Mr R Holden v Lancashire Fire & Rescue Service — 2021

The claimant, Mr Richard Holden, was dismissed by Lancashire Fire and Rescue Service after an investigation into three incidents at and after a residential apprentice course at Brathay Hall in September 2020 involving the sexual term "pegging". The tribunal found that the respondent believed he had participated in inappropriate conversations on 15 and 16 September 2020 and had then used the related term "peggers" as a team name on 18 September 2020. The tribunal accepted the respondent's evidence that the claimant knew by the Tuesday evening what the term meant and that later attempts to suggest he only understood it on the Friday affected his credibility.

The tribunal held that the respondent had reasonable grounds for its belief, carried out a reasonable investigation, and acted in accordance with a fair procedure. It relied on the evidence of the investigating officer, Emma Price, the disciplinary manager, Steve Morgan, and the appeal manager, Ben Norman, and found that the investigation included witness interviews, written notes, reports, and separate disciplinary hearings for the claimant, Recruit 1 and Recruit 2. Applying section 98 of the Employment Rights Act 1996 and the Burchell approach in conduct dismissals, the tribunal concluded that gross misconduct was a conclusion open to a reasonable employer in the circumstances.

The tribunal rejected the claimant's argument that the gross misconduct decision was perverse and rejected his case that summary dismissal was a harsh or disproportionate sanction. It found that his length of service and previous record were taken into account, but that there were no mitigating circumstances sufficient to require a lesser sanction. The tribunal also rejected the disparity argument, finding that the different treatment of Recruit 1 and Recruit 2 was explained by differences in culpability, honesty, remorse, and cooperation with the investigation and hearing. The claim for unfair dismissal was therefore dismissed.