Mr K Vouzon v Transport UK London Bus Ltd: 2300531/2023

EMPLOYMENT TRIBUNALS

Case No 2300531/2023

Between

Mr K VouzonClaimant

Transport UK London Bus LimitedRespondent

Before

Employment Judge Musgrave-Cohen

Date 13 January 2025

JUDGMENT

[1]The complaint of detriment on the grounds of having made protected disclosures is out of time and the tribunal does not have jurisdiction to hear it. In any event, it is not well founded and is dismissed.

[2]The complaints of direct race discrimination and harassment are not well founded and are dismissed.

[3]Complaints at issues 6.2.1-6.2.8 of detriment for the sole of main purpose of preventing or deterring the claimant from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so, are out of time and the tribunal does not have jurisdiction to hear them. The complaint at issue 6.2.9 is within time. All claims under this head, within time or not, are not well founded and are dismissed.

[4]Overall, the Tribunal concludes that the complaints presented in this case are not made out. The claims fail in their entirety for the reasons set out in this Judgment. Page 1 of 36

REASONS

[5]The claimant is a bus driver who has worked for the respondent based at Beddington depot since June 2004. He became a union branch secretary for Unite the Union in November 2019. He was suspended on 4 March 2022 due to his alleged misconduct on the day of a trade union ballot. The alleged wrongdoing was investigated and he was given a final written warning. The claimant brings claims relating to his suspension, the investigation, the decision and the way in which he was treated during the disciplinary process. Claims and Issues

[6]The claimant has brought claims for direct discrimination and harassment because of race, detriment on grounds related to union membership or activities and detriment because of whistleblowing.

[7]Day 1 of the hearing was spent clarifying the issues which were subject to an application to amend the claim as detailed below. The final list of issues, confirmed before the close of evidence and with the agreement of the parties, is set out at Annex A. The proceedings

[8]The claimant attended the hearing and represented himself with care and clarity. The respondent was ably represented by Ms R Jones of Counsel. I am grateful to both Ms Jones and the claimant for their conduct of the case.

[9]As was explained to the parties by the Regional Judge in advance of the hearing, in accordance with paragraph 28 of the Presidential Guidance on Panel composition (with effect from 29 October 2024), the case was heard by a Judge sitting alone because of resourcing difficulties in finding non-legal members to sit on this case. The Regional Judge considered this to be a material change in circumstances.

[10]The hearing was listed for 5 days but was heard over 4. I am grateful to the parties for working to conclude the evidence and submissions in the time available.

[11]The hearing was not recorded as there was not the available technology to do so.

[12]I was provided with an electronic bundle of documents as well as various agreed additional documents relating to the comparators and relevant policies during the hearing. I received a cast list, chronology and reading list from the respondent. Page 2 of 36 13. 5 written witness statements were provided and evidence heard from the claimant himself and on behalf of the respondent from Mr A Holder, Mr F Ayeni, Mr M Moran and Ms S Teggart. I was provided with two audio recordings which I listened to. Credibility of witnesses

[14]I consider the claimant was doing his best to explain his position and understanding to me during the hearing. I accept that he had a clean record prior to the allegations at the heart of this matter. I accept that his time as a trade union representative in more recent years was a bad experience and in contrast to his previously good experience working for the respondent. It impacted his confidence in his employer, his relationships at work and had an impact on his own well-being. I was concerned by his reluctance to give straightforward answers to straightforward questions and his focus on matters which were outside the agreed issues in the case. However, taking into account that he was a litigant in person and under pressure and that this may have had a bearing on his presentation, on balance I accepted him to be a credible and trustworthy witness rather than someone being intentionally obstructive. Recognising that he had struggled to articulate his case at times and had not always referred me to every relevant document, I read through my entire note of the proceedings and documents referred to in the witness statements and evidence before reaching my decision.

[15]I consider that the respondent’s witnesses sought to explain their position and rationale for their decisions clearly and succinctly. I was concerned that the respondent had not done more to understand the issues in the case prior to the hearing, nor to fully understand the comparators the claimant relied on, and that much was left to counsel to decipher rather than those who prepared the case before her. Swifter progress would have been made and disclosure could have been fuller earlier, for example earlier disclosure of documentation relating to the comparators relied on, had the parties liaised with each other to ensure the list of issues was prepared in advance of the hearing. However, I did not consider this reflected on the credibility of the respondent’s witnesses and I accepted their evidence as credible and truthful.

[16]I am grateful to both parties for seeking to assist me in understanding the issues pursued and the relevant documentation during the hearing itself. Correct name of respondent

[17]The correct and up to date name of the respondent is Transport UK London Bus Limited and not Abellio London Limited. The name is changed by consent. Application to amend claim

[18]Day 1 of the hearing was used to case manage the proceedings so as to properly understand the detail of the allegations that the claimant made and that needed to be determined by the Tribunal. This was not wholly clear from the pleaded case or the list Page 3 of 36 of issues prepared at a previous Preliminary Hearing. On discussing the claimant’s case it appeared he wanted to, or needed to, amend his claim to pursue all the complaints he wished to bring. I heard the application to amend the claim. My decision was given orally with full reasons. Written reasons were requested and are provided as follows:

[19]The first stage of hearing an amendment application is to understand what claims the claimant wishes to proceed with and the specific detail of any applications to amend that he makes. In Chaudhry v Cerberus Security and Monitoring Services Limited

[2022] EAT 172

, His Honour Judge James Tayler reinforced the importance of identifying the specific amendment or amendments sought before considering the application to amend. A significant amount of time was spent on this task in this case as the case was not wholly clear from the list of issues and it appeared that neither party had sought or given further clarification. The claimant’s applications to amend were detailed orally and put in writing with the assistance of the Tribunal and respondent before these decisions were made.

[20]The tribunal has a discretion to allow applications to amend. In Selkent Bus Co Ltd v Moore

[1996] ICR 836

, Mummery J, gave guidance as to the main factors that need to be considered when considering an application to amend. This guidance, which has itself been explained in subsequent case-law identifies the following key-factors:a. Nature of the proposed amendment;

b. Timing and manner of the application to amend;

c. Time limits and whether time should be extended pursuant to the applicable statutory test;

d. The balance of hardship.

[21]These are not exhaustive factors nor are they to be approached like a tick-box exercise. Rather they are the kind of factors that are relevant when seeking to balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it (Abercrombie and others v Aga Rangemaster Ltd

[2014] ICR 209

)

[22]In respect of both the nature of the amendment and the timing of the amendment application, Abercrombie makes clear that the relevance of both depends on the circumstances and the nature of the amendment sought. Where the new claim is “wholly different” from the claim as pleaded then time limits should not be circumvented by introducing the claim by way of amendment. Where the new claim is “closely connected” with the claim as originally pleaded, what is often known as a relabelling case, a more lenient approach may be taken to time limits.

[23]I have also considered the Presidential Guidance on Amendments which incorporates the principles of Selkent and more recent case law, stressing the importance of the balancing of hardship test. The guidance describes the importance of the applicable time limits, particularly in respect of wholly new claims. Time limits must be considered to consider whether the new complaint is out of time and, if so, whether the time limit should be extended.

[24]In considering the injustice that may be caused to a claimant who is prevented from pursuing an amended claim, the Tribunal may take account of the prospects of success of Page 4 of 36 a claim, albeit it must always be recognised that the Tribunal will not have heard the evidence at the preliminary stage and is not conducting the trial (Herry v Dudley Metropolitan Borough Council (

UKEAT/0170/17

and (Kumari v Greater Manchester Mental Health NHS Foundation Trust

[2022] EAT 132

[25]In Vaughan v Modality Partnership

[2021] IRLR 97

, HHJ Tayler said that at the heart of the balancing exercise should be a focus on the practical consequences of allowing or refusing an amendment.

[26]The claimant sought to add three issues to his claim of direct race discrimination at issues 5.2.2.7, 5.2.2.8 and 5.2.2.9. The respondent did not object and the issues were added by consent.

[27]The claimant extracted the particulars of the racial stereotypes he said had been used to describe him. These are pursued at issues 5.2.3.1 – 5.2.3.4. The respondent did not object and these particulars were added by consent. Harassment related to race:

[28]The claimant sought to add issue 7.1.7 that Ms Teggart failed to approach Mr Holder and ask him to consider interviewing the witnesses again to decide if there was still a gross misconduct charge or if he wanted to change his mind to no case to answer considering the new evidence.

[29]This complaint is new. It is not in the claim form. Paragraph 59 referring to the claimant’s letter to Ms Teggart reads as part of the chronology. It is described as an act of harassment in the following paragraph but it makes no reference to any acts or omissions of Ms Teggart.

[30]The claimant did not particularise the complaint in his claim form or in the list of issues. He did not seek to provide any clarity following the preliminary hearing of November 2023. The amendment seeks to add a new act of harassment for a failure which is said to have occurred over 2 years ago. It is not wholly clear to me that the complaint is an act of harassment in any event. Failing to instruct a fresh investigation in advance of a disciplinary decision does not naturally appear to me to be an act of harassment.

[31]In any event, the claim is pursued significantly out of time and I did not consider it just and equitable to extend time to allow the claimant to amend his claim in this way, in the afternoon of the first day of the hearing, to seek to amend the case in this way.

[32]I took into account the balance of hardship. I note that it was not Ms Teggart’s responsibility to investigate the wrongdoing. Her role was to hear the disciplinary matter. She did not attend this hearing prepared to address this complaint. She makes no mention of this correspondence in her witness statement showing to me that she did not anticipate it being a live issue. I stressed that the time remaining must be used to address the claims Page 5 of 36 the parties have properly brought and have prepared for or can be reasonably be expected to address. This claim was therefore not permitted to proceed. Trade union detriment:

[33]The claimant sought to amend his claim of detriment on grounds of his trade union activities to add the acts of harassment as also acts of detriment. It seems from the list of issues that this approach was discussed at the previous hearing. Original issue 7.3 asks whether the acts of pleaded harassment relate to race or trade union membership. This is under the wrong heading as acts of detriment because of trade union membership are not allegations of harassment under the Equality Act 2010. However, the core of the complaint does appear to have been discussed at the last hearing. It was open to the respondent to seek to correct or clarify this issue within the 21 days after the preliminary hearing. This appears to me to be a relabelling rather than a wholly new claim and so I adopt a lighter approach to the fact the amendment is pursued out of time.

[34]In terms of hardship to the parties, it seems clear to me that the claimant wished to pursue these matters as trade union detriments and it is the label in the list of issues which is wrong. I take into account that the claimant is a litigant in person and the respondent has been represented throughout.

