A warehouse worker who was sacked after a colleague discovered an online video of him being confronted by paedophile hunters while waiting to meet a 14-year-old girl was unfairly dismissed, a tribunal ruled.
The Leicester tribunal heard that the claimant was recorded by two individuals who approached him, claiming he was en route to meet a 14-year-old girl.
Although he did not dispute being in the video, shot in 2016, the tribunal heard that it was edited and that the two individuals who approached him beat him up and that one had subsequently been arrested for forging evidence.
After police investigated the claims, the Crown Prosecution Service opted not to prosecute the claimant.
The tribunal heard that his employer, Gypsumtools, had failed to consider other options after seeing the video and dismissing him – and had failed to make any further enquiries with his solicitor before the decision was made.
The claims for unfair dismissal were successful and Gypsumtools was ordered to pay him a total of £21,449.93.
Background
The claimant was employed as a store assistant/taping tool repair technician on 23 April 2018 at Gypsumtools’s warehouse, until his contract was terminated on 31 March 2021.
On 11 January 2021, the tribunal heard that a colleague conducted an internet search of the claimant’s name, which brought up a video and photos entitled 'The Hunted One’.
The four-minute clip showed him being approached in his car while two men accuse him of driving to meet a 14-year-old girl and exchanging sexually explicit messages with her.
The colleague, Mr Cooper, alerted Mr Wilson, the claimant’s line manager, about the video and photographs.
Cooper then alerted the Gypsumtools’s managing director, who directed Wilson to talk with HR. Wilson spoke to Ms Horsley, the HR manager, on 11 January.
On the same day, the claimant was summoned by Wilson to a meeting, chaired by Horsley. The tribunal heard that he had been given no information about the aim or subject of the meeting and was not aware of his entitlement to a companion.
The claimant was not given a pre-disciplinary conversation, nor notice about the meeting, the tribunal heard. He described the meeting as “a hostile kangaroo court”.
According to the tribunal, he assured Gypsumtools at the meeting that he had earlier arranged for the photograph to be removed from the internet by his lawyers.
Although he did not deny being in the video, he said it had been manipulated, and he was beaten up. He said he had not previously spoken with Gypsumtools about the event because his lawyer told him not to, and that he had found it too “traumatic”.
He told Wilson that he had an email from his solicitor that proved the lawsuit was dismissed and that he had a valid DBS certificate.
He said it had taken him three years to recover from the "psychological impact" of the events.
The meeting concluded with the claimant sent home to consider two options – resign or be dismissed.
On 14 January, he filed a grievance about the meeting. By this point, he was on sick leave with work-related stress, anxiety and low mood, but was not suspended.
“The fact that my colleagues and other group employees have also become aware of the issue has added further pressure and made it very difficult for me to return to my role,” he wrote in the grievance.
On 11 February, Horsley wrote to the claimant and dismissed the grievance. It was in this letter that he was first formally informed that he had been sacked. She wrote: “[The decision to dismiss] stands as there is a fundamental and irretrievable breakdown in work relations between yourself and your work colleagues due to your actions.
“There is also a risk of reputational damage involved in continuing your employment. There is a breakdown in trust and confidence between you and the company. Your position has become untenable.”
Judge’s comments
According to employment judge R Broughton, the decision to terminate the claimant's employment was made because Horsley and Wilson had formed the opinion that he was guilty of the wrongdoing.
They said that the non-disclosure of the 2016 incident and video was part of their decision-making process and it was probably given such weight because they viewed this as further evidence of "guilt".
The judge also ruled that the way the meeting on 11 January was conducted “offended natural justice” and the “fundamental principles of fair treatment”, as the claimant was denied a fair hearing and the matter was not decided by someone who was impartial.
Horsley also failed to consider alternative options before dismissing him, Broughton said, adding: “She gave no thought to whether reorganising his work even temporarily would remove or mitigate any reputational risk, which would have been an obvious first step before considering other roles.”
Broughton concluded that there was a failure to follow the Acas code of practice, that the breaches were “serious” and “numerous” and that the handling of the situation amounted to unfair dismissal.
Broughton said: “The claimant was not prosecuted and found guilty of any offence. I do not find that the evidence as presented on the video amounts to evidence to support a finding of blameworthy conduct.”
The claimant was awarded £21,449.93, made up of basic award, loss of statutory rights, compensation, Acas uplift and mitigation.
Employment lawyer reaction
Dawn Dickson, employment partner at Anderson Strathern, said the case highlights the need for caution when seeking to dismiss an employee based on an assertion that the employer has suffered "reputational damage" as a result of an employee's conduct outside of the workplace. “Where reputational damage or relationship breakdown are cited as reasons for dismissal, it is key that compelling evidence of this reputational damage or relationship breakdown is brought before the employment tribunal,” she said.
Dickson said the decision serves as a reminder of the conditions in which individuals might request a limit to the reporting of an employment tribunal in cases involving allegations of sexual misconduct.