Mr Johns - counsel For the v Mr Small - counsel — 2020

The claimant, a social worker in Bristol City Council's Youth Offending Team, was dismissed with effect from 5 October 2018 for alleged gross misconduct after taking a police officer's phone from reception, failing to return it promptly, and not responding to emails asking about the missing phone. He brought claims of unfair dismissal, direct race discrimination, victimisation, and breach of contract. The tribunal accepted that he is of black Caribbean heritage, but found that the dismissal was because of misconduct, not race or any protected act.

On the facts, the tribunal found that the claimant took the phone believing it might be his, but that it was implausible that he did not immediately check it, particularly because it was password protected. When he realised it was not his phone, he did not return it to its original location; instead he placed it in another colleague's drop box. He then failed to respond to two emails asking who had taken the phone, and the tribunal found that he dishonestly attempted to shift blame to the contract cleaners. It held that the respondent carried out as much investigation as was reasonable, and that the delay in completing the internal process was not excessive.

Applying section 98 of the Employment Rights Act 1996 and the Burchell approach, the tribunal found that the respondent had a genuine belief in misconduct based on reasonable grounds after a reasonable enquiry. It held that dismissal was within the range of reasonable responses because the claimant held a position of considerable trust, the conduct risked damaging the team's relationship with the police, he had many opportunities to correct the matter, and he did not assist in identifying any other person who might have moved the phone or removed its simcard. The appeal did not alter that conclusion.

The direct race discrimination claim failed because the claimant did not show less favourable treatment. The tribunal found that the comparators relied on were not true comparators, and that there was no evidence that a hypothetical white comparator would have been treated differently. The victimisation claim also failed: although the claimant had made a protected act complaint in or about January 2018 concerning rota duties, the tribunal was not satisfied that the dismissal was because of that complaint. The breach of contract claim failed with the unfair dismissal claim, and all claims were dismissed.