Case Law Update: Mr J. Richardson v West Midlands Trains

In the case of Mr J. Richardson v West Midlands Trains, Richardson was summarily dismissed following workplace pranks involving the shed skins of a tarantula and a snake. The case was dealt with as a bullying and harassment matter, however as the incident did not meet the threshold of seriousness required for something to be gross misconduct in the company policy, the dismissal was found to be unfair.

Mr Richardson, employed by West Midlands Trains since 2018 with over 20 years of rail industry experience, played a prank on a female colleague, referred to as Driver A. Following a conversation revealing Driver A’s squeamishness to insects and spiders, Richardson placed a tarantula’s exoskeleton in her pigeonhole, aiming for a momentary shock and light-hearted relief after realising it was not a live spider. A subsequent prank involved a snake’s shed skin, leading Driver A to report the incidents to her line manager.

During the investigation stage, Richardson explained his belief that the interactions were meant as jokey banter. Although after the first incident Driver A had called him a “f***ing tw*t’ he believed the tone to have been “playful”. He expressed that he had not understood Driver A to have been genuinely upset. Driver A herself described the exchange as “over-the-top-banter”. Richardson expressed willingness to express his sincere apologies, however the tribunal judge was surprised to learn that the employer did not communicate this to Driver A. In line with the company policies, the investigating manager made a recommendation that the issue could be resolved informally.

Despite the request to apologise, Driver A’s description of the incidents as over the top banter and the investigator’s recommendation, Richardson was invited to a formal disciplinary hearing and dismissed for gross misconduct. The pranks, deemed poorly judged but typical in nature, were considered by the employer as intending to cause lasting shock, leading to serious consequences. Richardson appealed the decision, but this was not upheld.

Mr Richardson claimed both wrongful and unfair dismissal.

Outcome

The employment judge, ruled in favour of Richardson, criticising the approach in the disciplinary process and noting various factors including the absence of recent bullying and harassment training and the refusal of his request to call for a witness.

A key factor, however, was whether it was reasonable to consider the prank to be so severe that is should be ‘gross’ and worthy of dismissal. The disciplinary policy set out examples of gross misconduct which would warrant dismissal. It included behaviours that are typically on such a list, for example: ‘fighting’, ‘theft or fraud’, ‘persistent or deliberate discrimination’ and ‘bullying and harassment which may include verbal abuse, physical assault or the threat of violence’ etc. Based on the nature of the list, the judge determined the company’s definition of gross misconduct involves conduct of an extremely serious nature. They commented that proper interpretation of this, is that not all bullying was considered to be gross misconduct, “only very serious bullying”.

Upon review of the disciplinary process, the judge noted: “All parties appreciated what a prank was. Its purpose is to elicit a short-lived reaction of shock or surprise, followed by some sort of feeling of relief and good humour. A loose parallel in this case is planting the sort of rubber spider that is no doubt still available in any toy shop on someone’s shoulder.” “By saying this, I don’t intend to trivialise Driver A’s upset and fully appreciate that in this case the exoskeleton was genuine and well capable of causing greater shock. I simply wish to demonstrate that a prank is a common and well-understood phenomenon.”

“I find it plainly unreasonable that at the conclusion of this rather contrived process, the respondents’ officers in this case took the claimant’s pranks as being intended, or capable of, inducing some sort of lasting state of considerable shock in Driver A, sufficient to potentially lead to a catastrophic accident or significant business interruption… Drivers are aware of their responsibilities and are expected to declare if they are not in condition to drive. The sort of prank performed in this case was plainly very ill-judged but extremely unlikely in reality to have led to such serious impacts. Entirely unsurprisingly, it did not in fact result in anything of the sort.”

The judge noted that all parties agreed that his actions were ill-judged pranks that amounted to misconduct, which were inappropriate in the workplace. However, in determining whether it was ‘gross’, the employer had placed an unreasonable level of emphasis on the potential impact on safety and business interruption which was unrealistic. The judge went on to say, “The finding might have been a reasonable conclusion had the exoskeleton been concealed somewhere in Driver A’s train cabin for instance, which would clearly be capable of being considered a far more serious prank, but the circumstances in this case are far removed from that.”

It was determined that the employer’s conclusion was “inconsistent” with the nature of the prank and should not have been judged as gross misconduct.

It is interesting to note that the judge commented on the fact that the informal route (which was permitted in the bullying and harassment policy and recommended by the investigation officer) was not pursued or offered to Driver A to see if she would be willing to consider, for example, mediation. The dismissing officer had also twice commented that there were opportunities to deal with the matter informally. This highlighted that the officers may not have believed it warranted dismissal, if they felt an informal approach may have adequately repaired the situation.

The judge found that the employer did not hold a genuine belief on reasonable grounds that the conduct was sufficiently serious to warrant dismissal and therefore constituted unfair dismissal.

Furthermore, as it was not gross misconduct, a dismissal from the company should have attracted the contractual notice pay. As this was not paid, the dismissal was in breach of contract which also meant it was a wrongful dismissal.

Learning points for employers

Employers should carefully consider the context and intent of workplace pranks. In this case, the judgment underscores the need for a realistic assessment of the potential impact and consequences of employee actions, urging employers not to hastily label such behaviour as gross misconduct without considering the genuine nature of pranks and their limited, short-lived impact. This emphasises the importance of fair and objective judgment in disciplinary matters.

Employers should scrutinise such behaviour to determine whether or not bullying has taken place. However, they must also then consider whether the bullying constitutes misconduct, serious misconduct or gross misconduct in line with their custom and practices and policies.

Employers should be aware of the nature of their policies. If the purpose of a policy is, for example, to create a safe and inclusive working environment, rather than to enforce a strict adherence to a procedure, then it may be appropriate to not be rigid in seeing a matter such as this through to a formal disciplinary sanction, if at any point in the process, it may be reasonable to revert to an informal