Ms N Mallick (counsel) For the v Respondent — 2023

Mr Shing was dismissed summarily by University of the Arts London on 1 December 2020 after an investigation into his relationship with a student, EA. The tribunal found that the sexual harassment allegation was not made out, but that his conduct breached professional boundaries: he remained acting in a tutor/student context for much of the relationship, and when personal feelings developed he did not manage the situation or follow university guidance. The tribunal accepted that the claimant had been told in August 2018 that a Relationships Policy and Professional Boundaries Guidance were forthcoming, and treated that as relevant to whether he could reasonably say he was unaware of the standards expected.

The direct race discrimination claim failed. The tribunal accepted that Professor Crow was the material decision-maker, and considered the claimant’s comparison with G and H. It held that H’s case was materially different because of H’s brief conduct and strong contrition, while G’s case involved a different factual pattern and a less serious upheld allegation. The claimant’s conduct was treated as more serious because it involved repeated private interactions over a period of weeks, poems on Valentine’s Day, declarations of love, kissing, home visits, and a plane ticket, together with the ongoing tutor/student relationship. On that evidence, the tribunal found no facts from which race could be inferred as a material factor in the investigation, dismissal, or appeal.

The indirect race discrimination claim also failed. The tribunal identified the alleged PCP as the application of the Personal Relationships Policy and Professional Boundaries Guidance, or the requirement to understand and follow them, but found that the claimant had not shown a particular disadvantage affecting Chinese national origin staff. It held that the difficulties the claimant identified were not culturally specific but were the kind of judgment calls anyone might face in the area of staff-student relationships. In any event, the tribunal held that the policies were justified because the respondent had a legitimate need to give staff guidance about professional boundaries and the handling of personal relationships.

The unfair dismissal claim was dismissed. The tribunal found that the reason for dismissal was conduct, namely inappropriate professional behaviour amounting to gross misconduct, and that this was a potentially fair reason under ERA 1996. It held that the investigation and disciplinary process were within the range of reasonable responses, including the handling of mitigation, the appeal, and the treatment of the claimant’s length of service and prior history. The tribunal rejected the argument that an expired 2010 warning had been improperly relied on, finding that the 2018 meeting and follow-up letter were used only to assess the claimant’s knowledge and mitigation. No monetary remedy was awarded.