Claimant v Respondent — 2021

The tribunal found that the claimant worked for the respondent from 2003 until her dismissal on 14 June 2016 and that the case arose out of two connected strands: allegations about a sexual relationship with R and a separate patient confidentiality issue involving S. It held that the claimant's direct sex discrimination complaints failed. In particular, the tribunal rejected the comparisons with S and R, held that the 19 August 2015 meeting was not a verification meeting, and found non-sex-based explanations for the way the respondent handled the different matters. The discrimination claim was nevertheless in time because the acts formed a course of conduct culminating in the dismissal.

The tribunal upheld the harassment claim. It found that the claimant and R had started with contact that the claimant thought might offer support, but that the relationship became unwanted by late 2012 or early 2013. It accepted that R's conduct had the effect of violating the claimant's dignity and creating a hostile or humiliating environment, and that the relevant sexual conduct in work-related settings and on service-user holidays was in the course of employment for section 109 purposes. The respondent did not prove that it had taken all reasonable steps to prevent the conduct. The later allegation about threatening to reveal confidential information was not pursued as a separate harassment complaint.

On remedy for harassment, the tribunal awarded £20,000 for injury to feelings, placing the case in the top Vento band but at the lower end of that band because the respondent had acted quickly once the claimant complained. It ordered interest on the award, but did not calculate a numeric interest figure in the reasons. No pecuniary loss award was made on the Equality Act claim.

The tribunal held that the claimant was unfairly dismissed because the respondent's procedure was seriously flawed. It found that Y should not have proceeded with the hearing on 26 May 2016 in the face of strong medical evidence, should not have sat in judgment after deciding R's case, and wrongly refused the claimant entry and refused to accept the Unison statement when she arrived. It also found that X had not passed a material point about the AAAA employment issue to Y. However, the tribunal also found that, had a fair process been followed, the claimant would have been fairly dismissed by the end of February 2018 for working full-time for AAAA during paid suspension, with the basic award reduced by 50% for conduct and any compensatory award limited by mitigation, including earnings from AAAA.

The wrongful dismissal claim failed because the tribunal held that the AAAA work during suspension amounted to a repudiatory breach justifying summary dismissal. It rejected the claimant's argument that the respondent had affirmed that breach or that the service-user-home incident itself amounted to wrongful dismissal by the claimant. The tribunal therefore left the parties to agree the final quantum, and indicated that a remedy hearing could be listed if agreement was not reached.