judge Clark in Homeserve, in paragraph 12 of his judgment, cast some doubt on that conclusion, but did not propose to depart from it: Judge Burke QC in the later decision in Zimmer concluded that the words in paragraph 1(1) should be construed in the same way as in Alexander. We would conclude that, in a future case, there may be call for reconsideration of this issue, not least given that the word "lead" is in the present, not the past, tense. But we are expressly not invited by Mr O'Dair to differ from Alexander in this case, and we do not. However, Mr O'Dair submits, by reference to Homeserve, and indeed to Zimmer, that such statement of contemplation of dismissal is not required to be express, but that (as Judge Clark says in paragraph 13 of Homeserve) it is sufficient if it is "implicit in the letter calling the claimant to a formal disciplinary meeting to consider a charge of breach of contractual obligations … that the employer ... is contemplating dismissal", or (in accordance with the words of Judge Burke QC in Zimmer at paragraph 23) the employee must be "enabled to understand from the Step 1 letter that he is at risk of dismissal". This proposition is not challenged by Miss Heal nor, so far as can be seen, by the Tribunal, which phrased its question and conclusion in paragraph 96 as relating to a failure "to inform the claimant in clear terms prior to the disciplinary hearing that a potential outcome was dismissal". But the Tribunal concluded that the Appellant did not comply with such obligation in respect of Step 1, such that there was an automatically unfair dismissal contrary to s98(A) of the Employment Rights Act 1996.
12. The Employment Tribunal appears only to have addressed the wording of the first of the two letters, that of 11 October, because that is the only letter referred to in the judgment, indeed being set out in full in paragraph 13: and the only part of that letter (which, as it happens, was identically repeated in the second letter) which was addressed by the Tribunal was the passage "it may result in your employment being reviewed with Aramark". The Tribunal concluded:

"to euphemistically refer to someone's employment being reviewed quite simply does not provide the clarity required by the statutory disciplinary procedure."

13. The Tribunal referred to the Claimant's first language not being English (although recording that he was clearly able to speak and respond in English, but he had the benefit of an interpreter at the proceedings). The Tribunal did not refer to a passage in the evidence, admissible before us pursuant to paragraph 4 of the Order of Judge Reid in the appeal, that, when asked in cross-examination what he expected to happen to him if he had committed the acts of gross misconduct alleged against him of 11 October, the Claimant said that he would have expected to have been dismissed. But we are satisfied that either the Tribunal must have erred in its approach in law (the straightforward test enunciated by Judge Burke in Zimmer was not of course available to it) or was perverse in its construction and in its ignoring of significant parts of one or both letters:

i) The first letter referred (as did the second) in terms to "Gross Misconduct": and to the purpose of the interview being to decide what disciplinary action, if any, might be appropriate "in accordance with our disciplinary procedures". It seems to us wholly clear that, particularly with the use of the capital letters, the reference to Gross Misconduct would lead any reasonable recipient of the letter (and whatever the view of the Tribunal as to the Claimant's English comprehension, it is quite clear that he was perfectly competently working for the Appellant, and with his colleagues, in English) to be put on notice of the risk of dismissal, being disciplinary action at the highest end of the scale, consistent with (gross) misconduct at the highest end of the scale. As it happens, the Tribunal had before it evidence (referred to above) which shows that this employee did have such appreciation.

ii) Whatever might have been drawn from the reference in the letter of 11 October to Gross Misconduct and to the company's disciplinary procedures, the letter of 17 October expressly referred to the Company Handbook. Neither Counsel, not having appeared below, was able to tell us whether such handbook was expressly referred to before the Tribunal, but we were shown it, and, as one would expect, and would be assumed in the case of any reference to gross misconduct in any company handbook, there is indeed a lengthy section headed up "Gross Misconduct" in which were "listed some of the more serious situations, which normally result in summary dismissal. Any team member who, after a full and thorough investigation, is found guilty of gross misconduct will be liable to be dismissed without notice."

iii) In any event, it is not in our judgment permissible to look at what the Tribunal called euphemistic without examining the context. In the context of both letters, employment being "reviewed" can only mean that there would be consideration as to whether it would or could be continued in the light of the allegations of gross misconduct.

