Claimant v London Underground Limited
Outcome
Individual claims
The tribunal found the respondent established a potentially fair reason (conduct) and conducted a reasonable investigation. However, the respondent totally failed to provide an appeal hearing as required by its own procedure and the ACAS code, with no adequate explanation. Given the context of the conversation involving multiple participants and possible mitigating factors that could have been explored on appeal, the tribunal held there was a real prospect the appeal would have led to a different outcome. The failure to allow an appeal was unreasonable and rendered the dismissal unfair.
Facts
The claimant was a customer service supervisor for London Underground. On his second day at White City station on 15 November 2022, during a discussion about polygamy with three colleagues including a female colleague Ms Atagana, he was alleged to have made sexually explicit comments including directing a vulgar comment specifically at Ms Atagana. Following an investigation, he was dismissed for gross misconduct on 24 May 2023. He appealed on 31 May 2023 but the respondent failed to progress or hold an appeal hearing despite the claimant's repeated requests.
Decision
The tribunal found the dismissal unfair. While the respondent established a potentially fair reason (conduct) and conducted a reasonable investigation, the total failure to provide an appeal hearing as required by the respondent's own procedure and the ACAS code was unreasonable. Given the context of the conversation involving multiple participants and potential mitigating factors around comparative treatment and the context in which the comments were made, there was a real prospect the appeal would have led to a different outcome. Questions of contribution and Polkey reduction were reserved to a remedy hearing.
Practical note
Even where an employer establishes a potentially fair reason and conducts a reasonable investigation, a complete failure to provide a contractual and ACAS-required appeal without explanation will render a dismissal unfair, particularly where there are arguable grounds of appeal concerning context, comparative treatment, or sanction.
Legal authorities cited
Statutes
Case details
- Case number
- 2216217/2023
- Decision date
- 7 October 2024
- Hearing type
- full merits
- Hearing days
- 2
- Classification
- contested
Respondent
- Sector
- transport
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Customer Service Supervisor
- Service
- 4 years
Claimant representation
- Represented
- No