The Claimant began working at an Apple retail store in London from 2010 as a ‘genius’, helping customers who had problems with their devices, until his dismissal in February 2023.
In December 2022 when a colleague, Mr Webster, was going on secondment the Claimant said he would see him on his return “as long as you lot don’t release another deadly disease on the world”. This comment was directed at another colleague, Ms Liu, who was of Chinese heritage.
Ms Liu did not report this comment, however Mr Webster did, stating that she looked shocked. He had spoken to her and she had asked him not to take the issue further and that she would have a word with the Claimant herself.
A few days later the Claimant stated that had a colleague claimed he was of Jamaican or Asian heritage he would have been selected for a promotion opportunity.
Apple launched an investigation into these allegations but it was not made clear to the Claimant what the subject of the investigation was. The Claimant was not told that Ms Liu herself had not made the complaint. When asked about these comments she confirmed she did not view this as harassment coming from the Claimant. She also confirmed that they would joke like this a lot.
The chair of the disciplinary hearing referred to a zero tolerance policy and approach to these kinds of comments. The Claimant was dismissed despite his otherwise clean disciplinary record.
The Claimant appealed this decision since termination was “not a logical and reasonable response to the facts presented.” The original decision was upheld. The tribunal described the appeal outcome as a “confusing document”. It was concluded that the first allegation contravened the bullying and harassment policy, but it was not explained in detail why that was. The decision was based on the belief that there was a zero-tolerance policy and no mitigating factors.
The Claimant successfully brought a claim of unfair dismissal to the employment tribunal. The process was heavily criticised. The investigation was “based on shifting sands” and the allegations were not set out clearly. The tribunal also stated that no reasonable employer would terminate an employee on the basis of a zero-tolerance policy “which does not exist”. It was not set out in writing and therefore the parameters of the policy and the sanctions for not complying with it could not be demonstrated.
It was also noted that the appeal had not recognised or dealt with the “inadequacies of the original procedure”.
For employers, this case demonstrates the importance of a fair investigation and crucially being able to evidence the procedures and policies that have been followed during the process.
If you have any questions on any of the issues raised in the above article, please contact Natalia Milne.