MR G HOWES v Network Rail Infrastructure Limited — 2020

The claimant was dismissed for gross misconduct after the respondent found that he had bullied and harassed another employee, H, by using derogatory language, criticising his work, and threatening his job. The background included earlier grievance proceedings by H, an employment tribunal claim by H that settled, and an external barrister's investigation into H's allegations. The disciplinary process ultimately did not uphold the race and religious harassment allegations against the claimant, but upheld four bullying allegations and treated them as gross misconduct.

The tribunal accepted that it was within the range of reasonable responses for the respondent to appoint an external investigator and to begin a disciplinary investigation after that report. However, it found that the respondent did not then carry out a reasonable investigation or analysis of the evidence. In particular, the respondent accepted the external investigation's conclusions in full at investigation stage, did not adequately test discrepancies between H's allegations and contemporaneous text messages, did not ask H material questions about safety incidents or the context of the language used, and unreasonably discounted evidence that the claimant's shouting and swearing occurred in response to safety-related incidents.

The tribunal found that the disciplinary and appeal stages did not remedy those failings. It concluded that the respondent did not reasonably consider the available evidence, including evidence of a workplace culture of crude language, underreporting of safety incidents, H's own participation in similar language, and the claimant's lack of relevant training or management responsibility. The dismissal was therefore unfair.

On Polkey and contributory fault, the tribunal found that a fair process might have led to a disciplinary hearing, but not to dismissal on the evidence available. It also found no contributory fault warranting a reduction, given the accepted workplace practices around language and log-book marking and the treatment of comparable issues involving others. Remedy was left for a later hearing, with the claimant seeking reinstatement or re-engagement.