Mr M Hussain v West Midlands Ambulance Service University NHS Foundation Trust: 1304043/2023

EMPLOYMENT TRIBUNALS

Case No 1304043/2023

Between

Mr Munir HussainClaimant

West Midlands Ambulance Service University NHS Foundation TrustRespondent

Before

Employment Judge Bansal

In person for claimant

Mr M Islam Choudhury (instructed by Counsel) for respondent

Date 15 September 2025

REASONS

[1]The respondent is a provider of NHS ambulance services to Shropshire, Hertfordshire, Worcestershire, Staffordshire, Warwickshire, Coventry, Birmingham and the Black Country conurbations. It employs approximately 7000 staff, supported by approximately 1000 volunteers.

[2]The claimant commenced employment with the respondent on 4 November 2013 and is currently employed as a Paramedic based at the Willenhall hub, working a Sunday shift doing 8.43 hours per week .

[3]The claimant commenced early conciliation on 10 March 2023 and was issued with a Certificate on 21 April 2023. The claimant presented a Claim Form (ET1) on 14 May 2023. He made complaints for direct race discrimination; victimisation, discrimination on the grounds of part-time worker status and a claim under s10 Employment Relations Act 1999.

[4]The respondent in their response filed have denied the complaints, and in particular denied any discriminatory conduct. Complaints and List of issues

[5]At a Preliminary Hearing held on 20 May 2024 Employment Judge Hussain identified the complaints and finalised the legal issues to be determined at this final hearing. At the start of this hearing, the parties confirmed their agreement without any amendment to the List of Issues as previously agreed. The agreed List of Issues is annexed to this judgment.

[6]On day 3 of this hearing the claimant voluntarily withdrew his complaint of Less Favourable Treatment under the Part Time Workers Regs 2022, and a number of allegations in the agreed List of Issues. These were as follows;(i) Direct race discrimination Allegations – 3.2.1, 3.2.2, 3.2.3, 3.2.4; & 3.2.6;

(ii) Victmisation Allegations – 4.2.1; 4.22; 4.2,7; 4.2.9, 4,2,12, 4.2.15, 4.2.18, 4.2.20

(iii) Less Favourable treatment under the Part-Time Workers (Prevention of Less Favourable Treatment Regs 2022

(iv) Breach of the Employment Relations Act 1999 s10 Allegation 6.1.1

Hearing

[7]At this hearing the claimant represented himself. The respondent was represented by Mr Islam Choudhury of Counsel.

[8]The Tribunal was provided with an voluminous bundle of documents consisting of 1544 pages. The Tribunal did not read the entire bundle, but focused on the documents it was directed to read and those referred to in evidence during the course of this hearing.

[9]The Tribunal was also provided with a witness bundle containing the parties witness statements; an opening note from Counsel, a neutral chronology, and a cast list.

[10]In terms of witnesses, the claimant called two witnesses to give evidence Stephanie Longmore (SL), and Nicola Lees (NL). A witness statement for Qasim Khan was presented but he did not attend to give evidence. The claimant did not rely on his evidence and therefore this statement was not taken in evidence.

[11]The respondent presented witness statements for 14 witnesses. Following the claimant’s withdrawal of some of the allegations, the Tribunal heard evidence from 11 witnesses namely;(i) Richard Barrat (RB)–Senior Operations Manager;

(ii) Richard Hoy (RH)–Operations Manager;

(iii) Victoria Hoy (VH)–Paramedic & Development Operations Manager;

(iv) Renna Farrington (RH)-IEUC Supervisor;

(v) Charanpreet Dheensa (CD)-HR Manager

(vi) Rachel Bishop (RB)-HR Manager;

(vii) Steve Rust (SR)-Operations Manager;

(viii) Nathan Hudson (NH)-Director of Performance & Improvement;-

(ix) Nick Henry (NHenry)-Paramedic Practice & Patient Safety Director;

(x) Michelle Brotherton (MB) Non-Emergency Services Operations Delivery & Improvement Director;

(xi) Graeme Jones (GJ) Head of Efficiencies;

[12]All witnesses gave live evidence and were cross examined. The Tribunal also asked questions of the witnesses for clarification.

[13]At the conclusion of the parties’ evidence, both parties provided written submissions which they expanded orally. Length of Hearing

[14]This case was listed for 17 days to deal with liability only. The first 2 days were taken as reading days. Live evidence was heard over 6 days and final submissions were heard on day 7. The Tribunal panel completed their deliberations over 3 days.

Findings of fact

[15]It was not necessary and neither was it proportionate to determine each and every issue/fact in dispute. Hence, only relevant findings of fact pertaining to the revised legal issues and those necessary for the Tribunal to determine have been made. Also the Tribunal has not referred to every document it read and was referred to in their findings.

[16]Having considered all of the evidence, on the balance of probabilities the Tribunal made the findings of fact as set out in this judgment. Any reference to a page number is to the relevant page number in the bundle. Respondent

[17]The respondent is a provider of NHS ambulance services across the West Midlands and the Black Country regions. The Claimant

[18]The claimant identified himself as Asian/Pakistani. He is currently employed with the respondent as a Paramedic working part time hours based at the Willenhall Hub. The claimant started with the respondent on 4 November 2013 as a Health Advisor on the 111 advice line on a full time basis, and became a Paramedic (full time) as from 3 April 2017. From 11 October 2021 the claimant changed his working hours to 8.43 per week. His agreed contracted day is Sunday.

[19]Upon his appointment as a Paramedic the claimant was issued with a Contract of Employment. (p682-700) The claimant’s employment is subject to the Respondent’s rules and policies, in particular Sickness Absence Policy, Dignity at Work, Code of Conduct, Conflict of Interest, and its Disciplinary and Grievance Policy. Line Management

[20]The respondent organisation is hierarchical. Richard Barrat (RB) is the Senior Operations Manager and Richard Hoy (RH) is the Operations Manager, who deals with day to day running of the operational hub, which includes being the first point of contact for staff during their shifts. RH reports to RB. It appears that RH was the claimant’s Line Manager, although we also learnt that Jas Dhadda (JD) was also the Operations Manager. Rotas & Shift swap procedure

[21]The working rotas/shifts are done in advance. Employees are able to arrange a swap of their shifts by making a request to their Line Manager and/or by seeking a swap with fellow colleagues. Secondary Employment & Conflict of Interest Policy

[22]The respondent permits their employees to have secondary employment. This employment is conditional on complying with the Working Time Directive and its Conflict of Interest Policy. (p466-457)

[23]Under this Policy it is a requirement that where employees have dealings with external organisations, which includes other employment, this must be declared formally. (p468).

[24]As to the process the Policy expressly states that if additional outside employment is taken, this should firstly be discussed with the Line Manager to formally declare such employment by using the Declaration of Interest Form (Secondary Employment Request Form) and to send this to Head of Human Resources. The Form should declare the employees name and role; a description of the outside employment (duties and time commitment), relevant dates and any other information.

[25]Where a potential conflict from outside employment is identified, a judgement must be taken (By Peoples Director) as to the appropriate action to take, which may be(a) to decline permission to take up outside employment;

(b) amend the employees duties to remove the risk of conflict of interest and

[26]The Policy states that “ Any outside employment work undertaken during NHS contracted hours may be considered as potentially fraudulent and dealt with in accordance with the Trust’s Anti-Fraud, Bribery & Corruption and the Disciplinary Procedures.” (Para 5.1– p470)

[27]The Policy also states that should it be suspected that a member of staff has failed to properly declare an interest it may be deemed appropriate to take action in line with the Trust Disciplinary Policy. (Para 7-p476)

[28]It is not in dispute the claimant had secondary employment. On 27 November 2018 the claimant completed the required Secondary Employment Request Form seeking permission to undertake work for Hallam Medical & Dream Medical for 12 hours per week. (p703) This request was authorised on the same date. This was the only formal request made by the claimant.

[29]In an email sent to the claimant on 17 December 2018 in response to the application made on 27 November 2018, the claimant was expressly told his secondary employment must not create a conflict of interest; his work is done outside his working hours with the respondent being his principal employer; the secondary employer must not be a competitor; he was required to report any change in circumstances which may give rise to a potential conflict of interest, and that his combined working hours did not breach the Working Time Directive (WTD). (p894) Claimant’s working hours

[30]On 26 March 2021 the claimant emailed RB informing him that he had been offered a new job as a Trainee Advanced Clinical Practitioner and also he would be commencing a MSc program. He was exploring his options which included changing his working hours and pattern. RB dealt with this and advised him of his options and was told that he must not breach the WTD. (p759)

[31]On 14 September 2021, the claimant emailed RB and informed him that he had been offered new opportunities and that he wanted to drop his hours to 3 shifts per month. RB confirmed that the change sought would mean he would work 8.23 hours per week and the shift pattern would be 3 shifts on and one off, and that this would have to be on a fixed day or a Saturday or Sunday. (p792-794) The claimant elected to work on Tuesday, although this was subsequently changed to a Sunday as RB had made a mistake about offering the Tuesday. Following this discussion the claimant’s change in hours were 8.43 hours per week, working on a Sunday effective from 13 October 2021. (p806)

[32]At this date, RB was aware that the claimant was to start a new role outside the respondent’s employment from 13 October 2021. There is no evidence the claimant informed RB or that HR knew who this new role was with; that he completed the appropriate form to seek permission, or if the new employer was a competitor. On balance, the Tribunal found the claimant would have been aware or ought to have known of this requirement having previously sought authorisation in November 2018.

[33]In evidence the claimant asserted that he changed his working hours because of continuous victimisation and the effects on his mental health. The Tribunal recognised the claimant’s experience at CVT may have been Difficult, however there was no evidence to support the claim that his decision to change his working hours were in any way connected to RB.

[34]The Tribunal found that as of 25 December 2022, the respondent did not have knowledge of the identity of the claimant’s secondary employer. The claimant produced no evidence to show that he had declared and sought authorisation to work for any other organisation except for Hallam Medical & Dream Medical. February 2021 – OL Complaint

[35]On 20 January 2021 Rebecca Nicholls (“RN”), a Paramedic, was on a shift with a student paramedic named Ollie (“OL”). He is Caucasian. During this shift RN witnessed OL expressing racist and defamatory views about asians, referring to them as “Paki’s’”. RN reported this to a colleague Stephanie Longmore (“SL”). Within earshot was another colleague Chloe Barrett (CB) and the claimant. They apparently heard some of the conversation. CB explained that OL had also made racist comments when she was on shift with him.

[36]SL then decided to report this to management. SL and the claimant met with RH to report and discuss the incident. The claimant confirmed he was involved in this conversation and made known his concerns about the seriousness of this issue. The Tribunal found it implausible the claimant would have remained silent and not engaged with RH and expressed his concerns. The reasons for this finding are based on(a) the seriousness of the complaint;

(b) the claimant’s strong views about racism and he being active about this; and

[37]On balance, the Tribunal found the claimant was part of this discussion and rejected the respondent’s contention the claimant did not raise a protected act at this meeting but that it was only SL. The complaint and discussions were about discriminatory behaviour about a fellow employee, which constitute a protected act for the purposes of s27 of the Equality Act 2010.

[38]RH advised that RN & CB would have to personally report the incident for him to investigate the complaint. RN confirmed her account by email dated 4 February 2021 to RH (p715). CB also did so by a written statement. (p717- 718) Upon receipt RH passed this to RB to take the matter forward, who instigated an investigation to this complaint on or about 22 February 2021, this being the date OL was suspended. Subsequently OL resigned before the respondent could confirm an outcome to this complaint.

