The recent Employment Tribunal case of Duffy v LNER was widely reported in the press last week. Mr Duffy, a train hospitality employee, was dismissed by London North Eastern Railway (LNER) for gross misconduct. The allegation against him was eye-catching: that he had removed two sausage rolls from a bin, reheated them, and served them to first-class passengers.

Mr Duffy brought claims for unfair dismissal and discrimination arising from disability under s15 Equality Act 2010. He argued that he had acted as he did because of his depression and that dismissing him for this conduct amounted to unfavourable treatment because of something arising in consequence of his disability. Both claims failed.

Putting the headline-grabbing facts to one side, the case provides a useful refresher for HR professionals on the fundamentals of a fair misconduct dismissal and s15 Equality Act claims.

Misconduct dismissals: the legal test

In misconduct cases, the question is not whether the tribunal agrees with the employer’s decision, but whether the employer acted reasonably in all the circumstances. This involves considering the three-stage test set out in Bhs v Burchell:

  • whether the employer genuinely believed the employee was guilty of misconduct;
  • had reasonable grounds for that belief; and
  • carried out as much investigation as was reasonable in the circumstances.

The tribunal must then decide whether dismissal fell within the ‘band of reasonable responses’ open to a reasonable employer.

Applying the test to Mr Duffy’s case

The tribunal found that LNER had conducted a thorough investigation, including reviewing CCTV footage, gathering evidence from colleagues and hearing Mr Duffy’s explanation. LNER had a genuine belief that he had taken food from a bin and served it to customers, in breach of food safety rules. His actions could also have brought the business into disrepute. Given the nature of the conduct and the safety implications, dismissal for gross misconduct was within the range of reasonable responses. The unfair dismissal claim failed.

Discrimination arising from disability: the legal test

For claims under s15 Equality Act 2010 an employee must show that they were treated unfavourably because of something arising in consequence of their disability. If they can, the employer must then defend the claim by showing that the treatment was a proportionate means of achieving a legitimate aim.

Importantly, there must be a clear causal link between the disability and the ‘something’ that led to the unfavourable treatment. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason for the unfavourable treatment, but must have at least a significant (or more than trivial) influence on it.

Applying the test to Mr Duffy’s case

While the tribunal accepted that Mr Duffy suffered from anxiety and depression and that LNER had knowledge of it, it did not accept that his decision to serve food taken from a bin was ‘something’ which arose in consequence of that condition. The tribunal took account of CCTV footage and medical evidence in reaching this conclusion.

Although the tribunal did not go on to deal with the matter explicitly, even if serving food from a bin had arisen in consequence of his disability, there would have been a strong argument that the unfavourable treatment of dismissal was justified as a proportionate response, given the legitimate aims of protecting customer safety and business reputation.

The discrimination claim failed.

Key HR takeaways

  • Sensational facts do not change the legal tests: following due process remains key.
  • A clear investigation and reasoned decision-making provide a strong foundation to defend unfair dismissal claims.
  • Section 15 Equality Act claims require a real evidential link between disability and conduct.
  • Even where that link exists, employers can still justify dismissal in appropriate cases. Food safety, trust and reputational risk remain powerful legitimate aims.

For HR professionals, this case is less about sausage rolls and more about sticking to fundamentals – and not losing sight of them when the facts grab the headlines.