Banker wrongfully dismissed after claims of inappropriate Christmas party conduct

Tribunal finds actions of bank manager towards his female colleague were not ‘so serious as to be gross misconduct’

A banker has been awarded over £12,000 after he was wrongfully dismissed because of accusations of inappropriate conduct with a female colleague at a work Christmas party.

Craig Kerins, who worked for Barclays from August 1990 until his dismissal on 24 August 2018, was dismissed from his role as a bank manager after a coworker accused him of inappropriate conduct, trying to kiss her and putting codeine in her drink at the office Christmas celebration.

The employment tribunal ruled Kerins had been wrongfully dismissed because, although the investigation into the incident was carried out correctly, the judge decided Kerins had not attempted to drug his colleague and that his other behaviour was not “so serious as to be gross misconduct”.

Kerins and a female colleague – referred to as ‘A’ in the tribunal – attended their work Christmas party on 8 December 2017 at a casino in Milton Keynes alongside other members of their team. Both booked separate rooms in a local hotel. At some point in the evening, A became unwell and was escorted back to her hotel room by Kerins. He stayed in her room for 20-30 minutes before leaving.

In the new year, on 2 January 2018, A met with her manager, Ms Lucas, to lodge a complaint against Kerins’s behaviour during and after the party. In the meeting, A said Kerins had offered to escort her to her room and followed her in, which was “nothing unusual as they were good friends”.

She said she lay down on the bed and asked Kerins to leave as she still felt unwell. Kerins approached her and kissed her on the cheek and she pushed him away and asked him again to leave, which he did.

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During the same meeting, A also made an allegation that Kerins had put codeine in her glass of wine during the evening.

The tribunal was told A was upset following these alleged events and did not wish to work with him or raise a grievance. But, four months later on 1 May, Kerins was invited to attend an investigation into allegations of “potential misconduct on the evening of 8 December 2017”, and as a result of the allegations Kerins was suspended.

Mr Evans, area business manager for Barclays, was appointed the investigator. During an investigatory meeting with Evans, Kerins denied drugging A and gave his account of what happened. He said he saw A coughing during the party and offered her a lozenge. As the evening went on, her coughing became worse, and “she was struggling”. He escorted her back to the hotel, wrapped her in her duvet and “rubbed her back to get her breathing back”.

When asked if he had tried to kiss her, Kerins replied: “a goodnight kiss, yes. Nothing further”. 

Evans also contacted the casino to gain any CCTV footage from the party, but the casino said they doubted they had any footage and would only release it to the police.

At the end of his investigation, Evans recommended there was a disciplinary case with both allegations and a disciplinary hearing on 7 August concluded his conduct was “inappropriate” and not in line with Barclays’ code of conduct. All the allegations against Kerins were upheld, and he was dismissed with effect on 24 August.

In the dismissal letter, the dismissing officer said that by entering A’s room after the party to rub her back and wrap her in a duvet, Kerins either showed a “lack of integrity about how ill” A was, or that his actions were “inappropriate”. The dismissing officer also wrote that sitting on A’s bed was an invasion of her personal space and “transgressed the boundaries of collegiate behaviour”.

As to the kiss allegation, the investigation acknowledged Kerins had maintained this was intended as a friendly goodbye kiss on the cheek. But even if that was the case, it was inappropriate given their “grade differential”, and this was unwanted physical contact and therefore harassment.

Kerins appealed his dismissal and, after this time reviewing the CCTV footage from the casino which did not show Kerins putting any drug into A’s wine glass, the allegation that Kerins had drugged A was not upheld. But it upheld that the dismissal was still justified for the remaining allegations.

Kerins brought claims of unfair and wrongful tribunal, which ruled Kerins had been wrongfully dismissed as his behaviour did not amount to gross misconduct and ordered Barclays to pay Kerins £12,282 in damages. However it dismissed the claim of unfair dismissal.

Judge Moor said Kerins kissing A was unintentional and “was in the context of a close friendship in which a kiss on the cheek was acceptable”.

Additionally, Moor ruled Kerins did not drug A, accepting Kerins’s argument that he had brought a tablet of the painkiller codeine with him to take the morning after the party, which had accidentally fallen out of his pocket in A’s room, and that on finding it A “leapt to the worst case scenario”.

Moor added: “Her behaviour at the casino bar does not support that she had been drugged. She was not drowsy, but alert.”

An unfair dismissal claim was dismissed, and claims for unpaid holiday pay and sex discrimination were withdrawn.

Carl Atkinson, partner at Gunnercooke, said it was unusual for a tribunal to dismiss a claim for unfair dismissal while at the same time upholding a claim of wrongfully dismissed. He said the judge ruled Barclays had followed a fair disciplinary procedure, meaning its decision to dismiss was within a range of reasonable response.

But the tribunal also looked separately at the specifics of the case to judge whether Kerins actions were worthy of being labelled as misconduct. In doing this, Atkinson said, “the judge is required to decide for himself based on the evidence what actually happened that evening, which doesn’t happen in an unfair dismissal case.” As the judge concluded Kerins hand not attempted to drug A, and that he and A were on friendly terms, he ruled that Kerins’s actaions were not misconduct.

Barclays declined to comment on the ruling, and Kerins has been contacted for comment.