Mr P Smith, counsel For the v Respondent — 2017

The tribunal found that the respondent dismissed the claimant after a disciplinary process based on allegations arising from a 12 December 2014 social event, later framed as inappropriate sexual touching and reputational damage following a criminal conviction. It accepted that the central dismissal reason was the belief that the claimant had sexually touched WS by cupping or squeezing her breast, but it found that the dismissal letter and the investigation record did not set out that allegation with adequate clarity.

On unfair dismissal, the tribunal held that the first and second investigations were not reasonable in all the circumstances. It found that the first investigation had been left vague and had nevertheless produced material background evidence, including contemporaneous material suggesting WS initially described elbow contact and possibly accidental touching. It held that the later investigation was selective, that the claimant was not interviewed, that WS was not re-interviewed, and that the disciplinary panel relied mainly on the conviction rather than engaging properly with the inconsistent underlying material.

The tribunal also found that the disciplinary hearing and appeal process were procedurally unfair. It held that LK did not take proper account of the claimant's 4 December 2017 email, which set out detailed objections to the process, and that the appeal chair HH did not read all of the relevant documents. The tribunal found it was unreasonable to proceed with the appeal on 31 January 2018, just before the Crown Court appeal on the conviction, and held that a reasonable employer would have adjourned until after that appeal because the criminal outcome could materially affect the decision.

On wrongful dismissal, the tribunal found that the claimant had not committed gross misconduct. It accepted the claimant's evidence that any contact with WS's breast was inadvertent and caused by his elbow, and it found that the respondent had not proved a fundamental breach of contract. The claimant was therefore entitled to his notice period.

On the Equality Act claims, the tribunal accepted that the claimant was disabled by reason of stress and anxiety, depression and PTSD. It held that one alleged reasonable adjustment complaint about access to documents was not finally determined because it considered the claim out of time, but it found that the failure to postpone the appeal hearing until after the criminal appeal was a breach of the duty to make reasonable adjustments. It rejected the harassment claim, finding that the 3 August 2017 comment about the claimant's mental health was a single insensitive remark rather than harassment. It upheld victimisation only in relation to the refusal to adjourn and the decision to uphold dismissal on appeal; it rejected victimisation so far as it related to the original dismissal itself. No monetary award is recorded in this judgment.