In person For the v Respondent — 2022

The claimant, Mr Marlon Fraser, worked for the respondent as a maintenance manager from 15 October 2012 until his dismissal on 27 May 2021. The tribunal found that the dismissal arose from his admitted recording of a gym member in the changing room on or before 1 May 2021 and his sharing of that recording on the EQX Managers WhatsApp group. The respondent treated this as gross misconduct involving breaches of its Telephone Use Policy and Data Protection Policy, both of which prohibited recording conversations without consent and warned that disciplinary action up to dismissal could follow.

On the unfair dismissal claim, the tribunal accepted that the investigation by Mr Julien Delande was reasonable in the circumstances. The claimant admitted making and sharing the recording at the investigatory meeting and again at the disciplinary hearing, and the tribunal found that he did not raise any alleged consent from the member in those internal proceedings. Mr Martin Spies, who conducted the disciplinary hearing and made the dismissal decision, relied on the admitted misconduct, the claimant's managerial role, the member's reasonable expectation of privacy in the changing room, and the reputational and legal risks to the business. The tribunal found that Mr Spies had a genuine and reasonable belief in misconduct and that dismissal fell within the range of reasonable responses under s.98(4) ERA 1996 and the Burchell test.

On the race discrimination claim, the tribunal found that Mr Spies did not dismiss the claimant because of race. The claimant's case relied in part on a 2019 remark by Mr Delande in which he used the term 'half-caste'; the tribunal accepted Mr Delande's evidence that this was a misunderstanding of English usage, that he apologised immediately once the claimant explained the objection, and that the claimant accepted the apology at the time. The tribunal also found that the claimant had not shown facts from which discrimination could be inferred, and in any event the same outcome would not have been different because the dismissal decision was made by Mr Spies on the admitted misconduct. The claim for victimisation had been refused at case management stage and was not part of the issues decided at the final hearing.

The tribunal therefore dismissed both claims in full and recorded no monetary award. It also found that there was no pre-existing plan to replace the claimant with someone covering three gyms, and that the appeal process did not show that the outcome had been predetermined.