ETZ 4(WR) IN THE EMPLOYMENT TRIBUNAL (SCOTLAND) AT EDINBURGH Judgment of the Employment Tribunal in Case No: 4110206/2019 Heard at Edinburgh on th December 2019 Employment Judge J G d’Inverno Mr C Graham v Appearing in person ICTS (UK) Ltd — 2019

Mr Graham worked for ICTS (UK) Ltd as a security guard at the Amazon site in Fife from 21 October 2016 until 15 May 2019. The case concerned two disciplinary incidents. In January 2019 he admitted calling an Asian colleague a “fucking monkey” in a public area in the presence of a third-party worker. After a disciplinary hearing on 31 January 2019 he was found guilty of serious misconduct and given a first and final written warning on 8 February 2019, which was upheld on appeal.

A second complaint arose on 27 April 2019, within the warning period. The claimant admitted saying “fuck off” to the same colleague but denied any further racial language. The tribunal found that a disciplinary case to answer existed, that he was invited to a hearing on 15 May 2019, and that he was dismissed with notice because the employer regarded the conduct as serious misconduct against the background of the live final warning. The appeal officer upheld the dismissal on 10 June 2019.

The tribunal held that the respondent had discharged the burden of showing dismissal for conduct, a potentially fair reason, and that the decision to dismiss fell within the band of reasonable responses under section 98(4) of the Employment Rights Act 1996. It accepted that any possible unfairness about not initially providing the minutes or an extra copy of the disciplinary procedure was remedied during the appeal process. The tribunal also rejected the claimant’s consistency arguments, though it noted that managers should set an example in the language they use.

The unlawful deduction claim failed. The claimant’s complaint was that notice pay was not paid immediately on dismissal but only within 48 hours, which affected the timing of his Universal Credit entitlement. The tribunal held that the claim was not made out and that any resulting loss would in any event have fallen within the normal compensatory framework if the dismissal had been unfair. It also recorded that, had the dismissal been found unfair, it would have considered a high level of contributory conduct by the claimant.