Mr Johnson v Trenitalia C2C Limited — 2023

Mr Johnson was employed by Trenitalia C2C Limited from 6 December 2018 as a customer service assistant at Tilbury Town station. The tribunal found that on 10 May 2022 a teenager was in the ticket office and at the barrier area, and CCTV from three cameras showed the claimant leave the ticket office and swipe with an open hand as if to slap the teenager, although no contact was made. After an investigation by Mr Qayyum, the claimant was suspended, then dismissed without notice on 22 August 2022 by Ms Hayter for gross misconduct. His appeal was heard by Mr Hendry on 8 September 2022 and the dismissal was upheld.

On the unfair dismissal claim, the tribunal accepted that the respondent genuinely believed the claimant had attempted to strike a teenage customer and that this conduct fell within examples in the disciplinary procedure of exceptionally grave misconduct, including assault or violent and threatening behaviour towards a customer, conduct endangering persons, and behaviour detracting from safe or efficient working. It held that the respondent had a reasonable basis for that belief from the CCTV footage, interviews with the claimant, Ms Jackson, Mr Smith and Mr Langley, and that the investigation was within the range of reasonable investigations. The tribunal also found that the disciplinary hearing, appeal and grievance handling complied with the ACAS Code, and concluded that dismissal was within the range of reasonable responses under s.98(4) ERA 1996.

On the direct race discrimination claim, the claimant alleged that Mr Smith and Mr Langley refused to take instructions on 10 May 2022 and that Mr Sullivan confronted him on 12 May 2022 and said he would make sure the claimant had been dealt with for reporting staff to management. The tribunal found that Mr Smith and Mr Langley were not the claimant's subordinates, that he did not ask them for help, and that they did not think he was in danger because the teenager was standing calmly on the other side of the barrier. It found there was a heated discussion with Mr Sullivan but no threatening behaviour, and that the bad feeling arose because the claimant wrongly believed he could tell Amulet staff where to stand and how to do their jobs. The tribunal concluded that the same response would have been given to a non-black African person, that there was no evidence of conscious or subconscious racial bias, and, in the alternative, that Mr Smith, Mr Langley and Mr Sullivan were not employees or agents of the respondent for the purposes of s.109 EqA 2010.