Mr M Senior v Howard Tenens Logistics Ltd: 3200837/2024 and 3201617/2024
EMPLOYMENT TRIBUNALS
Case No 3200837/2024, 3201617/2024
Between
Mr Mark SeniorClaimantHoward Tenens Logistics LimitedRespondent
Before
Employment Judge S Povey
Members
Mrs M LeggIn person for claimantMr Kediyal (instructed by Counsel) for respondentDate 4 March 2026
JUDGMENT
The unanimous judgment of the Tribunal is as follows:[1]The complaints of direct race discrimination which occurred before 15 November 2023 were brought out of time. It was not just and equitable to extend time and the Tribunal has no jurisdiction to consider and determine them.[2]The complaints of victimisation which occurred before 13 April 2024 were brought out of time. It was not just and equitable to extend time and the Tribunal has no jurisdiction to consider and determine them.[3]The remaining complaints of direct race discrimination were not made out and are dismissed.[4]The remaining complaints of victimisation were not made out and are dismissed.[5]The complaint of unfair dismissal was not made out and is dismissed. - 1 -
REASONS
[1]At the culmination of the hearing of this claim, the Tribunal reserved its decision. Following deliberations, we reached decisions on all the complaints and set out our reasoning, below.
Introduction
[2]The Respondent is a logistics company, which provides, amongst other services, warehousing and storage facilities (including bonded warehousing) at Tilbury docks. The Claimant was employed by the Respondent at its Tilbury site as an Operations Manager. His employment began on 5 January 2007 and ended with his dismissal on 14 June 2024.[3]The Claimant presented two claims to the Tribunal, on 10 April 2024 (‘Claim 1’) and 23 August 2024 (‘Claim 2’).[4]In respect of Claim 1: 4.1. ACAS Early Conciliation started on 14 February 2024 and ended on 27 March 2024. 4.2. The claim contained complaints of discrimination on grounds of race.[5]In respect of Claim 2: 5.1. ACAS Early Conciliation started on 12 July 2024 and ended on 13 August 2024. 5.2. The claim contained complaints of unfair dismissal, discrimination on grounds of race and victimisation.[6]The two claims were consolidated by the Tribunal and managed and heard together. The complaints were resisted in their entirety by the Respondent. The final hearing[7]The final hearing was conducted over five days (the first day was by video, with days two to five in person). The Tribunal reserved its decision and undertook deliberations on 30 December 2025.[8]At the outset of the hearing, the Claimant referred to an application he had made in August 2025 for an order for specific disclosure, which had not been decided. The Tribunal decided the application and, for reasons given orally, we refused it. A copy of those reasons is at Appendix 1. - 2 -[9]During the hearing, we heard evidence from the Claimant. For the Respondent, we heard from the following witnesses (all of whom were employed by the Respondent in the posts indicated at the relevant time): 9.1. Adam Buchan (Divisional Manager); 9.2. Jason Moscrop (Operations Director); 9.3. Michael Hafford (Night Team Manager/Business Engagement Lead); 9.4. Andrew Lee (Acting Divisional Manager); 9.5. Matt Davis (Commercial Director); 9.6. Peter Evans (Strategic Operations Manager).[10]Each witness we heard from confirmed and adopted their respective witness statements. We were provided with a paginated, indexed bundle of documents (‘the Bundle’), a cast list and an agreed chronology.[11]At a case management hearing on 12 February 2025, Employment Judge Gardiner issued case management directions and, in conjunction with the parties, set out a List of Issues (at [119] – [123] of the Bundle). At the outset of the final hearing before us, the parties agreed that these remained the issues for the Tribunal to determine, save that it was agreed that the date at Paragraph 2.2.1 of the List of Issues (Direct race discrimination) was June 2023, not May 2023.[12]We received oral submissions from Mr Kediyal for the Respondent and from the Claimant. We have taken all the evidence and the submissions into account in reaching our decisions.[13]The Claimant is a litigant in person. The Tribunal explained the process and procedures to the Claimant, checked his understanding, encouraged him to ask questions and gave him guidance throughout. The Tribunal was satisfied that the Claimant was able to fully engage in the process and present his claim to the best of his abilities.[14]The Tribunal was grateful to the Claimant, Mr Kediyal and his instructing solicitors for the assistance they provided and the work they had undoubtedly undertaken both before and during the hearing. We were also grateful to all witnesses, including the Claimant, who attended and answered the questions asked of them to the best of their recollections.[15]We only made findings required to determine the complaints brought by the Claimant. A number of other matters were raised by both parties in the course of their oral and written evidence. We have not engaged with those, save where they were relevant to the determination of the issues. - 3 - The relevant law Discrimination Direct discrimination
The relevant law
[16]Direct discrimination is defined by section 13(1) of the Equality Act 2010 (‘EqA 2010’), and states as follows: 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.[17]The “relevant protected characteristics” include race (per section 26(5) EqA 2010).[18]The circumstances of a comparator must be the same as those of the claimant, or not materially different (per section 23 of EqA 2010). The circumstances need not be precisely the same, provided they are close enough to enable an effective comparison: Hewage v Grampian Health Board [2012] UKSC 37 .[19]The important thing to note about comparators (whether actual or hypothetical) is that they are a means to an end. The crucial question in every direct discrimination case is what is the reason why the claimant was treated as he was? Was it because of the protected characteristic? Or was it wholly for other reasons?: Shamoon v Chief Constable of Royal Ulster Constabulary [2003] UKHL 11 Victimisation[20]Section 27 of the EqA 2010 defines victimisation, so far as relevant, as follows:(1) A person (A) victimises another person (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act – (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.[21]In order for an allegation (whether express or otherwise) that the employer has contravened the EqA 2010 to amount to a protected act, the asserted facts - 4 - must be capable of amounting to a breach of the EqA 2010 and must be sufficiently clear (see, for example, Chalmers v Airpoint Ltd UKEATS/0031/19; Beneviste v Kingston University UKEAT/0393/05). However, the context in which the complaint relied upon was made can be relevant in determining whether it was a protected act. It “need not state explicitly that an act of discrimination has occurred. All that is required are that facts should be asserted which are capable in law of amounting to an act of discrimination” (per Kokomane v Boots Management Services Ltd [2025] EAT 38, at paragraph 23).[22]The test for detriment in victimisation cases (as in all discrimination cases). is "is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?" (Shamoon v Chief Constable of the Royal Ulster Constabulary).[23]Victimisation occurs where a claimant is subjected to a detriment "because" they have done (or might do) a protected act. Whilst the protected act need not be the main or only reason for the treatment (victimisation will occur where it is one of the reasons), the protected act must be more than simply causative of the treatment (in the "but for" sense). It must be a real reason (per Chief Constable of Greater Manchester Police v Bailey [2017] EWCA Civ. 425; Ahmed v Amnesty International [2009] IRLR 884, CA). Standard of proof and time limits[24]The standard of proof is the balance of probabilities. The burden of proof in discrimination complaints has two stages, as follows (per section 136 of the EqA 2010, Efobi v Royal Mail Group Ltd 2021 ICR 1263, SC; Madarassy v Nomura International plc [2007] IRLR 246 and Igen Ltd (formerly Leeds Careers Guidance) v Wong 2005 ICR 931, CA): 24.1. The Claimant has to prove facts from which the Tribunal could infer that discrimination has taken place; 24.2. If so, the burden ‘shifts’ to the Respondent to prove that the treatment in question was in no way because of a protected characteristic.[25]Mere assertions of discrimination are insufficient. There must be evidence (whether actual or circumstantial) that links the treatment to the protected characteristics: Efobi. A difference in status and a difference in treatment are not sufficient on their own to create a prima facie case of discrimination. There must be “something more”: Madarassy.[26]Section 123 of the EqA 2010 requires that proceedings under the EqA 2010 may not be brought after the end of the period of three months starting with the date of the act to which the complaint relates or such other period as the Tribunal thinks just and equitable. By reason of section 123(3), conduct done over a period of time is treated as being done at the end of the period, for the purpose of calculating the three-month time limit for bringing proceedings. - 5 - Unfair dismissal[27]By virtue of section 94 of the Employment Rights Act 1996 (‘ERA 1996’) an employee has the right not to be unfairly dismissed by his employer. In respect of what constitutes an unfair dismissal the relevant law is to be found within section 98 of the ERA 1996.[28]Section 98(1) requires that in deciding whether a dismissal was unfair it is for the employer to show the reason for that dismissal. That reason must fall within a list of potentially fair reasons to be found within Section 98(2) of which subsection (2)(b) states: “A reason falls within this subsection if it relates to the conduct of the employee.”[29]Section 98(4) of ERA 1996 requires the Tribunal to consider whether the employer acted reasonably in dismissing the employee for one of the reasons in Section 98(2). In a conduct dismissal, the Tribunal is bound to consider the guidance issued by the Employment Appeals Tribunal in the Courts (including the decisions in British Home Stores Ltd v Burchell [1978] 379, Iceland Frozen Foods Ltd v Jones [1993] ICR 1, Post Office v Foley [2000] IRLR 827, Sainsbury’s Supermarkets v Hitt [2003] IRLR 23).[30]In particular, the case law requires me to consider four sub-issues in determining whether the decision to dismiss on the grounds of conduct was fair and reasonable: 30.1. Whether the employer genuinely believed that the employee had engaged in conduct for which he was dismissed; 30.2. Whether they held that belief on reasonable grounds; 30.3. Whether in forming that belief they carried out proper and adequate investigations, and 30.4. Thereafter, whether the dismissal was a fair and proportionate sanction to the conclusions they had reached.[31]The Tribunal must consider the reasonableness of the employer’s decision to dismiss and, in judging the reasonableness of that decision, the Tribunal must not substitute its own decision as to what was the right course to adopt for the employer. Rather, the Tribunal must consider whether there was a band of reasonable responses to the conduct within which one employer might reasonably take one view whilst another quite reasonably takes a different view. Our function is to determine whether in the circumstances of the case, the decision to dismiss fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within that band it is fair. If it falls outside that band, it is unfair.[32]The Tribunal is also required to consider the fairness of the procedure that was followed by the employer in deciding to dismiss the employee. However, if the - 6 - procedure followed was unfair, the Tribunal is not allowed to ask itself whether the same outcome (i.e. dismissal) would have resulted anyway, even if the procedure adopted had been fair (per Polkey v AE Dayton Services Ltd [1987] IRLR 503 HL).[33]The requirement for procedural fairness includes consideration of the reasonableness of the decision to dismiss up to and including any appeal process undertaken (West Midlands Co-operative Society v Tipton 1986 ICR 192, HL).
