Mr D Lemer, of Counsel For the v Respondent — 2020

The Claimant, Mr O Adenusi, was dismissed by London Underground Limited for gross misconduct arising from allegations by C1 that he had made inappropriate sexual comments during a return to work interview on 16 April 2017 and in the period afterwards. The tribunal found that the Respondent’s reason for dismissal was gross misconduct, namely alleged inappropriate comments amounting to sexual harassment of C1 between 16 April 2017 and 10 August 2017.

Applying the Burchell approach and section 98(4) ERA 1996, the tribunal accepted that the Respondent genuinely believed the Claimant was guilty and that the belief was held on reasonable grounds based on the investigation as it stood. However, it held that the investigation itself was not reasonable. The tribunal found a tendency to accept C1’s account without sufficient challenge and identified missed lines of enquiry and untested inconsistencies, including the length of the return to work interview, when C1 reported the matter to W4, W5’s evidence, C1’s possible motive, the timing of her complaint, and the ongoing working relationship between C1 and the Claimant.

The tribunal also found the process was unsatisfactory because of delay, including the period between the final fact-finding interview and referral to the disciplinary interview, and the overall length of time from complaint to dismissal. It held that the appeal stage and the handling of W10’s historic allegations were unsatisfactory in parts, but those issues did not independently make the dismissal unfair. The tribunal concluded that, if a reasonable investigation had been carried out, dismissal would still probably have followed, but there was a chance the Claimant would have been given the benefit of the doubt, so a 75% Polkey reduction was appropriate to any compensatory award.

No deduction for contributory conduct was made. The tribunal awarded a basic award of £14,478 and directed that, if remedy could not be agreed, a separate remedies hearing should be listed for reinstatement, mitigation and loss. No compensatory award was assessed at this stage.