The Claimant in this case was employed as a legal secretary and worked for the Respondent for 18 years. In September of 2021 a colleague came forward with a number of very serious allegations of homophobic and racist speech by the Claimant.
A disciplinary process was commenced and the Claimant was dismissed. This decision was upheld on appeal. The Claimant brought a claim of unfair dismissal to the tribunal.
This claim was successful. The tribunal found that, from the long list of accusations, the Claimant had said to her colleague that she would: “never speak to a lesbian because it’s a deadly sin”, that she was “okay with gay men, but not gay women”, that she wouldn’t speak to a colleague because of her sexuality and would not look at her “because she is repulsive”. The Tribunal agreed that these comments amounted to gross misconduct and that the Respondent was entitled to dismiss her without notice.
But the Tribunal also held that there were various flaws in the investigation and disciplinary process which led to their finding of unfair dismissal. One example of this was that the dismissal letter was not sufficiently detailed and did not explain why some evidence was favoured over other. The main issue was the over reliance on matters that had happened years before. The Claimant was questioned on additional statements she was alleged to have made in 2007, 2013 and 2015. When the Claimant stated that she did not remember whether she had said these things or not this was taken by the Respondent as evidence of her dishonesty. The Tribunal pointed out that this was not fair given the passage of time and the fact that not being able to recall was not the same as a flat denial.
Another issue identified by the Tribunal was that the Partner who wrote the dismissal letter also had an influence in the investigation. He told the investigator who to interview and how to conduct the investigation which led the Tribunal to conclude that they were not “truly independent”.
Whilst the Claimant in this case was successful the Tribunal reduced her compensatory award by 75% due to the nature of the comments made and her culpability in her dismissal.
The lesson here for employers is the crucial importance of following a fair process. The more serious the allegations the more thorough the investigation needs to be, even if the feeling is that the employee is definitely guilty. The case also demonstrates the importance of a focused investigation. The Respondent probably felt that by using historic accusations they were gathering more evidence but in this case if they had concentrated more on the recent allegations the judgment may have been different.
If you have any questions on any of the issues raised in the above article, please contact Natalia Milne.