Findings of fact
[34]As noted above, the parties helpfully provided an agreed chronology, which we adopted. We also decided those relevant facts which remained in dispute.[35]Although the Claimant’s employment spanned 17 years, the focus of the case was on the period from June 2023 to August 2024.[36]At the relevant time, the Claimant managed the Respondent’s Asahi contract (in respect of the storage of Asahi’s beer products at Tilbury). That had entailed the Claimant managing the Respondent’s 46A warehouse (‘46A’). However, as a result of the growth of the Asahi contract, its stock and the Claimant were relocated to the larger T1 warehouse (‘T1’) in June 2023.[37]The Claimant’s employment contract in force at the time included the following, in respect of his place of work (at [191] of the Bundle): You normal place of work is Tilbury or such other place within a reasonable area as we may reasonably determine.[38]At the time, the Claimant’s salary was £50,000, having been increased from £46,400 in March 2022 to “keep in line with new ops managers salaries starting at Tilbury” (at [1071] of the Bundle).[39]Around the same time, the Respondent was reviewing its operations at Tilbury because of concerns about performance generally. Those concerns led the Respondent to recruit another Operations Manager, Denise Jones (who started on 26 June 2023) and Mr Buchan as Divisional Manager (with effect from 24 July 2023), both at Tilbury[40]Ms Jones’ salary was £62,500, over £12,000 more than the Claimant was paid for the same role. The Respondent operated a grade and banding pay structure. In their written evidence, Mr Davis (at paragraph 4 of his statement) and Mr Buchan (at paragraph 5 of his statement) explained that the aim was to recruit an experienced, high-calibre operations manager to assist in addressing the concerns at the Tilbury site. It was not unusual for the Respondent to pay different salaries to employees undertaking the same job roles.[41]Mr Buchan became the Claimant’s and Ms Jones’ line manager. Following his appointment, Mr Buchan was on pre-arranged annual leave from 31 July 2023 until 14 August 2023. Prior to going on leave, and as part of observing and - 7 - understanding the issues faced by the Respondent, Mr Buchan asked the Claimant to set out what his responsibilities were, what he was working on, what challenges he was facing and where he needed support. The Claimant provided his response (at [269] – [288] of the Bundle), which fed into Mr Buchan’s on-going review of Tilbury.[42]Mr Buchan had a number of concerns regarding the Claimant’s performance, as well as other issues of concern regarding the operations at Tilbury (as detailed at paragraphs 6 – 17 of his witness statement). Issues were raised with missing and damaged stock, warehouse utilisation and record keeping (in particular, in respect the completion of ‘failure to arrive’ reports, known as FTAs).[43]In particular, on 31 August 2023, Mr Buchan raised concerns with the Claimant about an FTA he had completed, proposing that they “[C]atch up tomorrow to discuss” (at [301] – [302] of the Bundle). The Claimant’s response of 1 September 2023 included the following (at [300]): Please note that the volume of work I have and the deadlines that I have to meet far exceed the hours that I have to do them. For some tasks there is no-one yet trained, capable or in a position to complete them. Another thing I am trying to work on but I need time to train and coach individuals concerned. I am often working at home or at weekends to fulfil these tasks as you have seen, as well as dealing with issues throughout the night. This effects my private life as well as my stress levels. I often cannot sleep once woken up and often worry about the operation. Main worries are in regards to capacity, staffing levels amongst other. This has been the norm for me but even more so of late. Investigations take a while for various reasons (I’ll go through the latest one I am doing with you so you have an idea), and I am often investigating fails from other departments (stock/ control admin). Since moving from 46A, I have no private office (which I mentioned in my presentation) so am having to work in areas with distractions where I am pulled away from completing tasks also. … As you said we will discuss today. Speak soon.[44]There followed a further brief email exchange between Mr Buchan and the Claimant where it was agreed that they would meet that day, prior to the Claimant starting a period of annual leave (at [300] of the Bundle).[45]In their meeting on 1 September 0223, Mr Buchan proposed moving the Claimant back to 46A from T1. In his written and oral evidence, Mr Buchan explained that he was concerned about the pressures being faced by the Claimant (as expressed by his email of 1 September 2023) and the Claimant’s own performance on the expanded Asahi contract. The Claimant had only - 8 - recently moved from 46A, so was familiar with it, and could manage three smaller contracts, to enhance his own skills and performance. That was all the more so in circumstances where the Respondent also had Ms Jones who could take over operations at T1. In Mr Buchan’s evidence, he considered this a short-term change to give the Claimant space to develop his skills, whilst affording an opportunity to see whether Ms Jones was capable of managing a larger operation (at Paragraphs 19 – 21 of his witness statement).[46]Mr Buchan’s thinking and motivation in this regard were captured in an email he sent to Ms Jones on 5 September 2023, in respect of her move to T1 in place of the Claimant (at [303] – [304] of the Bundle): In respect to the transition across to T1. This is part of a wider initiative which will also benefit Anthony and his current development whilst allowing a fresh perspective on some of the obvious challenges on the Asahi contract, i.e. stock and planning.[47]There was to be no change to the Claimant’s job title, remuneration or terms and conditions. All that changed was his location and the contracts he was managing.[48]Whilst the Claimant was on leave, Ms Jones was scheduled to have a probation meeting on 15 September 2023. She resigned on 14 September 2023. As a result, Ms Jones never took on managing the Asahi contract at T1. The Respondents recruited Richard Parkes to replace her, his employment starting on 2 October 2023.[49]Unfortunately, whilst on annual leave, the Claimant injured his knee, such that when he returned from leave on 14 September 2023, he worked from home, rather than 46A (and also undertook some work on the Asahi contract). The Claimant was supported in this by Mr Buchan, who still regarded it as an opportunity for the Claimant to have space to focus on developing his skills away from the pressures of managing T1 (at paragraph 24 of his witness statement). During this time, the Claimant and Mr Buchan held weekly discussions.[50]On 26 October 2023, the Claimant raised a grievance against Mr Buchan and Tina Andrews, the Stock Control manager at Tilbury (at [1190] – [1195] of the Bundle). The grievance was accompanied by an email from the Claimant to the Respondent’s Human Resources (HR) department, copied to Mr Buchan (at [349)]: I was supposed to be returning to work today, but I have been up all night with anxiety and stress. Due to the way I am feeling, I have written the attached where most things are explained. I will have to try to get an appointment to see my doctor to get some medication to assist me as I cannot come in to work in my current state of mind. - 9 - I hate doing this both sending in a grievance or saying I am stressed. It is so not my style. But it’s my life at the moment which is a nightmare. Something I have never had to deal with. So it’s very difficult.[51]The Claimant was issued with a fit note by his GP on the same day, reporting that he was unfit for work due to his mental health (at [347] of the Bundle).[52]Mr Moscrop was appointed by the Respondent to consider the Claimant’s grievance. On 15 November 2023, Mr Moscrop invited the Claimant to a meeting scheduled for 20 November 2023 (at [350] of the Bundle). The Claimant did not respond to that invitation or confirm that he would be attending the meeting. The Respondent attempted to contact him ahead of the meeting but without success. The Claimant eventually responded on 23 November 2023 (at [360] of the Bundle), after the date scheduled for the meeting.[53]Attempts were then made by the Respondent to rearrange the grievance meeting with the Claimant, and it eventually took place on 2 January 2024.[54]In the meantime, and to advance his investigations, Mr Moscrop asked Mr Buchan for his version of events in response to the issues raised in the Claimant’s grievance. Mr Buchan responded to Mr Moscrop by email on 13 December 2023 (at [417] – [418] of the Bundle), which included Mr Buchan’s recollection of the meeting on 1 September 2023: In the afternoon of 01/09/23, Anthony and I had a 121 where we went through Anthony’s concerns and I gave him feedback on his current output of work and where I believed that he was not delivering on all aspects of what I expect from his role as Operations Manager. I gave 3 examples to support this, 1. No warehouse labour plan in line with volume 2. Not able to demonstrate delegation or leadership, i.e. accepting actions that come out of the morning meeting, but not delivering on them 3. Not completing accident investigations in a timely manner or setting up his team to complete accident investigations. Not knowing what an acceptable accident investigation looks like To support Anthony whilst the operation was tasked to introduce some quick service gains. This change would allow Anthony to temporarily transfer to a smaller operation in 46A which will give him the headspace to develop his core skills, as well as give Denise an opportunity to come across to T1 and demonstrate her abilities in a more senior site management capacity During this meeting, I explained to Anthony the level of support that we had from the Board and that it was down to the site leadership team in place to be a part of the team that would move Tilbury forward in the coming year and that he had every opportunity to be part of that journey, but that Anthony also needed to reflect on whether this was right for him and if it was something that he wanted to be part of - 10 - Once I had set out the above to Anthony, I asked for his thoughts on this, but he declined to comment I reassured Anthony that I saw this as a positive conversation and that it was not intended to deflate him, but more to give him some constructive feedback along with commitment as to how I would support him to take away the challenges that he had presented me with that day Anthony asked to take his holiday to reflect on the conversation and we agreed to touch base on his return After the meeting, I called Grant [Bennett, Contract Manager] to ask him to call Anthony and make sure that he was ok and to talk through his thoughts if needed, but to reassure Anthony that the temporary move was to support Anthony with his current challenges[55]During December 2023, whilst the Claimant was off work due to ill-health, Mr Buchan asked Mark Cowell, Transport Manager, to remove the Claimant from the team’s WhatsApp group. As explained in his written evidence (at paragraph 40 of his witness statement): …I only every remove people from communications when they are off work with mental ill-health, which is what Anthony was suffering from. Anthony’s personal mobile number was in the WhatsApp group, and it is used primarily for operational updates, often through the night updates. I believed, and continue to believe, that it would not have been helpful for Anthony, or anybody in his position, to be receiving frequent operational updates whilst off work with mental ill-health.[56]The Claimant and Mr Moscrop met on 2 January 2024 (at [422] – 429] of the Bundle) and again on 18 January 2024 (at [430] – 432] of the Bundle). In addition, the Claimant sent Mr Moscrop a number of emails, providing further details in support of his grievance (at [437], [453] – [455] and [493] – [494]). As a result of those meetings and the further information. Mr Moscrop met with Ms Andrews on 12 February 2024 (at [552] – [556]).[57]Also on 2 January 2024, the Claimant attended a welfare meeting with Steve Taylor, another operations manger who had been appointed as the Claimant’s welfare support manager during his ill-health absence. As a result of that meeting, it was agreed to refer the Claimant to occupational health (‘OH’).[58]Around the same time, the Respondent had commenced an investigation into allegations of theft of stock by Kirk Marchant, a Team Manager at the Tilbury site. Mr Hafford was appointed by the Respondent to lead that investigation. It was not in dispute that Mr Hafford never worked with or met the Claimant.[59]As part of his investigation, Mr Hafford met with Mr Marchant and a number of other employees. Both Mr Marchant and others reported that a practice known as ‘beer allocation’ was taking place at Tilbury, which was being authorised and administered by the Claimant and Mr Bennett. The practice of ‘beer allocation’ (where a customer donated or permitted some of its stock to be distributed amongst the Respondent’s staff) had, in Mr Hafford’s view, been stopped in 2021. - 11 -[60]There appeared to be several elements to what could constitute the practice of ‘beer allocation’. It appeared to include some, if not all, of the following: 60.1. A specific allocation of beer stock by a client for distribution amongst the staff; 60.2. The distribution of beer stock which was scheduled for destruction because it was damaged and no longer saleable; and 60.3. The distribution of stock which was scheduled for destruction for other reasons (including short life).[61]What was ‘beer allocation’ was peripheral to our findings and the issues which we had to decide. What was of central relevance was whether or not it had been authorised by the client or the Respondent at the relevant time. As such, our reference to ‘beer allocation’ should be construed broadly to include any authorised distribution of a client’s beer to staff.[62]With that in mind, much was made of the decision by Asahi to stop all forms of beer allocation to staff from 2021 (the so-called ‘2021 directive’). There was no copy, if one existed, of the 2021 directive in evidence. However, it as referred to extensively by various employees of the Respondent in various communications and reports. It was also referred to by the Respondent’s witnesses. As such, we found that in 2021 Asahi had directed the Respondent to cease any form of beer allocation.[63]Mr Hafford published his investigation report on 29 January 2024 (at [502] – [521] of the Bundle). His main recommendation was that disciplinary action should be commenced against Mr Marchant. Mr Hafford also made a number of other recommendations to be considered by the Respondent, including the following (at [520] of the Bundle): That there be an investigation held into the conduct of Operations Manager, Anthony Senior.[64]On 5 February 2024, the Respondent appointed Mr Lee to undertake the investigation into the Claimant, as recommended by Mr Hafford. Mr Lee was provided with Mr Hafford’s report and the evidence he had obtained for that report.[65]The Claimant attended his appointment with OH on 12 February 2024, who produced a report with recommendations for when the Claimant was fit to return to work, anticipated at being in four to six weeks (at [1196] – [1199] of[66]On 14 February 2024, the Claimant started ACAS Early Conciliation on what would become Claim 1.[67]Upon concluding his investigation and reaching his decision on the Claimant’s grievance, Mr Moscrop invited the Claimant to a Teams meeting scheduled for - 12 - 22 February 2024. In error, Mr Moscrop sent the Claimant the disciplinary procedure, when he intended to send him the grievance procedure, an error which he corrected and apologised for within an hour of making it (at [573] of[68]At the meeting on 22 February 2024, Mr Moscrop informed the Claimant that he was not upholding his grievance (at [582] – [586] of the Bundle). He followed that up with written confirmation of his decision (at [576] – [581]). The letter confirmed that the Claimant had a right of appeal, which he did not exercise.[69]On 23 February 2024, Mr Lee invited the Claimant to an investigation meeting scheduled for 1 March 2024 (at [588] – 589] of the Bundle). The invitation informed the Claimant of the following: The purpose of the meeting is to consider an allegation of gross misconduct relating to theft. The specific allegation is:• That you have been involved in the theft of customer product from Howard Tenens sites in Tilbury, including damaged beer stock that was due for destruction.[70]The Claimant was informed that the investigation was being conducted in accordance with the Respondent’s disciplinary policy and that he was entitled to be accompanied by a colleague or trade union representative.[71]The Claimant met with Mr Lee on 1 March 2024 (at [597] – [607] of the Bundle) and again on 22 March 2024 (at [650] – 659]), the latter meeting having been rescheduled on two occasions at the Claimant’s request. Mr Lee also met with Ms Andrews and Lee McAney, Stock Control Supervisor, as part of his investigation (at [633] – [646]).[72]In addition, and in light of his meetings with the Claimant, Mr Lee contacted Mr Buchan on 4 and 12 April 2024 with some specific questions, to which Mr Buchan responded (at [672] – [674] of the Bundle). So far as relevant, across those communications, the following exchange took place: [Mr Lee to Mr Buchan, 4 April 2024]: I am investigating allegations that there was unauthorised removal of customers product(s) from [Respondent’s] Tilbury site. Specifically relating to Anthonny Senior, Operations Manager, it has been suggested that product being removed from site was not uncommon and this authorisation filtered down from the [Divisional Manager] in place at the time. During your time as [the Respondent’s Delivery Manager] for Tilbury, did Anthony Senior ever approach you to raise concerns of beer being repurposed from damage stock to backfill missing orders or to raise concerns that staff were being allowed to remove product from site, or ever ask you if it was ok to allocate beer to staff? - 13 - [Mr Buchan to Mr Lee, 4 April 2024]: … I can confirm that Anthony did not approach me with concerns of stock being repurposed from stock or damage to backfill missing orders. Nor did Anthony make me aware that staff were removing stock from site either by their own admission or authorised. [Mr Lee to Mr Buchan, 12 April 2024]: …in your opinion, would Anthony Senior, or any member of the team at Tilbury, have had ample opportunities to raise concerns with yourself over the removal of product from site? Specifically during the transition of stock from 46A to T1. [Mr Buchan to Mr Lee, 13 April 2024]: Yes – in my view that is correct. For context, Tina [Andrews] came to see me in my first week and was visibly upset about how she was being treated and kept away from the (stock) detail as she couldn’t be confident with the warehouse controls in place. As such, I spoke to Anthony and Kirk [Marchant] on a daily basis as well as started talking about stock discrepancies on a daily basis at the morning meeting – nothing was mentioned by either of them at the time. Tina and the stock management was supported by the Ashby team to get the stock profile under control much quicker.[73]During this time, Mr Buchan had taken over from Mr Taylor as the Claimant’s welfare officer. He emailed the Claimant on 21 March 2024, asking when the Claimant would be available for a welfare meeting (at [693] – [694] of the Bundle). On 4 April 2024, the Claimant sent an email to Venessa Howarth, People Business Partner, which included the following (at [692 of the Bundle): Please can you change the welfare manager assigned to me back to the previous one (Steve Taylor)? I have suffered racial discrimination from Adam [Buchan] and I strongly disagree with a lot of what he has said in his response to my grievance. I do not think it is appropriate that he is contacting me asking me about my welfare. I would have hoped that HR would have picked up on how this may affect me but again everything has become very clear to me since the outcome of the investigation.[74]This was the first time that the Claimant had explicitly alleged to the Respondent that he was being discriminated against on grounds of race.[75]Ms Howarth’s response to the Claimant on 9 April 2024 included the following (at [692] of the Bundle): It was my understanding, from the notes of your welfare meeting with Steve that you were uncomfortable with him as your welfare manager. However, in light of your request I will speak with Steve this week and confirm back to you at the earliest opportunity, no later than Friday. - 14 - I also note you have raised…allegations of racial discrimination. This is a serious allegation and please be assured that we treat allegations of this nature seriously. So that I can determine the appropriate next steps to investigate your concerns, please can you clarify if these are new allegations or if they form part of an appeal to the outcome of your initial grievance? Once you have confirmed I can put in place the appropriate process to explore those concerns.[76]In respect of the allegations of racial discrimination, the Claimant replied to Ms Howarth on 10 April 2024, stating simply (at [691] of the Bundle): Have no comments to make on anything else at this stage[77]Also on 10 April 2024, the Claimant presented Claim 1 to the Tribunal.[78]On 15 April 2024, Ms Howarth emailed the Claimant again, as follows (at [690] – 691]): In regard to the allegations of racial discrimination, I would encourage you to clarify this for me, so that we can put in place the appropriate process to explore these concerns.[79]As noted above, by this time, the Claimant had been notified of Mr Moscrop’s decision on his grievance but had not exercised his right of appeal. On 19 April 2024, having still not heard further from the Claimant, Ms Howarth emailed him again with the following (at 690] of the Bundle): As we have not received a response from you in regard to the allegations of racial discrimination and your challenges to the grievance outcome, given the serious nature of these allegations we have decided to treat this as a grievance appeal. Carl Waterer (Group Finance Director) has been appointed to hear this appeal and will be in contact in due course, the appeal meeting is likely to be arranged for week commencing 29 April 2024.[80]The Claimant had also raised some queries as to Mr Lee’s role as investigator which, with the assistance of HR, Mr Lee replied to on 15 April 2024 [678] – [679] of the Bundle).[81]Mr Lee produced his investigation report on 19 April 2024 (at [680] – [688] of the Bundle). The report detailed the remit and scope of the investigation, the evidence obtained, Mr Lee’s considerations, his conclusions and recommendations, the primary one being as follows (at 688]): The Investigating Officer recommends that a disciplinary hearing now takes place and that this report is given due consideration along with any other evidence provided as a part of the disciplinary process.[82]The Respondent appointed Mr Davis as the manager responsible for the disciplinary hearing. Whilst Mr Davis had met the Claimant, his working relationship was with the Claimant’s managers, not the Claimant himself. - 15 -[83]On 1 May 2024, Mr Davis invited the Claimant to a disciplinary meeting scheduled for 8 May 2024. He also provided the Claimant with Mr Lee’s investigation report (at [697] of the Bundle). The Claimant failed to attend on 8 May and the disciplinary hearing was subsequently rearranged to 13 May 2024 (at [710] – [711]).[84]The Respondent also arranged a grievance appeal meeting for the Claimant, which was scheduled to take pace on 2 May 2024. However, the Claimant did not attend and the Respondent rearranged it to 9 May 2024 (at [698] – [700] of[85]On 10 May 2024, Mr Davis contacted Mr Buchan with the following query in respect of Ms Andrews (at [717] – [718] of the Bundle): Within the investigation Anthony (in conflict to other evidence) alleges that it is the stock control team that authorise damaged stock to exit site. Please could you confirm the reasons why we have not asked for an investigation to be focused on the stock control manager in Tilbury?[86]On 12 May 2024, the Claimant: 86.1. Informed Mr Davis that he was unable to attend the disciplinary hearing rescheduled to 13 May 2024 and asked that it be rearranged again to the following week (at [746] – [747] of the Bundle); and 86.2. Replied to Mr Waterer in respect of the proposed grievance appeal (at [715]).[87]On 13 May 2024, Mr Buchan responded to Mr Davis’s query of 10 May 2024, which included the following (at [717] of the Bundle): In regards to the initial theft investigation, both Tina Andrews, Stock Manager and Lee McAneny, Stock Supervisor, were interviewed as part of a wider investigation and were questioned around this subject. Their answers however were deemed to be satisfactory and in line with other witness statements in regards to who was named.[88]On 16 May 2024, Mr Davis invited the Claimant to the rearranged disciplinary hearing, scheduled for 1pm on 20 May 2024, to be conducted by Teams (at [741] of the Bundle). Fifteen minutes before the start of the hearing on 20 May 2024, the Claimant emailed Mr Davis, explaining that he would not be attending the hearing due to his mental health. Within the email, the Claimant set out his written position in respect of the allegations and attached an annotated copy of Mr Lee’s investigation report and evidence he relied upon (at [758] – 760], [727] – [740] r& [1186] respectively).[89]On 22 May 2024, Mr Davis replied to the Claimant, which included the following (at [756] – [757] of the Bundle): - 16 - I can advise that the meeting was not held in your absence on 20th May and on this occasion we are willing to consider the information you have submitted on 20th May. As you have stated you will not attend the disciplinary hearing I will review all of the information I have, including the information which you have submitted, and make a decision on the outcome of the disciplinary process based on that information. Should I have any further questions following review of your additional information I may email you with those questions before arriving at my decision. In addition there are other outstanding questions that I had hoped to ask you during the disciplinary hearing, but have been unable to do so. I will include these questions for you to answer when/if I email you to obtain additional information to make a decision on an outcome of your disciplinary. … On a separate note, you have outlined in your email details regarding discrimination linked to a grievance you have raised. I must advise that as Disciplinary Manager for this investigation this does not form part of this process, and it is a separate process. However, please let me reassure you that the disciplinary outcome and my decision making will not in any way be impacted by the fact that you have raised a grievance.[90]As promised, Mr Davis sent questions he had for the Claimant on 24 May 2024, asking for responses by 28 May 2024 (at [752] – [755] of the Bundle). On 28 May 2024, the Claimant asked for copies of the statements obtained by Mr Hafford in his investigation in January 2024, which he wished to review before responding to Mr Davis’s questions (at 752]). Mr Davis arranged for those statements to be sent to the Claimant on 30 May 2024 and revised the deadline for responding to his questions to 3 June 2024 (at [762]).[91]The Claimant provided his responses on 5 June 2024 (at [774] – [779] of the Bundle). Notwithstanding that they were provided outside of the deadline set, Mr Davis informed the Claimant that he would take them into account as part of his decision-making process. (at [774]) He also made further enquiries of Mr Lee as a consequence of some of the Claimant’s annotations to his investigation report (at [1159] – [1160]).