Background
Chunxiu Zhao worked as a Station Sales Clerk for Govia Thameslink Railway from April 2010. On 13 July 2022, she emailed Dave Rudman in HR expressing concern that Sunju Varkey Mani, who had applied for a Gateline position at her station (Carshalton Beeches), would form “cliques” with another colleague, Lynn D’Souza, because both were from India. Zhao characterized Mani as “gossip” who had “created problems” at the station. She also sent an email to the Resource Planning Manager suggesting that the previous roster clerk had been bribed by D’Souza to alter schedules in her favour.
The employer investigated both emails under its Anti-Harassment Policy. During the investigation, Zhao was asked about the Rudman email but was not initially notified in writing that it would be characterized as discriminatory. At the disciplinary hearing on 24 November 2022 (adjourned to 25 January 2023), Zhao stated she had not been told the Rudman email would be included. The hearing officer found the Rudman email breach of the policy’s prohibition on race-based conduct and dismissed her summarily. Zhao appealed internally but was unsuccessful.
She then brought claims of unfair dismissal, victimization, and protected disclosure detriment to the Employment Tribunal. The tribunal dismissed all claims. She appealed to the Employment Appeal Tribunal on limited grounds challenging the unfair dismissal finding.
The Court’s Holding
The EAT unanimously upheld the tribunal’s decision that the dismissal was fair. HIS HONOUR JUDGE AUERBACH found that the Rudman email constituted a clear breach of the Anti-Harassment Policy. On its face, the email advocated against Mani’s employment at Carshalton Beeches because of his race (taken at best as concern he would form a “clique” with D’Souza, with the underlying reason being their shared Indian heritage). The court found this reflected a preconception about people from cultures other than Zhao’s own.
The court emphasized that Zhao demonstrated no insight into the discriminatory nature of her email and showed no remorse. She told the hearing officer she would repeat the same behaviour if given the opportunity—a position she maintained throughout the proceedings. The employer’s Anti-Harassment Policy explicitly stated that breaches constitute gross misconduct with summary dismissal as the usual sanction. Given that GTR is a customer-service organisation in which Zhao worked alone in a customer-facing role (requiring significant trust), dismissal fell squarely within the band of reasonable responses available to a reasonable employer.
Regarding procedural fairness, although the investigation report contained vaguely expressed allegations and Zhao was not formally notified in advance that the Rudman email would be characterized as discriminatory, the tribunal correctly found she received a fair opportunity overall to defend herself: she was informed of the charges before the disciplinary hearing, given copies of evidence in advance, heard at length during the hearing, and afforded an appeal. The procedural imperfections were cured by the overall process meeting the standards of the ACAS Code of Practice.
Key Takeaways
- An email opposing a colleague’s employment based on race—even if framed as concern about social “cliques”—constitutes a clear breach of harassment policies and race discrimination law.
- An employee’s demonstrated lack of insight into discriminatory conduct and refusal to acknowledge wrongdoing are relevant factors supporting dismissal as a fair sanction.
- An employer’s written policy explicitly designating harassment/discrimination as gross misconduct with summary dismissal as the presumptive penalty provides reasonable grounds for summary dismissal when such conduct is established.
- Procedural imperfections in the investigation stage (vague allegations, lack of advance written notice of specific charges) do not render dismissal unfair if the employee receives a fair opportunity to respond at the disciplinary hearing and on appeal.
Why It Matters
This decision clarifies that employment decisions influenced by colleagues’ race—regardless of the framing or stated rationale (social concerns, gossip concerns, etc.)—violate harassment and discrimination policies. It reinforces that employers are entitled to enforce such policies strictly through summary dismissal, particularly when employees demonstrate refusal to acknowledge the discriminatory nature of their conduct or express willingness to repeat it. The decision also confirms that procedural formality in the investigation stage need not be perfect if the employee has genuine opportunity to respond to charges, either at the disciplinary hearing itself or on appeal, provided the charges are ultimately clear enough for meaningful response.
For UK employers, the judgment validates enforcement of anti-harassment policies where conduct is clearly race-based; for employees, it demonstrates the serious risk of summary dismissal for race-based commentary about colleagues, even when not framed as explicit racial slurs or overt discrimination.