in person For the v Respondent — 2021

The claimant, Mr P Sellers, was dismissed by the British Council on 7 May 2019 after an allegation by ZZ arising from a private party on 16 December 2018. The respondent said it dismissed for conduct, namely a belief that he had deliberately placed both hands on ZZ's breasts and rubbed down in a sexual manner. The tribunal accepted that Ms Ewart-Biggs honestly believed the allegation and that conduct was the principal reason for dismissal, so the case was treated as a conduct dismissal under section 98 of the Employment Rights Act 1996.

The tribunal found, however, that the investigation was not reasonable. It held that the respondent took too narrow a view of the allegation, focusing on the moment of alleged touching while failing to investigate surrounding circumstances that were plainly relevant to reliability and corroboration. In particular, the tribunal criticised the failure to obtain contemporaneous documents, including any text messages or complaint material generated after the party, and the failure to explore the sequence of events and the location of the alleged incident with enough precision.

The tribunal also found that the respondent made an unreasonable assumption that witnesses would not have seen anything, which meant potentially relevant witnesses were not identified or interviewed. It noted that the complaint account changed on important points, including who escorted ZZ to the door, while the claimant's account was consistent. The disciplinary and appeal processes did not cure those defects, and the later appeal evidence, including evidence from six witnesses and the later letter from Ms Marziota and Mr Gerace, did not lead the respondent to revisit the decision in a fair way. The tribunal therefore held the dismissal unfair and directed that remedy, including any Polkey deduction and contributory fault, would be dealt with at a later hearing.