[35]The respondent is already prepared to address Mr Holder and Ms Teggart’s actions on 15 and 16 March 2022 and 2 September 2022 respectively. The new allegation calls on them to address a further reason for their conduct which I consider they are well prepared and able to do. I allowed this amendment.

[36]The claimant’s trade union complaint was included in the original list of issues as a complaint pursuant to s.47 ERA 1996. It became evident at the end of day 1 that the claim should properly have been pursued under s.146 TULR(C)A 1992. The nature and applicability of the two pieces of legislation were explained to the claimant. Both parties agreed that this was an appropriate relabelling of the claim and it was amended by consent. Victimisation:

[37]Within his claim form under the heading of victimisation the claimant said that “it is clear to me that most of the grief they had against me was because of the protected disclosures I made on 9 December 2021 and 21 January 2022” (para 47). He makes no reference to the grievance of 24 January 2022 at all nor does he say it was a protected act within the meaning of the Equality Act 2010.

[38]In his witness statement the claimant mentions the email of 24 January at para 30 but does not say that it was a protected act nor that he raised issues of discrimination. Under his heading of victimisation he refers to a wholly different grievance complaint of 7 March 2022. When describing the 24 January grievance to me, the claimant explained the content of that complaint as being about coercive control and not about discrimination.

[39]The claimant is seeking to amend his complaint of victimisation to a wholly different complaint to that being made in the claim form and in his witness statement. He is out of time to do so and almost 2 years has since passed. The case he now seeks to present is Page 6 of 36 not the case the respondent attended prepared to defend. Indeed they had formed the preliminary view that the victimisation complaint was wrongly included in the list of issues.

[40]I considered the balance of hardship fell to me refusing the application to amend the claim. The consequence of this is that there is no victimisation complaint remaining. The claimant does not pursue the complaint that was set down in his pleadings and I do not grant permission for him to amend his claim. Application to strike out Respondent’s defence

[41]At the start of day 3, the claimant applied for the respondent’s defence to be struck out pursuant to rule 37(1)(c) and 37(1)(e) ET Rules of procedure. I heard the application and the respondent was given time to prepare its reply and respond orally. My decision was given orally with full reasons. Written reasons were requested and are provided as follows:

[42]Before the claimant’s evidence began, and before the parties were called into the tribunal room, the respondent became aware of a document relevant to proceedings relating to the comparator Christian Prisecaru. The claimant began his evidence mid morning. At lunchtime, the claimant was given the standard warning that he remained under oath and was not permitted to discuss his evidence with anyone during the break.

[43]During the claimant’s evidence, the respondent sent him a further document relating to the comparator Christian Prisecaru. During the afternoon, the claimant was cross examined on the basis that the comparator was in a materially different situation to himself. I am told that some of counsel’s questions of the claimant during the afternoon were based on information within that document.

[44]Neither party now wishes to rely on this document before me and I was not shown it prior to determining the application. The claimant indicated that he wished to cross examine about the issues raised in the document.

[45]The claimant contended that it was a breach of my order not to discuss the evidence for the respondent to send him further documents during his evidence. He drew attention to the fact he is a litigant in person.

[46]The respondent said that they are under a continuing duty to disclose relevant documents and that they disclosed the document in that spirit and not with an intention to do anything improper. Nor did they consider they have acted contrary to the Tribunal orders. They say a fair trial remained possible and the claimant had been cross examined and could still cross examine the respondent’s witnesses about the documents.

[47]I noted that during the evidence the claimant himself also sent a document to the respondent despite my warning that it was not appropriate for him to discuss his case with anyone. This was accepted as being a genuine error and sent in the spirit of trying to be helpful. The respondent made no further comment on it. Albeit recognising that the claimant is a litigant in person, I was concerned that the claimant appeared to apply a different standard to others than he applies to himself, applying to strike out the Page 7 of 36 respondent’s defence while permitting himself to take the same actions without consequence.

[48]Striking out a case is a draconian measure that should not be imposed lightly (see Blockbuster Entertainment Ltd v James

[2006] IRLR 630

, CA). Where considering the possibility of striking out a response due to the way the proceedings have been conducted, the EAT held in Bolch v Chipman

[2004] IRLR 140

, that there are four matters to address. These are paraphrased in Chidzoy v BBC

UKEAT/0097/17/BA

as follows: 1. There must first be a conclusion by the ET not simply that a party has behaved unreasonably but that the proceedings have been conducted unreasonably by her or on her behalf. 2. Assuming there is such a finding, in ordinary circumstances the ET will still need to go on to consider whether a fair trial is still possible, albeit there can be circumstances in which a finding of unreasonable conduct can lead straight to a Debarring Order (see De Keyser Ltd v Wilson

[2001] IRLR 324

EAT (Lindsay P presiding)). That might be, for example where there has been “wilful, deliberate or contumelious disobedience” of an ET Order, otherwise it might be where the conduct in issue is so serious it would be an affront to the ET to permit the party in question to continue to prosecute their case (see Arrow Nominees Inc v Blackledge

[2000] EWCA Civ 200

). 3. Even if a fair trial is not considered possible, the ET must still consider what remedy is appropriate and whether a lesser remedy might be more proportionate. 4. And even if it determines that a Debarring Order is the appropriate response, the ET should consider the consequences of that Order (allowing that, for example, where a response has been struck out at the liability stage, it might still be appropriate to allow the Respondent to participate in any remedy hearing).

[49]I also considered the case of Scott v Inland Revenue Commissioners [2004] ICR, CA, which stipulated that once an order for disclosure has been made, that duty remains continuous throughout the proceedings.

[50]The respondent is under a duty to disclose evidence. That is a continuing duty. It does not stop once the proceedings have commenced.

[51]I did not give a warning to the respondent that they must not send the claimant documents while he was mid way through his evidence. Nonetheless I considered it was, at its lowest level, unwise for the respondent to do so knowing that he would not be allowed to discuss the document or do anything with it until he had finished evidence. However, I did not consider the respondent was in breach of an order in doing so. Page 8 of 36

[52]I also noted that, despite my instruction which was clearly given to him, the claimant looked for documents and sent them to the respondent at 1.27pm, around the time that the respondent was sending him evidence. Also while he was giving evidence.

[53]It seems to me that both parties erred in respect of sending each other documents.

[54]Turning to the important question of whether I considered a fair trial is still possible. Plainly it was. A striking out order is not a punishment and in my view a fair trial remained still possible.

[55]The documentation came to light while the parties were still present and the claimant properly brought it to my attention. I extend the opportunity to the parties to provide me with the evidence and to the claimant to be recalled should he wish to address it further. I agreed to look at the documentation and the claimant was given the opportunity to cross examine the respondent’s witnesses by reference to it.

[56]I considered that it was not appropriate to strike out the respondent’s response. Sending the document was ill judged but I did not consider the threshold in the rule 37 has been met. Even if it were, a fair trial had not been prevented. The application failed and the tribunal proceed to hear the respondent’s evidence.

Findings of fact

[57]The respondent is a private company operating public transport services over Central, South and West London. It operates over 800 buses across 51 routes and employees approximately 2,500 staff.

[58]The claimant started working for the respondent as a trainee bus driver at the Beddington depot in June 2004. He has worked at that same depot ever since and had always had very good relationships with his work colleagues as well as good feedback from passengers over the years.

[59]The claimant became a branch secretary for Unite the Union in November 2019. In January 2020 he attended the depot on his day off to carry out voluntary union work. He was asked to cover a route later that same day. He agreed on the basis that the whole day would be paid, including both the voluntary union activities and the driving work. There followed a dispute over whether or not the claimant should infact be paid and whether the budget provided for the claimant to be paid for voluntary union work in this way. On 12 February 2020, the claimant was told that “if we already have a Union representative carrying out duties we would not request for you to be stood down”. He was further told that stand downs are organised in advance and approved by the Operations Manager.

[60]The claimant raised a grievance which was initially refused but then resolved in his favour on appeal on the basis that he had an agreement on the day with the Central Duty Manager that he would be paid for the full day (both union work and driving work) and that any authorisation process for payment of union hours was not his responsibility. Payment was reinstated in November 2020. Page 9 of 36

[61]The claimant believed things returned to normal and he got on with his job and union duties without issue for the following year. In hindsight the claimant says he feels that the grievance outcome had not gone down well with management and the other union reps including Marshall Green who accompanied him through the grievance process and Richard Nock who was then the chairperson. The Alleged Protected Disclosures

[62]Prior to his appeal, the claimant says he became concerned about others being stood down and paid for union activities in a way which was contrary to the explanation he had been given in February 2021 as to when and how approval of funding for union activities are approved.

[63]On 9 December 2021, the claimant sent an email to Mr Passfield, Operations Manager which he says was his first protected disclosure (“Protected Disclosure 1”), to say: “There is a concern that the stand down provision for Trade Union duties here at Beddington is being used NOT in accordance with the rules of the Union that it is causing a detriment. As Branch secretary, I am trying to establish some facts before I report back to Unite the Union Regional Office, so I would appreciate if you could take a little bit of time to answer the questions below. Paula Dixon was stood down on the 22nd of October, on the 29th of October and again on the 4th of November 2021. …”

[64]The email then asked a series of questions to establish when the request for stand down for union activities was made, by whom, what reason was given and whether it was approved. The claimant agrees that at this stage he was trying to establish the facts.

[65]The claimant says he was concerned that the individuals were breaking company policy and that he later also considered their actions were illegal. He explained in evidence that by “illegal” he meant that the actions were contrary to company policy. He accepts that he did not say this in his email but says this was what was in his mind.

[66]The claimant said in his evidence that he was concerned about the financial detriment to drivers if the company budget was being misused and also that he feared Ms Dixon was going to be controlled by Marshall Green, the shop steward, who he felt was mistreating others. He did not say these things in his correspondence of 9 December 2021.

[67]Having not received a reply to this email, the claimant sent a chaser email on 21 January 2022 asking the same questions. This time he copied in the Union and Marshall Green. He said: “It is important that we establish facts into this matter to prevent any recurrence of detriment caused to drivers and to other Union or none members here at Beddington” (“Protected Disclosure 2”).

[68]On the same day, Mr Green answered the email to say that he was the one who had requested Ms Dixon be stood down. Page 10 of 36 The First Grievance

[69]The claimant was dissatisfied with this response and on 24 January 2022 issued a grievance titled “Grievance against Mr Marshall Anthony Green”. Within the grievance he complained that Mr Green was bringing the company into disrepute with the union “by way of deceit and he has caused a detriment to Paula Dixon and to myself”. He further complained that Mr Green had coercively controlled Ms Dixon by way of bullying, discrimination, harassment and intimidation (“Protected Disclosure 3”).

[70]This grievance was investigated by Mr Ayeni, Driver Manager. The investigation included a grievance hearing with the claimant on 15 February 2022. The claimant says that the evidence he provided to support his disclosure was made during this meeting and he relies on this context as part of protected disclosure 3.

[71]During the meeting the claimant explained that he considered the use of union funds was contrary to the company budget and company policy. He further complained about Mr Marshall coercively controlling Ms Dixon for the purposes of advancing his own control of the trade union activities. He said that this was illegal. The language of harassment is used, but in the sense of harassing someone to obtain access to account details as opposed to harassment under the Equality Act. The control that the claimant describes all relates to trade union activities.

[72]The hearing record that the claimant’s companion spoke with the claimant in “mother tongue”. Despite having first said the notes were accurate, when questioned about this, the claimant later said that this note was inaccurate and demonstrated the respondent’s prejudice towards him and his acquaintance with a certain group of people. I do not accept this. Rather I accept Mr Ayeni’s account that the words were included in the note because it is what had happened. I accept that Mr Ayeni wanted clarity and transparency and to understand what the claimant was saying. I do not find that Mr Ayeni had any prejudice towards the claimant due to his race nor do I consider that the inclusion of this part of the note suggests any prejudice.

[73]On 10 March 2022 the grievance was rejected. The claimant appealed but for some unknown reason, the appeal was not responded to and the claimant did not pursue it further. There is no claim about the inclusion of the phrase or any other matter about the grievance and so I make no further findings about it. The Trade Union Elections

[74]In January 2022 Unite the Union wrote to the claimant in the capacity of his union role, about the need for an election of workplace representatives for 2022 – 2025. The claimant set about making the necessary arrangements including arranging the nominations for representatives and the ballot officers. He was nominated for the position of Chairperson alongside Ms Dixon.

[75]The day of the election was scheduled for 4 March 2022. The claimant accepted that up until 3 March 2022, Mr Passfield, Operations Manager, was working together with him without concern, to prepare for the election. Page 11 of 36

[76]On the day of the election, 4 March 2022, the claimant arrived at the depot at around 04:26am. He saw his colleague Mr Nock there who had seemingly been looking through the ballot boxes and voting materials. The claimant believed he had no reason to be there and challenged him. The two had an argument which was witnessed by other colleagues. The colleague left and voting began at 04:34am. It was later confirmed by Guy Langston of Unite the Union that he had advised that Mr Nock should be part of the group overseeing the election to ensure it was carried out fairly. It seems this had not been communicated to the claimant before the day.

[77]Shortly before 5am, Ms Dixon arrived. The claimant says that he heard her yelling at the ballot officers telling them they had no authority to conduct the voting process. He says she was deliberately disturbing a democratic process so he intervened to confront her about her conduct. Ms Dixon said that during this altercation, the claimant called her a “racist cunt” (from now on described as the “offensive language”). He did so at the top of his voice in front of many drivers.

[78]A further altercation took place with Mr Green at around 8am when he tried to remove the stool that a ballot box was placed on and the claimant sought to recover it. Respondent’s handbook and disciplinary policy

[79]The respondent’s staff handbook gives an example of gross misconduct as “threatening and aggressive behaviour”. The claimant accepts he was aware of the standard the company expected of him in this respect.

[80]The harassment and bullying policy describes “shouting or swearing at people in public and private” and “personal abuse and/or ridicule either in public or private” as examples of bullying. The policy says that any bullying will be classed as misconduct and much of the examples given would be considered to be gross misconduct, the penalty for which is summary dismissal. The policy states that “all such behaviour will result in a disciplinary investigation”. The claimant accepts he was aware of the policy.

[81]The respondent’s suspension policy provides that “in certain circumstances, it may be necessary to suspend an employee from duty whilst an investigation takes place.” The claimant says that there has to be an investigation before suspension but this is not the approach the respondent takes. The respondent’s approach is that the suspension is ongoing while the investigation takes place.

[82]The respondent’s policy continues “Suspension is normally appropriate where there are allegations of gross misconduct, where the manager has reason to believe that the employee might deliberately cause damage or create problems, or if the employee’s continuing presence at work might prejudice the investigation in some way.” Suspension

[83]The incidents of 4 March 2022 were reported to the Operations Manager Mr Passfield by Trena Clunis and Samantha Porter. It is not wholly clear which incidents Mr Passfield was told about but, at a minimum, it included the use of the offensive language. Ms Porter Page 12 of 36 later told the investigator that she had witnessed the claimant using the offensive language towards Ms Dixon. Mr Passfield decided that the circumstances of the policy were met and decided to suspend the claimant.

[84]Mr Passfield suspended the claimant in line with the respondent’s disciplinary policy. He did not discuss the matter at this stage, or it seems at any stage, with an official employed by the union as advised by the ACAS Code of Practice on disciplinary and grievance procedures, para 30.

[85]Mr Passfield suspended the claimant in person at around 10am. A suspension letter was given to the claimant by hand reporting that he had allegedly used “foul and abusive language directed at a colleague”.

[86]The letter stated that the purpose of the suspension was to enable a full and fair investigation of the facts before making a decision on the most appropriate course of action. It was designed to protect the best interests of the claimant and the company and should not be regarded as any form of disciplinary action.

[87]Other than speaking with Ms Clunis and Ms Porter, Mr Passfield did not carry out any investigation before deciding to suspend and, according to the suspension letter, did not form a judgment as to whether or not he believed the claimant had committed an act of gross misconduct. Rather he recognised the allegation of “foul and abusive language directed at a colleague” was serious and considered suspension was appropriate while it was investigated.

[88]The claimant did not raise any complaint or grievance about the fact of his suspension, or that he considered it related to his race and/or his trade union activities and/or protected disclosures at this time. He said it was during the disciplinary process later that it became apparent to him that he was suspended for his union membership and activities and because his colleagues wanted him to miss out on the election.

[89]The claimant says that the respondent has provided inconsistent accounts in its grounds of resistance, its response to questions in the litigation and the suspension letter as to why he was suspended. There are some differences but the consistent theme is that the suspension related to the claimant’s conduct towards Ms Dixon. This was the reason seemingly relied on by Mr Passfield in his letter of suspension.

[90]The claimant challenges the reason why Ms Porter was in the vicinity of him on 4 March 2022 and says she was sent as a “spy” on behalf of Mr Passfield. I am not persuaded that this is the case. There was nothing untoward about Ms Porter’s presence on the day and I note that even had she been asked to attend due to concerns about the claimant, this would not excuse the claimant’s behaviour on the day.

[91]At 11.47am, Guy Langston of Unite wrote to Mr Green and requested that he suspend the ballot immediately. Mr Langston later said that the election was abandoned and re run: Page 13 of 36 “due to several instances, your outburst and the fact that I witnessed yourself standing over the ballot box on my arrival at Beddington, when I tackled you on that, you apologised and moved away from the ballot box and the area.” Rearranged election

[92]The election took place on 11 March instead. The claimant says 230 people were eligible to vote. The claimant was included on the ballot paper but says he was unable to vote as he was suspended. He did not ask to go and vote and I was not taken to a rule that said that an individual was unable to vote while suspended. I have seen that the respondent’s policy was that an individual should not attend the respondent’s premises while suspended.

[93]I was shown an email of 16 March 2022 in which the claimant complained about being unable to vote and various procedural matters. He did not say at this stage that he believed this was because of his trade union activities or his race or protected disclosures.

[94]The claimant says that if the respondent wanted him to be able to vote on 11 March they could have acted more swiftly on his grievance of 7 March 2022 to remove his suspension. I do not agree. I consider that both the grievance and the suspension investigation were acted on promptly. The claimant did not say in his grievance that he believed the purpose of the suspension was to prevent his involvement in trade union activities and so the respondent was not put on notice of this alleged risk. In any event, he was on the ballot paper on 11 March and the union later confirmed that the election on that day was held appropriately. Second Grievance

[95]On 7 March 2022 the Claimant raised a grievance against Mr Nock alleging trespass, that he should not have been in the union office on 4 March 2022, and threat and intimidation, that the claimant says he shouted at him and became aggressive and tried to engage in physical contact. He further alleged that he suspected Mr Nock of theft of various receipts of purchases made in relation to the branch account. He did not say that his grievance against Mr Nock had any bearing on his own behaviour on the same day.

[96]This grievance was investigated by Mr Ayeni, a Driver Manager based at a different site to the claimant. Mr Ayeni interviewed a number of witnesses and corresponded with Guy Langston of Unite the Union before reaching his decision. On 8 June 2022 he informed the claimant that the grievance would not be upheld as he had not found any evidence to support the allegations the claimant had made. He concluded that Mr Nock had not trespassed into the union office and that he had not acted in a threatening or intimidating manner and had not stolen payslips.

[97]The claimant says that within the outcome letter the respondent held that he was going to “rig” the election. There is no such finding within the letter.

[98]The claimant did not appeal this decision (see ACAS Code of Practice on disciplinary and grievance procedures, para 41). Page 14 of 36 Investigation

[99]Following the suspension, Mr A Holder, a Driver Manager based at Twickenham, was commissioned to carry out a fact finding investigation. Mr Holder told the tribunal that he attended training into how to conduct investigations on an annual basis.

[100]Mr Holder, and those that followed, applied the respondent’s normal disciplinary procedure in respect of the allegations against the claimant.

[101]Mr Holder wrote to the claimant to invite him to an interview on Wednesday 9 December 2022, that is the 3rd full working day after the incident. The interview took place the following Tuesday 15 March 2022. The claimant said he did not remember using the offensive language described towards Ms Dixon. He denied that it was him who had done so and suggested it may have been a case of mistaken identity. He was given the opportunity to say if there were any mitigating features that may have explained his behaviour on the day but did not offer any explanation. He did not refer to his interactions with Mr Nock earlier in the day.

