Mr D Whyley v Gypsumtools Ltd — 2023

The tribunal held that Mr D Whyley’s unfair dismissal claim succeeded. Gypsumtools Ltd accepted that it dismissed him, but contended that the reason was some other substantial reason, said to be a breakdown in working relationships and reputational damage arising from a video online in which Mr Whyley was accused of grooming an underage girl. The tribunal found that the real reason was different: it was the respondent’s view of Mr Whyley’s conduct in 2016, the failure to disclose that incident when the video resurfaced, and the decision-makers’ view that he was probably guilty of wrongdoing shown in the video.

The tribunal found that the alleged breakdown with colleagues was not established on reasonable grounds. It accepted that Mr Wilson had a strong reaction to the video, but found that Mr Joe Cooper had not said he was unwilling to work with Mr Whyley, that Jade Gibson was not shown to know about the video, and that the respondent did not carry out a proper investigation into the views of the wider team. The tribunal also found that the reputational risk case was not properly investigated or assessed: no meaningful steps were taken to check the actual risk, consider mitigation, or assess whether Mr Whyley’s role could be adjusted so that his customer-facing duties were reduced.

The tribunal was critical of the procedure. It found that the 11 January 2021 meeting effectively became a dismissal meeting without notice, without a right to be accompanied, and without any fair opportunity for Mr Whyley to answer a defined allegation or produce supporting evidence. It also found that Ms Horsley both investigated and decided the grievance about her own conduct, and that Mr Khan then upheld the dismissal without carrying out any meaningful fresh investigation. The tribunal concluded that both decision-makers had rushed to judgment, had formed a view of Mr Whyley’s guilt, and had not acted within the range of reasonable responses.

The tribunal made no reduction for contributory fault. It held that Mr Whyley was not under a contractual or legal obligation to disclose the 2016 incident, that he had not been prosecuted, and that the non-disclosure was not blameworthy for compensation purposes. It awarded a basic award of £1,067.31 and a compensatory award of £20,382.62, and explained that a 25% ACAS uplift was appropriate because the procedural breaches were serious and deliberate. The final reasons also state a total award of £21,449.93.