Mr P DanaherClaimantGXO Logistics UK LtdRespondent
Before
Employment Judge CowenIn person for claimantMr Montgomery (instructed by counsel) for respondentDate 30 October 2025
JUDGMENT
[1]All the Claimant’s claims are dismissed.
REASONS
[1]The hearing took place over three days in the Tribunal. An agreed bundle was before the Tribunal, as were witness statements from the Claimant, and Mr Billington, Mr Jones, Mr Williams on behalf of the Respondent. All gave oral evidence to the Tribunal. Written closing submissions were provided by both parties and oral closing statements were also taken into account.[2]The list of issues in this case had been agreed at an earlier case management preliminary hearing;[1]Automatic Unfair dismissal – s100(1)(e) 1.1 It is accepted that the claimant was dismissed. Was the reason or principal reason for dismissal that the claimant raised an health and safety issue in relation to a knife being bought into work by a colleague? If so, the claimant will be regarded as unfairly dismissed.[2]Remedy for unfair dismissal2.1 Does the claimant wish to be reinstated to their previous employment?2.2 Does the claimant wish to be re-engaged to comparable employment or other suitable employment?2.3 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.2.4 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.2.5 What should the terms of the re-engagement order be?2.6 If there is a compensatory award, how much should it be? The Tribunal will decide:2.6.1 What financial losses has the dismissal caused the claimant?2.6.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?2.6.3 If not, for what period of loss should the claimant be compensated?2.6.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?2.6.5 If so, should the claimant’s compensation be reduced? By how much?[3]Wrongful dismissal/Notice Pay3.1 What was the Claimant’s notice period?3.2 Was the Claimant paid for that notice period?3.3 If not, was the Claimant guilty of gross misconduct?[4]Direct Age Discrimination (Equality Act 2010 s.13)4.1 Did the Respondent do the following things: 4.1.1 Refer to the age of the claimant in the disciplinary hearing on the 16th of November 2023? 4 .1.2 allocate the claimant less favourable routes. The claimant had a target of 800 cases per day which was madeup from routes. The claimant says he was given less favourable routes which made it harder to achieve his target. 4.1.3 allowing younger staff to leave earlier 4 .1.4 dismiss the claimant because he raised the relevance of being asked about his age during the disciplinary meeting4.2 Was that less favourable treatment? The tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimants. If there was nobody in the same circumstances as the claimant, the tribunal will decide whether they were treated worse than someone else would have been treated. The claimant says they were treated worse than Sean Wooding, Shak Wooding and Shay Wooding.4.3 If so, was it because of age?4.4 Did the Respondent’s treatment amount to a detriment?4.5 Was the treatment a proportionate means of achieving a legitimate aim? The Respondent says its aims were: 4.5.1 To be confirmed in the amended response4.6 The Tribunal will decide in particular:4.6.1 Was the treatment and appropriate and reasonably necessary way to achieve those aims;4.6.2 Could something less discriminatory have been done instead; 4.6. 3 how should the needs of the claimant on the respondent be balanced?[5]Victimisation (Equality Act 2010 S.27)5.1 Did the Claimant do a protected as follows: 5.1.1 Bring bring up the relevance of age during the disciplinary meeting on the 16th of November 2023?5.2 did the respondent to the following things: 5.2.1 dismissed the claimant5.3 by doing so, did it subject the claimant to detriment?5.4 if so, was it because the claimant did it protected act?5.5 was it because the respondent believed the claimant had done, or might do, a protected act?[6]Remedy for discrimination or victimisation6.1 Should the tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?6.2 what financial losses has the discrimination caused the claimant?6.3 Has the claimant taken reasonable steps to replace last earnings, for example by looking for another job?6.4 If not, for what period of loss should the claimant be compensated?6.5 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?6.6 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?6.7 Is there a chance that the Claimant’s employment would have ended in any event? Should their compensation be reduced as a result?6.8 did the ACAS code of practise on disciplinary and grievance procedures apply?6.9 Did the respondent or the claimant unreasonably failed to comply with it?6.10 If so is it just and equitable to increase or decrease any award cable to the claimant?6.11 five portion, up 25%?6.12 should interest be awarded? How much? The Facts 3. This Tribunal decision on the facts does not encompass all the facts which were in dispute in the case. What we set out below is the Tribunal decision on the facts which were relevant to the issues in the case. To be clear, the Tribunal did not consider that the actions of the Claimant, nor Sean Wooding in the reception area, after the Claimant made his abusive comments, are of any relevance to any of the issues in this case. 4. The Claimant and Sean Wooding were two pickers at the Respondent’s warehouse. Their role was to put together orders of chilled/frozen food, for delivery to restaurants and pubs. The work was carried out according to cases and pickers were given routes around the warehouse, to pick out the orders. All pickers had a target of 800 cases per day. They were allocated routes by Sales & Admin team, together with Mr Wiliams as shift manager. After having been allocated their first route, pickers would return to the office and be given, or choose their next route. There was no evidence to suggest that certain routes were denied to the Claimant. Mr Williams conceded that Shaq Wooding was given the urban route on a daily basis, but this was because he could do it quickly. He admitted that there were others that could do this too and that this route is now given to various people. 5. On 1 November 2023 ,The Claimant felt that it was a busy day, that the warehouse was untidy and that the cage he was pushing was not working properly. He also said it was hectic and there were staff shortages. He admitted in his evidence that he was frustrated with the fact that the picking was going slowly that day and that his frustration got the better of him. 6. He saw Sean Wooding, a colleague, standing at the end of the aisle, not picking. As he pushed a cage into the next aisle, the Claimant turned back towards Sean and said “ Do some work you fucking faggot”. Sean Wooding asked him what he had just said and the Claimant repeated the phrase.
The Facts
[7]In response to this, Sean Wooding threw down his headset and ran out of the freezer warehouse. At the same time, a number of colleagues ran towards the Claimant and Sean Wooding, including Ian Williams, shift manager. He spoke to the Claimant initially and the Claimant then carried on working.[8]Mr Williams followed Sean Wooding out of the freezer to the reception area, where Sean Wooding was being corralled by colleagues, who were attempting to calm him down.[9]Mr Williams took some advice from a manager and HR and then returned to speak to the Claimant to tell him that he was suspended from work, pending an investigation about the comment he had made. This was approximately 5- 10 minutes after the initial incident.[10]The Claimant left the freezer and went to the changing room to remove his PPE and then to reception to collect his bag. Mr Williams went with him to ensure that he left the premises and also to ensure that he remained separated from Sean Wooding.[11]When they were both present in the reception area, the Claimant and Sean Wooding exchanged further heated words, which the Claimant alleges included threats to ‘stab/shef/kill’ him and references to knowing where he lived. The Claimant became very agitated as a result of this and told Sean Wooding to “shut up bitch”.[12]Ultimately, Sean Wooding was removed from the reception area by colleagues and the Claimant was escorted to the door by Mr Williams, who wanted to ensure that the two individuals left separately.[13]A suspension letter was sent to the Claimant on 1 November 2023 which said that this was due to an incident on 1 November 2023.[14]Sean Wooding was interviewed on 1 November 2023 in which he says that the Claimant shouted at him “Do some work you fucking faggot” and that he asked him what he had said and he repeated the phrase. At a second investigation meeting on 17 November Sean Wooding asserted that he spoke to the Claimant in the reception area and was “saying to him “ I am not the type of person to disrespect me by calling me faggot and I am not going to do anything, you are only saying it because you are at work, but you would not say that if you were outside of work”. But not once have I threatened him, I am 18 and he is 27 and I find it very weird like he was trying to pick a fight”.[15]An investigation was carried out by Norbert Pietrulewicz into the incident. On 3 November, Mr Williams was interviewed and noted that he had heard the Claimant say “ Do some work you faggot” and that he had repeated this.[16]John Otesanya in interview on 3 November said that he heard the Claimant say “ do some fucking faggot” and that he repeated this comment. In a further interview on 9 November he said that “ Sean was saying that he is 18 but not the type of person to speak to like that. Perrie took this as a threat and he was replying to Sean with cursing etc”.[17]The Claimant was Interviewed with on 7 November 23. The Claimant said that in response to his comment that “ He (SW) ran out of the freezer and I thought he was going to get a knife”. He also admitted that his initial comment should not have been made.[18]Mr Pietrulewicz produced an investigation report on 14 November which indicated that as well as these witnesses, a number of others had been present, but could not specify what had been said. He concluded that there was a case to answer by way of disciplinary action.[19]The Claimant was invited to a disciplinary meeting in a letter dated 14 November 2023. The meeting with Craig Billington took place on 16 November 2023. During that meeting the Claimant asserted that he did not use the word ‘faggot’ and asserted that when they met in reception Sean Wooding made threats against his life.[20]During the meeting Mr Billington played the Claimant the CCTV of the incident in the freezer (CCTV 1). He then also played him a further CCTV (CCTV 3), which Mr Billington referred to as the 2nd CCTV, which showed the interaction between the Claimant and Sean Wooding in the reception area. The Claimant pointed out that this was not the complete footage and requested to see the part where Sean Wooding had entered the reception area.[21]Also during this meeting the Claimant asserted that Sean Wooding had made threats to him and that said “ If someone threatens you with the knife, I will protect myself.. and that’s what I did on that day”.[22]Further, Mr Billington asked the Claimant “ CB:how older are you than Sean W”, PD; 9 Years…. PD: I don’t know what relevance there is he been 18”[23]Mr Billington chose to adjourn the hearing, obtain further CCTV and further interviews and reconvened the hearing on 21 November 2023. By which time, it had been established by the Respondent that Sean Wooding had also acted inappropriately and his agency contract had been terminated.[24]On 21 November, Mr Billington showed the Claimant CCTV 2, (which he referred to as CCTV3), which showed Sean Wooding coming into the reception area and being accompanied by others who attempted to calm him down.[25]In response to this video the Claimant told Mr Billington that he “ saw him going down into his pocket”, although Mr Billington’s view was that Sean Wooding’s hand was behind John’s back, not in his pocket. The Claimant told Mr Billington that “ he had something on him, a knife to stab me”. To which Mr Biilington responded that this was speculation and not visible on the CCTV.[26]The panel watched all three CCTV clips carefully and did not see a knife in any of them at all.[27]After a short adjournment the Claimant was told that he was dismissed for gross misconduct for the use of abusive and derogatory language.[28]Mr Williams’ evidence about route allocation was that there were general minor complaints and comments from staff . He admitted that there were complaints that Shaq Woodings was being given the same route each day. However, there was no evidence to suggest that this was happening due to Shaq’s age, or that the Claimant wasn’t given this route due to his age. Mr Williams did not give any evidence to suggest that the Claimant had ever raised with him the fact that routes were being allocated on the basis of age.[29]The Claimant did appeal against his dismissal by letter on 23 November 2023. He asserted that he was dismissed for raising a Health and Safety issue, when colleagues had to restrain Sean Wooding. He also asserted that the company were at fault for allowing Sean Wooding to pull a knife on him. His final point was that the dismissal was too harsh a penalty. The Claimant did not mention the issue of age discrimination at the time of the appeal.[30]A hearing for the appeal took place on 5 December 2023 at which Ms Wassell considered the points made by the Claimant. Her outcome letter was dated 13 December 2023 and dismissed the appeal.
The Law
[31]S.100 ERA; “(1)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— …..( e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or poroposed to take) appropriate steps to protect himself or other persons from the danger,” (2) For the purposes of subsection (1)(e ) whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time. (3) where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (1)(e ), he shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have dismissed him for taking (or proposing to take) them..”[32]Where an employee believes there to be an imminent danger, they may take appropriate steps to protect themselves or others. Whether the employee took reasonable steps is to be judged by all the circumstances at the time.[33]Oudahar v Esporta Group Ltd 2011 ICR 1406, indicates that the Tribunal must be satisfied that the facts are met, and also decide whether the circumstances of danger that the employee reasonably believed to be serious or imminent were met. If they are not, then s.100(e ) does not apply. If they are met, then the Tribunal must consider whether that was the sole or principal reason for dismissal.[34]The burden of proof is on the employee to prove the reason for dismissal Smith v Hayle Town Council [1978] IRLR 413. Wrongful Dismissal[35]The Tribunal must consider whether there has been a breach of contract by not paying notice pay. The Tribunal will consider the terms of the contract and the factual matrix of the case. This is a separate and different claim from that of unfair dismissal. The Tribunal must be careful to consider whether the damages for unfair dismissal overlap with the breach of contract and ensure that the Claimant is not awarded the same damages twice. Direct Age Discrimination[36]S.13 Equality Act 2010 (1) A person (A) discriminates against another (B) if, because of a protected characteristic A treats B less favourably than A treats or would treat others.[37]In the House of Lords decision of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2003] IRLR 285, ICR 337, it was held by Lord Scott that “the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects of the victim save that he, or she, is not a member of the protected class”.[38]The test as to whether there has been less favourable treatment is an objective one: the claimant’s belief that there has been less favourable treatment is insufficient. Likewise, the treatment must be less favourable, not merely different. Unreasonable treatment is not sufficient, although it may be evidence which supports an inference if there is no adequate explanation for the behaviour (Anya v University of Oxford and anor 2001 ICR 847, CA).[39]Often there will be no clear direct evidence of discrimination and the Tribunal will have to explore the mental processes of the alleged discriminator and draw inferences. The claimant will need to prove facts from which a Tribunal could properly conclude that the respondent had committed an unlawful act of discrimination, and this can include the drawing of inferences. However, simply establishing a difference in status is insufficient: there must be “something more” (Madarassy v Nomura International plc [2007 EWCA Civ 33 and Igen Ltd v Wong [2005 ICR 931]). Likewise, unreasonable conduct alone is insufficient to infer discrimination.[40]Section 136 of the Equality Act sets out the relevant burden of proof that must be applied. A two-stage process is followed. Initially it is for the Claimant to prove, on the balance of probabilities, primary facts from which we could conclude, in the absence of an adequate explanation from the Respondent, that the Respondent committed an act of unlawful discrimination.[41]At the second stage, discrimination is presumed to have occurred, unless the Respondent can show otherwise. The standard of proof is again on the balance of probabilities. In order to discharge that burden of proof, the Respondent must adduce cogent evidence that the treatment was in no sense whatsoever because of the Claimant’s race. The Respondent does not have to show that its conduct was reasonable or sensible for this purpose, merely that its explanation for acting the way that it did was nondiscriminatory. See Royal Mail Group v Efobi [2021] UKSC 33 Victimisation[42]S.27 Equality 2010 states;(1) A person (A) victimises another person (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act(2) Each of the following is a protected act- (a) Bringing proceedings under this Act, (b) Giving evidence or information in connection with proceedings under this Act, (c) Doing any other thing for the purposes of or in connection with this Act (d) Making an allegation (whether or not express) that A or another person has contravened this Act.[43]The issue of whether a detriment exists is a subjective test of whether the victim perceives it to be a detriment, followed by an objective consideration of whether it is reasonable for the Claimant to have had that view, in all the circumstances. Chief Constable of West Yorkshire v Khan [2001] 1 WLR 1947.[44]The test under s.27 requires the Tribunal to identify the real reason, or motive for the action.[45]The Claimant asserts that he was dismissed due to the fact (or principally because) he raised an issue about health and safety – namely that a colleague had brought a knife to work.[46]The Tribunal considered all the evidence provided by the Claimant in order to assess where and when he spoke of a colleague having brought a knife to work. The evidence of this was that he had told this to Mr Pietrulewicz during his interview and that he told Mr Billington during the first part of the disciplinary meeting on 16 November 2023. The Claimant raised the fact that he believed that Sean Wooding had a knife again on 21 November 2023 at the reconvened meeting.[47]By the time the Claimant raised his concern about the knife, the Respondent had commenced an investigation into the Claimant’s use of abusive language.[48]The Tribunal did not consider that the Claimant believed he was in imminent danger at the point where he made the abusive comment to Sean Wooding. The Tribunal saw the CCTV which did not show Sean Wooding as close or threatening to the Claimant. Rather, the Tribunal found that the order of events was that the Claimant made his comment first and that any threats by Sean Wooding, were a reaction to that abusive language.[49]The Tribunal therefore did not consider that the Claimant raising the issue of a knife during the investigation or disciplinary meeting, led directly to his dismissal. The Tribunal concluded that the reason for the Claimant’s dismissal was his use of abusive language towards a colleague. This claim is dismissed. Wrongful dismissal[50]The Claimant’s contract said that he was not entitled to notice pay, if he was dismissed for gross misconduct. The Respondent’s disciplinary policy indicated that foul and abusive or discriminatory language was an act of gross misconduct.[51]The Tribunal considered whether what the Claimant had done amounted to gross misconduct.; The Tribunal were satisfied on a balance of probabilities that he used the word ‘faggot’, based on the evidence of those who had been within earshot, in the freezer warehouse.[52]The Tribunal noted in particular, that there were witnesses to the incident in the freezer who were standing closer to the Claimant, or about the same distance away as Sean Wooding, who were able to hear what the Claimant said. The Tribunal viewed the CCTV themselves and saw the reaction of colleagues who ran (literally) to stand between the Claimant and Sean Wooding, between the first and second time that the Claimant said something to Sean Wooding. The Tribunal were satisfied that their evidence of what was said was reliable.[53]The Tribunal were also satisfied that the use of the word ‘faggot’ is a homophobic slur and would be offensive to many people. It would therefore be sufficient to warrant a consideration of gross misconduct.[54]The Respondent’s zero tolerance of discrimination policy, is set out in their code of business ethics and indicates that employees must not engage in any “abusive, harassing or offensive conduct, whether verbal, physical or visual.”[55]The Tribunal were therefore satisfied that the Claimant used the word ‘faggot’ towards Sean Wooding and that this amounted to a gross misconduct. On that basis, the Claimant was not entitled to notice pay in accordance with the Respondent’s policy. The Tribunal dismissed this claim. Age discrimination[56]The Claimant was 27 years old at the time of the incident which led to his dismissal. Sean Wooding, the person with whom the Claimant compares himself was 18 years old. The Claimant asserts that the age group with which he compares himself is those under 25 years. 4.1.1[57]Mr Billington admitted that there was a conversation in the meeting on 16 November about how much older the Claimant was than Sean Wooding. This was because Sean Woodinghad referred to his age in comparison to the Claimant in his witness statement to the investigation and had mentioned the same thing to John.[58]The Tribunal considered whether someone else, of under 25 years would have been treated the same way by Mr Billington. The Tribunal concluded that they would have been, had Sean Wooding referred to the difference in their age during his evidence. The Tribunal had no grounds on which to infer that Mr Billington asked this question because the Claimant was over 25 years old. He asked it because it was raised by Sean Wooding and he was trying to understand if there was any significance to the comment.[59]The Tribunal concluded that there was no less favourable treatment and dismiss this allegation. 4.1.2[60]The Claimant asserted that he and others had a target of 800 cases. The evidence shown to the Tribunal indicated that the target was not hit on a regular basis by any of the pickers. The evidence of Mr Williams was that one picker was given the same route each morning and when this was pointed out, this was changed. However, there was no suggestion that there was any consequence to the Claimant for not reaching the target and therefore no detriment.[61]Even if being given different routes was less favourable treatment, there were no grounds on which to infer that this was done on the basis of age. Mr Williams’ evidence was that the Sales and Admin team allocated some of the routes and that the remainder were handed out during the day, when someone completed their previous route. There was no evidence from which it could be inferred that age played any part in deciding who did which route.[62]This allegation was therefore dismissed. 4.1.3[63]The evidence before the Tribunal was that on some occasions, when it looked as though the days work could be comfortably completed, those who finished their routes were allowed to leave early. For agency staff, this meant that they could leave, but not be paid any further, as their remuneration was based on hours worked. For the Respondent’ employees they were allowed to leave early and use hours of their holiday entitlement to ensure they were paid for the whole day. This did not amount to any more favourable treatment, as they were using up their holiday allowance.[64]The Tribunal could not therefore conclude that there was any less favourable treatment of the Claimant in not allowing him to leave. Nor had the Tribunal seen any evidence of any incident where the Claimant had been refused the right to leave early. This claim was not proved by the Claimant and was dismissed. 4.1.4[65]The Tribunal considered all the evidence in relation to the dismissal and concluded that the active reason in the mind of Mr Billington at the time of dismissal was the Claimant’s use of abusive language towards his colleague. The Tribunal could find no evidence to support the suggestion that the Claimant being over 25 years old was an active reason for his dismissal.[66]The Tribunal noted that the Claimant’s age was raised as an issue in the disciplinary hearing, as Sean Wooding had referred to the fact that he was only 18 years old in his interview and Mr Billington tried to establish the difference between their ages. When the Claimant said that he felt that this was not relevant, Mr Billington agreed and moved on. There was no evidence from which it could be inferred that Mr Billington then dismissed the Claimant due to this comment. Mr Billington’s evidence was that he agreed with the Claimant that age was irrelevant.[67]The Tribunal decided that the Claimant had failed to prove facts from which it could be concluded that this did in fact occur and therefore there was no less favourable treatment. Victimisation[68]The Tribunal were satisfied that the Claimant did ask what the relevance of age was during the disciplinary meeting on 16 November.[69]To be a protected act it must be done “for the purposes of or in connection with EQA”.[70]It was not clear to the Tribunal, that the Claimant asking why it was relevant to ask about his age, was him raising an issue in connection with the EQA.[71]Given that the accusation he was being disciplined for was use of abusive language, there is no obvious issue or connection to his age. Hence when Mr Biilington asked him about the differential in age, the Claimant’s response was to ask him why that was relevant. This was a genuine question, but there is no indication that it was asked because the Claimant had any concern, or interest, or even knowledge of the EQA, or the right to be protected from discrimination on grounds of age.[72]The Tribunal could find no evidence from the Claimant to support the suggestion that he was raising an issue with regard to potential discrimination by asking that question. The Claimant did not make any reference to this in his appeal.[73]The Tribunal found therefore that this question did not amount to a protected act and therefore there can be no claim for victimisation.[74]Even if the Tribunal are wrong and that was a protected act. We concluded that the Claimant was not dismissed because he had asked this question. The Tribunal accepted Mr Billington’s evidence that the dismissal decision was due to the Claimant’s abusive language. This provides a reason which is not related to the protected act, which the Tribunal accepted as the principal reason for the dismissal.[75]This allegation was dismissed. Unauthorised Deductions[76]The Claimant asserted that he was owed £1625 for the period of November 2023 in which he worked.[77]The Claimant was summarily dismissed on 21 November and therefore any claim would cease that day.[78]The Respondent’s evidence outlined that the payroll had already started for payment that month, so a BACS recall was made. The balancing payment was made the following month, which deducted the days in November after the dismissal. The other additional payment, which was made a month in arrears was included, as was appropriate.[79]The Tribunal accepted Mr Jones evidence which was not challenged in cross examination and therefore found that the Claimant was paid all the sums which were owed to him. Approved by: