Mr P Ghuman v Royal Mail Group Ltd: 1306244/2024

EMPLOYMENT TRIBUNALS

Case No 1306244/2024

Between

Mr P GhumanClaimant

Royal Mail Group LimitedRespondent

Before

Employment Judge Noons

In person for claimant

Ms Hall - Solicitor for respondent

Date 25 February 2026

JUDGMENT

It is the decision of the Employment Tribunal that:

[1]The claimant’s application to amend his claim to include complaints of disability discrimination be refused.

REASONS

[1]The Respondent employed the Claimant as an HGV driver. His employment commenced on 5 December 2022.

[2]The Claimant remained employed by the Respondent as at the date of the ET1, although he was off sick at that time.

[3]Early conciliation commenced through ACAS being notified on 26 April 2024. ACAS issued the early conciliation certificate on 30 May 2024. As such, any complaint in relation to the treatment of the Claimant prior to 27 January 2024 was identified as potentially out of time.

[4]The ET1 was received by the Tribunal on 26 June 2024. The Claimant ticked the applicable box at section 8.1 of the ET1 to indicate that he was bringing a complaint of race discrimination. He also indicated that he was complaining of sexual harassment.

[5]Additionally, the Claimant ticked the applicable box to indicate that he was claiming that he was owed “other payments”, although details were not provided. Clarification was sought from the Claimant in the preliminary hearing. He explained that the alleged discrimination caused him to be off work sick with the result that he was not earning overtime payments. However, this was confirmed not to be a separate complaint. Rather, it was a potential financial loss arising from the alleged discrimination.

[6]There was also an issue regarding the Claimant not receiving sick pay, but he accepted at the preliminary hearing that he had been reimbursed by being paid any money owed after a couple of months.

[7]By way of setting out his complaints, the Claimant had attached a document to his ET1 which provided a narrative setting out the alleged factual basis for his claims without identifying the specific legal complaints. Accordingly, during the preliminary hearing, the Employment Judge went through the matters complained about in that document and identified the legal complaints which potentially arose from that narrative. This enabled the List of Issues to be drafted. The list is annexed to this judgment.

[8]The Claimant indicated that some parts of the narrative were not intended to give rise to separate freestanding complaints but were effectively set out as part of the relevant background.

[9]There were applications to amend, which were permitted in relation to the Claimant’s grievance and appeal allegations but refused in relation to adding claims of disability discrimination.

[10]We heard that, subsequently, the Claimant was dismissed and has issued a further claim. This resulted in some confusion over where this claim ended and where the second claim began. It was agreed that our decision should be limited to consideration of the Claimant’s grievance appeal outcome. What happened thereafter remains subject to the second claim.

[11]The Claimant had also sought witness orders, one of which was granted in relation to Pritpal Matharu, a friend and colleague.

[12]The Respondent made an application to exclude all allegations outside the primary time limit.

[13]The Claimant’s claims for harassment related to sex concerned allegations against Denise Cox from 2 unsuccessful job applications said to be in August 2021 and April 2022. These were isolated and severable allegations from those made subsequently relating to race and did not, therefore, form part of conduct extending over a period.

[14]They were, therefore, presented between 21 and 29 months late with no valid excuse. They appeared largely unsupported and potentially inconsistent whereas the Respondent would be prejudiced by matters such as fading memories and absence of documentation were they allowed to proceed. As a result, it was not considered just and equitable to extend time. Further reasons were given orally at the time.

[15]Nonetheless, we did still consider them as potentially relevant background and in the context of allegations about failures in the internal investigations. The race discrimination allegations, however, were at least arguably part of a continuing act and so those proceeded albeit with time limits remaining a “live” issue.

The Facts

[16]The Claimant had applied to the Respondent for a position as an HGV driver in 2019 but was unsuccessful.

[17]He said he applied again in August 2021 and had an unsuccessful driving assessment this time with Denise Cox. No documentation in relation to that had been retained.

[18]Having failed, he alleged that he was subjected to sexually suggestive comments by Ms Cox during the assessment that impacted on his performance.

[19]He claimed that he raised his concerns orally with HRa, in HR, a short while thereafter and was advised to put them in writing, albeit he subsequently chose not to.

[20]He said this was because he did not want to damage his future prospects of obtaining employment with the Respondent. That was surprising. If the Respondent was going to “mark his cards” for complaining, his oral complaint (if any), would, we imagine, have sufficed. By not pursuing his complaint, he was also left without potential redress.

[21]Even on the Claimant’s case regarding the assessment hea. braked too sharply,

b. almost hit a kerb and

c. failed to turn left when instructed so there would appear to have been legitimate grounds for failing him.

[22]His retrospective justifications became something of a pattern.

[23]The Claimant applied again, and failed again, in April 2022.

[24]This time he had an interview before his driving assessment with Ms Cox. He failed both. The interview was conducted by 2 different managers, including one of Indian heritage, RS.

[25]The Claimant was notified that he had been unsuccessful on 13 May 2022. He texted Mr Matharu with a copy of his rejection which he considered to be “bullshit”, albeit at that stage he had not been told the reasons.

[26]On Mr Matharu’s advice, the Claimant emailed LH in HR requesting feedback whilst also saying that he wished to raise concerns about his driving assessments.

[27]The Claimant asked Mr Matharu whether he should contact RS and it was suggested that he wait for a response first.

[28]We have seen the Claimant’s interview and driving assessment scores and, as mentioned, he failed both. Once he received the feedback, he didn’t pursue his complaints, perhaps implying that he accepted the results. Either way, his resentment against Ms Cox remained as evidenced by subsequent text exchanges with Mr Matharu.

[29]LH said that if the Claimant had spoken to him as claimed, he would have advised him to put in a complaint. It was common ground that the Claimant again did not do so.

[30]Before us, the Claimant argued that he had failed his interview because Ms Cox had unsettled him beforehand by treading on his feet to check that he was wearing the required steel toe caps (a not uncommon method in our experience, even if inappropriate) and shouting at him about the required paperwork. This, he said, was harassment related to sex, although it was unclear why.

[31]He said, however, that Ms Cox had failed him on the subsequent driving assessment because of his race.

[32]We saw the interview notes and accept that several of the responses given by the Claimant were sub-standard despite being very basic, sometimes safety critical, questions. If the alleged actions of Ms Cox were capable of throwing him so completely that would, in any event, potentially indicate a temperament unsuited to driving HGVs. It also appeared that he was unaware that he was going to be interviewed but, if so, that was a failure in preparation on his part.

[33]For example, he failed on people focus, listening to, working with and helping others, an area where he would subsequently experience problems. He also failed on improvement focus, which included assessing his ability to check in with others about the viability of working practices and his positivity about change.

[34]We also had the driving assessment paperwork which appeared to show him failing in relation to a few of the essential vehicle checks and in relation to a couple of aspects of his on road driving. He passed in all other areas and there was nothing to indicate bias or inaccuracy in the assessment, albeit the Claimant inevitably disputed some aspects.

[35]These examples (and several subsequently) illustrated that the Claimant had a habit of blame and justification seemingly created for some external audience as to why he had failed, which is not to say that his stated reasons may not have contained some truth. It appeared, however, that he would do just enough to support his narrative, whether to Mr Matharu or, perhaps, others, without allowing it to be tested contemporaneously.

[36]Some of it made no sense, however. For example, we can think of no plausible reason why anyone at the Respondent would have any cause to react negatively to the fact that the Claimant lived near the depot, let alone someone who was allegedly making sexual advances towards him.

[37]Similarly, it was unlikely that Ms Cox would have first said the job was not for the Claimant, then made sexual advances towards him. It was equally implausible that, after an assessment which the Claimant described as tense with often awkward silences, that the assessor would say “You can’t get a job here by being nice to me”. The most obvious context for such a comment would have been the Claimant, having known he had made mistakes, trying to paper over them with pleasantries.

[38]Beyond rejecting the Claimant’s account, we simply don’t know but, as mentioned, those matters alleged to relate to sex failed on time limit grounds in any event.

[39]The idea that raising matters informally, but not progressing them, was likely to improve his chances next time also made no sense. We also struggled to understand the logic of the suggestion that Ms Cox would initially sexually harass him yet subsequently discriminate against him because of his race which is not to say that was impossible.

[40]Of greater concern, perhaps, was the fact that the Claimant said that he bumped into RS in the yard a few weeks after he failed the April 2022 assessment and, he claimed, she knew about his issues and would ensure he got preferential treatment the next time he applied. It seemed highly unlikely thata. RS would have any idea about the Claimant’s complaints given that he hadn’t identified them, let alone followed them up

b. She would offer anyone preferential treatment in breach of the Respondent’s policies, particularly someone she had only met once and

c. Who had materially failed his interview before her, whatever the outcome of his driving assessment

[41]It may have been a misunderstanding but when the Claimant subsequently emailed her asking for assistance to favourably progress his next application he, unsurprisingly, got no reply. Nonetheless, having applied again later that year for a position based at the Respondent’s National Distribution Centre (NDC) he was ultimately successful.

[42]Once employed, the Claimant worked from there for almost a year largely uneventfully and, it seemed to us that this period broke continuity with his later allegations in any event. He then applied to be transferred back to the Coventry depot nearer his home and was successful.

[43]The Claimant was inducted with three other drivers in October 2023 and both Ms Cox and Mr Matharu were involved in that induction.

[44]We saw text messages between the Claimant and Mr Matharu which revealed negativity towards Ms Cox prior to that training commencing.

[45]The Claimant had, apparently, been ill the weekend prior and, when he told his friend this, Mr Matharu quipped in reply that the cause must have been the Claimant “thinking of Denise”.

[46]All this shows, however, is that the Claimant had previously shared his negativity towards Ms Cox. Whether that was simply because he was upset that she had failed him twice or she had acted inappropriately and / or unfairly was less clear.

[47]The Claimant responded “fuck her….I’ll put a complaint in any time I see discrimination”. That message showeda. extreme ill feeling towards Ms Cox and

b. that he had previously alleged unidentified discrimination by Ms Cox against him to Mr Matharu

c. that he was actively expecting to be discriminated against

d. that he would put in a complaint if he was

[48]It did not, however, prove that the Claimant had previously been discriminated against, nor even that he genuinely believed he had, merely because it was consistent with those propositions.

[49]We are, of course, aware that those who have been discriminated against can be both more aware of, and sensitive to, further such acts. It can also mean that future events are perceived through a filter such that innocent remarks may, quite understandably, be misinterpreted.

[50]In relation to the events that followed, however, what we do know is that no such complaint was made, at least not until it was tagged on to the Claimant’s subsequent grievance, over 5 months later.

[51]The Claimant said that Ms Cox spoke to him that week in a rude or degrading manner or tone compared to his white peers. That was not, however, a perception shared by them, despite the Claimant expecting it to be and having claimed to have discussed it with them. Ms Cox denied it. Mr Matharu did, however, feel that Ms Cox demonstrated her dislike of the Claimant.

[52]It was alleged specifically that Ms Cox had asked the Claimant in a derogatory manner if he had an English passport.

[53]It was common ground that everyone would need to produce identification documentation for the necessary legal and security checks but the Claimant was adamant that he was the only one asked on the first day. However, context is often key.

[54]The Claimant described that the other 3 trainees had already put their documents out on the desk and one had raised that there may be an issue with his passport having expired. In those circumstances, it seems to us, it would be entirely reasonable to ask the one who, for whatever reason, hadn’t produced his, whether he had one, even if they weren’t due to be checked that day.

[55]We appreciate it is a British passport rather than an English one but nothing was made of that inaccuracy or distinction.

[56]Mr Matharu who was present for some of the induction did feel that there was a difference of treatment, albeit he considered that it was based on a seemingly mutual dislike, as opposed to race.

[57]We heard unchallenged evidence that in over 10 years as a driving assessor Ms Cox had received no complaints about race or sex discrimination or any other form of inappropriate conduct, despite unevidenced supposition and hearsay from the Claimant to the contrary.

[58]Ms Cox was off sick the next 2 days but, nonetheless, Mr Matharu was texting the Claimant during the training saying “Don’t say too much in front of the Goray” a south Asian term for white / European people, often considered derogatory.

[59]The Claimant responded using the same term to reference one of the training colleagues who had, it was said, been shocked by Ms Cox asking about the Claimant’s passport the day before. If that were true, it was not supported by that individual in the subsequent internal investigation.

[60]Ms Cox returned on the Thursday (5 October 2023) and we heard a lot of the training involved watching videos, including ones on equality and diversity and airport security.

[61]It was said that Ms Cox made repeated references to keeping terrorists out. This was not supported by other witnesses but we imagine that the word may well have been used on more than one occasion in relation to the need for additional security measures when attending airports and also in relation to the need for enhanced identification and security checks. If that was the context, it would not be memorable.

[62]Whether this was an illustration of sensitivity on the Claimant’s part, a form of confirmation bias based on his declared expectations or opportunism was less clear. Either way, we do not accept the Claimant’s unsupported interpretation.

[63]Similarly, the Claimant made much of the fact that he said that Ms Cox referred to his driving licence photo as “dodgy”. Whilst there was only limited support for this, it seemed likely that something along those lines was said, albeit probably not only to the Claimant.

[64]It is not uncommon in our experience for identification photos to look or be said to look “dodgy”. This could, for example, be due to the fact that they may be several years old and / or the requirement not to smile. Friends and family members will often laugh at each other’s photos at airports.

[65]Again, therefore, context is key. In this case, it was common ground that a couple of the Claimant’s identification documents had vastly different pictures such that in one he wore a turban and had a long beard but not the other. That would have caused anyone to look twice and check that they were, in fact, photos of the same person.

[66]To refer to them as “dodgy” in a light hearted manner, as it was perceived by the others present, whilst perhaps an unwise choice of words, would be part of the necessary checks. It would not carry the connotations that the Claimant sought to place on it.

[67]Finally, it was alleged that Ms Cox said to the Claimant that she didn’t want any problems from him. In isolation, that could, theoretically, appear aggressive. However, according to the Claimant the context was that the inductees were identifying their preferred shift patterns and duties.

[68]Those present agreed that they had been told they would probably all have to work weekends. Nonetheless, the Claimant was thinking out loud that he would prefer Mondays to Fridays. In that context, the Claimant was identifying himself as a potential problem and it would have been reasonable for Ms Cox to call him out on it. These matters of shift selections are often a headache for managers.

[69]In any event, we heard that the Claimant was able to identify a largely midweek shift, albeit it ran into the early hours of Saturday morning.

[70]When the trainees were discussing how far away they lived, the Claimant alleged that Ms Cox rudely interrupted him to say that he lived the closest. The Claimant did live the closest and we fail to see how this was anything other than her joining in the conversation, albeit perceived differently by the Claimant due to his pre-existing negative disposition towards her. It wasn’t picked up on by the others present, despite at least one saying they would have noticed if anything was amiss.

[71]Similarly, it was alleged that Ms Cox spoke to the group after each of the training videos apart from the one on dignity and respect. We heard that her role was simply to check understanding. The theme of the dignity at work video was apparently that everyone is entitled to say “enough” and Ms Cox apparently reinforced this at the end. We would observe that sometimes a clear, simple message such as this is preferable.

[72]What was clear was that the Claimant had a predisposition against Ms Cox and this may have been reflected in his perception of events, if genuine. Whether that feeling was mutual was less clear, albeit supported by Mr Matharu but not the others present.

[73]The Claimant made no complaint of alleged discrimination at the time despite having told Mr Matharu that he would if such occurred.

[74]The Claimant commenced working from the Coventry depot and, on 6 December 2023, he went to the manager’s office to request some weekend overtime. It was common ground that he did so after the cut off time for such a request and that the Claimant approached Richard Wade, Traffic Office Manager, from behind.

[75]The Claimant alleged that Mr Wade shouted “No, you’re too late”.

[76]This was denied by Mr Wade and the others present.

[77]In any event, we struggle to understand how, even on his case, the Claimant could have perceived this as related to his race. Firstly, without turning around, Mr Wade wouldn’t have known who had made the request. Secondly, if, in a busy period, someone requests overtime late, managers are entitled to be human and express their frustration at the lateness and unnecessary disruption. We heard that this was the busiest time of year in the build up to the Christmas period. Moreover, it didn’t even appear to be alleged to be related to race in the Claimant’s subsequent initial complaint, only becoming such in his claim form.

[78]Moreover, we heard that the next day the Claimant was able to be offered an overtime shift that coming Sunday, albeit by a different manager.

[79]One of the Claimant’s principal duties was to drive to a depot operated on behalf of Screwfix by Wincanton in Stafford.

[80]It appeared that on occasions a number of drivers would arrive from different locations at similar times and sometimes issues would arise about the order in which they would drop and swap their trailers, including when one drops onto a bay, where trailers are left, which are picked up when and any shunting required in between. That is not, in our experience, unusual.

[81]The Claimant suggested that he always did as required by the customer but it appeared that some of his colleagues felt he was taking shortcuts and not doing his fair share so that he could depart first and get back to Coventry early. That would then be the end of his shift meaning he may have been able to leave early.

[82]He was first challenged in this regard by Graham Jones in January 2024 seemingly on several occasions.

[83]This apparently culminated in a situation on 31 January 2024 when Mr Jones alleged that the Claimant was “more than happy to leave the yard as soon as possible leaving someone else to complete his work”. He took it upon himself to raise this with the Claimant.

[84]The Claimant suggested that Mr Jones was very angry after the Claimant dropped his trailer and shouted “you fucking lazy bastard, what’s your leaving time?” to which the Claimant responded “none of your business”.

[85]We heard that the Claimant’s scheduled departure time was about 30 minutes after Mr Jones.

[86]On departing, the Claimant stopped to call the managers in the Coventry depot. Mr Wade said the Claimant had informed them that another driver had shouted at him for trying to leave early.

[87]On his return to Coventry, the Claimant went up to the office to tell the managers what had happened. It appears that he was asked whether he had anything to add to what he had reported by phone, or words to that effect.

[88]There was a dispute over whether the Claimant did, in fact, have anything to add but we would accept that, if he did, he would have been required to put it in writing. The Claimant acknowledged this but, again, he didn’t.

[89]In any event, there was no evidence at the time or before us of what the Claimant felt he needed to add, nor why he hung around the office without saying it. His version of events was not supported by the others present. It appeared that the managers had already determined that they would need to speak to Mr Jones to get his version of events.

[90]The Claimant said that Mr Wade shouted at him “why are you still here?” This was denied by Mr Wade and the others present but would only make sense if the Claimant was loitering around without adding anything to his earlier complaint.

[91]The Claimant alleged that, as he left, Mr Jones was approaching the office and received a much friendlier welcome. This was denied by the managers. In fact, Mr Wade said that it was the Claimant who had been aggressive. Mr Owen appeared to take responsibility for ushering Mr Jones away.

[92]We would acknowledge that these sort of issues are not uncommon in transport offices and, if the Claimant was acting as claimed, he may have perceived some frustration on the part of management that would not, however, without more, be sufficient to link any perceived difference to race.

[93]We heard that, given the Claimant’s presentation, the Respondent had expected him to put in a written complaint. In any event, they clearly took the matter seriously as Mr Jones was asked to provide his version of events that night. It is understandable that they would have wanted to keep the drivers apart and de-escalate matters until they had done so.

[94]We heard that the managers were surprised that the Claimant had made it back to the depot before Mr Jones as he was not due until 30 minutes after him so this may also have impacted their reaction. Moreover, it would tend to support the suggestion that he was taking shortcuts at Screwfix to get back early.

[95]The Claimant had a diary entry on 2 February 2024, saying he spoke to his union representative and LH, of HR about being unhappy about the situation with Mr Jones and Mr Wade. The entry said this was because LH knew about the situation in the past, seemingly a reference to the Claimant’s unsuccessful application 2 years earlier, despite that appearing both unrelated and unlikely to be remembered.

[96]The diary entry also, bizarrely, referenced HRa, from the Claimant’s earlier failed assessment in 2021, which seemed unlikely to be contemporaneous, not least because those alleged matters were both entirely unconnected and not raised in the first two iterations of the Claimant’s grievance a few weeks later. We were not provided with the 31 January entry.

[97]On 4 February 2024, the Claimant attended Mr Matharu’s son’s 18th birthday celebrations at the local Sikh temple, along with several other Sikh colleagues who worked for the Respondent.

[98]One of those colleagues, Taj, posted a celebratory group picture on facebook, which resulted in a few “likes” and friendly responses before Mr Jones added “Nice photo, but hands up who’s lazy and stuffs their colleagues. Clue: it’s not you [Taj], Davinder or Jagjit”

[99]It was common ground that this was a reference to the Claimant related to Mr Jones’ perception that he did as little as possible at the Screwfix site, leaving additional work for the other drivers.

[100]The Claimant was, understandably, upset about this work dispute being raised on a private group chat including several other colleagues. He said he spoke to his union representative who agreed to address it directly with Mr Jones.

[101]Whether he did or not was unclear but Mr Jones did not remove the post illustrating, perhaps, his depth of feeling about the matter, albeit he obviously had good relations with several of the Claimant’s Sikh colleagues.

[102]On 12 February 2024, the Claimant had a tacho infringement from the night before (which he somehow sought to blame on the alleged pressure he was under at work) and went into the office to address this. He said he was asked again whether he had put in a statement about the Screwfix event, which he hadn’t. The Claimant did, however, report Mr Jones’ facebook post.

[103]Later that night the Claimant was again doing a drop at Screwfix. He said he was told by the Screwfix manager to drop his trailer onto an empty bay, which he did. Another Coventry driver, NP then approached him complaining that he shouldn’t have dropped his trailer there in the yard and that if he had there would be big problems.

[104]In the subsequent investigation, the Claimant’s account was disputed by Scott, the Screwfix manager who specifically said that he had not told the Claimant to drop onto a bay as he was saving it for NP who needed a faster turnaround. He also said that both drivers ended up arguing and that this escalated because the Claimant had claimed, falsely in Scott’s view, that he sometimes did additional shunting tasks in the yard.

[105]It was also disputed by NP who said he had simply asked the Claimant why he was always jumping the queue and that it was the Claimant who became unreasonable.

[106]Despite this it was the Claimant who called the Coventry office to complain, seemingly getting his retaliation in first. He spoke to Jack O’Rourke who allegedly replied something like “what do you want me to do about it, I’m not there, you’re a man, you sort it out”.

[107]This was disputed by Mr O’Rourke who nonetheless acknowledged that he would have said something about it being unacceptable for two grown men to be arguing over a trailer at a customer site, which it was, and to have encouraged them to resolve it.

[108]The Claimant felt that, in the subsequent internal investigation, the independent Screwfix manager would support him in relation to his version of events on this night and generally, but he did not, quite the contrary.

[109]When the Claimant returned to Coventry he did not report to the manager’s office, claiming that Mr Jones was loitering around.

[110]He came in early the next day to sign off his prior tacho infringement.

[111]Returning from his run in the early hours of 17 February 2024, the Claimant was flashed by a speed camera on the M6 doing 54 mph in a reduced speed 40 mph zone which resulted in him fearing he would receive a traffic infringement notice which he subsequently did. Again, perhaps, this supports the suggestion that the Claimant’s focus was on completing his shift as soon as possible.

[112]The Claimant also sought to attribute his speeding to the stress he was under due to the preceding events and said that, as a result, over the weekend, he decided he was going to phone in sick with stress albeit without initially telling his family. He absented himself on 19 February 2024, his next shift.

[113]On 20 February 2024, the Claimant was asked to attend a sickness review meeting. We heard that it was the Respondent’s policy to try to address the causes of stress related absence early, something that is, in our experience, increasingly common given the widespread evidence that the sooner underlying causes are addressed and / or a return to work is secured the better the prognosis. Regrettably, no doubt due to time constraints, this does not always materially influence those responsible for signing fit notes.

[114]The Claimant requested a delay and so the meeting actually took place on 21 February 2024. It was conducted by Simon Kendall. The Claimant was supported by his union representative.

[115]The notes of that meeting suggested that the Claimant’s issue was the reaction of Mr Wade when he had first raised his concerns about Mr Jones at Screwfix. The Claimant said that he was happy raising these with Mr Kendall and he completed a stress risk assessment and was referred to Occupational Health (OH). He was again asked to put in a statement about his complaints.

[116]The Claimant raised before us a number of issues that were not recorded in the notes of that meeting. For example, he suggested that Mr Kendall had said that he was only doing this now that he was an employee because he would get paid as opposed to complaining when he was an agency driver or in the first year of employment.

[117]He also suggested that Mr Kendall had referenced when Mr Wade had shouted “no, too late” when he was seeking overtime in December 2023 and had even mentioned the Claimant hitting a kerb in his first driving assessment with Denise Cox in 2021.

[118]Those discussion matters were denied and seemed to us to be highly implausible. It would be odd for Mr Kendall to have been aware of those alleged matters prior to the Claimant raising them. Whilst they may have been important to the Claimant, they were unlikely to have been memorable or comment worthy to anyone else. For example, in relation to the latter, there would be no reason for Ms Cox, who did dozens of driver assessments, to tell other managers why a particular candidate may have failed. It would also be surprising for such information to be remembered years later. In addition, at the time of the sickness review meeting it was a completely irrelevant matter and so there would be no reason for it to be raised.

[119]Perhaps most tellingly, if such matters had been discussed they would have provided solid grounds for the Claimant objecting to Mr Kendall subsequently investigating the Claimant’s grievance. Whilst the Claimant did object to Mr Kendall’s involvement this was solely on the basis of his perceived closeness to some of the managers under investigation.

[120]We do not, therefore, accept the Claimant’s account in relation to these points. Whether they were genuine, albeit inaccurate, narrative developments or a more cynical attempt to undermine Mr Kendall’s credibility before us was less clear.

[121]On 24 February 2024, the Claimant, as requested, submitted a bullying and harassment complaint form, identifying the 2 incidents at Screwfix, the management response and the facebook post as the matters he was complaining about. There was no mention of alleged discrimination at this stage.

[122]In a follow up call with HR on 27 February 2024, the Claimant focused on the Graham Jones incident, management response and the facebook post.

[123]In subsequent exchanges the Claimant alleged that he was encouraged to also include his earlier complaints about Denise Cox at the driving assessments and induction.

[124]On or around 4 March 2024, the Claimant received the notice of intended prosecution for his speeding offence.

[125]On 5 March 2024, the Claimant received notification that Mr Kendall had been allocated to investigate his grievance. Whilst disappointed that it was to be one of the local managers, none of the specific objections to Mr Kendall’s involvement raised before us, were made at the time.

[126]On 7 March 2024, the Claimant was reviewed by OH who determined that he was fit to work without adjustments whilst also suggesting resolving his workplace disputes would be beneficial for his mental health.

[127]The Claimant interpreted this as meaning he would only be fit to return if his issues were resolved, which is not what it said. He raised this challenge with OH but they reiterated their view that he was fit for work.

[128]On 12 March 2024, the Claimant submitted his formal grievance, including the matters from his original complaint, which were still not identified as potential discrimination, and also those against Ms Cox which were. He said he had gone off sick to protect his health and wellbeing pending resolution of his issues.

[129]The Claimant attended 2 lengthy grievance investigation meetings in early April 2024 accompanied by union representative. He was subsequently provided with the notes and proposed a significant number of amendments.

[130]Over the next couple of months, Mr Kendall interviewed 15 witnesses producing meeting notes in each case. He also reverted to both the Claimant and Ms Cox as required. He endeavoured to obtain the Screwfix CCTV footage but was told that this had not been retained. He also received an email statement from Scott, the Screwfix manager.

[131]The investigation included speaking to all those present at the Claimant’s induction and 5 Sikh drivers who were among those pictured in the facebook post. None of them supported the Claimant’s belief that he was being discriminated against, nor his account of their shared perception of the original post, nor did any of the Sikh drivers express any concerns about racism at the Respondent.

[132]The Claimant suggested that the Respondent could have done more.

[133]Principally, it was suggested that the Respondent should have spoken to the 2 people from HR and the Transport Manager that he alleged he had spoken to about Ms Cox’s behaviour on his driving assessments. That was an arguable point, although all they would have been able to confirm was whether the Claimant had, in fact, made the same allegations to them.

[134]That was said to be the reason that they weren’t interviewed. In any event, they were contacted as part of the appeal and were unable to add anything material.

[135]HRa said that she couldn’t remember any such complaint but, had it been made she would have told the Claimant to put it in writing. It seemed to us that, had the complaint been one of sexual harassment on a driving assessment she was likely to remember. In any event, the Claimant said he had been told to put it in writing and had elected not to.

[136]LH said he thought there may have been a conversation with the Claimant but he couldn’t recall any specifics and he, too, would have told the Claimant to put it in writing. We have seen that there was, in fact, an email but no specifics of the alleged complaints.

[137]The Claimant had alleged that RS must have been aware of his prior discrimination to have offered him preferential treatment in his next application. She denied this. We have already explained why we consider it implausible that a manager who had failed a candidate at interview would then offer them preferential treatment, in breach of policy, next time, based on completely unsubstantiated allegations that had not been pursued with HR.

[138]The Claimant also alleged that the Respondent should have spoken to an agency driver, PB, who witnessed the Screwfix incident with NP. Again that was a reasonable point to raise, although the Claimant could have contacted him himself and, indeed, did so, albeit unsuccessfully. We heard that PB was contacted much later by the Respondent but did not support the Claimant’s version of events, suggesting that the issue arose out of where the Claimant had put his trailer and that neither party were aggressive.

[139]The witnesses spoken to included Mr Matharu. Whatever the origin of their relationship, it was clear from their text messages that, by October 2023 at the latest, they were friends, as further illustrated by the Claimant’s attendance at Mr Matharu’s son’s 18th birthday. Nonetheless, other than the perceived animosity between the Claimant and Ms Cox, he didn’t support the Claimant’s allegations, including those only made subsequently.

[140]For example, the Claimant alleged that Mr Matharu told him that he had been suddenly put back on driving duties because he had supported him during the investigation. but that turned out to be untrue. It appeared to be a narrative created by the Claimant who may not have understood that Mr Matharu was principally a driver with occasional additional training duties when required. That said, it was clearly not something Mr Matharu would have told him.

[141]Another manager, DD, was assigned to manage the Claimant’s absence. We did not hear from DD, who had left the respondent’s employment and the Claimant disputed the notes of the sickness meetings produced before us, at least some of which he said he did not receive until disclosure in these proceedings.

[142]The first sickness review meeting was on 29 April 2024 and the Claimant made a number of allegations about it. This was challenging because the Claimant’s comprehension and recollection were often unreliable, which is not to say they were deliberately false.

[143]For example, the Claimant alleged that DD asked him 4 times when he would be better as if this was a deliberate ploy to unsettle him which may have been how it was perceived. It appeared, however, from the Respondent’s notes that DD was relying on a script which required this question to be addressed in different ways such as in relation to his prognosis, various potential barriers to return, adjustments etc.

[144]There also appeared to be a genuine misunderstanding that the Claimant had been told it was his responsibility to contact OH with updates when, in fact, what he was likely to have been told was that it was his duty to contact OH if he disputed their findings, as he did here.

[145]This was seemingly confirmed by an email the Claimant forwarded to DD soon after the meeting. It was the response from OH to the Claimant’s original challenge to the report. The Claimant was maintaining that he was not fit for work until his grievance was resolved and / or whilst he remained signed off by his GP but OH disagreed. They maintained that he was fit for work albeit his mental health may suffer if his issues weren’t resolved.

[146]It was also alleged that DD threatened that his sick pay may be stopped. The Claimant’s own notes, however, described this as a warning rather than a threat. This must be considered in circumstances where it appeared that OH were maintaining that he was fit for work, notwithstanding his sicknote. Moreover, the Claimant was not interested in any of the options proposed for assisting him to return, other than an outcome to his grievance that was satisfactory to him. In such a context, consideration of whether to maintain him on full sick pay was something provided for in the Respondent’s policy and so it would only be fair to draw this to the attention of an absent employee.

[147]The Claimant also said that there was discussion of his grievance at the sickness meeting. Whilst it is ordinarily wise to keep such processes separate, in this case they were intrinsically linked.

[148]The Claimant’s case on this was somewhat inconsistent. He said, on the one hand, that he didn’t know the names of those he had complained about, which we assume meant their surnames. As a result, it was said, that DD listed them all to imply detailed knowledge of the complaints. However, immediately after the meeting, the Claimant emailed Mr Kendall asking for the surnames which he wouldn’t need to have done if he just been told them. In any event, at least some, such as Graham Jones, were clearly known to the Claimant as he expressly used them in his grievance.

[149]Nonetheless, the Claimant said that the discussion went further with DD expressing an opinion on the merits, or otherwise, of the complaints describing them as “harsh”. In the absence of DD we have no reason to doubt the Claimant on this point notwithstanding our wider credibility concerns.

[150]More generally, however, the Claimant was accompanied by his union representative who would have been likely to object had the meeting been as bad as the Claimant perceived.

[151]There was a further sickness review meeting with DD on 20 May 2024. The Claimant had asked for the meeting to be held elsewhere so that he did not bump into Denise Cox but, as she was not working at the time of the meeting, it was felt that this risk was mitigated.

[152]The confusion over whose responsibility it was to contact OH resurfaced but it was clear to us that it was for the employee to contact them if they wanted to clarify or challenge a report but it was for the employer to make a referral for any further reports.

[153]It appears that the Claimant had difficulty, perhaps understandably, explaining how he was feeling such that when he responded “so so”, DD said that’s not enough. The Claimant perceived this as aggressive.

[154]He also alleged that DD ended the meeting abruptly after only a few minutes saying that he would contact HR who may stop his sick pay because of the belief that he was unwilling, rather than unable, to return to work.

[155]The Claimant said that, after the meeting he again contacted OH but the immediate reference was actually to his earlier email challenging the OH conclusions.

[156]That said, it seems to us that 3 months after the original report, with the Claimant potentially asserting a deterioration in his health and still signed off by his GP, the Respondent should have commissioned a further report from OH before stopping his pay.

[157]This would have been to assess any change to the Claimant’s condition, any update to their original report and to consider the reasonableness, or otherwise, of the Claimant’s apparent unwillingness to consider temporary alternative return to work options that would have protected him from those he had raised complaints about pending conclusion of the investigation.

[158]It was unclear who made the decision to stop the Claimant’s pay but that is what happened on 3 June 2024 and the letter confirming this appeared to be from DD.

[159]The Claimant sought to challenge this via various internal routes and his union but was not getting much in the way of a substantive response. He escalated his grievance within the union and was, understandably, asked why he perceived any of his treatment as racism.

[160]He also escalated his pay and sickness issue to RS who, it appears, issued a new referral to OH who assessed the Claimant on 16 July 2024. By this stage it was determined that there was no realistic prospect of a return to work unless and until his workplace issues were addressed in a “satisfactory (to him) manner”.

[161]As a result of this second report, RS seemingly determined that the Claimant’s sick pay should be reinstated on or around 26 July 2024. Before us it was suggested that the Claimant had not been reimbursed for the interim period although that was contrary to what had been recorded at the case management hearing.

[162]Mr Kendall produced his final investigation report on 23 July 2024 addressing each of the Claimant’s allegations. His conclusions were as follows Within my role of a Bullying and Harassment investigator, I believe I have been fair and objective in establishing the essential facts in order to reach a balanced conclusion on what did or did not happen. This was established by not only reviewing the presented evidence but by also seeking supporting evidence for the allegations, along with evidence that could potentially contradict the allegations. Whilst I acknowledged Mr Ghuman’s request to have a decision as quickly as possible, in the interest of fairness I have balanced this against the investigation needing to be sufficiently thorough to be fair and reasonable. Any delays within this investigation Mr Ghuman was notified at the earliest opportunity. I have considered the comments and amendments to the meeting notes shared with Mr. Ghuman and I am of the belief that all of Mr. Ghuman's comments and amendments were based on his thoughts and views as opposed to what was discussed at our meetings. From the 17 allegations raised 3 allegations have been partially upheld and 1 allegation has been fully upheld. The details are within the body of this report. After interviewing 15 witnesses 16 including Screwfix manager statement and respondents as well as my meeting with Mr Ghuman, I can conclude in my opinion Mr Ghuman's approach is to control conversations, as a way to state his opinion or tell his story and feel no obligation to listen to the other person thereby in my opinion not allowing for a balanced conversation. This has led to Mr Ghuman approaching what he alleges were persons who were targeting him even after the individuals walked away and did not engage further, Mr Ghuman took it upon himself to make further contact. Mr Ghuman’s approach could have been considered by third parties as a form of aggression or verbal intimidation. Mr Ghuman at times throughout this investigation, has perceived third-party actions have been personal towards him for example, apportioning blame for exceeding the speed limit which is a legal requirement and something Mr Ghuman would have freely done himself without any external factors pressuring him to do so. A further example is the allegations made against the Advanced driver coach after Mr Ghuman failed his assessment for a substantive position, I acknowledge Mr Ghuman questioned the outcome, as he held the belief he did not fail and felt reasonably confident, however again this is based on opinion and without supporting fact. Mr Ghuman had the opportunity to embrace the feedback as it affirmed some key strengths and important aspects that require some work. Mr Ghuman put forward allegations of bullying and harassment towards the ADC accusing her of using unfair methods and these methods being personal towards him. The overarching principle of this investigation was to ensure it is undertaken fairly and without prejudice. However, witness T Sanghera said he was approached by Mr Ghuman a couple of days before he was interviewed which I must consider as a clear breach of case confidentiality and would question why Mr Ghuman felt the need to take this course of action when he had been advised previously in reference to case confidentiality. I am concerned this evidence supports the integrity of this investigation being compromised by Mr Ghuman with his failure to maintain case confidentiality. Mr Ghuman may have prematurely disclosed elements of this investigation which may have harmed the integrity and altered the relevancy of the findings. Based on my understanding, Mr. Ghuman has raised approximately 17 allegations, which, in my view, indicate his awareness and exercise of his right to file a complaint, He also drew comparisons between his allegations and the Nationwide Horizon issue, as well as an issue that occurred over 20 years ago in Birmingham MC. However, I found no evidence to support these beliefs. After carefully considering all aspects of this case and reviewing all the allegations, as well as examining all the evidence provided by the witness and respondent interviews, along with my further investigations, I find in part allegations towards Mr Jones and Ms Cox as either fully or part upheld as detailed within the body of this report. I find all other allegations to be not upheld. You have the right to appeal against my decision. If it is your intention to do so, you must let me know within three working days of receipt of this letter. If you decide to appeal, you will be notified of the time and place of your appeal interview. Recommendation(s)• Mr Jones should undergo refresher training on Royal Mail Royal Mail Dignity and Respect standards. Management to check and confirm his understanding. 629

• Mr Jones to undergo refresher training on the code of business standards, focusing on acceptable behaviour, the use of professional language at all times and the use of social media.

• Ms Cox to undergo refresher training on upholding the business standards.

• VOC management team to ensure a clear and acceptable process for checking PPE footwear is communicated which does not involve physical contact.

[163]We have considered each of the allegations in turn, the relevant evidence and the outcomes and they all appeared to us to be ones which a reasonable employer could reach. We heard that the recommendations were progressed although it was unclear when, or whether, Mr Jones removed the offending post.

[164]In his original draft report, Mr Kendall had also concluded that the Claimant had a “victim mentality” but, perhaps wisely, had removed this from the final report. Nonetheless, it was an opinion he repeated before us.

[165]Whilst we understand what was meant, it is not a phrase that we would use. We are well aware that people who have been subjected to discrimination may well perceive the words and actions of others more negatively and / or through the filter of their past experiences.

[166]That would not, however, account for the 2021 allegations against Ms Cox which either happened or did not. What was evident was that the Claimant had extreme animosity towards her.

[167]It was also clear, however, that any failings on the Claimant’s part were never accepted by him but, rather, always led to allegations, with varying degrees of plausibility, against others, whether that wasa. failing driving assessments or interviews,

b. being too late to request overtime,

c. getting into disputes with colleagues because of his own acts or omissions

d. having tacho infringements

e. being caught speeding or otherwise.

[168]The fact that the majority of the Claimant’s allegations were not upheld was largely inevitable, even if he was right, as there was little or, sometimes, no evidence of support for them from others. That included those who shared his protected characteristics and others the Claimant claimed to expect would corroborate his account..

[169]The Claimant objected to the suggestion that he lacked credibility but, in at least some respects that was valid, such as him blaming his speeding violation on others or likening his treatment to the Horizon scandal. His hints of complaints, rather than contemporaneously pursuing them, whether prior to employment or regarding the Screwfix incidents were reasonably viewed as attempts at controlling the narrative, particularly when coupled with what could be viewed as pre-emptive justifications and/or retaliatory accusations.

[170]We would acknowledge, however, that there are often understandable reasons for employees delaying making complaints of discrimination.

[171]The Claimant appealed to RS on 7 August 2024, considerably outside the prescribed timescale but it was, nonetheless, accepted and progressed. He principally objected to the conclusions, alleging bias and failures in the investigation, whilst also adding his sick pay situation to the complaints.

[172]RS took over management of the Claimant’s sickness absence and no complaints arose in that regard.

[173]Steve Potter, an independent case manager from the Respondent’s south district was appointed to hear the appeal.

[174]There were some delays in initially progressing the appeal largely at the request of the Claimant due to his stated ill health such that eventually he requested that it be progressed without a meeting, albeit submitting some additional points and particulars in writing in November 2024.

[175]The absence of such a meeting inevitably hampered Mr Potter’s ability to put the responses from the initial investigation to the Claimant and directly assess the Claimant’s credibility and motivations.

[176]By this stage, the Claimant was effectively expanding on his original complaints, going as far as alleging a racist conspiracy between the accused managers, Mr Kendall and DD. In the original complaints, other than those against Denise Cox, it did not appear that the Claimant was linking his alleged treatment to any protected characteristics, although neither party were very clear on this.

[177]There were then further delays arising from the Christmas period.

[178]Mr Potter did make enquiries of 3 additional witnesses (HRa, LH and RS) as requested by the Claimant. He received email responses. He also checked a couple of new points with Mr Wade.

[179]There was nothing Mr Potter could do about the customer not having retained the CCTV. He did not speak to PB (although this was subsequently rectified) believing that he would have little to add, as proved to be the case.

[180]Mr Potter’s appeal was largely a review of the previous investigation as opposed to a rehearing, albeit he did not appear to speak to Mr Kendall. He concluded that the decision and recommendations of the original report should stand having gone through, to some extent at least, each of the primary allegations and the Claimant’s grounds of appeal and additional points.

[181]The Claimant felt that the focus was on defending the original investigation and those involved. It was not, however, disputed that Mr Potter had no connection to any of those named.

[182]It was not correct to say that none of the Claimant’s allegations were upheld as those which had been at first instance were retained.

[183]The Claimant felt that his concerns were repeatedly dismissed as unsupported, exaggerated or irrelevant.

[184]A number of the issues were unsupported which is not uncommon when, for example, only 2 people are involved and the alleged harasser denies the allegations. However, even when there were additional witnesses, they largely did not support the Claimant, whether that was regarding his induction, the Screwfix incidents or events in the manager’s office.

[185]More generally, there was no support for allegations of discrimination by any of those who shared the Claimant’s protected characteristics nor, for example, of any allegations being made against Denise Cox in a long career.

[186]Some could be considered to have been exaggerated and / or irrelevant such as regarding blaming others for his speeding conviction or references to an alleged discrimination issue at the depot 25 years prior.

[187]The Claimant also felt that his honesty had been questioned and his evidence reframed as unreliable or manipulative such as the complaint that Mr Wade said something like “they give anyone a job these days” when the Claimant had told him he was transferring to Coventry. This was not raised in the original complaints and was viewed, if said, as a friendly joke and, effectively, reframed by the Claimant.

[188]There is, of course, some distance between allegations not being upheld and findings that they have been dishonestly made. We would acknowledge that, where the evidence of one side is preferred, the other may feel they were viewed as dishonest but that is not always the case.

