Mr D Swire v Raw Corporate Health Ltd T/a Educated Body Company: 3300666/2024

EMPLOYMENT TRIBUNALS

Case No 3300666/2024

Between

Mr D SwireClaimant

Raw Corporate Health Ltd T/a Educated Body CompanyRespondent

Before

Employment Judge M. Hunt

Ms S. Hosten for respondent

Date 20 March 2026

JUDGMENT

[1]The Respondent’s application to strike out the claim is dismissed. Approved by

[3]1. The claim to have suffered race discrimination is not well-founded and is dismissed. Approved by JUDGMENT having been given orally on 20 March 2026 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunal Procedure Rules 2024, the following reasons are provided.

REASONS

[1]The Claimant was a duty manager at the leisure and spa facility (the “Facility”) within the Skyline Apartments complex at Woodberry Down in north London, from 31 October 2020 until he resigned with effect from 2 September 2023. His employment had transferred to the Respondent with effect from 1 May 2023 when it became responsible for running the Facility.

[2]The Claimant presented his claim on 18 January 2024 after a period of ACAS early conciliation between 4 December 2023 and 15 January 2024.

[3]The Claimant raised a complaint to have suffered discrimination on the grounds of his race. The Respondent disputes that it subjected him to race discrimination.

[4]The claim was clarified at a preliminary hearing on 24 September 2024 when a list of issues for determination at this final hearing was produced by Employment Judge Fitzgerald. Initially, there had been some doubt about whether the claim had been brought promptly enough for the Tribunal to have jurisdiction to determine it. At a second preliminary hearing on 26 November 2024, Employment Judge Wood found that the Tribunal did have jurisdiction to hear the claim and that it should proceed to a final hearing.

[5]In determining the claim, the Tribunal considered a 251-page file of documents, together with written statements and oral evidence from the Claimant and two witnesses called by the Respondent. I will refer to them as the “Regional Manager” and the “Operations Director”.

[6]It is worth noting that the Regional Manager was and remains responsible for the Respondent’s operations in the region in which the Claimant worked. At the time of the events the subject of this claim, the Operations Director was in a different role; he was a regional manager in a separate London region, so had limited direct knowledge of the matters in dispute.

[7]At the hearing, two small supplementary files were produced and I had regard to their contents. In reality, one of those files largely (if not entirely) replicated information that had already been provided in the main hearing file, amounting chiefly to statements that the Claimant had received from former colleagues of his.

[8]At the hearing, the Respondent also sought to rely on an additional witness statement. I determined not to take it into account and had no regard to it for reasons that I gave during the course of the hearing.

[9]I should add that, where I have said the Claimant produced a statement, in reality his statement was not just his own. It was a document that contained his statement plus emailed witness statements from former colleagues, including his former line manager, who managed the Facility (the “Facility Manager”). None of those witnesses attended the hearing for various reasons. The statement also included some WhatsApp screenshots embedded within it.

[10]I had regard to all of these statements and information. I appreciate that the additional witnesses were not available to answer questions at the hearing. Typically, that might lead me to accord their statements limited weight. In this case, however, I found that there was no particular reason to doubt that their contents accurately reflected the genuine feelings and recollections of each witness.

[11]I was very grateful to everybody, both the witnesses that were present at the hearing and those that were not, for the information that they have provided. I was also grateful to the Claimant and to the Respondent’s representative for their assistance and their very helpful submissions at the hearing.

[12]I accepted that every witness gave a frank and honest account of their recollections and feelings in seeking to assist me with determining this claim.

The Law

[13]The law that the Tribunal needs to apply is enshrined in the Equality Act 2010, notably section 39(2), which is as follows: 39. Employees and applicants(1) …

(2) An employer (A) must not discriminate against an employee of A's (B)— (a) … (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) … (d) by subjecting B to any other detriment.

[14]The focus of the submissions before me was, I believe, subsection (d) but subsection (b) was also relevant to several of the complaints. That is the basis on which I proceeded.

[15]Section 13 of the Equality Act 2010 is as follows: 13. Direct Discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[16]Section 109 of the Equality Act 2010 provides that an employer is vicariously responsible for the acts of its employees.

