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BA faces privacy backlash over 'Know Me' Google image search


British Airways is facing criticism after unveiling plans to launch a programme called “Know Me.”

Privacy campaigners hit out after the airline revealed plans to use the internet to create “dossiers” on passengers, the London Evening Standard reported.

The intelligence tool uses Google Images to find pictures of passengers for staff to use so they can approach them as they arrive at the terminal or aircraft.

Airline staff will also search individual data held by the airline, including if a regular traveller has experienced problems on previous flights, such as delays, so that crew are primed to apologise.

But Nick Pickles, director of privacy campaign group Big Brother Watch, told the Evening Standard: “Since when has buying a flight ticket meant giving your airline permission to start hunting for information about you on the internet?

“If British Airways want more information about us they can ask us for it, rather than ignoring people’s privacy and storing data without us having any idea what data they are storing.”

To read full article please go to Click here
Ex-France Telecom chief Lombard probed over suicides


Authorities have placed the former head of France Telecom Didier Lombard under formal investigation for harassment.

The probe relates to the suicides of over 30 employees in 2008 and 2009 when Mr Lombard was in charge.

The launching of a formal investigation is the last stage before charges are brought in the French legal system.

Mr Lombard wrote in Le Monde that restructuring at the company may have upset employees, but challenged the idea it caused the suicides.

To read full article on the BBC website please Click here
Rebekah Brooks appears at Southwark Crown Court

Ex-News International chief executive Rebekah Brooks has appeared in court on charges of conspiring to pervert the course of justice.

Mrs Brooks, 44, and husband Charlie, 49, who appeared at Southwark Crown Court, were bailed until 26 September.

She faces three charges of conspiring to pervert the course of justice; Mr Brooks is charged with one count of the same offence.

Four others also appeared at the court on the same charge.

Mrs Brooks's former personal assistant Cheryl Carter, 48, of Mildmay Road, Chelmsford, Essex; head of security at News International Mark Hanna, 49, of Glynswood Road, Buckingham, Buckinghamshire; Mrs Brooks's chauffeur Paul Edwards, 47, of Victoria Park Square, Bethnal Green, east London; and security consultant Daryl Jorsling, 39, of Vale Road, Aldershot, Hampshire, all face a single charge of conspiring to pervert the course of justice.

To read full article on the BBC website please Click here
Four more phone-hacking files go to prosecutors

Detectives investigating allegations of phone hacking have passed files on four more journalists to prosecutors to decide if charges should be brought.

The Crown Prosecution Service said the Metropolitan Police's Operation Weeting team delivered the files on Tuesday.

So far, six people have been charged as a result of the investigation into phone hacking and corrupt payments to public officials.

They include former Sun editor Rebekah Brooks, who denies the charges.

This article is from The BBC. To read full article on the BBC website please Click here
Rupert Murdoch 'not a fit person' to lead News Corp - MPs

The bombshell is on page 70 of the report by the Culture Media and Sport Select Committee into News International and phone-hacking.

It is worth quoting in full:

"If at all relevant times, Rupert Murdoch did not take steps to become fully informed about phone-hacking, he turned a blind eye and exhibited wilful blindess to what was going on in his companies and publications.

"This culture, we consider, permeated from the top throughout the organisation and speaks volumes about the lack of effective corporate governance at News Corporation and News International.

We conclude therefore that Rupert Murdoch is not a fit person to exercise the stewardship of a major international company".

That description of Mr Murdoch by the British parliament as "not a fit person" is likely to have significant consequences.

It will force the board of News Corporation to review whether the 81 year-old, who created one of the most powerful media groups the world has ever seen, should remain as its executive chairman.

It will give ammunition to those News Corporation shareholders who would like to loosen the hold over the company of the Murdoch dynasty.

This article has been written by Robert Preston and taken from BBC. To read full article on the BBC website please Click here
News of the World phone-hacking cases launched in US

A British lawyer says he is taking legal action in the United States on behalf of three alleged victims of phone hacking by the News of the World.

Mark Lewis said the three were a "well-known sports person", a sports person not in the public eye and a US citizen. Follow link to BBC Click here

Mr K Cook v British Airways plc

Case No: 3304081/10


EMPLOYMENT TRIBUNALS


Claimant: Mr Cook

Respondent: British Airways plc


Heard at: Reading On: 5 and 6 September 2011, 5 and 6
January 2012 with a reserved judgment
decision meeting on 30 January 2012.

Before: Employment Judge Matthews
Members: Ms E P Burns
MrC E Carter


Representation:
Claimant: Mr D Panesar of Counsel
Respondent: Miss E Smith of Counsel



RESERVED UNANIMOUS JUDGMENT


1. Mr Cook was unfairly dismissed.

2. Should Mr Cook seek compensation as his remedy, it would be just and equitable to reduce both the amount of any basic and compensatory award by 50%.

3. The case is to · be listed for a further hearing to deal with the issue of remedy with a time allowance of one day.




REASONS


Introduction

1. Mr Kevin Cook makes two claims against the company. First, that he was unfairly dismissed by reference to sections 94 and 98 of the Employment Rights Act 1996 (the "ERA"). Second, that he was unfairly dismissed by reference to section 94 of the ERA and section 152 of the Trade Union & Labour Relations (Consolidation) Act 1992 (the "TULRCA"). Because of the way the latter claim was pleaded (page 10 in the bundle - all references are to page numbers in the bundles unless otherwise indicated), the parties have proceeded on the basis that it is a claim specifically under subsection 152(1)(a) TULRCA, that the reason for Mr Cook's dismissal was his membership of an independent trade union. There is no claim by reference to subsection 152(b) of TULRCA, which is concerned with a dismissal for the reason that a person took part in, or proposed to take part in, the activities of such a trade union at an appropriate time. In our view, any such claim would have made no difference to the outcome.

2. The issue, at least, is straightforward. Mr Cook provided access to a document of his, "Scabbin'Crew News", on the website of BASSA. BASSA is the British Airways Stewards and Stewardesses Association, a branch of Unite the Union. BASSA membership is made up exclusively of the company's staff. Mr Cook provided this access during the dispute between the company and some of its it cabin crew staff over the Winter and following Spring of 2009/10. The company decided that, in doing so, (implicit in this is that Mr Cook should have been aware that the access could easily be widened to others) Mr Cook "took part in conduct likely to harass a BA colleague or colleagues and/or incited others to take part in such conduct in breach of SA's Dignity at Work Breach of EG102- Dignity at Work - Harassment & Bullying" (see the dismissal letter at 360). The phrasing of the reason for dismissal seems a little awry but the meaning is clear enough. The company says that, because of this, Mr Cook was dismissed without notice on 18 August 2010. Mr Cook says that his dismissal was unfair by reference to one or both of the claims mentioned above. The company, for its part, says that Mr Cook was fairly dismissed for a conduct reason, which had nothing to do with Mr Cook's membership of a trade union. The company advances "Polkey" and contribution arguments, should the dismissal be found to be unfair for any reason.

3. On behalf of the company we heard from Mr Xavier ("Harry") Van Der Donckt (Employment Policy Manager with the company) and Mr Paul Morgan (Manager, Network Operations, Planning, with the company). Both produced a written statement. The company also produced a statement from Ms Amy Lawrence (Human Resources Business Partner for Brands and Customer Experience with the company). Ms Lawrence did not attend the hearing and, whilst we read Ms Lawrence's statement, we gave it little weight. There has been argument about the significance of the company's decision not to call Ms Lawrence. Ms Lawrence was originally unavailable as a result of maternity leave. lt is for the company to decide how it will put its case. We make no criticism in this respect. Ms Lawrence was the "middle" of three decision makers involved in Mr Cook's dismissal and we doubt her evidence would have greatly assisted Mr Cook's case or the Tribunal. There was an agreed bundle of documentation in two folders supplemented by a small bundle of inter-parties' correspondence. Some additions were made to the bundle during the course of the hearing and the Tribunal's bundle is definitive in this respect. Both sides supplemented their oral argument before the Tribunal with considered written submissions sent to the Tribunal before the reserved judgment decision meeting.

4. The hearing was set down for 2 days. That proved to be insufficient. With the agreement of the parties two further days were set aside to complete the hearing. The first of these, 5 January 2012, was used by the Tribunal as a reading day, using an agreed reading list supplied by the parties. The Tribunal found that of considerable benefit. The Tribunal has found this to be a case in which a close scrutiny of the contemporary documentation was essential. lt was possible to finish the hearing in open Tribunal on 6 January 2012. To achieve this, however, Miss Smith and Mr Panesar were confined to around a half hour each of argument and it was agreed this could be supplemented, if they so wished, with written argument. Judgment was reserved.

5. lt was agreed that the hearing should address liability only (including any "Polkey" or contribution arguments) leaving remedy to another day, should that prove necessary.

6. At the start of the hearing Mr Panesar made an application to include in the bundle a book of cartoons by "Figment". We understand that the purpose behind this was to show context for "Scabbin'Crew News" in the form of other publicfitions available to company staff. We dismissed that application. Mr Panesar asked us to record our reasons for doing so. In short, they were two. First, the company should have been allowed time before the hearing to deal with this material, if it was to be produced. Second, and more importantly in our view, Mr Cook had had ample time to put together his arguments on disparity of treatment. lt was too late to seek to raise another on the first day of the hearing.




Facts

7. The company needs little introduction. lt is a commercial airline based in the United Kingdom, formerly the Nation's flag carrier and still seen by many as being so. In its response in these proceedings it recorded 38,000 employees in Great Britain.

8. The company had three policies that are important in this case. They are its "Disciplinary Procedures" ("EG901" at 21-28), its "Grievance Procedure" ("EG903" at 29-34) and its "Dignity at Work- Harassment and Bullying" policy ("EG102" at 41-44).