14. Alleged non-compliance with Step 1 was the only basis upon which the Tribunal found automatic dismissal (paragraph 96 of the judgment). Insofar as Ms Heal sought in her skeleton to raise other matters not so relied on by the Tribunal, if arguable at all, that would have required a Respondent's Notice, of which there was none before us, and Ms Heal did not pursue the matter. We have no doubt whatever that a decision should be substituted that the Claimant was not automatically dismissed by virtue of s98A.

Grievances

15. The Appellant's Notice of Appeal raised a case by reference to all the allegations of discrimination and harassment referred to in paragraph 7 above that the Tribunal erred in not finding a failure by the Claimant to comply with the standard grievance procedure, so that the Tribunal was disentitled from considering the Claimant's claims by s32 of the 2002 Act, save in respect of the alleged sexual harassment on 11 October itself. On his reconsideration of paragraph 6(5) of the 2004 Regulations, Mr O'Dair concluded that the same contention extended to that incident, the alleged poking of the Claimant in the back by Mr Geis, as to all the others. Miss Heal did not resist a technical amendment of the Notice of Appeal to include within it that incident also. The alleged incidents of discrimination/harassment appear clearly to fall in two categories:

i) The three alleged incidents set out in paragraphs 5(iv) to (vi) of the judgment were not raised at any of the meetings in the disciplinary and grievance proceedings by the Claimant to the Appellant. This is accepted and found by the Tribunal in paragraph 56.

ii) The other incidents of alleged harassment in paragraph 5 and complaints of less favourable treatment in paragraphs 3(1)(a) to (c) were not the subject matter of any written grievance by the Claimant, but were all raised by him at various times in the course of either the investigatory or disciplinary hearings or at the appeal hearing.

16. So far as concerns the incidents set out in (i) above, no case appears to have been raised or argued or found by the Tribunal that there was in existence some form of writing which could comply with Step 1 of the Standard Grievance Procedure contained in Schedule II of the 2002 Act, as referred to above:

"(6) The employee must set out the grievance in writing and send the statement or a copy of it to the employer."

There is and was no basis upon which a finding that s32 was satisfied (if such was made) can be upheld.

17. As to the balance of the complaints, the Tribunal appears, though there is no express reference to it, to have had in mind the EAT decision of Kennedy Scott Ltd v Francis [2007] UKEAT/0204/07/DM, a decision of Cox J. The Tribunal found as follows:

Paragraph 39: "Certainly the Claimant was never invited to a hearing to consider the grievances he had set out in the course of the investigatory meeting and the disciplinary hearing and which were reduced to writing by Marva Ingram and Bridget Lee so as to comply with the statutory grievance procedure."

Paragraph 56: "The Claimant has raised a grievance in writing raising sexual harassment in that the minutes taken of all the meetings held with the Claimant record the complaint of sexual harassment he is making."

18. The Tribunal consequently appears to have found that the fact that the grievances (other than those admittedly not raised at all), insofar as raised orally during the course of one or other of the meetings, could be found to be in compliance with Step 1, and thus not ruled out by s32 of the 2002 Act, because a minute or note was taken of them.
19. The facts of Kennedy Scott were unusual. According to paragraph 9 of Cox J's judgment, the claimant in that case emailed a Ms Clark of the respondent, stating that she wished to make a number of complaints and asking for necessary forms to be sent to her. Ms Clark immediately responded, brushing off the question of the sending of any forms, and recommending that the claimant raise her concerns informally with her immediate manager "who will record details of the grievance". At paragraph 11 of Cox J's judgment, it was expressly recorded that "the claimant was therefore being told … that [his line manager] would record his grievances in writing". Cox J concludes as follows:

"46. It is correct that the Chairman did not state that [the line manager], when she made the notes, was acting as the claimant's agent … [Counsel for the respondent] submits that, in order to comply with Step 1, [the line manager] must have been acting on the claimant's behalf in writing it, rather than making notes of his grievance, which she was hearing. The Chairman did not find that she was acting on his behalf.

47. There was, however, no finding in this case that she was not, or a finding that she was only making a written record of the grievance for her own purposes, or for some other specified purpose, e.g. for ensuring the adequacy of record retained by the respondent's human resources department. Indeed the Chairman's observations indicate … that she regarded them as working together to put something in writing, and that the purpose of this exercise was to enable the claimant "to draw up some document evidencing his grievance with [the Line Manager]". This, in my view, was the reality of the situation on the facts found.

48. The precise purpose of making the written record does not seem to me to be material … the question is whether, with the emphasis on substance, this claimant can be said in these circumstances to have set out his grievance in writing and sent it to his employer. In my judgment he can and the Chairman was right so to conclude."

20. With respect to Cox J, the decision in that case seems entirely sensible, and involves very little evolution of the words in the Regulations whereby "the employee must set out the grievance in writing and send the statement … to the employer." In that case it was found by the employment judge (and not interfered with by the EAT) that (by express arrangement with the employer) the employee caused someone else to record the grievance in writing so that it could be delivered in that form to the employer, and it was so. In this case none of the factual context of Kennedy Scott applies. There was no grievance set out in writing at any time by the Claimant, nor any arrangement that the employer should set it out on his behalf, or to avoid the filling out of forms. The only similarity with Kennedy Scott is that there was a note-taker at the meetings, the first two of which (which meetings are the only ones referred to by the Tribunal) were neither of them billed or intended as grievance hearings: and the minute-taker Mr Nudd was, as referred to in paragraph 3 above, expressly noted in the record as having been "here to take notes on [Ms Ingram's] behalf".
21. We are entirely satisfied that the Tribunal erred in law in concluding that, in relation to any of the complaints of discrimination or harassment, the Claimant can be found to have set them out in writing and sent a statement or a copy of it to the Appellant. There was in any event no need to 'fudge' the requirements of the Act, as the Claimant had time to put in his grievances in writing, and in compliance with the Act, after his dismissal, using the 'modified' procedure intended for such purpose.

Unfair Dismissal

22. Notwithstanding what we have called the prolix Notice of Appeal by Mr O'Dair, after discussion with us, Mr O'Dair was willing and able to slim down his submissions before us effectively into two, of which the first was his major case. He accepted that, while he did not abandon any subsidiary argument on perversity (in relation to which his primary case was that the Tribunal was not entitled to find that the Claimant did not timeously receive the statements that the Appellant had received from eye witnesses of 11 October at the time), such arguments would not of themselves get him home, and we were not invited to consider them in his oral submissions. His two points were as follows:

i) The Tribunal failed to consider the principles established by J H Sainsbury v Hitt [2003] ICR 111 (Hitt), namely that the test of the range of reasonable responses applied as much to the question whether the investigation into suspected misconduct was reasonable in all the circumstances as it did to the reasonableness of the decision to dismiss for the conduct reason ("the Hitt point").

ii) The Tribunal committed the legal fault of "substitution" i.e. of substituting its own conclusion as to the facts for that of the employer, rather than limiting itself to asking whether the employer had, after reasonable investigation, a reasonable belief ("the substitution point").

23. The two arguments plainly overlap: indeed the Hitt point can be said to be only an exemplar of impermissible substitution by an employer, but Mr O'Dair limited, and made a separate point of, his argument on substitution, by reference to a particular passage in the judgment, to which we will refer below.
24. We turn first to his Hitt argument, which was the main thrust of his challenge to the Tribunal's finding of unfair dismissal. Mr O'Dair's alleged point of principle was that an employer who takes a view, as it was suggested the Appellant did in this case, that the alleged conduct of an employee was so serious that it must be judged in isolation from any cross-complaints by that employee, would be acting within the reasonable range of responses in conducting an investigation on that basis, within Hitt; so that a failure, such as was found here by the Tribunal, to carry out an adequate investigation of the employee's cross complaints, could not be properly characterised as an "inadequate" investigation, just as in Hitt, where (see paragraph 15 of Mummery LJ's judgment) the majority of the Tribunal in Hitt had found that Sainsbury's investigation was "inadequate". In principle this is a perfectly good argument, and it is right that the Employment Tribunal did not expressly refer in its judgment to Hitt (though Miss Heal points to the passage in paragraph 36 of the judgment, where the Tribunal records that the Appellant had "no obligation to carry out a forensic investigation"). There is, however, no reason to believe that this experienced Tribunal did not have Hitt in mind just as much as other well known but unmentioned unfair dismissal authorities, such as British Home Stores Ltd v Burchell [1980] ICR 303: and certainly so when the Tribunal plainly, as has appeared above, had knowledge of other, less well known, cases, such as Alexander and Kennedy Scott, to which the Tribunal made no express reference, and yet which it plainly applied.
25. But Mr O'Dair's argument about the applicability and non-application of Hitt only applies if the facts fit, i.e. if it was indeed the case that this employer was following the route of entirely siphoning off the questions of conduct, and was entitled to do so, in order to bring itself within a reasonable range of responses. It is entirely plain to us that, on the findings of the Employment Tribunal, and indeed by reference to the contemporaneous documents themselves, neither was the case:

i) The Tribunal notes at paragraph 36 of the judgment, by reference to Ms Lee's handling of the second meeting, that "she opened the meeting in a way which suggested that a decision had already been made. Even if she had not made up her mind, she was interested only in determining whether the Claimant was guilty of the allegation that his behaviour was uncontrolled, aggressive and violent towards Mark Geis on 11 October and if so whether anything had happened that morning which might be a mitigating factor. She was not at all interested in investigating the explanation provided by the Claimant". There is there half a suggestion of the O'Dair line, although there is also the criticism that the Appellant was not "interested in investigating the explanation provided by the Claimant". At paragraph 38, the Tribunal records that Ms Povey, in relation to the proposed appeal hearing, which doubled as the first instance grievance hearing as described above, took advice from the Appellant's HR advisers; they, it seems, made it clear to her that the Appellant "needed to decide whether any behaviour of Mark's, alleged or otherwise, justified the Claimant's actions", and needed to consider whether any of the Claimant's cross-allegations "excused the Claimant's reaction or allowed him to argue mitigating circumstances and thereby the need to consider a lesser penalty". The Tribunal, not surprisingly, notes at paragraph 39 that it "finds the nature and purpose of the meeting on 15 November then became blurred", and that (paragraph 52 of the judgment) "it may be the Respondent ought to have separated out the grievance hearing from the appeal hearing. Certainly if the Claimant had been invited to a grievance hearing rather than an appeal hearing there would have been no confusion about what sort of meeting he was attending. The Respondent appears to have rolled the two into one". Much as Mr O'Dair perhaps might have liked it otherwise, in order to suit his argument, the Appellant does appear to have carried out a hybrid exercise.

ii) But, in any event, in order to justify siphoning, or severance, of the conduct which, if the Appellant were so to conclude, amounted to gross misconduct from cross-allegations by the Claimant (a) that would have to have been possible to do (b) the Appellant would have had to reach careful conclusions as to what, in its reasonable belief, in fact occurred. The Tribunal records, in paragraph 36, that "had the Respondent carried out a reasonable investigation into what the Claimant alleged by way of explanation for what he agrees he did on 11 October, namely threw a bowl and spoons but not at Mark Geis in anger and frustration at what Mark Geis had done, it may have accepted the Claimant's version of events". The central passage appears to us to be that set out in paragraph 5 above, being Ms Lee's conclusions at the end of the disciplinary meeting of 22 October 2007. Ms Lee appears to have accepted that the Claimant did not throw the bowl and spoons at Mr Geis. She does not appear expressly to conclude that he did punch Mr Geis, because, although she records the two statements made by other employees, and Mr Geis own statement, she does not record that she accepted those statements, and disbelieved the Claimant when he said that he did not hit him; and the letter of dismissal does not dismiss him on that ground, but simply on the general ground, referred to above, that "your behaviour was uncontrolled, aggressive and violent towards your colleague". It seems to us that the Appellant, in order to bring itself within what Mr O'Dair described as the reasonable range of responses, in the context of violence in the kitchen, needs to have reached a firm conclusion as to precisely what occurred, and then applied to that decision its conclusion as to the impact, if any, of the alleged provocation or history of previous incidents. If it could be said that the conduct (as found) was so serious that no amount of previous provocation could be of any relevance, then it might well have been within the reasonable range of responses of an employer to shut its mind to any such matters. But, as has been seen, (a) the Appellant did not make the findings so as to reach any such conclusion (b) the Appellant did not shut its mind to the alleged previous incidents but (c) carried out what the Tribunal concluded to be an inadequate investigation of them.

