Mr D Gray-Jones, Counsel For the v Ms. K. Williams, solicitor — 2023

The claimant, a chef employed by the respondent, brought claims of wrongful dismissal, unfair dismissal, direct sex discrimination, and victimisation. The tribunal found that he had earlier raised a grievance about SB’s sex-specific comment, that the grievance outcome on 21 January 2020 recommended, among other things, that he attend staff meetings, and that a Performance Improvement Plan was imposed on 4 March 2020. It later held that the PIP was an act of victimisation, but that the victimisation complaint about it was out of time and time should be extended just and equitably. The tribunal also recorded that the remaining issues on remedy were to be dealt with at a later hearing.

The disciplinary process arose from an investigation led by KLE into Convercent reports, although the reports themselves were not about the claimant. The tribunal found that the investigation was not even-handed. It held that KLE did not fairly assess relevant exculpatory material, including the full text exchanges between the claimant and BS, evidence that some witnesses believed the claimant was the source of the Convercent reports, and the effect of the grievance against SB as a possible reason for false allegations. It also criticised the handling of the Trolley allegation, the differing interview methods used for the claimant and complainants, and the failure to interview all relevant witnesses. Even so, the tribunal accepted that SE and JK genuinely believed the misconduct findings they made.

On the misconduct allegations, the tribunal found that the Birthday Cake allegation, the Valentine’s Day Biscuits allegation, the Toilet Cubicle allegation, and the Trolley allegation had been treated as substantiated for disciplinary purposes, but it was not satisfied on the balance of probabilities that the Toilet Cubicle allegation was proved. It held that the other allegations, taken alone or together, were not enough to amount to gross misconduct, and therefore the claimant had been wrongfully dismissed. Applying s.98(4) ERA 1996 and the Burchell approach, it also found the investigation and dismissal unfair because relevant material had been withheld or irrationally discounted, including material that could have undermined BS’s credibility.

The direct sex discrimination claim succeeded in relation to the decision to send the claimant to disciplinary hearing, his dismissal, and the rejection of his appeal. The tribunal found gender bias in the way the investigation treated the claimant’s text messages and the credibility of BS, and it concluded that a woman in materially similar circumstances would likely have been treated more favourably. The earlier alleged acts of requiring staff meetings, imposing the PIP, and suspending and investigating the claimant were not found to be sex discrimination, although the PIP did succeed as an act of victimisation. The tribunal therefore upheld the unfair dismissal, wrongful dismissal, part of the sex discrimination claim, and part of the victimisation claim, but left remedy to be determined separately.