Mr V Beinarovics v Monolith (UK) Ltd: 2301193/2022 and 3204735/2022

EMPLOYMENT TRIBUNALS

Case No 2301193/2022, 3204735/2022

Between

Mr V BeinarovicsClaimant

Monolith (UK) LtdRespondent

Before

First-tier Tribunal Judge D Brannan, acting as an

Members

Ms Janson

Mr Ukemenam

Mr Robinson (instructed by Mergul Law) for claimant

Ms Patch (instructed by Patch Law) for respondent

Date 11 February 2026

JUDGMENT

[1]The claimant’s complaint of victimisation under section 27 of the Equality Act 2010 is dismissed.

[2]The claimant’s complaint of automatically unfair dismissal under sections 104 and 104A of the Employment Rights Act 1996 are dismissed.

[3]The claimant’s complaint of ordinary unfair dismissal under section 98 of the Employment Rights Act 1996 is dismissed.

[4]The respondent’s counterclaim is dismissed.

REASONS

[1]Judgment and reasons were given orally at the hearing. Both parties have requested written reasons, which we now provide.

[2]This is the unanimous decision of the Tribunal in the claims of the claimant against the respondent for:(a) victimisation under section 27 of the Equality Act 2010,

(b) automatic unfair dismissal for assertion of statutory rights, including relating to nationality minimum wage, under section 104 and 104A of the Employment Rights Act 1998 (the “ERA”), and

(c) “ordinary” unfair dismissal under section 98 of the ERA; and in the counter-claim of the respondent against the claimant for breach of contract.

The Hearing

[3]The hearing took place face to face. It was recorded using the Cloud Video Platform. That recording is the record of proceedings and should be consulted in the event of any dispute about what was said at the hearing. Issues

[4]At the beginning of the hearing, we discussed with the parties the issues in the case. They had agreed a list of issues which included matters on which claiming party had not identified any specific compensation. We discussed these with the parties, and it was determined that only the following matters would be decided:(a) Was the reason or principal reason for dismissal that the claimant alleged a breach of his statutory rights? If so, he was unfairly dismissed.

(b) In the alternative: (i) Did the claimant complain on 9 March 2022 about discrimination because of Jewish race? (ii) If so, was the claimant dismissed because of making this complaint?

(c) If neither is the case: (i) Did the respondent genuinely believe the claimant had committed misconduct? (ii) If so, did the Respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant? The Tribunal will usually decide, in particular, whether: (1) there were reasonable grounds for that belief; (2) at the time the belief was formed the Respondent had carried out a reasonable investigation; (3) the Respondent otherwise acted in a procedurally fair manner; (4) dismissal was within the range of reasonable responses. (iii) The claimant identifies the following aspects of the unfairness of the dismissal: (1) the investigation into the alleged misconduct did not adequately involve him; (2) the disciplinary charges were not identified/listed with sufficient particularity; (3) the dismissal was predetermined; (4) the offences for which he was dismissed were not identified as gross misconduct in the contract of employment or the Respondent’s disciplinary procedure.

(d) If the claimant was fairly dismissed, did the claimant in fact commit gross misconduct? If not, he is entitled to notice pay.

(e) Did the claimant breach the employment contract by: (i) using company fuel for personal use and/or use by another business; or (ii) inaccurate reporting of working hours so that paid when not working for the respondent?

[5]For the purposes of issue (a), it was agreed at the outset that the claimant made a grievance on the 21 December 2021 about his entitlement to the holiday pay and working time regarding hours worked and unlawful deduction from wages. He repeated those complaints at grievance meeting with Anastasiya Kuznetsova on 7 January 2022 and at a meeting of appeal against the decision in that grievance with Viktoria Berezina (who is also known as Vika and Vija) on 10 February 2022.

[6]It was also accepted during closing submissions that for the purposes of issue (b)(i) the claimant had done a protected act within the meaning of section 27 of the Equality Act 2010. Evidence

[7]We were provided with a bundle of 1332 pages. On the morning the third day of the hearing were also provided with an email regarding the recording the disciplinary meeting, which showed it had been sent to the claimant.

