in person For the v Respondent — 2021

The tribunal heard the matter remotely at a preliminary hearing. The claimant, who appeared in person, had been employed by the Home Office as an Executive Officer in a highly sensitive role. He was arrested on 24 August 2018, later pleaded guilty to blackmail and to disclosing private sexual photographs and films with intent to cause harm, and was sentenced on 17 June 2019 to suspended custodial terms, community service, a 5-year restraining order, and an order to pay the victim £140. The respondent carried out a disciplinary investigation and hearing and dismissed him for gross misconduct with effect from 10 September 2019; the appeal was unsuccessful.

On the unfair dismissal claim, the tribunal held that the dismissal was plainly fair. It said there was no dispute about the misconduct as evidenced by the criminal conviction, and that even applying the Burchell approach the respondent had a genuine and reasonable belief that the claimant was guilty after reasonable investigation. The claimant had not complained in his ET1 that the investigation was inadequate. The tribunal concluded that dismissal for a serious criminal offence, in the context of a sensitive role involving offenders, was within the band of reasonable responses under section 98(4) ERA 1996, and that the unfair dismissal claim had no reasonable prospect of success.

On the discrimination claim, the claimant had initially referred to race, sexual orientation and age, but confirmed that the claim was confined to sexual orientation. The tribunal found no basis for direct sexual orientation discrimination: it said there was no comparator evidence and no primary facts from which it could properly conclude that the dismissal was because of sexual orientation. The claimant's assertion that his disciplinary manager had been overheard making homophobic comments was unsupported, and the tribunal noted that this was inconsistent with his statement on appeal that he was content for her to conduct the hearing. It accepted the respondent's explanation that the dismissal followed the claimant's guilty pleas to serious criminal offences, and found that the discrimination claim had no reasonable prospect of success.

The tribunal considered strike out under Rule 37(1)(a) and also considered whether a deposit order would be more appropriate. It concluded that both the unfair dismissal claim and the sexual orientation discrimination claim were incurably deficient, so strike out was proportionate and no amendment could cure the defects. No tribunal award was made.