[39]The Tribunal found the delay from the date of receipt of the complaint to the date of OL’s suspension unreasonable and unsatisfactory. It should not have taken a senior Manager to galvanise management to deal with these serious complaints. Also the Tribunal found RB’s explanation for the delay to suspend OL because he had to do a risk assessment in accordance with a Risk Suspension Policy confusing and lacking credibility. The respondent did not produce this Policy to support this explanation.

[40]The claimant was rostered to work with OL between 4 to 22 February 2021. He asked this to be changed and pointed to the Policy that had been agreed in 2017 with Anthony Marsh Chief Executive Officer. This recommendation had been proposed by the claimant. The agreement was “that the grievance procedure would be reviewed and will include the principle that individuals involved in a grievance will not be expected to work together whilst the grievance is open.” (p702) RB was also present at this meeting. Surprisingly, the claimant’s request was refused. He was therefore made to work with OL in breach of this agreed Policy.

[41]Not surprisingly, on 20 February 2021 by email, the claimant complained to Nathan Hudson (NH) (Emergency Service Operations Director) who was present at that meeting on 2017.(p736) NH then sent an email on 22 February 2021 to Operational Senior Managers directing them that where issues of discrimination have been reported they must ensure the crew members are split from working together while the investigation is taking place. (p719). Rebecca Nicholls (RN)

[42]RN is employed as a Paramedic. She first reported about OL, which led to the complaint about OL.

[43]On 23 February 2021 the claimant sent RN an email. The email read, “ I thought I would message to see how you were it's been a hectic few weeks. I'm sorry you had to go through the motions at work and have been put in a position which can be very uncomfortable. VOICE and freedom to speak up and similar groups are there to help and support and I wanted to make sure you have been offered some support. I have been in your position and totally understand how you might be feeling. If you need a chat, I’m more than happy for you to reach out. Stay safe and positive take care.” (p720)

[44]The claimant explained that the reason for this email was to offer RN support, as he was an official point of contact for racial support. The Tribunal found this to be a supportive email and that there was nothing wrong with the claimant sending this email. Invitation to meeting with RB – 24 February 2021

[45]On 24 February 2021 RB invited the claimant and SL to separate meetings to be held by telephone. They were sent separate letters from RB. Each letter confirmed their right to be accompanied at this meeting. However they were different in the following respect. SL’s letter stated the meeting was regarding a recent conduct issue, and that as an outcome consideration may be given to pursuing the matter through the Trust's Disciplinary Policy and Procedure. (p721). The claimant’s letter stated the meeting was in relation to concerns raised. His letter did not state that consideration may be given to pursuing the matter through the Trust's Disciplinary Policy and Procedure.

[46]The letters did not confirm the specific concern to be discussed. It confirmed Charandeep Dheesa (CD) (HR Manager) would be present. RB explained the letters were sent by his administration staff upon his instructions, He would have informed them about the purpose of the meeting. RB accepted he should have checked these letters before they were sent to ensure they were consistent in their content. The Meeting – 26 February 2021

[47]The claimant’s meeting was held on 26 February 2021 at 12.30 via telephone. The claimant believed, not unreasonably, the meeting was to discuss the racism complaint involving OL. Upon joining, the claimant found other persons present namely, Rachel Bishop (RBishop) (HR Manager) sitting in the absence of CD; Renna Farrington (RF) (IEUC Supervisor/Senior Staff Side Representative) and Pam Brown (PB) (Head of Inclusion, Equality & Diversity) Both RF & PB were invited at the request of RB. RBishop attended for consistency. RB admitted in evidence he did not inform the claimant about these attendees.

[48]The respondent produced no notes of this meeting. Their explanation was that no notes were taken. The Tribunal was surprised at this for the following reasons. This was not an informal meeting. A serious concern had been raised as acknowledged by the respondent. RB had chosen to invite two senior staff RF & PB. It was an investigation meeting similar to SL’s meeting held the previous day and as stated in SL’s letter the outcome may have led to pursuing the matter through its Disciplinary Policy. This showed another example of poor practice of the respondent including their HR Dept. RBishop as an experienced HR Manager should have known that it was important formal meeting which should have been properly recorded by meeting notes. Reena Farrington (RF)

[49]RF has a number of roles which included as the Equality & Diversity Officer for the Respondent’s Union Branch. She explained Pat Kelly a Union staff member had reported to her in her capacity as Senior Staff Rep that RN had expressed concerns that some colleagues had been interacting with her, and that the claimant continued to make contact with her by phone and email. RN did not feel comfortable with this and wanted the claimant to stop making contact with her.

Discussion

[50]It was not in dispute the discussion held was about the concerns raised by RN. The claimant alleged that from the outset the tone of the meeting was aggressive and that RB was rude and intimidating. RB told him to “stop whatever I was doing”, and that he was being accused of something which RB would not specify. In their discussion RB threatened him with an investigation.

[51]RB in his witness statement stated he found out RN had spoken to other Managers and was very upset because she had been harassed by several members of staff that included the claimant. Despite this assertion neither the respondent or RB provided any evidence or information in support or produced a witness statement from RN or from other Managers to show that the claimant had either contacted or harassed RN.

[52]RB’s justification for this meeting was that it was arranged quickly by him as he was concerned about RN’s welfare and did not want the investigation into OL’s conduct to be affected in any way. His reasoning for inviting RF was as a Union Rep and PB for her input and expertise.

[53]In his statement RB denied his behaviour was intimidating or threatening towards the claimant. He stated he was calm, but admitted he was direct and firm in his approach.

[54]Based on the conflicting accounts about the discussion held, on balance the Tribunal concluded as follows;(i) it was not surprising the claimant felt intimidated and ambushed by the presence of RF and PB.

(ii) there was no evidence to support the alleged concerns expressed by RN or that the claimant made repeated contact with RN;

(iii) the update email sent by the claimant to Nathan Hudson (NH) on 26 February 2021 at 6.06pm after his meeting with RB. (p733-4), was consistent with RB’s to the extent the claimant was told to stop contacting RN and was told not to get involved because of the ongoing investigation with OL. However, the email made no mention that he was bullied, felt intimidated or was threatening by RB as alleged. The Tribunal noted the claimant is not afraid to raise issues which cause him concern, and that if he had felt bullied, intimidated or was threatened by RB he would have raised this in this email. He did not do so.

(iv) consideration was given to CD’s unchallenged notes of the welfare meeting held with the claimant on 8 March 2021. (p743-4) The notes recorded the claimant felt the general tone of the meeting was stern and he didn’t feel he was listened to. The notes also recorded RB accepting that he was stern, which he admitted in evidence. Again, if the claimant felt bullied, intimidated or threatened this would have been mentioned by the claimant and recorded.

(v) The claimant in his email to NH of 26 February 2021, stated “I was told IF I have been pressuring her to stop”. This did not state the claimant was being threatened with an investigation, but that if the claimant was pressuring RN then he must stop.

[55]On the basis of these findings, the Tribunal found at the meeting on 26 February 2021 the claimant was not bullied, intimidated or threatened with an investigation by RB. Accordingly this allegation was not made out on the facts and therefore allegation 4.2.3 in the List of Issues was dismissed. RF – Allegation 4.2.4 in the

LIST OF ISSUES

[56]RF attended this meeting at the request of RB. RF explained she attended this meeting in her capacity as Trade Union Rep for staff, despite the fact she was not requested to attend by the claimant and did neither did she represent him at this meeting as confirmed by the claimant.

[57]At the meeting, RF was alleged to have told the claimant that it was not his role to support staff. The claimant reported this comment to NH in his email of 26 February 2021.(p733) This was also mentioned to RB in the Welfare Meeting held on 8 March 2021. It was recorded that RB said in reply, “ I can’t comment on Reena’s comment. Great you do support staff- no reason to believe you’re lying. (p743) The Tribunal found that had RF not spoken the words, RB would have defended RF given that RB called her to the meeting.

[58]RF in her witness statement stated she “may have or it is likely she said the words to the claimant.” In cross examination RF accepted she was of the view the claimant did not need to support the staff.

[59]On balance, the Tribunal preferred the evidence of the claimant on this issue. His evidence was consistent to the email and comments made to RB at the meeting on 8 March 2021. It was also noted RBishop in her statement recalled RF saying these words to the claimant. As a finding of fact, RF did make the comments as alleged. Claimant’s Sickness Absence

[60]The claimant was absent from work due to sickness from 26 to 28 February 2021 and returned to work on 1 March 2021 in order to attend a training session. He then commenced sickness absence again on 2 to 8 March 2021.

[61]By letter dated 4 March 2021 RB invited the claimant to a Welfare Meeting scheduled for 8 March 2021 by telephone. The letter confirmed the meeting was held in accordance with the Sickness Absence Management Policy. The purpose of this meeting was to establish his health, and what additional support or assistance could be provided to aid his recovery and return to work. He was informed that CD would be present and that he could be accompanied by a work colleague or Union Rep. (p737)

[62]The meeting was held with RB. The claimant was accompanied by his Union Rep Pete Green. From the notes of this meeting taken by CD, and the outcome letter dated 12 April 2021, the discussions centred on the OL complaint; the refusal to change the claimant’s shift not to work with OL; the purpose of the meeting held on 26 February 2021; the discussions held and how it was conducted by RB. With regard to the claimant’s welfare, he mentioned he had been feeling stressed and nothing had been offered to him until he was absent from work. The claimant confirmed he did not need anything further and that he felt his issues had been resolved through this meeting. He felt positive and confirmed he would return to work the next day.(p745-749) Sickness Absence Meeting- Stage 1

[63]By letter dated 11 March 2021, the claimant was requested to attend a Stage 1 Sickness Absence Review meeting scheduled for 17 March 2021. (p750- 1)This meeting was arranged in accordance with the Sickness Absence Management Policy as the claimant had triggered this process (i.e Stage 1) as he had four or more absences within a rolling twelve month period. The claimant did not dispute that he had not triggered this process.

[64]Section 1 of the Policy states that employees who meet the triggers are invited to attend a formal meeting to discuss concerns regarding their attendance levels and the support that can be provided to help them maintain satisfactory attendance at work. (p594)

[65]The Stage 1 meeting was conducted by Jas Dhadda (JD) (Operations Manager). The claimant was accompanied by a work colleague. The respondent did not provide any notes of this meeting. JD was not called to give evidence and neither was any statement obtained from her.

[66]The Tribunal was referred to an email sent by JD to RB & RH on 17 March 2021 at 18.58. (p752) It was not clear if this was sent either during or after the meeting. The email confirmed the claimant’s acceptance about his sickness periods but felt he had mitigating circumstances and that this stage should not have been actioned. However, the pertinent part of this email, is the last sentence, “ How would you like this managed. I'm happy to meet with Munir again tomorrow night to discuss further.” RB replied instantly at 18.59, and wrote, “ It’s a stage, he didn’t have to go off sick did he, he choose too.”.(p752)

[67]By letter dated 18 March 2021, JD confirmed the outcome. She deemed it appropriate to issue the claimant with a 5 calendar month review commencing from 8 March 2021 to expire on 9th August 2021. (p753-4)

[68]The claimant’s position was that in accordance with the Policy (Section 3) the outcome could have been no further action. (p595) Further he maintained that RB had placed him on a Stage 1 sanction. He relied on the immediate response made by RB to JD email, which the claimant firmly believed showed that RB was the decision maker.

[69]In evidence, RB refuted any involvement in the decision made by JD. His understanding was that the claimant had triggered the Stage 1 process because of his absence. RB merely acted in accordance with the Policy and arranged for a review meeting. His email reply to JD did not instruct her to take the action she did. RB conceded the point his email reply should have been worded better, however, he did not advise or instruct JD on the decision he made.

[70]The Tribunal rejected the claimant’s held belief. The Tribunal considered this was misconceived on the facts. Firstly the claimant did not refer to any other evidence, except for the said email to give support to his belief. The Tribunal concluded in that email JD asked RB for guidance how to deal with the matter. RB’s reply did not give any guidance or instruction what action to take. RB merely confirmed what he thought about the claimant’s absence which triggered the Stage 1 meeting. Further, RB did not direct JD to apply any sanction. The respondent position was clear, RB was not the decision maker but JD.

[71]On the facts the Tribunal found RB was not the decision maker. Accordingly, the Tribunal concluded the claimant did not establish a prima facie case and therefore allegation 4.2.5 in the List of Issues was dismissed. Claimant’s shift on Christmas Day - December 2022

[72]RB explained the festive period is a busy time for staff and many employees ask for leave during this period. The working rotas for the Christmas period (2022) were completed by RB sometime in September. These were sent out in October 2022.

[73]The claimant was rostered to work on Christmas Day, which fell on a Sunday. This was his normal working day as he had elected to work on a Sunday. On 27 October 2022 the claimant sent an email to RH asking if he could take some annual leave as he already had shifts booked elsewhere. (p827). On 1 November 2022 RH replied stating he could not authorise annual leave at Christmas, and that RB had completed the rosters. (p823) The claimant then emailed RB and asked for annual leave for that shift. RB replied, “ Sorry mate, all leave is now done and is fully booked this is a rostered normal shift and you will be expected to complete the shift or seek a swap with colleagues”. (p831) The claimant replied to RB, “Thanks for your e-mail. I will be working Christmas either way (which I have no issues with). I will try my best to get to swap…” (p832) in reply, RB said, “ Hi Munir, all the rosters and abstractions for the festive 2 weeks are now complete. It makes no difference how the abstraction is labelled rest day toil/etc. The staffing levels are worked out to ensure a safe service, sorry but the only way forward on this one is a shift swap with colleagues. Thanks and kind regards.” (p835)

[74]From this exchange of emails, the Tribunal concluded that;(a) the claimant was fully aware he was rostered on the Christmas Day shift;

(b) he had told RB he had no problem working over Christmas, from which it was reasonable for RB to expect the claimant would attend for his shift unless he got a swap;

(c) he was fully aware any authorisation for change had to be actioned by RB, as RH had already made him aware that he could not authorise his leave request for this shift;

(d) he had booked a shift with his secondary employer which was in direct conflict with his contractual shift with the respondent which he knew or ought to have known was not permitted.

[75]On 11 December 2022, the claimant was rostered to work 7am to 5pm. On the morning he attended a ILS training session which was held from 7am to 9am. The training session was conducted by Nicola Lees (NL) and Victoria Hoy (VH) was also in attendance. (p638-9).

[76]According, to VH she did not have any management duties that day although she has at times taken the role of Duty Operational Manager. She was wearing her paramedic uniform and slides but not the slides of an Operational Manager. VH in her witness statement states she had several conversations with the claimant about his rostered shift on Christmas Day, and that he informed VH he had been booked to a shift in the private sector which would pay him about £600 for the shift. The claimant told her that he would not be coming in as he could not get a swap. VH advised him that he should try and get a swap with a colleague and that he should ask RB or RH. VH eventually advised the claimant that if he was not going to attend he should let the Operational Team know. Following the conversation, VH told RH who in turn told RB.

[77]In evidence VH categorically denied she had instructed the claimant to call in on the morning of his shift. NL in her evidence stated the claimant sought advice from VH, and was advised to call in on the day of the shift and it would be sorted. She did not have any recollection that VH told the claimant to speak to RB or RH.

[78]The claimant claimed that during the training session he spoke with VH, who suggested he call in sick on the day. He declined this option and claimed VH then instructed him to call in on the morning and that the Operational Manager would sort it out.

[79]On 25 December 2022, the claimant did not attend his rostered shift. On the morning before the start of his shift, about 6.30am the claimant telephoned into the Hub, and spoke with Jas Dhadda (JD) (Operations Manager) and informed her that he would not be attending his shift as he had another booked for another employer and that he had made RH aware and had tried to get a shift swap. JD then at 6.38am sent an email to RB (copied to RH) confirming the conversation with the claimant in which she stated that she informed the claimant that this absence was not ok and that it will be escalated to the SOM. She further stated, “he didn't seem bothered at all and stated he was fed up”. (p840)

[80]VH gave evidence about her recollection of the conversations on 11 December 2022. In evidence VH came across as nervous and because of the passage of time her recollection was not good. The claimant was adamant VH was not truthful as she had instructed him to telephone on the morning of his shift and that the Operational Manager would sort it out. On balance, the Tribunal preferred the evidence of VH. The Tribunal found VH to be a credible and truthful witness of fact. The Tribunal concluded it was highly unlikely given VH’s senior position and knowing the operational side of the service that she would have instructed the claimant to telephone in on the morning. The Tribunal noted that VH was not the Duty Operational Manager that day, and was not in a position to give any instruction as claimed. The Tribunal found the claimant used VH as a sounding board as to what he could do.

[81]NL’s evidence was limited. She confirmed that VH’s discussion was advice and not an instruction as claimed by the claimant. This supported VH’s account.

[82]The Tribunal found the claimant’s position on this issue to be disingenuous for several reasons. Firstly, he had booked a shift with his secondary employer knowing that it clashed with his shift with the respondent, which he knew or ought to have known was not permitted. Secondly, even at the date of his discussion with VH, he had no intention to attend at his shift because of the considerable monies he would earn with the other employer. Thirdly, he should not have asked VH. She was not the Duty Operational Manager that day. The appropriate person he should have approached was RB, which he knew about. Finally, the claimant sought to use his conversation with VH to wrongly blame VH, and to deflect from his own failure and conduct. Investigation into absence

[83]At that time, RB formed the view the claimant had failed to turn up for his shift without authorisation. Not surprisingly his failure to attend was viewed as a serious matter of potential misconduct. It was Christmas Day and it was a busy period which required full service. The claimant would have known this. The consequence of his absence was that the service was one ambulance crew short on the road which would inevitably impact the service that day. RB considered this absence required a fact finding meeting.

[84]By letter dated 28 December 2022, the claimant was invited to a meeting with RB scheduled for 4 January 2023. The letter was clear, it was to establish the facts of his absence; that he could be accompanied at the meeting; and that it was a fact finding meeting which could lead to a full investigation. (p852)

[85]At the request of the claimant the meeting was re-scheduled for 12 January 2023, with RH as RB was on leave. In preparation for this meeting RH was advised by Katy Molland (HR Adviser) to ask the claimant about his version of events; why he considered it was acceptable to withdraw from his shift on Christmas morning without notice; and to seek information about his secondary employment as he had only be approved for 12 hours per month, and that he should not be working for a secondary employer on his contracted shift day. (p861)

[86]At this fact find meeting held with RH, the claimant was accompanied by his Trade Union rep, Zoe Wilson. The notes of this meeting confirmed as follows;(i) the claimant explained he had tried to get his shift changed but felt he was not supported by management with his requests made;

(ii) he did his best to get a swap and that he sought advice from VH who advised him to call in on the day;

(iii) he viewed his employment with the respondent as his secondary employment as he worked more hours with his outside employment;

(iv) the respondent records show that the secondary employment only covered for 12 hours per month and covered working for Hallam Medical and Dream Medical;

(v) he had not informed and updated the respondent with details about this additional outside employer; Formal Investigation

[87]Following the fact find meeting with RH, RB decided that it was appropriate to invoke the respondent’s Disciplinary Procedure into his conduct for failing to attend his shift on Christmas Day. The Terms of Reference was prepared by Katy Molland (KM). The allegations to be investigated relevant for this claim were; the claimants failure to attend work on 25 December 2022 and and for breach of his secondary employment agreement which only approved employment with Hallam Medical and Dream medical for 12 hours per month. Steve Rust (Operations Manager at Stoke Hub) was appointed to undertake this investigation. (p876-7) The claimant was notified of this formal investigation by letter dated 19 January 2023 from RB. The letter was identical to the Terms of Reference. (p881-3) In evidence the claimant admitted his misconduct in not attending work on his shift which he also accepted was potentially a disciplinary offence under the respondent’s Disciplinary Policy.

[88]In relation to the investigation concerning his second employment, the claimant’s view was that this was unfair treatment when compared with his then colleague, a white British male Daniel Duffield (DD now deceased) The claimant was told by DD that he had secondary employment working with agencies for which he had not sought authorisation. DD received a letter from RB on 9 December 2022 inviting him to a meeting to discuss this. DD attended the meeting and was then allowed to complete a new secondary employment form and no further action was taken against him.

[89]RB in his statement gave the facts concerning DD. He confirmed that on 6 May 2022 DD completed a Secondary Employment Request Form (p813) this was declined by RB because the additional working hours would have breached the Working Time Directive (WTD). Then in December 2022 he became aware that DD was potentially working for a competitor without an approved secondary employment request. He then invited DD to a fact finding meeting which he held on 16 January 2023. In this meeting, DD assumed he could work for another employer provided the hours worked did not breach the WTD. DD admitted working for a competitor organisation but did not know the rules, in particular that he first needed permission to do so.

[90]Following this discussion, RB explained the rules to DD and asked him to put in a new form. (p873-874)

[91]RB also made the point that DD was a poor comparator for the following reasons.(i) DD’s secondary employment was not affecting his ability to come to work unlike the claimant’s as he failed to attend to his rostered shift because he was working elsewhere; and (ii) the claimant’s issue was a misconduct issue which he knew would lead to an investigation. RB was of the firm view the two issues were different and that he did not treat the claimant differently because of his race. Disciplinary Investigation – Secondary Employment

[92]The claimant attended his disciplinary investigation meeting on 5 March 2023 with Steve Rust.(SR) (Operations Manager) This investigation was delayed due to NH’s decision to merge the grievance process with this disciplinary process, which was later reversed by him.

[93]Prior to this meeting with the claimant, SR had interviewed RB; JD, VH.

[94]During this investigation process SR gave the claimant full opportunity to provide any other relevant evidence and information he wanted him to consider.

[95]SR produced a detailed and comprehensive Report with appendices on 20 March 2023. (p1010-1055) This report was sent to Ameta Bandham (AB) (Commissioning Manager) for her consideration.

[96]On 4 April 2023, AB wrote to the claimant inviting him to a disciplinary meeting scheduled for 28 April 2023. (p1076-1078) This was in accordance with the Disciplinary Policy. As required the letter confirmed;(i) the specific allegations. These mirrored those for which an investigation was initially initiated by RB;

(ii) the range of sanctions which could be imposed;

(iii) the right to be accompanied at the hearing.

[97]Eventually, the respondent decided not to proceed with this process due to the length of time it had taken. Therefore, there was no outcome. Claimant’s Grievance – Protected Act

[98]On 26 January 2023, the claimant raised a formal grievance. It was sent to NH. In summary, the claimant took issue that he had not been supported by management about his shift swap; that there was a disciplinary investigation following his non-attendance on 25 December 2022 when he followed the instruction given by VH to phone in on the day; that he was being discriminated against by RB; and that he was being investigated about his secondary employment. (p902-3)

[99]By email dated 1 February 2023, CD acknowledged the Grievance. (Resolution Request) and confirmed she would arrange for a Stage 1 Resolution Meeting and requested dates from the claimant to facilitate the meeting. (p905). By letter dated 3 February 2023 CD notified the claimant that this Stage 1 meeting would be held on 10 February 2023 with NH. The claimant was given the statutory right to be accompanied at this meeting either by a staff side representative or work colleague. (p911)

[100]The claimant exercised his right by choosing his work colleague SL to attend with him. On 9 February 2023, SL contacted RBishop (HR Manager) by telephone to inform her that she wanted her shift to be changed to enable her to attend the meeting with the claimant. SL was rostered to work a night shift and it was difficult for her to re-arrange her shift.

[101]Following this conversation SL and RBishop had an exchange of emails that day. SL in her email set out the statutory provision in the Employment Relations Act 1999. The email clearly stated SL was asking that she be excused from attending her night shift so that she could accompany the claimant at his meeting the following day.(p919)

[102]RBishop replied that if SL was unable to attend the meeting then this could be postponed and re-arranged for her to attend. (p913; p918). Despite this email, the claimant decided not to proceed with the Stage 1 meeting. In his email to CD on 10 February 2023 sent at 11.26am, he stated, “ Since Monday my colleague has been trying to get a few hours off her night shift in order to be provided with a sufficient rest so that she can accompany me to this meeting. She has made me aware her Line Manager has explained she has no issues with releasing her, however the objection has been from HR- Hence why she has contacted Rachel Bishop. This has further exacerbated my stress levels. Unfortunately I cannot make the Stage 1 meeting due to the reluctance of my colleague being released by HR. I am not able to get in contact with her as she is most likely resting after finishing her shift and has children.” (p922) The claimant highlighted that the respondent had failed to meet the timelines set within its Policy, and therefore exercised his right under Clause 4.1.3 to request a Stage 2 meeting. (p923)

[103]The Tribunal noted two emails in particular namely(i) RBishop’s email to SL of 9 February 2023 sent at 16.50, in which she made it perfectly clear the meeting can be rearranged for an alternative date suitable to them both and

(ii) RBishop’s email of 10 February 2023 sent at 07.32 to the claimant, in which she stated, “I do want it noted that my latest e-mail has not been shared by Stephanie which clearly is not me suggesting that you move to Stage 2; attached for you information. In addition to this at no point has the Trust not maintained the standards regarding the right to be accompanied..” (p916)

[104]Based on the evidence and applying the statutory test under s10 of the Employment Relations Act 1999, The Tribunal did not find the respondent to be in breach of this statutory right for the following reasons.(i) the claimant was permitted to be accompanied by a companion of his choice;

(ii) SL was available to attend on the scheduled date. She was not on shift at the proposed date and time. The issue was that she was rostered to do a night shift which meant she needed sufficient rest time following her shift, which made her unavailable. She therefore was seeking a change to her rostered shift by leaving early to factor rest time, which her Line Manager had no objection to;

(iii) RBishop in her emails made it clear the meeting could be postponed and re-arranged to accommodate SL & the claimant.

(iv) there appeared to be some misunderstanding on part of SL;

(v) the claimant had either chosen to ignore RBishop’s emails or believed what SL told him.

[105]The Tribunal concluded this allegation (Allegation 6.1) lacked merit and was dismissed. Amalgamation of the Grievance Meeting with the Disciplinary Investigation

[106]Upon receipt of the claimant’s decision to move to a Stage 2 meeting, NH reviewed the claimant’s grievance. He formed the view the grievance appeared to relate to the ongoing disciplinary investigation which SR was appointed to deal with. NH considered that given the overlap in issues it would be appropriate to combine the two. He also considered that in view of the concerns raised against RB, that the Commissioning Manager be changed from RB to Ameta Bandhan (AB) (Senior Operations Manager). Accordingly, the Terms of Reference (ToR) were revised to take into account AB’s appointment. (p936-7)

[107]The decision to amalgamate the grievance with the disciplinary investigation was made without consulting the claimant. He was informed of this decision by a letter dated 20 February 2023. (p934) Upon receipt, the claimant by email sent on the same date (i.e 20th) to CD, stated, “ I do not believe amalgamating the investigation and resolution of my concerns is fair at all, as my concerns relate to the ongoing conduct towards me by RB...” (p953)

[108]In a detailed email sent on 21 February 2023 to CD, the claimant expressed his view that he felt victimised; was being treated unfairly, and felt stressed because his dignity at work was not being considered in line with the Dignity at Work Policy. He repeated his objection that it was not appropriate to run both the grievance and disciplinary investigation together. He pointed out his grievance and concerns were related to multiple issues relating to discrimination, victimisation, harassment, bullying and intimidation involving RB, whereas the disciplinary was about his alleged conduct.

[109]Due to the claimant’s objections, NH agreed to deal with the grievance and investigation separately. This was confirmed by email sent by CD on 22 February 2023, in which she assured the claimant the respondent “takes all matters and concerns raised by staff seriously and would never wish to exacerbate a situation or make it more stressful for you…” (p949) A Stage 2 meeting was therefore arranged for 10 March 2023 with Nicky Henry (Paramedic Practice & Patient Safety Director)

[110]In evidence the claimant expressed his concern that by combing the two investigations he would be denied the opportunity of being heard about his grievance. In evidence NH explained he took a fair and measured approach in his decision. He did so based on the following factors.(i) there were overlapping issues which if combined would avoid delays in the process, and

(ii) he took into consideration the claimant’s welfare and the stress he was feeling because of the two processes.

[111]The Tribunal found NH’s approach was reasonable for the reasons given by NH.

[112]The claimant claimed this decision had the effect of causing further delay, alarm and distress. Looking at the decision objectively, NH’s concern was for the claimant welfare and to avoid unnecessary delay by his having to deal with two separate investigations. There would have been no prejudice to the claimant as he would have been able to make his representations in the same meeting. The Tribunal formed the view if the claimant was caused any alarm and distress that was because he looked at NH’s decision subjectively and in the manner he wanted the matter to be dealt with. Stage 2 Meeting – 10 March 2023

[113]On 10 March 2023 the claimant attended his Stage 2 Meeting with NHenry. Also in attendance was CD (HR Manager) and SL as his companion. Neither party produced any minutes or notes of this meeting. The claimant said he did not take any. CD said she did take some notes but these were destroyed in the confidential bin after the outcome of the meeting letter was prepared. NHenry recalled that he did take some notes in his note book, which he kept at home. He was not be able to find. His explanation was that it must have been thrown away when he cleared his loft.

[114]According to NHenry the purpose of this meeting was to deal with 5 specific points raised by the claimant in his grievance letter of 26 January 2023. NHenry’s evidence was that he listened to the claimant’s concerns. He gave the claimant full opportunity to go through each of his 5 points of concern, and asked him for his desired outcome. NH confirmed that following this meeting he made further enquiries which including speaking with RB and JD.

[115]NHenry confirmed his decision in a detailed outcome letter dated 3 April 2023. (p1065-1073) In evidence NH explained he found no grounds to make a finding of discrimination. He felt he dealt with the claimant’s concerns with an open mind. His conclusion was that there was a reasonable and credible explanation for each of the issues raised and that the treatment was not based on his race or status as a part time worker. He did not find there was a pattern of behaviour linking the issues. There was a considerable passage of time between them and each issue involved different facts and circumstances. Some of the issues involved personal choices made by the claimant.

[116]On receipt of this outcome letter, the claimant replied by a detailed email dated 11 April 2023, in which he confirmed his decision to move to Stage 3, the final appeal stage. The claimant was disappointed with the outcome and felt not all of the information had been considered. He challenged the findings made and made further observations. (p1102-4) Stage 3 – 12 May 2023

[117]Michelle Brotherton (MB) (Non-Emergency Services Operations & Delivery Director) was appointed to deal with the Stage 3 process. MB had no previous dealings with the claimant.

[118]The Stage 3 meeting was held on 12 May 2023. The claimant was accompanied by SL. After this meeting, MB decided to pause the disciplinary investigation meeting in light of some concerns raised by the claimant, which she considered needed to be addressed. The claimant agreed to invoke the Dignity at Work Policy.

[119]The claimant was invited to provide any further information about the concerns raised. MB was mindful not to miss anything as part of the Terms of Reference. Following a serious of emails the claimant provided a 7 page document of concerns which he wanted to be investigated. This document itemised the following concerns. Incident 1 – October 2020; Incident 2 – February 2021; Incident 3 – The latest episode October 2022; Incident 4- Grievance & Incident 5 – SAR.

[120]On 29 June 2023, MB appointed Graeme Jones (GJ) (Head of Corporate Efficiencies) to undertake a Dignity at Work Investigation. The ToR was to investigate RB had bullied, harassed and behaved inappropriately as outlined in the claimant’s attached document of 22 June 2023. In the TOR referral it was suggested to interview named individuals which included SR.

[121]GJ had an initial meeting with the claimant on 11 August 2023 at which the claimant was accompanied by SL. (p1291-96) According to the claimant this meeting lasted some 5 hours. Following this meeting, the claimant provided GJ with further information and documents, following which GJ and the claimant next had a further discussion.

[122]GJ presented his detailed Investigation Report (undated) to MB. GJ concluded there was no evidence of any racial discrimination directed at the claimant. (p1268-1318)

[123]On 12 December 2023 MB met with the claimant to discuss the Report and outcome of this process. The other persons present at the meeting were GJ, Suman Bhambra-Thompson (HR Manager) and Kerlan Gage a work colleague of the claimant. Neither the claimant or the respondent disclosed any notes of this meeting.

[124]At this meeting GJ explained the basis of his investigations; the discussion held and his findings and conclusion. His recollection was that the meeting lasted some 2 hours and there was considerable dialogue with the claimant at which he endeavoured to explain his findings and responded to the points he raised.

[125]In his witness statement GJ explained that in his Report he grouped the issues into three key points, and had highlighted a number of issues raised by the claimant which did not fall with the scope of his remit. GJ confirmed in the meeting, the 5 points raised by the claimant were discussed, which are reflected in the outcome letter dated 22 December 2022 sent by MB. (p1322-29)

[126]Following this meeting MB sent the outcome letter to the claimant. The detailed letter confirmed GJ’s findings, the discussions held and the conclusion reached that there was no evidence to find he had been treated differently or there was any intention or deliberate acts to treat him differently, cause harm or upset. MB recognised that with the benefit of hindsight some situations and incidents could have been handled differently to avoid escalation of these matters to this stage. MB confirmed the Stage 3 procedure was now concluded, and there was no further right of appeal.

[127]Upon receipt of this outcome letter, on 24 December 2023, the claimant sent an email to MB’s PA, The claimant attached a detailed document setting out his objections to the outcome. He felt important parts of the conversations had been missed or glossed over and that multiple concerns had not been explored or explained.

