Miss N Braganza, Counsel (throughout) For the v Respondent — 2019

The tribunal found that the claimant, a bisexual male prison officer, was transferred to HMP Woodhill in September 2014 and shortly afterwards was asked about his sexuality, called 'gay' and 'poof', and subjected to repeated comments about his appearance. It accepted that CM Laithwaite asked him whether he was gay at induction, that he disclosed he was bisexual, and that after that disclosure the conduct by colleagues intensified. The tribunal found that the respondent's witnesses had trivialised the behaviour as banter, but held that the conduct was directed at the claimant because of actual or perceived sexual orientation.

On the direct discrimination and harassment claims, the tribunal found a continuing course of conduct that included the pink colouring of the claimant's bag, repeated homophobic name-calling by PO H and PO Puttock, physical conduct in which PO H slapped or struck the claimant, and CM Laithwaite's failure to intervene. It also found that the attendance warning issued after the claimant's February 2015 injury should not have been given, that the warning remained on his record, and that these matters were acts of direct discrimination because no non-discriminatory explanation was established.

The tribunal also held that the claimant's grievance of 15 October 2015, which identified sexual orientation bullying, was mishandled when Mr Vince sent it back to Ms Hunt for investigation rather than to a more senior manager. It found that the failure to investigate that grievance was itself direct discrimination. Separately, it found that the claimant was victimised because he had made protected acts, including letters and grievances to MPs and senior prison service figures, and that the later decision-making around transfer, discipline, and dismissal was influenced by a desire to contain his complaints and discredit him.

The evidence about the 7 December 2015 incident led the tribunal to find that the claimant had intervened in a volatile situation involving Prisoner A, that Prisoner A had threatened and struck him, and that the incident was not investigated in a fair or complete way. The tribunal criticised the absence of required use-of-force forms, the lack of a proper debrief, late-created extension documents, altered and redacted documents, and the failure to pursue obvious gaps in the investigation. It found that Governor Davis had already formed a view that the claimant should be dismissed, and that Governor O'Connor's investigation and Governor Griffin's disciplinary hearing proceeded on a closed mind.

The tribunal rejected the whistleblowing claims under s.43A and s.103A ERA 1996, finding that although protected disclosures had been made, the relevant detriments were not caused by those disclosures. It held instead that the suspension and dismissal were linked to the respondent's response to the claimant's complaints to external figures, and that the dismissal was also an act of victimisation. Applying the Burchell test and s.98(4) ERA 1996, it found the dismissal unfair. The judgment does not record any quantified monetary remedy, so no award is shown in this extraction.