Mr G Hardy v Topps Tiles plc — 2021

The claimant was a store manager with a long history of depression. The case arose from an altercation on 14 November 2019 with a customer at the Sunderland store. The tribunal found that the customer was the aggressor, that the claimant only used foul language at the end of the incident when telling the customer to leave, and that the tea was spilled accidentally rather than thrown deliberately. The claimant's two colleagues broadly corroborated his account, but the respondent suspended him and dismissed him for gross misconduct.

The tribunal accepted that the claimant's depression was a long-term mental impairment with more than a minor or trivial effect on day-to-day activities. It relied on the medical history, the claimant's coping strategies, and the respondent's knowledge from the 2016 Record of Concern and the October 2019 meeting when he broke down in tears. Applying section 15 Equality Act 2010, the tribunal held that the dismissal was unfavourable treatment because of something arising in consequence of disability, namely the claimant's difficulty managing anger in response to a trigger such as an argument with a customer. It rejected proportionality because the respondent did not meaningfully consider alternatives to dismissal, did not investigate the claimant's health evidence, and did not properly test the customer's account.

On unfair dismissal, the tribunal applied section 98(4) Employment Rights Act 1996 and the Burchell guidance. It found that the investigation was not reasonable or balanced, that the respondent accepted the customer's version without adequate scrutiny, and that it ignored contradictions in the evidence and the mitigation raised by the claimant, including the customer's own behaviour. The tribunal held that no reasonable employer would have dismissed for gross misconduct on the material before the respondent, and it found no contributory conduct. The section 10 Employment Relations Act 1999 complaint failed because there was no evidence that the claimant's companion was unable to participate at the appeal hearing. A remedy hearing was to be listed, so no compensation was determined in this judgment.