[128]By email dated 5 January 2024, MB replied to the claimant. She pointed out that she was satisfied that(i) the salient points had been dealt with as part of the correspondence;

(ii) a thorough investigation had been undertaken;

(iii) the conclusions reached were supported by the evidence and that the conclusion reached was final. (p1347) MB also confirmed she was committed to supporting the claimant to move forward and repair working relationships, particularly with those identified in this process.

[129]The claimant’s complaint in relation to this Investigation Report was that 3 of the 5 issues were not addressed, namely(i) The investigation completed by SR in 2023;

(ii) the SAR; and

(iii) concerns about Katy Molland sending blindly a copy of the email to RB about a conversation with the claimant; and contacting the claimant’s Welfare Officer and asking for updates.

[130]In reply, GJ in his evidence explained that;(i) in respect of SR he did not consider it necessary or relevant to interview him. He did not consider it was within the scope of his investigation to review his report or the process that he had followed.

(ii) about the SAR issue, he did discuss this and that this had been adequately covered in the outcome letter.

(iii) with regard to Katy Molland (KM) email, he recalled the claimant did mention his concern about this. His recollection was that it was discussed but not in detail, and he did not consider this to be relevant to the investigation. Subject Access Request (SAR)

[131]The claimant made separate requests for disclosure of his personal data/information; disclosure of his personnel file held by HR; SAR; and specific disclosure of emails and correspondence between SR.

[132]On 21 February 2023 the claimant made a SAR by email to Lucy MacKcraken (LM) (HR Director). The scope of the request was for copies of personal data held in his employment records and personnel file; in his user activity log, and any digital correspondence between managers/employees and or HR regarding him between 1 September 1990 and 16 February 2023 including deleted correspondence. (p945-946).

[133]LM forwarded this request to CD (HR Manager) to deal with. At that time CD had over 10 years’ experience in HR. CD had returned to work after maternity leave in October 2022. She explained this was the first SAR of this nature she had to deal with since returning to work. She sought advice from colleagues as to how to deal with this request.

[134]CD acted on the advice and guidance she received. She explained the procedure she followed was to set up a folder; informed the individuals to whom the instructions were sent that the claimant had made a SAR and to search their email inbox for emails and to drop their emails/correspondence into the folder. She gave a deadline date for this to be done.

[135]Upon receipt of the responses from the individuals involved in this process, CD then did what she has described was a “data pull”. She explained this process involved extracting and checking the emails received to ensure there were no emails which were not within the scope of the request and that there was no breach of the data protection rules.

[136]The claimant referred to three specific emails not disclosed as part of the SAR (although one was disclosed in his first request for copies of his personal file – that is RB ‘s email to JD dated 17 March 2021). These emails were identified to be RB’s email; RH’s email dated 12 January 2023 to KM in which he stated “Get off your email” (p869); and the third was KM’s email to John Barrington dated 23 January 2023 (p1523) The claimant obtained two emails from others who he did not name. The respondent accepted this non-disclosure.

[137]In evidence CD explained she followed the process diligently. There was no need to either remove or not disclose all the emails she was sent in this process.

[138]The Tribunal was concerned by the process used by the respondent. This process was flawed. It was open for potential abuse. It allowed for the potential risk of the individuals to effectively select which emails they wanted to do disclose, and also gave them open access to view the emails that had been disclosed. CD confirmed this process was no longer followed by the respondent. Complaint’s complaint about his SAR

[139]On 12 April 2023 the claimant complained to Chris Kerr (CK) Head of Governance & Security about the handling of his requests by the HR team.(p1199)

[140]Eventually on 6 February 2024 the claimant met with CK to discuss his complaint. On 9 February 2024, CK by email confirmed his next steps. (p1370-1371) CK did not action the complaint as he had confirmed he would do. On 23 May 2024 by email the claimant contacted CK, for an update and reason for the delay. CK apologised for his inaction and admitted he was guilty of not effectively managing his workload properly. By email dated 3 June 2024, CK informed the claimant that he was hoping to complete the complaint by 4th June 2024. Despite this, CK did not provide a response until 12 July 2024. (p1469-1472). 141.The respondent did not call CK to give evidence and did not explain his absence. Neither was a sworn statement submitted to explain his inaction and delay. The Tribunal found the delay of some 15 months to be substantial, unreasonable and inexcusable. The Legal Framework Race Discrimination

[142]Section 39 of the Equality Act 2010 provides that an employer must not discriminate against an employee of his by, amongst other things, subjecting him to a detriment.

[143]Section 13 of the Equality Act 2010 provides that a person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic (race in this case) A treats B less favorably than A treats or would treat others.

[144]Section 23 (1) of the Equality Act 2010 provides that “On a comparison of cases for the purposes of s13, 14, or 19, there must be no material difference between the circumstances relating to each case”

[145]In the House of Lords decision of Shamoon v Chief Constable of the Royal Ulster Constabulary

(2003) IRLR 285

, ICR 337 it was held by Lord Scott that “the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects of the victim saves that he, or she, is not a member of the protected class.”

[146]In other words, the relevant circumstances of the complainant and the comparator must be either the same or not materially different. Comparison may be made with an actual individual or a hypothetical individual.

[147]Bad treatment per se is not discriminatory; what needs to be shown is worse treatment than that given to a comparator.- Bahl v Law Society

2004 IRLR 799

(CA) Unreasonable behaviour alone cannot found an inference of discrimination but if there is no explanation for the unreasonableness, the absence of an explanation may give rise to this inference of discrimination. The Court of Appeal said that proof of equally unreasonable treatment of all is one way of avoiding an inference of unlawful discrimination, but it is not the only way. At paragraph 101 Gibson LJ said quoting from Elias J in the EAT in the same case; “ The inference may also be rebutted – and indeed this will, we suspect, be far more common – by the employer leading evidence of a genuine reason which is not discriminatory and which was the ground of his conduct. Employers will often have unjustified albeit genuine reasons for acting as they have. If these are accepted and show no discrimination, there is generally no basis for the inference of unlawful discrimination to be made.”

[148]The test as to whether there has been less favourable treatment is an objective one. The claimant’s belief that there has been less favourable treatment is insufficient. Likewise the treatment must be less favourable not merely different. Unreasonable treatment is not sufficient although it may be evidence which supports an inference if there is no adequate explanation for the behaviour. Anya v University of Oxford and anor

(2001) ICR 847

, CA

[149]Where there is less favourable treatment, the key question is to be answered is, why the claimant received less favourable treatment; was it on the grounds of the protected characteristic or for some other reason. London Borough of Islington v Ladele

(2009) ICR 387

[150]The fact that a claimant has been treated less favourably than an actual or hypothetical comparator is not enough to establish discrimination. Something more is required, In Madarassy v Nomura International Plc

(2007) ICR 867

, Mummery LJ said; “ The base facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, a sufficient material from which a tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination”

[151]Unreasonable behaviour should not give rise to an inference of discrimination Strathclyde Regional Council v Zafar

(1997) UKHL 54

. It is usually an irrelevant factor. However, it has been held by the EAT that unreasonable behaviour can go to the credibility of a witness who is trying to argue that their motives were not motivated by the characteristic in question. Law Society v Bahl (2003) IRLA 640 EAT.

[152]In determining whether discrimination has taken place, the tribunal must enquire as to the conscious or subconscious mental processes which led the alleged discriminator to take a particular course of action in respect of the claimant, and to consider whether a protected characteristic played a significant part in the treatment. (Nagarajan v London Regional Transport and others

(1999) ICR 887

(HL) The burden of proof

[153]Section 136 of the Equality Act 2010 sets out the burden of proof that applies in discrimination cases. Subsection (2) provides that if there are facts from which the Tribunal could decide, in the absence of any other explanation, that person (A) has contravened the provisions concerned, the Tribunal must hold that the contravention occurred. However, subsection (2 ) does not apply if A shows that A did not contravene the provision.

[154]In Barton v Investec Henderson Crosthwaite securities Ltd

(2003) IRLR 332

, the EAT set out the guidance to tribunals on the burden of proof rules then contained in the Sex Discrimination Act 1975. This was approved by the Court of Appeal in Igen Ltd and others v Wong and others

(2005) ICR 931

[155]The conventional approach involves a two stage approach by the tribunal. At stage 1 the question is; can the claimant show a prima facia case? If so, then the tribunal moves onto stage 2 and asks itself; is the respondent’s explanation sufficient to show that it did not discriminate.?

[156]Where the burden has shifted to the respondent it is then for the respondent to prove on the balance of probabilities that the less fable treatment was not because of race..

[157]Although the burden of proof is a two stage test there are cases where an Employment Tribunal can proceed directly to the second stage of the test. (Laing v Manchester City Council and anor

(2006) ICR 1519

EAT) Victimisation – s27 Equality Act 2010

[158]Section 27 of the Act provides;(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

(4) This section applies only where the person subjected to a detriment is an individual.

(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.

[159]The treatment must be by reason of the protected act. The Tribunal must consider the employer's motivation (conscious or unconscious); it is not enough merely to consider whether the treatment would not have happened 'but for' the protected act. (Martin v Devonshires Solicitors

(2011) ICR 352

, Panayiotou v Kernaghan

(2014) IRLR 500

) approved in Page (appellant) v Lord Chancellor and another (respondents) –

(2021) IRLR 377

[160]Victimisation claims under the Equality Act are subject to the same shifting burden of proof set out in section 136 EqA. Thus, the claimant is required to show evidence which could suggest that he has been subjected to less favourable treatment because he had made a protected act. Time Limits

[161]Section 123 Equality Act 2010 deals with the time limits in which claimant’s must present discrimination complaints to the Employment Tribunal and provides as follows: (1) Subject to sections 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of- (a) the period of three months starting with the date of the act to which the complaint relates or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.

[162]Therefore Section 123 provides that proceedings must be brought “within a period of three months starting with the date of the act to which the complaint relates or any such period as the Tribunal considers to be just and equitable.”

[163]If a complaint is not issued within the time limits provided for by Section 123 Equality Act 2010, a Tribunal is required to go on to consider whether it is “just an equitable” to allow time to be extended and the complaint to proceed out of time.

[164]Conduct complained of which extends over a period of time is treated as being done at the end of the period (s123(3)(a) Equality Act 2010). In this way, where conduct is a continuous course, it does not matter if something complained of more than 3 months previously, so long as the last conduct within that chain is done within the 3 months prior to the bringing of the claim.

[165]In relation to “continuing acts” in discrimination complaints, the Tribunal has to consider in the first instance whether there was a continuing act? The Tribunal has to decide whether any of the discrimination complaints are out of time. If they are, the Tribunal must determine whether the allegations are part of a continuing act or decisions each of which could be described as a ‘one-off’. If the Tribunal decides that they are ‘one-off acts’ then time would run from each separate allegation.

[166]The leading case for a Tribunal to consider when analysing whether there was a continuing act or an act extending over a period is the Court of Appeal case of Hendricks v Metropolitan Police Comr

[2003] IRLR 96

. This case set out that the focus of inquiry must be on whether there was an ongoing situation or continuing state of affairs in relation to the alleged discrimination as opposed to a ‘succession of unconnected or isolated specific acts’. In deciding whether a particular situation gives rise to an act extending over time it will also be appropriate to have regard to(a) the nature of the discriminatory conduct about which complaint is made, and

(b) the status or position of the person said to be responsible for it. The Tribunal is also to be careful to distinguish between the ongoing effects of a one-off discriminatory act as opposed to an act that extends over a period of time.