[17]Section 136 of the Equality Act 2010 addresses the burden of proof that applies in discrimination cases, as follows: 136. Burden of proof(1) …

(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.

The Issues

[18]A list of issues was prepared by Employment Judge Fitzgerald and I will not repeat its contents.

[19]The list explained each of the Claimant’s allegations to have suffered discrimination. It recorded a list of facts for me to find, i.e. whether certain events occurred. If they did occur, I then needed to determine whether any of those facts amounted to less favourable treatment. If so, whether that less favourable treatment was on the grounds of the Claimant’s race, such as to amount to discrimination.

[20]I will address the findings of fact first before making conclusions on whether any of those facts amounted to less favourable treatment on the grounds of the Claimant’s race.

[21]In reality, many of the core facts were agreed and were not in dispute. What was in issue was whether they amounted to less favourable treatment and, if so, whether that was on account of the Claimant’s race.

The Facts

[22]I made the following findings on the balance of probabilities, taking account of all of the information that was available to me, including the statements from all of the Claimant, the Respondent’s witnesses and the witnesses that did not attend the hearing, as well as the documents that were presented to me.

[23]I found that all of the witnesses were honest and they tried their best to assist me as well as they could. I note this because the Claimant raised some concerns about the Regional Manager’s demeanor at the hearing. I had no such concerns. I believe that he tried to provide straightforward answers to the questions he was asked. Perhaps the answers that he gave were not those the Claimant wished to hear. Some of those questions were more concerned with the general relationship that the Claimant had with the Regional Manager, both personal and professional. Others addressed highly hypothetical matters about issues that were not necessarily directly relevant to the claim. Even though it might be hard to talk about such matters both generally and especially in the context of a discrimination complaint, the Regional Manager accepted to answer every question even when he was informed he was not required to. He did so sensitively and candidly.

[24]I must highlight that colleagues are not required to be close friends or to value each other or their personal or professional characteristics. Managers are entitled to value certain of their employees’ attributes or working practices more than those of other employees. What is important in every case is that colleagues must treat each other without discrimination. That must be, and was, my only focus. I was not conducting any form of assessment or audit of how the Regional Manager treated the employees under his management and whether that treatment was “fair” or otherwise. Of course, I fully accept that unfair treatment may well be an indicator of discrimination, overt or subconscious, and I was always mindful of that. At the same time, unfair treatment (or what might be perceived to be unfair treatment) that is unrelated to race would not result in a successful race discrimination claim.

[25]I will deal with my findings of fact in two sections. Firstly, I will explain the change in Facility management. Secondly, I will make specific findings about the Claimant’s employment during the relevant period. Change in Facility management

[26]The relevant chronology to this claim began in May 2023 when the Facility at which the Claimant worked transferred to the Respondent’s management.

[27]At the time, the Facility Manager was black. The Claimant was a duty manager at the site and is also black.

[28]In or around April 2023 a white European colleague joined the team as another duty manager. There were two further colleagues who worked at the site, one of whom was black.

[29]The Facility is private and is run primarily for the benefit of the residents of Skyline Apartments. The previous operator of the Facility was Motiv8. A change in management had been sought by the site owner. I was unclear as to the exact reasons for that and it was not especially relevant to my determination. I was informed by the Operations Director at the hearing of the context. I had no reason not to accept his evidence that the reasons included resident requests and/or complaints regarding the operation of the Facility, including relating to health and safety practices and protocols. The latter are matters on which the Respondent has a keen focus.

[30]The change in Facility management involved a significant change in management culture, ethos and working practices at the site. Of most relevance, I could describe the new workplace practices as more regulated, notably requiring heightened record keeping and compliance with company protocols, such as with regard to training and site monitoring. It was not especially relevant to my determination to make any further findings and I did not have the evidence available to say very much more.

[31]I need only note that the parties were in broad agreement about this. The Respondent stated that it expects its employees to follow its protocols and practices, especially in relation to health and safety matters, including training. The Claimant, for his part, accepted that the new practices that were imposed at the Facility were rather “robotic”, demanding and timeconsuming. He admitted to struggling to cope with some of the Respondent’s requirements, such as relating to completing its online training modules (of which there were many).

