N A Fitzsimmons v Marriot Hotels Ltd — 2023

The claimant, a Kitchen Porter employed from 15 September 2000 until his dismissal on 6 April 2023, brought a single claim for unfair dismissal. The respondent said the dismissal followed allegations that he made inappropriate sexual comments to female colleagues and that the conduct amounted to gross misconduct under its harassment policy. The tribunal recorded that the claimant had signed the 2023 Associate Handbook and had completed harassment prevention training in 2020 and 2022.

The tribunal accepted that there had been an earlier January 2023 complaint about an inappropriate comment to a female colleague, after which the claimant was spoken to and given a letter warning that further similar conduct could lead to disciplinary action. It then found that the respondent reasonably relied on the March 2023 complaint, the witness evidence from A1, A2 and A3, and the claimant's own admissions that he had used comments such as "you look sexy" and "you look sexy girls". The tribunal found that the respondent was entitled to conclude that the conduct complained of amounted to sexual harassment and that there was a pattern of inappropriate behaviour towards younger female staff.

Applying section 98 ERA 1996, the Burchell test and the band of reasonable responses approach from Iceland Frozen Foods, the tribunal held that the respondent had a potentially fair reason for dismissal, namely conduct. It found the investigation reasonable because the complainant and witnesses were interviewed promptly, the claimant was given the opportunity to respond, relevant materials were disclosed before the disciplinary hearing, and he had a right of appeal which he exercised. The tribunal rejected the claimant's criticisms about the absence of a statement from VS and about alleged bias or hearsay.

The tribunal also found the disciplinary and appeal process procedurally fair. It held that the respondent was entitled to characterise the conduct as gross misconduct and to decide that summary dismissal was appropriate, particularly in light of the earlier warning in January 2023 and the claimant's admissions. The claimant's dismissal was therefore found to be fair and his unfair dismissal complaint was dismissed.