Mr B Carver v London Borough of Newham and Mr J Austin: 3220481/2020
EMPLOYMENT TRIBUNALS
Case No 3220481/2020
Between
Mr B CarverClaimant1. London Borough Of Newham 2. Mr Jerry AustinRespondentDate 13 April 2026
JUDGMENT
The claim is struck out.
REASONS
[1]By a letter dated 18 November 2022 the Tribunal gave the claimant an opportunity to make representations or to request a hearing, as to why the claim should not be struck out because• the claimant had not complied with the Order of the Tribunal sent to the parties on 13 July 2022.• it has not been actively pursued.• it is no longer possible to have a fair hearing of the claim because the claimant has failed to comply with case management orders. The Claimant has also failed to respond to the respondent’s application to strike out his claim• The Claimant has failed to pursue his case.[2]The claimant has failed to make representations in writing, or has failed to make any sufficient representations, why this should not be done or to request a hearing. The claim is therefore struck out.[3]The hearing fixed for 11-14 July 2023 will not take place.[1]The complaint of discriminatory constructive unfair dismissal is wellfounded and the claimant succeeds in this claim.[2]The claimant’s claims for unlawful deduction from wages, namely failure to pay for additional work undertaken to the value of £4,000 to £5,000 and July 2020 failure to pay wages of £380.26 are dismissed upon withdrawal.[3]The claimant’s claim for holiday pay is dismissed upon withdrawal.[4]The complaint of wrongful dismissal. breach of contract, namely failure to pay notice pay, is dismissed upon withdrawal.[5]The complaint of direct race discrimination is not well-founded and is dismissed.[6]The complaint of harassment related to race is not well-founded and is dismissed.[7]The complaint of victimisation is not well-founded and is dismissed.[8]The compliant of unlawful deduction from wages, namely van maintenance deductions, is not well-founded and is dismissed.
Introduction
[1]The Claimant was employed by the first respondent as a plasterer. He commenced employment with the first respondent as a plasterer in 1999 in the first respondent’s Repairs & Maintenance Service (‘RMS’). He describes himself as Black/British. He alleges that the following staff in the RMS treated him in a discriminatory manner: Mick Veazey, Head of Responsive Repairs and David Frost, Senior Repairs Manager. The claimant asserts that the second respondent, Jerry Austin, the Director of Operations for RMS, allowed this discriminatory treatment in the repairs department.[2]The claimant brings claims of constructive unfair dismissal, direct discrimination, harassment and victimisation. He contacted ACAS on 9 October 2020, early conciliation concluded on 9 November 2020 and he submitted his ET1 on 8 December 2020. In summary, the claimant alleges a pattern of events that he considers were discriminatory starting in August 2018 and ending in disciplinary proceedings and an alleged failure to respond appropriately to his grievance in 2020. The claimant resigned on 23 July 2020. Case management and the Hearing[3]At a public preliminary hearing on 26 March 2025, EJ Shore decided to strike out both respondent’s responses as they were not actively pursuing their responses and they had conducted the case unreasonably. The Case Management Order records the following steps taken ‘The Tribunal Clerk on the day rang the named solicitor with conduct of the case and was told that he had left the respondents’ representatives. The Clerk tried two other numbers of solicitors at the respondents’ representatives without success. There is no record on the Tribunal file of anyone from the respondents’ solicitors corresponding with or telephoning the Tribunal since 2022 (although I only had access to the digital file).’.[4]This followed a failure of the respondent to attend three preliminary hearings having submitted a response and engaged with the claimant about the list of issues, including requesting further particulars of the claimants claim prior to these hearings. The Tribunal staff had made significant efforts to contact both respondents’ representatives at that hearing, without success.[5]EJ Shore’s case management order had been sent to Onesoure Legal Services, the respondent’s legal representatives for this matter on 9 April 2025.[6]I satisfied myself that notice had been given to the Respondent’s representatives of this hearing to the only contact details the Tribunal have on file.[7]Neither Respondent attended the hearing. I decided that Rule 47 of the Employment Tribunal Rules had been met given the Respondents failure to engage in three earlier hearings or contact the Tribunal at all since the Case Management Order dated 26 March 2025 had been provided to the respondents, as well as the notice of the hearing. The respondents were well aware of the claims, having submitted a response and engaged in a draft list of issues. The Tribunal staff had made numerous attempts to contact the respondent at the preliminary hearing on 26 March 2025. I decided that further enquiries to engage the Respondent were not practicable and to proceed with the hearing in the absence of the Respondent. To put it simply, the respondents had completely failed to engage with this claim over many years and so it was not in line with the overriding objective to use tribunal resources to try to enable the parties attendance again.[8]After discussing the claimant’s claims in more detail, he withdraw his claim under the Working Time Regulations 1998 for holiday pay, for breach of contract in failing to pay notice pay and for unlawful deduction from wages apart from one claim of failure to pay the claimant his van maintenance allowance of £263.86. These claims were dismissed upon withdrawal.[9]Instead of one pdf bundle of documents, I had a series of bundles before me. The bundles had a mixture of handwritten pagination (1 – 104, 240 – 279) and typed pagination (1-142). Mr Swanson apologised for the inadequacy of the bundles.[10]I have spent time reading the following documents in particular and have reviewed the bundle as a whole: claimant’s grounds of claim, claimants further and better particulars, list of issues, claimant’s witness statement, witness statement of Ms McEwen, grievance letter, disciplinary investigation report, outcome of disciplinary hearing, outcome of appeal, resignation letter, various emails in the documents.[11]I heard evidence from the claimant and asked questions where necessary for clarification. The claimant’s partner, Ms McEwen, was sworn in and so her witness statement is accepted as evidence but neither the Claimant’s representative or I had any questions for her.