[8]We were provided with witness statements and heard oral evidence from:(a) the claimant;

(b) Ms Kuznetosova, HR manager of the respondent;

(d) Mrs Berezina, head of sales for the respondent.

Legal Framework

[9]Section 94 of the Employment Right Act 1996 (“ERA”) provides that an employee with sufficient qualifying service has the right not to be unfairly dismissed by his employer.

[10]Section 98 of the ERA provides: 98 General.(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it – (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.

(3) In subsection (2)(a) – (a) “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and (b) “qualifications”, in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.

(5) ...

(6) Subsection (4) is subject to – (a) sections 98A to 107 of this Act, and (b) sections 152, 153, 238 and 238A of the Trade Union and Labour Relations (Consolidation) Act 1992 (dismissal on ground of trade union membership or activities or in connection with industrial action).

[11]In relation to the ordinary unfair dismissal claim, we are very conscious that we are looking at the range of reasonable responses for the purposes of the respondent's views. When it comes to procedure, we consider what is reasonable in the circumstances. That is an objective question for us.

[12]Section 104 of the ERA says: 104 Assertion of statutory right.(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee – (a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or (b) alleged that the employer had infringed a right of his which is a relevant statutory right.

(2) It is immaterial for the purposes of subsection (1) – (a) whether or not the employee has the right, or (b) whether or not the right has been infringed; but, for that subsection to apply, the claim to the right and that it has been infringed must be made in good faith.

(3) It is sufficient for subsection (1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.

(4) The following are relevant statutory rights for the purposes of this section – (a) any right conferred by this Act for which the remedy for its infringement is by way of a complaint or reference to an employment tribunal, (b) the right conferred by section 86 of this Act, (c) the rights conferred by sections 68, 86, 145A, 145B, 146, 168, 168A, 168B, 169 and 170 of the Trade Union and Labour Relations (Consolidation) Act 1992 (deductions from pay, union activities and time off) F6. (d) the rights conferred by the Working Time Regulations 1998, the Merchant Shipping (Maritime Labour Convention) (Hours of Work) Regulations 2018 (S.I. 2018/58), the Merchant Shipping (Working Time: Inland Waterway) Regulations 2003, the Fishing Vessels (Working Time: Sea-fisherman) Regulations 2004 or the Crossborder Railway Services (Working Time) Regulations 2008 and (e) the rights conferred by the Transfer of Undertakings (Protection of Employment) Regulations 2006.

(5) In this section any reference to an employer includes, where the right in question is conferred by section 63A, the principal (within the meaning of section 63A(3)).

[13]And in relation to minimum wage: 104A The national minimum wage.(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that – (a) any action was taken, or was proposed to be taken, by or on behalf of the employee with a view to enforcing, or otherwise securing the benefit of, a right of the employee’s to which this section applies; or (b) the employer was prosecuted for an offence under section 31 of the National Minimum Wage Act 1998 as a result of action taken by or on behalf of the employee for the purpose of enforcing, or otherwise securing the benefit of, a right of the employee’s to which this section applies; or (c) the employee qualifies, or will or might qualify, for the national minimum wage or for a particular rate of national minimum wage.

(2) It is immaterial for the purposes of paragraph (a) or (b) of subsection (1) above – (a) whether or not the employee has the right, or (b) whether or not the right has been infringed, but, for that subsection to apply, the claim to the right and, if applicable, the claim that it has been infringed must be made in good faith.

(3) The following are the rights to which this section applies - (a) any right conferred by, or by virtue of, any provision of the National Minimum Wage Act 1998 for which the remedy for its infringement is by way of a complaint to an employment tribunal; and (b) any right conferred by section 17 of the National Minimum Wage Act 1998 (worker receiving less than national minimum wage entitled to additional remuneration).

