Miss. T. Hand, Counsel v Respondent — 2019

The claimant, Mr L. Marana, was a Band 6 theatre practitioner at University Hospitals Coventry & Warwickshire NHS Trust. The tribunal recorded that a holiday pay claim had already been withdrawn and determined the remaining complaints arising from the respondent's dismissal decision. It found that the theatre team had a close social culture in which staff sometimes hugged or kissed on the cheek, including the Filipino custom of beso beso, but it accepted the respondent's case that the claimant's conduct towards EB went beyond that greeting culture.

On the race discrimination claims, the tribunal accepted that the claimant was of Filipino origin but held that he was dismissed because the respondent believed he had behaved in an inappropriate and unwanted way towards EB, not because of race or national origin. It rejected the direct discrimination claim on the basis that the allegation was misconduct, not Filipino custom or friendliness, and found that a comparator accused of the same conduct would likely have been treated the same way. The indirect discrimination claim also failed because the tribunal did not accept that there was a PCP requiring staff not to greet each other with physical contact; in any event, it found no particular disadvantage to Filipino staff because the claimant was not disciplined for beso beso but for conduct the tribunal regarded as going beyond it.

In the unfair dismissal claim, the tribunal applied the Burchell approach and the band of reasonable responses. It found that the respondent had a genuine belief in misconduct, reasonable grounds for that belief, and a reasonable investigation overall. The tribunal noted that the claimant was interviewed, the allegations were put to him, he was given a disciplinary hearing and an appeal, and his arguments about lack of suspension, notice, delay, and the NMC referral did not make the process unfair. It also accepted the appeal officer considered the claimant's grounds and rejected the suggestion that the appeal had been predetermined.

For wrongful dismissal, the tribunal held that the claimant's conduct amounted to repudiatory breach and gross misconduct, so the respondent was entitled to dismiss summarily without notice. As all remaining claims failed, the tribunal dismissed the case in full and made no monetary award.