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Employee who simulated sex act ‘was unfairly dismissed’

A training officer who simulated a sex act in the workplace has been awarded £14,870 compensation after an Employment Tribunal ruled that he had been unfairly dismissed 

The officer, Mr Robert Cuthbertson, trained engineering apprentices at a plant owned by Siemens plc.

The tribunal was told that strong language with sexual connotations was commonplace in the workplace and there were photographs of nude women on display in certain areas.

On one occasion, a parcel containing a sex toy meant for one of the occupational health advisers arrived without an address. Mr Cuthbertson lowered his trousers and simulated a sex act.

Despite his 39 years' service with the company, he was dismissed for gross misconduct. The company said he had crossed a line between workplace banter and behaviour that was unacceptable.

The Employment Tribunal ruled that the dismissal was unfair.

Employment Judge Garnon said Mr Cuthbertson's behaviour was no different to the kind of behaviour that the company had tolerated from him and others for several years. The difference was that on this occasion, the managing director had got to hear about it and junior managers felt that he would want "heads to roll," even though there was no evidence that he did.

Not enough account had been taken of the fact that Mr Cuthbertson had admitted his actions immediately and described them as silly and childish.

Judge Garnon said: "I find the decision to dismiss is one which no reasonable employer could have taken and was well outside the band of reasonable responses. It follows I find the conduct in which the claimant (Mr Cuthbertson) engaged comes nowhere close to satisfying the definition of gross misconduct.

"The dismissal is therefore both wrongful and unfair."

For further advice on any of the issues raised in this article, or for employment law advice more generally, please contact JPP Law on 020 3468 3064 or email info@jpplaw.co.uk

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