Mr A Brown v Grove F & B Limited — 2020

Mr A Brown was employed by Grove F & B Limited as a maintenance assistant from 11 September 2017 until his dismissal without notice on 13 September 2019. The dismissal arose from an incident on 27 August 2019 in staff accommodation, where the tribunal found he had used racist, sexist and other abusive language towards colleagues. The claimant accepted that the words in the recordings were his, but argued that the recordings were selective, that earlier disputes with Magda Ascinte and Jan Zelman provided context, and that his mental health should have been taken into account.

The tribunal accepted that the respondent was entitled to rely on the three recordings made by Magda Ascinte. It found the claimant knew he was being recorded in some way, that the recordings were highly relevant evidence of serious misconduct, and that they were not unlawfully obtained by the respondent. The tribunal also found that the respondent investigated the matter reasonably, including interviewing relevant witnesses, following up the claimant's account of earlier events, considering his mitigation, and addressing the grievance and appeal issues he raised, including the NEST and Wagestream points.

Applying section 98 of the Employment Rights Act 1996 and the Burchell approach, the tribunal held that the respondent had a genuine belief on reasonable grounds after a reasonable investigation that gross misconduct had occurred. It found that any departures from the respondent's non-contractual disciplinary policy did not cause substantive unfairness and that dismissal fell within the band of reasonable responses. The unfair dismissal claim was therefore dismissed, and the tribunal also recorded that the respondent did not breach the claimant's contract as claimed. It added that, even if the dismissal had been unfair, it would have reduced any basic and compensatory awards by 100% because the claimant's conduct caused the dismissal.