Mr C Markie v The Salvation Army Trustee Company: 8001635/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8001635/2024Venue DundeeHearing 15, 16 and 17 September 2025
Between
Mr C MarkieClaimantThe Salvation Army Trustee CompanyRespondent
Before
Employment Judge J HendryMr J Lawson (instructed by Solicitor) for claimantMs K Stein (instructed by Advocate) for respondentMr S Parmar (instructed by Solicitor) for respondentDate 4 November 2025
JUDGMENT
[1]The claim for unfair dismissal not being well founded is dismissed.[2]The claims for direct sex discrimination not being well founded are dismissed.[3]The claims for harassment under Section 26 of the Equality Act 2010 not being well founded are dismissed.
REASONS
[1]The claimant in his ET1 sought a finding that he had been unfairly dismissed from his position as a Social Services Worker with the respondent and that he had also suffered both direct sex discrimination and harassment on the grounds of age, sex and religion or belief. By the time of the hearing the claimant had withdrawn his claim for discrimination on the grounds of religion or belief but maintained claims for sex discrimination (direct) and harassment.[2]The claimant made no claim for wrongful dismissal.
Issues
[3]Although no List of Issues was prepared by parties they indicated that there was no dispute as to the issues the tribunal had to address. The issue in relation to the principal claim for unfair dismissal was whether or not the dismissal, was in the circumstances, outwith the band of reasonable responses available to the employer. The claimant had set out in paragraph 16 of the ET1 why he believed the dismissal was unfair. The other claims were essentially factual and he had set out the bases on which he was claiming sex discrimination/harassment in paragraphs 17 and 18.This related to a discrete incident involving an alleged sexist comment made by the claimant’s manager.
Evidence
[4]The respondent gave evidence first. I heard evidence from Miss Alexandra Campbell, Assistant Regional Manager; Miss Tracey Young, Programme Manager; Ms Karen Goode, Childcare Nursery Manager; Miss Angela Gray, Support Worker; Miss Anne-Marie McFarlane, Support Worker and from the claimant. The parties had lodged an agreed joint bundle of documents.[5]It should be noted that no issue was taken in respect to the accuracy of the investigatory, disciplinary and appeal hearing minutes.[6]I found the following facts established or agreed. Findings in fact[7]The claimant is a 56 year old man. He has worked for the respondent in various capacities since June 2005. He worked in Dundee as a Social Services Worker (Support Worker). He has a clean disciplinary record. The claimant received various iterations of his contract of employment the last being December 2019 (JBp58-67). He was subject to the disciplinary policy referred to there and to the other policies governing employees intimated by the respondent and altered from time to time.[8]The respondents are The Salvation Army Trustee Company. It is a trustee of various charitable trusts and undertakes charitable work particularly in relation to the homeless and vulnerable throughout the UK in the name of The Salvation Army. The organisation is run as a Christian church and charity.[9]Strathmore Lodge is a hostel for otherwise homeless men and women in Dundee. It aims to support individuals to ultimately achieve independent living. It is a “halfway house”. It gives residents various forms of support, training and guidance to equip them with the necessary skills to sustain independent living within the community.[10]The claimant reported to the Programme Manager at Strathmore Lodge, Tracey Young. He was engaged in supporting service users there and assisting them move towards independent living. Many had issues such as drug and alcohol misuse.[11]For some years there has been difficulties with service users/clients getting local authority or other housing in Dundee. There is a long running shortage of suitable housing.[12]The respondent supports, amongst other groups, asylum seekers who are referred to them by the Local Authority.[13]Prior to the 5 March staff, including the claimant, had been warned to use professional language at work and about the dangers of gossip by Miss Young. Events of 5 March[14]On 5 March 2024 the claimant was at work. There was a changeover of staff at 2pm. Miss Young had just been told by telephone by one of the local authority’s Housing Officers that service users who were moving on to local authority housing would have less choice than previously in relation to the number of offers they could refuse which would now be one reasonable offer and that they had to apply to stay in a minimum number of areas.[15]Following the call Miss Young spoke to the staff present. These included Miss Angela Gray, Miss Anne-Marie McFarlane and the claimant. She told them about the new rules. She asked them to tell their clients to identify at least 20 out of a possible 40 potential areas when applying to move as they would only now be provided with one reasonable offer.[16]In response to Miss Young’s comments the claimant became aggressive and angry. He swore. He said that he would not be co-operating with the local authority and that no other agency should be dictating to them what they should be doing. Miss Young told him that contractually they had to assist. He went on to remark, “there wouldn’t be a housing shortage if we weren’t taking in 150 refugees”. He then said, “send them all back on a boat”.[17]Part of the claimant’s job was to support those using the respondent’s facilities and this included refugees.[18]The claimant’s comments were met with shock by those present. His comments were challenged by staff. Miss McFarlane referred to a service user who was a refugee from Syria. He responded ‘‘yes the lot of them’’. She told him that the person in question had nothing to go back to.[19]The claimant’s manager was approached by a member of staff who had witnessed the exchange. She said that she hoped that the claimant would be ‘‘pulled up’’ as what he said was racist.[20]At some point in early March the claimant was loudly talking about the misuse of the benefit system and a former employee. He passed a comment that the employee had been sacked ‘‘because he wore shorts and when he bent over his balls fell out…’’ Miss Young passed the comment ‘‘as long as it doesn’t happen to you’’ She warned him about his gossiping and the need to be professional. Miss Young raised the need for professional behaviour at a later meeting on the 15 March. The claimant began complaining that staff couldn’t even joke or take part in banter. He accused Miss Young of saying to him on the earlier occasion to ‘‘drag his old man’s balls along the office floor’’. She denied making the comment the claimant had now attributed to her.[21]The manager took advice about the comment made by the claimant on the 5 March and then began an investigation. She interviewed the claimant on the 8 March. She put to him that another member of staff had been dismissed for racist remarks. He made reference to the fact that he had been referred to as a racist which he denied. The meeting was minuted (JBp75-76).[22]Miss Young prepared an Investigation Report which included notes of meetings with the claimant and Anne-Marie McFarlane and Angela Gray and a statement from Miss Young.[23]The report recorded (JBp68-72):- “On the 5th March 2024 myself TY (Programme Manager), AMM (Support Worker) AG (Assistant Support Worker) and CM (Support Worker) were having a conversation in the front office, we were discussing the facts regarding Housing Options now only giving one reasonable offer and that there is a housing shortage and our clients need to open their areas up adding at least twenty areas out of forty. CM disagreed with this and stated ‘he would not be doing this with his clients as he felt it was unfair. CM stated that there would not be a housing shortage if we weren’t taking in the one hundred and fifty refugees’. I heard CM state ‘Send them all back on a fucking boat’. I consulted my Manager (Morag McGrattan) it was then decided to consult KM (HR) and the investigation began 06/03/24”.[24]It was recorded as follows:- “CM agreed that he had made the comment ‘send them all back on a fucking boat’. CM confirms he made this comment but reinforces that he did not mean it to be racial and that he is not a racist. AMM confirms that the discussion was around the lack of housing and in relation to the challenges of housing CM stated, ‘send them all back on a fucking boat’. AG confirms the discussion agrees that the statement ‘send them all back on a fucking boat’ was made by CM. TY confirms that the statement ‘send them all back on a fucking boat’ was made in front of herself and other Support Workers.” The respondent obtained statements from other witnesses. Notes were taken (JBp75-90).[25]The respondent then wrote to the claimant on 14 May asking him to attend a disciplinary hearing on the 29 May 2024. The disciplinary hearing was chaired by Miss Karen Good a Service Manager. Policies[26]The claimant’s contract (JBp58-67) made reference to the respondent’s disciplinary grievance “and other policies and procedures”.[27]The respondents have an HR Handbook for their policies. Staff such as the claimant are provided with regular training including training in diversity and inclusion. The HR Handbook contains the following entry (JBp86):- “3. Standards of conduct This code of conduct applies to all employees of The Salvation Army. Employees are expected to make themselves aware of The Salvation Army’s policies and procedures and abide by these. The Salvation Army endeavours to maintain high standards of conduct and integrity. We also strive to maintain a working environment that is aligned with the mission and values of The Salvation Army. The Salvation Army has an Equality Diversity and Inclusion Policy. We are committed to equality of opportunity. It is our conviction that unfair discrimination between people is against God’s purposes and is morally indefensible. Employees of The Salvation Army are required to work without discrimination and to respect other people’s human rights. Employees agree that during the course of their employment they will respect the Mission Statement of The Salvation Army and will not do anything that would hinder its influence or damage the reputation of The Salvation Army. …. Employees agree to conduct themselves at all times with honesty and to strive to be a positive example. Where there are professional standards to be maintained, employees will adhere to them at all times and work within agreed professional boundaries.”[28]The respondents have an Equality Diversity and Inclusion Policy. It enjoins staff to actively work to “Eliminate unlawful discrimination, harassment and victimisation. Advance equality of opportunity for all. Foster good relations within different groups of people and the communities that we serve.”[29]Paragraph 4 of the policy contains the following passages:- “4.2. All clients and personnel will be treated fairly and with an equal level of respect and where possible, will have equal access to employment, education and training opportunities, goods, services and facilities. ….. 4.4. We will ensure our services are inclusive and accessible for our clients and there is fair access and exit from service for all clients by identifying barriers which prevent equality of opportunity. ….. 4.7. Understanding of diversity and inclusion must be promoted within the workplace and our services through relevant training including mandatory training courses in equality diversity and inclusion.” Employees such as the respondent are also subject to a Code of Conduct for Social Service Workers. The Code provides (JBp95) that:- “Social service workers must: Protect the rights and promote the interests of service users and carers. Strive to establish and maintain the trust and confidence of service users and carers. …. Uphold public trust and confidence in social services.” As part of the Code they are also required to communicate in an appropriate, open, accurate and straightforward way (JBp99). The Code also provides that Social Service Workers may not:- “5.5 Discriminate unlawfully or unjustifiably against service users, carers or colleagues. 5.6 Condone any unlawful or unjustifiable discrimination by service users, carers or colleagues. …. 5.8 Behave in a way, in work or outside work, which would call into question your suitability to work in social services.”[30]The claimant was also subject to the respondent’s policy “Treating People with Dignity” which was designed to develop “an inclusive environment aligned to its mission and values” (JBp108).[31]The respondent’s Disciplinary and Dismissal Policy gives examples of gross misconduct (JBp114) which includes serious breach of trust, unprofessional conduct and activities likely to damage the reputation of The Salvation Army. Disciplinary Hearing[32]The claimant received a letter dated 14 May 2024 (JBp123-124) requiring him to attend a disciplinary hearing. The disciplinary offence was stated as being: “On the 5th March it is alleged that you made a comment that may be considered to be racial and discriminatory by stating ‘send them all back on a fucking boat’ which is in breach of the Equality Diversity and Inclusion Policy (CS01) Section 4, Breach of Working with People Policy (HR22) Section 3, Breach of SSSC Codes of Practice Code (1.5) (1.6) (2.2) (5.5) (5.8) (6.1) (6.5) and the Handbook of employment.”[33]At the hearing the claimant was asked about his comments at the meeting on the 5 March. It is recorded the claimant said as follows: “I remember making to a comment. I didn’t say the F word. I said send them all back on a boat. I didn’t swear. Later in the investigation I did swear and put hands up to that. It was my point of view, wasn’t directed at anyone. We are letting too many people in when we don’t have facilities or housing to give them. CM confirms he didn’t mean to hurt anyone or that he isn’t racist and has foreign friends.” The claimant was questioned about his length of service and the values that employees were expected to have. He was asked:- “Do you feel the comment you made was within our values as an organisation?” and he responded:- “Probably not – no. I have supported many clients and some of my favourite clients have been from a different country. I don’t make a difference with them.” He was asked how he would deal with an increase in refugees and indicated, “It wouldn’t bother me.” He indicated that he didn’t mean to cause a ‘‘drama’’. It is recorded that he said, “I’m not trying to use mental health as excuse but every manager will tell you the last 20 years I get carried away. I get excited and make stupid comments. If I knew how to get myself back down it would save me grief. 15 years to the GP how to get a balance of either being up or down. I do make stupid comments but don’t mean any harm.” He raised the point (JBp129) that the following is noted:- “Sorry for everyone being here today and causing this drama.”