An employment tribunal has ruled that a worker employed to support refugees was fairly dismissed after making comments advocating their removal, concluding that the remarks fundamentally undermined trust in his ability to carry out his role.
The case concerned Charles Markie, who worked at a hostel accommodating migrants and refugees in Dundee. His role involved supporting homeless and vulnerable people to access the hostel’s facilities, including residents who had fled conflict or persecution. The tribunal heard that comments made to colleagues caused shock and concern among staff responsible for safeguarding those residents.
In reaching its decision, the tribunal placed weight on the context in which the remarks were made, the nature of Mr Markie’s role and the impact of his words on colleagues and service users. It concluded that the employer had acted within the range of reasonable responses in treating the conduct as gross misconduct.
Tribunal rejects ‘banter’ defence
The employment tribunal heard that Mr Markie made the remarks after becoming “aggressive and angry” during a discussion about changes to council housing policy. Colleagues later reported the comments to management, describing them as racist and inappropriate given the setting in which they were made.
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Evidence before the tribunal included statements attributed to Mr Markie during the incident. Colleagues reported that he said: “There wouldn’t be a housing shortage if we weren’t taking in 150 refugees,” before adding, “send them all back on a f****** boat”. Challenged on whether this applied to a Syrian refugee living at the hostel, he replied: “Yes, the lot of them.”
At a subsequent disciplinary hearing, Mr Markie disputed aspects of the account and sought to characterise the remarks as ill-judged rather than malicious. The tribunal heard him say: “I didn’t say the F word. I said send them all back on a boat. I didn’t swear. Later in the investigation I did swear and put hands up to that.”
He also attempted to downplay the intent behind the comments, telling the hearing: “It was my point of view, wasn’t directed at anyone. We are letting too many people in when we don’t have facilities or housing to give them.” He later added: “I do make stupid comments but don’t mean any harm.”
Loss of trust central to dismissal decision
In assessing whether dismissal was fair, the tribunal examined whether the comments were compatible with the responsibilities of Mr Markie’s role. It heard that the service manager concluded the remarks undermined confidence in his ability to support refugees based on need and without prejudice.
The tribunal also considered Mr Markie’s response following the disciplinary outcome. It heard that he later emailed the service manager stating: “Sack me, but don’t sack me for gross misconduct.” He went on to challenge the description of his behaviour, claiming that everyone present had been “laughing” during the exchange.
In dismissing the unfair dismissal claim, Employment Judge James Hendry focused on the effect of the comments on colleagues and the organisation’s work. In his ruling, he said: “The evidence showed that the claimant’s colleagues were shocked at the comment made, betraying, as they saw it, a complete insensitivity towards those that they were duty bound to help.”
All claims brought by Mr Markie, including unfair dismissal, direct sex discrimination and harassment, were rejected. The tribunal concluded that the decision taken by The Salvation Army fell within the band of reasonable responses available to an employer, given the seriousness of the conduct and the nature of the role.
Expert views on workplace conduct
Commenting on the ruling, Jo Mackie, an employment partner at UK law firm Michelmores, told HRreview that opinions that were merely banter were treated with caution in tribunal hearings.
“Defending workplace comments as just ‘banter’, is often a red flag during disciplinary proceedings. ‘Banter’ in case law has been used to describe comments including those that belittle or intimidate non-white people, women, older people or gay people, amongst others – until the Equality Act brought groups together under one umbrella of protections called ‘protected characteristics’.”
She also pointed to the importance of context and role-specific responsibility in tribunal decisions.
“The idea that an employee responsible for the welfare of refugees in a Christian organisation thinks it is acceptable to say ‘they should all be sent back on a boat’, is remarkable. The tribunal made this clear in an unequivocal judgment that should be a warning to others and a clear indicator to employers who have issues with ‘banter’ in their own workplace.”
Jainika Patel, an employment lawyer at Freeths law firm, said the tribunal had distinguished between ill-judged remarks and conduct serious enough to justify dismissal, particularly where reputational risk was involved.
“There are many instances where inappropriate but inoffensive comments are made by employees – whether off the cuff or in frustration – and would not warrant disciplinary action. However the tribunal found this case was not one of them,” she told HRreview.
Patel said the claimant’s role and the organisation’s purpose were central to the tribunal’s reasoning.
“Instead, the claimant’s comments were held to be inflammatory and posed a risk to his employer’s reputation,” she said. “Ultimately, it was reasonable to consider the claimant’s comments as gross misconduct given the fact he worked for an organisation whose work, values and purpose are to offer help and support to communities without discrimination.”
She added that tribunals were likely to apply a higher threshold in roles involving vulnerable people or public trust.
“Employers are able to consider the impact on an individual’s role and their own reputation and values when deciding on disciplinary sanctions; roles involving vulnerable groups or public trust likely mean standards are higher and misconduct of this nature is viewed more seriously.”
