R Moon v Slater & Gordon UK Ltd
[2024] EAT 144
British Bung Manufacturing Company Ltd & Anor v Mr A Finn
28 November 2023
[2023] EAT 165
Employment Appeal Tribunal
A man was fired for submitting a statement that looked like it came from the police. The court found that his boss had acted unfairly because he changed his mind about waiting for a police investigation before making a decision, and that the offensive comment made by a coworker was harassment related to the man's sex. It also said the man hadn't done anything that would justify being fired immediately.
Key Facts
- •Claimant, an electrician, employed by the First Respondent (a small family business) from 1997 to 2021, was summarily dismissed for gross misconduct.
- •The Second Respondent (Mr. King) called the Claimant a "bald cunt" in 2019 and threatened him with violence.
- •In March 2021, another altercation occurred, leading the Claimant to leave work.
- •The Claimant submitted a witness statement, formatted like a West Yorkshire Police statement (his son is a police officer), to assist in an internal investigation.
- •The First Respondent viewed the statement as a threat and dismissed the Claimant for gross misconduct.
- •The Claimant appealed the dismissal, which was upheld.
- •The Employment Tribunal found the Claimant had been harassed (related to sex), unfairly dismissed, and wrongfully dismissed.
Legal Principles
Harassment related to sex under section 26 of the Equality Act 2010.
Equality Act 2010, sections 26 and 39
Unfair dismissal under sections 94 and 98 of the Employment Rights Act 1996.
Employment Rights Act 1996, sections 94 and 98; Khanum v Mid Glamorgan Area Health Authority [UK EAT 1979]
Wrongful dismissal; repudiatory breach of contract.
Tullett Prebon Plc v BGC Brokers [2011] EWCA Civ 131; Neary & Another v Dean of Westminster [1999] IRLR 2888; Briscoe v Lubrizol [2002] IRLR 26
Polkey deduction for unfair dismissal.
Polkey v AE Dayton Services Ltd [1988] ICR 142, HL
In determining whether conduct is 'related to' a protected characteristic under section 26 of the Equality Act 2010, the prevalence of the characteristic amongst persons of that protected characteristic and the absence of any other explanatory factor is relevant context.
Bakkali v Greater Manchester Buses (South) Ltd [2018] ICR 1481
A disciplinary hearing must satisfy the requirements of natural justice: knowledge of accusation, opportunity to state case, good faith.
Khanum v Mid Glamorgan Area Health Authority [UK EAT 1979]
Outcomes
Appeal dismissed on all grounds.
The Tribunal's conclusions regarding harassment, unfair dismissal, and wrongful dismissal were not erroneous or perverse.
Harassment claim succeeded.
The Tribunal found the Second Respondent's use of the term "bald cunt" was unwanted conduct related to the Claimant's sex, violating his dignity and creating a hostile environment.
Unfair dismissal claim succeeded.
The First Respondent acted in bad faith by dismissing the Claimant contrary to its stated intention to await the outcome of a police investigation and without giving him a chance to respond to the change of plan. The Tribunal also found a predetermined decision to dismiss.
Wrongful dismissal claim succeeded.
The Tribunal found the Claimant's actions did not objectively constitute a repudiatory breach of contract.