The issues
[12]The list of issues sets out a number of factual allegations, with each factual allegation forming the basis of one or more of the claimant’s claims, as follows:12.1 After the claimant requested work tools needed by him to carry out his work in 2018, the respondent delayed providing him with those tools until October 2018. (Comparators: Mr Billy Morgan and Mr Stephen West, contractors.) – incident ‘a’12.2 In August 2018 the respondent’s employee manager replied to a question from the claimant, suggesting that the reason he had not received the work tools he had requested was because of the colour of the claimant’s skin – ‘incident ‘b’12.3 Provide the claimant with a replacement mobile telephone in 2018 which did not retain the telephone numbers he had stored (and which the claimant will say were required for him to carry out his work efficiently). (Comparators: Mr Chris Sussex, contractors.) – incident ‘c’12.4 Fail to pay for some work – incident ‘d’12.5 Delay dealing with the disciplinary investigation (from March 2019 until March 2020 – incident ‘e’12.6 Commence a disciplinary investigation and bring disciplinary charges against the claimant – incident ‘f’12.7 Suspended the claimant from work on 8 March 2019 – incident ‘g’12.8 Give the claimant a letter on 2 April 2019 informing him that he had been suspended (the claimant will say he had already been suspended) – incident ‘h’12.9 Have his work van taken away by colleagues – incident ‘i’12.10 Breached the claimant’s confidentiality concerning the dismissal. (The claimant alleges that he was told by a colleague that he had been dismissed for stealing from a client on 12 March 2019.) – incident ‘j’12.11 Impose a disciplinary sanction of a final written warning against the claimant. (The claimant will say the disciplinary penalty imposed of one/two years final written warning was too harsh given his previous good work record.) – incident ‘k’12.12 Delay dealing with the claimant’s grievance, lodged on 10 February 2020. (The claimant complains that he was not informed of the outcome of the grievance within a reasonable time in that the hearing was held in May 2020 and the outcome was received on 3 September 2020) – incident ‘l’12.13 Assign Mr Austin to conduct the grievance procedure. (The claimant will say that to afford him a fair hearing of his grievance the respondents should have allocated a different manager to consider it because Mr Austin conducted the disciplinary procedure). (Comparator: Hypothetical)- incident ‘m’12.14 Not uphold his grievance – incident ‘n’ Factual findings[13]I will deal with each of the above issues in turn, grouping them together where appropriate. Work tools issue – incidents a. and b.[14]In August 2018, the Claimant asked for particular tools that he needed for his work. The Claimant’s evidence was that he had always been supplied with these tools in the past. He was told by his manager, Mr Rafiq, to submit his request in writing, which he had to do three times. The Claimant stated that two white colleagues, Mr Morgan and Mr West, were provided with tools on oral request without being made to submit a written request, one by Mr Veazey and one by David Frost.[15]The claimant suggested that there was an issue with his request and suggested that ‘maybe it’s because of the colour of my skin’. Mr Veazey replied ‘yes it might be’ and walked away. Ms McEwen, the claimant’s partner, gave evidence that she was on the phone to the claimant and overheard this comment. She was very upset about the comment and urged the claimant to report it to his union, which he did.[16]In the response to the claimant’s grievance dated 28 August 2020, the second respondent writes that he spoke to Mr Veazey and Mr Veazey denied making that comment. I also note that in the response to the claimant’s grievance dated 28 August 2020 there is reference to a new process that may have caused delays.[17]I find that Mr Veazey did make this comment. The claimant gave clear evidence on this point, Ms McEwen has corroborated his evidence and explained why this comment stuck in her memory. Both the claimant and Ms McEwen gave this evidence in signed witness statements and sworn evidence to the Tribunal. There is no signed witness evidence from the respondent contradicting that and the hearsay contained within the grievance letter is insufficient to undermine that evidence.[18]The Claimant gave evidence that the comment at the time did not bother him because he had experienced such comments growing up in East London. He was giving evidence that he was resigned to being the recipient of such comments, having faced racism growing up. He was more concerned about accessing the tools for his job.[19]I asked the claimant why he hadn’t brought a claim for discrimination earlier. He responded that he didn’t want to make a fuss about it, his concern was about accessing tools in order to do his job.[20]I accept the claimant’s uncontradicted account of events in relation to these incidents. The mobile phone incident – incident ‘c’[21]In October 2018, the Claimant had lost his work mobile phone. The Claimant was not provided with a replacement until two weeks later. This came with a new mobile phone number. He wanted to keep his old mobile phone as it was important to maintain contact with clients. The claimant gave evidence that white colleagues, namely Mr Sussex and contractors, got to keep their mobile phone numbers when they had their mobile phones replaced at approximately the same time.[22]The claimant gave evidence that he had repeatedly asked for his old number but was given numerous excuses as to why that was not possible. This was by the IT department although the claimant stated that he had discussed it with Mr Rafiq, who raised this with David Frost, Mick Veazey and the second Respondent.[23]Furthermore, the phone did not have the application whereby people were allocated work and the claimant could not receive emails or daily job tickets to this phone. Instead, he had to go into the department to pick up paper tickets.[24]In his grievance letter dated 10 February 2020, the claimant complains that this left him feeling further isolated at work and he felt the action was taken deliberately to impact on his work connections.[25]I accept the claimant’s uncontradicted account of this incident. The response to the grievance letter dated 28 August 2020 gives a possible reason for the different outcomes but this is insufficient to contradict his evidence. The overtime issue – incident d[26]The claimant further complains that over December 2018 and January 2019 he completed a significant amount of jobs which he should have been paid overtime for but he was never paid for it. The claimant stated that he spoke to a manager called ‘Neville’ and Mr Dobbs. The claimant did not give evidence on who was responsible for failing to pay overtime or provide any evidence to establish that he had worked overtime and submitted claims for.[27]I do not have sufficient evidence to find that the claimant was entitled to overtime that was not paid. The claimant’s evidence was broad with insufficient detail about the hours worked, normal process for claiming overtime or relevant policies and procedures, which were not included in the bundle. The claimant needs to establish this on a balance of probabilities and has not provided sufficiently detailed evidence for me to reach any positive conclusions. However, I do accept that there was an unresolved issue with payments whereby the claimant felt he had not been paid what he should have been. The disciplinary issue – incidents e, f, g, h, i, j, k[28]On 8 March 2019, the claimant was informed by an employee of the first respondent that he was suspended with immediate effect.[29]On 12 March 2019, the claimant bumped into a work colleague near his home who informed him he had been sacked following an allegation that he had stolen money from an elderly tenant’s property. This person told the claimant that ‘everyone’ knew about the allegation.[30]On 22 March 2019, the first respondent arranged for the work van the claimant had been using to be collected.[31]On 29 March 2019, the first respondent called the claimant and asked him to attend a meeting on 2 April 2019. At that meeting, the first respondent handed the claimant a letter stating he was suspended with immediate effect.[32]The claimant did not receive any further communication from the first respondent until 11 October 2019 when Mr Frost apologised for the delay and informed the claimant the investigation was still ongoing. He provided details of the support available for the claimant.[33]The claimant was then sent a letter dated 16 January 2020 inviting him to a disciplinary investigation meeting which was held on 27 January 2020. In this letter, the claimant was advised that the following allegations had been made against him: a) That he had accepted money from a customer during working hours under false pretenses; b) He had undertaken private works during council hours and used a council vehicle to do so; c) He purchased items from Travis Perkins using his council trade card for noncouncil related works.