[189]Mr Potter also found, however, that a number of the allegations had not been made in good faith. Specifically, he said When allegations are not upheld, it needs to be considered whether they have not been made in good faith. My view is that Palwinder has either embellished, manipulated, or perhaps invented some of the allegations made. This has been done to try and portray himself as the victim of race discrimination, which I believe is not the case. I believe the allegations not made in good faith are allegations 1, 4, 5, 8, 9, 10, 11, 13, 14, 15, 16 (except for the issue with the steel toe caps) and 17. I therefore recommend a conduct investigation commences against Palwinder for not making the above allegations in good faith.

[190]The numbered allegations reflected those made against Mr Wade, Mr O’Rourke and Ms Cox.

[191]In the covering letter, Mr Potter also said that he had found that a number of the allegations had not been made in good faith. This was expressed as a finding as opposed to a suspicion or allegation. This was reaffirmed in his witness statement where, in addition he arguably went further saying that he believed that the Claimant had made up fictitious complaints of racism with no foundation.

[192]We would acknowledge that a number of the Claimant’s allegations were weak or unsupported. That said, a majority of them were, at least based in some reality such as those against Ms Cox at the Coventry induction. Whether they were genuinely believed to be discriminatory, given the Claimant’s predisposition to perceiving them as such (as evidenced by his texts) was less clear and we are not satisfied that Mr Potter had enough evidence to reasonably conclude bad faith as he had no more than was available to Mr Kendall and had not even expressly put the suggestion to the Claimant.

[193]We appreciate that the Claimant had declined a meeting and Mr Potter had proposed further investigation but that did not warrant his premature conclusions.

[194]Many of the allegations against management were by virtue of perceived tone but arose out of issues for which the Claimant should have accepted significant, if not principal, responsibility such as being late to request overtime or not doing as Scott had requested on 12 February 2024 at Screwfix. Whether they were genuine perceptions or arose out of attempts by the Claimant to control the narrative, justify his actions or get his retaliation in first was, again, less clear.

[195]The Claimant’s narrative evolved to widen the net regarding which allegations he said were discriminatory and / or related to race. His comparisons to matters such as the Horizon scandal were unwarranted. Again, however, whether these were a combination of past experience, frustration and mental health or were a more concerted effort to attempt to create or bolster his claims was less clear.

[196]The Claimant was off sick for over a year as a result, he said, of the bullying and harassment he had been subjected to. That was not a proposition we accept. The original OH report found that he was fit for work but he was unwilling to accept this. Even when this changed, his issues could not be resolved in a way that would be satisfactory to him and so there appeared to be no realistic prospect of him ever returning, yet he still received 6 months full pay and 6 months half pay. He appeared resistant to all attempts to accommodate or rehabilitate him, other than upholding his grievances.

[197]We heard that a conduct investigation was commenced but that is the subject of subsequent proceedings. Whilst we do not consider that Mr Potter had sufficient evidence to conclude bad faith, let alone dishonesty, we cannot discount either of those possibilities and would acknowledge that he could, reasonably, have further investigated such matters. The issues and the law

[198]The issues, as identified at the preliminary hearing, including each aspect of the relevant legal tests, are to be found in Annex A and are addressed and cross referenced in our conclusions below.

[199]They were unchanged, save in respect of agreeing the cut-off point in relation to the subsequent proceedings and an acknowledgment that, whilst the Claimant’s initial complaint was made on or around 27 February 2024, his detailed complaint, including allegations of discrimination amounting to a protected act, was submitted on 12 March 2024.

[200]The investigation complained about was confirmed to be that conducted by Mr Kendall at first instance.

[201]The Respondent confirmed that they were not arguing, before us at least, that the bullying and harassment complaints did not include protected acts, nor that they were false and done in bad faith (s27(3) Equality Act 2010) so as not to qualify as such.

[202]A summary of the relevant law is included at Annex B and was not in material dispute. Conclusions Time Limits

Conclusions

[203]Any complaints about something that happened prior to 26 January 2024 may not have been brought in time.

[204]We had already determined that the claims of harassment related to sex could not be said to amount to conduct extending over a period beyond the date of the last allegation, 21 April 2022 and that it would not be just and equitable to extend time in relation to those. In any event, the former appeared unlikely and was not progressed by the Claimant at the time despite, on his case, being invited to do so. The latter appeared to be common practice, however unwelcome and could not be said to relate to sex.

[205]In relation to the allegations of race discrimination and harassment there was no evidence of a continuing state of affairs that resulted in those who shared the Claimant’s protected characteristics being treated unfavourably, quite the contrary. The respondent has a very diverse workforce, including several Sikhs who, on the evidence before us, were happy. The Claimant’s witness, Mr Matharu, had been given additional responsibilities as an occasional trainer.

[206]In any event, the last allegations against Denise Cox were from the first week of October 2023. We do not consider that there was any evidence that could link those matters to the Claimant’s subsequent complaints about different drivers and managers. The suggestion that Mr Kendall had referenced Ms Cox and specifics of the Claimant’s driving assessment (from 2021) in February 2024 seemed beyond unlikely.

[207]The idea that, of the dozens of driving assessments carried out each year, the specifics of the Claimant’s failure two and a half years earlier would have been discussed and remembered was implausible. Similarly, if there had been such a discussion, the Claimant would have had good grounds for objecting to Mr Kendall’s involvement in the investigation but, beyond a general concern of the local managers working closely together this was not raised.

[208]The mere existence of a grievance about the induction issues 5 months later and hence already outside the primary time limit, does not establish an ongoing course of conduct.

[209]We saw in a text exchange prior to the induction week that the Claimant was well aware of his right to complain of discrimination, even foreshadowing it. He was a member of the union and had access to resources which would have enabled him to act sooner but he did not.

[210]Extensions of time are the exception rather than the rule. The claims appeared weak and, had the issues been raised sooner, both internally and before the tribunal, the recollections of those present may have been fresher. As a result, the potential prejudice to the Respondent outweighed that to the Claimant, not least as his other claims could proceed in any event.

[211]We also did not consider that the allegation against Mr Wade formed part of conduct extending over a period merely because of a separate alleged incident involving him almost 2 months later. The first involved a late request for overtime, the second his response to the Screwfix incident.

[212]The first occurred in a busy transport office in the run up to Christmas and relied primarily on Mr Wade’s alleged tone which was unlikely to be recalled for long by anyone other than Claimant. For similar reasons, therefore, we consider that allegation was also presented out of time and it was not just and equitable to extend time.

[213]Nonetheless, for completeness, we have considered the evidence that was before us in relation to these matters. Discrimination and Harassment Denise Cox

[214]It was alleged that Ms Cox failed the Claimant on his driving assessment due to his race (4.2.1). This was, perhaps, surprising given the allegation that he had failed his previous assessment because she had made sexual advances towards him.

[215]There was no evidence to support the assertion nor the suggestion that Ms Cox was racist, or failed more people who were not white British. In fact, the evidence, albeit limited, suggested that other racial groups were disproportionately successful and represented.

[216]That is not to say that were was not animosity between the two. There certainly was on the part of the Claimant but this may have arisen solely because Ms Cox had failed him twice.

[217]In any event, the Claimant also failed his interview before RS, an Indian manager. He sought to also blame that on Ms Cox. The assessment sheets for both appeared to be balanced, detailed and fair and no specific challenges were supported.

[218]The Claimant’s subsequent failure to contemporaneously raise any specific issues did not assist him, nor did the unlikely suggestion that RS, who had failed him, would offer him preferential treatment the next time because she supposedly knew he had been discriminated against.

[219]The Claimant was unable to establish facts from which we could conclude that discrimination had occurred. The mere fact that he had previously passed an agency assessment and was subsequently successful in obtaining full time employment did not prove anything other than the Claimant’s perseverance in his desire to work for the Respondent and that the Respondent, as a whole, was not discriminating against Sikhs.

[220]We heard that a significant proportion of candidates would fail, as would be the case with regular driving tests. We saw that, once employed, the Claimant had a significant number of Sikh colleagues.

[221]In relation to the Claimant’s induction, we repeat his predisposition against Ms Cox and his apparent expectation of being discriminated against. This may have influenced his perception and, potentially, that of Mr Matharu. Even he, however, did not consider that race played a part in the events of the first week of October 2023.

[222]It was alleged that Denise Cox asked the Claimant in a derogatory manner if he had an English passport (3.1.1, 4.2.2).

[223]We would accept that questioning someone’s heritage, nationality or passport status has the potential to be racially motivated or perceived as such. However, context is key.

[224]Clearly all inductees would be required to produce their identification documentation. As a result, asking if the Claimant had his passport was an essential part of the induction. If English, as opposed to British was mentioned, that was simply an error. It would, however, be reasonable to reference British or English nationality because the requirements for foreign nationals would be different.

[225]That said, we heard that formal identification checks were not carried out until day 4 and so the Claimant objected to being asked about his passport on day 1. Again, in isolation, we can understand how that could be perceived as treating him differently. However, in the introductions, the other inductees all produced their documents so, even though that was premature, it would be surprising for a manager to not ask the remaining driver, in this case the Claimant, whether he also had his.

[226]In those circumstances, we consider that any inductee, of any race, would have been treated the same as the Claimant and so there was no less favourable treatment.

[227]Any perceived difference in manner was likely to be because the other inductees were all sitting there, keen to please, with their passports out and / or as a result of the history between the Claimant and Ms Cox.

[228]In those circumstances, the request could nor be considered as related to race nor could it reasonably be perceived as violating dignity or creating a hostile work environment.

[229]Matters of her alleged tone (3.1.2, 4.2.3) were not picked up by the others present other than Mr Matharu who did not consider that it related to race.

[230]Again, therefore, to the extent there was a difference of treatment, if any, we consider that it was a difference of perception and / or related to the Claimant’s antipathy towards Ms Cox or her reflection of that. In any event, we agree with Mr Matharu that it was not related to race. Ms Cox had good relationships with a number of Sikh colleagues, including Mr Matharu. The other inductees considered the whole atmosphere to have been friendly and we do not accept that it could reasonably have been considered to amount to harassment.

[231]We would accept, on balance, that Ms Cox may have referred to the Claimant’s photo on his driving licence as “dodgy” (3.1.3, 4.2.4). There was some evidence to suggest she did the same with others. Again, the white inductees perceived nothing untoward, nor any difference in tone.

[232]Mr Matharu did, although we also note that, in the investigation interview, he responded to this allegation before he had even been asked about it, which was surprising.

[233]We can understand how a Sikh gentleman, producing identification documents showing him with a long beard and wearing a turban and being told they look “dodgy” could, in isolation, perceive that as related to race and customary appearance.

[234]However, in our experience, it is not uncommon for anyone’s identification documents to look “dodgy” and be referred to as such in a light hearted manner. This was how it was perceived by the other inductees who recalled it. People’s appearances change over time and there are strict rules about how identification photographs are presented.

[235]The greater the difference in appearance, the more likely the observation. In the Claimant’s case, he no longer had a long beard, nor did he wear a turban both in person and in some of his other photographic identification documents. In those circumstances, it would be right for someone in Ms Cox’s position to double check and raise a query to ensure that they were all of the same person.

[236]Beyond the comment and observation, there was no challenge to the validity of the Claimant’s identification documents.

[237]We do not consider that there was less favourable treatment as a similar comment would have been (and, perhaps, was) made to anyone whose appearance had changed significantly.

[238]The mere existence of a turban in one of the photographs was insufficient to make the comment related to race. as it simply related to observable differences. We do not accept that it was deliberate or ill intended.

[239]If the Claimant genuinely perceived it as violating his dignity or creating a degrading environment we are sure he would have complained sooner as he had said he would to Mr Matharu just a few days earlier. In any event, whilst acknowledging the Claimant’s apparent predisposition to perceiving discrimination by Ms Cox, we do not consider that it was reasonable, in all the circumstances of the induction for the Claimant to consider this and the other events as harassment, whether related to race or otherwise.

[240]The Claimant also suggested that week that Ms Cox repeatedly referred to keeping terrorists out (3.1.4, 4.2.5). This was denied by Ms Cox and unsupported by the others present.

[241]We do not consider that the Claimant has established facts from which he could found his claims in this regard.

[242]In any event, we can imagine that such a phrase could have been legitimately used in reference to the rationale for the need for identification documents and, specifically, in relation to the extra checks and measures required for deliveries to airports. In that context, it would not be memorable.

[243]Finally, in relation to Ms Cox allegedly saying “I don’t want any problems from you” (3.1.5, 4.2.6) this was also denied and unsupported by the other witnesses.

[244]In any event, the context was that all the drivers had been told that they would have to work weekends and the Claimant was, nonetheless, saying that he was looking for midweek shifts which, in our view, would justify the alleged comment in any event.

[245]Moreover, we heard that the Claimant was able to secure a largely midweek shift pattern, having received prior assistance from Mr Matharu in this regard.

[246]As a result, the Claimant has failed to establish the necessary facts but, even if the comment was made, we are satisfied that anyone responding to a manager telling them they would have to work weekends by effectively saying they did not want to, would have received the same response. It was not related to race. Graham Jones (3.1.6, 3.1.7)

[247]There was no dispute that, on 4 February 2024, Mr Jones posted a derogatory statement about the Claimant on facebook beneath a photo of him and a number of Sikh colleagues at a birthday celebration. It referred to him, albeit not by name, as lazy and stuffing his colleagues.

[248]It was also not removed by Mr Jones when he was asked to do so, either at the time nor subsequently.

[249]We would acknowledge that his actions illustrated his ill feeling towards the Claimant for, as he saw it, taking shortcuts at Screwfix and not doing his fair share of the work including “double shunts” in order, it was believed, to get back to the Coventry depot as soon as possible.

[250]Having heard and seen the evidence it did appear that there were grounds for Mr Jones’s discontent. It was common ground that the two drivers had previously had words about similar circumstances.

[251]Moreover, Mr Jones account was supported by NP having similar concerns when on a subsequent shift at Screwfix with the Claimant. To a degree, the fact that the Claimant dropped on a bay prematurely contrary to instructions was also supported by Scott, the Screwfix manager, albeit not specifically on a day Mr Jones was on site.

[252]In addition, the surrounding circumstances showed the Claimant getting back to Coventry before Mr Jones when he was due half an hour later also supporting Mr Jones’ belief. The Claimant’s desire to get back early was also potentially illustrated by his subsequent speeding violation on his last return journey. Whether he had fully completed his duties at Screwfix on that evening and was, therefore, later than he would have been previously was unknown.

[253]None of that excuses Mr Jones taking to social media to voice his concerns, however genuinely felt, by way of personal insults. His dissatisfaction with the Claimant’s practices should have been addressed through the appropriate channels. It would, of course, have been preferable if Mr Jones had removed the post once the issue was raised with him.

[254]The post was outside work but related to work matters. We would accept that the Claimant did not appreciate his alleged work ethic being highlighted on social media and, as such, the post was unwanted.

[255]We do not accept, however, that merely because it was posted beneath a photo of several Sikh gentlemen meant that it was related to race. Any group photo including the Claimant posted by someone connected to Mr Jones at that time would have received the same comment.

[256]The comment itself did not relate to race as it was solely related to Mr Jones’ workplace dispute with the Claimant. It was common ground from all those interviewed, including the Claimant, that Mr Jones was not racist and had no race related intent.

[257]The effect on the Claimant was solely related to his dispute with Mr Jones over working practices.

[258]As a result, the complaints of harassment against Mr Jones must fail. Richard Wade

[259]We would accept that Mr Wade may well have said “no you’re too late” (4.2.7) when the Claimant approached him, late, to request overtime in the run up to the busy Christmas period. We heard that admin had already removed the overtime allocation sheets from the manager’s office.

[260]The words themselves were reasonable ones for Mr Wade to use. There was no support for the allegation that they were shouted but, even if they were, the Claimant approached Mr Wade from behind, he was busy, working a shift he wouldn’t normally be on due to the Christmas period and the Claimant was making a request that he ought to have known he was too late for.

[261]In those circumstances, it would not be unreasonable for a manager to exhibit some frustration. It was also far from clear whether Mr Wade would have even known that it was the Claimant making the request. In any event, another manager was able to offer the Claimant overtime the following day and did so which does not support the notion that all of the managers were racist and / or colluded to make the Claimant’s life difficult.

[262]In the absence of a direct comparator, we were satisfied that anyone approaching Mr Wade that way that day would have received the same response and, as a result, there was no less favourable treatment. There was nothing to suggest race played any part in it. The other Sikh drivers who we heard about appeared more than happy in their work.

[263]Whether this allegation illustrates a heightened sensitivity on the part of the Claimant to anyone ever expressing any degree of frustration with him such that he would perceive it as racist or a more opportunistic approach to potential litigation was less clear.

[264]It was alleged that Mr Wade was aggressive again on 31 January 2024 before giving a friendly welcome to Mr Jones (4.2.8). This allegation was denied by Mr Wade and unsupported by the other managers present.

[265]The Claimant had reported his disagreement with Mr Jones at the client site by phone. Management were apparently intending to speak to Mr Jones on his return. They were understandably surprised that the Claimant made it back first, when he was due half an hour later and then attended the office.

[266]We accept that the Claimant was asked if he had anything to add to his previous report and that he was told that, if he did, he would need to put in a statement. That was entirely appropriate.

[267]We do not accept that the Claimant was endeavouring to add detail to his earlier complaint because there was no evidence of what that additional information was and, in any event, he could have put in a statement but did not, at the time at least.

[268]Given the circumstances, management would have wanted to avoid further confrontation and hence encourage the Claimant to leave so that they could speak to Mr Jones.

[269]There was no evidence to support the suggestion that Mr Jones then received a warm welcome. Firstly, he had been called to the office to give his version of events of an unseemly dispute that had arisen at a client site for which both drivers must accept some responsibility. Secondly, it appeared that it was initially Mr Owen, not Mr Wade, who ushered Mr Jones away to be able to address the incident appropriately.

[270]As a result, we do not accept the Claimant’s version of events, nor his interpretation of them. Anyone, in similar circumstances would have been treated the same. Any frustration shown would have been due to the Claimant’s actions and not his race.

[271]Overall we do not accept that any of the alleged harassment could, in any event, have reasonably been perceived as violating dignity or creating a hostile work environment. Had it been, we are sure there would have been more supporting evidence. Jack O’ Rourke (4.2.9)

[272]It was alleged that, on 12 February 2024, the Claimant again called the office, this time to complain that NP had confronted him at Screwfix but about a similar issue in relation to dropping his trailer. The Claimant characterised this as a threat alleging NP had said something like “that better not be your trailer or there’ll be trouble / problems”. NP’s version was different saying he had simply challenged the Claimant for always jumping the queue. That version appeared to be more closely aligned with the account provided by the Screwfix manager, Scott.

[273]The Claimant called the office to raise the issue with NP and alleged Mr O’ Rourke said “What do you want me to do about it, I’m not there, you’re a man, you sort it out”. Mr O’ Rourke acknowledged that he said it was not appropriate for grown men to be arguing over a trailer at a customer site and that he would speak to them both on their return. In the meantime it appears that the issue was resolved by the local client manager.

[274]We would agree that it was inappropriate for the 2 drivers to be arguing on a customer site. It appears that this was caused by the Claimant’s practices and propensity to complain when challenged. There was no suggestion of racism on the part of NP.

[275]This appeared to be a repeat of the Jones incident a couple of weeks earlier in relation to which the Claimant had still not put in a statement. The Claimant’s claims about the reaction of the independent Screwfix manager were unsupported and, to an extent, disputed by him.

[276]It seemed that the Claimant had the ability to upset his colleagues and then complain when they reacted which must have been frustrating for management and there was little that could be done remotely. Both Mr Jones and NP had said that the Claimant was the aggressor but we would accept that it probably became heated on both sides. The Claimant referenced both Scott, the local manager and PB as witnesses who would support him but, largely, they did not.

[277]That said, there was little Mr O’Rourke could do remotely and he was quite right to encourage the drivers to sort it out. It was, in any event, swiftly resolved.

[278]This type of dispute is far from uncommon in distribution businesses and there was nothing before us to suggest that Mr O’Rourke would have reacted any differently to any other driver having repeated disputes on a customer site, seemingly of his own making. There was nothing to suggest that race played any part and several other Sikh drivers for the Respondent out of the Coventry depot had no similar issues.

[279]Any perceived difference in treatment would have been as a direct result of the Claimant’s own acts, omissions and propensity to complain, justify and / or retaliate. Simon Kendall

[280]The Claimant alleged that Mr Kendall’s investigation wasa. Inadequate

b. Lacking in impartiality

c. Prejudged with an engineered outcome (4.2.10, 5.2.4)

[281]Those were propositions that we did not accept. There were lengthy investigations over 4 months that included speaking to almost all potential witnesses and the Claimant’s allegations were largely unsupported.

[282]HRa, LH and RS were not spoken to as, it was said, they would only have been able to provide hearsay evidence of what the Claimant had allegedly reported to them at the time. That was a reasonable conclusion.

[283]In any event, they were spoken to in the appeal and were unable to confirm the Claimant’s version of events, RS expressly disputing it. Whilst LH recalled something having been raised in April 2022, the email regarding this had already been provided and included no details. Even if there was a conversation with either or both of HRa and LH, they were not followed up in writing as suggested.

[284]It is, perhaps, fair to say, with the benefit of hindsight, that the Screwfix CCTV could have been requested earlier by either side once it was known it may be required. That said, we heard it was only retained for 30 days and the incidents occurred on 31 January and 12 February. As far as this was an allegation about Mr Kendall’s investigation, however, the Claimant only submitted his full complaints on 12 March and had his first interviews in early April so it was already too late. In any event, the CCTV would not include sound and there was no suggestion of a physical altercation.

[285]Mr Kendall did get an emailed statement from Scott at Screwfix. There was no reason to believe that was anything other than independent just because it did not support much of the Claimant’s narrative and his stated expectations.

[286]Having received that, there was little to be gained from speaking to the NW driver, PB, as it was clear that a dispute had arisen over the Claimant’s trailer and that this had resulted in words being exchanged between him and NP which is all PB would have been able to comment on.

[287]We have a similar view in relation to there being no requirement to contact any other Screwfix or Wincanton employees. Employers understandably do not want to create issues for their customers unless necessary. The statement from Scott sufficed.

[288]The Claimant was given the opportunity to make amendments to the notes of his own meetings and did so. We heard that they were duly considered by Mr Kendall. A number were observations as opposed to amendments in any event.