[167]The Court of Appeal’s decision in Aziz v FDA

[2010] EWCA Civ 304

set out how the Employment Tribunal should approach the question of whether there is a continuing act at a preliminary hearing. The Court approved the approach laid down in Lyfar v Brighton and Sussex University Hospitals Trust

[2006] EWCA Civ 1548

that the test to be applied at the pre-hearing was whether the claimant had established a prima facie case, or, to put it another way, ‘The claimant must have a reasonably arguable basis for the contention that the various complaints are so linked as to be continuing acts or to constitute an ongoing state of affairs’. The Court also stated that in considering whether separate incidents form part of an act extending over a period, a relevant but not conclusive factor is whether the same or different individuals were involved

[168]Where there is no continuing act and the discrimination claim is prima facie out of time, as stated above, section 123(1)(b) of the Equality Act allows a Tribunal to extend time to ‘such other periods as the employment tribunal thinks just and equitable’. The just and equitable test

[169]The “just and equitable test” is a broader test than the reasonably practicable test under the Employment Rights Act 1996. The burden is on the claimant to persuade a Tribunal that it is just and equitable to extend time. (Chief Constable of Lincolnshire Police v Caston

[2009] EWCA Civ 1298

). The Tribunal discretion is broad and it can only be challenged where it is wrongly exercised or perverse.

[170]In the Court of Appeal case of Robertson v Bexley Community Centre

(2003) IRLR 434

. Auld LJ said, “ The tribunal, when considering the exercise of its discretion has a wide ambit within which to reach a decision. …. It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule. It is of a piece with those general propositions that an Appeal Tribunal may not allow an appeal against the tribunal's refusal to consider an application out of time in the exercise of its discretion merely because the Appeal Tribunal, if it were deciding the issue at first instance, would have formed a different view. As I have already indicated such an appeal should only succeed where the Appeal Tribunal can identify an error of law or principle, making the decision of the tribunal below plainly wrong in this respect.”

[171]In the case of British Coal Corporation v Keeble

(1997) IRLR 336

EAT, it was suggested that in exercising its discretion the Tribunal might be assisted by the factors mentioned in section 33 of the Limitation Act 1980. Those factors are consideration of the prejudice which each party would suffer as a result of the decision reached and to have regard to all the circumstances of the case, in particular;(i) the length of and reasons for the delay;

(ii) the extent to which the cogency of the evidence is likely to be affected by the delay;

(iii) whether the parties sued had cooperated with any requests for information;

(iv) the promptness with which the claimant acted once he knew or she knew the facts giving rise to the cause of action;

(v) and the steps taken to obtain appropriate advice once he or she knew the possibility of taking action.

[172]In Adedeji v University Hospitals Birmingham NHS Foundation Trust

(2021) EWCA Civ 27

Underhill LJ said, “ the best approach for a tribunal in considering the exercise of the discretion under section 123(1)(b) is to assess all the factors in the particular case which it considers relevant to whether it is just an equitable to extend time including in particular the length of and the reasons for the delay. If it checks those factors against the list in British Coal Corporation v Keeble

(1997) IRLR 336

well and good; but I would not recommend taking it as the framework for its thinking.”

[173]The length and reason for any delay as well as the question of any prejudice to the respondent arising from the delay have been said to always be relevant factors (Abertawe Bro Morgannwg University Local Health Board v Morgan

(2018) IRLR 1050

although the Tribunal requires to bear in mind that no one factor is determinative. The Tribunal does not need to be satisfied that there was a good reason, or any explanation, for the delay. Analysis & Conclusion

[174]In coming to our conclusions, the Tribunal considered(i) all of the evidence, even if specific evidential matters have not been specifically referred to;

(ii) the parties submissions and the cases referred to; and

(iii) the legal framework.

[175]We considered each of the live claims/allegations in the order which they appeared in the List of Issues. Direct race discrimination (i) Allegation 3.2.5

[176]The Tribunal acknowledged that being subjected to disciplinary investigation may amount to a detriment if it causes the employee a material disadvantage. However, not every investigation will constitute less favourable treatment, particularly when it arises from legitimate concerns. In this case, the respondent was presented with undisputed evidence that the claimant had failed to attend his contracted shift in preference to work for a secondary employer whose details he had not disclosed. The claimant was therefore in potential breach of the respondent’s Code of Conduct and Conflict of Interest Policy. In evidence, the claimant admitted the breach of not attending his rostered shift. The Tribunal found this breach provided a legitimate basis for the respondent to instigate an investigation as RB did. The respondent’s response was a reasonable response and one which was in accordance with their Disciplinary Policy.

[177]In relation to the comparator relied on by the claimant, namely DD, applying s23 of the Equality Act 2010, and Shamoon the Tribunal did not find DD was the appropriate statutory comparator. The claimant and DD were not in materially similar circumstances. The key distinguishing features were that the claimant deliberately failed to attend his scheduled shift on Christmas Day without authorisation and consciously decided to work for a secondary employer in breach of his contractual obligation not to work for a secondary employer on his contractual working day with the respondent. This was a blatant and a serious breach of contract compared to DD’s alleged breach. In contrast, while DD may have been in breach for failing to disclose or seek authorisation for his secondary employment, the fact is he did not fail to attend work or otherwise worked for his secondary employer on his contractual working day with the respondent. Given these undisputed facts, there clearly was a material difference going to the nature and seriousness of the claimant’s misconduct.

[178]The Tribunal therefore considered the position based on a hypothetical comparator. The hypothetical comparator being an employee of a different race to the claimant, who failed to attend their rostered shift in favour of working in their secondary employment and who failed to disclose their second employment. The claimant did not put forward any evidence about how a hypothetical comparator would have been treated in similar circumstances. The Tribunal was satisfied from RB’s evidence that the disciplinary action was determined on the basis of the claimant’s conduct. There was no evidence before the Tribunal to show that the action taken was motivated by the claimant’s race. According the Tribunal concluded that a hypothetical employee of a different race in similar circumstances to the claimant would not have been treated more favourably. The outcome would have been the same.

[179]The Tribunal concluded the instigation of the disciplinary investigation and sanction applied did not amount to less favourable treatment under s13 of the Equality Act 2010. The claim of direct race discrimination was dismissed. (ii) Allegation 3.2.7

[180]The decision maker in dealing with the Stage 2 grievance was NH, not CD, who was present in her role as HR. NH did not fail to adequately respond to the claimant’s concerns and/or failed to initiate an investigation under the Dignity at Work Policy). The claimant was not satisfied with the outcome and that in his opinion NH should have instigated an investigation. The Tribunal noted that NH accepted he could have been more thorough in some parts of his investigation. The Tribunal accepted NH evidence, and found no documentary evidence or otherwise that suggested racial bias or stereotyping that influenced NH’s investigation. Nor was there any indication that race was consciously or unconsciously a factor in his decision. In the Tribunal’s view NH was entitled to come to the conclusion he did. As he stated in his evidence (Para 56) NH recognised the claimant to be personable, articulate, organised and professional. He was entitled from this interaction to make the observation he did, namely when the rules did not work for him (i.e the “claimant”, he said it was not fair and felt this was racially motivated. This observation did not support the claimant’s assertion that NH had a stereotypical view about the clamant.

[181]However, as per Madarassy, the claimant had to identify something more than a procedural failing to shift the burden of proof to the respondent. The claimant relied on a hypothetical comparator. No evidence was presented to show that a comparator of a different race received more favourable treatment in materially similar circumstances. In accordance with the guidance in the case of Bahl the Tribunal avoided conflating incompetence or poor treatment with discriminatory motive unless supported by facts

[182]Whilst the Tribunal recognised the claimant’s dissatisfaction with the way his grievance was handled, the Tribunal did not find that any weaknesses in the investigation viewed by the claimant, amounted to less favourable treatment because of his race. Applying the legal authorities in Igen, Madarrasy, & Shamoon, the Tribunal was not satisfied the facts supported a prima facie case of direct discrimination. Accordingly, the claim was dismissed. Victimisation (i) Allegation 4.2.4

[183]The Tribunal refers to the findings at Paragraphs 56-59 above. On balance, the Tribunal found RF did make the alleged remark. RF did not deny not having knowledge of the protected act relied upon by the claimant. On balance RF was aware of the protected act. The remark made was motivated and made in response to the protected act. This amounted to detrimental treatment.

[184]However, the claimant presented the Claim Form on 14 May 2023, nearly two years after the expiry of the statutory limitation period of 3 months for this complaint. Therefore, the Tribunal considered whether it should exercise its discretion to extend time on a just and equitable basis. In doing so, the Tribunal had regard to the legal framework and the factors to be taken into account. The Tribunal concluded, the delay was substantial and unexplained by the claimant. This incident occurred on 26 February 2021, and the next alleged discriminatory act occurred in February/March 2023. Further applying Hendricks, the Tribunal did not find there was a course of conduct that amounted to a continuing act of discrimination.

[185]Accordingly, the Tribunal concluded that it was not just and equitable to extend time. The claim was therefore dismissed.

[186]Based on the findings at Paragraphs 63-64, the Tribunal concluded the claimant was placed on a Stage 1 meeting because the claimant had triggered this meeting due his absence not because of his having made a protected act as claimed. This claim failed and was dismissed.

[187]The findings are at Paragraphs 68-71. The Tribunal was also persuaded by RB’s explanation given at his Dignity at Work interview (p1312) in which he explained, “The policy doesn't really give room for, these words weren't intended for Munir, and I was entitled to speak to my OM Team. I was trying to ensure that the OM team dealt with sickness in the same way with everyone. Sickness should always be dealt with in the same way for all staff, and that is what I do. “

[188]There was no evidence before the Tribunal to conclude the email was sent because the claimant had done a protected act. This claim failed and was dismissed.

[189]The Tribunal’s findings are at Paragraphs 92-95.

[190]The Tribunal concluded SR would have been aware of the grievance (the protected act)

[191]The Tribunal noted the claimant in evidence clarified the basis of his complaint namely that (i) SR dismissed the claimant’s evidence that RB was aware of his secondary employment and with whom, and that they ignored or omitted NL’s evidence.

[192]The Tribunal did not find the claimant had established that SR ignored the claimant’s evidence. Even, taking the claimant’s case at its highest that some evidence was ignored, the Tribunal concluded there was no evidence to support the allegation that SR ignored the evidence because the claimant had made the protected act. This claim was dismissed.

[193]The Tribunal’s findings are at Paragraphs 106-112. NH’s rational to amalgamate the grievance into the disciplinary was clear and credible. His decision had nothing to do with the fact the claimant had made a protected act. This claim failed and was dismissed. Allegations 4.2.11; 4.2.13; & 4.2.14.

[194]The Tribunal’s findings are at Paragraphs 131-138. The Tribunal expressed its concerns about the procedure applied by the respondent.

[195]It was noted that it was not in dispute that CD was aware of the protected acts. Therefore, consideration was given to to whether CD's conduct in managing the process amounted to detrimental treatment and if so whether it was because of the protected acts.

[196]The Tribunal concluded the process followed by CD could and should have been much better and confidential. CD as an experienced HR Manager should have been live to the risk of abuse by the individuals involved. As an experienced HR Manager, she was surprisingly naïve.

