Mr C v Represented by: Mr G Bathgate - Solicitor West Dunbartonshire Council — 2019

Mr C was employed by West Dunbartonshire Council from 22 August 2005 as a Mobile Caretaker. After an investigation in relation to events on 2 November 2017, the respondent held a disciplinary hearing in June 2018, upheld one allegation concerning entering a tenant’s flat and drinking alcohol during working hours, and issued a final written warning together with a transfer to another location. Mr C then returned to work.

After Mr C was charged with rape on 10 September 2018, the respondent suspended him and held a second disciplinary process. The allegations were framed as, first, that the charge of rape put him in serious breach of trust and confidence, and secondly that the nature of the charge placed the council at serious risk of reputational damage. Mr Thomas upheld both allegations and dismissed Mr C for gross misconduct. The tribunal accepted that the respondent genuinely believed trust and confidence had broken down and that there was a risk of reputational damage, so it found that some other substantial reason was a potentially fair reason for dismissal.

The tribunal nevertheless held that the dismissal was unfair under section 98 of the Employment Rights Act 1996. It found a fundamental flaw in Mr Thomas’s reasoning because he conflated the first and second disciplinary processes and relied again on conduct from 2 November 2017, even though that conduct had already been considered when Mr C was returned to work on a final written warning. The tribunal said the respondent had no reasonable basis for treating trust and confidence as broken down in November 2018 when the relevant facts were already known months earlier.

The tribunal also found the reputational damage rationale was premature. At the date of dismissal there had been no publicity or media attention, and Mr Thomas could only say that there might be a future trial and a possible risk of reputational damage if that happened. The tribunal further found that alternative employment had not been credibly considered. Mr C had 13 years’ service, and the remedy was left to a future hearing.