9. EG901 is a contractual policy (21). lt is the policy governing disciplinary action taken by the company against its employees. it is concise, well written and clear. lt provides for summary dismissal for gross misconduct but the examples given are not pertinent to Mr Cook's case. EG 903 is also a contractual policy.

10. EG102 is a non-contractual policy (41). The policy commits the company to ensure a workplace free from harassment and bullying and encourages anyone who thinks they have experienced such behaviour to report it. We note the following provisions in particular.

10.1 "Bullying" is defined but does not concern us as that was not a charge laid against Mr Cook. "Harassment" is defined as "unwanted and unsolicited conduct which is personally offensive to the recipient and, therefore, fails to respect the rights and dignity of others."(42). [Our underlining]. lt seems clear, therefore, that for "harassment" to occur there must be an identified recipient of treatment, which treatment that recipient finds offensive.

10.2 The policy continues: "The effect of the unwanted behaviour on the person who claims to have been bullied or harassed will be an important factor to be taken into account, whether or not the behaviour was intended to be harmful." The policy goes on to give examples of harassment. These include: "offensive or suggestive jokes, banter or language". The policy also stipulates that harassment may consist of a single act.

10.3 The policy sets out how an individual who believes they have been the subject of harassment should take action. If appropriate, they may speak informally to the person concerned. Otherwise the matter is to be reported promptly to their line manager or that person's manager, depending on the circumstances, and the employee can raise a grievance under EG903.

10.4 The policy includes this (44): "All formal complaints will be dealt with in accordance with EG903: Grievance Procedure (Employment Guide) and, if appropriate, EG901: Disciplinary Procedures (Employment Guide)."


There is also this provision: "If the issue is a sensitive one, the employee will not normally be questioned during any formal process in the presence of the person alleged to have harassed or bullied them. The decision on this will be made by the Investigating Manager."

10.5 The policy makes it clear that a breach may result in dismissal (44).

11. Mr Cook was a member of the company's air cabin crew. Mr Cook joined the company on 11 February 1998 and, as we have recorded, was summarily dismissed on 18 August 2010. In addition certain other sanctions were imposed on Mr Cook (370). Apart from the charges that lead to his dismissal, Mr Cook had an unblemished disciplinary record.

12. In the Summer of 2009 the company sought to reach agreement with its cabin crew on proposed changes to the way cabin crew operated on flights, including manning levels. No agreement was reached and the company decided to impose the changes. Over the Winter and Spring of 2009/2010 in particular, the company became engaged in a well publicised and bitter industrial dispute with some of its cabin crew over the changes. BASSA, was the cabin crews' representative in this respect. The dispute included industrial action, which the company addressed by a number of means including using volunteer staff to do the jobs of striking cabin crew. On 14 December 2009 BASSA announced a 12 day cabin crew strike between 22 December 2009 and 2 January 2010. On 17 December 2009 the High Court granted the company an injunction and the strike was called off. Following a further strike ballot, strike action finally went ahead between 20 and 22 and 27 and 30 March 2010. In all this the company's management, no doubt, believed they were fighting for the company's commercial survival in profitable form and BASSA believed it was fighting for the legitimate rights of its members.

13. The company decided it was necessary to set up a co-ordination centre to deal with disciplinary cases relating to the industrial action and to designate a number of managers to support such cases. Mr Van Der Donckt was one of the supporting managers. Mr Van Der Donckt's evidence is that most of these cases related to allegations of bullying and harassment. The co-ordination was organised from a room called "Leiden" in one of the company's buildings at Waterside, Harmondsworth in Middlesex. The people involved became referred to collectively as the "Leiden Unit" and cases they dealt with as "Leiden Cases". I!is Mr Cook's contention (and, we think, through him BASSA's wider agenda) that the "Leiden Unit" was formed to bear down with particular harshness on striking cabin crew. We are satisfied that the purpose of the "Leiden Unit" was to provide and co-ordinate additional resource to hear disciplinary cases connected with the dispute. In doing so it primarily used EG901. lt did not operate under separate procedures, although it did have access to the "Leiden Matrix", which we refer to below. We have seen no direct evidence that there was a general direction that it should deal with cases against striking cabin crew harshly. However, we comment below on the treatment of one pilot's case that went through the "Leiden Unit".

14. Although holding no official position with BASSA, Mr Cook was a committed member and did not doubt in the justice of the cabin crews' cause. In response to the company's use of volunteers to break the cabin crew strike (see 215) Mr Cook compiled the document we have referred to called "Scabbin'Crew News" in the Spring of 2010. A version of this can be seen at 119-126. We heard much evidence on whether or not this document was harmless satire in keeping with the British tradition in that respect, or something going beyond that. Miss Smith described Mr Cook's evidence on this subject as "disingenuous", a description we would agree with. At his disciplinary hearing with Mr Van Der Donckt there was disagreement about the meaning of "satire". Mr Cook did, however, agree that "Scabbin'Crew News could be "offensive" if it got onto a pilots' forum (216). The reality is that the effect of the document would, of course, have largely depended on the persuasion of the reader. There is plenty of material in the bundle to demonstrate that this was a workplace well used to brutal satire. Notwithstanding, in our view it was reasonably foreseeable and reasonably arguable that an employee belonging to a category ridiculed in the document could find the document both upsetting and intimidating. The document can be referred to in full. We highlight the following.

14.1 The title itself is a play on the company's weekly publication "Cabin Crew News" and on the word "scab". In the context of an industrial dispute a "scab" is commonly understood to be an employee who refuses to join strike action or takes a striker's place. By association with another meaning of the word "scab" (an incrustation over a wound) the use of the word in this context is derogatory.

14.2 Pilots are described as in receipt of "scab pay of £160 per hour" (120). The suggestion is made that "Some pilots can't see an arse without feeling the urge to shove their heads up it." (121). At 121 we also see the suggestion that BA will pay for the use of prostitutes by volunteering pilots:

"There are indeed a large number of pilots currently in Lagos and Accra who are awaiting return to the UK. However, this is simply because BA cannot allow them to operate the return sector until they have received the all clear from the local Genito Urinary Clinics.
On the same subject could we please squash the rumour among some volunteering pilots that prostitutes can be charged to room service and that BA will pick up the bill.
All bills for the use of prostitutes must be settled locally!"


On 124 we see this:
"BA is expecting industrial unrest from the people who clean the toilets on board and have asked for a new army of volunteer pilots to back BA by cleaning up the shit they helped create in the first place. You can volunteer online at the following website, available exclusively on BA premises:
www.lwillgladlylickwillysarseifitgetsmeapromotion.co.uk"

14.3 Management employees, who had volunteered to take cabin crew places, are described as "scab crew" on page 121.

14.4 Mr William Walsh was the CEO of the company at the time. At 123 we see this:

"Mr Walsh was kind enough to present this information to Scabbin Crew News from his suite at Strangeways where he is currently awaiting an arsehole transplant and cosmetic dentistry."

This is followed at 126 by this:

"Willy Walsh's arsehole transplant has been declared a failure as the arsehole has rejected him. Cosmetic Dentistry has also been postponed as no real dentist could be found tci work on the little gobshite. Several Unite union members have stepped in to offer him free dental work. So far this offer has not been taken up."

14.5 As far as cabin crew who continued to work are concerned, we see this at
117:

"In this first issue we are pleased to be able to play a part in helping a new charity, the Doreen Green Appeal. Doreen who lives in Manchester used to be cabin crew and did her part by working during the first strike. However this is when disaster struck because now every time Doreen sees herself in a mirror or catches her reflection anywhere, all she sees is a big fat scab. Doreen is now off sick and has lost her staff travel, as she was absent during the second wave of industrial action. "My doctor has told me this is incurable," said Doreen. "For the rest of my life, all I will see in the mirror is a scab. I don't know how I will ever live with myself. Even my pussy has refused to sit on my lap now." BA have asked Doreen if there is any support we can offer at this time: other than putting her on a staff ticket home of course."

15. At the end of one version of "Scabbin'Crew News" Mr Cook included this
(126):

"Editors note


This Scabbin Crew News is intended for the amusement of Unite Union members only. The characters mentioned above are entirely fictitious and any resemblance to anyone living or dead is entirely co-incidental other than references to the muppets in the leadership team who are sadly only too real."

Mr Cook's evidence, which we accept, is that this appeared on the paper version of "Scabbin'Crew News". Mr Cook also says that it was included in the version he linked to the BASSA website. We are not sure about that, but nothing turns on it. What is certain is that it did not appear in the version accessed in the way we relate below.

16. Initially Mr Cook distributed paper copies of "Scabbin'Crew News" to his fellow strikers at Bedfont Football Club on 27 March 2010. The Club was used as a meeting point by the strikers. Mr Cook was asked for additional copies and, rather than print more, on 26 April 2010 posted a link entitled "Scabbin'Crew News" on a forum operated by BASSA so that it could be viewed by anyone who had access to that forum. The post is at 129. BASSA, we understand, had some 12,000 members.

17. Later on 26 April two posts were made on "PPruNe" (Professional Pilots Rumour Network), an aviation website used by airline pilots. These included a link to Mr Cook's website edition of "Scabbin'Crew News". One of them was by a person using the pseudonym "Jadzia" (61A) and the other by. "LD12986". A third post was made by "ian001" on "Fiyertalk", an aviation chat room (339). That post also provided a link to Mr Cook's site on which "Scabbin'Crew News" could be viewed. "ian001's" post appears to have been timed before Mr Cook had posted his link on the BASSA forum, notwithstanding that "ian001" reported that he had obtained it from "PPruNe". That mystery remains unresolved. Neither "PPruNe" nor "Fiyertalk" were sites confined to company staff. Mr Cook says that, on 28 April 2010, he password protected access to "Scabbin'Crew News". This is disputed and there is no hard evidence either way. However, on the balance of probabilities we think Mr Cook did do this on or around (although not before) that date.

18. On 4 May 2010 Mr William Risbridger, an Investigator and Security Adviser from the company's Asset Protection team (part of the company's Corporate Security Department), took a statement from a Senior First Officer with the company (a pilot), who used the pseudonym "Peterborough" (132-134). The statement should be referred to for its full content. At the start of the statement "Peterborough" confirmed his wish to remain anonymous because he feared "for my safety and security in view of the threats and intimidation that have been made to a number of BA Staff and crew." Although we have not been shown any other statements taken by Asset Protection at the time and in similar circumstances, Mr Cook's belief is that this wording was a standard feature. This is supported by Ms Jane Tilley's (People Department) answers to written questions put by Mr Cook at the time of his first appeal against dismissal (470-471). Ms Tilley confirmed that the wording appeared to be standard from what she had seen of other anonymous witness statements taken by the Asset Protection Group during the industrial action. "Peterborough" went on to say that he had been browsing PPruNe on 26 April 2010 when he had come across the entry posted by "Jadzia". The post included a hyperlink to "Scabbin'Crew News". The hosting address revealed the author's e-mail address and a search on Facebook had provided the identity of Mr Cook as the author. "Peterborough" complained:

"After having read this document it seemed to me that it was intended to harass and intimidate volunteer crew and in particular flight crew volunteers." [Peterborough goes on to give examples]...."To summarise Scabin Crew News, I would describe it as an attempt to harass and belittle pilots who are volunteering to back BA and it casts us all in a dishonest and unprofessional light, both insulting and defamatory."

The language used might be seen to reflect a good knowledge of EG102. When we first saw this statement it suggested to us that there might have been an element of coaching in it and we return to this below.

19. On 11 May 2010 Mr Cook was met at Heathrow from an in-bound flight from Phoenix, Arizona in the United States of America, by two Crew Team Managers, Ms Anne Pilgrim and Ms Lisa Cooper. Ms Pilgrim read Mr Cook the contents of a letter suspending him from duty with pay. There is an issue about whether or not Mr Cook was denied the opportunity to seek trade union representation but it does not affect our decision. There is a note of the meeting at 138 and the letter of suspension is at 137-137A.

20. On 19 May 2010 Mr Trevor Skerritt (Finance Manager for United Kingdom and Ireland Sales) wrote to Mr Cook requiring him to attend an investigatory meeting (141-142). The allegation against Mr Cook was set out. On 14 June 2010 Mr Cook attended the investigatory meeting together with his BASSA representative, Ms Nicky Marcus. Throughout her part in the disciplinary process Ms Marcus was to put up a spirited and intelligent campaign on Mr Cook's behalf. The company was represented by Mr Skerritt. Ms Jean Stone also attended to take notes, a typed version of which is at 157-161. Mr Skerritt explained that Mr Cook was being interviewed under the provisions of EG901 and confirmed the disciplinary charge and that it fell under EG102. Early on in the meeting Ms Marcus questioned both why Mr Cook's actions were seen as bullying and harassment and why EG102 had not been followed. The significance of this is explained in paragraph 10.4 above. EG102 requires a formal grievance under EG903 to be raised if the subject of the behaviour they cannot do so. The argument, in effect, is that EG901 can only come into play in relation to a complaint of bullying and harassment when a formal grievance has been lodged under EG 903. In the interview Mr Cook agreed that he was the author of "Scabbin'Crew News". Mr Cook asserted it "was meant to amuse my colleagues in the Union" and was published by him on the BASSA website and no other.

21. Mr Skerritt passed the investigatory file to Ms Doreen Weber (Finance Manager) to decide whether or not there was a case to answer. Ms Weber obviously thought there was because she wrote to Mr Cook on 25 June 2010 telling him so (169). Although Ms Weber noted that she was passing the file to a Mr Kirby Lee, in fact it next went to Mr Van Der Donckt, as the hearing manager.

22. Prior to the hearing Mr Van Der Donckt considered the paperwork he had received. This, of course, included "Scabbin'Crew News". Mr Van Der Donckt has this to say about it (WS23):

"When I read "Scabbin' Crew News", I thought that it was in very bad taste. I felt that it was very divisive, given the climate of the industrial dispute at the time. lt was obvious that the publication would create issues between those who chose to strike and those who didn't. lt was a very tense time during the industrial action and it was obvious that writing something like this would inflame the already hostile situation."

So much, we think, is common sense.

23. For various reasons, which we need not record, the disciplinary hearing did not take place until 29 July 2010. Mr Cook was again accompanied by Ms Marcus. Mr Van Der Donckt had Ms Tilley in attendance to take notes. The typed notes are at 197-224. Mr Van Der Donckt outlined the charge and explained that a possible sanction was dismissal for gross misconduct. There was then an adjournment after which Mr Cook handed Mr Van Der Donckt a written grievance. After a further adjournment Mr Van Der Donckt told Mr Cook that he was going to proceed with the disciplinary hearing because all the points in the grievance related directly to it. Later there was yet another adjournment on the same subject. lt appears that, at that point, everyone agreed to go ahead with the hearing. In any event, Mr Van Der Donckt's handling of the matter in this respect seems perfectly reasonable to the Tribunal.

24. The grievance letter can be seen at 188-189 and referred to as necessary.
We need not record its content here as all the subjects were raised in the disciplinary hearing itself.


25. The notes of the hearing can also be read in full. We record the following themes:

25.1 Mr Cook asked to be allowed to question "Peterborough", the principal reason advanced being that "Peterborough" might have a personal grudge against him. Mr Van Der Donckt refused but countered with an offer to put Mr Cook's questions to "Peterborough". Mr Cook responded that he had no particular questions to put to "Peterborough". Whilst Mr Cook criticises the decision not to allow face to face questioning of "Peterborough" it seems to us that Mr Van Der Donckt's decision on this point, later mirrored by Ms Lawrence and Mr Morgan, was perfectly reasonable in the circumstances.

25.2 Ms Marcus put it to Mr Van Der Donckt that "Peterborough" had not alleged bullying and harassment in his statement, rather, he had identified the potential for it. We think Ms Marcus had an arguable point about that.

25.3 Mr Cook and Ms Marcus asserted that the company monitored the BASSA website without permission. That the company did monitor some activity, at least, on the BASSA website is clear to us from a letter the company's solicitors wrote to BASSA'a solicitors on 19 August 2010 (382-383). This may have been of importance to BASSA but we do not see it has much to do with Mr Cook's case. "Scabbin'Crew News" had, whether Mr Cook intended it or not, become available on "PPruNe" and "Fiyertalk". From Mr Cook's point of view the significance seems to have been that he believed that the company had found "Scabbin'Crew News" on the BASSA forum and were instrumental in its subsequent appearance on "PPRuNe". We have no evidence to support that proposition. In any event, Mr Cook explained what he considered he had done was to make his website copy of "Scabbin'Crew News" available through the BASSA forum. In doing so it was not he who had put it into a domain that would offend others. Further, Mr Cook believed that "Jadzia", who had made the link to "Scabbin'Crew News" available on "PPruNe", worked in the company's Waterside premises. Other postings made on "PPruNe" by "Jadzia" led Ms Marcus to believe that he or she was not a member of the company's cabin crew but a manager with the company. Mr Cook asked Mr Van Der Donckt to investigate who "Jadzia" was.

25.4 Ms Marcus repeated the point she had raised with Mr Skerritt. The company had not followed EG102 because there was no formal grievance from "Peterborough" under EG903. Ms Marcus suggested that ordinary policies had been dispensed with because of the dispute. Had the matter come up without the dispute in the background, "Peterborough" would have raised it with his manager and there could have been an attempt at informal resolution. In this context Ms Marcus raised the subject that she felt bullied and harassed by postings on the British Airlines Pilots Association ("BALPA") website (not a website confined to the company). Ms Marcus gave some specific examples and confirmed that the details had been passed to the company for action but nothing had been done. Mr Van Der Donckt responded "If you are saying that Pilots have been treated in a different way, then I have got an issue in terms of fairness." (214). The postings Ms Marcus handed Mr Van Der Donckt can be seen at 70-76. We return to these below.

25.5 As we have recorded, a paper version of "Scabbin'Crew News had been distributed at a BASSA meeting at Bedfont Football Club. Whilst this was a BASSA meeting, it had not been closed to outsiders such as the Press. There had been two more editions of "Scabbin'Crew News·distributed at later meetings at the Club. Mr Cook had confined these to paper form in light of the company's actions in relation to the first edition.

25.6 Mr Cook handed Mr Van Der Donckt a letter from Mr Philip Sherer, a Senior First Officer. In the letter Mr Sherer wrote that he had found "Scabbin'Crew News" amusing and provided a testimonial for Mr Cook (168). Mr Cook also handed over the letter we see from Mr James Shepard, a Senior First Officer who thought "Scabbin'Crew News" "pathetic" and "puerile" (131). Mr Cook's grudgingly conciliatory response to Mr Shepard, also handed to Mr Van Der Donckt, is at 131.

26. As we have recorded, Ms Marcus handed Mr Van Der Donckt examples of postings on the BALPA website that Ms Marcus said she felt bullied and harassed by. These are at 70-76 and are what Mr Van Der Donckt had to work with at the time. No authors' names were supplied. Later, when Mr Duncan Holley of BASSA complained to the company about these postings, names were supplied. Examples are:

26.1 A posting on 31 January 2010 from Mr Derek Suckling (70- see 78B for the later version):

"I'm going to break slightly with protocol now. F**k off BASSA you lying malevolent bunch of hypocritical self serving c*!tS.........[ends rant]".

26.2 A posting on 3 February 2010 from Mr Mark White (71 - see 78C for the later version):

"Hung, drawn and quartered seems appropriate".

27. On 12 Apri12010 Mr Holley sent a formal complaint to the company on this subject alleging bullying and harassment by reference to EG102 (78A-G). Mr James Farren later sent Mr Holley an e-mail on 4 May 2010 assuring him that "these matters will be dealt with consistently across the board and will be dealt with in accordance with our disciplinary procedures where appropriate." (78U).

28. lt is lear that the company's management was under pressure from their pilots to take action against what the pilots obviously saw as intimidation of pilots by BASSA. An e-mail dated 3 February 2010 gives an insight (76):

"We met with the very top of the company today, with input from Willie himself. Senior members of BA management have spent the entire business day dealing with this issue and have established processes to deal with the flood of information they are receiving. This needs to be carefully organised as in some cases criminal proceedings may result against staff.

BA will not tolerate any bullying or intimidation, no matter the scale or the effect on the victim. They have a wealth of information and are in the process of acting - I would expect to see the results within the next 24 hours.

I am satisfied that they are doing everything that is possible using all the resources of a company of this size. I am also satisfied that they are using all their connections across industry to establish cases against individuals. There is no such thing as anonymity when it comes to text messages, forum posts, emails, telephone calls or even the spoken word.

BALPA has a responsibility to pass on any information that we may get that shows our members are being bullied and harassed and any information on other employees breaking either the law or company policies (or both) that directly affects our members. We have done that and will continue to do so.

We expect a number of things to happen tomorrow and although I can't expand further at the moment, we will keep a close eye on developments and give BA robust feedback if needed. WW is very clear in his mind as to what is and is not acceptable and what sanctions for unacceptable behaviour are."

The references to "Willie" and "WW" are, of course, references to the company's CEO, Mr Walsh. Whilst there is nothing in this report to suggest that the company would not be even handed when dealing with both cabin crew and pilots, clearly the pressure was coming from the pilots and it was they who were being reassured.

29. On 15 December 2011 the company's solicitors, Addleshaw Goddard, wrote to Mr Cook's solicitors, 0 H Parsons, providing details of what had happened in relation to some of the people the subject of Mr Holley's complaints (supplementary bundle 14-15). Apparently the complaints were referred to the "Leiden Room" and 3 cases were reviewed. The only one in respect of which we are able to identify the post in question is that of Mr Suckling (see paragraph 26.1 above). Mr Suckling was "given an informal verbal warning as it was felt that his comments were unacceptable but it was a single, generalised post which was not aimed at a particular individual." One other written warning apparently resulted. In the third case no action was taken because the evidence was unreliable.

30. After the disciplinary hearing a number of things happened. Mr Cook sent Mr Van Der Donckt some other postings by "Jadzia" on "PPruNe" to help Mr Van Der Donckt track him or her down (60-68). These gave a UK location and a statement that the author was not cabin crew. On 13 August Mr Van Der Donckt sent an e-mail to "Jadzia" asking him or her to contact him by telephone. Mr Van Der Donckt did not specify the subject
(307). "Jadzia" did not rise to the bait and Mr Van Der Donckt sent him or her a further more specific e-mail on 14 August 2010 (306). Although Mr Van Der Donckt's e-mail offered anonymity, there was no response. Mr Van Der Donckt also made enquiries of "LD12896" and "ian001" receiving no reply from the former but a reply from the latter. No further attempts were made to contact the person or persons behind these pseudonyms. Remembering that the person or persons concerned had seen fit to, in effect, put "Scabbin'Crew News" into a forum where it would almost certainly cause offence, this surprises us. The resources we think were available to enable the Asset Protection Group to take this further. lt suggests that the unsurprising priority might have been to deal with those such as Mr Cook who did not support the company's stance.

31. Meanwhile, on 12 August 2010 Mr Van Der Donckt interviewed "Peterborough". There are notes at 329-334, which are clearly not verbatim. The method used was that Mr Van Der Donckt and Ms Tilley sat together in a room and conducted the interview by telephone. Ms Sue Hildersley (Investigator & Security Adviser, British Airways Corporate Security) sat with "Peterborough" at the other end of the telephone line. A number of points came out of the interview.

31.1 Mr Van Der Donckt asked "Peterborough" what had prompted him to raise the issue. "Peterborough's" response was that he had found "Scabbin'Crew News" through "PPruNe" and "was appalled by what I saw. I saw it as direct, well constructed pseudo journalism which was meant to humiliate and belittle me."...."Obviously defamatory, obvious and planned with intent to bully and intimidate Flight Crew members and incite behaviours in others in support of Cabin Crew action."

31.2 Mr Van Der Donck asked "Peterborough" what impact the piece in "Scabbin'Crew News" about pilots and prostitution (see paragraph 14.2 above) had had on "Peterborough". Mr Van Der Donckt is recorded as putting his question in this way:

"Home in on - 1 entry on your statement regarding VCC" [volunteer cabin crew] "pilots specifically. Galley FM, XVDD" [Mr Van Der Donckt] "read from "Scabbin Crew News". When you read it what impact did it have on you?"

"Peterborough" replied:

"lt is hard to put into words, hard to believe that anyone would write something so vile. The inference that I and my Flight Crew colleagues all partake in the use of prostitutes I find wholly offensive and unacceptable especially as I am a married father with a child. My reason for feeling harassed, this is a direct slant on my character."

Mr Van Der Donckt then put another question:

"When you read it, how did it make you feel?"

We do not need to record the response.

31.3 Mr Van Der Donckt asked " Peterborough" how he felt about the reference in "Scabbin'Crew News" to pilots and "scab pay" (see paragraph 14.2 above). The reply was:

"1•t, categorically it is a blatant lie. Mr Cook is perpetuating a rumour spread by some who are sympathetic to the strike that Flight Crew were paid £160 per hour. The very clear reason for mentioning it is to incite anti Flight Crew behaviour in others."

Mr Van Der Donckt then asked Peterborough how he felt about this personally. Mr Van Der Donckt's words are recorded as:

"Can you talk from I, rather than others, you personally. I hear from you that it is untruthful and inaccurate."

As with the questions we have set out in the preceding paragraph, by asking the question in this way Mr Van Der Donckt was trying to obtain a subjective response. In this we see an awareness on Mr Van Der Donckt's part that "harassment" under EG102 needed a victim (see paragraph 10.1 above). Whether Mr Van Der Donckt was trying to encourage "Peterborough" to describe himself as a victim, rather than find out if he was one, is difficult to say. On the balance of probabilities, bearing in mind on the point, we think Mr Van Der Donckt was not simply trying to find out what "Peterborough's" personal feelings were but was encouraging a subjective response. Certainly that is what he got.

"Peterborough" replied:

"I felt intimidated by this writing and concerned I might have to operate with this individual in the future."

31.4 "Peterborough" confirmed that he did not know Mr Cook, had no grudge against him and had never communicated with him.

31.5 Mr Van Der Donckt asked "Peterborough" why he wished to remain anonymous. The reply was:

"I mentioned earlier that I am married with a baby son. Over the period of Industrial unrest there have been a variety of threats both direct and indirect towards or against Flight Crew. These include the threat of poisoning Flight Crew meals on YouTube, threatening text messages of which I am personally aware, anonymous phone calls, Face Book threats and suffered a number of cars being scratched or damaged in the car park."...."l believe if I were not to remain anonymous, I believe I or a member of my family could be the subject of direct harassment."

31.6 "Peterborough" confirmed that the words "This statement is made under a pseudonym, as I fear for my safety and security...." at the beginning of his statement to Asset Protection (132) were his own. As we have noted, this appears to clash with Ms Tilley's view (470-471).

In this interview we note that, as with his original statement, "Peterborough's" choice of phrase often fitted neatly into the context of EG102.

32. Mr Van Der Donckt met Mr Cook on 18 August 2010 to give Mr Cook his decision. Mr Cook was accompanied by Mr Greg Newton, a BASSA representative and Ms Tilley was also present. Mr Van Der Donckt read out his letter dated that day to Mr Cook (360-370). The letter can be referred to for its full content. Here we summarise the most important of Mr Van Der Donckt's findings:

32.1 Mr Van Der Donckt had considered the proposition that pilots and cabin crew were being treated differently. Mr Van Der Donckt wrote:

"I can confirm that having looked into this, I have seen no evidence that this is the case and that formal policies have been applied where they have been relevant and sanctions applied where necessary."

In essence, Mr Van Der Donckt appears to have based this on assurances he had received from Ms Janet Robinson (a member of the company's People Department who had a co-ordination role in the "Leiden Unit"- see 469) (WS76).

32.2 Amongst Mr Van Der Donckt's findings was this (364):

"....you published the relevant material on a website"...."You cannot possibly personally know all of the members of the BASSSA forum and on that basis you cannot have known with any reasonable certainty what would be done with the information you had posted on your website once the link was put onto the BASSA forum."

32.3 Commenting both on the refusal to allow Mr Cook to question "Peterborough" face to face and on using EG901, Mr Van Der Donckt wrote this (365):

"A report or complaint from an individual is not required to instigate EG901 where an alleged incident of bullying/harassment has occurred. If British Airways is aware of any behaviours or actions, which is in breach of its EG102 Dignity at Work- Harassment and Bullying policy, it has the right to manage such incidents within a formal disciplinary process, EG901. I would also like to highlight that EG102 specifically makes reference to the following: "If the issue is a sensitive one, the employee will not normally be questioned during any formal process in the presence of the person alleged to have harassed or bullied them. The decision on this point will be made by the investigating manager. Witnesses will be encouraged to give evidence." It is my belief that in this case the right approach was taken by the Investigation Manager as evidenced through my subsequent interview with Peterborough in that he is fearful, feels bullied, harassed and intimidated."

We do not understand the basis for Mr Van Der Donckt's assertion that the company could move straight from EG102 to EG901 bypassing EG903 and be in compliance with its written procedures.

32.4 Referring to EG 102 and those sections of "Scabbin'Crew News" we have recorded in paragraphs 14.2, 14.4 and 14.5 above, Mr Van Der Donckt found (368):

"I believe that no reasonable employee would ever believe that such a publication would have no impact, Scabbin'Crew News is a publication that you know or ought to know would cause fear or excessive anxiety. The publication is aimed at a number of British Airways employees such as flight crew, VCC's including management, colleagues who decided to come to work over the strike period and the British Airways Chief Executive Willy Walsh. I do not believe your behaviour is acceptable in the circumstances."

As we have already recorded, Mr Van Der Donckt later continues (369):

"In conclusion, I find the allegation that you took part in conduct likely to harass a BA colleague or colleagues and/or incited others to take part in such conduct in breach of BA's Dignity at Work Breach of EG102- Dignity at Work- Harassment and Bullying."

Finally (369):

"After careful consideration I have decided that the appropriate sanction for this offence is dismissal without notice. Your employment, therefore, ends today."

33. Part way through Mr Van Der Donckfs reading out the letter Mr Newton told him that Mr Cook and he already knew what the outcome would be. Although he did not go into specifics at the time, Mr Cook had checked the "Voice Response" telephone system used by crew to check their rotas on three occasions on his way to the hearing and he was denied access. lt was because of this that Mr Cook now said to Mr Van De Donckt that he knew he had been "terminated". Mr Van Der Donckt protested that this could not be the case as he had only finalised the outcome that morning and only Ms Tilley and he knew what it would be. In his statement Mr Van Der Donckt says that, in addition, he knew that the company's legal department had looked at the letter (WS92). lt later transpired from Ms Tilley's answers to questions put to her by Mr Cook that Ms Robinson had also seen it. Mr Van Der Donckt asked Ms Tilley to check to see if Mr Cook was still showing as a current crew member on the company's systems and he was. lt seems, however, that Ms Tilley checked "TRACIE", a different system to that Mr Cook had telephoned. Mr Van Der Donckt recorded these events in separate notes (384 and 385). This mystery was never resolved. Mr Van Der Donckt pursued the matter but the upshot was that, on 19 August 2010, Ms Karen Slinger (Manager Resource Planning - Cabin Crew) confirmed it was still possible to access the "Voice Response" system using Mr Cook's access number and password (381).

34. As Mr Van Der Donckt's letter of dismissal had invited him to do, Mr Cook appealed against his dismissal in a letter addressed to Ms Amy Lawrence, the person designated to hear any appeal. Mr Cook's letter was dated 20 August 2010 and is at pages 390-391 in the bundle. Mr Cook's non exclusive grounds of appeal were breaches of procedure (the only breach specified being Mr Van Der Donckt telling others of the outcome prior to the outcome meeting), that Mr Van Der Donckt had ignored some evidence and introduced new evidence without warning and the severity of the sanction in light of the company's behaviour across the airline as a whole. Mr Cook added that he felt he was "being unlawfully discriminated against by BA due to my Trade Union activity and the ongoing industrial and political situation at the company".

35. In exchanges leading up to the appeal hearing Mr Cook asked that Ms Tilley be called as a witness. Ms Lawrence refused the request, offering instead to put relevant questions to Ms Tilley. Quite what Ms Lawrence's concern was we are not sure. We speculate that Ms Lawrence thought that Ms Tilley was at risk of hostile questioning.

36. The appeal hearing took place on 27 August 2010. Ms Lawrence was accompanied by Mr Myles Rainsford (People Department) who took notes. Mr Cook had Mr Oliver Richardson of BASSA with him. The typed notes are at 407-418.

37. During the hearing more details of Mr Cook's grounds of appeal emerged.
The following is a summary.

37.1 The company had not followed its usual procedure of cases going to a preliminary investigation (PI) team but, instead, had processed Mr Cook's case (and others) through a separate team of people. Whilst not referred to as such because Mr Cook did not yet know of "Leiden", this was a reference to the use of the "Leiden Unit".

37.2 Mr Van Der Donckt had relied on "Peterborough's" uncorroborated anonymous evidence.

37.3 Mr Van Der Donckt's letter of dismissal had specified the reason for dismissal as being that Mr Cook had brought the company into disrepute.

37.4 That Mr Van Der Donckt had made his decision before the outcome meeting.

37.5 The circumvention of an opportunity for informal resolution.

37.6 The contradiction between "Peterborough's" evidence that the introductory wording of his statement of 4 May 2010 was his own and BASSA's belief it was standard wording used by Asset Protection when taking evidence.

37.7 Inconsistencies in "Peterborough's" two statements that pointed towards him lying.

37.8 That "Jadzia" was a company manager and, as such, it was he or she who should bear responsibility for the post on the "PPruNe" site.

37.9 The sanction was too severe and targeted.

38. Having clarified the grounds of appeal the hearing adjourned to allow Ms Lawrence to carry out further investigations and consider putting to people any questions Mr Cook might want to ask.

39. On 1 September 2010 Mr Cook sent Ms Lawrence a list of questions he asked be put to "Peterborough" and to Ms Tilley respectively (441-448). On 3 September Ms Lawrence e-mailed the questions for Ms Tilley to her and Ms Tilley responded on 6 September (467-471). Ms Tilley confirmed that only Mr Van Der Donckt, one of the legal team and Ms Robinson had seen the outcome letter before the outcome meeting. Ms Robinson had seen it for the purposes of recording the dismissal on the "Leiden" database. Ms Tilley also confirmed her understanding we have noted above about the introductory wording common to "Leiden Case" (our phrase) statements.

40. Ms Lawrence did not think it appropriate to put all Mr Cook's questions for "Peterborough" to him. Ms Lawrence says that she chose which questions to put on the grounds of relevance to the appeal issues.

41. The appeal hearing reconvened on 6 September 2010 and the typed notes pick this up at 413-418. Ms Lawrence explained that she had answers to Mr Cook's questions to Ms Tilley but would not put Mr Cook's questions to "Peterborough". In answer to enquiries from Ms Lawrence about Mr Cook going back to his job, Mr Cook said that he would apologise "face to face" to Peterborough but would not give up his belief that the company was trying to destroy his trade union. The meeting looked again at what questions might be appropriate for "Peterborough". Mr Cook vocalised what he and his representatives had implied from the start of the disciplinary process in relation to Peterborough:

"I don't believe that witness came to BA"...."I believe that BA went to the witness."

Ms Lawrence agreed to put some questions to "Peterborough" and give Mr Cook a chance to comment on the answers before she made her decision but she did not think a further meeting was necessary. At the end of the meeting Mr Cook asked Ms Lawrence what a "Leiden case" was. By this stage Mr Cook obviously had some intelligence on the name. Ms Lawrence replied it was a room and that was where dispute (meaning the company/cabin crew dispute) cases were dealt with.

42. On 6 September 2010 Ms Lawrence sent her selection of the questions for "Peterborough" to Ms Hildersley for onward transmission. They are best seen with "Peterborough's" answers at 473-474. In asking the questions Ms Hildersley must have had access to Mr Cook's original version at 445-448, otherwise the questions would have been incomprehensible and the answers make no sense. "Peterborough" explained that, when he first felt aggrieved, he had sought advice from a senior manager who had advised him to report the matter, in confidence, to the Asset Protection Group. "Peterborough's" answer to a question about why he had previously said that the first few lines of his statement to the Asset Protection Group on 4 May 2010 were his own words when they appeared to be standard wording, was this:

"I am unable to answer this question as I have not seen any other witness statements to which you refer."

43. On 9 September 2010, having considered Ms Tilley's answers to his questions, Mr Cook sent Ms Lawrence a commentary (476-479). Various other papers changed hands including further questions from Mr Cook for both Ms Tilley and "Peterborough" all of which Ms Lawrence chose not to pursue. At Ms Lawrence's invitation Mr Cook put in a final statement (528-530). In this Mr Cook set out the three reasons why he thought "Peterborough" was lying, why he thought Mr Van Der Donckt had not handled the disciplinary process properly and his overall observations on what had happened to him in context.