[14]Ms Patch submitted that in principle the claimant’s complaint could not succeed under sections 104 or 104A because he relies on asserting more than one statutory right. If I understood her argument correctly, she argued that if asserting statutory rights relating to holiday pay, NMW and working time were all a reason for dismissal, none could be the (sole) reason or even a principal reason. It is not necessary in this decision to determine this question of statutory interpretation because we find there was a different reason for dismissal. However I find Ms Patch’s argument unlikely to be correct as such a construction would rob an employee who has suffered denial of multiple statutory rights protection from unfair dismissal for complaining about more than one at a time.

[15]Victimisation under the Equality Act 2010 is explained as follows: 27 Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act – (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

(4) This section applies only where the person subjected to a detriment is an individual.

(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.

[16]Section 136 of the same Act applies to this. It says: 136 Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

(4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule.

(5) This section does not apply to proceedings for an offence under this Act.

(6) A reference to the court includes a reference to – (a) an employment tribunal; (b) the Asylum and Immigration Tribunal; (c) the Special Immigration Appeals Commission; (d) the First-tier Tribunal; (e) the Education Tribunal for Wales; (f) the First-tier Tribunal for Scotland Health and Education Chamber.

[17]We were referred to two cases on the shifting burden of proof: Chief Constable of Greater Manchester Police v Bailey

[2017] EWCA Civ. 425

and Birmingham City Council & Anor v Millwood

UKEAT/0564/11/DM

. We have borne this in mind in our decision.

Facts

[18]We find the following facts looking at all the evidence.

[19]The claimant began employment with the respondent on 21 January 2013.

[20]He was employed as a sales representative. The role of sales representatives at the company is to sell products to retailers. The sales representatives are allocated areas in which to do their sales. This involves being given a list of specific outlets they are to cover on each day of the week.

[21]The pay structure of the sales representatives is slightly complicated. A high-level overview is that they are paid a combination of basic pay and commission. The basic pay component is 24 times the prevailing national minimum wage (“NMW”) per week. The commission component is 1.5% of their sales. The commission component is grossed up. The claimant also received a fuel card.

[22]Contrary to what the claimant had alleged earlier, at the start of his employment the claimant was provided with a company mobile phone. He was also provided with the company car. We accept claimant’s evidence that some point early in his employment his company phone stopped working and was not replaced. There is no evidence he sought for it to be replaced. In September 2018 the company car reached the end of its life. After this the claimant started using a personal car. This was normal at the company for sales representatives. Sales representatives using a personal car receive an additional bonus for the wear and tear on their vehicle. The claimant received this.

[23]Over time there were various discussions between the claimant and respondent about his working conditions. Some of these related to changes in his areas which he was unhappy about. His complaints were that they resulted in loss of sales which, understandably, meant him seeing a reduction in income. However there were also issues raised by the respondent. Of relevance to this case specifically is that the claimant was meant to visit each customer and draft orders on site. He was meant to do so through his iPad provided by the company. This is because the Monolith app contains location tracking features so that the location from which orders are logged can be tracked.

[24]On 14 October 2021 there was a meeting between the claimant, Mrs Berezina, Ms Kuznetsova, and two other people: Julja Hirsfields and Denis Melnic. Issues about the claimant’s compliance with these requirements were raised. The claimant said that there were problems with internet connectivity at some locations. He also expressed concern about monitoring of him and the data protection and privacy issues. It was confirmed that monitoring was only required during working hours and locations were only seen by specific people.

[25]In November 2021, the claimant was given a weekly route plan. This gave a total estimated amount of time for work of 49 hours and 17 minutes per week. This was based on expected travel times between sites and a standard period at each site of 30 minutes, excepts for one site which was 60 minutes.

