A golf professional who sent a late-night Facebook message to a colleague asking how she managed to look “so good” every day was unfairly dismissed, a tribunal ruled.
The hearing found in his favour after deciding that Mark Sturgess’s manager failed to sufficiently investigate other grievances raised against him.
The Watford tribunal heard that Sturgess was dismissed by Cambridge Country Club for making “unwanted advances of a sexual nature to fellow employees” while on or off duty, as well as for making “unwanted statements in reference to a fellow colleague having a resemblance to Jimmy Savile”.
The tribunal ruled that these claims were not based on reasonable grounds, and that “dismissal was not a fair sanction and is not within the range of reasonable responses for a reasonable employer”.
However, Judge Hunt found Sturgess did commit serious misconduct by sending the Facebook message, meaning he will lose 40 per cent of any compensatory award.
Sturgess worked as a golf professional at Cambridge Country Club from May 2010 until June 2022, when he was dismissed for gross misconduct. His duties included running the golf shop, providing golf lessons and repairing golfing equipment, the tribunal heard.
Before May 2022, Sturgess had a clean disciplinary record and had not been subject to any investigation or received any warnings. However, on 26 April, Ms Clark, then front of house manager at the club, submitted a written grievance saying the claimant had made inappropriate comments, including on one occasion in the pro golf shop, when Sturgess said in front of other colleagues that she smelt so good he could “lick [her] all over”. She also said that he had messaged her late at night on social media.
Ms Wilkins, receptionist for the respondent, submitted a formal complaint on 12 May, claiming that, on the evening of 10 May, when she and her children were in Spike’s Bar, on the respondent’s premises, Sturgess was sitting nearby with a colleague and members of the club.
Wilkins said the claimant was “speaking about liking children and making comments referring to Jimmy Savile that she felt he had taken too far”, the judgment said.
On 12 May, these grievances, among others, were brought to the attention of the club’s manager, Mr McDonald, and on 20 May Sturgess was suspended pending investigations into allegations of “inappropriate conduct”.
On 24 May, the claimant attended an investigation meeting with McDonald. At the meeting, Sturgess denied making the “lick you all over” comment; however, he “acknowledged complimenting Ms Clark once on the front of house staff looking smart and that she always looked smart and well turned out and was a great ambassador for the company”, the tribunal heard.
McDonald told Sturgess about the allegation of the messages sent late at night on social media, saying that Clark said she had not responded but she thought things had “got out of hand”.
The tribunal report said: “The claimant said when Ms Clark started he thought they were friends, and if talking about messages on social media, anyone could see them and there was nothing in that.
“He went on to say that he felt the complaint from Ms Clark was [down] to a clash of personalities ‘business wise’ and to a breakdown in their working relationship after Ms Clark was promoted.”
McDonald confirmed to the tribunal that he did not speak to Clark after the investigation and never asked her about the date and time of the “lick you all over” comment.
He also “accepted that he had no independent evidence of this comment and he did not independently verify it because he did not have the date and did not know who was on duty”, the judgment said.
In response to Wilkins’s complaint regarding the comments relating to Jimmy Savile, Sturgess recalled an occasion where he was with golf club members and friends in Spike’s Bar and a Netflix programme about Savile was discussed.
He said someone in the group cracked a joke about it but, according to the tribunal report, “the claimant said that it was nothing to do with Ms Wilkins and was not aimed at her”.
On 31 May, McDonald sent a letter to Sturgess inviting him to a disciplinary hearing the following day. Included with a letter of allegations made against the claimant was a screenshot of the Facebook message to Clark, sent at 22:58, which said: “I have a question: How do you manage to look so good everyday?” [sic].
The tribunal report said: “In [the claimant’s] view the message contained no sexual innuendo and he was saying how good she looked because she was always well turned out.
“He did not not think there was anything inappropriate about the messages that he sent.” During the tribunal hearing, Sturgess maintained this position.
The claimant again denied making the comment in the golf shop and asked for details of the time and date, adding that, had such a comment been made in front of witnesses, it would have been talked about and spread throughout the club.
Additionally, Sturgess said the conversation in Spike’s Bar did not take place on 10 May, but occurred two weeks before and that he had two witnesses to support that.
However, McDonald said he had reviewed the CCTV and that “the story did not stack up”, the judgment said. The tribunal heard that he failed to speak to any of the claimant’s witnesses.
Following the disciplinary hearing, a letter confirming the decision to dismiss the claimant with immediate effect was sent to Sturgess on 7 June. It found that while on and off duty the claimant made “unwanted advances of a sexual nature to fellow employees” and that in Spike’s Bar the claimant “made unwanted statements in reference to a fellow colleague having a resemblance to Jimmy Savile”.
McDonald accepted that “if considering the Facebook message to Ms Clark alone, it would not meet the threshold of gross misconduct”, the tribunal heard. Instead, it would be considered serious misconduct and an isolated incident, for which the disciplinary policy was a final written warning.
An appeal hearing was held on 16 June, at which the claimant was unsuccessful.
At the hearing, the claimant said he was dissatisfied with the process and procedure. He pointed out several errors in letters sent to him, that he was not informed of the allegations against him before the investigation and so was unable to prepare, and that he was only given the minimum of 24 hours’ notice for the disciplinary hearing.
Sturgess also highlighted that there was a contradiction in Wilkins’s allegation between what was said and the reason for dismissal, as well as that his witnesses had confirmed the date of the incident was wrong.
Judge Hunt said in relation to the Spike’s Bar incident: “Given the inconsistencies and contradictions in Mr McDonald’s approach to and weighing of the complaint and the evidence, I conclude that this was not sufficient reason to sustain a belief on reasonable ground that the claimant was guilty of the allegation of gross misconduct set out in the dismissal letter.”
Hunt similarly concluded that McDonald’s reasons for finding that the “lick you all over” comment took place and that Sturgess was guilty of “unwanted advances of a sexual nature” were not based on reasonable grounds.
However, referring to the Facebook message sent to Clark, the judge said: “I conclude that Mr McDonald’s finding that the content and timing of the message made Ms Clark uncomfortable and amounted to misconduct was based on reasonable grounds.”
Furthermore, the judge concluded that the respondent “did not carry out a reasonable and sufficient investigation” and that “given the number of deficiencies, the process was not reasonable and was procedurally unfair”.
Given all of the above findings, the judge found that “dismissal was not a fair sanction and is not within the range of reasonable responses for a reasonable employer and the claimant has been unfairly dismissed”.
As a result of the failings found in the investigation, the judge awarded a remedy uplift of 20 per cent.
However, Hunt went on to say: “I have found that the claimant was guilty of serious misconduct in respect of sending the late-night Facebook message and I further found in my objective view that the offence was exacerbated by his inability or unwillingness to acknowledge any level of inappropriateness or discomfort caused to Ms Clark.”
As a result of the judge’s finding that Sturgess’s message to Clark was blameworthy and “materially contributed to the dismissal”, they ruled that the compensatory award should be reduced by 40 per cent.
Additionally, Sturgess was found to be wrongfully dismissed, as the respondent “was in breach of contract in summarily dismissing the claimant without notice or pay in lieu of notice”. He was also found to be owed pay in lieu of untaken holiday.
Emily Morrison, solicitor in the employment team at SA Law, told People Management: “This case demonstrates the importance for employers to follow a proper and fair disciplinary investigation and process when considering allegations against employees.”
Pam Loch, solicitor and managing director of Loch Associates Group, said: “As a minimum, employers should ensure a balanced and impartial investigation is carried out by someone who has been trained on what to do and the employee is fully aware of the allegations.
“This case also highlights the importance of following a fair and reasonable process, giving employees adequate notice before a disciplinary meeting, providing them with all available evidence in advance of the meeting and following up with written notes.
“If employers are able to demonstrate they have followed a fair process then their decision is less likely to be challenged at a later date if placed under scrutiny at an employment tribunal.”