Mr G Probert, Counsel. For the v Respondent — 2019

The claimant had worked for Wickes since 1999 and was merchandising manager at the St Albans store from 2013. The case arose from complaints by a 19-year-old colleague, A, about comments and conduct including a suitcase remark, a comment about a rash being caused by an STD, staring, an attempted arm-around-the-shoulder, and thrusting movements against a desk barrier. At the start of the hearing the claimant said he was no longer pursuing sex discrimination or the s.20 reasonable adjustments claim.

On disability, the tribunal accepted that the claimant was disabled by depression, but it rejected his contention that his back condition met the definition of disability under s.6(1) Equality Act 2010. It found the back symptoms had become stable, there was little medical evidence of a substantial and long-term adverse effect on normal day-to-day activities, and there was no evidence that colleagues knew of a back problem or that adjustments had been sought. The s.15 disability discrimination claim failed because the non-payment of company sick pay was caused by the disciplinary proceedings, not by something arising in consequence of disability.

On unfair dismissal, the tribunal found the respondent had a genuine belief that the claimant was guilty of misconduct and that belief was based on reasonable grounds after a reasonable investigation. It relied on CCTV showing the claimant pulling the barrier across and moving back and forth three times while looking towards A and Arron, together with witness evidence that corroborated the suitcase, rash, and staring allegations to varying degrees. It rejected the claimant's criticisms of the investigation and hearing, including the complaint that he was not allowed to call witnesses or that the osteopath letter gave a convincing explanation for the CCTV.

The tribunal held the dismissal was within the bands of reasonable responses and that the conduct package amounted to gross misconduct and a repudiatory breach at common law. It also rejected the contractual sick-pay claim because the handbook reserved a right to withhold Company Sick Pay when allegations were outstanding and being dealt with through disciplinary proceedings. The holiday pay claim succeeded because the respondent accepted it had wrongly deducted more than £600 from outstanding holiday pay, although the extracted text does not state a quantified award.