Mr E WanyoikeClaimantFaith in Nature LtdRespondent
Before
Employment Judge McDonaldIn person for claimantMr A Weiss (instructed by Counsel) for respondentDate 1 August 2025
JUDGMENT
[1]The following complaints of direct race discrimination in breach of s.13 of the Equality Act 2010 and of race-related harassment in breach of s.26 of the Equality Act 2010 are dismissed on withdrawal by the claimant:(1) Allegation 4.1.6: On 29 July 2022, Maciej, a supervisor, shouted at the claimant, saying he had told the claimant the previous day, not to move the pallets [meaning on the computer system]. He did not stop shouting when the claimant asked him to stop shouting and stop talking to him as if he were a child.(2) Allegation 5.3.6: On 29 July 2022, Maciej, a supervisor, shouted at the claimant, saying he had told the claimant the previous day, not to move the pallets [meaning on the computer system]. He did not stop shouting when the claimant asked him to stop shouting and stop talking to him as if he were a child..3.6?(3) Allegation 5.3.7: Dismissing the claimant, incorrectly alleging that the claimant had shouted at Maciej.[2]All the other complaints of direct race discrimination fail and are dismissed.[3]All the other complaints of harassment related to race fail and are dismissed.[4]The complaint of victimisation in breach of s.27 of the Equality Act 2010 fails and is dismissed.[5]The complaint of unfair dismissal fails and is dismissed.[6]The complaint of unauthorised deductions from wages fails and is dismissed.[7]The complaint of breach of contract fails and is dismissed.
REASONS
[1]The claimant filed his claim form on 5 November 2022 In his claim form, the claimant ticked boxes to complain of unfair dismissal, discrimination on the ground of sex and race, and to make claims for unpaid wages and holiday pay. In the larger box at section 8.1 the claimant indicated that his claim included a complaint of harassment.[2]The final hearing of the case took place in person at Manchester Employment Tribunal. The claimant represented himself. The respondent was represented by Mr Weiss of counsel.
The Issues
[3]The issues in the case were clarified at 2 case management preliminary hearings. Employment Judge Slater conducted the second case management preliminary hearing on 18 May 2023. By the date of that hearing the claimant had withdrawn complaints of sex discrimination and a claim for unpaid holiday pay. Those were dismissed by a judgment dated 29 March 2023.[4]The agreed List of Issues from the hearing conducted by Employment Judge Slater is attached as an Annex to this Judgment. The pay claim[5]At points 8 and 9 of the List of Issues Employment Judge Slater had identified the claimant's claim of unauthorised deductions/breach of contract as being one that he had not been paid overtime that he was due in the period February to August 2021. The claimant had been ordered to provide a Schedule of Loss setting out how much compensation he was seeking in relation to each of his complaints and how the amounts had been calculated (para 2.1 on p.48). His Schedule of Loss included total figures for “unpaid overtime” and “denied shift allowances” but did not show how those had been calculated nor to what period of time they related.[6]At the start of the final hearing, we explained to the claimant that it was for him to explain what monies he said he was due but had not been paid and how he had calculated them. We directed that the claimant provide an updated Schedule of Loss identifying the amounts claimed for the period February to August 2021 by the start of Day 2 of the hearing. He did not do so, saying that he still needed timesheets from the respondent. The claimant then confirmed he had received the timesheets but had not been able to update his Schedule of Loss to take them into account. It was not clear why that was the case.[7]The claimant did provide a handwritten Schedule of Loss on Day 4 of the hearing. As we have explained below, we refused an amendment to add a claim in relation to alleged deductions in June and July 2022. That left a claim that there had been an unauthorised deduction of £250 made from the claimant's payslip for June 2021 (page 180 of the bundle). Withdrawal of allegations 4.1.6, 5.3.6 and 5.3.7[8]During his cross-examination evidence the claimant confirmed that he was not alleging that his treatment by Marek Borkowski on 29 July 2022 (allegations 4.1.6 and 5.3.6 in the List of Issues) was because of race or was race-related. To ensure that we were absolutely clear about which allegations in the List of Issues the claimant was still saying were acts of direct race discrimination or race-related harassment, we allowed the parties a brief adjournment. After that, the claimant confirmed that he was withdrawing allegations 4.1.6 and 5.3.6. He also confirmed he was withdrawing the allegation that his dismissal was an act of direct race discrimination (allegation 5.3.7). We have dismissed allegations 4.1.6, 5.3.6 and 5.3.7 in our judgment. The claimant confirmed he was still going ahead with all the other allegations of direct race discrimination and race-related harassment in the List of Issues.[9]As we explain in the next section, during the hearing the claimant made 2 applications to amend his claim. We refused both. We explain why below. Because we refused those applications the final List of Issues we needed to decide remained that in the Annex apart from withdrawn allegations 4.1.6, 5.3.6 and 5.3.7 and the clarification that the claimant’s unauthorised deduction/breach of contract claim at issues 8 and 9 was about the £250 deduction in June 2021. The claimant’s applications to amend The first application to amend[10]At the start of the hearing we discussed the List of Issues. The claimant referred to incidents in 2021 which were not included in that list. The claimant confirmed that he was making an application to amend to add 3 further allegations:(1) That in March 2021 the claimant’s colleague, Jimmy, played African/American music which included swearing and use of the “n” word, came to the table where the claimant was and sang along to it “at” the claimant, and followed the claimant when he attempted to move away;(2) That in December 2020 or January 2021 Jimmy held onto the forklift truck the claimant was driving for 4-5 minutes to stop him moving it.(3) That in dealing with those 2 incidents the claimant’s line manager at the time, John Casey, treated the claimant less favourably because of race by deciding that the claimant was at fault in both incidents, sending him home in both cases without giving him the chance to put his version of events.[11]The claimant said that the first 2 two incidents were acts of race-related harassment. He said Mr Casey’s treatment of him was direct race discrimination.[12]The respondent objected to the application to amend. The Employment Judge explained the law relating to amendments to the claimant, referring in particular to the balance of hardship and injustice test in Selkent Bus Company Limited v Moore [1996] ICR 836 and the guidance in Vaughan v Modality Partnership UKEAT/0147/20/BA. We adjourned to allow the claimant to prepare his application. Having heard his submissions we adjourned to allow Mr Weiss to take instructions then heard his submissions for the respondent. Having heard those submissions and having given the claimant an opportunity to reply we deliberated on our decision over the lunch break.[13]We refused the application to amend. In doing so we took into account the guidance in Selkent and Vaughan. We gave oral reasons for our decision and explained to the claimant that he was entitled to ask for those reasons in writing. He did not do so.[14]In reaching our decision we took into account the claimant’ submission that there was contemporaneous documentation relating to the incidents, including nine witness statements in relation to the first incident. None of that documentation was in the bundle of documents for the hearing and neither Jimmy nor Mr Casey were due to give evidence at the hearing. We found that the lateness of the application, the passage of time since the incidents and the disruption it would cause to the final hearing if they were allowed meant the balance of hardship and injustice was in favour of refusing the application. That was particularly given that the issues in the case had been discussed and agreed as far back as May 2023. The second application to amend[15]On Day 4 the claimant made a second application to amend. That arose from the updated Schedule of Loss he produced on the morning of Day 4. It included the £250 deduction in June 2021 but also amounts he was claiming for June and July 2022. We discussed that with the parties. The claimant confirmed that he was seeking to amend his claim to add a complaint that the respondent had made unlawful deductions from his wages by failing to pay him for the 2 periods when he had walked out of work in June and July 2022.[16]Having heard the parties’ submissions, we refused the application to amend. We gave oral reasons for doing so and the claimant confirmed he did not want those reasons in writing. In summary, we decided the balance of hardship was against granting that amendment given how late in the proceedings the application was made, the fact that the List of Issues had been clearly settled since May 2023 and that the respondent would be disadvantaged by having to deal with a wholly new complaint which had never been to date part of the claimant’s claim. Evidence Bundle of documents[17]The parties had been ordered to agree a bundle of documents for the final hearing. The respondent had produced the final hearing bundle which consisted of 589 pages. The claimant, however, brought his own bundle of documents to the hearing. He only had 1 copy of his bundle. He confirmed that there was overlap between the documents in his bundle and those in the respondent’s bundle. We directed the parties to work out between them which, if any, documents in the claimant’s bundle were not included in the respondent’s bundle. At the start of Day 2 the following were added to the respondent’s bundle by agreement:• Correspondence between the claimant and the respondent’s representative (pages 590-596);• A document produced by the claimant recording his weight loss during time when he was employed by the respondent. The claimant said this demonstrated the impact of events on his health (p.597).[18]We used that combined bundle (“the Bundle”) for the hearing. References in this judgment to page numbers are references to pages in the Bundle.[19]During his cross-examination evidence on the morning of Day 3 of the hearing the claimant referred to emails which he said he had sent to Nicola Shewring about wanting to speak to Rivka Rose, the respondent’s founder, about the way he was treated at work. They were potentially relevant to the claimant's victimisation claim but were not included in the Bundle. After taking instructions, Mr Weiss confirmed that the respondent did not object to the emails being added to the final hearing bundle. The claimant suggested that the email exchange took place in June 2022 but the emails in fact dated from 22 September 2022, after the claimant's dismissal and prior to his appeal hearing. They were added to the Bundle at pp.598-601. Witness
Evidence
[20]We had a written witness statement from the claimant.[21]For the respondent we had written witness statements from the following:• Candice Brett (Ms Brett) the respondent’s Finance Director and the dismissing officer in the claimant’s case• Emma Baxter (“Mrs Baxter”) the respondent’s Technical Director and the appeal officer in the claimant’s case• Nicola Shewring (“Mrs Shewring”) the respondent’s HR Manager• Duane Manning (“Mr Manning”) a Warehouse Operative• Kim Shawcross (“Mrs Shawcross”) a Warehouse Operative• Maciej Borkowski (“Mr Borkowski”) Warehouse Supervisor. Mr Borkowski’s first name was spelled “Majek” in the List of Issues. We have corrected that in the version annexed to this judgment.[22]At the start of the hearing Mr Weiss explained that although Ms Brett had made a written witness statement, she would not be attending the hearing to give oral evidence. He explained that Ms Brett was unavailable to give evidence because she was subject to ongoing disciplinary proceedings. Mrs Baxter had served a supplementary witness statement dealing with the situation. Mr Weiss indicated that he would be asking the Tribunal to give Ms Brett’s statement weight as hearsay evidence.
The Hearing
[23]On Day 1 of the hearing we considered and dealt with the preliminary matters set out above. We spent the rest of Day 1 reading the witness statements and key documents in the Bundle.[24]We were due to start hearing the claimant's evidence on Day 2. The claimant had not provided an updated Schedule of Loss. That meant it was not clear what payments he said the respondent had failed to make in February to August 2021 (8.1 and 9.1 in the List of Issues). Mr Weiss explained that the claimant had identified further documents which he needed to update his Schedule of Loss. We were concerned that delaying the start of the claimant’s oral evidence until the Schedule of Loss was updated might risk the hearing being part-heard. We decided to adopt Mr Weiss’ pragmatic suggestion of hearing the claimant’s oral evidence about the discrimination, harassment, victimisation and unfair dismissal complaints. That allowed the claimant further time to prepare the amended Schedule of Loss. We agreed that the claimant could be recalled later in the hearing to give oral evidence about the unlawful deduction/breach of contract complaint if required.[25]On Day 2 and the morning of Day 3 we heard the claimant’s oral evidence on all issues apart from the pay claim.[26]We heard Mr Manning’s evidence and Mrs Shawcross’s evidence on the afternoon of Day 3. We heard Mr Borkowski’s evidence, Mrs Shewring’s evidence and Mrs Baxter’s evidence on Day 4.[27]At the end of Day 4 the claimant was recalled and cross examined by Mr Weiss about his deduction of wages/Breach of contract complaint.[28]We heard the parties’ submissions on the morning of Day 5. We reserved our decision. We deliberated in chambers on the afternoon of Day 5.[29]The Employment Judge apologises that his absence from the Tribunal for various reasons including ill health has led to a delay in finalising this judgment. The Tribunal is grateful for the parties’ patience in this regard. Relevant Law Unfair Dismissal
Relevant Law
[30]The unfair dismissal claim was brought under Part X of the Employment Rights Act 1996 (“ERA”).[31]The primary provision is section 98 which, so far as relevant, provides as follows: “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –(a) the reason (or, if more than one, the principal reason) for the dismissal and(b) that it is either a reason falling within sub-section (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this sub-section if it … relates to the conduct of the employee … (3) … (4) Where the employer has fulfilled the requirements of sub-section (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case”.[32]The reason or principal reason for dismissal is derived from considering the factors that operate on the employer's mind so as to cause him to dismiss the employee. In Abernethy v Mott, Hay and Anderson [1974] ICR 323, Cairns LJ said, at p. 330 B-C: "A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee."[33]The burden is on the employer to establish that there was a potentially fair reason for dismissal. If the employer fails to show a potentially fair reason for dismissal (in this case, conduct), dismissal is unfair. If a potentially fair reason is shown, the general test of fairness in section 98(4) must be applied.[34]When an employee positively asserts that there was a different and inadmissible reason for their dismissal, they must produce some evidence supporting the positive case. This does not mean that in order to succeed in an unfair dismissal claim, the employee has to discharge the burden of proving that the dismissal was for that different reason. It is sufficient for the employee to challenge the evidence produced by the employer to show the reason advanced by it for the dismissal and to produce some evidence of a different reason (Kuzel v Roche Products Ltd [2008] ICR 799, CA at para 57).[35]In a misconduct case the correct approach under section 98(4) was helpfully summarised by Elias LJ in Turner v East Midlands Trains Limited [2013] ICR 525 in paragraphs 16-22. Conduct dismissals can be analysed using the test which originated in British Home Stores v Burchell [1980] ICR 303, a decision of the Employment Appeal Tribunal which was subsequently approved in a number of decisions of the Court of Appeal. The “Burchell test” involves a consideration of three aspects of the employer’s conduct. Firstly, did the employer carry out an investigation into the matter that was reasonable in the circumstances of the case? Secondly, did the employer believe that the employee was guilty of the misconduct complained of? Thirdly, did the employer have reasonable grounds for that belief?[36]Since Burchell was decided the burden on the employer to show fairness has been removed by legislation. There is now no burden on either party to prove fairness or unfairness respectively.[37]A fair investigation requires the employer to follow a reasonably fair procedure. By section 207(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 Tribunals must take into account any relevant parts of the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015.[38]The appeal is to be treated as part and parcel of the dismissal process: Taylor v OCS Group Ltd [2006] IRLR 613.[39]If the three parts of the Burchell test are met, the Employment Tribunal must then go on to decide whether the decision to dismiss the employee was within the band of reasonable responses, or whether that band fell short of encompassing termination of employment.[40]It is important that in carrying out this exercise the Tribunal must not substitute its own decision for that of the employer. The band of reasonable responses test applies to all aspects of the dismissal process including the procedure adopted and whether the investigation was fair and appropriate: Sainsburys Supermarkets Ltd v Hitt [2003] IRLR 23. The focus must be on the fairness of the investigation, dismissal and appeal, and not on whether the employee has suffered an injustice. The Tribunal must not substitute its own decision for that of the employer but instead ask whether the employer’s actions and decisions fell within that band. Equality Act 2010 claims[41]The complaints of direct race discrimination, race-related harassment and victimisation were brought under the Equality Act 2010.[42]S.39 and s.40 of the 2010 Act prohibit discrimination, victimisation and harassment of employees. So far as material to this case they provide as follows: “39 Employees and applicants ….(2) An employer(a) (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment;(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;(c) by dismissing B;(d) by subjecting B to any other detriment. ……(4) An employer (A) must not victimise an employee of A's (B)— (a) as to B's terms of employment; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for any other benefit, facility or service; (c) by dismissing B; (d) by subjecting B to any other detriment. 40 Employees and applicants: harassment (1) An employer (A) must not, in relation to employment by A, harass a person (B)— (a) who is an employee of A's”. The Burden of Proof[43]The 2010 Act provides for a shifting burden of proof. Section 136 so far as material provides as follows: "(2) If there are facts from which the Court could decide in the absence of any other explanation that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision."[44]This means that it is for a claimant to establish facts from which the Tribunal can reasonably conclude that there has been a contravention of the 2010 Act. If the claimant establishes those facts, the burden shifts to the respondent to show that there has been no contravention by, for example, identifying a different reason for the treatment.[45]In Hewage v Grampian Health Board [2012] ICR 1054, SC, the need to avoid an overly technical approach to the application of section 136 was emphasised. Lord Hope observed that the burden of proof provisions will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.[46]That means that where there is "room for doubt", the approach s.136 lays down provides a valuable tool for determining whether the inference of discrimination should be drawn. In Field v Steve Pye & Co [2022] IRLR 948 EAT HHJ Tayler emphasised that if there is evidence that could realistically suggest that there was discrimination it is not appropriate to just add that evidence into the balance and then conduct an overall assessment, on the balance of probabilities, and make a positive finding that there was a non-discriminatory reason for the treatment. Instead, “where there is evidence that could indicate discrimination there is much to be said for properly grappling with the evidence and deciding whether it is, or is not, sufficient to switch the burden of proof. That will avoid a claimant feeling that the evidence has been swept under the carpet. It is hard to see the disadvantage of stating that there was evidence that was sufficient to shift the burden of proof but that, despite the burden having been shifted, a non-discriminatory reason for the treatment has been made out.”[47]As for what is required to discharge the burden at the first stage, that must be something more than a difference in the relevant protected characteristic and a difference in treatment; see Madarassy v Nomura International plc [2007] ICR 867, CA. That said, the something more required at the first stage need not be a great deal; see Deman v EHRC [2010] EWCA Civ 1279.[48]A finding that an employer has behaved unreasonably, or treated an employee badly, will not, however, be sufficient, of itself, to cause the burden of proof to shift; Glasgow City Council v Zafar [1998] ICR 120.[49]The guidance in in Igen Ltd v Wong [2005] ICR 931, CA states when the burden has passed, not only must the respondent provide an explanation for the facts proved by the claimant, from which the inferences could be drawn, but that explanation must be adequate to prove, on the balance of probabilities, that the protected characteristic was no part of the reason for the treatment. However, that explanation need not be “adequate” in the sense of providing a reason which satisfies some objective standard of reasonableness or acceptability – it does not matter if the employer has acted for an unfair or discreditable reason provided that the reason had nothing to do with the protected characteristic (Royal Mail Group v Efobi [2021] UKSC 33 at para 29). Direct Race Discrimination[50]The definition of direct discrimination appears in section 13 of the 2010 Act and so far as material reads as follows: “(1) A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.[51]The concept of treating someone “less favourably” inherently requires some form of comparison, and section 23(1) provides that: “On a comparison of cases for the purposes of section 13 … there must be no material differences between the circumstances relating to each case”.[52]It is well established that where the treatment of which the claimant complains is not overtly because of race or of religion or belief, the key question is the “reason why” the decision or action of the respondent was taken.[53]A protected characteristic need only have a material influence in detrimental treatment for discrimination to be established: Nagarajan v London Regional Transport [2000] 1 AC 501.[54]The definition of harassment appears in section 26 of the 2010 Act which so far as material reads as follows: “(1) A person(a) (A) harasses another(b) (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… (4) In deciding whether conduct has the effect referred to sub-section (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.”[55]The Equality and Human Rights Commission gives more detail on the factors relevant in deciding whether conduct has the effect referred to in s.26(1)(b) (“a harassing effect”) at paragraph 7.18 of its Statutory Code of Practice on Employment (“the EHRC Code”): “7.18 In deciding whether conduct had that effect, each of the following must be taken into account: a) The perception of the worker; that is, did they regard it as violating their dignity or creating an intimidating (etc) environment for them. This part of the test is a subjective question and depends on how the worker regards the treatment. b) The other circumstances of the case; circumstances that may be relevant and therefore need to be taken into account can include the personal circumstances of the worker experiencing the conduct; for example, the worker’s health, including mental health; mental capacity; cultural norms; or previous experience of harassment; and also the environment in which the conduct takes place. c) Whether it is reasonable for the conduct to have that effect; this is an objective test. A tribunal is unlikely to find unwanted conduct has the effect, for example, of offending a worker if the tribunal considers the worker to be hypersensitive and that another person subjected to the same conduct would not have been offended.”[56]For a complaint of race-related harassment to succeed, the Tribunal must be satisfied that there was unwanted conduct which was race-related and which had a harassing purpose or a harassing effect. Harassment can occur even if the conduct did not have a harassing purpose, so long as it had the harassing effect.[57]The test of whether conduct is “related” to a protected characteristic (in this case race) is different to that of whether it is “because of” a protected characteristic which applies in a case of direct discrimination. The term ‘related to” is wider and more flexible than “because of”. In a race-related harassment case, conduct could be found to be “related to” race where it was done because of race, but that is not a requirement. So, for example, if A subjects B to unwanted conduct with the purpose of “creating an intimidating environment for B” in circumstances in which it is established that A would not have subjected someone of a different race to the same conduct, that would establish that the conduct was “related to race”. But there are many other ways in which conduct could be “related to race” such as where there is conduct that is inherently racist such as telling racist jokes (Blanc de Provence Ltd v Ha [2023] EAT 160).[58]Whether conduct is ‘related to’ a protected characteristic is a matter for the appreciation of the Tribunal, making a finding of fact drawing on all the evidence before it. The fact that the claimant considers that the conduct is related to that characteristic is not determinative. There must be still, in any given case, be some feature or features of the factual matrix identified by the Tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim (Tees Esk and Wear Valleys NHS Foundation Trust v Aslam and anor 2020 IRLR 495).[59]Case-law has made it clear that the language used in s.26, i.e. "violation of dignity" and "intimidating, hostile, degrading, humiliating, or offensive" is significant: "Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment." (per Elias LJ Grant v HM Land Registry [2011] EWCA Civ 769 at paragraph 47 ) "The word 'violating' is a strong word. Offending against dignity, hurting it, is insufficient. 'Violating' may be a word the strength of which is sometimes overlooked. The same might be said of the words 'intimidating' etc. All look for effects which are serious and marked, and not those which are, though real, truly of lesser consequence." (per Langstaff P Betsi Cadwaladr University v Hughes UKEAT/0179/13 at paragraph 12)”.[60]S.212(1) of the 2010 Act provides that, other than in circumstances not relevant to this claim, “detriment” does not include conduct which amounts to harassment. Conduct which is found to be an act of harassment cannot also be an act of direct discrimination. Victimisation[61]S.27 of the 2010 Act makes victimisation unlawful: “(1) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because — (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act — (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;(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.”[62]This means that for a victimisation claim to succeed, a claimant has to show three things. First, that they did a protected act (or that the respondent believed they had or may do such an act); second, that they were subjected to a detriment; and third that they were subjected to that detriment because of the protected act.[63]S.27(1)(a) refers to subjecting to a detriment because of a protected act but does not refer to “less favourable treatment”. There is therefore no absolute need for a tribunal to construct an appropriate comparator in victimisation claims. The EHRC Code at para 9.11 states: ‘The worker need only show that they have experienced a detriment because they have done a protected act or because the employer believes (rightly or wrongly) that they have done or intend to do a protected act’.[64]The question in any claim of victimisation is what was the 'reason' that the respondent did the act complained of: if it was, wholly or in substantial part, that the claimant had done a protected act (or that they believed the claimant had or may do such an act), the employer is liable for victimisation; and if not, not. Time limits for the Equality Act complaints[65]The time limit for bringing a claim under the 2010 Act appears in section 123 as follows:- “(1) subject to Sections 140A and 140B proceedings on a complaint within Section 120 may not be brought after the end of –(a) the period of three months starting with the date of the act to which the complaint relates, or(b) such other period as the Employment Tribunal thinks just and equitable. (2) … (3) for the purposes of this section – (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.” Unauthorised deduction from wages[66]S.13(1) of the ERA provides that : "(1) An employer shall not make a deduction from the wages of a worker employed by him unless-(a) the deduction is required or authorised to be made by virtue of a statutory provision of a relevant provision of the worker’s contract, or(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.”[67]S.27(1) of ERA says: "(1) In this Part 'wages', in relation to a worker, means any sums payable to the worker in connection with his employment, including- (a) Any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise”[68]S.13(3) of ERA says: "Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion."[69]In New Century Cleaning Co Ltd v Church 2000 IRLR 27, CA the majority of the Court of Appeal held that a worker would have to show an actual legal, although not necessarily contractual, entitlement to the payment in question in order for it to fall within the definition of “wages”.[70]S.23(2) of the ERA provides that a Tribunal shall not consider an unauthorised deductions complaint unless it is presented before the end of the period of 3 months beginning with the date of payment of the wages from which the deduction was made or (in the case of a series of deductions) beginning with the date of the last deduction in that series.[71]That time limit is extended by the rules relating to ACAS Early Conciliation so long as Early Conciliation is begun within that primary three-month time limit (Pearce v Bank of America Merrill Lynch and ors EAT 0067/19).[72]If the claim is brought outside that time limit the Tribunal does not have jurisdiction to hear it unless the Tribunal is satisfied(i) that it was not reasonably practicable for the claim to be presented before the end of the relevant period of three months and(ii) that it was presented within such further period as the Tribunal considers reasonable (s.23(4) of ERA).[73]When it comes to the meaning of “reasonably practicable”, the courts have said that that means “reasonably feasible” Palmer v Southend-on-Sea Borough Council [1984] ICR 372, CA. In Marks and Spencer Plc v Williams-Ryan [2005] ICR 1293 the Court of Appeal confirmed that a liberal approach in favour of the employee was still appropriate. What is reasonably practicable and what further period might be reasonable are ultimately questions of fact for the Tribunal. Ignorance of one’s rights can make it not reasonably practicable to present a claim as long as that ignorance is itself reasonable. In Porter v Bandridge Ltd 1978 ICR 943, CA, the Court of Appeal, ruled that the correct test is not whether the claimant knew of his or her rights but whether he or she ought to have known of them. An employee aware of a right to bring a claim can be expected to make enquiries about time limits: Trevelyans (Birmingham) Ltd v Norton [1991] ICR 488 EAT. Breach of Contract by failing to pay wages[74]Subject to certain conditions and exceptions not relevant here, the Tribunal has jurisdiction over a claim for damages or some other sum in respect of a breach of contract which arises or is outstanding on termination of employment if presented within 3 months of the effective date of termination (allowing for early conciliation): see Articles 3 and 7 of the Employment Tribunals (England and Wales) Extension of Jurisdiction Order 1994.[75]The measure of damages for breach of contract is the net value of pay and other benefits, giving credit for other sums earned in mitigation.
Findings of Fact
[76]We set out below my findings of fact based on the evidence we heard and read and taking into account the parties’ submissions on that evidence. Background Facts[77]The respondent manufactures and sells natural vegan, cruelty free and ethical body washes shampoos and skin care products. It was founded by Rivka Rose and is still owned by the Rose family. At the time of the claimant’s dismissal it employed around 100 staff.[78]The claimant was employed by the respondent from 2 March 2020, originally as a Factory Operator. Shortly afterwards he transferred to the respondent’s warehouse. When the incidents in this case took place, the claimant was working as a Warehouse Operative at the respondent’s warehouse on Ainsworth Road (“Ainsworth”). The warehouse department moved to Ainsworth in around June 2021 when the business outgrew the respondent’s original premises at Faith House.[79]At the time of the incidents, the Mr Borkowski was the Warehouse Supervisor. The claimant reported to him. Dean Thirlwall (“Mr Thirlwall”) was Warehouse Team Leader. Mr Bragg was the Warehouse manager. 29 July 2022 (the date of the incidents which led to the claimant’s suspension and eventual dismissal) was Mr Bragg’s last day at work before he left the respondent for a job elsewhere. Jason McNeill (“Mr McNeill) was Operations Director. He was no longer employed by the respondent by October 2022 when Mrs Shewring was hearing the claimant’s appeal against dismissal.[80]The claimant describes himself as being black, of Kenyan African origin. The respondent did not challenge the claimant’s evidence that he was the only black African employee working in the warehouse at the time of the incidents in the case. Pallets and scanning[81]The Warehouse Operatives filled pallets with goods for dispatch. They used pump trucks to move the pallets around when filling them. There were 2 types of pallets, Standard and Euro. There were also 2 types of pump trucks. Euro pump trucks could move both kinds of pallets, but standard pump trucks could only move the Standard pallets. Some pump trucks were electric, which made it easier to move heavier pallets. Warehouse Operatives were not allocated specific pump trucks. They were a “pool” to be used by whichever operative needed one at the time. There was also a “pool” of scanning guns. An operative would pick up a scanner at the start of the shift to use in their work. Some of those scanners worked better than others.[82]The claimant preferred to arrive at work early so that he could choose the best of the pump trucks and scanners to use that day. He preferred to use an Euro pump truck. We find that the claimant then regarded that truck and scanner as “his”. We find there was nothing to identify a particular truck or scanner as belonging to the claimant.[83]Pallets which had to be “dropped” from higher levels were moved by forklift drivers. Mrs Shawcross was one of those drivers. Mr Manning was another. The respondent’s computer system kept track of where the pallets were. It was important that the location of the pallets shown on that system matched up with the actual physical location of the pallets. Problems arose if a physical pallet was moved by a forklift driver and not noted as moved on the computer system. Problems also arose if a pallet was shown on the computer system as having been moved before the physical pallet was moved. To avoid those problems, the respondent’s policy was that only forklift drivers or supervisors were allowed to move pallets on the computer system. The claimant’s forklift driving “ban”[84]The claimant had driven forklifts for the respondent but had been “banned” from doing so by the respondent for a minimum period of 12 months, starting on 15 February 2021. That followed an incident in the warehouse when the respondent decided the claimant had been driving a forklift dangerously. The claimant was keen to get his forklift licence back. It would mean he could carry out his work without needing to rely on colleagues who were allowed to drive forklift trucks to drop pallets for him.[85]After the 12 months ban had expired, the claimant approached Mr Bragg about being having his forklift licence reinstated. Mr Bragg said the claimant would need to undergo refresher training. The claimant’s evidence was that was due to happen in April or May 2022 and that Mr Bragg had said that Mr McNeill would arrange it. The training had not taken place by the time the claimant was dismissed so he had not been reinstated as a forklift driver. Mrs Shewring’s evidence was that Mr Bragg had told her that they did not need any more forklift truck drivers. That meant that the claimant was not allowed to drive a forklift in 2022. That, in turn, meant he was not allowed to move pallets on the system in July 2022. The claimant’s absences and grievances – May to July 2022[86]The alleged acts of discrimination/harassment incidents relied on by the claimant were in May to July 2022. During that period the claimant was absent from work for 2 periods. He did not report either as sickness absence.[87]The first of the 2 periods of absence started when the claimant, in his own words, “walked out” of the business. We find that was on 31 May 2022.[88]Mrs Shewring spoke to claimant on the phone on 1 June 2022. She had been out of the office on the previous day but had left a voicemail asking the claimant to call her. She confirmed the matters they discussed in a letter to the claimant on 1 June (pp.94-95).[89]Part of their discussion and Mrs Shewring’s letter about it dealt with the claimant’s allegations that he had not been paid all the overtime due to him between March and August 2021. Mrs Shewring’s letter confirmed that she had looked at the overtime the claimant had worked and compared it with the hours worked by the comparators suggested by the claimant. Two of those comparators were not appropriate – one because he was salaried and one because they had not been working for the respondent until November 2021. She compared the claimant's overtime with that worked by his other comparator, John Gouhar, and found he worked different overtime. In her letter Ms Shewring said that it did not look to be anything unusual or any deleted clocking at the weekends. That was also her evidence at the Tribunal and we accept it.[90]We find that during their conversation on 1 June the claimant also raised his unhappiness at not being promoted and the continuation of his forklift driver ban. Mrs Shewring encouraged the claimant to apply for any vacancies and to update his CV. She recorded that the claimant had spoken to Mr Bragg about the forklift driving ban but that Mr Bragg’s view was that there was no need for more forklift drivers. We find Mrs Shewring acknowledged that the claimant disagreed with this but pointed out it was Mr Bragg’s decision to make as Warehouse Manager.[91]We find the claimant raised having video evidence of past incidents when he was threatened and racially abused. Mrs Shewring said she was not willing to look at those allegations because they had already been investigated as part of a disciplinary hearing heard by Leighton Paul, the respondent’s then Finance Director in March 2021. The hearing was investigating whether the claimant had failed to follow a reasonable management instruction. The claimant had raised issues about his team leader at the time (the Jimmy referred to in his proposed first amendment discussed at para 10 above) using racial slurs and a colleague stalking him outside of work. The claimant had failed to provide audio recordings of threats made against him and the investigation had found no evidence of the use of racial slurs.[92]Mrs Shewring’s letter noted that the claimant’s absence from work was unauthorised and, therefore, unpaid. She warned him that if he did not return to work on Monday 6 June the respondent might treat his absence as a deliberate breach of contract.[93]The claimant’s absence continued. The claimant submitted a written grievance by email dated 9 June 2022 (pp.96-97). In it the claimant said he had been singled out and treated differently from colleagues over an almost 2 year period. He acknowledged that some of the complaints he had made about this had been dealt with to his satisfaction but said some were still pending. He referred specifically to issues with Mr Manning being unresolved. He said Mr Bragg had agreed to sit down with him, Mr Manning and HR to get to the bottom of things but that had not happened. He raised issues about his payslips, changes to his contract and his rate of pay. He also said that he was being denied opportunities to progress within the business because of nepotism. He said everyone knew who would get new positions before they were made available. The claimant felt some of those promoted were unqualified for their new roles. The claimant’s grievance did not refer to his race or suggest that it was the reason he was singled out or treated differently.[94]Mr Bragg and Mrs Shewring considered that grievance at a meeting with the claimant on Tuesday 14 June 2022. Mr Borkowski was the claimant’s companion at that meeting.[95]At the meeting the claimant complained about Mr Manning’s behaviour towards him. He said that included shouting at him to finish what he was doing and help him with the Waitrose order. He said that had happened 3 times in a week. He said that Mr Manning had spoken to him in an intimidating way. He alleged Mr Manning had threatened to “knock [the claimant’s] teeth in” when they were at the shrink wrap machine. He acknowledged he had not mentioned this to Mr Borkowski when he complained to him. He referred to Mr Manning taking his pump truck and said he had been “disrespectful” to the claimant. He said Mr Bragg had said he would sit down with the claimant, Mr Manning and Mrs Shewring to address the issue but hadn’t done so. Mr Bragg said he couldn’t remember agreeing to do that but agreed Mr Manning shouldn’t shout at the claimant and said that they would “pick that up” with him. Mr Bragg told the claimant that if he felt he was being harassed, he could deal with the matter formally or informally. The claimant did not suggest that Mr Manning’s behaviour was because of or related to race.[96]The claimant also referred to previous incidents of intimidation at Faith House. He was specifically asked by Mr Bragg why he thought that behaviour towards him was happening. The claimant said it was because others kept quiet. He referred to seeing people in tears. He said he was too old for this to happen to him. He said that others got away with things like hitting pallets but nothing happened. He accused Mr Bragg of disappearing when the claimant needed him to deal with matters and that Mr Bragg was not taking matters seriously. He compared that with what he had experienced at precious workplaces, such as when he had worked for Kellogg or Asda. He said that lack of mutual respect or professional behaviour was normalised behaviour at the respondent.[97]It was agreed that the matter would be dealt with by Mr Bragg re-briefing staff on its harassment and bullying policy. At the meeting the claimant said he was happy with that. There was no point having a meeting with Mr Manning about something which had happened “too long ago”. He said he just wanted people to be professional.[98]The meeting discussed the claimant’s other complaints, including the historical issues with his pay. He said there was something not right with his pay in 2021. He said that in one month his pay dropped to around £1200. Mrs Shewring explained that there had been an advance of £250. The claimant denied that he had ever had an advance. The claimant suggested his timesheets might have been manually changed to reduce the hours he was shown as having worked. Mr Bragg suggested that they give Mrs Shewring time to investigate further.[99]The claimant also complained about his lack of progress at work. He alleged that everyone knew who would get a vacancy or promotion before the job was put on the board. Mr Bragg confirmed that people were appointed following an interview processes because they were the best people for the role. He pointed out that Mr Borkowski was an external appointment to the supervisor role. He also pointed out that the claimant had not applied for the supervisor role. The claimant did not suggest that he was not promoted because of race.[100]Mrs Shewring asked the claimant whether he had called his colleagues “morons”. The claimant appeared to accept he had done so and said he was very angry at the time. Mrs Shewring suggested that might have damaged relationships and that an apology might help repair them. She confirmed the respondent needed everyone to be professional.[101]As agreed, Mr Bragg re-briefed warehouse staff on the Harassment and Bullying policy on Friday 17 June 2022. The claimant returned to work on Monday 20 June but walked out again on 30 June 2022.[102]The claimant walked out again on 1 July 2022. He did not contact the respondent to explain why he was absent, so the respondent treated it as an unauthorised absence. Mr Bragg wrote to the claimant on 6 July to invite him to a meeting on 8 July to explain his absence. In that same letter Mr Bragg confirmed that Mrs Shewring had had a chance to go through the claimant’s clocking in and out details for April to July 2021 and had established that the reason for deduction in June 2021 was an advance of £250 made to the claimant.[103]On the 8 July the claimant sent an email to John Allaway (“Mr Allaway”) the respondent’s Managing Director. In it he alleged mismanagement of the company finances, destruction of company documents and harassment including a death threat. He returned to work on 12 July 2022. The claimant met with Mr Allaway and Mrs Shewring about that on 3 August 2022). The alleged acts of race-related harassment and/or direct race discrimination at Ainsworth in May to July 2022[104]In this section we set out our findings of fact about the alleged incidents of race-related harassment and direct race discrimination at issues 4.1.1-4.1.5 and 5.3.1-5.3.5 in the List of Issues.[105]In making our findings of fact about these incidents we had to decide between the claimant’s version of events and that of the respondent’s witnesses. We found that in his evidence, the claimant often shifted position and did not always answer questions directly. Mr Manning’s evidence was consistent, and he answered questions in a straightforward way. The same was true of Mrs Shawcross. Both were up front about disagreements and confrontations they had had with the claimant. We found their evidence about what happened more reliable than the claimant’s evidence.[106]We find that by the time of the incidents about which the claimant’s complains in this case, his relationship with some of his colleagues, including Mr Manning and Mrs Shawcross, were difficult. That had not always been the case. Mr Manning’s evidence was that they had in the past got on well. We accept Mr Manning’s evidence that he had in the past loaned the claimant small amounts of money if he was a bit short before pay day. The claimant’s evidence was also that he and Mr Manning had got on well in the past. The claimant said that had changed when he had disclosed he was paid more and when he had made allegations about Mr Thirlwall’s brother. His perception was that he was the only who was willing to not keep quiet about things going on which were wrong. He also had a long-standing perception that he had been underpaid in 2021.[107]We find that the claimant had his own preferred ways of working. He was serious about his work. We find he thought his colleagues were unprofessional and that some were disrespectful when talking to him. He felt Mr Manning was telling him what work to do and did not think he should do that because he was not the claimant’s supervisor. We find the claimant just wanted to be left alone to get on with his work. We find that at times led others to think that he was prioritising his work over others. He resented being dependent on colleagues like Mrs Shawcross to drop pallets for him, particularly when he felt he could do the job better himself. We find he was perceived by some as not being a team player. Others were wary around him because of rumours he was recording conversations.[108]We find that by the time of the incidents in June/July at the latest he was genuinely convinced that he was being picked on by colleagues and that Mr Bragg was failing to take steps to hold those colleagues to account. We find he got on with Mr Borkowski to the extent that he was the claimant’s companion at the grievance meeting on 14 June. We find that the claimant felt Mr Borkowski was a “good guy” but did not do anything to resolve the issues he raised about colleagues’ behaviours. Mr Manning taking the pump truck and scanning gun which the claimant had been using (4.1.1 and 5.3.1).[109]The claimant’s allegation was that Mr Manning took the pump truck and scanning gun he was using about 3 times a week over a 2-week period at the end of May/start of June 2022. We find the incidents could not have happened during the first 2 weeks of June because the claimant was absent from work then. The claimant referred at the grievance meeting on 14 June to Mr Manning having taken his pump truck. On balance, we find this allegation relates to something that happened before the claimant walked out of work at the end of May 2022. The claimant did not at that grievance meeting suggest Mr Manning had taken his pump truck 2-3 times a week.[110]Mr Manning accepted he did sometimes borrow the pump truck which the claimant was using. He would do so, for example, if the claimant had an Euro pump truck which Mr Manning needed to move a pallet he could not move with a Standard pump truck. We do not accept the claimant’s case that Mr Manning would take the pump truck from the claimant without asking to borrow it. We accept his evidence that he would only take the claimant’s pump truck without asking if the claimant was not around. We find that if he was around, Mr Manning would ask to borrow it.[111]We find that the claimant regarded the pump truck he had chosen to use for a particular day as “his” for that day. Mr Manning accepted in his evidence that there had been confrontations between him and the claimant when he had needed to borrow the claimant’s pump truck and the claimant had been reluctant to let him take it. Mr Manning said to the claimant on at least one occasion that the pump trucks were the respondent’s and not the claimant's. We find that reflects the reality of the situation – the pump trucks were meant to be “pool” trucks to be used by whoever needed them rather than being designated for use by a particular employee for a particular day.[112]The claimant's case was that he was “picked on” by Mr Manning, who deliberately took his pump truck even if other pump trucks were available. We do not accept that. We find the opposite to be the case. We accept Mr Manning’s evidence that he would, given the choice, borrow somebody else’s pump truck to avoid confrontations with the claimant. Sometimes, however, the claimant's pump truck was the one nearest at hand and so he would borrow it in order to complete his work.[113]We do not accept that Mr Manning “took” the claimant’s scanning gun as the claimant alleged. He had his own and had no need to do so. We do find that the claimant would put his scanning gun and other equipment like his clipboard on “his” pump truck. When Mr Manning borrowed the pump truck, he would in effect be taking the claimant’s scanning gun. We do not find that was Mr Manning “picking” on the claimant. On a Friday, in June 2022, Mr Manning removed a pallet which the claimant had put in the shrink wrap machine, replacing it with his own pallet, before the claimant could use the machine (4.1.2 and 5.3.2) On the same day, during the argument which followed, Mr Manning told the claimant he would bash his head in (4.1.3 and 5.3.3)[114]The claimant did not identify the specific date this incident happened. However, given that he was absent from work from 1 until 20 June, the only Friday the claimant worked in June was 24 June. On balance we find the incident happened then although nothing turns on the exact date.[115]It was not disputed that on the day in question, the claimant had left his pallet unattended on the shrink wrap machine. He said that was because he had gone to look for a cover to put on it. It was not disputed that Mr Manning had moved the unattended pallet to the side so he could use the machine to shrink wrap his pallet. Mr Manning accepted that he had not returned the unattended pallet to the shrink wrap machine but had left it next to the machine. We accept his explanation that he did not do so because it would have caused a problem for the next person wanting to use the shrink wrap machine.[116]There was a dispute about what else happened during the incident. The claimant’s evidence was that Mr Manning was still at the machine when he returned and that they had an argument about the claimant’s pallet being moved. The claimant said that it was during that argument that Mr Manning told him he would bash the claimant's head in.[117]Mr Manning’s evidence was that he had left before the claimant came back and that the alleged argument did not happen. He denied saying he would bash the claimant’s head in.[118]We prefer Mr Manning’s evidence. We find that he did not know that it was the claimant who had left the unattended pallet. We find that the argument referred to in issue 4.1.3/5.3.3 did not happen and that Mr Manning did not make the alleged threat. On Wednesday of the following week, Mr Manning shouted at the claimant, who was at his locker after lunch, in the hearing of the line manager, Harold, and supervisor, Maciej, not to waste time and come and get some work done (4.1.4 and 5.3.4)[119]Wednesday the week after the incident in allegation 4.1.3 and 5.3.3 would be Wednesday 29 June 2022.[120]Mr Manning’s evidence was that he would regularly (perhaps 3 or 4 times a week) jokingly shout to colleagues not to waste time, to get some work done, using phrases like “get some work done you lazy sod”. He said that that was something that he would say to all colleagues in a jokey way. We find his evidence on that reliable and accept it.[121]Mr Manning’s evidence was that he had no recollection of the specific incident in 4.1.4/5.3.4. On balance we find that he did shout to the claimant to not to waste time and get some work done. We find he did so in a jokey way. We find it probable he did not remember the specific incident because jokingly chivvying his colleagues was something which he did regularly and viewed as unremarkable.[122]The claimant’s case was that by this point he and Mr Manning had fallen out and were not talking. If correct, that could put Mr Manning shouting at him in a different light. However, we accept Mr Manning’s evidence that, whatever the claimant’s perspective at the time, Mr Manning was unaware that they had “fallen out” and were not speaking in the way the claimant described.[123]The claimant’s evidence was that by the time this incident happened he had reported Mr Manning to Mr Bragg for taking his things. We accept that the claimant had done so in his June grievance. We also find that Mr Bragg had by the 17 June Mr Bragg had re-briefed employees on the respondent’s Bullying and Harassment policy. We accept Mr Manning’s evidence that Mr Bragg had not raised any issues with him individually. We find Mr Manning would not have known from the general briefing that the claimant had complained specifically about him. For about 8 months to the end of July 2022, a colleague Dawn, would fail to move pallets with a forklift truck, as requested by the claimant. This got worse from May 2022. In the week of 28 July 2022, Kim told the claimant that she would no longer move pallets for him (4.1.5 and 5.3.5)[124]At the hearing the claimant clarified that the relevant period for this allegation was 3 rather than 8 months, i.e. roughly from May-July 2022.[125]We find that Mrs Shawcross adopted a strict “first come, first served” system in deciding which pallets to drop next with her forklift truck. We find that the claimant wanted Mrs Shawcross to drop his pallets immediately, even if there were other people in the “queue” before him. That caused friction between him and Mrs Shawcross. She made it clear to the claimant that he would have to wait his turn in the queue like everyone else. As a result, the claimant stopped asking her to drop pallets for him unless he had no other option. There was no evidence that Mrs Shawcross had refused to drop a pallet for the claimant when he had asked her to do so.[126]We find that on or around 14 July 2022 there was an altercation between the claimant and Mrs Shawcross when he asked her to drop a pallet for him. We find that by that date the claimant was increasingly frustrated about not having his forklift truck licence “reinstated”. It meant he had to depend on colleagues to drop pallets for him.[127]There had been an incident between the claimant and Mrs Shawcross earlier on the day of the altercation. Mrs Shawcross had borrowed the scanning gun the claimant was using. We find she had asked to borrow it, but the claimant took the view that she had been rude and told her she should have said “please”. We find he also thought that she was picking on him by borrowing “his” scanning gun rather than anyone else’s. He snatched it back and told her she was a “bully”.[128]Later that day, the claimant asked Mrs Shawcross to drop a pallet for him. She asked him why he had called her a bully. He replied that it was because she was a bully. Mrs Shawcross responded that the claimant was intimidating and argumentative. They went over the earlier incident and the claimant said that she should say please in future. Mrs Shawcross said that she would drop the pallet for the claimant but suggested that he ask someone else to drop his pallets in future.[129]Matters became heated and the claimant accused Mrs Shawcross of being too slow at driving the forklift. She responded that she drove like that so she didn’t have an accident and that it was because the claimant drove fast that he was no longer allowed to drive a forklift truck. The claimant said that the reason Mrs Shawcross was allowed to drive a forklift but he was not “may be nepotism and may be because [she] was white and [the claimant] was black”. We find he called Mrs Shawcross a ”moron”.[130]Mrs Shawcross complained to Mr Bragg about the altercation. We find she said she would not continue dropping pallets for the claimant if he carried on speaking to her the way he had done. Mr Bragg interviewed the claimant on 18 July (p.108). The claimant accepted making the remark about nepotism and Mrs Shawcross being allowed to drive because of her race. He told Mr Bragg he did so “solely because [he] was angry at the time”. He accepted in the interview with Mr Bragg that he should not have made the remark and should apologise for doing so.[131]Although Mrs Shawcross told Mr Bragg on or around 14 July 2022 that she would refuse to move pallets for the claimant if he carried on speaking to her as he had, we accept her evidence that she did not in fact stop doing so. Incidents between the claimant and Mr Borkowski leading up to the 29 July 2022[132]The incidents which led to the claimant’s dismissal took place on 28 July and 29 July 2022. They principally involved the claimant and Mr Borkowski. We found Mr Borkowski a credible witness and his evidence consistent and more reliable than that of the claimant.[133]We find that prior to the incidents on these dates, Mr Borkowski had on at least 3-4 occasions instructed the claimant not to move pallets on the respondent’s computer system and instructed him that only forklift drivers should do so. We find that rule applied to all Warehouse Operatives. We find that the claimant continued to disregard that instruction.[134]In cross examination evidence the claimant said he had misunderstood Mr Borkowski’s instructions and thought that he was talking about not physically taking goods off pallets in the rack. We prefer Mr Borkowski’s evidence. We find that the claimant did know that he was not supposed to scan pallets to show them as having been moved before a forklift driver had moved them. We do not accept the claimant's evidence that this was a genuine misunderstanding. We find that he liked to work in his own way, and his own way involved scanning pallets to show on the system that they had been moved before they had been moved by the forklift driver.[135]That had led to an altercation between the claimant and Mr Borkowski on 18 July 2022. Mr Borkowski had again told the claimant not to move pallets on the system and that the claimant was not trained to perform that task. The claimant insisted he could do it all himself. During the altercation the claimant had told Mr Borkowski he was being discriminated against because he was black. He also said that the respondent still owed him money and he would keep fighting to enforce his rights. The altercation was sufficiently serious for Mr Borkowski to raise it with Mr Bragg who told him to put it in writing. Mr Borkowski did so (p.109) but there was no evidence that the claimant pursued that allegation further or produced specifics or evidence of the alleged discrimination.[136]We find that on the Thursday 28 July 2022 Mr Borkowski repeated the instruction not to move pallets on the system and explaining why it caused problems when the claimant did so. We find the claimant initially argued that his way of doing things was better but eventually agreed with Mr Borkowski that he would not move pallets on the system in future. The Incident on 29 July 2022 and its aftermath[137]We find that on 29 July 2022, Mrs Shawcross told Mr Borkowski that the claimant had again moved pallets on the system and asked whether Mr Borkowski had spoken to the claimant about it. There was then an altercation between the claimant and Mr Borkowski. There is a dispute between the claimant and Mr Borkowski as to who started shouting at the other person.[138]We find Mr Borkowski shouted across the warehouse to the claimant, who was walking away from him towards the shrink wrap machine. We find that Mr Borkowski was frustrated but also that he was calm in the way that he approached the claimant. He shouted his name to attract his attention. He shouted only because he was some distance away and the warehouse could be a noisy place.[139]Mr Borkowski asked the claimant why he had moved a pallet on the system again. We find the claimant took exception to Mr Borkowski telling him off for again moving pallets on the system. He did not like being told off and felt humiliated. We find the claimant lost his temper. We accept that he did not use threatening words towards Mr Borkowski. However, we find that he did repeatedly say that Mr Borkowski was talking to him like a child and that he should talk to him like an adult. He also said that Mr Borkowski and others were bullying him and that he felt harassed. We find that he did do so with a raised voice and that he stepped into Mr Borkowski’s space, which Mr Borkowski found intimidating. Mr Borkowski told the claimant to back away or he would send him home. He raised his voice in response to the claimant having raised his voice to him. Mr Thirlwall and Ms Baines witnessed the incident. Mr Thirlwall intervened to tell the claimant to step away from Mr Borkowski. The claimant did so. He calmed down after speaking to Mr Bragg.[140]The incident was sufficiently upsetting for Mr Borkowski to talk to Mrs Shewring about it outside the warehouse that same day. Mrs Shewring had come to the warehouse because that Friday was Mr Bragg’s last day.[141]It was not clear from the evidence whether Mrs Shewring advised Mr Borkowski to put the matter in writing. On balance, we find she did. That is because on the following Sunday evening, 31 July, Mr Borkowski set out what had happened in an email from his personal email to his work email. The email was addressed to “Senior Manager/HR” and said that “HR has been informed”. In the email, Mr Borkowski described what had happened, saying that he felt uncomfortable and unsafe when the claimant had stepped so close to him. He described the claimant’s conduct as unacceptable.[142]Mr Borkowski forwarded his email to Dave McCue and Mrs Shewring at 8:18 on Monday, 1 August. Mr Thirlwall sent an email statement about the incident to Mr McCue, Mrs Shewring and Mr Borkowski at 10:04 on 1 August which corroborated Mr Borkowski’s version of events (pp.112-113). Suspension and Investigation[143]Around 10.30 a.m. on 1 August 2022, the claimant was suspended pending a disciplinary hearing. Mrs Shewring’s suspension letter identified the allegations against him as being:a. that on 28 July the claimant had disregarded a legitimate instruction from Mr Borkowski not to scan stock from its current location to the replenishment location as that was not part of his job; andb. that on 29 July, Mr Borkowski was made aware that the claimant had done the replenishment task and when he asked the claimant to explain why, the claimant’s behaviour became intimidating.[144]The claimant had been at work since around 7 a.m. that morning and prior to his suspension there had been no indication from Mr Borkowski or anyone else that the incident on Friday was being viewed as a serious matter.[145]The claimant’s evidence was that he spoke to Jason McNeil, the Operations Director, on Monday morning at around 8-9 a.m. to complain that he was being treated differently and being picked on. He had approached Mr McNeil because Mr Bragg had by then left the respondent’s employment. In the absence of any evidence from Mr McNeil we accept the claimant’s version of that conversation. We find that the claimant complained about being treated differently and about his continuing forklift ban. We find that Mr McNeil said he would talk to HR. The claimant did not suggest that conversation with Mr McNeil had led to his suspension. We find that the decision to suspend him was due to Mr Borkowski’s complaint.[146]On Wednesday 3 August, while he was suspended, the claimant met Mr Allaway and Mrs Shewring about the allegations he had raised in his email to Mr Allaway dated 8 July 2022. That hearing had been arranged before the claimant’s suspension. We did not hear evidence about that meeting. In her appeal outcome letter dated 3 October 2022, Mrs Baxter recorded that the claimant had said he had proof to verify the allegations and had been asked to bring that proof to the meeting with Mr Allaway. Mrs Baxter’s letter said the claimant had not been able to provide proof or detailed information, the allegations relating to events 2 years’ previously.[147]On 4 August 2022 the claimant was invited to an investigation meeting on 8 August with Shelagh Anderton, the respondent’s Office Manage. Mrs Shewring also attended as HR Manager.[148]At that meeting the claimant was asked for his version of events. His response focussed on his complaints about the behaviours of Mr Manning and Mrs Shawcross which form the basis for allegations 4.1.1 to 4.1.5/5.3.1 to 5.3.5. He felt that it was unfair that, as he saw it, Mr Borkowski and Mr Bragg had taken the side of others (i.e. Mr Manning and Mrs Shawcross). He also voiced his frustrations about still being subject to a ban on driving a forklift truck some 8 months after the 12 month ban should have ended. He said he felt that he was treated differently.[149]When it came to the alleged incidents, the claimant accepted he had moved the pallet on the system. He did not deny that he had gone up close to Mr Borkowski but denied that he had confronted him. He said he was a grown up and would not have anyone shouting at him in front of a colleague. He said he had never said anything abusive. He accepted he was angry on that day and that he needed [Mr Borkowski] to listen to him. He accepted that Mr Borkowski might have taken it as disrespectful and possibly aggressive.[150]On 15 August 2022 Ms Brett wrote to the claimant inviting him to a disciplinary meeting to be chaired by her on 17 August 2022. The letter set out what it described as “allegations of gross misconduct”, namely:a. insubordination by deliberately ignoring Mr Borkowski’s instruction not to scan a pallet from one location to the replenishment stock area; andb. when asked why he had done that by Mr Borkowski the claimant’s being offensive and threatening, amounting to serious insubordination.[151]The letter warned the claimant that if the allegations were substantiated, he might be issued with a disciplinary sanction up to and including summary dismissal. Enclosed with it were the minutes from the claimant's disciplinary investigation meeting, 2 statements from Mr Borkowski and one each from Mr Thirlwall and Ms Baines. The disciplinary hearing and further investigation[152]The disciplinary hearing took place on 17 August 2022. It was chaired by Ms Brett. Mrs Shewring attended and took the notes which were then typed up. The invitation letter had told the claimant he had a right to be accompanied at the hearing. He chose not to be. He confirmed that decision when asked by Ms Brett at the start of the hearing. He also confirmed he had received the witness statements.[153]When it came to the allegations against him, the claimant suggested he had not really understood what Mr Borkowski was telling him. He thought he was talking about physically moving pallets. He also accepted that when Mr Borkowski shouted to him (not at him) it made him angry. He confirmed that he had raised his voice to Mr Borkowski and said to him not to talk to him like a child in front of everyone else. The claimant’s version of events was that both he and Mr Borkowski were speaking at the same volume. The claimant accepted that Mr Borkowski was a quiet guy and said it was not his intention to threaten Mr Borkowski.[154]At the hearing the claimant again raised his issues with Mrs Shawcross and Mr Manning. He said that Mrs Shawcross was a bully and that she and Mr Manning they were harassing him and sabotaging his work. We find he was using “harassing” in the non-technical sense to mean they were constantly picking on him. He did not suggest that that the harassment was due to race. He said that Mr Manning had threatened to “knock [his] head in”. He said that someone was always picking on him. He said that he had complained about matters to Mr Bragg and others but nothing had been done.[155]After a short adjournment to consider her decision, Ms Brett told the claimant she wanted to understand the broader picture and the context for what had happened. That included getting more statements from Mr Manning and from Mrs Shawcross. She adjourned the hearing to allow her to do so. She indicated they would be able to reconvene the following week. She confirmed the claimant was still suspended. When asked whether he had any further comments the claimant said that he simply wanted to be treated like everyone else and did not want any intimidation. He said at the hearing that he was being treated differently but did not say that any treatment of him was because of his race.[156]Ms Brett interviewed Mr Borkowski and Mr Thirlwall on 30 August. She interviewed Mr Manning and Mrs Shawcross on 1 September. The notes of those interviews were typed up.[157]In summary, Mr Thirlwall’s interview evidence in relation to the incident on the 29 July was that Mr Borkowski had explained to the claimant that he wasn’t to do replenishment. He said Mr Borkowski had told the claimant 3-4 times before not to do so. His view was that Mr Borkowski had not spoken to the claimant disrespectfully and had handled matters well. The claimant had got closer and closer to Mr Borkowski. Mr Thirlwall’s evidence view was that the way the claimant had spoken to Mr Borkowski was unacceptable. Mr Thirlwall said that the claimant’s attitude had changed. Mr Thirlwall had liked working with him in the past but now he argued with colleagues and disrupted things. He had isolated himself and there were rumours that he was covertly recording conversations with colleagues which made them wary of him. He referred to the claimant fighting and arguing with a number of colleagues, not limited to Mr Manning and Mrs Shawcross. He said the claimant had accused a colleague called Ali of calling the claimant a racist name. Ms Brett specifically asked whether Mr Thirlwall had witnessed any racism towards the claimant or any racist remarks. He said he had not and that everyone treated the claimant the same as anyone else. Ms Brett also asked him whether he was aware of Mrs Shawcross refusing to drop pallets for the claimant. He said he had never seen her refusing to drop a pallet.[158]Mr Borkowski’s interview evidence was that he had shouted to attract the claimant’s attention and that the claimant had stepped into his space. Asked whether Mrs Shawcross had ever refused to drop pallets he said that he had never seen her refuse to drop a pallet. He said there was always fighting between the claimant and Mrs Shawcross. Mrs Shawcross had said “if he comes speaking to me like that…”. He confirmed he was certain the claimant had understood what he meant when he told him not to move pallets on the system, because he was complaining about it. Ms Brett asked whether he had ever seen any racist behaviour towards the claimant and he said he had never seen anything racist towards him.[159]Mr Manning’s interview evidence was that he had seen the claimant and Mr Borkowski arguing but did not engage with it. He said he had never heard anyone refuse to help the claimant but that that the claimant had had arguments with colleagues including Mr Thirlwall, Mr Borkowski and Mrs Shawcross. He also referred to an incident when the claimant had “blown up” at him when he had asked him to do an order. On another occasion, the claimant had accused Mr Manning of sabotaging his work, pointed to his pocket and said, “I’m recording”. He said the claimant wanted colleagues to drop everything for him. Ms Brett asked Mr Manning whether he had heard anyone say anything racist to the claimant. He answered that he had not.[160]Mrs Shawcross’s interview evidence was that she had stayed away from the incident between the claimant and Mr Borkowski on 29 July. She said the claimant was in an argumentative mood that day. She denied ever having refused to drop a pallet for the claimant. She confirmed that she dropped pallets in “first come/first served” order. She accepted that she and the claimant had had a few arguments and gave brief details of the “moron” incident on or around the 14 July. She said the process about moving pallets on the system was clear. She confirmed that she had been trained as a forklift driver some 6-7 years before. When asked by Ms Brett whether she had seen any racist behaviour towards the claimant she said no. She added that the claimant was not a team player and that it was sometimes difficult to know whether he was in a mood or wanting to ignore you. The reconvened disciplinary hearing and decision to dismiss[161]The disciplinary hearing was reconvened on 1 September 2022. The respondent accepted that the claimant had not had the notes of the adjourned hearing on 17 August before the hearing reconvened. He was not sent the interview notes.[162]At the reconvened hearing the claimant was given another opportunity to explain his version of the events on 28 and 29 July. His focus at the meeting was again on people having made life difficult for him, particularly Mr Manning and Mrs Shawcross. When it was put to him that there was no evidence to say that Mrs Shawcross had ever said she would not drop a pallet for him, the claimant said that Mr Bragg and Mr Borkowski both knew that that was the case. It was put to the claimant that what Mrs Shawcross was doing was managing her time based on when orders came in. The claimant did not accept that.[163]When asked by Ms Brett why he had responded to Mr Borkowski the way he did, the claimant said he was furious and angry. He confirmed that he had told Mr Borkowski not to speak to him like a child. He raised the possibility that it was a setup to see whether he would fall into a trap. When asked about the event and who had closed the distance between himself and Mr Borkowski, the claimant’s evidence was he did not really remember. The claimant also referred to harassment and intimidation but did not suggest that it was related to race. He referred to the incident where Mr Manning shouted at him to hurry up.[164]Ms Brett then adjourned the meeting. She then gave her decision, which was that none of the statements that she had taken corroborated the claimant's version of events. She found that Mr Borkowski had approached the claimant in a calm manner because he had not done what Mr Borkowski had asked him to do on Thursday 28 July. She found that the claimant's response to Mr Borkowski was excessive and inappropriate and amounted to serious insubordination. She found it amounted to gross misconduct and her decision was to dismiss him as of that day.[165]After Ms Brett told him her decision, the claimant said he had had to walk out of the company twice because of the way he was treated and raised the issue with his pay which is the subject of the unauthorised deduction complaint. Ms Brett made clear those issues had already been dealt with. In response the claimant said he would take the matter to ACAS. He said that ACAS “knew [he] had problems [at the respondent] – time and hours not paid”. He also said that he would try and speak to Rivka [Rose].” We find that was the first time during the course of the events which are the subject of this case that he had referred to speaking to Rivka.[166]The claimant asked for the notes of the witness interviews Ms Brett had carried out. Mrs Shewring confirmed she would send them to him. The claimant then said that Mr Borkowski was not telling the truth and suggested that the witnesses may not being honest.[167]Ms Shewring told the claimant he had the right to appeal in writing by close of business on Thursday 8 September 2022. Events after the dismissal including the claimant’s appeal[168]Ms Brett confirmed her decision by a letter dated 2 September 2022 which was sent to the claimant by Mrs Shewring on Monday 5 September (pp.148-150). The covering email confirmed that because of that delay the deadline for appealing was extended to 12 September. Attached with the dismissal letter were the notes of the disciplinary hearing; the statements and interview notes about the incident on 14 July; and the typed notes of the 4 interviews Ms Brett conducted between the 2 parts of the disciplinary hearing.[169]Ms Brett’s letter confirmed her decision to summarily dismiss the claimant for gross misconduct. She said that the claimant had not followed the process he had been asked to follow by his supervisor on several occasions. She found his behaviour towards Mr Borkowski on 29 July to be excessive and inappropriate and to amount to serious insubordination. She referred to the claimant’s allegations against Mr Manning. She referred to the claimant’s allegations that Mrs Shawcross had refused to drop pallets for him and to the “moron” incident on 14 July. She said that Mrs Shawcross may not have dropped the pallet when requested as she might have had other duties or carry out or other pallets to drop before carrying out the claimant’s request. The claimant’s appeal[170]The claimant appealed in writing on 12 September 2022 (p.151-153). His appeal did not specifically dispute the detail of the allegations against him. Instead, he said the decision was made without the full facts or by ignoring the facts. He said that it appeared to him that the whole process had been staged and that the decision to dismiss him had been made before the incident happened. He alleged that he had been treated differently to those colleagues he had raised complaints about. He said that whenever he complained about being the victim of ill-treatment he was sent home. In contrast, when a complaint was made against him, he was suspended.[171]He referred to his having had to leave work twice (i.e. his absences in June and July 2022) because of intimidation, threats and harassment. He said that the reason for his walking out of the business was because Mr Bragg was doing nothing to stop him being harassed, intimidated and his working conditions being made unbearable. He did not in his letter suggest that the reason for the way he was treated was his race. He suggested that Mr Thirlwall had supported Mr Borkowski’s complaint about the incident because the claimant had blown the whistle about things disappearing and delivery notes being destroyed in the department of the respondent in which Mr Thirlwall’s brother worked.[172]The claimant closed his letter of appeal by saying that he wanted all the issues addressed by an independent party and that he believed the owners of the respondent (specifically Rivka Rose) should have knowledge of what was going on. He said he would write to ACAS and the owners because the senior managers had known about the issues for so long but “not much has been done”. In his evidence at the Tribunal the claimant clarified that by “senior management” he was referring to John Casey (the previous Operational Manager), Mr Bragg and Mr McNeil.[173]By a letter dated 22 September 2022 Ms Shewring informed the claimant the appeal hearing would take place on 26 September 2022, chaired by Mrs Baxter. The claimant was reminded that he was entitled to be accompanied at the hearing.[174]The claimant sent 2 emails on 22 September 2022, one timed at 14:23 and the next at 14:31. In them the claimant said he “strongly advocate[d]” that a member of the Rose family be present at the hearing. He said that only then would he get a fair hearing. He repeated his view that his dismissal was premeditated and said that the process of trying to dismiss him had started more than a year before. He said he believed that if the owners knew what he had been going through they would not have allowed it. He said that otherwise an Employment Tribunal was the only solution to the dispute, and he believed the owners had no idea what had been going on. Neither of his emails referred to discrimination nor to race discrimination or racerelated harassment.[175]Mrs Shewring responded that same day to confirm that Mr and Mrs Rose were living abroad and that other members of the Rose family were not routinely at the respondent’s premises. She said that the respondent’s day-to-day operations were the responsibility of the respondent’s board of directors. She reassured the claimant that Mrs Baxter would deal with matters impartially, pointing out that she had not been involved in any past matters involving the claimant and was a senior employee. The Appeal Hearing[176]The Appeal hearing took place on 26 September 2022. It was conducted by Mrs Baxter. Mrs Shewring attended from HR. Mrs Baxter reminded the claimant that he had a right to be accompanied at the hearing but he confirmed he was ok attending by himself.[177]Mrs Baxter first asked the claimant to clarify his grounds for challenging his dismissal. The claimant asserted that something funny was going on. He said that it was strange that he had not been suspended until 4 days after the incident with Mr Borkowski on 29 July. He said that Mr Bragg had spoken to him on the day of the incident about his grievances. When the claimant was summoned on Monday 1 August he thought he was being called on to deal with his grievances.[178]The claimant referred to his having walked out of the business and said no action had been taken against those he alleged had harassed and intimidated him. He repeated that he needed to speak to Rivka Rose or her son. Mrs Baxter explained (as Mrs Shewring had already done in her email on 22 September) that Rivka Rose was based abroad and that the day-to-day business of the respondent was a matter for its board of directors.[179]During the meeting the claimant repeated his allegations that Mrs Shawcross had refused to drop pallets for him. He also said that there were a number of incidents where he had been singled out or treated less favourably. They included being sent home when he was the one raising complaints of being harassed. He also said that others were promoted or given roles, e.g. as a fire marshal, rather than him. When asked whether he had applied for these opportunities the claimant confirmed he had not because he already knew who was getting the jobs. He also raised the issue of Mr Manning grabbing his pump truck and intimidating him.[180]When it came to the incident with Mr Borkowski on 29 July, the claimant repeated that his dismissal was a set up. He challenged the version of events in Mr Borkowski’s statement. He said it was Mr Borkowski who had shouted at him. The claimant said that Mr Thirlwall had told the claimant “immediately” that he was too close to Mr Borkowski. The claimant said he then stopped and that it was Mr Borkowski who moved towards him. He said Mr Borkowski should not have spoken to him like a child and that Mr Borkowski had overreacted to the incident. Mrs Baxter asked the claimant whether he thought that Mr Borkowski was part of the set-up. The claimant said that he was not and described Mr Borkowski as a down to earth person.[181]The claimant also referred to his ongoing forklift truck driving ban. He made it clear that he was frustrated by the failure to reinstate him to driving duties. He reported that Mr McNeil said he would sort out the necessary refresher training for him but had forgotten to do so. We find that he made it clear that the reason he found the ban so frustrating was that he did not want to have to rely on others to do his work. Mrs Baxter raised the importance of teamwork and asked the claimant to reflect on why there were issues with others. The claimant’s answer was that he did not “chit-chat” with others. He did not like being interrupted and finished an order before chatting to anyone. He said that if you were serious about your work you concentrated.[182]Having gone through the claimant's version of events, Mrs Baxter asked him whether there was anything else. He said there was not but that he did not know why he had been dismissed. Mrs Baxter referred to Mrs Brett’s dismissal letter and the claimant said he had not seen it. Mrs Shewring checked the email of 5 September 2022 and thought the dismissal letter had not been attached to it. We find it had but that it was the last attachment of 10 and that Mrs Shewring did not scroll down to see all the attachments at the hearing.[183]In the mistaken belief that the dismissal letter had not been sent before, Mrs Shewring emailed the letter to the claimant at the hearing. It was agreed that the claimant would have until Wednesday 28 September to respond or to ask for more time to do so. Mrs Baxter confirmed that having seen the claimant’s further response she would decide whether to re-convene the appeal hearing or deal with matters in writing. Events after the appeal hearing including the appeal outcome[184]On 29 September 2022 the claimant emailed a letter (pp.163-165) setting out “an extension” to his appeal in response to Ms Brett’s dismissal letter. He said that a number of points made in that letter were based on facts which had been “misrepresented”. In summary, the claimant said:a. The incident on 29 July had started with Mr Borkowski shouting at him and asking why he replenished the pallet. The claimant had reacted by asking Mr Borkowski to speak to him like a grown up and stop shouting at him. He said that rather than him invading Mr Borkowski’s personal space as alleged, it was Mr Borkowski who had come towards him. He said he felt humiliated because Mr Borkowski was shouting at him in front of colleagues.b. In hindsight he saw that Mr Thirlwall was acting as a “cheerleader” and trying to make matters worse (rather than intervening to try and calm things down). He was pleased when Mr Bragg intervened.c. Mr Borkowski should have explained his role in replenishing properly on Thursday 28 July and told Mrs Shawcross not to discriminate but to drop pallets for everybody.d. He was repeatedly harassed by colleagues, including a colleague called Josh who he said was spying on him on both days, waiting to see what the claimant would do when Josh effectively blocked his access to products the claimant needed for the pallet he was picking. The claimant said that was another example of the harassment he was experiencing.e. Mr Manning harassed him 2-3 times a week. One example was by wanting him to help with an Ocado order.f. He had reported the incidents of harassment to Mr Borkowski and Mr Bragg but nothing was done.g. Mrs Shawcross refused to drop pallets for him. Every time he approached her to ask her to drop pallets for her she would say things like “here comes trouble” or “now what”. That was why he had called her a bully. He said Mr Bragg and Mr Borkowski were well aware that Mrs Shawcross would not drop pallets for him.h. He had not called Mrs Shawcross a “Moron” on the 14 July but accepted he had referred to those harassing him as “morons” when he walked out of the business. He denied he had specifically named anyone or said “moron” to anyone’s face.[185]In his email the claimant used the terms “harassing” and “discriminate” but did not say that was because of or related to race. He did not refer to his race or, for example, suggest that his being the only black employee was a factor in the way he was treated.[186]As a result of the claimant’s email Mrs Baxter interviewed Mr Borkowski again on 30 September 2022. Mrs Shewring took notes (pp.167-168). In summary:a. Asked whether the claimant could have been confused about the instructions given on 28 July, Mr Borkowski said it was clear that the claimant understood. Mr Borkowski said that the claimant told him during the 1:1 conversation on 28 July that he would follow those instructions which everyone else was already doing.b. Mr Borkowski confirmed that it was the claimant who had closed the space between them during the incident on 29 July, rather than him. He said that he felt quite scared because the claimant was so close to him. He said both he and Mr Thirlwall told the claimant he was too step back.c. Mr Borkowski said there was an issue when it came to the relationship between the claimant and Mrs Shawcross. Mr Bragg had spoken to both of them about it. She had said that she would not drop pallets for the claimant if the claimant carried on speaking to her the way he was. He confirmed that Mrs Shawcross would drop pallets for everyone, but not immediately. He said that she made comments like those quoted by the claimant to everyone. He also said the claimant had referred to warehouse colleagues as “morons”.d. Asked about the incident when the claimant had been told by Mr Manning to hurry up on is break, Mr Borkowski said that it did not appear to him to be harassment.e. Mr Borkowski confirmed that he had not had any dealings with the claimant ‘s reinstatement as a forklift driver, that being a matter for Mr Bragg.f. He confirmed that the claimant’s performance was good and sometimes “amazing”.[187]Mrs Baxter set out the appeal outcome in a letter dated 3 October 2022 (pp.169-171). She upheld the decision to dismiss on grounds of gross misconduct (serious insubordination towards Mr Borkowski on 29 July). She also concluded that the claimant deliberately disobeyed the instruction given by Mr Borkowski on 28 July 2022. She confirmed that after interviewing Mr Borkowski on 30 September she was satisfied that the claimant had understood the instruction given not to move pallets on the system. She was also satisfied that it was the claimant who had begun shouting first and had moved into Mr Borkowski’s personal space rather than the other way round. She based that on Mr Borkowski’s evidence and that of Mr Thirlwall and Ms Baines.[188]Mrs Baxter’s letter also referred to the other issues raised by the claimant. She noted the 2 periods when the claimant walked out of the business and the outcome of the grievance meeting on 14 June 2022. She noted that the claimant had agreed to the outcome of that grievance. She noted the claimant’s email of 8 July to Mr Allaway and recorded what happened at the meeting with him on 3 August 2022. She also referred to the removal of the claimant's forklift truck licence. She noted the frustration that caused the claimant. She recorded that Mrs Shewring had discussed that with Mr Bragg, who had confirmed that he did not require any more forklift truck drivers at that time.[189]Mrs Baxter’s letter confirmed there was no further appeal from her decision.[190]The claimant had begun ACAS Early Conciliation on 20 September 2022 (after his dismissal but before the appeal hearing). The ACAS Early Conciliation Certificate was issued on 22 September 2022. He issued his claim at the Employment Tribunal on 5 November 2022. Findings of fact about the claimant’s pay relevant to the unauthorised deduction/breach of contract complaints.[191]The claimant’s pay varied depending on hours worked and what overtime he did. The claimant’s payslips were in the Bundle. They showed that the claimant's net pay for April 2021 was £1590.19 and for May 2021 was £1626.85. His net pay for July 2021 was £1,622.67 and for August 2021 was £1635.90.[192]The claimant’s net pay for June 2021 was £1,278.72 (p.180). The claimant’s case was that that represented a significant and inexplicable drop in pay for that month. He said that was due to a deduction of £250. He said that was an unauthorised deduction and/or a breach of contract.[193]We find that on 3 June 2021 the respondent had made payment of an “advance” of £250 to the claimant. We accept Mrs Shewring’s evidence that that advance was made to correct a previous error in the claimant’s pay for April 2021.[194]The claimant denied having received that £250. We did not have the claimant’s bank statements for June 2021 in the Bundle. However, it did include the Faster Payment Receipt recording the payment to the claimant (p.91). We find the respondent did make that payment of £250.[195]We find the claimant’s payslip for June 2021 recorded the hours for which the claimant had been paid that extra £250 but then deducted the £250 from the total paid. That was because the £250 had already been paid separately on 3 June 2021.[196]Clause 7.4 of the claimant’s contract of employment (p.83) authorised the respondent to deduct from the claimant’s salary any sums owed to the respondent by the claimant. Discussion and Conclusions The Unfair Dismissal complaint (Issues 2.1 to 2.3) The reason for the dismissal (issue 2.1)
Discussion and Conclusions
[197]The first issue is whether the respondent has established that the reason or principal reason for dismissing the claimant was a potentially fair reason for the purposes of section 98 of the ERA. The respondent says the potentially fair reason was conduct. The decision to dismiss was made by Ms Brett. We did not hear oral evidence from her but had a signed written statement in which she confirmed that her decision to dismiss was for 2 acts of misconduct. The first was the claimant’s serious insubordination on 29 July 2022 in disregarding the legitimate instructions given by Mr Borkowski on 28 July. The second was his excessive and inappropriate behaviour towards Mr Borkowski during the incident on 29 July which also amounted to serious insubordination. That was consistent with the reasons she gave for the dismissal in her decision letter dated 2 September 2022.[198]The claimant in his cross-examination evidence asserted that the respondent had been trying to get rid of him for some time. He said “the management” had been trying to force him to quit his job by making things hard for him at work. He said it was only when he stood firm and did not resign that they instead dismissed him. The claimant seemed reluctant to clarify who he said had instigated his dismissal, referring only to “the management”. When pressed to be clear about who he meant he said he meant John Casey, Mr McNeil and Mr Bragg. The claimant was unable to explain why Mr Casey would seek to engineer his dismissal given that they had not worked together since the move to Ainsworth. The claimant also had no cogent answer when asked by Mr Weiss why Mr Bragg would engineer the claimant’s dismissal on his last day with the respondent. The claimant did not provide any evidence beyond his own assertions about the actions of “the management”. We find the evidence we did hear inconsistent with the claimant’s suggestion, in particular the (successful) efforts made by Mr Bragg to get the claimant to return to work when he walked out in June and July 2022. The claimant did not name Ms Brett as part of the “management” who set up his dismissal.[199]The claimant said he did not think that either Mr Borkowski or Mr Thirlwall had set up his dismissal, but suggested they went along with it. During his evidence on the morning of the third day of the hearing said that a number of the statements made by witnesses as part of the disciplinary proceedings were made up. He was unable to explain why they would do that. It seemed particularly inconsistent with the other evidence we heard. That was that he got on with Mr Borkowski, who he considered a “good guy” and who acted as his companion at grievance meetings. The evidence was that Mr Borkowski in turn thought the claimant was a good worker.[200]We have reminded ourselves that it is not for the claimant to prove that the reason for dismissal was other than the one put forward by the respondent. However, as Kuzel makes clear, a claimant must produce some evidence of a different reason to that put forward by the respondent. We find the claimant has not done so. He has merely put forward what amounts to a conspiracy theory without evidence to substantiate it. We find that the respondent has established that the reason for the claimant’s dismissal was a potentially fair reason, namely conduct. The fairness of the dismissal for that reason (issues 2.2. and 2.3)[201]When it comes to the elements of the “Burchell” test we accept the respondent (specifically Ms Brett) genuinely believed that the claimant had committed misconduct as set out in her dismissal letter (issue2.3.1 ). We find that she had reasonable grounds for that belief (issue2.3.2 ). The rationale for her decision set out in her witness statement was cogent and consistent with the documentary evidence in the Bundle. The witness evidence gathered during the investigation process (both before and after the initial part of the disciplinary hearing) provided a basis for her finding that the claimant had deliberately ignored Mr Borkowski’s direct instruction not to move pallets on the system and had moved into Mr Borkowski’s personal space in an intimidating way during the incident on 29 July 2022.[202]We do find that the belief was formed after carrying out a reasonable investigation (issue 2.3.3). In addition to the initial emailed statements from Mr Borkowski and Mr Thirlwall on 1 August 2022, the respondent held an investigatory interview with the claimant on 8 August. That was conducted by Shelagh Anderton, who played no part in the decision to dismiss. We find the claimant was given an opportunity to give his version of events. After the initial part of the disciplinary hearing on 17 August 2022, Ms Brett carried out further interviews on 30 August and 1 September. They explored not only the incidents which formed the basis of the allegations against the claimant but the wider context. That included his relations with colleagues and whether there was any evidence of racism or race discrimination against the claimant.[203]The claimant submitted that the respondent should also have interviewed Mr Bragg and other warehouse colleagues. However, Mr Bragg had left the respondent by the time the investigation began. The claimant did not suggest that any of the other warehouse colleagues witnessed the incidents giving rise to his dismissal. We remind ourselves that the question for us is whether the investigation fell within the band of what was reasonable in the circumstances. That does not mean the investigation had to leave no stone unturned. The misconduct in this case consisted of 2 incidents on 29 July 2022. The respondent investigated the incidents but also the context for them. In those circumstances we find the investigation carried out was reasonable. The witnesses with relevant evidence were interviewed.[204]The next issue is whether the respondent followed a reasonably fair procedure (issue 2.3.4). We find that the procedure followed was reasonably fair overall. There was a reasonable investigation. The allegations against the claimant were clear from the suspension letter and disciplinary hearing invitation letter. The claimant was given an opportunity to put his side of the story. The respondent took further time to investigate the context for the incidents before the decision to dismiss was made at the reconvened disciplinary hearing on 1 September 2022. Although the claimant contested the version of events in Mr Borkowski, Ms Baines’s and Mr Thirlwall’s statements, Ms Brett was entitled to prefer their evidence to that of the claimant about what happened.[205]The claimant suggested that the procedure was flawed because the disciplinary hearing (and the subsequent appeal hearing) should have been heard by someone completely independent. In particular, he submitted that the owners of the business should have been involved at appeal stage. We do not accept that. There was no evidence to suggest either Ms Brett or Mrs Baxter were not independent and impartial. Neither had been involved in the incidents giving rise to the disciplinary process. In the Tribunal’s experience it would be unusual for the owners of a business to carry out disciplinary and appeal hearings when the business had a board of directors or senior employees able to do so. We do not find that appointing Ms Brett and Mrs Baxter to hear the dismissal and appeal hearings meant the procedure followed was not fair.[206]We do find there was a flaw in the procedure. As Mrs Baxter accepted in her evidence, there was an error in that the claimant was not sent the notes of the interviews carried out by Ms Brett on 30 August and 1 September before the disciplinary hearing at which he was dismissed was reconvened. We have considered whether the flaw was significant enough to render the procedure unfair. We need to consider the procedure as a whole, including the appeal. We found that the claimant was sent all the relevant documents on 5 September 2022. We found that included the dismissal letter (despite Mrs Shewring mistakenly thinking it had not been sent). The claimant therefore had an opportunity to make any points he wished to make about those statements at the appeal stage. He was also given an opportunity to make further submissions after the appeal hearing when the respondent believed that the dismissal letter had not been sent. Mrs Baxter carried out a further interview with Mr Borkowski before making her decision on the claimant’s appeal. Taking the process as a whole we find that any unfairness from the error was remedied at the appeal stage. The respondent did, we find, carry out a reasonably fair procedure.[207]The next issue is whether dismissal was within the band of reasonable responses (issue 2.3.5). It is not for us to substitute our view for that of the employer. In this case, the respondent had concluded that the claimant had deliberately ignored reasonable management instructions given to him by Mr Borkowski. Ms Brett’s conclusion was that he had done so wilfully and deliberately. We find she reasonably concluded on the evidence that the claimant had understood the instruction but chosen to do things his preferred way instead. We find she reasonably concluded that his apparent lack of remorse meant that there was a real risk he would continue to disregard instructions. We also find she reasonably concluded that when Mr Borkowski had challenged the claimant about this on the 29 July the claimant had shouted at him, invaded his personal space and made him feel unsafe and threatened. She reasonably concluded that behaviour was wholly unacceptable for an employee who was being challenged by their manager about a failure to follow instructions.[208]We find that Ms Brett did take into account the claimant’s length of service and clean disciplinary record. We find she had also considered whether there were background circumstances which might provide mitigation for the claimant’s behaviour. Having carried out the further interviews between the 2 parts of the disciplinary hearing, she reasonably concluded that there were not. That included considering whether there was any evidence of discriminatory behaviour against the claimant because of his race.[209]We also find that Mrs Baxter reasonably concluded that there were no grounds for upholding the claimant’s appeal against dismissal. She did so having carried out her own further investigation and giving the claimant an additional opportunity to set out his case.[210]In those circumstances we find that dismissal for misconduct was within the band of reasonable responses.[211]Taking all those point into consideration we find that the claimant’s dismissal was not unfair. The complaint of unfair dismissal fails. The complaints of direct race discrimination and race-related harassment[212]We have set out below our decision on each of the harassment and discrimination complaints. Each of the incidents set out at 4.11-4.1.5 and 5.3.1-5.3.5 were relied on as acts of race harassment or, in the alternative, as acts of direct race discrimination. Taking each incident in turn, we first set out our decision on whether the complaint of direct race discrimination in relation to that incident succeeds and then whether the complaint of harassment in relation to that incident succeeds. Over a two-week period, about 3 times a week, in or around the end of May 2022/beginning of June 2022, a colleague, Dwayne Manning, took the pump truck and scanning gun which the claimant had been using since selecting them early in the morning (4.1.1 and 5.3.1)[213]Mr Manning accepted that he would on occasion borrow the pump truck the claimant was using. If the scanning gun the claimant was using was on the truck he would in effect be taking that while he was using the truck. We do not accept that Mr Manning took the truck and gun as often as the claimant suggested. In particular, we found Mr Manning could not have taken the truck and scanner the claimant was using during the first 2 weeks of June because the claimant was not at work. However, we find the claimant has established that Mr Manning did on occasion take the pump truck and scanning gun he was using (issue 5.3.1).[214]We do not accept that amounted to less favourable treatment of the claimant (issue 5.4). The claimant relied on a hypothetical comparator. We find the relevant comparator would be a white warehouse operative using a pump truck and scanning gun which Mr Manning needed to borrow. We found that Mr Manning would also borrow trucks and guns being used by white colleagues. Indeed, we found he was more likely to so than to borrow the claimant’s truck because of past confrontations between them when he had tried to do so. Although the claimant was genuinely of the belief that Mr Manning was picking on him, our finding is that Mr Manning did not treat him less favourably on the occasions when he did take the pump truck and scanning gun he was using.[215]If we are wrong, and Mr Manning’s conduct did amount to less favourable treatment, the next issue would be whether that less favourable treatment was because of race (5.5). The burden is initially on the claimant to prove facts from which we could conclude that that was the case. A difference in treatment and a different in race are not sufficient to pass the burden without “something more”.[216]We accept the claimant was the only black employee working in the warehouse. However, the claimant himself did not prior to his Tribunal claim assert that his treatment by Mr Manning and Mrs Shawcross was because of or related to race.[217]In his written grievance of 9 June 2022, the claimant did not suggest that Mr Manning’s behaviour was because of race. He did not mention race when Mr Bragg asked him at the grievance hearing on 14 June why he thought the behaviour towards him from colleagues was happening. Instead, he said it was because others kept quiet about things that went on.[218]We found he and Mr Manning had been friends and the claimant’s evidence was that attitudes had changed when colleagues found out how much he was being paid. He said Mr Thirlwall’s attitude to him changed when the claimant “dobbed” in Mr Thirlwall’s brother, who also worked for the respondent. None of those reasons related to the claimant’s race.[219]The claimant raised his issues with Mr Manning at his dismissal hearing on 17 August 2022. He did not allege that Mr Manning’s alleged behaviour towards him was due to his race or related to it.[220]The claimant did allege that Jimmy racially harassed him using an explicitly racist term and that Mr Casey discriminated against him because of race. That was in 2021. However, those matters were not part of the case and we did not hear evidence about them. The documentation suggested the respondent had concluded in 2021 that those alleged incidents did not happen. More pertinently to our case, neither Jimmy nor Mr Casey worked with the claimant at Ainsworth and neither was involved in the allegations forming part of this case.[221]The claimant accepted that he did say to Mrs Shawcross on 14 July 2022 that she may only be driving a forklift rather than him because he was black and she was white. He did not provide evidence to substantiate that allegation. He did not allege that Mrs Shawcross had treated him differently because he was black. At the meeting with Mr Bragg on 18 July 2022 he explained he said that because he was angry, that he should not have said it and should apologise.[222]The claimant told Mr Borkowski on 18 July that he was being discriminated against because he was black but did not say by who or in what circumstances. There was no evidence that he said that Mr Manning or Mrs Shawcross (the alleged discriminators) were those discriminating against him.[223]The claimant did not during the disciplinary process allege he had been racially discriminated against. Ms Brett asked those witnesses she interviewed on 30 August and 1 September 2022 whether they had witnessed any such discrimination or racist behaviour towards the claimant. Those witnesses said they had not.[224]Taking all that together we find the claimant failed to prove facts from which we could conclude that discrimination had occurred. In those circumstances the burden does not pass to the respondent to provide a non-discriminatory explanation.[225]The direct race discrimination complaint relating to this allegation fails.[226]We accept that Mr Manning taking the truck and scanning gun the claimant was using was conduct that was unwanted by the claimant (issue 4.2).[227]We find the conduct was not race related (issue 4.3). In considering the direct race discrimination complaint we decided that Mr Manning’s behaviour was not because of the claimant’s race. We remind ourselves that the “related to race” test in a harassment complaint is broader. The burden of proof is still on the claimant to prove facts from which we could conclude that harassment had occurred. As we said, the claimant himself did not (prior to his Tribunal claim) suggest that Mr Manning’s conduct was race related. He did not suggest that in the grievances and various meetings he took part in. There was no evidence that Mr Manning said anything to the claimant during any confrontations which was explicitly racist or referred directly or indirectly to the claimant’s race.[228]This allegation of harassment fails because the conduct was not race-related.[229]Based on our findings of fact we do not accept that Mr Manning’s conduct had a harassing purpose (issue 4.4).[230]We also do not accept that the conduct had a harassing effect (issue 4.5). We accept that the claimant resented Mr Manning borrowing “his” truck. We also accept that the claimant felt that he was being “picked on”. He reported to Mr Bragg feeling intimidated. Even if the claimant’s belief was that the conduct met the threshold for harassing effect required by s.26 of the Equality Act 2010 we do not find it was reasonable for it to have that effect. We found that Mr Manning was borrowing the claimant’s truck and scanners in the same way as he borrowed other colleagues’ trucks and scanners. Our finding was that when the claimant was present he would ask to borrow the equipment he was using. The claimant may have thought Mr Manning was rude or disrespectful in the way he spoke to him but we do not find that is sufficient to meet the threshold required for a harassing effect. That includes telling the claimant that the truck was the respondent’s not the claimant’s. That was a statement of fact and insufficient to amount to the required harassing effect.[231]Had we found Mr Manning’s conduct was race-related, the harassment On a Friday, in June 2022, Dwayne Manning removed a pallet which the claimant had put in the shrink wrap machine, replacing it with his own pallet, before the claimant could use the machine. (4.1.2 and 5.3.2)[232]Mr Manning accepted he removed the claimant’s pallet from the shrink wrap machine. We found the claimant was not there when he did so.[233]We do not accept that Mr Manning’s conduct amounted to less favourable treatment of the claimant (issue 5.4). Our finding was that Mr Manning did not know whose pallet had been left on the shrink wrap machine. He moved the unattended pallet because he wanted to shrink wrap his pallet. He did not treat the claimant less favourably because he did not know it was his pallet he was moving. He would have acted the same way had it been a white warehouse operative who had left a pallet unattended on the shrink wrap machine. This allegation of direct race discrimination fails for that reason.[234]We do find that Mr Manning’s conduct was unwanted in the sense that the claimant did not want his pallet moved from the shrink wrap machine (issue 4.2).[235]We do not find the conduct was race-related (issue 4.3). Mr Manning did not know whose pallet he was moving. He did not know the race of the person whose pallet it was. Our findings about this issue in relation to allegation 4.1.1 also apply.[236]We find the conduct was not race-related and this allegation of harassment fails on that basis.[237]For completeness, we do not accept that Mr Manning’s conduct had a harassing purpose. He moved the pallet because he needed to use the shrink wrap machine not to harass the claimant (issue 4.4).[238]We also do not accept that it was reasonable for the conduct to have a harassing effect even if the claimant perceived it to have that effect (issue 4.5). It was no doubt annoying for the claimant to have his pallet moved but we do not find that met the threshold required for a harassing effect.[239]Had we found Mr Manning’s conduct was race-related, the harassment On the same day, during the argument which followed, Dwayne Manning told the claimant he would bash his head in. (4.1.3 and 5.3.3)[240]Our finding of fact was that Mr Manning did not say this. Allegations 4.1.3 and 5.3.3 fail on the basis the alleged treatment/unwanted conduct did not occur. On Wednesday of the following week, Dwayne Manning shouting at the claimant, who was at his locker after lunch, in the hearing of the line manager, Harold, and supervisor, Maciej, not to waste time and come and get some work done. (4.1.4 and 5.3.4)[241]We found Mr Manning did shout this to the claimant. We found that he did it in what he thought was a jokey way.[242]We accept the treatment occurred (issue 5.3.4).[243]We do not accept that the treatment was less favourable treatment of the claimant (issue 5.4). We found that Mr Manning would shout similar things to white colleagues at the end of breaks or lunch. We accepted he considered he was doing so in a jokey, bantering way. We have considered the claimant’s submission that this was less favourable treatment because when Mr Manning shouted at him, they had fallen out and were not talking. We found that Mr Manning was oblivious to the fact they had fallen out. We find Mr Manning made what he thought was a light-hearted comment and would have done the same to any white colleague in the same circumstances. His conduct was not less favourable treatment of the claimant.[244]This allegation fails because there was no less favourable treatment of the claimant.[245]If we are wrong about that, we would have found that the claimant failed to prove facts from which we could conclude that any less favourable treatment was because of race (issue 5.5). In those circumstances the burden does not pass to the respondent to provide a non-discriminatory explanation. That conclusion is based primarily on the reasons we set out in relation to allegation 5.3.1. It also takes into account that there was no evidence to suggest that what Mr Manning shouted was in any way about or related to the claimant’s race.[246]The direct race discrimination complaint relating to this allegation fails.[247]We accept that Mr Manning’s conduct in shouting at him was conduct that was unwanted by the claimant (issue 4.2). We find the claimant found it rude and disrespectful. In particular, he took the view that as Mr Manning was at the same seniority as him he should not, as he saw it, be telling the claimant what to do.[248]We find the conduct was not race related (issue 4.3). In considering the direct race discrimination complaint relating to this allegation we decided that Mr Manning also shouted similar things to his white colleagues. Again, we remind ourselves that the “related to race” test in a harassment complaint is broader. The burden of proof is still on the claimant to prove facts from which we could conclude that harassment had occurred. As we said, the claimant himself did not (prior to his Tribunal claim) suggest that Mr Manning’s conduct was race related. There was no evidence that Mr Manning said anything to the claimant during any confrontations or during this incident which was explicitly racist or referred directly or indirectly to the claimant’s race.[249]We find the conduct was not race-related and this allegation of harassment fails on that basis.[250]Based on our findings of fact we do not accept that Mr Manning’s conduct had a harassing purpose (issue 4.4). We find his genuine purpose was to engage in what he saw as light-hearted banter.[251]We also do not accept that the conduct had a harassing effect (issue 4.5). We are very conscious that one person’s “banter” can have a harassing effect, whatever its purpose. In relation to this allegation, we accept that the claimant did perceive Mr Manning shouting at him to be disrespectful and rude. He was by this point convinced he was being picked on by Mr Manning. He found it offensive and humiliating to be shouted at and, as he saw it, be told what to do by someone of the same seniority as himself. We do not find it reasonable for Mr Manning’s conduct to have had that effect, even taken with the previous incidents which had occurred. We have explained above why it was not reasonable for those incidents to have a harassing effect. We found that Mr Manning made similar jokey remarks to white colleagues. In those circumstances we do not find it reasonable for his light-hearted comments to have a harassing effect on the claimant.[252]Had we found Mr Manning’s conduct was race-related, the harassment For about 8 months to the end of July 2022, a colleague Dawn, would fail to move pallets with a forklift truck, as requested by the claimant. This got worse from May 2022. In the week of 28 July 2022, Kim told the claimant that she would no longer move pallets for him. (4.1.5 and 5.3.5)[253]We found that Mrs Shawcross did not refuse to move pallets for the claimant for 8 months (or for the shorter period of 3 months which the claimant asserted at the Tribunal hearing). That part of this allegation fails on the facts. We find it was the claimant who stopped asking Mrs Shawcross to drop pallets for him.[254]We found that after the altercation with the claimant on 14 July Mrs Shawcross suggested that he ask someone else to drop pallets for him in future and told Mr Bragg she would not move pallets for the claimant in future if he continued speaking to her the way he had. That is not the allegation set out in the List of Issues, which refers to a refusal to move pallets and that being on 28 July. We find there was no such refusal.[255]This allegation fails on the basis the alleged conduct by Mrs Shawcross did not happen. She did not refuse to drop pallets for the claimant.[256]We did find that Mrs Shawcross said she may refuse to drop pallets for the claimant in the future and suggested he ask someone else to drop them for him. That is not the specific allegation made in 4.1.5 and 5.3.6. It seems to us the complaint fails because the allegation in the list of issues has not been made out on the facts.[257]If we are wrong, and the conduct by Mrs Shawcross in para 254 is close enough to fall within 4.1.5 and 5.3.5 we set out our conclusions in relation to it.[258]In deciding whether Mrs Shawcross saying she may refuse to drop pallets in the future was less favourable treatment (issue 5.4) we have to identify the appropriate hypothetical comparator. They have to be in the same material circumstances as the claimant apart from his race. We find that comparator would be a white colleague who had fallen out with Mrs Shawcross because she thought they were trying to “jump the queue” and who had questioned her competence as a forklift driver and called her a “moron” and a “bully” as the claimant had done. That is the appropriate comparator because she made clear to Mr Bragg that the reason she may not drop pallets for the claimant in future was because of the way he had spoken to her. Mr Borkowski’s evidence during the disciplinary process was that Mrs Shawcross said things like “now what” and “here comes trouble” to everyone. We find that she had her own structured way of working and did not like those who sought to jump the queue. We find that Mrs Shawcross would have treated a white colleague who spoke to her in the way the claimant did in the same way.[259]If we are wrong, and Mrs Shawcross did treat the claimant less favourably we would have found that the claimant did not prove facts from which we could conclude that any less favourable treatment was because of race (issue 5.5). The primary reasons are those alredy set out in relation to 5.3.1. There was nothing in the incident itself which amounted to evidence sufficient to pass the burden of proof. In those circumstances the burden does not pass to the respondent to provide a nondiscriminatory explanation.[260]The direct race discrimination complaint relating to this allegation fails.[261]We accept that Mrs Shawcross’s potential refusal to drop pallets for the claimant in future was conduct that was unwanted by the claimant (issue 4.2).[262]We do not find that conduct was related to race. We found Mrs Shawcross would have acted the same in relation to a white comparator in the same material circumstances. Although the broader “related to race” test applies when considering the conduct as harassment the burden of proof is still on the claimant to prove facts from which we could conclude that harassment had occurred. The claimant himself did not (prior to his Tribunal claim) suggest that Mrs Shawcross’s conduct was race related. There was no evidence that Mrs Shawcross said anything to the claimant during any confrontations or during this incident which was explicitly racist or referred directly or indirectly to the claimant’s race.[263]We do not find that any conduct was race related (issue 4.3).[264]Based on our findings of fact we do not accept that Mrs Shawcross’s conduct had a harassing purpose (issue 4.4).[265]We also do not find the conduct had a harassing effect. We do not accept that the claimant perceived Mrs Shawcross as having a harassing effect. He was not intimidated by it, telling her to her face she was a bully and calling her a “moron”. We do not find he perceived it as creating a humiliating, offensive or hostile environment or violating his dignity. We remind ourselves those terms are not to be devalued by accepting everything someone might find rude, offensive or upsetting to be harassment. If the claimant did have that perception, we find it was not reasonable for the conduct to have that effect in all the circumstances. What Mrs Shawcross did was to suggest the claimant ask someone else to drop pallets for him in circumstances where he had told her she was a bully. He had then gone on to call her a “moron”. That was the context for her telling Mr Bragg that she would not drop pallets for the claimant in future if he continued to speak to her that way. In that context we do not find it reasonable for the conduct to have a harassing effect even if the claimant perceived it as such.[266]Had we found Mrs Shawcross’s conduct to be race-related, the harassment The victimisation complaint under s.27 of the Equality Act 2010 (Issues 6.1 to 6.4)[267]There is no dispute that the claimant was dismissed. The key questions when it comes to the victimisation complaint are whether the respondent believed the claimant may do a protected act (issue 6.1) and whether he was dismissed because of that. The burden of proof is initially with the claimant (6.2) to prove facts from which we could conclude that was the case (issue 6.3).[268]The claimant said he had been dismissed because the respondent thought that he might do a protected act by raising complaints of race discrimination with the owner of the business. The claimant asserted that he had made clear by email in June 2022 (i.e. before the dismissal) that he was going to raise matters with the owner, Rivka Rose but had been told that the owner was abroad and not contactable. We found that exchange took place on 22 September 2022 after he was dismissed.[269]The first question for us is whether Ms Brett in deciding to dismiss the claimant believed that the claimant might do a protected act (issue 6.1). That would mean that Ms Brett believed that the claimant was going to make an allegation to the owner of the business that he had been subjected to race discrimination or race related harassment. We did not hear oral evidence from Ms Brett. In her witness statement she said that she did not think the claimant’s reference to raising matters with Rivka Rose was a refence to his complaining about race discrimination or harassment. Rather she thought it was a reference to his wanting to complain about his dismissal.[270]The evidence (including the claimant's own emails of 22 September 2022) does not suggest that the claimant was going to make an allegation that there had been conduct in breach of the Equality Act 2010. Nor did the claimant suggest at the dismissal meeting that he intended to raise issues of race discrimination or harassment with the owners. We accept the evidence in Ms Brett’s statement that she did not believe the claimant may be going to do a protected act by raising issues of discrimination with Rivka Rose. There was nothing in what he had said or written to suggest that was the case.[271]The victimisation complaint fails because the respondent did not believe the claimant might do a protected act.[272]Even if we are wrong about that, we find that the claimant’s request to speak to the owners was made after Ms Brett had made her decision to dismiss. It is clear from the transcript of the dismissal meeting (pages 145-146) that Ms Brett had announced her decision to dismiss the claimant before the claimant said he would “try and speak to Rivka [Rose]”. In his subsequent appeal letter the claimant talks of letting the owners know about what was going on. That confirms, to our minds, that the claimant had not raised the issues with them prior to that point.[273]We find, therefore, that Ms Brett could not have believed at the point she decided to dismiss that the claimant may do a protected act because he did not raise that possibility of speaking to the owners with her until after she had announced her decision. That did not play any part in her decision to dismiss (issue 6.3).[274]For the reasons given above, the victimisation claim fails. Time Limits for the discrimination, harassment and victimisation complaints (Issues 1.1 to 1.1.4)[275]All the complaints brought under the Equality Act 2010 fail. In the absence of any acts of discrimination, harassment or victimisation this time limit issue does not arise. The unauthorised deduction/breach of contract claim (Issues 8 and 9)[276]As we have explained, the claimant’s case as clarified was that the £250 deduction made by the respondent shown on his June 2021 pay slip was an unauthorised deduction and/or a breach of contract. We found, however, that the deduction shown on the payslip reflected an advance payment of £250 which the respondent made to the claimant on 3 June 2021. That means that in June 2021 the respondent paid the claimant the £1278.72 shown on his payslip plus the £250 sent by Faster Payment on 3 June 2021. We find that the respondent did not actually deduct £250 from the claimant’s pay in June 2021.[277]That means there was no deduction from the claimant's wages and his complaint of an unauthorised deduction fails.[278]It also means there was no failure to pay his wages amounting to a breach of contract. The complaint of breach of contract also fails. Time limits on the unauthorised deduction claim (Issues 1.2.1 to 1.2.3).[279]The issue of whether the claimant’s unauthorised deduction complaint was brought in time is academic for 2 reasons. The first is that we have decided there was no unauthorised deduction from the claimant’s wages. The complaint would fail even if brought in time. The second reason, as Mr Weiss pointed out, is that the complaint of a failure to pay wages by deducting £250 from the June 2021 pay was also brought as a complaint of breach of contract. That breach of contract complaint was in time because it was brought within 3 months of the effective date of termination of the claimant’s employment. Had we upheld the claimant’s complaint about the £250 deduction it would have succeeded as a breach of contract complaint even if the unauthorised deduction complaint was out of time.[280]Had we been required to decide the time limit issue on the unauthorised deduction complaint we would have found it was out of time.[281]To be within the usual time limit, that complaint should have been brought within three months of the alleged deduction, i.e. within 3 months of 30 June 2021. The unauthorised deduction complaint was not made until the claimant lodged his claim form in this case on 5 November 2022. The complaint was over a year out of time (Issue 1.2.1).[282]The next question is whether it was reasonably practicable for the claimant to have brought the complaint in time (Issue 1.1.2). The claimant did not suggest that he did not know about his right to bring a Tribunal claim. He confirmed that when he decided to bring his claim about his unfair dismissal, he had Googled and found out that he needed to contact ACAS. There is no suggestion that he would have been unable to do that in 2021. Instead, the claimant's explanation for his delay in bringing his unauthorised deduction complaint was that he was trying to sort it out with the respondent. We accept he had raised the issue with Mrs Shewring when they spoke on the phone on 1 June 2022 and again during the grievance meeting with Mr Bragg and Mrs Shewring on 14 June 2022. At that meeting Mrs Shewring explained about the £250 advance in June 2021. In his letter of 6 July 2022 Mr Bragg again explained the £250 deduction in June 2021 was a result of an advance made to the claimant. The claimant submitted that he thought it might still be possible to resolve the issue if he could get the owners of the business involved but we find that by 6 July 2022 at the latest the claimant was clear that the respondent was not going to accept there was an unauthorised deduction from his June 2021 pay. The claimant did not bring his unauthorised deduction complaint until 4 months later.[283]The test we need to apply is whether it was reasonably practicable i.e. reasonably feasible for the claimant to bring his claim in time. We find that the fact that the claimant was seeking to resolve the matter internally did not make it not reasonably practicable for him to bring his complaint within time.[284]If we are wrong about that and the claimant is correct that it was not reasonably practicable to bring his complaint because of his attempts to resolve matters with the respondent, we would need to go on to decide whether the complaint was filed within such further period as we consider reasonable (Issue 1.2.3). We find it was not. We find that it would have been reasonable for the claimant to file his complaint at the absolute latest as soon as possible after 6 July 2022 when the respondent (through Mr Bragg’s letter) made its position on the alleged £250 deduction clear. It was not reasonable to delay to delay filing the complaint at that point based on the hope that the owners would take a different view of the matter.[285]Had we found that there was an unauthorised deduction, therefore, we would have found that that complaint was brought out of time and failed on that basis. Summary of Conclusions[286]All the claimant’s complaints fail and are dismissed. That means we do not need to decide the issues relating to remedy at sections 3, 7 and paragraph 9.2 of the List of Issues.