[102]Mr Holder conducted interviews with various colleagues of the claimant as follows:a. Samantha Porter. 15.03.22. 10:26am. Mr Holder asked her if she recalled “any expletives exchanged between them”, ‘them’ being the claimant and Ms Dixon. She said “yes only him though not her”. When asked to elaborate she said that she had heard him using the offensive language towards Ms Dixon using the same words as Ms Dixon had also said were used. Mr Holder ensured that Ms Porter was familiar with the respondent’s code of conduct policy and then asked “How would you describe Mr Vouzon’s conduct?” She answered “shocking”. Mr Holder asked “How would you describe Paulas conduct?” She answered “She was calm”.

b. Trena Clunis. 15.03.22. 10:48am. Ms Clunis did not witness the incident between the claimant and Ms Dixon but she did explain that she had been told by Ms Porter and Mr Nock that the claimant had used the offensive language. She witnessed what she described as a “commotion” between the claimant and Mr Marshall. In the same way as with others, Mr Holder ensured Ms Clunis was familiar with the respondent’s code of conduct policy before asking “How would you describe Mr Vouzons conduct?” She answered “aggressive and unprofessional”. He then asked “How would you describe Marshall’s conduct?” She answered that she would not say his behaviour was unprofessional. She said that she sent Mr Passfield a message asking him to call her because things were so out of hand.

c. Marshall Green. 15.03.22. 11:40am. Mr Holder asked Mr Green to describe his interactions with the claimant in the same way as he had with others. He asked about the code of conduct and asked “How would you describe Mr Vouzon’s conduct?”. Mr Green did not directly ask the question even when asked twice. Mr Holder went on to ask “did he shout at you?” and “what was he shouting?” Mr Holder later asked “Can I ask if you believe there are any underlying reasons why Mr Vouzon would speak to you in such a way?”. Mr Green answered “I believe there may be something wrong with him and I don’t know what it is”. Page 15 of 36

d. Paula Dixon. 15.03.22. 12:30pm. Similarly to his other interviews, Mr Holder ensured Ms Dixon was familiar with the respondent’s code of conduct policy and then asked her “How would you describe Mr Vouzon’s conduct?” She answered “aggressive and desperate”. She said she was 100% sure that it was the claimant who verbally assaulted her using the offensive language described. The claimant had said that it may be a case of mistaken identity. Mr Holder asked “so you can be sure it’s not a case of mistaken identity and the person you made the allegation against is definitely Kouadio Vouzon?” Ms Dixon nodded her head and answered yes.

e. Richard Nock. 15.03.22. 14:22pm. Mr Holder asked Mr Nock if he recalled an incident between two colleagues, the claimant and Ms Dixon and if so if he could describe it. Mr Nock described the incident including that the claimant had used the offensive language. He said that the claimant’s behaviour was “very aggressive”. Mr Holder asked exactly the same questions as he had asked the other interviewees regarding his knowledge of the respondent’s code of conduct policy. He used the same words to ask “how would you describe Mr Vouzons conduct?” and “How would you describe Paulas conduct?”. He asked Mr Nock “Did Mr Vouzon vent his frustration at anyone else other than Paula and yourself?” Mr Nock referred to another incident with Mr Green. Mr Holder asked “What did you see happen?” He answered “Silliness”. When asked “How would you describe Mr Vouzon’s conduct?” He answered “Again it was very aggressive”.

[103]Mr Holder did not ask Mr Nock about the incident in the morning between the claimant and Mr Nock despite Ms Dixon having said in her occurrence report that the claimant had already been “shooting” at Mr Nock. At the investigation stage, neither Mr Nock or the claimant mentioned that any separate incident with Mr Nock had any relevance to the investigation. The claimant did not tell Mr Holder that he had raised a grievance against Mr Nock or that he considered it was relevant to the matter he was being investigated for.

[104]The claimant’s case is that the questions asked were leading and inappropriate questions designed to get the answers that Mr Holder wanted and designed to find the claimant guilty of gross misconduct. I do not agree. I find that the questions asked were predominantly neutral and balanced. The same questions were asked of every witness and the same phrasing was used to ask about the conduct of the claimant and Ms Dixon and/or Mr Marshall.

[105]I accept that Mr Holder’s questions were designed to elicit clarity about the alleged incident and not to direct what that information should be or to establish guilt. The witness was at liberty to give whichever answer they chose and to describe each person’s conduct in whichever way they chose.

[106]The claimant further says that the answers given were discriminatory and conformed to racial stereotypes. Mr Holder, who is also black, says that he did not consider that the answers given were because of race. He said, and I accept, that he was aware of instances where the characteristic of aggression may be used more frequently to describe people who describe their race as black African as the claimant does. However, he was satisfied that the language used was neutral and not racially motivated Page 16 of 36 in the present situation. He considered this to be the case because of the common consensus between the interviewees as to what had taken place. He accepted the language chosen by the interviewee and did not feel it necessary to challenge them.

[107]Mr Holder asked to speak to the claimant again on 16 March 2022. Mr Holder, in my view quite properly, gave the claimant the opportunity to address what Ms Dixon said in her interview with him, specifically that she was 100% sure it was the claimant who had used the words towards her. The claimant chose not to address this contending that the investigation should be limited to the occurrence report only.

[108]Mr Holder gave the claimant the opportunity to address comments made by others he had interviewed including Ms Porter, Mr Nock, Ms Clunis and Mr Green. In respect of each, the claimant answered “no comment”. He was pressed as to whether he wished to say anything about the fact five colleagues had given evidence and some had witnessed verbal abuse displaying aggressive conduct and others had witnessed him displaying aggressive conduct over a table. He answered “That’s their evidence, I have no comment to make on their evidence.”

[109]Mr Holder was sufficiently satisfied in the credibility of the witness evidence that he considered the matter should progress to a formal disciplinary hearing in respect of both the alleged verbal abuse of one colleague (Ms Dixon) and the allegation of aggressive conduct towards another (Mr Marshall).

[110]The claimant now says that Mr Nock was paid by Mr Passfield to attend the site to cause the trouble which led to the claimant’s suspension. He further says that the 5 witness statements collected were part of a cover up to cover up the deliberate act to take him out of the election process. This was not something said at the time and so was not considered by any of the disciplinary decision makers during the internal process.

[111]I have not been persuaded that the trouble was started or incorrect witness evidence was given in order to set up the claimant or to remove him from the election process. I accept that some colleagues would have wanted to vote for the claimant and others would not. I further accept that there may have been some animosity between those in the office on the day. However, there is no evidence that the events of 4 March 2022 were orchestrated by others to cause the claimant to use the language he did or designed to ensure the removal of the claimant from the election process. Arranging the disciplinary hearing

[112]The claimant was invited to a disciplinary hearing on 31 March 2022. At the same time he was provided with all of the investigation interview notes from Mr Holder.

[113]The claimant asked that the hearing be postponed in order to allow Unite the Union to conduct its own investigation. This request was granted and the claimant was asked to confirm when the external investigation had concluded. He did not do so and, after 2 months, the hearing was rescheduled. Page 17 of 36

[114]Sam Teggart, Operations Manager, was appointed to conduct the disciplinary hearing. Ms Teggart had never worked at Beddington, where the claimant worked, and had not met the claimant before.

[115]The disciplinary hearing was mistakenly scheduled for the same day as the second grievance hearing. One was scheduled for 9.30am and one for 10am. Ms Teggart learned of the clash when she arrived on site for the disciplinary hearing.

[116]Ms Teggart decided to postpone the disciplinary hearing until after the grievance hearing had concluded as was recommended by the respondent’s own disciplinary policy and the ACAS Code of Practice on disciplinary and grievance procedures, para 46. The Code also says it may be appropriate to deal with related grievance and disciplinary cases concurrently. This is not something the respondent did. Instead Ms Teggart invited the claimant to a new hearing on 16 June 2022 following the conclusion of the grievance.

[117]The claimant was absent from work due to ill health from 11 June 2022.

[118]The claimant has disclosed some, but it seems not all, of his communications with the Union relating to these matters. I saw that he wrote to the Union on 13 July 2022 explaining that he considered the disciplinary proceedings were unfair and part of a conceived plot to victimise him on the grounds of his trade union activities. He complained about collusion between Mr Passfield and Mr Langston of the Union and his colleagues to cause disturbance and put the blame on the claimant. In reply the deputy regional secretary referred back to previous correspondence from the union which I was not shown. He also told the claimant the region’s position which was that the branch election was conducted appropriately and the result will stand. They said that a female employee had complained to them on 7 March about the claimant’s conduct which was believed was the same complaint that was being considered internally by the respondent. He said that there would be an investigation but essentially that it would follow that of the respondent. The claimant did not tell the respondent that this was the union’s response.

[119]On 2 September 2022, Ms Teggart wrote to the claimant saying: “Following previously scheduled hearings which you were unable to attend due to sickness, I am writing to invite you into a rescheduled disciplinary hearing.”

[120]The claimant replied on 6 September 2022 complaining about the letter stating that it was wrong to say that he was unable to attend due to sickness and that Ms Teggart was trying to blame him for what he said was the respondent’s inability to carry out an investigation. He set out in detail the reasons why each of the previous disciplinary hearings had been postponed.

[121]Ms Teggart replied on 8 September 2022 to apologise for the lack of sufficient explanation about why the first two hearings did not go ahead and to reassure the claimant that she was not deliberately trying to mislead him. When the disciplinary invitation was reissued on 28 September 2022 it included a full break down of the correct reasons why the disciplinary hearings of 31 March, 24 May, 16 June and 9 September did not go ahead. Page 18 of 36

[122]The claimant was deemed fit to attend the disciplinary hearing on 8 September 2022. It was first scheduled for 10 October 2022 then, at the claimant’s request, was rescheduled to 14 October 2022. Despite requesting the new date, the claimant did not attend. Disciplinary decision

[123]On 14 October 2022, Ms Teggart took the decision to issue the claimant with a final written warning. She confirmed her decision to the claimant in writing on 19 October 2022. She found the allegation against the claimant to be proven, in respect of the conduct towards Ms Dixon and that towards Mr Marshall. She found this based on the basis of the evidence provided in the investigation including the claimant’s interviews with Mr Holder, with another 5 witnesses and the occurrence report.

[124]Ms Teggart took into account the claimant’s clean employment record over 18 years at that time and concluded that a final written warning was the appropriate sanction. In evidence she said she felt her decision was lenient.

[125]Ms Teggart explained that she had spoken to Mr Ayeni to understand the grievance that the claimant had made against Mr Nock. She did not consider it to be relevant to the allegation of gross misconduct that she was considering in the disciplinary process as her process concerned the claimant’s conduct towards Ms Dixon and Mr Marshall. She considered the grievance against Mr Nock to be a separate matter which had been investigated and not upheld. The claimant had not appealed that decision. Ms Teggart did not review the Mr Nock grievance decision letter or witness statements relating to the grievance against Mr Nock. She did not consider it had any bearing on what the claimant was alleged to have done to Ms Dixon on that day.

[126]The claimant appealed the decision on the basis of a lack of procedural fairness. The appeal was heard by Martin Moran. He dismissed the appeal and upheld the sanction on 8 December 2022. The claimant was dissatisfied with this decision but there are no live claims before me about it and so no further findings made. Comparators

[127]The claimant says he was treated less favourably than Paula Dixon and Richard Nock who were involved in the incident of 4 March 2022.

