A WAREHOUSE supervisor who was unfairly dismissed following a heated row with an IT colleague has had an appeal against his disability discrimination claim rejected by a judge.

An employment tribunal was told how Chris Daley had been working at Vodafone Automotive UK in Hapton in October 2018 when he got into an argument with a member of the firm’s IT department.

The hearing was told how Mr Daley had gone into the man’s office to enquire as to why some software licensing requested three weeks earlier had not been carried out.

It was after the IT operator told Mr Daley that he was very busy and now required a request ticket putting in that the warehouse manager is said to have become ‘offensive, threatening and intimidating towards him’.

He told company investigators that Mr Daley was “repeatedly directing foul and abusive language at him, making personal insults and challenging him, stating ‘what are you going to do about it?’ and ‘go on then, let’s go outside’.

According to Mr Daley’s version of events, his former colleague’s attitude stank, he was becoming agitated and suggested he calm down. Mr Daley said he felt the IT operator ‘clearly had something he wanted to say so suggested that he could ‘talk about it here or we could do it outside’.

Another colleague described an angry Mr Daley as going right up to the IT worker, who was left ‘shell shocked’, and saying: “So come on, outside then”. Mr Daley is then said to have stormed out of the office, swearing, and making some comment about make-up.

Tribunal Judge Tom Ryan said the make-up comment had some significance because, although it may not have been known to Mr Daley, the IT worker had very bad acne for which he used makeup to conceal the condition and took the remark personally.

Judge Ryan said: “Mr Daley had been in the army and the expression in the army ‘go and fix your face’, or ‘go and fix your makeup’, is there used in a mildly insulting way to mean ‘go and calm down’.”

Following that incident Mr Daley was suspended on full pay while the allegation was investigated.

After the initial suspension meeting Mr Daley had a conversation with the two investigating officers, which he said would be off the record.

In that conversation he is alleged to have said: “If I would have known it would come to this I should have just f*****g punched him.”

During an investigation in October 2018, Mr Daley denied that he had spoken in an aggressive or threatening way to the IT worker, denied that he had sworn and claimed that although he had said they speak outside, it was not a threat and he just wanted to have a private conversation.

Mr Daley made reference to his health ‘not being the best’, saying he could not make a fist and if he bent down he could not get back up. He said because of that he ‘would not fight with a kid’.

On the same day, Mr Daley submitted a grievance, stating: “You are aware of my extremely poor current health condition of severe arthritis in my hands and my spine which make simple everyday tasks a struggle, and this is clear to see. It would make it impossible for me to engage in any physical altercation, nor would I want to. I’m far too professional for that. I find this accusation defamation of my character and I do not accept this.”

In a disciplinary hearing just over a week later Mr Daley said one of his former colleagues, who provided a statement against him, had made it up. When he was asked why, he said he managed that person’s son who was a poor employee and whom he had previously reported on a number of occasions.

Mr Daley was found guilty of gross misconduct and dismissed with immediate effect, after company investigators rejected his version of events.

Mr Daley appealed that decision, making reference to his ill health problems, including depression and arthritis, and referred again to one of the witnesses not being impartial. That appeal was rejected.

Judge Ryan ruled Mr Daley’s dismissal was unfair after it emerged the ‘off the record’ conversation wasn’t mentioned to the person who presided over the misconduct hearing, but it was included in documentation to the person who dealt with the appeal. As she cited it in the appeal rejection letter but didn’t mention it in the appeal itself – so Mr Daley had a chance to make representations on it – Judge Ryan ruled the investigation had been unfair. No compensation was granted.

However, Judge Ryan rejected the disability discrimination claim after hearing evidence from Vodafone Automotive in relation to the dilemma a company is placed in if an employee, either through ill health or disability or temperament, utters threats to another member of staff when they become frustrated. They questioned what response short dismissal can be provided to fulfil the contractual and statutory obligations to provide a safe working environment for staff.

Mr Daley appealed against that decision on the grounds that Vodafone Automotive failed to consider mitigating factors during its investigation, their investigation outcome was prejudged, they failed to complete a thorough investigation and they failed to carry out a fair appeal.

Rejecting the appeal Judge Ryan said Mr Daley had: “not provided any sustainable basis upon which a tribunal properly directing itself could consider that it was in the interests of justice to reconsider the judgment.”