Mr Harding (Counsel) v Respondent — 2022

Mr Frewer had worked for Google in the travel sector since 2007. The tribunal accepted that he was disabled by reason of depression and that management was aware to varying degrees of his mental health difficulties from 2017 onwards. It also accepted that he had for years raised concerns about Google’s travel strategy and reliance on large online travel agencies, but it found that these issues had been gaining acceptance within the business and did not explain the dismissal outcome.

The dismissal arose from a dinner in Milan on 24 September 2019, after which E1 and E2 complained about comments they said Mr Frewer had made, including remarks about underwear, a "naughtiest thing" conversation, blindfolding, an escort, and waiting for E1. Google investigated through Ms Wotherspoon, then held a disciplinary hearing before Mr Chatwin and an appeal before Mr Turner. The tribunal noted that the process was not perfect, but it accepted that E1 and E2’s accounts were consistent, that Mr Frewer accepted some aspects of the incident, and that it was reasonable not to require every attendee to give live evidence.

On ordinary unfair dismissal, the tribunal applied section 98 ERA 1996 and the Burchell approach. It found that Mr Chatwin genuinely believed the misconduct had occurred, that there were reasonable grounds for that belief, that the investigation was within the range of what a reasonable employer could do, and that dismissal was a reasonable sanction given the number and nature of the inappropriate comments addressed to more junior female colleagues. The tribunal also said that, even if procedural defects had been identified, there was no real prospect that a different process would have produced a different outcome.

The whistleblowing and disability discrimination claims failed on causation. The tribunal found that the respondents had discharged the burden of showing that the dismissal was because of Mr Chatwin’s belief that the comments had been made, and that the appeal was rejected because Mr Turner genuinely considered dismissal to be the correct outcome on the merits. It did not make detailed findings on every alleged protected disclosure, saying that the whistleblowing case was too wide-ranging and that the evidence available did not allow it realistically to determine the section 43B test in the abstract once causation had been answered against the claimant. For wrongful dismissal, the tribunal made its own findings that Mr Frewer had made the complained-of remarks and held that this was a serious enough breach of contract to justify summary dismissal without notice. It also said that, had unfair dismissal succeeded on procedure, contributory conduct would have been assessed at 100%.