Mr L Varnam, Counsel. For the v Respondent — 2021

Mr Kelly worked for Sainsbury's from 27 March 2000 until his dismissal on 31 July 2020. The tribunal accepted that he was disabled and relied on an earlier occupational psychologist report from 2011, which said some of his workplace behaviour might be partially accounted for by a past head injury. It also recorded earlier disciplinary history, including a 2010 written warning for calling a colleague a "Whore" and using the word "Bitch", and a 2015 informal discussion about inappropriate comments to a female colleague.

The case arose from SB's complaint in April 2020 alleging repeated sexual harassment and inappropriate touching. After an initial investigation by Mr Rawlinson, the matter was not progressed, but an appeal led to a re-investigation by Mr Hunter. The tribunal described the investigation and disciplinary stages, including interviews with SB and several witnesses, and noted that Mr Kelly admitted some of the language complained of and accepted sending the video to Mary. He denied some allegations, including grabbing SB's bottom.

On the disability discrimination claim, the tribunal found that Mr Kelly had an increased propensity to act in an inappropriate manner and make inappropriate comments, and that this arose in consequence of his disability. It held that the respondent had knowledge of his disability because the Hunting report was on file, but did not consider it. The tribunal concluded that the respondent failed to act proportionately because it did not seek updated medical or psychiatric advice, did not consider the impact of his head injury on memory and behaviour, and did not properly consider steps such as training, counselling, support, or warnings before dismissing him.

On unfair dismissal, the tribunal found the reason for dismissal was conduct and accepted that the respondent genuinely believed in at least some of the misconduct. However, it held that the investigation was not reasonable in relation to the allegation that SB had been grabbed on the bottom, that the dismissal was not within the band of reasonable responses, and that there were procedural failings, including lack of clarity in the charges, failure to provide SB's statement and the interview notes in advance, and failure by Ms Richardson to follow up the issue raised by Mr Fisher. The wrongful dismissal claim failed because the tribunal found Mr Kelly had committed gross misconduct and so was not entitled to notice. Remedy was left to a separate hearing listed for 20 May 2022.