Mr. I. K. Harling v Eastbourne Borough Council — 2017

The tribunal held that Mr Harling was dismissed for conduct, not for breakdown of trust and confidence, and that the conduct reason was potentially fair in law. However, it found that Eastbourne Borough Council did not satisfy the Burchell test and that the dismissal was unfair under s.98(4) ERA 1996 because the investigation and disciplinary process were materially flawed.

The tribunal accepted that Mr Harling had an acquired brain injury from a 2010 head injury and that he suffered from depression, mood swings, severe tiredness and short-term memory loss, with PTSD also appearing in the medical evidence. It found that these impairments had a substantial and long-term adverse effect on normal day-to-day activities, and that the Council knew or ought reasonably to have known of his disability from its own medical, occupational health and HR records, as well as the claimant's own evidence.

On the investigation, the tribunal found that Mr Whelan should not have acted as investigator because he had been involved in the January 2014 discussion said to be a management instruction. It also found that the claimant was not given key documents, including the original complaint material and the later email from Ms Howell, and that no meaningful investigation was made into Ms Howell's motives, the women said to be involved, or the factual disputes about whether the conduct was actually inappropriate. The tribunal also found that the respondent reopened matters that had already been dealt with informally in 2014 and that the Airbourne prize draw allegation was not properly investigated and was based on suspicion rather than evidence.

On the disciplinary hearing, the tribunal found that Ms Thompson did not make proper findings of fact, delegated key fact-finding to HR, did not engage with the claimant's written and oral submissions in a structured way, and did not properly consider the claimant's disability, mitigation, or any sanction short of dismissal. It also found that the respondent did not identify any clear objective standard in the Code of Conduct that prohibited relationships with service users, and that the claimant was never clearly warned that the conduct later relied upon would amount to gross misconduct.

For the discrimination claim, the tribunal held that the dismissal was unfavourable treatment because of something arising in consequence of disability, namely the claimant's mood-related behaviour and poor memory linked to his ABI and PTSD history. It found no evidence that dismissal was a proportionate means of achieving a legitimate aim, and it therefore upheld the s.15 Equality Act 2010 claim. No monetary award was fixed in this judgment because the case was listed for a later remedy hearing.