Claimant v Openreach Limited

The tribunal found the dismissal was fair. The claimant had been dismissed for gross misconduct — failing to use mandatory Tetra safety equipment (a harness connecting him to a ladder) when working at height. The tribunal accepted the employer genuinely believed the claimant was guilty of misconduct, had reasonable grounds for that belief after a reasonable investigation, followed a fair procedure, and dismissal was within the range of reasonable responses given the serious safety breach which could have resulted in serious or fatal injury.

The tribunal concluded that the claimant's conduct amounted to gross misconduct and a fundamental breach of contract, which contractually entitled the respondent to dismiss without notice. Therefore, the dismissal involved no breach of his contractual entitlement to notice.

The tribunal found no less favourable treatment. The claimant (described as of Asian origin) did not identify an actual comparator and evidence showed another Black employee in his 40s was also dismissed for not using Tetra. The tribunal was not satisfied the evidence (assertions about being overlooked for promotion in favour of younger Black colleagues) provided a basis to infer the dismissal was on grounds of race. The tribunal accepted the explanation that dismissal was because of the view taken regarding conduct, with race playing no part.

The tribunal found no less favourable treatment compared to a hypothetical comparator. The evidence adduced (comments about age, being asked his age at team meetings, allegations of being overlooked for promotion) did not amount to evidence from which the tribunal could conclude any difference in treatment was on grounds of age. The tribunal accepted the dismissal was because of the view taken regarding conduct, with age playing no part. In any event, the tribunal found the treatment would have been justified as a proportionate means of achieving the legitimate aim of ensuring compliance with important health and safety requirements.