Mr Singh, counsel For the v Respondent — 2019

The claimant worked as a residential assistant at the respondent's approved premises. After his arrest on 7 August 2016 for an alleged sexual offence, he told his manager the next day that he had been arrested and was on police bail. He later had periods of sickness absence for stress. In August 2017, because of delay between arrest and charge, management became confused about whether there had been one alleged offence or two, and a suspension decision was taken after the claimant was charged. The tribunal accepted that the respondent's management had been confused, but found that the claimant had in fact been arrested once and later charged once.

On the unfair dismissal complaint, the tribunal considered three alleged breaches of trust and confidence: an attempt to confirm that the claimant had previously been charged with a sexual assault, the level of support during long-term sickness absence, and the decision to suspend him. It found that Mr Wisdom did not seek to confirm a previous charge but reasonably telephoned the claimant to clarify the number of alleged offences because confusion had arisen. It accepted that the claimant did not receive proper support from M during sickness absence, but found that this was not serious enough, on the facts of the case, to amount to a fundamental breach; it also noted that Mr Wisdom was providing support directly to the claimant. The tribunal found that the suspension had reasonable and proper cause because the claimant had been charged with a serious offence, the respondent needed to protect the public, there were reputational and conduct issues to investigate, and there were no alternative duties away from contact with offenders.

The tribunal therefore held that there had been no fundamental breach of contract and no constructive dismissal. It also noted that, if the support issue had been the only breach, the claimant's remaining on full pay on suspension for four months would have amounted to affirmation. The resignation letter of 31 January 2018 was treated as the best evidence of the claimant's reasons for leaving, and the tribunal rejected the later suggestion that the August 2017 phone call was the sole cause.

For the direct discrimination allegations of race and sex, the tribunal applied the burden of proof principles in Igen Ltd v Wong, Shamoon v Chief Constable of the RUC, and Martin v Devonshire's Solicitors. It found that the respondent decided to investigate when the claimant had been charged, not when the trial was imminent, and that when the claimant was later interviewed the respondent was careful not to ask him for the evidence or particulars of his criminal defence. It found no actual comparator, no evidence that a hypothetical comparator would have been treated differently, and no evidence from which it could properly infer that race or sex was the reason for the treatment complained of. All claims were dismissed and no remedy was awarded.