Mr C Hughes v Virgin Active Limited — 2021

Mr C Hughes worked for Virgin Active from 2012 and moved to the Mayfair Club in January 2017. The case arose after he managed disciplinary and grievance issues involving other staff, including Ms Jannett George, Ms Roya Arasp and Mr Darrell Giovanni. The tribunal heard extensive evidence, including covert recordings of the disciplinary and appeal meetings, and concluded that the protected-disclosure, unfair dismissal and race discrimination issues were all bound up with the way the Respondent handled those procedures.

On the whistleblowing claim, the tribunal found that Mr Hughes made two qualifying disclosures: a report of threats and fear for his safety, including a police report, and a report that Mr Giovanni had admitted direct debit fraud. The tribunal found that the protected-disclosure issue influenced the disciplinary decision when Mr Armstrong and Ms Thomas reacted to learning that Mr Hughes had gone to the police, and that the dismissal decision then became inevitable. The tribunal therefore held that Mr Hughes was unfairly dismissed by reason of having made a protected disclosure.

The tribunal also upheld the separate unfair dismissal claim under s.98(4) ERA 1996. It found that the Respondent had not shown that the true principal reason for dismissal was conduct, and that the investigation, disciplinary hearing and appeal were unreasonable in the circumstances. The tribunal found that Ms Tysoe's decision to channel most of Mr Hughes's grievances into the disciplinary process rather than the grievance procedure was contrary to the Respondent's own policy, and that the handling of the later disciplinary process did not amount to a fair response to the allegations.

The age and sex discrimination claims were dismissed. The tribunal accepted that some age-related comments had been made, including a remark that Mr Hughes was a 'young gent out of his depth', but found no evidence that the treatment of his grievances, the disciplinary process or the dismissal was because of age. It also found no evidence that the different treatment complained of was because of sex, noting in particular that one of the claimants' own comparators, Mr Giovanni, was male.

The race discrimination claim succeeded. Applying the burden of proof provisions in s.136 Equality Act 2010, the tribunal found that the way Mr Hughes's grievances were diverted into the disciplinary process, the decision to keep Ms Thomas involved, the handling of the allegation that he made a racist comment to Ms Arasp, and the differing sanctions compared with other staff raised an inference of race discrimination. It held that the Respondent failed to prove that those matters were in no sense whatsoever because of race. Remedy was not determined in this judgment; the tribunal directed that a further hearing would be listed if the parties could not agree compensation for the upheld claims.