Mr A Lloyd v JD Sports Fashion plc: 2407148/2023

EMPLOYMENT TRIBUNALS

Case No 2407148/2023

Between

Mr A LloydClaimant

JD Sports Fashion PLCRespondent

Before

Employment Judge Anderson

In person for claimant

Ms L Amartey (instructed by Counsel) for respondent

Date 20 June 2025

JUDGMENT

The unanimous Judgment of the Tribunal is as follows:

[1]The claim of automatically unfair dismissal under s.103A Employment Rights Act 1996 is not well founded and is dismissed.

[2]The claim of unfair dismissal is not well founded and is dismissed.

[3]The claim of wrongful dismissal is not well founded and is dismissed.

[4]The claims of harassment related to race are not well founded and are dismissed.

[5]The claims of victimisation are not well founded and are dismissed.

[6]The claims of direct discrimination because of race is not well founded and are dismissed. Case No. 2407148/2023

[7]The claims of whistleblowing detriment are not well founded and are dismissed. JUDGMENT having been given orally on 20th June 2025 and sent to the parties on 28th July 2025 and written reasons having been requested in accordance with Rule 60(4) of the Employment Tribunal Procedure Rules 2024, the following reasons are provided:

REASONS

[1]The Claimant Mr. A Lloyd brings proceedings for unfair dismissal, automatically unfair dismissal, harassment related to race, victimisation, direct discrimination because of race, wrongful dismissal and detriments by reason of whistle blowing against his former employer JD Sports Fashion PLC.

The List of Issues

[2]At the outset, it is important to highlight and record the position regarding the list of issues.

[3]At a previous Preliminary Hearing (case management) the case was discussed and a list of issues was produced. From the file, it is clear that the Respondent in advance of that hearing produced a draft list of issues and that list of issues was significantly added to at the Preliminary Hearing, most notably in terms of adding lengthy lists of detriments. That CMO provided for any change to the list to be raised within 14 days. Neither party contacted the Tribunal regarding the list of issues nor was there any alternative list of issues put forward.

[4]Notwithstanding the fact that there has been extensive correspondence following that hearing, including the Claimant making various accusations regarding the conduct of the litigation as well as raising case management points, no further discussion or alteration to that list of issues has occurred.

[5]A number of points in the list of issues are not covered in the Claimant’s witness statement. Counsel for the Respondent raised this with the Tribunal at the outset of the hearing.

[6]In addition, there are clearly problems with the list of issues. It is lengthy, it is not in chronological order and there is clear duplication. There were also problems with detail, a lack of dates and a lack of specifics and cross referencing.

[7]These specific problems also had to be seen in the wider context of the sheer volume of complaints being made together with a lack of cross-referencing.

[8]The result was that the list of issues was discussed extensively. This was a five day listing, which would plainly be tight and require active case management. Substantially altering the list of issues made it unlikely that the case could be heard within the hearing window. No party was in favour of postponing the case and relisting, which would have been a significant delay, possibly a year or eighteen months. We therefore considered ways to ensure that the case went ahead.

[9]The cross-referencing point was in part resolved by asking the Claimant (overnight, following day one and prior to the conclusion of his evidence) to cross reference a point in the list of issues with where it was located in his blog document. Relevant dates and the scope of an issue were further explored by the Respondent in cross-examination. The cross-referencing was done to assist the hearing of the evidence and was done by hand and did not in and of itself alter the list of issues. The Tribunal was grateful to the Claimant for doing this.

[10]In terms of the wider criticism of the issues, the criticisms were of a nature that were prejudicial to the Respondent. The lack of specificity no doubt increased the workload of Counsel for the Respondent in terms of the preparation of and the conduct of her cross-examination. We proceeded on the basis of the list of issues that we had, with the time points below added.

[11]The Tribunal raised the issue of time limits with the parties, which did not appear in the list. Time limits go to the jurisdiction of the Tribunal to hear a claim. It was necessary for time limits to be included with the date of the 22nd March 2023 appearing to be the date three months less one day prior to the Early Conciliation Certificate Date A which was 21st June 2023.

[12]It was made clear that time was potentially a point and the relevant tests were set out to the parties both in terms of the Equality Act and the Employment Rights Act.

[13]The time limit issues were as follows: 1. Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:(1) Was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the act to which the complaint relates?

(2) If not, was there conduct extending over a period?

(3) If so, was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the end of that period?

(4) If not, were the claims made within such further period as the Tribunal thinks is just and equitable? The Tribunal will decide: (i) Why were the complaints not made to the Tribunal in time? (ii) In any event, is it just and equitable in all the circumstances to extend time? 2. Was the whistleblowing detriment claim made within the time limit in section 48 of the Employment Rights Act 1996? The Tribunal will decide: (1) In respect of any detriment not within the primary time limit, was there a series of similar acts or failures and was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the last one? (2) If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit? (3) If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within such further period as the Tribunal considers reasonable?

[14]The list of issues is lengthy. As a result, it is appended to this Judgment rather than included in it. Procedural Matters

[15]The case was heard over five days before a full panel. There was a bundle of documents consisting of 551 pages.

[16]On day one of the hearing the Claimant made an application to the Tribunal indicating that a number of documents had not been disclosed by the Respondent. The Tribunal considered this application. The Tribunal asked the Respondent to produce items from its handbook that related to equal opportunities and victimisation. In response to this on the morning of day two the Respondent produced is dignity at work policy, its investigating claims of bullying and harassment policy and its equal opportunities policy. These policies were disclosed to the Claimant.

[17]However, we pause to note that to the best of our recollection, at no time did these documents, which the Claimant had sought disclosure on form part of his subsequent case in cross examination. The documents appear to be relatively boilerplate policies containing matters that the Tribunal would expect to see in an employer of this size. Nothing appeared to turn on these documents in submissions.

[18]During the course of the case Counsel for the Respondent raised with us a potential problem regarding the disciplinary procedure that is in the bundle. A question mark was raised over whether or not the copy in the bundle was the one in force at the relevant time of the disciplinary. In pursuance of her ethical duties Counsel for the Respondent produced a more recent version of the disciplinary procedure by way of disclosure. This occurred during the Claimants evidence. The Claimant’s position under affirmation was that the copy in the bundle was the disciplinary procedure that he was aware of at the relevant time. Therefore, the Tribunal proceeded on the basis of the document that was in the bundle and no more was said about the disciplinary procedure that had been handed up. We consider this to be entirely ethically appropriate. The question mark was raised by the Respondent as to whether not a mistake had been made as to what had been put in the bundle, the correct two potential versions were before the Claimant and the Claimant identified the version that was in the bundle, with the parties then proceeding on that basis. It is worth noting that in any event nothing during the case turned on the wording of the disciplinary policy. Even though this is a unfair and wrongful dismissal case no particular point was taken by either side as to the contents of the policy on a particularly tricky point or similar.

[19]The Claimant called himself as a witness. He also called his wife Ms Atmanjantini, who was assisted by an Indonesian interpreter when giving her evidence. The Respondent called Mr Whittaker (Shift Manager) Mr O'Brien (Profit and Protection Manager) Mr Gilroy (Return and Stock Control Manager) and Mr Gledhill (Territory Asset and Protection Manager).

[20]All witnesses gave evidence via oath or affirmation and were cross examined.

[21]The Tribunal was aware throughout that the Claimant was representing himself. The Tribunal took a number of steps to ensure that the parties were on equal footing in accordance with the overriding objective. The Tribunal sought to explain to Mr Lloyd the procedure that will be followed and also sought to assist him in terms of providing some basic indication as to how cross examination was conducted, e.g. not talking over each other, asking short questions, not asking more than one question at once and so on.

[22]On the first day of the hearing Mr Lloyd also indicated to us that he had slight problems hearing. This does not appear to have been raised previously. The Tribunal took steps to ensure that everybody spoke up whilst giving their evidence. Whilst there was some initial problems on day one these were resolved following this initial discussion and the case proceeded without further difficulty.

[23]During the hearing, and we recognise that it is a common misconception, it was necessary for the Tribunal to explain to the Claimant that this Tribunal was here to deal with the claims before it and was not a general enquiry into the Respondent.

[24]Furthermore, the way in which the Claimant expresses himself in writing and orally can be problematic. He is frequently uses and is keen to use legal phrases, which with respect do not make sense in that context. Again, we recognise that the Claimant is in person and make the necessary allowances and provide leeway. We mention it because it was a particular feature of this case and time was spent on it.

[25]Both parties produced written submissions which we read in full. During the course of the hearing, the Claimant also produced additional submissions regarding the drawing of adverse inferences from the absence of witnesses together with making a number of allegations regarding the Respondent. We have read these in full.

[26]We would like to place on record that Ms Amarety has been of assistance to the Tribunal in producing both a chronology and structured written submissions which have allowed the Tribunal to consider its deliberations in a more focused way.

[27]We recognise that this is a lengthy Judgment. We have sought to make proportionate findings of fact and ensure that we have made a conclusion on each disputed point in the list of issues.

Findings of Fact

[28]The Tribunal unanimously made the following findings of fact on the balance of probabilities.

[29]In terms of credibility we considered the evidence of the Claimant and his approach to documents at the time carefully. In terms of his overall evidence there was often a kernel of truth which is the starting point for some of his contentions but from that the Claimant then extrapolates broad, repeated allegations which tend to lack specificity. The Claimant was pursuing a wide ranging case, yet much of it was not covered in his witness statement. He did not always answer the question put to him. We found it difficult to rely upon any of the Claimants evidence unless it was specifically corroborated in some way.

[30]Ms Atmanjantini was not a direct witness to many of the events that form part of the Claimant’s case. She gave some background evidence. Some of the matters had become less important due to concessions made by the Claimant in cross examination.

[31]We generally found the Respondents witnesses to be attempting to assist the Tribunal. Their witness statements were somewhat short and this did cause some problems. Some of the Respondents evidence was affected by the passage of time between the alleged event and the hearing today and memory recall was a particular issue.

[32]In relation to Mr. Whittaker, we found that he trying to assist us. However, we did form the impression that he was being asked to do a grievance investigation with limited support. What was being asked of him in undertaking such a task may have been beyond what could reasonably have been expected of someone at his level of junior leadership.

[33]Mr. O’Brien was able to articulate his thought process and to answer questions. He was frank in his evidence.

[34]Mr. Gilroy struggled to remember detail and had problems recollecting matters. It could be said that he perhaps relied too easily on memory problems as an instinctive answer. He was not untruthful and where he did give positive evidence, there was a basis for it and in particular in relation to the alleged misconduct was able to give particular detail.

[35]Mr. Gledhill was an impressive witness and was able to articulate his thought process clearly and to deal with points that were raised.

[36]The Claimant commenced employment with the Respondent in July 2021 as a Returns and Stock Control Operative. The Respondent is a large sports and retail company. The Claimant was employed within the Respondents distribution centre.

[37]Shortly after commencing his employment the Claimant became involved in a series of grievances raised by Mr Wasim Hussain. We're told that these grievances included allegations of race discrimination. The Claimant assisted Mr Hussain. Mr Hussain did not give evidence to the Tribunal.

[38]Mr. Kane Connolly was the Claimant’s manager. He is no longer employed by the Respondent. He did not give evidence to the Tribunal. We refer to this at the outset as Mr. Connolly is referred to a number of times and his absence is criticised by the Claimant.

[39]In November 2022 the Claimant wrote to Mr Connolly stating amongst other things “I have many concerns and I'm sorry once again to have to be writing this type of e-mail, but it seems once again I am the victim of a malicious attempt to defame my character. I'm sure you know I was called into the office for an investigation that I've been “aggressive” towards Paulina Tryka”

[40]We infer from the above that the Claimant had communicated previously with Mr. Connolly. It would also appear that the first year or so of the Claimant’s employment had involved a degree of conflict.

[41]Around the same time, a role of Supervisor was advertised. The Respondent has a recruitment department internally that deals with all of recruitment. The advert included a link which was the method of applying for the role. The Claimant did not do this he instead emailed Mr Connolly applying for the job. The Claimant did not get this job.

[42]On the 24th of January 2023 the Claimant raised a grievance. The allegation was that the Respondent had not dealt with his allegations of racism correctly he referred to “discriminatory and inappropriate attitudes.” The Claimant references health and safety and equality and human rights. He references that some people in the GPP area are racist. The e-mail is largely in broad terms but does contain a specific point regarding specific named members of staff making complaints about people from an ethnic minority talking in their own language.

[43]The Claimant was invited to a grievance meeting on the 1st of February 2023. Mr Bradley Whittaker chaired this grievance meeting. Following this meeting around nine number of individuals were interviewed. The Claimant complains that there were a number of individuals who were not interviewed. The evidence of Mr Whittaker was that he felt he was interviewing a sufficient pool of people such that enabled him to reach a conclusion.

[44]This was not a perfect grievance process. There was clear difficulty in following or understanding the broad nature of the Claimant’s complaint. At the same time, we find that there was a relatively low level of scrutiny being applied by the Respondent.

[45]In the meantime at some point in March 2023 the Claimant was moved internally to the check-in desk. This appears to occur without notice to him. The Claimant says that this was an act of him being targeted. The Respondent contends that this was just part of someone's duties being moved within the same warehouse in the way it would have been for any other employee.

[46]A grievance outcome meeting occurred on the 1st of May 2023 with a relevant decision letter sent by e-mail on the same date. The outcome of the grievance is that the Claimants grievances partially upheld. The letter could be clearer as to why this was the case. We sought to explore with Mr Whittaker what that meant in the context of this grievance as it is far from clear from the grievance outcome letter itself. Mr Whittaker did not find racism, but did suggest there may be a training issue with regards to how different languages were approached. Mr Whittaker concluded was that further training would be provided and in respect of particular complaints regarding Mr Popham that he was spoken to.

[47]The Tribunal notes the lack of evidence on the outcome and the implementation of the outcome. Mr Whittaker was asked about this by the Tribunal and could provide only limited assistance. The height of the evidence is the assertion of ‘training’ being provided together with some engagement events taking place.

[48]At this point in time, the Tribunal pauses to note that no HR witnesses have been called by the Respondent. There are some internal HR system documents in the bundle and we also accept the Respondents submission that there may be documents in relation to Mr Hussain’s case that have not been included because they are not directly relevant to these proceedings. However, as the Tribunal performs its fact finding process, we have been left with the impression that much is left to individual managers when it would have been preferable and what a number of situations called for was for HR leadership. For someone with HR experience to take an overall view of the situation with the Claimant, to be proactive and to take a final view on whether the points being raised by the Claimant had merit or not following a thorough investigation. HR would also have a role in ensuring that there was effective day to day management within the warehouse.

[49]Whether or not staff are able to speak in their own first language can be a sensitive issue in the workplace. The Claimant was complaining that he was aware of some other members of staff had previously been prevented from speaking in their own language. A different perspective articulated in the grievance process was that it was a problem if someone were to speak to someone in their first language then a person in their proximity may feel that they are speaking about them or being excluded from the conversation. This was clearly a fact sensitive situation and one that required thoughtful management. It was not treatment of the Claimant.

[50]We regard the dispute or debate regarding the correct approach to the language used by members of staff within the workplace to be a matter of fact and agree and sensible people management. Mr Whittaker as a relatively junior manager in a warehouse would require significant assistance from a HR professional in order to understand the implications of such a point. What is clear from our perspective is that criticisms that are made of Mr Whittaker and this process arise from naivety as what is expected in a grievance investigation and lack of support given to him rather than malice on his part.

[51]The Claimant appealed the grievance outcome on the 3rd of May 2023. He was invited to attend a grievance appeal meeting which took place on the 25th of May 2023.

[52]The appeal was heard by Sylwia Cazapara who had the benefit of HR being present. We have not heard from Ms Cazapara as a witness. Her appeal decision letter is far more detailed then the original grievance decision letter. The matter seeks to provide some structure to the Claimants grievance and to deal with each point in turn. We also note that it deals with a wider range of points that were raised in the Claimants original grievance. We view this letter as a good letter in terms of dealing with the range of points made but still problematic in the sense of it is evident that there is a problem within the people management of staff in the warehouse and it is also unclear as to how that is being managed or who is taking responsibility for that.

[53]In between the Claimants grievance appeal meeting and his grievance appeal outcome he commenced early conciliation on the 21st of June 2023 with the EC certificate being issued on the 23rd of June 2023. On the 26th of June 2023 the Claimant issued his claim in the employment Tribunal. The Claimant appears to have attached a document of around 89 pages to the ET 1. It is described in these proceedings as “the Claimants blog”. This has the potential to be confusing to the reader. This document is effectively a word file which the Claimant has added to and amended. A blog is an online publication in which someone places entries for public consumption.

[54]This blog exemplifies the point we have made regarding kernels of information then being taken and broadened out. The kernels of information are the fact that the blog does contain dates which, the majority of which have not been significantly challenged and there has been only the occasional inadvertent error. Insofar as the blog refers to dates the Tribunal is able to read that and place reliance upon it.

[55]What is more problematic is the content of the blog. The Tribunal finds that it is unable to significantly rely upon the contents of the blog in terms of the substantive content. The choice of language or his interpretation of an event on the basis of the entries that we have seen appear to place the Claimant in a virtuous position and others in a non virtuous position rather than being a reliable record of what has occurred. The language used is rarely descriptive or factual but is often laced with hyperbole or a complete misunderstanding as to what has occurred or why it has occurred. It is a common feature of this case that the Claimant is not a reliable narrator as to an event that has occurred or as to an interpretation of events that have occurred.

[56]A member of staff called Stephanie Thurlow accused the Claimant of bullying on or around the 26th of June 2023. We have not heard from Ms Thurlow. The Tribunal does not have any original documentation regarding the original alleged complaint.

[57]What the Tribunal does have is an e-mail from the Claimant at pages 381-382 referring to the existence of the complaint and saying that he has been victimised.

[58]On the 28th of June 2023 the Claimant meets with two individuals from security called Mr Robert Clarkson and Mr Robert Dickin. The Tribunal has not heard from Mr Clarkson or Mr Dickin. The allegation raised by Ms Thurlow is raised with the Claimant. There does not appear to be an invite to this meeting. Notes were being taken at this meeting on a lap top. The Tribunal has been told that these notes were accidentally overwritten.

[59]Mr. David Wilson, a fellow employee was also spoken to by Mr. Clarkson and Mr. Dickin in a separate meeting. His version of events is contained within the bundle at page 379. We have not heard live evidence from Mr. Wilson.

[60]The Tribunal has been provided with CCTV footage of this meeting. We reviewed the CCTV footage. There is no sound. The Claimant states in stark terms that the video shows him being bullied with visible arm movements and threatening behaviour.

[61]At least in terms of what the Tribunal can see visually, it is the Claimant who is animated, it is the Claimant who is waving his arms. The Claimants description of the CCTV footage is not in accordance with what the Tribunal viewed. It is problematic that the Claimant expresses himself in such strong terms on the basis of visual evidence when the objective evidence does not bear the hyperbole out.

[62]It was the Claimant’s position that the CCTV footage establishes his point. It does not. At the same time, the Tribunal does not suggest that viewing CCTV footage without sound is absolutely conclusive in some way. Rather, on the balance of probabilities given what we have seen as a panel we are not able to find that any specific act of bullying occurs during this meeting.

[63]At this point, it is worth pausing to note to consider the wider context of this meeting. It appears to be occurring prior to the Respondent receiving the ET 1 but after the Claimant having raised his grievance, pursued an appeal and commenced early conciliation.

[64]In this context and at this point in time, the Respondents actions are a concern. There are two security individuals, not managers, not HR who are meeting with an employee who is in a contentious situation. We have been told that the notes have been overwritten. In addition to HR not being present, there is no evidence of HR involvement prior to the meeting. Even if this is an informal early fact finding stage given the size and administrative resources of the Respondent it is still a strange setup.

[65]In terms of the perception of the Claimant, we accept that he was in a position of being in conflict with his employer at this stage but at the same time we also find that he had a heightened sense of paranoia and his interpretation of events was significantly influenced by his adverse perception of the Respondent.

[66]The Claimant raised a grievance regarding this meeting and attended a second grievance hearing on the 27th of July 2023. This was heard by Mr O'Brien He is the Profit and Protection Manager within the Respondent. He is two levels of management above the two individuals who interviewed the Claimant.

[67]Mr O’Brien viewed the CCTV footage and spoke to the two individuals He did not find that the Mr Clarkson or Mr Dickin had behaved aggressively towards the Claimant. We consider that this is a reasonable finding based upon the evidence that was available to him. However, we do not consider the Respondents approach to this matter generally to have been an example of good practice.

[68]The Claimant further complains that one of the two individuals who he complained about escorted him to the meeting with Mr O’Brien. The evidence of Mr O'Brien was that he had instructed security that they get someone to bring the Claimant up as is normal practice. On any analysis it is a bad idea for the Claimant to have been escorted to a grievance meeting by the very person he was complaining about, irrespective of the merits of his complaint. The fact that the Respondent have security to escort people to meetings within that part of the building explains why there's an escort in the first place but it is so obviously a inappropriate thing to do that we can and must criticise such an obvious failing. No actual harassment occurred nor was anything specifically said. Nonetheless, the presence of the security guard is the problem and we consider it to be indicative of a wider problem of lack of specific thought being given to situations within the Respondent.

[69]No further action appears to have been taken in relation to the complaints of Ms. Thurlow.

[70]The notice of claim was sent to the Respondent on the 23rd July 2023.

[71]On or around the 27th July 2023, the Respondent was installing Zscaler software onto the computers of employees. Mr O'Brien suggested that this may have been done sequentially within the company and given the Claimant's first name he may have been one of the early adopters. This was no more than a possible guess. The Tribunal did hear from two individuals in the form of Mr Gledhill and Mr O’Brien that this was a system which is used within the Respondent generally. It was a replacement for the VPN. The Claimant has not proven that he was targeted in some way. Furthermore, we find that this was a normal software programme. Nor has it been proven that there was some sort of nefarious nature to the programme.

[72]Further issues arose. Concerns were brought to the Respondents attention regarding matters of conduct relating to the Claimant. Given the timing of this, it is essential that the Tribunal look at the roots of the complaint. There appear to be two roots for these concerns.

[73]The first is that on the 29th of July 2023 Mr Gilroy emailed Mr Connolly. Mr Gilroy was reporting an incident which was said to have occurred within the last hour. Mr Gilroy reports that the Claimant was at his desk and has then walked over to Mr Gilroy’s desk and asked him to go back with him to the Claimants desk. The Claimant then sat down and Mr Gilroy was behind him looking over his shoulder. The Claimant showed Mr Gilroy a draft of an e-mail that had yet to be sent that was due to be sent to Mr Connolly. Also available on the Claimant’s screen was another document. This document was visible when the letter or email was minimised. This other document appeared to have the names of employees on it, their addresses and possibly their phone numbers. Mr Gilroy noted the details of Kane Connolly, Stephanie Thurlow, Arif Jan and Nathan Gilroy. He also noted the name of Jonathan Hayes but also saw that his information was not on there.

[74]The fact that Mr Gilroy reported this to Mr Connolly so promptly is telling. It is indicative of the fact that Mr Gilroy knew what he had seen was wrong. As a manager in a position of responsibility it was his duty to report it.

[75]This data may have been accessible on the basis that these individuals had ordered items from the Respondent as customers and therefore their details were accessible on the system. The Claimant did not have a legitimate business or work related reason for accessing this data.

[76]The second route by which this matter came to the Respondents attention was via Mr Javid in which he had reported to the Respondent that the Claimant had asked him to look up addresses on Google Earth.

[77]There is a factual dispute as to the relevant date on which this occurred (either in July or early August) and when it was reported to the Respondent. The disciplinary hearing subsequently does not resolve this factual dispute. However it was the evidence of Mr Gledhill that the detail given by Mr Javid as to what the Claimant had said and had pointed out regarding people's houses that satisfied Mr Gledhill that it had occurred.

[78]On the 12th of August 2023 the Claimant attended a disciplinary investigation. The investigator was Ms Lisa Lindsey. We have not heard evidence from Ms Lindsey. Based on the investigation paperwork before us, Ms Lindsey asked the Claimant about the obtaining of personal information. That investigation established that the Claimant had the personal address and telephone numbers for Kane Connolly, Stephanie Thurlow, Arif Jan and Nathan Gilroy. The fact of the names, addresses and telephone numbers was accepted by the Claimant during the meeting. The fact he had obtained it from the Respondent systems was an accepted fact during this meeting.

[79]In the meeting when asked about accessing information the Claimant said a number of things. One of which was “I was told by the representative I could, the lady from HR, she said I could whatever data I need, right everything in the grievance it's in that line of what's happening.” The Claimants position was that he was obtaining people's addresses so that he could call them as “hostile witnesses” in court proceedings. This is an example but it's far from the only one of the Claimant taking a situation and completely misunderstanding it. At no time did HR or anyone else authorise the Claimant to access the Respondents IT systems and obtain personal data. The Claimants suggestion that this could be the case is far removed from what is actually correct.

[80]A different contention was that the Claimant said he was told that he could do or otherwise authorised to so by an Employment Judge. There is no evidential basis for this suggestion. The Tribunal finds that it did not happen. Nor is it likely that anything said by a Judge would be a basis for unlawfully accessing data.

[81]The calling of witnesses is also an example of the Claimant getting far ahead of himself. The Tribunal recognises that the Claimant is a litigant in person and not a qualified lawyer. The Tribunal does not hold him to a standard of being professionally qualified. The Tribunal on a weekly basis we'll encounter people who are not represented and have made incorrect assumptions regarding their cases or the conduct of their cases. It does not follow from that that doing something unlawful is a natural consequence of representing yourself.

[82]The Claimant was suspended on the 12th of August 2023 following his disciplinary investigation meeting

[83]Both the disciplinary process and the Claimants grievance appeal process continued simultaneously with various interviews taking place of different individuals in each process.

[84]By the 23rd of August 2023 the Respondent submitted its grounds of resistance to the original claim

[85]On the 25th of August 2023 the Claimant was written to with his second grievance outcome. This was appealed by the Claimant the following day on the 26th of August 2023.

[86]On the 11th September 2023 the Claimant was invited to attend a further investigation meeting which took place on the 13th of September

[87]On the 13th of September the Claimant was asked in light of his early admissions regarding the fact he had the data, how it was he came to access the data. He is also asked “do you think it is reasonable that you used a JD system for personal usage in order to obtain confidential customer slash colleague personal data?” The Claimant replied I do for a court case, I need their address so papers can go to them. But now I might not ever need that information, according to the Judge.

[88]When asked “why do you think this is OK?” he replies “I didn't think it was OK but you guys never told me it wasn't OK. Nathan never told me it wasn't OK.”

[89]As part of the investigation both Mr Gilroy and Mr Connolly make points regarding concern for both their safety and their families safety and the Claimant having access to their details. The assertions regarding safety go beyond a mere assertion of being scared in broad terms. For the sake of these individuals families we will not particularise this further in this public judgement. However suffice to say that we are satisfied that Mr Gledhill had before him evidence of genuine concern for welfare at the time of the disciplinary hearing.

[90]Therefore, beyond the fact of the data breach itself there was further evidence before the Respondent that the actions of the Claimant had caused worry 2 members of staff of the Respondent and then by extension a concern for their families well-being.

[91]On the 13th September 2023 the Claimant attended a second grievance appeal hearing.

[92]On the 4th of October 2023 the Respondent invited the Claimant to disciplinary hearing to take place on the 9th of October 2023 chaired by Mr Gledhill. Mr Gledhill is responsible for shops and not the warehouse. His job title is Territory Asset and Profit Protection Manager. He did not previously know the Claimant and the Claimant did not previously know him. He is far removed from any internal disputes or machinations within the warehouse. The Tribunal accepts and finds that he came to this situation with an open mind and was considering the evidence that was put before him.

[93]Mr. Gledhill gave the Claimant the opportunity to state his case. He listened to what the Claimant had to say.

[94]It is right to record that the Claimant was not remorseful. Whilst there are references at times at different meetings to the Claimant recognising that he should not have done it, there are other references to him saying that he was justified in doing so.

[95]The decision of Mr Gledhill was to dismiss the Claimant summarily. He subsequently wrote a detailed letter in support of his decision dated 1st November 2023. That letter identifies what the Respondent alleges that the Claimant has done that is wrong and identifies the effects of that and why it is gross misconduct.

[96]The Claimant was offered the right of appeal against dismissal. The Claimant did not appeal his dismissal. He said that he wanted to go to the Tribunal and did not trust the Respondent to resolve it internally.

[97]The outcome to a second grievance was provided on the 21st November 2023.The Claimants appeal was rejected. The Law Discrimination

The Law

[98]It is recognised that discrimination is rarely overt. It can be subtle and fact sensitive. Evidence of discrimination may come from a range of sources but often depends on inferences being drawn from facts found. Recognising the difficulty that exists in proving discrimination, s.136 of the Equality Act provides for a specific application of the burden of proof.

[99]Section 136 Equality Act 2010 provides:(1) This section applies to any proceedings relating to a contravention of this Act.

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

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

[100]Section 136 provides for a two stage process for determining whether the burden shifts to the employer. It is not obligatory for Tribunals to resort to the burden of proof and in appropriate cases, the Tribunal can ask ‘the reason why’ the treatment occurred. Where there is room for doubt as to the facts necessary to establish discrimination, the burden of proof provision is of particular assistance. In contrast, where the Tribunal is in a position to make positive findings on the evidence, there is little to be gained by returning to the burden of proof: Hewage v Grampian Health Board

[2012] ICR 1054

[101]Where the burden of proof provisions are applied, the longstanding authority is that of Madarassy v Nomura International PLC

[2007] ICR 867

following on from Igen v Wong

[2005] ICR 931

. Mere difference in treatment is not ‘without more’ sufficient to reverse the burden of proof. However, the ‘more’ is not required in and of itself to be something substantial.

[102]The mere existence of unreasonable behaviour does not in and of itself lead to an inference of discrimination. At the same time, the fact that conduct is unreasonable does not mean that it cannot be discriminatory. c.f. Bahl v The Law Society & Others

[2004] IRLR 799

[103]In Kowalewska-Zietek v Lancashire Teaching Hospitals NHS Foundation Trust (2016)

UKEAT/0269/15/JOJ

the EAT, citing Zafar v Glasgow City Council

[1998] ICR 120

Langstaff J held “An overriding feature of this case has been that the Respondent has repeatedly been found to be lax, lacking in attention to detail or careless. The logic of the approach taken in Zafar is clear: that unreasonable, even unpleasant, behaviour is not of its nature essentially and necessarily behaviour adopted because of a protected characteristic of the Claimant. Where there is an approach towards all which creates an equality of misery it is particularly clear that it is unlikely to be because of a protected characteristic peculiar to only one or a few of them. However the "unreasonable not discriminatory" defence may be less applicable in a case in which the evidence shows that only one employee has in particular been made miserable. In that latter case, though it remains logically right that the individual may have been the unwilling victim of a mistake or oversight, there is much greater reason to consider carefully and with particular scrutiny whether this might simply be too easy an explanation. It may call, in an appropriate case, for evidence as to how others have been treated who, if the explanation were true, one might expect to have been treated equally badly.”

[104]Direct Discrimination is provided for in s.13 Equality Act 2010 which states: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[105]Subsection (5) states: If the protected characteristic is race, less favourable treatment includes segregating B from others.

[106]The need for an actual or hypothetical comparator is set out at section 23 of the Equality Act 2010. There must be ‘no material difference’ with the comparator.

[107]When considering a hypothetical comparator, it is possible to identify and use evidential comparators who do not fit within section 23 but nonetheless provide potential evidence as to how a hypothetical comparator would have been treated. Harassment

[108]Harassment is provided for in s.26 Equality Act 2010 which states:(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2) A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b).

(3) A also harasses B if— (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b) the conduct has the purpose or effect referred to in subsection (1)(b), and (c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

(4) In deciding whether conduct has the 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; (c) whether it is reasonable for the conduct to have that effect.

[109]In Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

Underhill J when considering the nature of harassment noted: “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.” (para 22)

[110]It is not suggested that a proposition of law exists that intent is irrelevant. Rather, the statutory language must be applied carefully.

[111]Underhill J continued: “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.” (Para 22)

[112]Still on the point of intent, further context was provided by the Court of Appeal in Grant v HM Land Registry

[2011] IRLR 748

in which the following passage from Dhaliwal was submitted by the Equality and Human Rights Commission (intervening) to be in error as conflating purpose and effect: “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.”

[113]The Court of Appeal rejected this: “I do not agree. When assessing the effect of a remark, the context in which it is given is always highly material. Everyday experience tells us that a humorous remark between friends may have a very different effect than exactly the same words spoken vindictively by a hostile speaker. It is not importing intent into the concept of effect to say that intent will generally be relevant to assessing effect. It will also be relevant to deciding whether the response of the alleged victim is reasonable.” (para 13 per Elias LJ)

[114]A single isolated incident can be an act of harassment and that there is no obligation for there to be more than one act for it to amount to harassment. Again, context is essential and the wording of the statute must be applied. Victimisation

[115]Section 27 of the Equality Act 2010 provides:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

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

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

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

[116]It is for the Respondent to prove the reason for dismissal. In the present case, the Respondent relies upon the potentially fair reason of conduct.

[117]If the Respondent does prove the reason for dismissal, it is necessary to go on and consider reasonableness under s.98(4) Employment Rights Act 1996.

[118]Given that conduct is relied upon as the reason for dismissal, if established, the Tribunal must go on to consider the Burchell test derived from the well known case of British Home Stores Limited v Burchell:

[1980] ICR 303

. The burden of proof under s.98(4) is neutral. The Tribunal must ask itself:a. Did the Respondent hold a belief, based on reasonable grounds that the Claimant committed the acts of misconduct alleged?

b. Did the Respondent undertake such investigation as is reasonable in all the circumstances of the case, having regard to the size and administrative resources of the Respondent?

c. Was the decision to dismiss within the range of reasonable responses open to the Respondent?

d. Throughout the Tribunal must ask itself whether the Respondent followed a fair procedure in dismissing the Claimant. Wrongful Dismissal

[119]The longstanding authority of Neary v Dean of Westminster

[1999] IRLR 288

is the starting point as to what amounts to gross misconduct. More recently, the Court of Appeal considered Neary and the nature of repudiatory conduct in Adesokan v Sainsbury’s Supermarkets Ltd

[2017] EWCA Civ 22

. Elias LJ held: “The focus is on the damage to the relationship between the parties. Dishonesty and other deliberate actions which poison the relationship will obviously fall into the gross misconduct category, but so in an appropriate case can an act of gross negligence.” (Para 23)

[120]It is the first line of the above paragraph that is of particular importance to this case. In determining whether an act was sufficiently serious so as to amount to a fundamental breach in the employment context, it is important to focus on the damage to the relationships between the parties.

Conclusions

[121]There are broad criticisms to be made of both sides. As part of this Judgment, we have been critical of the approach of the Claimant and the way in which he raises things, with it sometimes being difficult to follow the point that is being made.

[122]At the same time, we are critical of the Respondent appearing to task staff and managers at all levels in having to deal with individuals such as the Claimant with limited HR support. The reference to HR support is a reference to a number of common points, for example, the lack of HR being present at meetings, HR not being responsible for the taking or preservation of notes, HR being present and responsible for grappling with what can be sensitive and complex problems such as the use of languages in the workplace. We have also seen limited HR internal communication allowing the Tribunal to see what advice is being give at a particular point. Our broad view is that some of the interactions with the Claimant could have been handled better and that one of the factors appears to be a lack of a particular individual with overall responsibility for the situation or providing HR leadership.

[123]In reaching the conclusions that we have below, it is right to say thar we have considered each individual detriment. However, we have also taken a step back and looked at the larger picture to assess whether cumulatively there was evidence of discrimination. Our broad reasoning on this is as follows:a. On many points, the Claimant has not proven the detriment occurred.

b. Where there is a detriment, the explanations tend to lend themselves to a straightforward explanation or where it is more problematic, incompetence or naivety rather than discrimination.

c. We recognise that discrimination need not be overt and we have considered whether less overt or subconscious discrimination was occurring. That is not the case. Harassment related to Race

[124]Allegation 2.1.1 relates to the 28th June 2023 and the allegation that the security team behaved aggressively towards the Claimant, including shouting at him.

[125]Whilst the Tribunal has been critical of the surrounding procedure of the 28th June, we have not found that the Claimant was shouted at nor have we found that the security team behaved aggressively towards him. Nor do we find that this is in any way related to race.

[126]Allegation 2.1.2 and 2.1.3 relate to the taking of notes. Again, the Tribunal has been crucial of the Respondents approach to note taking, but we do not find there to be any nefarious aspect to this. Incompetence or naivety are more likely explanations. There is no element of race involved. When being cross examined, the Claimant appeared to accept this.

[127]In terms of the Claimant being ‘ignored’ we do not have the benefit of audio. However, the Claimant has not established what has been ‘ignored’. The allegations were not taken further. We have already noted that it is incompetent for the notes to go missing and this is all the more reason for greater HR involvement. This treatment is not related to race.

[128]Allegations 2.1.4 suggest the Respondent fabricated evidence against him. We have not found that the Respondent fabricated evidence against the Claimant.

[129]Allegation 2.1.5 suggest that the Respondent attempted to undermine the Claimant’s credibility or portray him as a troublemaker. This is a broad allegation, but it has not been established on the facts. Further, the treatment of the Claimant was not related to race, either his race or someone else’s race.

[130]In addition to the factual problems with the claim for harassment related to race is our finding that none of the above treatment was linked either to the Claimant’s race or that of his wife and the fact that she is Asian. Victimisation

[131]We begin consideration of the victimisation section by noting what has not been pursued.

[132]The third protected act in the list of issues at 3.1.3 regarding spray chemicals was not pursued as a protected act by the Claimant during his evidence whilst under cross examination from the Respondent.

[133]Therefore, there are two protected acts remaining. They are:a. the grievance of January 2023 (page 24) which is accepted as a protected act and

b. the Claimants further grievance in June 2023 (Page74) in which he refers to harassment, victimisation and bullying. The Respondent has not conceded that this was a protected act.

[134]In relation to the June 2023 grievance, we have concluded that it amounts to a protected act. It clearly references harassment. It also clearly references in more than one place the word ‘victimisation’. These are protected acts within the meaning of s.27(2)(c) or alternatively s.27(2)(d) of the Equality Act 2010.

[135]During the course of the hearing, there was occasional use of the word ‘protected act’ in different contexts and events. No application to amend was made. The Tribunal continued to proceed on the basis of the list of issues. It would be unfair and prejudicial for the protected acts to change, particularly when they have not been properly addressed in the witness statements. The phrase appeared to be used freely. The Tribunal did not see any basis upon which it would improve the Claimant’s position, particularly given that he already had two clear grievances to rely upon.

[136]We are satisfied that the Claimant agreed to this list of issues and knew what he was agreeing to regarding the contents of what were protected act was.

[137]Moving on to detriments not pursued, we note the following:a. Detriments 3.3.10 through to 3.3.14 appear to be prior to the protected acts, though we have still provided additional reasoning below.

b. Detriment 3.3.29 regarding the ignoring of an email occurs on the 24th November 2022 and is prior to any protected act relied upon. The initial list of issues refers to 24th November 2023 but it was accepted by the Claimant in evidence that this is a reference in fact to 2022.

c. In relation to the Claimant’s application to become a supervisor, this too was prior to the protected acts relied upon. This application related to a vacancy advertised on the 21st of December 2022 in respect of which the Claimant emailed his interest on the 24th December 2022 rather than apply via the correct internal system. The Claimant did not get the job. The Claimant has not provided any basis upon which there was something nefarious as to why he did not get the job, rather the Respondent and the Claimant both agree that the Claimant did not apply for the job through the correct process. This is an agreed fact. It is more likely than not that the fact that the Claimant did not apply through the correct process was why his application was not taken further. This is a substantive point and is the most likely explanation.

[138]Having noted the above, we will now go on to consider the remaining detriments.

[139]Detriment 3.3.1 relates to the change of duties. These are linked to or duplicates of detriments 3.3.20, 3.3.21 and 3.3.30.

[140]We find that Jonathan Hayes did tell the Claimant “don't get comfortable you are moving”. it is more likely than not that these words were used. The Respondent has not called any witness to contradict the Claimants assertion. That assertion is specifically contained within the Claimant’s blog and also the list of issues. The Respondent has prior notice of the point.

[141]In the witness statement of Mr Whittaker at paragraph 32 he does not address whether the statement was said or not. Rather it is a point on causation. Therefore, the issue for the Tribunal, having found that the words were used is to ask ourselves whether or not they were used because of the Claimant’s protected act. This is linked to whether or not the Claimant was moved to different duties within the same department because of his protected act.

[142]The height of the evidence indicating this could be victimisation is the timing of the move, i.e. its place in the chronology of events. We have carefully considered this. It is certainly happening at a time when a lot of other events are going on. On this basis we have scrutinised it carefully.

[143]We accept the Respondents evidence that people do move around within the department. This work was paid at the same rate, the Claimant remained on the same tier and the nature of the work in and of itself was not unpleasant or in some way punitive. We accept the Respondents submission that the Claimant has not established causation between a protected act and the fact of this happening. The moving of duties is a normal (though not everyday) event within the Respondents warehouse. The words used by Mr Hayes are potentially indicative of low level poor management. It wasn’t a particularly engaging way to speak to the Claimant or a sensible way to inform a work colleague of change that may affect them. However, it has not been proven that it was because of the Claimants protected acts.

[144]Detriment 3.3.26 also follows on from the above. This is an allegation that following his move, the Claimant was not given the correct training for the check desk. He was given eight hours of training whereas his case was that usually training two weeks is said to have been given. The Tribunal finds that the check desk work involves doing the more complex returns that come through the warehouse. That is to say workers at Tier 4 are doing the returns that have complicating factors such as missing labels, partial numbers, more complex defects and so on. The tasks require a degree of working knowledge generally of the Respondents methodology of working as well as some knowledge that is specific to the check desk role.

[145]We accept the Respondents evidence in full on the training point. The two weeks training is a maximum period of training for entirely new starters and would take into account all the relevant matters needed for an induction of a new starter and getting to grips with the warehouse as a whole and also learning about a strange new environment. In contrast, the Claimant was given eight hours on the job training in relation to a warehouse which the Claimant is already familiar with. There is some granular detail which the Claimant needs to understand and eight hours shadowing appears on the face of it to be a reasonable period. However even if we are wrong on the eight hours point, we are clear that the Claimant has not proven and we positively reject the suggestion that he required or was some way entitled to two weeks training as if he was a new starter.

[146]Furthermore, the point fails on causation in any event. This is not caused by a protected act. This point is an example of concerns we have regarding the Claimants assertions and the credibility of them. There is a clear distinction to be made between a new starter and someone who is been there for years even if the specific duties themselves are going to be different. We also note that it is telling that at no point has it been suggested that in terms of the Claimants duties on the check desk he did not know what he was doing and the Respondent intended to bring some form of punishment or capability proceedings against him. The only concerns that have been expressed regarding the Claimants performance in this Tribunal has been the amount of time he allocated to his duties in the first place.

[147]Detriment 3.3.2 and 3.3.22 relates to the alleged monitoring of the Claimant’s work computer and the installing of Zscaler. We refer back to the facts found above. The Claimant has not proven that he was targeted or that he was being monitored. This appears to be a software program used within the Respondent. On the face of it this appears to be a conspiratorial assumption. This is not because of the Claimant’s protected act. There is no detriment.

[148]Detriment 3.3.3 is subjecting the Claimant to unfair accusations and instructions telling him he could not write a blog about what is happening to him. The point here is nuanced. It is right to say that the Claimant was writing his document. The Respondent has not called Arif Jan and Kane Connolly. However it did call Mr Gilroy.

[149]There is a distinction between the Claimant writing a document in the first place and then doing this whilst at work when he should be doing other duties. The Respondent is not entitled to stop the Claimant keeping a record in his own time. However, it can require him to perform his duties during working hours.

[150]We have concluded that the Respondent’s concerns related to the Claimant not performing his duties and focusing on matters other than his duties. The Respondent did not have access to the document and little was known about what the Claimant was actually recording. Therefore, the detriment alleged was not because of the protected acts.

[151]This also has to be seen in the wider context of this being somewhat strange. It is right to say that if discrimination is occurring then the documenting of it is clearly permissible under the Equality Act and is also evidentially sensible for establishing a case under the Equality Act. There is a distinction between this and something becoming a degree of an obsession in which work duties are not being performed or situations are being significantly misunderstood. We recognise that it cannot be pleasant to work in a work environment if someone says they're recording things about you each day.

[152]Detriment 3.3.4 is the same as detriment 3.3.27 and relate to the allegations of Ms. Thurlow. It was agreed that the reference to July/August 2023 is likely to refer to the 28th June 2023.

[153]We consider that this point has been badly handled by the Respondent. We do not have the original complaints of Stephanie Thurlow. We do not have Ms Thurlow as a witness. We do have the Claimant’s account at page 73-75 but this is of course distinct from the actual complaint that was made.

[154]Our reading of page 75 is that there appears to have been some sort of awkward interaction. We suspect there is more to it in terms of the awkwardness which is what would have led Stephanie to have made her relatively informal complaint.

[155]Given all that was going on, the tone and the content of the emails that the Claimant was sending, the conflict which the Claimant perceived at work, t to then have the Claimant pulled into a meeting without any prior notice is very risky behaviour by the Respondent.

[156]We have concluded however that this is poor practice, not victimisation. It appears to be a relatively low level complaint rather than something which is concocted with a view to getting the Claimant into serious trouble. We note that David Wilson was also complained about. David Wilson is an individual who has not raised a grievance yet was subjected to the same behaviour. We have asked ourselves whether not Mr. Wilson being subject to the same behaviour was some sort of cover for the treatment or the behaviour towards the Claimant and we conclude that it was not. The complaints were regarding both individuals and were the same low level in nature.

[157]Detriment 3.3.5 relates to the security team questioning the Claimant and alleged aggressive behaviour. We have made findings of fact above. These detriments did not occur.

[158]Detriment 3.3.6 relates to security collecting of the Claimant for his hearing in relation to the second grievance when the grievance related to the conduct of security. We accept that the Claimant was escorted to a grievance hearing at which he was complaining about the very individual that was escorting him. It is about as obvious as it could possibly be that this should just not happen. It is so incompetent that this in and of itself tends to indicate that it is a mistake rather than nefarious. If it was malign it would be an exceptionally stupid thing to do particularly bearing in mind the CCTV availability but also given the ease with which the Claimant raises his dissatisfaction to others.

[159]We've also made findings of fact above regarding Mr O'Brien as to the instruction that he gave as to what he intended to happen. Mr O'Brien's instruction appears to have been ignored or he did not make it clear enough. We would simply make the point that if a complaint is about the people in the department who are escorting people to meetings then a manager at Mr O'Brien's level should realise they should not be involved even in receiving a phone call about that meeting. We do not find any of this to be victimisation on these facts.

[160]Detriment 3.3.7 is about dealing with allegations against the Claimant on the same day whilst not investigating accusations of racism so quickly. In making this point the Claimant seeks to draw a distinction between the length of time it took to investigate his emails and allegations and the way in which Ms Thurlow’s complaint was picked up quickly.

[161]Even though Ms Thurlow’s complaint was not picked up on the same day, it is right to say that her complaint was picked up far more quickly than the Claimants emails. However, we agree with the Respondents submission that the Claimants emails and allegations were more complex than the relatively low level point that Ms Thurlow appears to have been raising. Ms Thurlow also does not appear to be raising a formal grievance. They are not remotely comparative circumstances. The time it took to investigate the Claimant’s grievances was not an act of victimisation. In so finding that does not mean that we endorse the various processes that have been followed by the Respondent in this case.

[162]At this point it is convenient to consider detriment 3.3.28. This is an allegation that the Respondent failed to properly investigate Ms Thurlow’s allegations.

[163]We have already found there a number of problems with the investigation itself in terms of timing, lack of recording of the complaints from a lack of HR involvement but those are all points which would benefit the Respondent more than anything. The allegations against the Claimant were not pursued and there's no detriment as a result. We would also just pause a note here a wider point if the Respondent really was out to get the Claimant then complaints by individuals such as miss Thurlow would be pursued further, would be taken further and documented so is to act with a view to getting the Claimant out of employment. The fact that this is not pursued and that the response is not taking every opportunity to rid itself of the Claimant is evidence that relates to the overall rejection of the case theory that the Respondent was out to get the Claimant as a result of his protective disclosures.

[164]It is also convenient to consider detriment 3.3.33 which relates to the producing of notes from that meeting. The fact of the notes not being produced is agreed. We do not consider this to be caused by the Claimants protected acts. It is not an act of victimisation it is an act of incompetence. We have considered whether not the incompetence is a cover for more malign intent and we do not find so. The Claimant has not put forward any evidence to suggest that there was some key or devastating point contained within those notes that would require their destruction.

[165]Detriment 3.3.8 is an allegation of the fabrication of evidence so as to dismiss the Claimant. The Claimant has not demonstrated that any evidence has been fabricated. Elsewhere in this Judgment we have considered the dismissal, the reason for it, the process followed and the evidence gathered. Therefore this point must be read alongside those conclusions.

[166]This is a wide-ranging allocation which appears to be a bold assertion save for one point. In evidence there was significant focus on the discrepancy between the screenshots provided in relation to Mr Javid and the timings of when the street Google Street View search was said to have occurred. As noted elsewhere the Tribunal accepts that there is a discrepancy. We do not accept that it then follows that the allegations have been “fabricated” . It would have been better for the Respondent to resolve this discrepancy as part of its decision making or in evidence before us. We suspect the core reason as to why that has not happened is that the dismissal letter makes clear that's the core allegations against the Claimant are not dependent on this. Most of the reasoning in the dismissal letter is concerned with a different point, i.e. that the Claimant was accessing the Respondents systems in order to obtain addresses and telephone numbers. Therefore even if there were fabrication (which is not established at all) it would not have it did not result in his dismissal because he was dismissed for a different point.

[167]Detriment 3.3.9 relates to the conduct of the grievance investigation and specifically references the failure to interview some individuals. We have some criticism of the grievance process as noted above, but that is far removed from a finding that the individuals were not interviewed as an act of detriment because the Claimant had raised grievances. Our criticisms relate to the relatively junior level of management assigned to the task, naivety and a lack of HR involvement. These points all lend themselves to the making of mistakes, procedural errors rather than something happening as an act of victimisation.

[168]It is also important to note at this stage that we are not carrying out a general inquiry into the Respondent. We are asking ourselves whether or not there is a causal link between the protected act and the conduct of the grievance investigation. We consider that there are problems with the scope of the grievance investigation. It is a disputed fact as to whether not the Claimant agreed with the list of witnesses at page 190. However, the Claimant is also wrong when he says that Kane Connolly was not interviewed. Mr Connolly was interviewed as part of the grievance process albeit by someone more senior. We agree it would not have been appropriate for Mr Connolly to be interviewed by a member of staff more junior to him and therefore Mr Connolly was interviewed by a more senior member of staff.

[169]This does raise a curious point. Because the investigation of other staff is being conducted by a more junior member of staff. He in turn is responsible for the compiling of the investigations and making relevant findings. A concern that someone should not be interviewed by someone more junior that makes perfect sense. However it also then follows that the relevant grievance decision making should be conducted by someone of appropriate seniority in the first place. The Respondent is a large company and points like this should be obvious.

[170]We are clear however that whatever failings there are in terms of the scope of the investigation or the quality of the questions asked during the investigation, that these are not caused in and of themselves by the facts of the Claimant raising grievances.

[171]Detriment 3.3.10 is an allegation relating to Mr. Connolly failing to act and follow up on the Claimant’s complaints. Detriment 3.3.14 is a duplication. This is also linked to detriment 3.3.12 and 3.3.13 We do not find any of these points to be an act of victimisation. Firstly it would appear that this e-mail is prior to the protected acts the first act being on the 24th of January 2023. Further, whatever criticisms may or may not be made of how this was followed up by Mr Connolly there is simply no basis on which it can be said this is because of the Claimant’s protected acts.

[172]Detriment 3.3.11 is an allegation that Mr. Connolly said that the Claimant was the problem and spearheading a campaign against him. This was following the Claimant helping Wasim in his grievance. The Claimant has not proven the central factual allegation.

[173]We recognise that we have not heard from Mr. Connolly. We have weighed this up as part of our consideration of the evidence. The Claimant asks us to draw an inference from the absence of Mr. Connolly. The problem in relation to this detriment is that what is alleged to have occurred is not what is contained within the notes. What is in the notes is Mr. Connolly expressing concern regarding the Claimant’s general behavior.

[174]We do not find that the Claimant has proven that the words alleged were used. We have concerns noted elsewhere regarding the Claimant’s credibility in terms of putting forward information which is exaggerated or an inaccurate portrayal of what did actually occur.

[175]On a broader basis in terms of Mr Connolly expressing concerns regarding the Claimant at work we do not find that this is because of the protected acts. It has all the hallmarks of a manager attempting to manage an employee who is becoming increasingly difficult to manage. The Tribunal readily recognises that where someone assists another employee or puts their head above the parapet there is a risk of them being victimised. This is not what is happening here. We consider that this reasoning also applies to the Claimant being labelled a troublemaker at para 3.3.31 of the list of issues. It appears to be the same or similar point.

[176]Finally on this point, we would also note that the Claimant did not have a good relationship with Mr Connolly prior to his grievances. This state of affairs existed prior to the protected acts. The basis for establishing causation simply is not there.

[177]Detriment 3.3.15 is failing to address the Claimants claims of victimisation made in an email of the 29th July 2023. Detriment 3.3.25 appears to be the duplicate of this or at least a similar point. The most fundamental problem with this is that of causation. It is difficult to see how the Respondent can be said to be ignoring the Claimant’s claims of victimisation because of the fact that he has made protected acts in which he has claimed victimisation.

[178]Detriment 3.3.16 alleges that Mr. Gilroy told the Claimant that his grievance was a ‘waste of time’ and that he should not be doing it. We have not found that these words were used. However, we also accept the Respondents submission that these points were not pursued in evidence.

[179]Detriment 3.3.17 and 3.3.19 appear to be the same point. They are linked to the detriment already considered above regarding the Claimant using working time in relation to his ‘blog’. We accept the Respondents submission that this was not advanced in the evidence by the Claimant nor was any of the Respondents witnesses, most notably Mr Gilroy. The best that can be said of the evidence that we did hear is that Mr Gilroy wanted people working whilst they were on the warehouse floor. This is not an act of victimisation.

[180]A team leader coming over in a warehouse environment to people whether it is in respect of people gathering and laughing or generally standing around we would suggest is a common occurrence. We find that in a warehouse environment shift managers and then those above the shift managers are under pressure regarding productivity and will frequently in a warehouse environment prompt staff to stop loitering and get on with things. At the same time the Claimant in the pursuit of his case is not established any link between this and the protected act.

[181]Detriment 3.3.18 concerns the statement that Mr. Gilroy admitted to knowing Mr. Connolly was using the Claimant for victimisation. We sought clarification from the Claimant as it is far from clear what the allegation is. It appears that the allegation is meant to be that Mr. Connolly is victimising the Claimant and that Mr. Gilroy has admitted to this. We do not find that Mr. Gilroy made any such admission. If there was such an admission, it is right that this could be relevant background evidence, but it would not in and of itself be a detriment caused by the protected acts.

[182]Detriment 3.3.23 is an allegation that that Arif Jan had said ‘stop laughing’ on 6th April 2023 and state that Mr Connolly had sent him and then state it was a joke. We accept the Respondents submission that this was not covered in the Claimants witness statement. He was however cross examined on it and in cross examination accepted that this was based on no more than an assumption that this was caused by the grievance. We do not find that this was caused by the protected act, there is nothing which establishes the basics of causation.

[183]Detriment 3.3.24 is an allegation that on the 30th of April 2023 the Claimant was blamed for other people's mistakes. In cross-examination, the Claimant abandoned this point.

[184]Detriment 3.3.32 is an allegation regarding the group of colleagues and referencing Stephanie Thurlow Harry John Jonathan Hayes and Nathan Gilroy agreeing to work with Kane Conley to victimise the Claimant having remove from work. There is no evidential basis whatsoever for this. This is potentially distinct from the fact of the Claimant being dismissed but there is no evidence of a wider conspiracy to try and get the Claimant dismissed. In terms of the Claimants dismissal that was caused by him undertaking the searches that were not permitted.

[185]The common thread running through most if not all of the above detriments appears to be a common misapplication of the law on victimisation. Simply because something has happened or is alleged to have happened does not make it victimisation. Or simply because there is a protected act, it does not follow that anything bad which happens after that must be because of the protected act. There must be a protected act and there must be causation between the protected act and the detriment. Direct Race Discrimination

[186]The Claimant relies upon his race or the race of his wife by way of associative discrimination.

[187]Detriment4.1.1 is the point that the Claimant was not promoted to supervisor. We have already made a number of findings of fact on this point above. This was not an act of direct race discrimination. The Claimant did not apply for the promotion through the proper process. This was the reason for the Claimant’s application being taken any further. Furthermore, the role was obtained by Mr. Gilroy. Mr. Gilroy is white. This is an actual comparator and we consider this to be a complete answer to the claim that this was an act of direct discrimination. Even if we disregard this and use a hypothetical comparator, this would not alter the outcome. In considering any alleged associative discrimination, no link has been established between this and the race of the Claimant’s wife. 188.

4.1.2 is a detriment of enforcing a rule of only speaking English and preventing the speaking of Urdu. It was established in evidence that this was not detrimental to the Claimant. Rather this is alleged treatment of other people which the Claimant is seeking to report and rely upon. None of these individuals have brought a claim to the Tribunal.

[189]Detriment 4.1.3 is the allegation is that Darren Whittle told the Claimant he should not be helping people of a different ethnicity. In evidence the Claimant accepted that this was not made because of his race. However he pursues the point as a claim of associative discrimination because his wife is Indonesian. The Respondent has not called Mr Whittle as a witness. No evidence on this point was contained in the Claimant’s witness statement, though there is a reference in his blog document. In evidence, the Claimant accepted that this does not include Mr Whittle’s comments. On balance, we have decided that the Claimant has not established that these words were used.

[190]If we are wrong on that, we have looked at the associative discrimination point. The Claimant asserts that this is because of his wife’s Indonesian nationality. We do not accept that this is the case. It appears to be a point about other ethnicities, but it does not follow that this is a reference to Mrs Atmanjantini. It was Wasim whom the Claimant had been primarily assisting.

[191]Detriment 4.1.4 is the Claimant alleging as an act of direct race discrimination to allow Stephanie Thurlow to conduct an investigation into race discrimination when she had been accused of race discrimination. The basic fact of Ms Thurlow being accused of race discrimination has not been established. The Claimant was not present at any meeting or other event when this was said to have happened and has no direct evidence on the point. In any event it is not possible to see how this was an act of direct race discrimination or associative discrimination. It is hard to see how this can be ‘because of’ race.

[192]Detriment 4.1.5 is an allegation that Claire Dennnis and Ahmed Nur told racist jokes which were tolerated. This is not dealt with in the Claimant’s witness statement or his subsequent grievances. The height of the evidence is the Claimants blog document and referring to an incident on the 17th January 2023. In cross examination the Claimant accepted that this was not detrimental to him. He further accepted that this was not because of his race or that of his wife.

[193]We consider that the Claimant’s concessions are sufficient to dispose of this point, but we have nonetheless considered the wider evidence. It is said to occur in January 2023 but is not then referenced again with no grievances or complaints being made about it at a time when other grievances and complaints are being made. At best these are events being relayed to the Claimant which he has then referenced in his blog document, i.e. double hearsay. We do not consider this to be an act of direct discrimination.

[194]Detriment 4.1.6 is said to be the failure to interview Nadia Asif for the Claimant’s grievance. Neither side has called Ms Asif as a witness. The Claimant has not addressed this allegation his witness statement and he did not challenge Mr Whitaker about it in cross examination. We accept the Respondents submission and accept Mr Whittaker’s evidence on the point. His evidence was that the reason why Nadia Asif was not interviewed was because she was not named in the grievance. We consider this to be a straightforward explanation. This is not an act of direct race discrimination or associative discrimination. The reason why Nadia Asif was not interviewed was not because of race. Whistleblowing

[195]We first considered which of the disclosures relied upon amounted to a protected disclosure.

[196]The e-mail of the 24th of January 2023 which is already a protected act for the purposes of the Equality Act is also a protected disclosure. It discloses information to Debbie Croft and Nicola Kowaczuk regarding alleged racism within the Respondent. The need to comply with the Equality Act is a legal obligation. It is also in the public interest for matters of discrimination to be raised. We consider that the Claimant has established the fact of the protected disclosure by producing the e-mail at page 24 of the bundle and the contents of that e-mail. The contents of the e-mail are self-evident and do not require embellishment via oral evidence. We therefore reject the Respondents admission on whether there has been a protected disclosure on the 24th of January 2023.

[197]In respect of alleged disclosures on the 3rd February 2023 and the 15th May 2023 the fact of these disclosure have not been proven on the facts. There is no document in the bundle. It does not form part of the Claimant’s witness statement. The Respondent cannot be expected to respond where no positive case has been put.

[198]The final potential disclosure is said to be the e-mail on the 28th June 2023, a copy of which is in the bundle at page 381. This e-mail is distinct from the e-mail of the 24th of January. The Claimant has not proven that he is disclosed information in the public interest. Rather, this document appears to be making a series of allegations in very broad terms.

[199]Therefore, the Claimant has proven the fact of one protected disclosure. This disclosure is already a protected act for the purposes of the Claimant’s victimisation claim.

[200]We have considered whether there is any distinction between the public interest disclosure case and the victimisation case.

[201]In a public interest disclosure detriment case, s,48(2) Employment Rights Act 1996 provides that it is for the employer to show the ground on which the act was done. This is a distinction between the approach to victimisation and ERA detriment cases.

[202]We have considered the detriment case separately. We do not see any material distinction in terms of this Respondents motivation based upon whether or not this is a protected act or a public interest disclosure.

[203]We have also considered whether the application of s.48(2) provides for a different result. We have concluded it does not. The findings of fact and the reasoning is not affected.

[204]For the sake of completeness, if we are wrong regarding the email of the 28th June being a protected disclosure, then we have considered whether or not any detriment was caused by it. We have found for the reasons given above that no causation is established. That email did not in and of itself cause an adverse reaction by the Respondent to the Claimant. Time Limits

[205]At this point we record for the state of completeness the position regarding time limits. Based upon the EC Certificate date A being 21st June 2023, anything prior to 22nd March 2023 may be out of time.

[206]In respect of the claims under the Equality Act we do not find that there was an act extending over a period or a continuing state of discriminatory affairs as defined in Hendricks v Commissioner of the Police for the Metropolis

[2003] IRLR 96

. There are lots of different people involved at different stages. There is no single thread and whilst no point is determinative, what is before us is a series of disparate incidents involving different people.

[207]It is not just and equitable to extend time. It is not just and equitable to extend time on the basis that there was evidence that the Claimant was aware of his ability to make a claim to the employment tribunal and given the number of references to the tribunal or tribunal proceedings, there appears in some form to be a positive decision to not go to Tribunal earlier. The trigger for the issuing of proceedings was the Claimant’s dismissal.

[208]There is evidence of the Claimant being aware of time limits due to Wasims case. (e.g. pg. 32). There is a prejudice to the Respondent in facing in 2025 matters relating to 2023 and before not least in relation to it's witnesses ability to record or recall evidence. Whilst the Respondent has been criticised for failing to call witnesses, it is also right to say that the expiration of time has caused the Respondent real difficulty in securing witnesses. We recognise that we are concerned with the effect of the delay rather than the overall length of the litigation, but we find that if proceedings were issued earlier, it may have been possible for the Respondent to put forward a more cogent defence.

[209]The Respondent did not have access to the Claimant’s blog at the time. Fact management in this case has been a real challenge because of the lack of coherence in the claims made and the cogency of the evidence has been affected by the expiration of time. Therefore we would not have extended time.

[210]Claims for detriment as a result of public interest disclosure apply the reasonable practicability test. We do not see the link between any of the alleged detriments. It was reasonably practicable for the Claimant to put his claim within time. He was aware of the existence of the Tribunal, he was able to use the Internet for example Google, he did not take positive steps to go to the Tribunal when he was capable of doing so. There was no large or small barrier to the Claimant submitting a claim to an employment Tribunal if you wish to. Therefore it was really practical for the Claimant to admitted his claims in time if he wants to bring them and he did not do so. s.103A – Automatically Unfair Dismissal

[211]In terms of the claim for automatic unfair dismissal under s.103A Employment Rights Act 1996, we do not find that the reason or principal reason for the dismissal was an alleged public interest disclosure.

[212]We have also considered whether this was a ‘fruit of the poisoned tree’ situation as per Royal Mail v Jhuti UKSC 55 and have concluded that there is no evidential basis for this. The objective evidence of the conduct issue and how it arose has been established.

[213]It is clear that the genesis of this situation was the obtaining of information and Mr Gilroy bringing this to the attention of Mr Connolly.

[214]In making the above finding we have taken a step back and looked at the overall position. We have looked at the chronology of this matter and the evidence we have heard. We recognise that this situation is not occurring in a vacuum. It is occurring at a time when the Claimant is in significant dispute with the Respondent initially in the form of internal grievances but subsequently in the form of legal proceedings. We as a Tribunal readily recognise that an employee who puts their head above the parapet and challenges their employer is potentially in some circumstances putting their job at risk. We are not unworldly or naive to this. However, in the present case we have asked ourselves the question as to whether or not the Respondent is viewing this opportunistically and we have answered that question in the negative.

[215]The genesis of this dismissal is the fact that the Claimant has done something wrong, that has been brought to the attention of his employer, what he is alleged to have done wrong is serious. The fact someone may have issued proceedings or made previous grievances is not a shield that protects them from doing things that they should not be doing. The hard won protections against retaliation in the workplace exist so as to protect employees raising concerns regarding the Equality Act or making public interest disclosures. They do not in turn authorise an employee's own misconduct.

[216]The law is replete with authorities making distinctions between the fact of a complaint and the methods used during a complaint or the fact of a disclosure and the methods used as part of the disclosure. (e.g. Kong v Gulf International Bank (UK) Ltd

[2022] ICR 1513

). This distinction is potentially relevant in this case. Even though the Claimant has not specifically relied upon the gathering of evidence as a protected act this is not a case in which the protected act and the misconduct are one and the same. The Claimant in obtaining information unlawfully from the Respondent systems is acting distinctly from the fact of his assistance to another person or himself or another person or in making alleged public interest disclosures. The two are plainly divisible on these facts. Unfair Dismissal

[217]We turn now to the claim for unfair dismissal. The first issue to determine is the reason for dismissal. The burden of proof is on the Respondent to prove the reason for dismissal.

[218]The Respondent has proven on the balance of probabilities that the reason for dismissal was conduct.

[219]Given the proximity of the allegations against the Claimant to the timing of the receipt of the ET 1, of our own volition, we have asked ourselves whether or not something more was going on here. The ET 1 is not pleaded as a protected act and therefore this point has not been pursued under the Equality Act. Nonetheless, the timing is such that we consider that the timing of these allegations fall to be considered when considering the reason for dismissal under the Employment Rights Act 1996.

[220]Much of the underlying reasoning in respect of the s.103A claim is also applicable here and should be taken to be repeated. However, if the point were put a different way and it was the ET 1 that was said to be the reason or principal reason for the dismissal, is there a basis for this? We have reminded ourselves of the approach to the reason for dismissal in Abernethy v Mott Hay and Anderson

[1974] ICR 323

. Like the s.103A case, we have concluded that the Respondent has proven the genesis of the discovery of the conduct issue. This was separate to the submission of the ET 1.

[221]In terms of the belief of the Respondent, we accept the evidence of Mr Gledhill, the relevant decision maker. His evidence as per his witness statement was that the majority of events were agreed between the Claimant and the Respondent by the time of the conclusion of the disciplinary hearing. That is to say that:a. the fact of the data being taken from the Respondents systems was not in dispute.

b. What was in that data in the form of names, addresses and telephone numbers was not in dispute.

c. That the data was outside the control of the Respondent as a result.

[222]Therefore the Respondent held the above beliefs and held them on reasonable grounds.

[223]The Respondent carried out such investigation as was reasonable in all the circumstances of the case. Again this has to be seen in the context of there being admissions.

[224]There was one point of particular dispute which was explored during the course of the Tribunal hearing. The dates of the incident provided by Mr Javid as part of the investigation were not followed up by the Respondent as part of the investigation or disciplinary. If this was material to the overall outcome, it could have significance.

[225]However as noted above the evidence of Mr Gledhill was that the account given by Mr Javid was of limited relevance to the overall final decision. He acknowledged the discrepancy in dates but said that he took the view that the substance of the point being made by Mr Javid was believable.

[226]It was within the range of reasonable responses for Mr Gledhill to believe the core of the evidence of Mr Javid but in any event this was not a crucial part of the decision to dismiss.

[227]The Respondent followed a fair procedure in dismissing the Claimant. He was given sufficient notification of each meeting and was given the appropriate correspondence in advance of each meeting together with any relevant evidence. He had time to consider his position and had sufficient opportunity to advance any dispute that he wished. Again this is all in the context of the core facts not being substantially in dispute.

[228]The decision to dismiss the Claimant was within the range of reasonable responses open to an employer. The most charitable view of the Claimant’s case is that he has done something foolish but though that he was doing (from his perspective) for honourable reasons. That approach is simply too generous to this situation. The Claimant knew that he should not be obtaining people's personal data from the Respondents systems.

[229]The Respondent had in place an IT policy. The Claimant had signed and agreed the most recent version. However we do not consider that it is necessary to overly focus on policy. Ultimately, an employee in 2023 should know that they are not to go onto the systems of their employer in order to obtain an employees personal information without their consent. This is a serious use of personal data and can lead to a number of consequences.

[230]We also returned to the point that this is not a case in which there is just a bland assertion of people being worried that their data has been obtained. Rather, there are specific concerns identified and the specific wish by individuals that their data had not been taken by the Claimant. They did not want the Claimant to know their home address. Reading the various minutes in the bundle, there is a concern regarding the Claimant attending their addresses generally but also a noted concern of the Claimant having previously been in the army.

[231]Mr Gledhill had an open mind regarding the alternatives to dismissal and he determined that none of the alternatives were available to him and the dismissal was the correct sanction.

[232]The Claimant did not appeal his dismissal and therefore, consideration of the dismissal process concludes with he disciplinary hearing. The Claimant was fairly dismissed. Wrongful Dismissal

[233]It is for the Respondent to prove on the balance of probabilities that the Claimant was in fundamental breach of contract. A fundamental breach must go to the root of the contract between the parties. The Respondent has established this fact.

[234]Based on the evidence heard, the documents and the admissions made by the Claimant a number of facts are established. The Respondent was the controller and processor of personal information, which included personal details of its members of staff. The Claimant did not have a lawful purpose to access that information. He did not have permission to access that information. The Claimant accessed that information which was held on the Respondents systems.

[235]The purpose behind the Claimant taking this data was to obtain information so that he could obtain witness orders in respect of these individuals. The Claimant had not tried alternative routes to obtaining this information voluntarily or through the Respondent.

[236]The Claimant took this personal data and a) put it on his work lap top. b) emailed it to himself and c) printed it out. In the context of data protection, all of these three elements are significant. It means that not only the data has been accessed but that it has escaped the control of the data controller.

[237]There is also the effect of this conduct on the employees of the Respondent. This goes beyond a mere assertion that employees were affected. The Tribunal heard evidence that employees were concerned that the Claimant would attend personally at their homes. In one instance, there was a vulnerable family member at home, whom the staff member was particularly concerned about.

[238]The conduct of the Claimant would on the face of it place the Respondent in breach of the Data Protection Act 2018 regarding the processing of data and the fact of the data escaping the control of the Respondent.

[239]Having regard to the test as set out in Adesokan v Sainsbury’s Supermarkets PLC the Tribunal finds that the above points go to root of the relationship between the parties. It is sufficiently serious to amount to a fundamental breach. The Respondent can and does legitimately assert that it could not trust the Claimant, that it could not trust the Claimant not to repeat the conduct and that it was sufficiently serious so as to amount to gross misconduct.

Conclusion

[240]The result of all of the above is that none of the Claimant’s claims are well-founded and are dismissed.