Mr S Boros v AAH Pharmaceuticals Ltd: 2401615/2022

EMPLOYMENT TRIBUNALS

Case No 2401615/2022

Between

Mr S BorosClaimant

AAH Pharmaceuticals LtdRespondent

Before

Employment Judge McDonald

In person for claimant

Mr S Singh Maini-Thompson (instructed by Counsel) for respondent

Date 19 August 2024

JUDGMENT

[1]The claimant’s claim of breach of contract is dismissed on withdrawal.

[2]The claimant’s claim of race-related harassment is dismissed on withdrawal.

[3]The respondent’s application to strike out the claimant’s claims of direct race discrimination and victimisation is refused.

REASONS

[1]On 6 January 2023 I conducted an open preliminary hearing in this case. It was conducted remotely by CVP. Mr Boros represented himself and was supported and assisted by his wife. The respondent was represented by Mr Maini-Thompson of Counsel. There was a respondent’s preliminary hearing bundle and a smaller claimant’s preliminary hearing bundle. I have explained more about those bundles in my case management order of today’s date.

[2]Employment Judge Doyle dealt with the previous case management hearing on 27 July 2022. He had listed the hearing which took place on 6 January 2023 to determine the respondent’s application to strike out the claim or any part of it on the ground that it had no reasonable prospect of success; and alternatively, that the claim or any part of it should be made subject to a deposit order on the ground that it had little reasonable prospect of success. By an email dated 26 November 2022 the claimant applied to amend his claim to add 3 allegations of victimisation in breach of s.27 of the Equality Act 2010. The Tribunal directed that that application also be considered at the preliminary hearing.

[3]I decided that the application to amend should be granted. I gave oral reasons for that decision which the claimant requested in writing. They are set out in Annex B to my case management order of today’s date.

[4]I then heard the respondent’s application for strike out/deposit orders and the claimant’s submissions in response. I heard from the claimant about his financial circumstances so I could take those into account if I decided to make a deposit order. I made case management orders but there was not time to deliberate and give my decision on the strike out/deposit applications. I reserved my decision in relation to those applications and considered them in chambers on 16 February 2023, giving the parties an opportunity to make written submissions.

[5]After granting the amendment, the claimant’s claim consists of 11 allegations. I have set them out in the Annex to this judgment. There are the 8 allegations of direct race discrimination identified at the preliminary hearing which Employment Judge Doyle conducted (allegations RD1 to RD8) and the 3 allegations of victimisation which I allowed by way of amendment (allegations V1 to V3).

[6]Employment Judge Doyle recorded that at the preliminary hearing on 27 July 2022 the claimant had confirmed he was not pursuing his claims of breach of contract and race-related harassment. I have confirmed the dismissal of those claims on withdrawal in my judgment. Summary of the Case

[7]The claimant is Romanian. He has been employed by the respondent as a warehouse operative and Forklift Truck Driver (“FLT”) since 26 April 2015, based at its Warrington branch. There were three 8-hour shifts per day: 6.00am. to 2.00pm (“the morning shift”); 2.00pm to 10.00pm (“the afternoon shift”); and 10.00pm to 6.00am ( “the night shift”). The hourly rate for each shift was different. The claimant worked the afternoon shift but sometimes worked extra hours, e.g. finishing at 11.00pm.

[8]In August 2021 the respondent announced increased hourly rates for each shift. The new afternoon shift rate was £11.75 per hour. The night shift rate was £12.90 per hour. The claimant's case is that he understood that that was a change to the basic hourly rate for each shift. However, although his September 2021 payslip showed his basic rate as £11.75 per hour, his October and November 2021 payslips showed his basic pay at £9.17 per hour (i.e. the old hourly rate).

[9]The respondent says that although the post-September 2021 payslips showed the claimant’s basic rate at £9.17 per hour he was paid an FLT allowance which effectively “topped up” his pay to £11.75 per hour. The claimant disputes that the allowance meant that he received £11.75 per hour. He also says the respondent employed white British workers on a basic rate of £11.75 per hour (allegations RQ2 and RD3).

[10]The claimant queried this issue with his Branch Manager, Ms Holding. On 15 December 2021 she told the claimant that the £11.75 was a “trial rate” rather than a permanent change to his hourly rate. The claimant says that is the first time he was aware that it was a “trial rate”. This is the basis for the allegation that he was enrolled into a trial without his consent (RD1).

[11]In January 2022 the claimant qualified for a new role as an FLT Trainer. Ms Holding wrote to the claimant congratulating him and offering him the position of “warehouse FLT driver/trainer” starting on 24 January 2022 at the basic hourly rate of £9.17 plus an FLT allowance plus an additional supplement of £1,200 per annum to be paid monthly from that date. The claimant says the basic hourly rate should have been £11.75 (RD2). He also says the respondent withheld his trainer ID and certificate (RD4).

[12]The claimant wrote twice to the respondent’s UK Compliance Team asking, amongst other things, why the claimant and his colleagues had never been told that the new hourly rates were a trial and why colleagues who had joined the company in September 2021 had been employed on the new hourly rates as their basic rate. He says he received no reply (allegation RD5).

[13]On 16 February 2022 the claimant lodged a formal grievance. It referred to the queries he had previously raised about the “trial rate”. The claimant says he was sent two different grievance policies by the respondent (RD6) which they then failed to follow. The claimant says that the manager who dealt with the grievance was not “independent and impartial” because he was a manager from a different branch of the respondent’s (instead of someone from outside the respondent) (RD7).

[14]The claimant's grievance was upheld. The respondent found:• That a colleague of the claimant had been issued a contract detailing the new FLT pay rate at £11.75 with no mention of it being a trial period. The respondent accepted that there was no trial rate specified in the advertisement or contract so this point was upheld, but on investigation said “this was an oversight”.

• When it came to the claimant being misinformed about the FLT driver trainer pay rate by the letter dated 24 January 2022, this part of the grievance was also upheld. The respondent accepted that the claimant had reason to believe the rate would be £11.75 and due to the extension of the “trial rate” until the end of pay negotiations the correct rate at that point would have been £11.75. On that basis it was accepted that the offer letter that was provided to the claimant was incorrect based on the extension of the trial rate.

• In terms of the grievance that the trial rate was only for a trial period, the respondent accepted there was no written correspondence to confirm that the rate was for a trial period and so this part of the grievance was also upheld.

[15]On 8 February 2022 Ms Holding wrote again to the claimant to say that the “trial rates” which had originally been intended to carry on until December 2021 had “been extended” until the end of pay negotiations the respondent was currently having with the unions. She accepted that there “appears to be a lot of confusion around pay and payslips”. She said that once that trial was over the payslips would revert to basic pay and FLT allowance. The claimant was asked to sign that letter to confirm his acceptance and understanding of the position. Instead of signing it, the claimant and five of his colleagues sent a letter to Ms Holding on 10 February 2022 saying that they were not aware that they were taking part in a trial.

[16]On 9 June 2022 Ms Holding wrote to the claimant to confirm that following the outcome of the collective pay bargaining agreement between the respondent and USDAW and Unite the Union, the claimant’s rate of pay was not affected and would remain unchanged at £11.75 per hour. That rate was higher than the agreed collective bargaining rate. His pay was “red circled” until the agreed collective bargaining rate caught up. The claimant says this meant he was withheld a pay rise and a night shift allowance (RD8).

[17]The claimant says each of allegations RD1 to RD8 is an act of direct race discrimination. He says he was treated less favourably than a white British worker was or would have been because of race. He names five actual comparators. The respondent’s application to strike out his claim is based partly on saying that the comparators were not in the same material circumstances as the claimant.

Relevant Law

[18]The respondent’s application to strike out the claimant’s claims is based on those claims having no reasonable prospect of success. To assess those prospects of success it's necessary to take into account what the claimant will have to prove for his claims to succeed. In this section I first set out the law on striking out and then what the Equality Act 2010 says about discrimination and victimisation claims and the burden of proof in such cases. Striking out

[19]Rule 37(1)(a) of the Employment Tribunal Rules of Procedure 2013 ("the ET Rules") gives the Tribunal the power to strike out all or part of a claim on the grounds it has no reasonable prospect of success.

[20]Rule 37(2) says that a claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.

[21]Caselaw provides guidance on the exercise of this power:a. It will only be in an exceptional case that a complaint will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation (Ezsias v North Glamorgan NHS Trust [2007] I.C.R. 1122, Court of Appeal).

b. A Tribunal should not be deterred from striking out a claim where it is appropriate to do so but real caution should always be exercised, in particular where there is some confusion as to how a case is being put by a litigant in person (Mbuisa v Cygnet Healthcare Ltd

UKEAT/0119/18/BA

EAT).

c. The Tribunal should take the Claimant's case, as it is set out in the claim, at its highest, unless contradicted by plainly inconsistent documents (Mbuisa).

d. Discrimination issues should, as a general rule, be decided only after hearing the evidence. The tribunal can then base its decision on its findings of fact rather than on assumptions as to what the claimant may be able to establish if given an opportunity to lead evidence (Anyanwu and anor v South Bank Student Union and anor

2001 ICR 391

, HL).

e. Whether the necessary test is met in a particular case depends on an exercise of judgment. It may not be assisted by attempting to gloss the language of the rule by reference to other phrases found in the authorities such as 'exceptional' and 'most exceptional'. However, it remains the case that the hurdle is high, and specifically that it is higher than the test for the making of a deposit order, which is that there should be 'little reasonable prospect of success' (Ahir v British Airways Plc

[2017] EWCA Civ 1392

[22]The principles from the case-law are helpfully summarised in Mechkarov v Citibank NA

[2016] ICR 1121

which Mr Maini-Thompson referred to in his written submissions:a. Only in the clearest case should a discrimination claim be struck out.

b. Where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence.

c. The claimant's case must ordinarily be taken at its highest.

d. If the claimant's case is "conclusively disproved by" or is "totally and inexplicably inconsistent" with undisputed contemporaneous documents, it may be struck out.

e. A tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts. Discrimination and victimisation claims under the Equality Act 2010 (“the 2010 Act”) Direct Race Discrimination

[23]The claimant’s allegations RD1 to RD8 are of direct race discrimination. The definition of direct discrimination appears in section 13 of the 2010 Act and so far as relevant to this case reads as follows: “(1) A person(a) (A) discriminates against another

(b) (B) if, because of [race], A treats B less favourably than A treats or would treat others”.

[24]The concept of treating someone “less favourably” inherently requires some form of comparison, and section 23(1) provides that: “On a comparison of cases for the purposes of section 13 … there must be no material differences between the circumstances relating to each case”.

[25]It is well established that where the treatment of which the claimant complains is not overtly because of race, the key question is the “reason why” the decision or action of the respondent was taken. Victimisation under the 2010 Act

[26]S.27 of the 2010 Act makes victimisation unlawful: “(1) A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;

(d) making an allegation (whether or not express) that A or another person has contravened this Act. (3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.”

[27]This means that for a victimisation claim to succeed, the claimant has to show three things. First, that they did a protected act; second, that they were subjected to a detriment; and third that they were subjected to that detriment because of the protected act. The claimant does not have to show “less favourable treatment” so there is no absolute need for a tribunal to construct an appropriate comparator in victimisation claims. Detriment

[28]Where it is not entirely obvious that the claimant has suffered a detriment, the situation must be examined from the claimant’s point of view. Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

, HL, established that a detriment exists if a reasonable worker would or might take the view that the treatment was in all the circumstances to his or her disadvantage. It does not require a quantifiable economic loss. The burden of proof in discrimination and victimisation cases

[29]The 2010 Act provides for a shifting burden of proof. Section 136 so far as material provides as follows: “(2) If there are facts from which the Court could decide in the absence of any other explanation that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”

[30]This means that it is for a claimant to establish facts from which the Tribunal can reasonably conclude that there has been a contravention of the 2010 Act. If the claimant establishes those facts, the burden shifts to the respondent to show that there has been no contravention by, for example, identifying a different reason for the treatment.

[31]In Royal Mail Group v Efobi

[2021] UKSC 33

, the Supreme Court confirmed that under the 2010 Act the claimant has the burden of proving, on the balance of probabilities, those matters which they wish the Tribunal to find as facts from which the inference could properly be drawn (in the absence of any other explanation) that an unlawful act was committed. Along with those facts which the claimant proves, the Tribunal must also take account of any facts proved by the respondent which would prevent the necessary inference from being drawn. The initial burden of proof is on the claimant to prove facts which are sufficient to shift the burden of proof to the respondent.

[32]It is well established that the bare facts of a difference in status (e.g. race) and a difference in treatment only indicate a possibility of discrimination - they are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.

[33]The guidance in Igen Ltd v Wong was approved by the Supreme Court in Hewage v Grampian Health Board

[2012] UKSC 37

;

[2012] ICR 1054

.The Igen guidance states when the burden has passed, not only must the respondent provide an explanation for the facts proved by the claimant, from which the inferences could be drawn, but that explanation must be adequate to prove, on the balance of probabilities, that the protected characteristic, e.g. race, was no part of the reason for the treatment. However, that explanation need not be “adequate” in the sense of providing a reason which satisfied some objective standard of reasonableness or acceptability – it does not matter if the employer has acted for an unfair or discreditable reason provided that the reason had nothing to do with the protected characteristic (Efobi at para 29). The respondent’s strike out application

[34]The respondent applied to strike out the allegations on the basis that they had no reasonable prospect of success. As I explain in Annex B to my case management order, in deciding to grant the amendments to add allegations V1-V3, I decided that those 3 allegations did have some reasonable prospect of success. If I had decided that they had no reasonable prospect of success I would not have allowed them to be added. I refuse the application to strike out allegations V1-V3.

[35]I set out below my conclusions in relation to the application to strike out allegations RD1 to RD8. They take into account the oral submissions I heard from the parties at the preliminary hearing and the written submissions which they provided subsequent to the hearing. The respondent’s written submissions dated 3 February 2022 were an updated version of the written submissions produced by Mr Maini-Thompson for the hearing. As the claimant pointed out in his written submissions, the information the respondent provided in its updated written submissions about the comparators named by the claimant differed from that in the respondent’s original written submissions dated 6 January 2022. The respondent relied on two main submissions.

[37]First, that regardless of any failing on the respondent’s part in communicating the pay position, the claimant had not actually suffered any financial detriment. That was because he had in fact been paid at £11.75 per hour since August 2021 regardless of what his pay slips recorded as his basic rate. I will call that the “no detriment” submission. That submission applies to allegations RD1-RD3.

[38]Second, even if the claimant could show a difference in treatment, there was no evidence to suggest that difference was on the grounds of his race. I will call that the “no discrimination” submission. That submission applies to all the allegations RD1-RD8. The “no detriment” submission

[39]The respondent’s case is that the claimant has been paid at the hourly rate of £11.75 since August 2021 including after the pay negotiations in June 2022. It says that the claimant has suffered no material detriment because he has not lost out financially even if there was a breakdown in communication about whether that hourly rate was a permanent change to his basic hourly rate; a “trial rate”; or the hourly rate when basic pay plus FLT allowance was taken into account.

[40]The claimant makes two submissions in response. First, he says that as a matter of fact he was not paid at the equivalent of £11.75 per hour from August 2021. He says he has lost out financially. The claimant’s payslips in the respondent’s preliminary hearing bundle for October 2021 onwards set out basic pay at £9.17 per hour x a number of hours worked. However, they then add various “top ups” and “adjustments”. It is not clear without hearing evidence what each one is and whether it should be counted in working out the claimant’s hourly rate including allowances. It is also not clear whether when the appropriate allowances or top-ups are taken into account, the claimant’s pay equals £11.75 per hour as the respondent submits. That is a dispute which will have to be determined at the final hearing by the Tribunal hearing evidence.

[41]Second, the claimant says that even if he is wrong, and he has not lost out financially because he has been paid at the equivalent of £11.75 per hour since August 2021, he has still suffered a detriment. That is because his pay slips show a basic hourly rate of £9.17. He says that any allowances used to “top up” his pay to £11.75 per hour would not be counted in calculating benefits such as sick pay and holiday pay. He says a bank or building society would also not take those allowances into account in calculating how much money he could borrow because they are not guaranteed allowances. That was relevant because the claimant was in the process of trying to get a mortgage to buy a house.

[42]I prefer the claimant’s submissions on this point. The definition of detriment applied by the courts in the context of the 2010 Act does not require there to be a quantifiable economic loss. The claimant would instead have to satisfy the Tribunal at the final hearing that a reasonable worker would or might take the view that the treatment accorded to him had in all the circumstances been to his detriment. Even if, as the respondent says, the claimant was paid the equivalent of £11.75 per hour, I cannot say there is no reasonable prospect of the claimant satisfying the Tribunal at the final hearing that he had suffered a detriment by his basic pay being stated to be £9.17 rather than £11.75 per hour. The “no discrimination” submission

[43]This submission was made in relation to allegations RD1 to RD8. However, Mr Maini-Thompson focussed his arguments on allegations RD1 to RD3 and, in particular, on the comparators named by the claimant. He submitted that they were not in the same material circumstances as the claimant. I can see that it is arguable that an employee might not be in the same material circumstances as the claimant if they were a new employee or had been appointed to a new post as the respondent says some of the comparators were. The respondent’s case was not helped, however, by the inconsistencies between the two versions of its written submissions when it came to whether the comparators were new or existing employees; whether they had been informed that the hourly rate change was on a trial basis (relevant to RD1); and what documentation they had been given relating to the new pay rates (relevant to RD2 and RD3).

[44]The claimant in his written submissions (at page 13-14) disputed some of the information included in the updated written submissions, in particular the statement at para 25(d) and (e) that Robert Bailey and Dave Cunliffe were treated in the same way as he was. He relied on Ms Holding’s email of 27 January 2022 (p.19 of the claimant’s preliminary hearing bundle) as evidence that they had been told by the morning shift manager that the new hourly rates were a trial rate. There may be an argument that the fact that they were on a different shift from the claimant was the reason they were told about the trial rather any difference in race.

[45]The difficulty for the respondent is that there is an absence of undisputed contemporaneous documentation which “conclusively disproves” or is “totally an inexplicably inconsistent” with the claimant’s case when it comes to the named comparators being in the same material circumstances. Given the respondent’s shifting position on who was a new and who an existing employee; who was told what and when; and who was provided with what documentation about the pay rates and when it seems to me that the appropriateness and relevance of the comparators is something which can only be decided by the Tribunal at the final hearing after hearing evidence. That is particularly so where the respondent’s own grievance outcome letter seems to suggest the granting of a contract to Mr Jones with the new hourly rate but no mention of it being a trial rate was an “oversight” rather than down to a material difference in their circumstances. It cannot be said on the limited documentation I saw that there is no reasonable prospect of the claimant being able to establish they were relevant comparators who were treated differently to him.

[46]When it came to allegations RD4-RD8, Mr Maini-Thompson submitted that there was no evidence to support the claimant’s argument that an employee in the same circumstances as the claimant apart from his race would have been treated any differently. I have to take the claimant’s case at its highest. As I understand it, the respondent does not dispute that the things set out in allegations RD4-RD8 factually happened, e.g. that the claimant was sent 2 different grievance policies as alleged in RD6. Instead, it says that there are non-discriminatory explanations for what happened. In the absence of undisputed contemporaneous documentation which “conclusively disproves” or is “totally an inexplicably inconsistent” with the claimant’s case, it seems to me that whether there was less favourable treatment and whether that was because of race can only be decided by the Tribunal at the final hearing after hearing evidence and drawing inferences from the findings of fact it makes based on that evidence.

[47]In those circumstances, I refuse the respondent’s application to strike out the claimant’s claims. I emphasise that in doing so, I am not saying that the claimant will succeed in showing the Tribunal at the final hearing that allegations RD1 to RD8 amount to less favourable treatment because of race. What I am saying is that on the limited documents before me the respondent has not shown that the claimant has no reasonable prospect of doing so.

Introduction

[1]The claimant brought claims of direct race discrimination and victimisation arising out of his employment with the respondent as a Warehouse Operative/Forklift Truck Driver. The respondent is responsible for distributing pharmaceutical products.

[2]The claimant began early conciliation on 27 January 2022 and received the certificate on 15 February 2022. The claimant issued his ET1 claim form on 26 February 2022.

[3]Case management preliminary hearings took place before Employment Judge McDonald on 6 January 2023 and 16 February 2023. During those hearings the claimant was allowed to amend his claim to include the victimisation claim, and the respondent’s application for a strike out was refused. However, the claimant was ordered to pay a deposit for two allegations of direct race discrimination. The claimant subsequently withdrew those two allegations known as RD6 and RD7 and they have therefore not been determined at this hearing.

[4]Whilst English is not the claimant’s first language, he did not require an interpreter.

[5]The matter was initially listed for a final hearing from 29 January 2024 – 1 February 2024. However, on the morning of the second day a lay member was taken ill. The claimant did not wish to proceed with a Tribunal consisting of two members and therefore the matter was relisted to continue from 8-10 April 2024 and 12 April 2024.

[6]The Tribunal reconvened on 8, 9 and 10 April 2024 to hear evidence. It was no longer possible for the Tribunal to sit on 12 April 2024 and the matter was relisted to reconvene on 23 and 24 May 2024.

[7]The Tribunal sat on 23 May 2024 to complete the evidence and hear submissions from the parties. The Tribunal met in chambers on 24 May 2024 and 28 June 2024 to deliberate and produce this reserved decision.

Evidence

[8]The Tribunal heard evidence from the claimant on 29 January 2024. In light of the illness of the lay member, it was necessary to ask the claimant to remain under oath and he reconvened his evidence on 8 April 2024.

[9]The Tribunal heard evidence from Mr Angelov and Mr Jones, the claimant's colleagues and Mrs Boros, the claimant's wife.

[10]The Tribunal also heard evidence from Ms Green, the Finance Supervisor; Ms Tatli, the Payroll Manager; Mr Joseph, the Grievance Manager; and Mr Ireland, the claimant's supervisor.

[11]The respondent also submitted a witness statement from Ms George, a HR Business Partner, but by the time Ms George was required to give evidence she had left the respondent’s business. Instead, the respondent made an application for Ms Wagstaff, who had performed that role since January 2023, to give the same evidence. It was the respondent’s contention that Ms George and Ms Wagstaff were able to give the same evidence about the HR practice and procedure. On hearing submissions from the parties about this point, the Tribunal determined that Ms Wagstaff could in fact give the same evidence as Ms George and the claimant would still have an opportunity to ask questions of a HR Business Partner about the respondent’s HR practice and procedure.

[12]All witnesses gave evidence in person except for Mr Ireland who gave evidence by Cloud Video Platform on 23 May 2024 because the Tribunal was no longer able to sit in person on that day.

[13]The Tribunal had to contend with two bundles, one from each party. The respondent’s bundle consisted of 694 pages and the claimant's bundle consisted of 414 pages. The claimant also handed a number of documents up during the course of the hearing.

Issues

[14]The List of Issues is reproduced in the Annex to this Judgment.

[15]The claimant relied on actual comparators for the complaints of direct race discrimination RD1, RD2 and RD3. The claimant relied on a hypothetical comparator for complaints of direct race discrimination RD4, RD5 and RD8. It was agreed that the hypothetical comparator was a British employee performing the same role as the claimant. Relevant Findings of Fact Claimant's Employment

[16]On 27 April 2015 the claimant began working for the respondent as a Warehouse Operative. The claimant transferred to the respondent’s Warrington branch on 9 July 2018. As a Warehouse Operative, the claimant also performed duties on a forklift truck because he had a forklift truck licence.

[17]In July 2021 the claimant worked the backshift, which consisted of hours from 2.00pm until 10.00pm. The respondent also operated a morning shift from 6.00am to 2.00pm and a night shift from 10.00pm until 6.00am. The claimant's hourly rate in July 2021 was £9.17 per hour and he also received a forklift truck allowance of £69.33 per month.

[18]The claimant’s terms and conditions provided for the use of a disciplinary procedure and a grievance procedure, but both were non contractual. The claimant's terms and conditions were also subject to a collective agreement that had been agreed between the respondent and the USDAW and Unite unions.

[19]The respondent operated a sickness absence policy which provided for home visits and welfare meetings but was silent on the presence of a notetaker at either meeting.

[20]The grievance procedure provided for three stages: stage 1 - the employee to raise issues with the line manager; stage 2 - the employee to submit the grievance in a document to the relevant manager; and stage 3 - appeal. Change to the claimant’s pay

[21]In July 2021 the claimant and his family began looking for a house to buy with a mortgage. At that time, the claimant was the only forklift truck driver on the backshift.

[22]In August 2021, the claimant saw posters that said, “You said it…we did it”. The claimant was told by his line manager that his hourly rate would increase from £9.17 to £11.75. The claimant was informed that he would no longer receive the forklift truck driver allowance as it had been incorporated into his hourly rate. The claimant was pleased with this information because he thought it would assist with his mortgage application.

[23]The Tribunal accepts the evidence from the claimant that his line manager did not inform him that this was a trial rate. The posters did not confirm that it was a trial rate. The morning shift hourly rate was increased to £10.75, and the night shift hourly rate was increased to £12.90.

[24]However, the claimant’s colleague Bob Bailey, a forklift truck driver on the morning shift, subsequently told the grievance manager that the morning shift was informed that the increase in rate was a trial rate for a period of six months. The claimant was not in this meeting because he did not work in the morning shift. It was Bob Bailey who informed the claimant that the increase in rate was a trial.

[25]Shortly after the claimant was informed of the increase, his colleague Robert Jones and Cayman Lloyd joined the respondent as forklift truck drivers. Robert Jones received terms and conditions which stated his hourly rate was £11.75 on the backshift. Cayman Lloyd received terms and conditions informing him that his hourly rate was £12.90 on the nightshift. Claimant's payslips September 2021 to December 2021

[26]The claimant received his payslip dated 25 September 2021. That payslip recorded the claimant's basic pay at an hourly rate of £11.75.

[27]In the same month the claimant applied for a forklift truck driver training position. This role was in addition to the role he performed for the respondent and for which the advert revealed that the successful candidate would be paid at the existing forklift truck driver rate plus a £1,200 annual allowance.

[28]However, when the claimant received his payslip on 25 October 2021 his hourly rate for his basic pay had reverted to £9.17. In addition, the claimant did not receive a forklift truck allowance. The claimant's colleague, Robert Jones was paid an hourly rate of £11.75.

[29]When the claimant queried the discrepancy with his line manager, he was told that there was a problem with all forklift truck driver payslips. On 26 October 2021 the claimant received an additional payment from the respondent to make up the difference between the reduced hourly rate and the lack of forklift truck allowance.

[30]On 19 November 2021 the claimant attended the forklift truck driver training course. On 22 November 2021 the claimant signed an acceptance form for the forklift truck driver training role which confirmed that the hourly rate for that role would be dependent on shift.

[31]On 25 November 2021 the claimant’s payslip recorded his hourly rate for his basic pay as £9.17. However, this payslip also showed a pay adjustment of £448.81 and a shift adjustment of £406. There was no explanation for how these additional payments had been calculated and therefore the claimant queried the calculation with his line managers. The claimant was aware that Robert Jones had received £11.75 for his hourly rate.

[32]On 29 November 2021 the claimant’s colleague Mike Stringer, who had previously been a warehouse operative, became a forklift truck driver on the morning shift and was put on an hourly rate of £10.75. Claimant's complaints about his rate of pay

[33]On 6 December 2021 the claimant raised a complaint with the HR department about the incorrect rate of pay. On 8 December 2021 the claimant received a response from the payroll department who informed the claimant that the payslip would always record his basic hourly rate as £9.17 but that a shift adjustment would top up to the rate to the equivalent of £11.75.

[34]The claimant was unhappy with this response and was informed by the General Manager, Ann Marie Holding, that she too had raised the issue with payroll and HR and would get back to him.

[35]By 10 December 2021 the claimant was informed by the payroll department that any missing money would be made up in the December pay.

[36]On 13 December 2021 the claimant told Ann Marie Holding that he needed the hourly rate issue resolving in order to support his mortgage application.

[37]On 15 December 2021 the claimant was told by the payroll department that his hourly rate would never be recorded as £11.75 because it was a trial rate. The claimant was informed that his hourly rate was £9.17 with a shift adjustment payment to top the rate up to £11.75. Ann Marie Holding confirmed this position in an email to the claimant at 5.25pm on the same date.

[38]On 16 December 2021 the claimant raised a complaint with the respondent’s compliance team. The claimant complained that he had not been told that he was being placed on a trial rate and also complained that colleagues who had joined the company after the claimant were not on a trial rate.

[39]On 25 December 2021 the claimant received his payslip which recorded his basic hourly rate as £9.17. The claimant also received a shift adjustment of £489.99. The claimant’s colleague Robert Jones’ payslip recorded his basic hourly rate as £11.75.

[40]As a result, on 26 December 2021 the claimant sent a second complaint to the respondent’s compliance team.

[41]On 29 December 2021 the respondent’s compliance team sent the claimant's email to colleagues asking them to look at his complaint as a matter of urgency and respond to the claimant. The claimant was directed to refer his complaints to the payroll department.

[42]On 5 January 2022 the claimant received an email from the payroll department informing him that there were ongoing talks with HR and it was awaiting a response before formally responding to his emails.

[43]In the absence of a response, on 13 January 2022 the claimant raised a complaint with the payroll department.

[44]On 14 January 2022 the payroll department responded and confirmed that as the increased rates were trial rates, they would not be recorded as the substantive basic rate on a payslip. The claimant was advised to speak to his line manager about the lack of consultation and was also informed that the hourly rate of his colleague Robert Jones had been “red circled”.

[45]The claimant asked further questions of the payroll department on 15 January 2022 but did not receive a substantive answer. Claimant's role January 2022

[46]On 21 January 2022 the claimant completed the forklift truck driver training course and asked the respondent for a new contract. The claimant informed the respondent he would not carry out forklift truck driver training until he received a change to his contract. In essence the claimant wanted the increase in hourly rate reflected in his contract.

[47]However, prior to the receipt of any new contract, on 24 January 2022 the claimant was asked to train a new starter who had been recruited on an hourly rate of £10.75. The following day, the claimant received his payslip for January in which his basic hourly rate was recorded as £9.17. The basic hourly rate of the claimant's colleague Robert Jones was recorded as £11.75. As a result, the claimant refused to train the new starter.

[48]On 27 January 2022 the claimant was sent a letter by Ann Marie Holding congratulating him on passing the forklift truck driver training course and asking him to sign a change to his terms and conditions which recorded his basic hourly rate as £9.17 plus the forklift truck driver allowance and the additional supplement of £1,200 per annum for his training role. As a result of the basic hourly rate offered, the claimant refused to sign the document.

[49]Following the claimant's refusal, Ann Marie Holding responded to the claimant about his concerns. In her response Ann Marie Holding told the claimant that the hourly rate of £9.17 was the basic rate for a warehouse operative. Ann Marie Holding explained that the increase to £11.75 was to compensate those who performed forklift truck driver duties. However, it was Ann Marie Holding’s position that not every warehouse operative performed forklift truck driver duties every day and therefore, whilst the claimant performed such duties every day and would always receive an hourly rate of £11.75, the addition had to be shown as a variable rate for those who did not perform such duties in the course of their normal employment.

[50]Ann Marie Holding was unable to explain why the claimant had never been informed that this was a trial rate. Ann Marie Holding acknowledged that the “You said, we did it” posters did not say it was a trial rate but stated that at flagship meetings, where forklift truck drivers were represented by Bob Bailey, it was clear that the rates were only a trial. Ann Marie Holding confirmed that the contract offered to the claimant's colleague Robert Jones was incorrect and he too should be on the same basic rate plus the variable forklift truck driver allowance.

[51]As a result of this response, the claimant contacted ACAS and began the process of early conciliation making allegations of race discrimination.

[52]On 8 February 2022 the claimant was asked to sign a letter acknowledging that the increased rate was only ever on a trial rate. The claimant was also informed that the trial rates would be shown on a payslip but only as a trial rate. This letter was also received by the claimant's colleague Bob Bailey. The claimant’s colleague Robert Jones did not receive such a letter. On the same date the claimant asked the respondent whether they had received a copy of his forklift truck driver trainer ID card.

[53]On 10 February 2022 the claimant along with his colleagues Mr Angelov, Mr Hruska, Mr Basti, Mr Sisca and Mr Lloyd sent a letter to the respondent stating that they would not sign the letter confirming the existence of trial rates as they had not been informed of trial rates and would not agree to the same. Claimant’s grievance and subsequent pay negotiations

[54]On 16 February 2022 the claimant raised a formal grievance about the rate of pay. On 18 March 2022 the grievance was investigated by Mark Joseph. On 1 June 2022, Mark Joseph concluded that the claimant had not been told that the new hourly rate was a trial rate.

[55]Mark Joseph also concluded that Robert Jones’ contract should have recorded that he was on a trial rate. It was also acknowledged that the offer to change terms and conditions on completion of the forklift truck driver training course was incorrect and should have recorded an hourly rate of £11.75. Finally, it was acknowledged that the claimant was not informed that the increase in the rate of pay was ever a trial until he spoke with Ann Marie Holding in December 2021.

[56]In April/May 2022 the respondent conducted pay negotiations with the relevant trade unions.

[57]On 20 May 2022 the claimant asked Anne Marie Holding why he and his colleagues were not included in the meeting about proposed new pay rates that arose from those pay negotiations.

[58]On 9 June 2022 the claimant received a letter from Ann Marie Holding in which she informed him that his rate of pay was not affected by the pay negotiations and would remain unchanged at £11.75 per hour. The claimant was also informed that as his rate of pay was higher than that agreement reached in the negotiations, this may impact on any future pay reviews.

[59]The claimant subsequently became aware that colleagues in London received the night shift rate of pay from 8.00pm unlike colleagues in Warrington who only received it from 10.00pm. Claimant’s attempt to obtain a mortgage – September 2022

[60]In September 2022 the claimant attempted to obtain a mortgage to buy a house. The Tribunal has determined that the claimant's payslip from June 2022 onwards reflected an hourly rate of pay of £11.75. By this date, the claimant was still not in receipt of the forklift truck driver trainer picture ID or certificate to confirm his qualification.

[61]On 23 September 2022 the claimant queried the payment of the night shift allowance. The claimant's September payslip showed that he received payment of night shift rate for hours worked from 8.00pm. The claimant asked that this be backdated to 1 July 2022 when he was aware that colleagues in London had also received payment of a night shift rate from 8.00pm following the pay negotiations.

[62]On 27 September 2022 the claimant emailed the payroll department and asked that they provide him with a letter confirming his employment details so that he could send it to his mortgage provider as evidence of his income. The claimant received a response from the payroll department stating that they could not deal with that request and that he needed to speak to the HR department. The claimant subsequently sent the request to the generic HR email address but received no response.

[63]Eventually, the claimant spoke to Karen Green, a finance supervisor, who provided him with her email address to make the request so that she could provide the information. The claimant subsequently emailed Karen Green on 28 September 2022 at 1.52pm.

[64]In the absence of a response from Karen Green the claimant emailed the payroll department again on 29 September 2022 and again received the response that they did not deal with such requests, and it had to be dealt with by HR.

[65]On 30 September 2022 the claimant’s wife emailed the mortgage provider to explain the difficulties the claimant was having obtaining the details. On the same date the claimant was informed that he would have to contact the forklift truck training provider to obtain a copy of his certificate and ID card.

[66]In an email about the ongoing night shift rate dispute dated 30 September 2022, the claimant added in that he was still awaiting receipt of the letter confirming his employment details.

[67]The claimant worked on Sunday 2 October 2022, but was unwell and reported absent from work on 3 October 3022. Claimant’s absence and respondent’s response

[68]On 6 October 2022 the HR department sent an email to the claimant asking where it should send his employment details for the mortgage application. The Tribunal has determined that the claimant’s colleague, who was not British, had been given a copy of a letter dated 29 September 2022, confirming his employment details so that he could provide those details to his mortgage provider.

[69]On 7 October 2022 the claimant's mortgage provider confirmed that his mortgage offer had been withdrawn.

[70]On 25 October 2022 the claimant's payslip deducted the night shift rate of pay that he had received in September because it had been incorrectly paid from 8.00pm instead of 10.00pm.

[71]On 31 October 2022 the claimant spoke to Paul Ireland and told him he did not want to speak to anybody at the respondent’s site.

[72]On 2 November 2022 the claimant was invited to a welfare meeting which the claimant and Paul Ireland subsequently agreed would take place at the claimant’s home address.

[73]On 4 November 2022 Paul Ireland and his colleague, Miss Coathup, attended at the claimant's home address for a welfare meeting. Miss Coathup was there as a notetaker.

[74]By email of 3 November 2022, the respondent had decided to send Miss Coathup as a notetaker for safeguarding reasons and to capture all of the information in the welfare meeting so that the respondent had an unchallenged version of events. Relevant Legal Principles Direct Discrimination

[75]The definition of direct discrimination appears in section 13 and so far as material reads as follows: “(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”.

[76]The concept of treating someone “less favourably” inherently requires some form of comparison, and section 23(1) provides that: “On a comparison of cases for the purposes of section 13 … there must be no material differences between the circumstances relating to each case”. Victimisation

[77]Section 27 of the Equality Act 2010 provides that: “(1) A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because – (a) B does a protected act or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;

(d) making an allegation (whether or not express) that A or another person has contravened this Act.” Burden of Proof

[78]The burden of proof provision appears in section 136 and provides as follows: “(2) If there are facts from which the Court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred. (3) But sub-section (2) does not apply if A shows that A did not contravene the provision”.

[79]In Hewage v Grampian Health Board

[2012] ICR 1054

the Supreme Court approved guidance given by the Court of Appeal in Igen Limited v Wong

[2005] ICR 931

, as refined in Madarassy v Nomura International PLC

[2007] ICR 867

where Mummery LJ held that “could conclude”, in the context of the burden of proof provisions, meant that a reasonable Tribunal could properly conclude from all the evidence before it, including the evidence adduced by the complainant in support of the allegations, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment.

[80]Importantly, at paragraph 56, Mummery LJ held that the bare facts of a difference in status and a difference in treatment are not without more sufficient to amount to a prima facie case of unlawful discrimination. Further, unfair or unreasonable treatment by an employer does not of itself establish discriminatory treatment: Zafar v Glasgow City Council

[1998] IRLR 36

[81]It cannot be inferred from the fact that one employee has been treated unreasonably that an employee without the protected characteristic would have been treated reasonably. However, whether the burden of proof has shifted is in general terms to be assessed once all the evidence from both parties has been considered and evaluated. In some cases, however, the Tribunal may be able to make a positive finding about the reason why a particular action is taken which enables the Tribunal to dispense with formally considering the two stages. Code of Practice on Employment (2011)

[82]The Tribunal has considered the Code of Practice on Employment issued by the Equality and Human Rights Commission which came into force on 6th April 2011, and in particular Chapter 9 which deals with victimisation and the meaning of “detriment”. Submissions Respondent’s Submissions

[83]The respondent contended that the claimant did not object to the increase in the hourly rate when he learned that it was a trial rate. It is the respondent’s position that it was not a detriment for the claimant to have an increase in his hourly rate.

[84]The respondent submitted that the comparators identified by the claimant, and in particular Robert Jones, were not appropriate. It was the respondent’s case that the claimant had not met the burden of proof with regard to his hourly rate complaint.

[85]The respondent went on to submit that race was not a factor in the difference in treatment between the claimant and his colleagues. The respondent contended that it has submitted non discriminatory explanations and the claimant had not met the burden of proof.

[86]The respondent accepted that the Employment Tribunal claim could be a protected act. However, the respondent submitted that the detriments about which the claimant complained could not have been caused by the protected act.

[87]In particular the respondent submitted that the claimant and his colleagues were on better rates of pay than other colleagues around the country and the deduction was only to bring the claimant and his colleagues into line with the rates to be applied at the Warrington branch.

[88]Further, the respondent submitted that Karen Green was not aware of the claimant's litigation and that she prepared a letter to send to the claimant on 30 September.

[89]Finally, the respondent submitted that the claimant did not suffer a detriment by the presence of a notetaker and the claimant had not met the burden of proof to establish that the presence of the notetaker was because of a protected act. Claimant's Submissions

[90]The claimant produced a 15 page written submission which he read out to the Tribunal at the conclusion of his case. The claimant contended that his evidence had not been challenged by the respondent and that his evidence should be preferred to that of the respondent’s witnesses. The claimant maintained that he had been enrolled in a trial rate without his consent and he was subject to less favourable treatment than his British colleagues.

[91]The claimant submitted that his terms and conditions were less favourable than those offered to his British colleagues, Robert Jones and Cayman Lloyd, and maintained that he was being asked to train colleagues on better terms and conditions once he had completed the driver training course.

[92]The claimant contended that he was treated less favourably than Mike Stringer because had Mr Stringer achieved driver trainer status, he would have been given the opportunity to train because he had received a change to his terms and conditions. The claimant maintained that had his British colleagues raised concerns, they would have been dealt with expediently.

[93]The claimant submitted that he suffered a detriment because he was not subject to future pay rises or the outcome of the pay negotiations. The claimant submitted that he and his colleagues were in a worse position than other colleagues around the country who received the night rate at an earlier point in the shift.

[94]The claimant maintained that he was subject to detriments because of his protected act because each of the complaints occurred after the submission of his Employment Tribunal claim.

[95]The Tribunal was asked to note that there were inconsistencies between what the respondent’s witness statements said and the documents submitted to the Tribunal by the respondent. Discussion and Conclusions Burden of Proof

Discussion and Conclusions

[96]The Equality Act 2010 provides for a shifting burden of proof. The claimant is required to prove facts from which the Tribunal could conclude that there was discrimination. The burden then shifts to the respondent to prove that the discrimination did not occur.

[97]The Tribunal has applied this test in reaching the conclusions about the claim. Direct Discrimination Comparator

[98]The claimant pursued the case on the basis that he had been treated less favourably than a British person. The claimant provided names of actual British comparators for his first three allegations of direct race discrimination. The claimant relied on a hypothetical comparator for the remaining allegations of direct discrimination. The claimant identified the hypothetical comparator as a British forklift truck driver on the backshift who worked for the respondent. RD1

[99]The claimant complained that the respondent treated him less favourably in August 2021 because it enrolled him in a trial hourly rate of pay without his consent.

[100]The Tribunal has determined that the claimant was unaware that the hourly rate increase in August 2021 was a trial. However, the Tribunal has also determined that, on the balance of probabilities, had the claimant known it was a trial, he would not have refused the increase in his hourly rate of pay.

[101]The claimant’s complaint was that he needed certainty of his hourly rate of pay in order to make a successful mortgage application. The claimant sought to rely on the increase in his hourly rate of pay to improve the chances of succeeding with his mortgage application.

[102]The Tribunal has determined that placing the claimant on a trial hourly rate of pay without his knowledge did not place the claimant at a disadvantage and the claimant therefore did not suffer a detriment. The claimant benefitted from an increase in pay.

[103]The trial rate of pay did not prohibit the claimant from using the basic hourly rate of pay of £9.17 to make a mortgage application. RD2 October 2021 payslip

[104]The claimant complained that he was treated less favourably when in October 2021 the basic hourly rate of pay reverted to £9.17. The claimant subsequently learned that this was because there had been an error in the recording of the hourly rate of pay in September 2021.

[105]The claimant compared the revision to the original hourly rate in October 2021 with that of his colleagues: Robert Jones, Cayman Lloyd, Mike Stringer, Bob Bailey and Dave Cunliffe.

[106]The Tribunal has not heard any evidence about Dave Cunliffe and is unable to ascertain whether he would be a correct comparator or how he was treated in this regard.

[107]The Tribunal has determined that the correct comparator would be an existing forklift truck driver who had their hourly rate increased in August 2021. Therefore, Robert Jones and Cayman Lloyd are not the correct comparators. Robert Jones and Cayman Lloyd joined the respondent’s employment after the increase in the hourly rate. The Tribunal has also determined that Mike Stringer is not a correct comparator because he did not work as a forklift truck driver at the time there was the increase in the hourly rate.

[108]Bob Bailey would be a correct comparator because he was an existing forklift truck driver for the respondent and had an increase in his hourly rate in August 2021 to reflect the forklift truck driver element. In a statement given during the grievance investigation, Bob Bailey confirmed that in September 2021 he too had a payslip which showed the new increased hourly rate. Bob Bailey then commented that thereafter, the rate on his payslips was confusing. The Tribunal has determined that on the balance of probabilities Bob Bailey had similar concerns over the reduction in his hourly rate in October 2021 and was treated in the same way as the claimant. Therefore, the claimant was not subject to less favourable treatment. Forklift truck driver trainer terms and conditions

[109]The claimant also complained that he was treated less favourably in January 2022 when he finished the forklift truck driver training course and the respondent failed to offer the increased hourly rate of pay within the terms of the forklift truck driver trainer role.

[110]The claimant relied upon Mike Stringer as the comparator. It was the claimant's position that when Mike Stringer was offered the role of forklift truck driver, he received terms and conditions at the increased hourly rate.

[111]However, the Tribunal has determined that Mike Stringer is not the correct comparator because his circumstances were materially different to those of the claimant. Mike Stringer obtained his forklift truck driver qualification, and was treated as a new forklift truck driver in the same way that Robert Jones and Cayman Lloyd were treated and benefitted from the increase in hourly rate that was applied to new forklift truck drivers.

[112]The claimant was an existing forklift truck driver who was retained on the old hourly rate and received a trial increased hourly rate. The correct comparator would be a hypothetical British existing forklift truck driver who began a training role at the same time as the claimant. The Tribunal has determined that such a comparator would not have been treated more favourably than the claimant and would also have remained on the original hourly rate.

[113]When the claimant applied for the forklift truck driver trainer role, the advert said that the position would attract current forklift truck driver rates. The forklift truck driver rate for somebody in the claimant's position, on completion of the training, was the basic rate of £9.17 plus the forklift truck driver allowance. Trial rate could have ended at any time

[114]The claimant’s complaint that he was told he was on a trial rate which could have ended at any time in December 2021 was not factually made out.

[115]The Tribunal has determined that the claimant was told by Ann Marie Holding on 15 December 2021 that he was subject to a trial rate. In his own evidence the claimant gave evidence that Bob Bailey told him that he was subject to a trial rate. There is no evidence that the claimant was told it would end at any time. RD3

[116]The claimant complains that he was treated less favourably than British workers who were offered contracts with permanent increased hourly rates. The claimant complains that this treatment was compounded by the fact that in January 2022 he was asked to train one such worker.

[117]The claimant identified Robert Jones and Cayman Lloyd as the comparators for this complaint. Robert Jones and Cayman Lloyd were employed by the respondent after the increase in the hourly rate. The terms and conditions for Robert Jones recorded his hourly rate at the increased level.

[118]However, the Tribunal has determined that Robert Jones and Cayman Lloyd were not the correct comparators. The material difference between the claimant, Robert Jones and Cayman Lloyd is that the claimant was already employed on a contract at an hourly rate of £9.17. In August 2021, prior to the employment of Robert Jones and Cayman Lloyd, the respondent agreed to increase that hourly rate of existing forklift truck drivers on a trial basis. Robert Jones and Cayman Lloyd were employed after the increase in the claimant's rate on separate terms and conditions.

[119]The correct comparator for this complaint would be Bob Bailey who, like the claimant, was an existing forklift truck driver and was subject to a trial increase in his hourly rate. Bob Bailey, who is British, was treated in the same way as the claimant and therefore, the claimant was not treated less favourably. RD4

[120]The claimant complained that he was treated less favourably because the respondent withheld his forklift truck driver training ID and certificate. The claimant relied on a hypothetical comparator for the purposes of this complaint. A hypothetical comparator, who is not materially different to the claimant, in these circumstances would be a forklift truck driver who had carried out the training course but then subsequently refused to train his colleagues.

[121]The claimant refused to train colleagues on at least two occasions. The evidence given by the respondent’s witnesses was that there was no need for the claimant to have his ID or certificate until he was in a position to agree to train colleagues.

[122]The Tribunal has determined that if a British forklift truck driver refused to train colleagues after completing the training course, he too would have had his ID and certificate withheld. RD5

[123]The claimant complained that he was treated less favourably because the respondent ignored two grievance emails about his rate of pay that were sent to the compliance department.

[124]The emails were sent on 16 December 2021 and 26 December 2021. The respondent disputed that they were in fact grievance emails because they were sent to the compliance officer and not in accordance with the grievance policy. However, the Tribunal determined that it was not necessary for a complaint to be identified as a grievance in order to be valid.

[125]The claimant relied upon a hypothetical comparator who would be a British forklift truck driver who complained about the rate of pay directly to the compliance department.

[126]The Tribunal has determined that the claimant was not ignored by the respondent. The claimant received a response from the respondent on 29 December 2021, 5 January 2022, a substantive response on 14 January 2022 and again on 27 January 2022.

[127]There is no doubt that there was a delay in responding to the claimant, but he ultimately received detailed responses to his complaints and was not treated less favourably. RD8

[128]The claimant complained of less favourable treatment because was not to be subject to future pay rises nor the benefit of the pay negotiations that took place in April/May 2022. The claimant further complained that he was subject to less favourable treatment because of the application of the night shift allowance in Warrington.

[129]The Tribunal has determined that the claimant did not suffer a detriment by not being subject to a pay rise or the outcome of the pay negotiations. The claimant had received the pay rise when his rate was increased from £9.17 to £11.75 at the end of the trial. The outcome of the pay negotiations provided for a rate lower than £11.75. Therefore, the respondent took the view that until the claimant’s colleagues in other depots had reached the same rate as the claimant, he and his colleagues in Warrington would not be subject to future pay rises.

[130]The claimant was not subject to less favourable treatment when he only received the night shift rate from 10.00pm whereas colleagues in other depots received the night shift rate from 8.00pm because all forklift truck drivers in Warrington were treated in the same way. Victimisation Protected Act

[131]The claimant contended that the Employment Tribunal claim he lodged on 27 January 2022 amounted to a protected act for the purposes of section 27 of the Equality Act 2010.

[132]The respondent did not dispute that the claim would constitute a protected act. Detriments caused by the protected act Deduction from claimant's pay

[133]The claimant contended that the respondent’s action of deducting the night rate paid to him in September 2022 from the October 2022 payslip was a detriment caused by the fact the claimant had issued his Employment Tribunal claim.

[134]The respondent’s witness, Patricia Tatli, was the Payroll Manager for the respondent at the time this deduction was made. Patricia Tatli explained in both her witness statement and during live evidence that in September 2022 the claimant received the night rate of £12.90 for hours he worked from 8.00pm until 10.00pm for that month. Patricia Tatli explained to the Tribunal that this was in fact an error because at that time the night rate in the Warrington branch was only paid from 10.00pm. It would appear that the error came from the fact that other branches in other parts of the country received the night rate from 8.00pm.

[135]Patricia Tatli explained that the respondent deducted the overpayment in the October 2022 pay run.

[136]The Tribunal has determined that this deduction took place after the claimant had submitted his Employment Tribunal claim. However, the claimant has not proven facts from which the Tribunal could infer that that was the reason for the deduction.

[137]The Tribunal has accepted the evidence of Patricia Tatli that at that time, there had been an erroneous overpayment in the September 2022 payroll that needed to be deducted in the October 2022 payroll. All Warrington employees who had erroneously been paid the night rate in September 2022 were subject to a deduction in the October 2022 pay run. Provision of claimant's employment details

[138]The claimant contended that via an email of 6 October 2022, the respondent refused to provide confirmation of his employment details for the purposes of obtaining a mortgage application directly to the claimant and instead would only provide them to his mortgage provider.

[139]The email of 6 October 2022 came from Laura Marsh, a HR administrator. This email was in response to an email the claimant had sent to a generic HR email address on 28 September 2022. By 6 October 2022 the claimant was absent on sick leave. Laura Marsh asked the claimant to confirm where the letter needed to be sent. The claimant was not on the respondent’s site on this date.

[140]It is the claimant's complaint that his colleague, Igor, received the letter directly on 29 September 2022, on the same day on which he requested that letter. The claimant complained that he requested his letter on 28 September 2022, but he did not receive it directly in the same way.

[141]It was the claimant’s contention in evidence that the respondent withheld these details from him because he had issued his Employment Tribunal claim. The claimant supported this theory by declaring that the respondent knew it was a time sensitive request that needed to be responded to within five days. The Tribunal could not find evidence that the claimant or the respondent had discussed that the request needed to be responded to within five days.

[142]There was confusion between the payroll department and HR as to who was responsible for the provision of information and inconsistency as to how that information was provided. Paul Ireland gave evidence that it was the respondent’s practice to provide the information directly from HR to the mortgage provider. However, there was evidence that the information was provided directly from the payroll department to the claimant’s colleague.

[143]The Tribunal has concluded that the claimant has not proven facts from which the Tribunal could conclude in the absence of an explanation from the respondent that the reason for the difference in treatment between the claimant and his colleague was because of the claimant's Employment Tribunal claim.

[144]The HR department dealt with the claimant’s request, not the payroll department, and it was the practice of HR to send the details directly to the mortgage provider.

[145]The Tribunal has concluded that Karen Green of the payroll department did not deliberately withhold the information from the claimant or that a letter dated 30 September 2022 was created after the submission of the Employment Tribunal claim. There was no evidence to suggest that the HR department, Paul Ireland or Karen Green knew about the claimant's Employment Tribunal claim. Presence of a notetaker at welfare meeting

[146]The claimant contended that the respondent made sure a notetaker was present at a welfare meeting because he had issued his Employment Tribunal claim.

[147]The respondent’s sickness policy does not provide for a notetaker at a welfare meeting. The evidence given by Paul Ireland who attended the claimant's welfare meeting with the notetaker, was that whilst the policy did not state a notetaker would be present, it was custom and practice if a welfare meeting took place off site. Paul Ireland said it was for safeguarding reasons.

[148]The respondent did send an email advising that a notetaker should be in attendance from a safeguarding point of view but also to capture all information and to make sure that there was an unchallenged version of events.

[149]The claimant did not refuse to attend the meeting with a notetaker present, and Paul Ireland was of the view that the claimant had adequate support because the claimant’s wife was in attendance.

[150]The Tribunal accepted the evidence that it was also custom and practice for the respondent to have a notetaker present when a welfare meeting took place off site. However, the existence of the Employment Tribunal proceedings did influence the respondent’s view that a notetaker should be present for accuracy reasons.

[151]Despite this, the claimant has not provided evidence that he suffered a detriment as a result of the presence of the notetaker. The claimant agreed to attend the meeting with a notetaker and had his wife in attendance for support. The claimant did not dispute the content of the notes taken at that meeting.

[152]The Tribunal has therefore determined that the claim of victimisation is unsuccessful and is dismissed. Time Limits

[153]As a result of the dismissal of the direct discrimination claim and the victimisation claim, the Tribunal did not determine the issue of time limits. Employment Judge Ainscough Date: 19 August 2024