M Porter Mr G Phillips v Represented by:- Miss A Hunter, Solicitor Arnold Clark Automobiles Limited — 2018

Mr G Phillips was employed by Arnold Clark Automobiles Limited as an Instructor/Assessor from 29 September 1997 until his dismissal on 28 November 2017. The dismissal followed a complaint by 17-year-old apprentice Jack Doyle alleging that the claimant blocked his way and grabbed his genitalia. The tribunal found that the employer treated the matter as a conduct case and investigated it through statements from the complainant, instructors, and a number of apprentices who were present.

The tribunal accepted that the employer’s investigation was reasonable in the circumstances. It found that Vari Ferrence and Clare Fergusson took multiple witness statements, that the claimant was given the allegation in writing, that he denied any physical contact, and that he had the opportunity to answer the case at two disciplinary hearings and again on appeal. The tribunal also found that Clare Fergusson’s earlier involvement in the investigation was not material and that the appeal process amounted to a partial rehearing.

Applying the approach in Burchell and section 98(4) ERA 1996, the tribunal held that the respondents had a genuine belief that the claimant had committed the misconduct complained of and had reasonable grounds for that belief. It relied in particular on Jack Doyle’s contemporaneous complaint, supporting accounts from Steven McLeod and Ron Maxwell about Doyle’s immediate distress, and David Boulton’s evidence suggesting physical contact. The tribunal also considered the seriousness of the allegation, including that the complainant was a minor, and took into account the claimant’s 20 years’ service.

The tribunal concluded that the dismissal fell within the band of reasonable responses open to the employer and that any procedural deficiencies were cured on appeal. The claim of unfair dismissal was therefore dismissed and no monetary award was made.