Dismissal for sexual assault upheld despite Asperger's syndrome defence
A Band 4 caterer with 14 years' service was fairly dismissed for pinching a colleague's bottom. The tribunal rejected his claim that his Asperger's syndrome caused the behaviour.
1 min read · Last updated 18 May 2026
Case details
- #sexual-assault
- #aspergers-syndrome
- #gross-misconduct
- #band-of-reasonable-responses
- #section-15-discrimination
Key facts
- The claimant admitted pinching a female colleague's bottom on 17 May 2019.
- The respondent dismissed the claimant for gross misconduct after a disciplinary hearing.
- The claimant has Asperger's syndrome, which he raised during the disciplinary process.
- The tribunal found the respondent's investigation and dismissal were within the band of reasonable responses.
- The tribunal dismissed the disability discrimination claim, finding no causal link between the claimant's autism and his conduct.
Timeline
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Index incident
The claimant pinched Ms X's bottom in the pot wash at HMP Huntercombe.
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Ms X emails manager
Ms X emailed Derek Edwards about the claimant's behaviour, indicating ongoing discomfort.
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Ms X reports to Neil Hankin
Ms X reported the claimant's behaviour to Neil Hankin, Head of Residents.
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Claimant spoken to by Mr Hankin
Neil Hankin spoke to the claimant about his behaviour and offered welfare support.
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Ms X discloses sexual assault
Ms X told Neil Hankin that the claimant had touched her vagina on 17 May.
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Claimant suspended
The claimant was suspended pending investigation into allegations of sexual assault.
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Claimant writes apology
The claimant wrote a letter of apology to Ms X, admitting he 'overstepped the line'.
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Investigation report submitted
Mandy Lee submitted her investigation report, recommending disciplinary action.
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Disciplinary hearing and dismissal
David Redhouse found the claimant guilty of gross misconduct and dismissed him.
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Appeal dismissed
Alison Clarke upheld the dismissal after an appeal hearing.
The legal issue
The tribunal had to decide whether the dismissal for gross misconduct (sexual assault) was fair under the Employment Rights Act 1996, and whether the employer discriminated against the claimant because of something arising from his disability (Asperger's syndrome) under the Equality Act 2010.
The outcome
The tribunal dismissed both claims.
- The unfair dismissal claim failed because the employer's investigation and decision to dismiss were within the band of reasonable responses. The employer had reasonable grounds to believe the claimant committed sexual assault, and dismissal was a proportionate sanction.
- The disability discrimination claim failed because the claimant did not show that his Asperger's syndrome caused him to lack understanding of personal boundaries or empathy. The tribunal found his apology letter demonstrated insight, and there was no evidence his autism contributed to the incident.
- No compensation was awarded.
Lessons & takeaways
- Employers can fairly dismiss for gross misconduct even if the employee has a disability, provided the conduct is not caused by the disability.
- A thorough investigation and fair disciplinary process are key to defending an unfair dismissal claim.
- Employees who admit misconduct should be aware that an apology may undermine a claim that their disability caused the behaviour.
- Disability discrimination claims under section 15 require a causal link between the disability and the 'something arising' – it is not enough to simply have a disability.
What this case shows
This case demonstrates that even a long-serving employee with a recognised disability can be fairly dismissed for misconduct if the employer follows a proper process. The claimant, a Band 4 caterer at HMP Huntercombe with 14 years' service, admitted pinching a female colleague's bottom. He later claimed his Asperger's syndrome meant he did not understand personal boundaries, but the tribunal found no evidence to support that link.
The employer suspended the claimant, conducted a full investigation, and held a disciplinary hearing before deciding to dismiss. The tribunal noted that the claimant's own apology letter showed he understood his actions were wrong, undermining his argument that his autism caused the behaviour.
What could have been done differently
The claimant might have avoided dismissal by engaging more fully with the disciplinary process and seeking reasonable adjustments, such as a support person or clearer explanations. However, the employer did offer welfare support and the claimant's wife represented him. The tribunal found the employer's actions were reasonable throughout.
Why this matters
This case reinforces that employers can rely on the 'band of reasonable responses' test in conduct dismissals. It also clarifies that a disability discrimination claim under section 15 of the Equality Act requires a direct causal link between the disability and the unfavourable treatment – simply having a disability is not enough. For employees, it highlights the importance of understanding that misconduct, even if linked to a disability, may still lead to dismissal if the employer acts reasonably.
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