AB v Respondent — 2021

The claimant was employed as a caretaker from 2 March 2013 until his dismissal with effect from 11 July 2019. The tribunal rejected the claimant's race harassment allegations arising from alleged remarks in 2016, 2017, 2018 and 2019, finding that most were not proved on the balance of probabilities. It accepted that SC probably used racially offensive words to Mr Bonnah on 19 November 2018, but held that the claimant was not in the course of his employment when the incident occurred and that the complaint was also very substantially out of time.

The unfair dismissal claim succeeded. The respondent said the dismissal was for conduct arising from alleged contact with SH and the claimant's display of a tattoo said to resemble a swastika. The tribunal found that Mr Shaw genuinely believed the claimant had committed the misconduct, but the investigation was not fair or thorough because SH and MB's accounts were not challenged or tested, the claimant was not given a proper chance to answer matters about his previous conduct, and Mr Shaw also relied on the claimant's behaviour in the disciplinary hearing. The tribunal held that dismissal was outside the band of reasonable responses. It did not make a Polkey deduction, but said any compensatory award should be reduced by 10% for contributory conduct because of the claimant's intimidating behaviour at the disciplinary hearing. Remedy was left to a later hearing on 1 July 2021.

The direct race discrimination claim was dismissed. The tribunal found no sufficient evidence to shift the burden of proof and did not accept SC as an appropriate comparator. It found that the claimant's suspension was taken in line with the respondent's policy on the basis of a reasonable belief, and that the actual reason for dismissal was the managers' view that the claimant was a bully and troublemaker, not race. The tribunal therefore concluded that the claimant had not shown that the suspension or dismissal was because of his nationality or race.