Hello everyone and thank you for joining us for another case of the week. For those of you that missed our update last week, you can find that one here. Last week we looked at whether parental leave needs a formal application. This week we are looking at a case from last year where a train driver was summarily dismissed for pranking an arachnophobic colleague!

The Claimant, Johnathon Richardson, served as a driver for the Respondent, West Midlands Trains Ltd, from April 4, 2018. With 20 years of industry experience, Richardson was employed by a company boasting substantial resources, including a sizeable HR department. In the course of his duties, Richardson interacted with a colleague referred to as Driver A.

Sometime in 2022, during a break in the staff mess room, Richardson and Driver A engaged in a conversation about DIY house projects. Driver A expressed a fear of insects, spiders, and snakes, prompting Richardson to share his experience in caring for such creatures owned by his friends. This conversation ‘planted the seed in the Claimant’s head for a prank.

In August 2022, the Claimant placed a tarantula exoskeleton in Driver A’s pigeonhole, hoping to elicit a reaction of momentary shock, followed by light-hearted relief on realisation that the object was merely a shed skin and not a live animal. Both parties later agreed that this was intended to be a prank. The Claimant stated that it would have taken a matter of seconds to realise that it was not a live animal and the Respondent considered that the Claimant’s intention was to ‘shock’ Driver A. This was accurate for the most part as she required a colleague to remove the exoskeleton from the pigeonhole. At some point after the event the Claimant is informed of Driver A’s strong reaction to the event by a senior colleague and the fact that another colleague was involved to dispose of the exoskeleton. However, the Tribunal found he did not appreciate the level of upset it had caused. A conversation was had between the Claimant and Driver A which, whilst contested, included Driver A calling the Claimant a ‘f*cking tw*t’ and stating that she would report him if he were to place a snakeskin in her pigeonhole instead. The Claimant saw this all as good humoured and did not consider Driver A’s reaction to be serious. The Tribunal, crucially, makes it clear that the Claimant had always considered these conversations to be well humoured and that he genuinely did not appreciate the level of upset caused.

In September 2022, Richardson placed a snakeskin in Driver A’s pigeonhole, prompting a similar reaction and a report to her line manager. The Respondent began an investigation, which involves an interview with Driver A. While it is clear that the snakeskin is unwelcomed, it was primarily the exoskeleton that she found most upsetting. After this point, Driver A was never consulted again about the process. An investigation meeting was arranged with the Claimant, which began with him reading a pre-prepared apology to Driver A and making a request to apologise to her personally. The Tribunal was surprised by the fact that this apology was never relayed to Driver A, nor was the apology noted in the investigation minutes or referred to in subsequent meetings. Following the investigation, a disciplinary meeting was arranged.

The Tribunal found several issues with the disciplinary process. The first was that the apology was not considered beyond being appended to the report. Secondly, that there were strong findings that Driver A had made it clear to the Claimant that she was very distressed during their encounter afterwards. Finally, that the Claimant had not accepted the extent to which he believed his actions would cause upset. The Tribunal found the report to be very one sided and failed to present the Claimant’s version of events. The Respondent dismissed the Claimant for Gross Misconduct on the grounds that his actions amounted to bullying. The dismissing officer explicitly noted that an apology may well have been sufficient resolution to the matter, but no further action was taken. An appeal was brought and the appeal officer also states that this could have been handled informally but the appeal was ultimately rejected.

The Claimant brings a claim for unfair dismissal to the Employment Tribunal. In finding the claim well founded the Tribunal found that the Respondent did not hold a genuine belief based on reasonable grounds that the Claimant’s conduct was sufficient reason for dismissal. The Respondent had failed to consider their own policies on gross misconduct meaning that the decision also fell outside of the range of reasonable responses. In finding that the procedure was flawed, it was noted that the Claimant had been unreasonably denied the opportunity to call witnesses and the Respondent had not put his account of the events to Driver A to determine her response. Further issues were raised regarding the lack of training on bullying and harassment policies which the Tribunal found resulted in the Claimant being unaware of the appropriateness of his behaviour. The Tribunal found that the Claimant’s dismissal was unfair and awarded over £22,000 in compensation and ordered that the Claimant be reinstated.

Takeaway Points

Wagamama and Sick Leave

Ensuring that the investigation and disciplinary processes are fair, can not only ensure that a dismissal is fair in front of a Tribunal but also, as this case highlights, how a fair process may result in a resolution without disciplinary action being taken at all. Presenting alternative versions of accounts and taking statements from relevant witnesses is important to ensure disciplinary officers are aware of all the relevant facts and circumstances.

Employers must also provide comprehensive training on workplace behaviour, including bullying and harassment policies, to ensure employees are aware of acceptable conduct standards. Insufficient training can lead to misunderstandings and inappropriate actions, potentially resulting in disciplinary issues and Tribunal claims.

If you or someone you know are dealing with a similar issue, please contact us for further assistance, our senior partner Philip Hyland, has also written a book on the subject of bulling and harassment in the workplace.