Ms R Omar (Counsel) For the v Respondent — 2022

The claimant was employed as an engineer from 23 April 2010 until his dismissal on 5 July 2019 after a 15 June 2019 incident in which photographs showed him on a ladder without the safety precautions required by the respondent’s ladder safety policies. He alleged earlier race discrimination by Justin Obee, including bullying and a 2018 remark that he was "stupid", and alleged that Tim Swift’s decision to place him on the ACE performance plan in February 2019 was discriminatory. The tribunal accepted that he was of West Indian ethnicity, but found that the training records and site audits showed he knew the ladder safety requirements and that he accepted he had not followed them on the day in question.

On the alleged bullying and the 2018 comment, the tribunal preferred the respondent’s evidence. It found that Mr Obee may have been abrasive to people generally, including white colleagues, but that the claimant had not shown he was targeted because of race. It also found that the ACE plan was triggered by sales figures below the respondent’s threshold, lasted two weeks, and was not a decision taken by Mr Swift against the claimant personally. The tribunal held that the bullying, comment and ACE plan allegations were out of time and declined to extend time for them.

The tribunal extended time only for the dismissal allegation in the discrimination claim, because the ET1 was eight days late and the delay was explained by technical issues. Even so, it found the dismissal was not because of race. The comparators relied on by the claimant were not sufficiently similar, one comparator had resigned, and the respondent’s decision-making table showed that dismissals and lesser sanctions were applied according to the seriousness of the health and safety breach rather than race.

On unfair dismissal, the tribunal found the claim was out of time and that it was reasonably practicable to present it earlier. If that point was wrong, it would still have found the dismissal fair. The respondent carried out a reasonable investigation, gave the claimant an opportunity to respond, followed a reasonable procedure, and Mr Smith’s decision to dismiss for gross misconduct was within the range of reasonable responses. The appeal, conducted by Mr Gard, was also found to be reasonable despite not interviewing one suggested witness and not checking the addresses the claimant gave about work for Mr Swift’s friends, because those matters were peripheral to the reason for dismissal.