Mr Simon Harper v Brighton and Hove Albion Football Club — 2024

Mr Simon Harper worked part-time on Fridays for Brighton Football Club Academy and was dismissed after allegations that he used an offensive racial term when speaking to Nathan Marshall on 30 September 2022. The tribunal reviewed the contemporaneous emails, investigation notes, disciplinary hearing and appeal evidence, including later disputes about where the claimant, Mr Marshall and the scholar were positioned in the open-plan area.

The tribunal found several defects in the respondent's process. Chris Crowe's investigation report contained no analysis of the evidence, his contemporaneous notes were not disclosed to the claimant, and his evidence at the appeal hearing about taking notes was inconsistent with his later evidence before the tribunal. The tribunal was also troubled that Mr Mullen treated the claimant's lack of emotion as relevant and did not consider a lesser sanction, and that the appeal decision relied on assumptions about voice projection and an incomplete experiment rather than a proper factual basis for where people were standing.

On the facts, the tribunal preferred the claimant's evidence and found on the balance of probabilities that he did not use the offensive word. It held that the dismissal was therefore unfair and that the wrongful dismissal claim succeeded because the claimant was not shown to have committed gross misconduct or breached the contract. The tribunal rejected contributory fault, but said that if compensation were later assessed the compensatory award would be reduced by 50% to reflect the possibility that a different employer might still have reached dismissal on the same evidence. Remedy was adjourned by consent, so no final monetary award is quantified in this judgment.