Mr S A Khamis v Gibbs Transport Limited — 2021

The claimant, Mr S A Khamis, withdrew his complaints of direct race discrimination and race-related harassment. The tribunal therefore made no merits findings on those claims. It did, however, uphold his claims for wrongful dismissal and unfair dismissal, and dismissed his claims for victimisation and detriment because of making a protected disclosure. A remedy hearing was listed for 26 November 2021, so this judgment does not record any monetary award.

The tribunal accepted that on 30 March 2020 the claimant reported to the company secretary that his colleague, Mr Lloyd John, had attended work under the influence of alcohol. It found that this was a protected disclosure. The tribunal also accepted the claimant's account of the later confrontation with Mr John, preferred his evidence over Mr John's, and found that the claimant was acting in self-defence and feared an attack by Mr John and his dog. It did not accept that the claimant had made earlier, sufficiently specific protected disclosures beyond the 30 March report, and it found no clear protected act before the appeal letter for the victimisation claim.

On wrongful dismissal, the tribunal held that the respondent was not entitled to summarily dismiss the claimant for gross misconduct. It found that the claimant's conduct during the incident did not amount to a repudiatory breach of contract. On unfair dismissal, the tribunal applied section 98 ERA 1996, the Burchell principles, and the Iceland Frozen Foods band of reasonable responses. It found the investigation inadequate because there was no investigation meeting with the claimant, his account was not put to Mr John or Mr Gibbs, and Mr John's statement was not disclosed to the claimant until the appeal stage.

The tribunal also found the disciplinary and appeal process unfair in several respects. Mrs Vinciguerra carried out both the investigation and the disciplinary hearing, interrupted the claimant during the hearing, and prevented him from raising points about Mr John's conduct. The tribunal found the appeal process unfair because the claimant misunderstood how to join the meeting, had indicated that he was not good with technology, had sought translation support, and the respondent did not rearrange the appeal after his absence became clear. The tribunal recorded failures against the ACAS Code of Practice 1 paragraph 6, but did not assess compensation in this judgment.