A West Midlands Trains driver has been awarded more than £40,000 and reinstated after he was unfairly and wrongfully dismissed for workplace pranks involving the shed skins of a tarantula and a snake.
Mr Richardson had been working for West Midlands Trains since 2018 and has more than 20 years’ experience in the rail industry.
In mid-2022, Richardson and a female colleague, described as Driver A in the employment tribunal judgment, had a conversation in the drivers’ mess in which she indicated a squeamishness to insects and spiders.
After this, Richardson played a prank on Driver A, where he placed a tarantula’s exoskeleton – the skin shed by the spider – in her pigeonhole. The judge found that Richardson had hoped to elicit a reaction of momentary shock, followed by light-hearted relief on realisation that it was merely the shed skin and not a live tarantula.
After the tarantula’s skin was disposed of by a colleague, Driver A and Richardson later had a conversation in which he raised the tarantula prank and she called him a “f***ing tw*t”. He then raised the prospect of repeating the prank with the shed skin of a snake.
Workplace pranks
When workplace pranks go wrong
Driver A’s recollection was that she said: “No I would not like that”. He said: “What you going to do, report me?” She replied: “Yes”.
The tribunal heard that Richardson believed the tone of this conversation was “jokey”, that being called a “tw*t” was “playful” and that he had not understood Driver A’s genuine upset. She later described the exchange as “over-the-top banter”.
Snakeskin
The following month, Richardson carried out the prank again leaving the suggested snakeskin in Driver A’s pigeonhole. Once again distressed, she reported the event orally to her line manager and then formally by email.
In the investigation by West Midland Trains that followed, Richardson said he would like to “offer his sincere apologies” to Driver A directly, but the tribunal judge was “surprised and alarmed” that this apology was not communicated to her in the process of the investigation.
Despite the investigating officer intimating that the issue between Richardson and Driver A could be resolved informally, a disciplinary hearing was held under the respondent’s bullying and harassment policy, resulting in dismissal for gross misconduct. Richardson’s appeal against the decision failed.
Upholding Richardson’s claim of both wrongful and unfair dismissal, Employment Judge Matthew Hunt found that both the dismissing and appeal officers accepted that Richardson had intended to perform pranks, no matter how poorly judged they proved.
“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.
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” – Employment Judge Hunt
“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.”
He said that both the dismissing and appeal officers sought to “deconstruct” the nature of the Claimant’s prank by exploring his intention behind it. They concluded he meant to “shock” Driver A, to a significant degree, a finding that was material to an extent to both of their decisions.
‘Pranks are peculiar’
“In my view, this was a distinctly artificial process,” said the judgment. “Considered objectively, pranks are peculiar. Their purpose is to cause a degree of upset or discomfort, albeit fleeting. On that basis, many, if not all, pranks could be considered as bullying…
“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.”
The judge added: “Drivers are aware of their responsibilities and are expected to declare if they are not in a 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 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.”
The judge said the respondent’s conclusion was “inconsistent” with the nature of the prank and should not have been judged as gross misconduct.
Reinstatement and loss of earnings
Martin Cornforth, partner at Chattertons Solicitors, comments on the reinstatement:
“Orders for reinstatement are very rare as a remedy for unfair dismissal. Often an employee won’t seek reinstatement because they no longer trust the employer or have moved on. Likewise, a tribunal will often decide that reinstatement is not practicable.
“In this case, the tribunal noted that West Midlands Trains often had a surplus of drivers because there were benefits, such as less overtime and more rest breaks for drivers. As such the tribunal decided reinstatement was practicable despite a surplus of drivers.
“The tribunal also considered the potential impact on Driver A but decided that as drivers they would have little contact. Although the respondent produced some evidence that Driver A would feel uncomfortable, there was still no evidence that the claimant’s apology had been relayed to Driver A. The tribunal decided that, if necessary, steps could be taken to minimise contact between the claimant and Driver A.”
A remedy decision in December 2023 ordered his reinstatement on or before 19 January 2024. The judge considered whether Richardson wished to be reinstated, whether it was practicable for West Midland Trains to reinstate him, and whether it was just to order reinstatement when the claimant had caused or contributed to his dismissal.
His judgment considered workforce planning at the company and found that reinstatement would not elevate workforce numbers to an unacceptable level.
He found that the working relationship between Richardson and Driver A was not irreparable, at least to a level where they
would be able to behave cordially and appropriately in each other’s presence in the workplace on the few occasions of limited duration they are likely to encounter each other. “The context of their particular employment requires nothing more; they do not work closely together or even have any regular contact,” the judge said.
Judge Hunt found it “highly unlikely” Richardson would jeopardise his career again by repeating any similar conduct and despite West Midlands’ assertion that there had been a breakdown in trust and confidence with him, it would be practicable to order reinstatement.
He said: “The claimant accepts his conduct contributed to his dismissal, but it was not so serious as to provide a reasonable basis for it. In short, he should not have been dismissed, and it would accordingly be perfectly fair and just to order
reinstatement.
“In any event, the various other failures I highlighted in the dismissal process clearly indicate that justice would be best served by ordering reinstatement, not least the very basic failure to transmit the claimant’s apology to Driver A.”
A financial remedy judgment made in January 2024 at Watford employment tribunal made a £22,600 award for loss of earnings until 6 July 2023, plus £705 per week from 7 July 2023 until his reinstatement; a total of £42,300. No further award was made for the successful claim for wrongful dismissal.
This article was originally published on 28 November 2023 and updated on 28 February 2024 following the remedy decisions.
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