Claimant v Northern Care Alliance NHS Foundation Trust — 2022

The tribunal held that the claimant was unfairly dismissed. Although the dismissing officer and appeal officer genuinely believed the claimant had attempted to film a colleague in the ladies’ toilet, that belief was not based on reasonable grounds. The investigation gathered relevant material, but the tribunal found that the investigation report was not impartial in its evaluation of the evidence, gave insufficient weight to matters supporting the claimant’s account, and included speculative or irrelevant points. Those defects were not cured on appeal.

The tribunal found the disciplinary and appeal process unfair because the respondent effectively put the onus on the claimant to prove his innocence, failed properly to address evidence that supported his explanation, and relied on some material that was either not put to him or not adequately tested. The tribunal nevertheless concluded that, had a fair procedure been followed, there remained a 25% chance that the respondent would still have fairly dismissed the claimant on the same date, applying Polkey.

On wrongful dismissal, the tribunal made its own findings of fact and preferred the claimant’s explanation of the toilet incident. It found the claimant had used the ladies’ toilet because the men’s toilets were soiled, had dropped his phone while dressing, and had not attempted to film or photograph complainant A. The claimant’s use of the ladies’ toilet without checking first was found to be foolish and blameworthy, so any unfair dismissal basic and compensatory award would be reduced by 25% for contributory fault. The tribunal rejected any ACAS uplift.