Mr G Self of Counsel For the v Respondent — 2021

The claimant, Mr Graham Stretch, was dismissed by the Secretary of State for Justice for gross misconduct following an incident on 14 October 2018 at HMP/YOI Portland involving Prisoner A. The tribunal accepted that the claimant used force on Prisoner A, but it found that the respondent’s process moved from a decision log to a formal investigation, then to a disciplinary hearing and appeal, with the relevant decision-makers reviewing the CCTV footage, witness evidence, the claimant’s own Use of Force statement, and a specialist report from a National Control and Restraint instructor.

On the unfair dismissal claim, the tribunal held that the respondent genuinely believed the claimant had committed gross misconduct, had reasonable grounds for that belief, and had carried out as much investigation as was reasonable in the circumstances. It found that the claimant’s use of force was not reasonable, necessary, or proportionate, and that the respondent was entitled to conclude that his account changed over time and lacked credibility. Although the tribunal accepted that the investigation was not procedurally perfect, including some delay and some leading questions, it found those matters did not make the dismissal unfair.

The tribunal also found that dismissal was within the band of reasonable responses. It attached weight to the claimant’s senior managerial status, the conclusion that the force used was unjustified, and the respondent’s finding that the claimant had not taken responsibility until very late in the process. The appeal officer, Mr Russell Trent, upheld the dismissal after considering the disciplinary transcript, the investigation report, the CCTV footage, and the parties’ representations. The unfair dismissal claim was therefore dismissed.

On victimisation, the tribunal accepted that the claimant’s earlier Employment Tribunal proceedings presented on 3 September 2018 amounted to a protected act under section 27 EqA 2010. It then considered the detriments alleged by the claimant, including criticism and changed duties at a management meeting, suspension, the investigation, and dismissal. The tribunal accepted that some detriments occurred, but found no evidence that they were because of the protected act. It rejected the claimant’s allegations of collusion and conspiracy, and held that the decisions were driven by the incident on 14 October 2018 and the evidence available to the decision-makers, not by the earlier proceedings. The victimisation claim was dismissed.