[32]It became clear over time that the Claimant and certain of his colleagues were not comfortable with the change in working practices associated with the Respondent’s new management. They also did not appreciate what they perceived to be the Regional Manager’s “management style”.

[33]The Claimant is rather traumatised by the management change and how he perceives his treatment during and after that transition. The statements that he has provided show that the Facility Manager and other colleagues of the Claimant, including his other black colleague at the time, were dissatisfied with the management of the site. They all resigned within a few months of the change, at least in part because of issues related to the change in management.

[34]As explained above, I did not hear directly from the Claimant’s former colleagues. Their accounts were recorded in emails provided directly to the Claimant. Certain of them wished to remain anonymous. I had no specific reason to doubt that the emails were from those individuals or to question the accounts that they had provided. However, equally, bearing in mind the limited number of people who could have prepared the statements, I do not wish to firmly attribute to any of those former colleagues any particular views. It is therefore only for the purposes of these specific proceedings that I accept they were dissatisfied with their employment.

[35]It is important to note that all of the colleagues’ statements describe each individual’s complaints about the Respondent’s management in rather universal terms, as applicable to all colleagues, regardless of who they were or their race. Some of the statements recorded that the individuals concerned felt that they had been unfairly treated. Neither of the Claimant’s black colleagues referenced suspected race discrimination. Only one of the statements referred to a racial motivation to any of the Respondent’s alleged actions. However, that specific statement referenced at its outset that that individual felt that all employees at the Facility had been badly treated by the Respondent’s management (i.e. regardless of race).

[36]All of the statements referred variously to the workplace being a “toxic environment”, that the Regional Manager “gaslit” the employees, that all were concerned about what they perceived to be belittling comments and derogatory remarks made by the Respondent about the previous Facility operator. Many of the witnesses complained about the rigid or “robotic” procedures that the Respondent had implemented at the site. All of the witnesses had concluded that the Respondent’s intention all along had been to replace the Claimant and his colleagues with others from within the Respondent’s organisation.

[37]The Regional Manager told me at the hearing that he was not aware of the Claimant’s or his colleagues’ concerns at the relevant time and that those concerns only became apparent to him during the course of these proceedings. I accepted that evidence.

[38]The Respondent, in light of those comments and concerns, admitted at the hearing that certain aspects of the management transition could perhaps have been handled differently and that it has (and will continue to) reflect on that going forwards. It strongly refutes having discriminated against any employee at any time, however. The Claimant’s employment

[39]Upon the Respondent taking over management of the Facility, the nature of the Claimant’s work changed. The structure to his working day became more formalised and strict processes were implemented, such as halfhourly checks that had to be regularly undertaken.

[40]During the transition to new management, additional Respondent staff were allocated to the Facility to assist current staff (including the Claimant) to familiarise themselves with the Respondent’s processes and protocols. That transitional period was expected to last for around two weeks but the additional staff ended up remaining at the Facility considerably longer than that.

[41]The Respondent imposed a suite of training requirements on the Claimant and his colleagues. The Claimant did not engage with that training to any great extent, including because he struggled to find the time to do so in and around his other duties, for instance the half-hourly checks that I have referenced above. He also said (and I accepted) that he found the training courses difficult to complete, especially those involving tests, which had to be successfully passed in order for the training requirement to be marked as accomplished.

[42]In relation to the particular aspects of the Claimant’s employment history relevant to the allegations recorded in Employment Judge Fitzgerald’s case summary and list of issues, I found as follows.

[43]This allegation related to an incident that occurred on a formal “induction day” arranged by the Respondent on 24 May 2023. During that induction day, the Respondent’s senior management noted that the Claimant was frequently using his smartphone. The Facility was run by a relatively small on-site team, so the Claimant’s smartphone usage was highly visible to those managers present or giving presentations.

[44]The extent of the Claimant’s smartphone usage was debated at the hearing and I did not need to decide exactly how much he used it. All that matters is that it was sufficient for the Respondent’s management to consider it rude such that the Regional Manager raised the matter with the Claimant, explaining that it was inappropriate.

[45]The Claimant was offended by that admonishment. He felt that it was patronising and felt singled out because of it. No-one else at the meeting was using their smartphones, certainly not as frequently. To that extent, I accept that he was singled out, in the sense that he was the only one amongst his colleagues that was admonished for his smartphone use on that day.

[46]However, albeit in an entirely separate context, the Operations Director told me that he had challenged other colleagues (including senior managers) about their usage of smartphones in meetings. He gave an example at the hearing. I accepted that evidence.

[47]A white European colleague joined the Claimant’s team in or around April 2023. At a training course, that colleague encountered the manager of a different facility operated by the Respondent elsewhere in London. The colleague explored whether he would be able to undertake shifts at that site when required. The manager agreed and he asked for the Regional Manager’s consent. The Regional Manager had no concerns with that arrangement.

[48]The colleague occasionally responded to requests for staff cover when they were published internally within the Respondent’s organisation. He occasionally worked at the other facility accordingly. His employment did not transfer to any other facility permanently; he remains to this day employed as a duty manager at the Facility where the Claimant worked.

[49]The Claimant discussed informally with the Facility Manager (his line manager) whether he could benefit from a similar arrangement. However, he did not bring the matter up with any other manager, nor did he make any formal requests to transfer to a different site whether temporarily or permanently. The matter did not progress.

[50]In relation to staff transfers generally, I note that the Facility Manager resigned from his role in or around January 2024. He was replaced the next month by another manager who had for some time been looking for a role in North London. That manager had applied in the usual way for the role and he was successful in his application; he remains the manager of the Facility to this day.

[51]The Claimant and his colleagues believed that that change in management was a pre-planned move and that it had always been the Respondent’s intention to install that particular manager at the Facility.

[52]I need not actually determine whether that was true. Even if it were true, it does not support the Claimant’s case to have suffered discrimination on the grounds of race. That is because, although such a predestined arrangement may indicate potential unfairness in the management transfer, the reason for facilitating that transfer would have been to place that particular manager in the Facility regardless of their replacement (notably their race). Unless there was some link to the Facility Manager’s race (and I did not find one), it would not indicate race discrimination.

[53]It was not my task to investigate the handling of that job application. All I can say is that the Facility Manager resigned, his position therefore needed to be filled, and there was no objective evidence before me that his replacement had been pre-planned.

[54]The Claimant has various massage qualifications. He wished to pursue massage treatments and he raised a request with the Regional Manager in that regard on 31 July 2023.

[55]Treatment rooms suitable for massage were available at the Facility but they were not in use at the time. They were serving essentially as storerooms.

[56]The Claimant knew that the Facility required a licence to be used for massage treatments and that there were some issues relating to its licensing. He did not know the details save that he was aware that an upto-date site licence had only been in place since 23 May 2023.

[57]It was explained to me at the hearing that there are two elements to a massage licence. Firstly, a site itself needs to be licensed for massage. Secondly, therapists exercising at that site must be licensed. The local council is responsible for administering licences. At the time of the transfer of the Facility’s management to the Respondent, the proper licensing arrangements were not in place. An application was outstanding, which the Respondent took over (and it financed at least part of the application fee). Once granted, the only licensed therapist was external to both Motiv8 and the Respondent. He worked for an organisation that was referred to at the hearing as either Serenity London or London Serenity. My understanding is that massage treatments were not in fact taking place by July 2023 due at least in part to their cost, but this matter was not relevant to my decision.

[58]The Regional Manager asked the Claimant to discuss his provision of massage treatments with the Facility Manager and to prepare a firm, written, business plan, with suggested pricing, such that it could be formally proposed to the owner of the Facility.

[59]The Regional Manager sought an update about the proposal on 9 August 2023. The Claimant responded indicating a continuing interest in providing massage treatment. He asked the Regional Manager for prices and permission to undertake treatments. He knew at this stage that Serenity London/London Serenity was already engaged to provide such services at the Facility.

[60]The Regional Manager responded on the same day to say as follows: “I have responded to you regarding the treatments already, please revisit previous email regarding your requests for treatment prices. Serenity is in place; however, the price point is not right for Woodberry [the Facility]. We can use Serenity as well as on site therapists.”

