Apple’s zero-tolerance policy did not exist, court says

A former “genius” at a London Apple Store has won his unfair dismissal case after “joking” with a Chinese colleague that “you all” were releasing “another deadly disease into the world”, a reference to the Covid pandemic.

An employment judge has criticised Apple Retail UK for serious failings in its investigation and appeals process and said no reasonable employer would fire someone with a “zero tolerance policy that doesn’t exist”.

Mr Jeffries started working for Apple in 2010, as a “genius” – a retail role helping customers with their products – at its White City store in west London.

He was dismissed in February 2023 for allegedly violating the respondent’s policies and procedures on two occasions. His disciplinary record was previously spotless.

On 13 December 2022, he told a colleague, Mr Webster, who was about to leave on secondment: “See you in nine months”. He then turned to another colleague, Ms Liu, who is of Chinese origin, and said: “Provided you don’t spread another deadly disease around the world”.

The Central London Employment Tribunal heard Liu’s intention was to be joking and Jeffries said Liu had laughed. Racial stereotypes were often discussed within the team and he said he knew Liu would get the joke. He had not intended to cause offence.

Liu did not file a complaint, but Webster said he heard the comment. He said Liu looked shocked and that he spoke to her. She said she would report her comments to Jeffries and asked Webster not to pursue the matter further.

A second incident occurred three days later, when Jeffries allegedly said a colleague could have been promoted if he had resubmitted his application indicating that he was of “Jamaican” or “Asian” descent.

Apple launched an investigation led by Ms Hussain, a senior manager at the Regent Street store.

The court heard that the investigation failed to inform Jeffries of the two incidents and failed to make clear that Liu had not complained.

Asked whether she considered the complainant’s comments to be harassment, Liu replied: “Me personally? No, if it’s from (Jeffries).”

The investigation found that Liu confirmed that she was not offended and that she was joking with the complainant. She was asked if others felt uncomfortable and she replied: “Not really. I don’t think so. We joke around a lot.”

At a disciplinary hearing, Mr Pegram, a manager at an Apple Store based in Brighton, told the complainant: “My job as a disciplinary officer is to make a decision on the two allegations that have been made against you.

“As a reminder, this can range from ‘do nothing’ to ‘termination’. I also have to consider the level of risk you pose in the long term given your behavior and comments. There is absolutely no room for this type of behavior at Apple – we have zero tolerance.”

The court found that the investigation had been hampered by the lack of a clear presentation of the allegations. It said Mr Pegram’s approach was “based on shifting sands”.

The judgment states: “(Pegram) drew conclusions based on his assumption of discrimination, which were unjustified. He had in mind a zero-tolerance policy, which was at best his interpretation of another policy, but it was not set out in the defendant’s relevant policies.”

“No reasonable employer would fire someone based on a zero-tolerance policy that does not exist. If Apple wants to impose a zero-tolerance policy, it is up to Apple to review and justify it. Any policy must clearly state the nature of the policy and the consequences for violations,” she added.

Jeffries appealed on February 6, 2023, claiming that the dismissal decision was “not a logical and reasonable response to the facts presented.” He denied using discriminatory words during the second incident and cited remorse for the unintentional distress caused.

He claimed to have demonstrated a strong commitment to inclusion and diversity and a clear understanding of policies on bullying and harassment. He complained that Apple’s procedures were not followed and identified several failings.

The appeal was handled by Ms Shapland, a manager at an Apple Store in Exeter. The tribunal described the appeal report as a confusing document, saying: “Much of the treatment is superficial. It is clear that Ms Shapland concluded that the first allegation was a breach of the bullying and harassment policy, but she does not explain why.”

She also advanced the principle that Apple had a zero tolerance policy, as confirmed by her oral testimony, where she made clear that she did not believe “there were any relevant mitigating circumstances.”

The court concluded that “serious errors were made in the initial investigation… (and) in Mr Pegram’s approach. Mr Pegram relied on a policy that was not set out in writing and he applied a form of personal interpretation.”

She added that “Shapland’s approach to zero tolerance was, if anything, more muddled than Mr Pegram’s. It failed to address adequately or at all the shortcomings of the original procedure and its own conclusions were not adequately reasoned. The appeal did nothing to acknowledge, address or correct the shortcomings of the investigation, the disciplinary procedure or the sanction.”

“This was not an appeal process open to a reasonable employer. The dismissal did not fall within the reasonable responses. In the circumstances, I consider that the dismissal was unfair.”

Personnel Today has contacted Apple for comment. Compensation for Jeffries’ wrongful termination has not yet been set.

A separate claim for automatic unfair dismissal contrary to section 152 of the Trade Union and Employment Relations (Consolidation) Act 1992 was withdrawn and dismissed.

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