[26]On 8 November 2021 a customer of the respondent wrote to Ms Hirsfields saying: Yesterday your sale’s representative texted me said that he can not come to do the order in my shop because he has hospital appointment. He asked me to do the order manually as an favour for him. I did tell him that sorry you told me that very late and I do not have enough staff we can’t help you. He told me that I need to listen to him and I should be understood that he has hospital appointments and he said I shouldn’t be childish. He said he doesn’t bothered to come if he has appointment. I tried My best to explain why I couldn’t helped him he told me that call the monolith it’s not my problem and he turned of the phone called. Later on I checked my staff’s mobile phone I saw he texted my staff to her personal number asked her to do the order and she said it’s ok, but both my staff and Vaclvas hided that from me. I think he shouldn’t be contacting staff directly because the staffs are working for me. However I spent all my day in the shop to complete his order. As we all know that the rules of the company representatives is to represent the company to the customers and delivery the best service directly from the distribution company to the shops. Also should gets involved to solve the problems between the shops and the distribution Company. But unfortunately vaclvas was very rude to us yesterday as you did promise me over the telephone conversation, I am looking forward to see the solution from you as soon as possible.

[27]The errors in spelling and language are as set out in that written communication.

[28]It is clear he had called Ms Hirsfields in advance of sending this email.

[29]It appears to us that there was some other personal animus between the claimant and this customer. This complaint has never been upheld as a reason for the claimant’s dismissal. However it did prompt investigation.

[30]The claimant was provided with the new iPad. This was tested with Denis Melnic on 16 November 2021 and all locations were tracked successfully. There was a further meeting after this on 17 November 2021. At this meeting the expectations were again stated in relation to keeping location tracking on and the respondent also raised the claimant not using his company mobile phone. It said that this had been raised in September 2020 and the claimant was still using his personal mobile phone for work. The record of the meeting identifies this as a “lack of cooperation and refusal to follow reasonable instructions” and said a further breach of this requirement can be classified as a disciplinary matter.

[31]There is a record of a further meeting having happened on 13 December to investigate the complaint. We do not have any further information about this meeting. However on the afternoon of 13 December 2021, Ms Kuznetsova emailed the claimant confirming a new “Mbb sim” had been posted to his home address. On 18 December he replied saying he had put it in his iPad but it was still not working. On 20 December Ms Kuznetsova replied saying that it was already active. She said if there were problems he should provide the device to the office to check. She chased this on 22 December and the claimant replied the same day saying that he was using it. We know that there are further emails after this up to 23 December with Mr Melnic. These are in Russian and have not been translated.

[32]It is clear to us that while this was going on, the respondent concluded it wanted to end its employment of the claimant. This is because they in fact offered a settlement to the claimant at a meeting on 16 December 2021. The parties waived privilege in relation to that settlement discussion.

[33]Ms Kuznetsova told us that the reason for this offer was to allow the claimant to leave with dignity, which is our word for what she expressed in oral evidence. The claimant rejected the offer but made a counteroffer on 20 December 2021. The respondent refused this counteroffer and said that if their original offer was not accepted they would “proceed with the disciplinary process”.

[34]On 21 December 2021 the claimant raised a grievance in writing. It is common ground that that grievance raised issues about holiday pay, working time and NMW.

[35]A grievance meeting took place on 7 January 2022 between the claimant, Ms Kuznetsova, the claimant’s union representative, Mick Simpkin and a management assistant called Daria Potopnic. Ms Kuznetsova dismissed complaints about unfair treatment, bank holiday and holiday pay arrangements, NMW, car expenses. However she upheld the part of the grievance relating to the amount of travel required for the areas allocated to the claimant. She said that from 1 February 2022 the region would be shortened by the Southampton and Portsmouth area. There was no discussion of the specific change prior to it being made. This was sent on 19 January 2022.

[36]The letter also specifically said: All daily routes were checked for the mileage required and were confirmed to be within the limit of 48 hours per week. On the other side, your millage report demonstrates mileage on some days to be double of what was expected. While refuel report at the petrol station located near your home demonstrate your working routine starting after 10 am at some days and finish 4 pm. The investigation lead [sic] to the finding of suspicion of you having a second job that the Company was never been informed of before.

[37]Overall, the respond correctly found that the amount of work expected was too much, but found that they thought the amount of work actually being done was too little.

[38]The claimant appealed against the outcome of the grievance on 25 January 2022. His appeal was heard on 10 February 2022 by Mrs Berezina. They were present along with Mr Simpkin, Ms Kuznetsova and an Employment Law and HR Consultant called Greg Cheshire. Neither party took us to the notes of this meeting. We have found them difficult to decipher.

