Member P McColl Tribunal Member J McCaig Mr M Wellington v Represented by: Ms B Kadirgolam - Solicitor Simon Community Scotland — 2023

The claimant, a support worker employed from 12 November 2012 until his dismissal on 29 November 2022, brought claims for unfair dismissal and direct race discrimination. The tribunal accepted that the respondent relied on conduct as the reason for dismissal, but found that the investigation expanded beyond resident 1's complaint into broader allegations about the claimant's work practice and alleged sexually inappropriate comments, based on an inexperienced investigator's selective and incomplete notes. It found that Ms Aitken had formed a negative view of the claimant before and during the investigation, and that the investigation form was partial, inconsistent and lacked proper detail about who was interviewed, when, and what was said.

The tribunal held that the respondent did not carry out as much investigation as was reasonable in the circumstances. It found that the claimant was not told before the investigatory meeting that the scope had widened into a disciplinary investigation about alleged sexual misconduct, that the HR manager intervened in a way that confused rather than clarified matters at the disciplinary hearing, and that the appeal was effectively a rubber-stamping exercise. Applying the Burchell approach and the s.98(4) ERA reasonableness test, the tribunal concluded that dismissal fell outside the range of reasonable responses and was unfair.

On remedy, the tribunal awarded a basic award of £6,894 and accepted the claimant's past loss to the hearing date as £15,375, from which it deducted ESA at £79.38 per week for 41 weeks, producing a compensatory award of £12,120.42. It rejected a future loss award, found that a Polkey reduction was not justified on the evidence, and made no deduction for contributory conduct, giving a total award of £19,014.42. The recoupment regulations did not apply.

The direct race discrimination claim was dismissed. Although the claimant was a British national of black African Caribbean ethnicity and compared himself with white British colleagues, the tribunal was not satisfied that the widening of the investigation or the dismissal was because of race. It found that Ms Aitken was seeking validation for her own view of the claimant's working practices and that the claimant did not prove race was the principal or significant cause of the less favourable treatment complained of.