A council employee struggling with grief and depression was unfairly reprimanded over a photo of a colleague with an adult toy, a tribunal has found. The Leicester City Council worker should not have been formally disciplined for a photo of a co-worker with a sex toy stuck to his head, the tribunal has ruled.
Employment Judge Richard Adkinson said the worker in the photo – who was wearing council-branded clothing and lanyard and was pictured on council property – was dealt with informally by the council, in contrast to John Gibbin, who had received the photo by email.
The photo was discovered on Mr Gibbin’s computer along with other items. These were used in a disciplinary action against him, after managers in the council ’s housing department launched a ‘disproportionate’ investigation into the contents of his work PC, Leicestershire Live has reports.
Mr Gibbin, who worked for the council as a technician carrying out large repair projects on the authority’s properties, made five claims of discrimination arising from a disability relating to eight alleged incidents. He also made three allegations of failure to make reasonable adjustments. Judge Adkinson said the evidence showed a ‘lack of sensitivity and support in the council’ and found a number of the claims to be ‘well founded’, including that Ian Craig – then Head of Service (Housing) – had told Mr Gibbin to ‘buck his ideas up’ and ‘needed a good kick up the a**e’.
The tribunal panel led by Judge Adkinson also ruled the council’s actions in requesting an interception report into Mr Gibbin’s computer, inviting Mr Gibbin to investigatory meetings and issuing him with a formal warning for his attendance, were discriminatory. The tribunal, held in February and August this year, heard Mr Gibbin had a history of depression prior to the death of a close relative in May 2019. While signed off work for depression in June 2019, Mr Gibbin was given permission by the Director of Housing to use his work computer at the end of the day to transfer files and apply for another council role.
Repairs manager Aidy Farmer and Mr Craig instructed the council’s corporate investigation team to find out what Mr Gibbin had been doing on the computer. The team found nothing of note, but carried out another investigation a month later, this time uncovering a number of items deemed inappropriate by the council, including the photo of Mr Gibbin’s colleague, Ricky Riley, with the 12" sex toy attached to his forehead.
The tribunal judgment said: “The photograph clearly shows Mr Riley is stood in a Leicester City Council office. He is wearing a Leicester City Council fleece – it has Leicester City Council’s logo on it and the words 'Leicester City Council' written on it. He is wearing a lanyard that shows he works for Leicester City Council. He is stood upright in the photograph with what appears to be a 12-inch long dildo stuck to his head.”
Other images that Mr Gibbin had saved included a photo of four runners dressed as postboxes with the title 'Royal Mail of Islam', a picture of a van with the words 'Keith Vass (sic) is a kn*b' painted on it – believed to refer to former Leicester East MP Keith Vaz – and a picture of two snowmen 'apparently having sex'. Mr Gibbin said the postbox photo was 'neither racist nor offensive' and compared it to a controversial article written by Boris Johnson in The Daily Telegraph likening women who wear burkas to letter boxes.
Regarding the image of the snowmen, Mr Gibbin claimed it did not necessarily show them having sex, but Judge Adkinson said, "we think to suggest otherwise is naïve". Mr Gibbin was then subject to a disciplinary hearing in March 2020 before being given a final written warning for a year. The tribunal noted no formal action was taken against Mr Riley and felt this was important ‘when evaluating council’s actions towards Mr Gibbin’.
Judge Adkinson said: “The city council made a lot of the potential reputational damage if the pictures had been released to a third party e.g. the local newspaper. The most striking photo however is that of Mr Riley with a dildo on his forehead. It is easy to see how the city council might be perceived if it were revealed that its employees were posing for such photos while at work. It is therefore telling that Mr Riley was dealt with informally.
“We accept there are other documents and images. They have to be weighed against Mr Gibbin’s illness and the effect of procedures on him. We do not believe [a] reasonable person would conclude the other documents are so bad that only formal action is appropriate.”
The tribunal panel found some of the council’s witnesses to be ‘unreliable’, while labelling the evidence of others as ‘vague’, and blasted the authority’s HR team saying they ‘failed to perform to a reasonable standard’. A Leicester City Council spokesperson said: “We are very disappointed in this judgment. However we have only very recently received a copy of it, and will need time to consider it.
"We might decide to appeal and it would not therefore be appropriate to comment any further at this stage.” A remedy hearing will be held separately. This will discuss the amount of compensation that should be awarded.
