Mr K Boateng v Bidvest Noonan (UK) Ltd and Others: 3300672/2024 and 2213201/2024

EMPLOYMENT TRIBUNALS

Case No 3300672/2024, 2213201/2024

Between

Mr K BoatengClaimant

(R1) Bidvest Noonan (UK) Limited (R2) David Thomas (R3) Paul Eastwood (R4) Michelle Richards (R5) Laura Mauge (R6) Jo Nation (R7) Rory Pearce (R8) Edward Carter (R9) James Storey (R10)Keith MiddletonRespondent

Before

Employment Judge R Wood; Ms S Williams; Mrs J Costley

Date 19 February 2026

[1]The following complaints of victimisation are well-founded and succeed:(i) R1 and R2 by offering the claimant a settlement agreement at a meeting on 7 December 2022 (14.2);

(ii) R1 and R3 by setting up a sham redundancy consultation process to dismiss the claimant (14.4);

(iii) R1 and R3 by setting up a sham redundancy consultation process to dismiss the claimant (14.5);

(iv) R1 and R4 by failing or refusing to postpone the redundancy process pending the outcome of the grievance process (14.10); Case Numbers: 3300672/2024 & 2213201/2024

(v) R1 and R3 by manipulating the redundancy selection process to dismiss the claimant (14.11);

(vi) R1, R3 and R4 by manipulating the redundancy process by interviewing Christopher Coker for the position of Operations Manager and offering him the role (14.12);

(vii) R1 by not suspending or investigating Paul Eastwood (14.13);

(viii) R1 by not suspending or investigating David Thomas (14.14);

(ix) R1 by not suspending or investigating James Storey (14.15);

(x) R1, R2 and R3 by moving the claimant to a temporary new site (Greenford Metroline)(14.17);

(xi) R1 and R8 by Edward Carter giving notice of dismissal (14.20);

(xii) R1 and R7 by Rory Pearce sending the bias grievance outcome letter (14.22);

(xiii) R1 and R10 by Keith Middleton’s unreasonable investigation and outcome letter (14.24);

(xiv) R1, R2, R3, R4, R7, R8, R9, and R10 by terminating the claimant’s employment. They caused or contributed to the dismissal (14.27)

(xv) R1 by unjustly delaying sending his redundancy payment after dismissal (31). (All other claims of victimisation are not well founded and are dismissed)

[2]The complaints of ‘aiding’ pursuant to section 112 of the Equality Act is well founded and succeed:(i) R4 knowingly helped R2 to victims by using the HR process as a cover (14.2.1);

(ii) R4 knowingly helping R3 to victimise the claimant by setting up a HR redundancy consultations process (14.4.1);

(iii) R4 knowingly helping R3 to victimise the claimant by setting up a selection process as a cover to dismiss the claimant (14.5.1);

(iv) R4 knowingly helping R3 to dismiss the claimant by setting up a HR process to select him for redundancy (14.11.1);

(v) R4 knowingly helping David Thomas and Paul Eastwood to dismissed the claimant by setting up a HR process to move him to a temporary site (14.17.1)

(vi) R4 by knowingly helping Edward Carter to dismiss the claimant by setting up a HR process to dismiss him (14.20.1); Case Numbers: 3300672/2024 & 2213201/2024

(vii) R4 by knowingly helping Rory Pearce to discriminate and victimise the claimant by helping him to conduct a bias grievance complaint outcome (14.22.1);

(viii) R4 by knowingly helping Keith Middleton to attempt to victimise and dismiss the claimant by using the HR process to dismiss the appeal (14.24.1); (All other complaints of ‘aiding’ are not well founded and are dismissed)

[3]The complaint of unfair dismissal against R1 is well-founded. The claimant was unfairly dismissed.

[4]The complaint of automatic unfair dismissal under section 103A of the Employment Rights Act 1996 is not well founded and is dismissed.

[5]The complaint of being subjected to detriment for making a protected disclosure (section 47B of the Employment Rights Act) against all of the respondents is not wellfounded and is dismissed.

[6]The complaint of direct race discrimination against each of the respondents is not well-founded and is dismissed.

[7]The complaint of direct sex discrimination against each of the respondents is not well-founded and is dismissed.

[8]The complaint of harassment related to race against each of the respondents is not well-founded and is dismissed.

[9]The complaint of harassment related to sex against each of the respondents is not well-founded and is dismissed. RESERVED DECISION Claims and Issues

[1]The claimant was employed by the respondent from 2012. By the material time he was one of four operations managers working on the first respondent’s ‘Arriva’ contract in London. In short, the claimant managed a number of sites at which public transport buses were parked and cleaned. His employment ended on 5 January 2024. It is the respondents’ case that the claimant was dismissed for redundancy following a consultation. In contrast the claimant says that the consultation process was a sham and that he was unfairly dismissed (he relies upon “ordinary” unfair dismissal and automatic unfair dismissal for having made protected disclosures). He also says that he was subjected to direct race and sex discrimination, harassment and victimisation. He also claims discrimination and harassment by reason of his association with his partner Ms Aisha Alhassan, who had previously made complaints about the first respondent, and had herself made a Employment Tribunal claim against the first respondent’s contractual predecessor. The claimant also makes allegations of unauthorised deductions from wages. Procedure, Documents and Evidence Heard Case Numbers: 3300672/2024 & 2213201/2024

[2]The Hearing took place on 7 to 17 October 2025, and then from 15 to 19 December 2025. Deliberation days took place on 13-15 January 2026. The claim was heard by video/CVP. We first of all heard testimony from the claimant’s partner, Ms Alhassan, and from the claimant himself. From the respondent, we heard evidence from Michelle Richards (former senior HR supervisor and 4th respondent); James Storey (former key account manager and 9th respondent; Chris Lyons (key account director); David Thomas (director of operations of transport division, and 2nd respondent); Paul Eastwood (former key account director and 3rd respondent); Edward Carter (compliance manager and 8th respondent); Keith Middleton (managing director of transport and logistics division, and 10th respondent); Laura Mauge (people change advisor and 5th respondent); Jo Nation (former HR business partner and 6th respondent); and Roy Pearce (director of operations of securest division, and 7th respondent).

[3]Each of the aforesaid witnesses adopted their witness statements and confirmed that the contents were true. We also had an agreed bundle of documents which comprises 1091 pages (the main hearing bundle) albeit some additional pages had been added so that there were 1117 pages in total; and copies of helpful written submissions from the parties on the question of whether certain facets of the evidence should be excluded by reason of being subject to legal privilege. There was also a bundle of witness statements comprising 99 pages. The parties had agreed a helpful cast list and chronology.

[4]At the second hearing in December, the Tribunal was provided with two more bundles: the first was part composed of documents relating to the process of disclosure [SB1] and was made up of 272 pages; the second bundle contained documents which had been disclosed by the respondents since the first hearing in October [SB2] and comprised 301 pages originally but is now 310 pages long. We were also given a bundle of documents made up of the notes of the consultation interviews [SB3] which comprises 105 pages.

[5]Page numbering referred to in square brackets in these reasons are to pages in the main hearing bundle, unless otherwise stated.

[6]In coming to our decision, the panel had regard to all of the written and oral evidence submitted, even if a particular aspect of it is not mentioned expressly within the decision itself. Findings

[7]Based on the evidence that we heard and read, the Employment Tribunal made the following primary findings of fact relevant to the issues that we had to determine. We do not attempt to include everything that we heard about during the hearing. We set out here the facts which we have found of most assistance in deciding the issues we have to decide. General

[8]The claimant is the partner of Ms Aisha Alhassan. They have been in a relationship for many years and cohabit. They have two children who are about 17 and 20 years Case Numbers: 3300672/2024 & 2213201/2024 old respectively. We find that it was common knowledge in their workplace that the claimant and Ms Alhassan were in a relationship.

[9]The claimant commenced his employment in 2012. He was known as “Greg” at work because there appeared to be another ‘“Kwame” working for the first respondent. He had originally been employed by Cordant Security Limited (Cordant”) but had been transferred by reason of the effect of the TUPE regulations when the contract was transferred to the first respondent (hereafter referred to as “Bidvest”) in December 2021.

[10]In 2017, the claimant suffered with stress and anxiety. He saw his GP and was medicated for these conditions. He received other forms of therapy. We accept that the claimant was vulnerable to subsequent incidents of anxiety related symptoms.

[11]In October 2018, the claimant was promoted to Operations Manager [205]. It was a responsible role with critical duties, including management of the sites under his jurisdiction [212]. Ms Aisha Alhassan

[12]In 2019, the claimant’s partner, Ms Alhassan, brought an Employment Tribunal claim against Cordant and employees of Cordant including James Storey. To summarise, it related to acts of sexual discrimination/harassment, which Ms Alhassan alleged had been committed against herself and other colleagues by Mr Storey. It was suggested that as a result of raising these issue, Ms Alhassan had been accused of fraud and suspended in or about 2018-19. She was demoted from operations manager to site manager. Ms Alhassen’s claim was settled in May 2020 via a COT3. We accept that Ms Alhassan was of the understanding when she returned to work in 2020 that she would not be working with Mr Storey. Of course, this was an assurance given by Cordant when it was her employer.

[13]We heard from Mr Storey about this matter. We find that he was incorrect about the dates and order of events, suggesting as he did that the Employment Tribunal claim had been in 2012. It was clear to the Tribunal that he still felt very strongly about these matters. We were satisfied that Mr Storey had been less than straightforward about these issues.

[14]In early 2022, Ms Alhassan learnt that she might be required to work closely with Mr Storey again in the sense that he would have some sort of responsibility for the site which she supervised at the time, Thornton Heath. Mr Storey was appointed temporary key account manager for the Arriva contract on or about 1 April 2022. As a result, Ms Alhassan complained to David Thomas. Ms Alhassan felt that Mr Thomas was dismissive of her concerns. We find that Mr Thomas told her “I don’t care about your problems with him, you have to work here” and suggested that she should contact HR if she wanted to make a complaint. In the light of the previous Tribunal claim and its fallout (of which Mr Thomas was fully aware), we think this was a surprising response.

[15]Mr Storey visited the site at Thornton Heath in April 2022, whilst Ms Alhassn was off work due to sickness. He did so to take possession her clock cards and other documentation, which felt to her like an echo of the previous allegations of fraud made against her. As she put it, Mr Storey appeared to go straight to her site and did not Case Numbers: 3300672/2024 & 2213201/2024 visit any of the others in the region. Ms Alhassan suggested that she was the subject of an investigation by the respondent. She was interviewed in relation to the matter [SB2-12](protected act 4). We could readily appreciate why Ms Alhassan might have been sensitive as to the possibility of her being the subject of a further investigate and disciplinary proceedings, given the history.

[16]As a result, Ms Alhassan lodged a grievance [SB2-64](protected act 1-see paragraph 26 of the list of issues). In essence she restated her grievance on 3 May 2022 [SB2- 6](protected act 2). She complained about having to work with Mr Storey who she said had sexually harassed her, and about Mr Thomas’ reaction to her complaint. There was a hearing on 30 November 2022 [271]. It was chaired by Jenny Jones, Operations Director of the respondent. She was not accompanied. During the hearing, Ms Alhassan repeated her concerns about Mr Storey and Mr Thomas (protected act 5). The outcome was that her grievance was, at least in part, upheld. It was recommended that Mr Storey not work in any area connected to Ms Alhassan’s role in the future [278].

[17]Ms Alhassan asserted that she continued to have problems at work. She was the subject of disciplinary proceedings in June 2023 [SB2-23] although we have been told very little about this by any of the parties. Ms Alhassan also cited an exchange of emails with Mr Ali, one of the operations managers at [1084-1090], in June 2025, which she suggested demonstrates that she was being singled out, in the sense that her work rota was being altered unilaterally. We found that there was insufficient evidence on this point for us to be able to make positive findings as to the motivation of Mr Ali. Arriva and the Business case for Change

[18]Returning to the narrative as it relates specifically to the claimant, the Arriva contract was a key contract for Bidvest . It was divided into north and south London. There were, in early 2022, two operations managers assigned to each of those regions. Mr Isaac Safo and the claimant were attached to the south, and Mr Ali and Mr Latif Adeniji to the north.

[19]Up until May 2022, the claimant had been responsible for five garages: Brixton; Norwood; Dartford (this garage was geographically in the north but still assigned to the claimant); Barking (again, in the north but one of the claimants); and Croydon. On 3 May 2022, three garages were removed from the claimant: Norwood; Dartford and Barking. This left the claimant with two garages.

[20]It was part of the respondents’ case that Mr Adeniji was replaced as operations manager in the north by Chris Coker on a permanent basis. We were referred to evidence from the respondents’ witnesses, supported by contemporaneous documents [250 and 254] that Mr Coker was promoted from site supervisor to operations manager in July 2022, supported as it was by testimony from various respondents. This was complicated by evidence from Ms Mauge who stated (paragraph 38 of her witness statement) that Mr Coker’s written contract of employment had not been updated to reflect a role as operations manager until June 2024. As it was, this change was only back dated to 24 October 2023. Ms Mauge was asked why it had taken so long. She said it was to do with his “redundancy outcome”. Ms Mauge went on to state that Mr Coker had asked her for his contract Case Numbers: 3300672/2024 & 2213201/2024 on numerous occasions. It was never about money, but he “wanted his permanent contract”.

[21]On this issue, we were also referred to [SB2-133] which is an email from Mr Dean of Bidvest’s HR advisor, to Chris Lyons (key account director) on 7 December 2023. The email was sent in the midst of the redundant selection process. Mr Dean stated:

“Straight away we both have concerns regarding Chris Coker being included in the redundancy pool for the Operation Manager position. Chris should have only been covering the role on a temporary basis whilst Greg was off sick and therefore would not be entitled to redundancy, despite the length of time he was covering the role for. We will need to establish whether they back filled Chris’ role as Site Manager at Arriva whilst he was standing in for Greg’s role as Operations Manager – if they did back fill the role, we will need to establish whether this was on a temporary or permanent basis… Ideally, Chris should have returned to his role as Site Manager at Arriva upon Greg’s return to work. I cannot find anything on file; however, it would be good to understand if it was confirmed to Chris verbally and in writing that he was covering Greg’s role on a temporary basis or whether they gave him a permanent contract. If they did give him a permanent contract for Greg’s role, he would be entitled to be included in the redundancy process, however this would then open us to another issue as we should not have permanently recruited for the role. This doesn’t seem clear cut.. but I look forward to working with you on this!”

[22]Firstly, this email was on of the documents which was disclosed only after the Tribunal required the respondents to review their approach to standard disclosure in October 2025. This is a document which is clearly highly pertinent to the important issue of whether Mr Coker was an operations manager at the relevant time. It is one example of a number of concerns we have had about the quality of standard disclosure in this case. We also note that Mr Dean opines as to the lack of a “file” about change. We share his frustration in this case.

[23]In our judgment, this email together with the oral testimony of Ms Mauge tends to support the claimant’s evidence that Mr Coker had not been promoted operations manager in 2022. We are satisfied that at best, Mr Coker was appointed to the post on a temporary basis to cover the move of Mr Adeniji. More likely that he was covering for the claimant’s ill health absence from December 2022. This is consistent with Mr Coker only been given a permanent written contract in June 2024, and it being backdated to October 2023. The respondent’s initial proposition, that Mr Coker was permanently appointed in July 2022, made little sense given that we were told that Bidvest intend to reduce the number of operations managers, and had implemented a recruitment freeze in 2022.

[24]We also note Mr Thomas’ remarks to Mr Pearce in an interview on 20 November 2023 [798] where he appears to confirm that Mr Coker had been appointed on a temporary basis from July 2023. This is in stark contrast to his witness statement at paragraph 51 where he states that Mr Coker was promoted in July 2022. It is our view that the respondents’ evidence on this point has been inconsistent and deliberate misleading at times. Case Numbers: 3300672/2024 & 2213201/2024

[25]We accept the Arriva contract was experiencing performance related issues, and that there were plans on the part of Arriva to reorganise its management structure in the summer of 2022. Bidvest indicated that it too was to mirror these changes by reorganising its own structure. The plans are illustrated by the documents at [252- 267]. It may well have been part of the purpose of the changes that there would be some saving of costs and/or greater efficiency. However, we are satisfied that this was only part of the motivation for making the changes. We are clear that both in terms of the timing of these changes, and in relation to the nature of the selection process that was undertaken by Bidvest, that the primary reason was to target the claimant for dismissal. The claimant had been identified as someone whom Bidvest wished to remove from his employment by reason of the complaints both he and his partner made in 2022, and also due to his association with his partner’s Employment Tribunal claim in or about 2019.

[26]The proposed changes to the role of operations manager coincided with the appointment of Paul Eastwood as Key Account Director (and the claimant’s line manager) in July 2022. This change occurred at about the same time that the key accounts manager for the Arriva contract, Mr Ankara, was moved to the Stage Coach contract and replaced by Mr Adeniji, previously an operations manager on the Arriva contract, south.

[27]At [252], in an email from Mr Eastwood to the Mr Marshall, the Managing Director of the respondent, he states “Management team in the main are performing well apart from in the south, where there has been and is obviously a lack of control and management by the OM team, this has been demonstrated by my site visits …..As part of my ongoing review, I am writing a business case which will improve and strengthen the management team.”.

[28]Mr Eastwood goes onto state:

“I have been particularly impressed with Oz [a reference to Mr Ozan Ali] and his management of his team I know there has been previous negative overtures but I can only speak as I find.”

. There are further references in this email to performance related issues in the south, and particularly with Thornton Heath, which was one of the sites overseen Mr Isaac Safo. There was some evidence that the respondent was not meeting targets relating to the cleaning of buses. There also appeared to a reference to a ‘near miss' at the Clapton garage, a site overseen by Mr Ali. This incident appeared to be problematic in terms of health and safety issues.

[29]On 25 July 2022 [254], Mr Marshall sent an email to Mr Thomas and Mr Eastwood which appeared to have been a report of a meeting between Mr Marshall and representatives of Arriva. In effect it was a contract review. It highlighted a number of issues. In particular, it stated that “Performance improvement plan for Greg ongoing but taking too long and south at risk of Arriva driving change…Looking to have a Northern and Southern Ops manager to align with ALN.”. There were other concerns raised, both about garages in the south and the north area.

[30]At [257] there is an email dated 9 September 2022, from Simon Golesworthy, the Chief Financial Officer for Bidvest. This email set out that the GB business had performed some £0.4M below budget, and introducing some immediate measures to better control costs. These measures involved staffing proposals. A few days later, Mr Marshall emphasised that he would be implementing a revised budget for the Transport Division over the next 2-3 weeks [262]. Case Numbers: 3300672/2024 & 2213201/2024

[31]On 4 October 2022, Michelle Richards (4th respondent and Senior HR business Partner for Bidvest) sent an email to Andrew Porter (director of operations and formerly the 12th respondent) attaching a document headed ‘ Transport Logistics - Proposed Restructure Key Issues’ [263-266]. In short, this was a proposal to restructure the division at the level of regional operations manager and area manager.

[32]On 30 November 2022, Mr Eastwood sent an email to Miss Richards to which was attached a document headed ‘Business Case - First Bus Contract’. This set out changes to the Arriva contract in London i.e. a reduction of operation managers from four operations managers to two account managers; and the creation of a compliance manager [268]. As stated, we find that there was some genuine desire to rearrange Bidvest’s management structure. However, we find that Bidvest seized upon the opportunity to manage the claimant out of the business.

[33]One of the difficulties with the respondents’ case is that we find there was insufficient evidence to link the claimant with any perceived inefficiencies in the existing Arriva contract structure. When the case resumed on 15 December 2025, the Tribunal was provided with two extra bundles, one of which contains additional disclosure [SB2] which comprises 310 pages (including a copy of a contract improvement plan [SB1- 302 to 310]. The appearance of this document had been prompted by our observations as to the way in which the parties had engaged with standard disclosure up to that point.

[34]At [SB2-147 to 290] are copies of contract review presentations which were used by Bidvest to demonstrate its performance to its client, Arriva. The documents are for the period February to May 2022. They contain references to performance related data, both for the north and south regions, and for the individual garages. We were told by Mr Middleton and Mr Thomas that this data was not an appropriate metric by which to measure the performance of the operations managers (OM’s). We did not accept this evidence. It was clearly used by Bidvest to demonstrate its own performance under the contract. Indeed, it was the same BCES (Business Customer Experience Survey) data which had been referred to by Mr Eastwood as one of the measures of the performance of OM’s.

[35]We were also provided with a further copy of the document at [252](an email from Paul Eastwood) but with the attachment (which had been excluded from the main hearing bundle). The attachment is an extract from one of the BCES tables. We were told that there was a website by which Bidvest could access BCES data, and that it could be presented in a number of ways and by references to several different metrics of performance. These included cleanliness of buses, quality of signage, and how drivers interact with customers. We did not accept, as suggested by Mr Middleton, that this was the managers self reporting. We were satisfied that the data was taken from reports by inspectors and/or mystery customers (as Mr Eastwood had explained to us). Mr Middleton was asked whether there was any other, more accurate, metric of the performance of garages or their managers. There was a very long hesitation when answering this question. Eventually he referred to “how it is going commercially’ or the level of sickness or absence. He also mentioned how much was spent on cleaning chemicals. In our judgment this was, at best, a vague answer. It certainly did not point us clearly in the direction of any better, more objective data, on the question of management performance in relation to garages and/or OM’s. Case Numbers: 3300672/2024 & 2213201/2024

[36]As a result of receiving this fresh BCES information, the Tribunal asked to be supplied with similar data for the performance of the garages for the period of July 2021 to December 2022. This was added to the main bundle at [1099-1116]. It was our view that the data did not not show a clear dividing line between the performance of the south as opposed to the north. The picture varied over time, as one might expect.

[37]For instance, throughout July 2021 to December 2021, the north out-performed the south. Then in January to March 2022, the south scored better than the north in terms of BCES. The north then did better again from April 2022 to December 2022, with the exception of July and December. In addition, when asked, Mr Thomas conceded that the claimant had responsibility for three of the best performing garages in March/April 2022 [SB2-203 to 204]. We were also told my Mr Middleton that operating managers were appraised on a regular basis. It was noteworthy that we had not received any written appraisals relevant to the issues in the case. We were never shown any evidence of criticism from Arriva. There was certainly no evidence that it was identifying the south as the weakest region. It seems to us that this was another curious gap in standard disclosure in this case.

[38]In short, we find that the respondents failed to establish that the claimant was one of the weakest performers (as Mr Thomas put it in his witness statement) or that the south was habitually weaker than the north in performance terms. It is our view that the respondent chose to present the case in this way because it served its desired outcome i.e. to remove the claimant. The ‘Norwood’ and ‘Dartford’ Incidents

[39]On 23 March 2022, there was an incident at the Norwood site, which was one overseen by the claimant. In short, one of the engineers was under a bus when it was collided with by another reversing vehicle. It was agreed by all that this was a serious health and safety incident. Mr Storey had been parachuted into the Arriva contract in the light of this incident and the departure of Mr Ankara, who had been the key accounts manager. Mr Ankara had been moved to the Stagecoach contract, which had resulted in Mr Isaac Safo been transferred the other way, from Stagecoach to operations manager for the south. This all occurred in late March 2022. As health and safety advisor for the business, Mr Storey was appointed to address performance issues generally within the contract, but to specifically get on top of the Norwood incident.

[40]An investigation was carried out by a Mr Craig Tolhurst (operations manager). He produced a report which is at [232]. It found that the site manager, Estella Gonzalez, had failed to report the near miss or to complete a Bidvest accident report. She had been suspended (by the claimant), at which point the claimant had come into the garage as cover for her. This had occurred on or about 25 March 2022. The report was critical of the claimant on the basis that he had done little since he had arrived save for arranging for the shunter concerned to undertake drug and alcohol testing. Mr Storey provided a statement in which he was very critical of the claimant. It was alleged that shunters were still parking up the buses in the same areas in which the near miss had occurred. It was suggested that no safe systems had been put in place, and the shunter had not been suspended. Mr Tolhurst recommended that the claimant be subject to disciplinary action on 27 April 2022 [236]. This conclusion was based almost entirely on the information provided by Mr Storey. For his part, the Case Numbers: 3300672/2024 & 2213201/2024 claimant suggested that there had been some misunderstanding as to whether he or Mr Storey was to conduct the investigation. We were puzzle by the criticism of the claimant. He had been on site on a few days and had not been in charge when the accident occurred. It seems to us to be a disproportionate reaction by the respondent.

[41]On 6 May 2022, there was another incident, this time at the Dartford site, another one run by the claimant. There was a problem with a suspended member of staff been on site. There was a request made to the claimant to attend the site. However, he was not available to do so. There were varying accounts as to what happened, but Mr Storey suggested that the claimant lied as to his whereabouts and that he would be there in “40 minutes”. There was a suggestion that the claimant had not notified anyone that he would be off site. We note that there was some inconsistency between the account given by Mr Storey and that of Kurtis Uwadi [1092], which was explored by Mr Engelhardt-Sprack in cross-examination.

[42]On 7 May 2022, Mr Storey complained about the claimant and the events of the previous day [220-223]. He asked that the claimant be removed. He described a “calamity of issues with Greg plus blatant lies…”. On 8 May, the claimant made a complaint to HR about Mr Storey who he said had threatened to have him sacked on 6 May [224](protected act 3). We accept that Mr Storey made this comment. The claimant’s evidence is supported by the fact that Mr Storey was, at the time, trying to have the claimant removed from post in correspondence [221]. Of course, at the time the claimant made his complaint, he would have been obvious to the correspondence.

[43]The email from Mr Storey to Mr Thomas, which starts at [220], is instructive as to the motivation of Mr Storey. It makes several criticisms of the claimant’s management, not only in relation to the Dartford incident, but also about Brixton, and south Arriva as a whole. This is surprising because the BCES data suggested that in January- March 2022, the south was doing better than the north, and Brixton was the best performing garage under the contract for at least a similar period. We heard some evidence that the performance of Brixton was due to it being over-resourced, but this was a nuance which is not addressed or explained anywhere in the contemporaneous documentation. We were given little if any detail as to nature of the resourcing or the reasons for it. It seems to us to have amounted to a failure to credit to the claimant where it was deserved.

[44]So long after the event, and with limited contemporaneous documentation relating to the Norwood and Dartford incidents, it has been difficulty to make findings as to who may or may not have been culpable. This is the case not least because the respondent did not deal with any of the matters raised against the claimant by what might be regarded as a formal process. When asked, the respondent’s indicated a degree of puzzlement as to why Mr Tolhurst’s investigation report was not acted upon. There appears to have been no formal response to the report at all, notwithstanding that it concerned a serious health and safety incident, in which an employee’s life was purportedly placed in jeopardy.

[45]As for the Dartford incident, again there appears to have been no written response to Mr Storey’s complaint about the claimant. There was a meeting between Miss Richards and Mr Thomas (the recipients of the email) on Monday 16 May 2022 [220], instigated by Ms Richards. It has been difficult to ascertain what was discussed at that meeting, or the outcome of it. We do not accept the testimony we heard from Mr Case Numbers: 3300672/2024 & 2213201/2024 Thomas that the claimant’s grievance did not come up in conversation. We think it unlikely that there would have been a discussion the Dartford and Norwood incidents and not the claimant’s complaints about Mr Storey. Miss Richards sent a letter to the claimant on the same day acknowledging receipt of his grievance and inviting him to a hearing [227 and 229] which included Mr Thomas as the person who would be conducting the hearing (about which we were surprised given the complaint was in part about him). We therefore did not accept Mr Thomas’ evidence on this issue. Overall, we find that both Ms Richards and Mr Thomas were both deliberately evasive as to the nature of the discussion on 16 May 2022.

[46]There was also a conversation between Mr Storey and Mr Thomas about the former’s complaint at about the same time, in mid-May. We were told by both in evidence that Mr Thomas had, in effect, refused to discuss the question of removal of the claimant, and suggested that it be raised with HR. We were puzzled by this evidence, not least because Mr Storey had, by that stage, submitted his complaint to Miss Richards who was a co-recipient of the original email. Moreover, Mr Storey did not re-submit his complaint to HR after this discussion. What we are asked to accept by the respondent’s is that Mr Storey, Mr Thomas and Miss Richards just let the matter drop. We find this inherently unlikely. In so finding we have regard to the seriousness of the matters raised against the claimant (on any view), and the very obvious strength of feeling explicit in Mr Storey’s complaint.

[47]It was the Tribunal’s view that this strength of feeling was, in part, fuelled by Mr Storey’s past experiences with the claimant and Ms Alhassan. It is impossible to get to the bottom of the Norwood incident on what we have before us. However, it is clear that if the claimant was culpable, then there were others who it is likely should also have been the subject of an investigation. We have in mind the site manager, and the shunter. Mr Ankhara, the key account manager at the time, also had overall responsibility for the site at the relevant time. However, Mr Storey seemed to maintain a focus on the claimant which was, in our view, out of proportion to his likely contribution to cause of the incident, or any other health and safety breaches. It is our view that Mr Tolhurst was understandably influenced by Mr Storey as a senior manager, and health and safety advisor to the business as a whole.

[48]We find that Mr Thomas and Mr Storey were not credible witnesses. In general terms, we find that both gave evidence which was inconsistent and vague. They were often unable to provide straightforward answers to simple questions, to the point of being evasive. Our impression was that both seemed rather contemptuous of the proceedings and about having to explain themselves. We note in relation to Mr Storey that whilst giving evidence he was, as were another witnesses, warned not to speak to anyone about his evidence during the overnight break. However, on the following day, we learned that he had sent an email concerning his evidence to those instructed by the respondents (to Abbie Booth dated 13 October 2025). It invited a discussion about the dates of Ms Alhassan’s Tribunal claim, and went into further detail about his testimony on the point. No criticism attaches to solicitors who brought it to our attention. We regarded it as a worrying failure to comply with simple but important instructions by Mr Storey.

[49]As for the claimant’s own grievance, as stated, Miss Richards arranged for a hearing. However, the claimant failed to attend. In summary, he showed no further interest in the matter, despite being chased by Miss Richards on a number of occasions. It was the claimant’s own decision to abandon his grievance. The claimant was later to Case Numbers: 3300672/2024 & 2213201/2024 suggest that he had pulled out of making his complaint because he was afraid that he may be targeted [760]. In the light of the events addressed above, we accept that the claimant would have been cautious about pursuing matters at that stage.

[50]For the sake of completeness, there was a further complaint relating to a conversation on MS Teams in or around June 2022, which involved the claimant and Mr Thomas. This resulted in Mr Thomas criticising the claimant’s performance in robust terms in front of other colleagues. Both the claimant and Ms Alhassan (who overheard the meeting) took offence and the latter raised a grievance about it [248]. We find that this was surprisingly robust rebuke of a director of the company by a much more junior manager. Although Mr Thomas later apologised for the way he had expressed himself, we find that this criticism must have left an impression. Reduction of Claimant’s Garages

[51]Why does any of this matter? The claimant says that it explains what happens next. In or about May 2022, the claimant had removed from him responsibility for three of his five garages. The claimant viewed this as an example of less favourable treatment or a detriment. He alleges that this was an act of victimisation and/or discrimination. Responsibility for the garages was then transferred to Mr Isaac Safo, who was an operations manager who, until then, had worked under another of Bidvest’s contracts, namely Stagecoach. This left the claimant to manage two sites. We find that Mr Safo is black and of African origin, having a background from Sierra Leone. Indeed, we were told that he had competed for Sierra Leone in the Commonwealth Games.

[52]There is no audit trail for the removal of garages from the claimant, or at least none which has come to light by way of disclosure in this case. In the Tribunal’s view, this is an unlikely state of affairs. This change was no doubt important operationally. It is the respondent’s case that there were ongoing concerns about the performance of the south. A significant change in the management structure for that region ought to have generated some contemporaneous documentation. This evidential vacuum just happens to coincide with a similarly surprising lack of information as to the respondent’s reaction to the allegation made against the claimant arising out of the Norwood and Dartford incidents.

[53]The removal of garages was put to Mr Thomas during his testimony. He denied that he had made the decision but then said it would either have been him or someone working under him. He then said he was not sure if it was him. It was the Tribunal’s view that these answers were obtuse and evasive, not least because he then went on to accept that he had made the decision. Mr Thomas further explained that the Dartford and Norwood complaints had been a factor in the decision to take away garages, and that he had reduced the number of garages each operations manager had responsibility for, so as to help the struggling sites to focus. This was an interesting answer not least because none of these issues were addressed at the subsequent selection interviews.

[54]Mr Thomas was asked why we did not have a single document relating to this decision. He explained that this had been an operational decision (as opposed to a disciplinary decision), so there would not necessarily be any documentation to record the change. This seemed rather counter-intuitive to the panel. If there is no record of this type of change, then how do other keys actors know about it; and how is the change implemented; how did Mr Thomas follow up on the change? At the very least, Case Numbers: 3300672/2024 & 2213201/2024 one would have expected new terms of reference for Mr Safo and the claimant as to the nature and extend of their responsibilities. As stated, we were given nothing. It was not the first or last time that the Tribunal has had cause to doubt the thoroughness of the respondent’s record keeping, and/or the process of standard disclosure carried out by it.

[55]Mr Thomas went on to state that he had made the decision to reduce the claimant’s garages in conjunction with either Mr Storey or Mr Adeniji, who at the time would have been one of the operations managers for the Arriva contract in the north.

[56]It is the Tribunal’s judgment that the claimant had garages removed as a type of informal sanction, by way of a response to the Norwood and Dartford incidents, and the complaints that had been made by him, or on his behalf by his partner. In part, we make this finding in the absence of documentation which otherwise might explain the decision. We find that the lack of an audit trail lends considerable weight to the suggestion that this was the reason, and that the respondent has sought to conceal the fact. Settlement Agreement: First Offer

[57]Mr Storey left his role within the Arriva contract in June 2022, after only about two months, although he remained with Bidvest. Paul Eastwood joined Bidvest in or around the same month, as key account director.

[58]As stated above, Bidvest presented evidence, which we accept, that there was some sort of justification for costs savings and a restructure of the transport division. The stated plan was to to reduce the number of operations mangers from 4 to 2 account manager and a compliance manager. However, this sat uncomfortably with the fact that the number of OM’s had increased from 3 to 4 only in May 2022, with the transfer of Isaac Safo to the Arriva contract.

[59]At some point in late 2022, the claimant, and his colleague in the south, Mr Safo, were identified by Bidvest as the “weakest performers” of the four operations manager. This was the phrase adopted by Mr Thomas in his witness statement at paragraph 21. He stated in the same paragraph that “There had been continuous issues with the management of both Isaac Safo and Greg’s [the claimant] sites, whilst Chris Coker and Ozan Ali were considered to be performing well in their roles. It therefore made sense to have protected conversations with Greg and Isaac to explore if they were interested in going down the settlement agreement route before embarking on a redundancy process.”. What Mr Thomas failed to do was to go onto explain how specifically the weakest performers had been identified on this case

[60]We find that there was limited evidence of the claimant being one of the weakest performers. We heard from the respondents’ witnesses, to varying degrees, that the garages in the south performed less well than those in the north. There were also a few contemporaneous documents (already referred to in the section dealing with the ‘business case’) making second hand and fairly general observations about ‘issues’ in the south. However, there was a lack of objectively measurable evidence upon which a proper comparison of the relative performance of the OM’s could have been carried out at the time. Case Numbers: 3300672/2024 & 2213201/2024

[61]Mr Eastwood gave some evidence on this point. He came from a background of managing large transport related cleaning contracts. He explained that he found that the Arriva contract, worth about £12M, was too heavily staffed with operations managers. He had been previously involved with a similar sized contract where two operations managers had been effective. He also thought that management was lop sided, in that there were about 14 garages in the north, and 5 garages in the south, with two operations managers in each area. In his first few months he had carried out numerous visits to the garages in the region. He had done this in the company of the chief engineers from Arriva. He said he had found poor organisation and people sat around doing nothing. Thornton Heath, run by Mr Safo, had been particular bad. Mr Safo had gone off sick shortly after Mr Eastwood’s visit.

[62]In the various emails already referred to, Mr Eastwood had not made specific reference to issues with the claimant. However, he told us in evidence that he had intended to put the claimant on a performance improvement plan (PIP). This did not happen as it was decided to offer the claimant a settlement agreement. However, it still remained unexplained as to how it had been concluded that the claimant was one of the weakest performers.

[63]There is reference in the email at [254] to the claimant being on a PIP in July 2022. However, we have not been shown this document. Nobody appears to have any knowledge of it from the respondents (including Mr Eastwood), and the claimant denies that he was subject to a PIP. On balance, we find that the claimant was not the subject of a PIP.

[64]In addition to his own experiences of the business, Mr Eastwood also explained that he used data to assess the relative performance of the operations managers. This involved mystery shopping data which he called BCES. In this way, vehicles could be assessed by reference to their cleanliness. We were told that the south were, by this metric, performing worse than the north. At time when Mr Eastwood gave his evidence, we did not have access to the BCES data. When it did materialise, the picture it painted did not support Mr Eastwood’s testimony. Beyond this data, the evidence relied upon by Bidvest in identifying the ‘weakest performers’ seemed to have a largely anecdotal feel about it.

[65]There were other anomalies to the way the respondents had approach the assessment of the relative performance of the OM’s. Mr Safo had only been assigned to the Arriva contract in May 2022. There had therefore been limited time to assess his effectiveness in the role. He could hardly be held culpable for any perceived historical failings in the south. The same applies to Mr Coker who had only recently been assigned to the OM role, when ever that might have been. As such, he could hardly take credit for the comparative success of the north, if it was the case. We note that at [252], Mr Eastwood talked about having been impressed by Mr Ali but went on to state that “I know there has previously been negative overtures but I can only speak as I find”. We were not able to find out anything further about these “negative overtures” and they appeared not to have been taken into account when assessing Mr Ali’s relative performance.

[66]We were told by Mr Thomas that none of the four operations manages had disciplinary histories. However, we were not presented with any documentary evidence of this. Neither have we seen copies of the personnel files for the four OM’s. Even from the limited documents that we have, it was clear that there were problems Case Numbers: 3300672/2024 & 2213201/2024 in the north as well. There were clearly issues, some of which were health and safety related, in places like Tottenham [254], Wood Green, and Clacton [255].

[67]In our judgment, the respondents have failed to establish that in December 2022, the claimant was one of the two weakest performers. If it was the case, then there ought to have been a wealth of evidence demonstrating the fact. In the absence of such evidence, we infer that such evidence does not exist, or that it does not support the respondents’ case on this issue. As stated above, we were latterly provided with further BCES data. However, at best from Bidvest’s point of view, it paints a mixed picture in terms of the relative performance of the claimant’s garages.

[68]Moreover, in December 2025 when the hearing resumed, Mr Thomas told us that he had taken into account the BCES data when he identified the claimant as being one of the weakest performer. He explained that he looked at the BCES data on a daily basis and that they were central to how Bidvest managed bus contracts. However, there is no contemporaneous record of him referring to such data. Neither did he refer to it in his witness statement or his oral testimony in October. It was only when Mr Eastwood mentioned it, and when the BCES data was disclosed, was he minded to make mention of it at all. We find Mr Thomas’ evidence to lack credibility on this issue. It was our impression that he was tailoring his evidence to suit the changing landscape of the case.

[69]Indeed, the only reference to BCES in the respondents’ evidence at all was at [252]. Of course, the attachment had been left out of the bundle initially and added during the break between October and December. We also note that there had been no attempt to performance manage either Mr Safo or the claimant. If performance really was the issue, then this failure is a significant deviation from good practice.

[70]We also have regard to the apparent deviation from Bidvest’s own redundancy policy, mirrored as it was by the proposal made by Mr Eastwood [268]. It was a surprise to the Tribunal that witnesses from the respondent so readily accepted that the redundancy policy had not been fully complied with. Mr Eastwood accepted that Bidvest’s policies (presumably including that relating to redundancy) had played no part in his decision making. In particular, we note that the policy and proposal required that those at risk be offered voluntary redundancy. This did not happen in this case. We were offered no explanation as to why this option had been ignored by the relevant respondents. The offer of a settlement agreement is not the same as voluntary redundancy, and was not part of the policy. It was our view, that in this respect, and others (see below), that Bidvest and its managers unreasonably failed to properly apply the relevant redundancy policy.

[71]As stated, the claimant attended a meeting with Mr Thomas on 7 December 2022. The script for that meeting appears at [654]. We accept that the meeting started with the claimant being invited to have a protected conversation i.e one which could not be relied upon by the parties at a Tribunal. It is plain that the claimant was given no notice that this, or the offer of a settlement agreement, might be raised at the meeting. We accept that the claimant was unaware of an impending redundancy scenario in which he might be at risk. We also find that the claimant had little, if any awareness of the significance of a protected conversation. He was given no opportunity to take legal advice. Furthermore, we find that there was no legal dispute in existence between the parties at the time. There was no outstanding grievance or disciplinary matter between the claimant and Bidvest. Case Numbers: 3300672/2024 & 2213201/2024

[72]The Tribunal also finds that the content of this script in terms of the reasons for offering the settlement is inconsistent with the reasons given by the respondents’ witnesses. We were told that it was motivated by cost savings, and also by a need to mirror the management changes within Arriva. The script only mentions that the latter of those two issues. We accept the evidence that the content of the paragraph headed “option 2…” was not read out or anything below it.

[73]It is alleged by the claimant that he was told at this meeting by Mr Thomas that if he did not accept a settlement agreement that he would be managed out of the business. Mr Thomas vehemently denied this suggestion. He told us that he had simply read from the script. On this important issue, we accept the evidence of the claimant. Having listened to the evidence in this case carefully and scrutinised the approach adopted by Bidvest in terms of management, that it is entirely consistent with its approach that this comment would have been made. It is the Tribunal’s impression that Bidvest, and Mr Thomas in particular, encouraged an ‘informal’ approach to these sorts of issues. It is in keeping with how the claimant had been dealt with in terms of the removal of garages i.e. as a way of circumventing the need to apply their disciplinary policy. The meeting on 7 December was about circumventing the need to go through a redundancy policy. We are satisfied that Mr Thomas, Mr Storey and Mr Eastwood had, at least in their own minds, identified the “weakest performers”. It remained only to ensure that it was Mr Safo and the claimant who were the ones to be dismissed.

[74]In Mr Safo’s case, we are satisfied that he was transferred from the Stagecoach contract to Arrriva with a view to dismissing him as part of the Arriva restructure. It otherwise made little if any commercial or operational sense to have increased the number of operations managers in respect of the contract in which they were about the cut the number of heads, freeze recruitment and prune down the number of operations managers. We saw no evidence as to Mr Safo’s performance as operations manager within Stagecoach which belies the suggestion that the offer of a settlement agreement and the termination of his employment was performance orientated. In short, we find that Mr Safo was ‘managed’ out of the business, in the same way that Mr Thomas warned would happen to the claimant if he did not sign a settlement agreement.

[75]Immediately after the meeting, the claimant indicated that he would sign the agreement [660]. Mr Safo signed his agreement a few days later [697]. However, in the claimant’s case, the agreement was never signed. There was some correspondence between the claimant and Bidvest, but events were overtaken by an injury that the claimant sustained on Christmas Eve. He fractured his wrist. There were some complications to the injury, although the Tribunal remains puzzled as to why this injury kept an operations manager (engaged primarily in non-physical work) on sickness absence for what was in the region of 6 months. Even in June 2023, when we were told the claimant was fit to return to work, he did not actually go back to work until September 2023. It maybe that it was viewed as convenient for both parties that he was not at work, albeit being paid (for the most part at least). We also acknowledge the letter at [281] which talks about work related stress consultations with his GP. We do not need to make findings about this for the time being, save to say that there was a hiatus in the relevant timeline for several months. Settlement Agreement: Second Offer Case Numbers: 3300672/2024 & 2213201/2024

[76]At [285], there is an email from the claimant to his employer explaining that his sick certificate finishes in June 2023, and that, in effect, he was ready to sign the settlement agreement. It seems likely that there was other contact prior to this between the claimant and Bidvest. No doubt the previous warning of Mr Thomas was still an active one in the claimant’s mind, as was the way Mr Safo had been managed out of the business.

[77]On 14 August 2023, there was another meeting about a settlement agreement involving the claimant, but this time chaired by Mr Eastwood. The format of the meeting appears to have mirrored the previous iteration conducted by Mr Thomas in that there were a written script to be read out, which was in very similar terms [727]. The offer of settlement was less generous, excluding as it did a full months pay, and less holiday entitlement. No explanation had been provided for this. Interestingly, ‘Option 2’ no longer makes mention of voluntary redundancy. No explanation was offered about this.

[78]We find that the claimant was told that he had until 16 August to indicate whether he remained interested in signing a settlement agreement, and if so, to provide details of his nominated solicitor. We think that the claimant misunderstood this instruction [739]. The claimant seemed to believe that he had been giving 48 hours to agree to the settlement, which we find was clearly not the case since the written agreement had not been sent to him, and he had been told at the meeting that the approval of solicitors was a precondition of the agreement. Moreover, Bidvest had agreed to pay £500 towards the fees for obtaining such advice from a lawyer. The deadline was subsequently extended to 18 August.

[79]On 18 August 2023, the claimant’s solicitors (TMP) sent an email to Bidvest complaining of the short period within which to consider settlement, and that this might amount to unlawful victimisation [739]. There was a further email on 21 August [740], which further raised the speed of events, the lack of explanation for the proposed termination, and the status of the ‘protected’ conversations’.

[80]The proposed settlement agreement was attached to an email from Bidvest to the claimant’s solicitors on 23 August, giving until 29 August for acceptance. This amounted to a period of 14 days post the meeting of 14 August. In any event, matters were permitted to drag on. Mr Eastwood chased the claimant’s response to the issue on 8 September [747]. No specific deadline was put in place in this email. His solicitors responded on 12 September to say that a substantive answer would be forthcoming that week [749]. Mr Eastwood respondent by imposing deadline of 13 September [750].

[81]TMP replied on the following day [751] by email marked “Without prejudice save as to costs”. In that email, they stated that the circumstances of the 7 December 2022 meeting and the reasons for making the settlement offer appeared to relate to complaints made by the claimant in May 2022 “concerning discrimination and victimisation”. She further asserted that the respondents had committed an act of victimisation in relation to the offer of a settlement agreement. It also raised other complaints including: the lack of an explanation for the redundancy situation; the lack of consultation; the lack of discussion about alternative roles; and whether his current job still existed i.e. his role of operations manager under the Arriva contract. This final Case Numbers: 3300672/2024 & 2213201/2024 question was especially pertinent as the claimant was on the verge of returning to work. But it was unclear whether his role still existed to return to.

[82]On 15 September 2023, Paul Eastwood wrote an email to the claimant explaining that offer of settlement had been withdrawn on the basis that it was clearly not his intention to sign such an agreement. He was told that his return work would be immediately facilitated. He was asked to attend Thornton Heath garage on 18 September 2025, the following Monday. The email did not address any of the questions posed by TMP’s previous email.

[83]TMP responded on the same day by email [755]. It stated:

“Without prejudice save as to costs”, and expressed the view “that the treatment in trying to dismiss him via a sham redundancy reason is the last straw in a long line of mistreatment. He considers that his employment contract has been fundamentally breached as he has lost trust and confidence that he will be treated fairly and equitably, free from race and sex discrimination if he returns to work.”

That email also referred to “his race discrimination claim”. The email ended:

“My client is still willing to try and settle his complaints to avoid tribunal proceedings. If the company is unwilling to negotiate a proper settlement, then it is highly likely that my client will officially terminate his employment and bring tribunal proceedings.”

[84]The email also repeated some of the history and suggested that the claimant had been subjected to a sham redundancy situation. It also mentioned an occasion when Mr Eastwood is said to have called another black member of staff a “donkey”. It was suggested that this person had been paid a sum of money to leave Bidvest, and that this was a recurring theme. It was suggested to us by Mr Eastwood that this was a complaint which had been originally made about him by a member of staff called Bernard (we are not clear whether this was his first or second name). In any event, the allegation was investigated at the time. The outcome was the it was accepted that Mr Eastwood had told Bernard that he was not prepared to do his “donkey work”. Any suggestion of race related harassment was not upheld. We accept this evidence. It appears that Bernard had told the claimant about this during his sickness absence (the claimant could not be more specific about the timing) and had decided to pass this on in September 2023. Claimant returns to Greenford

[85]The claimant was asked to return to work at the Garage at Greenford on 21 September 2023, which was a site under another Bidvest contract namely Metroline [965]. We find that this was, at least in part, the result of the clamant’s complaint about Mr Eastwood i.e. discrimination. Mr Eastwood also gave evidence, no doubt related, that the claimant had expressly told him that he did not want to come back to work under him. We also find that the claimant going back to work at Greenford, and not his actual role, was Bidvest recognising that matters had moved on since December 2022. The change proposed by Mr Eastwood in July 2022, i.e. the move from 4 to 2 operations managers, had in practical terms already happened. Mr Safo had been dismissed, and the claimant had been absent for nearly 9 months. It is the Tribunal’s judgment that by the time the redundancy process began in October 2023 that this aspect of the proposed change to the structure of the business had already happened. Accordingly Bidvest refused to reintroduce the claimant into his own role of OM within the Arriva contract. This was notwithstanding the fact that Mr Coker only occupied one of the other OM roles on a temporary basis. In our judgment, it was Case Numbers: 3300672/2024 & 2213201/2024 further evidence of the claimant being managed out, and of the predetermined nature of the consultation process that was about to begin.

[86]As stated, the claimant commenced work at the Greenford site, working under Ms Stoimenova. We accept that he had one garage to oversee. The claimant was never offered any permanent alternative employment with Bidvest, either on the Metroline contract or any other.

[87]Miss Richards wrote back to the claimant on 15 September indicating that an investigation of these matters would take place conducted by an independent manager. On 25 September 2023, Ms Mauge (fifth respondent and People Change Advisor) held a meeting with the claimant. The notes of the meeting are at [759-760]. Ms Mauge accepted that the claimant raised a number of complaints including that Mr Storey was chasing him out and making him redundant. He also mentioned Ms Alhassan’s sex discrimination claim leading to victimisation (protected act 13). Ms Mauge further stated that she had not referred to Ms Alhassan or victimisation in her witness statement because she couldn’t see how it correlated to the claim. At the conclusion of that meeting, the claimant had stated that he was not sure at the time if he wanted to go ahead with a formal grievance. Redundancy Process Commences

[88]In late September 2023, Bidvest announced that it was to restructure the Arriva contract. The draft announcement is at [293]. It outlines the change to 2 operations managers. The proposal for a compliance manager had gone. This was never explained, although we were told that one was recruited shortly after the claimant’s dismissal. It also states that these proposals “are all clearly subject to consultation”. We do not agree. This statement ignores the apparent and harsh realities so far as the claimant was concerned. 12 months before he had been identified as one of there two weakest performers. He had been off work for several months. His job was patently no longer available to him, as demonstrated by his return to Greenford. The change to two operations managers had obviously already occurred. In our view, there was little to consult about in terms of the restructuring, and this must have been apparent to the claimant.

[89]The claimant was sent an email on 4 October 2023 by Mr Eastwood formally putting him at risk of redundancy [295]. It repeats the intention to consult, as well as to assess whether there were any alternative employment opportunities for the claimant. This is an express part of the first respondent’s redundancy policy [180], which highlights that it is the role of the employer and the employee to look for alternative roles. It is our view that there was no intention on the part of the respondents to actively and genuinely engage in the redeployment of the claimant. The sending of lists of vacancies to the claimant amounted to insipid compliance with the policy at best.

[90]The letter of 4 October 2023 had attached to it an ‘expression of interest form’ requiring the claimant to indicate his intention to apply for the position of operations manager on the Arriva contract [297]. We note that the claimant never returned this document. However, Bidvest nonetheless put the claimant forward for consideration for the post [306].

[91]Also attached was a redeployment form which asked him to set out the parameters of his search for alternative vacancies within Bidvest [298]. As far as the Tribunal is Case Numbers: 3300672/2024 & 2213201/2024 aware, the claimant did not return the form, and did not apply for any of the positions highlighted in a list of vacancies sent to him by Bidvest during the ensuing process. We accept that this was largely because the claimant realised that he was being managed out of the business.

[92]On 10 October 2023, TMP sent an email to Bidvest which ask it to put the redundancy process on hold whilst the claimant lodged a grievance against the decision to put him at risk [301], which it was suggested amounted to unlawful discrimination and victimisation. All three of the candidates for the role of operations manager were invited for interview on 12 October 2023. Mr Ali and Mr Coker were interviewed on that day. They were interviewed by Mr Edward Carter (8th respondent and compliance manager); Ms V Stoimenova (former key account manager); and Ms Laura Mauge (5th respondent and People Change Advisor). The notes from these interviews (in so far as we have them) are to be found in the supplemental bundle [SB3] which was provided to the Tribunal on 8th day of the hearing.

[93]This was prompted by Mr Carter himself, who during his testimony, had great difficulty reconciling his recollection of the procedure adopted at the interviews with the documents he was being shown in the main bundle. Mr Carter recalled that all three interviewers had made their own notes, and arrived at their own scores for each of the candidates. They had then discussed the matter and arrived at a consolidated score for each candidate. In the main bundle, there was only one set of notes in respect of Mr Ali and Mr Coker [313-334]. Moreover, although there were three sets of notes in respect of the claimant [336-370] and the supplemental bundle, the scoring appeared to be the same in each.

[94]On 12 October, TMP repeated the allegation that the redundancy process was a sham, that it amounted to discrimination, and that the email was a protected act and a protected disclosure under the relevant provisions of the ERA [333]. As a result, the claimant’s interview was rescheduled to 18 October, which he attended. At the outset of the meeting, the claimant read out his own statement which again suggested that the process was a sham and amounted to victimisation (protected act 14).

[95]Mr Carter and Ms Mauge were cross-examined about the format of the interviews. We listed very carefully to their evidence which was, at times, quite confusing, especially that of Mr Carter. The latter had continued his evidence on 15 December 2025. It was the effect of his testimony on the second occasion that the three interviewers had not come to their own scores separately. They had made their own notes of the answers but had arrived at only a collective score. This was consistent with Ms Mauge’s evidence but inconsistent with what he had told us back on October (see above). We note that Mr Lyons (who conduct the appeal against the redundancy decision) appeared to have been told that there were three individual scores which were collated to produce a single result [604]. We infer that Mr Lyons got this information form Mr Carter. It was very unsatisfactory evidence.

[96]Ms Mauge was asked about her experience. She explained that she had started working for Bidvest in March 2023. She had worked in an administration based job prior to that. She had no HR qualifications and almost no experience at the time of the redundancy process. It was the first time she had been involved in the interviewing of candidates. We were at a loss as to why such an inexperienced member of the team would have been allocated such a potentially problematic assignment. Case Numbers: 3300672/2024 & 2213201/2024

[97]Ms Mauge was asked why there appeared to have been no follow ups to the scripted questions during the claimant’s interview but had been for the other two. She accepted that it was the case but could provide no explanation. She accepted that it would have been an advantage for the other candidates.

[98]It was interesting to note that during her evidence, Ms Mauge made several references to things being done differently now. It was our clear impression that she took a rather dim view of some of the practices that had taken place back in 2022- 2023. In particular, she said there would now be paperwork supporting the business case for the redundancy, and bolstering the consultation process. She admitted that there had been no consideration of moving the claimant to another part of the business, as with Mr Ankara. She also stated that there had been no role for him at Greenford, under the Metroline contract. He had been brought in to support the the compliance manager. She suggested that there were no operations managers, because the structure was difference for that contract.

[99]The claimant was invited to a second consultation meeting on 25 October 2023 [374], as were the other two candidates. This was to be conducted by Mr Carter in the claimant’s case. Meetings for the other two candidates were to be conducted by Mr Eastwood. The notes of these meetings (such as they are) appear at [393 to 399]. The meetings in respect of Mr Ali and Mr Coker went ahead. They were told that they had been successful on 25 October.

[100]The claimant’s second meeting was ‘postponed’ [400] pending the outcome of his grievance (email from Ms Mauge dated 26 October). As the email puts it, the aim of this was to maintain a fair and unbiased grievance. Of course, there is no mention that the only two available OM roles had already been given to the other candidates. Ms Mauge was asked about this i.e. that the claimant was told the consultation process had been paused the day after Mr Ali and Mr Coker had been informed they had been successful in the redundancy process. We were surprised that she refused to concede the inherent absurdity of this. In our judgment, this amounted to evidence that she too was aware that the claimant was being managed out of Bidvest, and that she was knowingly playing a role in this, in the sense that she active misled the claimant into believing that the process had been delayed pending the outcome of his grievance. We accept her evidence that she was told to do this by Ms Richards, who also must have known that such a step was disingenuous. Claimant’s Grievance

[101]Rory Pearce (7th respondent and Director of Operations (security division)) was appointed to deal with the claimant’s grievance, assisted by Mrs Nation (sixth respondent). This was heard on 9 November 2023 [402] having been rearranged from 1 November due to the claimant’s lack of availability. He had emergency leave from 1 to 3 November. It is not clear why. Partly as a result of this, Bidvest reversed it decision to ‘delay’ the redundancy process and opted to press on with it [404].

[102]The claimant’s written grievance was submitted on 6 November 2023 appears at [409](protected act 15). The copy in the bundle is redacted. No issue is taken about this by either party. In essence, the claimant alleged that his treatment was discrimination and victimisation, the result of his association with Ms Alhassan. It is in the clearest possible terms and is detailed. Case Numbers: 3300672/2024 & 2213201/2024

[103]When asked in cross-examination about his approach to the hearing, he stated “When I took the case, I thought he wasn’t victimised and that it was a fair process”. When asked about his understanding of victimisation, he stated “It means he has been treated differently to anyone else because of race, religion etc”. It goes without saying that there were serious shortcomings in his understanding of this important concept. We find that he failed to apply the EDI policy. It was put to him that there was no mention of policies in his witness statement. He appeared to accept that he had not applied them if they were not mention in his witness statement.

[104]Mr Pearce was then referred to the policy and the definition of victimisation within (which was correct). He then stated that he had applied the correct definition and the policy in a broader sense. We did not believe Mr Pearce. He was then asked if it mattered whether the complaint upon which the allegation of victimisation was based was resolved or not i.e. the subject of a settlement agreement of some sort. After a very long delay, he accepted that it did not matter, which seemed to run contrary observations he had made at the time. He was then referred to his outcome letter [794]. He accepted that there was no mention of victimisation. In our view, this was significant given how central it was to the claimant’s grievance.

[105]Mr Pearce was then asked questions about his interviews of Mr Thomas and Mr Eastwood. He was asked why he had not challenged Mr Thomas as to the reasons why the claimant had been dismissed. In particular, it was suggested to him that if the claimant was correct, that Mr Thomas would simply give him the ‘sham’ reason. Mr Pearce responded “No. Why should he. He gave me the reasons for the redundancy……He had been in the business along time and was experienced. Where was the evidence of a sham! If he had been aware of discrimination, then he would have put it forward.”. It seems to us that this demonstrated too much deference towards Mr Thomas in the context of the process Mr Pearce was undertaking and too little regard to the possible presence of bias on the part of Mr Thomas, unconscious or otherwise.

[106]Mr Pearce went on to concede that he had not interviewed Mr Storey because he had thought that Mr Thomas and Mr Eastwood were the main issues. He said he prioritised the issues raised by the claimant in the meeting above those raised in the documents. When asked about this, Ms Nation said that it was their view that Mr Storey had not been involved in the Arriva contract and that there was no evidence to suggest that he had been part of the process.

[107]In relation to the complaint of discrimination against Mr Thomas, Ms Nation explained that there had been no examples given by the claimant of how the discrimination had taken place (this was a reference purely to what had bene said at the meeting). She said they could have explored further if he had. She accepted that there was no mention of victimisation being put to the people they had interviewed. She said they had not been able to investigate the circumstances of being offered a settlement agreement because it was a protected conversation. She said she had been a HR consultant for 25 years although she had joined at about the same time as Ms Mauge. It was our view that Mr Pearce and Ms Nation had given lip service at best to the content of the grievance, and appear to have gone to some lengths to justify not addressing even its primary complaints. Case Numbers: 3300672/2024 & 2213201/2024

[108]Ms Nation was referred to [SB2-48] where it had been suggested by her to Ms Mauge on 21 November 2023 that this was a high risk case. She said she had no idea to what the email had been referring. It was our view that it was perfectly clear what the email meant i.e. that there was a high likelihood that the claimant’s circumstances could turn into an Employment Tribunal claim. We find that it was therefore very surprising that Ms Mauge had been allocated the case, given that it had been her first redundancy interview process. I asked Ms Nation why, if so, Ms Mauge had been allocated the task. She responded that she couldn’t say because she didn’t work for her.

[109]In keeping with all of the other of the respondents who gave evidence, we had no documentary evidence as to the training Mr Pearce and/or Ms Nation had had in relation to grievance and/or disciplinary processes, or in EDI matters more generally. It was suggested by Bidvest that there was no central record of employee training of any sort. We did not accept this evidence. Bidvest operates contracts in a health and safety rich environment. We had been told about the concerns re. the near miss incidents in garages. Was it really suggested that there was no record of what health and safety training staff had received? We also note that it had been Ms Richards’ initial recollection that the company did keep such records, although she was to later resile from this position.

[110]Mr Pearce said he had had online training which was refreshed annually. It was all rather vague. If he had received adequate relevant training, which we doubted, he did not demonstrate a basic level of knowledge of employment law related issues before us, particularly with regards to conducting an investigation of a grievance, or as to what the definition of victimisation might be.

[111]Miss Richards indicated that the claimant should attend the second consultation meeting on 6 November 2023. The claimant attended the meeting with Mr Carter and was told that his employment was to be terminated. The outcome is set out in a letter dated 8 November 2023 [432]. He was given 8 weeks notice which was due to expire on 5 January 2024. Mr Ali and Mr Coker were informed of the outcome of the redundancy consultation by letter on 21 November 2023 [454-455]. Appeal against Grievance outcome

[112]On 14 November 2023, the claimant appealed against the decision to make him redundant. His appeal is at [437-438]. We are satisfied that this appeal was sent to Andrew Porter in error. We are satisfied that Mr Porter never agreed to deal with the appeal (see [439, 452, 969]). Mr Porter was therefore never involved in matters relating to the claimant. We have therefore dismissed the claim against him, upon withdrawal by the claimant. This was dealt with by way of a separate judgment.

[113]By letter dated 30 November 2023, Mr Pearce notified the claimant that his appeal against the dismissal of his grievance had been unsuccessful [795]. The claimant appealed to Mr Middleton [470]. The appeal was heard on 18 December 2023 [838]. We heard at length from Mr Middleton as to his conduct of this appeal. He accepted that he had conduced the hearing not as a rehearing, but had simply reviewed the issues that the claimant had raised at the hearing. Upon being questioned, he accept that this was not a restriction placed upon him by the grievance policy [171]. Case Numbers: 3300672/2024 & 2213201/2024

[114]Mr Middleton was referred to the grievance letter [761]. He said he had not read it for two years. We found this disappointing, given his role as a witness in this claim. In particular, he was referred to the statement that the claimant had read out at the original grievance hearing which highlighted victimisation and harassment, as well as the allegation that the redundant was a sham. It was Mr Middleton’s evidence that someone else had dealt with redundancy issues, and that he could not recall himself investigating whether the redundancy had been a sham. When asked about this, Mr Middleton asked “How do I go about investigating that. I need him [the claimant] to point me in the right direction”.

[115]What he appeared to suggest to us was that the parameters of his investigation were set by what the claimant raised in the meeting itself, and not by the matters raised in the original grievance and/or the appeal letter. With respect to Mr Middleton, we do not agree with his understanding of his role. In our judgment, it was clear that the claimant was raising issues of discrimination and associated victimisation. In essence that he was being made redundancy in part because of his partner’s claim against Bidvest and others, and that redundancy was a subterfuge to disguise the alternative motivation. In those circumstances, we are at a loss to understand how Mr Middleton could have omitted to have investigated the ‘sham’ element of the grievance. It was our view that there was a lack of investigation of the matters raised by the claimant, and a failure to adequately challenge what Bidvest’s managers said about the redundancy. It was clear to us that Mr Middleton was too ready to accept the veracity of his colleague’s evidence, as opposed to the claimant’s. For instance, Mr Middleton had not asked any questions of Mr Thomas as to why he had invited only the claimant and Mr Safo to discuss a settlement agreement. There had been no critical assessment of the selection of those two as the weakest performances amongst the other operation managers. Mr Middleton suggested to us that the claimant had not raised this as an issue. We do not accept this is correct, if one has regard to the grievance as a whole.

[116]Mr Middleton was referred to the notes of his interviews with Ms Richards, Mr Thomas, Mr Eastwood, and Ms Mauge [540-547]. He conceded that there was no reference to victimisation in any of the notes. We appreciate the difficulties associated with raising these issues with senior management, but that does not excuse ignoring the matter. He went on to concede that he had not been aware that the claimant was in a relationship with Ms Alhassan. We think this state of mind impossible if he had approached his task fairly i.e. with an open mind and having read all of the relevant documentation.

[117]When asked by the panel about how he had probed the evidence of the people he had spoken to, he explained that he knew Mr Storey and therefore knew of his character. He said he could not see any evidence that Mr Storey had made a threat to the claimant other than the claimant suggesting it. He said he knew Mr Storey better than the claimant and had used knowledge of their characters to assess the credibility of their answers. It was our view that this was an obvious bias which acted unfairly to the detriment of the claimant.

[118]Mr Middleton has been criticised for delaying the outcome of the appeal. We do not agree. The appeal was lodged on 5 December and the hearing took place on 18 December 2023. He then interviewed a number of people on 3 January 2024. The outcome letter was emailed to the claimant on 4 January 2024 [551-557]. Given that the Christmas period interfered with the process, it cannot be said that the decision Case Numbers: 3300672/2024 & 2213201/2024 was delayed. Indeed, we would question how a written decision could have been delivered the day after interviewing three of the main subjects of the grievance. Further, we find that throughout the process, the respondent failed to grapple with the grievance raised by the claimant related to the redundancy process. Through his solicitor, he had been alleging that it was a sham since August 2023. There is no formal process until the end of October. Further, that during the hearing and appeal, the respondents refused to address the issues raised in any meaningful sense.

[119]On 15 December 2023, the claimant’s appeal against the redundancy decision was heard [802-837]. This was chaired by Chris Lyons. He was assisted by Mr Morgan Dean (HR). The outcome of the appeal can be found at [602].

[120]We accept that post his dismissal, the claimant was provided with vacancy trackers. We also find that the claimant did not apply for any other alternative posts with Bidvest. It was our view that this did not represent sufficient engagement in the process of redeployment so far as Bidvest was concerned.

[121]The claimant’s final day of employment with Bidvest was on 5 January 2024.

[122]The Tribunal claim was lodged on 18 January 2024. The parties engaged in early conciliation with ACAS on 18 December 2023. ACAS issued the early conciliation certificate on the same day [19]. Legal Framework Direct Discrimination

[123]The relevant legislation in respect of the allegations of direct discrimination is contained in the Equality Act 2010 (“the Act”).

[124]Race is a protected characteristics as defined by section 4 of the Act. Sections 39 and 40 prohibit unlawful discrimination against employees in the field of work. Section 39(2) provides that:

“An employer (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; or (d) by subjecting B to any other detriment.”

[125]Direct discrimination is defined in section 13(1) of the Act as “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”.

[126]Section 136 of the Act provides that:

“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”

. Case Numbers: 3300672/2024 & 2213201/2024

[127]The application of those principles was summarised Madarassy v Nomura International plc

[2007] ICR 867

, which applied Igen v Wong

[2005] 3 All ER 812

which stated:(a) In every case the Employment Tribunal has to determine the reason why the claimant was treated as he was. In most cases this will call for some consideration of the mental processes (conscious or subconscious) of the alleged discriminator.

(b) If the Employment Tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial.

(c) Direct evidence of discrimination is rare and Employment Tribunals frequently have to infer discrimination from all the material facts. The courts have adopted the two-stage test. The first stage places a burden on the claimant to establish a prima facie case of discrimination. That requires the claimant to prove facts from which inferences could be drawn that the employer has treated them less favourably on the prohibited ground. If the claimant proves such facts then the second stage is engaged. At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground. If they fail to establish that, the Tribunal must find that there is discrimination.

(d) The explanation for the less favourable treatment does not have to be a reasonable one. In the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation. If the employer fails to provide a non-discriminatory explanation for the unreasonable treatment, then the inference of discrimination must be drawn. The inference is then drawn not from the unreasonable treatment itself - or at least not simply from that fact - but from the failure to provide a nondiscriminatory explanation for it. But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, the burden is discharged at the second stage, however unreasonable the treatment.

(e) It is not necessary in every case for an Employment Tribunal to go through the two-stage process. In some cases it may be appropriate simply to focus on the reason given by the employer (“the reason why”) and, if the Tribunal is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test.

(f) It is implicit in the concept of discrimination that the claimant is treated differently than the statutory comparator is or would be treated. The determination of the comparator depends upon the reason for the difference in treatment. The question whether t

[128]It is not an error of law for the Tribunal not to identify a comparator of any kind, so long as it addressed the core question of ‘why’ the complainant was treated in the manner complained of’ (Igen Ltd v Wong

[2005] EWCA Civ 142

, CA, at para 34). Harassment

[129]Section 26 of the Equality Act 2010 provides, insofar as is relevant :

“(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (2) A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(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— … race; … sex;…”

[130]Section 27 of EqA provides, insofar as is relevant: Case Numbers: 3300672/2024 & 2213201/2024 “(1) A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;

(d) making an allegation (whether or not express) that A or another person has contravened this Act. (3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. (4) This section applies only where the person subjected to a detriment is an individual. (5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.”

[131]Victimisation is also made out where an employee is subjected to a detriment because of a protected act by another employee, known as ‘associative victimisation’ (Thompson v London Central Bus Co

UKEAT/0108/15/DM

[132]Section 112 of EqA further provides, insofar as is relevant :

“(1) A person (A) must not knowingly help another (B) to do anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or (2) or 111 (a basic contravention). (2) It is not a contravention of subsection (1) if— (a) A relies on a statement by B that the act for which the help is given does not contravene this Act, and (b) it is reasonable for A to do so. … (5) For the purposes of Part 9 (enforcement), a contravention of this section is to be treated as relating to the provision of this Act to which the basic contravention relates….”

[133]Section 103A of the Employment Rights Act 1996 (‘ERA96’) provides :

“An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”

[134]Section 43B ERA96 further provides that:

“(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, [is made in the public interest and ]2 tends to show one or more of the following— … Case Numbers: 3300672/2024 & 2213201/2024 (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, … (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. … (4) A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.” (5) In this Part “the relevant failure” , in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).”

[135]The relevant case law in relation to unfair dismissal is to be found in the Employment Rights Act (“ERA”) 1998 at section 98:

“(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (ba)…. (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. (3) In subsection (2)(a)— (a) “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and (b) “qualifications”, in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held. Case Numbers: 3300672/2024 & 2213201/2024 (4) [ Where ] 2 the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”

[136]The reason for dismissal is the set of facts known to the employer or beliefs held by it which cause it to dismiss the employee (Abernethy v Mott, Hay and Anderson

[1974] ICR 323

), or, in other words, the factor or factors operating on the mind of the decision-maker which cause them to make the decision to dismiss, or alternatively what motivates them to do so (Jhuti v Royal Mail Ltd [2018] IRC 982).

[137]Where an employer is going through a process of dismissing for reasons of redundancy, the employer must engage in fair consultation (Williams v Compair Maxam Ltd

[1982] ICR 156

[1982] IRLR 83

; Rolls-Royce Motor Cars Ltd v Price

[1993] IRLR 203

). There are no hard and fast rules, but it is insufficient for an employer to warn of redundancies and announce the result : there must be proper and genuine consideration of the employees’ views (Rowell v Hubbard Group Services Ltd

[1995] IRLR 195

). The duty to consult applies at each stage : s. 188 notice, selection process, and notice period (Dyke v Hereford and Worcester County Council

[1989] ICR 800

). In other words, an otherwise fair dismissal may be rendered unfair by any failing of the employer’s at any point up to the termination of employment takes effect (White v Babcock Power Ltd

[1986] ICR 221

). Decision and Reasons

[138]We have applied these legal principles to our findings of fact to reach our conclusions in respect of the issues we had to decide. Claimants Application to have the claim struck out

[139]On day 11 of the hearing, the Tribunal heard the claimant’s application to have the the whole of the response struck out under rule 38 of the Employment Tribunal Procedure Rules 2024. The application was supported by written submissions from Mr Engelhardt-Sprack [SB1-170]. The Tribunal also had the benefit of written submissions from Miss Hirsch for the respondents. Both expanded upon their submissions orally.

[140]The application was brought under a number of the different limbs of rule 38. However, in general terms, the application was made on the basis of perceived deficiencies in the way the respondents had conducted standard disclosure. It was argued that by reason of these alleged shortcomings, the respondents had behaved ‘unreasonably’ (rule 38(1)(b); that they had variously failed to comply with the 2024 rules and/or orders of the Tribunal (rules 38(1)(c)); and that it was thereby no longer possible to have a fair hearing in respect of the claim (rule 38(1)(e)).

[141]The Tribunal’s discretion to strike out a claim is permissive. It is a draconian step and is therefore a power which should be exercise sparingly. In this case it would mean that the respondents (10 of them in total) would be treated as if no defence at Case Numbers: 3300672/2024 & 2213201/2024 all had been presented. It is a case which is not without its complexities. It contains issues which are of importance to the parties. Accusations of discrimination and victimisation are grave, and there is a public interest in such matters being investigated thoroughly by a Tribunal. That being said, we accept the submission of Mr Engelhardt-Sprack that the importance of compliance with obligations surrounding disclosure of documents cannot be readily over-stated. A failure to engage properly and in a timely fashion with the process of disclosure risks striking at the heart of the fairness of any trial.

[142]There are two steps when considering an application to strike out. Firstly, the Tribunal must consider whether any of the grounds set out in rule 38(1) have been established. Secondly, and only if a ground is identified, a Tribunal must go on to decide whether to exercise its discretion to order strike out. In going through this process, we have applied the law as set out in the parties submissions. In particular, we have applied the guidance set out in the cases of Cox v Adecco Group UK Limited [2021] I.C.R. 1307. In all cases this step requires asking whether strike out is the proportionate response to the situation.

[143]In considering the nature of respondents’ conduct of the proceedings, we took the view that we were entitled to have regard to the representatives conduct in this matter. In order to strike out for ‘unreasonable conduct’, the party at fault must have demonstrated either a deliberate and persistent disregard’ of the required procedural steps, or conduct which made a fair trial impossible (Blockbuster Entertainment Limited v James

[2006] IRLR 630

, CA; and Emuemukoro v Cromarty Vigilant

[2022] ICR 327

EAT).

[144]When dealing with non-compliance with rules or orders, or unreasonable conduct, some of the relevant factors to consider will be the nature and magnitude of the noncompliance; whether the failure was the responsibility of the party or his/her representative; the extent to which failure causes unfairness, disruption or prejudice; and whether some lesser remedy would be an appropriate/proportionate response (Baber v Royal Bank of Scotland PLC [2018]

UKEAT/0301/15

[145]We accept that there have been failings on the part of at least Bidvest. There had been non-compliance with the rules and/or Tribunal orders related to standard disclosure. We also found that these were persistent and (at least on some occasions) deliberate. We do not set out the long history of dispute in this case surrounding the issue of disclosure of documents. It suffices to say that there have been numerous orders of the Tribunal. Furthermore, the claimant has on numerous occasions in correspondence raised its reservations about the way the respondents had engaged with disclosure. There has been a long running dispute between the parties. As late as the first few days of this hearing, the Tribunal was invited to consider an application for specific disclosure by the claimant. On that occasion (with the agreement of the parties at the time) the Tribunal adopted a conservative approach to the outstanding disclosure issues, preferring to hear some evidence, and to more thoroughly identify the issues in the case, before addressing questions relating to disclosure.

[146]Eventually, the Tribunal rather reluctantly came to the view that the claimant was at least partly correct about the respondent’s engagement with disclosure of documents. For whatever reason, the respondents had chosen to ‘comply’ with standard disclosure by adopting a ‘drip-drip’ approach. Since this hearing Case Numbers: 3300672/2024 & 2213201/2024 commenced, even since it resumed part heard on 15 December 2025, the Tribunal has received in the region of 350 pages of further evidence, some of which is to be found in bundle [SB3]. This is notwithstanding that standard disclosure should have been completed pursuant to case management orders by no later than 19 June 2025 [156].

[147]This recent additional disclosure materialised in a rather grudging fashion, and only when the Tribunal made plain its view that the absence of certain documents or types of document was potentially concerning. We were not satisfied that each and every respondent had understood and properly engaged in standard disclosure. It was only during the long adjournment after the October hearing, and after ordering that each respondent produce a witness statement explaining what steps it/he/she had taken to comply with their obligations, that the extra material was disclosed. It was fortunate that the expectantly long duration of the hearing made this possible.

[148]The process of disclosure has not been assisted by the prevailing attitudes of the two sets of legal representatives, which we found has been counterproductive in general terms. On 17 October 2025, we received a letter from the respondents’ solicitor which addressed the late appearance of certain documents. It is fair to say that the letter contained an apology from the solicitor. At least one document (a hand written witness statement from Kurtis Uwadi [1092], which had been adduced during the course of the hearing) had been sent to it by one of the parties, and inadvertently not passed on to the claimant. It seems that it had been located by Mr Storey in his personal email address at a late stage, which itself raises questions about the way the respondents retained and identified relevant documents. Notwithstanding the apology, the letter went on to make robust observations about the Tribunal, and was borderline critical of way the Tribunal had raised concerns about disclosure. It was our view that the tone of this letter was unnecessary and unhelpful.

[149]The tone of correspondence between the parties has also been unhelpful in our view. The respective solicitors have, even during this hearing, continued to send to each other communications which were in our view uncooperative. We mention this in this context only because this dynamic has contributed to what we perceive to have been the counter-productively entrenched positions that have been taken up by the parties, particularly in relation to disclosure. On occasions, the parties and their representatives have fallen short of the standard of cooperation which is required by the overriding objectives of the Tribunal.

[150]It is relevant to point out that we include the claimant in this criticism. By way of example, it is become plain to us that the claimant repeatedly refused to provide the respondents with what the claimant identified as documentation relevant to remedy but not liability. The claimant and/or solicitor were clearly wrong to adopt this position. The standard case management order makes clear that disclosure relates to all relevant documents, including those relating to remedy [158]. The order could not be clearer. It was another example of the parties wasting time and energy in taking up misguided positions, and misunderstanding their obligations pursuant to the overriding objectives.

[151]Having said all that, we accept that the process of disclosure is not without its challenges. We acknowledge that it is inevitably an ongoing process throughout the proceedings, and that it is not unusual for there to be further disclosure issues to resolve during a hearing in a case such as this. We also note that the parties have Case Numbers: 3300672/2024 & 2213201/2024 not always identities the relevant issues with the clarity one might always expect. The case summary/list of issues in this case [1058] is not the most accessible of documents. We thought that it was, in parts, confusing. We wonder whether this might have contributed to the problems we have identified with disclosure. We also recognise that in a case with up to 11 respondents, with all but one being an individual respondent, that there are likely to be barriers to efficient retention, identification and disclosure of relevant documents. It was our impression that some of the employees/former employees of Bidvest may not have sufficiently appreciated their disclosure obligations to the Tribunal.

[152]In summary, we find that the first respondent had, at the very least, failed to comply with the orders or rules of the Tribunal in not providing relevant documents in a timely fashion. However, we fell short of making such a finding in relation to the other respondents. The likely dynamics of the relationship between Bidvest and the other respondents, and between R2-10 and their legal representative, was relevant here. To the extent that there were documents which were not disclosed when they ought to have been, we find that these were documents primarily belonging to, and in the possession of, Bidvest. The primary source of instructions to the solicitor was likely to be Bidvest. Some of the respondents remained employed by Bidvest, but some had left. Those who were no longer employed had limited access to the documents relevant to this claim. In which case, the onus was predominantly on Bidvest to ensure that documents were disclosed. It was our suspicion that many of the respondents may have felt removed from the litigation process by reason of the circumstances.

[153]There was insufficient evidence upon which we could find that R2-10 had demonstrated a persistent and deliberate disregard for the rules/orders of the Tribunal (as opposed to Bidvest), or that they had engaged in conduct themselves which made a fair trial impossible. Neither was there sufficient evidence of unreasonable conduct as defined.

[154]We then moved on to a consideration of the discretion as to whether to strike out Bidvest’s response. We did so on the basis that the breaches of orders had been serious, and that the fault lay in large part (if not wholly) with Bidvest. It was also the case that the failure to complete standard disclosure in an acceptable and timely manner had caused disruption to the hearing, not least because the Tribunal had been repeatedly dragged into the issue when it preferred that the parties resolve such despite amongst themselves. It had certainly caused some delay, and in our view had created a risk to the fairness of the trial.

[155]The most prominent issue in our minds was that having decided that the claimant had not satisfied us as to the rule 38 gateways in relation to R2-R10, it was inevitable that there would continue to be a trial in relation to those respondents. In our judgment, it was inherently disproportionate in this case to strike out the response in relation to Bidvest, but not the other nine respondents. It would have had a disproportionately prejudicial impact on one respondent. We were also concerned about how the absence of Bidvest might impact on the ability of the other respondents to put their case. It seemed likely to us that the funding for solicitors came from Bidvest, as did the majority of the instructions. We wondered whether it might jeopardise this iteration of the hearing. It was difficult to enquire about this aspect of the situation, but we took it into account. Case Numbers: 3300672/2024 & 2213201/2024

[156]The other issue which weighed against the suggestion that strike out was inappropriate and/or disproportionate was the Tribunal’s view that it had managed to correct the problems created by the failure to disclosure, or at least had significantly mitigated the consequences. On 17 October 2025, the Tribunal promulgated a case management order which had required the respondents to review their approach to standard disclosure and to rectify any deficiencies [SB1-4]. In so doing, we took the opportunity to remind all of the respondents of their obligations in respect of disclosure. In our judgement, the response to the order was sufficiently positive and constructive so as to make it inappropriate and disproportionate to strike out Bidvest’s response. In other words, the faults identified were adequately remedied.

[157]In particular, we were impressed by the witness statements provided by and on behalf of the respondents, and in particular those of Mr MacGinley (Group Chief Technology Officer) [SB1-29] and Mr Michael Moran (Director of Employee Relations) [SB1-32]. Both are senior members of Bidvest who provided detailed evidence as to the approach of the respondents to disclosure. In particular, Mr MacGinley explained the approach to the question of MS Teams information, and email messages (which had been one of the most significant issues for the claimant). As a result of the additional evidence with which we were provided, together with the provision of over 300 pages of further documentation, we were satisfied that the respondents had reasonably complied with their obligations, albeit very late in the day. For instance, we are satisfied that the Tribunal now has a full compliment of redundancy consultation interview notes, when at times it seemed that we did not.

[158]Of course, there remained some issues with documents. However, we were cautious not to conflate two separate issues, namely the question of disclosure, and the possibility that documents were absent because they had never existed or had not been retained. As we have repeatedly observed throughout this hearing, it is a function of the Tribunal to consider whether it is appropriate to draw inferences from the absence of documents. This requires careful consideration of the reasons given for the lack of a document in the context of the evidence as a whole. Where there are gaps in the respondents case, it is open to the Tribunal to make findings against them if it is appropriate to do so.

[159]Finally, when considering whether it was still possible to have a fair trial in this case, we reminded ourselves of the burden and standard of proof. In these types of claim, it is often for the respondents to provide an explanation for their conduct. We undertook to keep the question of disclosure under review for the rest of the hearing. We would also add that if there had been any delay which can be discretely attributed to problems with disclosure, then this could be addressed to some extent by an application for costs.

[160]For all of the reasons explained, the Tribunal refused the application to strike out the responses, and continued with the hearing. Without Prejudice Privilege

[161]We agreed that it was appropriate to deal with this question as a preliminary issue. In so doing, we had the benefit of excellent written and oral submissions and additional oral submissions from counsel. We applied the law as set out in the Case Numbers: 3300672/2024 & 2213201/2024 written submissions. The law itself did not appear to be an area of contention between the parties.

[162]The respondents’ application asserts that parts of the claim are inadmissible due to being protected by:(a) without prejudice privilege (WPP); and/or

(b) s. 111A of the Employment Rights Act 1996 (ERA). The respondents submit that such conversations are subject to WPP, and none of the exceptions to that privilege apply in this case. In particular, it cannot be said that if privilege was to attach to those conversations that it would cover up “unambiguous impropriety”. In the alternative, such conversations are protected under s. 111A ERA.

[163]The application relates to the matters highlighted in yellow in the list of issues at [1058]. In summary, the issue relates to the settlement agreement discussion that Mr Thomas had with the claimant on 7 December 2022; and the correspondence sent by TMP to the respondent on 13 and 15 September 2023.

[164]There are good policy reasons for the without prejudice rule (‘WPP’) rule, as set out in Cutts v Head

[1984] Ch 290

at 306 as follows:

“That the rule rests, at least in part, upon public policy is clear from many authorities, and the convenient starting point of the inquiry is the nature of the underlying policy. It is that parties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations (and that includes, of course, as much the failure to reply to an offer as an actual reply) may be used to their prejudice in the course of the proceedings.”

[165]In order for the principle of WPP to apply, there must be an existing dispute between the parties at the time the alleged ‘without prejudice’ communication is made, coupled with a genuine attempt to settle it. For these purposes, this does not depend on there being extant legal proceedings nor on one party raising “some degree of objection to the course proposed and a degree of hostility to the other party”. The question is whether in the course of negotiations the parties contemplated or might reasonably have contemplated litigation if they could not agree. Negotiations that have been entered into with a view to concluding a settlement agreement, but which have not resulted in agreement, will “very often” involve a “dispute” or “potential dispute”.

[166]Even if those requirements are satisfied, the rule will not apply where the exclusion of evidence of what a party said or wrote in without prejudice negotiations would “act as a cloak for perjury, blackmail or other “unambiguous impropriety”. However, that exception should only be applied in the clearest cases of abuse of a privileged occasion. In Woodward v Santander UK plc

[2010] IRLR 834

, the EAT confirmed that obiter remarks in BNP Paribas v Mezzotero

[2004] IRLR 508

, EAT, to the effect that settlement discussions which were alleged to be discriminatory would no longer benefit from WPP, were incorrect. In Woodward, the EAT held that discrimination cases do not provide an exception to the without prejudice rule in their own right, in the absence of blatant discrimination. Indeed, Judge Richardson held that the rule “may be said to apply with particular force in those cases where the parties are seeking to settle a discrimination claim” (at [60]), and reiterated that the Case Numbers: 3300672/2024 & 2213201/2024 “unambiguous impropriety” exception applied “only in the very clearest of cases” (at [62]).

[167]In Garrod v Riverstone Management Ltd

[2023] IRLR 191

, the EAT distinguished Mezzotero as an “unusual case in which the allegedly unlawful conduct that founded the tribunal case was said to have occurred at the allegedly privileged meeting. If the evidence could not be admitted, the claim could not be pursued.” (at [60]), before upholding the ET’s decision to exclude the evidence on the basis that it was right “to consider whether this was ‘the very clearest of cases’ [of unambiguous impropriety] and right to decide that it was not.” (at [61]) The EAT noted that by excluding the evidence, the claimant could still attempt to prove that she was the victim of the discrimination and/or victimisation alleged in the grievance. It involved the respondent making a settlement offer based on termination at the meeting.

[168]Section 111A(1) ERA applies to claims of ordinary unfair dismissal only to render evidence of “pre-termination negotiations” inadmissible, subject to subsections (3)- (5). “Pre-termination negotiations” are defined in subsection (2) as “any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee.” Unlike WPP, there is no requirement for there to be an existing dispute that the parties are trying to settle.

[169]Section 111A(4) states that “In relation to anything said or done which in the tribunal's opinion was improper, or was connected with improper behaviour, subsection (1) applies only to the extent that the tribunal considers just.” The ACAS Code of Practice on Settlement Agreements provides examples on what is likely to constitute improper behaviour under s. 111A(4), which includes victimisation and discrimination (para 18(c)-(d)) and putting undue pressure on a party, such as not giving reasonable time for consideration (recommended as 10 days, but it is acknowledged that what constitutes a reasonable period of time will depend on the circumstances of the case.

[170]In applying the law set out above, we find that WPP did not apply to the discussion which took place on 7 December 2022 between the claimant and Mr Thomas. It is our view that there was no extant dispute at the time. It is clear from the evidence that although the claimant (and his partner on his behalf) had lodged complaints about Bidvest and its managers in April/May/June 2022, all of the matters had ostensibly fallen fallow. There was certainly no ongoing formal process in December 2022. They had either been ‘concluded’, or abandoned by the claimant. With the benefit of hindsight, we find that the complaints made in the spring of 2022 by or on behalf of the claimant were the start of a course of victimisation. As we will discuss below, this is evident from the documents, and from the witness testimony we have heard. However, none of this had evolved into a dispute by December 2022, which was in large part triggers by the redundancy process itself, which followed the December meeting).

[171]When the claimant attended this meeting, he remained unaware of any changes to the way Bidvest was proposing to structure itself, and of the fact that he was at risk of redundancy. He had not been giving notice. On a view, he was misled about the reasons for the meeting by Mr Thomas, telling him as he did that it was to discuss the Arriva contract management structure [275], when it was plainly to offer him a settlement agreement. We find that the claimant was oblivious as to the significance Case Numbers: 3300672/2024 & 2213201/2024 of a protected conversation in this context. Therefore, although the claimant gave ostensible agreement to have such a discussion, we find that it was not informed consent and cannot properly regarded as agreement to enter into privileged discussions. We note that the circumstances of Mezzoterro are similar to those of 7 December 2022. We note that the claimant was not represented, not least because the purpose of the hearing had not been properly or honestly flagged up in advance.

[172]Having concluded that WPP does not apply in the absence of an extant dispute, we must then consider whether s.111A applies in relation to the ordinary unfair dismissal claim. The 7 December meeting was clearly a pre-termination negotiation as defined. However, we also find that there was improper behaviour on the part of Bidvest and/or Mr Thomas which renders the discussion admissible. Specifically, we find that Mr Thomas did not tell the claimant in advance what the meeting was about. He therefore did not have a proper opportunity to be represented at a challenging meeting. We find that this was deliberate on the part of Mr Thomas. We also find that the claimant was told that he would be managed out of the business if he did not sign a settlement agreement. This amounted to undue pressure. Therefore, the content of the meeting on 7 December 2022 are also admissible for the purposes of the ordinary unfair dismissal.

[173]We then turn to the correspondence from TMP to Bidvest on 13 and 15 September 2023. In our judgment the context here is quite different. It is clear that following the meeting of 7 December, there was an extant dispute as to the validity of a redundancy exercise in relation to the claimant, and in relation to the allegations of discrimination and victimisation that the claimant made against Bidvest and others. It is difficult to imagine that either side had not seriously contemplated the possibility of Employment Tribunal proceedings by September 2023. The question of whether the claimant would sign a settlement agreement was still very much up in the air on 13 September. Although the offer of a settlement agreement appears to have been withdrawn on 15 September by Bidvest, an extant dispute remained. Indeed, the two pieces of correspondence relied upon by the claimant are headed “without prejudice save as to costs”. Although this fact is not necessarily conclusive, in the context of the circumstances, it weighs heavily in favour of the suggestion that WPP applies. In our view, it would be surprising if a party were allowed to rely upon its own without prejudice correspondence from a solicitor in this context. We saw insufficient evidence of “unambiguous impropriety” in relation to these two pieces of correspondence.

[174]In summary, we agree with the respondents that WPP applies the the correspondence in September 2023. Paragraph 15: Vicarious liability

[175]We find that Bidvest is vicariously liable for the acts of its employees in the circumstances of this case. This was not in dispute between the parties. Substantive Liability: Victimisation

[176]The claim is brought under the following heads:• Direct race/sex discrimination; Case Numbers: 3300672/2024 & 2213201/2024

• direct race/sex related harassment;

• Victimisation;

• Aiding contraventions pursuant to section 112 of the ERA;

• Whistleblowing detriment

• Automatic unfair dismissal on the grounds of section 103A of the ERA;

• Unfair dismissal

• Unauthorised deductions from wages

[177]We have started with the victimisation complaint because we consider that the claimant’s complaint about his treatment is best understood as a complaint of victimisation, for reasons which will become apparent below.

[178]Before looking specifically at the individual claims by reference to the list of issues, it is helpful in this case to make some general observations about our conclusions as to why the respondents acted as they did, and in particular why:(i) it was decided to offer the claimant a settlement agreement;

(ii) the respondents engaged in a redundancy consultation process;

(iii) the respondents approach the consultation in the way they did;

(iv) the respondents approached the claimant’s complaints and grievance as they did; and

(v) why the claimant was dismissed.

[179]We will primarily consider the case against Bidvest first, and then move to examine the evidence as it relates to the other respondents later.

[180]This claim is brought on the basis of several protected acts. Some are made by the claimant, and these present no novelty under the legislation. Some are however made by the claimant’s partner, Ms Alhassan. In respect to these protected acts, the claim is brought on the basis of the claimant’s ‘association’ with Ms Alhassan (his partner), and thereby her complaints. We find that protected acts 1, 2, 3, 4, 5, 13, 14 and 15 within the list of issues are all made and are all protected acts as defined in that they make an allegation that one or more of the respondents had contravened the Act (section 27(2)(d)). This was not really contested. Those protected acts attributable to Ms Alhassan are 1, 2, 4, and 5.

[181]We have applied the law as set out in Thompson v London Central Bus Company Ltd (2015)

UKEAT/0108/15/DM

, namely that association is not a concept in itself found in European legislation. The issue is not whether there is in existence a relationship of some particular kind but whether in the mind of the putative discriminator the protected act of a third party was part of the reason for the Case Numbers: 3300672/2024 & 2213201/2024 treatment of the employee. In this case, the association could not be closer. They had been partner for any years, and had worked together for a long period. We have no doubt that a ready connection was made between the two of them within the workplace. In the context of the evidence in this case, it is notable that Ms Alhassan was making complaints expressly on the claimant’s behalf.

[182]For the reasons, set out below, we are satisfied that the protected acts were, in part, the reason for the way the claimant was treated by the respondents.

[183]Looked at through the prism of Madarassy and Igen, we find that the claimant has established a prima facie case that there were discriminatory reasons for the conduct of Bidvest towards the claimant. By discriminatory, we mean intention which contravenes a provision of the Equality Act 2010. More specifically, we find that there is some evidence that the claimant did protected acts i.e. the complaints made by Ms Alhassan and the claimant in 2022/23, which referred to victimisation and discrimination; that the respondents acted in response to these protected acts; and that the claimant was caused detriment as a result.

[184]The timeline in this case is highly persuasive. Prior to April 2022, the claimant appeared to have worked as OM on the Arriva contract without any apparent disciplinary or performance related concerns. Mr Storey joined the Arriva contract from another part of the business on 1 April 2022. Ms Alhassan had previously made allegations of sexual misconduct against Mr Storey and had brought Employment Tribunal proceedings against him in 2019, which had been the subject of a negotiated settlement between the parties. In broad terms, Ms Alhassan had alleged sexual inappropriate conduct against Mr Storey, who she says had made fabricated an allegation of fraud against her in response. In fairness, we make the point that Mr Storey denied the allegations, and the claim was settled on a without prejudice basis.

[185]We find that Mr Storey was still angry about this. We got this impression from him when he gave evidence. He also lied to us about the date of the previous claim. We do not accept that he could have been genuinely mistaken that the claim was made in 2012, given its important tot the matters at stake in this claim, and his clearly strong feelings about the issue. It was a deliberate attempt to down play the matter.

[186]Upon his arrival with the Arriva contract, Mr Storey immediately begin investigating Ms Alhassan for time keeping related issues, which appears to have been an echo of allegations made against her previously. Mr Storey appeared to have no express brief to do this. We find that it was fuelled at least in part by his negative feelings towards Ms Alhassan and their combined history. She was interviewed by Ms Richards in relation to these matters. Ms Alhassan raised a grievance about having to work in close proximity to Mr Storey, having been reassured in 2019 that this would not be the case (albeit by Cordant). She also raised the matter with Mr Thomas, but he was dismissive of her concerns. We thought this response to be surprising and revealing of a prevailing attitude towards the Ms Alhassan.

[187]In parallel, Mr Storey was also pivotal in relation to serious disciplinary allegations made against the claimant i.e. the ‘Norwood incident’ on 27 April 2022; and the ‘Dartford incident’ on 6 May 2022. It has been difficult for us to thoroughly address the merits of any criticism of the claimant in relation to these matters, not least because they happened nearly four years ago now, and because Bidvest didn’t Case Numbers: 3300672/2024 & 2213201/2024 adopt an adequate disciplinary process at the time. It suffices to say for the purposes of this decision that it is our impression that the nature of Mr Storey’s criticisms were disproportionate, if not untruthful. We are still not at al sure what it is that the claimant dod re. Norwood, which so vexed Mr Storey. In relation to the Dartford incident, we note that the statement from ‘Kurtis’ [1092] is inconsistent with the account of Mr Storey in that it makes no mention of the claimant promising to be there shortly.

[188]We find that Mr Storey told the claimant on 6 May 2022 that he would ensure that he was sacked, which we find was a blatant act of victimisation by reason of the claimant’s association with Ms Alhassan. We are quite clear that Mr Storey was well aware of the connection.

[189]On 7 May 2022, Mr Storey sent an email to Mr Thomas, Ms Richards and Mr Marshall (managing director of the transport division)[220]. There was a statement attached to it [222]. These are important documents. It is wide ranging and personal in its criticism of the claimant. It talks about a ‘calamity of issues’ and expresses the view that the claimant be removed (not just subjected to proper process) as “he is making us look incompetent”, repeating what he had said to the claimant on 6 May. It is quite clear that it was Mr Storey’s intention to have the claimant dismissed and not just disciplined.

[190]On 8 May 2022, Ms Alhassan raised a grievance on the claimant’s behalf about the events at Dartford, and in particular alleging that Mr Storey had threatened to have the claimant sacked. On 12 May 2022, Ms Richards sent an email to Mr Thomas suggesting that they have “a chat” about the issues raised by Mr Storey on “Monday” which would have been 16 May 2022. Surprisingly, there is no further documentary audit trial in relation to any of these matters. Neither the Dartford or Norwood incident was ever formally pursued by way of Bidvest’s disciplinary policy. This is, in our view, remarkable, given the purported seriousness of the matters and the gravity of Mr Storey’s criticism of the claimant.

[191]What follows is highly significant, because shortly afterwards (within a few days) the claimant had three of his fives garages removed from him, and transferred to another OM, Mr Ali. There is no paper trail relating to this decision. We find that this was an ‘informally’ imposed sanction upon the claimant. As set in our findings of fact, the respondents’ witnesses, Mr Thomas, Ms Richards and Mr Storey, were extremely evasive and inconsistent in the way they tried to explain this decision, who made it, and on what grounds. We did not find their evidence credible on this point. It seemed to us to be such a departure from the normal process one would expect from such a large, well resourced business with a significant HR department, that in our view it gave rise to a strong prima facie case that there was some underlying and unexplained motivation for the respondents’ actions.

[192]This serves to illustrate what we found to be a repeating pattern of behaviour in this case from at least some of the respondents. Time and again we find that the respondent failed to comply with what might be regarded as good practice, and to comply with Bidvest’s own disciplinary policy, grievance procedure and redundancy consultation policy. In our judgment, the respondents often demonstrated a rather casual attitude when admitting as much. Again, we found that such a blatant disregard of good practice and compliance was strong evidence of discriminatory intention. In this regard we note the following: Case Numbers: 3300672/2024 & 2213201/2024• failure to performance manage the claimant, if his performance was a concern. We note that Mr Ali was offered coaching to improve his performance [396];

• failure to apply its disciplinary procedure re. Norwood/Dartford incidents given the purported health and safety implication of at least one of them;

• failing to actively consider the claimant for alternative permanent positions either within or outside of the Arriva contract, including the Metroline contract; we find that email alerts were not adequate;

• including Mr Coker in the pool of OM’s when it was clear to Bidvest (even at the time) that he was acting up in the post and retained his contractual role as site manager;

• failing to ask the claimant follow up questions at the interviews when the others were asked further quesitons;

• failing to score the candidates individually and then collate a score at the end;

• not allowing the claimant to resume his role as OM upon his return from sick leave; 184. In particular, we are very concerned about the decision to offer the claimant a settlement agreement. As explained above, we find that the stated reason for doing so, i.e. that he was one of the two weakest performing OM’s was simply not objectively verifiable. Neither was an explanation provided to the claimant for his selection. 185. In opting first for the settlement agreement route, Bidvest deviated from it own policy in a significant sense [178]. It states that “When a redundancy situation occurs, Bidvest Noonan will enter into meaningful consultations with all colleagues concerned. Depending upon the number of people identified as potentially being at risk of redundancy, the period of consultation will be tailored to each particular situation to ensure that it is full and meaningful. The purpose of the consultation is to have a two-way discussion with regards to the situation, how it could be potentially avoided and to listen to the colleague’s suggestions and concerns.”. It is our view that the offer of a settlement agreement was premature in the light of the stated aims of this policy. Indeed, on a view it might be thought to have been the antithesis of meaningful consultation. 186. The policy goes on to state that: “The employee will be informed by their Line Manager or equivalent that they are unavoidably at risk of redundancy. They wi

[193]As already explained we find that the process was not delayed until the grievance had been concluded. We take the view that this was not fair, and in the circumstances is difficult to justify. Moreover, we find that the claimant was misled into believing that the process had been paused to allow the grievance to be completed when, in fact, a decision had already been made to offer the two OM posts to the other candidates. There would have been little prejudice associated with delaying the redundancy process for a few months, either to the respondents, or the other candidates. There had been no apparent urgency between December 2022 and October 2023 when the claimant had been on sick leave. We find that this failure was consistent what with a general lack of commitment to investigate the claimant’s complaints.

[194]Perhaps most seriously, we find that the grievance hearing and appeal were nor conducted fairly. In our judgement, those conducting the processes adopted an approach, which in effect, ignored the written grievance. Both Mr Pearce and Mr Middleton failed to investigate the central themes of the grievance, namely that the offer off settlement and the redundancy process were motivated by the protected acts pleaded. Neither were the matters pursued when witnesses were questioned. Indeed, Mr Storey was not even interviewed by Mr Pearce, as it was felt he was not a subject of the grievance.

[195]It would have been remarkable if this approach had been adopted at either the grievance or the appeal stage. For both Mr Pearce and Mr Middleton to have adopted the same approach i.e. to largely disregard the written grievance, is in our view beyond coincidence. It is evidence of systematic unfairness towards the claimant on the part of Bidvest and some of the other respondents. It was our view that the relevant respondents appeared to show little inclination to robustly address the matters complained of by the claimant. There was no scrutiny of explanations provided by senior managers. There was a failure to comply with good practice and its own policies.

[196]Finally, we find that there was almost a complete absence of evidence that any of those involved in the process had received relevant training. It was a feature that none of the respondents could satisfactory demonstrate that they had had equality and diversity training, or in conducting grievance or redundancy processes (as applicable). Mr Pearce in particular accepted that he had not had any equality and diversity training, and was unable to provide us with a definition of victimisation Case Numbers: 3300672/2024 & 2213201/2024 which was even close to being accurate. Ms Nation was of the opinion that she could not internally investigate comments allegedly made in the context of a purportedly protected conversation, which again we take the view was erroneous. We found the general level of knowledge on these relevant issues to be poor. We find that Bidvest must have kept a central record of training provided to staff but chose not to provide it to the Tribunal, not least because by its own admission, it operated in a health and safety rich environment. From the absence of this information we infer that such evidence would not support the respondents’ case. In other words, it would have demonstrated that no relevant training had bene provided.

[197]Accordingly, we find that the claimant has established a prima facie case of Equality Act related motivation. We accept the claimant’s testimony as to the sequence of events. We find that it is appropriate to draw an inference from the facts that it was at least arguable that Bidvest, and those those respondents who acted as employees of Bidvest, had discriminatory motivation for their stated conduct.

[198]We then turn to examine whether the respondents have provided a satisfactory explanation for their conduct which excludes discriminatory motivation. We find that the evidence as whole satisfies us that that neither race or gender was not the motivation in this case. We will address this further below.

[199]On a balance of probabilities, has Bidvest persuaded us that there was a nondiscriminatory motivation in relation to the victimisation claim. In short, the answer is no. It will be plain from the matters discussed above, that we find that the respondents were not in general terms, credible witnesses. In important respects, we often found their answers to questions to be inconsistent, vague and/or evasive. On the other hand, we find that the claimant has been consistently complaining of these matters since early 2022. He has done so with no little stamina. We find him to be a reliable witness, not least because his testimony was largely supported by the what documents we were provided.

[200]By contrast, the respondents found it surprisingly difficult to produce documents to support its own case. Bidvest’s attitude to record keeping and/or to engaging appropriately in standard disclosure, left much to be desired. It was our view either that necessary documents were intentionally never created, or that they were deliberately not disclosed in this case. By way of example are the circumstances in which three garages were taken away from the claimant. It lacks any credibility to suggest that this decision had not created a very substantial audit trail. But we were asked to accept that there was no documentation at all to enable us to verify the reasons for the decision. It was clearly not a plausible proposition. In summary, Bidvest failed to discharge the burden on it to provide a non-discriminatory explanation for its conduct. Above all else, it has failed to provide a cogent and credible explanation for the time line, which as we have said, is highly probative of the question of motivation.

[201]We are satisfied that it was mainly Mr Thomas’ decision to offer a settlement agreement to the claimant. However, we find that he made this decision in conjunction with Mr Storey, Mr Eastwood and Ms Richards. We agree with the claimant that it was this core group which made decisions affecting his fate at Bidvest. We find that the email sent by Mr Storey at [220-224], and then the one sent by Ms Richards at [225] are key to identifying the main decision makers at the Case Numbers: 3300672/2024 & 2213201/2024 outset. We are satisfied they continued to be involved, together with Mr Eastwood, who joined later.

[202]All four failed to persuade us on balance that there was a non-discriminatory reason for their conduct. As stated, we find that all four lacked credibility ir consistency. They were collectively unable to adduce documentary support for their testimony, which ought to have been available to them, if their evidence was truthful. For instance, it proved impossible to obtain satisfactory answers as to what evidence had been relied upon when assessing the relative performance of the claimant. The performance related BCES data which we eventually were shown (albeit very reluctantly so far as Bidvest was concerned), at worst painted a mixed picture, and at best demonstrated that the claimant and his garages were performing well at times.

[203]We remind ourselves that it was not enough for the claimants to establish that the claimant’s performance and/or a genuine redundancy situation was a factor, or even that they were principal factors. It was necessary for them to persuade us that the decision making of the four mentioned was completely free from considerations of victimisation. We find that they have fallen far short of achieving this.

[204]There were six protected acts prior to the offer of a settlement agreement. We find that these acts caused the threat to have him removed, the loss of the claimant’s garages, and then as a continuation of the the treatment, the offer of a settlement agreement. Then other protected acts followed. We are satisfied that the doing of these all these acts continued to be a highly significant motivating factor in terms of the respondents engaging in the redundancy consultation process; the respondents approach to the consultation; the respondents approach to the claimant’s complaints and grievance; and then in dismissing the claimant. In other words, that there was a course of conduct on the part of Bidvest and the other relevant respondents between 7 December 2022, and 4 January 2024 (the claimant’s EDT, which was motivated by victimisation. It is, in our view, no coincidence that in May 2022, Mr Storey tells Mr Thomas and Ms Richards that he wants the claimant removed, and that in January 2024, that is precisely what happens. The List of Issues

[205]We have set out our general conclusions in relation to the Equality Act claims against Bidvest, and some of the other respondents. It is now necessary to examine the specific matters pleaded in the list of issues, having regard to alleged involvement of R’s 2-10. This decision must be read in conjunction with the list of issues. We deemed it too long to include it in the body of our decision. Paragraphs 24-31: Victimisation

[206]As stated, we are satisfied that the claimant (or his partner, Ms Alhassan, with whom he was associated) engaged in protected acts for the purposes of section 27 of the Equality Act 2010 (“the Act”). In particular, we accept that protected acts 1, 2, 3, 4, 5, 13, 14 and 15 were all made and are all protected acts as defined in that they make an allegation that one or more of the respondents had contravened the Act (section 27(2)(d)). The other alleged protected acts did not fall within the definition on the basis that they did not make clear reference to contraventions of the Act (6, Case Numbers: 3300672/2024 & 2213201/2024 8, 9, 11); or that the complaints were not made by the claimant or his partner (7); or that they were subject to WPP (10, 12).

[207]We are then required to decide whether the respondent(s) did any of the matters listed at paragraph 14; whether they amounted to a detriment; and whether it was because the claimant/Ms Alhassan did any of the protected acts. All of the allegations in paragraph 14 are to be treated as allegations against Bidvest, as well as the named respondents (paragraph 12) on the basis of vicarious liability for the acts of its employees. In addition, all of the allegations in paragraph 14 should be read to include additional allegations against Ms Richards, Ms Nation and Ms Mauge pursuant to section 112 of the Act, if not expressly stated (see paragraph 16 of the list of issues). Paragraph 14.1

[208]Paragraph 14.1 alleges that the claimant was invited to the meeting on 7 December 2022 by Mr Thomas with the sole intention of dismissing him. We find that this was not an accurate characterisation of the purpose of this meeting. It was more accurate to say that the purpose was to offer the claimant a settlement agreement. We find that it was not Mr Thomas’ intention to dismiss the claimant at the meeting (although it may well have been the outcome shortly afterwards if the claimant had signed an agreement). We therefore dismiss the allegations in paragraph 14.1..

[209]It therefore follows that there cannot be liability for ‘aiding’ as set out in paragraphs 14.1.1 to 14.1.4. These allegations are also dismissed. Paragraph 14.2

[210]We accept that Mr Thomas did offer the claimant a settlement agreement on 7 December 2022, and that he did pressure him to accept the offer by indicating that if he did not sign, then he would be managed out of the business. This constitutes a detriment.

[211]As stated we are satisfied that the offer was motivated by those of the protected acts which preceded the meeting. The timing and sequence of events creates sufficient support for a causal link between the complaints made by the claimant and his partner in 2022, and the loss of three of the claimant’s garages, the claimants selection as at risk of redundancy, and the decision to offer him a settlement agreement. We find that by reason of the protected acts, the claimant had been targeted as someone to be managed out of the business, and the meeting on 7 December, and the offer of settlement, was an integral part of that plan.

[212]We find that the strategy of Mr Thomas, was supported by Mr Storey, Mr Eastwood and Ms Richards. We are satisfied that none of these four respondents provided satisfactory non-discriminatory explanations for their actions i.e. ones which were not motivated at least to a significant degree by the protected acts. For instance, they must all four have been aware of the reasons for taking away the claimant’s garages; and that Mr Coker was not a permanent OM at the relevant time. All four had in our view either been evasive about these issues, or had positively misled us. In addition, none could provide a satisfactory explanation for the selecting the claimant for an offer of settlement. There was no clear objective evidence to support the proposition that it was based on performance, and the claimant was given no Case Numbers: 3300672/2024 & 2213201/2024 opportunity to consult on the question. These are basic tenets of fairness in the context of a redundancy process. We find that all four of the respondents mentioned above had, to varying degrees, discriminatory intention i.e. they were motivated by the protected acts.

[213]In relation to Mr Eastwood in particular, we find that he attempted to mislead us as to the status of Mr Coker. As explained, we were repeatedly told by Mr Eastwood and other respondents that Mr Coker had bene promoted to OM in July 2022. This was clearly not correct, and the respondents must all have bene away it was not true. The document at [SB2-133], which took so long to be disclosed, succinctly demonstrates this. We are satisfied that all of the respondents would have been aware of his actual status, that of someone ‘acting up’ until June 2024. This is such an important point, because if Mr Coker is not in the pool, then there is not need for a redundancy process, as there are two OM’s left for two positions.

[214]In short, we find against Bidvest and Mr Thomas in terms of primary liability.

[215]We must also consider the liability of Ms Richards, Ms Mauge and Ms Nation under section 112 of the ERA which provides that A must not knowingly ‘help’ B to discriminate. The antecedent provisions referred to knowingly ‘aiding’ discrimination. However, the meaning is thought to be the same. In Anyanwu and anor v South Bank Student Union and anor (Commission for Racial Equality intervening)

2001 ICR 391

, HL (a case involving the previous legislation), the House of Lords held that ‘aid’ should be given its ordinary meaning i.e. ’help, assist, cooperate or collaborate’. Helping someone to do an unlawful act is different from causing someone to do so, and it was not enough to merely instigate a chain of events that leads to discrimination. Aiding requires a much closer involvement than merely encouraging, inducing or procuring discrimination. However, it does not matter if the aid is substantive or productive, provided it is not ‘so insignificant as to be negligible’.

[216]Under section 112, discrimination need not be A’s intention or motive. Rather, ‘it is enough that, on the evidence, the conclusion can be drawn that discrimination as the probable outcome was within the scope of her knowledge at the time. It would not need to be in the forefront of her mind nor would he/her need to have specifically addressed her mind to it.’ This point is reflected in the EHRC Employment Code, which states that the helper must know that discrimination, harassment or victimisation is a probable outcome, but does not have to intend such an outcome. The section did ‘not encompass the individual who either recklessly aids the commission of a prohibited discriminatory act or provides aid in circumstances where there is a foreseeable risk of discriminatory action by someone else’. Liability could only arise where the individual knows that the other party is discriminating, is about to discriminate or is contemplating discriminating.

[217]Applying these principles, we also find that Ms Richards is liable as an helper under section 112. We find that she was not only aware of the motivation of Mr Thomas, Mr Storey and Mr Eastwood (which would be sufficient) but had discriminatory intention herself. The email at [225] supports the proposition that she was involved in relevant discussions at about the time the decision was made to take away the claimant’s garages, and must have been aware of the complete lack of process in relation to this decision. We find that she would have been aware of the lack of objective justification for identifying the claimant as a weak performer (even if that Case Numbers: 3300672/2024 & 2213201/2024 was the genuine stated reason). Notwithstanding, she did not intervene. She appears to have done little, if anything, in the face of the numerous complaints about about Mr Storey and Mr Thomas. The purpose of HR, as was explained to us by some of the respondents, is to guide and advise management. We draw adverse inferences from the fact that respondents in this case deviated from good practice to a substantial degree, and on so many occasions, without Ms Richards or anyone else from HR stepping in to correct them.

[218]We find insufficient evidence that either Ms Nation or Ms Mauge were involved in the process at this stage i.e. the offer of a settlement agreement. This allegation is dismissed in relation to those two respondents. Paragraph 14.3

[219]We dismiss this allegation. Requiring the claimant to seek independent legal advice on a settlement agreement is a legal prerequisite of creating an enforceable settlement. This was therefore not a detriment in itself. We also dismiss paragraph 14.3.1 (an allegation of ‘aiding’) for the same reason. Paragraph 14.4

[220]We find that the redundancy was not a sham in the sense that we are satisfied that there were some potentially genuine business reasons for the process, such as costs savings and/or restructuring. However, we are satisfied that this was not the only or even the main reason for Bidvest entering into the redundancy process, or in selecting the claimant for dismissal. Furthermore, we are satisfied that the process of consultation itself was a sham in that the selection of the claimant for dismissal was wholly predetermined.

[221]We are satisfied that Mr Eastwood was, and must have been, aware of the underlying motivation for this process. We accept that he wasn’t recruited until the end of June 2022. However, we are satisfied that he must have been informed of the intended purpose of the process shortly afterwards. As stated, we find that Mr Eastwood was aware that Mr Coker was not an OM, and that the case for the claimant being one of the weakest performers was not objectively justifiable. He was also aware that the decision to offer the claimant a settlement agreement ran contrary to Bidvest’s own policy, and to his own ‘business case’ which mentioned that requests for voluntary redundancy would be invited. This never happened. There was no mention of settlement agreements. Mr Eastwood failed to provide a non-discriminatory explanation for his actions in the light of the claimant establishing a prima facie case against him. On the basis of our findings, the way the respondents approach the process amounted to a detriment.

[222]Further, and for the reasons already stated, we are satisfied that Ms Richards knowingly aided Mr Eastwood in relation to this allegation by providing HR support. It was the role of HR to oversee this process and to advise as the appropriate steps to take, and to correct errors. This did not happen here, a fact which was not satisfactory explained by Ms Richards.

[223]We find insufficient evidence that either Ms Nation or Ms Mauge were involved in the process at this stage and ‘aided’ Mr Eastwood. This allegation is dismissed in relation to those two respondents. Case Numbers: 3300672/2024 & 2213201/2024

[224]We allow the claims at paragraph 14.4 against Bidvest and Mr Eastwood, and 14.4.1 in relation to Ms Richards. Paragraph 14.5

[225]We allow the claims at 14.5 and 14.5.1. for the same reason as the previous allegation. The claims against Ms Nation and Ms Mauge are dismissed for the same reasons as above. Paragraph 14.6

[226]This part of the claim alleges that Mr Eastwood directly underscored the claimant in the redundancy interviews. However, we think this is an error because Mr Eastwood was not on the panel. We therefore dismiss this allegation, as well as allegation pursuant to section 112 of the Act. Paragraph 14.7

[227]This allegation against Ms Richards refers to the correspondence on 13 and 15 September, which we ruled was subject to WPP. This allegation and any allegations pursuant to section 112 are therefore dismissed. Paragraph 14.8

[228]This allegation relates to the the meeting between Ms Mauge and the claimant on 25 September 2023 when the latter made complaints about the ‘sham’ redundancy, discrimination and victimisation. However, we acknowledge that the claimant made clear that he did not wish to lodge a formal grievance on that occasion. In our judgment, there are general issues of fairness surrounding the failure to conduct an investigation at an earlier stage so far as Bidvest is concerned. However, we find that there was insufficient evidence that the culpability for this lies with Ms Mauge, or that her decision not to pursue the grievance after 25 September was the result of the protected acts.

[229]We therefore dismiss this allegation, and any other allegations pursuant to section 112 for the Act. Paragraph 14.9

[230]This allegation related to a failure on the part of Ms Richards, Ms Nation and/or Ms Mauge to investigate the claimant’s complaints. We found this allegation to be simply too vague in terms of time. Further, the respondents did eventually investigate his complaints, albeit too late in our view. We therefore dismiss this claim and any section 112 allegations. Paragraph 14.10

[231]This allegation relates to the failure/refusal to delay the redundancy process pending consideration of the claimant’s grievance. As explained in our findings of fact, in practical terms, the process was not paused prior to the completion of the Case Numbers: 3300672/2024 & 2213201/2024 redundancy exercise. On 26 October, Ms Mauge indicated that the process was to be delayed, but Mr Coker and Mr Ali had been told the day before that there applications for the two OM posts had been successful. In our judgment, this was deliberately misleading. The other candidates were never informed of a delay. As it was, the process was ‘paused’ only for a few days in any event.

[232]We are satisfied that it was impossible to justify continuing with a process which was the subject of a complaint that it was itself a sham and an act of discrimination and victimisation. In our view, no reasonable employer would have adopted this approach. We find that this decision to continue was made by the group of four, namely Mr Thomas, Mr Storey, Mr Eastwood and Ms Richards, and was motivated by the protected acts. To not consider the grievance as a priority was clearly a detriment.

[233]We therefore find that Bidvest and Ms Richards are liable in this regard. Although Ms Mauge was dealing with the correspondence on this issue in October 2023 [400], we are satisfied that she was acting under instruction from Ms Richards. We accept her evidence on this point, and are satisfied that Ms Richards was one of her senior managers in HR to whom she deferred. Indeed, Ms Richards seemed to become confused when asked about this in evidence and eventually conceded that she had made the initial decision not to pause the process. It told us a lot about Ms Richards’ state of knowledge that she continued to oversee this process, even after she had become one of the subjects of the complaint.

[234]Ms Mauge appeared to us to be a very new member of staff, who was lacking in skills or experience, and was capable to being manipulated by those above her. We found insufficient evidence that she was herself motivated by the protected acts in relation to this issue. Similarly, there was insufficient evidence that Ms Nation had a direct influence on whether the redundancy process should be paused or not. We therefore dismissed the claims against Ms Nation and Ms Mauge as primary discriminators under paragraph 14.10.

[235]Similarly, we dismiss the allegations of aiding pursuant to section 112 of the Act. There is insufficient evidence that either Ms Mauge or Ms Nation were knowingly assisting Ms Richard, or the others, i.e. that they were aware that they had discriminatory intention in relation to this issue, for the reasons set out above. Paragraph 14.11

[236]We take the view that this is essentially the same issue as that in paragraph 14.4 and 14.5. We therefore make the same findings, namely to allow the claim against Bidvest and Mr Eastwood. We also allow the claim of aiding against Ms Richards, but not Ms Mauge or Ms Nation. Paragraph 14.12

[237]This allegation relates to the inclusion of Mr Coker in the redundancy pool. As set out above, we think this an important aspect of the respondents’ case in that we are satisfied that we were misled on this point, in evidence, and by reason of their poor engagement with standard disclosure which deprived us of relevant documents until the latter stages of the hearing. Mr Coker was not a permanent OM until June 2024, and may not have acted up until July 2023. He remained a site manager at the relevant time i.e. late 2023, and in our judgment should not have been included in Case Numbers: 3300672/2024 & 2213201/2024 the pool. The fact that he was included is one of the more obvious ways in which the process was manipulated so as to disadvantage the claimant.

[238]We are satisfied that Mr Eastwood and Ms Richard were party to this knowledge but still allowed Mr Coker into the pool. This was a detriment and was because of the protected acts. We allow this claim against Bidvest, Mr Eastwood and Ms Richards.

[239]We think there was insufficient evidence that either Ms Mauge or Ms Nation were either principal discriminators or were aiders pursuant to section 112 of the Act, for the reasons already stated. Paragraph 14.13-14.15

[240]We consider these allegations together, as they all involve criticism of failing to suspend or investigate senior managers. We doubt that either Ms Richards, Ms Mauge or Ms Nation had the authority or seniority to initiate suspension and/or investigation of Mr Eastwood, Mr Thomas or Mr Storey. To the extent that this issue was explored by the claimant, we heard that HR staff advise, and managers make decisions. This accorded with our experience of normal practice in the workplace. In the light of our findings as to the conduct and motivations of Mr Eastwood, Mr Thomas and Mr Storey, it would have been very difficult to have commenced these processes against them, even if they had been minded to try. We therefore dismiss these allegations against Ms Richards, Ms Mauge and Ms Nation. However, we find that allegation proved against Bidvest. The corporate respondent did have the authority to suspend and investigate, and in the light of the gravity and frequency of the complaints, and the merits of them, Bidvest should have at least investigated Mr Thomas, Mr Eastwood and/or Mr Storey pursuant to the disciplinary policy. In our judgment, this should have happened in advance of the claimant’s grievance and distinct from it.

[241]We also dismiss the allegation under section 112 of the Act for similar reasons. Paragraph 14.16

[242]This allegation relates specifically to the failure not to investigate the complaint made on 18 October 2023 (we find that reference to 12 October is a typographical error) i.e. the claimant’s redundancy interview. We find that this was ‘investigated’ shortly afterwards (albeit not fairly), by which time it had turned into a written grievance dated 6 November 2023. We therefore dismiss this claim against Ms Richards, Ms Mauge and Ms Nation. We also dismiss any section 112 claims for the same reasons. Paragraph 14.17

[243]We are satisfied that the claimant was moved to the Greenford Metroline site as a result of the protected disclosures. Had it not been for these matters, Mr Coker would have been returned to his contractual role as site manager, and the claimant would have resumed his role as OM on the Arriva contract. This didn’t happen because the process had been predetermined, in which case Bidvest saw no reason to disrupt the status quo. This was clearly a detriment i..e not being allowed to perform his contractual role, and not being given the chance to re-establish himself Case Numbers: 3300672/2024 & 2213201/2024 in advance of the redundancy process. It was a symptom of the claimant being managed out of the business.

[244]We are satisfied that both Mr Eastwood and Mr Thomas made the decision to move the claimant to Greenford. We therefore allow the claims against them and Bidvest. We are also satisfied that Ms Richards was aware of this decision and of the discriminatory intention behind it, which she shared. We therefore allow the section 112 claim against her, but not against any other of the respondents. Paragraph 14.18

[245]This allegation relates to the failure to offer the claimant a permanent post as OM at the Greenford site. We find that there was insufficient evidence of the availability of such a position. We find that in more general terms, Bidvest did not take adequate steps to find the claimant an alternative post. However, the evidence we heard about Greenford was that the Metroline contract was structured differently to Arriva in that they had compliance managers not OM’s, posts which were occupied at the time. We therefore dismiss this allegation and the any section 112 claims. Paragraph 14.19

[246]To the extent that this allegation is different to 14.18, it suggests that requiring the claimant to work a notice period at Greenford was a detriment. We do not agree. We therefore dismiss this claim and any section 112 claims. Paragraph 14.20

[247]In a roundabout way, this is an allegation that the decision to dismiss was an act of victimisation on the part of Bidvest and Mr Carter, who chaired the interview process in respect of the claimant, instead of Mr Eastwood. For all of the reasons explained already, we are satisfied that Bidvest dismissed the claimant as a result of the protected acts.

[248]In relation to Mr Carter specifically, we find that he was one of the poorest witnesses we heard from. By the time he had finished (his evidence spanned the October and December legs of the hearing) he had lost all credibility. His testimony as to the process the panel had adopted at the interviews was a shambles. In October, he had been adamant that they had scored individually and then collated them to arrive at a combined score. Indeed, when he could not find documents in the bundle to reflect this, we adjourned the case so that Bidvest could engage in a search for his notes.

[249]When we retuned in December, he had completely altered his evidence, explaining to us that whilst the panel had made individual notes, they had not each arrived at a score, but had simply agreed a joint score. We are still not at all clear which is correct. There is certainly no documentary evidence of individual scoring. However, we have limited confidence in the quality of standard disclosure from the respondents on this issue.

[250]It is our view that it would have been far more transparent for each panel member to have scored individually, and for those scores, and the reasons for them, to have been properly recorded. In our judgment, this would have been consistent with good Case Numbers: 3300672/2024 & 2213201/2024 workplace practice, especially where there was an allegation that process was a sham, victimisation and discrimination. We were surprised to hear both Mr Carter and Ms Mauge defend this approach. On this issue, we also have regard to the nature of questioning of the claimant at interview. We find that he was asked no follow up questions, in contrast to the other two candidates. In our judgment, this put the claimant at a disadvantage when being scored for the quality of his answers.

[251]Taking all the matters in the round, we infer that Mr Carter did have discriminatory intention when conducting the interviews and when dismissing the claimant, and that he was aware of the underlying motivation of Bidvest in managing the claimant out of the business. We find that he dismissed because of the protected acts. We allow this part of the claim.

[252]For the reasons already explained, we are satisfied that Ms Richards knowingly facilitated Mr Carter in this regard. She was the senior HR manager overseeing this process. She was aware that this was a ‘high risk case’ and that it was important for the process to be transparent and fair. It was her role to advise and ensure this happened. We draw adverse inferences from her failure to do so, and her failure to explain these shortcomings.

[253]However, we find there was insufficient evidence that either Ms Mauge or Ms Nation ‘aided’ this process. We came close to finding that Ms Mauge, as one of the panel members, was liable under section 112. However, as we have already found, she was very junior and inexperienced. We think it was likely that she herself was manipulated by senior managers, and was unaware of the motivation of others around her. Paragraph 14.21

[254]We find this allegation to be vague. It seems to relate to the attempt to explore the question of a settlement agreement during the claimant’s grievance hearing with Mr Peace on 9 November 2023 [786]. We are not satisfied that there was a firm offer on this occasion, or that any offer was less favourable than the claimant’s statutory and contractual entitlement (which is presumably a reference to his notice and redundancy entitlement). In any event, we find that there is insufficient evidence that the exploration of a settlement amounted to a detriment, since he had already been dismissed. We therefore reject this part of the claim and the section 112 claims associated with it. Paragraph 14.22

[255]For all of the reasons set out in our findings of fact, we are satisfied that Mr Pearce was also a poor witness. We found his testimony as to how he approached the grievance hearing and investigation to lack credibility or good sense. He told us that he had conducted the matter based on what the claimant had told him face to face at a meeting, and had largely disregarded the very detailed written grievance. He had failed to properly consider the allegation of victimisation, not least because he did not understand the concept. He also professed to have the erroneous understanding that there could not be victimisation if the previous Tribunal claim had been settled. We also find that he had failed to look critically at what he was told by the senior managers he interviewed. He was immediately prepared to accept what Case Numbers: 3300672/2024 & 2213201/2024 they said and discount what the claimant had told him. He did not speak to Mr Storey at all. His explanations for his approach lacked any credibility in our judgment.

[256]As a result, Mr Pearce failed to persuade us that he was motivated by nondiscriminatory reasons when he conducted the grievance, and when making the decision at the end. We find that he refused the grievance because of the protected acts, and was aware of the underlying purpose of the process, namely to manage the claimant out of the business. We allow this claim against Mr Carter and Bidvest.

[257]As the senior HR manager, we find that Ms Richards was overseeing this process and had herself a discriminatory intention in relation to the protected acts. We therefore allow the section 112 claim against her. We dismiss the claims against Ms Mauge and Ms Nation, on there basis that they were both less senior within the HR department and therefor not party to the decision making. Although we were surprised that Ms Nation did not take a more robust stance in the face of the actions of Mr Pearce, we are conscious that he was director of operations, and that there was therefore a considerable imbalance in terms of authority. Paragraph 14.23

[258]We were not at all satisfied that there was sufficient evidence of Mr Middleton unreasonably “delaying” the investigation of the grievance appeal. The claimant appealed on 5 December 2023, and the outcome was sent on 4 January 2024. It was our view that this was a relatively short period. We therefore dismiss this part of the claim, and any section 112 claims associated with it. Paragraph 14.24

[259]We find that Mr Middleton did not carry out an unreasonable investigation of the grievance appeal, and that the outcome was also an act of victimisation. It is remarkable that most of the flaws identified in Mr Pearce’s approach were also adopted by Mr Middleton. He also marginalised the content of the written grievance letter in favour of what had been said in a meeting with the claimant. It seems to us that the inherent weakness of this approach is that a junior manager is likely to find it challenging to verbally repeat the content of the a very long written document. It is also likely to be difficult and embarrassing to make such serious allegations about senior managers to another senior manager. It struck us that the approach was designed to set the claimant up to fail. Mr Middleton too also failed to adequately challenge those he interviewed. Although he did at least question Mr Storey, we were astonished when he told us that he had accepted the account of Mr Storey because he knew him better than the clamant, having worked with him before, and was satisfied as to his good character. Again, we found Mr Middleton’s testimony to be wholly unsatisfactory.

[260]In particular, Middleton had given evidence about the source of performance related data relied upon when identifying the claimant as a weak performer. Mr Middleton was asked whether there was any other, more accurate, metric of the performance of garages or their managers than the BCES, which he suggested should not be relied upon. There was a very long hesitation when answering this question (so long that we made a note of it). Eventually he referred to “how it is going commercially” or the level of sickness or absence. He also mentioned how much was spent on cleaning chemicals. In our judgment this was, a hopelessly vague and evasive Case Numbers: 3300672/2024 & 2213201/2024 answer. It certainly did not point us clearly in the direction of any better, more objective data, on the question of management performance in relation to garages and/or OM’s. It was clear to us that Mr Middleton was aware that the underlying reason for putting the claimant through the redundancy process was discriminatory and not performance related.

[261]Mr Middleton therefore failed to satisfy us that he had anon-discriminatory motivation for his actions. We are satisfied that he refused the grievance appeal because of the protected acts. We allow this part of the claim against Bidvest and Mr Middleton. We find that he was ‘aided’ by Ms Richards but not Ms Mauge or Ms Nation for the reasons already explained. Paragraph 14.25 & 14.26

[262]These allegations relate to Mr Porter. The claim against him has already been dismissed upon withdrawal by the claimant. Paragraph 14.27

[263]We are satisfied on the evidence that the decision to dismiss the claimant was an act of victimisation, and that for the reasons already set out, the decision to dismiss was taken or contributed to by the following respondents:• Bidvest

• Mr Thomas

• Mr Eastwood

• Ms Richards

• Mr Pearce

• Mr Carter

• Mr Storey

• Mr Middleton 255. In our judgment, the dismissal and the claimant leaving the employment of Bidvest was the culmination of the course of conduct, or conspiracy, involving the above named respondents, during which all had victimised the claimant. To varying degrees, all of the respondents had caused or contributed to the dismissal which was therefore a discriminatory dismissal. We therefore find this allegation proven against the stated respondents. We dismiss any associated section 112 claims. Paragraph 31: Victimisation in relation to delaying the claimant’s redundancy 256. The effective date of termination of the claimant was 5 January 2024. His redundancy payment was not paid until the payroll at the end of February 2024. Ms Richards described it at paragraph 71 of her witness statement as an inadvertent oversight. We note that the claimant had to chase the payment [610]. It seemed that Ms Richards was able make arrangements within a few hours once she had put her mind to it [611], although there was apparently no explanation or apology for the delay at the time [613]. The need to make the payment at the end of January would not have taken the respondents by surprise. 257. It was our view that this failure was part of a pattern. We note at [614] that the claimant sort to chase payments in relation to holiday pay and car allowance. Case Numbers: 3300672/2024 & 2213201/2024 However, these payments were not conceded (at least in principle) until the every end of this hearing. In the light of this and given our findings about the credibility of the respondents and their undying motivations in this case, we find that the delay in giving the claimant his redundancy payment was a further act of victimisation. Bidvest have failed to satisfy us that there was some other, non-discriminatory, explanation. Paragraphs 12-14: Direct Race Discrimination 258. We are satisfied that this is not a case where Bidvest, or any of the other respondents were motivated by race, either the claimant’s or Ms Alhassan’s. It was our impression that Bidvest was relatively diverse from an ethic or cultural perspective, in so far as we could tell. In particular, at OM level within the Arriva contract, of the five that we are aware of, there were three with black African ethnic backgrounds (Coker, Safo and the claimant), and two with Asian ethnic backgrounds (Adeniji and Ali). As it was, the claimant was replaced by Coker, so it is difficult to characterise the claimant’s treatment as motivated by race. We also note that two members of staff who the claimant suggests are implicated in his treatment, namely Ms Richards and Ms Mauge, were also black. The claimant was n

[264]None of the parties put their case on the question of whether the claimant had made protected disclosures as defined by the ERA 1996 very clearly, and we heard very little about it in the way of evidence and submissions.

[265]We find that paragraphs38.1 and

38.2 cannot be relied upon by the claimant as protected disclosures, relating as they do to the correspondence from TMP dated 13 and 15 September 2023 which we found are subject to WPP. We therefore dismiss these aspects of the claim.

[266]Paragraph 38.3 relates to the written grievance submitted by the claimant on 5 November 2023. We were surprised that the parties had spent so little time addressing the issues relevant to this aspect of the claim in terms of the evidence or submissions. It is an important and complex claim in its own right, and the Tribunal expected to be provided with more assistance.

[267]It is suggested that the disclosure at paragraph 38.3 resulted in the detriments at paragraphs 14.4 to 14.27 of the list of issues. Clearly this cannot be correct because the matter raised in 14.4 to 14.20 pre-date the grievance. So there can be no causal link. Paragraph 14.21, 14.23, 14.25 and 14.26 are not made for other reasons (see above). This leaves 14.22, 14.24 and 14.27.

[268]Applying the guidance in Kilraine v Wansworth London Borough Council

[2018] EWCA Civ 1436

, a disclosure must contain sufficient factual content and specificity capable of tending to show one of the matters listed in paragraph (a)-(f) of section 43B(1) in that it must convey facts, and be more than a communication. In our judgment, the November grievance was an allegation of systematic discrimination/victimisation in respect of the claimant, and of failure to deal with complaints about the same. We are satisfied that in this case, it was a complaint which did convey necessary factual information.

[269]In this type of claim it is further required that the claimant satisfy the subjective requirement of section 43B(1) that he believed at the time of the disclosure that the information in it tended to show that someone had failed, was failing or was likely to Case Numbers: 3300672/2024 & 2213201/2024 fail to comply with a legal obligation, and that such matters were in the public interest. This has both a subjective and objective element. If the worker subjectively believes that the information he disclosed does tend to show one of the listed matters and the statement or disclosure he makes has sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that her belief will be a reasonable one.

[270]Having looked carefully at the evidence led by the claimant during what was a long hearing, we could find insufficient evidence addressing the question whether or not the claimant possessed the necessary subjective belief. We are satisfied that on a balance of probabilities that the claimant subjectively believed that the information he disclosed did tend to show one of the listed matters, and that this belief was reasonable. However, we were not satisfied that the claimant held the belief that the disclosures were in the public interest. We accept that it is possible for matters such as discrimination and victimisation to be in the public interest. However it is our view that it is just as likely that the claimant never gave the public interest any thought at all, and that he viewed this as a purely private (albeit important) matter between employer and employee. We find that there is simply no evidence as to the claimant’s state of mind on this issue.

[271]We note that the claimant’s closing submissions address this issue to a very limited extent. At paragraph 55, Mr Engelhardt-Sprack suggests that abuse of authority by a manager is always a matter of concern to the wider public. We did not agree. It could be, but we think it goes too far to suggests that it always is. It certainly does not absolve a party from calling evidence at least as to the subjective element of this part of the test. Therefore we dismiss the claim under section 47B on this basis. Paragraph 6: Unfair Dismissal

[272]In the light of our findings about the alleged protected disclosures detriment, then the claim of automatic unfair dismissal on the grounds of protected disclosures must also fail. We dismiss this claim.

[273]In relation to the ordinary unfair dismissal claim, it follows from what we have said that Bidvest have failed to satisfy us that the main or even the principal reason for the dismissal was redundancy. Although we are satisfied that there was some evidence in support of redundancy situation i.e. restructuring and/or cost saving, it is clear from the evidence that the predominant justification for the dismissal of the claimant was discriminatory i.e. the result of the claimant and his partner doing the protected acts. Further or in the alternative we are satisfied that the dismissal was substantively unfair, not least because the claimant was not adequately warned or consulted; the grounds relied upon for placing him in the ‘at risk pool’ were not objective, transparent or fair; the system used to interview/score the candidates was not fair or transparent; and Bidvest did not take adequate steps to find alternative employment for the claimant. The reasons for this conclusion are explained in some detail above. To characterise the process in a few words, it was predetermined, with the respondents simply going through the motions. Paragraphs 44-47: Unauthorised Deductions from Wages

[274]During submissions, it was our understanding that Bidvest accepted that it had underpaid the claimant in terms of holiday pay. It was admitted that the claimant had Case Numbers: 3300672/2024 & 2213201/2024 been paid 8 weeks when he should have received 12 weeks accrued holiday entitlement. We were invited to adjourn this issue to the remedy hearing in the expectation that the parties would be able to resolve the matter by agreement. We agree to take this approach.

[275]We agree to adopt a similar approach in relation to notice pay. It appears to be common ground now that the claimant was paid 8 weeks notice, when he should have been paid 11 weeks. We adjourn this part of the claim to the remedy hearing.

[276]Again, Bidvest ceased to dispute the claim in relation to car allowance payments. We adjourn this matter to the remedy hearing as well. Paragraph 1-3: Jurisdiction

[277]Many of the allegations discussed above were prima facie out of time and so if the claimant was to be able to rely upon them she had to show either (1) that there was a continuing course of discriminatory conduct extending over a period which continued into the primary limitation period for the purposes of section 123(3) of the EA 2010, as interpreted in light of the CA ruling in Hendricks v Commissioner of Police for the Metropolis

[2003] ICR 630

, or that it was just and equitable to extend time under section 123(1)(b) of the EA 2010.

[278]The claims were issued on 18 January 2024 and 1 March 2024. The effective date of termination is 5 January 2024. Events would only be within the primary limitation period if they took place on or after 19 September 2023.

[279]We are satisfied that the Tribunal has jurisdiction to hear the claims in respect of which we have found respondents to be liable. We have allowed claims in relation to victimisation against Bidvest, Mr Thomas, Mr Eastwood, Ms Richards, Mr Pearce, Mr Carter, Mr Storey and Mr Middleton. With the exception of Mr Storey (and excluding paragraph 14.27 got a moment), we have found that all of the respondents have engaged in victimising conduct which expressly occurred after 19 September, at least in part. In any event, and in relation to paragraph 14.27, we find that they all participated to varying degrees in a course of conduct which caused, or contributed to, the dismissal of the claimant. We find that the claims were brought in time i.e. within the three month time limit plus early conciliation period. It was not clear to what extent the respondents disputed this (see paragraph 20 of their closing submissions).

[280]If we are wrong about this, and some of the claims were out of time, we would have decided that the claims were presented within a period we think just and equitable, applying section 123(1)(b). This is because:(i) the claimant promptly and exhaustively sought redress by way of internal processes;

(ii) the claimant referred to ACAS and then lodged his claims promptly after being dismissed;

(iii) the respondents were able to attend the tribunal and give evidence. There was no evidence of prejudice to the respondent in defending this complaint arising from a Case Numbers: 3300672/2024 & 2213201/2024 modest delay in presenting the claim, even if one occurred. (applying Vaughan v Modality Partnership

UKEAT/0137/20/BA

) 273. The claimant’s complaints were therefore brought in time within section 123(3)(a), and 123(2)(b). Remedy 274. A remedy hearing will be arranged to decide what remedy the claimant should be awarded. Approved by: Employment Judge R Wood 19 February 2026 Sent to the parties on: 19 February 2026 For the Tribunal Office: