Gross misconduct may justify dismissal without notice and without previous warnings.

Gross misconduct includes, but is not limited to:

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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."

1. 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.

1. 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.

1. 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.

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I consider that as a result of this assault, you present a risk to the Group, employees and property."

1. 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)".

1. At some point, presumably prior to 3 April, the Claimant had seen LC's police statement.

1. 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.

1. 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.

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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."

***Unfair Dismissal*

1. 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 assault¹.

1. 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."

1. 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.

1. 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.

1. 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."

1. 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

1. 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.

1. 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 B v A 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.

***Unfair Dismissal*

1. 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."

1. 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'.

1. 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."

1. 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.

1. 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

1. 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. 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 Act²). 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."

1. 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.

1. A hypothesis constructed by the tribunal or by the claimant is not, plainly, 'evidence'.