[289]RS, the Indian transport manager had delegated responsibility for the investigation to Mr Kendall and felt that he was sufficiently impartial. The Claimant’s only objection at the time was that he believed Mr Kendall was too close to the other managers. He raised several other objections to his impartiality before us but they were denied and lacked credibility for not having been raised at the time as previously identified.

[290]It was clear that Mr Kendall took each of the allegations to the relevant witnesses and recorded their responses. There was no suggestion that these were materially inaccurate. There is always more that could be done or asked but there are also numerous constraints and competing pressures and what we saw was well within the bands of reasonableness for an employer such as Royal Mail, were that the relevant test.

[291]There was no evidence of collusion between Mr Kendall and any of the other managers, nor between themselves, albeit we would acknowledge none of the allegations against managers were upheld. There were, on occasion, varying personal recollections.

[292]The fact that the Claimant alleged that Mr Kendall had encouraged him to put in a statement about the Screwfix incident sooner, if anything, showed his independence, rather than the contrary.

[293]Mr Kendall reverted to both the Claimant and Ms Cox for additional information as he deemed necessary.

[294]Overall Mr Kendall took each of the allegations and made justifiable findings, including upholding 4 of them in whole or part.

[295]Mr Kendall was entitled to consider that a number of the allegations were not just unsupported or perception based, but some appeared contradicted by the evidence, such as the Screwfix incidents. Others were verging on the fanciful or exaggerated such as the suggestion that others were responsible for the Claimant’s tacho infringements or speeding or seeking to draw parallels with historic racism rumours or the Horizon scandal.

[296]We would acknowledge that it is possible that some witnesses did not feel comfortable speaking up or could not remember incidents that meant a lot to the Claimant but would have been incidental to them. However, there were too many for this to explain away all of the unsupported allegations.

[297]There was, therefore, no evidence that the investigation was prejudged or the outcome engineered. Indeed, having produced his initial draft report, Mr Kendall spent time reviewing his conclusions, upheld a couple of additional allegations in part and moderated some of his conclusions.

[298]It seemed to us that he was being balanced in doing so. That said, it was not unfair to, at least, question the Claimant’s motivations and, indeed, conclude that he appeared to be unable or unwilling to take personal responsibility for any failings on his part, actively seeking out a narrative to absolve himself.

[299]Mr Kendall did not, however, conclude that the allegations were made in bad faith, merely that some were weak, self-exculpatory or exaggerated.

[300]Overall, there was no direct comparator and no evidence to suggest that the investigation carried out by Mr Kendall would have been any different had the Claimant been white, or indeed, had the complaint not included allegations of discrimination.

[301]As a result, the allegations of direct race discrimination or victimisation in relation to the investigation were not made out. The issue is that the Claimant was, and remains, unable to accept the outcome.

[302]On the evidence before us, from both the Claimant and OH, there appeared to be, therefore, no realistic prospect of his health improving to a point that he would be able to return to work as there was no realistic prospect of the majority of his complaints ever being upheld. It was clearly stated that unless his complaints were resolved in a manner satisfactory to him there would be no return to work. We make this observation in the hope that it assists the parties to resolve not just remedy in relation to this case but also, potentially, the subsequent proceedings, whatever they may contain. Victimisation

[303]It was not in dispute that the Claimant’s bullying and harassment statement submitted on 12 March 2024, albeit based on his earlier report, included protected acts by virtue, at least, of the allegations against Denise Cox. Both parties were unclear, at that stage, whether any of the other complaints within it were also said to be under the Equality Act 2010.

[304]It was also not in dispute that the Claimant’s appeal included protected acts as the Claimant spread the discrimination net wider.

[305]In relation to the complaints about DD’s handling of the sickness review meetings (5.2) we do not consider that asking the claimant 4 times when he was going to get better was necessarily inappropriate.

[306]It would have been had, for example, the Claimant simply been badgered and disbelieved, notwithstanding that the question itself as to prognosis was reasonable. In considering the notes and the Claimant’s oral evidence, however, it was clear that the question was put in various ways in the context of an OH report that suggested he was fit for work and in relation to what the Respondent could do to help. We appreciate, however, that those questions are often difficult to answer, particularly in the context of mental health.

[307]In that context, it would be reasonable to reference the Respondent’s sick pay policy and the fact that refusing to work when able would potentially be grounds for stopping it. The Claimant’s own notes said it was a warning rather than a threat and, in those circumstances, making an employee aware of that risk would be good practice.

[308]It appears that there was a genuine misunderstanding (possibly on both sides) regarding the Claimant contacting OH which he should do (and did) if he wanted to challenge a report, whereas it was the responsibility of the Respondent in relation to any updates.

[309]The sickness review could not completely ignore the Claimant’s bullying and harassment statement given that it was the Claimant’s case that he wouldn’t be able to return to work unless and until that was resolved.

[310]That said, any reference to the merits, or otherwise, of the complaints would be a step too far and, in the absence of evidence to the contrary, we accept that DD referred to the statement as harsh.

[311]We accept that this was inappropriate and amounted to a detriment and the Claimant has established facts from which we could conclude victimisation had occurred. In the absence of any evidence to the contrary, the Respondent was unable to separate the causation from the original protected elements of the grievance.

[312]As a result 5.2.1.2 is upheld but the other complaints about the April meeting are not.

[313]Turning to the May sickness review meeting (5.2.2), it was not unreasonable to hold this in the main building given that it was known that Denise Cox would not be present and that was the reason given by the Claimant for wanting it elsewhere.

[314]When asked how he was feeling, the Claimant responded “so-so” which was, understandably, not considered to be a sufficient answer, notwithstanding how difficult such questions can be for those struggling with their mental health. However, we would accept, in the absence of evidence to the contrary, that DD may have expressed frustration in his tone but, without more, there was no evidence to link that to the Claimant’s protected acts and specifically his complaints about Denise Cox.

[315]We have already addressed the apparent confusion that arose in relation to when and whether the Claimant was expected to contact OH.

[316]What was clear was that he had done so and they had confirmed their original advice that they considered that he was fit for work notwithstanding that it was still important for his mental health for the Respondent to attempt to resolve his grievances.

[317]In those circumstances, with the Respondent believing the Claimant was unwilling to contemplate returning to work, his sick pay was potentially in jeopardy. The Respondent’s policy provided that the following were conditions of entitlement The business must be satisfied that the absence is necessary and is due to a genuine illness; The business must be satisfied that the absence is not due to, or aggravated by, causes within the employee’s control, or that they have neglected instructions given by a general practitioner (GP) or medical specialist;

[318]We would recognise the frustration often felt by employers when dealing with unchallenged and self-reported symptoms, particularly those of apparent efficacy. That said, it seems to us that, if the Respondent was intending to rely on one of those provisions, they ideally should havea. explained this clearly

b. requested an updated OH report as the Claimant was suggesting that his condition had worsened

c. sought specialist advice on his ability to return to alternative or adjusted roles whilst the investigation was ongoing and, potentially, thereafter

d. clearly explored with both the Claimant and OH either or both of the above sick pay conditions if they were potentially to be relied upon.

[319]In failing to do so and ending the meeting abruptly with the Claimant uncertain whether HR would cancel his sick pay or what he could do about it, he was subjected to a further detriment as his stated inability to return to work was directly tied to the resolution of his grievances, including the protected acts. That link was, in any event, made at the previous meeting by DD referring to the grievance as “harsh” and so the Claimant had established facts from which we could conclude victimisation and the Respondent was in no position to prove otherwise.

[320]Similar reasoning flowed through to the stopping of the Claimant’s sick pay on 3 June 2024 (5.2.3) where, in the absence an updated OH report, the Claimant has established facts from which we could conclude that his protected acts played a part in the decision to withhold his pay and hence his victimisation claim was established. The Respondent could not even tell us who made that determination but, whether it was DD as per the letter, or otherwise, the Respondent was unable to show that the protected acts played no part whatsoever in the decision. Appeal

[321]For the reasons already given, it was not unreasonable for Mr Potter to reject the Claimant’s appeal (5.2.5). He was unconnected with anyone involved at first instance and carried out several of the additional investigations requested by the Claimant. Having done so, he still reached the same conclusions as Mr Kendall and, on the evidence before us, those were difficult to avoid.

[322]However, the mere fact that allegations are unsupported does not necessarily make them untrue. They may, for example, be unproven and / or based on sincere, albeit inaccurate, perceptions. The law is intended to provide protection to those who raise genuine concerns under the Equality Act 2010. Simply being wrong does not remove that protection.

[323]Nonetheless, Mr Potter went further than Mr Kendall concluding that 12 of the original 17 allegations were not made in good faith. That was not something flagged as a possibility in an appeal under the Respondent’s policy and appeared premature prior to the outcome of the recommended conduct investigation.

[324]Specifically:a. There was insufficient evidence to uphold the allegations against Ms Cox in the driving assessments as it was one person’s word against another’s. Given her clean record and the Claimant’s failure to pursue complaints at the time, the Respondent was entitled to prefer her evidence. That raised the spectre that the allegations may not have been genuine but was not sufficient, in our view, for Mr Potter to reach that conclusion not least because there was at least an evidenced possibility that the Claimant may have raised something with HRa at the time.

b. With regard to the Claimant’s induction, there was little support for his interpretation of events and none in regard to perceived racism. The events themselves were supported in part but whether the Claimant genuinely perceived discrimination, was predisposed to doing so or was being opportunistic, or even vindictive, was far less clear.

c. The Screwfix incidents were not put as allegations of discrimination but whether the Claimant genuinely believed he was doing nothing wrong or was engaging in obscurantism or a form of pre-emptive misdirection was less clear. Both he and the other drivers, however, share responsibility for how this played out on a client site.

d. There was no support for the allegations against the Coventry depot managers but it was at least possible that they were protecting each other. In addition, the allegations were principally based on alleged tone and perception which would not inevitably suggest malfeasance, particularly as the Claimant was, for whatever reason, predisposed to such an interpretation.

[325]Moreover, all that had changed between the original complaints and the appeal was that the alleged protected acts had, seemingly, been widened beyond those purely against Ms Cox and new allegations of discrimination made in relation to the handling of the Claimant’s sickness absence and pay. The Respondent was unable to satisfy us that the discrimination allegations now within the majority of the complaints played no significant part in the premature conclusion of bad faith.

[326]In stating that, on insufficient evidence, the Claimant was subjected to a detriment. At least some, if not the majority, of those allegations were, or had become, ones of discrimination and so the Claimant had established facts from which we could conclude victimisation. The fact that the Claimant had identified more of his allegations as being ones of discrimination only confirms that view.

[327]Mr Potter was unable to demonstrate that the protected acts played no part whatsoever in his decision making. Indeed, he expressly stated that he believed that the Claimant was trying to portray himself as a victim of race discrimination.

[328]He may have been right but it seemed to us at least equally likely that the Claimant was unable or unwilling to accept that he had any responsibility for the events about which he complained. As they mounted up, culminating in an expected speeding penalty, it would have been surprising if he hadn’t felt a form of cognitive dissonance, potentially adversely affecting his mental health. Contrary to the Claimant’s stated belief, however, responsibility for any such adverse effect did not lie with the Respondent.

