Mr P Diamond (Counsel) For the v Respondent — 2022

The claimant, a Senior Conductor Manager, attended an East Midlands Trains webinar on 21 January 2021 about white privilege. At the end of the call, while still connected from home, he was overheard making remarks to his wife, including expletives and a reference to asking about black privilege in other countries such as Ghana. The tribunal found that these were private remarks made at home and that the substantive misconduct was the failure to properly disconnect from the webinar before speaking.

The tribunal accepted that the respondent had a genuine belief in misconduct on reasonable grounds after a reasonable investigation. It also accepted that the claimant was not racist and had not committed unlawful discrimination, and it found that interviewing the claimant’s wife, daughter, or other attendees would not have made material difference to the investigation. However, it held that the dismissing officer treated dismissal as the inevitable outcome, without properly considering alternatives such as a warning, further equality training, or a wider apology, and without meaningful engagement on those alternatives with the claimant.

The tribunal also held that the appeal process was unfair because the appeal officer did not properly address the claimant’s point that other employees had received less severe sanctions in race-related disciplinary cases. On the tribunal’s findings, that inconsistency was significant to the reasonableness of dismissal and should have been explained, rather than dismissed with a general assertion that no two cases are the same. The tribunal therefore concluded that dismissal fell outside the band of reasonable responses and that no Polkey reduction was appropriate.

On remedy, the tribunal held that the claimant’s culpable conduct was limited to failing to disconnect properly from the webinar. It reduced any compensatory award by 15% for contributory conduct. It also found that the claimant gave an inaccurate account about the source of the expletives, which justified a further 10% reduction to the basic award, producing a total basic award reduction of 25%. It made no ACAS uplift. The judgment did not quantify the final monetary award because remedy was left for a later hearing.