Mr C Burrell v Network Rail Infrastructure Limited — 2023

The Claimant, who had GAD and agoraphobia accepted as disabilities, was summarily dismissed after a disciplinary process concerning three alleged matters: an earlier incident for which he had received a final written warning, his behaviour in a back to work meeting, and emails sent to an appeal manager. The Tribunal accepted that conduct was the reason for dismissal, and that the Respondent had reasonable grounds for the first two allegations, but found it did not have reasonable grounds for treating the email allegation as aggressive or insulting.

On unfair dismissal, the Tribunal found the initial investigation was incomplete because the Claimant's account and the recipient's view of the emails had not been obtained. The appeal cured part of that defect by giving the Claimant a full opportunity to give his account, but did not cure the failure to obtain the email recipient's perspective. By majority, the Tribunal held that dismissal based on the first two allegations alone was outside the range of reasonable responses, because the back to work meeting behaviour had not been recognised as sufficiently serious by the two managers present until after the meeting.

The discrimination arising from disability claim failed. The Tribunal found the Claimant's sickness absence arose from disability, but that he was dismissed because of conduct and not because of sickness absence. It also found he did not have difficulty properly and fully engaging in the disciplinary process because of GAD; rather, he chose not to attend the disciplinary hearing because he considered the process flawed.

The harassment related to disability allegations were dismissed. The Tribunal found some alleged conduct did not occur, some conduct was unwanted but did not relate to disability, and some did not have the statutory purpose or effect. The Tribunal declined to draw wider inferences of discrimination from the procedural concerns, finding credible non-discriminatory explanations for the matters that had caused it initial concern.