We do not conclude that the Tribunal erred in law by reference to the Hitt point.

26. As to Mr O'Dair's "substitution" point, we have already indicated that, to an extent, his case set out above that the Tribunal applied the wrong approach to the question of the Respondent's investigation is itself a substitution point. But his specific submission related to paragraph 55 of the Tribunal's judgment. By that stage of the judgment, albeit that (as referred to above) the Tribunal purports to be reciting the facts, the Tribunal has reached a conclusion that the Appellant's investigation has been inadequate, in failing to investigate the Claimant's complaints, failing to "probe" and asking "closed" questions. It concludes "without an investigation into the Claimant's allegations, the Respondent was not in a position to reach findings on what did or did not occur on 11 October and why". At this stage, the Tribunal moves on, in the rest of the paragraph, to record its conclusion as to what it thinks happened on 11 October. Mr O'Dair is, in our judgment, correct to say that this was inappropriate. However, it was necessary for the Tribunal to carry out that exercise for the purpose of its conclusion eventually recorded in paragraphs 100 and 101, as to whether the Claimant would have been dismissed anyway if there had been a reasonable investigation, and as to whether the Claimant had contributed by his conduct. We are satisfied that the premature recording of the Tribunal's conclusions in this regard, at a stage of the judgment at which such conclusions were irrelevant, does not impugn the careful analysis by the Tribunal of the inadequacy, as it found, of the Appellant's consideration and investigation of the explanation put forward by the Claimant as to why he effectively 'blew his top' in the kitchen on 11 October, including the cross-allegations he was making.

The balance of the sexual orientation discrimination claim

27. The only surviving discrimination claim upon which the Tribunal was entitled to, and did, adjudicate was the Claimant's case that his dismissal (of course including the alleged failure to carry out an adequate investigation, which led to the dismissal) was less favourable treatment on the grounds of sexual orientation, in that he was "treated less favourably than in the same relevant circumstances someone who was not perceived to be gay would have been" (paragraph 3 of the judgment). There was plainly sufficient to amount to a prima facie case of discrimination against the Appellant, such as to transfer the burden of proof to the Appellant by reference to Regulation 29 of the 2003 Regulations (the same Rule as is applicable to all kinds of discrimination):

"(2). Where … the complainant proves facts from which the tribunal could, apart from this regulation, conclude in the absence of an adequate explanation that the respondent –

(a) has committed against the complainant an act to which regulation 28 applies …

the tribunal shall uphold the complaint unless the respondent can prove that he did not commit, or, as the case may be, is not to be treated as having committed, that act."

28. There is, without repeating its content in this judgment, more than sufficient to justify the transfer of the onus, as recorded inter alia in paragraphs 36, 53-54 and 90 of the judgment. Insofar as Mr O'Dair criticises a finding of fact by the Tribunal in relation to evidence of Bridget Lee in those paragraphs by reference to evidence adduced pursuant to Judge Reid's Order, that would only, as Mr O'Dair was compelled to admit, affect the quantum of such evidence, of which there would still be sufficient.
29. Mr O'Dair complains that there is no express reference in the judgment to the transfer of the burden of proof. This seems to us an odd submission. Such a case might ordinarily form the starting point of a submission by an unsuccessful employee, that the Tribunal has failed in its duty to transfer the onus of proof to the employer. In this case what appears to be submitted is that the Tribunal does not in its judgment 'disclose its workings', by mentioning the impact or timing of the transfer of the burden of proof. It is nevertheless plainly the case that it concluded that the Appellant did not satisfy that burden: see for example paragraph 36 of the judgment in which the Tribunal records that it "has looked to the Respondent for an explanation in no sense on the ground of sexual orientation. There is no explanation. In the absence of an explanation the Tribunal further finds that in failing to investigate the serious allegations the Claimant made at the investigatory and disciplinary meetings the Respondent did treat him less favourably on the ground of sexual orientation." (see again in paragraph 90 of the judgment).
30. What appears to be suggested is that there was some unfairness to the Appellant in the Tribunal's not having spelt out to the (represented) Appellant the existence of paragraph 29 of the Regulations. Mr O'Dair refers to Market Force (UK) Ltd v Hunt [2002] IRLR 862 where a tribunal, having found unfair dismissal, went on to find (without having given notice to the respondent of this further issue) that if further investigation had been carried out there was a 25 per cent chance that the claimant's explanation would have been shown to be correct, and he would not have been dismissed, so granting him a 25 per cent compensatory award. The EAT on appeal concluded that the employer should have had the opportunity to make submissions on the issue of the percentage chance by way of a "Polkey" percentage reduction. That appears to us to be an entirely different case. That tribunal went on to give, without giving any notice of it, consideration to an additional issue. In this case, the Tribunal merely applied the correct law. Mr O'Dair asks us to assume, without any evidence to that effect, that the Appellant's solicitor, who represented them over four or five days in the Employment Tribunal hearing, did not know the law, or did not understand the operation of the Regulations which were in play before the Tribunal. Given that we do not have copies or notes of the oral or any written submissions before the Tribunal, we cannot begin to reach a conclusion as to any of this argument, but it seems wholly unlikely to us that there was not correct consideration of the law, and every opportunity to both parties to put their cases.
31. The case for the Appellant is summarised in paragraph 61 of the judgment. Given that the operation of Regulation 29 is not, and never intended to be, that there should be some kind of announcement by the Tribunal part or whole way through the hearing that 'it is now satisfied that it has heard enough evidence to resolve that the burden of proof has transferred', but can obviously only reach such conclusion at the end, having heard all evidence and submissions, it is not surprising that the Appellant's case, as recited, concentrates on there being no evidence of less favourable treatment, and on the assertion that all complaints were fully investigated and resolved.
32. Mr O'Dair suggests that it is difficult to make a contingent argument on the basis that (a) all was done properly but (b) if it was not done properly then it was incompetence and not discrimination (e.g. as per the words of Elias J in Bahl v Law Society [2003] IRLR 640. But it is plain that there is nothing to stop, and everything to encourage, an advocate putting forward just such an argument. If no such self-critical submission is made on the part of the employer, then it may be that a Tribunal is entitled by virtue of the very absence of such an argument to conclude that the employer is blinkered and infected by discrimination.
33. In this case it is apparent that the Tribunal concluded that the inadequate investigation carried out by the Appellant at each of the stages was one which amounted to an ignoring or trivialising of the Claimant's complaints. There are specific findings in relation to Ms Lee that (paragraph 35 of the judgment) "she told the Tribunal she did not realise the Claimant was complaining about sexual harassment", which obviously caused the Tribunal concern about her evidence; and the Tribunal was similarly concerned at the apparent ignoring by the Appellant of its own HR advisers' advice (paragraph 38 of the judgment). At paragraph 41, the Tribunal concludes that "the failure to probe [by Ms Povey] illustrates a total disregard for the Respondent's policy on harassment, alternatively suggests that it is a policy on paper only. It demonstrates the Respondent was not taking the complaints made by the complainant seriously", and there are similar conclusions drawn from other facts and matters, including the Code of Practice there referred to, in paragraphs 42, 90, 91 and 93, in which latter paragraph the Tribunal's reference to the "Respondent's failure to investigate his complaints" plainly should have said "the Respondent's failure adequately to investigate his complaints".
34. Mr O'Dair points to paragraph 118 of Elias J's judgment in Bahl whereby he concludes that "the Tribunal should consider all relevant issues which may cast light on the decision whether or not discrimination has occurred". It seems clear to us that the Tribunal has done just that, and has not simply concluded that the investigation was inadequate, but has reached conclusions that there is, and that the Appellant has not excluded, a discriminatory explanation.
35. For these reasons we allow the appeal in respect of automatic unfair dismissal, but dismiss it in respect of unfair dismissal itself, and allow the appeal as to all claims of sexual orientation discrimination and harassment, save for that relating to his dismissal. There is no call for remission in the light of our conclusions, and these determinations must be substituted for the determination of the Employment Tribunal.