University employee who brandished knife during meeting has unfair dismissal claim struck out

Edinburgh Napier University had sought dismissal of the claim on the basis that it had no reasonable prospect of success. The claimant, G Macik, had also made an application to amend his claim which was considered by the Employment Tribunal in a preliminary hearing.

The case was heard by Employment Judge A Kemp. L Shand, solicitor, appeared for the claimant and B Nichol, solicitor, for the respondent.

No proper comparator

It was not disputed that, during a meeting with his manager that had taken place in a small room, the claimant had produced a Stanley knife with a one-inch blade. He proceeded to make stabbing motions with the blade towards himself at a time when there was a discussion over complaints the claimant had over how he was being treated. The claimant explained that he had made the gesture as his command of English was not good.

After an investigation and disciplinary process in relation to that, the respondent dismissed the claimant for gross misconduct, and rejected his appeal against that dismissal. However, the claimant contended that the respondent wanted to dismiss him on account of his age and disability. He claimed that his manager had said something to the effect that he was too old for training, and that he had not received the same equipment as another member of staff.

For the respondent it was submitted that the claimant had not pled any proper comparator, and from the admitted facts he had acted in a manner that would lead anyone to be dismissed. It was accepted that the threshold for strike out of a discrimination claim was high, but the claimant had not pled facts from which it could be inferred.

The solicitor for the claimant submitted that he had acted as he did to demonstrate how he felt he had been stabbed in the heart by what had been done to him by the respondent but could not articulate that in English. He accepted that no specific detriment had been pled but the claimant would be successful if he could establish that he had been treated less favourably with regard to training and equipment.

Not unreasonable to dismiss

In his decision on the preliminary issues, Employment Judge Kemp began: “The test for strike out of a claim of discrimination is a high one, as was recognised by Mr Nichol. The claimant’s own motivation for acting as he did in the incident is not really the point. It is the conscious or subconscious thought process of the manager who dismissed him that is where the focus lies.”

He continued: “There must in my judgment be some form of link pled between the protected characteristic and the decision that is said to be discriminatory such that the decision can be said to be “because” of it. What are needed are primary facts from which the inference of discrimination can be drawn.”

Asking whether such facts existed in this case, the judge said: “The fundamental difficulty for the claimant, in my opinion, is that taking out a Stanley knife, which has a blade on it, even when a tool used for work purposes, doing so during a discussion with a manager about what may generally be described as grievances, and doing so in a small area, all of which is admitted by him, is the kind of conduct that does lead to dismissal.”

He went on to say: “The explanation that he acted out of frustration given his limited command of English to show why he felt that he had been stabbed in the heart, as it was put, does not assist him, I consider. On the face of it, it is not unreasonable for an employer in the undisputed circumstances of this case to dismiss.”

Employment Judge Shand concluded: “Whilst I have sympathy with the claimant. who is being treated for cancer, and recognising that he had frustrations about his earlier treatment by the respondent and had a limited command of English, on the basis of what was before me in my opinion it is in accordance with the overriding objective to strike out the Claim which I consider has no reasonable prospects of success.”

The respondent’s application for strike out was therefore granted.