Mr W CrawfordClaimantISG Technology Limited PRELIMINARY HEARINGRespondent
Before
Employment Judge Phil AllenIn person for claimantMs L Quigley (instructed by counsel) for respondentDate 19 July 2022
JUDGMENT
[1]The claims of victimisation are struck out under rule 37 because they have no reasonable prospect of success.[2]The claims of harassment related to race and/or religion and belief, that the claimant was called “mate” from November 2019 and/or that offensive language was used in front of him from 12 November 2019 (including on a particular occasion in January 2020) are struck out under rule 37 because they have no reasonable prospect of success.[3]The claimant’s other claims of direct discrimination, harassment and unlawful deductions from wages, will proceed to hearing. JUDGMENT having been sent to the parties on 23 November 2021 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013 of the decision to strike out the victimisation claim only, the following reasons are provided:
REASONS
Introduction
[1]The respondent’s application to strike out the victimisation claim was considered at the preliminary hearing on 19 November 2021, alongside the application to strike out other parts of the claim. It was considered during a lengthy preliminary hearing which considered a number of matters, as has been recorded in more detail in a case management order made following that hearing.[2]The respondent was represented by Ms L Quigley of counsel and she was given the opportunity to make submissions in support of the application. The claimant represented himself, and he was given the opportunity to make submissions about why he believed the claim should not be struck out.[3]The Tribunal was provided with a bundle of documents. Included in the documents provided was the claimant’s letter of 31 March 2020 to Ms Hughes which contained the grievance.[4]During the hearing some time was spent in identifying with the claimant the protected act or acts he relied upon for his victimisation claim. The claimant confirmed that he relied upon the contact he made with HR on 26 March 2020 as being the protected act (that is why he said he had been treated detrimentally). The claimant said that on the 26 March 2020 he had requested that HR provide him with information about filing a grievance. That was the only protected act upon which the claimant relied.[5]The Tribunal also considered whether the grievance raised in the letter of 31 March 2020 might also of itself have been a protected act, and whether anything in that document assisted in determining whether there was a protected act and whether the claimant’s victimisation claim had any reasonable prospect of success.[6]After the submissions were made, the Tribunal reached a decision and the parties were informed of the Judgment and, briefly, the reasons for it.[7]The application to strike out the victimisation claim was made under rule 37 of the Employment Tribunal rules of procedure and, in particular, on the basis that the claim had no reasonable prospect of success (rule 37(1)(a)).[8]The respondent’s representative acknowledged what was said in Ezsias v North Glamorgan NHS Trust [2007] ICR 1126, that is that it would only be in an exceptional case that a claim should be struck out as having no reasonable prospect of success when the central facts were in dispute. She also referred to Balls v Downham Market High School [2011] IRLR 217 and Ahir V British Airways plc [2017] EWCA Civ 1392 (the latter as authority for the fact that a Tribunal should not be deterred from striking out where there was no reasonable prospect of success). She relied upon the contention that the matters relied upon as protected acts were not and could not be protected acts.[9]In determining the application, the claimant’s case was taken at its highest. Even where the claim was found to have no reasonable prospect of success, I also was required to still consider whether the claim should be struck out.[10]The provisions regarding victimisation under the Equality Act 2010 are in section 27. A person is victimised if they are subjected to a detriment because they have done a protected act, or because the alleged victimiser believes that the person has done, or may do, a protected act. The identification of the alleged protected act is an essential part of what is required for there to be a successful victimisation claim.[11]Section 27(2) says that each of the following is a protected act: bringing proceedings under the Equality Act; giving evidence or information in connection with proceedings under the Equality Act; doing any other thing under or in connection with the Equality Act; or making an allegation (whether or not express) that someone has contravened the Equality Act. An essential component of all of those things is the Equality Act. In particular, with regard to an allegation made, it must be an allegation that there has been a contravention of the Equality Act. That does not have to be an express allegation, but nonetheless that still must be what had been alleged.[12]Applying the law to what the claimant had contended, my decision was that the contact with HR on 26 March 2020 was not a protected act. Nothing said by the claimant suggested that it could be. What was said did not fit within the meaning of a protected act.[13]The grievance itself of 31 March 2020 was also not a protected act because it did not contain what is required to be such an act by section 27(2) of the Equality Act 2010. There was nothing in the grievance which alleged a contravention of the Equality Act or could be understood as making such an allegation.[14]As there was nothing identified which had any reasonable prospect of being found to be a protected act, and there was no suggestion that the respondent believed that the claimant might do a protected act, the claimant’s victimisation claim had no reasonable prospect of success.[15]As a result and where the claim had no reasonable prospect of success, my decision was that the victimisation claim should be struck out under rule 37.[1]This case arises from a claim form presented by the claimant on 8 July 2020 following a period of early conciliation from 14 June 2020 until 29 June 2020. The claimant says he was employed as an engineer by the respondent from 12 November 2019 until his dismissal on 31 March 2020.[2]The respondent presented a response resisting the claim and the case was the subject of considerable case management, primarily with the purpose of identifying the list of issues. The list was finalised at the preliminary hearing case management before Employment Judge Allen on 19 November 2011.[3]The claimant initially brought numerous complaints, but eventually, they were narrowed down to race discrimination, discrimination by reason of religion/belief and unlawful deduction from wages.
The issues
[4]The list of issues had been more or less finalised at the preliminary hearing before Employment Judge (‘EJ’) Allen on 19 November 2021 (pp.141 to 143 of the final hearing bundle). They were as follows: Direct Race Discrimination – section 13 Equality Act 2010[5]The Claimant's racial identity is Black British and his religion/belief is Rastafarian.[6]Did the respondent do the following things: i. On 12 November 2019 provided inadequate and inferior equipment; ii. On 12 November 2019 changed the claimant's start time from 8.00am to 6.00am; iii. In December 2019 failed to follow correct procedures after the claimant's report of theft from vehicle; iv. From 12 November 2019 to 31 March 2020 failed to allow the claimant to log in remotely; v. In March 2020 failed to inform the claimant of driving offences;[7]Was that less favourable treatment? The claimant says he was treated less favourably than Carl Sumner, Wayne Archer and David Fitton.[8]If so, was it because of race and/or religion/belief?[9]Did the respondent’s treatment amount to a detriment? Harassment related to race/religion/belief – section 26 Equality Act 2010[10]Did the respondent do the following things: i. On 12 November 2019 provided a recruitment form that did not include an option to identify as Black British; ii. When Michael Nicholson was informed of this, he laughed at the claimant; iii. On 12 November 2019 provided the claimant with inferior and inadequate equipment; iv. On 13 November 2019 required the claimant to start at 6.00am rather than 8.00am; v. On 14 November 2019 theft of claimant's lunch from car; vi. From December 2019 to March 2020 theft of numerous items from claimant’s car; vii. On 1 and 2 March 2020 theft of tools from claimant's car; viii. In December 2020, made late night phone calls about missing keys from Tesco; ix. From 12 November 2019 failed to provide the claimant with a remote login; x. From 12 November 2019, called the claimant “mate” rather than his first name; xi. From 12 November 2019 used offensive language in front of the claimant, and in particular in January 2020 Mike Nicholson and Chris Cooper followed the claimant into another room to continue using offensive language in front of the claimant; xii. In March 2020, apprentice greeted the claimant by stating “Yo”; xiii. In week of 23 March 2020, tampered with a package in order that a customer would complain about the claimant; xiv. From December 2019 to March 2020 entered the claimant's vehicle without authority and left odours and tampered with controls; xv. In the week of November 2019 Carl Sumner told the claimant that the parking charge had been processed when in fact it had not. xvi. Told the claimant that the toll charge would be deducted from his wages; xvii. Failed to inform the claimant of driving offences; xviii. In November/December 2019, failed to ensure replacement car had insurance. If so, was that unwanted conduct? Did it relate to race and/religion or belief?[13]Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?[14]If not, did it have that effect? Victimisation – section 27 Equality Act 2010[15]Did the claimant perform a protected act when he informed the people team of his grievance on 26 March 2020?[16]Did the respondent do the following things: i. Denied the claimant access to the system after his termination; ii. On 26 March 2020 Victoria Hughes’ response to the claimant's email; iii. On 26 March 2020 Victoria Hughes’ failure to respond to either of the claimant's emails; iv. On 31 March 2020 dismissing the claimant.
Remedy
[17]What financial losses has the discrimination caused the claimant?[18]Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?[19]If not, for what period of loss should the claimant be compensated?[20]What injury to feelings has the discrimination caused the claimant, and how much compensation should be awarded for that?[21]Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?[22]Did the parties unreasonably fail to comply with it?[23]If so, is it just and equitable to increase or decrease any award payable to the claimant?[24]Should interest be awarded? Adjustments to list of issues at the beginning of final hearing[25]At the beginning of the hearing, the list was adjusted slightly to take into account the claimant’s clarification of the details of his protected characteristics which were as follows: a) Race – Afro Caribbean English; and b) Religion/Belief - Rastafarian Evidence used[26]The claimant gave witness evidence and did not call any other witnesses to give evidence in support of his case.[27]The respondent relied upon the following witnesses: a) Ashleigh Whittaker (head of internal operations); b) Ian Thorpe (line manager); c) Sharon Kydd (HR manager); and, d) Mark Nicholson (stores manager);[28]The hearing bundle consisted of more than 400 pages, including contractual documentation various emails and documents provided by claimant.
Findings of fact
[29]The respondent (‘ISG’), is an IT company based in the UK but with operations in Bulgaria. At the relevant time of this case, the respondent employed approximately 160 staff. It specialised in IT connectivity including the installation of Wi-Fi technology. This case deals with the respondent’s Manchester operation and its work in the surrounding area.[30]ISG were acquired in a company takeover by Allvotec in November 2019 which is a larger IT company employing 710 UK staff, but with operations in Bulgaria and Republic of Ireland too. There was an integration process between the two companies which Mr Thorpe explained continued until end of 2021. However, for the avoidance of doubt we accept that ISG are the relevant employer in this case.[31]In late 2019 the respondent sought to recruit engineers who would travel to customers to install Wi-Fi and deal with maintenance issues. Although based in Manchester, engineers would be expected to travel to locations within their area using company vehicles.[32]The claimant (Mr Crawford) was offered the position of engineer at the Manchester office on 11 November 2019, with a start date on 12 November 2019. The offer provided that Mr Crawford would work in Project Support Services and the first 6 months of employment would be on a probationary basis. The statement of main terms and conditions of employment signed by the claimant noted as follows: ‘The first 6 months of your employment will constitute your probation period. During your probation period your performance and suitability for the position will be assessed. We may extend this period for up to a further 6 months. The end of your probationary period will be officially confirmed in writing if you successfully complete your probation period’ In relation to termination notice, if taking place within the probationary period, either party could give one week’s notice. This period would increase to 4 weeks once the probation period had concluded.[33]Mr Crawford’s official weekly working hours were 40 hours per week, Monday to Sunday, using a 5/7 shift pattern. The bundle included a contract of employment and employee handbook, however, none of these documents explained how the shift pattern worked. The Tribunal understood from reading the offer letter, that this shift pattern meant that each week the claimant would work 5 days out of 7, but the 5 days could include Saturdays and/or Sundays and was not restricted to Monday to Friday. In addition to normal working hours, Mr Crawford was also expected to be on the ‘OOH rota’ (Out of Hours) on standby 1 week in 4, with £200 stand by payment and overtime paid for call out at 1.5x the normal hourly rate.[34]The employment terms and conditions provided that the employer could make any ‘legitimate deductions from your salary. These will normally be made one month in arrears. This includes repayment of any fines and notification will be issued detailing any deduction and recovery method’ 12 November 2019[35]Things did not appear to get off to a good start from the beginning of Mr Crawford’s employment with ISG. The application form[36]As part of completing his online application form, Mr Crawford was asked to provide details of his racial identity. He wanted to describe himself as ‘black British’, ‘black Caribbean’ and/or ‘black other’ but says he was unable to do so, because the form did not provide these choices as options. The Tribunal heard limited evidence from the respondent’s witnesses concerning this matter but included within the hearing bundle was a copy of the ISG Technology New Starter form. Sections A to J of this form were to be completed by Mr Crawford as an employee. Section F included a box marked ‘Ethnic Origin’ and which allowed free text entry by the employee. In the copy included in the bundle (pp. 228 to 231) dated 19 November 2019, it was argued that Mr Crawford had made an entry of ‘African/Caribbean’. He disputed that he had completed this form or that he had made this particular entry. Instead, he said that the online form which he completed did not include an option to insert this ethnicity and it was understood that he was required to tick boxes against a prescribed list of race/ethnicity. This form was not included within the bundle, but the Tribunal noted from his answers, Mr Crawford referred to an ‘Afro Caribbean’ identity on several occasions, yet the entry in the New Starter form described him as ‘African Caribbean’. Ms Whittaker asserted that the form contained a blank form and that Allvotec use an IT system Bamboo whose owners are unwilling to adjust their list of nationalities because it would impact upon their customers.[37]On balance the Tribunal accepts Mr Crawford’s evidence that he completed an online form which contained prescribed categories and that the form did not include any of 3 categories mentioned above. It is not clear to the Tribunal why the relevant form was not available for consideration at the final hearing. We did not hear evidence from the respondent which persuaded us that the New Starter form in the bundle was a copy of the form referred to by Mr Crawford in his evidence. Moreover, we are not convinced that he completed a form or the part of the form relating to Ethnic Origin which provided the opportunity for him to provide using ‘free text’ the category which he wanted to use to describe his race.[38]Mr Crawford said that he raised this matter with Mark Nicholson and in response, he laughed at his complaint. Mr Nicholson said he had no recollection of the incident at all. Mr Crawford says that he mentioned it on 13 November 2019 and in oral evidence says he also mentioned it to Carl Sumner and John Bulger. Neither of these colleagues were named in the list of issues and Mr Crawford did not cross examine Mr Nicholson about this matter despite having been reminded on several occasions about using the list of issues as an aide memoire for cross examination purposes by EJ Johnson. On balance, the Tribunal is not sure whether the incident happened as alleged given the opposing views of the two witnesses and with no corroborating evidence being available to persuade us either way. It is possible that Mr Nicholson may have been spoken to about this as work colleague in passing rather than as a complaint as he was not claimant’s line manager, but the Tribunal finds on balance that any laughter (if it did happen), was likely to arise out of an uneasy nervousness rather than for any malicious purposes. Mr Crawford could have questioned Mr Nicholson in cross examination on this matter but chose not to do so and accordingly it is not possible to find that this incident happened as alleged. Inadequate and inferior equipment[39]Mr Crawford says that on 12 November 2019 he was issued with his work equipment required for him to carry out his job. Mr Crawford says that he was given dirty tools, an old laptop and an inferior car which had not been cleaned. He also says that he was not provided with sufficient uniform items explaining that he should have received 6 polo shirts, 2 jerseys and 3 pairs of trousers and he did not receive all of these items. He also said that he was supplied with boots which were brown rather than the specified black colour.[40]ISG argued that cars were provided on a ‘first come first served’ basis and Mr Crawford was provided with the car believed to have belonged to the person who had held his post previously, Mason Morgan and whom he had replaced. They also said that they had experienced at that time, difficulties with the usual branded uniform supply because the company had been taken over by Allvotec in 2019 and the traditional ISG logos were being phased out. Mr Crawford was unable to provide convincing evidence that he actually raised these matters as an issue when he started working. He did raise this matter as an issue towards the end of his employment. He suggested that it was petty to do so but did provide evidence of comparators with whom he felt were issued more favourably.[41]The Tribunal accepted that he was provided with used equipment and insufficient clothing when he started working for ISG, but we accept that there were legitimate reasons for this happening and there was no convincing evidence that these were deliberate actions designed to single Mr Crawford out. Instead, we find that these were understandable ways of working or events in this workplace, even if ideally a full uniform should have been provided. The boots served as a functional and protective piece of equipment and colour was not an issue. Safety was understandably the overriding factor in their characteristics and Mr Crawford being provided with work boots as quickly as possible was the most important consideration. 13 November 2019[42]On Mr Crawford’s second day of work following his induction alleged that he was asked to start at 6am rather than the usual 8am start time while still being expected to finish at the usual time of 6pm.[43]Ms Whittaker gave evidence that while the contract of employment provided for a certain number of hours to be worked each week, start times were not prescribed as the business needed to respond to customer demand. In this instance, she gave convincing evidence (which was not disputed by Mr Crawford), that on his second day he was shadowing a colleague Stuart Kirkby who was a senior engineer and who had an appointment that morning to see a customer based in Merseyside. Given the longer travelling time involved, Mr Kirkby wanted to start earlier so they could arrive at customers premises at the correct time. Mr Crawford says that he was told about this appointment at 15:00 hours on the previous day. Mr Kirkby apparently asked for Mr Crawford’s address so he could collect him, but he was unhappy with this request believing it to be an act of harassment. This problem was resolved when Mr Crawford agreed to be met at the Northern Moor Metrolink station. Under the circumstances the request made by Mr Kirkby was reasonable and when resisted by Mr Crawford, it was resolved in a sensible way. It appeared to be a simple question of two employees discussing how best to reach a designated job. This was something that could arise with any employee starting work where jobs involved travel to customers and who was being trained by shadowing a more experienced work colleague.[44]Mr Crawford did say that he got home at 6.30pm or 7pm and went on to say that because he had to clean his dirty tools, this additional task took him until 7.30pm, before he finished work. He accepted in cross examination that he was not required by management to do this task, even if it was commendable that he was doing so of his own volition.[45]Mr Crawford did say that his manager Tom Barker asserted that his normal working hours were 8am to 4:30pm with overtime being payable afterwards. The Tribunal did not hear from Mr Barker, but preferred Ms Whittaker’s evidence that there were no set hours, and her argument is supported by the absence of set hours in the contractual document. The Engineers Handbook does say under the heading working hours that hours of work are rostered each week with a minimum number of hours being (normally) 40 hours over 5 days out of 7 hours. However, the relevant table which was in the Payment for Hours Worked section of this document records that 6am to 6pm is paid at normal rate, with 6pm to 6am being paid at 1 ½ times normal rate. Working more than 40 hours per week also attracts overtime with specific provisions for bank holidays which are not relevant here.[46]Additionally, the Working Hours section of the handbook notes that ‘the first and last hour of travel time from home to site and vice versa does not form part of your hours of work’.[47]The Tribunal accepts that Mr Crawford would not have been working overtime on 13 November 2019 as he worked between 6am when he was picked up by Mr Kirby and on balance with the limited evidence available, we accept that he would have reached home by 6.45pm, having finished work when he left his job, not when he finished his commute home, with his working day finishing before 6pm. 14 November 2019[48]Mr Crawford alleged that on this date his lunch was stolen from his bag while in the office. However, the available witness evidence before the Tribunal suggested that this event was more likely to have taken place on 22 November 2019. He described himself checking his bag and discovering that his packed lunch was missing, and it was not at home when he returned later in the day. During cross examination he explained that he was sat in the canteen area at around 2pm and thought initially that he had left his lunch at home. He did not report it too management as a theft at the time it went missing and based upon the evidence heard by the Tribunal there was insufficient evidence to conclude that it had been stolen and it is more likely that it had been mislaid by Mr Crawford or fallen out of his bag. November 2019 – toll charges[49]Mr Crawford asserted that he disputed a toll charge which related to one of the crossings over the Mersey Gateway bridge on 9 December 2019 and where the charge had been deducted from his wages by ISG. He complained to John Bulger, Ashleigh Whittaker and Tom Barker, but was informed that his employer could deduct these charges from his wages. Sharon Kydd disputed in her evidence that this would have happened as alleged by Mr Crawford and even if he had been told, in practice, ISG would not seek to recover this payment from his wages. She acknowledged that the contract of employment permitted the employer to make these deductions where the fine arose from an employee’s activities. Ms Kydd argued that they were not paid, but was unable to explain how the payment was ultimately made. Ms Whittaker confirmed that Mr Crawford had been informed of his penalty charge which arose from the Mersey Gateway bridge and it was agreed that on this occasion ISG and as an act of goodwill, the company would pay the penalty notice on 30 January 2020. However, in future, Mr Crawford would be responsible for fines imposed when he was driving his van for his employer.[50]The Tribunal on balance, accepts that the penalty notice was paid by ISG even though it could have recovered this penalty from Mr Crawford in accordance with the Employee handbook which was part of his contract of employment. Instead, a pragmatic approach was taken because it was his first failure to pay the relevant toll and the event was used as a way of putting him on notice of the need to pay relevant toll fees when driving his work vehicle. December 2019 – parking tickets[51]Ms Whittaker said that she informed Mr Crawford on 9 December 2019 was issued with a parking charge notice by Staffordshire University on 18 November 2019. Mr Crawford said that it was not paid despite Carl Sumner telling him in November 2019 that it had been paid by his employer.[52]The Tribunal accepts that the claimant was left to pay this fine as it was incurred by him while parking his vehicle but did not hear any evidence suggesting any improper comments or statements being made by management in relation to this. There was no evidence that the parking ticket was issued erroneously or was successfully appealed by Mr Crawford, but it must be the case that unless specifically told by management to contravene parking regulations, Mr Crawford as the driver of his issued work vehicle be responsible to drive and park safely. Any penalties arising from parking contraventions must therefore be his responsibility and not the responsibility of his employer. November/December 2019 – car insurance[53]Mr Crawford argued that when his van was replaced, it did not have a policy of insurance in place which covered him as the designated driver. Ms Whittaker confirmed in her evidence that Mr Crawford was issued with a new vehicle on 16 January 2020 supplied under a hire agreement with Northgate vehicle hire. She asserted that the vehicle was insured, and the company had a fleet policy with Aviva that was applied to all work vehicles. She did acknowledge that as the vehicle was a temporary hire it had not been entered on the Motor Insurance Database and she accepted that it was her responsibility to notify any additional vehicles to this list. She recalled a discussion with Mr Crawford where he conceded that he believed he had insurance and was comfortable driving the vehicle.[54]While the database omission may have caused a Police check to suggest an the newly issued van was an uninsured vehicle, had they made further enquiries, they would have quickly discovered the van was appropriately insured at all times and Mr Crawford would not have been exposed to a driving offence. The Tribunal does not accept that Ms Whittaker’s failure was in any way a deliberate act targeted to get Mr Crawford into trouble and was instead an innocent omission. January 2020 – road traffic accident[55]Mr Crawford’s newly issued vehicle was involved in road traffic accident in January 2020 with Northgate assessing damage at £538.44. While there were concerns amongst management that the damage arose from his poor driving, they did not charge Mr Crawford for the damage. This was not an unreasonable conclusion to reach, and the Tribunal accepts that this view was based upon the evidence available concerning the vehicle damage and in any event, they did not penalise him for the vehicle damage. March 2020 – driving offences[56]This related to an event when Mr Crawford said that he was not alerted by ISG of allegations of driving offences attributed to his driving. Mr Crawford says that he received letters from South Yorkshire Police and Greater Manchester Police concerning driving offences committed by him. Ms Whittaker argued that as the offences involved a hire vehicle belonging to a third-party Northgate, it was they who would have received the Police notifications first of all. They would then have notified the Police of the driver recorded as being allocated to the vehicle at the material time and they would then have issued a penalty notice to the driver’s address as recorded by the Driver Vehicle and Licensing Agency, (‘DVLA’).[57]The Tribunal accepted that Ms Whittaker’s argument was likely to be the real reason why Mr Crawford received the Police letters and there was no convincing and reliable evidence available which suggester improper conduct on the part of employer. Mr Crawford had left ISG’s employment by 31 March 2020, but there was no evidence that company deliberately sought to get Mr Crawford into trouble with the Police. Theft of items/lack of procedure[58]Mr Crawford says that in December 2019, an item was stolen from his vehicle which was an important tool required to allow him to do his job. However, in his evidence he asserted that the relevant date was between 28 February 2020 and 1 March 2020, which was when he noted the tool was missing. He identified the missing item as an ‘IDC impact insertion tool’. He confirmed that he replaced it using his own money on 2 March 2020. He then asserted that that this second tool also went missing and he had to buy a further replacement tool. He says it was stored in his rucksack[59]There was no supporting evidence available to the Tribunal that Mr Crawford replaced the tool and Tribunal accepted Ms Kydd’s evidence that had he followed the guidance contained in the company handbook, he should have reported any theft to his line manager, fleet company (if taken from a vehicle) and/or Police. However, insufficient evidence was provided by Mr Crawford to demonstrate that he took this action, and no contemporaneous note was referred to. The Tribunal did not find Mr Crawford’s evidence to be credible and had his equipment been stolen, he would have been expected to escalate its loss to management and sought a replacement.[60]While we accepted that the tool went missing and possibly may have been taken by an unknown person, there is insufficient evidence to persuade the Tribunal that it was not mislaid, or if it was taken, that it was taken by a colleague and moreover, if taken, was done for malicious reasons.[61]In addition, the absence of evidence that Mr Crawford complained at the time it went missing and did not follow guidance in the Engineers handbook or seek advice from line management. Tampering with vehicle[62]Mr Crawford believed that someone had been entering his van without permission and had been tampering with the inside of the vehicle. He said he could smell cigarettes and smelled of urine and the controls had been moved. He informed Ms Whittaker on 25 March 2020 by email. Earlier Tom Barker had sent emails to Ms Whittaker saying that he had been informed that Mr Crawford had complained to him of ‘locking issues’ with the vehicle.[63]There was an exchange of emails later on 25 March 2020 between Ms Whittaker and Mr Barker, where Mr Barker (at 15:37), described Mr Crawford as being ‘…a bit unhinged…he lost the plot yesterday because someone called him mate which is apparently vulgar and offends him’. When Ms Whittaker repeated the allegations in an email at 15:50, Mr Barker immediately replied ‘lol’, which the Tribunal understood to mean ‘Laugh out Loud’ and we find that this was not a professional reply that would be reasonably expected from manager in this situation.[64]Mr Barker then emailed to Ms Whittaker at 15:55 to tell her that: ‘He’s [Mr Crawford is] still on probation’. Ms Whittaker replied at 15:55: ‘Maybe not!!!’, and followed by the ‘smiley emoji’ - ‘:)’ . What was clear to the Tribunal from this series of messages, was that management were tiring of Mr Crawford and were looking to dismiss him before his probation expired.[65]These emails progressed to an exchange of messages between managers following the threat of a grievance from Mr Crawford. Mr Barker in an email sent 25 March 2020 at 17:32 said in respect of Mr Crawford: ‘Start date was 12 November 2019. George has advised we can stand him down for furlough, I say get rid’. One of the recipients of this message, Ian Reid replied at 17:33 that: ‘I’m fast getting to that point’. Following the offer of support by Vanessa Hughes (whom the Tribunal understands was a HR professional at Alvatec), Mr Reid emailed Messrs Thorpe, Barker and Ms Hughes at 17:56 and said to Mr Thorpe: ‘Can we please discuss this tomorrow? Wayne is being lined up for furlough, the general thinking is that we exit him instead, which I’m in agreement with. Vanessa/Tom – It would be good to get some background regarding Wayne. On the basis that Wayne is under probation, has he had any probationary reviews including targets hit or missed? Just helps understand how we position this with him.’[66]While the way in which management dealt with Mr Crawford at this point is disappointing and inappropriate, the Tribunal noted that these decisions only arose on 25 March 2020 when the complaints were being made and this suggests that no deliberate actions were being taken against him prior to this date. The Tribunal found that management had been broadly supportive of Mr Crawford prior to this date and the reaction displayed in these emails suggested management exasperation with him, rather than any indication of underlying prejudice. There were no emails included within the bundle prior to this date which suggested any prejudicial views towards Mr Crawford.[67]It is unfortunate that there was no attempt made to listen to the complaints and investigate them before considering the probation period, but management’s unprofessional comments do not indicate behaviour attributed to Mr Crawford’s race or religion. Indeed, their failure to appreciate that their emails were conversations of record which could potentially be disclosed at a later date, suggests to the Tribunal that had their comments been motivated by race or religion, they would have made insinuations of this nature within those emails. Instead, it simply appears to the Tribunal to be a situation where Mr Crawford was identified as a problem employee whom they felt could not complete his probationary period. Tampering with package to engineer a complaint[68]The Tribunal heard little evidence concerning this matter. It appeared that it related to IPAF training and ‘cards’ which Mr Crawford had been issued with as part of his training and which were sent by letter to his workplace. The letter was reported as being found by him to be located on Mr Nicholson’s desk already opened. Mr Nicholson said that he needed to see which employees these cards had been issued for in order that he could send them to the correct employee as it was usual for them to be sent to the respondent for distribution. Based upon the evidence that the Tribunal heard, we accept on balance that this was the case and Mr Nicholson’s actions were not unreasonable. After all, there was no evidence that this correspondence was marked private or confidential so as to indicate that it should not be opened by anyone but the recipient.[69]It was not clear how these actions could involve an attempt to get Mr Crawford into trouble and the Tribunal is unable to find that the package was tampered with to engineer a complaint by Mr Crawford or by anyone else for that matter. Late night calls[70]It was accepted by both parties that Mr Crawford was called in December 2019 by his colleague Carl Sumner regarding missing keys from a Tesco store. However, having heard Mr Crawford’s evidence, the Tribunal finds that his real issue appeared to be more due to his unhappiness with being called outside of working hours. While unfortunate when situations such as this happen, it is understandable that sometimes calls have to be made to colleagues out of hours if a matter is urgent and needs attention. Missing keys would appear to fit this category, especially if connected with a client’s premises and where an employee might have previously been involved in accessing the premises in question. The Tribunal did not hear any evidence which suggested that Mr Sumner did not have a genuine reason to call Mr Crawford and his actions were appropriate under the circumstances. Failing to allow claimant to log in remotely[71]Ms Whitaker said that Mr Crawford was given remote access to IGN’s intranet or other online systems via VPN but that IT issues can arise which prevent connectivity. Mr Crawford was recorded as making complaints on 21 February and 26 March 2020 about his ability to log on remotely. The Tribunal is unable to understand that in relation to these issues, the problem arose from anything other than IT errors. This is something that everyone who works remotely experiences from time to time and does not support any argument that it arose from actions connected with Mr Crawford’s race. “Yo!” incident - March 2020[72]Mr Crawford said that during the week commencing 16 March 2020, he encountered a new younger colleague Simon Clegg who greeted him with the term ‘Yo!’. In response to this informal greeting, Mr Crawford replied, ‘know your place’.[73]The Tribunal did not hear from Mr Clegg as a witness and accept that this event happened as alleged. However, we find that while historically the term ‘Yo!’ may have been used in conversation between people of particular ethnic groups. However, in the present day setting and context, the Tribunal accepts that it is an informal and ‘slang’ way of greeting people, especially among younger generations. While it was perhaps ill advised for Mr Clegg to use this greeting as a new starter, we do not accept it was meant with anything other than goodwill. Similarly, Mr Crawford is not criticised for his reply as he was clearly irked by this comment. However, the Tribunal finds on balance that this arose more from a feeling that a younger and new colleague made an assumption that he could address Mr Crawford in this informal way. He also mentioned that Mr Clegg ‘growled’ as Mr Crawford walked past. While the Tribunal finds on balance that Mr Clegg reacted in this way, it was more an expression of irritation with Mr Crawford ticking him off. Dismissal[74]Mr Crawford’s discussion with ISG’s HR ‘People Team’ on 31 March 2020 confirmed that he had not passed his probation period and as a consequence, his employment terminated with immediate effect with one week’s pay in lieu of notice being made. The letter which he was provided with short and impersonal in tone and judging by the earlier management email comments displayed a lack of kindness or thoughtfulness in how his employment was terminated.[75]Mr Crawford gave notice on 31 March 2020 of a grievance relating to the conduct of his line mangers Tom Barker and Ian Thorpe. It was not directly related to the issues raised in this case, although in his expanded grievance letter of 15 May 2020, he made reference to a stolen notebook, equipment and clothing and the tampering of his vehicle.[76]Investigation interviews took place on 26 and 28 May 2020 involving Mr Thorpe, Mr Nicholson and Mr Barker. They were interviewed by Andrew Webb and with Ms Kydd taking notes. A decision letter was sent on 28 May 2020 which seemed to amount to little more than an acknowledgement confirming that necessary measures were taken by management. It did not deal with each element of the grievance, determining their merits and explaining what outcomes have arisen. The letter contained no mention of the right to appeal and there had been no meeting with claimant. It seemed to the Tribunal that as his employment terminated ISG management simply wanted to get matter dealt with as quickly as possible rather than follow a process consistent with ACAS guidance.[77]While this claim is not about a dismissal and the question of its fairness, it is unfortunate that the respondent did not treat Mr Crawford in a more considered way as they terminated the employment relationship. However, as we have already mentioned above, the Tribunal finds that this haste and lack of detailed process in the handling of the grievance was connected more with a frustration and exasperation with Mr Crawford and was not a deliberate act of punishing him for things which he complained about in the past.
