A former ‘genius’ at an Apple Store in London has won his claim for unfair dismissal after he ‘joked’ with a Chinese colleague about ‘you lot’ releasing ‘another deadly disease on the world’, a reference to the Covid pandemic.
An employment judge criticised Apple Retail UK for significant deficiencies in its investigation and appeal process and said that no reasonable employer would dismiss somebody by applying a “zero-tolerance policy which does not exist”.
Mr Jeffries began working for Apple in 2010, working as a “genius” – a retail role helping customers with their products – at its White City store in west London.
He was dismissed in February 2023 for allegedly breaching the respondent’s policies and procedures on two occasions. His disciplinary record had been previously unblemished.
On 13 December 2022, he said to a colleague Mr Webster, who was about to leave on secondment, “See you in nine months”. He then turned to another colleague Ms Liu, who is of Chinese heritage, and said: “As long as you lot don’t release another deadly disease on the world”.
The central London employment tribunal heard that he intended it as a joke and Jeffries stated that Liu laughed. Racial stereotypes were often joked about within the team and he said he knew that Liu would understand the joke intended. He did not intend to offend.
Liu made no complaint, but Webster said he had overheard the comment. He reported that Liu looked shocked and that he had spoken to her. She indicated she would give feedback to Jeffries and asked Webster not to take the matter any further.
Zero tolerance
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A second incident three days later concerned Jeffries allegedly stating that a colleague would have been successful in a promotion application if he resubmitted it stating that he was of “Jamaican heritage” or “Asian”.
Apple launched an investigation led by Ms Hussain, a senior manager from the Regent Street store.
The tribunal heard how the investigation failed to inform Jeffries of the two incidents and it failed to make it clear that Liu had not complained.
When she was asked whether she saw the claimant’s words as harassment Liu said “Me personally? No, if it’s from [Jeffries].”
The investigation noted that Liu confirmed she was not offended and that she would joke with the claimant. She was asked whether others were made to feel uncomfortable and she said: “Not really. I don’t think so. We joke a lot.”
In a disciplinary hearing, Mr Pegram, an Apple Store leader based in Brighton, told the claimant: “My job as the disciplinary manager is to make a decision in relation to the two allegations that have been made against you.
“As a reminder, this can be anything from ‘no further action’ up to and including ‘dismissal.’ I also need to consider the level of risk you impose long-term given your behaviour and comments. There is no room for behaviour like this in Apple at all – we have a zero tolerance.”
The tribunal found that the investigation was hampered by a failure to set out the allegations clearly. Mr Pegram’s approach it said was “based on shifting sands”.
The judgment said: “[Pegram] reached conclusions on the basis of his assumption of discrimination, which was unjustified. He had in mind a policy of zero tolerance, which at best was his interpretation of some other policy, but it was not set out in the respondent’s relevant policies.”
It added: “No reasonable employer would dismiss somebody by relying on the application of a zero-tolerance policy which does not exist. If Apple wishes to impose a zero-tolerance policy that is for Apple to consider and justify. Any policy should set out clearly the nature of that policy and the consequences if breached.”
Jeffries lodged an appeal on 6 February 2023, alleging that the decision to dismiss was “not a logical and reasonable response to the facts presented.” He denied that he used discriminatory words in the second incident and referred to the remorse shown for the unintended distress caused.
He alleged he demonstrated a firm commitment to inclusion and diversity and had shown a clear understanding of the bullying and harassment policies. He complained that Apple’s procedures were not followed and identified various breaches.
The appeal was handled by Ms Shapland, an Apple Store leader from Exeter. The tribunal described the appeal report as a confusing document, saying: “Much of the treatment is superficial. It is clear Ms Shapland concluded that allegation one was a breach of the bullying and harassment policy, but she does not explain why.”
No reasonable employer would dismiss somebody by relying on the application of a zero-tolerance policy which does not exist” – Employment Judge Hodgson
She also proceeded on the basis that Apple had a zero-tolerance policy, as confirmed in her oral evidence, where she made it clear that she did not believe “there was any mitigating circumstance which was relevant”.
The tribunal judgment concluded: “There were serious errors in the original investigation… [and] in Mr Pegram’s approach. Mr Pegram had relied on the policy which was not set out in writing and he applied some form of personal interpretation.”
It added that Shapland’s “approach to zero tolerance was, if anything, more muddled than Mr Pegram’s. She failed to engage adequately or at all with the inadequacies of the original procedure and her own conclusions were inadequately reasoned. The appeal did nothing to recognise, consider or correct the deficiencies in the investigation, the disciplinary procedure or the sanction.
“This was not an appeal process open to a reasonable employer. The dismissal was outside the band of reasonable responses. In the circumstances, I find that the dismissal was unfair.”
Personnel Today has approached Apple for comment. Compensation for Jeffries’ unfair dismissal has yet to be decided.
A separate claim of automatic unfair dismissal contrary to section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992 was withdrawn and dismissed.
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