44. On 15 September 2010 Ms Lawrence wrote to Mr Cook dismissing his appeal (541-549). The letter can be referred to for its full content. We need make only two observations. First, Ms Lawrence wrote that she saw no remorse in Mr Cook but omitted to mention the apology he had, during the appeal process, twice offered to make direct to "Peterborough". Second, it emerged at a later date, during the final appeal process, that Ms Lawrence had referred to the document we see at 649. This document was the subject of some focus during the Tribunal hearing. lt was referred to on Mr Cook's side as the "Leiden Matrix". Mr Cook's contention and we think BASSA's wider contention is that this matrix was used outside EG901 as the determinative instrument for deciding all disciplinary processes arising from the industrial dispute. We make only the findings that are necessary to decide this case. They are three. First, we accept Mr Van De Donckt's evidence that he had not used the matrix when making his decision in Mr Cook's case. Second, there is ample contextual evidence, which we shall record, that the company was very defensive about the existence of this matrix. Third, that the two officers who heard the appeals, Ms Lawrence and Mr Morgan, did refer to it. it is, therefore, only of direct relevance if either of the appeal managers made a decision based on the matrix that they would not have made in its absence. We have no evidence of any such decision and the matrix, therefore, has little bearing on Mr Cook's case save in one respect. The relevance of the matrix is this. We have referred in paragraph 26.1 above to the post made by Mr Suckling on an open pilots' forum. We know that Mr Holley's complaint about Mr Suckling was referred to the "Leiden Unit". We know that the result was that Mr Suckling was given an informal written warning. To have received that warning someone must have concluded that an allegation under EG102 was well founded. That is how the "Leiden Matrix" says it works. Looking across the "Category" columns, Mr Suckling can only be a "Contributor''. Looking down that column we would have said a bystander would have seen Mr Suckling's post as ticking all the boxes. The post directly said "something unpleasant or offensive to about another person or group", Mr Suckling (as the author of the post) participated in the incident, his language was "clearly unacceptable to most reasonable standards", Addleshaw Goddard do not report remorse as a reason for a lenient sanction, Mr Suckling held an "on-board" position and Addleshaw Goddard report no particular co-operation by Mr Suckling to mitigate matters. The "Leiden Matrix" does stress that "each case be heard on its merits" and that a decision may not fit within the matrix, but otherwise seems to countenance nothing but dismissal as the sanction for Mr Suckling. Certainly the least penalty appears to be a final written warning.

45. In Ms Lawrence's outcome letter Mr Cook was invited to make one further appeal. Mr Cook did so in a letter addressed to the designated final appeal authority, Mr Morgan, dated 20 September 2010 (556-557). The appeal letter was very similar to the first appeal letter sent to Ms Lawrence save that it expanded to include Ms Lawrence's failures, primarily to put questions to "Peterborough".

46. Amongst other exchanges in preparation for the final appeal hearing Mr Cook sent Mr Morgan a list of questions he wanted put to Ms Tilley, Mr Van Der Donckt and "Peterborough". Mr Morgan appears, initially, to have wanted to follow the same approach as Ms Lawrence. Mr Morgan would decide on the relevance of questions and whether or not they should be put (566A). However, in the event, we think somewhat more wisely than Ms Lawrence, Mr Morgan sent all the questions on for answers. Overall the process Mr Morgan oversaw seems to us from the papers to have been more receptive than that conducted by Ms Lawrence, although the result was to be the same.

47. The questions and answers for "Peterborough" can be seen at 571-573 and 597-598. The answers were obtained by Ms Hildersley, it seems through Mr Peter Holt (Operations Manager Asset Protection Group), using the method used during the first appeal stage (595). We find, in some of "Peterborough's" answers, a conundrum. We recall that "Peterborough" was a Senior First Officer who, apparently of his own volition, had brought his complaint to the company. The following exchange illustrates what we mean by a conundrum:

Question "You say that over the months, comments from Pprune have been "lifted and reported in the press" and that you are concerned about the subsequent "global impact on the Company" of Scabbin Crew News.

Q1. Can you specify where and when Scabbin' Crew News has been quoted and provide further evidence or specify the effect this has had on the Company."

Answer "The first question refers to the second answer I gave XVDD in a witness interview. In it I said that quotes from PPRuNe have been "lifted and reported in the press." For reference you can find references to PPRuNe on the following global websites (not exclusive): Guardian, Financial Times, CNN and BBC News. I did not use the word "subsequent", I said "anything can have a global impact on the company." The publication in question, in my opinion, has the potential to damage our reputation as a company as it was made available online and contained harassing statements aimed at pilots like myself who are consummate professionals that work hard, every day, for the benefit of our customers and company alike. For customers, passengers or fellow BA staff to read such a vicious attack from within our own workforce could, in my opinion, cause great harm. Obviously I can not quantify how many people saw or distributed it around the world, that would be impossible to answer."

This is not an off the cuff answer. No doubt "Peterborough" had time to consider the answers before he gave them. No doubt, also, a Senior First Officer may be a well informed and meticulous individual in answering questions of this sort. Nonetheless, we have an unease that "Peterborough's" earlier written statement and interview showed signs of coaching (they meshed too well with the wording of EG 102) and that unease turns to something more when we look at the totality of "Peterborough's" answers on this occasion. In our view on a balance of probabilities "Peterborough" was coached for this and earlier occasions. We cannot say who coached him. lt may have been a pilots' body of some sort or it may have been, as Mr Cook believes, an employee of the company.

Mr Cook's question 2 was on the subject of whether or not the introductory wording to the statement "Peterborough" gave on 4 May 2010 was his own. We can best describe "Peterborough's" answer to that question as wriggling (572 and 597). This reinforces our view that "Peterborough's" statements had been coached. lt seems almost certain, never mind probable that the introductory paragraph to "Peterborough's" 4 May Statement was given to him. lt may be that he then agreed to it, but that is not what he says about it on two separate occasions. We also have reservations about how "Peterborough" linked Mr Cook to "Scabbin'Crew News" and how he was able to access it, as he asserted he was, after 28 April 2010 (see 528, where Mr Cook's highlights these issues). However, we do not feel we either can or need to pursue those two additional issues any further.

Peterborough stated that he required more time to consider whether or not he would reveal the name of the senior manager who had referred him to the Asset Protection Group. In an e-mail dated 6 October 2010 to Ms Hildersley "Peterborough" named the senior manager as Mr Charlie Maunder (General Manager, Fleets) and assured that he had not been coerced into doing anything.

48. The questions for Ms Tilley are at 569 and her answers at 585. Mr Cook attempted to make further progress in his quest for the "Leiden Unit" but failed.

49. The questions for Mr Van Der Donckt are at 570 and we think the responses are at 635.

50. Mr Cook, doubtless now getting some answers, asked some more questions. This time of Ms Tilley, Mr Van Der Donckt and Ms Lawrence.

51. The questions for Ms Lawrence are at 620 and her answers at 621. Ms Lawrence was pressed further on "Leiden". Ms Lawrence denied that there were any separate "Leiden" procedures but confirmed there was a "Leiden" room co-ordinating EG901 procedures arising from the industrial dispute.

52. The questions for Mr Van Der Donckt are at 615 and his answers at 622- 623. Again, the agenda was "Leiden". Mr Van Der Donckt's answers were differing in form from but to the same effect as Ms Lawrence's.

53. The questions forMs Tilley are at 612-613 and her answers at 624. Mr Cook also pressed Ms Tilley on the subject of "Leiden". Ms Tilley's answers again were different in form from but in line with those of Ms Lawrence and Mr Van Der Donckt. We see no evidence of collusion in these answers.

54. On 20 October 2010 Mr Cook sent Mr Morgan some more questions, this time for Mr Maunder (636-638). Mr Maunder's replies are at 638. Mr Maunder explained that he had not advised "Peterborough to go down the route of EG102:
"Given the serious and fundamental nature of the contractual breaches, my view was that EG102 was in no way appropriate rather the matter should be handled under EG901. As the pilot requested anonymity, I referred him to APG in order that he could give evidence and have his identity protected. EG901 is routinely used where the incident is serious or unsuitable for informal resolution."

We observe that this does not sit well with EG102 itself or the extract we see at 675 from the company's "Managing Harassment and Bullying Toolkit" (although we note this latter document is dated September 2010- we do not know if it is a later version of an earlier document). lt does not seem that "Peterborough" was asked if he wanted to go down an informal route and his written complaint was not treated as a grievance. As we have noted, only once the grievance procedure has been followed and the grievance upheld is the outcome of a disciplinary hearing under EG 901 contemplated.

Mr Maunder threw further light on the "Leiden Unit":

"Following a number of incidents of harassment of individuals in January and February 2010, and the need for line managers to focus on managing the operation and crew in the run up to industrial action, a central investigation unit was set up in February 2010 to carry out the investigation of disciplinary cases related to the industrial dispute. The initial assessment criteria were simply whether or not an individual case was predominately related to the industrial dispute and whether it potentially constituted gross misconduct."...."The decision to establish the unit was agreed by IFCE" [In Flight Customer Experience] "and the People Department, with input from the BA Leadership team, BA Legal and other advisors including myself on behalf of BA Flight Operations."

55. The final appeal hearing took place on 4 November 2010. Mr Morgan was accompanied by Ms Paula Leahy (People Department) who took a note. The typed notes are at 652-661. Mr Richardson accompanied Mr Cook. The ground covered will be familiar to anyone who has read the preceding paragraphs of this judgment. We note, however, That Mr Cook again emphasised that he had not, himself, made "Scabbin'Crew News" available on a website other than BASSA's. He commented "I am deeply sorry it happened but I did not realise that was a risk or likely to happen" (653). We also know that Mr Morgan looked at the "Leiden Matrix'' (649) because he tells us so (WS58). However, Mr Morgan also says that, as far as he was concerned, his decision was benchmarked against EG901 as well as the "Leiden Matrix" and we have no reason to disbelieve him.

55. During the final appeal hearing Mr Cook handed Mr Morgan a written summary of his appeal case. This is at 723-731. At the same time, Mr Cook handed Mr Morgan the document headed "An Alternative Scenario" at 732-734. That document is instructive because it sets out Mr Cook's personal view of what had occurred. In essence Mr Cook felt that the company had been watching him for sometime before the industrial action because of his BASSA activity. Having found "Scabbin'Crew News", a company manager had deliberately posted a link to it on "PPruNe". Possibly, that same manager prompted "Peterborough" to take the action he did.

57. We think there is a hint that Mr Morgan accepted some of the issues and inconsistencies that Mr Cook was putting before him but did not believe they affected the correct outcome. We think Mr Morgan's statement is revealing in this respect. On the subject of Mr Cook's paper "An Alternative Scenario" Mr Morgan says this (WS54):

"In my opinion, Kevin produced this document as a smokescreen to deliberately avoid the real issue in the case, namely his misconduct. Kevin had freely admitted to producing "Scabbin'Crew News" and that he would do so again, as it was, in his words, satirical. Kevin had posted the publication on the BASSA website and had admitted that it was "unprotected" for a short period."

