in person For the v Respondent — 2023

The tribunal found that NSL Ltd dismissed Mr Son Kim Do for misconduct arising from the incident on 18 August 2021, when he admitted lashing out at a member of the public and knocking the person's phone to the ground after being filmed. It held that the decision-maker, Mr Uddin, honestly believed the misconduct had occurred, had reasonable grounds for that belief, and had carried out a reasonable investigation. Applying section 98(4) of the Employment Rights Act 1996 and the band of reasonable responses approach, the tribunal found dismissal to be a fair sanction. It also found no procedural defect in the appeal process.

Mr Do also relied on six allegations of race discrimination and harassment, based on his Vietnamese nationality and comments said to have been made between September 2020 and June 2021, including references to coronavirus, Bruce Lee, Kim Jong-un, "ching chong" and "hates the Chinese." The tribunal held that only the 10 June 2021 allegation was brought in time, but it was not proved: Mr Kinkela denied that the comment was made and the tribunal preferred the respondent's evidence. It rejected the suggestion that the incidents formed a continuing course of conduct.

The earlier allegations were found to be out of time, and the tribunal refused to extend time on a just and equitable basis. It said the claimant had not given a good reason for the delay, had previously raised race concerns and could have sought advice, including from his union, and the respondent would be prejudiced by stale, fact-specific allegations involving witnesses who were no longer employed. Because the allegations were not proved and did not establish direct discrimination or harassment, all race discrimination and harassment claims were dismissed.