The Claimant was employed by the Respondent between 17 July 2011 and 5 April 2022 as a train operator. On 6 January 2022 the Claimant was assigned to a London Underground Central Line train. When arriving at Holborn Station the platform was on the left-hand side and the wall was on the right. The Claimant opened the doors on both sides. A customer complained stating “the health and safety issues here are obvious, suffice to say that had I been leaning against the doors I could have fallen out of the train.”
The doors were open for a total of three seconds and the Claimant did not report the incident. The incident was investigated and the Claimant stated that she “forgot where she was for a moment” and “panicked”. She also explained that personal issues had affected her performance at work. The issues referred to included the very recent passing of both her parents. It was clear that her memory of the event was spotty and during various meetings she added extra details from her recollections.
The Claimant’s GP stated that the incident was “very likely” caused by “extreme stress and anxiety”. The Claimant attended a disciplinary hearing in April and was summarily dismissed. The Respondent had recognised the mitigating factors but considered that nevertheless the incident was a very serious breach of rules and processes.
The Claimant appealed the severity of the sanction but the original decision was upheld.
The Claimant brought claims of unfair dismissal, disability discrimination, and sex discrimination to the Tribunal. In relation to her unfair dismissal and sex discrimination claim she claimed that there were five other male drivers who had also accidentally opened doors and who were not dismissed. The Tribunal considered these comparators and were satisfied that the circumstances were different enough to mean this claim was unsuccessful. It was pointed out in the Claimant’s appeal that the reason for dismissal was the fact that she did not report the incident whilst many of the comparators had.
The claim for disability discrimination was also unsuccessful. The Claimant’s account of the incident stated that she had been thinking about personal matters, not that she was suffering from a side effect of PTSD anxiety or depression. There was no evidence which confirmed that loss of concentration was a symptom she experienced as a result of these conditions.
Her claim for unfair dismissal however was successful. The reason for this was that the investigation was substantially flawed. It had been raised that the incident had occurred due to mechanical issues and this was not really examined. The Claimant had made the Respondent aware of her mental health issues very early on in the process and an Occupational Health report was commissioned but this was never pursued or followed up on. The Tribunal also found that the Respondent did not effectively consider the information on comparators that the Claimant had provided. The tribunal specifically noted the Respondent’s investigation did not go beyond fact finding.
But, due to the seriousness of the incident the Claimant did not receive any compensation because of her contributory conduct.
The lesson here for employers is that it is very important to follow the appropriate processes in order to conduct a fair investigation. Here, the employer failed to properly investigate the employee’s assertions about her mental health and about the male comparators, and those failures led to the finding of unfair dismissal.
If you have any questions on any of the issues raised in the above article, please contact Natalia Milne.