Mr C Sieberer v Apple Retail UK Ltd — 2024

Mr Sieberer brought an ordinary unfair dismissal claim after Apple Retail UK Limited dismissed him for conduct arising from taking and sharing two photographs of a female colleague without her consent. The tribunal found that the principal reason for dismissal was conduct, namely that the dismissing officer thought the claimant had committed sexual harassment by taking and sharing the photographs because they were of a female colleague and because Apple's harassment policy referred to pictures. Conduct was a potentially fair reason under section 98 of the Employment Rights Act 1996.

The tribunal accepted that the claimant took and shared the two photographs, but found there were no reasonable grounds for concluding that he had committed sexual harassment or harassment, either under the Equality Act 2010 or under a more general concept. The tribunal found that the photographs were not sexual, that the claimant had not commented on the colleague when sharing them, that the colleague photographed appeared likely to have been unaware of the events, and that the evidence did not show that the claimant took the photographs in order to discuss her appearance. The tribunal considered that the dismissing officer had treated the taking of photographs of a woman without consent as enough to amount to harassment and may have conflated the claimant's conduct with that of another employee.

The tribunal found no issue with the factual investigation, because the relevant facts were largely known, but found that the respondent did not meaningfully consider mitigation. There was no indication that the dismissing officer considered the claimant's previous good record or the impact of dismissal, and the tribunal referred to Brito-Babapulle in finding that mitigation had to be considered rather than moving directly from gross misconduct to dismissal. The appeal did not cure the substantive problem because the appeal officer also relied on a confused analysis of harassment and witness evidence.

The tribunal concluded that dismissal was outside the range of reasonable responses. It found that the conduct was blameworthy and contributed to the dismissal, but was not harassment, was not serious misconduct, and did not justify dismissal on the facts found. The claim succeeded, and remedy was reserved for a future hearing. The tribunal determined at this stage that a 10% contributory fault reduction should apply to both the basic award and the compensatory award.