The law
[78]Section 9 of the Equality Act 2010 (‘EQA’) provides that race is a protected characteristic under the EQA and can include a person’s colour, nationality and ethnic or national origins.[79]Section 10 EQA provides that religion means any religion and belief means any religious or philosophical belief.[80]Section 13 EQA provides that direct discrimination arises when a person(a) (A) treats another(b) (B) less favourably than they would treat others because of that person’s (B’s) protected characteristic.[81]Section 26 EQA provides that harassment arises when a person (A) engages in unwanted conduct related to another (B’s) protected characteristic, which has the purpose of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.[82]Section 27 EQA provides that a person (A) victimises another person (B), if A subjects B to a detriment because B does a protected act, or A believes B has done, or may do, a protected act. Protected acts include bringing proceedings under the EQA, giving evidence or information in connection with the EQA, doing anything else in connection with the EQA, or making an allegation that another has contravened the EQA.[83]This was a case where the Tribunal was referred to limited case law in final submissions. However, the Tribunal was referred to a number of cases by Ms Quigley including Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 ICR 33, HL. In this House of Lords case Lord Nicholls said that sometimes it is necessary to consider the less favourable treatment part of the test for direct discrimination at the same time as whether the reason why part. In other words, ‘was the claimant because of a protected characteristic, treated less favourably?’. In terms of comparators in a direct discrimination case, Lord Scott explained that in accordance with s.23(1) EQA, the comparator must be in the same position in all material respects as the victim apart from the fact that they do not share the same protected characteristic as the claimant. This is why the use of a hypothetical comparator can be so important when determining these complaints.[84]The case also considered the concept of disadvantage and it was effectively held that any claimant who reasonably feels that they have suffered a detriment should be able to say that they have been less favourably treated. Discussion Protected characteristics
Discussion
[85]In terms of his race, Mr Crawford described himself as being Afro Caribbean English and while the linking of Afro Caribbean with English was not a term that the Tribunal felt was regularly encountered, we nonetheless found that this description satisfies the s.9 EQA protected characteristic of race.[86]In terms of his religion or belief, Mr Crawford described himself as being Rastafarian and the Tribunal accepted that this was an established and recognised religion amounted to a protected characteristic of religion or belief under s.10 EQA.[87]However, while this was a case where Mr Crawford sought to rely upon discrimination in relation to 2 protected characteristics, we found that very little reference was made during the final hearing in evidence to his Rastafarianism in terms of the issues which we were asked to consider. Direct discrimination – (s.13 EQA) Clothing, boots and equipment[88]The Tribunal did accept that Mr Crawford was provided with used equipment when he started work and that insufficient clothing and brown rather than black boots were provided. However, as we found in the findings of fact, we concluded that there were reasonable grounds for the provision of used equipment, insufficient items of clothing and boots which were of different colour to those typically provided to employees.[89]In the relation to this particular allegation, there was no evidence before the Tribunal which suggested less favourable treatment when compared with the named (or indeed a hypothetical comparator employee). In a similar situation where the company was in transition, limited clothing would have been available and initially the respondent would have had to provide what clothing was available, with the remainder being supplied when it became available.[90]Boots were personal protective equipment and would be ordered in accordance with their safety specification rather than their colour. Had a choice of colour been available and were in stock for immediate order, then Mr Crawford would have been expected to have some choice as to his preferred colour unless the uniform requirements of the company were restrictive. It would have been a greater concern for the company to delay obtaining safety boots so that a specific colour became available and in the Tribunal’s view, the most sensible step to take was to obtain the boots available as it was the protective qualities which were of paramount importance.[91]It was important that Mr Crawford was supplied with the necessary tools to carry out his job and there was no reason why his predecessor’s equipment could be supplied, providing that if functioned correctly. It is unfortunate that Mr Crawford found the equipment supplied to be dirty and one would expect a former employee to return their issued equipment in a clean state. However, there was no suggestion in the evidence before the Tribunal that the equipment was not fit for purpose or was faulty and had this been the situation, there would have been genuine concerns about the behaviour of the company.[92]This particular allegation involved circumstances where a new starter was succeeding former employee whose tools were available for issue, where the company was in transition and clothing supply was temporarily limited and where boots where available to order, but with limited colour choice. The Tribunal does not accept that a comparator employee who did not share Mr Crawford’s protected characteristics would have been treated any differently and this allegation of direct discrimination cannot succeed. Early start time/late finish[93]The Tribunal accepted that the on Mr Crawford’s second day of work following his induction alleged that he was asked to start at 6am rather than the usual 8am start time while still being expected to finish at the usual time of 6pm. However, we concluded that while this treatment did happen as alleged, it did not amount to less favourable treatment as any employee when starting work and shadowing a more experienced colleague might have to have additional travel time where jobs involved travel to customers and who was being trained by shadowing a more experienced work colleague. Mr Crawford did not provide any evidence demonstrating comparable situations with the comparators. We also noted that the additional time spent cleaning the dirty issued tools was accepted by Mr Crawford as not being required by management and cannot amount to less favourable treatment and was a choice for the claimant where he could have requested time at work to carry out this task. It was not an allegation that was in any way tainted by race. Alleged stolen items[94]In terms of the stolen items which Mr Crawford alleges were stolen from his vehicle, the Tribunal found his evidence to be inconclusive and that while the tools in question went missing, there was no evidence that he actually made any attempt to report the missing items as stolen. This was a case where management were unable to follow its procedures as alleged in the list of issues because they had not been alerted by him. This meant that the treatment did not happen as alleged and could not amount to less favourable treatment. The claimant did not provide any evidence supporting his contention that his comparators had been treated differently to him in similar circumstances and the real problem with this issue is that Mr Crawford was unable to provide convincing evidence that the alleged behaviour on the part of management happened as alleged. Accordingly, this allegation is not proven. Difficulties logging onto the respondent’s IT system[95]The Tribunal was unable to accept that the complaints made by Mr Crawford on 21 February and 26 March 2020 about his ability to log on remotely was treatment that was actively targeted at him by management and the problem simply arose from anything other than IT errors. While it is not a positive thing to experience, we are unable to accept that it was treatment carried out by the respondent, that it was less favourable treatment in that the relevance of the named comparators was not referred to in evidence. This is something that is in no way connected with Mr Crawford’s race. Failure to notify driving offences[96]In terms of the failure to notify driving offences, the Tribunal noted that the claimant was approached directly and was not warned by his employer. However, for the reasons provided in the findings of fact, the Tribunal accepted that these matters were beyond the control of employer as it was a matter between hire company and named driver. Accordingly, the Tribunal does not see how a comparable hypothetical employee in no less different circumstances would have been treated any differently than the claimant if they had used a hire vehicle. We are therefore not persuaded that the there is an arguable case that this treatment was less favourable treatment and that it could have been connected with Mr Crawford’s protected characteristics. Summary of direct discrimination complaint[97]In summary, the Tribunal is unable to find that any of the alleged treatment amounted to less favourable treatment when compared with hypothetical comparators who did not share Mr Crawford’s protected characteristic in no different circumstances, and we do not see an arguable case that direct discrimination took place. The respondent has shown a reasonable explanation for the treatment/events and how it was either beyond their control or a normal occurrence and in any event, we were unable to find that it could be connected with Mr Crawford’s protected characteristics.[98]Accordingly, the complaint of direct discrimination must fail. Harassment – (s.26 EQA) Online application form – diversity questions[99]The Tribunal accepted Mr Crawford’s evidence that he completed an online form which in terms of the applicant’s diversity did not include any of the options which the claimant would like to have used (or a free text box to allow him to provide his own chosen background information), or the option of Black British. This matter was related to race but did not take the form of harassment as it arose from an omission on the part of the respondent rather than a positive act directed at Mr Crawford. As a consequence, while it might have had the effect of violating Mr Crawford’s dignity, it was not unwanted conduct on the part of the respondent, and it is not an issue which can be correctly brought as an act of harassment. Mr Nicholson laughing at claimant[100]Related to this matter, the Tribunal was not convinced that on 13 November 2019, Mr Crawford raised the matter of the diversity questions with Mark Nicholson and in response, he laughed at his complaint. This was due to Mr Nicholson providing convincing evidence that he had no recollection of the incident at all and the absence of corroborating evidence, the event at its highest was a conversation in passing with Ms Nicholson possibly laughing nervously at a story which he found awkward. We did not find that there was any malicious comment or behaviour displayed by Mr Nicholson and that the incident did not happen in the deliberate way that Mr Crawford alleged.[101]Accordingly, we do not accept that there was unwanted conduct, or that if it did, it had the purpose or effect of creating an intimidating etc, environment even if it was related to Mr Crawford’s race and this complaint of harassment cannot succeed. Clothing, boots and equipment[102]The Tribunal has already discussed the alleged inadequate equipment in relation to the alleged direct discrimination. He was provided with some old equipment from the previous holder of his position, insufficient clothing and boots that were of a colour not typically used. However, this was not unwanted conduct directed at him with the purpose or effect of undermining him. Instead, it was management reacting to circumstances where there were restrictions as to what could be provided and as discussed above, a comparable employee who did not share Mr Crawford’s protected characteristics would not have been treated any differently than he was. Early start time/late finish[103]The requirement for Mr Crawford to start work on his second day at 6am so he could travel with the colleague he was shadowing to a job in Merseyside has been discussed above in relating to direct discrimination. Our conclusion was that this was a reasonable occurrence given the need for Mr Crawford to travel and would have been an understandable occurrence for any new starter who did not share his protected characteristic. It may have been unwanted conduct to be asked to have his working day configured in this way, but it was not related to his protected characteristics and did not have the purpose or effect of violating his dignity etc, in accordance with section 26 EQA. It was simply a case of Mr Crawford being unhappy with this particular working practice and a flexible solution was agreed to meet at a Metrolink station when he did not want to be picked up from outside his home. Alleged stolen items[104]Mr Crawford as has already been discussed above in relation the complaint of direct discrimination, did not providing convincing evidence that there was theft of items from his vehicle or his lunch. If his allegation had been accepted, it could have amounted to act of harassment as it would have involved unwanted conduct which would have had the purpose or effect of undermining him. On balance, would have also been something that could have arisen from his protected characteristics, depending upon who had been responsible and the degree to which they were aware of his Rastafarianism in addition to his race. However, we do not accept that this allegation could have happened as alleged and therefore this alleged act of harassment is not accepted by the Tribunal. Late call regarding missing keys[105]Mr Crawford was called in December 2019 by his colleague Carl Sumner regarding missing keys from a Tesco store. However, our finding was that his real problem with the call was not that it was unwanted behaviour with the purpose of effect of undermining him, but because Mr Crawford was unhappy with simply being called outside of working hours. The call was a reasonable one as it arose from missing keys for a customer’s premises and the actions were appropriate under the circumstances and in no way connected with Mr Crawford’s protected characteristics. It is behaviour which could have been directed at any employee who may have been considered to have last used a particular key and the Tribunal accepts that any one of Mr Crawford’s colleagues could have been contacted about this matter in similar circumstances. It was not a targeted act of harassment against him. Difficulties logging into the respondent’s IT system[106]The question of log in difficulties was also considered above in relation to the question of direct discrimination and the Tribunal accepted that this was a simple IT error and not directed towards Mr Crawford and not connected with his protected characteristic. Accordingly, it was not directed conduct which could be construed as having the purpose or effect of undermining him and it cannot successfully be brought as an alleged act of harassment. Calling Mr Crawford ‘mate’[107]In terms of the allegation that Mr Crawford was addressed as ‘mate’ rather than by his first name on 12 November 2019, the Tribunal did not hear any convincing evidence from him that this incident happened as an act of harassment. However, the Tribunal acknowledges that use of the term ‘mate’ is commonplace across many workplaces in the UK and across society as a whole. Indeed, in recent years it has moved on from being just the sole preserve of men but is also used by women as well. It may well have used towards the claimant by a colleague such as Mr Nicholson and could have amounted to harassment if he had been told to stop by the claimant and Mr Nicholson had continued to use this term out of spite and in connection with the claimant’s race. But the Tribunal did not hear evidence to support this contention and this issue is not proven and cannot succeed as act of harassment. Colleagues using offensive language[108]The findings in the previous paragraph also apply to the allegations that Mike Nicholson and Chris Cooper were using offensive language in Mr Crawford’s presence and the Tribunal did not hear sufficient evidence to make a finding that this incident happened as alleged, or if it did, that the argument did not constitute anything more than two work colleagues engaging in ‘industrial language’ in the workplace. There was no evidence that this scenario involved the use of this language being directed towards Mr Crawford, that he told them to stop and that they continued to speak in this way to irritate or upset him. Moreover, there is no suggestion that the use of such language was directed towards Mr Crawford by reason of his protected characteristics. ‘Yo!’ greeting[109]The ‘Yo!’ incident was interesting as the Tribunal accepted it happened as alleged and also that Mr Crawford replied, ‘know your place’ to Mr Clegg who had greeted him this way. As the Tribunal explained in its findings of fact, this was a greeting and one that having considered the context of the exchange, could not have had the purpose of effect of undermining Mr Crawford’s dignity. The Tribunal felt that as he appeared to be the older employee, Mr Crawford would have been irked by a younger colleague addressing him in this informal way and may well have considered the term ‘Yo!’ to be a term possibly derived from Black culture in the United States. But again, this appeared to be spontaneous greeting using a term commonly used by younger people as a greeting and while it may irritate many older people regardless of race, this was not a case where it was directed at Mr Crawford with the purpose or effect of upsetting him. Moreover, it is not clear that it was directed at him because of his race, but arose because of Mr Clegg’s relative youth and a failure to consider boundaries when speaking with an older colleague. Had there been evidence that following his reply of ‘know your place’, Mr Clegg had continued to use the term towards Mr Crawford, he might have had a stronger argument of harassment. However, the ‘growl’ described by Mr Crawford (and attributed to Mr Clegg), appeared to be adverse rection by Mr Clegg to being rebuked by Mr Crawford and not an actual attempt at harassment, with no attempt to repeat the term ‘Yo!’ again. Alleged tampering of package[110]In relation to the allegation of harassment relating to tampering of a package to get Mr Crawford into trouble, the Tribunal preferred Mr Nicholson’s argument that he needed to see which employees had been issued with IPAF training cards, so that he could send them to the correct employee. It was usual for them to be sent to the respondent for distribution and Mr Nicholson’s actions were not unreasonable. This could not be described as unwanted conduct which had the purpose or effect of violating Mr Crawford’ dignity etc. Nor could we see how it was connected with his race. This incident, while taking place, could not be considered an act harassment against Mr Crawford by reason of his race or religion/belief. Management handling Mr Crawford’s complaint of vehicle tampering[111]While the way in which management handled Mr Crawford’s complaints about the vehicle tampering very poorly, the Tribunal did not hear enough evidence to find on balance that the respondent’s employees deliberately sabotaged his vehicle in such a way as to amount to unwanted conduct. There may have been problems with the vehicle in terms of its locks, its smell or some other feature, but Mr Crawford’s simple conclusion that it was caused by deliberate tampering was not on balance proven and this part of the allegations of harassment cannot be accepted. Parking charges[112]The parking charges were the responsibility of Mr Crawford as the driver of the vehicle at the time they were issued and with no evidence of a deliberate instruction by his managers to illegally park. The insurance incident arose from an omission by Ms Whittaker and not a deliberate act. The toll charges gave rise to a penalty notice which was paid by ISG even though it could have recovered this penalty from Mr Crawford in accordance with the Employee handbook which was part of his contract of employment. This could not be considered a deliberate unwanted at by the respondent’s especially given their pragmatic approach not to request that he pay this first charge. This was simply a case of Mr Crawford making an error while driving his van for work. All of these vehicle related incidents could not amount to deliberate acts which had the purpose or effect of violating Mr Crawford’s dignity and in no way can be attributed to his protected characteristics and cannot succeed. Summary of harassment complaints[113]As a result of the above findings and the absence of any evidence to suggest to the Tribunal that the claimant at any time was subject to unwanted acts by the respondent which were related to Mr Crawford’s race or religion/belief and which had the purpose or effect of violating his dignity, creating an intimidating, hostile, degrading, humiliating or offensive environment, the complaint of harassment is not well founded.[114]Mr Crawford may have been unhappy about some of the events that happened at work, but it seemed to relate more to his general unhappiness with the working practice and perhaps the ways in which management operated and colleagues interacted. This, however, does not mean that they were responsible for discriminatory behaviour that was consistent with an allegation of harassment by reason of race and/or religion/belief. Many of his colleagues would have met him face to face and would have been aware of his race as a consequence. A number of them may have been aware of his Rastafarianism. But while this was the case, the events alleged did either not happen as alleged, or if they did, could not be construed as unwanted conduct satisfying the necessary test under section 26 EQA.[115]Mr Crawford appeared to the Tribunal to misconstrue situations which he was unhappy with and quickly concluded they were connected with his protected characteristics. But while management clearly found his probation to be problematic and began to become frustrated with his complaints resulting in the unfortunate emails discussed above the flavour of their discussions did not reveal any obvious prejudice towards his race or religion. It instead appeared to be his many complaints and criticisms about the way in which innocent informal terms were used such as ‘mate’. However, this was not a cultural matter, or at least, not a cultural matter connected with the asserted protected characteristics.[116]The Tribunal on balance, accepts that the penalty notice was paid by ISG even though it could have recovered this penalty from Mr Crawford in accordance with the Employee handbook which was part of his contract of employment. Instead, a pragmatic approach was taken because it was his first failure to pay the relevant toll and the event was used as a way of putting him on notice of the need to pay relevant toll fees when driving his work vehicle. Victimisation (s.27 EQA)[117]Mr Crawford in bringing this complaint, has to identify a protected act. He argues that this was when he informed the respondent’s People Team of his grievance on 26 March 2020. The Tribunal accepted that Mr Crawford gave notice on 31 March 2020 of a grievance relating to the conduct of his line mangers Tom Barker and Ian Thorpe. It was not directly related to the issues raised in this case, although in his expanded grievance letter of 15 May 2020, he made reference to a stolen notebook, equipment and clothing and the tampering of his vehicle.[118]The Tribunal does not accept that this grievance really amounted to something done for the purposes of or in connection with the EQA. However, even if we are wrong and it was connected with the EQA, it is still necessary to see whether Mr Crawford was subject to the alleged detriments and whether they were connected with the alleged protected act.[119]It is fair to say that the handling of the grievance process could have been handled better by management. An investigation took place and a decision letter was sent on 28 May 2020 which as previously mentioned, appeared to amount to little more than an acknowledgement confirming that necessary measures were taken by management without considering in detail, each element of the grievance, determining their merits and explaining what outcomes have arisen. The letter contained no mention of the right to appeal and there had been no meeting with claimant. The Tribunal found that the respondent’s management wanted to get matter dealt with as quickly as possible rather than follow a process consistent with ACAS guidance.[120]The restriction of access to the respondent’s systems post dismissal were not surprising and something which most employers will do for IT security purposes. It was not a detriment connected with the alleged protected disclosure. In relation to the actual failures with regard to the grievance, the Tribunal did not find that these failures were deliberate acts taken against the claimant because he brought a grievance.[121]Had this claim been one of unfair dismissal, the Tribunal would have been of the view that there were significant procedural failures by the respondent, and this would have affected its fairness, even if a satisfactory potentially fair reason argument had been advanced and they had in other ways behaved reasonably. But in the case before us, Mr Crawford did not have sufficient service to bring an unfair dismissal. While we are not happy with the way in which the grievance was dealt with, we conclude that the respondent’s haste and lack of detailed process in the handling of the grievance was connected more with a frustration and exasperation with Mr Crawford and not with the alleged protected act itself.[122]Accordingly, the act of victimisation must fail.
Conclusion
[123]The Tribunal must therefore find that the claimant was not subjected to direct discrimination, harassment or victimisation and his claim must fail. This applies in relation to both his protected characteristics of race and religion/belief.