Ms R Pop, Lay representative For the v Mr M Difelice, Solicitor — 2020

The claimant worked as a Griller for the respondent and met Ms X through work-related training and socialising. After a night out on 17 and 18 March 2018, Ms X reported an incident at the claimant’s flat to the police and to the respondent. In the investigation interview on 20 March 2018, the tribunal found that the claimant answered in clear English, gave detailed responses, and admitted conduct including touching Ms X, opening her jeans, and putting his hand inside her underwear. The tribunal also accepted that he spoke to Mr Krzyzaniak on 21 and 22 March 2018 in English and admitted sexually assaulting Ms X, before later changing his account.

Applying s.98 ERA 1996, the Burchell test, and the range of reasonable responses, the tribunal held that the respondent had a genuine belief on reasonable grounds, based on a reasonable investigation, that the claimant had sexually assaulted Ms X. It found that summary dismissal for gross misconduct was within the range of reasonable responses. The tribunal accepted the respondent’s case that the conduct outside work still reflected on the employment relationship because both employees worked for the respondent and attended its social and training events. The unfair dismissal claim was therefore dismissed.

The direct sex discrimination claim was based on the handling of Ms X’s complaint, the claimant’s grievance, and the refusal to call his proposed witnesses. The tribunal found that the grievance points were reasonably dealt with as part of the appeal because they overlapped with the disciplinary issues, that the proposed witnesses were character witnesses rather than witnesses of fact, and that the questions asked by Mr Webber and Mr Fenner were required by the seriousness of the allegation. It found no evidence that the treatment was because of sex, and dismissed the claim. The direct race discrimination claim was also dismissed; the tribunal found no true comparable cases and held that, even if less favourable treatment had been shown, the reason for dismissal was the claimant’s conduct, not race. The harassment related to sex claim failed because the tribunal found the questioning was not unwanted in the statutory sense and did not have the purpose or effect required by section 26 EqA 2010. No remedy was awarded because all claims were dismissed.