[34]On 27 January 2020, the claimant was interviewed and on 18 May 2020, the disciplinary hearing took place. On 21 May 2020 the claimant was sent a letter detailing the outcome of the disciplinary hearing. The letter states that in relation to the allegation that the claimant undertook private works during council working hours and used council vehicle to do so, the allegation was partially upheld in that it was found he had recommended his son and one other to undertake private works and supported them in doing so, including using the first respondent’s vehicle. In relation to the allegation that he had accepted money from a resident under false pretences, this was partially upheld on the basis that the claimant had done this, had not delivered the radiators but it was accepted that, when accepting the money he had intended to deliver the radiators. The other allegations were not upheld. The claimant received a 24 month final written warning.[35]The claimant appealed this decision on 9 June 2020. The second respondent dealt with the appeal and on 9 July 2020 partially upheld the appeal, reducing the final written warning to 12 months, due to length of time the process had taken and length of suspension without adequate contact with colleagues.[36]I accept the claimant’s uncontradicted account of these events. Claimant’s grievance – incident l[37]In a grievance letter dated 10 February 2020 b, the claimant raises a grievance against the Repairs Department and Mr Veazey and Mr Frost in particular. He raised the following incidents: a, b, c, d and j.[38]The respondent held a telephone grievance with the claimant on 21 May 2020 and the second respondent sent the outcome to the claimant on 28 August 2020. It refers to an independent investigation by a third person although the second respondent is the decision maker.[39]The bundle discloses email communications which evidence that the matter had attempted to be resolved informally earlier but as it was not to the claimant’s satisfaction, it continued to a formal grievance process. I do not find there was significant delay in resolving the claimant’s grievance, particularly due to the timing of this which was over the first covid lockdown.[40]The claimant did not provide me with any evidence about the date in which Mr Austin was assigned to conduct the grievance procedure. However, he submitted his grievance on 10 February 2020 and the outcome from the second respondent was dated 28 August 2020. The claimant has not pointed to evidence before his resignation on 23 July 2020 that the second respondent had been assigned to deal with his grievance before that date, or that he was aware of that. Claimant’s resignation – incident m[41]The claimant resigned on 23 July 2020. In the claimant’s resignation letter he states that he was resigning due to ongoing unlawful, less favourable, discriminatory, disciplinary, bullying, harassment and victimisation treatment to which he had been subjected. He complained this included being suspended, unreasonable delay, an unjust and oppressive sanction, an inadequate appeal outcome to reduce it to one year in relation to the disciplinary matter and a failure to deal with his grievance raised on 10 February 2020. He concluded that this demonstrated the first respondent no longer wanted to employee him, was a fundamental breach of the implied term of trust and confidence and a repudiation of their contract of employment. At paragraph 69 of his statement he states that the first respondent wanted him gone and in the process of trying to get him out they vilified him as a thief. He states that he rarely goes out due to living in the area he works and being anxious about meeting people he worked alongside and tenants, concerned they will look at him like he was a thief. He finds being accused of theft very damaging.[42]In evidence, the claimant stated ‘How can I go to work somewhere where I’ve worked for 20 years … after people are accusing me, thinking, saying that I stole when I’ve never stolen in my life I’ve worked all of my life, why do that to me why not do it to someone else?’. He decided he couldn’t face people thinking he was a thief and that is why he resigned. He couldn’t see himself getting better or any other way of returning to work. On re-examination by his representative, the claimant said over time he realised his treatment was because of his race but he confirmed that is not why he resigned, he resigned because he can’t face it. However, on re-reading his resignation letter he confirmed that the letter was the accurate reflection of how he felt at the time of his resignation.[43]I find that the principal reason for resigning was the fact that the claimant could not face returning to work when he had been accused of theft. He wanted the first and second respondent to ignore his admissions, make a positive conclusion he was not a thief and impose no sanction. The claimant wanted a clear record before he felt he could return to work. However, as the resignation letter is a contemporaneous record of the claimant’s reasons at the time of his resignation, five years prior to giving evidence, I accept that the letter is an accurate record of the other reasons for his resignation at the time. The law Constructive unfair dismissal, including discriminatory constructive unfair dismissal
The law
[44]Section 39 of the Equality Act 2010 details when discrimination in employment is unlawful. Subsection (2) ( c) sets out that an employer must not discriminate against an employee by dismissing the employee. Subsection (7)(b) sets out that dismissing an employee for the purpose of this section also includes ‘an act of B's (including giving notice) in circumstances such that B is entitled, because of A's conduct, to terminate the employment without notice’, B being the employee and A the employer.[45]Section 94 of the Employment Rights Act 1996 (‘ERA 1996’) sets out the right for an employee not to be unfairly dismissed by their employer. Section 95 of the ERA 1996 defines dismissal for this purpose and subsection 95(1)(c) it includes ‘‘the employee terminates the contract under which she is employed (with or without notice) in circumstances in which she is entitled to terminate it without notice by reason of the employer’s conduct’.[46]The Court of Appeal in Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978 per Underhill LJ at paragraph 55, set out the proper approach, as distilled from relevant case law, as follows: ‘it is sufficient for a tribunal to ask itself the following questions:(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?(2) Has he or she affirmed the contract since that act?(3) If not, was that act (or omission) by itself a repudiatory breach of contract?(4) If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? (If it was, there is no need for any separate consideration of a possible previous affirmation, for the reason given at the end of para. 45 above.)(5) Did the employee resign in response (or partly in response) to that breach?[47]In Mahmood v BCCI 1997 ICR 607 it was confirmed that every contract of employment contains an implied term that the employer shall not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee.[48]Morrow v Safeway Stores Ltd 2002 IRLR 9 confirmed that the breach of the implied term could be sufficiently important to entitle the employee to treat himself as dismissed.[49]Where the breach alleged arises from a number of incidents culminating in a final event, the tribunal must look at the entire conduct of the employer and the final act relied on need not itself be repudiatory or it even unreasonable, but must contribute something even if relatively insignificant to the breach of contract see Lewis and Motor World Garages Ltd 1985 IRLR 465 and Omilaju v Waltham Forest London Borough Council 2005 IRLR 35. In Omilaju it was said: ‘19. … The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase 'an act in a series' in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant.20. I see no need to characterise the final straw as 'unreasonable' or 'blameworthy' conduct. It may be true that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality to which I have referred.21. If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect. Suppose that an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment. Instead, he soldiers on and affirms the contract. He cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle.’[50]The assessment of the gravity of the conduct is an objective one. It does not depend on the subjective reaction of a particular employee or the opinion of the employer, see Omilaju v Waltham Forest London Borough Council [2004] EWCA Civ 1493 and Bournemouth University Higher Education Corpn v Buckland [2011] QB 323.[51]Caselaw has established the following principles in addition to the above.[52]There is no general implied contractual term that an employer will not breach some other statutory right such as the right not to suffer discrimination Doherty v British Midland Airways [2006] IRLR 90, EAT. However, the same facts that might support a finding of unlawful discrimination or any disregard of such a statutory right may, depending on the facts, suffice to establish a breach of the implied term of mutual trust and confidence see Green v Barnsley MBC [2006] IRLR 98 and Amnesty International v Ahmed [2009] IRLR 884.[53]Once there is a breach of contract that breach cannot be cured by subsequent conduct by the employer but an employee who delays after a breach of contract may, depending on the facts, affirm the contract and lose the right to treat him/herself as dismissed - Bournemouth University Higher Education Corpn v Buckland [2010] EWCA Civ 121.[54]In Ms Sandra Brooks Appellant v Brooks v Leisure Employment Services Ltd [2023] EAT 137 the EAT held that the use of a contractual grievance procedure would not normally be taken as evidence that the employee had unequivocally decided to affirm the contract.[55]In Williams v Governing Body of Alderman Davies Church in Wales Primary School [2020] IRLR 589, the EAT held, at [89], that a constructive dismissal can itself be discriminatory if discriminatory conduct materially influenced the conduct that amounted to repudiatory breach.[56]In De Lacey v Wechseln Ltd t/a The Andrew Hill Salon [2021] IRLR 547 the EAT held that a constructive dismissal can be discriminatory even if the last straw was not itself discriminatory and even if the matters which significantly influenced the resignation such as to make the dismissal discriminatory were themselves outside the primary time limit. Equality Act 2010 - burden and standard of proof[57]The burden of proof in respect of all claims brought under the Equality Act 2010 (‘EA 2010’) is set out in section 136, as follows: 136 Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.[58]As in all employment tribunal claims, the overarching standard of proof is the balance of probabilities, namely is it more likely than not that an event happened.[59]Where a claimant establishes facts from which discrimination could be inferred (a prima facie case), then the burden of proving that the treatment was not unlawful passes to the respondent. In Base Childrenswear Limited v Otshudi [2019] EWCA Civ 1648 Lord Justice Underhill reviewed the case law and said: 18. It is unnecessary that I reproduce here the entirety of the guidance given by Mummery LJ in Madarassy. He explained the two stages of the process required by the statute as follows:(1) At the first stage the claimant must prove “a prima facie case”. That does not, as he says at para. 56 of his judgment (p. 878H), mean simply proving “facts from which the tribunal could conclude that the respondent ‘could have’ committed an unlawful act of discrimination”. As he continued (pp. 878-9): “56. … The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. 57. ‘Could conclude’ in section 63A(2) [of the Sex Discrimination Act 1975] must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it. …”(2) If the claimant proves a prima facie case the burden shifts to the respondent to prove that he has not committed an act of unlawful discrimination – para. 58 (p. 879D). As Mummery LJ continues: “He may p rove this by an adequate non-discriminatory explanation of the treatment of the complainant. If he does not, the tribunal must uphold the discrimination claim.” He goes on to explain that it is legitimate to take into account at the first stage all evidence which is potentially relevant to the complaint of discrimination, save only the absence of an adequate explanation.[60]In this case, it is worth setting out in detail the relevant case law relating to inferences in discrimination cases so that the claimant can understand when a tribunal can appropriately draw an inference.[61]Inferences can only be drawn from established facts. They cannot be based on speculation, a gut reaction or ‘mere intuitive hunch’ see Chapman v Simon [1994] IRLR 124 see per Balcombe LJ at para. 33 or from ‘thin air’ see Chief Constable of the Royal Ulster Constabulary [2003] ICR 337.[62]Inferences of discrimination cannot be drawn simply from the fact that the Claimant establishes a difference in status and a difference treatment see Madarassy v Nomura International plc [2007] ICR 867 ‘without more’, the something more “need not be a great deal. In some instances it will be furnished by non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred” see Deman v Commission for Equality and Human Rights [2010] EWCA Civ 1279 per Sedley LJ at para 19.[63]Where there are a number of allegations each single allegation of discrimination should not be viewed in isolation, but the history of dealings between the parties should be taken into account in order to determine whether it is appropriate to draw an inference of racial motive in respect of each allegation Anya v University of Oxford and Qureshi v Victoria University of Manchester and Another [2001] ICR 863, EAT. Direct race discrimination[64]Protection from direct discrimination is set out in section 13 of EA 2010, which states: “(1) A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.’[65]Section 39 details the acts and omissions that are unlawful in employment, the relevant parts are as follows: 39 Employees and applicants (1)…. (2) An employer(a) (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment;(b) in the way A affords B access or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;(c) by dismissing B;(d) by subjecting B to any other detriment. … (7) In subsections (2)(c) and (4)(c), the reference to dismissing B includes a reference to the termination of B's employment— (b) by an act of B's (including giving notice) in circumstances such that B is entitled, because of A's conduct, to terminate the employment without notice.[66]The threshold for what counts as a detriment in subsection 39(2)(d) is low. In Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 ICR 337, HL held that a “detriment” existed if a reasonable worker would or might take the view that the treatment accorded to her had in all the circumstances been to her detriment; that it was not necessary to demonstrate some physical or economic consequence. De Souza v Automobile Association 1986 ICR 514, CA set out that a reasonable employee should be considered ‘from the point of view of the victim. If the victim’s opinion that the treatment was to his or her detriment is a reasonable one to hold, that ought, in my opinion, to suffice.’[67]Amnesty International v Ahmed [2009] IRLR 884 considered the different ways in which treatment might be because of a protected characteristic. The first category is where the act in itself is inherently discriminatory. The second category is where the act is not in itself discriminatory ‘…but is rendered so by a discriminatory motivation, ie by the “mental processes” (whether conscious or unconscious) which led the putative discriminator to do the act. Establishing what those processes were is not always an easy inquiry, but tribunals are trusted to be able to draw appropriate inferences from the conduct of the putative discriminator and the surrounding circumstances (with the assistance where necessary of the burden of proof provisions) …'[68]In the second category, to show less favourable treatment, it is necessary to show that the claimant has been treated less favourably than a comparator, not sharing their protected characteristic, was or would have been treated.[69]Section 23 EA 2010 provides that any comparator must be in the same, or not materially different, circumstances. What is meant by ‘circumstances’ for the purpose of identifying a comparator, is those matters, other than the protected characteristic of the claimant, which the employer took into account when deciding on the act or omission complained of see - MacDonald v Advocate- General for Scotland; Pearce v Governing Body of Mayfield Secondary School [2003] IRLR 512, HL. Where no actual comparator can be identified the tribunal must consider the treatment of a hypothetical comparator in the same circumstances.[70]The Employment Statutory Code of Practice provides guidance on an appropriate comparator. The key principles are as follows:70.1 A comparator must have no material difference in the circumstances which are relevant to the treatment of the worker;70.2 If an actual comparator cannot be identified, a hypothetical comparator must be identified;70.3 Constructing a hypothetical comparator may involve considering elements of the treatment of several people whose circumstances are similar to the claimant, but not the same;70.4 In many cases it may be more straightforward for the Tribunal to establish the reason for the claimant’s treatment first. If it is found to be because of a protected characteristic, then a comparison with the treatment of a hypothetical comparator can be made;70.5 A simple way is to ask ‘But for the relevant protected characteristic, would the claimant have been treated in that way?’[71]Fundamentally, when deciding whether the treatment was ‘because of’ the protected characteristic, I need to ask what the reason was for the treatment. If the protected characteristic had a significant influence on the outcome then discrimination will be made out see - Nagarajan v London Regional Transport [1999] UKHL 36; [1999] IRLR 572. Harassment[72]Sections 26 and 40 EA 2010 sets out the legal test for a claim of harassment, as follows: 26 Harassment (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected cha racteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are— age; disability; gender reassignment; race; religion or belief; sex; s exual orientation.