[61]The Claimant took that email to amount to a refusal of his request, writing as follows: “I understand this, I thought there would be opportunities for staff to grow and use our qualified skills. We have a qualified therapist and my skills aren’t being utilised properly, it’s just a suggestion. It’s your choice that’s fine no worries, I am familiar with London Serenity they are good.”

[62]The Regional Manager responded to that as follows: “I had previously email request that you propose this through [the Facility Manager] who is your line manager; you can then work on a proposal together. I am happy and want to put this in place but without your input on prices and instructor wages we have only my input to present to [the site owner] which may be completely off. This is an opportunity to present a business case but from my understanding with [the Facility Manager] this hasn’t been done yet. Please pick this up with [the Facility Manager] at your earliest convenience.”

[63]The Claimant responded to that email to say that he had sent a business plan to the Facility Manager.

[64]The Facility Manager sent the business plan to the Regional Manager on 24 August 2023. The Regional Manager responded as follows: “I like the look of this; if we tweak the prices slightly then we would actually switch the prices and pay rate around. Also, how would we manage the purchasing of oils and towels / cleaning of towels; who would pay for this?”

[65]The matter did not progress as the Claimant had tendered his resignation prior to then, with his last day due to be a week or so later on 2 September 2023. No one else at the Facility had enquired about providing similar massage services.

[66]At some point in time the zip on the Claimant’s uniform jacket broke. It was not more than a few weeks old. The Regional Manager asked the Claimant to get it repaired and informed him that he would reimburse the cost of that. The Regional Manager believed that was a straightforward, sensible and cost-effective approach to the matter, bearing in mind the age of the jacket and the cost of a replacement, which I was informed would be in the region of around £125.

[67]The Claimant was undertaking a “Body Pump” training course in the run up to 2 May 2023. He needed to film a session as part of his training requirements. He sought the Facility Manager’s approval to him using the Facility’s studio. The Facility Manager passed on the request to the Regional Manager who responded on 24 May 2023 as follows: “Upon reflection until he has completed his EB Smart training I will not even consider forwarding this to the client for permission. Please let me know once this is all completed.”

[68]I have already referred to the Claimant not having completed all of the training expected of him.

[69]The Claimant then approached the Facility owner directly to request its permission to use the studio, which request was also forwarded on to the Regional Manager, on 7 June 2023.

[70]The Regional Manager responded: “If everyone on the email is happy with this then we can of course facilitate. Would be great if we could offer some of the residents from the survey who requested this the opportunity to take part also.”

[71]Later that day the Regional Manager informed the Claimant and his team that these sort of requests should be made to him rather than the Facility owner, in future.

[72]The request was ultimately not accepted for the same reason as was originally given to the Claimant about his failure to have completed his training modules.

[73]No one else at the Facility had made any request in relation to using the studio for a similar purpose. I was told at the hearing that employees would typically arrange to rent a separate third-party space for that sort of purpose. I accepted that evidence.

[74]In or around July 2023, the Claimant was invited to an investigation meeting to discuss three matters of concern regarding the Claimant’s conduct.

[75]The first matter was staying behind in the Facility after his shifts had finished. The second matter was dispensing personal training on shift whilst being the only employee on the site. The third matter was failing to complete the Respondent’s mandatory training modules timeously (as previously mentioned).

[76]The Claimant felt harassed by this invitation, he felt his job was under threat and he felt unfairly singled out by the Respondent. He explained at the hearing his fear of being dismissed.

[77]The investigation meeting had been arranged by the Facility Manager, albeit upon the Regional Manager’s suggestion. It was conducted by the Facility Manager alongside a manager of a separate facility.

[78]No formal outcome to the investigation has been recorded by the Respondent. The Claimant nevertheless understood that he had to start completing the training modules, certainly what he referred to as the “core” modules.

[79]The Claimant believed that the Regional Manager had threatened him with dismissal if he did not complete the training. I found no objective evidence to support that allegation and found that it was instead a perception held by the Claimant. The Regional Manager had not intimated such a threat to the Claimant.

[80]Other Facility employees had been invited to investigation meetings in a similar way when the Respondent had concerns about their performance. As is to be expected in matters of this sort, it was unlikely that the investigations were triggered by exactly the same types or instances of alleged conduct. Overall, I was satisfied that, in similar circumstances, any employee would have been invited to an investigation meeting in a similar way to the Claimant.

[81]Various emails were exchanged between the Claimant and the Regional Manager. Some of them referred to the Regional Manager being “confused” by certain matters. One refers to the Regional Manager believing that the Claimant was acting unprofessionally in the manner that he recorded issues in the shift handover log, such as in relation to toilet cleaning and banning residents from using the Facility.

[82]No one else around that time had made similar remarks in the shift handover log.

[83]The Claimant was invited to a second investigation meeting on or around 1 September 2023. It was unrelated to the matters raised in relation to allegation 6.

[84]The second investigation arose out of allegations that the Claimant had harassed a resident of Skyline Apartments, who used the Facility, on 27 August 2023. I was not provided with any details about the nature of the allegations, save that I was told they were relatively serious.

[85]The matter did not end up being investigated by the Respondent because the Claimant’s final day at work, subsequent to his resignation, was the following day. The Regional Manager informed the Claimant that he would not progress the investigation but that, if the Claimant ever intended to return to work at the Facility, whether as an employee or otherwise (for instance as a freelance instructor/therapist), an investigation into the matter would need to be completed first.

[86]The Claimant tendered his resignation on 31 July 2023. He explained in the leaver’s questionnaire that he had felt as follows: “My skills were not utilised properly and I felt at times I wasn’t being taken seriously.”

[87]In a later section he wrote that he disliked the following: “Micromanaging from everyone at times, it got a bit too much. Disrespect from some residents and sometimes poor treatment. Some residents have shown discriminatory behaviour, moving forward rule needs to be more STRICT regardless if they live here, we can’t be too nice, they are too comfortable disrespecting staff.”

[88]He then wrote that he was concerned about the following matters: “Micromanaging and being picked on by the whole team as a target it became become concerning and uncomfortable. … Too much restrictions and not enough freedom it become too robotic.”

Conclusions

[89]Few of the objective facts underlying this dispute were in dispute. The perceptions of what those facts meant differed radically between the parties, however. It seems to me that the main dispute revolved around misunderstandings about the Respondent’s processes, protocols and management generally.

[90]For instance, whereas the Regional Manager sought clarity and formality in relation to certain matters, the Claimant’s preference was very much to proceed by way of informal discussion. A good example is the first investigation meeting that took place in July 2023. The Claimant’s perception of being invited to the meeting was that he was being threatened with dismissal for what he considered to be very minor matters. The Regional Manager did not have that in mind at all. Rather he wanted certain matters of performance and conduct to be formally clarified with the Claimant and recorded, including as to the training requirements that he was expected to fulfill. Of course, the matters raised might ultimately have escalated to more serious concerns without any action from the Claimant, but that was not the purpose of the investigation. Another example concerned the Claimant’s proposed massage treatment. The Claimant expected the Regional Manager to rapidly approve it after a brief informal discussion. The latter was not averse to the idea generally, but wanted a more formal process to be followed, involving putting an agreed written business plan to the site owner for consideration. Regulatory issues such as licensing would also have to be addressed.

[91]These (and other) misunderstandings led the Claimant to believe that the Regional Manager was intentionally “dodging” his requests and ignoring his concerns generally. A further example related to working in different facilities in London. The Claimant believed the Regional Manager had favoured a colleague and in effect blocked him from pursuing opportunities to further his career. The Regional Manager simply responded to a request from the Claimant’s colleague and the Claimant never formally asked for the same.

[92]This common thread was reflected in these proceedings and at the hearing. The Claimant has formed the firm belief that he has been discriminated against on the grounds of his race. He believes that any rational explanations the Respondent Manager tried to give in response to the Claimant’s numerous allegations amounted to no more than unconvincing excuses.

[93]However, I find the Claimant’s concerns to be mistaken. Firstly, some of the Claimant’s perceptions underlying his allegations simply did not reflect the facts. For instance, the three examples I have given above. He was not threatened with dismissal for minor performance or conduct issues, his proposals were not ignored and the Regional Manager had no intention of blocking the Claimant from pursuing other professional opportunities.

[94]Secondly, even in instances where there was some objective truth underlying the Claimant’s allegations, for instance having been denied the use of the Facility’s studio for his Body Pump training, there was an objective non-discriminatory reason for the Respondent’s decisions.

[95]Accordingly, my overriding judgment is that the claim reflects the Claimant’s (and possibly his colleagues’) perception of unfair treatment, but, even if well-founded, that treatment did not involve any form of race discrimination. I made it clear throughout the hearing that it is not my role to investigate whether those perceptions were accurate. My sole task was to determine whether the Claimant was subjected to race discrimination.

[96]Quite reasonably, the Claimant himself admitted that, individually, many of his allegations might not amount to clear discrimination on their face. His case was principally that, when you consider all of those matters together, they demonstrate clear, albeit potentially covert or subconscious, discrimination.

[97]A matter on which the Claimant placed significant reliance was the fact that he and two other black colleagues left the Facility, all within a relatively short timeframe of the Respondent taking over its management. He submitted that this fact alone was indicative of discrimination and should raise concerns with any employer. I understood that argument clearly, as did the Respondent. However, I have concluded that they were a series of individual decisions. If they were related to the Respondent, this was due to the different management practices it implemented, which were viewed negatively by the Claimant and his colleagues.

[98]I have considered all of the allegations and I have found that none of them, individually or cumulatively, could properly be considered less favourable treatment, let alone less favourable treatment on the grounds of the Claimant’s race.

[99]I was not assisted by a great number of comparators against whom to gauge the Claimant’s treatment, but it is unlikely any would have been of great assistance. Every allegation had an objectively rational explanation.

[100]I will take the allegations in turn.

[101]The first allegation concerned the Claimant being admonished for using his smartphone too much during an induction. The Respondent considered that rude. It went contrary to the ethos that it wished to instill in its employees and demonstrate throughout its operations. Those are the only reasons why the Regional Manager raised the matter with the Claimant.

[102]In relation to this particular allegation, I was presented with a comparator of sorts, albeit it did not provide a particularly direct comparison. Essentially, a senior manager had been noted by the Operations Director to be using their smartphone in a meeting and was mentioned to them.

[103]There is nothing inherently discriminatory about a manager, especially at induction, raising concerns about the employees under their responsibility using their smartphones in meetings, especially in a small group. It was a perfectly reasonable management decision and very many would have done the same. It has nothing to do with racism.

[104]The Claimant’s colleague worked at different sites because he had formally asked to do so, both generally via the local site manager and then specifically in response to formal requests for staff assistance. The Claimant did neither of those things.

[105]I therefore simply do not accept as a fact that the Respondent had “blocked” the Claimant from transferring to, or working shifts at, the other site. He simply did not ask to do so when his colleague did. There was no other reason and there was no “less favourable treatment”.

[106]It was not directly raised in the allegation, but in relation to the new Facility manager, he simply applied successfully for the role. The Claimant did not. Again, there is no comparison to anything the Claimant did and he did not suffer any less favourable treatment.

[107]The exchanges that I saw about the Claimant’s proposal to undertake massage treatments demonstrate that the Regional Manager was supportive. He did not “block” the Claimant or overlook his skills. It seems to me that there was simply a very large degree of misunderstanding between the two parties, as explained above.

[108]On the one hand, the Regional Manager decided to pursue a more rigid and formal process before accepting the proposal. He even chased up a business plan he had requested. On the other hand, the Claimant expected a far more informal and rapid agreement. The Respondent’s approach was informed by corporate concerns such as licensing compliance, contractual obligations with the Facility owner, budgets, all of which were matters about which the Claimant understandably had little familiarity.

[109]I was not provided with a comparitor, indeed was informed nobody else at the Facility had made a similar request. There was no obviously less favourable treatment. The Regional Manager was following a perfectly reasonable (and supportive) management process in considering the proposal.

[110]This concerned the Claimant being asked to replace the zip on his uniform. I accept that the Regional Manager’s approach was a perfectly sensible and pragmatic management decision.