[197]The Tribunal did not find that CD or the respondent were motivated by any retaliatory intent because the claimant had made protected acts. CD gave clear and credible evidence that she was acting in accordance with advice and guidance she had received from her colleagues. CD acted in good faith, and her handling of the process was innocent. The Tribunal accepted CD’s evidence.

[198]The Tribunal concluded the claimant was not misled or deliberately disadvantaged. There was no evidence that information was improperly withheld by CD or the respondent.

[199]Notwithstanding the flaws in the process, the Tribunal found CD was not in any way influenced by the fact the claimant has made protected acts. This claim failed and was dismissed

[200]The Tribunal’s findings are at Paragraphs 139-141.

[201]The Tribunal accepted the claimant’s evidence that Mr Kerr’s prolonged inaction caused him detriment, frustration, loss of trust and a perception of being ignored or penalised. Mr Kerr did not give evidence at this hearing and neither did he provide a witness statement. Neither did the respondent provide any supporting evidence to show it was not practicable for him not to respond within a reasonable time and within the promised timeline. The Tribunal was entitled to draw an adverse inference from this failure.

[202]The Tribunal found there was inexcusable delay and the failings by Mr Kerr in dealing with the request was because of the protected act. The respondent did not provide any explanation or a non-discriminatory explanation for the delay in dealing with this mater. The claimant established he was subjected to detrimental treatment because he had carried out a protected act. Therefore this claim of victimisation was upheld.

[203]The claimant established three emails were not disclosed to him in his SAR. This was not disputed. The Tribunal concluded that RB, RH, and KM must have failed to disclose these relevant emails. On balance, we did not find these emails were withheld by CD in her data pull process. She would not have had any motive to do so.

[204]Neither RB or RH provided persuasive evidence why these may have not been disclosed or were overlooked. The Tribunal considered that no credible explanation for their omission had been provided. On balance, the Tribunal concluded that it was highly likely these emails were withheld as it would have made RB & RH look stupid and less credible. The Tribunal was satisfied that at the date of the request, the individuals were aware of the claimant’s protected acts.

[205]In the absence of any credible or non- discriminatory explanation, the Tribunal concluded these emails were withheld because the claimant had made the protected acts. The concealment of these emails placed the claimant to a disadvantage. He was legally entitled to full and frank disclosure which was denied. This failure amounted to a detriment. Accordingly, this claim was upheld.

[206]The Tribunal’s findings are at Paragraphs 120-130. The Tribunal took into account the evidence of Graham Jones and accepted his evidence that there was a genuine attempt to respond to the claimant’s concerns in full. The Tribunal concluded that any omissions in the outcome letter occurred because of the nature of the discussions and perhaps the failure to definitively agree with the claimant the scope of his discussions. It was clear from the abundance of documents and correspondence generated by the claimant that he was continually raising new issues and expanding the scope of his grievance. This has been a feature of the claimant’s grievance process throughout.

[207]Grame Jones was candid about his decision not to interview SR and not to deal with KM’s email. The Tribunal did not find this omission was because the claimant had made protected acts. Again, if there were omissions in the outcome letter that is not to say that there was no discussion about these at their meetings and correspondence. The Tribunal did not find the respondent ignored the claimant’s grievance in bad faith nor was there any evidence or basis to find that the omissions complained of were because of the protected act

[208]The Tribunal recognised the failure to address all points of a grievance may amount to a detriment but in this case, the Tribunal was not satisfied the omissions, if any, were because the claimant had made protected acts. This claim was not proven and therefore was dismissed. Breach of the Employment Relations Act 1999 s10 Allegation 6.1

[209]Based on the findings and reasons set out in Paragraphs 100-104, this claim was not proven and was dismissed. Approved By Employment Judge Bansal Date: 15 September 2025 LIST OF ISSUES

[1]Claimant’s claims 1.1 The Claimant bring the following claims that are resisted by the Respondent:1.1.1 Direct race discrimination;

1.1.2 Victimisation;

1.1.3 Less favourable treatment under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“PTWR”); and

1.1.4 Breach of the Employment Relations Act 1999 section 10.

[2]Jurisdiction2.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 11January 2023 may not have been brought in time.

2.2 Were the race discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010? Was the part-time worker discrimination complaint made within the time limit in section 8 of the PTWR? The Tribunal will decide:2.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

2.2.2 If not, was there conduct extending over a period?

2.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

2.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:2.2.4.1 Why were the complaints not made to the Tribunal in time?

2.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?

2.3 In relation to the complaint about the right to be accompanied:2.3.1 Was the complaint made within the time limit in section 11 of the ERA 1999 (before the end of the period of three months beginning with the date of the failure or threat)?

2.3.2 If not, was it reasonably practicable for the complaint to be presented within that time limit?

2.3.3 If not, was the complaint made within such further period as the Tribunal considers reasonable?

[3]Direct Discrimination (Equality Act 2010 section 13)3.1 The Claimant identifies as Asian/Pakistani, and he compares himself with

(a) Daniel Duffield who identifies as White British and

(b) Jessica Jenkins who identifies as White British and

(d) David Grantham who identifies as White British.

3.2 Did the Respondent do the following things:3.2.1 Richard Barratt refused to re-arrange the Claimant’s shift on 25 December 2022 (specifically moved to a different day–as agreed with the Claimant when dropping hours). The Claimant relies on David Grantham as comparator, specifically: 3.2.1.1 During 2020 – 2021 Richard Hoy allowed comparator (d) to frequently change his set Saturday shift, at short notice, in order to fulfil his duties with another employer. As a result the comparator hardly ever worked the set Saturday shift.

3.2.2 Richard Barratt did not allow the Claimant to use annual leave or TOIL to resolve the issue of his shift on 25 December 2022. The Claimant relies on Comparator (c) who was allowed by Ashley Brunt in February 2023 to have 3 of their part time shifts off as Annual Leave with 3.5 week’s notice.

3.2.3 On 12 January 2023 Katy Molland and Richard Hoy discussed with each other, before the fact finding meeting, discussing what the outcome will be depending on what the Claimant said. There were 2 potential outcomes to the fact-finding meeting, stating: “Depending on this meeting, we may deem it appropriate to formally investigate or withdraw his secondary employment”, without the option of “No further action” as afforded to Comparator (a). The Claimant compares his treatment to comparators (b) and (a), specifically:3.2.3.1 Richard Barratt emailed Comparator (b) on 2 December 2023: “It is very rare we decline shift changes when reasonable notice is given…”

3.2.3.2 Richard Barratt sent Comparator (a) a letter on 9 December 2022 inviting him to discuss his secondary employment without the addition of: “Whilst at this stage, the meeting is purely of a factfinding nature, depending on what is discussed there may be a requirement to refer the matter to a full investigation.”

3.2.4 On 12 January 2023, Richard Hoy and Katy Molland conducted an interrogatory and intimidating fact-finding meeting, whilst Comparator (a)’s meeting was more relaxed. This was by virtue of fact Katy Molland had no verbal input into Comparator (a)’s meeting and was willing to argue with the Claimant about Primary and Secondary employment agreements.

3.2.5 Either before or on 15 January 2023, Richard Barratt applied the Respondent’s Disciplinary Policy upon the Claimant and instigated a formal investigation into the Claimant’s alleged breaches of secondary employment. The Claimant relies on Comparator (a) who was told on 16 January 2023 that no further action would be taken into his alleged breaches of secondary employment and allowing Comparator (a) to resolve the situation by being allowed to fill in another secondary employment authorisation form.

3.2.6 On 19 March 2023, Steve Rust required the Claimant to produce a spreadsheet of hours worked for another employer. The Claimant relies on Comparator (a) who was not asked to produce a spreadsheet.

3.2.7 Nick Henry (Paramedic Practice and Patient Safety Director) and Charanpreet Dheensa failed to adequately respond to the Claimant’s concerns raised under the grievance process at stage 2. This was by diverging from the Respondent’s own Dignity at Work policy specifically in not initiating an investigation. The Claimant relies on a hypothetical comparator.

3.3 Was it less favourable treatment?3.3.1 The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s.

3.3.2 If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether he was treated worse than someone else would have been treated.

3.4 If so, was it because of race or can it be inferred in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant?

[4]Victimisation4.1 Did the Claimant do protected acts as follows:4.1.1 Supporting and encouraging a colleague to come forward about racism in February 2021. Specifically: on the 3rd of February 2021 encouraged and supported Rebecca Nichols to speak up and report racism she had witnessed from another employee. She reported this to Richard Hoy on that day.

4.1.2 Emailed the Respondent, namely Nathan Hudson, on

4.1.3 Raise a grievance on 26 January 2023 regarding direct race discrimination.

4.1.4

(a) 20 February 2021 complaining that a member of staff had been using racist language; and on

(b) 26 February 2021 complaining that the mental health of the BME members compared to everyone else was not being taken seriously.

4.2 Did the Respondent do the alleged acts/omissions:4.2.1 In February 2021, Richard Barratt required the Claimant to work with the alleged racist after the Claimant reported him for using the racial slur “paki”. The Claimant relies on the protected act at paragraph 4.1.1.

4.2.2 In February 2021, Victoria Hoy and Alan Morgan were reluctant to change the shifts where the Claimant was scheduled to work with the alleged racist. The Claimant relies on the protected act at paragraph 4.1.1. Specifically:4.2.2.1 In February 2021, Alan Morgan responded to the Claimant’s request to change the shift saying: “He may require mentoring hours and changing the shift may be unfair to the alleged racist.” The Claimant relies on the protected act at paragraph 4.1.1.

4.2.2.2 In February 2021, Victoria Hoy responded to the Claimant’s request to change the shift saying: “Work with him and if he is racist to you, then you can report it”. The Claimant relies on the protected act at paragraph 4.1.1.

4.2.3 On 26 February 2021, Richard Barratt intimidated and bullied the Claimant, by threatening the Claimant with investigation in a meeting with Rachel Bishop, Reena Farrington, and Pam Brown. The Claimant relies on the protected act at paragraph 4.1.1.

4.2.4 On 26 February 2021, Reena Farrington told the Claimant at a meeting with Richard Barratt, Rachel Bishop and Pam Brown that it was not the Claimant’s job to support staff. The Claimant relies on the protected act at paragraph 4.1.1.

4.2.5 On 18 March 2021, Richard Barratt placed the Claimant on a stage 1 sanction for sickness after apologising for causing the sickness. The Claimant relies on the protected acts at paragraph 4.1.1 – 4.1.3.

4.2.6 On 18 March 2021, Richard Barratt replied to Operations Manager Jaskiran Dhadda regarding the Claimant’s protest against the stage 1 sanction by saying: “It’s a stage, he didn’t have to go off sick did he, he choose too”. The Claimant relies on the protected act at paragraph 4.1.1. – 4.1.3.

4.2.7 In February and March 2023, Steve Rust carried out an unfair investigation which breached the ACAS guidelines to investigations by completely ignoring his independent witnesses (Nicola Lees) and evidence provided when they contradict the Respondent’s managers’ version of events. The Claimant relies on the protected act at paragraph 4.1.4.

4.2.8 Steve Rust, the Investigating Officer, ignored evidence provided by the Claimant, which contradicted Richard Barratt’s version of events, whilst Steve Rust was fully aware of the protected act 4.1.4. The Claimant relies on the protected act at paragraph 4.1.4.

