in person For the v Respondent — 2020

The claimant, a black British redistribution operative for the London Cycle Hire Scheme, brought race discrimination, harassment and victimisation claims after two road traffic incidents on 10 and 18 March 2018. The respondent investigated those incidents, held disciplinary and appeal hearings in June and July 2018, imposed a final written warning with conditions, and later dismissed him without notice on 26 February 2019 after he refused to accept the conditions. A further appeal was rejected on 5 April 2019.

The tribunal held that the claims were in time because the decision to investigate and discipline the claimant formed a continuing state of affairs that lasted until the second appeal on 19 March 2019; alternatively, time would have been extended as just and equitable. It accepted that the claimant had been the victim of a racist assault on 18 March 2018, but found that the respondent's managers took that into account. It rejected the direct race discrimination complaints about the control room response, Mark Sammut's email, the disciplinary and appeal outcomes, the warning letter, dismissal and the appeal against dismissal, finding that those decisions were not taken because of race.

The tribunal also rejected victimisation. It accepted that the grievance of 1 June 2018 was a protected act, but found no evidence that the later disciplinary steps, dismissal or appeal were taken because the claimant had raised it. The harassment claim failed because the 8 August 2018 email was not shown to be unwanted conduct related to race; the claimant's complaint about that correspondence was that he was asked the same question several times while he was off sick.

Applying section 98 ERA 1996 and the Burchell test, the tribunal found that the respondent genuinely believed the claimant had committed misconduct on 10 and 18 March 2018, had reasonable grounds for that belief and carried out a reasonable investigation. It held that the claimant's driving on both dates amounted to gross misconduct, that the final written warning with conditions was a reasonable mitigation, and that dismissal was within the range of reasonable responses when he refused to accept the conditions. The wrongful dismissal claim also failed because the tribunal found the 18 March conduct was a fundamental breach and that the respondent had reserved its position while it delayed, so it had not waived that breach. No monetary award was made because all claims were dismissed.