https://assets.publishing.service.gov.u ... 7_Full.pdf
Held at Ashford on 5 December 2017
Representation Claimant: In Person
Respondent: Mr D Summers, Non-Practicing
Employment Judge Kurrein
The Claimant’s claims are not well founded and are dismissed.
1 On 5 August 2017 the Claimant presented a claim alleging unfair dismissal and
a failure to pay holiday pay. On 14 September 2017 the Respondent presented
a Response contesting those claims.
2 In the course of the hearing the Claimant accepted that he had been paid all
the holiday pay to which he was entitled, so that claim must fail.
3 I heard the evidence of Mr K Culverhouse, Delivery Office Manager; and Mrs J
7 I also accepted that he did not receive any training in issues relating to diversity.
This was known to the Respondent. It is something the Respondent might well
consider appropriate to remedy and record in respect of all its other staff.
8 In the event, I concluded that these matters were not such as to call into
question the fairness of this dismissal because the standards of conduct
expected by the Respondent’s policies were no more than what common sense
would dictate to a reasonable person.
9 On 16 January 2017 one of the Claimant colleagues, a woman of minority
ethnic origin I refer to as “SS”, made a formal complaint that she had been the
subject of racial abuse by the Claimant, who had looked at her as she passed
him and said, “bud, bud, ding, ding1
10 SS also reported that she believed the Claimant to have behaved similarly to
her about a week previously but, because she was not sure of what she heard,
she had not raised it formally. She had been very upset and crying when she
reported this incident to three colleagues contemporaneously.
11 The Respondent appointed Ms Walsh to investigate this matter. She
interviewed SS, the Claimant and seven of their colleagues. Three of those
colleagues confirmed SS’s earlier report to them of the previous incident. One
colleague reported that the Claimant did mimic Scottish, Welsh, Irish and Asian
accents to make “jokes”. Another colleague’s evidence was that the Claimant
had confided in him concerning the latter incident and sought advice. That
colleague appeared surprised to learn that the Claimant had not admitted to
the conduct complained of.
12 The Claimant was sent copies of all the interviews and given the opportunity to
comment on them before Ms Walsh finalised her report. Ms Walsh concluded
that SS’s complaint should be upheld and the Claimant be the subject of
disciplinary proceedings for potential gross misconduct.
13 The Claimant was invited to a disciplinary hearing. He was provided with
copies of all the evidence the Respondent relied on and advised of his right to
be accompanied. When he attended that hearing on 5 April 2017, which was
conducted by Mr Culverhouse, he chose not to be accompanied.
14 In the course of that meeting the Claimant:-
14.1 Stated he could not recall either incident, and denied making the alleged
14.2 Said he would apologise to SS for prior statements to the effect that he
would not work with her, and would like mediation as SS “clearly had a
problem” with him.
14.3 Admitted that he made comments in a variety of accents which SS might
have heard, but they would not have been directed at her.1
This is racially offensive slang commonly used to refer to East Asians’ supposed lowly status as bus
14.4 Accepted he made racist comments and jokes, but was careful who he
made them to.
15 Mr Culverhouse adjourned that meeting to consider his decision. He concluded,
on the balance of probabilities, that he should accept the evidence of SS. He
took the view that the Claimant’s behaviour amounted to gross misconduct
under the Respondent’s policies. He had regard to the Claimant’s 11 years of
not entirely unblemished service and reached the decision that summary
dismissal was the appropriate sanction.
16 The decision was communicated to the Claimant at a decision meeting on 8
May 2017, which was the Claimant’s effective date of termination. The decision
was confirmed in writing and the Claimant was advised of his right of appeal.
17 The Claimant exercised that right in writing stating his grounds as the incident
not having been witnessed.
18 The Claimant was invited to and attended an appeal hearing with Mrs Forde on
30 May 2017. That took place as a full re-hearing. Mrs Forde also carried out
further investigations for herself of which the Claimant was informed and invited
19 I accepted Mrs Forde’s evidence that in the course of that hearing the Claimant
made similar assertions and admissions as he had in the original hearing. She
concluded that he had made the comments he was alleged to have made and
that this was so serious, even as a first offence, that dismissal was the
appropriate sanction. She dismissed the appeal.
20 I have had regard to the provisions of S.98 Employment Rights Act 1996 and
the following authorities:-
British Home Stores Ltd v. Burchell  IRLR 379
Iceland Frozen Foods v. Jones  IRLR 439
Sainsbury’s Supermarkets Ltd v. Hitt  IRLR 23
Taylor v OCS Group Ltd.  IRLR 163
Newbound v. Thames Water Utilities Ltd  IRLR 734
21 I was satisfied that Ms Walsh’s investigation was entirely reasonable in its
nature and extent. No complaint has been made to the contrary.
22 The hearing were conduct fairly and reasonably. The ACAS Code of Conduct
has been complied with. The Claimant has accepted in evidence that he was
given every opportunity to raise matters he wished to in the course of these
hearings. He has not complained of the manner in which either was conducted.
23 Both Mr Culverhouse and Mrs Forde were patently honest in reaching their
respective conclusions that the Claimant had made these remarks. This was
not challenged. There were ample grounds for them to do so.
24 The sanction of dismissal for conduct of this nature falls squarely within the
band of reasonable responses open to an employer in circumstances such as
25 I did not consider an award of costs to be appropriate. Like EJ Hall-Smith, who
refused to hear an application to strike out because the matter depended on
the evidence, I do not consider the Claimant’s case to have had no reasonable
prospect of success. His conduct of it has not been unreasonable.
Employment Judge Kurrein
5 December 2017