[128]There were no complaints about the conduct of Ms Dixon on 4 March 2022 from the claimant or any other witness, nor about her use of any offensive language.

[129]Mr Nock was not alleged to have used offensive language of the nature used by the claimant on 4 March 2022. The allegation from the claimant that he threatened and intimidated the claimant was made on 7 March and not upheld by Mr Ayeni in his decision of 8 June 2022. Mr Ayeni explained that no other witness agreed with the claimant’s allegation and it was deemed the Mr Nock was not the aggressor. Page 19 of 36

[130]In his witness statement, the claimant seeks to also compare himself to the treatment of Ms Dixon in respect of an incident on 1 November 2021. He says that she allegedly racially abused 3 black colleagues. He accepted in answer to my question that she was not accused of using the offensive language that the claimant used on either 1 November 2021. In any event, this was not the comparison that was particularised in the list of issues.

[131]The claimant also says he was treated less favourably than Mustafa Yilmaz and Christian Prisecaru who were involved in an incident on 19 July 2020. He says there was a near physical fight between them and an investigation and disciplinary process took place. He did not provide any further details.

[132]Mr Ayeni explained that the “c word” had been used during an incident between these two employees on 16 July. He had investigated it by speaking with each employee. One said it had been said and one denied it. There was no CCTV and no witnesses. Mr Ayeni concluded that he did not have sufficient evidence that there had been gross misconduct and he decided it was not appropriate to suspend either employee. He said there was a second incident on 17 July which did have witnesses who confirmed what had been said and so that matter did proceed to a disciplinary hearing. It was only this latter incident that the claimant had been a part of but this latter matter did not amount to gross misconduct. Based on the gravity and the information provided, Mr Ayeni deemed that suspension was not necessary.

[133]I find that in respect of each of these purported comparators, there were material differences between the circumstances relating to their cases and that of the claimant. They are not actual comparators within the meaning of s.23 Equality Act 2010 (“EqA”). Issuing the claim

[134]On 8 December 2022 the claimant notified ACAS of his complaints and on 19 January 2023 he was issued with an early conciliation certificate. He issued the present proceedings on 27 January 2023. On the face of it, the significant number of complaints about something that happened before 9 September 2022 may not have been brought in time.

[135]The claimant explained that his mother had passed away in Ivory Coast in April 2022. He had felt isolated and describes feeling his life was turned upside down. He was signed off due to ill health from 11 June 2022 onwards. He had counselling which went on until late October 2022 and felt he was not in the right state of mind to make a claim to the Tribunal any earlier than he did. Jurisdiction

[136]The relevant legal tests are detailed within the list of issues. The primary time limit for all claims in these proceedings is 3 months. Taking into account the ACAS early conciliation process this means that all claims brought prior to 9 September 2022 may be out of time. Page 20 of 36

[137]The parties are agreed that a number of the claims are brought out of time subject to the claimant establishing that they are part of a series of acts or continuing course of conduct extending over a period. If the claims are out of time, the claimant seeks to persuade the tribunal that it is appropriate to extend time.

[138]In respect of the discrimination claim, if the claims are out of time they may be permitted to proceed if they have been brought within such other period as the tribunal consider to be just and equitable (s.123 EqA).

[139]The relevant legal provisions in respect of time for bringing the whistleblowing and trade union detriment claims provide that out of time claims may be permitted if it was not reasonably practicable for the claim to be made within the time limit. If so, the claim may be permitted if it was made within such further period as the tribunal considers reasonable (s.48 ERA and s.147 TULR(C)A). Protected disclosures

[140]The claimant complains of the detriment of suspension on the grounds of having made protected disclosures, contrary to section 47B ERA: "(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure."

[141]The concept of a protected disclosure stems from Part IVA (Protected Disclosures) of the ERA, in particular section 43B which defines a qualifying disclosure. The requirements are that:(a) the worker makes a disclosure of information.

(b) the worker reasonably believes it is made in the public interest;

(c) the worker reasonably believes it tends to show one of the matters listed in section 43B(1)(a)-(f) ERA 1996, which includes a breach of legal obligation.

[142]The test for whether a disclosure is protected involves both subjective and objective elements. The reasonable belief test requires considering what a person in the discloser's position would reasonably believe based on their knowledge and experience (Korashi v Abertawe Bro Morgannwg University Local Health Board

[2012] IRLR 4

). Direct Discrimination

[143]Section 13 EqA 2010 defines direct discrimination in the following terms: “(1) A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

[144]An actual or hypothetical comparator will be required in discrimination claims. The comparator must not share the protected characteristic, but the circumstances of the comparator must be the same as or not materially different from the Claimant (s.23 EqA). Page 21 of 36

[145]The test to determine whether less favourable treatment is “because of” the protected characteristic is not a simple “but for” test. The House of Lords said, in Nagarajan v London Regional Transport

[1999] ICR 877

that the protected characteristic must only have a “significant influence on the outcome”, that is it must influence the decision more than trivially, for discrimination to be made out. Similarly, in O’Neill v Governors of St Thomas More Roman Catholic Voluntarily Aided Upper School and anor

[1997] ICR 33

, the EAT held that the protected characteristic need not be the main reason for treatment, provided it is an “effective cause”.

[146]Discrimination may be sub-conscious or subconscious (Nagarajan) Harassment

[147]S.26 EqA defines harassment as: (1) A person (A) harasses another (B) if- (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— i. violating B's dignity, or ii. creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

[148]In respect of direct discrimination and harassment s.136 EqA provides that if there are facts from which the court could decide, in the absence of any other explanation, that a person has contravened a provision then the tribunal must hold that the contravention occurred unless the employer shows that it did not contravene the provision. Trade union detriment

[149]Section 146 of the of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULR(C)A”) provides, so far as material: - “(1) A worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of— … (b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so…”

[150]The question of whether the employee qualifies for protection under paragraphs (a) to (c) of section 146(1) is an objective question to be decided by the Tribunal. The question of the employer’s “sole of main motive” is a subjective question, to be judged by enquiring into what was in the mind of the employer at the time (University College London v Brown (

UKEAT/0084/19/VP

). ACAS Code Page 22 of 36

[151]If any of the claims are successful and the ACAS Code of Practice on Discipline and Grievance applies, then there may be an uplift to any compensation awarded accordingly. Conclusion on liability Protected disclosure – whistleblowing

[152]The claimant complains that his suspension on 4 March 2022 was a detriment done on the ground that he made protected disclosures. The claimant was required to notify ACAS of this claim by 3 June 2022 but did not do so until 8 December 2022. It was not part of a series of acts as it is the only act complained of.

[153]The claimant has not satisfied me that it was not reasonably practicable for him to bring his claim within the three-month period following the suspension. I appreciate that the claimant was deeply upset to be suspended and was grieving the loss of his mother at a similar time but these matters did not prevent him engaging in the investigation process, raising a grievance and engaging in significant correspondence with his trade union during those first 3 months. At no time did he make clear that he considered his suspension was because of his protected disclosures.

[154]Had the claimant proven that it was not reasonably practicable for him to bring his claim within time, I would have found that he had brought it within a reasonable period thereafter recognising that from mid June onwards he was certified as unwell. I accept that he sought counselling which continued until late October 2022 and that he then commenced conciliation by early December 2022.

[155]For completeness, I have considered the merits of the whistleblowing claim in any event. Protected Disclosure 1 – 9 December 2021

[156]Having carefully considered the content and the context of the email of Thursday 9 December 2021, I find that it does not constitute a protected disclosure within the meaning of the whistleblowing legislation.

[157]Within his email, the claimant wrote to the Operations Manager Mr Scott Passfield, saying there was a concern that stand down provision for Trade Union duties was not being used in accordance with the rules of the union and asking a series of question to establish some facts about the same.

[158]The claimant did not disclose information which tended to show one or more of the categories of disclosure that are described in section 43B(1)(a)-(f) ERA 1996 and I do not consider he had a reasonable belief of the same. He did not disclose any information. Rather he said there was a concern and asked for information to determine whether or not that concern was evidenced by the information available. He was asking for information rather than providing it. Page 23 of 36 Protected disclosure 2 – Friday 21 January 2022

[159]On 21 January 2022, the claimant chased Mr Passfield for an answer to his email of 9 December 2021. He did not provide any fresh information. For the reasons stated above, again having considered both the content and the context of the email, I consider that the email of 21 January 2022 was not a protected disclosure within the meaning of the whistleblowing legislation. Protected disclosure 3 – 24 January 2022 inclusive of 15 February 2022 meeting

[160]I consider it is appropriate to read the grievance of 24 January 2022 in the context of the meeting of 15 February 2022. In respect of the information provided under the heading “bringing the company into disrepute”, I conclude that this is not a protected disclosure within the meaning of the whistleblowing legislation. The claimant has not satisfied me that the information provided falls under any of the categories of disclosure that are described in section 43B(1)(a)-(f) ERA 1996. It was not the claimant’s reasonable belief that the alleged conduct was contrary to a legal obligation. He openly agreed that when he referred to “illegal”, he was infact referring to the conduct being contrary to an internal policy obligation only.

[161]In respect of the allegation that Ms Dixon was coercively controlled by way of bullying, discrimination, harassment and intimidation by Mr Green, reading the email alongside the interview notes of 15 February 2022, I consider that this a protected disclosure within the meaning of the whistleblowing legislation.

[162]The claimant provides specific evidence of why he holds the belief that Ms Dixon is being coercively controlled. This is in the public interest, in the sense that a significant number of people within the respondent would be affected by union being controlled incorrectly as alleged. I am not required to determine whether or not the claimant’s concern was accurate and I note that Ms Dixon denied being under any control of Mr Marshall. My finding is limited to the belief of the claimant only and I consider that belief was reasonable and the disclosure of the information by way of the allegation backed up with actual examples means it was a protected disclosure within the meaning of the ERA 1996. Detriment

[163]The detriment complained of is that the claimant was suspended on 4 March 2022. This is a detriment in law.

[164]However, I conclude that the claimant was not subjected to the suspension on the grounds of having made protected disclosure number 3 in respect of Ms Dixon being coercively controlled.

[165]The claimant has not provided any evidence to support his case. His argument is based on circumstance and suspicion rather than facts from which I could infer any causative link. Page 24 of 36

[166]On the contrary, the respondent has demonstrated that the reason the claimant was suspended was because of the direct reports that he has used offensive language as described in the factual findings section and not because he had made protected disclosures. The argument is compelling given the language the claimant allegedly used was of sufficient severity to amount to gross misconduct under the respondent’s policies and to warrant suspension while the investigation was ongoing.

[167]I do not consider that there is a causative link between the grievance of 24 January 2022 and the suspension of 4 March 2022. The grievance may indicate animosity between the claimant, Ms Dixon and Mr Marshall but this in itself does not provide evidence from which I could infer that it was the reason the relatively new Operations Manager, Mr Passfield, made the decision to suspend. Direct discrimination because of race

[168]All the claims of race discrimination are out of time with the exception of those at issues 5.2.2.8 relating to Ms Teggart’s consideration of the Mr Nock incident and 5.2.2.9 relating to her final decision. The claimant says this is conduct extending over a period commencing with the suspension and disciplinary investigation processes up to 16 March 2022 the moving forward to the allegation arising from the grievance outcome letter of 8 June 2022 and concluding with the disciplinary decision of 19 October 2022 which was within time. He says that if not, it is just and equitable to extend time in light of his ill health and the strain he was under due to the passing of his mother and the desire to resolve matters through the internal process.

[169]I consider that the suspension and disciplinary investigation processes were not conduct extending over a period. The allegations about those decisions and processes are discrete. The claimant knew about the questions asked and answers given within the investigation when sent the disciplinary pack on 21 March 2022 (relating to allegations 5.2.1, 5.2.2.1-5.2.2.6 and 5.2.3). There was then a significant gap until the outcome letter of 8 June 2022 (5.2.2.7) and then again until the decision on 19 October 2022 (5.2.2.8 and 5.2.2.9).

[170]In deciding whether to exercise my discretion to extend time to allow the race discrimination claim to proceed I have taken into account that the claimant was well enough to engage in the grievance process, investigation and with the union during the primary limitation period. He then became unwell at the end of that period, from 11 June onwards, and it seems that his engagement then slowed down other than some contact with the union.

[171]I accept the significant impact this matter has had on the claimant and on his health and accept that it was not until after he had received counselling that he felt able to engage with the Tribunal process. Taking into account all the circumstances, despite my finding that all claims pre dating 9 September 2022 are out of time, I conclude that it is just and equitable to extend time to allow the full direct race discrimination claim to proceed. Page 25 of 36

[172]As will be described in the paragraphs that follow, I find that the direct race discrimination claim fails in any event. 5.2.1 Suspend the claimant

[173]As above, I accept that the respondent had good reason for the suspension.

[174]I have not been provided with any evidence from which I could infer that the reason for the suspension was the claimant’s race.

[175]Ms Dixon and Mr Nock are not appropriate comparators. There was a material difference between their circumstances and the claimant’s in that they were not alleged to have used offensive language of the nature used by the claimant. Neither Ms Porter nor Ms Clunis, who spoke to Mr Passfield about the claimant, said they had witnessed Ms Dixon or Mr Nock using the same, or similar, language as the claimant.

[176]Mr Yilmaz and Mr Prisecaru are not appropriate comparators. From the brief information I was given, one incident between them did not involve witnesses and so there was no cause for suspension of either. The second incident was deemed to be misconduct rather than gross misconduct which is not a matter which warrants suspension under the terms of the respondent’s policies. In the absence of any evidence that the circumstances were the same, or not materially different, I am unable to accept that they are appropriate comparators.

[177]Even if I am wrong on this, I have not been provided with any evidence to show that the reason for the different treatment was race.

[178]I accept that the respondent’s reason for the suspension and find that it was wholly unrelated to race. 5.2.2. Carry out the investigation in a manner which was discriminatory? Specifically: 5.2.2.1.On 15 March 2022, Mr Holder asked Ms Porter How would you describe Mr Vouzon’s conduct and how would you describe Paula’s conduct? 5.2.2.2.On 15 March 2022, Mr Holder asked Ms Clunis How would you describe Mr Vouzon’s conduct and how would you describe Marshall’s conduct? 5.2.2.3.On 15 March 2022, Mr Holder asked the questions of Mr Green set down in paragraph 37 of POC. 5.2.2.4.On 15 March 2022, Mr Holder asked Ms Dixon how would you describe Mr Vouzon’s conduct. 5.2.2.5.On 15 March 2022, Mr Holder asked Mr Nock how would you describe Mr Vouzon’s conduct, how would you describe Paula’s conduct, what did you see happen.

[179]The claimant complains that Mr Holder asked these questions about his conduct and also about that of Ms Dixon and Mr Marshall and that in doing so Mr Holder was Page 26 of 36 comparing his conduct, as a black African, with the conduct of others who were not black African. He says this is discriminatory.

[180]I conclude that the questions were asked in the same way to each witness and about each involved party to ensure fairness and not to seek to compare the conduct of the claimant and others involved on the basis of their different race.

[181]I conclude the questions were not less favourable treatment and, quite the contrary, demonstrated that Mr Holder sought to be fair and openly seek the witnesses account of the conduct of all involved, not just the claimant who faced the allegations. Further, there are no facts from which I infer that the questions were in any way related to the claimant’s race. These claims fail. 5.2.2.6. On 15 March 2022, Mr Holder limited his questions of Mr Nock to those in relation to Paula Dixon and Marshall Green and not about what he did in the morning before the other incidents.

[182]It is right that Mr Holder did limit his questions in this way and did not ask about what took place in the morning or what Ms Dixon meant by saying that the claimant had already been “shooting” at Mr Nock. There was a reference to Mr Nock on the occurrence report but it seems that no witness made any reference to it during the investigation meetings nor did any party say that it had any relevance to the claimant’s conduct towards Ms Dixon or Mr Green. The claimant raised a grievance against Mr Nock but did not say that it had any relevance to his conduct towards Ms Dixon or Mr Green.

[183]The claimant now says that this was less favourable treatment and that the interactions with Mr Nock were all part of the context in which he says that other colleagues were sent to cause trouble on the day and essentially to set him up. He did not say this to Mr Holder at the time.

[184]I find that the fact Mr Holder overlooked this incident was inadvertent. The claimant has not explained any connection to the claimant’s race. I conclude that Mr Holder’s actions were not because of the claimant’s race. The claim fails. 5.2.2.7. On 8 June 2022, the Respondent held that the claimant was going to “rig” the election.

[185]The respondent did not hold that the claimant was going to “rig” the election. The letter of 8 June 2022 does not say this. The facts of the allegation are not made out and the claimant has failed to show that he suffered any less favourable treatment in this regard. 5.2.2.8. On 19 October 2022, Ms Teggart ignored the incident with Mr Nock when she made her decision.

[186]I conclude that Ms Teggart’s decision not to take the incident with Mr Nock into account was not less favourable treatment. The grievance raised by the claimant about Mr Nock had been rejected and therefore if she had taken in into account it would not have been a matter that supported the claimant. Page 27 of 36

[187]The claimant did not attend the disciplinary hearing where Ms Teggart made her decision and so he did not tell her that he disagreed with the grievance decision and the reason why. She knew nothing more than that it related to a different person and had been rejected.

[188]The claimant has not provided any evidence or explanation as to why he considers his race had any bearing on Ms Teggart’s decision. Even were I to have found that there had been less favourable treatment in this regard, I would have gone on to find that it was not because of the claimant’s race. 5.2.2.9. Ms Teggart made the decision to impose a final written sanction

[189]Ms Teggart’s decision was reasonable in circumstances where the claimant was witnessed using the offensive language towards Ms Dixon. It was witnessed by Ms Porter who reported it on the day. In interviews, Ms Dixon and Mr Nock confirmed hearing the language being used towards Ms Dixon. Mr Nock, Mr Marshall and Ms Clunis also gave evidence about the claimant’s behaviour towards Mr Marshall. I accept that the conduct of the claimant amounted to gross misconduct according to the descriptions used by the respondent in their disciplinary policy.

[190]The claimant did not give an account for himself to Ms Teggart. He did not attend the disciplinary hearing and did not tell her that he believed that matters were being pursued against him because of his trade union activities, his race and/or his previous protected disclosures. It follows that these were not matters she considered or felt necessary to consider.

[191]Ms Teggart quite properly took into account the claimant’s lengthy clean disciplinary record and in my view the decision to give a final written warning was reasonable and understandable.

[192]This decision-making process was reviewed at the appeal stage and Mr Moran upheld the decision. No complaints are made about his decision making.

[193]I accept that there were difficulties in the relationships between those in trade union leadership positions and those seeking election to the same, in particular between the claimant, Ms Dixon, Mr Marshall and Mr Nock. However, this is not evidence from which I could infer that the reason for the sanction was race. Even were the burden of proof had shifted to the respondent, which I do not, I go on to accept that the respondents have shown that the decision to dismiss was in no way whatsoever because of the claimant’s race but rather was in direct response to the conduct Ms Teggart considered had been proven and the mitigation Ms Teggart had taken into account. 5.2.3. Describe the claimant in a way which amounted to racial stereotypes? 5.2.3.1. Ms Porter described the claimant’s conduct as “shocking”. 5.2.3.2. Mr Green declared that “there may be something wrong with him”. Page 28 of 36 5.2.3.3. Ms Dixon described that claimant’s conduct as “aggressive and desperate”. 5.2.3.4. Mr Nock described the claimant’s conduct as “silliness” and “very aggressive”.

[194]I am satisfied that these were neutral descriptions given by each witness to describe what they saw and heard and not overlaid by any conscious or subconscious racial discrimination. I consider the language was the witnesses personal view of the conduct of the claimant and not less favourable treatment or because of race.

[195]There may be circumstances where language of aggression is unjustly used to describe someone who is black African, or where their conduct is elevated to the heights of “aggression” purely because of their race and not because as an objective assessment of their conduct. This tendency was explored with Mr Holder, who is black himself. He was satisfied that in this instance this was not the reason for the choice of descriptive language used. Like him, I find that the fact multiple witnesses confirmed the inappropriate conduct of the claimant using different language is evidence that they believed his conduct to be aggressive, shocking, desperate and silly as described.

[196]The reference to their being something wrong with the claimant is understandably upsetting to the claimant. However it is not in itself discriminatory and no reason was provided to me as to why I should infer that it was.

[197]I have received no evidence other than the language itself that, in this instance, this language was used consciously or subconsciously because of the claimant’s race.

[198]The claims fail. Harassment

[199]I consider the harassment claims now as they more sensibly follow from the race discrimination claims.

[200]The entire harassment claim is out of time. For the same reasons as above in respect of the claims of direct race discrimination, I concluded that it was just and equitable to extend time to allow the harassment claims to proceed. For the reasons I now describe in the paragraphs that follow, I find that all the claims fail on their merits. 7.1.1 On 16 March 2022, Aran Holder declared that there was little details on the occurrence report so he could not focus the whole investigation from that occurrence report.

[201]Mr Holder considered the occurrence report with the claimant. He then spoke to Ms Dixon and others who were involved or aware of the events of 4 March 2022 to better understand what had happened from each person’s perspective. The statements of the people interviewed quite properly became part of the investigation evidence in addition to the occurrence report. Having received these further statements, Mr Holder Page 29 of 36 interviewed the claimant again to give him the opportunity to respond to the further information he had received.

[202]I conclude that this was not conduct which had the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment (“the adverse environment”) for the claimant. It was a proper way and reasonable way to conduct an investigation. Further no connection has been established between the way in which Mr Holder carried out the investigation and the claimant’s race. For both these separate reasons, the claim fails. 7.1.2. 15 March 2022 – Aran Holder asked “Did Mr Vouzon vent his frustration at anyone else other than Paula?”

[203]This question was asked of Mr Nock during the investigation interview. Mr Nock had described how Ms Dixon had told Mr Vouzon that Mr Nock had been instructed to oversee the ballot and had described Mr Vouzon’s response in which he had said that he was running the ballot and then used the offensive language. He described Mr Vouzon as angry, aggressive and “right in her face”. Having established the behaviour Mr Nock witnessed I consider it was a reasonable follow up question to ask whether Mr Vouzon had vented that frustration at anyone else.

[204]The question did not create the adverse environment of s.26 EqA and was not harassment. Further, no connection to the claimant’s race has been established. For both these separate reasons, the claim fails. 7.1.3. On 15 March 2022, Aran Holder allowed the words “aggressive and desperate” to be used to describe the Claimant. 7.1.4. On 15 March 2022, the Respondent allowed Mr Green to say “I believe there may be something wrong with him and I don’t know what it is”. 7.1.5. On 15 March 2022, Aran Holder allowed the interviewee to refer to the Claimant’s “silliness”

[205]The claimant has complained that the language used to describe him by the interviewees were acts of race discrimination. I have set out above my reasons for rejecting these claims.

[206]I conclude that Mr Holder allowed the interviewees to describe the conduct they witnessed and/or were told about in whichever words they chose. He did not consider the words they used were anything other than reasonable descriptions of what they genuinely saw or heard about and so he did not need to prevent them, or reprimand them, for the words chosen. Taking into account my decision that the words were not race discrimination, I conclude that Mr Holder’s approach to the interviewees answers was reasonable and did not amount to harassment. Further, no connection has been established to the claimant’s race. For both these separate reasons, the claim fails. 7.1.6. On 2 September 2022, Samantha Teggart made a false statement and used medical condition to make it look like the Claimant was to blame for the Respondent’s acts. Page 30 of 36

[207]I have concluded above that this was not race discrimination. I further conclude that it was not harassment. Ms Teggart did make an incorrect statement but it was not with the intention of making the claimant look like he was to blame for anything, not least the respondent’s acts.

[208]The claimant did perceive this to be harassment as is evident by his response. However, I take into account the circumstances of the case including Ms Teggart’s swift apology and rectification in all correspondence that followed. I conclude that it is not reasonable for the conduct to have the effect complained of by the claimant.

[209]I further find that there is no connection established between the conduct and the claimant’s race. The claimant has not offered any evidence at all to establish such a connection. For both these separate reasons, the claim fails. Detriment on grounds related to union membership and/or activities section 146(1) Trade Union and Labour Relations (Consolidation) Act 1992 Time limit

[210]The claimant complains about his suspension of 4 March 2022, being prevented from voting on that same day and on 11 March, the investigation of 15 and 16 March 2022 and the letter of Ms Teggart on 2 September 2022 as being detriments contrary to the protection he is entitled to under TULR(C)A, relating to his trade union activities. The suspension and investigation are part of a series of acts but they are not connected to the letter of 2 September 2022 in that way which I consider to be a standalone act. In any event, all of these complaints are out of time as the claimant did not contact ACAS until 8 December 2022.

[211]The claimant has not satisfied me that it was not reasonably practicable for him to bring his claim about all matters in March 2022 within the three-month period following those matters. As I have mentioned above in respect of the whistleblowing complaints, I appreciate that the claimant was deeply upset to be suspended and was grieving the loss of his mother at a similar time but these matters did not prevent him engaging in the investigation process, raising a grievance and engaging in significant correspondence with his trade union during those first 3 months. His correspondence with the trade union suggests he was concerned that he was being penalised for his trade union activities but he did not commence conciliation with ACAS as he could have done.

[212]As with the whistleblowing claims, had the claimant proven that it was not reasonably practicable for him to bring his claims about the March 2022 events within time, I would have found that he had brought them within a reasonable period thereafter recognising that from mid June onwards he was certified as unwell. I accept that he sought counselling which continued until late October 2022 and that he then commenced conciliation by early December 2022.

[213]For that same reason, although the claim relating to Ms Teggart on 2 September 2022 is out of time (claim 6.2.9), I do consider that, due to his health, it was not reasonably Page 31 of 36 practicable for him to bring this one claim within time and I do consider he did so within a reasonable period thereafter.

[214]Despite all claims except 6.2.9 being out of time and therefore outside of the Tribunal’s jurisdiction, for completeness, I have considered the merits of the trade union detriment claim in any event. 6.2.1 The suspension on 4 March 2022

[215]I find that the effect of the suspension was that the claimant could not take part in the ballot on 4 March and on 11 March. I consider that he was therefore prevented or deterred from taking part in the activities of an independent trade union. I do not consider he was penalised for doing so. Rather, viewed objectively, the claimant was deterred or prevented from participating and voting in the ballot and therefore he does qualify for protection under section 146(1)(b) TULR(C)A.

[216]The next consideration is whether, viewed subjectively, the employer’s “sole or main motive” in suspending him was to so prevent or deter him from voting in the ballot.

[217]The claimant says that the following evidential questions are relevant: 6.2.1.1. Before suspending the claimant on the spot, did the respondent genuinely believe that the claimant had committed any act of gross misconduct? 6.2.1.2. Was that belief based on reasonable grounds? 6.2.1.3. At the time of forming that belief, had the respondent carried out any investigation? 6.2.1.4. Does the respondent prove that if it had adopted a fair disciplinary procedure the claimant would have been suspended? And/or to what extend and when?

[218]I explained to the claimant that these are the questions to ask were the claimant pursuing a case of unfair dismissal but not for the purposes of the trade union claim. In the present case, the respondent had not yet formed a view as to whether the claimant had committed an act of gross misconduct, nor had it carried out investigation or any disciplinary procedure. What mattered to them was that there was an allegation of sufficient severity that warranted investigation and that, under the terms of their policy, suspension was appropriate.

[219]For the purposes of TULR(C)A I must consider whether the sole or main purpose of suspending the claimant was to prevent or deter him from taking part in the activities of an independent trade union at an appropriate time. This is a subjective question to be judged by enquiring into what was in the mind of the employer at the time. In reaching my findings I have taken into account all the evidence and have considered the authority of UCL v Brown

UKEAT/0084/19/VP

, specifically paragraphs 91-98.

[220]For all the reasons that I have described above in respect of the whistleblowing and race discrimination claims, I accept that the suspension was in response to the allegations made and in accordance with the respondent’s policies. Whilst I was surprised not to hear live Page 32 of 36 evidence from Mr Passfield or to have any explanation for the same, on my review the documentation, the investigation notes and the evidence that I did hear, I am satisfied that Mr Passfield took the allegation at face value and considered it of sufficient severity to warrant suspension and investigation.

[221]Further, in respect of the claimant’s trade union activities, I accept that there likely was underlying animosity between the claimant, Ms Dixon, Mr Marshall and Mr Nock. This is demonstrated in the interviews and also in the audio recording. However, there is no evidence that Mr Passfield shared this animosity or that he was persuaded in any way by the other parties against the claimant in how he decided to respond to the events of 4 March 2022. 6.2.2. The Claimant was unable to vote for himself on 4 March 2022 as a result of his suspension;

[222]The election of 4 March 2022 was abandoned at the request of the union. Thus the reason the claimant did not vote for himself was because there was no election on 4 March 2022 and not because of his suspension.

[223]If that is wrong, for the same reasons as I have described above, I find that the sole or main reason the claimant was unable to vote for himself because of his legitimate suspension and not because of his trade union activities. 6.2.3. The Claimant was unable to vote for himself on 11 March 2022 as a result of his suspension.

[224]In support of this allegation, rather than as standalone allegations, the Claimant says that: 6.2.3.1. Restrictions were imposed on the Claimant as the suspension meant that he could not attend the premises; The restrictions placed on the claimant meaning he was unable to visit the company premises were those prescribed in the disciplinary policy. There is no evidence that the reason for the restrictions was anything other than the fair and proper application of the disciplinary policy. The position may have been different had the claimant demonstrated to me that he had asked for permission to vote for himself and been refused or he had asked for a proxy vote to be taken for him by someone else and been refused. Neither happened. Instead the claimant remained at home and, it seems, no one, including the claimant, put their mind to the fact this meant the claimant was unable to vote for himself. I consider this was the outworking of the suspension policy and not done with the sole or main purpose of preventing him from voting for himself. 6.2.3.2. The suspension was maintained for longer than necessary;

[225]I do not consider the suspension between 4 and 11 March 2022 was longer than necessary. The respondent acted swiftly in assigning the investigation to Mr Holder swiftly such that he wrote to the claimant on the third working day after the suspension to invite him to a disciplinary investigation. That investigation took place less than 1 week later. There was no delay in commencing the investigation. Page 33 of 36 6.2.3.3. The Respondent failed to interview Paula Dixon prior to his suspension;

[226]It was not necessary to interview Ms Dixon before the suspension. The purpose of suspension was to enable the investigation to take place. During that investigation period, Ms Dixon was interviewed. 6.2.3.4. The manager failed to act on new evidence raised within the grievance on 7 March 2022.

[227]The claimant did not link the complaints he made in his grievance to his own conduct on 4 March 2022. For example he did not say that Mr Nock did x, y and z and because of that I did a, b and c. He did not raise the matters of his grievance in the investigation meeting with Mr Holder or with Mr Passfield prior to the 11 March 2022 election. There was no reason for the respondent to know that the claimant considered the evidence within his grievance meant his suspension should be halted. I do not consider there was a failure in this respect

[228]In conclusion, in respect of allegation 6.2.3 as a whole, I find that it is correct that the claimant was unable to vote for himself on 11 March 2022 and it is correct that this was to his detriment, even in circumstances where it may not have been the decisive vote, and did prevent him from taking part in the activities of the trade union. He therefore does qualify for protection under s.146(1)(b).

[229]However, the reason he was unable to vote for himself was the natural consequence of the suspension and was not for the main or sole reason or deterring or punishing him for his trade union activities. 6.2.4. On 16 March 2022, Aran Holder declared that there was little details on the occurrence report so he could not focus the whole investigation from that occurrence report.

[230]Mr Holder conducted his investigation by reviewing the occurrence report and speaking first with the claimant. The claimant raised a number of points that warranted further consideration, such as whether the words recorded were those they were understood to be, there being some confusion as to the spelling of the word racist. Also, he queried whether Ms Dixon was sure it was him rather than a case of mistaken identity.

[231]For all these reasons, and as a point of general good practice, it was proper for Mr Holder to speak directly to Ms Dixon to hear the allegation in her own words and to understand her response to the claimant’s response. He then quite properly returned to the claimant to him a chance to respond to the comments of Ms Dixon and of the other witnesses. He considered all the evidence he had read and heard before making his decision to progress the allegation to a disciplinary hearing.

[232]I consider this was an entirely proper course of conduct and was not to the claimant’s detriment. It was to enable a full understanding of the events of 4 March 2022 and not to build a case against the claimant. Further, I do not consider this approach did prevent, deter or penalise the claimant from taking part in the activities of an independent trade union at an appropriate time nor was that the sole or main purpose of this approach to the investigation. Page 34 of 36 6.2.5. 15 March 2022 – Aran Holder asked “Did Mr Vouzon vent his frustration at anyone else other than Paula?”

[233]As I have described in respect of allegation 7.1.2, this question was asked of Mr Nock during the investigation interview. I consider it was a reasonable follow up question for Mr Holder to ask in the context of a disciplinary investigation and the answers given by Mr Nock. It did not prevent, deter or penalise the claimant from taking part in the activities of an independent trade union at an appropriate time nor was that the sole or main purpose of the question. 6.2.6. On 15 March 2022, Aran Holder allowed the words “aggressive and desperate” to be used to describe the Claimant. 6.2.7. On 15 March 2022, the Respondent allowed Mr Green to say “I believe there may be something wrong with him and I don’t know what it is”. 6.2.8. On 15 March 2022, Aran Holder allowed the interviewee to refer to the Claimant’s “silliness”

[234]I consider these allegations as a group as they relate to matters already considered under the head of race discrimination pertaining to the questions asked by Mr Holder and the answers given. For the reasons described above, I consider these questions to be appropriate, reasonable and neutral. I do not consider they were answers engineered to give a certain answer or to substantiate the allegations. I find no evidence of any connection to the claimant’s trade union activities or membership in the way the questions were asked or the answers given.

[235]Viewed objectively, I do not consider that the claimant has been prevented, deterred or penalised for taking part in the activities of an independent trade union at an appropriate time by Mr Holder’s approach to these interviews. The claimant does not qualify for protection under paragraphs 146(1)(b) in respect of Mr Holder’s actions and Mr Holder’s actions were not with the sole or main motive of so preventing, deterring or penalising the claimant. 6.2.9. On 2 September 2022, Samantha Teggart made a false statement and used medical condition to make it look like the Claimant was to blame for the Respondent’s acts.

[236]I do not consider that Ms Teggart subjected the claimant to a detriment when she wrote to him on 2 September 2022. She did make a mistake in terms of explaining his non attendance but, viewed objectively, this did not make it look like the claimant was to blame.

[237]When the error was pointed out, Ms Teggart immediately corrected it and included a fuller explanation in her letter.

[238]I have not been provided with any evidence from which I could infer a causative link between the claimant’s involvement in trade union activities and Ms Teggart’s Page 35 of 36 correspondence. The statement was not to the claimant’s detriment and did not prevent, deter or penalise him for taking part in the activities of an independent trade union. As such he is not entitled to the protection of s.146(1)(b) in this respect. Even if that is wrong, the sole or main purpose of Ms Teggart including it was not to prevent or deter the claimant from taking part in trade union activities or to penalise him for doing so.

[239]The claim for detriment for the sole or main purpose of preventing or deterring the claimant from taking part in the activities of an independent trade union at an appropriate time or penalising him for doing so fails. ACAS Code

[240]I find that all claims fail. It is therefore not necessary for me to go on to consider whether there have been any breaches of the ACAS Code of Practice on Disciplinary and Grievance procedures by either party nor what the consequences of that should be.

Findings of fact

[1]The relevant procedural rules relating to reconsideration of judgments are in rules 68-71 Employment Tribunal Procedure Rules 2024. By Rule 68, the Tribunal may, either on its own initiative or on the application of a party, reconsider a Judgment where it is necessary in the interests of justice to do so.

[2]In this case the claimant applied for a reconsideration of the judgment on 27 January 2025. Under Rule 70, the Tribunal must consider any application for reconsideration.

[3]The procedure on receipt of an application for reconsideration is for the Judge that heard the case to consider the application and determine if there are reasonable prospects of the Judgment being varied or revoked, that is whether there is a reasonable prospect of reconsideration in the interests of justice. If the Judge considers that there is no such reasonable prospect then the application shall be refused. Otherwise the original decision shall be reconsidered at a subsequent reconsideration hearing or, where it is in the interests of justice, on the papers.

[4]In considering an application for reconsideration, the Tribunal must give effect to the overriding objective to deal with cases fairly and justly. The discretion to determine whether reconsideration is “necessary in the interests of justice” is a broad discretion and not limited only to exceptional circumstances. However the discretion must be exercised judicially “which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation” Outasight VB Ltd v Brown [2015] ICR D11, EAT

[5]The Employment Appeal Tribunal (“the EAT”) in Trimble v Supertravel Ltd

[1982] ICR 440

decided that if a matter has been ventilated and argued then any error of law falls to be corrected on appeal and not by review.

[6]In Ebury Partners UK Ltd v Acton Davis

[2023] IRLR 486

, the EAT held that it may be appropriate to reconsider a decision where there had been a procedural mishap and a party had been denied a fair and proper opportunity to put their case. However, reconsideration should not be used to correct an alleged error of law or to correct an alleged error made after the parties had had a fair opportunity to put their case. Conclusions in relation to the grounds of the application

[7]At the start of the hearing, I took a whole day to ensure that the case the claimant wished to pursue had been properly understood and articulated in the list of issues. At the end of the evidence, the claimant was given time to prepare his submissions and confirmed when he was ready to proceed. He explained his case clearly. None of the case law cited by the claimant in his application for reconsideration was referenced by the claimant during the hearing. First and Second Alleged Protected Disclosure

[8]Findings of fact were made about the contents of the emails of 9 December 2021 and 21 January 2022. I found that the communications did not explicitly raise concerns about misuse of union funds and coercive control of a colleague. Where the claimant had, in later emails and his evidence, used the word “illegal”, I relied on the claimant’s explanation as to what he meant. The claimant made no reference to legal obligations including health and safety obligations or otherwise. The claimant has had a fair and proper opportunity to put his case and I made findings of fact based on the way the case was put during the hearing. Timing of the Protected Disclosures

[9]Having found that alleged protected disclosures 1 and 2 were not protected disclosures, there was no requirement to examine a causative link to the claimant’s suspension.

[10]The timing of the third alleged protected disclosure was examined. I concluded that the claimant’s case on causation was based “on circumstance and suspicion rather than facts from which I could infer any causative link” (para 165). Mr Passfield

[11]The claimant did not question the Respondent’s witnesses about why Mr Passfield was not present to give evidence, nor did the claimant say that inferences could be drawn from the same. The claimant has already had a fair and full opportunity to put his case. Comparators

[12]The claimant has had the opportunity to explain why he considers the comparators were actual comparators. Having considered the circumstances of each purported comparator carefully I found, on the facts, that the individuals relied on were not comparator pursuant to s.23 Equality Act 2010. Stereotypical language

[13]The claimant was suspended and later disciplined in respect of his conduct towards his colleague. A number of employees who witnessed his conduct were interviewed during the internal investigation and described the claimant as “aggressive”, “shocking” and “desperate” among other things. The investigator who spoke to these witnesses gave evidence. I was alive to the potential for such language to be used disproportionately towards black people and accordingly I, and not the claimant, asked the investigating officer about this (see para 195).

[14]On the facts of this case I concluded that the words used “were neutral descriptions given by each witness to describe what they saw and heard and not overlaid by any conscious or subconscious racial discrimination” (para 194). S.146 TULR(C)A 1992

[15]All bar one complaint pursued under this Act was out of time.

[16]The claim about the claimant’s suspension was out of time. In any event, the effect of the act complained of is not the same as the reason for the act.

[17]The claimant did not say or suggest that inferences could or should be drawn from the alleged breach of the ACAS Code of Practice in the way now described. Refusal to strike out the Respondent’s defence

[18]The application to strike out the Respondent’s defence was made because the Respondent had communicated with the claimant during his evidence by sending him documents. The application was not made based on late disclosure as the claimant now contends. This is an attempt to reargue the application on a different basis. Harassment claims

[19]The application for to add one further complaint of harassment was refused taking into account the facts of the alleged failure, the relevant time limits and the balance of hardship (para 28-32). Evidence taken into account

[20]The respondent’s disciplinary decision maker gave evidence about her consideration of the claimant’s unblemished record of 18 years and about her approach to his second grievance. The evidence was considered carefully.

[21]The claimant did not contend previously that the union’s abandonment of the election provoked the confrontation which led to his suspension. His witness statement describes three incidents taking place at around 04:30am, just before 05am, and 08am (claimant’s witness statement para 63). He then describes that the voting was still underway when he was suspended (para 64). He describes going home and going straight to bed and “later” finding out that the voting process had been stopped (para 66). The claimant should not be permitted to attempt to argue a different chronology through the means of reconsideration. Litigant in person

[22]I was fully cognisant of the need to ensure fairness between the parties particularly given the claimant was a litigant in person. A day was devoted to case management to ensure the claims the claimant wished to pursue were fully understood and that he was given time to make his applications to amend his claim. The proceedings were halted to hear the claimant’s application for dismissal of the Respondent’s case which was carefully considered and full reasons for the decision given. Significant efforts were made throughout to assist the claimant to navigate the hearing process and ensure his full participation.

Conclusion

[23]The application for reconsideration constitutes an attempt to reargue the claimant’s case either seeking a fresh decision on the same evidence or raising new arguments not already made or referenced anywhere in the evidence or submissions. The claimant has had a fair and full opportunity to present his case. There is no reasonable prospect of success of the Judgment being varied or revoked for any of the reasons provided by the claimant and the interests of justice do not require there to be a reconsideration of the Judgment. Accordingly I refuse the application for reconsideration and it stands dismissed.