4.2.9 On 9 February 2023, HR manager Rachel Bishop did not permit Stephanie Longmore to take time off during work time to accompany the Claimant even though Stephanie Longmore’s own management had advised her they had no objections to it. The Claimant relies on the protected act at paragraph 4.1.4.

4.2.10 Nathan Hudson wrote to the Claimant on 20 February 2023: “I do recognise that we have previously invited you to a Resolution meeting, however on review I feel it would be prudent to send your complete document to the Investigating Officer for this to form part of the investigation”. By attempting to amalgamate the grievance into the investigation and causing further delay, alarm, and distress. The Claimant relies on the protected act at paragraph

4.2.11 On 28 February 2023, Charanpreet Dheensa emailed all the Operation Managers and Hospital Liaison officers and gave them access to a folder containing sensitive emails and all the email correspondence between the Claimant and management team. The folder also contained detailed information into the investigation into the Claimant. The Claimant relies on the protected act at paragraph 4.1.4.

4.2.12 On 5 March 2023, Steve Rust emailed Richard Barratt during his interview with the Claimant as part of the investigation into the Claimant’s alleged breach of Policy and Procedures, showing collusion between the management as there was no need to message Richard Barratt. The Claimant relies on the protected act at paragraph 4.1.4.

4.2.13 On 16 March 2023, Charanpreet Dheensa emailed all the Operation Managers and Hospital Liaison officers and informed them that the Claimant had carried out a Subject Access Request and was asking for all email correspondence. The Claimant relies on the protected act at paragraph 4.1.4.

4.2.14 On 17 March 2023, Charanpreet Dheensa emailed the Claimant and claimed the data pull for the Subject Access Request was difficult when in fact there was no data pull, and all emails were gathered via individual managers allowing them to pick and choose what was shared. The Claimant relies on the protected act at paragraph 4.1.4.

4.2.15 On or before 4 April 2023 (this is the date the investigation pack was shared with the Claimant), Steve Rust fabricated information within an investigation pack, stating: “(NB –Victoria was conducting ILS sessions at this time and was not the Duty OM).” This statement is simply untrue – Victoria Hoy is not trained to conduct ILS assessments. This information was fabricated to push a narrative of guilt upon the Claimant – lying within an investigation which the Respondent claimed could lead to dismissal is detrimental in itself. The Claimant relies on the protected act at paragraph 4.1.4.

4.2.16 Chris Kerr, the Head of Information and Governance failed to reply to the Claimant’s email dated 12 April 2023 regarding the Subject Access Request and failed to conduct an internal review as advised by the Independent Commissioners Office. The Claimant relies on the protected act at paragraph 4.1.4.

4.2.17 On the 21 April 2023 withheld, from the Subject Access Request, emails amongst which were emails that brought into question the narrative of Victoria Hoy. On January 12 2023 Richard Hoy emails Katy Molland : “Vikki told him he’d have to phone in if he had no intention of coming in …” The Claimant believes this email was withheld due to Victoria Hoy not admitting she had instructed the claimant to phone in within her interview as part of the investigation into the Claimant. Had it been included it would bring into question Victoria Hoy’s interview statement and corroborate the Claimants version of events. The Claimant relies on the protected act at paragraph 4.1.4.

4.2.18 On 1 May 2023, Robert Till refused to re arrange the disciplinary meeting after being informed the chosen colleague was unable to attend. The Claimant relies on the protected act at paragraph 4.1.4.

4.2.19 On the 12th December 2023 Michelle Brotherton Non-Emergency Services Ops Delivery Director and Graeme Jones Head of Corporate Efficiencies, provided feedback regarding the outcome of the Stage 3 Resolution procedure. They failed to address in full 3 out of the 5 issues the Claimant had complained about. namely:4.2.19.1 The investigation completed in 2023 by Steve Rust in which 4 managers appeared to have lied (Jaskiran Dhadda changing her story once confronted regarding where she took the call on 25th December 2022. Victoria Hoy denying, she instructed the claimant to phone in on 25th December 2022. Richard Barratt claiming, he was unaware of the claimant working or applying to work for any other employer until September 2021. Steve Rust fabricating information within his investigation pack;

4.2.19.2 The subject access request (SAR); and

4.2.19.3 Concerns regarding Katy Molland, including BCC’ing Richard Barratt into a conversation with the Claimant and that Katy Molland contacted the Claimant’s Welfare Officer and asking for updates regarding the contact with the Claimant to be used in a disciplinary hearing. The Claimant relies on the protected act at paragraph 4.1.4.

4.2.20 On the 5th January 2024 Michelle Brotherton emailed the Claimant and advised she would not be making any amendments to the outcome letter received after the Claimant had objected to important facts not being included within the final outcome letter and the Respondent had rephrased and misrepresented what had been discussed, had the amendments been made it would have shown clearly the contradictions within the Respondent’s outcome meeting. The specific concerns:4.2.20.1 Omission of Graeme Jones’ explanation of Richard Barratt’s reasoning for emailing J.Dhadda “ It’s a stage, he didn’t have to go off sick did he, he choose too”

4.2.20.2 Omission of the Claimant’s response to Graeme Jones stating “in terms of process this had been dealt with in line with policy…”

4.2.20.3 Omission of the Claimant’s response to Graeme Jones regarding the agreement by Richard Barratt to change shifts with 4 weeks notice.

4.2.20.4 Omission of Graeme Jones’ remarks that he had checked the Claimant’s record and that the Claimant had not worked a Christmas shift since 2015.

4.2.20.5 The apparent fabrication that Graeme Jones had questioned the Claimant regarding approaching a junior member of staff rather than Richard Barratt when in fact Graeme had declared this was his opinion. The omission of the conversation the Claimant had with Graeme in August 2023.

4.2.20.6 Omission of Richard Barratt’s reasoning as to why he did not contact the Claimant when he was made aware of the Claimant’s failure to secure a shift swap.

4.2.20.7 Omitting the fact Graeme Jones had admitted Katy Molland had drawn up the Terms of Reference and instead stating “In terms of the terms of reference for your investigation, these were supported by Katy Molland, HR Advisor following discussion surrounding these with Richard Barratt” and omitting the conversation that followed.

4.2.20.8 Fabricating that Graeme Jones had told the Claimant that there had been a “discussion surrounding these with Richard Barratt”.

4.2.20.9 Omitting the conversation around the Fact Finding meeting and how Graeme Jones was in agreement that the Claimant had followed this agreement at all times and that the Claimant was no longer primarily employed by West Midlands Ambulance Service.

4.2.20.10 Omitting Graeme Jones’ reasoning that Katy Molland was not aware of the agreement letter and the rejection of this claim by the Claimant.

4.2.20.11 Claiming Graeme Jones said: “The date did read on the document as the 13th January, however when sent onward the date was not amended to the 15th January where it should have been.” When in fact he had said : “ “ the date did read as the 13th but should have been amended to the 19th when the letter was sent out and that 7 days from the fact finding meeting would be a reasonable time for Rich to have reviewed and accepted the TOR put forward by Katy Molland”.

4.2.20.12 Fabricating the addition: “Richard spoke with Steve Rust to advise of the investigation and gave permission to Katy to share this as he had been on annual leave.”

4.2.20.13 Omitting Michelle Brotherton’s admission that lies within the investigation were still being looked into and that she would meet with the Claimant again to discuss this in more detail.

4.2.20.14 Fabricating the addition: “again this would be a point for your submissions as part of a disciplinary process”.

4.2.20.15 Omitting that both Graeme Jones and Michelle Brotherton had advised that they were unable to reach Chris Kerr and had sent multiple emails and this was the reason for the delay regarding the SAR however had then admitted that “Chris has said that moving forward when anyone is asked to provide emails within a SAR that they would receive their own individual folder to place them in to avoid people having access to all emails” proving that they had indeed had contact with Chris Kerr and that they had discussed my SAR and a solution had been put forward.

4.2.20.16 Omission of the conversation and reassurance Graeme Jones and Michelle Brotherton gave to the Claimant that what had happened would not have reached gross misconduct and it was possible that no sanction would have been handed to the claimant at a disciplinary hearing and the Claimant’s objection, quoting the policy and hearing invite letter. The Claimant relies on the protected act at paragraph 4.1.4.

4.3 By doing so, did it subject the Claimant to detriment? 4.3 If so, was it because the Claimant did a protected act? 4.5 Was it because the Respondent believed the Claimant had done, or might do, a protected act?

[5]Less favourable treatment under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000

5.1 It is accepted that the Claimant is a part-time worker.

5.2 The Claimant relies on the following identified employee of the Respondent as his full-time comparators:5.2.1 Daniel Duffield

5.2.2 Jessica Jenkins

5.3 Are the Claimant’s identified comparators an appropriate comparator:5.3.1 Are they employed by the Respondent under the same type of contract as the Claimant?

5.3.2 Is the identified comparator a full-time worker?

5.3.3 Are they engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience?

5.3.4 Do they work or are they based at the same establishment as the Claimant?

5.4 Has the Claimant been treated less favourably than the Respondent has treated his comparator, if it is accepted, they are an appropriate comparator in respect of the following alleged detriments:5.4.1 Refusing to re arrange the shift on 25th December 2022 and by emailing Comparator (b): “It is very rare we decline shift changes when reasonable notice is given…”

5.4.2 Please refer to Paragraphs 3.2.1.1 – 3.2.6 [Comparators C and D are not relied on for this section].

5.5 In respect of each of the above terms or alleged detriments5.5.1 did the alleged detriment occur and was it a detriment (would a reasonable person take the view the Claimant has been disadvantaged in some way)? And

5.5.2 was the alleged less favourable treatment on the ground of the Claimant’s part-time status or for another reason?

5.6 If it is found that any detriment was less favourable treatment on the grounds of the Claimant’s part-time status, can the Respondent objectively justify the treatment or term as a proportionate means of achieving a legitimate aim?

[6]

Breach of the Employment Relations Act 1999 section 10

6.1 Was the Claimant required or invited by the Respondent to attend:6.1.1 a Stage 1 Resolution meeting on 10 February 2023?

6.1.2 a Stage 1 Resolution meeting on 19 May 2023?

6.2 If so, did the Claimant reasonably request to be accompanied at the hearing?

6.3 Did the Respondent permit the Claimant to be accompanied at the hearing by one companion who was chosen by the Claimant? Was this companion employed by a trade union, an officer of a trade union or another of the Respondent’s workers?

6.4 Was the Claimant’s chosen companion available at the time proposed for the hearing by the Respondent and, if not, did the Claimant propose an alternative time which was reasonable and fell before the end of the period of five working days beginning with the first working day after the day proposed by the Respondent?

6.5 Did the Respondent permit a worker to take time off during working hours for the purpose of accompanying the Claimant in accordance with paragraph 6.1.2?

6.6 Should the Respondent pay compensation to the Claimant of an amount not exceeding two weeks’ pay?

[7]Remedy for discrimination or victimisation7.1 Should the Tribunal make a recommendation that the Respondent take steps to reduce any adverse effect on the Claimant? What should it recommend?

7.2 What financial losses has the discrimination caused the Claimant?

7.3 What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that?

7.4 Has the discrimination caused the Claimant personal injury and how much compensation should be awarded for that?

7.5 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

7.6 Did the Respondent or the Claimant unreasonably fail to comply with it?

7.7 If so is it just and equitable to increase or decrease any award payable to the Claimant?

7.8 By what proportion, up to 25%?

7.9 Should interest be awarded? How much?