Mrs J Hatton (Wife) For the v Respondent — 2022

The claimant was a Band 4 Caterer at HMP Huntercombe. The case arose from complaints by Ms X about his conduct, including repeated inappropriate comments and blocking behaviour, and then the incident on 17 May 2019 when the claimant admitted pinching her bottom but denied touching her vagina. The tribunal accepted that Ms X's account of the matter developed over a few days because earlier complaints had not resolved the problem, and it rejected the submission that this damaged her credibility.

On the unfair dismissal claim, the tribunal held that the respondent dismissed for conduct and that the investigation was reasonable. It relied on witness evidence, the claimant's admission, and the wider evidence of his behaviour towards Ms X. The tribunal rejected the claimant's double jeopardy argument because the earlier management discussions were not disciplinary sanctions, and it rejected the inconsistency argument because no proper comparator case was shown. It also found the appeal delay was explained by the occupational health process, Covid-19 disruption, and practical issues rather than any deliberate attempt to prolong matters. Applying s.98(4) ERA 1996 and the Burchell approach, the tribunal concluded that dismissal for gross misconduct was within the band of reasonable responses.

On the disability discrimination claim, the tribunal accepted the identified 'something arising from disability' as the claimant's difficulty with understanding the world around him, personal boundaries, subtleties and empathy. However, it held that the alleged unfavourable treatment other than dismissal was not made out: the respondent had supported the claimant, took account of Asperger's, investigated the allegations properly, followed its procedures, and did not deliberately protract the appeal. The tribunal then found that the dismissal was not because of something arising in consequence of disability, because the claimant was acting on repeated instructions not to behave that way rather than failing to perceive social cues, and the evidence did not show that his disability materially caused the conduct. It further held that, even if causation had been established, dismissal was a proportionate means of achieving the legitimate aims of protecting staff and maintaining proper standards. All claims were dismissed.