Sacked food server who "acted stoned" has discrimination claims rejected

Wednesday 18 January 2023

A sacked bar and food server, who was observed as being "under the influence of a substance" while at work, has had his claims of disability discrimination, automatic unfair dismissal, and harassment thrown out by the Employment Tribunal.

Former Blacksmiths Arms employee Robert Kigo made the claims during a hearing in December.

However, they were dismissed after there was found to be "ample evidence" to support his employer's belief that Mr Kigo attended work under the influence of drugs or alcohol, which resulted in multiple warnings and his eventual dismissal, according to a recently published judgment.

The evidence included Mr Kigo's employer at the Blacksmiths Arms describing him as "being unresponsive, refusing to communicate, mumbling, taking food orders to the wrong tables, ignoring customer orders and barely being able to stand up straight".

The Tribunal also noted that "his work was fine at lunchtime and problems only arose in the evenings at the start of the shift".

Mr Kigo's colleagues described him as "being unable to retain any information", "unable to talk to anyone" and "standing behind the bar and staring into space and ignoring customers".

Pictured: Mr Kigo work as a Bar and Food Server at the Blacksmiths Arms, which is attached to the Oakland’s Lodge Hotel.

In May 2022, a customer posted a review on Facebook that criticised the service at the Blacksmiths Arms, including a comment that Mr Kigo "had acted like he was stoned".

The Tribunal heard that one regular customer referred to several occasions when Mr Kigo was "physically incapable of fulfilling his duties through being incapacitated by the use of what was believed to be either drink or recreational drugs".

Another regular customer described Mr Kigo on a separate occasion as having "bloodshot eyes" and being "in a state of intoxication", and approached the manager with concerns over the safety of Mr Kigo serving hot food and drinks.

However, Mr Kigo claimed that his "bloodshot eyes" were due to an astigmatism that he had since he was a child. A medical report shown to the Tribunal noted that the disease is "associated with headaches, reddening of the eyes, pruritis and discharge from the eyes" and the Tribunal was satisfied that the "astigmatism had the potential to have an adverse effect on Mr Kigo’s ability to work".

Mr Kigo attributed his fatigue, dizziness and difficulties communicating to a helicobacter pylori infection that he was diagnosed with whilst working in Jersey. However, the Tribunal found that "the conduct continued even after the infection was cured, with Mr Kigo being unable to stand up, slurring his words, ignoring customers and staff, and taking orders to the wrong tables".

The Tribunal dismissed Mr Kigo's claims of and concluded that the employer's "reason for dismissing Mr Kigo was because he was unable to work safely or satisfactorily, leading to customer complaints" which was believed to be due to Mr Kigo attending work whilst "under the influence of alcohol or drugs".