Employment Judge AnstisMr P O’Callaghan (instructed by counsel) for claimantMs S Dervin (instructed by counsel) for respondentDate 15 July 2025
REASONS
Conclusion
[1]The claimant was employed by the respondent as a security officer. Until his dismissal he had 21 years service with them.[2]Following the withdrawal of claims of protected disclosure detriment and automatically unfair dismissal in closing submissions, the claimant’s claim is now of “ordinary” unfair dismissal only.[3]The claimant was a long standing representative for the Unite trade union. In March 2022 he was elected as chair of the Terminal 3 branch of the union. He took over this position from Manoj Dadral.[4]The events that follow play out in the aftermath of that election and the claimant’s appointment as chair of the union branch. Much of what we heard did not reflect well on the atmosphere within the union branch, nor did it do particular credit to the trade union, but our focus is on what the respondent, as employer, did, not on what the trade union did. Page 1 of 12
THE FACTS
[5]On 30 May 2022 the claimant, along with some colleagues, met with Davinder Gill to complain about alleged harassment and other matters they said they had been subject to from Manoj Dadral following the election. We understand that the matter was also reported to the police, and later that year Mr Dadral was convicted of harassment (without violence).[6]We understand that the following day Mr Dadral was suspended and became subject to proceedings (presumably disciplinary proceedings) implemented by the respondent. We were not told of the outcome of those proceedings.[7]Mr Dadral subsequently raised two grievances, the first on 6 June 2022 which was against the claimant and the colleagues who had been at the meeting with Mr Gill. As far as we can tell no action was taken by the respondent in respect of this grievance.[8]On 25 July 2022 Mr Dadral wrote to the respondent with what he said was “a formal complaint of racial discrimination that has taken place at work … the complaint is against Jose Gomes”.[9]Given that this arose in a period following the complaint made by the claimant about Mr Dadral, and that the matters Mr Dadral complains of arose some time prior to this complaint, there would be reason to doubt that Mr Dadral had made this complaint in good faith. It is not necessary for us to address that point in any more detail beyond identifying that there was reason to think the complaint may not have been made in good faith. The fact that it may not have been made in good faith did not, of course, mean that it was not true.[10]This was the complaint: “On 11th February 2022 at approx. 1345, Jose came into the T3 union room and said something very similar to “This is what your country is like” and began to play a video on his phone about why India is a dirty country. I found the video to be highly offensive and totally inappropriate, in response to Jose showing the video, I immediately googled the top CEOs of big companies across the world and sent the link to Jose as they were mainly of Indian descent. Along with this link I messaged that this is what drinking cow’s piss and washing in cow’s poo gets you as this was referenced during the video, I have shown these messages to Jamie Ratcliffe, Baggage Product Development Manager and have them on my phone. Witness to this incident were Ashok Jakhu and Dahlia Rady. Jose also regularly says the following “If you shake an Indian man’s hand then make sure you count your fingers after”, I find this to be unacceptable and not something I should have to hear whilst at work Page 2 of 12 irrelevant of his connotations behind the phrase. This is clearly a racist remark. This has been witnessed by many people. Jose has also made comment about the odour of Black people, he says that there is a phrase for their particular smell, I believe the word is a South African word, the word is “katinga”. He has used this phrase on numerous occasions.”[11]The only allegation for which a date is given is the showing of the video: 11 February 2022, almost six months before the complaint.[12]In consequence of this, on 13 September 2022 on his return to work after a long period of holiday, the claimant was summoned to a “fact-finding” meeting with Davinder Gill. As with all meetings in this process the claimant was accompanied by a trade union representative.[13]Mr Gill asked the claimant if he had ever referred to Mr Dadral or used the word “katinga” to him. The claimant vehemently denied this, although on Mr Gill pursuing the point the claimant said “if it was said it was only to explain the word katinga”. The claimant says “I can assure you never said it to a colleague”.[14]Mr Gill asks the claimant about the reference to handshakes. The claimant says: “This thing is not said against MD Definitely not When this was said was explaining that the Russians say that when you shake an Indian mans hand you should count your fingers My best friend Mr T used to say the Russians are wrong you shouldn’t check fingers you should check your while arm Never against anybody just saying this is what Russians said Never at anyone Just talking amongst other people Was told by a Russian that this is what they say This is so many years ago Really annoyed that these things come up. People want to pick tiny little things.”[15]Mr Gill continues: “Summarise you recall having statement with officers” To which the claimant replies: “Yes but never at anybody.”[16]We can see in this the start of what became considerable confusion about the claimant’s use of the word “katinga” and the handshake reference. In both cases the claimant is clear that he has never used those “at anybody”, but does not go so far as to say that he never referred to them. For “katinga” he explains how it would be used if he had used it. For the handshake, he does accept having referred to that expression, although never “at anybody”. Page 3 of 12[17]This confusion became a feature of later interviews with the claimant. We note that at this point matters were not helped by Mr Gill having been given only an oral briefing on the allegations and not having seen the original grievance. We also bear in mind, as urged by Mr O’Callaghan, that the claimant’s first language is not English and that he had had no prior warning of the meeting or the matters to be covered.[18]As regards the video, the claimant is asked “allegedly showed video to [Mr Dadral] of India and life being dirty there. Do you recall showing [him] a video?”[19]The claimant replies “yes nothing wrong with that. I hope I still have it on WhatsApp …”. He says “it was just something I received and forwarded”. After an adjournment the claimant cannot find the video, and says that as he cannot find it he may not have forwarded it and “it must’ve been something I saw”. The claimant says “the video was not offensive. Was fact and said this is what happens with the water. Not offensive more educational”.[20]We have seen a transcript of the video (although not the video itself). Whether Mr Dadral was actually offended by it is another question, but it appears to us that it is absurd to describe it as “fact” and “educational”. It contains material that might be expected to be highly offensive to people of Indian nationality or heritage. As Ms Finlay later puts it, it is “racist, derogatory and bigoted”.[21]Other matters are mentioned in the meeting (and later in the investigation) but they are not relied upon by the respondent in support of its decision to dismiss the claimant and we do not need to refer to them.[22]At the end of the meeting the claimant was suspended. An investigation was commissioned and while there had been some criticism of the investigation and the motives of those witnesses who were interviewed it has the appearance of being a thorough investigation, subject to the omission of any interview with Manoj Dadral. The respondent accepts that following his initial making of the allegations there was never any further interview or materials provided by Mr Dadral himself. We were not given any reason why he was not interviewed. The investigation appears to reinforce the previous implication that there were rival factions operating within the union branch at Terminal 3, some loyal to Mr Dadral and some loyal to the claimant. As we have suggested before, much of what was uncovered in the investigation did no credit to the union branch.[23]The investigator submitted his report on 24 October 2022, and on 31 October 2022 the claimant was invited to a disciplinary hearing to take place on 8 November 2022 before Chloe Finlay. The meeting was convened to consider (omitting allegations later found to be not proven, and adding numbers for later reference to the allegations): Page 4 of 12 “Serious and/or deliberate breach of the Heathrow Professional conduct policy, Disciplinary Policy and Dignity at work policy namely- Serious failure to act in a professional and ethical way- namely- o Showing of a video which could be deemed discriminatory against Indian’s. [1] o Using the phrase ‘if you shake an Indian man’s hand check your fingers after’ … [2] - Serious failure to not discriminate against harass or victimise any person namely - o Use of foul language and discriminatory terms towards colleagues including use of the word … katinga. [3] You should be aware that these allegations may constitute potential gross misconduct and if proven could lead to your dismissal”[24]The claimant submitted a statement in support of his position to the meeting. In common with much of the material relied on by the claimant he referred to his previous 21 years’ unblemished service, work as a trade union representative and general good reputation within the workplace.[25]The disciplinary hearing took place over two meetings on 8 November 2022 and 15 November 2022.[26]Perhaps the key document in the case is the dismissal letter prepared by Ms Finlay dated 23 November 2022. It is a long document, and appears to set out in full Ms Finlay’s findings and the rationale for her decision to dismiss the claimant.[27]During oral evidence, Ms Finlay accepted, in general, that where there was any dispute between the claimant’s and Mr Dadral’s account (as set out in the grievance) she proceeded on the basis of the claimant’s account of matters. The claimant also agreed that what was set out by Ms Finlay in her letter was, in general terms, a materially accurate account of what he had said to her in the disciplinary meetings.[28]As regards the first allegation, the video, in the appeal there would be a question raised about when exactly the claimant showed the video to Mr Dadral, and there remained questions about who had been present a the time the video was shown, but the fact that the claimant showed the video to Mr Dadral was no longer in question. Ms Finlay says in her letter: “You stated that in the second meeting you showed the message sent to you from Manoj and said that you were not sure if it was specifically that video. You stated that it was an information video and that you Page 5 of 12 remembered watching a video with him, but could not recall if it was that specific video. In your initial fact find you had stated that the video was not offensive, I asked you if having seen the video since if you understood how this could be seen as offensive. You stated yes, it was offensive but that no one bought it up again after the message Manoj had sent you. In your fact find you stated that the video was information and educational, I asked if you still believed that to be the case. You stated that it is informational and educational but could see how it was offensive. At this stage your union representative requested an adjournment. Upon your return you stated that I had asked if it was offensive to which your answer was yes. I confirmed that my question was do you still believe the video to be educational and information and you again stated that you believe it to be factual and educational but could see how it could be offensive. You stated you could not recall where the video came from.”[29]On the second allegation (handshakes), Ms Finlay notes: “you stated that you recalled that this was a Russian saying and you were repeating what they said, and it was not offensive. Your representative explained that it was not offensive in that context [as you were explaining what Russians allegedly say]. I then asked you what you understood the meaning of the phrase is. You said you knew Russians are very funny and specific about how they shake hands, and that you did not say it to be offensive. I sought further clarification and asked if you understood how that sentence could be offensive to which you replied yes, and again [the union rep] requested an adjournment. Upon reconvening the meeting, you further commented, that it could be offensive for people having the statement directed at them and that you could not remember the context or how it came up.”[30]For the third allegation (katinga), Ms Finlay’s letter says: “I asked why, with the knowledge of what katinga means, you would use it in an open environment where someone may take offense. You stated that the word was common to you, as your mum and dad would say it to you so it was a normal word, so you never saw it as offensive. I asked at what point you realised this word was offensive and you stated only once it was bought up as part of the investigation. [the union rep] requested another adjournment at this stage. When you returned you said that you could see how it was offensive and would not be using the word going forward. You stated you could see how it could be offensive for the wrong person. I asked what you meant by the ‘wrong person’ and you stated a black person would be Page 6 of 12 very offended by this word. You stated you did not remember the context, only that you would have been explaining the meaning of the word.”[31]The letter also records: “I asked you what you had learnt as a result of this process and you stated that you would just stop sharing things about other cultures and that you would try to improve. You also apologised for any offense caused.” and “I asked you to help me understand how you would make sure that this situation would not repeat. You stated that you would be more mindful and more careful. You stated that you had always tried to be polite.[32]On the first allegation, Ms Finlay finds that “you did show the video to Manoj as he claims and that the content was racist, highly offensive and completely inappropriate (which you agreed with during our second meeting.)”[33]On the second allegation, Ms Finlay find that “… you knew exactly what the phrase meant. I did consider your responses, but I think you knew it would cause offence because of the nature of statement. In any event, even if you did not intend to cause offence, I can understand that the effect of the statement is likely to cause offence.”[34]On the third allegation, Ms Finlay finds that “There is no clear evidence that these terms were directed specifically towards any colleagues. However I have reasonable belief, due to the specific nature and origin of the word ‘katinga’ that you have used this term in conversation around colleagues.”[35]There is little that could be disputed about these findings, if they are limited to their more moderate extent. Except perhaps for the question of whether the word “katinga” was used by the claimant (as to which he was somewhat unclear, although he was clear that he had not used it against anyone) the basic points had been admitted by the claimant. Ms Finlay’s description of the video as “racist, highly offensive and completely inappropriate” is accurate. Her findings on the phrase and words used broadly accept the claimant’s point that while they may have been used they were not directed at anyone in particular nor did he intend to cause offence.[36]On the question of the Burchell principles (see below), we do not think these findings, in their more moderate form, can be criticised. It has not been suggested that Ms Finlay did not have a genuine belief that the matters had occurred, nor can it be said that there was not a reasonable belief for that or that further investigation was required in circumstances where the findings were based on admissions by the claimant. Page 7 of 12[37]As regards the disciplinary sanction, Ms Finlay says: “I will now turn to the question of sanction. I have considered your clear love of the job you do and the fact that you have 20 years' service. You have informed me along with … your trade union representative, of the toxic nature of the union room environment. Whilst I acknowledge this point, that the culture in the room was not satisfactory, I do not think it is an excuse for your behaviour. In accordance with our Dignity at Work Policy and our Disciplinary Policy where the definition of harassment is defined, all the things I have found you have done, fall within this definition. And our Disciplinary Policy makes it clear that bullying and harassment and any form of discrimination is considered gross misconduct. I have further concerns as you have claimed that you have always been careful and tried not to offend people, and yet you have used these words/phrases and showed a very derogatory video. This does not give me confidence that a similar scenario would never occur again as you have already ‘been careful’ but nevertheless carried on. You also said you were showing the video and using the phrases to educate people which I find difficult to believe, which does cause concern over your credibility. Despite this, the decision I have come to has not been reached lightly. When giving you my decision on the 15th of November, I became emotional; not because I did not believe I was giving the right outcome, but I was saddened at the whole situation – the impact the environment had had on the whole T3 union team. I have also considered whether any other sanction could be appropriate in this case, but given the discriminatory nature of these allegations, how serious they are, that this video and phrases have no place in the work place, I have concluded you may do similar things again, and therefore, it is my belief that the only appropriate sanction is to summarily dismiss you with immediate effect. This means your contract of employment will be terminated without notice or payment in lieu of notice your last day of service was 15th November 2022 and you will be paid up until this day. Any holiday payment will be calculated up to the date of termination.”[38]As a reminder, Ms Finlay’s findings were that: - The claimant had shown Mr Dadral a video of a racist and offensive nature. This was in the context of a “toxic environment” at the union room. Page 8 of 12 - The claimant had referred to a saying that was derogatory towards people of Indian origin, but not in respect of or against any particular individual. - The claimant had used the offensive word “katinga” but again not in respect of or against any particular individual.[39]There was no suggestion that anyone took offence at the time.[40]There was an appeal, and the appeal endorsed the original decision. In those circumstances there is nothing more we need to say about that.
THE LAW
[41]Mr O’Callaghan’s written closing submissions gave a concise summary of the applicable law: “It is accepted that C was dismissed for a permissible reason - s98 (2) ERA, namely conduct. As to the question of whether R acted fairly in all the circumstances, the questions for the ET are: Did the Respondent act reasonably in all the circumstances in treating conduct as a sufficient reason for dismissing the Claimant (s98 (4) ERA 1996)? In particular:(i) Was a reasonable investigation carried out?(ii) Did the employer have a genuine belief that the employee was guilty of misconduct?(iii) Was such a belief reasonable (including whether a fair procedure was followed)?(iv) Was dismissal a reasonable response in the circumstances? (British Home Stores v Burchell [1980] ICR 303, Iceland Frozen Foods v Jones [1983] ICR 17) Each element of the test is to be approached on the basis of the range of reasonable responses.”[42]He also said: “In assessing the reasonableness of the dismissal the tribunal should not conduct a ‘tick box’ exercise and should bear in mind that the band of reasonable responses is not infinitely wide – Newbound v Thames Water Utilities Ltd [2015] EWCA Civ 677. Of course, in finding that the no reasonable employer would have dismissed C in the particular Page 9 of 12 circumstances of the case the Tribunal must not slip into impermissibly substituting its view for that of the employer.”[43]We do not think Ms Dervin would disagree with these basic propositions, but she had her own way of putting matters, emphasising that: “The Tribunal must finally be satisfied that the Respondent acted within a range of reasonable responses in treating the misconduct as a sufficient reason to dismiss (Iceland Frozen Foods Ltd v Jones [1982] IRLR 439). Put another way, the Tribunal should ask itself: could no reasonable employer have dismissed the Claimant for this conduct? At each stage of the analysis … the Tribunal must avoid substitution mindset. The Tribunal must conduct its analysis by reference to the objective standards of the hypothetical, reasonable employer and not by reference to the Tribunal’s own subjective views of what it might have done differently. This point has been strongly emphasised in a number of misconduct cases. As Phillips J put it in Trust Houses Forte Leisure Ltd v Aquilar [1976] IRLR 251: ‘…It has to be recognised that when the management is confronted with a decision to dismiss an employee in particular circumstances there may well be cases where reasonable managements might take either of two decisions: to dismiss or not to dismiss. It does not necessarily mean if they decide to dismiss that they have acted unfairly because there are plenty of situations in which more than one view is possible…” and “It is not for the Tribunal to ask itself whether a lesser sanction – such as a final written warning – would have been reasonable. The question is whether or not dismissal itself was reasonable when considering the range test: British Leyland v Swift [1981] IRLR 91 applied by the Court of Appeal in Securicor Ltd v Smith [1989] IRLR 356. The Tribunal may be invited to take account of the Claimant’s length of service. The starting point is that length of service has less relevance in gross misconduct cases. The gravity of the offence may well outweigh the factor of the length of service because it would be unreasonable to expect the employer to have further confidence in the employee (AEI Cables Ltd v McLay [1980] IRLR 84).” DISCUSSION AND CONCLUSIONS Page 10 of 12
DISCUSSION AND CONCLUSIONS
[44]We note the apparent care with which Ms Finlay decided upon the sanction, and, of course, it is not for us to substitute our views for hers. We can only interfere if the decision to dismiss was not within the range of reasonable responses open to an employer in this situation.[45]Ms Finlay references the respondent’s disciplinary policy, saying that “bullying and harassment and any form of discrimination is considered gross misconduct”. It is true that those are listed under the heading “gross misconduct”, although oddly enough simply as examples that may result in formal disciplinary action, not as actions that may result in immediate dismissal, and it is far from clear that the author of the processes had this kind of issue in mind. The introduction to the list is the same as the introduction to the list of “misconduct”. There has never been an allegation of bullying, and harassment and discrimination are not defined in the procedure. In any event, the comparator cases we heard of arguably involve harassment but do not lead to dismissal. As we were reminded in closing submissions, there can be no absolute rule that some actions always result in dismissal.