Claimant v Edward Harte Solicitors
Outcome
Individual claims
The claimant withdrew her complaint of unlawful deductions from wages for failure to pay holiday pay prior to the hearing. The tribunal dismissed it upon withdrawal.
The claimant withdrew her complaint of failure to provide an itemised pay statement prior to the hearing. The tribunal dismissed it upon withdrawal.
The tribunal found the claimant was unfairly dismissed because the respondent did not carry out a reasonable investigation within the band of reasonable responses. The investigation was unbalanced, relied on historical matters improperly, failed to scrutinise inconsistencies in the witness statements, and the investigator was not truly independent. The appeal process failed to cure these defects by not allowing the claimant to respond to prejudicial new character statements before the appeal decision.
The tribunal found that the claimant did make homophobic comments to a colleague (saying she would never speak to a lesbian as it was a deadly sin, that she was okay with gay men but not gay women, and that a named partner was repulsive because she was a lesbian). Although the tribunal found the dismissal substantively and procedurally unfair, these comments amounted to gross misconduct entitling the respondent to dismiss without notice. The breach of contract claim therefore failed.
Facts
The claimant was a legal secretary employed for 18 years by a small law firm. In June 2021 a junior receptionist alleged the claimant had made homophobic, racist and otherwise offensive remarks. The claimant was suspended, subjected to a disciplinary investigation and dismissed in October 2021. The tribunal found the claimant did make certain homophobic comments (stating she would never speak to a lesbian as it was a deadly sin, was okay with gay men but not gay women, and that a named partner was repulsive because she was lesbian), but did not make other more offensive remarks attributed to her (such as calling individuals offensive slurs). The investigation was found to be unbalanced, improperly relying on historical matters from 2007-2015, and the appeal failed to allow the claimant to respond to new prejudicial character statements.
Decision
The tribunal found the dismissal substantively and procedurally unfair due to an unreasonable investigation, an investigator who was not truly independent, and an appeal that failed to cure the defects by not allowing the claimant to respond to prejudicial new evidence before the decision. However, the tribunal found the claimant was guilty of gross misconduct (the homophobic comments she did make) and applied a 75% reduction for contributory fault to both the basic and compensatory awards. The breach of contract claim failed because the gross misconduct entitled the employer to dismiss without notice.
Practical note
Even where dismissal is found unfair due to a flawed investigation and process, tribunals will make substantial contributory fault reductions where the claimant is found to have engaged in serious misconduct, and may still find the employer entitled to dismiss without notice for gross misconduct in a wrongful dismissal claim.
Adjustments
The claimant did make homophobic comments to a junior colleague on 9 June 2021, stating she would never speak to a lesbian because it was a deadly sin, that she was okay with gay men but not gay women, that she would not speak to a named partner because she was a lesbian, and that she would not even look at her because she was repulsive. These comments were blameworthy and culpable.
Legal authorities cited
Statutes
Case details
- Case number
- 2300083/2022
- Decision date
- 22 May 2024
- Hearing type
- full merits
- Hearing days
- 2
- Classification
- contested
Respondent
- Sector
- legal services
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Legal Secretary
- Service
- 19 years
Claimant representation
- Represented
- Yes
- Rep type
- barrister