[39]Mrs Berezina sent an outcome letter on 17 February 2022. She dismissed the complaints. In relation to the NMW complaint, she specifically drew attention to the fact that the claimant was seeking NMW for 48 hours per week. She said he was paid NMW for 24 hours and he refused to prove he was working more than this by, for example, not showing his location. It was said he had been told to contact the company if there was no internet.

[40]In the meantime, the claimant raised his second grievance. This was on 10 February 2022. He said in writing, cc’ing Mr Simpkin:  The region change with a few days' notice, not taking into consideration my rights, contract, commitments and reducing my income.  Forcing me to start into the new region without consultation and negotiation around and causing me financial difficulties.  Bullying, victimisation, harassment and forced resignation from my current role.  Victimisation, bullying and harassment for speaking up.  Failure to provide clarification on the National Account Manager responsibilities and rights of changing my work ID: 73@monolith-uk.com to 73monolith@gmail.com, without me knowing and have not given me access to it, reason of checking my location non-working time/late evenings, trying to reset my previous apple ID password and ignoring my request to investigate by HR Manager Anastasya Kuznetsova.

[41]The second grievance hearing was on 9 March 2022. In the invitation to this on 1 March 2022, the claimant was told the disciplinary matter would be paused. We have the notes of the whole meeting, and transcript of part of it.

[42]There were two relevant points at this meeting.

[43]First was the change of the region. The claimant complained that his region was changed without consultation and with little notice. We observe that this was an outcome from his first grievance. In the outcome letter from the second grievance dated 28 March 2022 it is explained that Mrs Berezina decided the change of region because of health and safety. We note that despite his alleged loss of income he did not resign in response. We have not found a detailed analysis of the difference in earning capacity of the regions. But we observe that it is logical that if a region is reduced, the earning potential from commission is reduced. We also observe that a loss of the relationships as a sales representative mean a change of region would likely be, at least temporarily, financial disadvantageous.

[44]Second was victimisation, bullying and harassment. The respondent accepts that the claimant complained about people describing him as acting in a Jewish way and the respondent understood this to potentially refer to stereotypes of Jewish people as greedy.

[45]Ms Kuznetsova upheld no part of the grievance except in relation to an underpayment of commission from Baltic Supermarket and talking to the claimant’s wife on 19 November 2021. The remedies for these were to make up the payment and not to speak to the claimant’s wife again.

[46]The claimant appealed against the outcome of the second grievance on 30 March 2022. The claimant requested the hearing be on 19 April 2022. The respondent offered 20 April 2022. The claimant said his representative could not attend and requested 5 May 2022. This was arranged. However the claimant then said he had requested this in error and asked for it to be on 9 May 2022. The respondent refused this request and said the claimant could attend with a different representative. The claimant did not in fact attend.

[47]Mrs Berezina dismissed that appeal, sending a letter explaining this on 7 May 2022.

[48]In the meantime the disciplinary process continued. On 4 May 2022, Ms Kuznetsova sent to the claimant:(a) an invitation to attend a disciplinary meeting on 9 May (knowing the representative was available); and

(b) her investigation report comprising an explanatory letter and 18 attachments coming to 122 pages.

[49]The allegations were summarised in the meeting invitation as: 1. Repeated refusal to follow company procedures and management instructions, including refusal to log location, prepare draft orders, upload photographs. Offers to provide you with additional training and support for any alleged difficulties in complying with these instructions have been declined. 2. Use of personal mobile phone for company business, despite frequent instructions to use the company mobile phone allocated to you, your response being that you do not wish to carry two phones. This also amounts to a misuse of customer data and company confidential information, causing both you and the company to be in breach of data protection obligations. 3. Use of company fuel for personal mileage, your mileage frequently being well in excess of the mileage of the routes provided in the company route given to you, as well as claiming mileage when reporting as absent from work due to sickness. This is a breach of clause 23 of your contract of employment and potentially constitutes fraud. 4. Taking a photograph while driving. This is regarded as a serious breach of health and safety as well as being illegal conduct.

