Member R McPherson Tribunal Member W Muir Mr J Sharp v Represented by Mr F Sharp Father Kyowa Kirin International plc — 2021

The tribunal found that Mr Sharp, an IT user support analyst employed from 5 May 2015, was dismissed on 30 January 2020 after allegations arising from the respondent’s Christmas event and subsequent grievance by Ms N Baltiatiye. The grievance investigation considered three allegations: inappropriate touching, sexually explicit comments about ecstasy and oral sex, and a further sexual remark. Mr Sharp initially denied the allegations at interview on 14 January 2020, but on 15 January 2020 emailed an apology saying he had no memory of the events, believed he may well have acted as described, and wished the apology to be passed on.

The tribunal accepted that the respondent had a genuine belief that Mr Sharp had committed misconduct and that conduct was a potentially fair reason for dismissal. It applied the statutory unfair dismissal framework under section 98 ERA 1996, including the Burchell approach and the band of reasonable responses test, but concluded that the respondent had not carried out as much investigation as was reasonable before deciding he was guilty of misconduct. In particular, the tribunal held that Mr Sharp was not given a sufficient opportunity to put his case after the apology, the apology’s meaning was never put to him, and the respondent relied on the grievance investigation as the disciplinary investigation without undertaking any separate disciplinary inquiry.

The tribunal was also critical of the way the grievance and disciplinary stages were handled. Ms Kennett conducted both the grievance hearing and the disciplinary hearing, and the disciplinary hearing began on the basis that the allegations had already been upheld. The tribunal held that Mr Sharp was not asked for his response at the disciplinary hearing before conclusions were reached, was not given the witness statements until shortly before the appeal, and was not afforded a fair opportunity to deal with the material being relied on against him. It did not accept the respondent’s submission that the later appeal cured those defects, and it rejected a Polkey reduction because it could not say dismissal would inevitably have followed a fair process.

On remedy, the tribunal accepted the loss schedule in broad terms, including loss of earnings, bonus, pension, private healthcare, service awards, statutory rights and travel costs, but applied a 15% ACAS uplift and then a 50% reduction for contributory fault. It found Mr Sharp blameworthy because something had happened at the event, he had been intoxicated, and he had apologised in terms the tribunal treated as significant, but it did not accept that his conduct was the sole cause of dismissal. The final award was £23,500.29, made up of a basic award of £1,443.75 and a compensatory award of £22,056.54.