Mr I Ion v Citu Manufacturing Ltd and Mr C Thompson: 1804655/2020
EMPLOYMENT TRIBUNALS
Case No 1804655/2020
Between
Mr I IonClaimantCitu Manufacturing Ltd and Mr C ThompsonRespondent
Before
Employment Judge LancasterMs A-I Nafornita for claimantMr G Price (instructed by counsel) for respondentDate 17 May 2021
JUDGMENT
[1]It is declared that the complaint of unauthorised deductions from wages/breach of contract in respect of payment for all accrued holiday in lieu of weekend overtime worked but which was untaken at the date of termination is well-founded.[2]The First Respondent is ordered to pay compensation to the Claimant for the balance of holiday pay owed in the agreed sum of £492.28[3]All other claims against either Respondent are dismissed.
REASONS
There is no reasonable prospect of the original decision being varied or revoked, because[1]The full tribunal made the necessary findings of fact on the available and relevant evidence over a seven day hearing. The claimant was not prevented from giving evidence which was in fact relevant to the issues which the tribunal had to decide. Not all the matters he wished to raise were, however, material.[2]The fact that the claimant disagrees with those findings and does not himself accept that evidence, is not a ground for reconsideration.[3]The matters identified in the application are also not in fact directly material to the issues in the case, and would have made no difference to the decision reached.[4]The claimant was dismissed for redundancy. The respondents have not lied about the reason.[5]The decision to select the claimant for redundancy was ultimately taken by Mr Wilson in the circumstances set out in the reasons for the judgment. 11.6C Judgment – Reconsideration refused – claimant - rule 72 Case No: 1804655/2020[6]Whatever the precise terms of any alleged protected disclosure the claimant has not proved any link between such a disclosure (or disclosures) and the decision to select him for redundancy.[7]Contrary to what is set out in the application the finding of the tribunal was that he was disabled at all material times.[8]On the evidence, however, the respondents could not have reasonably known that he was placed at any substantial disadvantage in being required to lift plasterboard once the period of light duties following his return to work had ended. Nor on the evidence are any of the other claims of disability discrimination made out.[9]The tribunal did consider the potential issue of subconscious bias in selecting for redundancy for compliance with the company’s cultural values, which was a matter the Judge himself had raised, but accepted, taking into account all on the facts, the respondents’ evidence that the decision was on no grounds whatsoever because of race.[10]Whilst there were issues arising as to the manner the case was being interpreted, these appeared to have been resolved by consent. The issue only came to ahead when the claimant – who was standing up at the time - turned aggressively on the interpreter, who was sitting nearby, and shouted at her, so that she was understandably and visibly upset. Although the Judge was prepared to accept initially that this was not intentional on the part of the claimant, even after a short break to seek to diffuse the situation he refused to accept that his actions were inappropriate, and the interpreter was not able to continue. The case therefore, in these exceptional circumstances, had to be adjourned overnight for a replacement to be found, and he then conducted the remainder of the proceedings without incident. Philip Lancaster JUDGMENT having been sent to the parties on 19 May 2021 and written reasons having been requested by the claimant in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided taken from the transcript of the decision given orally immediately upon the conclusion of the case, and through the interpreter: We have reached a unanimous decision.[2]The issues in this case were identified at a preliminary hearing before Employment Judge Maidment on 13th October 2020. For convenience the relevant parts of the Order from that Hearing (but with new numbering of paragraphs), and which also sets out the legal framework of this case, are now reproduced as an endnote to this written decision.i[3]The claimant was undeniably dismissed as part of a wider redundancy process. The issues on the unfair dismissal calim ought to be accurately identified, therefore, as whether the claimant has proved that his selection for redundancy was for an automatically unfair reason. hat is a complaint under section 105 (6) of the Employment Rights Act 1996, rather than under section 103. Holiday pay[4]Firstly it is now agreed that the claimant is owed holiday pay. That is additional pay over and above his normal annual leave entitlement. Although it is not written in the contract it is accepted to be custom and practice that where employees worked weekend overtime they would get time off instead as additional holiday. That was calculated at time and a half for working Saturdays and double time for working Sundays.[5]It is clear from the evidence of Mr Palfreyman, who we note was a very clear witness who gave concise and accurate evidence and was fully conversant with the working practices, that weekend overtime was on the normal eight hour shift but operated on what is called “job and knock”. So that even if the full eight hours were not worked because the task was completed more quickly it would still count as a full day’s work. On that basis it has not been disputed that in 2020, before the start of lockdown, the claimant had worked two Saturdays and three Sundays.[6]That would have entitled him to nine days in lieu. That is because it is also clearly the custom that if there had not been the chance to take those additional holiday days the company would make a compensatory payment instead. In this case at the end of employment the company calculated that the claimant was owed 40 hours. That would be five days. In actual fact he was, as we say, entitled to nine days which is 72 hours. So he is entitled to the balance, to be agreed. The remaining claims[7]But it is our decision that that is the only part of this claim that does succeed. We understand that that is not the result the claimant would have wanted and he will no doubt be upset by our decision but we have announced it at the start of this Judgment and I still have to give the reasons, which I do as briefly as I can. The relevant facts[8]We would also like to say at this stage that we are very grateful to Miss Nafornita for the way she has helped the claimant in presenting this case. It cannot have been easy for her coming into a strange legal environment, where of course she also is emotionally invested in the outcome of this decision. And we are very thankful for the helpful way she has tried to assist us. But we of course have to make a decision based upon our findings of fact and the law. The relevant facts in this case are these: General background matters[9]The respondent company is a property developer and constructor. It operates under the tagline “accelerating the transition to zero carbon cities”. It also has a clear statement of company values that are consciously trying to change the model used by the construction industry. And in particular that means adopting a cooperative approach to team working.[10]The claimant is a qualified and experienced joiner. He started working for the respondent in 2018. He was then working through an agency and he has always worked at the respondent’s site in Leeds, a development called the Climate Innovation District (“CID”).[11]In December 2018 the claimant was made a permanent employee. When he was made an employee it was on a salary of £32,000 a year. The terms of employment do record that salaries will be reviewed on a periodic basis. In actual fact there has been no review of salaries in the last two years from the date of the claimant being employed. There is a flat rate across the teams who work on the construction sites. That means that nobody was paid more than the claimant unless they were a team leader. None of the employees therefore received a pay rise between December 2018 and May 2020 when the claimant was dismissed. The respondent did not operate a bonus or incentive scheme. Even if one of their teams or an individual employee was working faster or better, that would not and did not result in any pay increases. That fits with the respondent’s model of encouraging cooperative working across all its teams.[12]Also in the written terms of the contract it was stated that training would be provided. It is a fact that the claimant did not receive any training, but nor did he specifically ask to go on any particular course until January of 2020. The course he then requested was an NVQ level 3 in joinery. That is not a requirement of the company, and we accept the respondent’s evidence that up to that point in January 2020 they had not identified any need for the claimant to undergo any further training. The claimant’s early raising of concerns[13]Even before he was first employed we can see that the claimant prepared a document setting out his ideas to assist and progress the company, and it appears that that was gratefully received by those to whom he sent it. Within that document one of the points the claimant makes is that houses should be protected from rain because of the risk of rotting of the timbers. But that is the only document in the papers which records that particular concern (although some other issues regarding water on site were raised0. The claimant of course does say that he raised this verbally, but that is the only time it is there in writing.[14]The claimant says that he continued to raise concerns about the way the respondent conducted its business. Throughout the whole time he worked he was in a team led by Lee Burgin. That team was consistently high performing. In particular it would complete plots more quickly than other teams and within that team there is no real criticism at all of the claimant’s standard of work. But the claimant does say that he raised concerns with Mr Burgin about the playing of music on site and the claimant says he was particularly concerned about that because it would drown out the fire alarms.[15]Mr Burgin accepts that the playing of music was sometimes a concern for the claimant but on balance we are satisfied that this was a complaint because the claimant did not like to be distracted from his work, and in particular because of his difficulty in understanding English it was easier for him if there was not background noise. And that concern about the level of background noise affecting his understanding is something that appears in a recording of a meeting in around January of 2020 where the claimant makes specific reference to the music being on big volume “I can’t understand anything”. We do not accept that the claimant was making repeated complaints about interference with the fire alarms.[16]In early 2019, that is shortly after the claimant started work, there was a regrettable incident on site when an ambulance could not find the access. The postcode entered into the SatNav did not show the crew how to access the site. The claimant says he reported that concern to a manager who no longer works for the business. However it would have been apparent to anyone, as well as to the claimant, that there was a potential issue. We do not accept that the claimant repeated that complaint to Mr Burgin or to anybody else, nor that he gave any particular details of how it should be addressed.[17]Nor do we accept that the claimant was repeatedly complaining verbally about the water damage to exposed timbers. Again this would have been an ongoing problem with any building site so the claimant would have been of course aware that it was still potentially an issue and he was often looking to put forward suggestions for alternative ways of working. But we do not accept that the particular identification of mould as a problem was specifically raised or brought to anyone’s attention after that initial report of 2018, except in general discussion about potentially improved ways of working. The chronology leading to termination[18]So we come in the chronology to the key events of 2019 into 2020. On 10 November 2019 another member of the team Travis Carter was requested by Lee Burgin to attend the team manager meeting the next day Monday 11th. When the claimant learnt of that he put a crying face emoji on the work team’s group WhatsApp post. He now tells us that that was to indicate his being upset at Travis being chosen above him.[19]However Travis was the longest serving member of that team and he was also, according to Mr Palfreyman, recognised as the assistant to Mr Burgin. He was therefore the obvious person to step up if Mr Bergin could not attend the meeting himself. And we do know that there is further communication between the claimant and Mr Burgin at that time which is perfectly friendly and discloses no further upset.[20]The claimant says that around this time a comment was made to him that “we could not have a foreigner leading a team of Brits”. Although Mr Burgin denies that comment on balance we find it more likely that something of that nature was indeed said. However in the context it does not affect the decision to ask Mr Travis Carter to step up rather than the claimant.[21]The following day 11 November near to the end of the day the claimant was unwell and he did leave very slightly early and was then off the following day. At this point Mr Burgin was concerned that he had identified a possible pattern of sickness absences: that is that it appeared that the claimant on three occasions had taken time off when the team had finished its substantial work and was moving on to the more tedious tasks. Those tasks we note are not however properly described as “working on defects” That would be a specific occasion when the team was called back to remedy some fault. This loose terminology has led to some confusion on the part of the claimant, but it Is not material.[22]And so at the return to work meeting Mr Burgin raised this possible concern. The claimant took exception to this suggestion, The claimant did not agree with that possible analysis, and after discussion with a more senior manager, Mr McCargo, it was agreed than any reference to a pattern of absence would be removed from the return to work form.[23]Throughout the whole of this period the claimant had had a longstanding issue with sciatica. In December 2019 on the 8th he underwent emergency surgery to remedy a herniated disc. He was off work then until 20 January 2020. There was some confusion as to whether the claimant had provided appropriate sick notes or confirmed the length of his absence. This was dealt with again by Mr McCargo and there is no suggestion that the claimant was ever disciplined or criticised. From Mr Palfreyman’s evidence it emerged for the first time that during this absence period Lee Burgin had expressed to Mr Palfreyman some concern as to whether the claimant was becoming unreliable in his attendance. But again no action was taken in relation to that and it was not a matter which troubled Mr Palfreyman . Any such concern which was raise at this time may also relate back to the possible pattern of absences that had already been dealt with.[24]When the claimant returned to work on 20 January there was a return to work meeting with Mr Palfreyman and, although it does not appear there was a doctor’s fit note to this effect, it was agreed that the claimant would be on light duties for two weeks. His original six weeks’ sick note following the operation had of course run out by this time. As well as agreeing that there would be light duties monitored by Mr Burgin, the company agreed to continue employing an agency joiner for a further two weeks.[25]At that point it is quite clear that the claimant did not undertake all of his duties and in particular not all the heavy lifting.That is clear because of a dispute that arose between the claimant and Mr Carter. That resulted in the meeting that the claimant covertly recorded. Mr Carter clearly did not think that the claimant was (literally) pulling his weight. Mr Carter did not think that the claimant was doing as much work as he should do.To resolve that disagreement Mr Burgin arranged a meeting between the two of them and a manager, Dean and that was what was recorded.[26]In the course of that meeting it is quite clear from the transcript that Mr Burgin and Dean were actually supportive of the claimant. They told Mr Carter in no uncertain terms that he had to recognise that the claimant did indeed still have a bad back and would still be given assistance as necessary until that was resolved. And the reference to the belief that “anybody not wanting to work on that team should have been shown the gate” was in context in fact addressed to Mr Carter rather than to the claimant. Again this shows the company’s model was that there should be cooperation amongst the teams and that they should seek to resolve their differences. Beyond that period of light duties, which as we say was supported by Mr Burgin and Dean, the claimant appears to have been able to resume his full duties including lifting plasterboards. At a one to one meeting with Mr Burgin he said he was happy with coming back to work after surgery. The medical records from around this time also record successful surgery and that he has been by then pain free.[27]In that one to one meeting the claimant also said that he thought there should be a bonus or incentive scheme and he wanted a pay increase. And he further stated that he wanted then to go on the NVQ level 3 course with the company paying for it. Both those matters were then passed to Mr Palfreyman. There was correspondence between the claimant and Mr Palfreyman about his claim for a wage increase. Mr Palfreyman’s position is recorded as being that there could be no increase, certainly not in the current financial climate, unless the claimant was promoted to team leader.[28]There is no suggestion that the claimant would somehow have been prevented from promotion if there had been a vacancy. Although the claimant says he applied for two team leader posts at around this time, we do not understand that evidence because we prefer what Mr Palfreyman tells us and that is that there were in fact no such vacancies at all at this time.[29]Also in the course of that correspondence in seeking to justify a pay rise, the claimant told Mr Palfreyman on 19 February that he was able to do 50 square metres of plaster boarding and there is no suggestion that that was not something he was able to do at that time. Similarly in later correspondence on 5 April to Mr Thompson the managing director, the claimant said that since his return to work he had been doing 75% of the plaster boarding himself with no suggestion that he was physically unable to do so. Also as we have already referenced on the holiday pay claim the claimant was volunteering for weekend work at this time and in particular on 19 March he volunteered to work Saturday and Sunday specifically doing plaster boarding. The claimant’s physical condition at around this stage was therefore that he was apparently working quite normally, the surgery had been successful and was recorded in the medical notes as his being pain free so far as the herniated disc was concerned.[30]But the recorded medical issues were that he did have a developing numbness in his left foot and also had developed further pains in his right leg and buttocks, although it was hoped at that point that both those conditions would subside in a short time. And subsequently in October 2020 on a delayed re-appointment at the hospital the claimant told his physiotherapist that these problems of numbness and pain in his leg had been relatively minor and he had been able to treat them simply with Ibuprofen. Shortly after his employment ended the claimant developed spasms from around July 2020 and as of October he reattended the hospital physiotherapist and was referred for a further MRI scan. It identified that throughout this time he had developed further problems with discs that had not been operated upon.[31]After being back at work for some two months (including the time on restricted duties), the claimant was placed on furlough from 26 March. That is at the start of the first lockdown. Only a skeleton team was kept on at that point. It was clearly a selected team to reflect particular skills needed and we accept that the claimant in fact was given no say in the matter.[32]Shortly before he returned to work in January the claimant had again clearly been thinking about potential proposals for the business and he contacted Mr Thompson and there is an exchange of emails between them. Although it was initially suggested that the claimant wanted a formal meeting to discuss his plans, that meeting never in fact took place. There was only an informal brief discussion shortly after the return to work. We accept Mr Thompson’s recollection of that discussion that what principally stuck in his mind was the claimant’s proposal that they build in Harrogate more lucrative properties with swimming pools to make a more substantial profit and Mr Thompson clearly did not believe that that fitted the respondent’s aim of creating zero carbon neighbourhoods. We accept Mr Thompson’s evidence that he was not in fact shown any photographs at that meeting to record any complaints or concerns which the claimant had.[33]Shortly before he was placed on furlough on 16 March the claimant had identified, in a post on the company-wide platform, an apparent lack of cleansing facilities and tissues on site. That came to the attention of the director Mr Jonathan Wilson and he asked the claimant politely to remove that post. But the reason was not that he objected to the subject matter, and indeed Mr Wilson undertook himself the next day to meet with the claimant and to provide replacement cleansing materials. His concern that it was an inappropriate place to raise those matters and it could have been dealt with personally and by the claimant taking responsibility to try and source matters himself if needed. And indeed in the claimant’s evidence before us he appeared to accept that his main objective was to find a way of sourcing the provision of alternative materials. And as we have said Mr Wilson himself did that as indeed did another director in response to the post. Any concerns Mr Wilson had were clearly about the way the matter had been addressed rather than what was being raised.[34]When by arrangement Mr Wilson and the claimant did meet on 17 March, again we accept Mr Wilson’s recollection of the main thrust of that meeting. And that was that the claimant again raised his proposal of building more luxury properties in Harrogate. We accept Mr Wilson’s evidence that he was disappointed that this had been raised again because he knew from general discussion with Mr Thompson that this had already been brought up in January.[35]When the company was then operating with its skeleton team only a strategic decision was taken by Mr Thompson that there should be a reduction in staff numbers. As we have repeatedly said we are not concerned with the reasons why that decision was taken, though the respondents have outlined the economic factors and also that they appreciated during that first lockdown that they could work with much smaller teams. But once having made that strategic initial decision Mr Thompson was not actively involved with the process himself.[36]Whilst the claimant was on furlough he engaged in further correspondence with Mr Thompson and in particular he sent an email on 3 April. This, as was much of the claimant’s correspondence, was drafted by his partner whose English is much better than his and we acknowledge that there may have been some misunderstanding that arose because of that process. But the obvious reading of that email is that the claimant is running down the value and roles of others in the company and suggesting that he should be allowed to take charge of the CID site to impose his way of working and dismiss whoever he wanted to and that was with a view to his achieving profits for the company that would justify a £200,000 salary for himself in some six months. As the claimant well knew, because it had been openly communicated within in the company, no employee, including the directors was in receipt of a six figure salary. That clearly concerned Mr Thompson who thought that that was not in accordance with the objectives of a company nor its values of teamwork and he responded accordingly: and that resulted in further exchanges between him and the claimant. Those pieces of correspondence were passed on to Mr Wilson.[37]Moving on in the chronology Mr Wilson was then charged with effecting the redundancies across the construction force and he initially instructed Mr Waterton and Mr Palfreyman to review that situation. What he asked them to do was to identify employees who did not fit with the cultural values of the company or in particular those who did not have what is called “fire in the belly”. We accept that Mr Wilson did not himself at that stage make any suggestion that any particular person should be selected, and nor did he have in mind an actual number of redundancies to be made. Although there has been a suggestion that this may have been done on a team by team basis the process conducted by Mr Palfreyman and Mr Waterton was in fact to look across the entire construction workforce. They identified a potential shortlist of some seven or eight people in Leeds that included the claimant. It was accepted that Mr Palfreyman had limited personal dealings with the claimant at that stage but he had been aware of the claimant’s request for a pay increase despite the averred policy of having a single pay rate and he was also aware in the course of that exchange with the claimant that the claimant had taken the opportunity to run down another team, saying that they knew nothing about construction.[38]Mr Palfreyman then approached the team leaders including Mr Burgin. The question that was put to Mr Burgin was “is there anybody on your team who you could do without?” Mr Burgin was given no further guidance as to how he should make that assessment, but it was not of course a final decision by Mr Burgin. Looking at his team he identified the claimant as the person who could be dispensed with. That was because in that team there were two joiners. The other at that time was a Mr Lee Chilvers, but we accept Mr Burgin’s account that predominately what played on his mind in making that decision between the two of them was what he saw as a potentially disruptive attitude on the part of the claimant. That is that he would be in the habit of making comments about how his work was superior and how he deserved more money. And that is of course corroborated by the correspondence the claimant had with other people on similar lines.[39]The team leaders came up with a list of five people who they considered they could do without. That corresponded with five already on the provisional list of Mr Palfreyman and Mr Waterman. Of those five three were non-British nationals including the claimant and those five were put forwarded by Mr Waterton to Mr Wilson. Mr Waterton was required to justify the inclusion of those people as being at a potential risk of redundancy. We accept Mr Wilson’s recollection that the key point in relation to the claimant was indeed this perceived element of disruption and disquiet in the team. The ultimate decision was Mr Wilson’s but of course he relied on trust on what his manager said, Mr Wilson having in fact been in charge of operations for only a few weeks.[40]And so the claimant together with the other four on the Leeds site and five at Sheffield was informed verbally by Mr Waterton on 1 May that he was to be made redundant. There was no consultation as such. But there clearly were redundancies across the company, and indeed apart from those on the construction side there were redundancies in management, in administration and in the factory. The claimant then received confirmation in writing that he was being dismissed on economic grounds for redundancy. He immediately wrote protesting to Mr Thompson and Mr Thompson’s reply indicated that he simply accepted the decision taken on the ground and was not going to interfere. But that again confirms the view that it was not in fact Mr Thompson’s decision. He had delegated, and ultimately in consultation with others it was Mr Wilson who had the final say.[41]Subsequently three of the joiners who were to be retained gave their notice. So there were further vacancies for joiners, but even though that occurred whilst the claimant was still working his notice those positions were not offered to him as alternative employment.
Conclusions
[42]So, having set out in some detail the relevant factual matters which we have decided, the conclusion can in fact be stated quite shortly. Automatically unfair dismissal (section 105 Employment Rights Act 1996)[43]This is a claim of unfair dismissal. The claimant does not however have two years’ employment. To succeed in this claim therefore he must show that the principal reason why he was selected for redundancy was an automatically unfair reason. That is that he had made a protected qualifying disclosure. The respondent does not have to show that it was in fact a fair reason and it does not matter that they may have followed an unfair procedure.[44]Had the claimant had two years’ employment and had he been dismissed in these circumstances there is no doubt that it would have been unfair. The respondent did not carry out a proper selection process that could be objectively measured. They did not consult with the claimant, they did not give him suitable alternative employment when it became available. But as we say it is for the claimant to show that he was in fact chosen because of his disclosures and he has not been able to satisfy us that that is the case.[45]We have referred to the various alleged disclosures but there is no good evidence that they had any bearing on the decision that was taken in the way we have described it being taken. What comes throughout the whole of that decision making process is the fact that the respondent’s rely on their perception of the claimant being disruptive. That is because of the way he ran down other colleagues and sought to promote himself above the team ethos. That may not be a particularly good reason for selecting him but the claimant has not proved that it was not in fact the reason, let alone that the real reason was the making of any alleged disclosures. Disability (section 6 and schedule 1 Equality Act 2010)[46]So far as the disability discrimination claim is concerned, it is conceded the claimant was disabled up until December of 19/20. The issue is whether after his return on 20 January the claimant had ceased to experience any substantial effects on his normal day to day activities, and if he had whether nonetheless, they were likely to recur. On balance we are just persuaded that, in the sense that “it could well have happened”, it was likely that the claimant would have a recurrence of problems connected with his back and sciatica. That is because the operation was to deal specifically with an acute problem of one disc. Subsequent investigation revealed that there was a continuing problem in other areas and that will have been present even before it was fully diagnosed and explored. In the material period there was evidence of continuing unresolved problems with numbness and pain and difficulty in sitting or standing for a substantial period. Failure to make reasonable adjustments (sections 20 and 21 , and schedule 8 Equality Act 2010), disability related discrimination (section 15) and indirect discrimination (section 19)[47]But even if the claimant was disabled, as we find he was, that does not assist him. Any issues there may have been from the period before his operation are on the face of it clearly out of time, and that is not how the case has been presented: this has been a complaint about the events immediately leading to termination.. The complaint is of a failure to make reasonable adjustments, specifically that he should not after his return to work have been required to move heavy plasterboard. On his immediate return we are satisfied that he was not required to do that and thereafter he gave no indication that he was not able to resume his full duties. Therefore the respondent could not reasonably have known that he was disadvantaged in that respect. If the claimant was telling them that he could fit 50 square metres a day that he was doing 75% of the plaster boarding and that he was volunteering to do weekend work specifically on plaster boarding and certainly where he had no further sickness absences at this point the respondent could not be reasonably aware and was not on notice of any problems.[48]The claim of indirect discrimination does not add anything to the reasonable adjustments claim. Particularly the claimant has not proved that he was at any particular disadvantage in circumstances when he carried on working without any protest. Nor was the dismissal anything to do with something arising in consequence of a disability. Those things which arose are said to have been restrictions on carrying plasterboard and the claimant’s sickness absence and need to attend hospital. But as we have said there were in fact no apparent limitations on what the claimant was able to do at this time and he did not have any time off and had just one hospital appointment on 14 February which clearly did not cause any problem to the respondents. Direct race discrimination (sections 9, 13 and 39 Equality Act 2010).[49]The final claim is of race discrimination. The first allegation of less favourable treatment is not giving a pay rise as allegedly promised at the start of employment. The contractual term is for a pay review with no guarantee or promise and because none of the construction team received any raise in this relevant period there is no less favourable treatment.[50]The next allegation is of not being able to join a training programme as promised. And whilst it is right that the claimant was not placed on any training there are no facts from which we could conclude that that had anything to do with his nationality. Those who did undertake the NVQ level 3 before the claimant asked to go on the course were apprentices so they were not in materially the same situation as the claimant (section 23 Equality act 2010). And when the claimant did ask Mr Palfreyman his request was not simply dismissed. Mr Palfreyman did raise the question of whether this could in fact be funded.[51]The third allegation is not considering the claimant for the two team manager roles. As we have said we have not identified any roles that were in fact available. And similarly the claimant says he was not considered for a quantity surveyor role. Some time before March 2020 there clearly was an advert for a quantity surveyor although we do not have that document. But nobody was appointed at that stage and after a change in management there was still a vacancy and a recruitment was then dealt with by Mr Thompson. So on 17 May 2020 he provided the details to his recruitment agency and in due course somebody was appointed initially on a temporary basis and made permanent earlier this year. That role was clearly for a qualified quantity surveyor with experience. And the person who was appointed was of Polish extraction, had a professional qualification as a quantity surveyor and 20 years’ experience in such a role. The claimant did not have that qualification or experience so that is not a material comparison. And there are no facts from which could conclude that he did not get that post because he is Romanian (section 136 Equality act 2010)[52]The final allegation is of course that the claimant was dismissed because of his nationality. As we have expressed in the course of discussion and submissions it is potentially a concern when a respondent makes a decision based on compliance with cultural values. And as we have said the way that this redundancy was handled was in general terms unfair but, even if that were sufficient to pass the burden of proof to the respondent under section 136, we would in any event be perfectly satisfied that the real reason why the claimant was selected was indeed his perceived lack of compliance with the stated company values which are not tainted by discrimination. Those values are focused on teamwork and not doing down your colleagues and that is where the claimant was perceived to fall short.