Mr Zhiqian Huang v China Unicom (Europe) Operations Limited — 2020

The tribunal held that Mr Huang was unfairly dismissed by China Unicom (Europe) Operations Ltd. The respondent said it dismissed him for gross misconduct, alleging sexual harassment of a female colleague by WeChat messages. The tribunal recorded that the real issue was whether that reason was made out and, if so, whether the dismissal was fair under section 98(4) ERA 1996, applying the Burchell approach to belief, reasonable grounds and reasonable investigation.

On the facts, the tribunal found the suspension decision was not taken solely because of the alleged harassment. It held that Ms Zhou suspended Mr Huang after A had already been dismissed and after A had indicated she intended to bring claims against the respondent, and that the suspension was also driven by concern about unflattering comments Mr Huang had sent about colleagues and management. The tribunal found the suspension unfair because there was no one to protect by separating him from work and because suspension was not a neutral act in the circumstances.

The tribunal also found the investigation and disciplinary process flawed. The investigator made findings of fact that the messages were unwanted and that A had been harassed and intimidated, rather than leaving those issues for the disciplinary decision-maker. The dismissal letter then relied on the investigator’s findings, and the appeal did not cure those defects. The tribunal further found that the messages were largely exchanged between friends, mostly before Mr Huang became A’s line manager, that A never told him the messages were unwelcome, and that A herself sent a similar volume of messages. On that basis, the tribunal rejected contributory fault and declined any Polkey reduction or ACAS uplift.

Remedy was assessed on the basis of one year’s loss. The tribunal accepted Mr Huang’s mitigation evidence, including job searches through agencies and online platforms, and found that his loss should be calculated by reference to annual pay of £50,983 with additional accepted items. It awarded a basic award of £1,016 and a compensatory award of £42,394.96, leading to a total of £52,351.60 after grossing up.