[111]No comparator has been presented and it does not seem to me that there is anything inherently “less favourable” in an employee being asked to get their uniform repaired at the Respondent’s expense.

[112]The reason that the Respondent gave for not permitting the Claimant to use the Facility studio for his Body Pump training was his failure to complete mandatory training.

[113]I ought to add that it seems to me that the request was not helped by the Claimant making a parallel request directly to the site owner, circumventing the Regional Manager, in circumstances where the Regional Manager had already considered and refused the request a week or two prior.

[114]Again, I was presented with no information about any comparator who had been treated more favourably in respect of such requests. The studio at the Facility was not a public space available to anyone other than the residents of Skyline Apartments. I accept that the reason for the restriction on its use was exactly as the Respondent had outlined – the Claimant’s failure to complete his training. The decision did not amount to less favourable treatment on the grounds of the Claimant’s race.

[115]As a matter of fact, I do not accept that the Regional Manager threatened the Claimant with dismissal if he did not complete his training.

[116]I ought to add that even if the Regional Manager had made that threat, it is not inherently unreasonable. I would not expect it to have been made so soon in the employment relationship but plainly a failure of an employee to complete mandatory training can reasonably be considered a serious matter.

[117]Even if the Regional Manager had made threats short of dismissal, arranging an invitation to discuss his concerns is both perfectly reasonable and was genuinely related to the Claimant’s performance and/or conduct, not his race. Some of the matters raised – there were two others besides the training – further warranted a formal meeting. I appreciate that the Claimant disagrees, but it was a reasonable management decision.

[118]There was no evidence that this invitation amounted to less favourable treatment of the Claimant. His colleagues were also invited to investigation meetings in respect of other matters relevant to them. Furthermore, there was in fact no formal outcome to the investigation, so the Respondent clearly was not vigourously pursuing the Claimant or concocting a case for his dismissal.

[119]I am entirely satisfied the invitation to the meeting was not at all related to the Claimant’s race but was solely to do with the issues that were raised, including the Claimant’s failure to complete mandatory training.

[120]The email exchanges referencing the Regional Manager’s “confusion” amounted simply to management communications. They did not demonstrate less favourable treatment.

[121]The Claimant was also very aggrieved at having been accused of unprofessionalism by the Regional Manager. It is not for me to say whether the Regional Manager was entitled to hold that opinion. Nor is it for me to control how he might choose to express himself in the workplace. I note that the email was not directed to the Claimant but to the Facility Manager. I note also that there was nothing unreasonable about the concerns that he raised about the manner in which the Claimant chose to express himself in the shift handover log and the nature of the issues raised.

[122]Once again, there was no comparator against whom to gauge the exchanges, but I simply cannot accept that it was less favourable treatment on the grounds of race. There were objective and rational reasons why the Regional Manager chose to use the words that he did. I am satisfied that he did not say he was confused or accuse the Claimant of being unprofessional on the basis of his race.

[123]I have already addressed the first part of this allegation above.

[124]In relation to the second investigation meeting, this was arranged in response to a serious allegation that had been raised against the Claimant. I find that any reasonable manager would have considered themselves bound to investigate the matter, with no hope at all of establishing that choosing to do so amounted to any form of less favourable treatment. It plainly had nothing at all to do with the Claimant’s race but all to do with the complaint that was raised against him.

[125]I ought to say I found the Regional Manager in fact treated the Claimant relatively favourably in relation to the complaint by not pursuing it further. Others may well have chosen to take a far more robust approach to the allegations that were raised.

[126]This related to the Claimant’s decision to resign.

[127]The Claimant had concerns about the Respondent’s management and he was dissatisfied by it. I think it was clear to everybody at the hearing that the Claimant had genuine perceptions of unfair treatment.

[128]However, considering each allegation in turn, there were objective and rational explanations for all of the decisions that were made, such that I was satisfied that none were tainted by discrimination.

[129]Therefore, even if I were to consider the Claimant’s resignation as a form of dismissal (which I did not), I do not accept that it would have been related to his race, but rather to his performance or conduct.

[130]Accordingly, the claim to have suffered race discrimination was not wellfounded and was dismissed. Approved by: