Claimant v Grant Property Solutions Ltd: S/4118257/2018 — 2019

The claimant, an IT Manager with around 10 years' service, was dismissed after sending three emails to a junior colleague, Lily Galloway, on 17 and 18 April 2018. The tribunal found that the first two emails contained sexually inappropriate and offensive material, and that the third email, although framed as an apology, included the further sentence, in small type, "Just don’t wear that dress again." The tribunal accepted that the respondent treated the matter as a complaint of sexual harassment and suspended the claimant pending investigation.

The tribunal found that the respondent's investigation was reasonable in the circumstances, even though it could have held an investigatory meeting with the claimant before the disciplinary hearing and could have gathered more information. It accepted that the claimant had already admitted sending the emails when suspended. The tribunal criticised the invitation email to the disciplinary hearing because it should have made clear that the matter was being treated as gross misconduct and that dismissal might result, but found that the claimant knew he was at risk of dismissal because he had been told he was accused of sexual harassment, had been suspended, and the chair opened the hearing by saying the allegations amounted to gross misconduct.

The tribunal was troubled by the respondent's email to all staff after dismissal, which referred to the claimant's "inappropriate behaviour" before the appeal was heard, and found that this had the potential to prejudice the appeal. However, considering the process as a whole, it held that the appeal hearing was fair and that the appeal chair approached the matter with an open mind. Applying section 98(2)(c) and section 98(4) ERA 1996, the ACAS Code, and the band of reasonable responses approach, the tribunal concluded that dismissal for conduct was within the range of reasonable responses given the respondent's handbook, the claimant's senior role, the nature of the emails, and his lack of consistent insight.

Because it found the dismissal fair, the tribunal dismissed the claim and made no monetary award. It said that if it had been wrong on fairness, any compensation would have been reduced by 100% under Polkey, and it would also have reduced any basic award and compensation by 100% for contributory conduct under sections 122 and 123 of the Employment Rights Act 2006.