The Claimant was dismissed by reason of conduct, arising from an allegation of inappropriate sexual behaviour towards a colleague in an alleged incident at a bar. Claims of unfair and wrongful dismissal failed, by majority decision of the Employment Tribunal. Claims of sex and age discrimination were dismissed unanimously. Three grounds of appeal proceeded to a full hearing. Grounds 1 and 3 related to unfair dismissal and, as to Ground 3, wrongful dismissal; Ground 4 to one aspect of the discrimination claims.
Ground 1 turned on the fact that the complainant had withdrawn a complaint to the police, but the manager who took the decision to dismiss, who knew that the complaint had been made, was not told that it had been withdrawn. The Tribunal majority concluded that this did not affect the fairness of the dismissal, because she could in any event have fairly dismissed, had the police complaint never been made. Given that (a) the dismissing officer took into account that the police complaint had been made; and (b) her evidence was that, had she been told that the complaint had later been withdrawn, she would have wanted to know why, the Tribunal erred in its approach. Given that the investigating officer knew that the police complaint had been withdrawn, but did not pass this on to the disciplining officer, and the gravity of the allegations, the only proper conclusion was that this rendered the dismissal unfair. Royal Mail v Jhuti [2019] UKSC 55 considered. Whether, had she known of the withdrawal of the police complaint, the disciplinary officer would, or might, have still fairly dismissed fell to be considered by the Tribunal at the remedy stage.
Ground 3 was to the effect, principally, that, as both the Claimant and complainant had been too drunk to have a clear recollection of what had occurred, and no-one else at the bar had witnessed the alleged incident itself, the majority should have found that there was no proper basis to find the Claimant guilty of the alleged conduct. However, the Tribunal majority properly so found, taking into account its appraisal of photographic evidence, said to be of the complainant’s injuries, and the totality of the evidence presented in the disciplinary process. The findings in relation to wrongful dismissal were also properly reached. This ground therefore failed.
Ground 4 challenged the Tribunal’s decision in relation to allegations of sex and age discrimination relating to aspects of the conduct of the investigating officer. However, the premise of this ground was that the Tribunal erred in not considering these allegations on a more wide-ranging basis than the complaints identified in a list of issues agreed at a Preliminary Hearing. However, the Tribunal had been right to confine itself to the complaints identified in that list of issues. This ground therefore also failed.
Citations:
[2020] UKEAT 0165 – 19 – 13023
Links:
Jurisdiction:
England and Wales
Employment
Updated: 04 November 2022; Ref: scu.649251