Supermarket caretaker who showed off swastika tattoo to colleagues was unfairly dismissed, tribunal rules

Judge says investigation was not conducted as would be expected by an employer of respondent’s ‘size and administrative resources’

A caretaker was unfairly dismissed after showing colleagues his swastika tattoo, a judge has ruled.

The tribunal said the decision to dismiss Mr Horvarth, who worked as a caretaker for supermarket chain Lidl’s Hadley store from 2 March 2013 until his dismissal on 11 July 2019, was not taken on the basis of a “fair and thorough” investigation and was “simply not fair”.

A further claim of harassment related to race was dismissed.

The tribunal heard that on 17 April 2019, Horvarth’s manager, Greg Taylor, was approached by a new member of staff, referred to by the tribunal as SH, who alleged that on 13 April Horvarth had either “kicked her or deliberately hit her in the leg with a trolley”. SH also told Taylor that she was gay and that Horvarth was “showing hate symbols to another new starter”, which made her anxious about reporting his behaviour.

On the same day, the second new starter who SH referred to – who the tribunal identified only as MB – approached Taylor with a complaint about Horvarth’s tattoo.

MB told Taylor that while he was working in the warehouse Horvarth noticed MB had tattoos. Horvarth then “exposed the top of his arm and shoulder and pointed to a tattoo of the swastika symbol”. MB said he was shocked but that Horvarth, who is Hungarian, laughed that it was “his country’s national symbol”. MB also noticed “other far-right symbols [tattooed] on him”.

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MB told Taylor he thought it was “disgusting for someone to brazenly show it as a proud symbol”, adding he was from a military background and was “not impressed” that the tattoo was displayed so publicly. Taylor told MB he would inform his area manager and investigate.

Despite Horvarth insisting the tattoo was the Buddhist symbol for peace, the tribunal said it was “perfectly clear” it closely resembled the Nazi swastika as it is “oriented clockwise and tilted at a 45 degree angle” – whereas the Buddhist symbol is anti-clockwise and not tilted.

Taylor discussed both issues with area manager Andrew Shaw, and Horvarth was suspended on 20 April 2019 pending further investigations into alleged assault and bullying behaviour.

Horvarth attended an investigatory meeting with Taylor and store manager Mr Morris, in which he denied hitting SH deliberately, and claimed that MB liked his tattoos. He also said the incident happened a month before 17 April 2019 when MB reported it, which the tribunal upheld.

Horvarth insisted it was a Buddhist symbol, suggesting that MB and SH made the allegations against him because they “do not like foreigners”.

The tribunal said the investigation left “a great many questions unanswered” and that Horvarth’s interview was more “probing and challenging” than the interviews with MB and SH.

Shaw invited Horvarth to a disciplinary hearing on 11 July 2019 for gross misconduct, in which he denied all the allegations made against him by SH. When asked about his tattoos, Horvarth told Shaw he accepted his tattoo could be offensive to others but that it “meant a lot” to him.

Following the meeting, Horvarth was summarily dismissed for gross misconduct.

Horvarth appealed the decision and was invited to an appeal meeting with regional head of sales Jasper Parsons on 9 August 2019. After hearing Horvarth’s case, Parsons asked Taylor if he had “engineered the complaints or if the two individuals had both independently come to him with their concerns, and Taylor set out a number of allegations that were not put to Horvarth during the disciplinary proceedings.

The meeting notes showed Taylor claimed several employees “felt uncomfortable” around Horvarth and that he had “run ins” with multiple people. Taylor told the tribunal that he didn’t raise any of these issues with Horvarth as he would “always play the race card and try to intimidate about his race”. 

Horvarth was not given an opportunity to respond to these allegations and on 30 August 2019 Parsons upheld the decision to dismiss him.

Judge Miller found the investigation was not conducted in “a way that a reasonable employer of the size and administrative resources of a large supermarket chain such as the respondent [Lidl] would do”, adding that the accounts of MB and SH were “taken at face value”.

He said it was likely that the investigation by Taylor was “influenced by his previous dealings with the claimant [Horvarth] and his opinion of him”, and that a “stern warning” about the uniform policy would have been within the band of reasonable responses.

Yunus Lunat, partner and head of employment at Ison Harrison Solicitors, said the ruling should warn employers off making assumptions, and serves as a “timely reminder of the importance of a thorough disciplinary investigation and to ensure that all lines of enquiry are followed up, rather than jumping to conclusions on perceptions”.

He added that it also highlighted “the benefit of that doubt should be exercised in the favour of an employee with a reasonable service”.

The remedy will be determined at a hearing on 1 July 2021.

A spokesperson for Lidl told People Management the company was “assessing the next steps” following the tribunal ruling.

Horvarth could not be reached.