[34]The claimant accepted that he had breached the respondent’s policies (JBp128).[35]Miss Good considered the evidence before her. The claimant had not denied making the statement other than he denied swearing at that particular point. She believed that the claimant did not have insight into why the comment he had made was so objectionable given his role and the values of the organisation. She did not accept that he was truly remorseful for the matter referring to it at the hearing as a ‘‘drama’’.[36]Miss Good did not accept that he had been directing his anger at the local authority by making this comment. She considered that his mental health was not a mitigating factor. Miss Good believed that the comment was racist and undermined any trust she had in the claimant’s ability to carry on with his role which involved helping refugees based on their needs. Her belief was that the comment was wholly contrary to the policies the claimant had to abide to and had been trained in. She considered alternatives to dismissal. The obvious alternative she believed was training. She rejected this as the claimant had been trained in diversity, and was aware of the policies that applied to him. In this regard his lengthy service militated against this option as he had received training throughout his service and was aware of the values of the organisation. She did not believe that a lesser penalty could be properly imposed or that trust in the claimant could be restored. She concluded that the claimant had committed gross misconduct by expressing these views and that he should be summarily dismissed.[37]Miss Good wrote to the claimant dismissing him with effect from 31 May 2024. The letter noted:- “You admitted making the comment ‘send them all back on a boat’ but denied that you used profane language in the comment. However, you acknowledge that profane language was used by you during the discussion. Witness statements showed the same comment made across all statements where profane language was used. We believed that you may not have intended to cause any harm, however, a statement of such nature does not fit with The Salvation Army’s Values regarding the support that we provide, that no one will be discriminated against, that they will be supported solely on their need at that time, including support to displaced persons. Also, you stated that you believed the statement that you made in terms of housing not being available for ‘your’ service users due to the increase of refugees and that this was your point of view and taken out of context. You apologised for making the comment and that you did not wish to hurt anyone with the comment made. However, the comment is not aligned and in breach of the Salvation Army policies and SSSC Codes of Practice Code and may have had a significant impact on the Service and Organisation as a whole.”[38]The claimant emailed the respondent on 9 June (JBp136) taking issue with the suggestion that he was aggressive and claimed that everyone was “laughing” during the conversation. He also alleged that Tracey Young had made a comment “that I have old man’s balls, which hung low” and that this was humiliating and unwanted sexual harassment. He said that during the meeting on 15 March Tracey Young directed anger and frustration at him and described it as a “tirade”.[39]The letter was treated as an appeal and grievance against his manager. The appeal hearing was dealt with by Miss Sandra Campbell the Area Operations Manager. The claimant was invited to a meeting which was minuted. The claimant was asked to talk the hearing through the basis of his appeal. He suggested that the meeting that took place on 5 March had been “quite jovial and ended in jokes about his manhood”. It is recorded “I think it was unfair that I’ve been sacked for an indirect comment. I’m certainly not a racist. I feel there were other comments within that ten minute conversation that were far worse than what I said. I certainly didn’t humiliate anybody and I felt that – at the end of that conversation by what was said.” The claimant denied the comment he had made about sending people back on boats was racist. He said he wasn’t directing it at anyone. It was recorded that he said the following:- “They’re bringing 150 people in that they don’t have homes for, they’re promising these people something they’re not going to give them, which isn’t fair. And that impacts on the homeless in the city. I’m not being, I didn’t think I was being racist – just angry at the Council for the decisions they make.” The claimant was asked about respecting human beings generally and it was put to him that many asylum seekers or refugees were fleeing persecution because of their religion or sexual orientation. Miss Campbell commented: “And we do hear terrible stories of people who are that desperate to get out of a country they actually escaped by means of a boat and a lot of people perish. So, taking all that into account when you make a comment, send them all back in a *** boat – what does that, taking into account all that I’ve said, what do you think about that in terms of somebody else hearing that?” The claimant responded:- “I totally get what I said was wrong – I never disputed that. I never disputed what I said was wrong. I just didn’t mean it in that context. It’s just not what I meant.” The claimant went on to explain that he was trying to criticise the Council.