Mr D Jones v Costco Retail Limited — 2021

Mr Jones worked for Costco Retail Limited from 7 August 1995 until his dismissal on 10 January 2020 from his role as forklift truck driver/merchandiser. The tribunal found that he was disabled at the relevant time by reason of depression and anxiety, which the respondent knew about. The case arose from an incident on 12 December 2019 when he sought time off to attend a police interview on 27 December 2019, became upset when told he would need to arrange a shift swap, and shouted, swore and walked away from his supervisor, Ms Maher.

On unfair dismissal, the tribunal accepted that the principal reason for dismissal was conduct and that this was a potentially fair reason under s.98 ERA 1996. It found that the investigation by Ms McInerney was reasonable, that Mr Rafferty genuinely believed Mr Jones had behaved aggressively and intimidatingly on reasonable grounds, and that summary dismissal for gross misconduct fell within the range of reasonable responses. The tribunal also held that the suspension, investigation, disciplinary hearing and appeal were procedurally fair. It said that, even if the dismissal had been procedurally unfair, dismissal would likely have followed within no more than three months.

The direct discrimination claim failed because Mr Jones did not establish that he had been treated less favourably because of disability, and he did not identify a comparator showing different treatment in materially similar circumstances. The tribunal found that the disciplinary action and dismissal were taken because of his behaviour and its effect on colleagues, not because of disability itself. The discrimination arising from disability claim also failed: the tribunal accepted that the conduct in question arose in consequence of his depression and anxiety, but held that the respondent's disciplinary process and dismissal were proportionate means of achieving the legitimate aim of maintaining a safe workplace. No monetary award was made.