Member McElwee Tribunal Member Taylor Mr R Mitchell Care Visions Group Limited v Represented by: Mr S Smith Solicitor — 2022

The claimant worked for the respondent as a Residential Childcare Worker from 1 December 2014. After allegations arose in December 2017 concerning his conduct towards a young person, AA, the respondent began an investigation, contacted the police and the SSSC, and suspended the claimant on full pay on 15 January 2018. When the SSSC imposed a Temporary Suspension Order and his registration was suspended, the respondent placed him on unpaid suspension from 16 April 2018 because he could not work in the role. The claimant resigned on 31 October 2018 before the internal process had concluded.

The tribunal rejected the constructive unfair dismissal claim. It held that paragraph 20 of the employment contract allowed suspension without pay where SSSC registration lapsed, and that the claimant was unable to perform his contractual duties because of the registration suspension and bail conditions. Applying Kaur v Leeds Teaching Hospital NHS Trust, the tribunal found that the respondent was still investigating in October 2018, had held a fact-finding meeting with the claimant on 2 October 2018, and was acting within reasonable timescales when it told him the report had been completed and was under consideration. It found that the claimant resigned because of financial pressure and the availability of alternative work, not in response to any repudiatory breach.

The direct discrimination claim based on sexual orientation also failed. The tribunal held that there was no evidence of less favourable treatment compared with a comparator and no facts from which it could infer that sexual orientation was a cause of the way the investigation was handled. It accepted that SC did not investigate whether Colleague A was motivated by homophobia because the claimant himself did not say that she was homophobic and there was nothing else in the material to suggest that explanation. The direct sex discrimination complaint and the indirect sex and sexual orientation complaints were withdrawn by the claimant and were dismissed following withdrawal.