Claimant v Openreach Limited

The tribunal found that the claimant was dismissed for gross misconduct relating to conduct on 15 December 2022. The respondent genuinely believed the claimant had committed misconduct (aggressive and abusive conduct towards customers), had reasonable grounds for that belief after a reasonable investigation, followed a procedurally fair process, and dismissal was within the range of reasonable responses. The claimant's alleged procedural complaints (lack of review of suspension, failure to engage with union, failure to consider mitigating factors) did not take the procedure outside the range of reasonable responses.

The tribunal found that the claimant's conduct on 15 December 2022 — being aggressive, rude, abrupt, using obscenities and excessive loudness towards customers Mr Shaun Murphy and Mr Steve Smith — constituted a fundamental breach of the implied term of trust and confidence, objectively assessed. Summary dismissal was therefore justified.

The tribunal found no evidence from which to infer that the claimant was treated less favourably because of his disability (anxiety and depression). Both the dismissing manager and appeal manager approached the question of disciplinary action with an open mind and were not motivated in any way by the fact that the claimant had anxiety and depression.

The tribunal found no causative link between the claimant's anxiety and depression and his aggressive or defensive manner of communication. There was no cogent medical or expert evidence that the disability caused the claimant to be aggressive or unable to participate in meetings without support. In any event, even if there had been such a link, the dismissal was a proportionate means of achieving the legitimate aims of ensuring staff meet service requirements and enabling effective management.

None of the claimed PCPs (not undertaking risk assessments, not coordinating with union, not keeping in touch during sickness, not providing adequate information in advance of meetings) were found to be provisions, criteria or practices within the meaning of s.20 Equality Act 2010. They were ways in which the claimant himself claimed to have been treated, not general policies. The tribunal also found that the claimed reasonable adjustments (e.g. conduct return to work meetings, provide more evidence in advance) were not reasonable steps in the circumstances.

Claims for night shift and dirt and discomfort allowance in 2016 were out of time (over six years old). The claim for Outer London weighting payments from December 2020 failed because the claimant did not discharge the burden of proof: he provided no evidence showing he spent the majority of his time in the Outer London zone, no evidence he had asked his manager to change his designated workplace, and did not establish a prima facie case that the employer's decision was questionable.