Mr K Duffy v East Riding of Yorkshire Council — 2023

Mr Duffy, a site coordinator at Parkside primary school since 2008, was suspended in April 2021 after four female members of staff complained of sexual harassment. The respondent first investigated through the head teacher and then, after the claimant objected, appointed an independent investigating officer, MK. A disciplinary panel heard seven allegations in July 2021, found the first six proved, and dismissed him summarily for conduct. An appeal rehearing in October 2021 was unsuccessful.

Applying s.98(4) ERA 1996 and the Burchell line of cases, the tribunal accepted that the respondent genuinely and reasonably believed the claimant had made the key comment to SC about her "designer vagina". The tribunal found that comment was a sexual reference, that SC was upset by it, and that the respondent was entitled to conclude it violated her dignity and created a hostile or degrading environment. It held that the claimant's lack of intent to harass did not prevent the conduct amounting to sexual harassment for disciplinary purposes.

The tribunal rejected the claimant's arguments about collusion, school culture, and inadequate investigation. It held that MK's investigation, including the stratified staff interviews about the alleged banter culture, was reasonable, that there was no material need to re-interview SC, and that the disciplinary and appeal procedures were fair overall. It also treated the admitted parts of allegations 1, 3, 4 and 5 as capable of amounting to sexual harassment, and said allegation 6 alone would not have justified dismissal.

On sanction, the tribunal held that the deliberate making of the offensive comment was a wilful act capable of amounting to gross misconduct, so summary dismissal was within the band of reasonable responses. The unfair dismissal claim was dismissed. After judgment, the tribunal allowed the respondent's costs application and ordered Mr Duffy to pay £10,000, finding that the claim had no reasonable prospect of success.