Mr A N Bailey v Network Rail Infrastructure Ltd: 2213587/2023

EMPLOYMENT TRIBUNALS

Case No 2213587/2023

Between

Mr Ai Neville BaileyClaimant

Network Rail Infrastructure LimitedRespondent

Before

Employment Judge S Connolly

Mr Welch (instructed by Counsel) for respondent

Date 16 September 2025

REASONS

[1]A Preliminary Hearing took place on 15 March 2024. Among other things, the Tribunal decided that it did not have jurisdiction to hear the claimant’s unfair dismissal claim as it was not submitted within the timescales required by section 111 of the Employment Rights Act 1996.

[2]The claimant gave evidence before the Tribunal and submissions were made on behalf of both parties.

[3]The Tribunal gave oral reasons for the decision. The Judgment was sent by the Tribunal on 3 June 2024. The claimant made a request for written reasons in writing on 11 June 2024 and request this was shared with Employment Judge on 14 June 2024.

Law

[4]Section 111 of the Employment Rights Act 1996 make it clear that there is a three month time limit for bringing unfair dismissal claims and that this runs from the Effective Date of Termination, which is defined by section 97 of the Employment Rights Act 1996.

[5]Section 97(1)(b) of the Employment Rights Act 1996 provides that where a contract of employment is terminated without notice, the Effective Date of Termination is the date on which the termination takes effect.

[6]The Tribunal has discretion to extend time if it satisfied that it was not reasonably practicable for the claim to be brought in time.

[7]Section 207B of the Employment Rights Act 1996 (particularly section 207B (3) and 207B(4)) provides for the extension of time limits to facilitate ACAS Early conciliation before institution of proceedings. This provides that Day A is the day on which the prospective claimant contacts ACAS and Day B is the day on which the prospective claimant receives the Early Conciliation certificate from ACAS.

Findings of Fact

[8]The claimant contacted ACAS on 2 May 2023 (Day A) and the Early Conciliation certificate was issued on 4 May 2023 (Day B). The claimant’s ET1 was received by the Tribunal on 5 June 2023. It was submitted by post.

[9]There was some dispute on the Effective Date of Termination. The claimant was verbally dismissed on 7 February 2023. This was confirmed in writing dated 13 February 2023.The claimant accepted in cross examination that 7 February 2023 was the date he was dismissed.

[10]There was no copy of the contract of employment provided to the Tribunal.

[11]It is clear from the claimant’s evidence that he relied on Mr Fray to support him with the Tribunal process. This is not a criticism of the claimant. It is perfectly appropriate for him to engage an adviser to advise him and to rely on that advice.

[12]The claimant’s statement stated that part of the reason for his delay was delays in relation to internal processes. He said there were delays due to him having to challenge the minutes and chase the appeal. He also made reference to his union (RMT) and their legal team refusing to provide legal assistance.

[13]Mr Fray’s letter of advice to the claimant stated that the deadline for the ET1 was 6 June 2023. Mr Fray confirmed that the claimant was waiving any privilege that may attach to this letter. Submissions Claimant submissions

[14]The letter confirming the dismissal was dated 13 February 2023. This was the proper date of dismissal. All references to 7 February 2023 are irrelevant.

[15]Mr Fray confirmed he advised the claimant based on the Equality Act 2010.

[16]The RMT legal advice made reference to the date of one month after receipt of the ACAS Early Conciliation Certificate being the usual deadline for submission of an ET1.

[17]Calculation of time limits is not easy. Mr Fray has seen many people make errors. Mr Fray added that if he was incorrect, he apologises.

[18]Mr Fray submitted the ET1 by post as this was his preferred method.

[19]Mr Fray submitted that the Tribunal has the power to extend time on just and equitable grounds. Respondent submissions

[20]Mr Welch provided written submissions and made oral submissions before the Tribunal.

[21]The case of Dedman v British Building & Engineering Applicances

[1974] ICR 53

sets out a clear position in regard to this situation where skilled advisers are instructed. If Mr Fray missed the time limit, the claimant’ only remedy is against Mr Fray and This authority was approved in Marks and Spencer v Williams-Ryan

2005 ICR 1293

, CA .

[22]There are two relevant issues to be decided:a. Was Mr Fray a skilled adviser?

b. If so, was his mistake reasonable one?

[23]Mr Fray is a skilled adviser. The authorities demonstrate that there is a broad interpretation. This includes Citizens Advice Bureau, Trade Unions, Free Representation Unit, Professional Associations. Mr Fray and/or the Northampton Rights and Equality Council comfortably fit into this interpretation.

[24]Mr Fray is here today. He acts as an adviser and as an advocate. He should know how to look up time limits. He had the information he needed and could have done it. He could have used an online calculator. He didn’t do it property and this is not a reasonable mistake. The submissions highlight this as well as Mr Fray makes references to the wrong test for extension of time limits for Unfair Dismissal claims. Conclusions What was the Effective Date of Termination?

[25]The claimant accepted that 7 February 2023 was the date of communication of the dismissal. Therefore, based on the application of section 97(1)(b) of the Employment Rights Act 1996, this is the date on which termination takes effect. The Effective Date of Termination was 7 February 2023. What was the deadline for submission of the ET1?

[26]The application of section 207B(3) and (4) mean that the extension period for submitting the ET1 ended “one month after Day B”. This was 4 June 2023.

[27]The Tribunal notes that given the Early Conciliation Dates, the date of submission of the ET1 would have been the same whether the Effective Date of Termination was 7 February 2023 or 13 February 2023. Was the claim in time? Should time be extended?

[28]The Tribunal reviewed the submissions and case law, including those in relation to submission by post.

[29]Mr Fray sent the ET1 by post. Submitting online was available to him but post was his preferred method. No evidence was provided in relation to any significant postal delays or issues.

[30]A number of different reasons were mentioned by the claimant as relevant to the delay. These are addressed below. Internal Processes

[31]The claimant suggested there were some delays with internal processes.

[32]It is well established that Tribunal deadlines are strict and there is clear case law that the existence of an impending internal appeal was not in itself sufficient to justify a finding that it was not reasonably practicable to present a complaint to a tribunal within the time limit, and this view was expressly approved by the Court of Appeal in Palmer and anor v Southend-on-Sea Borough Council

1984 ICR 372

, CA.

[33]On this basis, the Tribunal does not accept that any delays in internal processes justifies the delay in submitting the ET1. Advice from Mr Fray

[34]Whilst the claimant mentioned several reasons for delay, including in relation to internal process and the RMT’s refusal to assist, the Tribunal finds that the main reason for the late submission of the claim was the advice from Mr Fray.

[35]This is reflected in the claimant’s evidence and the letter of advice from Mr Fray, which stated a deadline of 6 June 2023.

[36]Based on the broad definitions in the case law, the Tribunal has no hesitation in concluding that Mr Fray is a skilled adviser. Further, the Tribunal accepts the principle from Dedman case mentioned above. This establishes that if the reason for missed deadline is due to bad advice from a skilled adviser, then this does not mean it was not reasonably practicable to bring the claim in time. The remedy is against the adviser.

[37]The cases referred to by the respondent are valid. In Marks and Spencer plc v Williams-Ryan

2005 ICR 1293

, CA a thorough review of the relevant authorities was conducted.

[38]The Tribunal notes that there is some scope for an extension to be allowed where the Tribunal accepts that the error was a reasonable one (Northamptonshire County Council v Entwhistle

2010 IRLR 740

, EAT). The Tribunal considers that this is an exception and that would not apply to the current case. Whilst there may be complexity with time limits, it is a key element for an adviser advising on tribunal claims. The Tribunal does not consider an error in calculating limits to be a reasonable error. Summary of

Conclusions

[39]The deadline for submitting the ET1 was 4 June 2023. Mr Fray advised the claimant that the deadline was 6 June 2023. Mr Fray was a skilled adviser and the error was not a reasonable one. It was reasonably practicable for the unfair dismissal claim to be submitted on time but this did not happen. Therefore, the claim of unfair dismissal is struck out as out of time as the Tribunal has no jurisdiction to hear it.

Relevant Law

[40]The protected characteristic need not be the only reason for the less favourable treatment, or the main reason: London Borough of Islington v Ladele

[2009] IRLR 154

(EAT). The decision must be more than trivially influenced by the protected characteristic.

[41]The question of less favourable treatment can be intertwined with the reason for that treatment: the principal question is why was the claimant treated as he was? If there were discriminatory grounds for that treatment then there will ‘usually be no difficulty in deciding whether the treatment …was less favourable than was or would have been afforded to others.’ There is a single question: did the complainant, because of a protected characteristic, receive less favourable treatment than others’: Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

HL.

[42]Also, in Stockton on Tees Borough Council v Aylott

2010 ICR 1278

, CA, Lord Justice Mummery stated: ‘I think that the decision whether the claimant was treated less favourably than a hypothetical employee of the council is intertwined with identifying the ground on which the claimant was dismissed. If it was on the ground of disability, then it is likely that he was treated less favourably than the hypothetical comparator not having the particular disability would have been treated in the same relevant circumstances. The finding of the reason for his dismissal supplies the answer to the question whether he received less favourable treatment’.

[43]Where the question is addressed in this order the Tribunal need not necessarily identify the precise characteristics of the hypothetical comparator: Law Society and ors v Bahl

2003 IRLR 640

EAT.

Findings of fact

[44]There is no dispute about the authenticity of the documents. I make the following findings of fact on the basis of the documentary and witness evidence (including cross-examination). It is only necessary and proportionate to explain the basis for making findings where there was a dispute about the facts.

[45]In general, I found the respondent’s witnesses to be credible and reliable, and accepted their evidence. Where appropriate (and expected) it was supported by relevant documentary evidence. I found that much of the claimant’s evidence, however, was speculative or was his opinion on subjective matters. I also had some concerns about the reliability of the claimant’s evidence because his witness statement included that he was not aware of why he was stood down by Mr Kerr until he was called to an investigation meeting on the 11 January 2023. However, in fact an email sent from Mr Kerr to Mr Bailey on 26 October gave the reason and grounds for him being stood down. The claimant did not dispute the fact that the email was sent in his evidence. I did not consider the claimant’s explanation during his evidence for this discrepancy – that he did not recall the email, and he did not get a chance to read his emails - was compelling in all the circumstances. Moreover, the claimant’s evidence was also undermined to a limited degree by the invitation letter dated 15 December 2022 and 22 December 2022. Whilst this is only a small point, as to the date of investigation letters, it is consistent with the claimant’s poor memory of the relevant events, which to limited degree undermined any evidence he gave based on direct memory of events which was unsupported by clear documentary evidence.

[46]The claimant was employed as a Customer Service Assistant (‘CSA’) at the respondent between 3 September 2007 and 7 February 2023 when he was dismissed for reasons of conduct without notice. ACAS conciliation commenced on 2 May 2023 and concluded on 4 May 2023. The claim was presented on 5 June 2023.

[47]During the relevant period the claimant was seconded from the respondent (an operating company that owns, maintains and develops railway infrastructure), to Network Rail (High Speed) Limited as a CSA at St Pancras International train station. This role included the claimant being responsible for responding to customer service enquiries and carrying out security patrols around the station. Elements of the security patrols were covered by the Station Security Plan (‘SSP’).

[48]The claimant identifies as Black British Caribbean and is in his 50s. The claimant’s named comparator has been in the relevant role since 2019, and is a white female in her 40s.

[49]The claimant received refresher training about his security patrol zones at the station on 31 August 2022. This is supported by the documentary evidence including the slides about what was required during those patrols. The claimant also made concessions during the internal investigation/disciplinary process about what was expected of him.

[50]The claimant’s comparator did not join until 2019. She received some initial training but this appeared, on the basis of the documentary evidence and the understanding of the respondent’s witness Mr Lucas (who determined the claimant’s internal appeal) to be less formal training and more on the basis of a ‘buddy’ system. This is because this was what was clearly explained to him by Ms Vincer who determined the comparator’s disciplinary hearing. It was unclear whether the comparator was initially signed off as competent in the relevant skill area for conducting the patrols. However, the documentary evidence was consistent with her having been retrained after the relevant period and then signed off as competent. It was also not in dispute that the comparator did not attend the most recent relevant refresher training that the claimant had undertaken.

[51]The claimant was dismissed following an investigation and disciplinary procedure into his security patrol of a particular part of the station (a platform) between 19:00 and 19:30 on 23 October 2022. At the end of the patrol at around 19:27 the claimant stated words to the effect of ‘All appears to be in order’ on the radio such that other members of the station team recorded that there was nothing to report in a security log for that patrol.

[52]The relevant platform is in the region adjacent to the Eurostar international platforms and has a particular security significance for that reason.

[53]Patrols of the same area were later carried out by another CSA, the claimant’s named comparator (as set out in the list of issues).

[54]The claimant had several years of experience carrying out this particular type of patrol and around 15 years overall experience working for the respondent. On 31 August 2022 the claimant had attended refresher training which had specifically covered the requirements of the particular security check that the claimant was supposed to be doing on 23 October 2022 in that area. This training was a re-brief of all patrol zones including where things may be hidden. Although the claimant sought to suggest at one point of his evidence that there may not have been presentation slides, and the training was just a walk around, I reject this. I have seen the dated training slides as part of the Restricted Bundle. During the claimant’s internal investigation he stated that he in fact couldn’t recall the training, and with this poor memory he is not well placed to say that something did not in fact happen. In the circumstances, I find that the claimant was confusing his lack of distinct memory about the slides with positive evidence that they were not in fact shown. When the claimant’s evidence on this point was clarified, his evidence was that he did not recall. This is consistent with the slides being shown but the claimant simply not remembering. I also find that the training did happen in accordance with the respondent’s account because as part of the internal investigation Tracy Duffield provided a written statement which included that the training was part classroom-based with references to Powerpoint.

[55]An email reminder sent to the claimant on the day of the training stating the areas covered included that the patrol which included that doors should be secured and that he should not just walk the area, rather be actively applying security procedures. The claimant said that he did not read this email in evidence. I consider whether the claimant read this particular email is not relevant. This is because the content of the email suggests that the training included the content referred to in the email, and it was not disputed that the claimant had attended the training. It follows that a safe inference can be drawn that the training included those points outlined above.

[56]The evidence overall (and taken as a whole) did not suggest that the claimant had raised any real lack of understanding about the extent of his duties for this particular patrol during the refresher training.

[57]It was common ground that the station is a busy station and there was a risk of hostile actors planting small devices which could be explosives and that the Department for Transport planted dummy test packages as part of security testing. The claimant accepted in his evidence that his duties included carrying out security checks in accordance with the SSP and he had a degree of knowledge of the SSP. The claimant accepted in evidence the extent of what the SSP required him to search in the relevant zone. The claimant accepted in evidence that a CSA would walk the full length of the platform when carrying out the relevant check and would have to search areas of high risk and was under a duty to report anything out of the ordinary.

[58]There was an element of dispute about whether or not the claimant was required to physically pick up yellow water cones or could permissibly simply look inside them through a hole in the top. On balance, I preferred the respondent witnesses evidence on this point because the claimant’s belief (namely that simply looking in was sufficient) was not supported by cogent evidence and their evidence made more sense as a matter of logic given the need for security checks to be thorough and the obvious possibility of missing something if the cone was not lifted. I accept however that the claimant did hold a belief that simply looking into the cones was sufficient at the material time, in the absence of clear documentary evidence to the effect that this was not permissible.

[59]The claimant’s refresher training expressly warned that if a check was called (radioed) in which had not been completed as directed in the SSP then this may amount to falsification of records and they could be subject to disciplinary procedures. The training documentation shown to the claimant in his refresher training expressly included that the entire length of the platform should be covered and that it included checking the fire extinguisher cupboards.

[60]On 24 October 2022 it was discovered that a gate was open at the end of a platform (ie. which led to the tracks, as opposed to the station concourse) in the area the claimant had patrolled on 23 October 2022. An investigation into this was started by Alex Kerr, Shift Station Manager. The claimant and his comparator were stood down from security duties pending the outcome of the investigation. Mr Kerr submitted his request to view and download the CCTV footage of relevant areas of the platform on 5 November 2022, although he originally may have viewed the footage as live playback (as opposed to download) as part of his initial investigation on 24 October 2022. It was also clear that he viewed the CCTV as his initial investigation on 24 October 2022. The second authorisation in any event was required because there was no download from the first viewing. It was necessary to investigate because an open gate was both a safety and security risk, and Mr Kerr’s review was carried out to investigate why the gate was open, how long it had been left open for, and determine whether an trespass had taken place, accepting his clear oral evidence of this (which was not meaningfully undermined by anything else).

[61]I reject the claimant’s contention that Mr Kerr was fishing for evidence against him, or anyone. This is because this allegation is not supported by clear or cogent evidence.

[62]I find that Mr Kerr’s use of the CCTV was for the purposes of security and safety. This is because I accept Mr Kerr’s clear evidence about why he requested the CCTV and it is consistent with the documentary record of his request. It also follows as a matter of logic and common sense given his job and evidence. His oral evidence about the purpose of him accessing it was not meaningfully undermined by anything. It is obvious that an open gate (for a reasonably significant period of time before it had been discovered) at the non-public end of a platform adjacent to an international terminal is something that would warrant investigation both for the purposes of security and health and safety investigation.

[63]I find, because it was clear from the oral and documentary evidence, that Mr Kerr (and later Mr Khan), also accessed and downloaded the relevant CCTV for the claimant’s named comparator. Also, Mr Kerr accessed the CCTV in respect of another black male, who was also patrolling during the relevant times. This other black male did the patrol during the overall relevant timeframe but was not subject to an investigation. However, his situation was factually different to the claimant and the claimant’s comparator because it was apparent that this individual carried out a thorough check, he reached the gate and it appeared closed. I make this finding because I accept the clear evidence of Mr Kerr about the differences between the claimant’s observed conduct and this other individual. I find that this person is likely to have been dealt with informally by his line manager given Mr Kerr’s evidence on this issue, which was not meaningfully undermined by anything. The lack of documentary evidence about this individual is also consistent with an informal resolution having been carried out. This individual has recently retired and was in his 70s to 80s at the material time. I accept Mr Kerr’s clear evidence that the issue with this other individual was that the infringement was so minor that it did not require investigation in the same way as the claimant and the comparator, in terms of the factual circumstances. The respondent also dealt with two agency workers who were identified who had carried out a patrol during the period that the gate was open. They were removed from security work at the station on a permanent basis.

[64]Sami Khan was appointed the investigator into the claimant and the claimant’s comparator by Tracy Moore, Employee Relations Business Partner. The claimant objected to this in writing to Ms Moore but the objection was not upheld. The claimant’s objection was based on a prior incident, around 13 years before, between the claimant and Mr Khan during which Mr Khan reported the claimant for an alleged hit or slap on him. Mr Khan’s clear evidence, which I accept (it being consistent with the documentary position), was that he only reported it in case there were future incidents and he did not want to take things further. Whilst the claimant states that he received a final written warning for this incident this was not supported by documentary evidence and so I do not find it more likely than not in all the circumstances. In any event, I accept Ms Moore’s evidence that the reason why she did not change investigator was because she did not believe that it demonstrated bias or a risk on the part of Mr Khan due to both the passage of time and limited nature of his investigatory role. I also find that the relevant parts of Mr Khan’s investigation were things which were objectively ascertainable from other evidence, such as the claimant’s training records, objective evidence of CCTV that was available to the claimant, and also the record of the interview. Equally, Mr Khan did decide that there was a disciplinary case to answer, although he also made that decision in respect of the claimant’s named comparator.

[65]The claimant was invited to a disciplinary investigation meeting on 7 December 2022 by Mr Khan. Mr Khan submitted his request for the relevant CCTV footage of the platforms on the same date.

[66]Mr Khan had an investigation meeting with the claimant’s comparator on 20 December 2022. The purpose of the investigation was to establish facts around an allegation of falsification of records, namely that the comparator had called in by way of a radio communication to the station control room that the relevant check had been completed when it had not been done, and breach of the Station Security Plan (‘SSP’) in that the comparator between 19:00 and 19:30 failed to complete a full security check between those hours on the relevant day.

[67]Mr Khan’s review of the CCTV revealed that the claimant had not carried out a thorough security check in line with the SSP between 19:00 and 19:30 on 23 October 2022. The claimant did not walk the full length of one platform or carry out a physical search of high risk areas such as fire extinguisher cabinets. The claimant was also clearly watching his mobile phone for a significant amount of time when he was meant to be actively carrying out the patrol, contrary to the requirement that he be actively inspecting the area. Mr Khan’s review of the CCTV was not ever really challenged by the claimant and his evidence of what he saw the claimant doing on the relevant shift was clearly set out in detailed documentary evidence. There is no real evidence to undermine Mr Khan’s account of what the CCTV contained.

[68]I find that the relevant gate that had been left open was the Platform 11/12 gate, preferring Mr Khan’s CCTV notes which clearly state that it was the gate at the end of platform 12. This was also Kerr’s recollection and was meaningfully undermined by anything. Although the claimant’s position during the hearing was that it was the gate at platform 13 that was open, the claimant also didn’t have a good memory of the relevant patrol. It was unclear to me why the claimant said it was the gate at platform 13 , although it may have been based on an answer provided by the respondent to questions posed by the claimant’s representative in writing during this litigation. I prefer the witness and contemporary documentary evidence as this is more likely to be correct. The exact platform gate open was not, in any event, determinative of the issues in the case.

[69]The claimant has maintained his position, as in the internal proceedings, that he did not recall the particular patrol in question. I therefore prefer the account of the patrol given in the documentary evidence which was based on the CCTV from Mr Khan (and to a degree, Mr Kerr). The claimant did not dispute in evidence what was in Mr Khan’s commentary on the CCTV.

[70]When it was put to the claimant during his evidence that he had, in effect, falsified the logs by calling in in the manner alleged, he said he could not say yes or no because of a lack of memory. He did not positively dispute what happened. Although the claimant said he had not viewed the CCTV, he was given every opportunity to view it during the internal investigation. The claimant also did not request disclosure of the CCTV during this litigation, suggesting in evidence he did not see it as necessary based on his position that it should not have been used in disciplinary proceedings. In circumstances where the claimant does not positively dispute the records and other evidence about what he did on the other day, and declined to view it during the internal investigation, and declined to seek it during the litigation, and the claimant simply doesn’t remember the relevant day, I prefer the respondent witnesses and corresponding evidence that during the relevant patrol the claimant: spent a substantial amount of time simply looking at his phone and appearing to be texting; the claimant failed to check furniture or cabinets on platforms 11/12 and 13; and the claimant failed walk to the end of platform 11/12 at a time when the gate at the end of platform 11/12 was visibly open and unsecured.