[92]On 12 June 2024, the Claimant sent further comments to Mr Davis (at [803] – [804] of the Bundle). Mr Davis confirmed to the Claimant that he would take those comments into account as well (at [803]).[93]On 14 June 2024, Mr Davis sent to the Claimant his disciplinary decision (at [811] & [1162] – [1165] of the Bundle), which was as follows: In view of the seriousness of this matter and my related findings (as set out below), I have decided that your employment with Howard Tenens will terminate with immediate effect on the grounds of gross misconduct and specifically that between 2021 and December 2023, you were engaged in the - 17 - theft of products from Howard Tenens Logistics site at Tilbury. Furthermore, I am satisfied that your actions have led to irreparable damage in the working relationship and a breakdown in the trust and confidence in you, meaning that your employment cannot continue.[94]The decision letter went on to detail Mr Davis’s reasons for the decision, explained how he had weighed and considered the Claimant’s submissions, and had regard to areas of mitigation (specifically, the Claimant’s length of service). The Claimant was also informed of his right of appeal.[95]The Claimant exercised his right of appeal and submitted his grounds of appeal on 28 June 2024 (at [810] & [814] – [820] of the Bundle). This consisted of a copy of Mr Davis’s dismissal decision letter, annotated by the Claimant with his response to each of the reasons put forward by Mr Davis (which numbered six in total) and to Mr Davis’s analysis of the Claimant’s own submissions.[96]The Respondent appointed Mr Evans to hear and decide the appeal. It was not in dispute that Mr Evans had never worked with the Claimant and had limited dealings with him prior to the appeal. On 9 July 2024, he invited the Claimant to an appeal hearing, scheduled to be conducted via Teams on 18 July 2024 (at [835] – [836] of the Bundle). Mr Evans provided the Claimant with the documents relevant to the disciplinary process, informed him of his right to be accompanied at the hearing and explained that a note-taker would also be attending the hearing (Bryony Hopkins).[97]On 12 July 2024, the Claimant started ACAS Early Conciliation on what would become Claim 2.[98]The appeal hearing took place as scheduled on 18 July 2024 (at [838] – [846] of the Bundle). At the start of the meeting, Mr Evans explained the following to the Claimant: I want to make you aware that Sam Phillips, Head of People, is also in attendance, this is because Bryony is an Apprentice of the company, and we want to ensure she is suitably supervised, and her notes verified in such a significant process.[99]The following day, the Claimant raised concerns with Mr Evans about how the hearing had been conducted (at [856] – [858] of the Bundle). Specifically, he criticised the role of Sam Phillips, who he alleged had actively intervened during the hearing and influenced Mr Evans, had a conflict of interest (as she had been involved in the Claimant’s grievance) and her role demonstrated further disregard by the Respondent for due process, which the Claimant characterised as “further evidence of racial discrimination, bullying and victimisation towards me”. The Claimant also alleged that the minutes of the meeting were incorrect, as follows (at [858]): I am now in receipt of the minutes which are not a true reflection of the meeting as the detail I have mentioned above has not been fully included. - 18 -[100]There followed an exchange of emails between Mr Evans and the Claimant. Mr Evans restated that Ms Phillips attended the meeting to provide support and was not involved in the decision-making process. He also asked the Claimant to provide more details of the alleged errors in the minutes of the meeting. In response, the Claimant asked for the decision on his appeal and claimed that he had been clear in his original email as to what was missing from the minutes and had “nothing further to add” (variously at [854] – [856] & [861] – [862] of the Bundle).[101]On 7 August 2024, Mr Evans issued his decision on the Claimant’s appeal (at [869] – [873] of the Bundle). The letter detailed how Mr Evans had considered and determined the various grounds of appeal raised by the Claimant. In conclusions, Mr Evans upheld the decision of Mr Davis to dismiss the Claimant and refused the Claimant’s appeal. He also confirmed that the decision on appeal concluded the disciplinary process and was final.[102]On 23 August 2024, the Claimant presented Claim 2 to the Tribunal. Analysis & conclusions[103]We applied our findings of fact to the matters set out in the List of Issues, save that we determined the question of time limits last. Direct race discrimination: analysis[104]The Claimant is black and alleged 11 acts of less favourable treatment (although he withdrew one in the course of the hearing). We considered each in turn, per the List of Issues.[105]For the following allegations, the Claimant compared his treatment to that of Ms Jones (Operations Manager) and Ms Andrews (Stock Control Manager). From around June 2023 onwards being paid £10,000 less than ‘Denise’ (Jones) even though she had less responsibility than the Claimant and not receiving the same benefits that she received (Paragraph 2.2.1).[106]It was not in dispute that Ms Jones was paid more than the Claimant. The Respondent’s explanations for that were detailed in the witness statements of Mr Moscrop (at Paragraph 3) and Mr Davies (at Paragraph 4). We had no reason not to accept those explanations. The Respondent operated a pay structure that involved grades and banding, which allowed for degree of pay flexibility. As referred to above, that flexibility had been used to the Claimant’s benefit in 2022 when his own salary was increased to reflect the salaries of newly appointed operations managers. A similar exercise in flexibility was operated in order to recruit Ms Jones.[107]The Tribunal could find no evidence that the decision to pay Ms Jones at the level she was had anything to do with her race or the Claimant’s race, such as to shift the burden onto the Respondent to provide a non-discriminatory explanation for the pay differential. Whatever grievances the Claimant had for - 19 - the differences in salary, we could find nothing from which to infer that the decision was anything to do with race.[108]In any event, the Respondent provided a clear, evidenced explanation for why it offered Ms Jones the salary that it did. The context was important. The Respondent’s Tilbury site was facing problems, which led to the recruitment of both Mr Buchan and Ms Jones.[109]The Claimant told us that he only found out about Ms Jones’ salary because he saw her contract when it had been left on a photocopier. He did nothing formally about the pay disparity at the time (for example, by raising it in a grievance) and had made this allegation of race discrimination with hindsight (which also went to issues of time limits, which we deal with below).[110]For all those reasons, we found that that the Claimant was not treated less favourably than Ms Jones because of his race. Being provided with minimal support operationally between July and August 2023 when compared to a white employee (Paragraph 2.2.2).[111]This was an allegation directed at Mr Buchan, who became the Claimant’s line manager upon joining the Respondent. However, Mr Buchan did not start his employment with the Respondent until 24 July 2023. He was then on leave from 31 July 2023 until 14 August 2023. That in itself went some way to explaining any shortcomings or shortfall in the support being provided to the Claimant by Mr Buchan, none of which were conceivably because of the Claimant’s race.[112]In addition, in his oral evidence, the Claimant accepted that Mr Buchan supported him when working from home from September 2023 onwards. In our judgment, it did not make sense for Mr Buchan to not support the Claimant because of race in July and August 2023 (as alleged), only to then begin supporting him from September 2023 (as acknowledged by the Claimant).[113]Mr Buchan believed he was supporting the Claimant. The Claimant believed Mr Buchan was not supporting him. At its highest, there was a disagreement but nothing from which we could conceivably infer had anything to do with the Claimant’s race, such as to shift the burden of proof on to the Respondent.[114]We therefore found allegation was not made out as an act of discrimination on Not being given an office when he moved to a new site between August and September 2023 (paragraph 2.2.3).[115]This allegation was related to the decision on 1 September 2023 to transfer the Claimant from T1 back to 46A. In the first instance, it was worth re-stating that the Claimant never actually physically retuned to 46A. He went on leave on 2 September 2023, injured his knee whilst on leave and worked from home on his return to work, before commencing a period of sick leave in January 2024. Thereafter, the Claimant did not return to work before being dismissed on 14 June 2024. - 20 -[116]The Claimant raised the issue of an office space in his grievance of 26 October 2023, as follows: (at [1190] of the Bundle): I was promised a portacabin prior to moving to 46A but when I got there was told I couldn’t have one. I understand things change and I am flexible. But no other office was provided for me. I hot desked where I could but in my role I need privacy as I view some sensitive documents. The office that was occupied by the 2 x Operations Managers that left was given to the Admin Manager and the Admin Team Leader.[117]The grievance was written far closer in time to the events it complained of. Yet there was no reference by the Claimant to who made the promise, who told him he could not then have an office and no suggestion that the decision had anything to do with his race. There was no new or further evidence to explain why the Claimant now thinks the decision was motivated by his race.[118]In his oral evidence, the Claimant accepted that the provision or otherwise of an office at 46A ceased to be an issue upon his return from annual leave, as he worked from home and then commenced a period of sick leave, during which his employment was terminated. It was, therefore, questionable whether there was ever any less favourable treatment, in circumstances where the Claimant never physically moved back to 46A.[119]Mr Buchan’s evidence was that it was a matter for the Claimant, as operations manager, to arrange which office he wanted to work from in 46A. In his written evidence, Mr Buchan said that he never assigned any member of staff an office, which must include Ms Jones, who was line managed by Mr Buchan and was one of the Claimant’s comparators. That evidence was not challenged and led us to conclude that the Claimant was not treated less favourably than Ms Jones.[120]In addition, in his email of 1 September 2023, the Claimant complained about a lack of an office in T1 (“[S]ince moving from 46A, I have no private office…”), which lent support to Mr Buchan’s evidence that operations managers were left to arrange their own office space, irrespective of which ware house they were working from.[121]Importantly, even on the Claimant’s case, there was no evidence whatsoever that the office arrangements at 46A had anything to do with the Claimant’s race. In addition, the comparators relied upon by the Claimant were inappropriate. Ms Jones left the Respondent in mid-September 2023 (whilst the Claimant was on leave) and Ms Andrews was not warehouse-based or doing the same role as the Claimant.[122]For all those reasons, and similar to the previous allegation, there was at its highest a disagreement about what was or was not promised to the Claimant, but nothing from which we could infer it had anything to do with the Claimant’s race, such as to shift the burden of proof on to the Respondent. - 21 -[123]We therefore found allegation was not made out as an act of discrimination on That the meeting held with Adam Buchan in September 2023 was not properly scheduled, or properly minuted, and Adam Buchan fabricated what was discussed (paragraph 2.2.4).[124]As found above, the Claimant met with Mr Buchan on 1 September 2023, during which Mr Buchan informed the Claimant of his decision to relocate him back to 46A from T1.[125]In our judgment, the context of that decision was important. The Claimant had only been moved from 46A to T1 in June 2023. Mr Buchan had been recruited by the Respondent in July 2023. On 21 August 2023, the Claimant sent his presentation to assist Mr Buchan in understanding the structure of the Respondent and the Claimant’s role within it. For Mr Buchan, that presentation raised issues in his mind about the Claimant’s workload and his current capabilities. Those concerns were reinforced by the Claimant’s email of 1 September 2023, which preceded the meeting of the same day. It was those concerns which led Mr Buchan to make the decision that the Claimant needed to relocate to 46A, to take the pressure off him and allow him to further develop his skills.[126]The Claimant complained about the arrangements for the 1 September 2023 meeting. As found, it was an informal discussion between Mr Buchan and the Claimant, but we did not see how that undermined or minimised the decisions reached by Mr Buchan or the reasoning behind those decisions. Indeed, the Claimant himself accepted in his oral evidence that he held similar types of meetings with his own staff.[127]We also noted that there was nothing in the Claimant’s contract which prevented him being moved between warehouses on the Tilbury site. Indeed, it was self-evidently permitted, since the Claimant had been moved from 46A to T1 only three months earlier.[128]There was simply nothing to suggest or infer that the manner in which the meeting was arranged, the fact that it was not minuted or the decisions reached by Mr Buchan were remotely because of the Claimant’s race.[129]The allegation of fabrication, as we understood it, was premised on what Mr Buchan wrote to Mr Moscrop on 13 December 2023, as part of Mr Moscrop’s investigation into the Claimant’s grievance. The Claimant did not agree with Mr Buchan’s characterisation or recollection of the meeting of 1 September 2023. In contrast, Mr Buchan stood by his recollection. The Claimant said that Mr Buchan told him that he did not have the skill set to be an operations manager (also considered as a standalone allegation, below) Mr Buchan denied saying that but did inform Mr Moscrop that he discussed giving the Claimant “headspace to develop his core skills” (at [417] of the Bundle). - 22 -[130]In our judgment, there was no fabrication by Mr Buchan. At most, his recollection and the Claimant’s differed. We had no reason to doubt that both recollections were genuinely held. But what that did not evidence was anything from which we could infer that Mr Buchan was deliberately falsifying or misremembering what occurred at the meeting or what was said, still less that he was so doing because of the Claimant’s race.[131]Having considered the evidence in the round, the Claimant took issue with Mr Buchan’s management style, the decisions which he made in respect of transferring the Claimant back to 46A and the reasoning behind those decisions. But that fell some way short of anything from which it was possible to infer that Mr Buchan’s management and decisions were in any way because of the Claimant’s race.[132]For those reasons, the allegations were not made out as acts of discrimination Being demoted in terms of his responsibility in the same meeting in September 2023 both in terms of the scale of the work for which he was responsible, the number of employees he line managed both directly and indirectly and the removal of responsibility for an important customer (Paragraph 2.2.5).[133]This allegation related to the decision by Mr Buchan at the meeting of 1 September 2023 to move the Claimant back to 46A from T1. It was not in dispute that none of the Claimant’s employment conditions changed. His salary, his job title and his job role remained the same. The Claimant was moved from Asahi, which was the Respondent’s biggest single contract at time, to manage smaller contracts. But as detailed above, Mr Buchan’s evidence was that the move of venue was in response to concerns he had with the Claimant’s performance and abilities to cope with a contract the size of Asahi, which was, to a degree, echoed by concerns raised by the Claimant himself.[134]With respect, the Claimant appeared to want it both ways. He complained about his workload and the pressure he was under in T1. When the Respondent, via Mr Buchan, sought to address those concerns, the Claimant complained of being demoted.[135]In our judgment, there was no demotion, whether in law or in practice. The change to the Claimant’s workload was to address concerns raised by both Mr Buchan and the Claimant. It was, in reality, a management decision, designed to assist and support the Claimant, whilst also benefitting the business.[136]In any event, there was ample evidence that the decision to move the Claimant off the Asahi contract and bring in Ms Jones was because of the Respondent’s genuine concerns about the Claimant’s capabilities at that time in respect of the Asahi contract (given its size). There was nothing from which we could infer that the Claimant’s race played any part whatsoever in that decision. - 23 -[137]For those reasons, the allegation of demotion was not made out and the allegation that the decision to move the Claimant back to 46A and off the Asahi contract (whether that constituted a demotion or not) was an act of discrimination on grounds of race was also not made out. Being advised that that he did not have the skills to be an Operations Manager in the same meeting in September 2023 (paragraph 2.2.6)[138]In the course of his grievance, and as noted above, the Claimant recorded that he had been told by Mr Buchan in their meeting on 1 September 2023 that that he was being moved back to 46A because “I was not a capable operations manager” (at [1190] of the Bundle).[139]Whilst there were some similarities between what the Claimant alleged in his grievance of 26 October 2023 and what he alleged in this litigation (in that both alleged comments pertained to the Claimant’s abilities), the allegation in the litigation was specifically about not having the skills. Mr Buchan accepted that there was constructive criticism of the Claimant during the meeting, but he did not recall using the phrase which the Claimant now attributes to him.[140]The Claimant’s grievance went on to detail the specific issues raised with him by Mr Buchan in their meeting (per the fifth paragraph, at [1190]). The Claimant also indicated that he had drawn his own conclusions and inferences from what was being said to him (“I read this as the business not having any regard for me or my position”), also at [1190]). In our judgment, it was plausible that this is what the Claimant was referring to when Mr Buchan told him he was not a capable operations manager.[141]We noted that the Claimant was not placed into a formal capability process. It was reasonable to conclude that had the Respondent thought that the Claimant did not have the skills for the role, a more structured, formal process would have been implemented. Instead, Mr Buchan said that he believed moving the Claimant back to 46A would assist him and his development.[142]As noted, following the meeting on 1 September 2023, the Claimant suffered his accident whilst on leave and he accepted that he was supported whilst working from home. In our judgment, such support was not consistent with being told on a few weeks earlier that he did not have the skills to be an operations manager.[143]In any event, if Mr Buchan believed the Claimant did not have the skills to be an operations manager, why move him back to 46A where the Claimant would still be an operations manager? Again, it struck the Tribunal as inconsistent that the Claimant would be told that he did not have the skills to be an operations manager and yet the solution was to continue him in the role of operations manager (albeit at a different warehouse and on different contracts).[144]Given Mr Buchan’s oral evidence, the Claimant’s skills were an issue, but a more accurate summary was that the Respondent had concerns regarding the Claimant’s skills as an operations manager on larger contracts, as evidenced - 24 - by the issues he himself had raised regarding his workload whilst in T1, and Mr Buchan’s own analysis and judgment of the Claimant’s performance. That was also consistent with the decision to return the Claimant to 46A, where he had been until June 2023 and where he could have the space and capacity to develop the skills he needed for larger contracts.[145]As such, we concluded that the Claimant was not told that he did not have the skills to be an operations manager. At its highest, the concerns expressed were about his skills to manage larger contracts, which informed the plan to enable him to have the capacity to develop those skills. It was not that the Claimant was judged not to have the skills to be an operations manager, period. That was not consistent with what happened next (wherein he continued in the role of operations manager but on smaller contracts and was not put into a capability process). In addition, the Claimant did not specifically mention that phrase in his grievance (of being told he did not have the skills to be an operations manager). He did recall in his grievance that his capability was questioned, which it was. We reminded ourselves that the Claimant’s grievance was written much closer in time to the meeting of 1 September 2023.[146]In any event, there was nothing from which we could infer that the Claimant’s race played any part in what Mr Buchan said to the Claimant during the meeting of 1 September 2023 or the changes which were implemented thereafter. In contrast, there was ample evidence of concerns regarding the Claimant’s capability and performance following his move to T1 and the larger Asahi contract, which were being flagged by Mr Buchan and by the Claimant himself.[147]For those reasons, the allegation was not made out as an act of discrimination The reasons for his demotion were not investigated thoroughly enough to warrant a final conclusion in grievance meeting which was held September 2023 (Paragraph 2.2.7).[148]We repeat our analysis and conclusion above, that the Claimant’s move from T1 back to 46A, with the attendant change in the contracts he was responsible for, was not a demotion.[149]The grievance outcome letter of 22 February 2024 including the following, relevant conclusions by Mr Moscrop (at [580] of the Bundle): In regard to your move from T1 to 46a, which you considered a ‘demotion’ I cannot see any evidence that corroborates this, you have purely moved from being the Operations Manager in T1 to the Operations Manager in 46a. In addition, Adam [Buchan] made this decision as a purely temporary move to allow you to have some time to develop the core skills he discussed with you in your initial meeting, surrounding leadership and process. Your salary and terms of employment remained the same, the difference you considered important was the number of permanent employees working directly for you, which is always a changing part as an Operations Manager and does not suggest a demotion. - 25 - I am confident that Adam saw this an opportunity for you to develop and upskill, to strengthen your ability to perform as an Operations Manager. In addition to this, at the time, Adam had another Operations Manager who he wanted to stretch developmentally and so this created a useful opportunity to strengthen the breadth and depth of skills and knowledge across his two Operations Manager. Therefore, I have concluded that this part of your grievance is not upheld.[150]As detailed in our findings of fact, Mr Moscrop sought information from Mr Buchan and the Claimant as part of his investigations into the Claimant’s grievance. He met with the Claimant on two occasions and thereafter followed up on a number of other questions and queries raised by the Claimant. Those further queries led Mr Moscrop to meet with Ms Andrews, before finally concluding his decision and communicating it to the Claimant.[151]The Claimant accepted in his oral evidence, in our view correctly, that he had been given a fair opportunity by Mr Moscrop to put forward his case as to why, amongst other things, he believed he had been demoted by Mr Buchan.[152]In our judgment, Mr Moscrop‘s investigations into the Claimant’s grievance cannot be characterised as insufficient. In particular, Mr Moscrop undertook sufficient investigations to inform his findings and decision in respect of the Claimant’s allegation that he had been demoted. It was clearly open to Mr Moscrop to conclude that the Claimant had not been demoted and that conclusion was based on proper and appropriate investigations.[153]At its highest, this was another example of the Claimant not agreeing with a decision, in this case relating to his grievance. What the evidence did not show was anything from which we could infer that the Claimant’s race played any part in how Mr Moscrop conducted the grievance investigation or the decisions he reached following those investigations.[154]For those reasons, the allegation was not made out as an act of discrimination on grounds of race Following receipt of the Claimant’s grievance on 26 October 2023, the grievance process was not managed in accordance with ACAS guidelines in that it took around 5 months to complete, there was a long time between meetings and the investigation was not fair and thorough. The Respondent did not ask the Claimant for his documents (Paragraph 2.2.8).[155]As found above, there was a period of four months from the date the Claimant submitted his grievance (26 October 2023) to when Mr Moscrop issued his decision on the grievance (22 February 2024). However, some of that time was taken up with delays in the process caused by the Claimant, not the Respondent. As noted, the Claimant failed to attend the first grievance meeting on 20 November 2023 and raised numerous further questions and queries which required consideration and investigation. - 26 -[156]Time was also taken by Mr Moscrop in properly investigating the allegations raised in the grievance (which, because of the Claimant’s further questions and queries, expanded).[157]As explained above, we found the investigations undertaken by Mr Moscrop to be proper and appropriate. He met twice with the Claimant, made enquiries of Mr Buchan and met with Ms Andrews. He engaged fully with the original grievance and the subsequent issues raised by the Claimant. As such, he was able to provide a clear, cogent and fully reasoned decision.[158]To that end, the Tribunal did not consider the time taken by Mr Moscrop to be excessive nor did we consider his investigation to either unfair or insufficient.[159]More importantly, as this was an allegation of direct race discrimination, there was nothing from which we could possibly infer that the manner in which Mr Moscrop undertook his role as grievance manager had anything whatsoever to do with the Claimant’s race. If anything, Mr Moscrop was incredibly accommodating to the Claimant and went out of his way to ensure that the Claimant could engage with the process and play a full part in presenting his grievance.[160]For those reasons, the allegation was not made out as an act of discrimination[161]For the remaining allegations of direct race discrimination, the Claimant compared his treatment to that of James Brophy (Head Office Finance Partner), Grant Bennett (Divisional Manager), Ms Andrews (Stock Control Manager), Mr Moscrop (Operations Director), Mr Davies (Commercial Director); Paul Wrench, Ms Jones, Ioana Sinea, Joshua Finch (all Operations Managers). Instigating a disciplinary investigation into the Claimant from 23 February 2024 onwards for not following a site directive (Paragraph 2.2.9).[162]As found above, the initial recommendation that disciplinary proceedings should be commenced against the Claimant came from Mr Hafford in his investigation report (at [520] of the Bundle). It was not in dispute that, at the time of compiling his report and making his recommendations, Mr Hafford had never met the Claimant and was not aware of his race.[163]In those circumstances, it was reasonable and appropriate for the Respondent to act upon Mr Hafford’s recommendation, which was evidenced-based and arose from his comprehensive and wide-ranging investigations. It was also the case that, in recommending that the Claimant be subjected to disciplinary proceedings, his race could have played no part as Mr Hafford was wholly unaware of what the Claimant’s race was.[164]A disciplinary investigation was also instigated against Mr Bennett for the same (or broadly the same) allegations. Mr Bennett was white. The Claimant was not treated less favourably than Mr Bennett. - 27 -[165]As such, there was no evidence whatsoever to infer that the decision to initiate disciplinary proceedings against the Claimant had anything to do with his race. In contrast, there was ample, compelling evidence that the reason was solely informed by the extensive investigation undertaken by Mr Hafford and the evidence which arose from it.[166]For those reasons, the allegation was not made out as an act of discrimination Adding a further disciplinary allegation against the Claimant that he had not reported his line manager, Grant Bennett, for authorising distribution of beer to staff (Paragraph 2.2.10).[167]This allegation was withdrawn by the Claimant in the course of the hearing. We have therefore not determined it, as it ceased to be an issue before us. Dismissing the Claimant on 14 June 2024 for not following a customer directive and for failing to his report his manager (Paragraph 2.2.11).[168]Given that the Claimant withdrew the allegation of adding a further disciplinary charge of failing to report Mr Bennett, we limited out analysis of this allegation to the Claimant’s dismissal.[169]It was not in dispute that the Respondent dismissed the Claimant. Was the same less favourable treatment, compared to how the Respondent treated or would have treated white employees in the same circumstances as the Claimant?[170]Mr Marchant was dismissed for similar allegations of removing client stock without permission. Mr Marchant was white. The Claimant, however, did not compare his treatment to that of Mr Marchant.[171]Mr Bennett was being investigated into similar allegations of removing client stock without permission when he resigned. Mr Bennett was white. The Claimant did compare his treatment to that of Mr Bennett.[172]As will be seen below, we concluded that the Respondent undertook a comprehensive and fair investigation into the allegations against the Claimant. The decisions reached as to the Claimant’s conduct and the sanction for that conduct were fully reasoned and fully informed by the evidence which arose from that investigation. The Claimant was given a full opportunity to engage in the disciplinary process. His arguments, submissions and enquiries were all considered properly by the Respondent.[173]Drawing those factors together, the Claimant was not treated less favourably than Mr Marchant and, in so far as being subject to a disciplinary investigation, the Claimant was not treated less favourably than Mr Bennett. The disciplinary process undertaken by the Respondent and the conclusions it reached in no way provided any evidence whatsoever from which it could be inferred that the decision to dismiss the Claimant was because of his race. In contrast, there was ample evidence that the reason for his dismissal was the genuine belief - 28 - held by the Respondent, arising from a proper investigation, that the Claimant had engaged in gross misconduct, namely the unauthorised removal of client stock.[174]As such, the allegation was not made out as an act of discrimination on Direct race discrimination: conclusions[175]None of the allegations made by the Claimant have been found to be acts of discrimination on grounds of race, for the reasons we have detailed above. On that basis, his complaint of discrimination on grounds of race was not made out and is dismissed.[176]Although not a factor in how we determined each of the allegations advanced by the Claimant, the Tribunal noted that the Claimant himself did not complain of being discriminated against, whether on grounds of race or otherwise, until 4 April 2024 (in his email to Ms Howarth, at [692] of the Bundle, where he made a non-specific allegation against Mr Buchan). We also noted the Respondent’s response, which was proactive and encouraging. Ms Howarth’s response was the antithesis of denial and dismissal. It was the Claimant who chose not to engage further, despite making the allegation.[177]What that limited evidence tended to show was an employer who, upon being first alerted by an employee to an allegation of race discrimination, took effective, supportive and appropriate action.[178]Whilst not a material factor in how and why we determined the allegations of race discrimination as we did, the Tribunal felt it was important to recognise how the Respondent had acted when a specific allegation of race discrimination was made by the Claimant. Victimisation: analysis[179]The Claimant’s case was that the grievance he raised on 26 October 2023 was a protected act (at [1190] – [1195] of the Bundle). The Respondent said that the grievance did not fulfil the requirements to be deemed a protected act.[180]The Tribunal reminded itself of what would be required the Claimant’s grievance to meet the criteria to be a considered a protected act, for the purposes of section 27 of the EqA 2010.[181]On the facts of the case as advanced by the Claimant, we were concerned with section 27(2)(d) of the EqA 2010, namely “making an allegation (whether or not express) that A or another person has contravened” the EqA 2010. In other words, did the Claimant’s grievance of 26 October 2023 include an allegation that someone who acted in contravention of the provisions of the EqA 2010.[182]We were properly referred to by the Claimant by the decision in Kokomane (above) and the fact that it is not necessary for there to be an explicit or express statement in the grievance that the Claimant was alleging acts of - 29 - discrimination. It was important to look at the grievance in the round and consider the context in which it was raised.[183]As the Claimant accepted in his oral evidence, he did not explicitly raise any allegations of discrimination, on grounds of race or otherwise, until his email of 4 April 2024 to Ms Howarth, where he alleged that he had “suffered racial discrimination” from Mr Buchan (at [692] of the Bundle). There were, on his own case, no explicit allegations of race discrimination in his grievance of 26 October 2023.[184]Were there facts alleged in the Claimant’s grievance which, in law, would amount to an allegation of discrimination? The grievance raised concerns and complaints about how the Claimant felt he was managed by Mr Buchan, particularly during and in the immediate aftermath of their meeting on 1 September 2023. There were issues raised about the conduct of Ms Andrews and the effects the Claimant alleged that conduct had on him. The Claimant concluded his grievance by explaining how the alleged treatment he had suffered at the hands of both Mr Buchan and Ms Andrews had adversely affected his mental health. As an outcome, he asked that his complaints be investigated and “measures put in place, so the behaviours mentioned do not re-occur and non-one has to go through what I have while at work or even now” (at [1195] of the Bundle).[185]On any reading of the Claimant’s grievance, he did not suggest, either explicitly or implicitly, whether by reference to context or language, that the treatment he complained of was anything to do with his race. In our judgment, there were no allegations advanced by the Claimant in his grievance which, in law, would have amounted to an allegation of discrimination on grounds of race.[186]The only protected characteristic which was potentially referred to was that of disability, when the Claimant described how the treatment adversely impacted his mental health. However, in our judgment, that did not advance the Claimant’s case because: 186.1. He has never asserted, and we have not found (nor been asked to find), that the Claimant was disabled, as defined by section 6 of the EqA 2010, by reason of his mental health, whether at the time of his grievance or at anytime before or since; and 186.2. The reference to the Claimant’s mental health was in the context of the effects of the alleged treatment, not the reasons for the treatment. The Claimant did not suggest that he was treated in the ways alleged because of his mental health or because of anything arising from his mental health.[187]For all those reasons, we concluded that the Claimant’s grievance of 26 October 2023 did not meet the requirements of section 27(2) of the EqA 2010 and, as such, was not a protected act.[188]That conclusion was determinative of the complaint of victimisation. However, for the sake of completeness and as we were addressed on the point, we went - 30 - on in any event to decide whether the alleged treatment relied upon by the Claimant was done because of his grievance of 26 October 2023 (as set out in the List of Issues). Mark Cowell removing the Claimant from a senior managers WhatsApp group in December 2023, despite the Claimant still being in employment at the time (Paragraph 3.2.1).[189]As found above, Mr Cowell was directed by Mr Buchan to remove the Claimant from the WhatsApp group. The reason for that had nothing to do with the Claimant’s grievance. Instead, it was to avoid the Claimant being bombarded with work-related messages whilst he was on sick leave.[190]In the circumstances, not only was removing the Claimant from the WhatsApp group unconnected with the Claimant’s grievance, it was, by reason of the intentions behind it, not detrimental treatment, since it sought to benefit and assist the Claimant at a time when he was off work due to ill-health. Sending a disciplinary investigation notice on 23 February 2024, the day after the Claimant’s grievance outcome had been provided, which eventually led to his dismissal (Paragraph 3.2.2).[191]As found above, the catalyst for the decision to commence a disciplinary investigation into the Claimant was the investigation report of Mr Hafford, which included the recommendation that the Claimant be investigated into his alleged role in the removal of beer.[192]As such, the decision to commence disciplinary proceedings against the Claimant had nothing whatsoever to do with him raising a grievance.[193]The decision to send the Claimant the invitation to the disciplinary investigation on 23 February 2024, the day after he was notified of his grievance outcome was, at most, coincidental. There was no evidence that the decision to do so was in retaliation for the Claimant raising his grievance (which was properly investigated and decided upon by an officer who had no involvement whatsoever in the disciplinary process or disciplinary decision making). In contrast, there was clear, consistent and robust evidence that the reason for starting the disciplinary process was the evidence which arose from the investigation of Mr Hafford, which informed his recommendation that the Claimant should be investigated. On 19 March 2024, commencing a disciplinary procedure in relation of the Claimant. It was alleged by the Respondent that the Claimant had committed gross misconduct in relation to theft (Paragraph 3.2.3).[194]We repeat our analysis above. The reasons for instigating the disciplinary proceedings against the Claimant, which began with a wholly separate investigation by Mr Lee, and which resulted in a disciplinary process and decision by Mr Davis and an appeal process undertaken by Mr Evans, were the evidence and conclusions reached by Mr Hafford in his own investigation - 31 - and which, for clearly explained reasons, included his recommendation that there be such an investigation into the Claimant.[195]Again, and for the avoidance of doubt, the disciplinary processes, from investigation, to the laying of allegations and charges, had nothing whatsoever to do with the fact that the Claimant had raised a grievance and everything to do with the evidence which had come to light from first Mr Hafford’s investigation and then Mr Lee’s separate and specific investigation into the Claimant. Dismissing the Claimant for gross misconduct on 14 June 2024 (Paragraph 3.2.4).[196]We repeat our analysis above. The Claimant’s dismissal was not because he raised a grievance. He was dismissed because of the conclusions reached by the Respondent following the investigations of Mr Lee and the decisions reached by Mr Davis, which were upheld on appeal by Mr Evans. Victimisation: conclusions[197]The Claimant’s grievance of 26 October 2023 was not a protected act. In any event, the detrimental treatment he complained of was not because he had raised his grievance.[198]For all those reasons, the complaint of victimisation was not made out and is dismissed. Unfair dismissal: analysis[199]It was not in dispute that the Respondent dismissed the Claimant on 14 June 2024. The Respondent relied upon the potentially fair reason of conduct for dismissing the Claimant. In the alternative, it relied upon some other substantial reason resulting from a breakdown in trust and confidence, arising in reality from the same conduct for which it dismissed the Claimant.[200]The Respondent was the custodian of its clients’ products (in this case, beer) and those clients relied upon the Respondent to look after their stock appropriately. As the operator of bonded warehouses, there were also tax implications for its clients, with excise duties and VAT only being payable when the stock left the warehouse.[201]As detailed above, Asahi had previously allowed the Respondent to repurpose some of its stock for distribution amongst its staff (by way of beer allocation). That permission had been withdrawn by Asahi in or around 2021 (the 2021 directive). From the investigation undertaken by Mr Lee, the Respondent was entitled to conclude that its staff were aware of the 2021 directive and its effect in stopping the allocation of Asahi beer, and to conclude that, notwithstanding the 2021 directive, Asahi beer was still being removed by staff.[202]Mr Lee’s investigation was thorough enough for those beliefs to be reasonably held. It followed that the Respondent held a genuine belief, on reasonable grounds, that beer was being removed by staff without the permission or - 32 - consent of either the Respondent or the Respondent’s client (in this case, Asahi).[203]The Respondent also held a genuine belief, on reasonable grounds, that the Claimant had been removing beer, both for his own use and permitting staff to do the same. That came from the fact that the Claimant admitted doing so.[204]However, the Claimant’s defence was two-fold: 204.1. He claimed to be unaware of the 2021 directive; and 204.2. He claimed to have himself been authorised to remove beer by Mr Bennett and Ms Andrews (in her role as stock control manager).[205]The Respondent properly investigated and considered the Claimant’s claims. It had regard to the fact that the Claimant reported to Mr Bennett at the time in question but also that Mr Marchant, who reported to the Claimant, had himself been dismissed for similar conduct (at [539] of the Bundle). The Respondent was reasonably entitled to conclude that notwithstanding any authorisation he claimed to have received from Mr Bennett (who himself was subject of investigation by Mr Hafford, prior to his resignation on 29 December 2023), the Claimant was operationally responsible for Asahi’s stock.[206]In addition, the Respondent genuinely believed that the Claimant was fully aware of the 2021 directive and so, whether authorised by Mr Bennett or not, was fully aware that beer allocation was prohibited. That belief was reasonably held, arising as it did from the evidence of widespread knowledge of the 2021 directive amongst those spoken to as part of both Mr Lee’s and Mr Haford’s investigations. As such, the Respondent was reasonable entitled to believe as it did, that the Claimant was involved in the removal of client stock (whether directly or by authorising others to do so), which he knew was prohibited.[207]For all those reasons, we concluded that the Respondent held a genuine belief that the Claimant had engaged in the conduct for which he was dismissed, namely removing and authorising others to remove client stock, in the knowledge that such actions were not just unauthorised by the client, but had been conclusively brought to an end by way of the 2021 directive.[208]In our judgment, the Respondent’s disciplinary procedure went over and above what was reasonably required, in order to ensure that the Claimant was able to fully participate, understand the allegations against him and have a full and proper opportunity to respond. Investigation and disciplinary hearings were arranged to accommodate the Claimant. His questions and queries were explored and answered. His lines of enquiry were followed. His submissions were considered, even when provided outside of reasonable time limits and extensions.[209]Mr Lee undertook a fair, thorough and appropriate investigation. He was wholly independent of the Claimant. Mr Davis and Mr Evans were similarly independent of the Claimant and of the other parts of the disciplinary process. The Claimant was made fully aware of the evidence being relied upon by the - 33 - Respondent and had ample opportunities to challenge it and to present his own evidence. The evidence and information that he provided was properly considered and appropriately weighed. The decisions to dismiss and on appeal were fully reasoned, based upon the evidence, and written with clarity and cogency.[210]The Claimant was critical of the role of HR in the disciplinary decision-making process, alleging that it was HR, rather than Mr Davis and Mr Evans, who made the decisions. Such criticisms were misplaced. There was no evidence of HR making the decisions to dismiss the Claimant and not uphold his appeal. In contrast, there was ample evidence of Mr Davis and Mr Evans making those decisions, both at the time (being appointed by the Respondent to undertake those roles, engaging with the Claimant, conducting the disciplinary and appeal hearings and issuing the decision and appeal letters) and in these proceedings (by way of their clear, detailed and consistent written and oral evidence as to how and why they reached the decisions they did).[211]It was not in dispute that both Mr Davis and Mr Evans sought support and assistance from HR. It would have been surprising and concerning if they had not, given the size of the Respondent, the existence of its own internal HR function and the seriousness of the allegations facing the Claimant. However, seeking such advice and support was not evidence of either Mr Davis or Mr Evans relinquishing their roles as decision-makers.[212]The Claimant alleged that the decision to dismiss him was predetermined. He did so because Mr Moscrop sent him the disciplinary policy, rather than the grievance policy, when he invited him on 21 February 2023 to the grievance outcome meeting (at [573] of the Bundle). However, and as we found, that was an innocent mistake, which Mr Moscrop corrected as soon as he became aware of it (also at [573]). Again, as we have set out in detail above, the decision to investigate the Claimant arose from Mr Hafford’s earlier investigation. Mr Moscrop had no involvement in that decision or any of the disciplinary processes which followed, processes which for the reasons set out above were fair, reasonable and thorough.[213]Dismissal was clearly within the range of reasonable responses, given that the Respondent held a genuine belief on reasonable grounds that the Claimant had engaged in conduct which was tantamount to theft of client stock. That was all the more so in circumstances where the Respondent was responsible for the safe keeping of that stock on behalf of its clients, with the attendant financial and tax implications if such stock was removed from its premises without authorisation. In addition, the Claimant’s role was that of a senior manager with primary responsibility for the maintenance of the stock being held in the Respondent’s’ warehouse. Unfair dismissal: conclusion[214]For all those reasons, the decision to dismiss the Claimant was fair, both substantively, procedurally and overall. The complaint of unfair dismissal was not made out and is dismissed. - 34 - Jurisdiction: analysis[215]As noted above, this case comprised two claims, Claim 1 and Claim 2. On the basis of when ACAS Early Conciliation began and ended and when the respective claims were presented to the Tribunal, the following time limits applied: 215.1. For Claim 1, any complaint which arose before 15 November 2023 was out of time. 215.2. For Claim 2, any complaint which arose before 13 April 2024 was out of time.[216]Some of the complaints of discrimination on grounds of race were contained within Claim 1. The complaints of victimisation and unfair dismissal were brought in Claim 2, along with additional complaints of race discrimination.[217]Those factors impacted the complaints of discrimination on grounds of race raised by the Claimant and summarised in the List of Issues, as follows: 217.1. Paragraphs 2.2.1 – 2.2.6 inclusive were contained in Claim 1 and were out of time; 217.2. Paragraph 2.2.7 was in Claim 1 and was in time as, when properly considered, it was an allegation regarding the grievance process, which culminated in the grievance outcome decision of 22 February 2024; and 217.3. Paragraphs 2.2.8 – 2.2.11 inclusive were in Claim 2 and were in time.[218]Those factors also impacted the complaints of victimisation raised by the Claimant in Claim 2 and summarised in the List of Issues, as follows: 218.1. Paragraphs3.2.1 and3.2.2 were out of time; and 218.2. Paragraphs3.2.3 and3.2.4 were in time.[219]The complaint of unfair dismissal was in time.[220]In respect of those complaints which were, on their face, out of time, the Claimant said that they constituted a continuing act because they all arose from the same relationship of employment and involved the same decision maker.[221]For the reasons explained above, the Tribunal did not find that the Claimant had received minimal support from Mr Buchan (in respect of Paragraph 2.2.2 of the List of Issues), did not find that the meeting on 1 September 2023 was not properly scheduled or minuted or that Mr Buchan fabricated what was discussed (Paragraph 2.2.4 of the List of Issues), did not find that the Claimant was demoted (Paragraph 2.2.5 of the List of Issues), and did not find that the Claimant had been told by Mr Buchan during the meeting on 1 September - 35 - 2023 that he did not have the skills to be an operations manager (Paragraph 2.2.6 of the List of Issues).[222]As a result, there were significant gaps in time between those allegations which were factually made out, namely, that Ms Jones was paid a higher salary than the Claimant (paragraph 2.2.1 of the List of Issues) and not being given an office at 46A (Paragraph 2.2.3 of the List of Issues). It was also difficult to see how the decision to recruit Ms Jones at a higher salary was sufficiently linked to the decision not to provide the Claimant with a specific office for the proposed move back to 46A, such that they constituted continuing acts or acts with some degree of continuity or connection.[223]It was arguable that the complaint about not being allocated a specific an office at 46A was sufficiently linked to the Claimant’s grievance of 26 October 2023 (since the Claimant raised the matter within his grievance). However, the grievance itself pre-dated 15 November 2023 and so did not in any event serve to bring the allegation about the office in time.[224]For those reasons, the Tribunal was unable to find that the complaints which were presented out of time were part of a continuing act, the last of which was in time.[225]In the alternative, the Claimant argued that it just and equitable to extend time for those complaints presented out of time. He submitted that he had waited for the outcome of his grievance and had tried to resolve matters internally before starting litigation.[226]The Claimant’s submission in this regard was, with respect, factually inaccurate. The Claimant started ACAS Early Conciliation for Claim 1 on 14 February 2024, before he received the outcome on his grievance. It was not the case that he was awaiting the outcome of his grievance before contemplating and initiating litigation.[227]The Claimant referred to the time it took for his grievance to be concluded. However, those delays were in large part caused by him (as found above).[228]The Claimant failed to explain why he did not include the out of time complaints from Claim 2 (Paragraphs3.2.1 and3.2.2 ) in Claim 1 (when they would have been in time). By the time the Claimant presented Claim 1 to the Tribunal, he would have engaged with ACAS (via Early Conciliation) and concluded that it was appropriate for him to start legal proceedings. It was reasonable to conclude that, by the time he presented Claim 1 on 14 February 2024, the Claimant was aware (or ought reasonably to have been aware) of the time limits which apply in employment claims. The Claimant provided no good reason why he did not include his victimisation complaint as part of Claim 1 or present Claim 2 sooner than he did (so as to include the alleged detriment which arose after he had presented Claim 1) or apply to add the victimisation complaints to Claim 1 by way of amendment. - 36 -[229]All those factors weighed against the Claimant in deciding whether he presented his out of time complaints within such other period as was just and equitable.[230]At the same time, the Tribunal was mindful of the fact that by the time Claim 2 was presented, the Respondent was already facing litigation from the Claimant in the form of Claim 1, which arguably mitigated some of the prejudice they faced by the inclusion of out of time allegations within Claim 2.[231]In conclusion, and despite being aware from early on in this litigation that some of his complaints had been presented out of time, the Claimant failed to provide the Tribunal with sufficient explanation and supporting evidence to meet the burden on him to demonstrate that he presented his out of time complaints within such other period as was just and equitable. The only reason advanced by the Claimant for why his complaints were out of time was the desire to exhaust the internal grievance process first. However, as shown, that explanation did not stand up to scrutiny in resect of Claim 1, and failed to explain why the out of time complaints in Claim 2 were not included in Claim 1. Jurisdiction: conclusions[232]For those reasons, the Tribunal was unable to find that the out of time complaints contained within both Claim 1 and Claim 2 were presented within such other period as was just and equitable. We therefore did not have jurisdiction to consider and determine them.[233]Notwithstanding that and as can be seen, we determined all the complaints before us and have dismissed them (including those allegations of discrimination and victimisation which were out of time). It was important for the parties to know and understand our findings and conclusions on the complaints, including those over which, ultimately, we did not have jurisdiction. Discrimination on grounds of race in particular is a serious allegations. We did not want the Claimant believing that those complaints had failed on a technicality (that of being presented out of time). We did not want those accused of race discrimination to be left with any residual sense that they had not been fully exonerated of the allegations against them.[234]For those reasons in particular, we considered all the complaints pursued and, as explained above, dismissed them. Approved by: Employment Judge S Povey Dated: 4 March 2026 - 37 - APPENDIX 1 Reasons for refusing the Claimant’s application for specific disclosure (given orally to the parties on 8 December 2025).
Findings of fact
[1]The decision to refuse the Claimant’s application for specific disclosure is unanimous and has been contributed to by all members of the Tribunal.[2]The Claimant made requests for further specific disclosure from the Respondent, which the Respondent objected to and refused. On 2 August 2025, the Claimant applied to the Tribunal for order for specific disclosure (at [1252] of the Bundle), to which the Respondent responded (at [1256]). The Claimant replied to that response on 29 September 2025 (at [1310]).[3]Unfortunately, the Claimant’s application was not decided ahead of the start of the final hearing today. The Claimant confirmed that he is maintaining his application and it was agreed that we would determine it at the outset of the hearing.[4]The Claimant applies for specific disclosure of documents under six discrete headings. In reaching our decisions, we had regard to the Claimant’s bases for those requests and the Respondents’ responses. We have ignored that this application is being determined on the first day of the final hearing, since it was properly made well in advance of the final hearing and should have been determined much earlier. It would be unfair to hold the timing of the determination of the application against the Claimant and we have not done so.[5]We summarise the applications, the Respondents’ objections and our conclusions in respect of the six discrete headings, as follows: JDA Inventory Transactions (Aug – Sep 2023)[6]The Claimant’s request arose from a comparison he undertook between two spreadsheets. He says that his analysis was suggestive of evidence tampering and wants disclosure of the raw data/spreadsheet from which the disclosed spreadsheet came from. He says that columns and rows are missing from the disclosed spreadsheet.[7]The Respondent says that it has nothing further in its possession to disclose regarding the spreadsheet in question. The Claimant does not accept that and seeks an order either that the full data records are disclosed or a statement is ordered explaining why what he terms “standard fields “are missing.[8]The application is refused. A party cannot disclose something it does not have and cannot be ordered to disclosed something it says it does not have. Parties are expected and presumed to abide by their respective duties of disclosure. To deliberately not do so is very serious. It is a contempt of court. As such, it would require very compelling and cogent evidence for the Tribunal to conclude that one party is acting in such a way. There is no evidence of that. Rather, there is the Claimant’s contention that he would expect further data to - 38 - be included. That such data is not included does not, without an awful lot more, mean that evidence has been doctored, tampered with or withheld.[9]There is no reason to doubt the Respondent’s assertion that it has disclosed everything in its possession and thereby complied with its duty of disclosure. It is not appropriate to order the Respondent to disclose documents it doesn’t have and there is insufficient evidence to question the Respondent’s commitment to its binding and continuing duty of disclosure or to put them to the cost of providing witness testimony that they are complying with that duty. Ashai FTA’s spreadsheet 2022 – 2023[10]This request was similar to the JDA request, above. The Claimant again alleged that his comparative analysis was suggestive of evidence tampering.[11]The Respondent says that it has nothing further in its possession to disclose regarding the spreadsheet in question. The Claimant does not accept that and seeks an order for what he terms “the complete version” to be disclosed. In the alternative, he invites the Tribunal to draw an adverse inference against the Respondent.[12]The application is refused, for the same reasons as above. A party cannot disclose what it does not have and cannot be ordered to disclose what it does not have. The Respondent has stated, mindful of it’s binding and continuing duty of disclosure (and under legal advice), that it has disclosed everything pertaining to the spreadsheet in question.[13]There is no good reason at this stage not to accept that statement from the Respondent. If the Claimant succeeds is showing that the evidence proves otherwise, then he can invite the Tribunal to draw an adverse inference. James Brophy email[14]An email between James Brophy and Vanessa Howarth of 28 June 2024 contains redactions (at [822] of the Bundle). The Claimant seeks disclosure of the redacted parts of that document. The Respondent objects on the basis that it contains legal advice and is therefore privileged. The Claimant does not appear to accept that and questioned whether the Respondent’s reliance on legal professional privilege is genuine.[15]The application is refused. There is no basis to question the Respondent’s statement that it has redacted part of the document as it contains legal advice. It is entitled to redact such advice and information, and the Claimant needs to show a lot more than mere suspicion before suggesting that, in effect, the Respondent (and by extension its solicitors and its counsel) are engaged in hiding disclosable information and then compounding matters by falsely claiming reliance on legal advice privilege. - 39 - Documents regarding Grant Bennett, specifically his contractual notice period, his resignation and any other docs relevant to his departure from the business[16]The Claimant says that these are relevant to his claim because Mr Bennett is a comparator and they will shed light on the differential treatment between him and Mr Bennett, in respect of the unfair dismissal, race discrimination and victimisation complaints. He also says that it is relevant to the issue of time limits, as he asserts that such evidence will go to his argument of a continuing act of discriminatory treatment.[17]The Respondent says that these documents are not relevant given the issues to which Mr Bennett is relied upon by the Claimant as a comparator in the agreed List of Issues, namely instigating a disciplinary investigation against the Claimant, adding a further disciplinary allegation to the case against the Claimant, and dismissing the Claimant.[18]On the basis of the agreed List of Issues (to which the parties re-confirmed their agreement at the start of today’s hearing), the application is refused on grounds of relevance and proportionality. The Respondent is correct that Mr Bennet’s contract and his contractual notice period are irrelevant to the issues of whether the decision to instigate a disciplinary investigation, add disciplinary charges and dismiss the Claimant were acts of race discrimination. The same can be arguably said of documents pertaining to Mr Bennett’s resignation and departure from the business. In the alternative, the Tribunal’s focus will be on the mindset of those who made the decisions which the Claimant says were motivated by his race. Those decision makers are giving evidence and can be questioned by the Claimant as to what factors they had regard to, and how and why the Respondent treated Mr Bennett differently from the Claimant, as alleged by the Claimant.[19]We also note that according to the agreed chronology, Mr Bennett resigned within weeks of being suspend in December 2023, before the Claimant was investigated or disciplined. His relevance as an appropriate comparator is arguably limited and it is not proportionate to order disclosure of further documents pertaining to him. Invoices for CHEP pallets sold to Vestel (Nov – Dec 2021)[20]The Claimant says these documents are relevant to his grievance and associated disclosed documents. The Respondent disputes their relevance but disclosed in any event a Vestel Pallet log (at [952] – [965] of the Bundle). The Claimant says that they are relevant for the period he seeks because they go to comparative treatment (as he asserts that whilst he was dismissed for breaching the Respondent’s directives, the Respondent tolerated breaches and misconduct involving CHEP pallets). The Claimant also claims that these invoices would show that white colleagues involved in CHEP pallet misconduct were not investigated or disciplined.[21]The application is refused on grounds of relevance and proportionality. With respect to the Claimant, this request is somewhat speculative and therefore cannot be justified on grounds of either relevance or proportionality. In any - 40 - event, and as alluded to, those who actually made the decisions that led to the Claimant’s dismissal are giving evidence and their motivations can be challenged directly by the Claimant, including the assertion that they tolerated CHEP pallet misconduct from white colleagues. Historical race discrimination complaints (Omali 2020)[22]The Claimant sought disclosure of historic grievances, complaints or Tribunal claims against the Respondent on grounds of racial discrimination. This was refused by the Respondent on grounds of relevance, although it appears that the Respondent subsequently disclosed their records back to 2022. The Claimants seeks disclosure of a further case which he claims arose in 2020 (in respect of Mr Omali).[23]The Claimant says that how the Respondent handled previous race discrimination complaints is relevant to whether there was a pattern or culture of discrimination within the Respondent.[24]The application is refused. As a general principle, claims are determined by the evidence which is directly attributable to the allegations being made. Whilst evidence of cultural or systemic discrimination may be relevant, what is being sought occurred some time before the allegations made by the Claimant, does not without more suggest that the same people were involved (indeed, the Claimant himself accepts that there was a different employment relationship, as Mr Omali was engaged by an agency) and it would not usually be appropriate to order disclosure of third party records in a public hearing without efforts being made to secure that third parties consent. In other words, we don’t know if Mr Omali is happy for his details and his case to be aired in a public hearing, to which he is not party. One assumes that Mr Omali’s consent will be required for data protection purposes and there is no suggestion that that has been sought by the Claimant (which will lead to delay and, if Mr Omali refuses, perhaps further delay).[25]In addition, it appears that some evidence of previous complaints has been disclosed (from 2022 onwards), which the parties can rely upon as they see fit.[26]In any event, and far more relevant, is the mindset and behaviours of those who actually made the decisions in the Claimant’s case. As we say, they are all giving evidence and can questioned about their motivations and reasoning. - 41 -