A homelessness charity has been ordered to pay more than £19,000 to an employee due to unfair dismissal, an employment tribunal has ruled.
Mark Wellington, who was employed as a support worker for the Simon Community from November 2012 to November 2022, claimed he was unfairly dismissed and discriminated against due to his race.
After seven days of hearings in Glasgow between July and September, the tribunal has ruled the charity must pay Wellington £19,014 due to unfair dismissal. But it dismissed the claim of direct discrimination on the basis of race.
The investigation was triggered by an incident with a resident at the charity’s homelessness service, who complained that Wellington had not fixed the tire for his electric scooter.
The disciplinary investigation, led by the Simon Community’s investigating officer Janine Aitken, saw her speak individually to other staff members about Wellington’s conduct.
During the investigation, allegations were made by several staff members about inappropriate sexual remarks made by Wellington, which he denied at the internal disciplinary hearing.
Wellington said the investigation was “very subjective and not evidence-based”, the tribunal report notes, adding that there was a lack of names, dates and times and there were no proper statements by people.
Wellington was dismissed in November 2022 for “gross misconduct” due to the allegations of sexual misconduct.
He appealed the decision by letter in December 2022, with the report saying: “He considered that the basis of the investigation meeting and investigation form was grossly flawed and unjust; there was a lack of supporting evidence of the allegations of sexual misconduct and failure to comply with the Acas code.”
At an appeal hearing against his dismissal, Wellington raised concerns about the role of racial stereotypes in the charity’s decision to terminate his employment.
The judgment says the appeal manager, Lesley Henderson, did not agree that there was any racial bias or discrimination and focused on the sexual misconduct allegations, concluding the dismissal was the correct outcome.
The tribunal found Aitken to be an “unreliable witness”, who had “candidly accepted that she had difficulty remembering what had happened during the investigation process”.
The judgment says: “The tribunal considered the way in which the investigation form was completed was not within the range of reasonable responses.
“A reasonable employer would, in the tribunal’s view, have ensured the investigation form recorded all the people who were interviewed, when that happened and what was said.”
The tribunal also said it had the impression that the decision to dismiss Wellington was predetermined and that the appeal hearing was a “rubber-stamping exercise”.
It concluded that the charity had acted unreasonably in treating Wellington’s conduct as sufficient reason to dismiss him.
But the tribunal dismissed Wellington’s claim of racial discrimination.
Wellington claimed Aitken’s judgement of him was “preconceived as ‘lazy’ as having ‘underlying anger’ and was based on perceived racial stereotypes”, due to him being African Caribbean.
The tribunal said it considered that Aitken lacked experience in carrying out investigations and “would have carried out the investigation in the way that she did regardless of the claimant’s race”.
As a remedy for Wellington’s unfair dismissal, the charity has been asked to pay him £19,014, which includes a basic and compensatory award.
Wellington also sought a future loss award on the basis that he was unable to work due to stress and depression caused by the discrimination he had experienced during the investigation, but the tribunal denied this after finding he had not been directly discriminated against.
The Simon Community has not responded to Third Sector’s request for comment.