Claimant v Leicester City Council — 2021

The Tribunal found that the Respondent proved conduct as the reason for dismissal and held an honest and genuine belief in the Claimant's misconduct based on reasonable grounds. It found that most of the conduct alleged was admitted and that the conduct included unwanted physical contact, personal messages, comments to colleagues, a WhatsApp message to S after a management instruction not to contact her, and other conduct which the Respondent was entitled to treat as sexual harassment and misconduct.

The dismissal was nevertheless procedurally unfair. The Tribunal identified procedural defects including the investigator's involvement as a material witness, flaws in the investigation, insufficient detail in the investigation invitation, non-disclosure of notes during the investigation meeting, the disciplinary hearing process adopted by Mr Craig, inadequate opportunity for the Claimant to question S and present his case, delay in the appeal, and the appeal panel's failure to consider all relevant matters. Applying Polkey, the Tribunal found that the Claimant would still have been fairly dismissed for gross misconduct if the procedural defects had been removed, so there was no compensatory award. It reduced the basic award by 75% for contributory conduct.

The disability discrimination complaints failed because the Respondent did not know and could not reasonably have been expected to know of the Claimant's ADHD at the material time. The Tribunal also found that the unfavourable treatment was because of the Claimant's sexual harassment and disregard of management instructions, not because of something arising from disability, and that dismissal would in any event have been a proportionate means of achieving a legitimate aim. The reasonable adjustments complaint failed because the pleaded PCP was not established.

The direct sex discrimination complaint was dismissed. Some allegations were out of time, S was not an appropriate comparator because her circumstances were materially different, and the Tribunal found no facts from which it could infer that any alleged treatment was because the Claimant was a man. The wrongful dismissal complaint was also dismissed because the Claimant's conduct amounted to a repudiatory breach of the implied term of trust and confidence. The Tribunal refused reinstatement or re-engagement because it found that loss of confidence in the employment relationship had a reasonable basis and that a return to work was not practicable.