Claimant v Southern Electric Power Distribution plc

Outcome

Facts

The claimant, a Tree Cutter Surveyor employed from May 2021, was dismissed in February 2024 for gross misconduct after an investigation revealed he had sent and received pornographic, offensive and discriminatory content on WhatsApp groups with colleagues. The groups, called 'Work Stuff Only' and 'Banter', were used throughout the working day and included work-related messages interspersed with inappropriate material including pornographic videos, racist and ableist content, and references mocking disabilities and sexual assault. The claimant, who was perceived as second-in-command in his team, failed to challenge the behaviour and actively participated. The respondent, a large energy company with strong diversity and inclusion policies, conducted a thorough investigation involving 13 employees and a 208-page report, held a disciplinary hearing, and dismissed the claimant. An appeal was unsuccessful.

Decision

The tribunal dismissed the unfair dismissal claim. It found the respondent had a genuine belief in the claimant's guilt following a reasonable investigation, that the claimant's conduct constituted gross misconduct in breach of the respondent's harassment, discrimination and social media policies, and that dismissal fell within the band of reasonable responses available to the employer. The tribunal applied the Burchell test and found the procedure followed was fair, the claimant was given full opportunity to respond, and the sanction was proportionate given the seriousness of the conduct, the respondent's size and clear policy stance on diversity and inclusion.

Practical note

Legal authorities cited