[40]The hearing explored the allegation the claimant was humiliated by comments made by his manager. The claimant said “Sack me but don’t sack me for gross misconduct.”[41]Miss Young was asked to comment about the claimant’s allegation. She provided the Appeals Officer with a statement (JB159-160). She was not sure when the remark had been made. She explained that the context was a ‘‘rant’’ that the claimant was engaged in about people exploiting the benefits system. He passed a comment that one of the people misusing the system was ‘‘sacked because he wore short shorts and when he bent over his balls fell out….’’ He was told he should not be talking like this and that as long as this didn’t happen to him when he was wearing shorts he had nothing to worry about’’.[42]The issue of gossiping was raised at a Teams meeting on the 15 March by her. The fact that gossiping was discussed was corroborated by Miss McGrattan a Service Manager who said that Miss Young had several discussions about professionalism in the office before the Teams meeting. The claimant’s response at the meeting was that it was just ‘‘banter’’. He then referenced an alleged exchange with Miss Young about his ‘‘baws swinging on the carpet’’ which she angrily denied and said referenced the person the claimant alleged was misusing benefits (JB P162). Comment on the matter was also sought from Miss McFarlane (JBp163-165) and Miss Grattan. Who had been present. They broadly supported Miss Youngs recollection. The grievance was not upheld. Following her review of all the evidence Miss Campbell did not believe that the matter impacted on the reasons for the claimant’s dismissal.[43]The claimant was emailed on 13 July with the appeal meeting decision which was to reject the appeal. The letter emphasised that she had heard evidence that there was training and discussions within the staff team about the language or use of language that should be used in the workplace. Miss Campbell summarised her position:- “… the comment you made is in breach of the Salvation Army’s Equality Policies, and our Values as an organisation overall. Furthermore, much of the Salvation Army’s work is about helping, supporting and assisting people who are economically and socially at a disadvantage in society. Much of our work is about supporting people who find themselves, through no fault of their own, in very difficult circumstances. We are an organisation who welcomes anyone who needs support. Our employees’ personal values should align with the work that we do and with the overall organisational Values. The comment you made that resulted in your dismissal is inflammatory, offensive and is considered racist. Such conduct cannot be tolerated, and we have no assurances that such comments would not be made again by you. The comment you made presents a risk to our reputation as an organisation, and could cause harm, offence and upset to individuals. If you were reinstated by the organisation the likelihood of such comments being made again by you is a risk we cannot sustain. When asked what you are looking for as a result of the appeal you raised; you commented that you do not want your job back, but you want your name cleared.” Witnesses[44]I found the respondent’s witnesses, without exception, to be both credible and reliable in their evidence which they gave in straightforward and clear terms although the passage of time had impacted on some of their recollections. The essential element of the 5 March meeting, namely the claimant’s comments about sending refugees back on a boat, had left a strong impression on the witnesses who had been present and their shock at what the claimant said was evident in their evidence. Miss Good, Miss Campbell and Miss Young approached their responsibilities in a careful, measured and professional way. They showed no personal antipathy towards the claimant.[45]I did not find the claimant a particularly credible witness. He does not seem to have resolved in his mind the various apparent contradictions in his position. He obviously regrets making the comments he did as the consequences for him have been severe but does not seem to realise why the comment was so damaging. Submissions[46]Ms Steiner began by addressing whether there was any procedural unfairness as suggested by the claimant in that Miss Young was both a witness and had undertaken the initial investigation, that the hearings were not even handed and that he had insufficient notice of the allegations. In her submission the appeal which was a detailed rehearing cured any possible earlier difficulties (Taylor v OCS Group (2006) IRLR 613 CA. In any event she did not accept that there were any material issues of unfairness. The fact was that the case revolved behaviour which the claimant was well aware of and which he accepted was wrong. He knew what the disciplinary hearing was about. The process was fair overall.