Mr Anthony Myles v Enterprise Rent A Car UK Ltd — 2021

Mr Myles had worked for the respondent or its predecessor since 7 January 2008 and transferred on 1 January 2020 as a Mobile Heavy Goods Vehicle Technician. In January 2021 he received a positive appraisal. On 1 April 2021, while attending a National Trust property to service a leased minibus, he told the customer that the appointment confusion was not surprising because there was "a female Eastern European woman in the office and she's always making mistakes." The customer complained, and at the investigation meeting on 19 April 2021 Mr Myles apologised for offending the customer and offered to apologise in person.

The tribunal rejected the respondent's argument that only substantive unfair dismissal had been pleaded and held that it could consider procedural fairness under s.98(4) ERA 1996. It accepted that the respondent honestly believed misconduct had occurred, but found that there were not reasonable grounds for believing that Mr Myles was hostile or discriminatory towards Eastern European women or colleagues. The disciplinary invite referred to derogatory and discriminatory language, but did not put a charge of hostility or discrimination to him, and he was not asked whether he held discriminatory views. The tribunal also noted the lack of supporting evidence, the absence of prior complaints, and the positive appraisal shortly before the incident.

The tribunal held that the dismissal was unfair. It relied on the Burchell guidance in finding that the respondent had not carried out a reasonable investigation and had not dealt fairly with the real allegation it relied on. On remedy, the tribunal said it would not apply a Polkey deduction because the available evidence did not suggest that a fuller investigation would have uncovered evidence justifying a fair dismissal. It did, however, find that Mr Myles' conduct was inappropriate and amounted to minor misconduct, so a 15% deduction for contributory conduct was appropriate. The appeal against dismissal was not upheld.