A former Border Force officer who was alleged to have used racist slurs at work has been awarded more than £16,000 after an employment tribunal found the disciplinary process used by the Home Office was unfair.
The London South Employment Tribunal found that Joel Gold, although dismissed on the “potentially fair” ground of gross misconduct, was subjected to an unfair investigation, disciplinary hearing and appeal process that gave him “no chance of establishing his innocence”.
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Colleagues claimed they had witnessed Gold using racially offensive language, including a reference to Vietnamese nationals as “Gooks”, a co-worker as “Paki” and a black colleague as “King of the Jungle”.
He was also alleged to have used the term “Taliban Tom” and said he would not hire any “fat women”, but these allegations did not form part of the investigation.
There was a considerable delay before the Home Office began investigating the co-workers’ claims against Gold. Some 10 weeks passed between the first allegation being reported and the first witness being interviewed, and as no notes were kept by the witness about the incident, the tribunal said some memories would have “inevitably faded”.
Both witnesses did not get on well with the claimant, which was not adequately considered by the investigating manager. Once the Home Office determined they were not lying about the incidents, even though some details were disputed, it was assumed that Gold had been lying. He was not given adequate opportunity to explain his version of events.
Other failings in the disciplinary process identified by the tribunal included the disciplinary hearing relying on evidence gathered during interviews carried out by the same investigating manager; the investigating manager drawing conclusions that were “unreliable” and “went beyond her mandate”; the respondent basing its decisions on witness statements that were in a different format to those given to Gold; and failing to give Gold “the benefit of the doubt”.
When the claimant apologised for giving possible offence, it was suggested by the investigating manager this was evidence of guilt, even though he had preceded the statement with a denial that he had said anything which could cause offence.
Judge Timothy Russell said: “Essentially, there appears to have been insufficient concern to make the procedure fair for this employee. The focus was, whilst attempting to follow Home Office procedure, to find fault with the claimant and either ignore or give no or little credence to his alternative explanation.
“There was no obvious attempt to step back and consider the overall fairness of procedure. The overall feeling one has, I have, is that the claimant had no chance of establishing his innocence and the die was cast at an early stage… It was simply that the bar was set too high, unfairly so, for the claimant to prove his innocence.
“The claimant’s own explanation and/or defence was brushed aside time and time again in favour of the witnesses who spoke against him.”
The judgment said the decision to dismiss Gold was made “without the balancing act one would expect to see in a considered and fair analysis of the evidence, especially by a large well-resourced organisation”.
“The respondent was too ready to give the witnesses against him the benefit of the doubt and too reluctant to do the same for the claimant and although one cannot expect a perfect procedure for any dismissal, a reasonable employer owes it to any employee, certainly a long service employee in a managerial position, to identify and examine closely any flaws in the accusations made,” the judge added.
The tribunal said the Home Office should have considered further training for Gold, which would have “reflected the stated purpose of the disciplinary procedure”.
It was ordered to pay the claimant £16,371.27 in compensation.
