Ms S Dervin (Counsel) For the v Respondent — 2020

The claimant worked for the respondent from 1 June 2015 to 20 August 2020 and was a production team manager at dismissal. He was an active GMB representative. The case arose from the canteen incident on 5 June 2020 with Daveidas Susinka. The tribunal found that Susinka's use of the word 'gangster' was related to race and constituted unwanted conduct that created a hostile environment; it did not accept that the words 'nobody' or 'no one' were race-related. The tribunal also found that the claimant reacted angrily and made comments that could reasonably be understood as threats of violence, which formed the basis of the disciplinary case.

On unfair dismissal, the tribunal accepted gross misconduct as the reason for dismissal and found that the decision-maker, EP, reasonably concluded that the claimant had breached the disciplinary procedure by making threats of violence towards DS. It held that the initial investigation by AA was flawed because it became entangled with DS's grievance and the claimant was suspended before being spoken to, but those defects were later corrected. EP re-investigated the matter from the ground up, re-interviewed witnesses, considered the CCTV, gave the claimant the evidence in advance, and heard his case before deciding that dismissal was the appropriate sanction. The appeal, heard by TB, was also found to be fair.

The tribunal rejected the automatic unfair dismissal and trade union detriment claims. It found no evidence that the claimant's dismissal or appeal were motivated by his union membership or activities, and it did not accept the suggestion that industrial relations at the respondent were generally hostile. The tribunal also found no sufficient link between the alleged detriments and trade union activity, and it noted that the claimant did not consistently raise union activity as the real reason for the treatment complained of.

The harassment claim was partially upheld. The tribunal held that the 'gangster' comment was related to race, was unwanted, and had the effect of violating the claimant's dignity and creating an offensive environment. It rejected the respondent's reasonable steps defence because the respondent could not show that DS had completed the annual discrimination and harassment training, and it considered further training likely to have been effective. Time was extended as just and equitable under s.123 Equality Act 2010 because the delay was short, the facts were already before the tribunal in the other claims, and the prejudice to the claimant outweighed the prejudice to the respondent. The unlawful deduction from wages claim was withdrawn. A remedy hearing was to be listed separately, so no monetary award was determined in this judgment.