Dock Worker Subjected to Homophobic Abuse Wins Dismissal Claim

A dock worker who was summarily dismissed for gross misconduct following an alleged incident involving him and a fellow worker has been awarded a total of £45,000 in compensation for unfair dismissal and harassment on the grounds of sexual orientation (Sheil v Stena Line Irish Sea Ferries Limited).



Martin Sheil was employed by Stena Line Irish Sea Ferries Limited as a port operative at its operation in Belfast. Following an alleged incident at work on 2 November 2012, a fellow operative, William Gilmore, was advised by a senior manager, Mr Hillis, to report the matter officially, which he did, alleging that Mr Sheil had assaulted him in his lorry cab. Mr Sheil, who denied hitting Mr Gilmore, was suspended on full pay whilst the matter was investigated. The initial investigatory meeting was cut short, however, and never reconvened.



Mr Sheil raised a formal grievance in respect of the conduct of the investigatory process but the matter proceeded to a full disciplinary hearing before the points he raised had been considered. At the disciplinary hearing, Mr Sheil complained that Mr Gilmore had made homophobic comments about him over a period of time, including in the works minibus on the day before the 2 November incident. He named possible witnesses to the derogatory remarks about his sexuality, but they were not approached at the time. Following an investigation into his grievances, he was criticised for taking matters into his own hands rather than using the proper channels to complain about the alleged verbal abuse. He was informed that his complaints had not been upheld and was dismissed for gross misconduct for the offence of assault.



Mr Sheil appealed, claiming that Mr Gilmore had been making snide remarks about his sexuality for eighteen months or more and he had confronted him because he wished to clear the air. Following his complaint that the individuals he had named as witnessing the comments made by Mr Gilmore on the minibus had not been approached, they were interviewed, but the company’s decision to dismiss Mr Sheil was upheld.



The Employment Tribunal (ET) prefaced its conclusions with a reminder that its role was not to decide what actually occurred on 2 November 2012 but to determine whether the ferry company had carried out a reasonable investigation and, having done so, had a genuine and reasonable belief in Mr Sheil’s alleged misconduct.



In the ET’s view, the disciplinary process was flawed. Not only had the ferry company focused solely on the events of 2 November, without investigating fully Mr Sheil’s allegations of homophobic abuse and whether these constituted mitigating circumstances, but the whole process was undermined by one serious flaw – namely that the appeal hearing had been conducted by Mr Hillis, who was involved at an earlier stage of the process and had also been instrumental in encouraging Mr Gilmore to raise a complaint. The ET found that the flaws in the investigation and disciplinary procedure rendered Mr Sheil’s dismissal substantively unfair. However, the compensation award was reduced by 20 per cent to reflect the ET’s finding that it would have been possible for him to have been fairly dismissed. In addition, with regard to contributory behaviour, whilst acknowledging that it would have been difficult for Mr Sheil to raise the issue without ‘outing’ himself, a further 10 per cent reduction was made because he had confronted Mr Gilmore himself rather than reporting his complaints to management.



Furthermore, the ET found that the evidence ‘pointed to a culture of unacceptable banter and homophobic banter’ and Stena had adopted ‘a far too passive approach’ to the situation. In its view, the evidence showed that Mr Sheil had been subjected to behaviour that constituted harassment on the grounds of sexual orientation.



The compensation awarded was made up of £37,500 for unfair dismissal and £7,500 for harassment. However, Stena has indicated its intention to appeal the ET’s decision.