[47]She then addressed the fairness of the dismissal reminding the Tribunal of the guidance in Iceland Frozen Foods v Jones (1983) ICR 17. The reason for dismissal was conduct and the respondent had ample material before them to allow them to conclude that the claimant had made a racist remark and that this was a serious breach of their conduct policies amounting to gross misconduct justifying dismissal. The case of British Home Stores Ltd v Burchell established a three-part test for the reasonableness of an employer's investigation in dismissing an employee for misconduct. The test requires that the employer must have a genuine belief in the employee's guilt, have reasonable grounds for that belief, and have carried out a reasonable investigation before reaching the decision. This was amply fulfilled in her submission.[48]Counsel took the Tribunal briefly through paragraph 16 of the ET1. The first point had fallen by the wayside. She commented that the claimant had no right to forewarning of the disciplinary charge and was perfectly capable of answering them. The appeal had cured any possible defect and it was significant that no issue was taken in evidence or cross examination about any specific lack of even handedness or prejudice. Ms Steiner made reference to the recent prosecution of Lucy Connolly and to the Appeal Judgment (against sentence) in that case. Accepting that the case was a criminal case she nevertheless suggested that the analysis by the court of the comments made might be of assistance. In it was that if you write what appears to be racist a comment people are entitled to judge it at face value and conclude you as a racist. In the present case the apology was half hearted and the claimant’s initial response to describe these matters as ‘banter’ or a ‘‘drama’’ was flippant. He should have known better given his experience and the training he had received. It was apparent that even after some months of reflection the claimant had little insight into the meaning and implications of his comment.[49]In her submission the claimant’s expressed values were the antipathy of the respondent’s values and had wholly destroyed any trust they had in his judgment. In Counsel’s submission the witnesses were careful credible and reliable witnesses. She then turned briefly to the issue of the alleged comment made by Miss Young. This was she suggested a deflection. After investigation it was clear that there had been issues over gossiping and that it had been the claimant that had made the comment about someone exposing ‘‘their old man’s balls’’.[50]The suggestion that everyone was just having a laugh at the meeting was not borne out by the reactions of staff that heard the claimant’s comment. Miss Young immediately took advice about the matter leading to the investigation. The employer was entitled to say that there were no mitigatory features. The claimant’s ‘‘gloss’’ on the comments was not accepted and although his mental health was considered it could go no way to explaining the comment made by him. All of these judgments fell within the band of reasonable responses.[51]Mr Lawson began by strongly asserting that the Connoly case was of no assistance to the Tribunal. It related to a criminal case and was irrelevant. Threatening to burn down a migrant hostel was clearly an order of magnitude that the claimant’s comment could not reach.[52]In his view the respondent should have been reassured that the claimant had apologised and accepted that what he said was wrong. In relation to the recent demonstration against asylum seekers mentioned by Counsel he suggested that 100,000 people can’t all be racist. The claimant showed insight. He apologised. He had a clean disciplinary record. The Tribunal should recall that Miss Good said that the claimant could not take back the comment. This showed a closed mind. The claimant accepted that he had breached the respondent’s practices.[53]Mr Lawson referred to his written submissions and to his primary submission which was that dismissal was outside the range of reasonable responses open to them. He referred the Tribunal to the case of NC Watling and Co Ltd v Richardson (1978) ICR 1049, EAT. The respondent is a large organisation and the managers had HR support. The managers approached the matters with closed minds. He disputed that the comment could amount to gross misconduct (Brito-Babapulle v Ealing Hospital NHS Trust (2013) IRLR 854, EAT. In that case the employers dismissed because they proceeded on a false premise that once gross misconduct was established the dismissal must then fall within the band.