The claimant was employed in February 2015 as a security guard.   This was at the first team training ground.   The policy in place with the respondent was that security guards worked in pairs to prevent crime and ensure their own safety.

At the training ground, there was a skip that the respondent placed items into that were to be sent for incineration.  This included used kit and the security staff were aware that they could not take items from the skip without permission.   On 31st May 2019, there was a complaint made by Mr Tyson, the kit man, that items had been taken from the skip.    The CCTV was viewed from that night and whilst it did not show the skip it was concluded that the claimant had taken the items with the assistance from an unauthorised vehicle and driver.  It was part of the policy that he was not to leave his post without sufficient cause and that he was not to permit unauthorised access to the premises to any person.

At an investigatory meeting, the claimant admitted that he had taken the items.  His view was that the items would be better sent to poor people in Africa rather than having them incinerated.  At the meeting, the claimant also admitted that the unauthorised individual was a friend with a taxi.  He further admitted leaving his post leaving his security guard partner alone but stated that it was to get food as he was going to break his fast (during Ramadan).  At the end of the investigation, the claimant was suspended on full pay.   The respondent started the disciplinary process writing to the claimant stating that the allegations amounted to gross misconduct.   On the basis of allowing the unauthorised vehicle entry, leaving his security guard colleague vulnerable and taking the items without permission the decision was made to summarily dismiss the claimant.

The Tribunal in examining the evidence stated that there was no race or religious discrimination.  The suggestions made by the claimant that Asian staff were treated more favourably than the African staff had no basis in fact.  For that reason, there was no need to shift the burden of proof onto the respondent. The claim for unfair dismissal was also dismissed on the basis that the claimant had misappropriated the kit dishonestly and that it would amount to theft.   Furthermore, the decision regarding gross misconduct was a reasonable one to make and fell within the band of reasonable responses. The case in its entirety was dismissed.  It is also notable that there was a hearing that took place with new Covid-19 restrictions where each party was able to view the CCTV evidence separately to ensure social distancing with the laptop in the Tribunal.

Practical Lessons

This case demonstrates that with discrimination cases the burden will originally be with the claimant to show that they were treated less favourably than a comparator.  As the claimant was unable to do this, the claim for discrimination failed.  This should be remembered when a discrimination case is faced.   Furthermore, the case also demonstrated the steps being taken by the Tribunal to comply with social distancing requirements as a result of Covid-19. 
https://www.gov.uk/employment-tribunal-decisions/mr-kamour-raji-v-west-ham-united-football-club-ltd-3202410-2019