Mr M B Abd El Nour v Encore Software Ltd: 2305726/2023

EMPLOYMENT TRIBUNALS

Case No 2305726/2023

Between

Mr M B Abd El NourClaimant

Encore Software LtdRespondent

Before

Employment Judge McCann & Members (Ms Oates-Hinds &

In person for claimant

Mr Robin Pickard (instructed by Counsel) for respondent

Date 15 December 2025

JUDGMENT

LIABILITY JUDGMENT The judgment of the Tribunal on liability is that:(1) The respondent did not subject the claimant to race-related harassment and this claim is dismissed.

(2) The respondent did not treat the claimant less favourably because of race and his claim for direct race discrimination is dismissed.

(3) The respondent did not fundamentally breach the claimant’s contract of employment and the claimant’s claim for constructive unfair dismissal is not well-founded and is dismissed.

(4) The respondent did not breach the claimant’s contract of employment by requiring him to give six months’ notice of termination and the claimant’s claim for breach of contract is not well-founded and is dismissed.

(5) The claimant is not entitled to five days of accrued but untaken holiday and his claim for breach of contract in respect of holiday pay is dismissed.

(6) The claimant is not entitled to expenses in the sum of £172 and his claim for unauthorised deduction from wages is dismissed.

(7) The claimant is not entitled to commission in the sum of £7500 and his claim for unauthorised deduction from wages is dismissed.

(8) The claimant was entitled to a day’s pay for 1 August 2023 and his claim for unlawful deduction from wages succeeds. REMEDY JUDGMENT The Tribunal declares that the claimant suffered an unauthorised deduction from his wages in respect of one day’s pay contrary to s.13 of the Employment Rights Act 1996. By virtue of s.25(3) of the Employment Rights Act 1996, the Tribunal makes no order for payment under s.24(1)(a) of the Act because the respondent has paid the claimant the correct amount for those wages – namely, £128.12 – on or around 31 August 2025. When these proceedings were begun, the respondent was not in breach of its duty to the claimant under sections 1(1) or 4(1) of the Employment Rights Act 1996 and, accordingly, no award falls to be made under section 38 of the Employment Act 2002.

REASONS

[1]The claimant’s ET1 Form/claim was presented to the Tribunal on 14 October 2023. Early conciliation (via Acas) started on 25 August 2023 and ended on 6 October 2023.

[2]The claims and issues were identified at a Preliminary Hearing for Case Management (PHCM) on 12 February 2025, with the claimant confirming that he was pursuing claims for unfair constructive dismissal, direct race discrimination, race-related to harassment, unpaid holiday pay (for 5 days’ holiday), unlawful deduction from wages (in respect of one day’s pay on 1 August 2023, before the claimant’s sick leave commenced, which was not paid), unlawful deduction from wages (in respect of unpaid commission in the sum of £7500), unlawful deduction from wages (in respect of unpaid expenses in the sum of £172), breach of contract (concerning being required to give six months’ notice, rather than three), and failure to provide a Written Statement of Particulars.

[3]By the time of the first day of the Final Hearing, the parties agree that the respondent had paid the claimant in respect of one day’s pay (for 1 August 2023). This was paid to the claimant on or around 31 August 2025. As such, whilst the respondent accepts that it inadvertently made an unauthorised deduction of one day’s pay from the claimant’s wages for August 2023, this has been rectified.

[4]It is agreed that the claimant was employed from 1 September 2018 until 24 August 2023 and that he resigned on notice from his employment on 10 July 2023 and then resigned again with immediate effect on 24 August 2023. It is that second resignation that the claimant relies upon in relation to his complaint of constructive unfair dismissal.

[5]Both parties prepared draft Lists of Issues which were discussed at the PHCM on 12 February 2025. As noted in the Record of that hearing, the issues were discussed in detail, together with the claimant’s particulars of claim. The respondent was ordered to prepare a revised List of Issues to reflect the position agreed at the PHCM; and the claimant was given an opportunity by Employment Judge Andrews to indicate any disagreement; and, if agreement could not be reached between the parties, the parties were directed to bring this to the attention of the Tribunal, marked for her attention. Regrettably, agreement was not reached and so the matter was referred to the Tribunal, with EJ Andrews writing to the parties on 24 June 2025, enclosing a revised List of Issues, which she ruled was to stand as “the final and comprehensive list going forward” save for the claimant being ordered to identify the name(s) of any actual comparators relied on.

[6]Both the claimant and counsel for the respondent confirmed on Day 1 of the Hearing that EJ Andrews’ revised List of Issues accurately reflected the issues which required determination and, as such, the Tribunal adopted it as the definitive and final List of Issues (pages 178 to 182 of the Bundle & appended to these Written Reasons).

[7]Since the claimant had indicated in an earlier iteration of the draft List of Issues his wish to rely on an additional allegation of direct race discrimination, for which he would need permission to amend his claim, he was directed by EJ Andrews to make any amendment application by 8 July 2025.

[8]We also note that EJ Andrews considered correspondence between the parties on the issue of disclosure and she observed that the respondent had complied with its disclosure obligations, noting that the claimant must provide his disclosure. She revised the dates for remaining case management orders. Amendment application

[9]On 1 July 2025, the claimant emailed the Tribunal applying to amend his claims to include an additional allegation of breach of contract for the purposes of his constructive unfair dismissal claim which he indicated he also wished to rely upon as a further allegation of direct race discrimination, in reliance on a named comparator (Ben Jones, a former Customer Success employee of the respondent’s). His allegation was that he was instructed by the respondent to remove the ‘Open to Work’ status he had put up on LinkedIn (after his first resignation in July 2023 but whilst he was still employed) showing that he was looking for new job opportunities whilst Mr Jones was not so instructed. The claimant’s amendment application had not been dealt with by the Tribunal ahead of the Final Hearing and we, therefore, determined it on the first day of the Hearing, having given the parties a further opportunity to make short oral submissions. We decided the application against the claimant and gave full oral reasons for our decision at the time so they are not repeated in these Written Reasons. The Evidence and the Hearing

[10]We had witness statements and heard evidence from the claimant and his wife (Donna Bolus) and two further witnesses: Paul Murray (Reception Manager at Afon House, in Horsham, the managed office building in which the Respondent leased its office premises) and George Foulds (former employee of the respondent until the Summer of 2022).

[11]On behalf of the respondent, statements were provided for the following individuals from whom we also heard oral evidence: i. Andrew Morgan (Director, Commercial) ii. Philip Burrell (Director, Technical) iii. Kay Peerless (Administrator, Accounts & Modifications) iv. Cassidy Hazel (Customer Success Analyst) v. Phil Healey (former Support Consultant at the respondent) vi. Neil Strudwick (former Software Support Manager at the respondent)

[12]We were provided with a Hearing Bundle. On the first day of the Hearing, this consisted of 711 pages but both parties disclosed further documentation during the course of the Hearing and these documents were added to the Bundle by consent between the parties. By the end of the Hearing, the Bundle consisted of 743 pages. We explained to the parties that we would only read pages in the bundle which were referenced in the witness statements and which the parties referred us to. We took time to read all the witness statements ahead of the witnesses giving oral evidence.

[13]We received written closing submissions from Mr Pickard for the respondent, ahead of oral closing submissions on Day 5 of the Hearing. Both the claimant and the respondent’s counsel made oral closing submissions. We had, by then, run out of time for deliberations and the Tribunal reconvened in Chambers on 24 September 2025. We apologise for the time taken to produce these Written Reasons which was due to extensive other professional commitments since that time on the part of EJ McCann.

FINDINGS OF FACT

[14]The Tribunal has considered all the witness evidence (in their statements and oral evidence) as well as the documentary evidence in the Hearing Bundle to which we were referred and the parties’ submissions. The facts set out below are those which the Tribunal have found to be material to our conclusions. If a particular fact is not mentioned in these Reasons, it does not mean that it was not taken it into account. All our findings of fact have been made on the balance of probabilities.

Background

[15]The claimant is of Egyptian national origin and continues to have connections with Egypt, with a brother living in Cairo. His complaints of race discrimination and harassment are advanced on the basis of his Egyptian national origin and/or not being white British.

[16]The claimant’s employment with the respondent (formerly Anagram Systems Limited) commenced on 1 September 2018 as Software Development Manager. He was promoted to Associate Director – Development & Infrastructure with effect from 23 August 2021; and promoted again to the role of Director of IT and Development on 26 April 2022 which led to his appointment as a statutory Director of the respondent and he was registered as such with Companies House. Contract of employment

[17]When the claimant was promoted to Associate Director – Development & Infrastructure, he was issued with an updated contract of employment which was signed by the parties on 20 January 2022 (page 264 of the Hearing Bundle). On its face, this document provided for an obligation on the claimant to give the respondent 6 months’ written notice of termination of employment; and an obligation on the respondent to give the claimant two weeks’ notice for each complete year of service (up to a maximum of 12 weeks after 12 years’ service).

[18]The claimant alleges in these proceedings that this contract is not genuine and that he never received it, although he accepts that the signature is his. He alleges that the first eight pages of this nine-page document are not genuine and were produced by the respondent in or around July 2023 but that this was not the version of the contract he signed on 20 January 2022. He says that the version he signed had a three-month notice period.

[19]On 30 June 2023 (page 495), the claimant had emailed Andrew Morgan and Kay Peerless to request a copy of his signed contract of employment. By this request, he was evidently acknowledging that he had signed a contract of employment.

[20]Ms Peerless replied to say that she did not have access to his employment contract as it contained salary information. She indicated that the claimant would need to obtain a copy of his contract from Mr Morgan. On 3 July, and again on 7 July 2023, the claimant emailed Mr Morgan for a copy of his signed contract of employment (as well as a copy of his original contract with Anagram Systems Ltd). At this time, Mr Morgan was on holiday in the United States; and he responded (in two emails) on 7 July 2023, pointing out that he had already replied (on Monday 3 July) and stating that the claimant would need to await his return as the employment contract was in his home office (that is, back in the UK).

[21]The Tribunal finds that the claimant had been issued with a contract of employment when his employment first commenced which is why he asked for a copy of it on 3 July 2023.

[22]On 7 July 2023, Ms Peerless emailed the claimant attaching a draft version of a contract of employment and stating: ‘This is the prepared document that I then sent to Andrew to confirm details on and then send on so I would imagine it is probably what is in your actual one. Hopefully helps as is the best that I can do am afraid.’

[23]The attachment included a draft document which included a requirement, after 2 years continuous service, for the employee to give twelve weeks’ written notice to terminate their employment (page 730 of the Bundle).

[24]The claimant relies on this email and the attachment to assert that the contract in the Hearing Bundle, with page 9 bearing his signature and the date of 20 January 2022, must be fraudulent. He maintained this because(1) the draft document attached to Ms Peerless’s email had a 12-week written notice period whereas the signed contract in the Bundle had a six month notice period,

(2) Ms Peerless said that she thought the draft document attached to her email was “probably” the same as the “actual” contract he would then have been provided with, and

(3) the claimant could not recall ever seeing a contract containing a six-month notice obligation.

[25]However, the Tribunal notes that the Claimant’s previous contract of employment (with Anagram Systems Ltd), issued upon his promotion to Associate Director – Development & Infrastructure, also contained an obligation upon him to give six months’ notice to terminate his employment. The claimant’s evidence to the Tribunal was that this contract must also be fraudulent. However, we accept Mr Morgan’s evidence to the tribunal that an Associate Director or Director position warranted a six-month notice period which is why the claimant was reissued with a contract, firstly with Anagram Systems Ltd and then again, when his employment transferred, with Encore Software Ltd. The Tribunal notes that, whilst the claimant may not have noticed, when he signed the contracts, the obligation on him to give six months’ written notice of termination and/or did not recall having seen such a provision in his contract, that does not provide any proper or sufficient basis for concluding that the contract was fraudulent or not genuine.

[26]On 10 July 2023, the claimant sent written notice of resignation, giving 12 weeks’ notice. In response, Mr Morgan noted that the claimant was required to give six months’ notice “as per your signed contract” and telling him that the respondent would require him to work his notice period, such that the last day of employment would be 10 January 2024. The claimant replied to say that he gave 12 weeks’ notice as that was what was contained in the draft document emailed to him by Ms Peerless. The Tribunal notes that the claimant did not assert in this email that he had never seen nor signed a contract containing a six-month notice period. Mr Morgan replied to say that, as previously stated, he would ensure the claimant received a copy of his signed contract when he was physically back in the UK.

[27]On 13 July 2023, Mr Morgan ensured that a copy of the claimant’s signed contract was put on his desk (and a photograph was taken of this) (page 555 of the Bundle). The parties accept that this document is the contract stated as having been issued on 10 January 2022, at page 264 of the Hearing Bundle. On receipt of the hard copy of the signed contract, and when asking (in an email) why Ms Peerless had been taking photographs in his office, the claimant did not query the six-month notice period.

[28]In his evidence, the claimant took issue with the fact that this version of the contract had the word “copy” in handwriting on the first page (page 256) but we find that one hard copy was left on his desk (with “copy” in handwriting on it) and the other version in the Bundle (at pages 265 to 273) is a copy of the original kept by the respondent. We note that the claimant’s disclosure in these proceedings to the respondent’s solicitors included the version with “copy” written on it.

[29]The fact that the word “copy” is written on the version left on the claimant’s desk does not undermine the authenticity of the document; nor does the fact that it contains a six-month notice period, whilst the draft document attached to Ms Peerless’s email of 7 July 2023 contained a 12-week notice period. We find that the attachment to Ms Peerless’s email to the claimant was clearly a draft (as she herself stated) and she had no involvement in setting remuneration or notice periods. Ms Peerless confirmed this in her oral evidence to the Tribunal. Furthermore, the obligation on the claimant in the contract issued in January 2022 (to give six months’ notice to terminate his employment) was exactly the same as the claimant’s previous contract (with Anagram Systems Ltd).

[30]The claimant was, therefore, required to give six months’ written notice to terminate his employment. The respondent company

[31]The respondent is a small business concerned with the development of enterprise resource planning software, as well as some website design, for small and medium-sized businesses. It employs eight programmers and one IT engineer, as well as five employees in its Customer Success Team, and a Financial Controller. The commercial director is Andrew Morgan and the technical director is Philip Burrell. They are both statutory Directors, registered as such with Companies House.

[32]The Tribunal heard evidence from four former employees (George Foulds, Cassidy Hazel, Neil Strudwick and Phil Healey) and the evidence also referred to a number of other former employees. The impression we gained was that there had been a fairly high turnover of staff amongst the respondent’s workforce.

[33]The claimant started his employment with the respondent as a Software Development Manager and was then promoted twice in fairly quick succession (to Associate Director of Development and Infrastructure and then Director of IT and Development). His technical knowledge and experience were valuable to the respondent. He had skills which the respondent needed and it was, accordingly, keen to retain him.

[34]However, concerns were raised informally with Mr Morgan and Mr Burrell from time to time about the claimant’s management and/or communication style, both about his general manner and way of talking to his colleagues, which was sometimes referred to as ‘bullying’. This included concerns raised by Phil Healey and Neil Strudwick, as well as Cassidy Hazel and Kay Peerless, all four of whom we heard evidence from, but concerns were also raised informally by Ian Walker, Harsharda (we were not told her surname), Lawrence Rubanka, Daniel Cannell as well as Yufang Zhang in her resignation letter dated 31 October 2023, after the claimant’s employment had terminated, in which she stated that she was “often bullied during the communication with him and also observed he did the same to other colleagues.” Mr Morgan was also sent an email by a former employee Gulshanur Rahman on 8 November 2023 (again, after the termination of the claimant’s employment) in which he complained about the claimant and made observations about the claimant’s general attitude to the Customer Support Team (including Ian Walker). The Tribunal notes that, even George Foulds, who was called by the claimant to give evidence in support of his case, had sent a WhatsApp message to Cassidy Hazel in July 2023 referring to the claimant and saying, “I spent enough time around him to know how he is” and “I had a feeling he would just move onto the next scapegoat once Ian left” (that being a reference to Ian Walker).

[35]The claimant was only made aware of the concerns raised by Harsharda and the formal complaint made by Cassidy Hazel, stating in his evidence that he was not made aware of any concerns raised by any other employees; and that, in Harsharda’s case, she had accepted in a discussion with him that she had been wrong. Whatever the merits or otherwise of the various concerns raised, and whether or not Harshada told the claimant that she had been wrong about him, we find that informal concerns were raised periodically with Mr Morgan and/or Mr Burrell by a large number of different individuals and that no action was taken by the respondent to address these with the claimant until the complaint raised formally by Mr Hazel in July 2023 which we shall come back to.

[36]The impression the Tribunal gained was that, because the claimant was very good at his job and was valued by Mr Morgan and Mr Burrell, they preferred not to address the concerns head on. Furthermore, because the concerns were informal, the respondent’s co-directors favoured sweeping them under the carpet by, for example (as in the case of Mr Strudwick), moving the relevant employee to another team/area of the business in order to reduce their interactions with the claimant.

[37]The Tribunal notes that the respondent does have an Employee Handbook but it appeared to us that this was a document that was not really being implemented in any meaningful way. Similarly, whilst the respondent has and had access to HR support via an external HR consultancy (paid on a monthly retainer), there was no joined up thinking or strategy in relation to HR issues so that employee relations oversight was lacking and, instead, tended to be reactive to specific ad hoc issues when they came up, rather than proactive. There was no training on employee relations matters so employees were left to just get on with things. The Tribunal notes that, in its experience, this is not so unusual for a small company such as the respondent but the turnover of staff and number of concerns, albeit informal, raised by employees, should have alerted the respondent to seek HR input sooner. Cairo Office

[38]In May 2022, at the claimant’s instigation, the respondent hired a development team in Cairo and set up an office there. The office was managed by the claimant’s brother, Mario Anwar.

[39]During a team meeting (via a Microsoft Teams call) to announce the opening of the Cairo office, the claimant alleges that Mr Morgan said that the reason for this decision was that it would be “cheap”. The claimant was not on the call himself but it was reported back to him by George Foulds.

[40]Mr Foulds’ evidence is that Mr Morgan said something to the effect that Egypt was a third world country and, because of this, it was possible to hire senior software developers for a third of the price.

[41]Mr Morgan denies saying that or making a comment to the effect that the respondent was opening an office in Cairo because it was “cheap”; noting in his evidence that it was the claimant who recommended the Cairo venture (instead of India, which Mr Morgan had been considering) as there was an excellent talent pool of programmers at lower cost than in the UK.

[42]The Tribunal finds that Mr Morgan did not say it was “cheap” (nor the words alleged by Mr Foulds in his evidence) but probably did make a comment about the lower costs accruing to the respondent by recruiting a development team in Cairo but that the claimant had also made this observation, when encouraging the respondent to embark on the venture in Cairo (rather than India). We make this finding because it is entirely plausible, given that the reason for opening the Cairo office was that the economics made sense; like India, Cairo presented a cost-effective option since it gave the respondent access to a buoyant market of lower cost software engineers.

[43]The Tribunal notes that, in relation to the opening of the Cairo office, Mr Morgan said nothing about nationality and nothing that was race-specific.

[44]In June 2022, Mr Morgan and the claimant travelled on business to Cairo. He and the claimant booked their own flights. When the claimant told Mr Morgan that he was flying with EgyptAir, Mr Morgan is said to have responded, “EgyptAir! Do they know how to fly?” Mr Morgan denies saying this, stating that it is not the sort of language he would use. He accepts that there was a discussion about their respective flights and that the claimant was trying to get him to book an EgyptAir flight but Mr Morgan had always flown with British Airways and was happy to continue doing so.

[45]The Tribunal finds that Mr Morgan probably did make an ‘off the cuff’ joke along the lines of the comment alleged by the claimant. We also find that the claimant took this as a joke and was not in any way upset by it; he and Mr Morgan had a good relationship and, by this time, they were equals in that they were both Directors of the respondent and partners in the Cairo venture.

[46]In February 2023, the claimant alleges that Mr Morgan said that he wanted the Egyptian economy to “stay down” for a long time so that he could pay the Egyptian staff less.

[47]In his evidence, Mr Morgan denies making this comment, stating that it would make no sense to say this since the staff in the Cairo office were paid the market rate for Cairo.

[48]The Tribunal finds that Mr Morgan probably did say something to this effect, since, as we have found, the low salary costs in Cairo for software development engineers was precisely the reason for embarking on the Cairo venture. However, this was an innocuous passing comment and it is unsurprising that Mr Morgan did not recall saying this.

[49]The claimant alleges that, in February 2023, Mr Morgan sent him an email during an exchange about his tax return, commenting to the effect that “you are the one who is claiming to be an accountant!” The claimant says that Mr Morgan’s remark questioned the legitimacy of his Egyptian accounting qualification.

[50]In fact, the email in question was sent by Mr Morgan on 25 July 2023 (page 496), and not in February 2023 as he alleges in is tribunal claim, and in that email he stated as follows: “I am quite surprised by your email and its tone, I am certainly not 'deliberately' doing anything to confuse you and I find this comment even more surprising since you are the qualified accountant as you keep telling me, not me.”

[51]This was in response to an email from the claimant in which he had stated [sic]: “Regardless the Bank account you are paying to (my wife and I have a joint account). The dividend you are paying from Anagram Systems. You have paid me (Michael Bolus) at some point. Which I (Michael Bolus) need to declare my tax for what you have paid me on HMRC website. You have also paid my wife (Donna Bolus) dividend at some point, which she will need to declare this tax on HMRC too. Can you tell me which money you have paid to which person (NOT BANK ACCOUNT). So that we can get the tax declaration sorted. I am started to get very anxious and it is starting to affect my health very negatively. I feel like you are deliberately trying to confuse me more and more and deliberately withholding the information from me. Even I have mentioned numerous times how much this is affecting me negatively.”

[52]The Tribunal notes that the claimant’s allegation about the comment allegedly made via email by Mr Morgan is quite different to what Mr Morgan actually said in his email. As is clear from the email itself, Mr Morgan was not stating that the claimant was ‘claiming’ to be an accountant; nor was he questioning the legitimacy of his qualification, whether in Egypt or elsewhere. He was making the point that the claimant ought not be confused by the dividend payments since he was the qualified accountant.

[53]The Tribunal records here the important point that the claimant raised no complaints (nor any concerns at all) about any of these matters, let alone concerns about race discrimination or harassment, either at the time, or at any time since (other than in his ET1/particulars of claim); and not even in his resignation letter nor in his solicitors’ correspondence. The Tribunal also records that the claimant was in no way diffident in his communications with the respondent; he had no difficulty making it clear when he had an issue with something or about someone.

[54]The Tribunal finds that the fact that the claimant raised no concerns about Mr Morgan’s comments (in 2022 and February 2023) nor about the email (of 25 July 2023) serves to demonstrate that, firstly, they were neither unwanted by the claimant, nor intimidating, hostile, degrading, humiliating or offensive for him, and that he did not feel that they violated his dignity in any way; and, secondly, that he did not genuinely believe that he had been subjected to racerelated harassment or race discrimination.

[55]The Tribunal notes that, by 25 July 2023, the relationship between the claimant and Mr Morgan was severely damaged. The tipping point was the claimant’s refusal, on 5 July 2023, to provide the login details for the bank account of the Cairo office, as well as the tone of his emails.

[56]On that date, Mr Morgan had emailed Mario Anwar (the claimant’s brother and the office manager in Cairo) asking for the “log in details” of the bank account. The claimant replied saying, “Can you please clarify what does “log in details mean”? Do you mean the account name and numbers? as I have sent that already.” Mr Morgan replied (reasonably, in the Tribunal’s view) to state, “I am not sure what is causing the confusion here. Login details are quite straight forward. I want the log in details of the account so I can access it just like you access your bank account and I access my bank account here….” The claimant sent a response stating: “I am not sure if it is your word prediction on your computer or your phone but you did not say “login”. Please try to reread your email before sending, if you may. It might help! Can you please tell me why do you need the login details? […..] Would you be so kind to justify your request please?”

[57]The Tribunal finds that the claimant’s response to Mr Morgan’s perfectly reasonable request for the Cairo bank account login details was unnecessarily rude and tendentious. Mr Morgan had every right to request the account login details; it was not for the claimant to question this and not for Mr Morgan to have to justify his request. The point apparently being made by the claimant that Mr Morgan had initially asked for “log in” details, rather than “login” details was, the Tribunal finds, both unreasonable and deliberately provocative on the part of the claimant. In his evidence, Mr Morgan describes this email exchange as the tipping point, saying that it made him lose confidence in the claimant. The Tribunal accepts that evidence as it is borne out by the events from 5 July 2023 onwards and we readily understand that Mr Morgan would have valid concerns about a reluctance by the claimant to provide the Cairo bank account login details.

[58]On 7 July 2023, Mario Anwar emailed the claimant (his brother) about the recruitment of a web designer for the Cairo office. The claimant forwarded the email to Mr Morgan on 7 July 2023, saying “I have agreed”. On 8 July 2023, Mr Morgan replied to say that it would have been acceptable for the claimant to agree to this recruitment prior to the claimant’s email of 5 July 2023 but that this email had changed the situation and, accordingly, he was not prepared to authorise this hire. He stated, “For the avoidance of any doubt, I am giving a clear instruction not to proceed with this hire and put it on hold and for you to instruct Mario accordingly”.

[59]On 10 July 2023, at 10:13am, the claimant replied stating, “I am no longer happy to run an office in Cairo and have my name involved with any of it. I will be giving notice to everyone in the Cairo office starting tomorrow, for end of contract by the end of the month.”

[60]Mr Morgan responded at lunchtime to say: “…as an equal partnership you do not have the right to shut the company so please do not give anyone notice, we will continue to run it. I have already instructed lawyers.”

[61]The claimant replied at 15:09 to say that he had also instructed lawyers in Cairo and “will be consulting a lawyer in the UK”.

[62]At the same time (by separate email but also timed at 15:09), the claimant emailed Mr Morgan and Mr Burrell with a letter of resignation. The Tribunal notes that the resignation letter must, of course, have been drafted before 15:09. It was, overall, a positive letter in which the claimant thanked Mr Morgan and Mr Burrell for their continuous support, guidance and collaboration. He stated that he was committed to assisting in the handover process and to providing any necessary support. He stated that the reason for his resignation was that he had decided to pursue a new career opportunity that aligned with his long-term goals and aspirations. He said that his decision was not made lightly and he was confident that it was the right path for his professional development.

[63]The Tribunal finds that the email exchange on 25 July 2023 (about the claimant being a qualified accountant) illustrates the breakdown in the relationship between the claimant and Mr Morgan; they were both being somewhat snide with each other. We find that, until the first week in July 2023, the two men had enjoyed a cordial and positive, professional working relationship for many years, involving both promotions and a directorship for the claimant. That changed on (and indeed after) 5 July 2023, with the email exchange about the bank login details as well as the complaint from Mr Hazel, made verbally on 6 July 2023, which we make findings about below. The emails on 7 and 10 July 2023 further illustrate the deterioration in the working relationship between the claimant and Mr Morgan after the claimant’s refusal on 5 July 2023 to provide the login details of the Cairo bank account.

[64]On 14 July 2023, the claimant discovered that Ms Peerless had taken a photo of the copy of the claimant’s employment contract which she had left in his office. He emailed her at 15:31 to say, “there is no need to take pictures in my office” and, at 17:12 sent an email asking to have an answer as to why a photo was taken of his desk and what was on it without his consent. On the morning of 14 July 2023, there was an email exchange between Mr Morgan and the claimant about the timeline for some work being done by Yufang Zhang. The Tribunal notes that the claimant’s tone was high-handed and that Mr Morgan’s reply showed his exasperation with the claimant. Later in the afternoon on 14 July 2023, Mr Morgan emailed the claimant to take issue with him taking the afternoon off that day (as the claimant had already approved a team member’s request to have that day off). The claimant’s reply was rude, telling Mr Morgan to “consult” his employees.

[65]The emails on 14 July 2023 are consistent with the other communications at around this time and with Mr Morgan’s view that the relationship between the two men had broken down. Non-company business being carried out

[66]As a result of the claimant’s reluctance about providing the Cairo bank account login details and having received the claimant’s resignation letter on 10 July 2023, Mr Burrell started to delve into the claimant’s work emails and the respondent’s design and development tools to assess how work activities during the claimant’s notice period should be arranged.

[67]Mr Burrell discovered that the claimant had, during working hours, apparently been carrying out several private projects – that is, not for the respondent’s clients – including designing a shop and restaurant website, a diving website and an Egyptian tour company website and had been directing colleagues to work on these projects for him. The emails demonstrating the claimant’s work on these projects, which were not respondent business activities, were produced before the Tribunal. The claimant asserted that they largely showed colleagues working on these activities, not him. The Tribunal does not accept this evidence. The emails – on their face – demonstrate the claimant both undertaking work on these non-respondent business projects himself and/or directing his junior colleagues in the software development team to carry out these activities. Cassidy Hazel’s complaint

[68]In July 2023, the respondent received a formal complaint about the claimant from Cassidy Hazel, which led to the claimant’s suspension on 28 July 2023.

[69]On 6 July 2023, Mr Hazel had telephoned Mr Morgan – whilst he was still in the United States – to make a formal complaint against the claimant. Mr Morgan requested him to put it in writing, if he wished to pursue it as a formal complaint. Both Mr Hazel and Mr Morgan were consistent in their evidence about this phone call and the fact that Mr Hazel had clearly raised a formal complaint; and we accept their evidence. We found Mr Hazel to be a straightforward and honest witness. We find there is no merit in the claimant’s assertion that Mr Hazel was put up to this or that this phone call never happened.

[70]Mr Hazel put his formal complaint in writing by letter dated 24 July 2023 addressed to Mr Burrell (pages 591 to 599) and he included a log of incidents and communications involving the claimant from 23 June 2022 to 3 July 2023. In broad terms, Mr Hazel complained about a pattern of behaviour on the part of the claimant, over more than a year, which he felt was bullying. He felt undermined and targeted in front of colleagues and management; and he complained that the claimant’s conduct might be related to his sexual orientation.

[71]On 18 July 2023, there was an exchange of messages via WhatsApp between Mr Hazel and Mr Foulds. In these messages, Mr Hazel was trying to ascertain from Mr Foulds whether he had told the claimant that Mr Hazel was gay. The claimant told the Tribunal that these messages demonstrate that Mr Hazel was digging for dirt and/or was colluding with the respondent to obtain evidence against him. The Tribunal does not agree. As Mr Hazel explained to the Tribunal, he was seeing if there was corroboration for his suspicion that the claimant’s attitude towards Mr Hazel had changed upon the discovery of his sexual orientation. Mr Hazel did not, for example, ask Mr Foulds whether he thought the claimant was homophobic and Mr Foulds volunteered that he knew what the claimant could be like (“I know how he is” and “I had a feeling he would just move onto the next scapegoat…”).

[72]The claimant alleges that Mr Hazel’s concerns – and the other informal concerns, raised from time to time by a large number of other employees, as already referred to – were “false accusations of misconduct”, and were made without supporting evidence. The only formal complaint raised with the respondent was the one submitted by Mr Hazel and, in his case, he provided a log of incidents, many of which were referable to emails which have been provided in the Hearing Bundle.

[73]Whatever the ultimate merits, or otherwise, of Mr Hazel’s concerns (this Tribunal is not required to determine whether his concerns were, in the end, well-founded), we find that the concerns were genuinely held and were raised in good faith by Mr Hazel because that is the way that he perceived he was treated.

[74]The Tribunal notes that his concerns broadly chime with the types of concerns raised by others informally, about the claimant’s communication and behaviours as overbearing, targeting and, in some cases, bullying. That others shared Mr Hazel’s view of the claimant adds weight to our finding that the concerns raised by him were genuine and conveyed by him in good faith – that is, they were not raised without a belief in their truth.

[75]On 19 July 2023, Mr Burrell asked the claimant to attend a development progress meeting on 21 July 2023. That meeting went ahead on the morning of Friday 21 July 2023. Ms Peerless attended to take notes. According to her email later that day, the claimant was sarcastic and extremely defensive, to the point of being rude, to Mr Burrell and it made her feel so uncomfortable that she emailed Mr Morgan to ask for future meetings to be recorded, rather than her having to attend to take notes.

[76]In the claimant’s oral evidence to the Tribunal, he referred to point (2) of the Notes taken by Ms Peerless on 21 July 2023, asserting that this showed that he was being cooperative. In fact, the Tribunal finds that, in general – as the Notes show – the claimant was stonewalling and was not providing the information requested or the updates; and, even in relation to point (2) of the Notes, we find that he told Mr Burrell that he did not think it was “necessary” for timesheets to be completed by the Cairo office programmers “as they reported to him and that nothing was changing” which we do not find demonstrates a cooperative approach). The claimant’s suspension

[77]Having received the formal written complaint from Mr Hazel, Ms Peerless’ concerns and having discovered that the claimant had apparently been working on personal projects in company time, Mr Morgan took HR advice from Eleanor Greenwell, HR business partner at Questcover (the external HR consultancy retained by the respondent). The advice received was to the effect that the respondent should consider suspending the claimant whilst it investigated the two key allegations of misconduct – namely,(1) the concerns raised about bullying and harassment; and

(2) carrying out work on personal projects during work time. The respondent was advised to hold a short suspension meeting with the claimant and provide him with a copy of a letter notifying him of his suspension and the next steps (namely, an investigation to be carried out by Ms Greenwell, including via an investigation meeting with the claimant).

[78]On 27 and 28 July 2023, Mr Burrell emailed the claimant to ask where he could find the code for various websites. In his response, the claimant was difficult and sarcastic, demonstrating how poor the working relationship now was between the claimant and the respondent.

[79]On the morning of 28 July 2023, Mr Morgan asked the claimant to attend a “catch up” meeting on projects that afternoon. The claimant recorded this meeting covertly. During the disclosure process in these proceedings, he had provided his own transcript of that recording for the Bundle but the respondent had not indicated whether the transcript was broadly accurate or not. During the Hearing, the Tribunal asked the respondent to confirm its position and it was confirmed on behalf of the respondent that the transcript was accepted as being largely accurate.

[80]The claimant complains about this meeting, stating that a ‘catch up’ meeting was used as an opportunity to suspend him without justification and without any investigation having been carried out, no witnesses having been spoken to and no advance warning having been given ahead of the meeting.

[81]The Tribunal finds that the purpose of the ‘catch up’ meeting arranged by Mr Morgan was two-fold – firstly, to get information from the claimant that had been lacking (at the meeting on Friday 21 July 2023 and in emails where Mr Burrell had requested updated information about where to find various website codes); and, secondly, to formally suspend the claimant in order to investigate the allegations of misconduct.

[82]The Tribunal further finds that the formal suspension letter had already been drafted but that is not, in our experience, at all unusual. We also find that it was neither unreasonable nor odd for Mr Morgan to seek project information first.

[83]The claimant alleges that his suspension was entirely unreasonable because it was carried out without the respondent having done any proper investigation beforehand. However, the Tribunal notes that the claimant appears to have misunderstood the purpose of a suspension in potential workplace disciplinary cases. It may be necessary for an employee to be suspended in order for an investigation to then be carried out – that is, to enable an investigation to take place. The respondent’s Employee Handbook makes clear, in paragraph 5 of its Disciplinary Policy, that the respondent reserves the right to suspend employees from work to enable investigations into a particular problem to take place.

[84]The Tribunal also notes that the ACAS Code of Practice on Disciplinary and Grievance Procedures and the related Guidance makes clear that suspension may be necessary to enable an investigation to be carried out and that the employer should make clear that suspension is not considered disciplinary action.

[85]The claimant told the Tribunal that a suspension was not necessary because he was working from home so there was no risk to the respondent in permitting him to continue working. However, Mr Hazel’s log of email communications with the claimant indicates that much of the alleged bullying and harassment apparently took place on email; and, furthermore, the Tribunal accepts that the respondent’s trust in the claimant was significantly eroded as a result of the claimant’s refusal or reluctance on 5 July 2023 to provide the Cairo bank account login details and subsequent communications between the parties, as well as what Mr Burrell had found out about the claimant apparently working on non-respondent business during working hours. The Tribunal considers it reasonable for the respondent to wish to ensure that his access to company information was as restricted as possible.

[86]At the suspension meeting, the claimant was handed a copy of the notification of suspension letter (pages 606 – 607). In these proceedings, the claimant complains that the letter did not set out details of the allegations. However, the Tribunal finds that, since the disciplinary investigation by Ms Greenwell was yet to take place and that the claimant was not yet being invited to a disciplinary meeting, the letter set out enough for the claimant to understand the gist of the respondent’s concerns, which would then be explained further at the investigation meeting. The letter also made clear that the fact the claimant was being suspended did not indicate that the respondent had decided that he was guilty and that it did not constitute disciplinary action.

[87]The claimant says that, in respect of his suspension, he was less favourably treated than Ms Peerless who was not suspended when she forgot to submit the respondent’s VAT return on time; and also as compared with Mr Hazel who once inadvertently left his laptop in his car and it got stolen. He says that neither of them were suspended. The respondent accepts that neither Ms Peerless nor Mr Hazel were suspended in these situations because these incidents were inadvertent and were not viewed as potential misconduct The Tribunal finds that this was genuinely the respondent’s view; and, further, we find that submitting a VAT return late and leaving a laptop in a car by mistake are in no way comparable to the serious misconduct alleged, at the point of his suspension, against the claimant – namely, bullying and harassing behaviours and doing private work on company time. Return of company property and office keys

[88]At the suspension meeting (and in the letter of suspension), the respondent required the claimant to return his company laptop and work phone. The suspension letter asked the claimant to return his office keys and to refrain from entering the respondent’s premises. At the meeting, the claimant said that he did not have his devices with him and that they were at home and there was also discussion between the parties about whether the claimant should be afforded any time to delete personal data from the devices. The respondent’s initial view was that he should not be allowed time to delete any data from the devices but, in the end, they decided that he should be permitted a short time to do that. Because the devices were at his house, Mr Morgan and Mr Burrell spoke to the claimant about attending his home address after the meeting in order to collect the respondent’s property.

[89]The Tribunal notes that the laptop and work phone were the property of the respondent. The Employee Handbook made clear that email and internet should not be used for private purposes at any time and that email accounts maintained on the respondent’s email system were the sole property of the respondent. The Handbook also stipulated that if an employee was provided with a work mobile phone, that was intended for business use only and that whilst the employee could make “essential” personal calls, personal usage was restricted. The Handbook also stated that a work mobile phone should be returned to the respondent immediately if the employee was requested to return it by their line manager.

[90]After the suspension meeting had finished, the claimant left for home. Mr Morgan and Mr Burrell drove straight to the claimant’s home but he had not yet arrived so they waited for him. He then arrived and went inside his house. The Tribunal finds that the claimant took at least 20 minutes before re-emerging with his company devices which he left on a wall by his driveway. Mr Burrell got out of the car he had travelled in with Mr Morgan to retrieve the devices and they then left. The Tribunal finds that, in the 20 minutes or so that the claimant was inside his property, he deleted thousands of records, wiping his laptop clean of all data. In his evidence, the claimant accepted that he wiped the entire device (as well as his mobile phone) as he did not have time to select what data to leave and what data to delete.

[91]In the claimant’s later resignation letter (dated 24 August 2023), and in a letter from his solicitors (of 3 August 2023), it was alleged that, whilst Mr Burrell and Mr Morgan were retrieving the company devices from the claimant’s home address, a person on behalf of the respondent filmed the claimant going in and out of his house without his permission. The claimant repeats this allegation in his witness statement as does his wife, Mrs Bolus, who gave evidence to the Tribunal. Mr Burrell and Mr Morgan both deny arranging for someone to film the claimant on the respondent’s behalf and without the claimant’s consent.

[92]In the witness statements of the claimant and Mrs Bolus, they also state that they saw Mr Burrell going over to the other car, where they had seen someone filming them, and talking to that individual, then going back to the car he had arrived in with Mr Morgan and them then driving off. Mr Burrell, in his evidence to the Tribunal, denied that he had approached anyone in another car, before going back to the car he had arrived in with Mr Morgan and driving away. This allegation (about Mr Burrell speaking to the occupant of another car who had been engaged in filming the claimant entering and leaving his house) had never previously been made – it is not to be found in the solicitor’s letter nor in the resignation letter (in August 2023); it is not asserted in the ET1/particulars of claim and it is not contained in the List of Issues. The allegation is made for the first time in the witness statements for the claimant and his wife.

[93]The Tribunal notes that, if the respondent had wanted to have some recorded evidence, Mr Morgan (who was with Mr Burrell but remained in the car) could have filmed the claimant going in and out of his house and Mr Burrell retrieving the devices from the wall by the claimant’s driveway. The Tribunal finds that there may well have been someone in another car and he may have been holding a device, such as a phone, which the claimant and his wife may have assumed was being used to film them. However, the Tribunal finds that this was nothing to do with the respondent and there was no filming arranged on behalf of the respondent. Mr Morgan and Mr Burrell went straight to the claimant’s home address after the suspension meeting; they had no time to set up an arrangement whereby a third party attended to film the claimant’s address. The claimant’s evidence generally was unsatisfactory in other ways – for example, contradicting or misinterpreting what was said on the face of documents in the Bundle and/or claiming that his contract of employment was fabricated. On this issue, the Tribunal prefers the evidence of Mr Burrell and Mr Morgan that they (and the respondent) had nothing to do with any filming. Restricting the claimant’s access to the respondent’s premises

[94]After the events of 28 July 2023, and having discovered that the claimant had completely wiped his company devices of all data, on 31 July 2023, Mr Morgan spoke to the Reception Manager, Paul Murray, at Afon House, in Horsham where the respondent leased some office premises. In his evidence, Mr Murray states that Mr Morgan told him “Do not allow Mr Michael Anwar Bolus Abd El Nour access to the building as he no longer works for Anagram”. Mr Morgan’s evidence was that he did tell Mr Murray that if the claimant came to the building, it was not because of a request from the respondent and that he was not permitted access to the respondent’s office.

[95]The Tribunal prefers the recollection of Mr Morgan. It is consistent with the restrictions conveyed to the claimant in the suspension letter. The Tribunal finds that it was perfectly reasonable for Mr Morgan to seek to restrict the claimant’s access to the respondent’s actual office within Afon House. We regard it as implausible that Mr Morgan would have referred to the claimant by his full name, as alleged by Mr Murray. This is because the claimant was known as Michael Bolus (not by his full name). Furthermore, the Tribunal approaches Mr Murray’s evidence with some caution. In his oral evidence to us, he told us that his relationship with the claimant was simply professional and the same as his relationship with Mr Morgan. When the Tribunal asked the claimant how he knew about the discussion between Mr Morgan and Mr Murray, he revealed that he and Mr Murray were actually friends, that Mr Murray had sent the claimant a text message on his personal phone and that they had then spoken. The fact that Mr Murray did not reveal this during the course of his oral evidence, instead seeking to give the impression that he and the claimant were only acquaintances, is unsatisfactory and the Tribunal finds that this undermines Mr Murray’s general reliability as a witness. Disciplinary process

[96]Having suspended the claimant and having notified him of the disciplinary investigation to be conducted by Eleanor Greenwell, by email dated 1 August 2023, the claimant was invited to an investigatory meeting (via Teams) on 2 August 2023 at 3pm. The claimant was told that the meeting was part of Ms Greenwell’s fact-finding to investigate the allegations of misconduct (the complaints of bullying and harassment and the allegation of carrying out personal projects during work time).

[97]The claimant did not join the Teams link at 3pm on 2 August 2023 and, at 3:39pm, Mr Burrell emailed him to reschedule the meeting for 3 August 2023 (at 3pm). In fact, unbeknownst to Mr Burrell, the claimant had emailed Ms Greenwell on 2 August 2023 at 12:39pm to say that he was not fit to attend the investigatory meeting. He attached a Fit Note. That email (and attachment) were not copied to Mr Burrell. Having received Mr Burrell’s email seeking to rearrange the meeting, the claimant emailed him (the next day at 2:15pm) to attach the email and Fit Note that he had sent Ms Greenwell. He confirmed that he was not fit to attend the investigatory meeting on 3 August 2023.

[98]The claimant then continued to be signed off work until his (further) resignation on 24 August 2023. In light of his continued absence, the respondent made an OH referral. That appointment took place on 22 August 2023, with a report produced the same date. This stated that the claimant had suffered an acute stress reaction to the disciplinary investigation and whilst he was feeling better, he was not yet fully recovered. The OH adviser, however, anticipated that the claimant would be fit to interview in another two weeks. Dividends & commission

[99]The claimant’s monthly pay for the work he was required to do in his role was made up of a monthly salary payment from the respondent and a monthly payment by way of dividends from Anagram Systems Ltd (a company associated with the respondent company). Each month, the clamant was entitled to a payment in respect of dividends in the sum of £833.33.

[100]On 3 August 2023, on the date that the investigatory meeting was due to take place, the claimant’s solicitors wrote to the respondent. The solicitors referred to the fact that, at the end of July 2023, the claimant had not received his dividends payment and he had chased this up by email on 1 August 2023. They also referred to the suspension meeting and the claimant’s ill-health. The solicitors stated that: “Our client will rely on the fact that the Company has suspended him without reasonable cause, breached his contract in failing to pay dividends and made false accusations against him. This has made his position untenable and which he can rely on as conduct entitling him to terminate his contract without notice.”

[101]The Tribunal notes that there was no reference in this letter to any commission arrangements.

[102]A data subject access request was made on behalf of the claimant in the same correspondence.

[103]In his evidence to the Tribunal, Mr Morgan accepted that the dividends due to the claimant at the end of July 2023 were not paid to him, stating, “They were overlooked, given the circumstances; and I hold my hands up to that.” In crossexamination, the claimant pointed out that he emailed Mr Morgan about the non-payment of the dividends (on 1 August 2023) and that his email was ignored. Mr Morgan replied by stating that he did not see the claimant’s email. He accepted that the dividends were overdue; and that when the claimant’s solicitors referred to the dividends not having been paid, he ensured they were paid straightaway.

[104]In fact, the dividends were not paid until 18 August 2023, after the respondent was sent a further letter by the claimant’s solicitor (dated 14 August) chasing for payment.

[105]The respondent’s case is that the claimant’s dividends had been paid late before. The Tribunal accepts that since there is evidence in the bundle of late payment of dividends in September 2022 and Christmas 2022. However, the dividends on those occasions were only a few days late.

[106]The tribunal finds that there was a lot going on for Mr Morgan and Mr Burrell in the couple of weeks after the suspension meeting. They had discovered that the claimant had wiped his laptop of all company data; they had discovered evidence that he had apparently been doing work on personal projects in work time; they had received a fairly wide-ranging data subject access request on 3 August 2023. We also find that the respondent was fed up with the claimant by this point and its attitude was likely to have been to let him wait for the dividends an only pay them when they had to. The dividends were paid nearly 3 weeks late, on 18 August 2023.

[107]As for commission payments for additional work done from time to time by the claimant on website design for the respondent’s clients, there was no written agreement between the claimant and respondent governing commission. However, Mr Morgan told the Tribunal in his evidence that commission would be due, normally at 20%, for website design work once it was delivered and completed. We accept that evidence. It is supported by documentary evidence in the bundle in relation to commission payments in respect of Navsa and Eurofindings. Emails between Mr Morgan and the claimant show that commission was payable upon completion of the work.

[108]In these proceedings, the claimant alleges that an unlawful deduction was made from his wages in respect of work done on a website for one of the respondent’s clients (TARFF) in January 2023. He alleges that he is owed £7500.

[109]The respondent’s case is that the website design work for TARFF was never completed and no monies were ever paid by TARFF to the respondent in respect of such work. The Tribunal accepts this. There is correspondence in the Bundle from TARFF confirming that neither the respondent nor Anagram Systems Ltd had supplied a website to TARFF and that no payment had been made to the respondent in respect of any such work (page 376). We accept that evidence at face value and, therefore, the Tribunal finds that the claimant did not become entitled to any commission. It is notable in this regard that the correspondence from the claimant’s solicitor did not mention any monies owing to the claimant in respect of commission for a TARFF website and nor did the claimant’s second resignation letter dated 24 August 2023. The Tribunal finds that, had the claimant considered that he was entitled to commission of £7500 he and his solicitor would have mentioned it. The claimant was owed £500 in respect of outstanding commission for a website for Navsa but that was paid to the claimant in August 2023 (and that was mentioned in the solicitor’s correspondence). Claimant’s (second) resignation on 24 August 2023

[110]On 18 August 2023, the claimant received the outstanding salary payment. In answer to a question from the Tribunal, the claimant told us that he received a job offer on 18 August 2023 to start work on 1 September 2023. In his ET1 form (at Box 7.2), the claimant accepts that he started work on 1 September 2023 earning a much higher salary (£60,000).

[111]On 22 August 2023, as the Tribunal has found, Occupational Health had opined that the claimant would be fit for his investigatory meeting in a fortnight.

[112]On 24 August 2023, the claimant submitted a further letter of resignation, stating that he was resigning with immediate effect – that is, without notice. In that sense, his resignation was different to his first resignation on 10 July 2023 when he resigned with 12 weeks’ notice. In his letter, the claimant referred to the gross misconduct allegations, the suspension meeting on 28 July 2023 and his suspension and time off with ill-health as well as the delay in payment of dividends due to him. He stated that: “The treatment meted out to me amounts to a fundamental and repudiatory breach of the implied obligation of mutual trust and confidence. I will rely on the fact that the Company has suspended me without reasonable cause, breached my contract in failing to pay dividends in time and made false accusations against me. This has made my position untenable and which I rely upon as conduct entitling me to terminate my contract with immediate effect without notice”.

[113]The Tribunal finds that, whilst the claimant referred to his suspension (which he said was without reasonable cause) for what he described as “false accusations” and to the failure to pay dividends “in time”, in fact the entire reason for his resignation was that he had no intention of going through the investigatory and likely disciplinary process and had a new job which he needed to be able to start on 1 September 2023. The Tribunal finds that the references to his suspension, false accusations and late payment of dividends were used by the claimant to justify a resignation without notice so that he was able to avoid the disciplinary investigation and start his new job. Expenses (£172)

[114]The claimant says that he was owed £172 for expenses incurred in relation to a business trip to Cairo in June 2023.

[115]The respondent’s process for reimbursing expenses, if an employee used their own funds (eg, their own credit card), required them to submit a written claim, attaching relevant receipts. That policy was made clear in the Employee Handbook.

[116]On 9 June 2023, the respondent paid the claimant £1598.08 for expenses incurred. Mr Morgan told us candidly in his evidence that he did not think that this amount included the expenses of £172 that the claimant was complaining about in these proceedings. He told us that the respondent did not pay the claimant £172 for expenses because he did not provide a claim form or any receipts. The claimant had also been told on 12 June 2023 to ensure that all future expenses were put on the company credit card (page 448).

[117]The Tribunal accepts Mr Morgan’s evidence. The claimant has not provided any information or evidence for how £172 was incurred nor when it was due. If it was after 12 June 2023, he should have been using the company credit card. If he used his own credit card, he could have submitted credit card statements showing the incurred expenses but he failed to do so. Holiday pay (five days)

[118]The claimant’s case on holiday pay is wholly unclear.

[119]In the List of Issues, he identified that he was claiming for five days’ holiday which had allegedly accrued as at the date of termination of employment (24 August 2023) but which had not been taken. However, in his evidence he stated that he had planned to take five days’ holiday in September 2023 which had been approved but which he could not take because of his resignation.

[120]The Tribunal explained to the claimant how a breach of contract claim in respect of holiday pay might be advanced (and that he had the burden of proving any alleged breach of contract). We explained that one would typically consider the employee’s contractual holiday entitlement in the holiday year up to the date of termination (including any right to carry over holiday accrued in a previous year), then work out how many days had been taken and, if there was any remaining holiday which had accrued but not been taken nor paid in lieu, that might be pursued as a claim for breach of contract in respect of holiday pay.

[121]Upon receiving this explanation, the claimant stated that he did not know how many days’ holiday he had taken but said that his payslip for the month ending 31 August 2023 showed that he was owed 6.1 days (page 681) but he said that he was not sure how that was calculated and he stated that he resigned with immediate effect on 24 August 2023.

[122]The Tribunal gave the claimant every opportunity to explain his case and provide further evidence, including documentary evidence, in support of his case. The Tribunal suggested to the respondent that it may wish to disclose its holiday records in respect of the claimant. The respondent disclosed 7 pages of documents on Day 3 of the Hearing and the claimant was given time to consider this documentation and did not object to them going into the hearing Bundle. This included a holiday record spreadsheet (page 740) and an email from payroll (dated 9 September 2025) which explained that the payroll software (BrightPay) calculates the amount of annual leave for the full year and that, as of August 2023, the claimant had 6.1 days’ remaining of his annual entitlement.

[123]The claimant’s contract of employment provided for 25 days’ holiday in the calendar year plus the eight bank and public holidays. The Employee Handbook prohibits employees from carrying over unused holiday entitlement from one year to the next. Given his contractual entitlement of 25 days in the 2023 calendar year, as at 24 August 2023, the claimant had accrued an entitlement to 16.2 days.

[124]The respondent’s case (in the evidence of Mr Morgan) is that the claimant had accrued an entitlement to 16.3 days’ holiday from 1 January to 24 August 2023 and had taken 16.5 days so was not owed any holiday pay for accrued but untaken holiday.

[125]From the holiday record spreadsheet, the Tribunal finds that the claimant took 16.5 days holiday. We acknowledge that half days were shown as ‘requested’ on 6 and 13 July 2023 rather than ‘approved’, but we find, in the absence of evidence to the contrary, that the claimant did take half days’ holiday on both those dates as suggested in the spreadsheet. The Tribunal notes that email correspondence shows that the claimant did take a half day’s holiday on 14 July 2023, as noted in our other findings (and, indeed, he was criticised by Mr Morgan for that). We also note that the claimant did not reply to an email from Mr Morgan on 6 July 2023 sent at 14:54 until the following morning (page 531) which tends to show that he was not at work on the afternoon of 6 July 2023. The Tribunal further notes that there is an email to the claimant from Yufang Zhang on the afternoon of 13 July 2023 which the claimant only responded to the next morning, again tending to show that he was not at work that afternoon either (page 551).

[126]The claimant has not given evidence to show on which dates he did or did not take holiday, nor the number of days’ holiday taken by him. THE LAW Direct discrimination

THE LAW

[127]Section 13 of the Equality Act 2010 (“EA 2010”) provides that: “(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”

[128]In respect of each complaint under sections 13(1) and 39(2)(c) and/or (d) of the EA 2010, the tribunal must determine whether the respondent, in respect of the complaints asserted in his claim, discriminated against the claimant by treating him less favourably than it treated or would have treated others “because of” race.

[129]In determining whether race was a reason for the acts of direct discrimination relied on by the claimant, the tribunal must consider “what, consciously or unconsciously, was the reason” for the treatment (Chief Constable of West Yorkshire Police v Khan

[2001] ICR 1065

, per Lord Nicholls, at paragraph 29). If the claimant’s race was a material (i.e. non-trivial) influence or factor in the reason for the treatment, it will be unlawful discrimination (Nagarajan v London Regional Transport

[1999] ICR 877

) – the claimant’s race need not be the main or the sole reason for the treatment but it must be a real or an effective cause of it.

[130]The Tribunal must look into the mental processes of the putative discriminator. The enquiry is necessarily subjective and requires the Tribunal to make findings as to the (conscious or unconscious) motivations (but not necessarily motives) of the relevant decision-maker.

[131]In considering whether the treatment of the claimant was because of race, the tribunal needs to be satisfied that it was less favourable (because of race) in comparison to an employee in materially similar circumstances who did not have the same protected characteristic as the claimant (per section 23(1) EA 2010).

[132]If there is no actual comparator, the comparison required by section 13 EA 2010 is hypothetical – namely, would a person whose circumstances were not materially different (including their performance at work and their conduct, but who was not the same race as the claimant) have been treated in the same way or more favourably than the claimant and, if so, was the impugned treatment of the claimant because of race?

[133]In certain of his complaints, the claimant points to the treatment of white British colleagues employed by the respondent and who (he says) were treated more favourably than him. The question will be whether they are proper comparators or whether their circumstances were not materially similar. Even if the latter is the case, they may be used as evidential comparators whose treatment can help the tribunal to evaluate and elucidate whether the claimant was treated less favourably because of race: Leicester City Council v Parmar

[2024] ICR 1115

(EAT), recently upheld by the Court of Appeal,

[2025] EWCA Civ 952

, at paragraphs 57 to 60. Detriment (discrimination)

[134]Pursuant to section 39(2) EA 2010, an employer must not discriminate against an employee:a. as to their terms of employment

b. the way the employer affords the employee access, or by not affording them access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;

c. by dismissing the employee;

d. by subjecting them to any other detriment.

[135]By virtue of section 39(7) EA 2010, the reference to “dismissing” includes a constructive dismissal (i.e. termination of employment in circumstances where the employee is entitled, because of his employer’s conduct to terminate his employment without notice).

[136]As to what is meant by “detriment”, this must be examined from the perspective of the employee but, per Ministry of Defence v Jeremiah

[1980] ICR 13

, at paragraph 31, a detriment will only exist if a reasonable worker would also take the view that the treatment was to his detriment; but something may be a detriment even if there are no physical or economic consequences for the claimant.

[137]Accordingly, and pursuant to Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

(at paragraphs 34-35 and 104-105), an “unjustified sense of grievance cannot amount to ‘detriment’”; and the Tribunal reminds itself of the Judgment in Warburton v Chief Constable of Northamptonshire Police

[2022] EAT 42

, in which the EAT held, at paragraph 51, that: ‘Although the test is framed by reference to “a reasonable worker”, it is not a wholly objective test. It is enough that such a worker would or might take such a view. This is an important distinction because it means that the answer to the question cannot be found only in the view taken by the employment tribunal itself. The tribunal might be of one view, and be perfectly reasonable in that view, but if a reasonable worker (although not all reasonable workers) might take the view that, in all the circumstances, it was to his detriment, the test is satisfied.’ Harassment

[138]Pursuant to section 40 EA 2010, an employer must not harass an employee. Section 26 EA 2010 provides: “(1) A person(a) (A) harasses another

(b) (B) if – (a) A engages in unwanted conduct related to a relevant 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 [for short we will refer to this as a “proscribed environment”]. … (4) In deciding whether conduct has the purpose or effect referred to in subsection (1)(b), each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case;

[139]Section 212 EA 2010 provides, materially: (1) In this Act — … “detriment” does not, subject to subsection (5), include conduct which amounts to harassment. … (5) Where this Act disapplies a prohibition on harassment in relation to a specified protected characteristic, the disapplication does not prevent conduct relating to that characteristic from amounting to a detriment for the purposes of discrimination within section 13 because of that characteristic.

[140]The meaning of ‘related to’ in s.26 EA 2010 is distinct from and broader than the ‘because of’ formulation under s.13 EA 2010. It is not, however, to be reduced to a ‘but for…’ test and it is not enough to point to the relevant characteristic as the mere background to the events. As Underhill LJ said in UNITE the Union v Nailard

[2019] ICR 28

: ‘… The necessary relationship between the conduct complained of and the claimant’s gender was not created simply by the fact that the complaints with which they failed to deal were complaints about sexual harassment — or, in the case of Mr Kavanagh, that part of the situation that led him to decide to transfer the claimant was caused by such harassment.’

[141]In considering whether conduct, such as a comment, amounts to race-related harassment the tribunal has to ask itself whether, objectively, the comment relates to the protected characteristic. The tribunal should look at the evidence in the round (per HHJ Richardson in Hartley v Foreign and Commonwealth Office Services

UKEAT/0033/15/LA

at [23] – [24].)

[142]In considering whether the conduct is related to the protected characteristic, the tribunal must focus on the conduct of the individuals concerned and ask whether their conduct is related to the protected characteristic (Nailard, at paragraph 80).

[143]In Tees Esk and Wear Valleys NHS Foundation Trust v Aslam

[2020] IRLR 495

HHJ Auerbach gave further guidance: ‘[21] Thirdly, although in many cases, the characteristic relied upon will be possessed by the complainant, this is not a necessary ingredient. The conduct must merely be found (properly) to relate to the characteristic itself. The most obvious example would be a case in which explicit language is used, which is intrinsically and overtly related to the characteristic relied upon. Fourthly, whether or not the conduct is related to the characteristic in question, is a matter for the appreciation of the Tribunal, making a finding of fact drawing on all the evidence before it and its other findings of fact. The fact, if fact it be, in the given case that the complainant considers that the conduct related to that characteristic is not determinative. [24] However, as the passages in Nailard that we have cited make clear, the broad nature of the ‘related to’ concept means that a finding about what is called the motivation of the individual concerned is not the necessary or only possible route to the conclusion that an individual’s conduct was related to the characteristic in question. Ms Millns confirmed in the course of oral argument that that proposition of law was not in dispute. [25] Nevertheless, there must still, in any given case, be some feature or features of the factual matrix identified by the Tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim. In every case where it finds that this component of the definition is satisfied, the Tribunal therefore needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found, have led it to the conclusion that the conduct is related to the characteristic, as alleged. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the Tribunal may consider it to be.’ [emphasis added] [See also Wasteney v East London NHS Foundation Trust

[2016] ICR 643

]

[144]In Weeks v Newham College of Further Education

UKEAT/0630/11/ZT

, Langstaff J said this at paragraph 21: ‘An environment is a state of affairs. It may be created by an incident, but the effects are of longer duration. Words spoken must be seen in context; that context includes other words spoken and the general run of affairs within the office or staff-room concerned. We cannot say that the frequency of use of such words is irrelevant.’

[145]In Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

(at paragraphs 15 and 22), Underhill J (as he was) said: ‘15…A Respondent should not be held liable merely because his conduct has had the effect of producing a proscribed consequence: it should be reasonable that that consequence has occurred. That…creates an objective standard….Whether it was reasonable for a Claimant to have felt her dignity to be violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt. 22…We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase…’

[146]A finding that it is not objectively reasonable to regard the conduct as harassing is fatal to a complaint of harassment. That point may not be crystal clear on the face of section 26 EA 2010 but see the obita dicta of Underhill LJ in Pemberton v Inwood

[2018] IRLR 557

at paragraph 88 and the ratio of Ahmed v Cardinal Hume Academies, unreported,

UKEAT/0196/18/RN

in which Choudhury J (at paragraph 39) held that Pemberton indeed correctly stated the law. Burden of Proof

[147]For claims under the EA 2010 (including for direct discrimination and harassment), the burden of proof is on the claimant initially under s.136(1) EA 2010 to establish facts from which the tribunal could decide, in the absence of any other explanation, that the respondent has contravened the EA 2010 as is alleged.

[148]In the case of direct discrimination, this requires more than that there is a difference in treatment and a difference in protected characteristic (Madarassy v Nomura International plc

[2007] ICR 867

at paragraph 56). There must be evidence from which it could be concluded that the protected characteristic was a real or an effective cause of the treatment. The burden then passes to the respondent under s 136(3) to show that the treatment was not discriminatory: Wong v Igen Ltd

[2005] ICR 931

[149]The Tribunal recalls that the fact that someone is treated unreasonably does not mean that it is proper to infer that they have been discriminated against (Glasgow City Council v Zafar

[1998] ICR 120

). However, we have also borne in mind that where the evidence shows that the complainant is the only employee who has been subject to unreasonable treatment, the tribunal must “consider carefully and with particular scrutiny” whether discrimination has played a part in the treatment: Kowalewska-Zietek v Lancashire Teaching Hospitals NHS Foundation Trust

UKEAT/0269/15/JOJ

, per Langstaff J (paragraph 48).

[150]Tribunals should not apply the burden of proof provisions formulaically. In appropriate cases, where the tribunal is in a position to make positive findings on the evidence one way or another, the Tribunal may move straight to the question of the reason for the treatment: Hewage v Grampian Health Board

[2012] UKSC 37

[2012] ICR 1054

, per Lord Hope (at paragraph 32). In all cases, it is important to consider each individual allegation of prohibited conduct separately and not take a blanket approach (Essex County Council v Jarrett

UKEAT/0045/15/MC

at paragraph 32), but equally the Tribunal must also stand back and consider whether any inference of discrimination (or harassment etc) should be drawn taking all the evidence in the round: Qureshi v Victoria University of Manchester

[2001] ICR 863

, per Mummery J (at 874CH and 875CH). Drawing inferences and unconscious discrimination

[151]When considering whether the treatment complained of is because of or related to race, the Tribunal may draw an inference that the alleged perpetrator was motivated (consciously or unconsciously) by race (Nagarajan v London Regional Transport

[1999] ICR 877

, at 885E-G).

[152]In order to justify such an inference, the Tribunal would need first to make clear findings of primary fact from which it is proper and justified to draw such an inference. As was made clear in Network Rail Infrastructure v Griffiths-Henry

[2006] IRLR 865

: “If there is a genuine non-discriminatory reason, at least in the absence of clear factors justifying a finding of unconscious discrimination, that is the end of the matter”.

[153]Elias J (President) made the following observation in Law Society v Bahl

[2003] IRLR 640

, at paragraph 127: “If, however, the tribunal accepts that the reason given for the treatment is genuine, then unless there is evidence to warrant a finding of unconscious discrimination, such that the tribunal is really finding that the alleged discriminator has concealed the true reason even from himself, there will be no basis to infer unlawful discrimination at all. Tribunals can in a proper case make a finding of unconscious discrimination, but it is a significant finding for a tribunal to hold that they can read someone’s mind better than the person himself, and they are not entitled to reach that conclusion merely by way of a hunch or speculation, but only where there is clear evidence to warrant it”.

[154]The Tribunal notes that particular care is required when deciding what inferences it might be proper to draw when considering whether a claimant has discharged the burden of proving a prima facie case of discrimination (under s136(1) EqA). The following guidance was given by the Supreme Court in Royal Mail Group Ltd v Efobi

[2021] UKSC 33

(per Lord Leggatt):(1) The claimant has the burden of proving, on the balance of probabilities, those matters which he wishes the tribunal to find as facts from which the inferences could properly be drawn (in the absence of any other explanation) that an unlawful act was committed (at paragraph 30).

(2) The Tribunal is not prevented from taking into account evidence adduced by the respondent insofar as it is relevant in deciding whether the burden of proof has moved to the respondent (at paragraph 20).

(3) That will include any facts proved by the respondent which would prevent the necessary inference from being drawn (at paragraph 30).

(4) However, explanations (as opposed to evidence) must not be taken into account at the first stage, as the statutory language of s136(1) mandates that the Tribunal must ignore any explanation for those facts given the respondent and assume that there is no adequate explanation for them (at paragraph 22).

(5) So, the Tribunal must consider what inferences can properly be drawn in the absence of any explanation for the treatment complained of but no adverse inference can be drawn from the fact that the employer has not provided an explanation (at paragraph 40). Constructive unfair dismissal

[155]Section 95(1)(c) of the Employment Rights Act 1996 provides that an employee is taken to be dismissed by his employer if “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct”.

[156]It is well established that:(i) conduct giving rise to a constructive dismissal must involve a fundamental breach of contract by the employer;

(ii) the breach must be an effective cause of the employee’s resignation; and (ii) the employee must not, by his or her conduct, have affirmed the contract before resigning.

[157]Not every breach of contract is a fundamental breach: the conduct of the employer relied upon must be “a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract”: Western Excavating (ECC) Ltd v Sharp

[1978] QB 761

[158]The assessment of the employer’s intention is an objective one, to be judged from the point of view of a reasonable person in the position of the claimant. The employer’s actual (subjective) motive or intention is only relevant if “it is something or it reflects something of which the innocent party was, or a reasonable person in his or her position would have been aware and throws light on the way the alleged repudiatory act would be viewed by such a reasonable person”: Tullett Prebon v BGC Brokers LLP and ors

[2011] EWCA Civ 131

[2011] IRLR 420

at para 24 per Maurice Kay LJ, following Etherton LJ in Eminence Property Development Ltd v Heaney

[2010] EWCA Civ 1168

, [2011] 2 All ER (Comm) 223, at para 63.

[159]In this case, the claimant claims breach of the implied term recognised in Malik v Bank of Credit and Commerce International

[1998] AC 20

that the employer should not, without reasonable and proper cause, conduct itself in a way that is calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence that exists between an employee and her employer. Both limbs of that test are important: conduct which destroys trust and confidence is not in breach of contract if there is reasonable and proper cause. Any breach of the implied term of trust and confidence will amount to a repudiation of the contract because the essence of the breach of the implied term is that it is (without justification) calculated or likely to destroy or seriously damage the relationship: see, for example, per Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Ltd

[1981] ICR 666

, 672A and Morrow v Safeway Stores

[2002] IRLR 9

[160]The claimant, in his claim, also asserts that the direct race discrimination to which he was allegedly subjected constituted a fundamental breach of contract, which was an effective cause of his resignation on 24 August 2023 such that he was constructively dismissed, that dismissal being a further act of direct race discrimination.

[161]Discrimination and/or harassment against an employee (contrary to the EA 2010) will usually constitute a fundamental breach of contract entitling them to resign and claim constructive dismissal: Nottinghamshire County Council v Meikle

[2004] IRLR 703

(where a failure to make reasonable adjustments was a repudiatory breach of contract). However, that is not automatically the case and the Tribunal should assess whether, objectively, any discrimination or harassment did constitute a repudiatory breach on the part of the employer.

[162]In Kaur v Leeds Teaching Hospital NHS Trust

[2018] EWCA Civ 978

[2019] ICR 1

the Court of Appeal held (at [55] per Underhill LJ, with whom Singh LJ agreed) that, in the normal case where an employee claims to have been constructively dismissed as a result of a breach of the implied term of trust and confidence it is sufficient for a tribunal to ask itself the following questions:(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?

(2) Has he or she affirmed the contract since that act?

(3) If not, was that act (or omission) by itself a repudiatory breach of contract?

(4) If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the implied term of mutual trust and confidence? (If it was, there is no need for any separate consideration of a possible previous affirmation because the final act revives the employee’s right to resign in response to the prior breach.)

(5) Did the employee resign in response (or partly in response) to that breach?

[163]In determining whether a course of conduct comprising several acts and omissions amounts to a breach of the implied term of trust and confidence, the approach in Omilaju v Waltham Forest LBC

[2004] EWCA Civ 1493

[2005] ICR 481

is to be applied: see Kaur at [41]. The approach in Omilaju is that a breach of the implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so, and the ‘final straw’ may be relatively insignificant, but must not be utterly trivial. Where prior conduct has constituted a repudiatory breach, however, the claim will succeed provided that the employee resigns at least in part in response to that breach, even if their resignation is also partly prompted by a ‘final straw’ which is in itself utterly insignificant (provided always there has been no affirmation of the breach): Williams v The Governing Body of Alderman Davie Church in Wales Primary School (

UKEAT/0108/19/LA

) at [32]-[34] per Auerbach J.

[164]In De Lacey v Wechseln Ltd (t/a The Andrew Hill Salon)

UKEAT/0038/20

, it was held that the fact that the last straw was not itself discriminatory did not automatically mean that a constructive dismissal was not discriminatory, so long as the last straw can be linked back to previous discrimination. In reliance on Williams, the EAT noted that it will be a matter of degree whether discriminatory contributing factors render the constructive dismissal discriminatory.

[165]If a fundamental breach is established, the next issue is whether the breach was an effective cause of the resignation, or to put it another way, whether the breach played a part in the dismissal. In United First Partners Research v Carreras

[2018] EWCA Civ 323

the Court of Appeal said that where an employee has mixed reasons for resigning, the resignation would constitute a constructive dismissal if the repudiatory breach relied on was at least a substantial part of those reasons. It is not necessary, as a matter of law, that the employee should have told the employer that he is leaving because of the employer's repudiatory conduct: see Weathersfield Ltd (t/a Van & Truck Rentals) v Sargent

[1999] ICR 425

, at 431 per Pill LJ.

[166]Although the Court of Appeal’s decision in Kaur limits the role for the question of ‘affirmation’ in a constructive dismissal case, it remains the case that, in accordance with ordinary contractual principles, an employee who affirms the contract in response to a fundamental breach (or series of incidents amounting to a fundamental breach) loses the right to resign and claim unfair dismissal.

[167]The general principles set out by the EAT in WE Cox Turner (International) Ltd v Crook

[1981] ICR 823

remain good law: “Mere delay by itself (unaccompanied by any express or implied affirmation of the contract) does not constitute affirmation of the contract; but if it is prolonged may be evidence of an implied affirmation... Affirmation of the contract can be implied. Thus, if the innocent party calls on the guilty party for further performance of the contract, he will normally be taken to affirm the contract since his conduct is only consistent with the continued existence of the contractual obligation. Moreover, if the innocent party himself does acts which are only consistent with the continued existence of the contract, such acts will normally show affirmation of the contract.”

[168]However, in the employment context an employee will not necessarily affirm a contract by remaining in post and not resigning immediately.

[169]As the EAT stated in Quigley v University of St Andrews

UKEATS/0025/05/RN

at paragraph 37: “…in the case of an employment contract, every day that passes after the repudiatory conduct will involve, if the employee does not resign, him acting in a way that looks very much like him accepting that the contract is and is to be an ongoing one: if he carries on working and accepts his salary and any other benefits, it will get harder and harder for him to say, convincingly, that he actually regarded the employer as having repudiated and accepted the repudiation. The risk of his conduct being, as a matter of evidence, interpreted as affirmatory will get greater and greater. Thus, if he does stay on for a period after what he regards as repudiation has occurred he would be well advised to make it quite clear that that is how he regards the conduct and that he is staying on only under protest for some defined purpose such as to allow the employer a chance to put things right. It needs also, however, to be recognised that even that might not work if it goes on too long; it is all a matter of assessing the evidence.”

[170]Finally, if the employee establishes that the resignation was in law a dismissal, then it is for the employer to show a reason for the dismissal, which can feel like an artificial exercise in the context of a constructive dismissal case. The Court of Appeal addressed this problem in Berriman v Delabole Slate Limited

[1985] ICR 546

where the Court said that, in the case of a constructive dismissal, the reason for the dismissal is the reason for the employer’s breach of contract that caused the employee to resign. This is determined by analysis of the employer’s reasons for so acting, not the employee’s perception (Wyeth v Salisbury NHS Foundation Trust

UKEAT/061/15

at [30] per Eady J).

[171]If the employer establishes a potentially fair reason, the Tribunal must then consider whether dismissal was fair in all the circumstances within s 98(4) ERA 1996. Contributory fault

[172]Section 122(2) ERA 1996 provides that: “Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.”

[173]Section 123(1) ERA 1996 provides that, subject to the provisions of that section (and sections 124, 124A and 126): “the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.”

[174]Section 123(6) further provides: “Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”

[175]It should be noted that while s.123(6) requires an element of causation before a deduction can be made under that section, there is no such requirement in relation to a reduction of the basic award under s.122(2). Nor is there any such limitation on the Tribunal's 'just and equitable' discretion under s 123(1) as to what compensation, overall, is appropriate. Reductions can, therefore, be made for conduct which did not causally contribute to the dismissal, such as may be the case where misconduct occurring prior to the dismissal is discovered after dismissal: see W Devis and Sons Ltd v Atkins

[1977] ICR 662

and see Soros v Davison

[1994] ICR 590

. However, in cases where the conduct is known about prior to dismissal, the Tribunal must generally be satisfied that the conduct caused or contributed to the dismissal to some extent: see Nelson v British Broadcasting Corporation (No. 2)

[1980] ICR 110

per Brandon LJ at p 122 and Frith Accountants Ltd v Law

[2014] ICR 805

at [4].

[176]Further, in every case, it must be established that there has been culpable or blameworthy conduct on the part of the employee: Nelson v British Broadcasting Corporation (No. 2)

[1980] ICR 110

per Brandon LJ at pp 121 122. The Tribunal must be satisfied on the balance of probabilities that the employee's conduct was culpable or blameworthy in the sense that it was foolish or perverse or unreasonable in the circumstances (if not a breach of contract): Frith Accountants v Law

[2014] ICR 805

. Conduct may be blameworthy even if it is inadvertent, although the nature and extent of the conduct will be relevant to the Tribunal's decision as to the degree of reduction that is just and equitable: Sanha v Facilicom Cleaning Services Ltd (

UKEAT/0250/18/VP

) at [37] per Auerbach J. Polkey

[177]If the Tribunal concludes that the dismissal was unfair but is satisfied that if a fair procedure had been followed (or that as a result of some subsequent event such as later misconduct or redundancies) the employee could or might have been fairly dismissed at some point, the Tribunal must determine when that fair dismissal would have taken place or, alternatively, what was the percentage chance of a fair dismissal taking place at that point. This is the Polkey principle as explained in Contract Bottling Ltd v Cave

[2015] ICR 46

. The Tribunal must determine what would have happened if there had been no unlawfulness on a percentage chance (not balance of probabilities) basis: see Shittu v South London and Maudsley NHS Foundation Trust

[2022] EAT 18

, especially at [65]- [75] and at [80]-[102]. The burden is on the employer to satisfy the Tribunal of the chances of a future or hypothetical event happening: ibid at [55].

[178]In a constructive unfair dismissal case, the Polkey exercise requires an assessment of the chance that the employee would have resigned (or their employment otherwise terminated) in circumstances that did not amount to constructive unfair dismissal (or an otherwise unlawful dismissal): see iShittu v South London and Maudsley NHS Foundation Trust, ibid at [78]-[79]. Unlawful deduction from wages

[179]The right not to suffer an unauthorised deduction is contained in section 13(1) of the Employment Rights Act 1996: “An employer shall not make a deduction from wages of a worker employed by him unless –(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.”

[180]The employee must present a claim for unlawful deduction from wages within three months beginning with the date of payment of the wages from which the deduction was made (see section 23(2)(a) ERA), with an extension of early conciliation; unless it was not reasonably practicable to present the claim in time and it was presented within such further period as the Tribunal considers reasonable.

[181]If the complaint is about a series of deductions of payments, the three-month time limit starts to run from the date of the last deduction or payment in the series (section 23(3) ERA). For a number of deductions to constitute a “series”, there has to be a sufficient factual and temporal link between them; and, for a claim relying on a “series” of deductions to be in time, there must be at least one in-time proven unlawful deduction (Ekwelem v Excel Passenger Services Limited [2013]

EAT/0438/12

[182]“Wages” are defined in section 27 ERA, with section 27(1) provide that “wages” means “any sums payable to the worker in connection with his employment.” This means that the worker or employee must be able to show some legal entitlement to the sum in question, although the entitlement need not necessarily arise in contract (New Century Cleaning Co Ltd v Church [2000] IRL 27).

[183]A deduction is a complete or partial failure to pay what was properly payable on a particular occasion. Section 13(3) ERA provides: “Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer frrm the worker’s wages on that occasion.”

[184]Section 27(2) ERA sets out what is excluded from the definition of “wages”, including payments in respect of expenses. Breach of contract

[185]A former employee may bring a claim for a breach of contract which “arises or is outstanding on the termination of the employee’s employment” (Reg 3, Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (“1994 Order”)).

[186]The Tribunal has jurisdiction to award up to £25,000 in damages for such a claim. The time limit for a contract claim is three months from the effective date of termination of employment, subject to the usual ACAS Early Conciliation extension.

[187]The burden of proof is on the Claimant to show that there has been a breach of an express or implied term of his contract of employment by the Respondent and that he has suffered loss as a result. DISCUSSION AND CONCLUSIONS Statement of Particulars of Employment & contractual notice [Issues 27 to 29]

DISCUSSION AND CONCLUSIONS

[188]The Tribunal has found that the claimant was provided with a written statement of the terms and conditions of employment in January 2022 and a copy was provided to him when he requested it in July 2023. This provided for the claimant to give six months’ notice to the respondent to terminate his employment. The claimant was not entitled under his contract to give only three months’ notice of termination. The claimant agreed to and signed this contract. The Tribunal has concluded that the respondent, therefore, did not breach the claimant’s contract of employment by extending his notice period from three to six months without his agreement or consent.

[189]Since the most recent iteration of the claimant’s contract was provided to him in January 2022 and again in July 2023 (when requested by him), this was substantially before the proceedings were issued in October 2023. The respondent, therefore, did not fail to comply with sections 1(1) or 4(1) of the Employment Rights Act 1996 and, furthermore, section 38 of the Employment Act 2002 is not engaged as the claimant had been provided with his Statement of Particulars of Employment before these proceedings were presented to the Tribunal. Harassment related to race [Issues 16(a) to (d)]

[190]The Tribunal has found that, in May 2022, Mr Morgan probably did make a comment about the lower costs accruing to the respondent by opening an office in Cairo. However, this comment was made because Cairo did indeed present a lower cost option in terms of recruiting a development team; and we have found that the claimant made a similar observation about the lower costs of opening an office abroad, like India or Egypt.

[191]Accordingly, the Tribunal has concluded this comment was not unwanted; and it did not relate to race. Furthermore, we conclude that the comment had neither the purpose nor effect of violating the claimant’s dignity nor creating a proscribed environment. Neither the claimant’s perception nor any of the other surrounding circumstances (referred to in s.26(4) EA 2010) lead us to conclude that the comment had a harassing purpose or effect.

[192]The respondent did not subject the claimant to race-related harassment and this complaint does not succeed.

[193]The Tribunal has found that, in June 2022, Mr Morgan likely did make an off the cuff joke about EgyptAir when discussing flights that he and the claimant were booking for a business trip to Cairo. However, we have also found that the claimant was in no way upset about this and took it as a joke, which is how it was intended, as light-hearted banter between equals (the claimant by then having been promoted to a director role).

[194]Even if the comment was race-related, and having regard to the factors in section 26(4) EA 2010, it was neither unwanted nor had the purpose or effect of violating the claimant’s dignity nor creating a proscribed environment.

[195]It follows that the claimant was not subjected to race-related harassment and this complaint does not succeed.

[196]We have also found that, in around February 2023, Mr Morgan probably did make an innocuous passing comment about hoping the Egyptian economy would “stay down” for a long time but this was because the Cairo venture was contingent on the salary costs remaining low. This had nothing to do with race and, moreover, the comment was neither unwanted, nor did it have the purpose or effect of violating the claimant’s dignity nor of creating a proscribed environment, having regard to the factors in section 26(4) EA 2010.

[197]The respondent did not, therefore, subject the claimant to race-related harassment and this complaint also fails.

[198]The Tribunal has found that Mr Morgan did not send the claimant an email in February 2023 commenting that “you are the one who is claiming to be an accountant”” and, rather, sent an email on 25 July 2023 in which he neither stated that the claimant was “claiming” to be an accountant, nor questioned the legitimacy of his accountancy qualifications, whether in Egypt or elsewhere.

[199]This complaint of race-related harassment fails on the facts from the outset but, for completeness, we conclude that the email from Mr Morgan, even if unwanted because it was somewhat snide in its tone, was not related to race and neither had the purpose nor effect of violating the claimant’s dignity nor of creating a proscribed effect, taking account of the factors in section 26(4) EA 2010.

[200]It, therefore, follows that the claimant was not subjected to race-related harassment and this complaint does not succeed.

[201]The Tribunal has stepped back and reviewed the overall picture from May 2022 to July 2023 to consider whether there are any background factors to suggest that any of the comments, or the email, may have been related to race; but there is nothing from which such an inference or conclusion could properly be based.

[202]The claimant’s complaints of race-related harassment are completely without foundation and they all fall to be dismissed, individually, and viewed together. Suspension (28 July 2023) without proper justification and “false accusations” of misconduct were made without supporting evidence [Issues 4(a), (b) & 11 to 15]

[203]The Tribunal has found that Mr Hazel raised a formal complaint about the claimant’s allegedly bullying and harassing conduct on 6 and 24 July 2023; and that Mr Burrell discovered after the claimant’s first resignation (on 10 July 2023) that he had apparently been working on several external personal projects during work time, as demonstrated by numerous emails.

[204]We have also found that Mr Hazel’s formal complaint was credibly supported (subject, of course, to the investigation that would have taken place, had the claimant not resigned) by an accompanying log of incidents with associated emails. The Tribunal has also found that a large number of other employees had raised not dissimilar concerns informally with the respondent, including by Ms Peerless; and the fact that such concerns were raised were evidenced both in documentation and through the oral evidence we heard. We have found that one of the claimant’s own witnesses (Mr Foulds) himself made observations about the claimant in WhatsApp messages which chimed with the types of concerns raised by Mr Hazel and others which adds further support and credibility to the allegations which the respondent wished to investigate.

[205]Accordingly, the Tribunal concluded that genuine concerns were raised in good faith and that there was evidence which tended to support the concerns raised, as well as evidence which tended to support the allegation that the claimant was carrying out personal projects in work time.

[206]The Tribunal has had regard to the respondent’s disciplinary policy which allows it to suspend employees for the purposes of enabling an investigation to take place. We have also noted the ACAS Guidance which provides that suspension may be appropriate where “there are reasonable grounds to believe that the employee might seek to tamper with or destroy evidence, influence witnesses and/or sway an investigation into the disciplinary allegation; or working relationships have severely broken down to the point that there is a genuine risk to other employees, property, customers or other business interests if the employee remains in the workplace”. The Tribunal has concluded that the respondent legitimately had concerns on both counts. That is why the claimant was asked to return his office keys, work laptop, work phone and to provide details of his computer password and work phone login. That is also why he was requested to refrain from contacting his colleagues to discuss any workrelated matters (including the allegations of serious misconduct) and to refrain from having any contact with the respondent’s clients, customers, suppliers and contractors.

[207]The Tribunal has concluded that the concerns raised about bullying and harassment, as well as the information discovered by Mr Burrell which tended to suggest that the claimant was working on personal projects during work time, entirely justified its decision to suspend him, having sought HR input.

[208]Furthermore, we have also concluded that the allegations which the claimant was notified about (in respect of which he was suspended, to enable an investigation to be carried out) were not false and had some apparently credible supporting evidence.

[209]As such, the claimant’s first two alleged breaches of the implied term of trust and confidence and of direct race discrimination fail on the facts from the outset (whether viewed individually or as part of cumulative alleged conduct on the part of the respondent).

[210]In any event, the Tribunal has concluded that the suspension was entirely legitimate and that there are no facts from which we could conclude that it (nor the way it was handled) was because of race. The two employees who the claimant asserted had been treated more favourably (Ms Peerless, when submitting a VAT return late; and Mr Hazel when inadvertently leaving his laptop in his car which was then stolen) were not appropriate comparators nor did they assist as evidential comparators. Their circumstances were in no way similar to the claimant’s, whose conduct was apparently deliberate and egregious (subject, of course, to what the investigation may or may not have uncovered, had it been possible for that to be carried out). The claimant has failed to prove any facts which point towards his national origin or colour playing any part in the disciplinary allegations or the process followed by the respondent.

[211]The two complaints of direct race discrimination relating to his suspension and to the allegations made against him (Issues 4(a) and (b) and Issues 11 to 15) are without foundation and they do not succeed. Forcing the claimant to return company equipment while denying him access to personal data on that equipment [Issues 4(d) & 11 to 15]

[212]The Tribunal has found that the claimant was required to return company equipment when he was suspended. We have also found that the claimant’s laptop (and work phone) were the property of the respondent and that he was not permitted to use the company’s systems or the phone for personal or private purposes. The Tribunal has concluded that the respondent was fully entitled to require the return of this equipment, particularly in circumstances where there was apparently credible evidence that the claimant had been accessing the respondent’s systems to carry out personal work projects during work time; and had refused to cooperate with the respondent’s requests for information about company work (including the code for various websites) and with the request for the Cairo bank account login details.

[213]The Tribunal has found that the respondent permitted the claimant to go home to retrieve his work phone and laptop in order to return them to Mr Morgan and Mr Burrell who went to his house for that purpose, allowing him first access to the devices to delete his personal data. The Tribunal found that the claimant not only accessed (and deleted) all of his personal data but also thousands of company records by wiping clean the devices.

[214]The Tribunal has concluded that the respondent was entirely justified in requiring the claimant to return company property. We have also concluded that the claimant was not denied access to personal data on that property (that is, company laptop and mobile phone); in fact, he was allowed access and used that opportunity to wipe the devices clean of all records, including company records.

[215]The claimant has singularly failed to prove any facts from which the Tribunal could conclude that the requirement placed on him to return company equipment and/or as regards access to personal data was racially discriminatory. The claimant’s direct race discrimination complaint fails.

[216]Furthermore, the Tribunal’s findings of fact fail to establish any breach of the implied term of trust and confidence (whether this allegation of breach is viewed on its own or cumulatively with any other breach ) in circumstances where we have found that the respondent was fully justified in requiring the return of its equipment and where (contrary to the claimant’s claim) he was first allowed access to his personal data which he proceeded to delete before returning the devices to the respondent. Targeted hostility and surveillance (on 28 July 2023) in respect of the claimant being filmed without his consent when returning his company laptop [Issues 4(c) & 11 to 15]

[217]The targeted hostility and surveillance relied on by the claimant in this complaint is the allegation that he was filmed without his consent on 28 July 2023 when returning the company laptop. He relied on that as an allegation of breach of the implied term of trust and confidence (either individually or when viewed cumulatively with the other alleged breaches) as well as a complaint of direct race discrimination.

[218]The Tribunal has found that the respondent did not film or cause the claimant to be filmed without his consent. This part of the claimant’s claim, therefore, fails on the facts, both as regards alleged breach of the implied term of trust and confidence and direct race discrimination and these aspects of the claimant’s claims do not succeed. Mr Morgan’s decision to restrict the claimant’s access to the office (on 31 July 2023) by removal of his keys & asking the building manager not to allow him access [Issues 4(e) & 11 to 15]

[219]The Tribunal has found that, in the suspension letter, the claimant was asked to return his office keys and to refrain from entering company premises. Consistently with that request, on 31 July 2023, Mr Morgan – as we have found – spoke to Paul Murray (the Reception Manager at Afon House) to explain that the claimant was not permitted access to the respondent’s office within Afon House.

[220]The Tribunal concludes that the respondent had entirely proper reasons for wishing to restrict the claimant’s access to company premises, given that he had (on 28 July 2023) completely wiped his company devices of all data and had not cooperated with the respondent’s reasonable requests for information (including login details and website codes). There was accordingly no breach of the implied term of trust and confidence.

[221]The respondent’s actions were entirely justified and had nothing to do with race. Anyone in the claimant’s circumstances, facing the same disciplinary allegations and pending an investigation, would have been treated in exactly the same way. Accordingly, the respondent’s conduct neither individually nor cumulatively breached the implied term of trust and confidence; and the claimant’s direct race discrimination claim is similarly without foundation and does not succeed. Dividends [Issues 4(f) & 11 to 15]

[222]The Tribunal has found that the respondent paid the claimant’s dividends nearly three weeks’ late on 18 August 2023. We have accepted the respondent’s case that it was having to deal with the fall-out of the claimant having wiped thousands of records from his company devices and it was having to respond to a wide-ranging data subject access request. However, we have also found that the respondent was frustrated with the claimant by the first week of August 2023 and was not as diligent as it could and should have been in getting the dividends paid.

[223]In those circumstances, the Tribunal has concluded that the respondent’s failure to pay the dividends on time was conduct which breached the implied term of trust and confidence. Failing to pay an employee their entitlement to their monthly salary and dividends goes to the root of the contract of employment and the work/wage bargain at the heart of the employment relationship. The Tribunal has concluded that the respondent’s conduct was objectively, and without reasonable or probable cause, likely to seriously damage the relationship of trust and confidence between the claimant and the respondent, even though it was already substantially damaged (by the claimant’s conduct) from the first week of July 2023 onwards.

[224]The Tribunal has, however, also concluded that the respondent’s reasons for delaying payment of the dividends were genuine and had nothing to do with race. Mr Morgan had a lot on his plate and, by this time, was frustrated with the claimant (because of his apparent misconduct, leading to his suspension, and his data subject access request and having to respond to solicitor’s correspondence). The claimant has not proved any facts from which the Tribunal could properly conclude that race had anything to do with the late payment of dividends. A hypothetical comparator (someone in materially similar circumstances to those pertaining to the claimant, but who was not of Egyptian national origins and/or who was white and/or British) would have been treated exactly the same.

[225]As such, the claimant was not subjected to less favourable treatment because of race and that complaint does not succeed. Constructive & discriminatory dismissal [Issues 5 to 9 & 11]

[226]The Tribunal has found that, by 18 August 2023, the dividends due to the claimant had been paid so this was a case of delayed payment rather than nonpayment. In any event, the Tribunal’s clear conclusion is that the issue of late payment of dividends due to the claimant was not something that in any way motivated him to resign on 24 August 2023. We reach this conclusion notwithstanding the references to the late payment of dividends in both the solicitor’s correspondence and in the claimant’s resignation letter. The Tribunal has concluded that the late payment of dividends was used by him as something to tether his resignation to so that he could engineer an argument to terminate his employment without notice, to avoid the disciplinary process and to enable him to start his new job on 1 September 2023, having been (as we have found) offered that job on 18 August 2023. These were the entire and real reasons for the claimant’s resignation and the late payment of dividends formed no part of the reason for his resignation.

[227]Consequently, whilst the Tribunal has concluded that the respondent was in breach of the implied duty of trust and confidence in respect of the delay in paying the dividends, we have also concluded that the claimant did not resign, wholly or partially, in response to that breach.

[228]Accordingly, there has been no constructive dismissal and that claim does not succeed.

[229]Because the claimant was not subjected to any direct race discrimination, it follows that his resignation was not in response to any discriminatory conduct. He was also not constructively dismissed in any event. Consequently, the claimant’s claim for direct race discrimination in respect of his dismissal is illfounded and it does not succeed. Commission [Issue 24(a)]

[230]The Tribunal has found that the website design work for TARFF was never completed by the claimant and nor was payment ever received for any such work. In those circumstances, the claimant was not properly due any wages in respect of this work, whether £7500 or otherwise.

[231]The claimant’s claim for unlawful deduction from wages fails on its facts and it does not succeed. Expenses [Issue 24(b)]

[232]The definition of “wages” in section 27(2) of the Employment Rights Act 1996 specifically excludes expenses and so the claimant’s claim must fail on this basis.

[233]In any event, as found by the Tribunal, the claimant failed to submit any expenses claim in respect of £172, contrary to the requirements imposed on him by the respondent’s internal procedures. He was, therefore, not entitled to payment in respect of any expenses in this sum and his claim, whether for unlawful deduction from wages or breach of contract, cannot succeed for that reason. Wages owed (for 1 August 2023)

[234]The Tribunal has found that the respondent did make an unlawful deduction from the claimant’s wages by failing to pay him for a full day’s wages for 1 August 2023. It paid him what he was owed before the Final Hearing.

[235]Consequently, the claimant’s claim succeeds and he is entitled to a declaration to that effect.

[236]However, by virtue of section 25(3) of the Employment Rights Act 1996, the Tribunal declines to make any order for payment because the respondent has paid the claimant the correct amount owing on 31 August 2025. Holiday pay [Issue 23]

[237]The Tribunal has found that the claimant has not demonstrated that he was entitled to five days’ holiday accrued but not taken as at 24 August 2023 when his employment terminated. He has the burden of proving that he took less holiday than he was entitled to and, notwithstanding being given every opportunity by the Tribunal to explain and advance his case on holiday pay, the claimant has completely failed to discharge that burden, failing to advance any – let alone any sufficiently cogent – evidence to indicate that he took fewer days’ holiday than his contractual entitlement.

[238]The claimant’s claim for breach of contract in respect of holiday pay does not succeed.

CONCLUSION

[239]For convenience in these Written Reasons, the Tribunal’s conclusions have been recorded in respect of each incident relied on by the claimant in his claims for race related harassment and direct race discrimination and constructive dismissal, by reference to the List of Issues. However, we have not lost sight of the need to step back and review the overall picture reflected in the evidence we have seen and heard.

[240]The Tribunal has asked itself whether there are facts in the background which may have provided any sufficient evidential basis from which to draw inferences of race discrimination and/or race-related harassment. We also asked ourselves whether the respondent’s conduct, viewed cumulatively, breached the implied term of trust and confidence but have found that only one incident reached that threshold (the late payment of dividends) but that this formed no part of the claimant’s true reasons for resigning on 24 August 2023.

[241]We were entirely satisfied that there was no proper basis to conclude that any of the other incidents relied on, whether viewed individually or together and considering the evidence in the round, amount to contraventions of the EA 2010 nor to a constructive dismissal, given the claimant’s true reasons for resigning.

[242]All the claimant’s claims fail, with the exception of his claim for unlawful deduction from wages in respect of one day’s pay (on 1 August 2023).

[243]However, by virtue of s.25(3) of the Employment Rights Act 1996, the Tribunal makes no order for payment under s.24(1)(a) in respect of wages for that day because the respondent paid him the full amount of the deduction on 31 August 2025. Approved by: