Mr M Hartley v D Hollowell & Sons Limited — 2021

Mr Hartley was appointed by D Hollowell & Sons Ltd in 2017 and later promoted to Client Liaison and HR Manager. After grievances from RT and RA in December 2019, he was suspended and investigated for alleged sexual harassment. The tribunal found procedural flaws in the process: JBR was not properly taken through her allegations, the investigation gathered general views about the claimant rather than only evidence directed to the complaints, the alleged collusion between complainants was not explored in the investigation stage, and the appeal was heard by Mr Leeson despite his family and personal links to the respondent and his wife’s evidence against the claimant.

On the substance, the tribunal held that the respondent had sufficient evidence to uphold the two allegations made by RA. It found that, even on the claimant’s own account, the comments involved plainly sexual innuendo of an offensive kind, and that the moses basket and skirt-related comments were inappropriate in the circumstances. By contrast, it found insufficient evidence to uphold the JBR allegations because she was not properly taken through her evidence and the claimant’s points were not adequately explored. The tribunal therefore treated the JBR matters as unsafe for dismissal purposes, but not the RA allegations.

Applying section 98(4) ERA 1996, the Burchell approach, and the band of reasonable responses test, the tribunal held that dismissal for the RA matters was within the range of reasonable responses. It found the overall dismissal procedurally unfair because of the defects identified, but said those defects would have made no difference to the outcome, so Polkey meant no compensation was payable. The tribunal also said that contributory conduct would have been 100% if needed. On the sex discrimination claim, it rejected the argument that Mr Hartley was treated less favourably because he was male and found that a female comparator in materially similar circumstances would also have been dismissed for equivalent conduct.