[46]Two points arise from this. The first is that the respondent never really got to understand when the various offences the claimant was alleged to have carried out occurred. Mr Dadral gave a date for the video, but not the others. At various times the claimant has suggested that to the extent they occurred they occurred years ago. Mr Dadral has not suggested they were recent, and strong implication of his grievance seems to be that this is the worst he knows about the claimant following many years of working together.[47]The second is that the claimant having worked without cause for complaint for 20 years or more strongly suggests to us that he is able to take management instruction and to follow orders he is given.[48]This plays into a further element that will always be relevant in considering the sanction. That is, whether the issue is likely to recur.[49]There is something in this to justify a conclusion that the claimant has been naïve in his actions and his words, but even Ms Finlay did not say that he had been intentionally hurtful. Ms Finlay takes the claimant’s apparent naivety to mean that he would not understand not to do this in the future, but we do not see any justification for that conclusion.[50]Ms Finlay also sees in this a lack of understanding by the claimant of his actions, with him supposing these matters to be “educational”. She says that it appeared to take the prompting of his union rep for any contrition to be displayed. There is something to this, but when prompted the claimant did act appropriately and apologise for his actions.[51]Dismissal in a case such as this cannot be an automatic response governed by a list of possible gross misconduct offences. It always has to be measured, particularly against the risk of recurrence. Our view is that the decision to Page 11 of 12 dismiss in such a situation, against 20 years of previously trouble-free service, was outside the range of reasonable responses that was open to Ms Finlay, and that the claimant’s dismissal was unfair. FURTHER MATTERS[52]We have been invited to consider a Polkey deduction and matters of contributory fault. We do not see a Polkey deduction has any place in circumstances where we have found the decision to dismiss was outside the range of reasonable responses.[53]As for contributory fault, Mr O’Callaghan properly accepts that at least the showing of the video amounts to misconduct. That contributed to the claimant’s dismissal, and in those circumstances we ought to make a deduction for contributory fault, which would apply to both the basic and compensatory awards (Mr O’Callaghan did not suggest there was any distinction to be made between them).[54]The claimant’s contribution to his dismissal was more than trivial, and we should make the deduction. However, this is not a case in which we find the claimant’s dismissal was substantially caused by his misconduct. The primary point in this case is that the finding of dismissal was outside the range or reasonable responses. In those circumstances our award should reflect some contribution but not a major contribution. If at any remedy hearing we make an aware of compensation rather than making an order for reinstatement or reengagement we will reduce the basic and compensatory elements of that by 12.5%.[55]An order has been made separately in respect of a remedy hearing to take place on 9 & 10 July 2025. Approved by
DISCUSSION AND CONCLUSIONS
[1]The claimant’s application for reinstatement is refused.[2]The respondent shall pay the claimant the following sums:(a) A basic award of £14,239.31, and(b) A compensatory award of £29,760.69.[3]Para 2 of this judgment takes account of any necessary uplifts or reductions in compensation, but may be subject to deduction of tax or national insurance contributions in accordance with any applicable tax legislation.[4]Para 2 of this judgment is stayed under rule 64 of the Employment Tribunals’ Rules of Procedure 2024 pending final order of the Employment Appeal Tribunal in appeal number EA-2025-000740-JOJ. RESERVED REASONS PART 1 - REINSTATEMENTa. A. INTRODUCTION 1. Following our finding that the claimant was unfairly dismissed we are addressing his application for reinstatement. 2. At the end of our liability reasons we found: “46. … the respondent never really got to understand when the various offences the claimant was alleged to have carried out occurred. Mr Dadral gave a date for the video, but not the others. At various times the claimant has suggested that to the extent they occurred they occurred years ago. Mr Dadral has not suggested they were recent, and strong implication of his grievance seems to be that this is the worst he knows about the claimant following many years of working together. 47. … the claimant having worked without cause for complaint for 20 years or more strongly suggests to us that he is able to take management instruction and to follow orders he is given. 48. This plays into a further element that will always be relevant in considering the sanction. That is, whether the issue is likely to recur. 49. There is something in this to justify a conclusion that the claimant has been naïve in his actions and his words, but even Ms Finlay did not say that he had been intentionally hurtful. Ms Finlay takes the claimant’s apparent naivety to mean that he would not understand not to do this in the future, but we do not see any justification for that conclusion. 50. Ms Finlay also sees in this a lack of understanding by the claimant of his actions, with him supposing these matters to be “educational”. She says that it appeared to take the prompting of his union rep for any contrition to be displayed. There is something to this, but when prompted the claimant did act appropriately and apologise for his actions. 51. Dismissal in a case such as this cannot be an automatic response governed by a list of possible gross misconduct offences. It always has to be measured, particularly against the risk of recurrence. Our view is that the decision to dismiss in such a situation, against 20 years of previously trouble-free service, was outside the range of reasonable responses that was open to Ms Finlay, and that the claimant’s dismissal was unfair. 52. We have been invited to consider a Polkey deduction and matters of contributory fault. We do not see a Polkey deduction has any place in circumstances where we have found the decision to dismiss was outside the range of reasonable responses. 53. As for contributory fault, Mr O’Callaghan properly accepts that at least the showing of the video amounts to misconduct. That contributed to the claimant’s dismissal, and in those circumstances we ought to make a deduction for contributory fault, which would apply to both the basic and compensatory awards (Mr O’Callaghan did not suggest there was any distinction to be made between them). 54. The claimant’s contribution to his dismissal was more than trivial, and we should make the deduction. However, this is not a case in which we find the claimant’s dismissal was substantially caused by his misconduct. The primary point in this case is that the finding of dismissal was outside the range or reasonable responses. In those circumstances our award should reflect some contribution but not a major contribution. If at any remedy hearing we make an award of compensation rather than making an order for reinstatement or reengagement we will reduce the basic and compensatory elements of that by 12.5%.”b. B. THE EVIDENCE The claimant’s evidence 3. The claimant submitted a witness statement for this hearing. He gives details of his efforts to find other work and the job that he eventually found (which are not relevant for the purposes of reinstatement). 4. As regards his dismissal and the respondent generally, he says: “I could not understand that the company after all these years would consider such a harsh and embarrassing outcome. They could not even conduct an impartial and fair investigation. Heathrow does not truly care for its employees. This was the second time that I felt like a number. The first was during Covid-19 pandemic when I was forced to take on a lower salary (deduction of 20%) in order to remain employed.”[5]Nevertheless, he says: “I would really like to be re-instated into my role at Heathrow.” and “Given the size of the airport I struggle to understand why they cannot re-integrate me into the business. I believe I would be welcomed back by former colleagues, including the many individuals who supported me during the investigation and disciplinary process. Despite making it clear that they object to my return the airport’s management have not been able to provide a clear explanation or justification as to why re-instatement or re-engagement is not appropriate. I believe the airport management are upset and bitter that the tribunal found that I had been unfairly dismissed … and so they are retaliating against me by wilfully opposing my reinstatement or re-engagement.”[6]The claimant was subject to cross-examination about his apparently low view of the respondent. In cross-examination he took a somewhat different view of matters, saying that “I think things have moved on”, “they [the respondent] change managers and people working there all the time. I want to believe it is still a good place to work.” He said “I wrote this statement … talking about the past.” He said that while it was part of his case up to the final hearing that the respondent had dismissed him at the behest of the trade union these were “old memories” and “part of my case at the time”.[7]During the course of his cross-examination the claimant referred to the tribunal’s judgment as having found him “innocent”. He described himself as always having acted in a respectable manner at work, but he accepted that showing people the video in question at work “was not correct at the time” and “if you have made a mistake you should not repeat things going forward”. He said that his previous references to the video being educational were because “educational” had a different meaning in Portuguese, his first language. He said showing people the video at work had been a mistake, the “biggest mistake ever in my life”. He accepted that his statement did not make any reference to the tribunal’s finding of contributory fault. The respondent’s evidence[8]Fiona Hobbs, the respondent’s Head of Employee Relations and Engagement gave evidence on behalf of the respondent.[9]She said that the respondent’s workforce was “very diverse” and that the respondent took “a very robust stance towards discrimination of all kinds, including sharing racist material, in order to protect our colleagues, passengers and also Team Heathrow” (Team Heathrow meaning the wider group of contractors and other staff who worked at or in support of the airport’s operations but were not directly employed by the respondent).[10]She refers to the claimant’s description of the video in question as having been “educational” and “not offensive”. She reminds the tribunal that we agreed with her colleague’s description of the video as “racist, highly offensive and completely inappropriate”. She stated: “During the disciplinary process and the hearing, Mr Gomes has shown a lack of insight in relation to his conduct. Whilst he stated that he always tried to be careful, he has not demonstrated that he has truly reflected on his behaviour or why the content of the video was not acceptable as he has continued to refer to it as educational. It also took prompting for Mr Gomes to acknowledge that the video could be offensive.”[11]Ms Hobbs says: “Our real worry is that even though Mr Gomes says he has learnt from it I do not believe he has and he has continued to refer to the video as educational and there is a risk that similar behaviour could occur in the future. Due to the nature of our operation and the diverse nature of our workforce and workplace, we consider that the risk of having Mr Gomes work in the business is too great. We do not have any faith that he will not demonstrate similar behaviour again; we have lost trust in Mr Gomes’s ability to conduct himself in accordance with our Professional Conduct Policy and Guidance. If Mr Gomes was to be reinstated or re-engaged and similar conduct were to occur again this could result in further complaints from colleagues, a member of Team Heathrow or passengers. The risk is greater in my view due to the diverse nature of the workforce and due to the nature of our operation as a major international airport ... I am also concerned that allowing Mr Gomes back into the business in these circumstances would undermine Heathrow’s very strict stance towards seriously racist and derogatory material and language. Allowing Mr Gomes back into the business gives the impression that Heathrow is lenient towards racist content, which completely goes against Heathrow’s culture and values. I am concerned that this would undermine our ability as a business to take robust action in response to racist conduct.”[12]On the question the availability of a security officer’s role, she says that there were no current plans to recruit male security officers (the respondent’s search requirements means that they distinguish between male and female security officers), nor were there any identifiable vacancies. It was her position that the respondent was currently overstaffed with male security officers. This was said to be because the respondent had “outsourced Security in Campus but gave colleagues an opportunity to remain employed rather than their employment automatically transferring”. She later explained “Security in Campus” as referring to access to airside areas other than through terminals – so for example at access gates for goods vehicles. Landside to airside security in terminals continued to be undertaken by directly employed security officers, and this was the role that the claimant had previously undertaken.[13]In cross-examination Ms Hobbs said that around 50% of the respondent’s employees (out of a total of approximately 7,500) were employed as security officers. The largest cohort of these were at Terminal 5, followed by Terminal 2 with Terminals 3 and 4 having about the same number of security officers. The respondent employed around 3,700 security officers with an approximate “attrition rate” of 5%. Ms Hobbs accepted Mr O’Callaghan’s calculation that this would mean around 15 security officers left every month. She accepted that the job had not changed much since the claimant had been employed, and that he could be re-employed with some refresher training. In other words, a lack of ability or qualifications to do the job was not an objection to the claimant’s reinstatement.[14]When questioned as to the risk of future misconduct by the claimant Ms Hobbs said that “if he did not believe that the video was offensive then any other material he could not see the offence and might show it again”. In other words, an assurance from the claimant that an incident of this kind would not recur could not be accepted in circumstances where he did not seem to be able to identify matters that may be offensive. She said “point is that naivety is what the tribunal found. When you do not know and are not aware that what you are showing is offensive or racist may do it again – that is my big concern.”[15]So far as Ms Hobbs was concerned, the tribunal’s finding that “the claimant having worked without cause for complaint for 20 years or more strongly suggests to us that he is able to take management instruction and to follow orders he is given” was not necessarily wrong (or at least not challenged at this remedy hearing), but did not address the respondent’s concerns that even if he was capable of taking instruction he was not capable of recognising what may be considered to be offensive. She said “We offer training and he would have gone on trade union courses but despite all of that he never accepted that the video was offensive or racist.”[16]While accepting that her view that he may repeat his offence could be considered “speculative”, Ms Hobbs said that her role was to mitigate risk and while it could be “possibly speculative” it was nevertheless a “genuine concern”.[17]In answer to questions from the tribunal as to whether the claimant could be accommodated despite the ostensible overstaffing of male security officers, Ms Hobbs said that the effective cost to the respondent of one security officer was around £52,000 a year. C. THE LAW[18]The claimant seeks an order for reinstatement (not re-engagement) or, failing that, compensation. Remedies for unfair dismissal are addressed by s112 of the Employment Rights Act 1996, which in turn refers to s113: “An order under this section may be … an order for reinstatement (in accordance with section 114) …”[19]Section 114(1) says that “an order for reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed.” Other provisions of s114 specify required terms of such an order, and we will address that if necessary.[20]Reinstatement is dealt with by s116: “(1) In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account:(a) whether the complainant wishes to be reinstated,(b) whether it is practicable for the employer to comply with an order for reinstatement, and(c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement. … (5) Where in any case an employer has engaged a permanent replacement for a dismissed employee, the tribunal shall not take that fact into account in determining, for the purposes of subsection (1)(b) or (3)(b), whether it is practicable to comply with an order for reinstatement or re-engagement. (6) Subsection (5) does not apply where the employer shows: (a) that it was not practicable for him to arrange for the dismissed employee’s work to be done without engaging a permanent replacement, or (b) that: (i) he engaged the replacement after the lapse of a reasonable period, without having heard from the dismissed employee that he wished to be reinstated or re-engaged, and (ii) when the employer engaged the replacement it was no longer reasonable for him to arrange for the dismissed employee’s work to be done except by a permanent replacement.”[21]Clearly s116(1)(a) is met in this case and we will say no more about that.[22]So far as practicability of reinstatement is concerned, this is not simply about whether it is possible or not. An order for reinstatement must be “capable of being carried into effect with success” (Coleman v Magnet Joinery [1985] ICR 46).[23]In her submissions, Ms Dervin says there are four relevant “themes” for the tribunal to consider:(1) Breakdown of the employer’s trust and confidence in the employee,(2) Breakdown of the employee’s trust and confidence in the employer,(3) Where re-employment would be injurious to an employer’s reputation, and(4) Where re-employment would lead to overmanning.[24]Used in this sense, “trust and confidence” is distinct from the implied duty of trust and confidence. In Kelly v PGA [2021] EWCA Civ 559, Underhill LJ says at para 69: “In this context it simply connotes the common sense observation that it may not be practicable for a dismissed employee to return to work for an employer which does not have confidence in him or her, whether because of their previous conduct or because of the view that it has formed about their ability to do the job to the required standard. Of course any such lack of confidence must have a reasonable basis ... while that is an objective question it must be judged from the perspective of the particular employer: that reflects a proper recognition that an employment relationship has got to work in human terms ... each situation must be judged on its particular facts.”[25]At para 41 Lewis LJ said, “The question is whether the employer had a genuine, and rational, belief that the employee had engaged in conduct which had broken the relationship of trust and confidence between the employer and the employee.” He endorsed the decision of the EAT in United Lincolnshire NHS Foundation Trust v Farren [2017] ICR 513 set out in these terms: “[the tribunal] had to ask whether this employer genuinely believed that the claimant had been dishonest, and … whether that belief had a rational basis. It was, after all, this employer — not some other and certainly not the employment tribunal — that was to re-engage the claimant. The issue of trust and confidence had to be tested as between the parties in order to determine, even on a provisional basis, whether an order for re-engagement was practicable, whether it was capable of being carried into effect with success, whether it could work. The [respondent] might have reached a conclusion as to the claimant's honesty by an impermissible route in its dismissal decision and might also have drawn the wrong inference at the rehearing, but the tribunal still needed to ask, as at the date it was considering whether to order reengagement, whether it was practicable or just to order this employer to re-engage the claimant. It thus was the [respondent]’s view of trust and confidence — appropriately tested by the employment tribunal as to whether it was genuine and founded on a rational basis — that mattered, not the tribunal's. … the assessment of practicability for the purpose of a re-engagement order requires a … nuanced consideration of the position; something that an employment tribunal is very much best placed to undertake. In this case the assessment undoubtedly included the claimant’s long experience, her past good record and professional commitment; all matters that permissibly weighed with the tribunal. We equally do not say that the tribunal was wrong to have regard to evidence of references from other employees: we can see why an employment tribunal might not consider such evidence to be relevant, and we do not consider these were given great weight in the present case, but it is all a matter of assessment for the tribunal. What we consider the tribunal did have to do was to consider, as at that point in time, whether the [respondent] had made good that which it said made it impracticable or unjust to order re-engagement; that it could no longer have trust and confidence in the claimant. Given the tribunal had found that the claimant had committed the act of misconduct in question, that might not seem to have been an obviously irrational position, but … it was not the only question. The tribunal also needed to consider whether the [respondent] had made good its case that trust and confidence could not be repaired, whether its belief in her dishonesty was such that a re-engagement order was unlikely to be carried into effect with success. The tribunal was thus entitled to scrutinise whether the [respondent]’s stated belief was genuinely and rationally held, tested against the other factors the tribunal considered relevant. It was, however, still a question to be tested from the perspective of the [respondent], not that of another employer, still less that of the tribunal: was it practicable to order this employer to re-engage this claimant? And, unfortunately, we do not feel able to conclude this was the approach adopted by the tribunal. We consider that paras 48–49, in particular, set out the conclusions reached by the tribunal itself, standing in the shoes of the employer, testing the question of practicability from the tribunal's perspective rather than asking what was practicable as between these parties, the parties to the re-engagement order it was considering making. That being so, we consider we are bound to allow this appeal and set aside the order.”[26]Ms Dervin goes back to the EAT’s decision in Kelly ([2020] IRLR 927) for the following extract from the judgment of HHJ Auerbach: “… the Tribunal must consider whether the employer genuinely and rationally believes that trust and confidence has been broken, so that reemployment is not practicable: that is, not capable of being carried into effect with success. An employer cannot merely assert that this is the case in a self-serving way, in order to successfully resist the Order sought. The Tribunal should test and evaluate against the evidence before it, whether the employer’s stated belief is both genuinely and rationally held. But it must keep in mind that the ultimate question is about whether it is practicable for this employer to re-employ this employee. The requirement for the asserted belief to be both genuinely held, and have a rational foundation, is not a reasonableness test, or to be equated with that which would be applied under section 98(4) of the 1996 Act. A belief may have a rational foundation in evidence or information known to the person who forms it, though it has not been reasonably reached. This explains why, as authorities such as Crossan show, it is possible for an employer to rely upon a genuine and rational belief in misconduct as having a bearing on practicability, even though the dismissal for that same conduct was unfair.”[27]Ms Dervin goes on to say that this assessment of whether there is sufficient “trust and confidence” to mean that the reinstatement order is “capable of being carried into effect with success” is not limited to an assessment of the respondent’s position, but must also take into account the attitude of the claimant towards the respondent.[28]On the question of damage to the employer’s reputation, Ms Dervin relies on London Borough of Greenwich v Dell (EAT/1166/94).[29]As for contributory conduct, Ms Dervin says that making an order for reinstatement would render ineffective our finding that there should be a 12.5% deduction from any compensation by way of contributory fault, with reinstatement not being subject to the same penal provisions as re-engagement under s116(4).[30]Mr O’Callaghan does not take issue with Ms Dervin’s description of the law, but draws on Johnson Matthey v Watters (UKEAT/02236/06) in support of the claimant’s position. It is apparent there that the tribunal found that a 20% finding of contributory fault was not necessarily a bar to re-engagement (it was reengagement in that case) nor was a finding that the claimant’s behaviour had been “technically” within the scope of gross misconduct. The EAT refused to interfere with the tribunal’s re-engagement order. The tribunal in that case noted that: “In any situation in which the claimant has succeeded before an Employment Tribunal there is likely to be an element of difficulty on the part of the respondent in swallowing its pride and taking the employee back into the workplace.”[31]But that should not stand in the way of an order for reinstatement or reengagement, otherwise such an order could never be made. D. DISCUSSION AND CONCLUSION “Trust and confidence” and practicability[32]What has given us most pause for thought in our deliberations is the question of whether an order for reinstatement would be “capable of being carried into effect with success”. A significant aspect of this is the question of “trust and confidence”, not in the Malik sense, but as a “common sense observation”.[33]The first point to note is that such “trust and confidence” needs to exist both on the part of the employee and the employer.[34]While the claimant somewhat rowed back from this position in his oral evidence, as we have shown above his witness statement spent some time in criticising the respondent and in developing his various grievances against it, ranging from its treatment of employees during Covid-19 through to its appeal against our liability finding. The claimant in his oral evidence suggested that this referred to previous management, but if so it was easy for him to have said as much in his witness statement. He did not, and it can hardly be said that previous management are responsible for the appeal against our liability findings. The claimant has found himself in a difficult position and, as we found it, unfairly dismissed. It would be a surprise if there was not some lingering doubt or suspicion from him as to the respondent’s motives, but for him to spend quite so much of his witness statement criticising them across a range of issues does not seem to us to bode well for any reinstatement. We can add to that that his characterisation of his actions as “innocent” in his answers to crossexamination does not seem to amount to full acceptance that he did something wrong nor of what we have found to be his contribution (albeit limited) to his own dismissal. We do not see the willingness to draw a line under matters that seemed to be an important part of the tribunal’s decision in Watters.[35]While the claimant’s commitment to the idea of returning to work for the respondent cannot be doubted, we see in what we have said above reason to think that, if ordered, reinstatement may not work out quite so well as the claimant seemed to envisage.[36]The claimant’s eagerness to be reinstated seems to be matched by the respondent’s eagerness not to have him reinstated. Pages of Ms Hobbs’s witness statement were devoted to various reasons why the claimant should not be reinstated. There is no dispute in this case that the respondent genuinely believed that the claimant was guilty of the misconduct he was dismissed for, nor is there any real question whether that belief had a rational basis, it being at least in part admitted by the claimant. The problem we identified in our liability judgment was with the sanction and the associated question of the risk of repetition of the incidents in question – but there has never really been any question that the respondent genuinely and rationally believed he had committed misconduct.[37]It was apparent from Ms Hobbs’s statement that the respondent retained considerable suspicion about what the claimant might do if reinstated. While Ms Hobbs properly accepted that this was ultimately speculation she said that it was also a matter of managing risk. She is no more in a position to predict the future than we are, but we accept this is a genuine concern that the respondent holds. This is not a question of bluster or mere assertion in an attempt to avoid the inconvenience or embarrassment of reinstatement.[38]The difficulty that we face here is not just the respondent’s apparent suspicion of the claimant (which might in some circumstances be dismissed as in Watters simply as being resentment at being ordered to do something it does not want to do) but with the degree of mutual suspicion that is evident to us on a reading of both parties’ witness statements. That both parties spend much of their witness statements continuing to criticise each other does not suggest to us a situation in which reinstatement could be “capable of being carried into effect with success”. It is apparent that the claimant regards himself on some level as being innocent of the disciplinary charges that were brought against him. That is not a proper reading of our findings or our decision. Even given the large workforce and the fact that this is not a situation involving a clash between an individual manager and an individual employee there seems to us to remain considerable prospect for conflict in the attitude of both parties. Bearing that in mind we have, not without some hesitation, concluded that an order for reinstatement is not capable of being carried into effect with success in this case, and therefore should not be made. However, for the sake of completeness we will go on to look at the other “themes” identified by Ms Dervin. Reputation[39]The respondent spent some time in explaining what was seen as the effect on its reputation if the claimant was to be reinstated, in a similar manner to the Dell case. It also made suggestions to the effect that if the claimant was to be reinstated it would make disciplinary action against those suspected of discrimination impossible.[40]We do not see that there is anything in a reinstatement order that would limit the respondent’s ability to take action against those suspected of discrimination. To the extent there is any limit on the respondent’s ability to take action it would, we think, be more indicated by our decision that there has been an unfair dismissal rather than any remedy, but for the avoidance of doubt, we do not see anything in our liability decision to restrict the respondent’s ability to properly address cases of discrimination. Our findings relate to the claimant’s particular case.[41]So we do not see “reputation” as a reason for refusing reinstatement in this case. Is there a position available?[42]An aspect of the respondent’s argument that it was not practicable for the claimant to be reinstated was that there was no job available for him on the basis that the respondent was presently overstaffed with male security officers.[43]The consequences of engaging a “permanent replacement” are addressed in s116(5) and (6), but it seems to us that this is not a question of a “permanent replacement” having been engaged. The position of security officer at the respondent is unusual in that there are many thousands of them – we heard around 3,700 – doing essentially the same job in multiple teams across the various terminals. Officers from this pool are deployed in teams, but there is no particular sense in which any one person can be said to replace another on recruitment. On resignation or leaving for another reason the respondent loses security officers over time, there then being a bulk recruitment exercise, perhaps every year or so, to refresh the cohort of security officers. The numbers of security officers employed or available for work at any one time are dynamic, fluctuating depending on departures, recruitment and other matters such as holiday or sickness that may limit availability for work. The position was complicated in these circumstances by the oversupply of male security officers, described as arising from measures agreed with the trade union on the outsourcing of such work. Essentially the position adopted by Ms Hobbs was that the respondent was oversupplied with male security officers and could not accommodate the claimant’s return not because of the appointment of a permanent replacement but because of the oversupply caused by the measures agreed with the trade union. We accept that in those circumstances the specific provisions of s116(5) do not apply.[44]The consequences of this divided the tribunal, although this does not ultimately affect the outcome in this case or our refusal of reinstatement based on the question of trust and confidence.[45]The majority (C Juden & C Whitehouse) consider that this oversupply did not prevent the claimant’s reinstatement. The respondent was used to operating based on a range of numbers of security officers employed. There was no ideal number nor was there any absolute maximum. The costs of an additional security officer, while perhaps of some significance in absolute terms, were rendered all but meaningless across a pool of 3,700. An additional person was 1/3700th of the wage bill. The respondent would, every day, have a different number of security officers available for duty. Sometimes they may be short and have to rely on overtime. There was no suggestion that the respondent was so oversupplied that they were looking at redundancies. The respondent was able to operate satisfactorily with the number they had, and one more would make no meaningful difference to it. The claimant could, in principle, be reinstated, and the oversupply of security officers was not an obstacle to that.[46]The minority (EJ Anstis) considers that the oversupply of male security officers was a bar to the claimant’s reinstatement. This was not a case of the respondent having appointed a permanent replacement, but because of the measures adopted on the outsourcing it found itself with no vacancies for security officers. The claimant could not be reinstated to a role without there being a vacancy for that role, and it would not be just to require the respondent to take on an additional employee it had no need for.[47]In the event this point was not material to our decision.
Conclusion
[48]We refuse the claimant’s application for reinstatement. PART 2 - COMPENSATION[49]Given that we have found that there should be no order for reinstatement, and no order for re-engagement is sought, we must make an award of compensation and do so by using figures that have been agreed between the parties (subject always to the respondent’s appeal against our liability decision). The amounts are set out in our judgment. We were told that the claimant had claimed no relevant benefits that may be subject to recoupment during his period without work. PART 3 - STAY[50]The respondent has submitted an appeal against our earlier liability decision, which is proceeding under EAT reference EA-2025-000740-JOJ. During the course of this hearing the parties and the tribunal were notified that the appeal had passed the “sift” stage and was to be listed for a full hearing.[51]While as Mr O’Callaghan pointed out, in its reasons for this the EAT may have expressed more enthusiasm for some grounds of appeal than others, all grounds of appeal were allowed to proceed. Those grounds of appeal encompass both the tribunal’s finding of unfair dismissal and its assessment of reductions for contributory fault.[52]There had been previous correspondence about the tribunal staying any award of compensation that may be made, and Ms Dervin applied either for a later date to be given for the judgment to take effect (under rule 63) or a stay on the judgment (under rule 64). No date was specified, but the principle would be that the date would be the point at which the EAT finally disposed of the appeal.[53]The point being made by Ms Dervin was a familiar one. The respondent had lodged an appeal that may have the effect of overturning our liability decision, in which case the respondent would have no liability to the claimant. The respondent considered that its appeal had good prospects of success, and it having passed through the sift stage suggested that this was not to be dismissed as a fanciful appeal. If we did not stay the judgment, then either the respondent would have to pay the money to the claimant and hope that it could be recovered from him later in the event of a successful appeal, or the claimant would have to be put to the trouble of attempting county court enforcement at which point the respondent could seek a stay of enforcement from the county court.[54]Ms Dervin referred to two first instance decisions in support of her position, one from an employment tribunal to the effect that in principle such a stay could be granted in such circumstances (which we do not think is disputed by Mr O’Callaghan), and an unreported decision of the High Court (Michael Ford QC) criticising a respondent for attempting to obtain an injunction against enforcement and suggesting that a stay would be appropriate in such circumstances.[55]Mr O’Callaghan’s position was that the respondent had not put forward anything to suggest that the claimant would not be good for the money in the event that our decision was overturned and the judgment had to be repaid although, as we pointed out, he had spoken of being in debt to friends and colleagues who had supported him with legal fees.[56]This is not a case in which it may be appropriate to stay only part of the judgment, or in which it might be said that the appeal could only succeed in limiting the respondent’s liability. A successful appeal could extinguish the respondent’s liability altogether. We have considerable doubts about whether in such circumstances it would be able readily to recover its money from the claimant. If the appeal failed, then the claimant would get his money subject only to a delay (which we accept may be considerable) caused by the appeal process. In such a situation we consider it best balances the position between the parties by us staying the judgment pending resolution of the appeal, and consider that we should do that ourselves rather than having the parties go to the cost and expense of county court enforcement proceedings, so that is what we have ordered. Approved by The claimant was unfairly dismissed.[2]The remedy to which the claimant is entitled will be determined at a further hearing to take place on 9 & 10 July 2025. If the tribunal awards compensation for unfair dismissal (rather than reinstatement or reengagement) the basic award and compensatory award will both be reduced by 12.5% to take account of the claimant’s contributory fault.[3]The claimant’s complaints that he was subject to detriments and/or dismissed because of public interest disclosures are dismissed on withdrawal. Approved by