Fairness in workplace investigations: Insights from Davies v Oscar Mayer Ltd

This case was regarding an employee who was dismissed for racial harassment and subsequently brought a claim of unfair dismissal. When the Tribunal considered if the decision to dismiss was fair or not they took into account whether the test of harassment was met.

Facts of the case

The employee (Mr Davies) started employment on 8 September 1997 and was employed until his summary dismissal on 4 September 2024. Mr Davies had a clean disciplinary record until his dismissal and no prior issues had been reported with his work or performance. Mr Davies worked as an Engineering Storeman for a manufacturer of chilled ready meals and prepared food.

On 13 August 2024 an auditor attended the office and was being shown around. Mr Davies shouted out “Top of the morning to ya!” in a mock Irish accent. Mr Davies was ignored and he repeated the phrase (in evidence witnesses said it was around 6 times).

This incident was reported by a colleague who was showing the auditor round and an investigation was then launched as to whether Mr Davies had racially harassed the auditor by using the expression “top of the morning to ya!” in a mock Irish accent. It was assumed by the company that the auditor had stereotypical characteristics of an Irish person, being red hair and a long beard, and that Mr Davies had thought so and that he therefore was mocking him.

Mr Davies was ultimately dismissed for, as the company concluded, using a racially stereotypical phrase. It was said by the employer that it was reasonable to take the view that what he said would violate the dignity of a visitor to their site and humiliate him, whether or not this was his purpose, and that it was “wholly unacceptable”. The dismissal outcome also referred to the comments being about someone in relation to a particular nationality.

The Law

A dismissal is potentially fair under section 98(2)(b) of the Employment Rights Act 1996 if the reason for the dismissal relates to conduct. Section 98(4) provides that once an employer has fulfilled the requirement to show that the dismissal was for a potentially fair reason, in this case conduct, the Tribunal must determine whether in all the circumstances the employer acted reasonably in treating that reason as a sufficient reason for dismissal. In order to determine if the dismissal was fair the judge said the following needed to be considered in this case:

1. Did the employer have a reasonable and genuine belief in the employee's misconduct
2. Was that belief based on a reasonable investigation
3. Did dismissal fall within the range of reasonable responses of a reasonable employer?

Judgement

The judge concluded that the dismissal was unfair and took the following into account when reaching its conclusion:

In evidence Mr Davies said he did not share the company’s perception that the auditor’s appearance was stereo-typically Irish as he did not think being red-headed was anymore an Irish characteristic than a Welsh one. He also denied seeing the auditor and said he was listening to Irish music at the time which prompted his words. The auditor had also said he didn’t think much of the phrase and had his head down while the phrase was being said.

Furthermore, the judge said the employee’s length of service and disciplinary record had not been taken into account nor had alternatives to dismissal including whether any action was required at all.

The judge commented that case law provides that the essential terms of enquiry for the Employment Tribunal are whether, in all the circumstances, the employer carried out a reasonable investigation and, at the time of dismissal, genuinely believed on reasonable grounds that the employee was guilty of misconduct. If satisfied of the employer’s fair conduct of the dismissal in those respects, the Employment Tribunal then has to decide whether the dismissal of the employee was a reasonable response to the misconduct. The Tribunal must determine whether, in all of the circumstances, the decision to dismiss fell within the band of reasonable responses of a reasonable employer; if it falls within the band the dismissal is fair but if it does not then the dismissal is unfair.

The judge concluded that the investigation was flawed as it was assumed that Mr Davies saw the auditor and that he stereotyped him and the company had itself assumed that the auditor’s appearance was stereotypically Irish which, the judge commented “is in itself stereotyping and highly questionable”. The judge also commented that the investigator and disciplinary officer had not engaged with the issue as to what amounted to harassment and decided that it was sufficient Mr Davies had made the comment in the vicinity of someone with auburn hair. He concluded that the investigation was not fair and reasonable and that the disciplinary and appeal officers had an unreasonable belief in the employee’s guilt. It was therefore concluded that the dismissal did not fall within the band of reasonable responses of a reasonable employer due to there being no proper investigation or consideration of any mitigating circumstances.

The employee was therefore successful in his unfair dismissal case and was awarded £16,500.00 in compensation.

Comment

This case highlights the need for a proper and thorough investigation that takes into account what both the employee and employer say about the incident. Here, notably, there was no investigation into the music that the employee says he was playing at the time he made the comment which he says was Irish and influenced what he said and also no proper consideration of whether the auditor was offended by what was said or not. The judge also commented that the investigation outcome read as if it was pre-determined.

Whilst harassment in the workplace should be taken seriously, and policies such as a Dignity at Work policy should be implemented with staff receiving training on such policies, when considering harassment as a misconduct issue the act of harassment should be properly assessed against the definition of harassment in the Equality Act 2010. The impact on the individual should be identified and thought needs to be given to whether the test under s26(1)(b) of the Equality Act 2010 can be made out which is that the conduct had the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. In this case the auditor had said that he “didn’t think much of” the comment and therefore the test was not met which led to the dismissal being unfair.

At Markel Law we can assist with any workplace investigations regarding incidents of misconduct as well as providing appropriate policies and training to staff regarding discrimination, including harassment, or how to carry out a fair investigation / disciplinary process. Please get in touch for further details.