ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case no 4100960/2020 (V) Held remotely by video on and October 2020 Employment Judge: W A Meiklejohn Mr Abram Domenech v (with Mr J Oya as Interpreter) Edinburgh Park Hotel Ltd — 2020

The claimant, Mr Abram Domenech, was dismissed by Edinburgh Park Hotel Ltd on 6 December 2019 after allegations that he repeatedly used stereotypes about colleagues from Andalucía, made comments about a colleague’s hairstyle, and pulled a female team member’s bra in the restaurant on 4 November 2019. The respondent relied on gross misconduct. The claimant appealed, but the appeal was not upheld on 20 December 2019.

The tribunal accepted that the claimant had used stereotype-based jokes and had admitted the bra incident. Applying section 98 ERA 1996 and the Burchell approach, it found that the dismissing manager, Mr Felix, genuinely believed the misconduct had occurred and had reasonable grounds for that belief in relation to the stereotypes and the bra incident. It was also satisfied that the respondent had carried out an adequate investigation into those matters.

The tribunal found that some parts of the dismissal rationale were not well founded. In particular, it held that there were no reasonable grounds for the statement that the claimant had made comments about colleagues’ appearance on a daily basis, and the evidence showed only one isolated comment about A’s hairstyle. It also found that the allegation that the claimant made jokes about disability with a visually impaired colleague had not been investigated before being relied on, so that allegation should not have been included as a basis for dismissal.

Even so, the tribunal held that dismissal for the bra incident alone fell within the band of reasonable responses open to the respondent. It found the procedure broadly complied with the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015, including investigation, disciplinary hearing, opportunity to appeal and written reasons. The unfair dismissal complaint was therefore dismissed and no remedy was awarded.