[54]The claimant’s agent also drew the Tribunal’s attention to the case of Foster v Somerset County Council (2004) EWCA Civ 222, CA. The respondent’s officers failed to consider if a warning was sufficient which was again evidence of a closed mind approach. In the case of Letts & Co Ltd v Howard (1976) IRLR 248 after bad language had been used a sincere apology that meant that the words themselves could not amount to gross misconduct. Mr Lawson then went on to discuss contributory fault and a Polkey reduction. Discussion and Decision[55]The starting point is the Employment Rights Act 1996 and in particular the terms of Section 98. “98 General.(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it— … (b) relates to the conduct of the employee, … (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) — (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”[56]In this case, there was no dispute that the dismissal was found to be by reason of conduct. The claimant’s solicitor argued that the sanction fell outside the range of the band of reasonable responses. His task was not assisted by the evidence that his client accepted that he had breached policies and that some punishment or sanction was appropriate, but not a finding of gross misconduct. Somewhat surprisingly there was no claim made for wrongful dismissal.[57]In conduct dismissals there is well established guidance for tribunals on fairness within section 98(4) in the decisions BHS v Burchell 1978 IRLR 379 and Post Office v Foley 2000 IRLR 827. The tribunal must decide whether the employer had a genuine belief in the employee’s guilt. The tribunal must decide whether the employer held such genuine belief on reasonable grounds and after carrying out a reasonable investigation. In the present case it was clear that both the dismissing officer and the appeals officer believed that the claimant had breached their policies on conduct. As noted earlier this was not disputed and the claimant himself. They also believed that the comment had undermined their trust in his ability to work for them and with the service users they worked for.[58]Some issues of procedural unfairness was raised in the ET1 but I found nothing of substance in these matters. It might have been wiser for another Manager to have dealt with the investigation given that Miss Young was also a witness but that said the overall disciplinary process was capably and fairly handled. The claimant could point to no unfairness or prejudice in the process adopted. In addition, the facts of the incident on 5 March, except for the use of a swear word, were not disputed. I could find no evidence to suggest that the investigation, disciplinary and appeal were not handled in an even handed manner. The claimant’s issue was that his employer’s did not accept his mitigation. I do not find any evidence of the Disciplinary or Appeals Officer approaching the matter with closed minds. They both carefully considered alternatives to dismissal and rejected them.[59]The primary issue in this was whether dismissal following a sole incident of wrongdoing fell within the band of reasonable responses open to the employer. In considering this matter the Tribunal needs to judge the matter in all aspects of the case from the investigation, the grounds for the employer’s belief, the penalty imposed, and the procedure followed, in deciding whether the employer acted reasonably or unreasonably within section 98(4) using the ‘yardstick’ of the band or range of reasonable responses open to an employer in the circumstances.[60]In considering the reasonableness of the sanction of dismissal for the purposes of section 98(4), the Tribunal should apply a band of reasonable responses test. In applying this test the Tribunal should be mindful that the test is an objective one as to what a reasonable employer might do in the circumstances rather than what the Tribunal thinks it should have done.[61]The “range of reasonable responses” test has been a fixture of unfair dismissal law for many years. It was first articulated by the Court of Appeal in the early 1980s and has been reaffirmed in many cases such as in the well known case of Iceland Frozen Foods Ltd v Jones. In that case The Employment Appeal Tribunal stated that a Tribunal’s role is to consider the reasonableness of the employer’s conduct, not whether the Tribunal would have made the same decision. A dismissal is fair if it falls within the band of reasonable responses, and unfair only if no reasonable employer would have dismissed in those circumstances.[62]The test has been said to have limits and not to be unendingly elastic. In the case of Bowater v Northwest London Hospitals NHS Trust a nurse was summarily dismissed after making a single inappropriate (lewd) remark while assisting lifting an unconscious patient. The remark was said to be ill-judged but meant as a joke, and no patient or public member overheard it. The Employment Tribunal found the dismissal unfair, reasoning that most would view it as humour, not gross misconduct warranting dismissal. Although the Employment Appeal Tribunal initially disagreed, the Court of Appeal ultimately agreed with the Tribunal that no reasonable NHS employer would have dismissed in these circumstances. This case highlights that a dismissal can fall outwith the band when the conduct at issue is minor and causes no harm.