Case law updates

Lack of “fair and thorough” investigation leads to successful UD claim

A tribunal has ruled that a caretaker was unfairly dismissed after showing colleagues his swastika tattoo. It said the decision to dismiss Mr Horvarth, who worked for Lidl supermarket chain for six years was not taken on the basis of a “fair and thorough” investigation.

In April 2019, Horvarth’s manager Mr Taylor was approached by a new member of staff, who alleged that Horvarth had either “kicked her or deliberately hit her in the leg with a trolley”; and that as he was “showing hate symbols to another new starter”, this made her as a gay person about reporting his behaviour. On the same day the second new starter also approached the manager with a complaint that Horvarth had pointed to tattoos of a swastika and other far-right symbols. The complainant said he was shocked but that Horvarth, who is Hungarian, laughed and told him that the swastika was “his country’s national symbol”.

The manager agreed to investigate and Horvarth was suspended pending further investigation into alleged assault and bullying behaviour. At an investigatory meeting with Taylor and store manager Mr Morris, Horvath  denied hitting the first complainant deliberately, and claimed that the second complainant liked his tattoos. He suggested that both complainants made the allegations because they “do not like foreigners”.

Following a disciplinary hearing for gross misconduct, Horvarth was summarily dismissed. Horvarth appealed the decision and attended an appeal meeting with regional head of sales Mr Parsons. In response to Parsons question about whether Taylor had “engineered the complaints or if the two individuals had both independently come to him with their concerns” Taylor then set out a number of new allegations against Horvarth which he was not given an opportunity to respond to, and had not been investigated. Parsons upheld the decision to dismiss him.

The Tribunal said the investigation left “a great many questions unanswered” and that Horvarth’s interview was more “probing and challenging” compared to the interviews with the two complainants, and that their complaints were “taken at face value”. Moreover it was likely that Taylor’s investigation was influenced by his previous dealings with the claimant and his opinion of him. A “stern warning” about the uniform policy would have been within the band of reasonable responses. Overall the investigation had not been conducted “in a way that a reasonable employer of the size and administrative resources of a large supermarket chain such as the respondent would do”.