IN PERSON FOR THE v Respondent — 2022

Gary Hutchinson had worked for the Respondent since March 2002 and was dismissed with effect from 28 April 2021 for gross misconduct. The Respondent accepted that he was disabled for Equality Act purposes by reason of depression, obsessive compulsive disorder and intermittent explosive disorder. The case arose from allegations made by SL, a resident in supported accommodation, after which the Claimant was suspended and an independent investigation was carried out. The tribunal found that the most serious allegations, including sexual conduct and supplying cannabis, were not corroborated, but it did find that the Claimant had taken SL to his girlfriend’s home, had contact with SL outside work after the allegations arose, exchanged messages and calls with her, and discussed the allegations with another vulnerable adult, LD. The tribunal also rejected the Claimant’s case that SL was not vulnerable or a service user and found that, on the evidence, she was a vulnerable adult known to the Claimant as such.

On the unfair dismissal claim, the tribunal applied section 98 ERA 1996 and the conduct-dismissal authorities it cited, including Burchell and the band of reasonable responses approach. It found that the Respondent genuinely believed the Claimant had committed misconduct, that belief was based on reasonable grounds, and the investigation was proper and adequate. The tribunal attached weight to the fact that, after suspension and while the complaint was being investigated, the Claimant contacted SL contrary to instruction and then sought to use LD to pass messages that the tribunal regarded as intimidating and threatening. It held that dismissal was a fair and proportionate sanction and that the appeal process did not reveal procedural unfairness. The issues concerning the disciplinary pack, Appendix 5 and the recording of the hearing did not alter that conclusion.

The wrongful dismissal claim failed because the tribunal held that the Claimant’s conduct amounted to a repudiatory breach of contract and a breach of mutual trust and confidence, so the Respondent was entitled to dismiss without notice. The disability harassment claim also failed. The tribunal found that six of the eight alleged acts did not occur as pleaded, and that the remaining matters, including the handling of Appendix 5 and the alleged data protection breach, were not related to the Claimant’s disability and were not shown to have had the purpose or effect required by section 26 EqA 2010. No monetary remedy was awarded because all claims were dismissed.