In person For the v Ms C Lord – Counsel — 2021

The tribunal heard claims of direct race discrimination and automatically unfair dismissal. It found that the claimant, a multi skilled engineer at Chelsea and Westminster Hospital, had not established either claim and dismissed both. The tribunal accepted that the claimant was dismissed on 17 July 2020 after a disciplinary process and appeal, but it found that the reason was gross misconduct rather than race or protected health and safety activity.

On the race discrimination claim, the tribunal rejected the claimant's case that a series of incidents between July 2019 and July 2020 were because of his race. It found that the tumble dryer and step-ladder incidents led other employees to say they felt threatened because of the claimant's behaviour, not because of his race. It also found that the October 2019 disciplinary action followed two incidents of alleged threatening behaviour, that the HR comment about his raised voice was made in a supportive HR capacity, and that the May 2020 time-sheet investigation was prompted by a discrepancy in the records rather than race. The tribunal further held that the 14 July 2020 suspension and disciplinary process were based on the claimant's conduct at work and on health and safety concerns at a hospital during the pandemic.

The tribunal accepted the respondent's evidence about the events of 14 July 2020, including the claimant's shouting in the office, his behaviour towards Ms Hood, and the incident on the dermatology ward in front of a lead nurse and a contractor. It found that the perception that he was aggressive was reasonable on the evidence from multiple witnesses, and that the health and safety concerns were genuine. The tribunal also noted that the respondent's workforce and disciplinary statistics did not support an inference of race discrimination, and it held that the burden of proof did not shift to the respondent. Because all discrimination allegations failed, it did not need to determine the time-limit issue.

On the dismissal claim, the tribunal held that the claimant had not been dismissed because he refused to work in a red Covid-positive zone. It found that the alleged refusal said to have occurred in April or May 2020 was not proved, and that the relevant discussion was instead a 6 July 2020 meeting about the Ron Johnson ward, after which the claimant completed the BAME risk assessment and was told he did not have to work in a red zone. The tribunal found that the actual reason for dismissal was gross misconduct arising from the 14 July 2020 incident and the claimant's failure to comply with health and safety procedures. It also upheld the dismissal on appeal.