Reminding ourselves of the disciplinary charge against Mr Cook we can see that the action Mr Morgan describes above could have been seen by him as amounting to "conduct likely to harass a BA colleague"...."and/or incited others to take part in such conduct". However, in addressing the question of whether or not there actually was harassment and Mr Cook's actions therefore amounted to a breach of EG102, the company had put forward to its managers the evidence of "Peterborough". Rather than focussing on the specifics of "Peterborough" being harassed, Mr Morgan concentrated on the general unacceptability of Mr Cook's conduct. We think Mr Morgan's choice of phrase may have recognised "Peterborough's" evidence to contain riddles.

To support our view we give another example. In his statement Mr Morgan says this about one of the riddles (WS57):

"I felt that this was a red herring, and it did not impact on my decision. Kevin had admitted to producing the publication and I had to decide whether it was a reasonable decision to dismiss him for that. I therefore did not feel that I needed to look into this further."

There were elements of this approach in Ms Lawrence's handling of the first stage of the appeal.

58. In a letter to Mr Cook dated 11 January 2011 Mr Morgan dismissed Mr Cook's appeal (753-758). The content of the letter goes over old ground.
We note this, however (758):

"There is one final general point which I want to make about this matter, which I feel has become obscured by the procedural issues you have raised. This disciplinary process has arisen because of what you chose to write in Scabbin' Crew News at a time of heightened tension at which it should have been apparent to you that its content would be considered wholly divisive and inappropriate. British Airways has considered the contents of that publication and found it to be in breach of the principles set out in EG102. This is the fundamental reason for the disciplinary action against you."

Picking up the theme we set out in paragraph 57, it seems to us that in writing this Mr Morgan, consciously or unconsciously, was relying on the general offensiveness of "Scabbin'Crew News" rather than "Peterborough's" specific complaint about it. There is further support for our view in Mr Morgan's statement (WS65):

"The fact remained that Kevin's "Scabbin'Crew News" publication ended up on crew and public forums, where it had the potential to bully and harass members of the Pilot and volunteer cabin crew community." [Our underlining.]

That, of course, was not what the company had to substantiate to bring Mr Cook within EG102. For the company to do that it had relied upon "Peterborough" as having been harassed.

We also note that, like Ms Lawrence, Mr Morgan ignored Mr Cook's offer to apologise to "Peterborough".

Applicable Law


59. Section 94 of the ERA provides an employee with a right not to be unfairly dismissed by his employer.

60. Section 98(1) of the ERA provides that, in determining whether or not a dismissal is fair or unfair, it is for the employer to show the reason for the dismissal and that the reason is one of the "permissible" reasons within section 98(2) or some other substantial reason. One of the "permissible" reasons under section 98(2) is a reason relating to the "conduct" of an employee. If the employer shows a "permissible" reason, the question of whether or not the dismissal was fair or unfair is to be determined under section 98(4) of the ERA. lt depends on whether in the circumstances (including the size and resources of the employer) the employer acted reasonably and is to be determined in accordance with equity and the substantial merits of the case. That, of course, is our summary of section 98. The text, so far as it is relevant, is as follows: "98 General
(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show-
(a) the reason (or, if more than one, the principal reason) for the dismissal,
and
(b) that it is either a reason falling within subsection (2) or some other
substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) A reason falls within this subsection if it-"....
"(b) relates to the conduct of the employee,"....
"(4) Where the employer has fulfilled the requirements of subsection (1),
the determination of the question whether the dismissal is fair or unfair
(having regard to the reason shown by the employer)-
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial
merits of the case."

61. The test for a fair conduct dismissal is well established. In a case where an employee is dismissed because the employer suspects or believes that he or she has committed an act of misconduct, in determining whether that dismissal is unfair an employment tribunal has to decide whether the employer who dismissed the employee on the ground of the misconduct in question entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. This involves three elements. First, the fact of that belief must be established that is that the employer did believe it. Second, the employer must have had in his mind reasonable grounds upon which to sustain that belief. Third, the employer at the stage at which he formed that belief on those grounds, must have carried out as much investigation as was reasonable in all the circumstances. In going through this process, the burden of proof is neutral. Added to this test is the requirement that the sanction imposed by the employer is within the reasonable band of responses. Implicit in all this is that it is not for the tribunal to substitute its view for that of an employer provided that the employer's view falls within the band of responses which a reasonable employer might adopt.

62. Section 152(1) ofTULRCA provides:

"152(1) For purposes of Part X of the Employment Rights Act 1996 (unfair dismissal) the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee-
(a) was, or proposed to become, a member of an independent trade
union,'!

63. We were referred to British Home Stores v Burchell [1978]1RLR 378, Paul v East Surrey District Health Authority [1995]1RLR 305, Palomo Sanchez and Ors v Spain [2011] IRLR 934, Santamera v Express Cargo Forwarding tla IEC Ltd [2003] IRLR 273, Iceland Frozen Foods Ltd v Jones [1983] ICR 17, Midland Bank v Madden [2000] IRLR 28, Sainsburv's Supermarkets Ltd v Hitt [2003] IRLR 23, Slater v Leicestershire Health Authority [1989] IRLR 16, Smith v Glasgow City District Council [1987] ICR 796, Post Office v Marney [1990]1RLR 170, Cain v Leeds Western Health Authority [1990] ICR 585, Hadjioannou v Coral Casinos Ltd [1981]1RLR 352, Wong v lgen [2005]1CR 931, Barton v Investee Henderson Crossthwaite Securities Ltd [2003]1CR 1205, London Ambulance Service NHS Trust v Small [2009] IRLR 563, Securicor Ltd v Smith [1989]1RLR 356, Ramsey v Walkers Snack Foods Ltd [2004]1RLR
754 and Mr D Randall v British Airways Plc 3302394/2010. The last was a case decided by a majority in the Reading Employment Tribunal by a panel consisting of Employment Judge Lewis, Mrs A E Brown and Mr C E
Carter (Mr Carter, in the minority in that case, also being a member of this Tribunal's panel). In the circumstances we should record that we derived no assistance from the Randall case. The facts were very different.

Conclusions

64. In our judgment Mr Cook's claim that he was dismissed because he was a member of BASSA by reference to section 152(1)(a) of TULRCA is easily disposed of. During the hearing it was not pressed with vigour, although we acknowledge it is a salient feature of Mr Panesar's argument. We have no evidence on which we could find that Mr Cook's membership of BASSA or even his taking part in industrial action, was the principal reason, for his dismissal. We think Mr Panesar suggests we apply a discrimination burden of proof to this issue but we cannot and do not.

65. We turn then, to the "ordinary" unfair dismissal claim. The company says that the reason for the dismissal related to conduct. To satisfy us in this respect the company need only cross a low threshold. Even Mr Cook's "An Alternative Scenario" accepts that the proximate reason for his dismissal was his production of "Scabbin'Crew News". On the evidence we are satisfied that the there was a conduct related reason for the dismissal. That reason was set out in Mr Van Der Doncl<.t's letter of dismissal at page 360. lt is put on behalf of Mr Cook that Mr Van Der Donckt's letter sets out multiple reasons for the dismissal. Mr Van Der Donckt's letter does not have the advantages of simplicity and brevity but, it seems to us that its focus is the reason set out at page 360.

66. Having found that the reason for the dismissal was conduct, we must next consider whether Mr Van Der Donckt and, on appeal, Ms Lawrence and Mr Morgan believed they had found misconduct. We have expressed a view that there were some hints in Ms Lawrence's handling of her stage of the appeal and, more particularly in Mr Morgan's handling of his stage, that they recognised there were potential issues with "Peterborough's" evidence. If we are right about that, they certainly did not feel that it should influence the outcome of Mr Cook's case. In their circumstances at the time that would have required a very brave change in direction. In any event, on a balance of probabilities we do not think any doubts would have gone so far as to question their respective belief in misconduct. We find that all three honestly believed that Mr Cook was guilty of the misconduct alleged.

67. We must go on to consider whether or not the company had, in the minds of its officers, reasonable grounds upon which to sustain that belief. lt is not our task to consider afresh what happened but whether or not the company's three officers, Mr Van Der Donckt and, on appeal, Ms Lawrence and Mr Morgan had reasonable grounds for choosing to accept the allegations, which led to the dismissal, as substantiated.

68. We think the company's position on this can be summarised in this way. All three officers involved had before them these matters to consider. The contents of "Scabbin'Crew News" were potential harassment under EG102. Mr Cook posted a link to it on a forum, which he should reasonably have foreseen could lead to its dissemination to one or more groups of people who might see it as harassment. Although not of Mr Cook's doing, a link did appear on PPRuNe. Whilst one pilot saw "Scabbin'Crew News" as inoffensive, another saw it as "pathetic" and "puerile" and a third, "Peterborough", as harassment. lt could be argued that "Peterborough" was not clear that he felt personally harassed until encouraged to do so by Mr Van Der Donckt but, nonetheless, that was the view "Peterborough" then expressed. We think Mr Morgan certainly saw the potential inconsistencies in "Peterborough's" evidence and Ms Lawrence might have done so as well. Whilst, with the benefit of (presumably) the whole picture and all the documentation gathered in one place, we have found that, on a balance of probabilities, "Peterborough" was coached, we do not think that any of the three managers could reasonably be expected to have come to that view in their respective circumstances. In our view the conclusions reached by the three managers on the evidence they had were within the band of reasonable responses. We are satisfied that it was within the range of reasonable responses open to the company's managers to reach the conclusions that they did on the evidence they had both at the disciplinary hearing and the appeal hearings.

