Mr S Rathod v Pendragon Sabre Limited Heard: at Nottingham (Hybrid CVP) — 2021

The claimant, Mr S Rathod, was employed as a car sales executive by Pendragon Sabre Limited from 12 March 2018. The tribunal found that the sales team culture at the Porsche dealership was "laddish", crude and immature, and that it included misogynistic, racist and homophobic comments and behaviour. It found that Mr Rathod, who described himself as British Asian and became the only non-white member of the sales team, was subjected to racial harassment including repeated references such as "Chapati and Poppadum" and other incidents, while also participating in some of the team conduct in an attempt to fit in.

After the first lockdown, Mr Rathod created a closed WhatsApp group for the sales team. The tribunal found that the messages exchanged in that group and in 1:1 exchanges continued the same tone as the workplace culture. In September 2020 Mr Rathod raised a grievance alleging racial harassment and related treatment. Ms Nix investigated and partially upheld the grievance, accepting a number of the serious allegations. During that process, screenshots from O were disclosed showing messages sent by Mr Rathod, including sexual, racist and other crude content, and the respondent then investigated Mr Rathod himself. Mr Rathod accepted sending the messages and said he was trying to be accepted within the team culture.

The respondent disciplined and summarily dismissed Mr Rathod on 30 December 2020 for racial and sexual harassment toward O, and the appeal was dismissed. The tribunal accepted that the factual reason for dismissal was that alleged harassment, but held that there was no reasonable basis for concluding that Mr Rathod had harassed O: there was no evidence of intent or effect on O, the wider context of the grievance and the workplace culture was not properly investigated or taken into account, and the employer's asserted "zero tolerance" approach was not borne out by its treatment of the rest of the sales team. It also held that the messages were exchanged in a closed setting, many were 1:1, and the employer had no policy material setting clearer boundaries for this kind of private conduct.

The unfair dismissal claim therefore succeeded, although the tribunal found Mr Rathod's conduct was blameworthy and contributed to the dismissal. For remedy purposes it applied a 50% reduction for contributory conduct, set a 25% chance that a fair dismissal might still have occurred under a Polkey analysis, and said the unfair dismissal compensation would be 50% of the basic award and 37.5% of the compensatory award, to be assessed later if not agreed. The breach of contract claim also succeeded because the conduct did not justify summary dismissal in the circumstances. The claim for accrued but untaken holiday was withdrawn and dismissed upon withdrawal.