[50]However, in the investigation report letter, the claimant he was given a really detailed explanation of what he was alleged to have done wrong and the documents supporting those findings. This included the outcome from the second grievance which mentioned the claimant’s protected act.

[51]The meeting was rescheduled at the claimant’s request to 16 May 2022. The manager dealing with it was Saulius Musteikis. There was a recording of this meeting. Neither party has sought to adduce a transcript of it or have us listen to the recording.

[52]The claimant was there with Mr Simpkin. Ms Kuznetsova took notes. At the hearing, we can see from the notes that each allegation was discussed and the claimant had an opportunity to respond. In addition, Mr Simpkin raised the absence of an investigation meeting with the claimant and claimed that the disciplinary process was raised because of the claimant’s grievances.

[53]Mr Musteikis provided a decision letter on 21 May 2022. In this he rejected the two procedural issues from Mr Simpkin. He said no investigation meeting with the claimant was needed, particularly as a lot was discussed in the grievance process. He highlighted that the disciplinary process began before the claimant raised his grievances.

[54]In relation to the specific allegations, Mr Musteikis found each one to be proven and to constitute gross misconduct. He gives clear cogent reasons for his findings.

[55]Mr Musteikis did not appear to acknowledge two potential issues about his independence. First was that he had identified the claimant was driving at 54 mph when the photograph of the speedometer was taken. Second was that he is responsible for reconciling month reports of actual mileage from employees with the expected mileage based on their routes. He told us when giving oral evidence that he reported this monthly to Mrs Berezina. He was therefore somewhat involved in the evidence used in the investigation and allegations that he ultimately determined. However, we do not see him as having been involved in any other way.

[56]The claimant appealed against this decision on 24 May 2022. He pleaded generic grounds of:  new evidence which has come to light  most of your evidence is not true and insufficient  no sufficient evidence provided  an insufficient investigation was conducted  no sufficient response received to all my concerns  you did not properly consider the evidence  you did not take any of my evidence into consideration  false/not truth evidence provided  none of my questions has been responded  no sufficient resolution was received  the company has not been investigating any of the matters discussed in a disciplinary meeting.

[57]The appeal hearing took place on 17 June 2022. Mrs Berezina heard the appeal. The claimant and Mr Simpkin were there. Ms Kuznetsova attended as both a witness and notetaker. The claimant asked for her to be changed for someone independent. Mrs Berezina said nobody else was available. The claimant specifically asked about the consultants from earlier meetings. The claimant also specifically questioned whether Mr Musteikis could have written the letter because of the standard of his English. We observe this was a legitimate concern. In relation to the letters, Ms Kusznetsova described herself as “an editor, yes, but not the decision maker”.

[58]The meeting was lengthy and we note the claimant did mention he felt discriminated against. He did (correctly) raise that the investigation began in November because of the customer complaint, but that was not in fact a reason he was dismissed. Ms Kuznetsova explained to us that she began investigating because of the complaint but found bigger issues.

[59]The appeal outcome letter was sent on 24 June 2022. In a brief letter, Mrs Berezina dismissed the appeal. She said that Ms Kuznetsova conducted the investigation but acted as notetaker. She said that Ms Kuznetsova did not write the letters. She specifically said that they had external legal counsel for advice and assistance with drafting of correspondence. We find these explanations probable and the likely reason why Mr Musteikis was able to produce a letter to the standard of English he did.

[60]We turn now to determination of the issues, applying the law to these facts. Was the reason or principal reason for dismissal that the claimant alleged a breach of his statutory rights?

[61]We find this was not the case. This is because his specific complaints were made after the complaint which began the disciplinary investigation and we know that the respondent wished to end the claimant’s employment by agreement as a result, and before the complaint he made.

[62]In addition, Mr Maustekis made the decision to dismiss. We have no reason to conclude that he did not do so because of the misconduct which had been shown to him in the disciplinary investigation report. Did the claimant complain on 9 March 2022 about discrimination because of Jewish race?

[63]The respondent accepts the claimant did so. If so, was the claimant dismissed because of making that complaint?

[64]We are conscious that Mr Musteikis did have the second grievance response, in which the claimant’s protected act was mentioned. It was not put to him that he decided to dismiss the claimant because of the protected act. We have no evidence that this influenced him at all.

[65]We therefore turn to the decision to investigate the claimant (which obviously ultimately led to dismissal). We find that the claimant was not investigated because of making that complaint. We have considered whether there is a prima facie case that would cause the burden of proof to shift to the respondent. We can find a protected act. This is not disputed. We can find a detriment in the form of ongoing investigation and ultimate dismissal. We can find no other fact which suggests that the protected act had anything to do with the detriments. In particular, the general references in the workplace to being or acting Jewish are not sufficiently related to the complaint about treatment as a result of complaining about this so as to shift the burden of proof. In saying this, we remind ourselves that the issue we are determining is not whether the claimant was discriminated against or harassed because of religion or race, but whether he was victimised for complaining about such discrimination. The question is whether the allegation led to the detriment. The attitude and language of colleagues in the workplace who were not involved in the disciplinary or grievance process is not a fact, combined with the others, from which we could decide, in the absence of any other explanation, that the claimant was victimised.

[66]Furthermore, and as a matter of fact, we find that the protected act had nothing whatsoever to do with the detriments because these were clearly based on the misconduct that was uncovered during the investigation. Indeed, we note that Ms Kuznetsova was candid in her dealing with the discrimination issue. At the meeting on 9 March 2022, she expressed her own concern about discrimination and observed the use of the term “Jewish” in Russian to mean greedy. We found her to be credible in her genuine view that this is not right.

[67]It remains regrettable that such discrimination went on in this workplace. Neither direct discrimination nor harassment is the claimant’s complaint.

[68]We therefore turn to ordinary unfair dismissal and look at each of the limbs in the list of issues one by one. Did the respondent genuinely believe the claimant had committed misconduct?

[69]We find the respondent did genuinely believe that the claimant committed misconduct. This is because we believe Mr Musteikis that when he looked at the evidence he concluded there genuinely was misconduct by the claimant. Did the Respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant? The Tribunal will usually decide, in particular, whether: there were reasonable grounds for that belief

[70]There were clearly reasonable grounds for the belief. The investigation report is thorough and presents a case from which a decision-maker could reasonably conclude misconduct occurred. at the time the belief was formed the Respondent had carried out a reasonable investigation

[71]The disciplinary investigation was reasonable. It went beyond the minimum and set out the case for a finding of misconduct clearly and with significant supporting evidence. In relation to the point about not having interviewed the claimant as part of the investigation, we are satisfied that there was adequate information from the interviews that had taken place as part of the grievance for Mr Musteikis not to expect that to happen. We are satisfied it was adequate from an objective point of view. the Respondent otherwise acted in a procedurally fair manner

[72]We therefore turn to the next question, which of whether the respondent acted in a procedurally fair manner. There are points on both sides of this discussion.

[73]We will begin with the items that point away from it being procedurally fair:(a) First is the respondent taking no action when the claimant raised the possibility of discrimination being the reason for his treatment. This was aggravated when the respondent realised that using the term Jewish is a pejorative term used to mean greedy in Russian.

(b) Second, Mr Musteikis did not realise his own involvement in the investigation at the time he made the decision.

(c) Third, there is no consideration of sanctions that have been made for similar offences within Mr Musteikis’s analysis.

(d) Fourth, Ms. Kuznova's role could give the impression that she orchestrated the entire decision-making process.

(e) Fifth, all appeals during the entire process, both grievance and dismissal, led to Mrs Berezina.

(f) Sixth, there is a clear impression that the respondent had decided it wanted to dismiss the claimant and then continued the investigation to find reasons to do so.

(g) Seventh, the complaint leading to the investigation was not in fact the one that was ultimately relied on as the reason to dismiss the claimant.

[74]But there is another side, and these are the good points about the procedure:(a) First, there were lots of opportunities for the claimant to explain his case. There was an initial disciplinary investigation meeting on the 17 November. There was the first grievance meeting. There was the first grievance appeal. There was the second grievance meeting. There was the second grievance appeal, which the claimant did not attend. Finally, there was a disciplinary hearing. There were in total six different meetings taking place where there was an opportunity to explain.

(b) Second, although we have identified issues about Mr Musteikis's involvement in the investigation which he does not recognise, he was also relatively independent, being not involved in other parts of the investigatory findings which he was involved in making decisions about.

(d) Fifth, there was very good record keeping. We have seen clear records of the meetings and of the basis for the allegations.

(e) Sixth, the respondent did provide a full investigation report to the claimant in good time before the disciplinary hearing so he could understand what was alleged.

[75]We have not found this a clear-cut decision to make. We look at this on balance, looking at all of the circumstances. Our overall conclusion after careful consideration is that overall, the procedure was fair in the circumstances. dismissal was within the range of reasonable responses.

[76]We are satisfied that the respondent was entitled to conclude that the claimant committed gross misconduct. In particular, the reasonable conclusion that the claimant took a photo when driving at 54mph and his response to this showed deception at the hearing. The reasonable conclusion that the claimant was deliberately keeping the location of his orders switched off in order to conceal his actual working activities was further deception. The reasonable conclusion that the claimant refused to use his company phone and his refusal to show it to management indicates breach of data protection but also a disregard for the company being able to protect its legitimate business interests. It raised obvious suspicions about whether he was actually working as claimed.

[77]We are conscious that in the list of issues there are the claimant's specific complaints about the process. We have incorporated that into our overall analysis of the fairness of the dismissal. If the claimant was fairly dismissed, did the claimant in fact commit gross misconduct?

[78]We are satisfied on the balance of probabilities that the claimant did in fact commit gross misconduct. We agree with the conclusions of the disciplinary hearing when applying our own independent assessment of the written evidence and of what we heard from the witnesses. Did the claimant breach the employment contract by: Using company fuel for personal use and/or use by another business?

[79]The contract states: You may be provided with a fuel card, which is strictly for business use and not to be used for personal expenditure. Company covers up to £300.00 costs spent on fuel monthly. The Company reserves the right to withdraw any Company card from you or to restrict your use of the fuel card without giving notice or reasons. If you are found to be using the Company fuel card for personal use this may be treated as a disciplinary offence and could lead to disciplinary action, up to and including the termination of your employment without notice for gross misconduct. Upon the termination of your employment, for whatever reason, the fuel card must be returned to the Company no later than the final day of your employment.

[80]The claimant is claimed to have breached this provision by using his fuel card to cover personal mileage.

[81]We reject this claim for two reasons.

[82]First, we are not persuaded that there was not a custom or practice of allowing employees to use their fuel cards for personal fuel. We are conscious that the process for tracking mileage was based on a monthly mileage report being reconciled with the expected mileage from routes. Mr Musteikis said he would only raise significant discrepancies. When he did so, it was then an issue for line management to decide what to do. It therefore seems remarkable that this issue was not spotted much sooner if it is genuinely a breach of the contract as understood by the parties. This is all the more remarkable given the respondent now claims damages for such fuel use going back to October 2018.

[83]Second, the contract does not provide for claiming repayment. We understand well that a breach of contract may lead to damages without such a clause. However, we are not satisfied that the basis of claim on which the respondent relies is adequate. The reality is that we do not know where the claimant in fact went for business purposes because he refused to have his location tracked. The correct outcome, which is envisaged in the contract, is action for misconduct. Inaccurate reporting of working hours so that paid when not working for the Respondent?

[84]This issue can be dealt with simply. The claimant did not have fixed hours of work. He was not paid hourly. He cannot therefore breach his contract by failing to work any specific hours. His breach was misconduct, which included failing to perform his duties. It was that for that reason he was dismissed. We dismiss this element of the counterclaim. Approved by: First-tier Tribunal Judge D Brannan, acting as an