Mr E C Akpovwa v Muller UK and Ireland LLP: 1308582/2023

EMPLOYMENT TRIBUNALS

Case No 1308582/2023

Between

Mr E C AkpovwaClaimant

Muller UK and Ireland LLPRespondent

Before

Employment Judge Flood

Date 18 February 2026

JUDGMENT

[1]The complaints of direct race discrimination; race related harassment and victimisation (contrary to ss 13, 26 and 27 of the Equality Act 2010 (EqA)) and of protected disclosure detriment (contrary to section 48 of the Employment Rights Act 1996 (‘ERA’) are not well founded and are dismissed.

REASONS

[1]By a claim form presented on 6 December 2023 (having completed early conciliation between 29 August and 10 October 2023), the claimant brought complaints of race discrimination against the respondent, identifying allegations of ‘direct race discrimination’, ’harassment’, ‘bullying’ and ‘victimisation’. The attached lengthy particulars of claim set out a narrative of events in summary alleging that the claimant had been excessively criticised, investigated and reprimanded; that he was monitored by colleagues and deliberately given defective vehicles to drive. He alleged that grievances were not considered and he was ultimately dismissed because of raising complaints and raising health and safety issues. He stated that claims of direct race discrimination, race related harassment and victimisation based on whistleblowing were pursued. The respondent defended the claim denying discrimination and alleging that the claimant had failed his extended probationary period. It further alleged that a number of the allegations were out of time.

[2]There was a preliminary hearing for case management before Employment Judge Smart on 16 April 2024 where particulars of the complaints the claimant wished to bring were discussed and clarified. The claimant was ordered to provide further particulars of the acts he wished to rely upon in respect of the various complaints. These were provided via an amended particulars of claim on 8 May 2024. The final list of issues agreed between the parties (“List of Issues”) is set out below and referred to throughout the hearing. The final hearing that had been listed for February 2025 was postponed. It was ultimately relisted for November 2025.

[3]The hearing came before the above Tribunal. Its original listing of 8 days had been reduced to 6 days by a decision of Regional Employment Judge Jones. As it happened, it was not possible to complete the hearing in that listing. The Tribunal required the first day of the hearing to conduct its reading rather than the suggested 3 hours. The cross examination of the claimant then took the entirety of days 2 and 3. In addition, on day 4 of the hearing, Mr Ntui was not able to start his cross examination of the respondent’s witnesses as he had left his laptop and relevant documents in London. This had been something that had been intimated was a problem on day 3 of the hearing (when it was anticipated that cross examination would start). It was unclear why this issue had not been addressed and resolved over the weekend. The hearing was temporarily adjourned until 12:00 pm and then again until 1:00 pm to allow Mr Ntui’s colleague to bring his laptop to the hearing.

[4]The evidence was completed by the end of day 5 of the hearing. It was agreed that written submissions would be exchanged by 10:00 the following morning with oral submissions to begin at 11:30 am. Ms Duane sent her submissions to the Tribunal and the claimant at 10:00 am. Mr Ntui wrote to the Tribunal at 10:56 am stating that he was running late and that he would be able to file submissions by 11:30 am and requested that the hearing start time be moved to 12:00 pm. This was permitted by the Tribunal. Mr Ntui sent his written submissions at 11:43 am. There was a strong objection to this from Ms Duane, and she suggested that the submissions had also attempted to admit fresh evidence. The parties then gave oral submissions and the hearing finished around lunchtime on day 6. The Tribunal used the rest of that day to start making its decision and met again on 13 February 2026 (which was the first available date the Tribunal could meet) to complete its deliberations. The Tribunal sends its apologies to the parties for the delay in sending this written judgment and reasons which has been completed as promptly as possible after deliberations were completed. Documents before the Tribunal

[5]An agreed bundle of documents running to 908 pages was produced for the hearing and where page numbers are referred to below, these are references to page numbers in the bundle. At the beginning of the hearing the claimant made an application to add additional documents running to 30 pages. The respondent objected to this application. Ultimately the documents were admitted on the agreed basis that any objections to particular documents could be discussed if and when that document was brought into evidence.

[6]We also had a Cast List and a Final Chronology (together with a separate chronology produced by each party). The claimant submitted a skeleton argument, and the respondent produced an opening note which were fully considered.

The Issues

[7]The issues to be determined by the Tribunal were as follows: Jurisdiction

The Issues

[1]Given the date the claim form was presented and the dates of early conciliation, any complaint about any act or omission which took place more than three months before that date (allowing for any extension under the early conciliation provisions) is potentially out of time, so that the tribunal may not have jurisdiction.

[2]Were the Claimant’s discrimination complaints made within the time limit in s.123 of the Equality Act 2020 (“EA”)? The Tribunal will decide:a. Whether the alleged discriminatory acts occurred on or after 30 May 2023?

b. If not, was there a continuing course of conduct?

c. If so, was the claim made to the Tribunal within three months (allowing for early conciliation) of the end of that period?

d. If not, should the Tribunal grant a just and equitable extension of time under the Equality Act 2010? The Tribunal will decide: i. Why were the complaints not made to the Tribunal in time? ii. In any event, is it just and equitable in all the circumstances to extend?

[3]Were the Claimant’s detriment complaints made within the time limit in section 23 of the Employment Rights Act 1996? The Tribunal will decide:a. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the effective date of act complained of?

b. If not, was there a series of similar acts or failures and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one?

c. If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?

d. If not, should the Tribunal grant a reasonably practicable extension of time under the Employment Rights Act 1996? Direct race discrimination

[4]The Claimant identifies himself as a male of colour.

[5]Who is the Claimant's comparator (actual or hypothetical), whose circumstances must be materially the same as the Claimant's? The comparators relied on are the Claimant’s HGV1 colleague drivers by the name of Piorat (Peter), Lavante, Shane and an elderly driver that the Claimant could not recall the name. The Comparators all have white skin.

[6]Did the Respondent treat the Claimant less favourably than the comparator would have been treated? The Claimant relies on the following acts:a. June 2023 Allocation of to the Claimant truck (FXA) that does not exist on site;

b. June 2023 allocation of a new truck to the Claimant (DUV);

c. Replacement of the truck allocated to the Claimant with a dilapidated truck (EJZ);

d. 02 July 2023 Allocation of the same dilapidated truck (EJZ) with no headlights which the Claimant defected;

e. 09 July 2023 Allocation of the same defective Truck (EJZ) to the Claimant;

f. The Claimant always have to complain before he will be given the right equipment to perform his duties;

g. 10th July 2023 The Claimant felt dejected and humiliated when the keys to the same non-compliant truck were thrown at him after refusing to drive on it because of the defects;

h. on 9 July 2023 while The Claimant was having a panic attack whilst he was being harassed by Andy and Alex, he ran to the manager’s office for help but was pushed out by his assailants;

i. Simple errors like omitting to write a colleague’s name whilst filling out the paperwork would lead to investigation and retraining. (for date refer to Muller);

j. The Claimant’s dismissal on 27 July 2023 was also discriminatory. Terminating the Claimant’s employment for false reasons. The Respondent say the reason for termination was due to poor performance. Racial harassment.

[7]Did the Respondent harass the Claimant by doing the following things?a. On or about 24-25 October 2022, the Claimant was accused of working 13 days in a row;

b. Falsely accusing and investigating the Claimant for damaged mudguards which were caused by possible wear and tear (for date refer to Muller);

c. In or around January 2023, shouted at by R Owen for reversing on-site with the reverse alarm on for less than a second. (for date refer to Muller);

d. The Claimant was investigated and retrained for simply imputing a wrong mode on the tachograph which other drivers do and get away as mere error. (date refer to Muller);

e. On 30th January 2023, he was pulled into the office as he was about to start his job by R Owen and asked straight away if he wanted someone to represent him.

f. On 11th July 2023 incident of harassment and bullying by A Evans and A Jones when the Claimant was confined in a room against his will;

g. In or around January 2023, shouting at the Claimant while he was jet washing his truck;

h. Some colleagues were instructed to be monitoring the Claimant, hanging around his truck when on break and always looking for the slightest opportunity to go and make up stories. Hence, more investigations and retraining will follow suit; and

i. Insist the Claimant use a defective truck to perform his contracted duties.

[8]If so, did this amount to unwanted conduct?

[9]If so, was the unwanted conduct related to the Claimant’s protected characteristic (race)?

[10]If so, did the conduct have the purpose or effect of violating C’s dignity or creating an intimidating, degrading, humiliating or offensive environment for C?

[11]If so, was it reasonable for such conduct to have that effect on C taking into account his perception and all the circumstances of the case?

[12]The Claimant believes his race was the palpable reason since no other white colleague suffered such humiliating, intimidating, degrading and/or offensive conduct on the part of the Respondent. Victimisation (s.27 Equality Act 2010).

[13]Did the Claimant do a protected Act? The Claimant relies on the following as being protected Acts:a. raising a grievance to his line manager on 31 January 2023; and

b. raising a grievance to HR on or around 12 July 2023.

[14]If so, did the Respondent subject the Claimant to a detriment? The acts relied on by the Claimant are:a. Regular bullying, investigation and retraining of the Claimant, namely:

b. The incidents of investigation set out under the Direct Discrimination claim above;

c. In or around December 2022, subjecting the Claimant to unnecessary re-training after he input a wrong mode on the tachograph.

d. Being regularly allocated poor equipment to perform his contract.

e. Termination of his employment on 27 July 2023.

f. Arrears of pay.

[15]If so, was the detrimental treatment because of the alleged protected act(s)? Detriment as a result of Protected Disclosures

[16]Did the claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide:a. What did the claimant say or write? When? To whom? The Claimant says he made disclosures on these occasions: i. raising a grievance to his line manager on 31 January 2023; and ii. raising a grievance to HR on or around 12 July 2023.

b. Were these disclosures of ‘information’?

c. Did the Claimant believe the disclosure of information was made in the public interest?

d. Was that belief reasonable?

e. Did the Claimant believe it tended to show that: i. a criminal offence had been, was being or was likely to be committed; ii. a person had failed, was failing or was likely to fail to comply with any legal obligation; iii. that the health or safety of any individual has been, is being or is likely to be endangered; or iv. that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

f. Was that belief reasonable?

[17]If the Claimant did make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996, was the Claimant subjected to detriment as a result? The Claimant relies on the same detriments at paragraphs

Remedy

[18]What financial losses have the discrimination and/or whistleblowing detriment caused the Claimant?

[19]Has the Claimant mitigated his loss? If not, for what period of loss should the Claimant be compensated?

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

[21]Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? If so, did either party unreasonably fail to comply with it? If so, is it just and equitable to increase or decrease any award payable to the Claimant and if so, by what proportion up to 25%?

[22]What injury to feelings has the discrimination and/or whistleblowing detriment caused the Claimant and how much compensation should be awarded for that, taking account of the need to avoid double recovery?

[23]Was any protected disclosure made in good faith? If not, is it just and equitable to reduce the Claimant’s compensation? By what proportion, up to 25%?

[24]Did the Claimant cause or contribute to the detrimental treatment by their own actions and if so would it be just and equitable to reduce the Claimant’s compensation? By what proportion?

[25]Should interest be awarded? If so, how much? Findings of Fact 8. In the judgment, the Tribunal has used initials to identify the people listed below rather than their full names in the interests of brevity. Other terms used may also be defined in a similar manner through the judgment. Witnesses and other individuals 9. The following people attended to give evidence on behalf of the claimant: 9.1.1 The Claimant (‘C’) 10. The following people attended to give evidence on behalf of the respondent:10.1.1 Ms C Bennion (‘CB’), Nights Shift Lead and C’s Line Manager;

10.1.2 Mr R Owen (‘RO’), Nights Shift Lead;

10.1.3 Mr A Jones (‘AJ’), Driver Trainer; and

10.1.4 Ms E Thompson (‘ET’), Employee Relations Adviser. 11. The following individuals were referred to during the evidence:

11.1.1 A Murray (‘AM’), Lead Compliance and Driver Trainer;

11.1.2 B Cowdell (‘BC’), Operations Manager (Market Drayton - until Spring 2023);

11.1.3 P Bailey (‘PB’), Operations Manager (Market Drayton - from 1 June 2023 - 28 September 2023);

11.1.4 G Langford (‘GL’), Driver Trainer;

11.1.5 A Hill (‘AH’), Operations Manager (Wolverhampton);

11.1.6 C Johnson (‘CJ’), HR Manager (until 2 April 2023);

11.1.7 J Overton (‘JO’), HR Manager (from 3 April 2023);

11.1.8 H Roberts (‘HR), Employee Relations Adviser;

11.1.9 L Roberts (‘LR), Occupational Health Adviser;

11.1.10 J Platt (‘JP’), Days Shift Lead;

11.1.11 P Bennion (‘PB’), Driver Trainer;

11.1.12 J Carter (‘JC’), Traffic Coordinator Nights;

11.1.13 M Murray (‘MM’), Union Representative;

11.1.14 P Whitehurst (‘PW’), Site Logistics Manager (Droitwich – Market Drayton – Wolverhampton), Grievance and Appeal manager;

11.1.15 J Lowe (‘JL’), Nights Coordinator;

11.1.16 C Steele (‘CS’), Transport Recruitment Consultant (Re Recruitment);

11.1.17 S Jones (‘SJ’), Nights Coordinator;

11.1.18 M Yorke (‘MY’), Nights Coordinator;

11.1.19 A Chaggar (‘AC’), Hire to Retire HR Advisor; and

11.1.20 V Tocu (‘VT’), Hire to Retire HR Advisor. Credibility 12. In relation to credibility, in general we found that R’s witnesses were straightforward and had a good recall of the facts. Much of their evidence was backed up with contemporaneous e mails and, their evidence was internally consistent and consistent with other witnesses. C’s evidence lacked detail and was based in many cases on bare assertions, with there being some confusion between various events and dates. We accepted R’s submissions that some of his evidence made outlandish allegations including that blackmail had taken place and there was a plan to set him up. The language used was hyperbolic and some of the events were exaggerated in the account that was given. In particular relating to the meetings on 11 July 2023 where C suggested he had been held against his will in a meeting room and that he feared for his life. In addition we did not accept the evidence given by C in respect of incidents where he alleged various individuals had ‘screamed’ at him. This led us at times to doubt the reliability of some evidence given by C. 13. To determine the issues, it was not necessary to make findings on all the matters heard in evidence. We have made findings though not only on allegations made as specific discrimination complaints but on other relevant matters raised as background. These findings may have been relevant to drawing inferences and conclusions. We made the following findings of fact on the balance of probability:

13.1 R is a dairy business with sites across the UK and is made up of two distinct business units - Müller Yogurts & Desserts and Müller Milk & Ingredients (MMI). MMI has a separate division for its distribution arm which is known as Müller Milk & Ingredients Distribution (MMID). R has a ﬂeet of around 28 farm collection tankers which go out to R’s network of farms to collect milk up to 3 times a shift, every day of the year.

13.2 C is man of colour, who was employed by R as a heavy goods vehicle (‘HGV’) C+E licensed Driver for MMID at its Market Drayton Depot between 23 December 2022 and 27 July 2023. C had previously been employed as a deputy manager for a wellknown supermarket, but hade given up his management role to become a cashier to spend more time with his family. He said this also led him to change careers to train to become a HGV driver.

13.3 R’s business requires a HGV Operators Licence to function. The conditions of this licence require all vehicles to be correctly taxed and undergo regular safety inspections to ensure they are roadworthy. Drivers of the vehicles must also conduct a walkaround check before driving a vehicle each day and during and at the end of their shift. R must also ensure that drivers have the correct licence and training. Any breaches found to have occurred of such conditions could mean that R is at risk of having the Operator’s Licence revoked, suspended or restricted by the Traffic Commissioner. R has a named Certificate of Professional Competence (‘CPC’) Holder for its Operator’s Licence who could be held personally liable for breaches. During C’s employment this CPC was initially BC, and then RO, after BC left.

13.4 R operates under European Tachograph legislation and the Working Time Regulations. Those provisions include, but are not limited to:13.4.1 No more than 60 hours worked in a ﬁxed week;

13.4.2 Working no more than 6 consecutive days;

13.4.3 Daily rest of 11 hours, reducible to 9 hours 3 times per week;

13.4.4 Weekly rest of 45 hrs per week which can be reduced to 24 hours, but any reduction must be repaid before the end of the 3rd week; and

13.4.5 A maximum of 90 hours driving in any 2-week period - 56 hours maximum in one week, etc.

13.5 R operates Tachomaster Tachograph Analysis software. This is an industry recognised system which allows drivers to download their tachograph charts and produces real time reports. Drivers are required to download their tachograph cards every 28 days and R is required to download vehicles every 56 days. R has a requirement that every driver downloads their card at the start and end of their shift to allow it to identify and deal with any infringements and clear any mileage allocated to the vehicle. This also shows that the driver is legal to drive/work. Drivers are required to complete manual entries daily to account for the time that they are on shift (i.e. working but not driving). At the end of each shift the tachograph is removed to account for the time until clock out. This then updates the driver and vehicle calendar and means that every kilometre that each vehicle has driven for, either in the depot or on the public highway is accounted for.

13.6 R operated two types of delivery run – farm collection and reload. Drivers on a farm collection run would go to R’s farms, collect the milk and take it to an unload point. Reload drivers take milk from the depot to external dairies and return with cream or an empty trailer taking it either back to the depot or to the Market Drayton reload site. Each shift begins with a driver clocking in, reporting to the transport desk to get the Tachograph card ‘dipped’ (which produces a reading showing what previous work the driver has completed). Each driver is then allocated a trip sheet and a vehicle. They then go to their vehicle, insert the Tachograph card and complete a vehicle walkaround check. If any defects are notes, these are reported by filling in a VC40 form in the transport office which is taken to the on-site garage to arrange a repair. If no defects are reported, the driver then leaves to go on his run.

13.7 After the run is completed, the driver returns the vehicle to depot. If a farm collection run has been done, the vehicles are weighed in, directed to a bay, unloaded and then weighed out and then continue to the next collection. At the end of the shift, the vehicle is refuelled, washed and the driver then removes the Tachograph card, completes a walkaround check of the vehicle (reporting any defects in the same manner using the VC40 form) and then reports to the offices, handing in the keys and paperwork and report any issues on runs. The co-ordinator then dips the Tachograph card into its reader, and the driver clocks out and goes home. If a reload has been carried out, the driver reports to the yard controller who directs where the trailer is to be dropped. It is then uncoupled and the driver completes a walkaround check of the trailer. Once the trailer is disconnected the driver refuels the vehicle, washes and then completes a walkaround check of the vehicle (reporting any defects as above). The Tachograph card is then removed and dipped, and the driver again reports to the office to hand in keys, report any issues etc before clocking out and going home. Allocation of runs and vehicles.

13.8 The allocation of runs and vehicles to drivers was done by team of co-ordinators who sit at the transport desk and included MY, SJ and JC amongst others depending on the shift worked. They are required to ensure that the routes are aligned to the vehicles allocated taking note of the requirements of the location e.g. some of the farms collected from are in rural areas with difficulties accessing and poor lighting so different vehicles with particular characteristics are used for those runs. For example the vehicle with registration DUV preferred by C had extra lighting on its rear so was used for runs where the access was more difficult (including the Thomassens farm run). R did not allocate a particular vehicle to be driven by a particular driver at the time C was dismissed. This approach had been tried in around January 2023 with two or three named drivers (working different shifts) being allocated to a particular vehicle. This was partly to encourage drivers to keep the vehicles clean and tidy, but this did not work and was stopped. RO explained that this did not make the best use of vehicle utilisation with the allocated truck sometimes being unavailable when a driver started their shift (if for example the other driver allocated to that vehicle had been held up on their route). He acknowledged that drivers did have personal preferences for vehicles but ultimately, they would be required to drive the vehicle that had been allocated to them.

13.9 In 2022, there was a national shortage of HGV drivers, due to a number of factors including HGV driving tests not taking place during the Covid 19 pandemic and the economy then picking up and a general labour shortage. During this period, R was keen to recruit and retain HGV drivers. It operated a ‘Temp to Perm’ initiative to try and move as many agency drivers as possible from being temporary agency workers to permanent employees. CB told us that R was “crying out for drivers” and relaxed its policy of not taking on newly qualified HGV drivers and as long as the driver passed their assessment and was safe, they were given a position.

13.10 On 11 October 2022 C attended Temp to Perm Agency Assessment with R and in doing so was interviewed and has his driving assessed (see Interview Assessment Form pages 207- 208). This noted that C had passed his HGV driver text on 28 June 2022 and his driving was assessed as good with 10 minor faults but confident overall. It noted he should be careful negotiating roundabouts but had completed a confident reversing exercise. He was taken through the process of coupling/uncoupling (see Uncouple-Recouple Audit at pages 209-210) which was passed with full compliance. We heard much evidence about the importance of this coupling/uncoupling process at R. This is a set process for safely parking a truck and disconnecting the trailer from the tractor unit and reconnecting a trailer to a tractor unit. R used the acronym BLACK which stands for: B – Brakes - Check the trailer brakes are applied; L - Legs - Check & wind down the legs to give support to the trailer; A – Airlines - Disconnect Electrics/Airlines (normally walk around the back of the trailer & collect the numberplate as well at this point); C – Clip - Unclip safety chain dog clip from release handle on 5th wheel; and K – Kingpin – Pull the release handle to disconnect the kingpin/jaws.

13.11 When uncoupling – i.e. dropping/removing a trailer – drivers were required to follow that order B-L-A-C-K. When recoupling – i.e. picking up/attaching a trailer – it was done in reverse K-C-A-L-B. If a driver got distracted or interrupted part way through the checks, they had to start again from the beginning. BLACK and BLEAK are the mnemonics recognised and used across all HGV training backgrounds, as it covers the uncoupling/coupling process (some businesses use BLEAK which is the same process, but electrics and airlines are separated, and clip and kingpin are categorised together). All drivers – whether permanent or agency – were subject to this process and trained on it. C attended his training on this process on 11 October 2022 (page 210). Accidents/incidents at work

13.12 If any of R’s drivers are involved in any kind of incident or accident whilst driving, even if this is minor, this has to be reported, recorded and addressed. Post accident assessments are caried out by the driver trainers and any required training put in place. In her evidence, CB took us to an example of its records of such incidents at page 316 showing how it records such matters for various drivers, including C and other white drivers.

13.13 On 22 October 2022 C commenced engagement with R via RE Recruitment Agency. Issue re Hours worked 25 October 2022 – alleged race related harassment – Issue 7

a. Investigation and retraining for tachograph mode error on a date before 31 January 2023 – alleged race related harassment – issue 7 d.

13.14 C was asked during cross examination whether the matter being complained of at issues 7 a. and 7 d. of the List of Issues related to the same incident. His response was unclear although when C refers to this matter in his witness statement, he cross referenced the e mail sent by RO described below (page 232). In the absence of any other evidence on such an issue, we have addressed these two allegations as being related to the same incident.

13.15 On 25 October 2022 during C’s first week, AM of R contacted RE Recruitment to request that C be removed from its rota due to a perceived compliance breach (pages 204-5). R stated that C had worked 13 consecutive days as the recorded daily rest was less than required and informed RE Recruitment that C would no longer be used. CS from RE Recruitment questioned this initially and provided data about the shifts C had actually worked (pages 227-230). C then attended the depot to discuss the matter with RO. The data was checked again and because at that time C had been working night shifts, the position looked worse than it was. C had not worked 13 days straight although he had worked for 7 days straight and had taken insufficient rest on one of the days (see page 229). RO and BC decided that the issue would be overlooked and at page 229 we were taken to an e mail from RO to AB, BC, CB and GL where he indicated that he would be happy to give C a “chance” as he was a reasonably new driver and he had good reports of his driving. He mentioned that C’s wife had also recently given birth. It suggested he be given training and ensure he catch up with his breaks. The training was arranged and C and RE Recruitment were notified on 27 October 2022 that C could return to site subject to taking a complete weekly rest period and completing tachograph retraining (pages 232-233). This email also encouraged C to ask if he was having any difficulties with the tachograph legislation.

13.16 When it was put to C that what took place here had no connection at all to his race, C acknowledged that it might not have been an intentional racial attack, but he felt that there was a repeated pattern of issues being directed to him. He said he felt that a proper manager would have conducted a full investigation and proper due diligence before deciding his engagement should be terminated. Coupling incident 22 November 2022

13.17 On 22 November 2022 C had a coupling incident which involved him missing the pin during a coupling and reversing the truck back into the legs of the tank he was trying to connect up to. This resulted in a light lens being broken on the rear of the vehicle. This was recorded on R’s shift handover document sent on 25 November 2022 (pages 306-310). A request was made that C attend some post accident training which was referred to as a Post Accident Assessment (PAA’). It is of note that page 310 records 11 other accident/incident reports involving other drivers with a number of these recording that a PAA should take place. Further coupling incident 7 December 2022

13.18 On 7 December 2022 C had another coupling incident when he failed to remove the airlines and pulled them off when he drove away. The Post Accident report for this incident (page 311) recorded that having completed an accident report, 3 checks were carried out of C carrying out the procedure with GL. This recorded that if C got distracted whilst carrying out the process, he must start the procedure again. It recorded that no further training was required. Commencement of direct employment

13.19 On 23 December 2022 C commenced employment with R, and his signed Contract of Employment was shown at pages 186- 202. This provided that he was required to complete an initial probationary period of 12 weeks, stating, “1.2 Your employment with us is intended to be permanent but is conditional upon the satisfactory completion of a 12 week probationary period.

1.2.1 During the probationary period your performance and suitability for continued employment will be reviewed by your line manager.

1.2.2 We may at our discretion extend the probationary period.” Mudguard clip incident – alleged race related harassment - issue 7

13.20 On 31 December 2022 C had an incident in which the mudguard on a vehicle he had been driving broke when C reversed against the wheel stop (a bumper designed to stop a driver going further). This caused minimal damage. The incident report recording this was shown at pages 871-873. This recorded that the incident was reported by JC who was the shunter in the yard at the time. C also completed a witness statement setting out his account of what had occurred (page 870) where he stated that the mudguard was compressed between the tyre and the yellow stop causing the clip holding the mudguard to break off. On 2 January 2023, CB e mailed internal colleagues (page 313) informing them what had occurred. It noted that C would be provided with additional training further stating that this would be a, “as a last chance scenario (very minimal damage, clip on mudguard only, however I want to make sure this is nipped in the bud with him going forward, he had a coupling incident whilst on the agency, this will be the last olive branch case to cover all HR bases given he is a new driver & under our probation terms going forward)” It went on to state that C would be matched up with a competent driver to sit with as R had “done with our other new pass drivers”. His PAA assessment was confirmed for 10 January 2023 and took place with AJ with a record being completed (page 129). This stated that C had been observed coupling and uncoupling and taken on a run to Droitwich where his driving was observed. His reversing was also assessed. C agreed that he had 14 minor faults on this assessment. AJ recorded that he was “at all times safe and secure” and “demonstrated the required skill and knowledge”. It noted that he needed some “minor practice on his reversing procedures” but AJ was satisfied that he should be allowed to drive solo.

13.21 C now contends that this incident was in fact a result of wear and tear. This was not something raised at the time, and we were unable to accept that this was the case on the basis of the very limited evidence on this matter (including some photographs taken by C) before us. January 2023 - Monitoring by colleagues and targeting for investigation - alleged race related harassment - issue 7 h.

13.22 C complained that he was frequently watched and monitored by his colleagues in January 2023 and that he felt he was being watched in order that any mistakes could be spotted, and that he would be reported. In his witness statement he mentioned 2 or possibly 3 incidents, one involving a colleague he could not identify and one or possibly 2 (it is unclear whether it is the same incident) involving JC. This is a complaint first made by C in his grievance submitted on 31 January 2023 (page 334). He mentioned an unnamed colleague 3 tankers away looking at him and then standing behind his tanker as he moved away and then moved back to his own truck. He then referred to JC watching his truck as he moved away. He gave evidence of what is described as an uncoupling incident involving JC watching him in January 2023 where he made a mistake and was reported leading to investigation and training. We find that this incident in fact refers to the incident which took place on 31 December 2022 (see paragraph 13.20 above). This clearly involved JC (who reported the matter), and we find that C has become confused with dates and it is the same incident being described here. Other than this one incident where C was observed (when an incident took place) we were unable to make any findings of fact about this having occurred frequently or excessively as C alleges as there is no substantive persuasive evidence, other than C’s vague assertions that he felt this was occurring. Bleeper incident – alleged race related harassment - issue 7

13.23 In January 2023 whilst C was reversing, his vehicle’s bleeper activated. C alleged that he was approached aggressively by RO and shouted at in front of others, which caused embarrassment. C referred to this incident in his grievance submitted on 31 January 2023 (see below and page 333), when he refers to his bleeper being on for a “split second”. When asked what the connection was to C’s race, C said it was because other drivers were doing the same thing but not being “screamed at”. RO’s account of the incident is firstly to explain that the background to this incident is that the depot is next door to a residential property and there had been a number of historical complaints about noise at night from horn checks or reversing noise. He referred the Tribunal to correspondence referencing this between 2020 and 2022 (pages 864-869). As a result of this, drivers were instructed that when visiting site during the night, noise must be kept to a minimum and reversing sensors must be muted and the horn only beeped when necessary. There was a switch in the cab that allowed reversing alarms to be silenced. RO alleged that C pulled into the middle of the yard the evening in question and put his vehicle in reverse and his bleeper started to sound. He contends that it could not have been on for just a split second, as when he heard the alarm, he got up from his desk, walked along a corridor and across the yard to where C was (which would have taken 3-4 minutes given his poor mobility at the time). He acknowledged that he shouted at C to get his attention to turn his bleeper alarm off.

13.24 RO did shout at C to turn off his reversing bleeper, but we find that this had been going for longer than a split second (more likely to have been at least one minute and possibly several minutes). We also find that RO was not ‘screaming’ but that he did shout and that the primary purpose of shouting was to attract C’s attention to get him to stop the noise in light of the issues with the neighbouring property. Jet wash incident – alleged race related harassment - issue 7 g.

13.25 There was some confusion as to what this incident related to. In his witness statement, C alleged that in January 2023, a colleague, JC, had “screamed at him publicly” whilst jet washing his truck. An allegation involving jet washing had first been raised in C’s grievance on 31 January 2023 (page 334), but no name was given. A similar allegation was made in the claim form and particulars of claim (page 17) where it is referred to as involving a colleague and this had been recorded in the list of issues. RO acknowledged that on one occasion he had shouted at C whilst he was using the jet wash telling him to put on his goggles as per R’s PPE requirements. He gave a detailed account of how the incident arose stating that he had noticed that C was washing his truck without goggles whilst walking across the yard to deal with another incident involving a driver sounding his reversing beeper. He said he shouted at C to get his attention and asked him to put safety goggles on. We find that this incident in fact involved RO and accept his account of events, which broadly correlates with the way C initially describes the incident. There may have been another incident involving JC (as C gave a different account of being shouted at by a colleague telling him the jet wash was not working). However C’s account on this is confused and so we were unable to make a particular finding that a second such incident occurred. Incident involving truck (registration DG18 JPO) in ‘limp mode’ 21 January 2023

13.26 On 21 January 2023 C recounted that he was given a truck which could only drive 20MPH. He said he only noticed that this was the case when he joined the motorway and then he had to return to base. RO took issue with the fact that this could not have been the case was the nearest motorway was almost 40 minutes drive away, During cross examination it became apparent that C was not using the term ‘motorway’ in its more conventional sense, but in fact meant any actual road i.e. the public highway as opposed to the yard and internal roads within the depot. He explained that it was in fact just 3 miles away at Culina that he had to make his return to the yard. We accepted this evidence.

13.27 When he returned to the depot, C alleged that he was instructed to take another vehicle. He stated that having seen other tankers (he alleged 15) dropped and parked along the tarmac he proceeded to do the same. He then alleged that when he was uncoupling on the tarmac RO shouted and screamed at him that he could not do this. This incident was also referred to in C’s grievance of 31 January 2023 (page 335). RO’s account of the incident was that he saw C start to drop his loaded trailer on the tarmac outside the garage which he felt could cause an obstruction and breach R’s site transport rules (page 237). He also stated that as the trailer tank was loaded at the time, this should never be dropped on tarmac due to the weight and the risk of the legs on the trailer sinking. RO’s account was that he asked a colleague, R Lowe, who was covering the shunter role, to go and tell C to drop his trailer tank on the concrete. We preferred the evidence of RO on this matter which was more plausible and logical. C was clearly admonished for dropping his trailer on the tarmac, but this was due to a concern about the fact that it was loaded at the time and could cause damage to the tarmac. There was no evidence at all to suggest that any of the other trailers that may have been parked up at the time were loaded.

13.28 C then reported a defect for this vehicle (as shown at page 743) in accordance with R’s procedure. This recorded that there was no engine power and the vehicle would not accelerate beyond 20 mph. It further recorded that the vehicle was repaired on 26 January 2023 having its wiring repaired. C alleged that the vehicle he was then given to drive was also defective as it had no heating (although he did not notice this until midway through his journey). C said he reported it to GL who confirmed the truck was unsuitable for long distance journeys. RO gave evidence that unless this had been defected by the previous driver, R would have been unaware of this at the time it was allocated to C. He also said that GL who was a driver trainer, would not have the knowledge of the fleet to understand what repairs and defects had taken place in any event. We accepted this evidence. Incident re end of shift checks on 30 January 2023 – alleged race related harassment – issue 7 e.

13.29 On 30 January 2023, C said that upon starting his shift he was “immediately pulled into an investigation by RO and another senior manager”. He said he was asked if he wanted representation and that he “sensed a setup” and that no concern was shown for his wellbeing. He said he was questioned about whether he had completed his final walkaround safety checks the previous night and when he asked why he was told that the truck’s lights were not working. C then said he asked how R knew and was told that “checks were conducted on every driver after their shifts” and he said this confirmed his suspicion that he was being singled out. His account of this incident in his witness statement was brief, but a more detailed account was provided during the grievance process (see below). The notes of the meeting at page 681 record that C said that when he started his shift, he as told that RO wanted to see him. He stated that he had been kept waiting for 30 minutes and that his heart was racing. He said he was feeling overwhelmed and that JB had helped the situation and if it hadn’t been for him, he would have passed out and that JP said C was “vibrating”. He then agreed that he offered his resignation at this point and that RO said he could go if he wanted to.

13.30 RO’s account of the matters was that he had noticed at the end of the previous shift that a truck in the jet wash had a defective light. He had been going to tell a different driver to not sound his reversing alarms at the time and when he finished doing this, the truck in question had left the jet wash and the driver had gone home. He said he checked who had been driving and found it was C and said he felt that a defect should have been completed for this by C as the outgoing driver. He said the driver who had then been allocated the vehicle, came to the office to report this defect and was able to repair it although at the end of his shift he complained to BC about drivers not reporting defects. RO said BC asked him to have a word with C.

13.31 RO told us that when C arrived for his shift that evening, he was in a meeting with JP when he saw C arriving and asked him to come into the meeting room (asking JP to stay there as they had not finished their meeting). He said he planned to have an informal conversation with C and had the paperwork with him. RO said that when he raised the issue of end of shift vehicle checks and whether this had been completed, that C became agitated and it was at this point he asked C whether he wanted someone with him. RO said that when he reiterated it was a conversation to ensure C knew the requirements for end of shift check, that C stood up, became even more agitated and said that he was always being picked on mentioning the issue with the mudguard. RO said he was taken aback. RO denied that he told C that checks were carried out on all drivers stating that this was not the case and it was drivers themselves who were responsible for carrying out such checks. RO then described how C gave an account of his time as a manger at Aldi and that his staff loved him, but he had not had any love shown to him whilst at R. He said C banged his fist on the table and that JP told C to calm down.

13.32 RO’s account was that C then said he was going to quit and took a pen and paper from his bag and started to write out his notice. RO said at that point he would have been happy to accept his resignation given C’s behaviour but that he did not say anything, but that JP discouraged him from this saying that RO was just trying to explain the process. He said that C complained he had enough of this whilst working at Aldi and left site saying he would go home as he had quit. RO stated that he believed C’s behaviour was totally inappropriate for what was a short informal conversation where he was being reminded to do end of shift checks.

13.33 There was in fact little difference in the underlying facts in the accounts given by C and RO but we entirely accepted RO’s account of the events, which again were more plausible and logical. C became agitated during the meeting, and it is clear it very quickly escalated from what was a very mundane conversation (with RO raising a matter with C that he was entitled to do so) to a heated discussion which led to C offering to resign.

13.34 RO informed CB on 30 January 2023 that C had resigned, and she recalls C phoning her around this time to ask about the grievance procedure. C’s first grievance 31 January 2023 – alleged protected act for victimisation complaint (issue 13 a.) and protected disclosure for protected disclosure detriment complaint (issue 16 a.)

13.35 On 31 January 2023 C submitted a grievance by e mail and grievance letter (page 331-338). This was submitted again on 1 February 2023 (pages 340-7). This letter complained about three matters, bullying, discrimination and unfair treatment. It went on to recount various incidents summarized above and complain of unfair treatment, being watched at work and being investigated. He also alleged he was being put on routes to cause him issues. When asked about where in this grievance he made any reference to issues of health and safety risk, C stated that he was complaining about issues that could lead to him having anxiety and could lead to accidents occurring whilst he was driving (and so related to health and safety). He acknowledged that this was not spelt out directly. When asked about what possible breaches of legal obligation or criminal offences were referred to, he stated that he felt that by providing him with a truck which was unsafe, this was a criminal matter. We were not satisfied that any of this was in C’s mind at the time of raising this grievance and note that the issue of an alleged defective truck is not mentioned at all in this grievance.

13.36 On 1 February 2023, CB e mailed RO, BC, ET and CJ stating that C had resigned and that a grievance had been submitted which she was happy to investigate. She asked for advice as to whether the resignation could be accepted given the issues raised (page 350). She further e-mailed HR asking for advice on how this should be addressed and whether the grievance should be investigated by HR if C was leaving, or her if not (page 349). C’s grievance was acknowledged by CB on 1 February (page 348). On 2 February 2023, CJ of HR responded to CB informing her that AE would be calling C to say that whilst he had resigned verbally, that this was in haste and that he was still considered an employee. She informed CB that BC would be the grievance manager (page 351). She then e-mailed BC and asked him to let RO know what was happening (page 357). BC did this on 3 February 2023. RO responded stating that he “felt very uncomfortable being at work when he may encounter C” and then e-mailed stating that he would ensure that he did not interact with C and asked whether it would be better for him to take the week off (pages 358-9). CJ responded stating that this was not something that was easy to deal with and that RO should seek support from BC as needed stating that it was part of the downside of being a manager that people raised issues. She suggested that contact with C be limited. RO responded (page 361) stating, “I am more than used to people having issues with me but the way [C] behaved is another level” During his evidence, RO clarified that that never in his career had he been spoken to or had someone react the way that C did.

13.37 On 10 February 2023 West Mercia Police issued a Notice of Intended Prosecution (NOIP) in relation to a driving offence committed whilst C was the driver (pages 387-388). It does not appear that this was taken further with C during his employment. Grievance meeting

13.38 On 16 February 2023 C attended a Grievance Hearing chaired by BC with CJ attending as note taker (Minutes of Grievance Hearing at pages 374-386). C explained that he was raising the grievance against RO, MY and SJ. He then went on to complain about the various incidents listed in his grievance letter. He started with the jet washing incident which he said occurred in January 2023 and related to someone he did not know shouting at him not to use the foam. C stated that he felt this individual had been instructed to watch him. He complained about a negative culture and then other incidents in the letter were discussed but C could not identify who was involved. He then complained about the tarmac parking incident and RO shouting at him and that on this occasion he had deliberately been given a faulty truck. He finally complained about the vehicle checks incident and meeting on 30 January 2023. During the meeting C said that he did not “want anything out of this” but when asked at the end to clarify whether he was saying he did not want BC to investigate, C said no. BC confirmed that he would look into everything and it would be a couple of weeks. Extension of C’s probationary period

13.39 On 20 March 2023 AE forwarded to CB an e mail he had received from AC in R’s Hire to Retire (HTR) team relating to outstanding points on C’s probationary review (page 406-408) which he had been sent in error. This stated that C had failed to complete his OH screening form and requested that this be completed. CB then e mailed C on 22 March 2023 asking him to complete the form (page 409). On 24 March 2023, CB e mailed AC stating that C was on holiday and would complete on his return on 10 April if not done before then (page 410), On 30 March 23 AC sent an e mail to CB informing her that C’s Probationary Period was automatically extended by 4 weeks due to C not completing a Health Screening Form (page 415). A standard form letter was sent on the same date addressed to C confirming this and stating that his probationary period was now due to end on 14 April 2023 (page 416). Suzie Lines incident 3 April 2023

13.40 On 3 April 2023 C was involved in an incident whilst uncoupling his vehicle which resulted in the Suzie lines becoming disconnected (as per the photograph at page 421). In his witness statement, C said that this accident was “due to family circumstances at home” which affected his mental health and caused him to make a slip carrying out the BLACK process for coupling, missing out the A stage. On 3 April 2023, AJ sent an internal e-mail reporting this incident (page 417). This attached a completed defect sheet (page 418), an Accident/Incident Witness Statement (pages 419-420) and a photo of damage (page 421). This also noted that AJ had sent C home early due to him experiencing personal issues as he felt C was not in the right frame of mind to continue driving. C’s statement about the incident set out his account and said that due to his mind being “occupied with home issue and living in a hotel for the pass 9 days” he missed the A stage. He described these as mitigating circumstances to the incident and stated that he was sorry.

13.41 CB spoke to C on 4 April 2023 and CB gave evidence that C told her during this conversation that he was considering resigning referencing issues at home and the breakdown of a relationship. She updated RO by e mail regarding this conversation (page 430) stating that she would “not fight it” if C chose to resign. RO responded that day (page 433) stating that he was “all for giving anyone the benefit of doubt” but that it “would be easiest if he resigned” stating that it as the 4th occasion. During this e mail RO also informed CB that he had been added to the Operators License as responsible person given the decision of BC to resign. It was around this time that BC left R’s business somewhat unexpectedly with CB stating that whilst she did not know the full details, she understood it to be an “absent without leave” issue.

13.42 CB obtained a quote for repair of the vehicle which was provided on 5 April 2023 (page 435). She e mailed AM on 6 April 2023 confirming that an investigation meeting had been booked with C on his return and that that this would be addressed as a disciplinary matter. She gave evidence that a number of factors were considered when R decided whether to progress an incident by way of a disciplinary investigation or not including the number of occurrences, costs and seriousness of the accident. Meeting between C and CB on 10 April 2023

13.43 On 10 April 2023 a disciplinary investigation meeting took place between C and CB (see minutes of meeting taken by CB at pages 447-453). C gave his account of what occurred stating that his mind must have gone blank and he missed one stage in the process of coupling and as he pulled away the lines snapped. He said he reported it at the time and said he had been distracted because of issues at home. During this meeting CB asked about C’s wellbeing and ability to work and C said that things were more settled. CB informed C that the matter will or may proceed to a disciplinary procedure as it was the second incident that had taken place. A Motor Vehicle Accident/Theft – Report Form was also completed by C with CB in relation to the incident (pages 423-426) where C acknowledged he was at fault as he missed a step in the process.

13.44 Following this investigation meeting, CB also discussed with the claimant whether he required any additional support and mentioned that R had mental health first aiders available or that C could be referred to OH. This was recorded in a note of meeting which was shown at page 446. C said he was OK and did not require support but would speak up if he did. Probation review

13.45 CB also held a probation review meeting with C on 10 April 2024 and completed the form for this shown at pages 444-445. This form recorded C’s performance as either Excellent, Good, Fair or Poor against 8 criteria and then an overall score was given. C was rated Excellent in relation to his General style and approach; Attitude towards work and colleagues; Time keeping and Relationship with others. He was rated Good for his Knowledge of Workplace; Understanding of job role/responsibility and Attendance. He was rated Poor for Performance with a note being made that there were two incidences of infringements recorded. CB gave C an overall rating of Fair and decided that his probationary period would be extended. Together C and CB also completed C’s Health Screening form on 10 April 2023 (page 439) which was required to stop HTR automatically extending his probation.

13.46 CB completed an investigation report (page 465-466) which was e mailed to ET and JO in Employee Relations on 11 April 2023 (page 454). This recommended that as this was the second recorded incident since commencing permanent employment, that the matter should move to a disciplinary process and requested that a meeting be set up for 14 April 2023 (to be chaired by AE) and a disciplinary invitation sent. There was then an e mail discussion about whether AE could chair the disciplinary, given that he was mentioned in C’s outstanding grievance (see pages 467-70). Extension of probationary period in April 2023

13.47 It appears that C’s probationary period was then again automatically extended by HTR by 4 weeks due to C having not completed his OH health form. This was communicated to CB on 14 April 2023 and again a letter was automatically generated and sent to C on 14 April 2023 (pages 473-474). On 18 April 2023 the request submitted by CB for C’s probationary period to be extended was processed by VT in HTR and a letter was generated and sent to CB with instructions for her to print sign and issue to C (pages 479-480). CB stated that she believed she had issued this to C but could not be 100% sure, although said she definitely communicated this extension of probation to C verbally on 10 April 2024. C contends he did not receive this letter, and we accept that this was the case. There was confusion at this time around the extension of probation, with apparently two processes occurring simultaneously. This is far from ideal, but we conclude was caused largely by system and communication issues with the automatic probation extension process running entirely separately from the line manager decision making process. However C was aware at this time that his probationary period had been extended. He had been informed in writing that it had been extended to 12 May 2023 and verbally by CB that it had been extended to 14 July 2023.

13.48 On 17 April 2023 and again on 19 April 2023, CB chased ER on the progress of her request to progress towards a disciplinary investigation (pages 475 and 481). On 20 April 2023 ET responded and asked for an amendment to be made to the Disciplinary Investigation Report (page 483) which CB made and sent by e mail to her on 24 April 2023 (pages 484-486). On 6 May 2023 a Disciplinary Invite letter was sent to C by E-mail and letter (pages 493-495) informing him that a disciplinary hearing would be held, chaired by JP on 15 May 2023. On 17 May 2023 this was rearranged by E-mail and letter sent to C informing him that the disciplinary meeting would be held on 24 May 2023 and that the disciplinary manager for the hearing was changed from JP to AE (pages 497-500).

13.49 On 31 May 2023, ET contacted AE to find out what had happened with the disciplinary meeting and again chased on 6 June 2023 (pages 516-7). On 7 June, JO forwarded these e mails to AH and to PB (who had recently been appointed as the new Operations Manager) asking for an update (page 518). It is clear that the disciplinary hearing did not take place as planned and it is unclear why this was the case. PB e mailed ET on 27 June 2024 asking for advice and suggesting that someone in HR had informed AE that he could not consider further action. He also stated that AE had informed him (PB) that C’s driving had improved since receiving retraining. ET responded on 28 June 2023 (page 525) stating that as it was approaching 3 months after the incident, that they should consider whether it was reasonable to progress with the disciplinary hearing in any event. She recommended that the decision was not to progress due to time passed and to remind C of the expected standards, but that no further action would be taken. PB agreed with this approach. C’s outstanding grievance

13.50 Following the unexpected absence of BC at some point in April 2023, AH (Operations Manager from the Wolverhampton depot) was covering the Market Drayton depot on an interim basis. On 13 April 2023, JO sent an e mail to AH updating him on a number of HR and ER matters that were ongoing (page 477-478). This informed AH that C had raised a grievance which BC had been dealing with and asked AH to confirm who should pick this up. ET then followed up this e mail on 18 April 2023 suggesting that as the grievance was regarding another shift leads, that AH himself should pick this up rather than assigning it to someone else (page 477). AH asked for details and a copy of the notes of the grievance hearing on 20 April 2023 and on 25 April 2023, ET e mailed AH with a copy of the notes (page 487). Nothing then appears to have occurred until ET e mailed AH on 14 June 2023 about this (page 521). ET stated that although it appeared that BC had conducted investigation meetings with RO and MY, he had never sent any notes of those meetings. She recommended that AH write to C to inform him that his grievance had not been progressed as a result of BC leaving, to apologise and to state that AH would now be taking this over. On 20 June 2023 an email was sent to C enclosing a letter from AH (pages 522-523). This letter informed C of the position of his grievance given that BC had left. C was asked whether he still wished to progress with his grievance or whether he felt that the issues had been resolved. It went on to state that if C wanted to progress the grievance, AH would be picking this up. It apologised for the delay and offered C the support of the employee assistance programme.

13.51 On 01/07/23 C responded (page 530) stating, “While I don’t mind the case to be closed I will like to state that I still feel paranoid, feeling like I am walking on a land mine. While this might not be the case, I feel like I will be used as an example for any wrong doing on similar issues that I have reported for failing compliance. I consent that the grievance case can be close now” JO forwarded this response to AH and ET and suggested that the new manager at Market Drayton, PB, have an informal conversation with C to discuss his concerns. Allocation of truck FXA/re allocation of truck DVA – alleged direct race discrimination – issues 6 a. and 6 b.

13.52 C alleges that in June 2023 he was allocated what he referred to as a “ghost truck” with the registration FXA and that he searched for this for 4 days before another driver confirmed that this no longer existed. He drew back from this position that he had spent 4 full days looking for a truck in cross examination. He then said he notified CB who allocated a truck with the registration DUV to him that he previously had. He confirmed in cross examination that he was complaining about the initial allocation of truck FXA and not CB then allocating truck DVA to him as an alternative. RO gave evidence that there was no truck registered with FXA as part of its registration but that there was a truck registered with FXE which was a DAF tractor unit (although he could find no evidence of C driving this vehicle other than in his initial assessment). RO stated that this may have been a ‘sister vehicle’ that had been temporarily allocated from a different depot. We find that whilst this vehicle was allocated to C on perhaps more than one occasion, and upon him informing CB that he could not find this, he was allocated a different truck with the registration DUV. It appears that for a period of some days, C was allocated the truck with the registration DUV by CB and it is clear that this was C’s preferred vehicle as he refers to this in his witness statement as “my assigned truck”. However we accepted the evidence of R’s witnesses, that drivers did not have particular trucks assigned to them, and whilst drivers may have preferred one type of vehicle to another, they were expected to drive whatever vehicle was allocated. Allocation of truck MT 69 EJZ – alleged direct race discrimination – issues 6 c. and 6

13.53 C complains firstly that the truck that was allocated to him was replaced with what he describes as a ‘dilapidated’ truck with the registration EJZ. It is not actually clear when this occurred as no detail is provided but we find that at some point prior to 2 July 2023, C was allocated the EJZ truck and appears to have been unhappy with it. This was probably on 1 July 2023 as this is the date C refers to in his later grievance (page 571). On 2 July 2023 C attended work and was allocated a run and that same truck with the registration EJZ again. C gave evidence that this had no headlights, had a suspension issue and a damaged windshield. C reported this and completed a defect Sheet (page 529) which stated that the left-hand side head lamp was not working and the cabin door wind protecter was missing. It was also recorded in the section which addresses assessment and defect rectification that a technician fitted a new bulb on 3 July 2023.

13.54 On 3 July 2023 as part of the correspondence relating to addressing C’s outstanding grievance, PB reported to JO In ER that C was “proving quite challenging to manage” and that he was “trying to dictate which vehicles he is prepared to drive and which run he is prepared to go on” (page 526). PB stated that he would arrange to meet with C to discuss issues that had been raised in the grievance, but he would also make clear what R’s expectations were.

13.55 On 4 July 2023, CB sent an e mail to the manager team asking for feedback on C in order to prepare for C’s next probationary review (page 536). It appears that only AJ responded and sent an e mail stating that there had been no issues on the coupling/uncoupling audit he had carried out today and C was 100% compliant (page 539). CB told us that as no issues had been raised by other managers at this time, C was on track to pass his probation review. Further allocation of truck MT69 EJZ - alleged direct race discrimination – issue 6

13.56 On 9 July 2023 C was again allocated vehicle MT69 EJZ and C complained again. A conversation took place between C and AE and C said that AE insisted that the truck was fit for use and said that C was “picking and choosing vehicles”. AE’s account of the conversation was given in the statement he prepared about the events of the day and what followed (see below and page 566). This stated that when he was allocated the EJZ vehicle that C refused to drive it and became “irate”. He said that C alleged discrimination and that a previous truck that had been allocated had been taken off him due to discrimination. AE then said he explained to C that neither the truck he previously had, nor the current one were “his truck” and the company could reallocate vehicles as they saw fit. He then said that C asked for a truck to be taken from a different driver and reallocated to him and that as a new driver, he should have a new truck. AE then stated that C complained that he steering was light and there was an issue with the wind deflector and following a discussion about whether it was C’s or someone else’s responsibility to defect a truck, that C then then defected the vehicle. We find that the more detailed account of AE is a more plausible and realistic account of how the conversation went and how C ended up with completing a defect form. This was recorded relatively contemporaneously and so is more likely to reflect the full detail of the conversation that occurred.

13.57 A defect form was then filled in by C (shown at pages 546). He recorded on this form that the steering wheel was too light and that the wind deflector was missing. He also reported that the left side mirror casing was damaged. C put into evidence a photograph he had taken of this damage (page 242) and when this was put to R’s witnesses, their view was that this was simply a cosmetic issue and did not affect the roadworthiness of the vehicle. We accepted this evidence. C was then allocated and completed his shift in a different vehicle. On 10 July 2023 Vehicle EJZ was checked by the on-site garage and signed off as serviceable, and it was recorded on the defect sheet that all components had been checked, and it had been road tested and all was ok. We heard much evidence about the issue with suspension/steering with this particular vehicle. It was R’s position that this was never a defect at all but just a difference in the way that this vehicle drove when compared to others. We accepted the evidence of RO that the onsite garage was audited 3 or 4 times a year by Logistics UK (formerly the Freight Transport Association). This was something done to ensure that the Operator Compliance Risk Score (OCRS) given by the Driver and Vehicle Standards Agency (DVSA) remains on green. He explained that if a vehicle was stopped by the DVSA inspectors and was not road worthy, the score would be affected and the licence could be impacted, so it was never in the interests of the garage to sign off as roadworthy a defective truck. The exact issue that C was complaining about in relation to the door/wind deflector was difficult to get clarity about. C seemed to be suggesting that wind was entering the vehicle whilst driving and suggested this had caused him to have pneumonia. We did not accept this particular evidence given that this issue arose in July 2023 and the medical evidence relating to C suffering pneumonia stating that he was treated for this condition on 7 November 2023 (some 4 months later). AJ suggested that when he road tested the truck, there was no issue with wind getting in. Ultimately, we found this was a difference in perception with C perhaps feeling a draught coming in more than others, but that this was not sufficient to amount to a defect in the vehicle itself. Further allocation of EJZ vehicle and alleged key throwing – alleged direct race discrimination – issue 6 g.

13.58 On 10 July 2023 C attended for work and was again allocated the same vehicle EJZ and C refused to drive it. AJ gave unchallenged evident that he had been allocated this as R did not want to set a precedent that if a driver makes a fuss about driving a particular truck, then it would not be allocated to them. AJ stated that AE had asked him to be on hand when C started his shift. He told us that before C arrived, he checked the defect sheets submitted and went to the garage to ask for an update and the technician confirmed that there was nothing wrong with the vehicle. AJ said he then took the truck for a drive himself and could find no issue and did not note any wind or draught coming through the driver’s door. C’s account is that AE “threw” the keys at him “without explanation” and that C then inspected the truck and found that the reported defects had not been repaired. He then said that informed AE and AJ that he could not take the truck in its current condition. AJ denied that the keys to the truck were thrown at C stating that it was he who passed C the keys by putting them on the counter on top of the trip sheet for the shift and saying, “there you go”. This allegation of the keys being ‘thrown’ was explored in cross examination and C was taken to the notes of his later grievance meeting at page 666 where it was noted that the keys “were more passed/thrown across” rather than thrown at him. We find that this is indeed what occurred and that the keys to the vehicle were passed across to him over the desk rather than being thrown. After C declined to drive the truck, he was invited into a private office by AJ where he started to explain his concerns. The accounts of what occurred in this office vary. C alleged that after he went to the office with AJ and started to explain his concerns, AE then entered the office and “forced himself into the discussion overriding my objections”. C said he stated clearly, he did not feel comfortable speaking with AE present due to his “intimidating and domineering behaviour” He said that AE refused to leave and when C then attempted to leave, that AE “threatened disciplinary action and loss of pay”. He said that he felt intimidated and remained and that following this incident he was sent home and told to return the following day.

13.59 AJ’s evidence was that when C refused to take the allocated truck that he was informed by AE that this was the vehicle he was being allocated for that evening and he would not discuss further describing AE as professional and that he did not shout. He said C was belligerent. AJ said that C took exception to AE being in the meeting and said he would not talk to him and asked for CB (who was not on shift). AJ said he then took over the discussion and explained that he had been given a reasonable request as there was nothing wrong with the vehicle as it had been properly checked. He said C mentioned that his health was being affected due to wind entering the cab. He said that C told them that when he was taken on, he was informed he would be allocated a particular vehicle. AJ said that when AE tried to enter the conversation C said “quite rudely” to AE that he was not talking to him. AE then informed he that if he was not prepared to drive, he would have to ask him to leave site. C said he was not happy to leave and that he wanted someone else to witness the meeting to which AJ suggested GL. He said GL then joined the meeting and reiterated to C that what was being asked was not unreasonable. He said it took C about an hour to leave site and that GL went to his car with him.

13.60 The account of this meeting of AE and of AJ is set out in the statements that they each prepared on 11 July (pages 540-545 and 547-550). AJ’s account is broadly consistent with that given in his evidence, save that it added some further detail that C alleged that AE was biased and that he was being bullied. It also recorded an allegation by C that he felt this was all due to a previous grievance he had raised. AE’s account was very similar to AJ’s and stated that as C was irate when he refused to drive the truck, he was invited to a meeting room to discuss the issue. He said that C refused to talk to AE accusing him of bias. He said C was informed that his truck had been passed as fit to drive by the garage, but C still refused to drive it. He said that AJ and he explained that the issue of light steering raised by C was a personal preference and not a mechanical issue. He said that C accused him of bullying discrimination and bias. AE further added in his account that he felt that C was trying to “goad” him into physically removing him from site and force a physical confrontation. He also stated that C asked what his rights were and that AE had told him he could raise a grievance. AE said that the conversation continued but that he was then informed that as he was the manager in charge, he was telling C to leave the site immediately. AE said this was because of his refusal to drive his allocated vehicle and also now as he had health and safety concerns about C’s fitness to drive in his current mental state.

13.61 We preferred the detailed evidence of AJ as to how the events of this day and this meeting unfolded and accepted it entirely. It was clearly a fraught meeting, and we find that AE became frustrated with C’s refusal to discuss issues with him and follow instructions. We were not satisfied that AE acted in an intimidating manner towards C. C was agitated during this meeting which may have affected his perception of events. Events of 11 July 2023 – allegation of direct race discrimination – issue 6.h; of race related harassment – issue 7

13.62 On 11 July 2023 before C attended for work, both AE and AJ e mailed PB and AH with their accounts of what had occurred on the previous days as is summarised above. In his e mail sending this statement (page 547), AE stated the following: “I believe CA has 3 days left on his extended probation- and the past two days are just the latest in a string of attitude related issues. It is my professional opinion that CA is likely the single most unmanageable employee I have ever encountered. I don't see a path to ensure we get reliable & productive work out of CA. Continued employment of CA will almost certainly result in the raising of continuous spurious grievances. CA's actions seem too well calculated- and he is likely looking for a pay out at a later date- it would be a surprise to me if CA had not followed a similar pattern of behaviour in previous jobs.”

13.63 C attended for work to start his shift at 3pm and at this stage he was asked to come to the meeting room by AJ. There are then different accounts of what took place. C gave evidence that he was pulled into a side room and that shortly after AE entered with a notebook and pen, He said he was coerced into answering AE’s questions describing this as harassment and coercion which caused him severe distress and culminated in him having a panic attack. He said that as he was “desperate” for support he approached PB who then sent him back to AE and AJ and ignored his visible distress. He said he was “shaking and pleading for help” and so he “begged for fresh air”. He said at this time he called an anonymous helpline who informed him he was having a panic attack and advised him to stop talking and inform his manager he needed to leave. He said that he passed on this information and was then allowed to leave. During cross examination C acknowledged that he voluntarily walked into the room but did not feel comfortable doing so. He also said that the person on the helpline told him to go back into the room with AE and AJ to inform them he was going. C’s original account in his claim form was that he had been pulled into the meeting “with the pretence of trying to explain to [C] what he was going to be doing on the day’s shift”; that AE and AJ “forced themselves” on him; that he “screamed to be let out to get some fresh air” and he did this to “break loose” and that he went to PB’s office to “escape the harassment, bullying and intimidation and hoping he would be rescued by the manager from his captors but instead, he was pushed back to them as the Claimant pleaded with him not to, shivering and fearing for his life”.

13.64 AJ’s account of events given in evidence was that he asked C to join him in the room and that AE joined them after a couple of minutes. AJ said that he explained to C that rather than end up with the difficulties from the previous evening that he would be buddied up with a farm collection driver on a smaller tanker. AJ said that he was genuinely concerned about his mental state following the events of the day before and wanted him to be eased back into work by going out with someone else to do collections, which would also be good familiarisation for if he was needed to do farm collections himself. AJ said that C objected to this and said he felt bullied and intimidated by being in the interview room. He said that AE asked C if he were prepared to do what was being asked and that C answered, “no in a very defiant tone”. AJ described him as like a coiled spring and very agitated. He said that C stated that he was not talking to AE and that he was having a panic attack, at which point AJ said they would stop there and offered C a drink and some fresh air. AJ said that C then went straight over to PB’s office and asked to speak to him and only after that went outside. AJ said that he and AE decided to send C home at this point and after around 10 minutes went to find him to see if he was OK. He then said he invited C back into the room at which point AE read his probationary review invitation letter to him and gave him a copy. He said C understood what had been said but did not agree with it. The statement he produced at the time pages (pages 562-563) gave a similar account.

13.65 AE’s account of events was set out in his sstatement produced at the time (pages 568-569). AE recounted that he did not feel comfortable planning C to go on a run, so he arranged for C to ‘second man’ a farm run where he would accompany the driver and assist with loading/unloading but not drive himself. He said that when C arrived for work, that AJ invited him to the meeting room and he joined after a few minutes. He said that C immediately accused him of bullying and discrimination and when asked about it said he had a “personal problem” with AE and said he did not want AE to be in the meeting and would prefer a woman manager from the night staff. AE said that C was unable to choose his manager and C then said he was having a panic attack, and so AJ offered him some water and to get some air. He said that C then tried to go into PB’s office, but that PB did not enter into conversation. He said that C then stepped outside and started making a phone call. AE said that he and AJ then decided C was not fit for work and would be sent home. He then said he handed over and read to C the letter inviting him to a probationary review meeting on 13 July, asked C if he understood it and C said he did but did not agree with it.

13.66 C then left site with AE noting that he took photographs of vehicle EJZ as he left. AJ told us that C took about 2 hours to leave site, that he sat in the meeting room for a while, then went in the rest room and then sat in his car for 30-45 minutes. He then said C drove around site a couple of times. AJ described this as bizarre behaviour.

13.67 We much preferred the accounts of AJ (and AE) as to what occurred during these meetings. The actions and some events are not disputed particularly but it is C’s recount of events that gives a wildly different impression. C suggested that he was somehow prevented from leaving or locked into a room which we find did not take place. There is no evidence at all to suggest C was pushed and we find there was no physical contact of the nature that now seems to be alleged. Whilst C was agitated and distressed, we find it stretches credibility for C to suggest that he feared for his life, that he was a captive and he begged to be released. This exaggeration of events and embellishment of his account affected the weight we were able to place on C’s evidence.

13.68 The letter inviting C to a Formal Probation Meeting on 13 July which was handed to C at the conclusion of the meeting on 11 July 2023, was at page 559. It stated that the purpose of the meeting was to discuss C’s performance during the probationary period and to make a decision re employment. It said that whilst no decision had been made, that a possible outcome was termination of employment. It advised C that he had a right to be accompanied.

13.69 Following the meeting, AJ e mailed his statement of events to a number of managers on 11 July 2024 (page 562) as did AE on 12 July 2024 (page 564) C’s second grievance

13.70 On 12 July 2023 C raised a grievance by e-mail (pages 570-572) with the same grievance being sent by e-mail and letter on the same day (pages 579-584). This complained of unfair treatment, intimidation, bullying and harassment and made reference to R’s Dignity at Work policy and the EqA. He references events of the last 2 days alleging he had been cornered and forced to speak against his wishes to someone who he considers a bully. He also referenced his earlier grievance and said that after confirming this would not be pursued, he expressed fear and that he had now experienced worse treatment. He set out accounts of various matters detailed above. This related to the allocation of the ‘ghost’ truck, registration FXA; the removal of truck registration DUV and replacement with a “dilapidated truck” registration EJZ. He then recounted defecting this and being allocated it again. He made the allegation of keys being thrown at him and then recounted his account of the two meetings on 10 and 11 July 2024. At the end of the grievance, he stated that he wanted the grievance dealt with quickly and also it should take “priority over” his probation meeting stating that he felt that was being set up as a “unfair dismissal/constructive dismissal” and that if the case was not handled with caution and investigated fairly that he would be taking the matter further to an Employment Tribunal. When C was asked where in this document, he referenced a breach of health and safety, he stated that the reference to having a defective truck suggested that this meant he felt it was not safe and a danger to the public and so a breach of health and safety. When asked where a criminal offence was referenced, he said this was again related to the truck being unfit to drive and the potential consequences of this. He acknowledged that there was no mention of a breach of a legal obligation and then pointed out that had his grievance been investigated, he would have had the opportunity to explain these points in more detail. We were not satisfied that any such matters were in the mind of C at the time of submitting his grievance.

13.71 When C was asked in cross examination about the public interest nature of such matters, he alleged that it was always in the interest of the public for every vehicle allowed on the road to be safe. He acknowledged that nothing of this nature was set out in the document.

13.72 On 12 July 2023 C e-mailed PB requesting an extension to the Formal Probation Meeting (o allow him to obtain a witness representative (pages 573-574). He made further allegations of intimidation against AE and stated that he felt he was not currently on probation as letters he had informed him this ended on 13 April 2023. OH referral and report.

13.73 On 12 July 2023 after speaking with C, JO of R made an Occupational Health referral E-mail and form (pages 576-578). This stated that this had occurred following an event on site the previous day where C had said he was having a panic attack. It was described as being to consider C’s fitness for work going forwards due to mental health concerns. On 13 July 2023 C was assessed by Occupational Health who produced a report and sent it to the respondent on 19 July 2023 (pages 596-598). This set out C’s account as given to OH that he was not suffering from mental health issues as such, but this had all arisen as a result of bullying at work since January. It set out that C complained of being ‘manhandled’ and ‘locked in a room’. It recorded that it was C’s “perception of how he has been managed and the lack of support which has led to him getting anxious and feeling vulnerable” and that the panic attack was created by the circumstances at the time. It recorded that he would be fit for work on return from holiday and that no adjustments were required save that he be kept apart from the individual he was complaining about.

13.74 On 14 July 2023, CB e mailed C to confirm that his probationary period would be extended and that the formal probation meeting would be rearranged for 25 July (pages 585-587). She also referred C to the EAP. Confirmation of disciplinary outcome

13.75 On 21 July 23 CB informed C informed that the disciplinary process relating to the incident on 3 April 2023 would not be progressed (page 602-603). CB’s e mail stated that as the original disciplinary hearing had been postponed and not rearranged and given the length of time the matter would be closed off. Probation review meeting

13.76 On 27 July 2023, the formal probationary review meeting took place chaired by CB. This had originally been due to take place on 25 July 2023 but could not proceed due to C’s lack of representation. C was accompanied by his union representative. The minutes of the meeting were at pages 624-634. During the meeting CB completed the probation review sheet (pages 622- 623). This assessed the same 8 criteria as before. C was given a Good rating for Knowledge of workplace; understanding of job role/responsibility; attendance and time-keeping, He was rated as ‘Poor’ for General style and approach; Performance; Attitude towards work and colleagues and Relationship with others (colleagues/supervisor). He was given an overall rating of Poor. CB went through what had previously happened with C’s probation period as set out above. She asked C how he felt he had got on, and he replied he had done “exceptionally well”. CB explained that due to the incidents of the week commencing 9 July 2023 that the scores above were affected and that there were grounds for ending C’s probation. CB explained that because of his conduct his employment would be ended. She explained that the issues he had already raised with HR would continue to be investigated. There was some discussion about the various extensions C’s probationary period with C alleging that he had never received the extension of probationary period letter following the earlier incident in April 2023.

13.77 During cross examination, CB confirmed that before she carried out this probation review, that she had spoken to PB and was aware from him and others what had occurred on the days of the incidents in July. She said she felt it was a shame, but she felt she had no option but to end employment as the situation regarding C getting along with others had become irreconcilable and his refusal to deal with certain managers was a conduct issue. We accepted this evidence entirely. She denied that the fact that C had submitted a grievance had any influence on her decision, stating that the decision to hold the probationary review had taken place before the grievance was submitted. She further denied that her decision was racially motivated which was not challenged.

13.78 On 2 August 2023 C was sent the formal outcome letter dated 31 July 2023 by e mail (pages 641 and 639). C submitted his appeal against dismissal on 7 August 2023 (pages 642 and 646-647). This letter complained of breaches of procedure and that it was unfair to dismiss him on the basis of once incident. He further alleged that he had been “discriminated against, harassed, bulled and ganged up against by senior managers” intending to get rid of him.

13.79 On 7 August 2023 C was invited to attend a grievance hearing on 10 August (page 650-652). This was subsequently postponed and rearranged for 22 August 2023 and this meeting was arranged to hear C’s grievance and appeal against dismissal together (page 660-662). The meeting was chaired by PW and C was accompanied by a union representative (minutes at pages 664-674). The grievance was discussed first and PW went through all the points raised to confirm his understanding. When it came to the allegation of keys being thrown, C confirmed they were more “passed/thrown across” to him rather than thrown at him and when the allegation of being bundled into a room by managers, C acknowledged he was not pushed or bundled. The discussion then moved on to the appeal and much time was spent discussing the various extensions to probation and letters sent. C was informed that his appeal was dismissed but that his grievance would be investigated further.

13.80 Between 1 and 11 September 2023, PW held a number of investigation meetings with PB (minutes at pages 679-681); AJ (minutes at pages 685-688), AE (minutes at pages 689-693 and AH (minutes at pages 699-701). On 16 October 2023 a Grievance & Appeal Outcome letter was issued to C (pages 712- 717). This confirmed that the grievance had not been upheld. It went through the issues complained about in detail. In relation to the allocation of truck FXA, this was found to be a breakdown in communication leading to C being allocated a truck not on site. In relation to the allocation of truck EJZ and not being allocated DUV, it was concluded that drivers were not allocated a specific vehicle which they always used and that this was done based on availability. It concluded that there was no evidence that C had been allocated a dilapidated vehicle as truck EJZ had been signed off as fit to drive by R’s garage. In relation to the incidents on 9 and 11 July 2023, the finding was that AJ and AE had not acted inappropriately or forcefully. PW concluded that C had been treated fairly and consistently during is period of employment and offered support and training. He concluded that there was no evidence that he had been unfairly treated, intimidated, bullied or harassed. Letter about back pay

13.81 On 18 September 2023 C sent an email to JO in HR chasing on payment of unpaid back pay (following a backdated pay rise being granted after his departure) and stating that his notice pay had not been paid (page 704). JO e mailed on 25 September 2023 informing C that payment for his notice period had been made on 21 September 2023 (page 705). The position with payment of back pay still seemed unclear with C appearing to rely on a letter regarding a pay rise sent by USDAW to its members on 17 October 2023 (after C’s employment ended) (page 718). We find that C has not established that any sums were due to him after 21 September 2023 when his notice was paid. The Relevant Law 14. The relevant sections of the ERA we considered were as follows: 43B Disclosures qualifying for protection.

(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. 43C Disclosure to employer or other responsible person. (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure ...— (a) to his employer, 47B Protected disclosures. (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (1A) A worker ('W') has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done— (a) by another worker of W's employer in the course of that other worker's employment, or (b) by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure. (1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer. 48 Complaints to employment tribunals (1A) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B.

(2) On a complaint under subsection …. (1A) … it is for the employer to show the ground on which any act, or deliberate failure to act, was done.

(3) An employment tribunal shall not consider a complaint under this section unless it is presented— (a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

(4) For the purposes of subsection (3)— (a) where an act extends over a period, the “date of the act” means the last day of that period, and (b) a deliberate failure to act shall be treated as done when it was decided on; and, in the absence of evidence establishing the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done. 15. The relevant sections of the EqA applicable to this claim are as follows: 4 The protected characteristics The following characteristics are protected characteristics: … …age;…race….” 13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”. 23 Comparison by reference to circumstances (1) On a comparison of cases for the purposes of section 13....there must be no material difference between the circumstances relating to each case.”

The Relevant Law

[26]Harassment (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

[27]Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act. 123 Time limits (1) [Subject to [sections 140A and 140B],] proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.

(3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. 136 Burden of proof (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. 16. The relevant authorities which we have considered in relation to the claims for PID detriment were as follows: Williams v Michelle Brown AM/

UKEAT/0044/19

/00 where HHJ Auerbach considered the questions that arose in deciding whether a qualifying disclosure had been made. “It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.” Cavendish Munro Professional Risks Management Ltd v Geduld UKEAT

[2010] ICR 325

[2010] IRLR 38

made it clear that to be a disclosure there must be a disclosure of information, not an allegation. Fincham v HM Prison Service

EAT/0925/01

confirmed that the disclosure of information must identify, albeit not in strict legal language, the breach of the legal obligation that the claimant is relying on. Kilraine v London Borough of Wandsworth

[2018] EWCA Civ 1436

- paragraphs 31 and 32 on the irrelevance of the distinction between ‘allegation’ and ‘information’ in whistleblowing complaints as this is essentially a question of fact depending on the particular context in which the disclosure is made. Simpson v Cantor Fitzgerald Europe,

UKEAT/0016/18

explained the position as follows: - “The Tribunal is thus bound to consider the content of the disclosure to see if it meets the threshold level of sufficiency in terms of factual content and specificity before it could conclude that the belief was a reasonable one. That is another way of stating that the belief must be based on reasonable grounds. As already stated above, it is not enough merely for the employee to rely upon an assertion of his subjective belief that the information tends to show a breach.” Chesterton Global Ltd v Nurmohamed

[2017] ICR 731

CA The following guidelines were suggested as to determining whether the worker genuinely believed the disclosure was in the public interest and whether it was reasonable for him to have done so: (a) the numbers in the group whose interests the disclosure served; (b) the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed – a disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing affecting the same number of people, and all the more so if the effect is marginal or indirect; (c) the nature of the wrongdoing disclosed – disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people; (d) the identity of the alleged wrongdoer – the larger or more prominent the wrongdoer (in terms of the size of its relevant community, i.e., staff, suppliers and clients), the more obviously should a disclosure about its activities engage the public interest, though this should not be taken too far. Babula v Waltham Forest College

[2007] ICR 1026

CA - account is to be taken of the worker’s individual circumstances when deciding whether his or her belief was reasonable. The Tribunal must look at what the worker in question believed rather than on what a hypothetical reasonable worker might have believed in the same circumstances, although the test is not solely subjective. Korashi v Abertawe Local Health Board

[2012] IRLR 4

EAT, para.62 & 64 the reasonable belief of the person making the disclosure takes into account the characteristics of the claimant, i.e., what a person in C’s position would reasonably believe to be wrongdoing. This was followed in Phoenix House Ltd v Stockman

2017 ICR 84

, EAT – the subjective element is that the worker must believe that the information disclosed tends to show one of the relevant failures and the objective element is that that belief must be reasonable. Darnton v University of Surrey

2003 ICR 615

EAT held that determination of the factual accuracy of the worker’s allegations will, in many cases, be an important tool in helping to determine whether the worker held the reasonable belief that the disclosure in question tended to show a relevant failure. Korashi also decided that in the case of multiple disclosures, it is not enough that C believes that the gist of the multiple disclosures are true, there must be a reasonable belief in respect of the particular disclosure relied upon. Eiger Securities v Korshunova

[2017] IRLR 115

EAT) - The ET must identify the breach of legal obligation (if that is relied upon). Conduct which is immoral, undesirable or in breach of guidance is not enough without also being in breach of a legal obligation. Blackbay Ventures Ltd v Gahir

[2014] IRLR 416

EAT) - When considering a claim of detriment for multiple disclosures the ET should be precise as to the detriments and disclosures in question and should not just roll them all up together. Fecitt v NHS Manchester

[2011] EWCA Civ 1190

[2012] IRLR 64

[2012] ICR 372

– “section 47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer’s treatment of the whistleblower”. International Petroleum Ltd & Ors v Osipov & Ors [2017] the EAT determined that “the words “on the ground that” were expressly equated with the phrase “by reason that in Nagarajan v. London Regional Transport

1999 ICR 877

. So the question for a tribunal is whether the protected disclosure was consciously or unconsciously a more than trivial reason or ground in the mind of the putative victimiser for the impugned treatment. Under s.48(2) ERA 1996 where a claim under s.47B is made, “it is for the employer to show the ground on which the act or deliberate failure to act was done”. In the absence of a satisfactory explanation from the employer which discharges that burden, tribunals may, but are not required to, draw an adverse inference.” 17. In relation to harassment the following authorities were relevant: Richmond Pharmacology V Miss A Dhalliwell

[2009] ICR 724

. There are two alternative bases of liability in the harassment provisions, that of purpose and effect, which means that the respondent may be held liable on the basis that the effect of his conduct has been to produce the prescribed consequences even if that was not a purpose, and conversely that he may be liable if he acted for the purposes of producing the prescribed consequences but did not, in fact, do so. A respondent should not be held liable merely because his conduct has had the effect of producing the prescribed consequence. It should be reasonable that the consequence has occurred and that the alleged victim of the conduct must feel that their dignity has been violated or that an adverse environment has been created. Therefore, it must be objectively decided whether or not a reasonable person would have felt, as the claimant felt, about the treatment in question, and the claimant must, additionally, subjectively feel that their dignity has been violated, etc. Grant v HM Land Registry & EHRC

[2011] IRLR 748

CA emphasised the importance of giving full weight to the words of the section when deciding. whether the claimant’s dignity was violated or whether a hostile, degrading, humiliating or offensive environment was created: “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.” Pemberton v Inwood

[2018] EWCA Civ 564

. Underhill J ''In order to decide whether any conduct falling within sub-paragraph (1)(a) of section 26 EqA has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section 4(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section 4(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also take into account all the other circumstances (subsection 4(b)). 18. The relevant authorities which we have considered on the direct discrimination and victimisation claims are as follows: Burrett v West Birmingham Health Authority

1994 IRLR 7

, EAT is an example of the proposition that it is for the tribunal to decide as a matter of fact what is less favourable treatment and the test posed by the legislation is an objective one. The fact that a claimant believes that he or she has been treated less favourably does not of itself establish that there has been less favourable treatment, although the claimant’s perception of the effect of treatment is likely to be relevant as to whether, objectively, that treatment was less favourable. Anya v University of Oxford & Another

[2001] IRLR 377

- it is necessary for the employment tribunal to look beyond any act in question to the general background evidence in order to consider whether prohibited factors have played a part in the employer’s judgment. This is particularly so when establishing unconscious factors. Igen v Wong and Others

[2005] IRLR 258

The employment tribunal should go through a two-stage process, the first stage of which requires the claimant to prove facts which could establish that the respondent has committed an act of discrimination, after which, and only if the claimant has proved such facts, the respondent is required to establish on the balance of probabilities that it did not commit the unlawful act of discrimination. In concluding as to whether the claimant had established a prima facie case, the tribunal is to examine all the evidence provided by the respondent and the claimant. Madarrassy v Nomura International Ltd

2007 ICR 867

- the bare facts of the difference in protected characteristic and less favourable treatment is not “without more, sufficient material from which a tribunal could conclude, on balance of probabilities that the respondent” committed an act of unlawful discrimination”. There must be “something more”. Nagarajan v London Regional Transport

[1999] IRLR 572

, HL, -The crucial question in every case was, 'why the complainant received less favourable treatment … Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job?' Chief Constable of West Yorkshire Police v Khan

[2001] UKHL 48

[2001] IRLR 830

[2001] ICR 1065

, HL, - The test is what was the reason why the alleged discriminator acted as they did? What, consciously or unconsciously was their reason? Looked at as a question of causation ('but for …'), it was an objective test. The anti-discrimination legislation required something different; the test should be subjective: 'Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.' Bahl v Law Society

[2003] IRLR 640

– “where the alleged discriminator acts unreasonably then a tribunal will want to know why he has acted in that way. If he gives a non-discriminatory explanation which the tribunal considers to be honestly given, then that is likely to be a full answer to any discrimination claim. It need not be, because it is possible that he is subconsciously influenced by unlawful discriminatory considerations. But again, there should be proper evidence from which such an inference can be drawn. It cannot be enough merely that the victim is a member of a minority group. This would be to commit the error identified above in connection with the Zafar case: the inference of discrimination would be based on no more than the fact that others sometimes discriminate unlawfully against minority groups.” Amnesty International v Ahmed

[2009] IRLR 884

– comparison is not required in a complaint of victimisation but requires the Tribunal to answer the question of the ‘reason why’ which involves consideration of the mental processes (conscious or subconscious) to determine whether the protected act had any material influence on the detrimental treatment. It is not a ‘but for’ test and a Tribunal must focus on the ‘reason why’. This was found in Khan above but also emphasised in Dunn v Secretary of State for Justice

[2019] IRLR 298

at paragraph 44: ‘In the context of direct discrimination, if a claimant cannot show a discriminatory motivation on the part of a relevant decision-maker he or she can only satisfy the 'because of' requirement if the treatment in question is inherently discriminatory, typically as the result of the application of a criterion which necessarily treats (say) men and women differently. […] There is an analogy with the not uncommon case where an employee who raises a grievance about (say) sex discrimination which is then, for reasons unrelated to his or her gender, mishandled: the mishandling is not discriminatory simply because the grievance concerned discrimination.’ The claimant’s representative also referred the Tribunal to the case of Carozzi v University of Hertfordshire

[2024] EAT 169

. Conclusion 19. The issues between the parties which fell to be determined by the Tribunal were set out in the List of Issues. We have approached these in a different order, but set out our analysis and conclusion on each identified issue as follows: EqA, section 26: Harassment related to race. 20. C makes 9 separate complaints of harassment related to race. In order to determine these complaints, we need to decide whether he was subject to unwanted conduct of the type described; then determine whether the conduct was related to race. We were then required to consider whether the conduct had the purpose or effect of violating C’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him, having regard to: (a) the perception of C; (b) the other circumstances of the case; and (c) whether it is reasonable for the conduct to have that effect. We set out our conclusions on each matter below: Paragraph 7

a. On or about 24-25 October 2022, the Claimant was accused of working 13 days in a row Paragraph 7 d. The Claimant was investigated and retrained for simply imputing a wrong mode on the tachograph which other drivers do and get away as mere error. (date refer to Muller); 21. We refer to our findings of fact at paragraph 13.14 to 13.16. The facts behind this allegation are established to a degree in that R e mailed the agency that at the time engaged C and said that as C had worked 13 consecutive days and had not taken sufficient daily rest, that he would no longer be used by them. Ultimately this was resolved when further information and data was provided and the initial decision not to use C was overturned. However this conduct did occur and was clearly unwanted by C. 22. C has singularly failed to explain why he says this conduct is in any way related to his race. He acknowledged it was not an intentional racial attack (see paragraph 13.16). There is also no evidence that has been raised which suggests any relationship at all to race. We are satisfied that the e mail was sent by R’s Compliance Lead because the information he had indicated that C was in breach of the important European Tachograph legislation and the Working Time Regulations requirements (see paragraph 13.4). Therefore he contacted C’s employer at the time to confirm that R longer wished to use him. It was subsequently established that this information was not entirely correct, albeit there was still a breach. R then decided that despite this, they would continue with C’s engagement and that additional training would be offered to ensure he was aware of the requirements. We find nothing in this scenario that bears any relationship at all to C’s race and on this ground alone, these complaints must fail and are dismissed. 23. It was therefore not necessary for the Tribunal to go on to determine the remaining questions as to whether the conduct had the purpose of violating C’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment or if not whether it had that effect. However given our findings of fact and conclusions, it is clear the conduct did not have that intention. As to whether it had the required effect, this clearly caused C some concern (although we conclude this was rather the initial decision not to use him that was the problem rather than the accusation itself). However given all the other circumstances of the case and the fact that the matter was ultimately resolved in C’s favour, we would very much doubt whether it would have been reasonable for the conduct to have that effect in any event. 24. The allegations at paragraphs 7 a. and 7 d. are accordingly dismissed. Paragraph 7

b. Falsely accusing and investigating the Claimant for damaged mudguards which were caused by possible wear and tear (for date refer to Muller) 25. We refer to our findings of fact at paragraph 13.20 to 13.21. This allegation is not made out on the facts as pleaded as we were not satisfied that this issue being raised by R was in any way false or indeed were we able to conclude that the damage in question was caused by wear and tear at all. However it is clear that some limited action was taken following an incident C was involved in. An incident report was filled in and investigations ere carried out. C was offered additional training as a result. The Tribunal was prepared to accept that this was conduct that was unwanted by C and he objected to it (in hindsight if not at the time). 26. However once again, we conclude that the steps taken by R in relation to the mudguard incident and subsequent investigations had no relationship with race. We refer to our findings of fact at paragraph 13.12 and 13.17 above. Any incident or accident involving any driver has to be reported, recorded and addressed by R and it is clear from the records we saw that this was done without exception and had no connection with the race of the driver or race more generally. C had already been involved in 2 incidents by this time (see paragraphs 13.17 and 13.18). These were handled in a similar manner and C was offered training. This was a very reasonable response and indeed did not prevent C’s progression to direct employment shortly after. There is nothing to suggest that race played a part or was connected at all to what occurred. This allegation must fail on this ground alone. Again, the Tribunal did not need to determine the remaining questions as to whether the conduct had the purpose of violating C’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment or if not whether it had that effect. However given our findings of fact and conclusions, our conclusion would have been this conduct neither had the required intention nor effect. This complaint is dismissed. Paragraph 7

c. In or around January 2023, shouted at by R Owen for reversing on-site with the reverse alarm on for less than a second. (for date refer to Muller) 27. We refer to our findings of fact at paragraphs 13.23 and 13.24. This allegation is partly made out. Although we found that C’s reverse alarm was not on for ‘less than a second’ as alleged, RO did shout at C about this.

Conclusion

[28]We have gone on to consider whether RO shouting at C to turn off his reversing alarm was in any way related to race. We conclude that it clearly wasn’t. The background to the incident involving complaints being made in the past about excessive noise at night meant that R and its managers were particularly sensitive to noise at night. Drivers were instructed to turn off or deactivate their reversing alarms at night. C may well have simply forgotten to do this. This what caused RO to rush out and take action to avert the noise in this manner. We were satisfied that he was shouting to make himself heard to C who was manoeuvring his truck at the time with the reverse alarm going. That in our conclusion is the start and end of the matter and there is really nothing further to say or any evidence or fact upon which we could reach a conclusion that what RO was somehow related to race or motivated by C’s race. We also note that on others occasion RO had cause to take action when other drivers were doing exactly the same (see paragraphs 13.25 and 13.30). This was clearly not an isolated event nor was it particular to C or C’s race. C made repeated contention that other colleagues were not treated comparably but has failed to name a single example where this was the case. This complaint is based on pure assertion of a connection with race, and we were unable to conclude that this is made out.

[29]There was no requirement to decide the remaining questions as to whether the conduct had the purpose or effect of violating C’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. However given our findings of fact and conclusions, our conclusion would have been this conduct neither had the required intention nor effect. This complaint is dismissed. Paragraph 7 e. On 30th January 2023, he was pulled into the office as he was about to start his job by R Owen and asked straight away if he wanted someone to represent him Was this unwanted conduct?

[30]We refer to our findings of fact at paragraph 13.29 to 13.33. C was asked to attend a meeting by RO on this day although we find that RO did not ask C straight away if he wanted someone to represent him but asked C whether he wanted someone with him when C became agitated at the start of the discussion. The facts behind the complaint are made out in part.

[31]We were not satisfied that what occurred this day was related to race in any way at all. Our findings of fact were that C was invited to attend a meeting with RO at which he intended to remind C of his responsibility to conduct end of shift checks and informally note the discussion. This followed the matter having been raised with him by a driver who drove the vehicle on the shift after C who had noticed a defect. There appears to be nothing in any way unusual or out of place about this matter and we can find no basis at all to infer that this was related to race. C appears to be suggested that there was some sort of pattern developing where he and he alone was subject to excessive scrutiny for errors made and he therefore suggests his race played a part. In the first instance, C has really no established at all that he was subject to any excessive scrutiny at all. As we have already concluded, all drivers involved in incidents were picked up on this in some way or another (see paragraphs paragraph 13.12 and 13.17). C’s belief that he was in some way being targeted rests on pure assertion only and there is no evidence at all to suggest some sort of racial motivation to the way he was being managed, conscious or otherwise.

[32]The fact that this conduct was in no way related to race means this allegation must fail and we do not need to go on to consider whether the conduct had the required intention or effect. If we had done so, we would have concluded that RO clearly did not have the purpose of violating C’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him by inviting him to a meeting to remind him of his obligations to carry out end of shift checks. It is clear that C reacted very badly to this incident, but it is hard to see that even if what occurred had the required effect on C, that having this effect would have been reasonable taking into account all the other circumstances. C like other new drivers was relatively inexperienced and R was entitled to ensure that its processes and requirements were met. Reminding an employee to conduct end of shift checks when it appears this may have been missed was not in any way excessive or unreasonable. Paragraph 7 f. On 11th July 2023 incident of harassment and bullying by A Evans and A Jones when the Claimant was confined in a room against his will).

[33]We refer to our findings of fact at paragraphs 13.63 to 13.67. This allegation is not made out on the facts as pleaded. C was not confined in a room against his will, and we did not find that this incident was an incident that could be described as ‘harassment and bullying’. Our findings were that C was invited to a meeting firstly with the purpose of informing him what his duties were that evening. It is clear that events escalated and the meeting became heated but at no point was C ever prevented from leaving any room.

[34]Although we have concluded that the factual allegation behind this complaint did not occur, we have nonetheless considered whether any of the actions of either AE or AJ on this occasion were related to race. AJ was in attendance to give evidence, and it was not put to him that anything he did was caused by or in some how related to C’s race or race more generally. In fact, in his cross examination and closing submissions, C’s representative rowed back significantly and appeared to accept that AJ did not act with malintent at all and indeed described R’s managers who did attend to give evidence as “brilliant managers”. R points to the fact that AE did not attend to give evidence (although we accepted the explanation that he was no longer employed by R) and suggests that he somehow had some sort of hatred towards C. The Tribunal was simply unable to make that evidential leap to infer that AE was motivated by race in the way he acted. AE and AJ gave a very similar account of events that was more logical and plausible and described what should have been a fairly mundane discussion becoming extremely heated and difficult as C reacted badly and became very agitated and distressed. We can find nothing in the facts we have found that point to or lead us to infer that the events of 11 July 2023 were in any way connected to race. On this basis the complaint must fail and be

[35]On the remaining questions of whether what occurred had the proscribed purpose or effect, we did not need to address such matters. We would have concluded for similar reasons as above, that what AJ and AE did that day did not have the required purpose. Although C was clearly affected on the day and became distressed, it is difficult to see how in all the circumstances of the meeting and how it played out, this was a reasonable reaction to what was occurring. However on the grounds that this matter was in no way connected to race, this complaint must be Paragraph 7 g. In or around January 2023, shouting at the Claimant while he was jet washing his truck.

[36]We refer to our findings of fact at paragraph 13.25. The only finding we were able to make was that on one occasion C was shouted at by RO when C was jet washing his truck whilst not wearing goggles. Another possible jet washing incident we concluded was not made out. Therefore we were content that the facts behind the allegation are made out and we conclude that this amounted to unwanted conduct.

[37]However for very similar reasons as have been set out above in relation to other incidents, we can find nothing which points to this matter being related to or connected to race at all. C was jet washing his truck using noisy equipment at the time and RO needed to get his attention to remind him to wear protective goggles. This is why he ‘shouted’ or raised his voice in order to be heard. No further action was taken. C clearly should have been wearing protective PPE, and it was essential that RO alerted C to this to ensure that he immediately stopped what he was doing. We cannot see a possible racial element to this action at all. C seems to complain about being shouted at in public but again we have no evidence at all to suggest that anyone else who was in the same scenario would not have been treated identically. The ‘shouting’ in question was not using racial words and appeared to be nothing at all to do with C’s race. We were satisfied that had C been of a different race, the same action would have been taken. On this basis alone the claim fails and we do not need to go on to consider the remaining questions of purpose and effect. It is not even clear that this incident had the required effect, and it did not we conclude get anywhere close to having the required purpose. This complaint is dismissed. Paragraph 7 h. Some colleagues were instructed to be monitoring the Claimant, hanging around his truck when on break and always looking for the slightest opportunity to go and make up stories. Hence, more investigations and retraining will follow suit.

[38]We refer to our findings of fact at paragraph 13.22. The Tribunal was able to make a finding that on one occasion, on 31 December 2022, C was reported to a manager by JC in relation to the incident when a mudguard was damaged (see paragraph 13.20 above). However the allegation here is really rather different in nature and that is that C’s colleagues (unknown) were instructed by some managers of R (unknown) to deliberately monitor him and look for mistakes in order that he would get into trouble. There is simply no evidence at all to suggest that this occurred beyond C’s mere assertion. It is clear that other drivers were picked up on errors and mistakes and subjected to training (see paragraphs 13.12 and 13.17 above). It is hard for us to understand how C could have reached this conclusion as he had no knowledge really of what R was doing or what actions it was taking for other drivers. Therefore we conclude that this allegation is not made out on the underlying facts and is dismissed.

[39]It is not necessary to consider the remaining questions of whether the conduct was related to race and had the required purpose or effect. There is no evidence to suggest that the one incident in question where C was reported by a colleague was connected to race and we also had no evidence at all about the effect of this on C. In an environment where safety was paramount, we would have found it hard to conclude that reporting a colleague for an infringement spotted would amount to such conduct. This complaint is dismissed. Paragraph 7 i. Insist the Claimant use a defective truck to perform his contracted duties.

[40]We refer to our findings of fact at paragraphs 13.26-28 and 13.53-58. The essence of this complaint and the consistent argument raised by C in these proceedings is that he was deliberately allocated vehicles that were defective and this was done because of his race. In the first instance, we know that on 21 January 2023 C was allocated a truck that had to be defected because of it only driving in limp mode. In addition on 9 and 10 July 2023 C again completed a defect form in relation to vehicle EJZ. Therefore on 2 and possibly 3 occasions (as the defects reported by C on 10 July were not found to be defects at all), C was allocated a truck that had some defect in it. However on these occasions, quite the opposite occurred than what C in fact alleges as once the defect form was completed and submitted, he was not required to drive that truck and was indeed allocated a different one. The only occasion when R appears to have tried to ‘insist’ that C drive a particular vehicle that C was of the view was defective was on 11 July 2023 when he was again allocated the truck registered EJZ. Ultimately again C did not drive this. In any event we cannot conclude that the truck C was allocated on that occasion was indeed defective. It had been signed off by R’s garage technicians as roadworthy (see paragraph 13.57) and had been road tested by AJ before C arrived (see paragraph 13.58). We accept that C was unhappy with the truck (he did not like the steering and believed it was somehow letting in a draught), but we do not conclude that this meant the truck was defective and not fit for C to drive.

[41]Whilst this allegation about deliberately being allocated defective trucks featured heavily in the claim, there was really no evidence which supported it. This is not a complaint that features in C’s first grievance in January 2023 which is more about what C regarded then as excessive monitoring and investigation (see paragraph 13.35). Although pleaded in general terms the essence of this complaint in reality appears to be that C wanted to drive truck registered DUV (which he had driven on shifts involving CB) and was annoyed when he was not allocated this but given a different truck registered EJZ. This is an issue that appears to have come to a head in June and July 2023 with managers noting at the time that C was trying to dictate what vehicles he drove (see paragraph 13.53) and then the particular events of 9-11 July 2023 (see paragraphs 13.53- 13.61). There appear to have been very many other shifts worked by C where no issues at all arose. We note that R had tried the policy of allocating particular vehicles to particular drivers (see paragraph 13.8) and indeed this may have been in operation when C first became directly employed. However this was not continued with and certainly by June 2023 the policy was clearly that no driver had his or her own allocated vehicle (see paragraph 13.52). We accept that C may have perceived that he was not being given his preferred truck and this was some sort of slight, we could not find any basis for a conclusion that R was insisting on allocating defective trucks to C. This complaint fails on the facts.

[42]In any event, there is simply nothing in the detailed findings of fact we have made to suggest that the allocation of any particular vehicle was connected or related to his race or race more generally. The allocation of trucks was done primarily in accordance with business need (see paragraph 13.8). We were satisfied that C was allocated the truck that R had assessed was suitable and available for the run that he had been allocated to do that day. On 11 July 2023, a deliberate decision was made to allocate C vehicle registered EJZ as R did not want to set a precedent that if a driver makes a fuss about driving a particular truck, then it would not be allocated to them (see paragraph 13.58). This directly followed the events of the previous day when this is what (in effect) happened. Whilst this was a deliberate decision in relation to C, and C is a man of colour, there was nothing to suggest that this was related to or because of race. We were satisfied that this was entirely incidental and that race was not related to this or any other decision around truck allocation that we have made findings of fact upon. Upon this basis the complaint must fail.

[43]The Tribunal did not actively consider the remaining questions of whether the conduct was had the required purpose or effect, but in light of our conclusions already, we were satisfied that it could not have had the purpose. If it did have the effect, it would have been unreasonable for this to have been the case in all the circumstances. R was entitled to ask its drivers to take whichever vehicle had been allocated to them, provided it was in a roadworthy condition. On those occasions where defects were reported, these were acted upon and alternative vehicles provided. C’s refusal to drive this particular vehicle was clearly unreasonable in the circumstances. The claim for race related harassment is dismissed. EqA, section 13 direct race discrimination

[44]In order to decide the complaints of direct race discrimination, we had to determine whether the respondent subjected the claimant to the treatment complained of (which is set out at paragraphs 6 a. to j. of the List of Issues above and then go on to decide whether any of this was “less favourable treatment”, (i.e. did the respondent treat the claimant as alleged less favourably than it treated or would have treated others (“comparators”) in not materially different circumstances). C named four comparators Piorat (Peter), Lavante, Shane and another unnamed elderly driver. The Tribunal had to decide whether any such less favourable treatment was because of the claimant’s race or because of race more generally.

[45]We applied the two-stage burden of proof referred to above. We first considered whether the claimant had proved facts from which, if unexplained, we could conclude that the treatment was because of race. The next stage was to consider whether the respondent had proved that the treatment was in no sense whatsoever because of race. We have considered for each issue whether there was less favourable treatment and if so, what was the reason for the treatment in question. We set out below our conclusions on these matters for each allegation listed in the List of Issues above with reference to each paragraph number where the allegation is listed: Paragraph 6a. June 2023 Allocation of to the Claimant truck (FXA) that does not exist on site. Paragraph 6

b. June 2023 allocation of a new truck to the Claimant (DUV).

[46]We refer to our findings of fact at paragraph 13.52. We were satisfied that on at least one and possible more occasions, C was allocated the truck with registration FXA in June 2023. However when it became apparent that this truck was not available, he was allocated another truck with the registration DUV. C clarified that it was the initial allocation of truck registered FXA that was the complaint here and not having it replaced with DUV (which is what he wanted to occur). We have therefore gone on to consider whether this amounted to less favourable treatment of C when compared to any of his comparators, i.e. Piorat (Peter), Lavante, Shane and another unnamed elderly driver. There is no evidence at all to suggest that this is the case and indeed we heard no evidence at all about the allocation of vehicles to any of these named comparators during the hearing. No questions were asked by C’s representative about any of these comparators. Therefore we are unable to conclude that there was any less favourable treatment. We have for completeness considered whether a hypothetical comparator being a driver otherwise in the same circumstances as C but not of his race would have been treated differently. We conclude for similar reasons as set out above that this would not have been the case. In any event it is hard to truly identify the detriment here, given that once the issue with this truck was discovered, C was in fact allocated his preferred truck.

[47]There is no less favourable treatment, and C has adduced no evidence to suggest that any decision in relation to the allocation of this truck (which may have been taken by SJ) might have been because of race. The burden of proof does not shift to R to explain the treatment. Whatever occurred with the allocation of this particular vehicle (which was not on site), there is nothing to suggest that there was any deliberate or malicious motive for the decision to allocate this vehicle to C. These complaints of direct discrimination fail and are dismissed. Paragraph 6 c. Replacement of the truck allocated to the Claimant with a dilapidated truck (EJZ). Paragraph 6 d. 02 July 2023 Allocation of the same dilapidated truck (EJZ) with no headlights which the Claimant defected.

[48]We refer to our findings of fact at paragraph 13.53. C was allocated this vehicle on two occasions on (probably) 1 July and 2 July 2023. However, for the same reasons as are set out above in relation to allegation 6 a. and 6b... we conclude that there was no less favourable treatment when compared to any of his comparators, i.e. Piorat (Peter), Lavante, Shane and another unnamed elderly driver or indeed a hypothetical comparator. Similarly, the Tribunal had no evidence before it to suggest that whoever allocated this vehicle to C was in any way motivated by race. We do not know who made this decision. C did not put to any of the witnesses that did attend that R’s decisions to allocate trucks were motivated by race. The burden of proof does not shift to R to explain the treatment. We conclude that the decisions to allocate C this vehicle on 1 and 2 July 2023 were not because of race and this complaint is dismissed. Paragraph 6 e. 09 July 2023 Allocation of the same defective Truck (EJZ) to the Claimant

[49]Our findings of fact on this matter are at paragraphs 13.56 to 13.57. Firstly, we were not satisfied that the vehicle in question was defective on 9 July 2023. C completed a defect form for the vehicle, but when this was checked, there was found to be no issue with the vehicle. We accepted that C’s objections to the steering on this vehicle was not an issue of defect but rather of personal preference and the issue raised about the windshield was not found to be a defect by R’s garage technicians or by AJ (see paragraph 13.57). We again considered whether the decision to allocate this vehicle to C was in any way less favourable treatment and for precisely the same reasons as set out for the similar allegations at allegations 6 a, b, c. and d, we conclude that it was not. We also conclude for very similar reasons that the decision to allocate this vehicle to C was not because of his race. By this time, R’s managers were clearly getting frustrated with C raising what they believed to be invalid objections to driving the vehicle allocated to him. We know that on the next time it was allocated to C on 10 July 2023, one reason for this was to make sure C was not allowed to direct which vehicle he drove (see paragraph 13.58). This is likely to have played a part in the decision to give C this truck on 9 July as well. However we were entirely satisfied that C’s race played no part in this decision at all. We were satisfied that in the same circumstances that had occurred over the previous days, any other driver not of C’s race would have been treated the same. This was not less favourable treatment was not because of race. This complaint is Paragraph 6 f. The Claimant always have to complain before he will be given the right equipment to perform his duties.

[50]This complaint has not been particularised further and is general in nature. The Tribunal understands it to be the same nature of complaint as others in that C believes he is given defective vehicles deliberately and has to raise this in order to be given a non defective vehicle. For similar reasons as are already outlined, this claim is not made out on the facts. R had a very clear process by which its drivers reported defects they found with vehicles. Some could be addressed easily (such as the bulb replacement required on 2/3 July 2023 (see paragraph 13.53). Some presumably required further work. However there is no evidence to suggest that the way this process operated in relation to C was any different or less favourably at all to any other driver, actual or hypothetical. This claim for direct race discrimination fails on all bases and is dismissed. Paragraph 6 g. 10th July 2023 The Claimant felt dejected and humiliated when the keys to the same non-compliant truck were thrown at him after refusing to drive on it because of the defects

[51]We refer to our findings at paragraph 13.58. The keys were not thrown at C. C was handed the keys to the truck in question along with the trip sheet. This allegation fails on the facts and in any event, there is no evidence at all (and it was not even put to AJ) that the way he handed C the keys to this vehicle was because of his race. This complaint fails on all bases and is dismissed. Paragraph 6 h. on 9 11 July 2023 while The Claimant was having a panic attack whilst he was being harassed by Andy and Alex, he ran to the manager’s office for help but was pushed out by his assailants

[52]Our findings of fact about this alleged incident are at paragraphs 13.63 to 13.67. We did not find that C was in any way being harassed on this occasion. C did enter PB’s office after he had initially left the meeting room, but we did not find that C was pushed out of this office or in any way physically touched during the entire altercation. C’s account of what occurred on this date was exaggerated and embellished and we did not find it a credible or reliable account of events. This allegation fails on the facts; there was also no relationship to race or racial motivation to anything that took place and this complaint is dismissed. Paragraph 6 i. Simple errors like omitting to write a colleague’s name whilst filling out the paperwork would lead to investigation and retraining. (for date refer to Muller)

[53]C provided no account of what it was he is actually complaining about here in his witness statement or in oral evidence. We are unable to make any finding of fact or conclusion that this occurred or if it did was less favourable treatment on the grounds of race. This complaint is not well founded and is dismissed. Paragraph 6 j. The Claimant’s dismissal on 27 July 2023 was also discriminatory. Terminating the Claimant’s employment for false reasons. The Respondent say the reason for termination was due to poor performance.

[54]We refer to our findings of fact at paragraph 13.76 to 13.78. C was dismissed and this was clearly detrimental treatment. We have therefore gone on to consider whether this amounted to less favourable treatment of C when compared to any of his comparators, i.e. Piorat (Peter), Lavante, Shane and another unnamed elderly driver. Whilst we heard no evidence about decisions in relation to these drivers, we have assumed for the purposes of this allegation that such drivers were not dismissed or did not fail their probation. However it is still difficult to draw any conclusions on comparison, given that we know nothing at all about the circumstances of any of these drivers and whether they and C are really in materially the same circumstances save for race. Nonetheless we have considered whether the decision to dismiss C and to fail his probationary period was because of C’s race. We conclude that it was not because:54.1 We accepted the entirely convincing evidence of CB as to why she took the decision to terminate C’s probationary period and his employment. CB came across as a very fair and reasonable manager and indeed C praised her consistently as treating him well. There had been a number of issues with C’s performance during his probationary period, some of them relatively minor, but in April 2023, a more serious event occurred when C was involved in the Suzie lines incident (see paragraph 13.40). This led to his probationary period being extended (see paragraph 13.45). This also led to a disciplinary investigation process being started (see paragraph 13.43) although this was abandoned by R due to time having elapsed since the incident (see paragraphs 13.49 and 13.75). It appeared that R was of the view that C’s driving had improved since then and as of 4 July 2023, CB at least was prepared to confirm that C had passed his probation review and retain him in employment (see paragraph 13.55). This does not suggest she had discriminatory motives at all in relation to C.

54.2 C never put to her that her decision was racially motivated (despite being professionally represented) and it was left to the Tribunal to formally put this to CB. We accepted her very clear denial that race played any part in her decision making.

54.3 We were entirely satisfied that it was the events of 9, 10 and 11 July however that ultimately led to the decision to terminate C’s employment. C’s managers were already reporting issues relating to C being difficult to manage and trying to “dictate which vehicles he is prepared to drive” on 3 July 2023 (see paragraph 13.54). On 9 July 2023, a dispute arose with vehicle allocation (see paragraph 13.57) and again on 10 July 2023 which led to C ultimately being sent home and not being able to complete his shift (see paragraphs 13.58 to 13.61). On this day C refused to deal with his shift manager and drive the truck allocated to him. It is very telling that after this incident AE e mailed PB in very strong terms with his views on C and whether he should continue to be employed (see paragraph 13.62). It is hard to see how C could have potentially come back from this situation even then. On 11 July 2023 events escalated even further, and C was again sent home after a very difficult incident (see paragraphs 13.63- 13.67). We entirely accepted the explanation of CB that she felt she had no option but to end C’s employment given that his ability to get on with others was irreconcilable and refusal to deal with managers was a conduct issue. Her scores during the review exercise accurately reflect the difficulties that had arisen (see paragraph 13.76). The situation had changed significantly since the initial probation review where C had his probation period extended (see paragraph 13.45). At that stage, the focus was on performance concerns, and the decision was to extend probation. At the second probation review meeting, the focus was clearly on C’s conduct and given his ratings of ‘Poor’ for General style and approach; Performance; Attitude towards work and colleagues and Relationship with others, it appears that dismissal was a fair outcome.

54.4 On previous occasions, R had been prepared to give C a ‘second chance’ and overlook issues that had arisen. His tachograph infringements whilst initially raised, were ultimately overlooked and C was retained as an agency worker. There were at least two incidents during this period of agency work that could perhaps have led R to decide not to employ C, but they chose to employ him. This does not suggest or intimate a discriminatory motive in relation to C and his ongoing employment.

[55]For these reasons, we conclude that C has not adduced evidence to suggest that the decision to terminate his employment which would pass the burden of proof to R. Even if the burden had passed, R would have entirely satisfied that by its cogent and clear explanation as to why C was dismissed. C was not dismissed because of race, and his allegation of direct race discrimination is dismissed. Victimisation complaints (s.27 EqA).

[56]The claimant relies on two matters which were said to be protected acts (‘PAs’) and R did not concede that any such acts were PAs within the meaning of section 27 (2) EqA (Paragraph 3). We firstly set out our conclusions on each of the matters relied upon said to be a PA: Paragraph 13 a. raising a grievance to his line manager on 31 January 2023 (PA1’)

[57]We refer to our findings of fact at paragraph 13.35. R contends that this grievance cannot be a protected act, as although it includes the word ‘discrimination’, there was no reference to race discrimination in it and C failed to anchor the generalised allegation to any state of affairs. Whilst it is clear that no clear and specific allegation of race discrimination is made in this grievance nor is race mentioned at all, we were just about satisfied that the use of the word discrimination in the same document where he makes allegations about unfair and inconsistent treatment and bullying in relation to factual events, is sufficient to amount to a protected act as defined by section 27 (2) (d) EqA, namely that there has been a contravention of EqA. Therefore we concluded that the grievance raised on 31 January 2023 was a protected act. Paragraph 13 b. raising a grievance to HR on or around 12 July 2023 (PA2’)

[58]We refer to our findings of fact at paragraph 13.70. R makes similar submissions to dispute that this meets the definition of a protected act, but the Tribunal were satisfied that there was sufficient information in this document to amount to the making of an allegation that someone has contravened the EqA. He mentions harassment and indeed mentioned EqA by name as well as referencing Dignity at Work policies. He refers back to his earlier grievance and alleges (although not in terms) that victimisation has occurred. He also gives factual detail. The 13 July 2023 was a protected act. Detriments

[59]For each detriment relied upon we had to determine whether R subjected C to the detriment complained of (which is set out at paragraphs 14a. to f. of the List of Issues above) and then go on to decide whether any of this was because of either PA1 or PA2. Whilst unlike direct discrimination, no comparison is required, the provisions on the twostage burden of proof set out at Section 136 EqA apply in victimisation cases. Once a claimant establishes a prima facie case of victimisation, the burden of proof shifts to the respondent to show that the contravention did not occur. To discharge the burden of proof, there must be cogent evidence that the treatment was in ‘no sense whatsoever’ because of the protected act. We set out below our conclusions on these matters for each allegation listed in the List of Issues with reference to each paragraph number whether the allegation is listed: Paragraph 14 a. Regular bullying, investigation and retraining of the Claimant, namely: Paragraph 14

b. The incidents of investigation set out under the Direct Discrimination claim above

[60]At the conclusion of the evidence and submissions, it was unclear what such ‘incidents of investigation’ were being referred to here. The only allegation relating to an investigation as such is the one made at paragraph 6 i. Our conclusion on the above as made as a direct discrimination complaint was that this had not been established on the facts. However giving the most generous interpretation to the pleadings and list of issues, we have considered allegations 6 a. to 6 h. as also being made as allegations of victimisation and so have considered whether any of those were because of C having raised either PA1 or PA2.

[61]Firstly none of the incidents that occurred in June 2023 and between 1 and 11 July 2023 could possibly have been because of PA2 as this occurred on 12 July 2023. The only PA that is potentially in play is PA1 which was the grievance raised on 31 January 2023. The Tribunal has therefore considered whether PA2 was the reason why the various incidents set out at 6 a. to h. occurred.

[62]Allegations 6a. and

b. are about the allocation of truck FXA. C contends this decision was made by SJ who was the nights co-ordinator on shift. Firstly there is no evidence to suggest that SJ was aware of the grievance that C submitted in January 2023. This was sent to CB who passed it to BC to investigate. RO was aware of this as CB informed him of the grievance being submitted on 1 February 2023 along with members of HR (ET and CJ) - see paragraph 13.36. During the initial investigatory meeting that BC held with C on 16 February 2023, C confirmed to BC that his grievance was made against RO, MY and SJ (see paragraph 13.38). However ultimately this grievance was not concluded further by BC at all due to his unexpected departure from employment in April 2023 (see paragraph 13.50). There was a suggestion that BC had carried out investigatory meetings with RO and MY but there is no mention of a meeting with SJ. It is really only speculation as to whether SJ had any knowledge at all about PA1.

[63]In any event, we entirely accepted the submissions of R that C had adduced no evidence as to why he believed that SJ had deliberately allocated a non-existent vehicle to him because of a grievance raised back in January that had gone no further. We accepted that this was an incident that happened once (twice at most) and as soon as it was raised with CB, C was allocated a different truck, and nothing further occurred. We accept the submission that the most likely explanation for the initial allocation of a truck not actually on site was an error and due to miscommunication. We were not satisfied that C had adduced sufficient evidence to suggest victimisation to shift the burden of proof. We conclude that the allegations at 6 a. and 6b. were not because of PA1 and the complaints of victimisation are dismissed.

[64]In relation to allegations 6 c, d, e and f, these all relate to the decision to allocate truck registered EJZ to C. It is not clear who C alleges is responsible for the initial allocation of the vehicle to him on 1 and 2 July 2023 but it seems that the allocation on 9 and 10 July 2023 at least seems to have involved decisions of AE and AJ. Once again there is no evidence that either of them knew of C’s grievance in January 2023. AJ gave evidence and it was not put to him that he either knew or the grievance nor that it affected his decision making. However by this stage it had been noted that C had started to refuse to take vehicles out he was unhappy with (see paragraph 13.54). On 10 July 2023, at least part of the reason C was allocated the vehicle was because R did not want to set a precedent of drivers objecting to vehicles and then being given a different vehicle. None of this appears to this Tribunal to point in any way back to C’s earlier grievance which was raised against completely different managers. The Tribunal is not satisfied that any of these matters were because of PA1.

[65]In relation to allegations 6 f, g, h and i these were primarily found not to have been made out on the facts underlying the allegation. For similar reasons, the Tribunal was not satisfied that the allegations occurred as alleged and, in any event, C has adduced no evidence to suggest that what did occur is linked or connected in any way to PA1. The burden of proof is not shifted and the allegations of victimisation included as allegations 14 a and b are dismissed. Paragraph 14 c. In or around December 2022, subjecting the Claimant to unnecessary re-training after he input a wrong mode on the tachograph.

[66]C has not established in sufficient detail what this allegation is said to relate to and led no evidence about what is said to have occurred. However in any event, this alleged incident which is said to have occurred in December 2022 cannot have been because of PA1 or PA2 which took place in January and July 2023 respectively. The alleged detriment was before the alleged protected act. On this basis the complaint has to be dismissed. Paragraph 14 d. Being regularly allocated poor equipment to perform his contract.

[67]This is another non specific allegation but amounts to the same type of allegation as is made in relation to the direct discrimination complaints at paragraphs 6 c to f and 7 i of the List of Issues. For broadly the same reasons as are set out in detail above, this allegation of being deliberately allocated defective vehicles has not been established by C. All such incidents were before PA2 so this cannot have been the reason. C has not adduced any evidence to suggest that the allocation of trucks was because of his grievance in January 2023 (PA1). This allegation fails on the facts and because C has not been able to shift the burden of proof to R. C was not allocated equipment because of any protected act and this allegation of victimisation is dismissed. Paragraph 14 e. Termination of his employment on 27 July 2023.

[68]C contends that R decided to end his employment because he had raised two grievances (PA1 and PA2). Both PA1 and PA2 occurred before the date of dismissal on 27 July 2023 and CB who made the decision to dismiss C was aware of both PA1 and PA2. However we conclude that C has not shown that either PA1 or PA2 was the reason for his dismissal. We conclude this firstly for the very same reasons as set out at paragraph 54 above in relation to this complaint as pleaded as a race discrimination complaint. We were ultimately satisfied with the explanation given by CB as to why she felt she had to end C’s employment by not confirming his probationary period. The Tribunal accepted her evidence that she was not in any way influenced by either of the grievances submitted by C. We also accept the submissions of R that in relation to PA1, this grievance was as far as both C and indeed CB were concerned had been resolved. There is really nothing to explain why this would at this point lead her to conclude that C’s employment must be terminated.

[69]Significantly we also conclude that in reality the likelihood of C failing his probationary period and being dismissed was already very high before PA 2 occurred. We refer to our findings of fact at paragraph 13.62 and the very strong view expressed by AE that he did not see how C could continue to be productively employed describing him as “the single most unmanageable employee I have ever encountered” and his concern that C would continue to raise complaints and were motivated by a desire to achieve a pay out. C had already been invited to a meeting to discuss his probation review before PA2 (see paragraph 13.68), and this had already intimated that termination of employment was a possibility. We accept the submissions of R that it was this letter that may well have prompted C to raise his grievance. There is specific reference to the later grievance having to take priority above the probation review already planned and C was at this stage raising the possibility of Tribunal proceedings (paragraph 13.70). We accepted CB’s evidence that given his conduct over the events of 9 to 11 July 2023, she felt she had not alternative but to dismiss C. This was not related or because of PA1 or PA2 and this complaint of victimisation is dismissed. Paragraph 14 f Arrears of pay.

[70]We refer to our findings of fact at paragraph 13.81 that no sums of pay were owing to C after 21 September 2023 when he was paid his outstanding notice pay. There is no basis on which the Tribunal could conclude any other sums were due. The complaint that seemed to be made in submissions was that it was the delay to the payment of this notice pay to C that was being claimed as a detriment and an act of victimisation. The Tribunal accepts that a delay in payment of monies owed even for a short period of time is detrimental treatment. However C has raised no evidence at all to suggest that this delay was caused by either PA1 or PA2. This was never put to any witness before the Tribunal and C had no basis on which this could really be alleged or supported other than his bare assertion. The burden of proof does not therefore pass to R to explain the reason for the delay. This allegation of victimisation fails and is dismissed. Detriment as a result of Protected Disclosures Disclosures

[71]In relation to the two relied upon by C these were both made to R, being C’s employer for the purpose of s. 43(C)(1)(a) ERA. Therefore, in each case, if the disclosure was a qualifying disclosure, it was a protected disclosure.

[72]To determine whether each disclosure was a qualifying disclosure, the Tribunal was required to determine in the case of each disclosure relied upon: What was said or written to whom and when?132.1 Did C believe the disclosure of information was made in the public

132.2 Was that belief reasonable?

132.3 Did C believe it tended to show (as applicable) that:132.3.1 Section 43B (1) (a) a criminal offence had been, was being or was likely to be committed.

132.3.2 Section 43B (1) (b) - that a person had failed, was failing or was likely to fail to comply with any legal obligation?

132.3.3 Section 43B (1) (d) - that the health or safety of any individual had been, was being or was likely to be endangered?

132.3.4 Section 43B (1) (f) - that information tending to show any such matter has been, or is likely to be deliberately concealed?

132.4 Was that belief reasonable?

[133]In relation to each alleged disclosure relied upon we set out our conclusions on the disputed matters as follows: Paragraph 16 a. i. raising a grievance to his line manager on 31 January 2023

[134]We refer to our findings of fact at paragraph 13.35. The Tribunal is satisfied that information was disclosed in the grievance submitted as C set out a number of incidents which he alleged had occurred including the various incidents of alleged investigations, monitoring and unfair treatment that occurred prior to January 2023. Did C believe the disclosure of information was made in the public

[135]The Tribunal concludes that there is no evidence at all to suggest that C believed he was raising matters in the public interest when he submitted his grievance in January 2023. This is a grievance that raises matters related to his own employment only and the fact that he felt he was being bullied and treated unfairly. C gives no evidence that he felt this was a matter of public interest and we conclude that this was simply not something in his mind at all when raising his grievance. On this basis alone, the grievance submitted on 31 January 2023 is not a protected disclosure. As C did not believe that the disclosure of information was made in the public interest, we do not need to consider the reasonableness of such a belief. For completeness, we also conclude that C did not believe that what he included in his grievance of January 2023 tended to show that a criminal offence had been, was being or was likely to be committed; that a person had failed, was failing or was likely to fail to comply with any legal obligation; that the health or safety of any individual had been, was being or was likely to be endangered or that information tending to show any such matter has been, or is likely to be deliberately concealed. The only evidence he gave relates to his feeling that the matters were causing him anxiety and this could lead to accidents whilst driving. However, we were not satisfied that this was in the mind of C at the time he submitted the grievance. He is rather looking back at the document and trying to contrive matters there which could somehow fit into the categories of wrongdoing required. We therefore do not need to consider whether any such belief was reasonable (as it was never held).

[136]C did not make a protected disclosure when he raised his grievance on 31 January 2023. Paragraph 16 a ii. raising a grievance to HR on or around 12 July 2023.

[137]We refer to our findings of fact at paragraph 13.70 above. We were satisfied that information was disclosed in this grievance as a number of incidents are set out in the grievance with C alleging that these were unfair treatment, bullying, intimidation and harassment. Did C believe the disclosure of information was made in the public

[138]We conclude that C did not, however, believe that the contents of his grievance was a disclosure of information made in the public interest. This is clearly a personal complaint raised about the way C felt he was being treated predominantly relating to the allocation of vehicles. He focuses at all times in this grievance on what has been done in relation to him and the effect on him. There is no reference to any aspect of these complaints impacting or affecting anyone else at all, let alone the wider ‘public’ interest. As there was no belief in the public interest, we did not need to go on and consider the reasonableness of such belief.

[139]The Tribunal also concluded that C did not believe that anything set out in his grievance submitted in July 2023 tended to show that a criminal offence had been, was being or was likely to be committed; that a person had failed, was failing or was likely to fail to comply with any legal obligation; that the health or safety of any individual had been, was being or was likely to be endangered or that information tending to show any such matter has been, or is likely to be deliberately concealed. C tried to reframe this grievance in retrospect as raising issues of health and safety and possibly criminal acts related to the allocation of defective vehicles. However, no evidence was particularly addressed as to this being a belief C held at the time, and we found that no such matters were in C’s mind at the time his grievance was raised. As there was no such belief in any of the matters of wrongdoing pleaded, we did not need to go on to consider the reasonableness of this belief. We conclude that the grievance raised by C on 12 July 2023 did not amount to a protected disclosure.

[140]As C did not make the protected disclosures relied upon, it was not necessary for us to go on to consider whether he was subjected to any detriment as a result of doing so. Any such detrimental treatment cannot have been because of any protected disclosures as we have concluded they were not made. Therefore C’s complaint under section 48 ERA as set out at paragraph 17 is not well founded and are dismissed.

[141]Given that none of the complaints for direct discrimination, harassment or victimisation have succeeded, we do not need to go on to consider whether there was conduct extending over a period and if not, whether the claims were made within a further period that the Tribunal thinks is just and equitable. All the claims failed having been considered fully on their merits. In addition as none of the complaints for protected disclosure detriment have succeeded, the Tribunal also did not need to go on to consider the issues set out in section 48 (3) ERA as to whether any such act or failure is part of a series of similar acts or failures or whether it was not reasonably practicable for the claim to have been brought within 3 months of the last of those acts. All the claims also failed, having been considered fully on their merits.