[71]The claimant accepted in his investigatory interview (and disciplinary hearing) – and I find accordingly - that he understood he had to patrol the full length of the platforms. He also accepted in his investigatory interview that he understood that if he had seen a gate open at the end of the platform he would have called it in. The claimant also did not positively dispute being on his mobile phone for most of the patrol – he simply replied that he did not remember being on the phone. The claimant also asserted that he had checked the fire extinguisher cabinets (‘as far as I can remember’) but did not seek to view the CCTV to dispute the narrative of it suggesting that he did not. Although the claimant’s representative sought to suggest through his cross-examination of respondent witnesses that there may be occasions where there were legitimate occasions when a CSA may use a mobile phone during a patrol, such as to speak to managers or, potentially (as suggested by Mr Porter) to take notes, I consider this to be a complete red herring. This is because it was not the claimant’s case or evidence that those were in fact the things he was doing or for legitimate purposes. It was also not supported by what the CCTV showed in terms of the claimant’s conduct.

[72]Although there was a degree of debate about the extent to which gates fell under the responsibility of CSAs, I find that regardless of who had the overall responsibility for the gates, as a matter of fact it was included within the claimant’s duties to notify if a gate was open. This is because this was accepted by the claimant in his interview and this was consistent with the respondent’s evidence. Even if another body was responsible for repairing or ensuring that gates were closed, the fact that a gate was open was clearly reportable by CSAs.

[73]The claimant, in his investigatory interview, did not include any apology or admission as to wrongdoing, or give any evidence to say that the CCTV (or Mr Khan’s viewing of the CCTV) was inaccurate, based on a lack of memory of what happened. He equally did not take the opportunity to see the footage for himself to be clear either way.

[74]Although the claimant’s representative sought to suggest that Mr Khan was biased in so far as the period of CCTV he viewed, this allegation is not, as a question of fact, supported by evidence showing that Mr Khan reviewed the wrong time (as was advanced as an argument, to a degree, during the hearing). The claimant chose not to view the CCTV that might have established any such error during the internal investigation. The claimant has sought to make much of the use of the time 19:51 on the authorisation form by Mr Khan, however this was according to Mr Khan and the documentary notes made by Mr Khan investigation (recommending further action) that the time used was an estimate, but he was clear about when he was looking at as part of the investigation in his notes and the interview with the claimant. Also, the timing of the CCTV would not be relevant to whether the claimant was spending the much patrol on his phone and other elements of what was expected of him.

[75]I reject Mr Porter’s evidence that HR, or someone from HR, told Mr Khan what to do in terms of dealing with the claimant (such as improper influence). It was not supported by the documentary evidence on the face of the documents, even though Mr Porter only relied on those documents in support of his contention. Mr Porter’s contention was not supported by cogent and reliable evidence.

[76]I also found Mr Porter, as an witness of fact, to be an unreliable witness. He sought at one point to suggest in his evidence that Mr Khan can’t have viewed the footage between 19:00 and 19:30 based on Mr Porter’s understanding of the authorisation time. There was no real basis for this suggestion, and it is a serious one because it is in effect an allegation that Mr Khan had lied throughout the investigation about his commentary in the CCTV and the claimant had declined every opportunity to prove whether or not Mr Khan’s account about what was on the CCTV was accurate by requesting the original footage. When asked further questions about this in cross-examination, Mr Porter then seemed to change his evidence to suggest he couldn’t really answer about what Mr Khan had viewed. He then sought to clarify that the only actual bias he had identified was the fact of using CCTV. In my judgment, Mr Porter was more seeking to exploit potential avenues of attack on behalf of the claimant rather than providing accurate factual evidence from which bias could be inferred.

[77]I find that Mr Porter’s witness statement evidence that the comparator was lying was not supported by the documentary evidence given a proper and fair reading of the comparator’s accounts during her disciplinary. Mr Porter has formed this view, in my judgment, not on a proper or fair reading of the documentary position, and is (at best) speculating.

[78]I reject the claimant’s suggestion that Mr Khan had tried to get rid of him three times because it is unsupported by the documentary evidence. I prefer Mr Khan’s clear oral evidence consistent with the documentary evidence that there was a single prior incident between the claimant and Mr Khan in 2013. The claimant is unable to substantiate this allegation with detail or documents.

[79]On 5 January 2023 Mr Khan concluded that there was a disciplinary case to answer in respect of the claimant’s comparator allegedly breaching the Station Security Plan (‘SSP’) and falsifying records (by way of reporting that ‘all appears to be in order’ (or equivalent) verbally over the radio, which was recorded by others in documents). The claimant accepted in evidence that Mr Khan reached the same outcome conclusions as with his comparator but he ‘still didn’t believe it’ that he had not been targeted by Mr Khan. However, I do not find as a matter of fact that the claimant had been targeted by Mr Khan. This is because of an absence of evidence that this was the case. I accept and prefer the evidence that the investigation arose out of Mr Kerr’s concerns from viewing the CCTV which he raised in good faith whilst carrying out his duties.

[80]It is right as a question of fact that Mr Khan (and later, Mr Jobling) did not look into alleged discrepancies in the maps in the SSP as to the location of specific objects. This was a point that had been raised by Mr Porter.

[81]I also find that the claimant’s comparator had not raised allegations of bias against the investigator Mr Khan. This is because there was no evidence to suggest that this was the case.

[82]The claimant’s comparator’s disciplinary meeting was held by Natasha Vincer, Local Operations Manager. This was held on 28 February 2023 and the comparator was given a final written warning. Ms Vincer explained to Mr Lucas that part of her reasoning for this outcome was the fact that the comparator had not attended the most recent refresher training, and she had been given informal buddy training earlier. It was also clear from the documentary evidence about the comparator that she was apologetic, admitted what she had done, and also that the comparator was acting under a misapprehension about what was required of her. I find that the comparator was under the impression that a visual check of the platform was acceptable as opposed to walking the full length of the platform. This is clear from her disciplinary hearing. I disagree with the claimant that an earlier suggestion by the comparator in her investigation suggested a different account such that there was a discrepancy: her reference to a ‘visual patrol’ is ambiguous and does not, on a fair reading of the interview, support the claimant’s interpretation of what she is saying. It was also the case that the only problem with the comparator’s actions was not completing the patrol to the full length of the platform and calling in the check as complete, as opposed to the other issues later identified with the claimant’s patrol.

[83]The claimant had his investigation meeting with Mr Khan and the claimant’s representative Mr Simon Porter, another CSA, on 11 January 2023. Mr Khan concluded that there was a disciplinary case to answer in respect of the claimant allegedly breaching the SSP and falsifying records (in the same manner as with the claimant’s comparator, in terms of the records).

[84]The claimant’s case progressed to a disciplinary hearing meeting. The invitation was sent on 27 January 2023 by Martin Jobling, Health and Safety Manager, who also held the meeting on 7 February 2023. The claimant had been sent the disciplinary hearing case pack on 30 January 2023. During the meeting Mr Jobling decided to dismiss the claimant because it amounted to gross misconduct.

[85]During the claimant’s disciplinary hearing he did not give an explanation as to why he didn’t check fire extinguishers, despite being given the opportunity. The claimant accepted this in his evidence.

[86]I reject as a question of fact the claimant’s contention that Mr Jobling put obstacles in the way of the claimant viewing the CCTV. On the basis of the clear evidence of Mr Jobling, not meaningfully undermined by anything, and consistent with the documentary position, although the claimant when asked whether he wanted to view the CCTV during the disciplinary hearing said yes, the claimant declined to adjourn the hearing for a period of time for him to do that. Whilst it’s correct as a matter of fact that this would have required a short train journey – the CCTV being held at St Pancras, and the disciplinary hearing happening at Stratford – I accept and prefer Mr Jobling’s evidence that the CCTV was held at St Pancras for operational reasons and the hearing was held at Stratford for the claimant’s benefit because it was not his normal place of work. There was, as a matter of fact, every opportunity for the claimant to view the CCTV and he declined to do so for his own reasons, not because of the physical location of the CCTV.

[87]I find that the claimant was not remorseful during his disciplinary hearing. This is clear from the documentary record. As of the time of his disciplinary hearing, I find that it had been established in the minds of the relevant decision maker (Mr Jobling) on evidenced grounds (accepting his clear and cogent evidence of this, consistent with the documentary position and not having been meaningfully undermined by anything), that the claimant had not carried out his checks properly, despite this had called them in as having been checked properly, the claimant had not provided an explanation why, and was not remorseful, and there was nothing to suggest that the same problem might happen again, and the checks were for serious issues in terms of the safety and security of the station.

[88]There was also no cogent or reliable evidence to suggest that Mr Jobling reached his decision to dismiss the claimant under the influence of anyone else. Although the claimant believed that Tracy Moore in fact made the decision to dismiss, and others just did what she said, this was based on unreliable and unsupported hearsay evidence. It was expressly denied by the relevant individuals. There was no clear or cogent evidence to suggest that this happened.

[89]I similarly reject Mr Porter’s account about improper influence of others or that the decision was predetermined about the claimant. This is because his allegation to this nature was in some ways unclear, and also based on hearsay. This serious allegation is not supported by clear and cogent evidence, and I do not find that it is more likely than not that it happened, the relevant individuals disputing this allegation in their evidence.

[90]The claimant accepted in evidence that his comparator had a different disciplinary hearing officer and there was no allegation against her for being on her phone and not checking the fire extinguishers. It was also not disputed that his comparator had said in her investigation that she had understood that a visual check to the end of the platform was acceptable (that being her understanding, this point being clear in the documentary record) whereas the claimant had no such misunderstanding. It was also clear that the comparator had not attended the most recent training day that the claimant had attended as this was supported by the documentary evidence consistent with the relevant respondent witnesses understanding of the extent of her training. It was also the case, factually, that in the claimant’s comparator’s disciplinary hearing, it was accepted by her disciplinary hearing officer, Ms Vincer that the comparator had not received recent training on the relevant issues (consistent with the documentary evidence).

[91]The claimant also in evidence seemed to hold a contradictory position that he perhaps did not fully understand with regards to his comparator. The claimant accepted in evidence that the comparator’s understanding about the acceptability of a visual check was wrong (because a visual check was not acceptable), but the claimant equally seemed think that she was in the same position as him, even though he had no such misunderstanding.

[92]The claimant was also unable to articulate why he raised race discrimination in his appeal letter dated 13 February 2023 other than the difference in outcome treatment between him and his comparator. However, this cannot be correct because the comparator’s outcome postdated the appeal letter. The claimant then said that he felt that he had been targeted but provided no evidenced basis for this.

[93]One of the issues in the claim is a request for information made by the claimant’s representative on 13 or 14 February 2023. The claimant accepted in evidence that this was the request at page 487 of the hearing bundle. However, the claimant’s case as agreed at the start of the hearing – in the agreed list of issues – was that this request was about the outcome for his comparator. However, I find in fact that this is not the case because of the wording actually used in the request: the request was about information pertaining to outcomes relating to dummy packages having been hidden. Also, the claimant’s request could not have been about the comparator’s outcome because the request predated the comparator’s outcome. I also accept the evidence of Ms Moore that when the claimant’s representative asked about when shops and staff at the station had training dummy packages put in their jobs, and when this was missed, Ms Moore declined to provide that information on the basis that she did not see it as relevant, each case being decided on its own merits (accepting her evidence). Also, she correctly identifies that the claimant’s case was not about missing dummy training packages. I also accept her clear evidence that her reason for not sharing others’ outcomes would be contrary to GDPR. Her evidence was clear and not meaningfully undermined by anything else.

[94]The claimant appealed against his dismissal on 13 February 2023. The appeal was dealt with by Daniel Lucas, Head of Stations and Passenger Experience. The claimant was invited to the disciplinary appeal meeting on 6 March 2023 and the appeal was held on 20 March 2023. The claimant had the same representative at the appeal meeting. Mr Lucas dismissed the appeal on 29 March 2023. The appeal included Mr Lucas interviewing Ms Vincer about the claimant’s comparator and why a different outcome was reached for her.

[95]The claimant accepted in evidence that Mr Kerr had nothing to do with his appeal, and I find accordingly (there also being no evidence that Mr Kerr had any influence on the appeal).

[96]I find that, accepting the evidence of Mr Lucas consistent with the documentary records, that he did speak with Ms Vincer (who determined the comparator’s disciplinary hearing) about the circumstances in which the comparator received a written warning. I also accept that the decision about the comparator was influenced by the comparator being apologetic, her acting on the understanding that a visual check was acceptable, and that the comparator was trained in 2019 and had missed the most recent training day, and had not seen the SSP and that her training was via a buddy system and not formal training. This is clear from the interview carried out by Mr Lucas with Ms Vincer (recorded in documentary form) which is consistent with the documents from the comparator’s disciplinary hearing.

[97]There is no clear or reliable evidence that Ms Vincer was influenced by anyone else in her decision making. I therefore reject the claimant’s speculation about this.

[98]It is right as a matter of fact that after the appeal outcome Mr Lucas did not share the comparator’s disciplinary hearing material with the claimant, and this was requested. However, I accept Mr Lucas’ clear evidence, not undermined by anything and consistent with the documentary (and logical) position that the reason for this was to maintain her confidentiality. I also do not find that these documents, in any event, and as a matter of fact, contained material that would have assisted the claimant such as mitigation relating to the claimant or an exculpatory account of the claimant’s actions.

[99]It is right to record that Mr Lucas’ inquiries about Mr Khan and the claimant’s allegation of bias by Mr Khan were limited. This is because there was no formal interview with Mr Khan on the issue, or a detailed enquiry into this.

[100]The respondent’s CCTV and Surveillance Request Handling Guidance Note included ‘The purpose of this document is to provide guidance on handling CCTV and surveillance requests…’ Under ‘Background’ it included that the respondent records CCTV and surveillance images at our sites to monitor and maintain security of property and premises, preventing and investigating crime, health and safety of prevention of accidents and has registered with the regulator – the Information Commissioner’s Office (the ‘ICO’) – that the images will only be used for these purposes. It states to the effect that for internal requests they must consider the purpose of the request and that the request relates to security, crime detection or prevention, or health and safety. The Guidance Note also included ‘as they [CCTV disclosure requests] must fall with our purpose for processing CCTV and surveillance information – to monitor and maintain security of property and premises, preventing and investigating crime, health and safety and prevention of accidents.’ Under the next box of ‘examples’ (ie. examples in regards to the requirement that the request is lawful) it states that ‘CCTV should not be released for disciplinary investigations; the primary request must be directly related to safety or security matters.’

[101]At all material times the respondent’s HR team agreed that CCTV could be used for the claimant’s disciplinary process.

[102]Although the claimant sought to rely on concerns having been raised by Michael Lynch, General Secretary to the RMT, by letter dated 29 November 2021, about the use of CCTV in disciplinary cases, the letter in fact expressly accepted that there may be circumstances where CCTV is reviewed where the respondent was on notice that security checks have not been completed or had reasonable grounds to suspect that a member of staff had not carried out an adequate check, so it was arguably permitted to investigate by reviewing the CCTV footage (although this did not extend to targeting and monitoring where there were no reasonable grounds to do so). The same letter also objected to systematic monitoring of employees or targeting without any good reason in order to build a disciplinary case against them. However, this was plainly not the case in the claimant’s circumstances, as a question of fact.

[103]The claimant also did not positively dispute that Mr Khan used the CCTV footage for both him and his comparator (although the claimant did take issue with the different overall outcome between him and his comparator).

[104]The claimant’s employment contract had the content as set out in the hearing bundle. In particular, he was to be paid a basic salary with an inner London allowance. His hours of work were to be scheduled to an average of 35 hours a week, excluding Sunday, but he may be required to work additional hours in any week according to operating circumstances. It expressly provided that the days of the week on which he may be required to work, and the number of working hours within each working day, may vary or be changed periodically. It also states that he was employed in a position that requires working to a roster pattern and his salary had been calculated to include an allowance for shift working, weekend working and or additional hours to be regularly worked as part of the current bas roster. It did not provide for additional pay for working on a Sunday. It included that he may be required to work additional hours without additional pay in order to meet business needs, but did include that working over and above normal rostered hours will be recorded and if these exceeded 10% of normal rostered hours per quarter, excluding rostered Sundays, there was an hours bank for additional leave. The contract is silent as to the use of CCTV. It expressly provided that the respondent’s Disciplinary Procedure was noncontractual. It was signed by the claimant and someone on behalf of the respondent.

[105]On the wages issue, in summary, the respondent made a revised pay offer to the RMT which included a pay offer for CSAs rostered to work on Sundays between 1 January 2020 and 1 July 2022 to have a backdated pay offer. The RMT accepted it on 20 March 2023. On 4 August 2023 the terms of the backdated pay offer in respect of Sunday working were clarified.

[106]The documentary evidence about the Sunday working pay award clearly established the following: the following took place after the claimant was dismissed; the pay offer from the respondent including the Sunday working pay award was made on 6 March 2023; the offer was made in full and final settlement of backpay for those employees who worked rostered Sundays in their base roster between 1 January 2020 and 1 July 2020; the RMT accepted the offer on 20 March 2023; following discussions with the unions after, and meetings with the unions (including the RMT), back pay would only be paid to good leavers defined as excluding those who were dismissed or had resigned prior to a disciplinary (email dated 4 August 2023). The claimant had been dismissed and therefore was not eligible for back pay. The claimant accepted in this evidence that according to that document he was not eligible for the back pay. The claimant’s oral evidence on the Sunday pay award was simply that he had worked them, so he should be paid. I fully accepted Mr Turner’s evidence about the Sunday pay award and negotiations with the unions, that evidence being supported by the documentary position and not meaningfully undermined by anything else.

[107]As a matter of fact, however, the respondent had not conceded in the pay negotiations that its previous pay pattern was unlawful. It was not established as a matter of fact that anyone had been working Sundays for free, in particular the claimant given that he was paid a salary with the terms and conditions above.

[108]I reject the claimant’s contention that the respondent falsifies training records. This is unsupported by clear and cogent evidence.

[109]I also reject the claimant’s contention that the respondent had engaged in a sham arrangement to protect the named comparator. The claimant’s contention was based on a lack of documentary evidence of her being retrained in the bundle. However, this contention was undermined by way of further disclosure of emails indicating that she had in fact been retrained (as recommended in her proceedings).

[110]I wholly reject the claimant’s contention that Tracy Moore, as a matter of fact, had influence on the decision making about the claimant. This allegation is entirely speculative and does not have any reliable evidential basis. I accept her clear and cogent account of her role and the way in which she operated. Her evidence was not meaningfully undermined by anything. I also note and find that the appeal manager was changed to Mr Lucas at the request of the claimant, demonstrating that Ms Moore was not seeking to control or influence the process according to some grand plan or conspiracy against the claimant. I also accept Tracy Moore’s evidence that information about others’ cases was not shared with the claimant because of internal rules on confidentiality and privacy (informed by GDPR) rather than because of any other reason.

[111]In terms of one element of the claimant’s factual case on age discrimination, this in particular was not supported by the evidence. Whilst the claimant sought to argue that he had been targeted because he was on an older contract and therefore was more expensive, there was no evidential basis for such an allegation, largely because I accept that the relevant individuals asked about that point in cross-examination denied that this was a factor in their decision making. There were also other clear factual reasons for what happened to the claimant, namely all of the events that led to his investigation in the first place. The consequences of that investigation are not unexpected such that they called for an explanation or otherwise were suggestive of discriminatory practices.

[112]I find that there is no clear reason why the claimant’s claim was submitted when it was. This is because there is a paucity of evidence about why the claim was submitted late.

[113]I am unable to make findings of fact as alluded to by the claimant about the protected characteristics of other employees dismissed by the respondent because of a lack of a clear and cogent evidence of this, to the extent that the claimant was seeking to ask me to make inferences based on disproportionate treatment of individuals with particular characteristics. Such findings of fact require a proper evidence base as opposed to speculative cross-examination of witnesses along these lines of enquiry. At best, the respondent witnesses were only able to give an impressionistic account of the number of individuals and their ethnicities at the respondent from which I could make no reliable findings of fact. However, I am able to find that, in terms of those dismissed by the respondent from that station between May 2022 and May 2023 the only information was that eight employees or workers were dismissed. They are described as White (3), Asian (2), and Black (3). 7 were male and 1 was female. 1 was in their 20s; 1 was in their 30s; 4 were in their 40s; and 2 were in their 50s. This is based on correspondence between the parties.

[114]I reject as an issue of fact the claimant’s contention that Mr Khan was responsible for a harassment and bulling allegation against the claimant (bundle reference page 624). This is because of an absence of cogent evidence that this was the case.

[115]In terms of findings of fact (taking into account and applying the law on the burden of proof in EQA claims, above) I find that the factual reason for the claimant’s treatment was because the respondent carried out an investigation on evidenced grounds into its genuinely held concerns, and he was suspended and ultimately terminated because of his conduct. This is because I accept the respondent witnesses’ evidence for the reasons for why the claimant was treated as he was and their evidence was not meaningfully undermined by anything else.

Conclusions

[116]To the extent that conclusions in respect of some claims are also relevant to other claims, the reasoning is repeated. Breach of contract

[117]I dismiss the breach of contract claim on multiple grounds.

[118]Firstly, I find that the Tribunal does not have jurisdiction to determine the claim. This is for two reasons. The breach of contract claim is out of time by one day. There is no clear evidence about the reason for this delay relied on by the claimant. I therefore find that the claimant has not shown that it was not reasonably practicable for him to bring the claim in time. This decision I note, is consistent with the earlier decision about the claimant’s original claim for unfair dismissal, to which the same time limits and considerations applied, although I did not consider myself bound by that earlier finding. For completeness, and only because this suggestion was hinted at, to the extent that any fault was that of the claimant’s representative, I find that this would be a case where the Dedman principle applies, the claimant’s adviser being a skilled adviser by virtue his position. The claimant has provided no reason or justification to depart from that principle.

[119]I also find that the Tribunal does not have jurisdiction to determine the claim for breach of contract because none of the matters complained of were outstanding on termination of the claimant’s employment. In terms of the allegation of CCTV, this breach took place during the claimant’s employment. There is also no particular loss which was sustained or loss which crystalised upon the termination of the claimant’s employment. Secondly, to the extent that the Sunday pay award might have given rise to a claim for breach of contract, these events took place after the claimant’s employment was terminated. Any loss which could have resulted from those events was not sustained and did not crystallise upon the termination of the claimant’s employment.

[120]I also conclude in the alternative that there was no express or implied term of the claimant’s contract that was breached by the respondent’s use of CCTV. There is clearly no express term to that effect. Also, the disciplinary policy was expressly non-contractual, so a Guidance Note to the respondent’s approach to CCTV requests is even less likely to be contractual. I also consider that there is no cogent evidential basis to support any of the ways in which it could amount to an implied term above. No such term is necessary to make the whole agreement workable. It is not so obvious that the parties must have intended it. It is also not demonstrably the custom and practice of the parties. There is also no cogent evidence base from which I could infer that it is implied by the parties conduct.

[121]Even if I am wrong about that, I find that the respondent’s guidance note, on a proper reading of the document, in fact does not have the meaning contented for by the claimant. I prefer the respondents’ interpretation based on the natural reading of the words used. The words relied on by the claimant are only in an example box about lawful use. Also, read in context, it is clear to me that the CCTV footage can be used in disciplinary investigations and hearings if the primary purpose of requesting it was for reasons of security or health and safety (etc.). I also consider that disciplinary investigations clearly form part of the respondent carrying out security and health and safety functions. Even ignoring jurisdictional differences, I consider the claimant’s situation to be materially different to the facts in Doolin v The Data Protection Commissioner [2022] IECA 117, a Court of Appeal authority from the Republic of Ireland replied on by the claimant. Doolin did not involve security or health and safety concerns to the same degree as the claimant.

[122]The claimant’s case also was to the effect that the respondent could not (according to policy) use CCTV in any disciplinary investigations. However, this would be an absurd situation, and is inherently unlikely. This is not, in my judgment, and in any event, a proper reading of the guidance – which only had the status of guidance in any event – based on both the natural reading of the document, the status of the document, common sense, and I note that my decision on the meaning of the guidance is in fact consistent with the RMT’s view at the time.

[123]I also reject the pay award element of the breach of contract claim on substantive grounds. Firstly, there is no express term of the claimant’s contract which provides for the Sunday supplement, or additional pay for Sunday working. The claimant’s contract expressly provides for varying working hours, days, and roster patterns, with a salary to cover his work overall. Secondly, there is no implied term for a Sunday supplement. There is insufficient evidence for me to find that this is necessary to make the agreement workable, that it was so obvious that the parties must have intended it, or that it was the parties’ custom and practice, or from the parties’ conduct.

[124]There is also no express or implied term that the claimant would be entitled to any kind of back pay later agreed by the unions. There is insufficient evidence for me to find that this is necessary to make the agreement workable, that it was so obvious that the parties must have intended it, or that it was the parties’ custom and practice, or from the parties’ conduct.

[125]I am quite satisfied that the claimant did not, in any event, fall within the union-negotiated back pay agreement. This is because the claimant was not a good leaver in accordance with the terms of the agreement negotiated by the unions. These also arose after he was dismissed. Unlawful deductions from wages

[126]I equally dismiss the claim for unlawful deduction from wages. The Sunday pay award negotiated by the unions after the claimant’s dismissal which did not included him (as a bad leaver) is such that he has no legal entitlement to that sum. They are not properly payable to the claimant and therefore there was no unlawful deduction from wages. I am quite satisfied that the nature of the pay award was such that it was a voluntary payment by the respondent to various individuals to settle a union dispute. It did not reflect a concession by the respondent that the Sunday pay supplement sum was properly payable. There is also nothing from the claimant’s contract to suggest that he had a legal claim to a Sunday pay supplement given the terms of his salary and working pattern. The other statutory provisions relied on by the claimant’s representative in his written submission do not apply to this situation (such as guarantee payments) as a matter of law or fact. I expressly accept that the situation about whether leavers were eligible was ambiguous between the original negotiation and the point being clarified between the respondent and the unions. I reject the claimant’s contention that he was originally eligible and then became ineligible. The matter was simply undecided during the limbo period (in any event, all after the claimant’s dismissal).

[127]I reject the claimant’s submissions about the applicability of sections 27 and 28 Employment Rights Act 1996 and otherwise. They do not assist the claimant in the circumstances of this case. This claim is not about guarantee payments as set out in section 28. I also fully took into account the definition of wages as set out in section 27. Discrimination claims

[128]I do extend time for the discrimination claims. Whilst I do not consider that there was any particularly good reason for the delay in bringing the claim, such a good reason is not strictly necessary, and it is in my judgment just and equitable to extend time where necessary for the different elements of the discrimination claims. The respondent has been put to no particular forensic or other prejudice from the delay, and balancing the two main factors (the lack of good reason for the delay, against a lack of prejudice to the respondent), given that the length of delay was not particularly significant, I have concluded in those circumstances that it is just and equitable to extend time as necessary.

[129]I reject the discrimination claims for the following reasons. Firstly, the burden of proof does not shift to the respondent. There are no facts from which I could properly infer that any of the respondent’s treatment of the claimant was because of any of his protected characteristics. There is no direct evidence of this nor other evidence from which I could draw the necessary inference, even taking into account the reality that there is often no direct evidence of discrimination. The claimant has failed to establish in evidence anything from which disproportionate outcomes could be properly inferred whether by the individuals identified above or wider use of statistics.

[130]I also find that the claimant’s named comparator is materially different to the claimant. This is because the claimant’s evidenced failures were significantly wider than the comparator’s; the comparator showed remorse and made admissions; the comparator was acting under a misapprehension as to what was required (the claimant was not); and the comparator had missed the most recent refresher training which the claimant had not. I refer to my findings of fact above.

[131]I consider that there is no safe inference that could be drawn about the comparator’s treatment that means that she could be an appropriate evidential comparator, also, in the circumstances. I also do not consider that the evidence shows other any evidential comparators from which I could properly infer that the claimant’s treatment was affected in whole or in part or at all by a protected characteristic. There is also nothing from which I could find that a hypothetical comparator would be treated differently to the claimant. I refer to my findings of fact, above.

[132]In particular, I reject as a matter of fact that the claimant was not given adequate or full training, whether by Tracey Duffield or Dan Lucas or anyone else. This is because the claimant had attended the most recent refresher training. There is also no evidential basis for the training provided to the claimant being different to anyone else on grounds of any protected characteristic. Whilst it is correct that the comparator received different training to the claimant, she in fact received less because she did not have the refresher training. I accept the evidence under cross-examination of Mr Lucas that the buddy training provided to the comparator was not fuller or more adequate than the claimant’s training. In fact, the opposite appears to be true given her demonstrable misunderstandings about the extent of the patrol required. The only area of potential lack of training given to the claimant was in respect of the exact checks required of the cones. However, I do not consider this area to be one where there is any proper evidence that the claimant's understanding in this area was because of any of his protected characteristics or that the training given to him on this issue had anything to do with any of his protected characteristics. I also do not find that the claimant’s understanding in relation to cones was material given the other findings made about him and his wider understanding of his duties.

[133]I do not find that Mr Kerr’s use of CCTV was in fact illegal, as alleged. Given my conclusions above about the use of CCTV, this was legal and consistent with the respondent’s guidance note. It was also not precluded from use in disciplinary investigations for the same reason. In any event, there is nothing to suggest that the use of CCTV for the claimant was in any way related to or because of any protected characteristic. It was equally used for his comparator and others.

[134]For the same reasons, I do not find that any of the others’ use of CCTV on 7 December 2022 or later was either illegal or impermissible. This is because it was consistent with the respondent’s guidance note, in my judgment. In any event, there is nothing to suggest that the use of CCTV for the claimant was in any way related to or because of any protected characteristic. It was equally used for his comparator and others.

[135]I reject the contention that Mr Khan had an agenda against the claimant. This is not supported by the facts. Mr Khan treated the claimant and his comparator equally and his conclusions are reasonable and were clearly supported by objective evidence. Whilst it is right that Ms Moore did not agree with the claimant’s objections about Mr Khan, there is nothing to suggest that this was in any way related to or because of any protected characteristic. Mr Khan was equally appointed to the claimant’s comparator.

[136]I reject the allegation that Mr Khan’s investigation was impartial. His conclusions were demonstrably based on objective evidence and he made the same recommendations for the claimant as the comparator. In any event, there is nothing to suggest that this was in any way related to or because of any protected characteristic.

[137]It is right that Mr Jobling dismissed the claimant. However, this was demonstrably on the evidence for good, evidenced and reasonable reasons as set out in his evidence. In any event, there is nothing to suggest that this was in any way related to or because of any protected characteristic.

[138]The claimant’s allegation about Ms Moore refusing to provide the claimant with information on 13 or 14 February 2023 must fail on the facts: no such request was made. Even for the request that was made, I find that it was refused on good and reasonable grounds as set out by Ms Moore. In any event, there is nothing to suggest that this was in any way related to or because of any protected characteristic.

[139]Whilst it is right that Mr Lucas refused the claimant’s appeal, I find that this was refused on good and reasonable grounds as set out in his evidence. In any event, there is nothing to suggest that this was in any way related to or because of any protected characteristic.

[140]I add for completeness that I find that many matters raised by the claimant as effective detriments are, in reality, red herrings. For example, I find that the non-investigation (primarily by Mr Khan) into the alleged accuracy of the maps, also relevant to the disciplinary hearing, was clearly irrelevant given the admissions by the claimant about what was expected of him and the clear evidence of what he did (or didn’t do). Any minor issues with the plans about the locations of specific objects didn’t require investigation. I also consider the issue of training by the claimant is a distraction given that the claimant accepted what was required of him: he knew he had to look at the fire extinguisher cabinets and walk to the end of the platform. I also consider that the claimant’s arguments during the hearing about provision of information to him during the internal process are extremely convoluted in so far as the claimant seeks to demonstrate less favourable treatment because of a protected characteristic. I am satisfied that that the decisions about what information to provide to him were made based on grounds of relevance and confidentiality and these decisions had nothing to do with the claimant’s protected characteristics. Whilst I recognise above that the inquiries about the extent of possible bias by Mr Khan were limited, in so far as there was a non-recorded conversation by Mr Lucas as opposed to a formal interview, and no detailed inquiry as to the exact events in the past, I consider these criticisms to be irrelevant because the claimant did not clearly challenge the factual accuracy of the CCTV review, which was the only material facts arising from Mr Khan’s investigation other than the admissions the claimant made about his extent of knowledge about what he should do, those admissions not being disputed in any material way. Also, to the extent that the claimant seemed to advance the argument that by saying ‘all appears in order’ that was not making an express assertion that everything was in fact in order, just that it appeared that way, this is also misleading. It is plain that in making such a statement the claimant was making an implied assertion that he had carried out his duties to the required standard. He was not stating ‘all appears to be in order following an inadequate patrol’. I also do not consider the amount or type of training given to the respondent witnesses on equalities matters assisted the claimant’s case. This is because the amount of training in of itself was not relevant to the issues in the case.

[141]For completeness, I should record that for the particular discrimination claims: the allegation about training fails on the facts – there was no failure to provide adequate full training to the claimant; Mr Kerr did not illegally download the CCTV footage, and in any event this was not less favourable treatment than others (or how the respondent would treat others) because on the evidence there are no others (actual or hypothetical) being treated differently; the use of CCTV by Ms Clancy, Mr Khan and Mr Jobling was not impermissible, but even if it was it was not different to others (actual or hypothetical), so this is not less favourable treatment; the allegation that Mr Khan was impartial fails as a matter of fact, and I also do not conclude that he conducted his investigation less favourably for the claimant than anyone else (actual or hypothetical); Mr Jobling did dismiss the claimant and this was less favourable treatment than what happened for the comparator (but this difference in treatment was not due, in any way, to any of the claimant’s protected characteristics, noting the different decision maker); the allegation about failing to give information to the claimant’s representative fails as a matter of fact, but it was not evidenced the case that the respondent in fact treated the claimant less favourably than others (actual or hypothetical); it is correct that the claimant’s appeal was refused, and I accept that this is less favourable than others who did have appeals allowed generally by the respondent (but this difference in treatment was not due to any of the claimant’s protected characteristics, in any way, and noting the lack of clear and detailed evidence about any successful appeals and the circumstances of them).

[142]I reject the claimant’s submissions about alleged non-disclosure by the respondent (such as of Mr Khan’s internal request to view the comparator’s CCTV), including the cross-examination of respondent witnesses on that point. They are misplaced. The fact that documents may exist but were not included in the hearing bundle does not give rise to a proper inference against the respondent in the circumstances of this case as a whole. This is because there was no reason for the respondent to be expected to think that those documents were relevant to the issues in the case and were not otherwise requested by the claimant. To the extent that points of narrative are reasonably understood to be uncontentious by the respondent, the absence of a document relating to that event (which otherwise does not meet the test for disclosure) does not give rise to a proper inference against them. In any event, this is not a case where any proper inference can be drawn against the respondent because of disclosure. The claimant has failed to set out any such grounds on which such an inference could be made. Similarly, I accept the respondent’s explanation for why it did not hold the claimant’s competency profiles, it not being subject to a disclosure request. In any event, it was not relevant because the claimant had attended the most recent training and accepted knowledge of the material requirements of his role in his investigatory interview.

[143]I also add for completeness that the factual evidence above was not such that I could infer the targeting of black employees for disciplinary matter. There would need to be a clear and cogent evidence base for such a matter, and there simply was not. The factual scenarios of others the claimant has raised were clearly different to his.

[144]Although I was invited to make consistent findings of fact with a related claim in Wilson v Network Rail (22014605/2023), I considered each of the facts and conclusions independently of that claim and its findings.

[145]I also add that even if my conclusion about the respondent’s use of CCTV is incorrect, it does not follow that any such use of CCTV was in any way because of the claimant’s protected characteristics. No such inference could be drawn in the circumstances of this case. Equally, even if I am wrong and Mr Khan was an inappropriate investigating officer because of the previous allegation, there is nothing to suggest that his involvement was in any way because of the claimant’s protected characteristics.

[146]I reject the claimant’s other submissions, to the extent not covered by the above reasons, as either not being supported by clear and cogent evidence such that the finding of fact sought could be properly made, and or because they do not in fact establish as a matter of logic (or otherwise) the point made.

[147]For completeness, I do not conclude that any of the relevant treatment of the claimant was because of his protected characteristics, given my findings above.

[148]For the above reasons, the claims are dismissed. Approved by