[73]Section 40 of the Equality Act 2010 makes it unlawful for an employer to harass a person who is an employee.[74]The need for a tribunal to take a rigorous approach to the question of whether conduct related to a protected characteristic was emphasised in Tees, Esk and Wear Valleys NHS Foundation Trust v Aslam [2020] IRLR 495, EAT where the EAT said: ‘The broad nature of the 'related to' concept means that a finding about what is called the motivation of the individual concerned is not the necessary or only possible route to the conclusion that an individual's conduct was related to the characteristic in question. Nevertheless, there must be still, in any given case, be some feature or features of the factual matrix identified by the tribunal which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim. In every case where it finds that this component of the definition is satisfied, the tribunal therefore needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found, have led it to the conclusion that the conduct is related to the characteristic, as alleged. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the tribunal may consider it to be.’[75]Pemberton v Inwood [2018] IRLR 542 considered the effect of the subjective and objective nature of the test in subsection 26(4), as follows: ‘In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section (4)(c)) whether it was reasonable for the conduct to be regarded as3 having that effect (the objective question). It must also, of course, take into account all the other circumstances – subsection (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so.’[76]In Richmond Pharmacology v Dhaliwal [2009] IRLR 336, which dealt with the legislation in place prior to the Equality Act 2010 there is a reminder of the need to take a realistic view of conduct said to be harassment. At paragraph 22 Underhill P (as he was) said: ‘Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase. Victimisation[77]Section 27 EA states 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. …[78]The test of causation in a victimisation complaint is a subjective test, not a ‘but for’ test. It is whether the relevant decision was materially influenced by doing one of the protected acts set out in section 27(2) EA. West Yorkshire Police v Khan [2001] IRLR 830 sets out that the focus is on the ‘reason why’ the alleged discriminator acted as he did.[79]The Court of Appeal emphasised the importance of focusing on motivation, rather than ‘but for’ causation in Dunn v Secretary of State for Justice [2019] IRLR 298 at [44], per Underhill LJ: ‘In the context of direct discrimination, if a Claimant cannot show a discriminatory motivation on the part of a relevant decision-maker he or she can only satisfy the 'because of' requirement if the treatment in question is inherently discriminatory, typically as the result of the application of a criterion which necessarily treats (say) men and women differently. […] There is an analogy with the not uncommon case where an employee who raises a grievance about (say) sex discrimination which is then, for reasons unrelated to his or her gender, mishandled: the mishandling is not discriminatory simply because the grievance concerned discrimination.’
Conclusions
[80]I will deal with the claims brought on a claim-by-claim basis, starting with the claims brought under the Equality Act 2010 before considering the claim for constructive dismissal last. I will draw on my findings of fact detailed above. I recognise the risk of considering the claims in isolation and remind myself of the need to look at the entirety of the evidence when dealing with each event and each claim. I remind myself that something in isolation can appear trivial or unimportant but takes on a different, more significant meaning, when considered as part of the whole picture.[81]There will be some overlap as some factual allegations are brought under more than one claim. I will cross refer to my earlier conclusions where it is important to do so, but am mindful that the legal test differs for each type of claim. Direct discrimination - race[82]The claimant relies on incidents a, c, e, I, k and m for his direct discrimination claim. With reference to my factual findings, I now consider whether they were less favourable treatment to the actual or hypothetical comparators relied on, because of race. Delay in providing work tools – incident a[83]In relation to the delay in providing work tools, I accept that a delay in providing the work tools is a detriment. The threshold for deciding something is a detriment is low and this delay passes that threshold. I infer direct discrimination based on Mr Veazey’s comment to the claimant, which expressly states the delay may be because of his race. This comment was wholly inappropriate and totally unacceptable. The claimant gave evidence that he was resigned to comments like this having grown up facing racism. He informed his trade union representative but did not take any other steps about it at the time. However, the fact that the claimant was resigned to comments like this, does not mean it is not discriminatory or evidence that the failure to provide work tools was a detriment because of race.[84]As the Respondents’ response has been struck out, the Respondent has not been able to prove that they did not commit an act of unlawful discrimination. I note reference in the papers to a new system at that time that could have caused delays, yet this is insufficient evidence for the respondent, who is not engaged in the proceedings, to discharge the burden in light of the comment made by Mr Veazey.[85]Causing delay in accessing work tools due to a person’s race is inherently discrimination due to their protected characteristic of race. I do not need to go on to consider a comparator in order to reach this conclusion, however the claimant pointed to two white colleagues who received their work tools without delay. This evidence is uncontested and so I accept that they are comparators in the same circumstances and this evidence supports my conclusion.[86]There is no suggestion the second respondent was personally involved in the work tools incident and as the first respondent bears overall responsibility for the actions of Mr Veazey, my positive finding of direct discrimination in relation to the delay in providing work tools is solely in relation to the first respondent.[87]This occurred in 2018. Whilst the list of issues includes a question on whether it is just and equitable to extend time, the claimant, on encouragement from his wife, informed his Trade Union at the time but simply stated that he did not bring a claim at the time because he was more concerned about accessing the tools than the discriminatory comment. There were no submissions that the claim was brought within a just and equitable time frame, I have insufficient basis on which to extend time for this aspect as a free-standing direct discrimination claim.[88]I am aware that my decision means that I have made findings that the claimant was subject to an incident of direct discrimination but will have no separate remedy for this claim. The claimant was aware of all of the information, took the steps he felt he needed to at the time and did not pursue it further.[89]In relation to all of the other matters detailed in the list of issues under the direct discrimination claim, the claimant provided no evidence other than a suspicion that these matters were due to his race. I consider them in turn below. Mobile phone incident - incident c[90]The claimant complains that, after he lost his mobile phone, he was provided a new mobile phone with a new number. He considers this placed him at a detriment as he lost his contacts and the new phone did not have the app on it to be allocated work remotely. I accept that this could be detrimental treatment, in particular due to the impact on work allocation for the claimant.[91]The claimant points to comparators who he states did retain their mobile phone numbers. He gave broad evidence that they had lost their phones at a similar time. In the response to the grievance dated 20 August 2020, there is reference to the comparators potentially needing replacement mobile phones but not having lost their phones, meaning they could keep their telephone number.[92]I have carefully considered Mr Veazey’s involvement in light of my above decision resulting in my decision the claimant did. The claimant gave evidence that Mr Veazey was aware the claimant was trying to retain his old mobile phone number. However, the claimant said the IT department was dealing with it. There was no evidence to suggest Mr Veazey was influencing the IT departments handling of this matter.[93]The comparators in this matter are of limited evidential value as the bare facts that they received different treatment is insufficient to shift the burden of proof onto the respondent. Furthermore, inferences can only be drawn from established facts and cannot be drawn from speculation, gut reaction or intuition. I have not been able to identify something more from which to infer discrimination, even when considering the something more ‘need not be a great deal’. This is insufficient to shift the burden to the first respondent.[94]Therefore, the allegation of direct discrimination in relation to this incident must fail. Disciplinary process – incident e[95]In relation to delay in the disciplinary process, there was undue delay that the first respondent accepted in their appeal outcome letter. I accept that this meets the threshold for detriment and did cause detriment to the claimant, in particular stress.[96]However, when considering if the claimant has provided sufficient evidence to shift the burden of proof onto the respondent, I find there is no evidence other than suspicion that this was due to the claimant’s race. I have carefully considered Mr Veazey’s involvement in this matter in light of my findings above but there was no evidence before me to suggest he was involved in the disciplinary investigation.[97]Therefore, I find that the burden has not shifted to the respondent and the allegation of direct discrimination in relation to this incident fails. Grievance process – incident i[98]I have carefully considered this as the claimant lodged his grievance on 10 February 2020, the hearing was held in May 2020 and the outcome was received on 3 September 2020. I do not find there was undue delay with the grievance procedure. A number of steps were followed during this time and I accept there was delay. However, this was during the height of the Covid 19 pandemic and so I consider the time taken to within the range of reasonableness during that challenging time.[99]Furthermore, if there was delay to the point it constitutes a detriment, then there is no evidence other than suspicion that this is due to the claimant’s race and so the claimant has not succeeded in shifting the burden of proof onto the respondent and the claim would fail. Again, I have carefully considered this matter and, in particular whether Mr Veazey was involved due to my findings above about the work tools matter. There is no suggestion Mr Veazey was involved and so this does not assist the claimant in shifting the burden of proof onto the respondent. Sanction – incident k[100]In relation to imposing a disciplinary sanction of a final written warning, two years reduced to one year on appeal. I accept that a sanction can be a detriment. However, the findings made were reasonable on the evidence. The claimant did not assert it was contrary to the first respondent’s policy other than a general assertion it was unfair. I consider that a reasonable employer could have imposed a harsher sanction even when considering the limits of the claimant’s concessions, which the employer broadly accepted, and the claimant’s longstanding good service. Therefore, in the circumstances, the sanction is not a detriment.[101]Alternatively, if even a reasonable sanction could be considered to be a detriment, the relevant evidence for considering whether the claimant has shifted the burden of proof onto the respondent is the claimant’s assertion this was discrimination due to his race. This is insufficient evidence to shift the burden onto the respondent.[102]Again, I have carefully considered this matter and, in particular whether Mr Veazey was involved due to my findings above about the work tools matter. There is no suggestion Mr Veazey was involved and so this does not assist the claimant in shifting the burden of proof onto the respondent. Assigning the second respondent to conduct the grievance procedure incident m[103]The second respondent conducted the claimant’s appeal against his disciplinary sanction. He reduced the sanction and apologised for the delay. The claimant asserts that he should not have conducted the grievance procedure due to his prior involvement in the appeal.[104]As it was clear that the claimant disagreed with the outcome of the appeal, best practice may have been to assign a different person to conduct the grievance procedure. However, this is not contrary to the ACAS Code of Practice on disciplinary and grievance procedures, which does not address this question.[105]Furthermore, I do not accept that this constitutes a detriment. A reasonable employee would accept the appeal outcome as fair and would not consider the second respondent’s involvement in the grievance to be a detriment in these circumstances.[106]If I am incorrect and it can be considered a detriment, in any event, there is insufficient evidence to shift the burden of proof onto the respondent. The only evidence this was because of the claimant’s protected characteristic is the claimant’s assertion it is. For the same reasons above, this is insufficient to shift the burden of proof and my previous findings in relation to the work tools matter does not have a bearing on this as there is no suggestion Mr Veazey was involved. Second respondent[107]The list of issues does not make it clear which of the claims are against the second respondent. I have considered the above in relation to both the first and second respondent. I have made it clear my findings in relation to the delay in providing work tools relates to the first respondent only. All of my other decisions relate to both the first and second respondent but for the grievance process, there is no evidence the second respondent was personally involved in the incidents and the first respondent is the respondent who bears responsibility for their employees.[108]Therefore, the claimant’s claim of direct discrimination is not well founded and is dismissed. Harassment[109]The claimant relies on incidents a, c, b, g, h, j, e, l (in the order as set out in the list of issues) for his harassment claim. I will first consider the work tools matters (incidents a and b) where I have found the delay was direct discrimination, albeit out of time, before considering the other matters which overlap with the claimant’s direct discrimination claim before finally considering the matters that do not overlap with the claimant’s direct discrimination claim.[110]In relation to the comment made by Mr Veazey, this is clearly unwanted conduct related to the claimant’s protected characteristic. Mr Veazey was referring to the claimant’s race as a possible reason for the delay the claimant was experiencing. However, the claimant gave evidence that he was not bothered by this comment. Therefore, this does not met the subjective element of the test in establishing harassment.[111]Had the claimant given evidence that he considered it to violate his dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for him, I would have gone on to consider the objective element of the test. Whilst there is sufficient evidence to find the comment wholly inappropriate and unprofessional, there is insufficient evidence to establish that on the objective standard it had the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. There was no evidence about the manner in which Mr Veazey said it. It was in response to the claimant suggesting there was a reason, but there is no evidence to attribute the required intention to Mr Veazey.[112]The claimant was bothered by the delay in providing him with the work tools he needed to undertake his work. I have already found that this was because of his race, and for the same reasons I find it was related to his race. Being bothered, distressed or upset by something does not necessarily met the threshold of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. I do not find that the delay in providing the tools did this. Furthermore, even if the claimant did perceive this as creating an intimidating, hostile, degrading, humiliating or offensive environment, turning to the objective element of the test, I do not find it would have been reasonable to have this perception. It is a detriment, but not sufficient to constitute harassment. The claimant did not give evidence on how long the delay was but his evidence indicated that he was able to continue to work, albeit using his own tools.[113]In relation to the remaining incidents that overlap with direct discrimination, namely the delay in dealing with the disciplinary investigation, the delay in dealing with the grievance and the mobile phone incident, for the same reasons I set out above in deciding they were not because of the claimant’s race, I find that they are not related to the claimant’s race for the purposes of a harassment claim. Put simply, there is no feature of the factual matrix, other than the claimant’s believe or suspicion, which leads me to a proper conclusion these delays were related to the claimant’s race.[114]In relation to the grievance and mobile phone incidents, I find that neither would meet the threshold for harassment in that it is not reasonable to conclude that they would violate the claimant’s dignity or create an adverse environment to the extent it violates dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. I have found there was not unreasonable delay with the grievance process and that the mobile phone incident, whilst may meet the low threshold of detriment for the purposes of a direct discrimination claim, does not meet this higher threshold.[115]In relation to the delay in dealing with the disciplinary investigation, I have given this careful thought as a delay of approximately 15 months is unreasonable. This could meet the threshold of violating the claimant’s dignity, particularly someone who holds such pride in his work. Furthermore, I consider it could create a humiliating environment for the claimant to be suspended from work for so long. However, there is no evidence to infer it was related to his race.[116]I now turn to consider the claims not already considered under direct discrimination. Firstly, suspending the claimant pending the outcome of the disciplinary investigation. The claimant did not point to any evidence that this was a breach of the respondent’s disciplinary policies other than a general statement it was unfair to establish it was a breach of their policy. Furthermore, I am satisfied that a reasonable employer could make the decision to suspend in light of the serious nature of the allegations against the claimant. I do not find that there is any evidence to infer that the suspension was related to the claimant’s race.[117]I also do not find that the act of suspending the claimant could have the purpose or effect, when considering a reasonable employee, of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. A reasonable employee in these circumstances would understand that the employer needs to investigate the complaint and suspension could be a reasonable step in these circumstances.[118]In relation to giving the letter on 2 April 2019 suspending the claimant, the claimant’s evidence indicates he was frustrated about that as he had already been told orally that he had been suspended and was, in fact, suspended. I do not consider that this can either be related to the claimant’s race as there is insufficient evidence to properly infer it is related to his race. The claimant’s suspicions in this respect is insufficient. Furthermore, I do not consider it reasonable to find that this meets the threshold of having the purpose or effect of violating the claimant’s dignity or creating an adverse environment in any other way. Putting the fact of suspension in a letter for both the employer and employees’ records is a reasonable step to take and a reasonable employee would not see it as anything else. Whilst there was a short delay in providing the letter, this was not what the claimant was complaining about and in any event would not violate the claimant’s dignity or creating an adverse environment in any other way.[119]The breach of confidentiality in relation to the claimant’s disciplinary matters is unacceptable. However, the only evidence it was related to the claimant’s race is his suspicions and this is insufficient to establish that it was related to his race. Furthermore, there is insufficient evidence on the breach to establish that the purpose was to violate his dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for him. I note that the claimant was extremely distressed about being accused of theft and undoubtedly he felt that breaching his confidentiality so others were aware of the accusation violated his dignity and was humiliating. Whilst there is the potential for breaches of confidential information to have this purpose, in these circumstances there is no evidence it relates to the claimant’s race.[120]Whilst I have set out each allegation separately, I have considered them as a whole and do not consider that, taken together, they constitute harassment.[121]Therefore, the claimant’s claim of harassment is not well-founded and does not succeed.[122]In relation to the second respondent, again it is not clear whether the claimant is asserting the second respondent is responsible for these matters but, for the same reasons, the claim of harassment fails against the second respondent. Victimisation[123]The claimant relies on his grievance dated 10 February 2020 as a protected act. I am satisfied this is a protected act, the grievance expressly refers to discriminatory treatment and the claimant is alleging that he has been the victim of discrimination in the workplace.[124]The respondent expressly deals with the allegation of discrimination and so I accept that the first believed that the claimant had done a protected act. The second respondent will also have had the requisite knowledge from the point in time he was allocated to deal with the grievance. However, the claimant has not provided me with this evidence and so I am not able to determine from which point in time the second respondent had this knowledge. He certainly had it after the claimant resigned and by the time he drafted the outcome to the grievance letter dated 20 August 2020.[125]The claimant relies on the respondents’ failure to pay for some work, having his work van taken away by colleagues, dismissing him and delay dealing with his grievance to form the basis of his victimisation claim. I will deal with these in turn.[126]The claimant submitted his grievance on 10 February 2020. He complains of a failure to pay overtime for the months December 2018 to January 2019. This was significantly before the grievance and so I do not find that this was a detriment due to the protected act.[127]The claimant’s work van was taken away on 22 March 2019 after he had been suspended. Again, this pre-dates the grievance letter and so I do not find that this was a detriment due to the protected act.[128]I do not find that the respondent dismissed the claimant because of the protected act of making the grievance. The claimant resigned, as considered in further detail below. I have decided that the claimant’s claim for constructive dismissal does succeed. However, this finding is relating to the delay in the disciplinary investigation and the work tools incidents only. This does not equate to a dismissal which is because the claimant did a protected act.[129]I have decided that there was not significant delay in dealing with the claimant’s grievance. I therefore do not consider there was delay to the extent it was a detriment materially influenced by the protected act of submitting the grievance.[130]The second respondent clearly sets out the reason for not upholding the claimant’s grievance in his letter dated 28 August 2020. I have considered whether the outcome was materially influenced by the protected act. However, in light of my findings, which have disagreed with the claimant’s assertions of discrimination, harassment and victimisation, but for the comment Mr Veazey made which the grievance addresses which reaches a different conclusion to me. This is on the basis that the second respondent had access to different evidence to me, namely he had spoken to Mr Veazey. This discrepancy in our decisions does not lead to the inevitable conclusion of victimisation but is a different decision reached in different circumstances. Put simply, the respondent did not reach the outcome they did in relation to the grievance as an act of victimisation materially influenced by the claimant’s protected act, but because their consideration of the matter, on the information they had available to them, meant they reached a different outcome to both what the claimant wanted and my decision, to this limited extent.[131]Therefore, the claimant’s claim of victimisation does not succeed. Unauthorised deduction from wages[132]The claimant claims £263.86 for deductions for van maintenance taken from his wages after the van was taken from him and whilst he was on suspension. In the bundle the claimant has not provided me with all his pay slips from the date his van was taken from him until his suspension. I have sight of one payslip dated 30 April 2020 which shows a deduction of £17.67 for van use and a payslip dated 31 May 2020 which states ‘van use adjust’ and credits the claimant with £17.08. The other payslips provided, all post dating 31 May 2020, do not reference van maintenance. The claimant did not have any other payslips available to provide me on the day of the hearing.[133]I find there is insufficient evidence for me to determine that there were unauthorised deductions from the claimant’s wages. He was not able to provide evidence of the deductions. Therefore, his claim for unauthorised deductions is not well-founded and dismissed. Constructive dismissal – including discriminatory constructive dismissal[134]The claimant relies on the following allegations for his constructive dismissal claim (in the order set out in the list of issues): the delay in dealing with the disciplinary investigation; the delay in dealing with the grievance; commencing a disciplinary investigation and bringing disciplinary charges against the claimant; imposing a disciplinary sanction; and assigning the second respondent to conduct the grievance procedure.[135]The claimant hasn’t included the delay in providing work tools, or the comment Mr Veazey made, in the list of issues under constructive dismissal. However, on reading the grounds of claim, the claimant refers to the discriminatory treatment he was subject to, his resignation letter and his grievance letter, see in particular paragraph 50. His resignation letter expressly refers to the grievance letter and matters referred within it. The grievance letter in turn expressly refers to the delay in providing work tools and Mr Veazey’s comment. Therefore, I consider it appropriate to include consideration of the work tools incident and Mr Veazey’s comment as my understanding of the claimant’s claim from his grounds are that this forms part of his constructive dismissal claim. Delay in providing work tools and Mr Veazey’s comment[136]In light of my findings that the delay in providing work tools was direct discrimination, I first turn to consider whether that was a breach of an implied term of trust and confidence between employer and employee. I have decided that delaying access to work tools due to the claimant’s race is a fundamental breach of the implied term of trust and confidence. Being subject to a detriment in accessing work tools due to race is a repudiatory breach and the claimant was entitled to treat himself dismissed at that point.[137]The claimant did not treat himself as being dismissed at that point and affirmed the contract by using his own work tools, informing his trade union representative but taking no further action and continuing to work for the respondent for over six months.[138]I refer to the legal position as detailed above, in particular that the case law on constructive dismissal arising out of a number of incidents cumulating in a final event and the principles established in De Lacey v Wechseln Ltd t/a The Andrew Hill Salon [2021] IRLR 547 that a constructive dismissal can be discriminatory even if the last straw was not itself discriminatory and even where the matters which significantly influenced the resignation such as to make the dismissal discriminatory were themselves outside of the primary time limit. In line with this, I now consider whether any of the subsequent events, as relied on by the claimant, were either a fundamental breach of the implied term of trust and confidence or ‘capable of contributing to a series of earlier acts which cumulatively amount to a breach of implied term of trust and confidence’. Delay in dealing with the disciplinary investigation[139]I have no hesitation in finding the delay was unreasonable. The claimant was suspended on 8 March 2019. He did not receive the outcome of the disciplinary proceedings until 21 May 2020, 14 months later. The investigation was not a complex one. It required minimal investigatory steps that could reasonably have been concluded in a much shorter time frame. The respondent accepted that the claimant had insufficient contact or support from them during this period.[140]I now need to consider whether this was, on itself a breach of an implied term of trust and confidence, or at least capable of contributing to a series of earlier acts which cumulatively amount to a breach of this term. I consider that the delay in and of itself is sufficient to amount to a breach of the implied term of trust and confidence. The ACAS Code of Practice on disciplinary and grievance procedures states it is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts in the case and that, where suspension is necessary, the period of suspension should be as brief as possible.[141]I consider that 14 months to conduct the disciplinary investigation was so unreasonable that the claimant was entitled to treat himself as having been dismissed due to a breach of the implied term of trust and confidence. If I am incorrect, I consider it capable of contributing to earlier acts and, taken together, cumulatively amount to a breach of this implied term. The delay in the provision of the work tools was just over six months prior to the start of the disciplinary process.[142]I now need to consider whether the claimant affirmed the contract. The claimant gave evidence that, on being informed he was suspended, he tried to contact the respondent repeatedly for information. In February 2020, 11 months after the start of the disciplinary process he submitted a detailed grievance. On being informed of the outcome of the disciplinary process he appealed, one of the grounds being that the investigation was unfair and breached the rules of natural justice by taking too long. In his resignation letter, the claimant expressly referred to the ‘unreasonable and inordinate’ delay. The claimant was suspended, and then signed off sick, for the duration of this period and so had not worked since his suspension in March 2019.[143]Caselaw establishes that use of a contractual grievance procedure would not normally be taken as evidence that the employee had unequivocally decided to affirm the contract and I find that, as a matter of fact, it did not in these circumstances. The claimant had not utilised the grievance procedure whilst returning to work. He used it whilst still suspended from work.[144]Clearly, in light of my decision, the claimant could have resigned during the disciplinary investigation due to the delay. However, I infer from the claimant’s evidence about the impact on him that he wanted a resolution to the allegations made against him. I do not take this as affirming the contract.[145]For the same reason, I do not find that exercising the appeal process was the claimant affirming the contract. Again, he was not working during this period and wanted his name ‘cleared’. This was not a reasonable expectation of the claimant but it does not mean he was affirming the contract after the breach caused by the delay. The claimant was proactively challenging the delay and continuing to complain about it after the conclusion of the first stage of the disciplinary process, rather than affirming the contract.[146]I do not consider the time between the outcome of the disciplinary investigation or the appeal as a prolonged or significant delay such as to amount to an implied affirmation. He resigned within 13 days of the appeal outcome.[147]The respondent’s acceptance that the delay was not a reasonable time frame does not make good the delay.[148]In relation to the grievance, there is no evidence that the allocation of the second respondent to investigate the grievance was a reason for the claimant’s resignation. He does not refer to this in his resignation letter. The claimant has not provided evidence of when the second respondent was allocated to deal with the grievance, or if this was even before his resignation. He does refer to his grievance still not being dealt with, but I have found that the first and second respondent did not unduly delay in responding to the grievance. Therefore, if the delay in dealing with the grievance was the final act, it does not have the quality needed to be capable of reviving the earlier breach.[149]Turning to the matters the claimant relies upon in relation to the disciplinary matters, namely the respondent commencing a disciplinary investigation and bringing disciplinary charges against the claimant and imposing a disciplinary sanction, the claimant gave evidence that he was deeply upset about being accused of theft. He also felt that the sanction was unfair in light of his length of service. He alleges the sanction was discriminatory. I have decided the claimant has not established that.[150]On the evidence before me, the fact of the investigation and the final sanction imposed on appeal was not a breach of the implied term of trust and confidence. The first and second respondent were following their procedures and came to an outcome in line with their procedures. It was a decision the first and second respondent could reasonably come to in light of the allegations and investigation outcome. I do not find that it is a final act capable, when considered as part of a series of acts, of contributing to a breach of the implied term of trust and confidence.[151]I therefore find that the claimant’s claim of discriminatory constructive dismissal is well-founded on the basis that the delay in the disciplinary investigation breached the implied term of trust and confidence and / or revived the earlier breach of the delay in providing the work tools in August 2018. Second respondent[152]My finding that the claimant has been successful in establishing discriminatory constructive dismissal is against only the first respondent. The second respondent was only involved in the appeal against the disciplinary outcome and the final grievance letter dated 28 August 2020. I have made no findings against the either respondent in relation to these matters. Approved by:
Conclusions
[1]The respondent’s application for reconsideration of parts of the judgement dated 2 December 2025, namely the finding that the claimant’s claim for discriminatory constructive dismissal and constructive dismissal succeeded is allowed. This aspect of the judgment is revoked.[2]A decision on the claimant’s claims for discriminatory constructive dismissal and constructive dismissal could not be made and these matters will now progress to final hearing. Approved by: