In person For the v Mr M Noblett, Solicitor — 2019

The claimant was dismissed on 22 December 2017 for gross misconduct after CCTV and his own admissions showed that he had used a mobile phone while driving a bus on two occasions. His appeal on sanction only was dismissed by Mr Hutchings on 9 January 2018. An earlier unfair dismissal claim had been struck out at a preliminary hearing, so this hearing concerned only the Equality Act claims.

On race discrimination, the tribunal compared the claimant with Mr V Howett, a white colleague who had also used a mobile phone while driving but received a final caution. It found material differences between the cases: Mr Howett had over 40 years' service, a clean record, a single incident, and showed remorse, whereas the claimant had short service, admitted two incidents, and the tribunal accepted Mr O'Connor's evidence that he had shown no remorse or insight. The tribunal held that the burden of proof shifted but that the respondent had given a non-racial explanation, and it found that race played no part in the dismissal.

On victimisation, the tribunal accepted that an email sent on 12 December 2017 referring to 'racism/prejudices' was capable of amounting to a protected act. However, that email was sent on the same day as the first disciplinary invitation and therefore could not have triggered the disciplinary process, and the tribunal accepted Mr O'Connor's evidence that he was unaware of its detail when he made the dismissal decision. It found that the protected act played no part in the dismissal or in the appeal rejection.

On disability discrimination, the tribunal found that the claimant's left-hand injury of 26 December 2016 amounted to a disability within section 6 of the Equality Act 2010 at the material time. It also found that his restricted duties in late 2017 were something arising in consequence of that disability. However, it rejected the claimant's case that he was dismissed because he was on restricted duties, holding instead that the reason was gross misconduct. All three Equality Act claims were therefore dismissed and no remedy was awarded.