69. We must next consider whether or not the company's officers, at the stage at which they formed that belief on those grounds, had carried out as much investigation as was reasonable in the circumstances. This is an objective test and it is not for us to substitute our view of what a reasonable investigation is. However, within this comes the question of the way the dismissal was handled procedurally.

70. The officers concerned with the investigatory process carried out a reasonable job, on the whole. There are few investigatory processes above criticism with hindsight. In this case Mr Van Der Donckt can be criticised for leading "Peterborough". Ms Lawrence probably should have allowed Mr Cook to put his questions to the various people concerned without interfering, although Mr Morgan covered that on appeal. All of them, to varying degrees, should, perhaps, have wondered more about the inconsistencies in "Peterborough's" evidence. However, we cannot say any of these criticisms, singly or cumulatively, put the investigatory process outside the category of a "reasonable investigation."

71. The investigatory process, however, was predicated on the basis that EG901 was the procedurally fair road to go down. In our judgment it was not. We bear in mind here the guidance offered in the "ACAS Guide: Discipline and Grievances at Work (2009)": "Clear rules benefit employees and set standards of conduct. They also help employers to act fairly and consistently." In Mr Cook's position in the Spring of 2010 he was entitled to expect that any allegation of harassment would be handled under EG102. Although that was not a contractual policy, there was nothing to suggest it would not be followed. We have severe reservations about how "Peterborough" came to make his complaint, which we have explained above. Leaving those aside, what the company says happened is that "Peterborough" approached Mr Maunder to consult him about what he should do. Mr Maunder made a decision that "given the serious and fundamental contractual breaches" EG102 was not appropriate and the matter should be handled under EG901. We do not know what Mr Maunder meant when he referred to "serious and fundamental contractual breaches", but the most charitable view we can take of this is that he was referring to how "Peterborough" saw "Scabbin'Crew News" rather than how Mr Maunder saw it. Mr Maunder says that EG901 was routinely used where the incident was serious or unsuitable for informal resolution. That is not what EG102 says nor what the extract from the "Managing Harassment and Bullying Toolkit" indicates will happen. Mr Maunder would, presumably, rely on the extract from the "Toolkit" that reads "The informal approach to resolving conflict should always be the first option unless the situation is very serious and an informal approach is not suitable, such as the use of violence". There was no violence involved although obviously the wider situation was very serious. If that allowed Mr Maunder a discretion to depart from the norm, there should still have been a formal grievance process under EG903. In our view the company found EG102 an inconvenience in the circumstances. The company had determined to put all the industrial dispute related cases of alleged harassment and bullying through a process that dispensed with EG102. lt did not, however, dispense with EG102 disciplinary offences. The process was co-ordinated by the "Leiden Unit" and EG102 processes did not serve the company's purpose. The company circumvented the procedures Mr Cook was entitled to expect given the content of EG102, EG903 and EG901. In our judgment it was not within the range of reasonable responses for the company's management to do this. For this reason we find the dismissal to have been procedurally unfair.

72. We turn to the issue of whether or not dismissal was within the reasonable range of responses which a reasonable employer might adopt in the circumstances. There is a question of consistency of treatment going to the consideration of equity and the substantial merits of the case. lt must be measured at the corporate level as a whole rather than just from the perspectives of Mr Van Der Donckt, Ms Lawrence and Mr Morgan. Case law makes it crystal clear to Tribunals that it is only in very limited circumstances that disparity arguments will succeed. One of those is where decisions made by an employer in truly parallel circumstances indicate that it was not reasonable for the employer to dismiss. In considering this issue, we find the facts in the Paul case very instructive. Although there were several disciplinary decisions put forward in that case as examples of inconsistency, that of Mr Verling is particularly clearly described. lt is abundantly clear from the judgment that Mr Verling's case had a number of very obviously different factors to that of Mr Paul and that the industrial tribunal that had heard the case at first instance had been selective in the factors it considered. We will consider all the factors we have before us. When we compare the case of Mr Suckling with that of Mr Cook we are very deeply uneasy about the lack of consistency. We do not pretend that we have the full facts of Mr Suckling's case. We are also aware that there may be many cases that could be brought into the picture. However, in our view, to adopt that as a reason not to address what, on the face of it, is a glaring disparity in treatment, would be to allow the company to hide behind a fig leaf. There are some contextual issues we bear in mind in the circumstances of this case. First, there are the reassurances given to pilots mentioned in paragraph 28 above. Second, we note that, in Mr Cook's case the approach by "Peterborough" to Mr Maunder resulted in "Peterborough" being recommended to approach the Asset Protection Group which organisation subsequently interviewed him. Mr Holley was not advised, on receipt of his written complaint, to contact Asset Protection Group. Turning to Mr Suckling's case, it will be remembered that he received an informal verbal warning. Mr Cook, of course, was summarily dismissed. There are some differences between the two cases. Mr Suckling made a single, albeit very offensive post, direct on a public website. Mr Cook made available a single post containing multiple offensive remarks on a members' website which, as the company and we have found, he should have known could leak. Beyond that, however, there seem to be considerable similarities. Both instances occurred at a time of heightened industrial tension. Complaints were lodged about both. They were both co-ordinated through the "Leiden Room", which presumably meant they both by-passed EG102 and moved straight to EG901. The outcomes in both cases, we are told, were benchmarked against the "Leiden Matrix" and EG901. We have analysed Mr Suckling's case in the context of the "Leiden Matrix'' in paragraph 44 above. We bear in mind the direction that we should not adopt a "tariff" approach. Notwithstanding, the outcomes were not just different, but radically different. In our judgment there is sufficient similarity for us to conclude that the decision to dismiss Mr Cook but not to dismiss Mr Suckling was so irrational that no employer could reasonably have made it. Dismissal was outside the range of reasonable responses available to management. For that reason, also, we would find the dismissal to be unfair.

73. If we had found that the dismissal was simply procedurally unfair and not also unfair because of the sanction imposed we would be required to consider whether Mr Cook would have been dismissed in any event had a fair procedure been adopted. Whilst this is not, strictly speaking, necessary, we have considered this as we feel it throws further light on both the procedural defect we have identified and on the case generally. This is not an all or nothing exercise. lt is open to us to express the outcome in terms of a percentage chance. Each case turns on its particular facts. There may well be cases where employees were disciplined under EG901, by-passing EG102, where the outcome would clearly be the same. In this case our conclusions are these. First of all, because of the doubts we have expressed concerning "Peterborough's" evidence we do wonder whether or not there was ever a genuine complaint. A formal grievance would have tested this. We do not, however, give that factor any weight because of the lack of hard evidence. For our purposes we assume that there was a genuine complaint that would have remained anonymous. Whether at an informal stage or in the context of a formal grievance under EG903, Mr Cook would certainly have offered an apology for any personal offence he had caused, just as he did to Mr Shepard. Mr Cook put this forward to both Ms Lawrence and Mr Morgan but they appear to have either ignored it or chosen to reject it because Mr Cook was unrepentant about the "politics" behind "Scabbin'Crew News". Certainly the offer was never transmitted to "Peterborough". We think that is telling. If "Peterborough" had been offered an apology and had focussed on the harassment itself, rather than some improper motive such as wanting to see all strikers dismissed, it seems to us that the apology might have settled matters. In reaching this conclusion we bear in mind that this was an environment in which satire was commonplace. lt is, we think, instructive that no more was heard from Mr Shephard after Mr Cook's apology. We also take account of the fact that, from 28 April 2010, Mr Cook password protected "Scabbin'Crew News" with a view to ensuring none of the groups of people who might be offended could access it. There is a good chance, therefore, that there would have been no more complaints. However, as this is not a point that we must decide we put no percentage on these chances.

74. We turn to the issue of contribution and whether or not it is just and equitable to make a compensatory award. We presage our conclusion with the caveat that we understand that Mr Cook wishes us to consider a reinstatement or re-engagement order. What we say will have some relevance to that but will only have financial relevance if Mr Cook subsequently seeks financial compensation. We will address the just and equitable question under section 123(1) of the ERA first. We cannot see any basis to make no award at all. As far as contribution under sections 122(2) and Section 123(6) is concerned our finding is this. The wording of each is different. However, in this case the effect is the same because the only conduct that can be in play is Mr Cook's behaviour surrounding the production of "Scabbin'Crew News". That conduct was culpable and blameworthy. lt was conduct that amounted to harassment under EG102, subject to there being a suitable victim. The conduct contributed to the dismissal to a substantial degree. In our view it would be just and equitable to reduce the amounts of both any basic award and any compensatory award by 50%.









Employment Judge Matthews

RESERVED JUDGMENT & REASONS SENT TO THE PARTIES ON
...............................

FOR THE SECRETARY OF EMPLOYMENT TRIBUNALS

Events Calendar
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Events Listing - August 2014

France Telecom faces staff suicides probe By Hugh Carnegy in Paris
07/07/2012 11:50:05

“Like my predecessor and my successor, I am conscious that the disruption the company has experienced could provoke shock and unease,” he wrote in an article in Le Monde this week. “But I forcefully reject that plans that were essential to the survival of the company could have been the cause of the human tragedies cited by the complainants.” His lawyer has complained that he is being accused of bullying individuals he never met. Read the full article by going to http://www.ft.com/cms/s/0/5bc72bd2-c77a-11e1-a850-00144feab49a.html#axzz1zvppUfD7

LITTLE GIRL ON A PLANE
01/06/2009

A stranger was seated next to a little girl on the airplane when the stranger turned to her and said, 'Let's talk. I've heard that flights go quicker if you strike up a conversation with your fellow passenger.'