[63]That cannot be the said to be the case here. The evidence showed that the claimant’s colleagues were shocked at the comment made betraying as they saw it a complete insensitivity towards those that they were duty bound to help. In passing I would observe that I did not find the reference to the Connolly case of assistance. As Counsel readily accepted, this was a criminal case turning on the appropriate sentence for admitted racist posts. It is not for the Tribunal to characterise the comment made by the claimant as racist. That was a matter for his employers and they were entitled to take the sentiments expressed at face value. The overall, context in which the comment was made does nothing to assist the claimant. The respondent had regard to the all the evidence in the Investigation Report which disclosed that when the claimant was challenged about the service user from Syria his comment was that he should be sent back as well.[64]The claimant did himself little service when on the one hand apologising for the comment describing the matter as a drama and seemingly seeking to minimise the seriousness of it. The explanation that he was really annoyed with the Local Authority did not explain why his comments were directed, not at them, but at refugees. I had some sympathy for the claimant in the sense that the sentiment he expressed has become much more commonplace in public discourse perhaps dulling his appreciation of how inflammatory it would have sounded to his colleagues and employer dedicated as they are to assisting the people he believed should be sent back on a boat.[65]Miss Campbell was prepared to give the claimant the benefit of the doubt and accept that he may not have used the adjective ‘‘fucking’’ in the comment but that he had been swearing at other points. That, however, did not in her view alter the fundamental sentiment being expressed. She considered alternatives but came to the conclusion that dismissal was the only appropriate option having considered the factors the claimant believed put forward as mitigatory namely his mental health and good disciplinary.[66]The relatively recent case of Vaultex UK Ltd v Bialas EA-2022-001258- AT considered the dismissal of someone who had posted what was described as a racist joke on a company site. The EAT at paragraph 62 said the following: ‘‘What the employer concludes was the employee’s state of mind in relation to the conduct will obviously usually be highly relevant to whether dismissal was within the band of reasonable responses. But it may still be open to an employer within the band of reasonable responses to dismiss for conduct which, though it is not believed to be malicious, is still reasonably considered to be seriously thoughtless or lacking in insight, negligent or reckless, in view of what is considered to be its serious impact or implications.’’[67]I considered the claimant’s position that the comment he made was spontaneous and “off the cuff’’, meant to be both flippant and harmless. I did not accept his evidence on these matters. He was perhaps used to expressing his opinions loudly and went on this occasion too far by articulating his views. The employers were entitled, in my opinion, to take the view that they did namely that the comment itself expressed the claimant’s underlying views that the refugees were to blame for their own plight and was racist.[68]It was clear that the employers here did not dismiss for some trivial or mistaken reason but for reasons that they were entitled to regard as serious and substantial justifying dismissal and in the Judgment of the Tribunal their actions fell within the band of reasonable responses open to them.[69]Finally, in relation to the remaining claims of direct sex discrimination and harassment, these claims also fall to be dismissed. The offending comment, which I will not repeat, originated from the claimant and not his manager as he suggested. He raised the matter to deflect from his own misconduct. The employers were entitled to refuse to uphold his grievance about this matter and had ample material to do so.[70]The Tribunal, nevertheless, must consider objectively what the factual position was and whether the sex discrimination and harassment occurred. It is noteworthy that the claimant made no complaint at the time about these matters nor did he raise it as the disciplinary hearing but only at the appeal stage. Miss Young strenuously denied being the originator of the comment and her position was corroborated by other evidence. The claimant’s evidence on the matter could not be relied upon and accordingly these claims have not been made out and also fall to be dismissed.