In Person For the v Respondent — 2019

The claimant, an Environmental Health Team Manager employed since 1986, was dismissed on 15 May 2018 for gross misconduct after an investigation into a collective grievance alleging bullying and harassment and a separate complaint of sexual harassment. The tribunal found that the respondent had a potentially fair reason for dismissal based on conduct, and that the investigation and disciplinary process were generally reasonable, although not perfect. It accepted that there were some procedural criticisms, including the resurrection of matters that had been dealt with in the 2015 grievance, but held that those points did not make the dismissal unfair overall.

Applying s.98 ERA 1996 and Burchell, the tribunal found that Mr Baines had a genuine belief in misconduct and that, on the evidence before him and at appeal, some serious allegations were proven. These included undermining team members through micromanagement, making derogatory and personal remarks about female staff, unwanted and unwelcome sexual attention, and the White Swan Hotel incident involving Ms Tolson. Other allegations were rejected or found not to justify dismissal, and the appeal panel reduced one allegation from gross misconduct to misconduct with a final written warning. Even so, the tribunal held that dismissal remained within the band of reasonable responses for a reasonable employer.

The tribunal also dealt with several procedural complaints. It found the suspension was permissible, the allegations were sufficiently particularised, the terms of reference were broadly consistent with the collective grievance, the chosen representation restrictions were lawful under the policy, and the appeal delay, though close to excessive, did not make the dismissal unfair. If the dismissal had been unfair, the tribunal said it would have applied a 100% reduction for contributory conduct because the claimant's proven behaviour directly caused the dismissal. The Polkey issue did not need to be decided because the dismissal was found fair.

The breach of contract claim failed. The claimant argued that accrued but untaken TOIL should be paid on termination, but the tribunal found that the respondent's TOIL policy contained an express contractual term that outstanding TOIL would not be paid and would be lost if not taken before leaving. It also found no notorious custom and practice capable of overriding that written term.