[329]He failed to formally raise any issues until he had placed himself on certified sick leave and then, under that additional protection, effectively demanded resolution on his terms in order to secure his return to work. That was understandably viewed as unsatisfactory but does not inevitably mean that the complaints were not based on genuinely believed perceptions, however misconstrued.

[330]This put the respondent into a bind. However, concluding bad faith without even asking the Claimant why he had made the allegations that he did, nor investigating the same or adducing evidence in support was, at best, premature. We would acknowledge that this was made more difficult by the Claimant declining any meetings with Mr Potter.

[331]It would be wrong for us to go further given the subsequent conduct investigation and proceedings relating thereto. There were grounds for exploring the Claimant’s beliefs and motivations further, ideally within the appeal. Whether a full blown conduct investigation was warranted or a further act of victimisation is best left to the next tribunal who will be in possession of all relevant facts, including this judgment.

[332]That is, of course, if the parties are unable to reach a resolution encompassing remedy in this case and, potentially, those subsequent proceedings whatever they may contain.

[333]In that regard, we repeat our earlier obiter observation that, on the evidence before us, there appeared to be no reasonable prospect of the Claimant’s complaints being upheld to his satisfaction and no reasonable prospect of his health recovering and hence him returning to work without such an outcome. That is not intended to prejudge matters on which there may be further evidence, merely to assist the parties in the context of a realistic ballpark for settlement on what was available before us, in accordance with our duty to promote dispute resolution.

[334]Accordingly the parties have 28 days to resolve remedy failing which they should write in requesting a remedy hearing with any proposed directions relating thereto. Annex A FINAL LIST OF ISSUES The Issues The issues the Tribunal will decide are set out below.

The Issues

[1]Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 26 January 2024 may not have been brought in time.

1.2 Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

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

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

1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?

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

[2]Harassment related to sex (Equality Act 2010 section 26)2.1 Did the respondent do the following things: PHCM Order 8 of 12 May 2025

2.1.1 Denise Cox, on 13 August 2021, being sexually suggestive towards the Claimant and saying to him that “I know men like big tits”;

2.1.2 Denise Cox, on 13 August 2021, being sexually suggestive towards the Claimant and saying to him that “you got drive a truck smooth and steady like having sex with a woman”;

2.1.3 Denise Cox, on 21 April 2022, during a driving assessment, stamping on the Claimant’s toe caps and shouting at him?

2.2 If so, was that unwanted conduct?

2.3 Did it relate to sex?

2.4 Alternatively was it of a sexual nature?

2.5 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

2.6 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[3]Harassment related to race (Equality Act 2010 section 26)3.1 Did the respondent do the following things:3.1.1 Denise Cox, after the Claimant’s transfer in October 2023, asking the Claimant in a derogatory manner if he had English passport;

3.1.2 Denise Cox, after the Claimant’s transfer in October 2023, being rude and speaking to the Claimant in a degrading loud tone, whereas she spoke to the Caucasian drivers in a polite manner;

3.1.3 Denise Cox, after the Claimant’s transfer in October 2023, calling the Claimant’s driving licence picture “dodgy” when it showed the Claimant wearing a Sikh turban;

3.1.4 Denise Cox, after the Claimant’s transfer in October 2023, repeatedly referring to needing to keep the terrorist out;

3.1.5 Denise Cox, after the Claimant’s transfer in October 2023, shouting at that “I don’t want any problems from you” whilst being nice to other colleagues;

3.1.6 Graham Jones, on 4 February 2024, posting a derogatory remark about the Claimant on a Facebook picture of the Claimant at a Sikh religious gathering;

3.1.7 Graham Jones refusing to delete the above post and / or not doing so after being requested by the union?

3.2 If so, was that unwanted conduct?

3.3 Did it relate to race?

3.4 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

3.5 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[4]Direct race discrimination (Equality Act 2010 section 13)4.1 The claimant identified as a Sikh Punjabi Indian born in England.

4.2 Did the respondent treat the claimant in the ways set out below:4.2.1 Denise Cox, on 21 April 2022, failing the Claimant on a driving assessment;

4.2.2 Denise Cox, after the Claimant’s transfer in October 2023, asking the Claimant in a derogatory manner if he had English passport;

4.2.3 Denise Cox, after the Claimant’s transfer in October 2023, being rude and speaking to the Claimant in a degrading loud tone, whereas she spoke to the Caucasian drivers in a polite manner;

4.2.4 Denise Cox, after the Claimant’s transfer in October 2023, calling the Claimant’s driving licence picture “dodgy” when it showed the Claimant wearing a Sikh turban;

4.2.5 Denise Cox, after the Claimant’s transfer in October 2023, repeatedly referring to needing to keep terrorist out;

4.2.6 Denise Cox, after the Claimant’s transfer in October 2023, shouting at that “I don’t want any problems from you” whilst being nice to other colleagues;

4.2.7 Richard Wade, on 6 December 2023, when the Claimant asked as to weekend duty, shouting at the Claimant in an aggressive tone, “no, you’re too late” ;

4.2.8 Richard Wade, on 31 January 2024, turning on the Claimant in an aggressive manner, when the Claimant was trying to explain an issue, and saying “why you still here”, in contrast to the warm friendly welcome given to Graham Jones immediately afterwards;

4.2.9 Jack O’Rourke, on 12 February 2024, when the Claimant had called the office regarding having been threatened by another driver, saying to the Claimant “what do you want me to do about it, I’m not there, you’re a man, you sort it out”;

4.2.10 undertaking an investigation which was:4.2.10.1 inadequate;

4.2.10.2 lacking in impartiality;

4.2.10.3 prejudged and engineered the outcome?

4.3 Did the respondent’s treatment of the claimant, as set out above, amount to a detriment?

4.4 Was that less favourable treatment? The Tribunal will decide whether the Claimant was treated worse than someone else (an actual comparator) was treated. There must be no material difference between the circumstances of the comparator and the circumstances of the Claimant. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether s/he was treated worse than someone else would have been treated (a hypothetical comparator). 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.

4.5 If so, was it because of race?

[5]Victimisation (Equality Act 2010 section 27)5.1 Did the claimant do a protected act as follows:5.1.1 making a complaint on 27 February 2024 as to bullying and harassment;

5.1.2 by appealing the outcome of the investigation?

5.2 Did the respondent treat the claimant in the way set out below:5.2.1 Don Dickson, on 29 April 2024, in a sickness review meeting,5.2.1.1 asking the Claimant four times when he was going to get better even though the Claimant had told him that he was suffering from anxiety, sleep problems and fatigue which had affected his mental health;

5.2.1.2 telling the Claimant that his bullying and harassment statement was harsh;

5.2.1.3 threatening the Claimant that his sick pay may be stopped;

5.2.1.4 telling the Claimant that he should be contacting occupational health with updates when the Claimant was not aware of this.

5.2.2 Don Dickson, on 20 May 2024, in a sickness review meeting,5.2.2.1 failing to comply with an agreement that the meeting away from the main building;

5.2.2.2 raising his voice and saying, “that’s not enough”, when the Claimant was trying to tell him how he was feeling;

5.2.2.3 asking the Claimant if he had been in touch with occupational health when the Claimant had been told that it was the manager’s responsibility to make a referral;

5.2.2.4 ending the meeting abruptly and stating that he would contact HR who may cancel the Claimant sick pay;

5.2.3 on 3 June 2024, cancelling the Claimant sick pay;

5.2.4 undertaking an investigation into the complaint of the Claimant which was:5.2.4.1 inadequate;

5.2.4.2 lacking in impartiality;

5.2.4.3 prejudged and engineered the outcome

5.2.5 rejecting the Claimant’s appeal on 25 January 2025 and stating that his allegations had not been made in good faith so that an investigation as to his conduct was being recommended, was progressed by letter dated 10 April 2025 and resulted in disciplinary action being taken against the claimant?

5.3 By doing so, did it subject the claimant to detriment?

5.4 If so, was it because the claimant did a protected act?

5.5 Was it because the respondent believed the claimant had done, or might do, a protected act?

[6]Remedy for discrimination or victimisation6.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?

6.2 What financial losses has the discrimination caused the claimant?

6.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

6.4 If not, for what period of loss should the claimant be compensated?

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

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

6.7 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

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

6.9 Did the respondent or the claimant unreasonably fail to comply with it?

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

6.11 By what proportion, up to 25%?

6.12 Should interest be awarded? How much? The Law Overview of relevant law – Equality Act 2010 (EqA)

The Law

[1]This was not case where it appeared that the law was especially complex as it turned almost entirely on the facts. However, the following is an overview of the relevant principles that were not in material dispute. Time Limits

[2]A discrimination claim must normally be submitted to an employment tribunal before the end of "the period of three months starting with the date of the act to which the complaint relates" (section 123(1), EqA 2010). Acts occurring outside the time limit may still form the basis of the claim if they are part of "conduct extending over a period". In such cases time starts running at the end of that period (section 123(3)).

[3]Time in any discrimination case can be extended by such a period as the tribunal thinks just and equitable (section 123(1)(b) and (2)(b)). Direct Discrimination (s13)

[4]Direct discrimination is defined by s.13(1) EqA which, in short, provides that a person discriminates against another if, because of a protected characteristic, they treat them less favourably than others.

[5]The causation required to be proved under s.13 is that of a substantial and effective cause, a substantial reason, an important factor. It has been held that the crucial question, in every case, is ‘why the complainant received less favourable treatment… Was it on grounds of [e.g race]? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job?’

[6]There is no need to establish a discriminatory motive and the tribunal must scrutinise the conscious and unconscious mental processes of the respondents decision-maker to determine whether (e.g) race was an operative cause of the treatment in question.

[7]S.23(1) EqA provides that on a comparison for the purpose of establishing direct discrimination there must be ‘no material difference between the circumstances relating to each case’ so a comparator must be in the same position in all material respects as the complainant save only that he, or she, is not a member of the protected class. Burden of Proof

[8]The burden of proof under the EqA is contained in s.136 and provides that if there are facts from which we could decide, in the absence of any other explanation, that a person contravened the provision concerned, we must hold that it did unless it is in no sense whatsoever tainted by discrimination. However, a mere difference of treatment is not enough. Harassment

[9]The EqA 2010 deals with harassment at s.26 and the relevant provisions are set out within the list of issues.

[10]We must consider what happened and whether it was, in fact, unwanted conduct. The act complained of does not have to have been because of the protected characteristic to be related to it.

[11]In assessing whether such conduct did, indeed, violate dignity or create an offensive work environment, we must consider the Claimant’s perception, whether that was genuine and also whether it was reasonable in all the circumstances.

[12]Banter can still be harassment. Participation doesn’t equal consent. There can be pressure to conform or masking and care needs to be taken in determining whether conduct is mutual and consensual. Victimisation

[13]Victimisation occurs where a person subjects another to a detriment because they have done a protected act under the Equality Act 2010 section 27, although false allegations made in bad faith are not protected.

[14]Before reaching a conclusion of bad faith the employer should generally have asked the employee why they had raised the allegations, have investigated and have evidence on which to found it (Gillingham Football Club Limited v McCammon EAT 0560/12).

[15]The protected acts need to be clearly identified and operative.

[16]The motive need not be conscious and the protected act need only have a significant influence on the detriment or dismissal as opposed to being the primary or sole cause.