In person For the v Respondent — 2019

The claimant worked as a warehouse operative at the respondent's Brackmills distribution centre from 14 June 2010 until her dismissal on 30 November 2017 for gross misconduct following an altercation with Aaron Richards on 25 October 2017. The tribunal heard evidence from the claimant, her son Lajos Miko, Paul Dodridge and Adrian Baxter, and had a signed statement from Mr Richards but gave it less weight because he did not attend to give oral evidence. The claimant needed a Hungarian interpreter for the hearing, and the tribunal noted that she had struggled at times with the formal process.

On the harassment complaint arising from the 25 October 2017 incident, the tribunal found the claim was brought outside the primary time limit, but exercised its discretion to extend time on a just and equitable basis. It accepted that Mr Richards's conduct was unwanted and likely designed to wind the claimant up, but found no sufficient evidence that it was related to race or sex, so the harassment complaints failed.

On the direct discrimination complaints, the tribunal found that the claimant was treated less favourably in the investigatory and disciplinary process than employees in comparable situations. However, it held that the reason was Mr Morris's suspicion that she had engineered incidents to justify sickness absence around Christmas, not her race or sex. Those claims therefore failed even though the tribunal criticised the way the process was handled.

The unfair dismissal claim succeeded. The tribunal accepted conduct as the potentially fair reason for dismissal, but found the investigation was not fair or objective, Mr Morris had displayed suspicion and had effectively pre-judged the case, the claimant's concerns about Mr Richards were not properly investigated, and Mr Dodridge and Mr Baxter did not remedy those defects. It held that dismissal was outside the band of reasonable responses and that a Polkey reduction would not be appropriate. The tribunal did, however, find contributory fault because the claimant made unwanted physical contact during the incident and her WhatsApp conduct undermined her credibility, and it said the remedy hearing would consider a 20% uplift for the Acas Code failure and a 20% reduction for contributory fault.