Mr M Islam v BMW UK Manufacturing Ltd: 3301767/2023

EMPLOYMENT TRIBUNALS

Case No 3301767/2023

Between

Mr M IslamClaimant

BMW UK Manufacturing LtdRespondent

Before

Judge Dobbie, sitting with Members Ms K Omer and Mr John Williams

In person for claimant

Mr J McKeown (instructed by Counsel) for respondent

Date 17 March 2025

JUDGMENT

[1]The Claimant’s claim for constructive unfair dismissal is dismissed;

[2]The Claimant’s claims for direct race discrimination are dismissed; and

[3]The Claimant’s claims for harassment related to race are dismissed.

REASONS

[1]The Respondent is a well-known car manufacturer. The Claimant was employed by the Respondent as an Assembly Associate from 1 December 2019 until 15 December 2022 when he resigned without notice.

[2]By a claim form presented to the Tribunal on 9 February 2023, the Claimant brought claims against the Respondent, for:(1) constructive unfair dismissal;

(2) direct race discrimination; and

(3) harassment related to race.

Issues

[3]The claim had been case managed at a hearing with EJ Anstis on 19 July 2023. On 15 September 2023, the Respondent submitted a list of issues to the Tribunal which it stated the Claimant had agreed [68-74]. In the bundle of document provided to us, there was an email from the Claimant to the Respondent dated 15 September 2023 indicating he had indeed agreed the Respondent’s list of issues by that date (suggesting one amendment which the Respondent agreed) [92]. However, on 22 September 2023, the Claimant replied further to the Respondent stating that he had not agreed that list of issues and proposing an alternative version [78-84].

[4]At the outset of the final hearing, the parties were still not agreed on a final version of the list of issues. The bench had to determine the issues. In some respects, the Claimant’s version of the issues was narrower, but in others, was more expansive. I took both parties through each version and managed to reach an agreed version. This required using the wording of the Claimant’s allegations (which was more lengthy). The final agreed list of issues is as follows (slightly abridged to reduce the wordiness): Constructive Unfair Dismissal

Issues

[1]Did the Respondent act in any or all of the following ways:(a) On or around November 2022, the PL and LA manager stated that the Claimant had been working too slowly. The Claimant asked the PL Manager and the LA to watch the process on camera and despite it being clear that there was a problem with the automated process, the PL and the LA Manager were micromanaging the Claimant and trying to find a way to raise issues about the Claimant’s performance;

(b) On the 9 November 2022, the Claimant was handed a letter to attend a disciplinary meeting on 10 November 2022. The Respondent provided less than 24 hours’ notice, which was in breach of the Respondent’s disciplinary policy and the ACAS guidelines. This lack of notice meant that the Claimant was unable to secure the attendance of his companion of choice (a specific union representative) or prepare adequately;

(c) At the meeting on 10 November 2022, the Claimant was provided with a sheet setting out the AIP points with a breakdown of the number of days off work. The Claimant explained to Ian Franklin that he recalled two days off but not one occasion out of the three mentioned. Ian Franklin stated that it was classed an absence as he was determined to carry out the 13-week review. The Claimant asked for a copy of the return to work papers but Mr Franklin said, “I will print it out later”;

(d) The Respondent: a) failed to provide the Claimant with the evidence prior to the disciplinary hearing; b) the evidence was not produced during the disciplinary hearing giving him inadequate time to consider it; c) the Respondent imposed a sanction of a 13-week review; and d) breached the sickness policy by not taking into account the day the Claimant self-certified;

(e) On 10 November 2022, the Respondent backdated the sanction letter to 22 August 2022 therefore the Claimant did not have the opportunity to appeal the 13-week sanction; and

(f) On or around 1 – 12 December 2022, the Respondent had concluded the outcome to the Claimant's grievance and failed to communicate this to the Claimant until the Claimant chased this.

[2]In respect of any or all acts / omissions, did the Respondent, without reasonable and proper cause conduct itself in a manner that was calculated or likely to destroy or seriously undermine the mutual trust and confidence between the parties?

[3]Did the Claimant resign because of an act or omission (or series of acts and omissions) by the Respondent that amounted to a breach of trust and confidence? Did the claimant affirm the contract?

[5]Has the Respondent shown a potentially fair reason for dismissal, and did the Respondent act reasonably in all the circumstances? Harassment related to race

[6]Did the Respondent act in all or any of the following ways?:(a) On or around January 2020 to March 2020, The Claimant was moved around different sections and jobs, and others were not. Further, after June 2020, Ian Franklin made constant comments such as “what are you doing here, you belong in my area” and shouted at the Claimant;

(b) On or around November 2021, the Claimant was called a ‘paki’ by Afmet Lika;

(c) The Claimant raised a grievance on or around November 2021. The Respondent failed to address the grievance in a reasonable period and allowed the conduct of Afmet Lika to continue for a period of 4 weeks as the Claimant was requested to work in the same area as Afmet Lika. In the 4-week period, the Claimant was subjected to derogatory comments such as ‘you pussy’ and constant comments that the Claimant had lied about the “Paki” comment;

(d) On or around April 2022, the PL Manager shouted at the Claimant by telling him not to push the assembly line. The Claimant reported the incident to the SPL Manger and no action was taken;

(e) On or around October 2022, the Claimant was warned for not wearing his safety hat when on site by Dan Goff (LA). The Claimant raised the issue of why Liam Sturdy and two others was not wearing safety helmets, but Dan Geoff (LA) dismissed this and told the Claimant he was being childish;

(f) On or around October 2022, a new sheet was processed for the job rotations which was automatically generated by the computer, but then manually altered in respect of him only. The Claimant raised a complaint as to why the job rotation sheet showed that only his duties and locations were being rotated;

(g) On or around November 2022, the PL and LA manager stated that the Claimant had been working too slowly. The Claimant asked the PL Manager and the LA to watch the process on camera and despite it being clear that there was a problem with the automated process, the PL and the LA Manager were micromanaging the Claimant and trying to find a way to raise issues about the Claimant’s performance; and

(h) Did the respondent conduct a fair grievance investigation and procedure in November / December 2022? Was the conduct related to race?

[8]Did the conduct have the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for the Claimant?

[9]If yes, was it reasonable for the Claimant to regard the conduct as having that effect in all the circumstances?

[10]Can the Respondent be liable for the actions of a third party that is not employed by it? Direct Race discrimination

[11]The Claimant describes himself as Asian. He compares himself to nonAsian Associates (some real comparators and in some cases a hypothetical comparator only).

[12]Did the Respondent act in all or any of the following ways:(a) From January 2020: i. the Claimant was permanently assigned to working in the APU4 unit, but from or around February to June 2020, the Claimant was requested by Dan Geoff (LA), to leave his area to cover the engines section of the assembly line (APU6). After that, Ian Franklin would constantly say to the Claimant “what are you doing here, you belong in my area” and would sometimes shout at the Claimant; ii. On or around January 2020 to March 2020, the Claimant was told to go and work engines by Dan Geoff (LA). The Claimant refused to go, was told to go and he was told to report to Ian Franklin. In accordance with the Shift Rotation Policy which was agreed as part of the Union Collective Agreement, the Respondent could not move permanent employees to different sections and had to ask all the temporary staff before asking the permanent employees. The Claimant will rely on actual comparators who are Adam Denni and Bartosz Zakrzewski.

(b) On or around April 2021, the Claimant witnessed Liam Sturdy take out the cable from the Claimant’s assembly line. The Claimant made Mr Sahqab aware of this on or around April 2021 but he took no action and continued to reprimand (by way of verbal warnings) the Claimant for missing parts. On or around May 2021, the Claimant was told by Dan Goff that the parts sensor cable was missing. The cameras were checked, and the Claimant raised a verbal complaint with Mr Sahqab. There was no investigation or outcome provided. The Claimant’s complaint is that he was directly discriminated and received less favourable treatment, which was the verbal warning, failed to address the Claimant’s verbal grievance with no outcome provided to the Claimant. The Claimant will rely on actual comparator as Liam Sturdy in respect of the verbal warning(s) and a hypothetical comparator for the grievance who is a non-Asian;

(c) On or around October 2021, the Claimant left one minute early to go his break. Dan Goff (LA) reported the Claimant to the SPL Manager. The actual comparator is Adam Deeney;

(d) On or around November 2021, the Claimant was called a ‘paki’ by Afmet Lika;.

(e) The Claimant raised a grievance on or around November 2021. The Respondent failed to address the grievance in a reasonable period and allowed the conduct of Afmet Lika to continue. In the four-week investigation period, the Claimant was subjected to derogatory comments such as ‘you pussy’ and constant comments that the Claimant had lied about the “Paki” comment. The Respondent directly discriminated against the Claimant because of the Claimant’s race by treating the Claimant less favourably, the less favourable treatment is the delay in Respondent addressing the grievance and allowing the harassment to continue. The Claimant will rely on a hypothetical comparator who is non-Asian;

(f) On or around October 2022, the Claimant was warned for not wearing his safety hat when on site by Dan Goff. The Claimant raised the issue of Liam Sturdy and two others was not wearing safety helmets, but Dan Goff dismissed this and told the Claimant he was being childish;

(g) On or around October 2022, a new sheet was processed for the job rotations which was automatically generated by the computer, but then manually altered in respect of him only by Ian Franklin. The Claimant raised a complaint as to why the job rotation sheet showed that only his duties and locations were being rotated;

(h) On the 9 November 2022, the Claimant was handed a letter to attend a disciplinary meeting on 10 November 2022. The Respondent provided less than 24 hours’ notice, in breach of the Respondent’s disciplinary policy and the ACAS guidelines. As such, the Claimant had inadequate time to prepare and could not secure the attendance of his chosen union companion; (g) The Claimant was provided with a sheet setting out the AIP points with a breakdown of the number of days off work. The Claimant explained to Ian Franklin that he recalled the two days off but not on one occasion out of the three mentioned. Ian Franklin stated that it was classed an absence as he was determined to carry out the 13-week review. The Claimant asked for a copy of the return to work sheet and Mr Franklin said, “I will print it out later”; (h) The Respondent: a) failed to provide the Claimant with the evidence prior to the disciplinary hearing; b) the evidence was produced during the disciplinary hearing giving the Claimant no time to review and consider it; c) the Respondent imposed a sanction of a 13-week review; and d) breached the sickness policy by not taking into account the day the Claimant had self-certified;

(i) On 10 November 2022, the Respondent backdated the sanction letter to 22 August 2022 and therefore the Claimant did not have the opportunity to appeal the 13-week sanction.

[13]Did the above amount to less favourable treatment of the Claimant in comparison to his comparators and/or a hypothetical comparator?

[14]If so, was the treatment because of the Claimant’s race? Jurisdiction

[15]Is each of the Claimant’s claims in time, considering the statutory limits and the extension for ACAS conciliation?

[16]Was there a continuing act of discrimination? It is the Claimant’s case that the discriminatory acts claimed are a series of connected acts extending over a period.

[17]If not, would it be just and equitable for the Tribunal to extend time and if so, for what period? Procedure and evidence

[18]The parties had agreed on a 621-page bundle of evidence. However, the Claimant applied to admit additional documents totaling 265 pages. The Respondent objected to the 265 pages on grounds of relevance. At the hearing, the Claimant indicated he would reduce the number of documents he wished to add and re-send them to the Tribunal and the Respondent. The Claimant then submitted just 11 pages of additional evidence by email. In response, the Respondent maintained the material was not relevant but that it would not object to its admission so as not to waste time in the hearing. The material was therefore admitted and marked “C1”.

[19]The Respondent separately applied for the Tribunal to decide the jurisdictional (time) points before the substantive matters. This had already been considered and rejected by EJ Anstis at the hearing on 19 July 2023 [58]. Nonetheless, the Tribunal took time to consider the re-application. The Tribunal then delivered its decision rejecting the application, with reasons given. Briefly, that Serco Ltd v Wells

[2016] UKEAT 0330/15

states that a judge should be sparing in the exercise of their power to vary or revoke an earlier order of another judge under rule 29. The fact that an order should be varied if it is “necessary in the interests of justice” should be interpreted narrowly. While there may be rare and out of the ordinary cases where variation or revocation should occur, in general such an order will only be appropriate if there has been a material change of circumstances or the order was based on a misstatement. The Tribunal decided there was no change in circumstances and no evidence of misstatement. Indeed, we considered that it would be necessary to hear all the evidence to decide if there was a continuing act of discrimination and if so when it ended. Further, we decided it would be an inefficient use of the Tribunal’s limited time to hear the jurisdiction point first, when the Claimant’s claims might nonetheless proceed (if the application failed) and then there would be insufficient time to hear the evidence on the substantive claims. All witnesses were ready and the Tribunal panel had been gathered for the final hearing for three days and there was a risk matters might go part-heard if we granted the Respondent’s application.

[20]The parties were informed that the Tribunal would only read pages they were taken to in evidence or in closing submissions. A loose timetable was agreed upon and the process explained in detail to the Claimant. The Tribunal heard live evidence from the following witnesses in the following order:(a) The Claimant;

(b) Mr Alinaz;

(d) Ian Franklin;

(e) Mr Ikhlaq “Jack” Mohammed; and

(f) Mr Ahmed Sahqab.

Findings of fact

[21]In 2009, prior to being employed by the Respondent, the Claimant had worked for the Respondent as an agency worker in the Respondent’s APU7 unit at the same Oxford site. He was then moved to APU6 (underbody) in 2013 and stayed there until at least 2015. At para 2 of his witness statement, the Claimant stated (and we accepted) that in 2015, he “was put in a talent pool were I was given the opportunity to go and learn various jobs throughout assembly. Over a period of two years I managed to learn fifty processes[ this was achieved with no relevant training] which gave me the ability to cover absences throughout production to ensure production was running effectively. I was the only associate who achieved fifty processes.”

[22]The Respondent recognises UNITE The Union and the collective terms and conditions were the Plant Oxford Collective Agreement dated October 2020 (the Collective Agreement). The Claimant was a member of UNITE.

[23]The Claimant’s contract of employment with the Respondent commenced on 1 December 2019, in the role of Assembly Associate [255]. In his contract, it stated he was working in the Department: “Filling Processes, Inline Work, F1”. However, the contract also stated: “You may be required to undertake other duties from time to time as the Company may reasonably require.” [255].

[24]Under the collective agreement, section 43, at page [190] it stated that: “The principle of job rotation is to provide flexibility within the team where each associate (on capability) should become proficient in at least (4) jobs inclusive of the associate’s regular assignment. This principle not only gives flexibility, it also sustains quality in that job rotation provides the opportunity for associates to share the work content on jobs throughout the shift with less monotony and a reduced likelihood of repetitive strain injuries. Job rotation is pivotal to BMW UK Manufacturing in terms of:- o Operation of shift patterns [see Appendix 2] o Operation of flexible holidays o Use of temporary / agency labour Process Area Managers and their teams should ensure that job rotation is fully implemented and in operation within their areas. … Under no circumstances should any associate be asked to carry out an operation where he/she has not been fully trained. All associates whether BMW or Agency will undergo comprehensive on the job training before operating a full assignment. All associates are required to job rotate, subject to capability, frequencies for job rotation may vary dependant on the process. Under no circumstances will quality be compromised”

[25]As such, Associates are trained on a minimum number of four jobs within their APU area (also referred to as a unit) and rotate between jobs. There is an automated system that arranges which jobs each Associate will do within each APU during the shift. However, managers can and do manually change the automated plan to meet any shortfalls in demand and this can be done prior to or during a shift in question.

[26]The Claimant accepted in his evidence that he had undergone “on the job training” in APUs 7, 6, 4 and 5 since he had worked for the Respondent in 2009. There were training records in the Claimant’s name that showed he had undertaken training in various processes - “jobs” in APU6 and had been signed off as able to do those jobs. They were:(a) F55 crossbrace [237]

(b) Front Exhaust [238]

(d) Heatshields [240]

(e) L\H Stuff Up [241]

(f) Outer Ball Joint [242]

(g) Inner Ball Joint [243]

(h) Rear Exhaust Worker 2 [244]

[27]The Claimant stated that he had been told by Donald Adams (a TU Rep) that the collective agreement stated agency workers would always be picked to move units before permanent staff if there was a need to backfill a unit. However, this was not in the collective agreement presented to us and the Claimant did not call Donald Adams as a witness. The Respondent refuted this assertion. The above term from the Claimant’s contract tends to suggest that all workers are expected to be deployed flexibly when needed. We therefore do not find on balance of probabilities that this was part of any agreement nor was it a practice adopted.

[28]The Claimant worked on an assembly line in which a car part moved from one process to another in a well-timed and efficient process that led to one car being produced every minute. Due to the fact that each Associate in the chain depended on the worker prior to them doing their role in time for the assembly line to keep moving, workers had to work “buzzer to buzzer”. That means that a claxon (buzzer) would sound for the start of each shift and workers had to work until the claxon went at the end of the shift. They could not leave the line in between times.

[29]The hierarchy in the plant was as follows:(a) Associate

(b) Senior Associate

(d) Senior Process Leader

(e) Group Leader

[30]The Claimant asserts that he was permanently assigned to APU5. APU4 changed to APU5 over time and they were thus the same APU and the names are used interchangeably.

[31]The Claimant was assigned to APU4/5 in 2019 and into January 2020. In February 2020, he was then moved to APU6 (Engines) until June 2020 from time to time (not as a continuous period). We accepted Dan Goff’s unchallenged evidence that the move to APU6 “was for ad hoc days rather than one continuous period. On each occasion, Mo agreed to go to APU6. I recall one occasions when Mo said he did not want to go and so I did not send him.”

[32]We find that Ian Franklin did not constantly say to or shout at the Claimant “What are you doing here, you belong in my area?” after the Claimant had returned to consistently working in APU4/5 (from APU6) in or around June / July 2020. We make this finding because Ian Franklin denied he made any such comments / shouting and there is no other evidence to support the Claimant’s claims other than his own testimony. This is despite the Claimant calling other witnesses, at least one of whom was working during this time. If this had been a constant matter (as alleged) we would expect the Claimant to have been able to produce a witness to corroborate his account. Ian Franklin worked in APU4/5 until April 2021 (per paragraphs 12 and 13 Mr Franklin’s statement) hence it would not make sense for him to be making the comment to the Claimant when they were both working in the same area at that time. Further, Ian Franklin worked a different shift pattern to the Claimant and would not therefore cross paths with him often (or at all) during this time.

[33]In October 2020, a new collective agreement came into effect which repeated the quoted text above in respect of job rotation. It further stated that (at [287]): “Temporary Moves Current practice in moving labour on a temporary basis is well established and ensures the required level of flexibility. Any problems arising would be subject to discussions by the Company and the Trade Union.”

[34]In respect of breaks, the 2020 collective agreement stated: “Local arrangements will be made relating to the timing of breaks. The timing of breaks may be varied within practical limits should this be operationally necessary. If Associates plan to go off site during paid breaks, including the main car park, they must inform their Line Manager or Supervisor in order to assist health and safety obligations.”

[35]In or around November 2020, the Claimant was working in APU4/5 under Ahmed Sahqab who was at that time a Senior Process Leader. Mr Sahqab describes himself as being of Asian origin. Dan Goff (Lead Associate) informed Mr Sahqab that there were missing parts on the Claimant’s production line and Sahqab raised this with the Claimant. There is no evidence that the Claimant was given any “warnings” for this as he alleges. In his live evidence, the Claimant accepted that at one point when he was fasting he was responsible for missing a part.

[36]In April 2021, the Claimant informed Mr Sahqab that Liam Sturdy (an agency worker) working in APU4/5 as absence cover had removed a brake cable from the Claimant’s assembly line. Mr Sahqab spoke to both Liam Sturdy and Dan Goff to investigate. The Claimant accepted that he was never accused of having removed the cable on this occasion.

[37]In his live evidence, the Claimant accepted that Mr Goff reviewed the CCTV to see if there was any evidence to show how the brake cable came to be missing on that occasion and that the Claimant also spoke to his union representative. The Claimant agreed in his live evidence that the CCTV did not show Liam Sturdy removing the cable. Mr Sturdy denied the allegation. The Claimant also accepted the proposition that the Respondent could not therefore progress the matter to any formal process against Mr Sturdy. Finally, the Claimant accepted that after reviewing the CCTV, no one was suggesting that he (the Claimant) might be responsible for the missing part. The Claimant did not raise a formal complaint at any time in respect of this matter. There was no formal investigation or process launched in respect of this matter.

[38]In October 2021, the Claimant left his production line one minute early to start his break, leaving the line before the claxon. The Claimant contends that Mr Goff reported him to a Senior Process Leader Mr Sahqab and that this amounts to direct race discrimination because Adam Denni used to go early but was not reported by Mr Goff for doing so. The Claimant accepted he did not see anyone leave early, but that when he would get to the canteen, people were already there and therefore he assumed people must have left early, including Adam Denni. Mr Toth stated that from time to time people left their line early but that he sometimes saw them being told off or given a disciplinary. Both Mr Allinaz and the Claimant accepted that they would not always know if people had been reprimanded for leaving early.

[39]Mr Goff could not recall reporting the Claimant to Mr Sahqab, but stated that if Associates regularly left the line early, he might need to raise it with a senior manager to resolve. Mr Sahqab stated that he did not recall Mr Goff raising the matter with him, but if he had, it would have been entirely reasonable to do so, due to the need to keep Associates working to timings.

[40]We find that Associates did on occasion leave the line early when they were not supposed to. When this happened, staff were reminded they had to remain on the line “buzzer to buzzer”. We accepted this evidence because it was credible and common sense that if the Respondent operates production lines, it cannot allow people to leave early since this will disrupt the entire line. Given that a car is made each minute, leaving the line one minute early is the difference between finishing a car or not.

[41]The Claimant accepted in his live evidence that he cannot know if Mr Goff had reported others for leaving early because he did not work alongside Mr Goff at all times and would not know if Mr Goff had held such a conversation with a senior manager or not.

[42]In November 2021, the Claimant asserts that an agency worker, Mr Afmet Lika, made a derogatory comment towards him by calling him a “paki” and that this amounts to both race harassment and direct race discrimination. We did not hear evidence from Mr Lika, but we had a copy of the grievance interview notes. We find on balance of probabilities that Mr Lika did make this comment. We make this finding because: the Claimant testified that he had; Mr Sahqab stated in evidence that the agency that employed Mr Lika gave him a final written warning for it; and the Respondent also upheld the Claimant’s grievance, finding that “there was evidence to substantiate your allegations” [415].

[43]The Claimant raised a written grievance about the comment on 19 November 2021. Mr Lika was temporarily moved to a different part of the unit / APU, outside of the Claimant’s line of sight or contact during the investigation. The grievance outcome was delivered on 16 December 2021. The Claimant states that during the four weeks between raising his grievance and the outcome, Mr Lika accused him of lying about the comment and called him other derogatory terms such as “pussy”. We accepted the Claimant’s evidence on this because Mr Lika was held to have made derogatory comments towards the Claimant in respect of his race, the Claimant testified that Mr Lika had made these secondary comments, and of the witnesses that came to give evidence, none did or could contradict the Claimant’s evidence on this point. Further, Mr Alinaz corroborated the Claimant’s evidence.

[44]We find that Mr Lika was retained within the same APU during the investigation (albeit he was moved further away from the Claimant) and that the level of separation imposed was inadequate. Given the seriousness of the allegations, the Respondent should have moved Mr Lika to a different APU (temporarily) pending the outcome of the grievance.

[45]The Respondent interviewed five people in respect of the grievance investigation. It also referred the matter to the agency Mr Lika was engaged through. The Respondent produced an outcome report which upheld the Claimant’s complaint, on 16 December 2021 [415]. The Claimant did not appeal any aspect of the outcome. The Claimant stated in his live evidence that at this time, he “felt they had dealt with the issue” and was not unhappy about how it had been handled until he received disclosure of documents in the claim, after having resigned. After the grievance, Mr Lika was still engaged to work for the Respondent through the agency, but he was moved to a different APU, away from the Claimant.

[46]The Claimant contends that in April 2022, Ian Franklin shouted at him for ‘pushing the line’ and the Claimant reported this to Mr Sahqab. Mr Franklin recalls talking to the Claimant about ‘pushing the line’ because he said the Claimant was doing to forcefully, but he denied shouting. ‘Pushing the line’ refers to pushing the platen which holds the rear subframe as it moves along the assembly line. We accepted Mr Franklin’s evidence that pushing the line forcefully could risk damaging parts or injuring those working on the line. We find that the Claimant did push the line (as he admitted) and that on occasion he might have pushed it more forcefully than he ought to have done. Mr Toth gave evidence that it was sometimes necessary to push the line, but that he did not witness Ian Franklin speaking to Claimant about this.

[47]We find that Mr Franklin did tell the Claimant to stop pushing the line on this occasion but we do not find that he shouted at the Claimant. This is because he denied doing so and there was no independent evidence to corroborate the Claimant’s testimony, despite various witnesses being called to give evidence. Further, in the stress risk assessment completed by the Claimant on 1 December 2022, he referred to Mr Franklin telling him not to push the line but makes no mention of shouting [450].

[48]The Claimant stated that in October 2022, he was ‘warned’ for not wearing his hard hat. The Claimant accepted in evidence that Associates are expected to wear hard hats at all times and that this is necessary for health and safety (H&S). Further, that it was part of Mr Goff’s role to ensure H&S was upheld. The Claimant also accepted that on this occasion, he was not wearing his hat and that it was in a box beside him. He alleges Mr Goff asked (not shouted at) him to put his hat on but did not ask the same of Liam Sturdy (or others) who he says were also without hats. Mr Goff recalled the matter and recalls that when he asked the Claimant to wear his hat, the Claimant identified another who was not wearing their hat. Mr Goff did not specify whether he had then asked that other person to wear their hat or not in his witness statement.

[49]Mr Sahqab recalled that if Mr Goff considered that Associates were not acting in a safe manner, he would report it to him and that in respect of Associates not wearing hats: “It is a regular occurrence that this is brought to me, it is a high priority”. He could not recall if Mr Goff reported just the Claimant on this specific occasion or others too. Mr Goff stated in his live evidence that “I walked away and then went and told Ahmed of you and the other associate not wearing hats.”

[50]Mr Alinaz (who described himself as Asian) recalled that the Claimant was treated differently in respect of wearing a hat. He stated that “Liam who came onto station without his hat. He never used to wear hat and this was surprising why Dan Goff would not ask him to do it. It is health and safety that we have to wear a hat… Everyone was told it is part of the process on certain processes, you have to wear a hat, but on others you can get away with it.”

[51]Mr Toth stated he did not witness the specific incident, but that on various other occasions he witnessed Liam Sturdy and two others (George and Adam) not wearing hats and “getting away with it”. Further, that “For a long time there senior managers walked by and people not wearing hats and they did not mention anything… That was a long term, 2 years during management under Ian Franklin and Dan Goff lots of people not wearing it and no telling off.”

[52]We find that the general rule was that hard hats should be worn at all times, but that the enforcement of this had been sporadic at times. On the specific occasion in question, we find that Mr Goff did address the Claimant only, not others, for failing to wear his hard hat, despite the fact that others were not wearing theirs, including Mr Sturdy.

[53]The Claimant asserts that in October 2022, Mr Franklin manually altered the computer-generated job sheet for him only and that Mr Sahqab investigated this and informed the Claimant of this. However, he also complains that in October 2022, Dan Goff moved him to a different part of the assembly line and that he raised this with Mr Sahqab, who told him the moves were computer generated.

[54]Mr Franklin stated he could not recall manually altering the job rotation sheet for the Claimant in October 2022, but that if he did, it was a reasonable and normal thing to do to ensure that the necessary skills were deployed as needed by the Respondent. Mr Sahqab stated in his statement: “I recall that some time in 2022, Mo asked why the job rotation sheet had been changed to re-allocate him within APU6 for the day. I explained the Ian would have changed it if Mo’s skillset was needed for a different task that day.”

[55]The Claimant’s live evidence on this was unclear. He stated that when the job sheet changed, he “complained to [Mr Sahqab] the next day and he told me it was generated from automated system that shows everyone selected to be on correct processes.. I came in next day and job rotation put every single associated on jobs they are meant to be on”.

[56]There was no independent documentary evidence of any change or manual override of the automated changes made only for the Claimant. Mr Franklin could not recall one and Mr Sahqab could not either. However, both commented in their evidence that if there had been a need to do so, it would be normal and standard. The Claimant’s oral evidence was unclear and appeared to accept that all Associates’ jobs changed on the same day. He could not recall precisely when this was, only that it was after he had raised the issue about wearing hard hats. We considered that it could be disruptive if only one Associate’s role / location was altered and others remained auto-generated. It would likely disrupt the system which had been auto-generated to cover the Respondent’s needs. We find that on balance of probabilities, Mr Franklin did not alter the auto-generated job sheet in respect of only the Claimant’s duties. We find that the system produced a computer-generated reshuffle of Associates’ work and this is what caused the move for the Claimant and others at this time.

[57]The Claimant contends that around November 2022, he was approached by Dan Goff and Ian Franklin who suggested he had been working too slowly. The Claimant asked them to watch the process on camera and says it was clear that there was a problem with the automated process. The Claimant explained that Management were aware of the issue with the process, including the PL and LA Manager for a period of time. However, the Claimant assert that the PL and the LA Manager were micromanaging the Claimant and trying to find a way to raise issues about the Claimant’s performance.

[58]We find that in around November 2022, Mr Goff informed Ian Franklin that he believed the Claimant was over cycling. We do not find that the Claimant was being targeted or blamed for this in any way. When the Claimant was asked in his live evidence “He was not criticising you, he [Mr Goff] was saying it was overcycled?” the Claimant replied “Correct”. He also accepted that he cannot know how many times or if at all any other Associates had been spoken to about overcycling. We accepted Mr Goff and Mr Franklin’s evidence that overcycling can happen for many reasons and they need to try to ascertain the cause when it does happen. They do not jump to the conclusion that any Associate is at fault, they need to find out what is happening to correct it and this is all they did on this occasion.

[59]The Respondent’s absence process (which is part of a collective agreement) works on a points system under which a total of 200 points triggers and Attendance Improvement Procedure (AIP) step 1 meeting [292]. Mr Franklin received an email from HR in November 2022 to state that the Claimant had hit the 200-point threshold. In a letter dated 9 November 2022, Mr Franklin invited the Claimant to a meeting to discuss it on 10 November 2022. Unfortunately, and erroneously, the letter had a bold subject heading “Invite to Formal Disciplinary Procedure” and stated in its text that he was invited to such a meeting “under the Company’s …AIP”. The letter stated:

[60]Mr Franklin handed the letter to the Claimant on 9 November 2022. There were no enclosures with the letter. The Claimant’s chosen union representative was not available to attend with the Claimant. The Claimant did not inform Mr Franklin or anyone else at the Respondent prior to the meeting on 10 November 2022 that his chosen representative was not available or that he wanted more time to prepare for the meeting.

[61]The Claimant attended the meeting on 10 November 2022 with a different trade union representative. At the meeting, Mr Franklin asked the Claimant if he was happy with his representative that day and the Claimant said he was [433]. The Claimant explained that he recalled two of the absences but not the third one. He asked to look at the paperwork (his own return to work forms) and Mr Franklin stated he did not have them and would print them out later. Mr Franklin proceeded on the basis that the record was correct and issued the Claimant with a warning / outcome recording that if he had no further absence in the 13-week period from 22 August 2022 (the first full week falling after the second absence) the absence record will return to zero. However, if he had another absence in that time, the process would move to stage 2. He also informed the Claimant of his right to appeal the outcome within two working days [433]. This was all recorded in a formal outcome given to the Claimant by hand on 10 November 2022 [432].

[62]Mr Franklin then went to obtain the paperwork requested by the Claimant and realised that the Claimant had incorrectly completed a return to work form in such a way that it appeared that he had taken three separate periods of absence when in fact he had only had two. In particular, he had completed two forms in respect of one period of absence and put different dates on them of both 19 July and 19 August 2022 when in fact he had not been off sick on 19 July 2022 [420 and 421].

[63]Mr Franklin therefore went to speak to the Claimant that same day, 10 November 2022, to inform him of the error, and that the meeting and AIP outcome letter were therefore void. The Claimant was dissatisfied with the matter and raised a grievance, also on the same day [429-431]. The Claimant did not assert race discrimination in the grievance.

[64]On 11 November 2022, the Claimant was signed off sick from work with stress for one month [436]. The Claimant was asked to complete the grievance template document but there was a short delay in him doing so. On 30 November 2022, Mr Ikhlaq Mohammed invited the Claimant to a grievance hearing scheduled for 1 December 2022.

[65]On 1 December 2022, prior to the grievance hearing, the Claimant attended an occupational health assessment for work-related stress. In the form produced during the discussion, the Claimant referred to various of the incidents he now relies on as claims, including:(a) being put on jobs he “shouldn’t” have been;

(b) being told not to ‘push the line’;

(d) being told to wear his hard hat when others were not;

(e) being accused of overcycling; and

(f) his race grievance against Afmet Lika. However, apart from the latter incident, he did not suggest that race played any part on the matters complained of.

[66]The Claimant attended the grievance hearing with a trade union representative. Mr Mohammed noted that the absence process had been rescinded and the error acknowledged by Mr Franklin and asked the Claimant what outcome he wanted to his grievance. The Claimant replied that he wanted matters done more professionally [445]. He did not suggest that Mr Franklin had done it deliberately and appeared to accept Mr Mohammed’s suggestion that there had been an error. Mr Mohammed stated he cannot change the past but can speak to Mr Franklin to ensure he checks the attendance records himself before commencing an AIP process in future. He also agreed to raise the issue of the erroneous description of the meeting in the invite letter so that AIP meetings are not incorrectly described as disciplinary meetings. The meeting was left on the basis that Mr Mohammed would counsel Mr Franklin and other process leaders on these matters and that the Claimant could let Mr Mohammed know if there was anything further he wanted by way of resolution [446]. During the grievance meeting, the Claimant did not suggest that anything had been done due to race.

[67]On 9 December 2022, the grievance outcome was emailed to the Claimant, giving him the right to appeal within two working days [447]. The letter also recorded that the trade union would train its representatives on how to seek adjournments to meetings.

[68]On 15 December 2022, the Claimant sent an email resigning with immediate effect on the basis of an alleged “breach of contract within my agreement” [470]. Law Direct discrimination (s.13 EqA)

Law

[69]Section 13 Equality Act 2010 (EqA) states: 13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[70]There is a two-stage test: Firstly, a claimant carries the burden of proving (by leading facts from which the tribunal could infer) that they have been treated less favourably than a real or hypothetical comparator was or would have been treated. There must be no material differences between the circumstances of the comparator and employee (s.23 EqA). Secondly, the Claimant carries the burden of proof (i.e. in leading facts from which the tribunal could infer) that the reason for the treatment is because of the protected characteristic.

[71]The less favourable treatment must be because of a protected characteristic. This requires the tribunal to consider the reason why the claimant was treated less favourably, i.e. to consider what the respondent's conscious or subconscious reason was.

[72]Lord Nicholls stated in Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

at paragraph 8 that: “No doubt there are cases where it is convenient and helpful to adopt this two-step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.”

[73]The reverse burden of proof under s.136 EqA applies.

[74]The discriminatory reason need not be the sole or even principal reason for the less favourable treatment. In Nagarajan v London Regional Transport

[1999] ICR 877

Lord Nicholls stated at page 886E-F: “Decisions are frequently reached for more than one reason. Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others......If racial grounds.....had a significant influence on the outcome, discrimination was made out.” Harassment (s.26 EqA)

[75]Section 26 EqA states: 26 Harassment (1)A person(a) (A) harasses another

(b) (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

[76]The concept of “unwanted conduct” is similar to the concept of detriment. In Reed and anor v Stedman

[1999] IRLR 299

the EAT held that the word “unwanted” is essentially the same as “unwelcome” or “uninvited”.

[77]In Thomas Sanderson Blinds Ltd v English EAT 0316/10, the EAT pointed out that whether conduct is “unwanted” should largely be assessed subjectively, i.e. from the employee’s point of view.

[78]To demonstrate that the unwanted conduct is “related to” a protected characteristic, the causative connection is a lower threshold than the “because of” / “on the grounds of” formulation used in direct discrimination. “Related to” allows for a looser connection with the protected characteristic to be sufficient. Of course, conduct that would previously have been held to be “on grounds of” a protected characteristic will satisfy the “related to” requirement. However, other conduct that might not previously have been caught by the “on grounds of” or might not amount to being “because of” the protected characteristic could now be covered by being “related” to it.

[79]When considering whether conduct has the proscribed effect, a tribunal must take the following into account: the claimant’s perception; the other circumstances of the case; and whether it is reasonable for the conduct to have that effect, per s.26(4) EqA.

[80]In Weeks v Newham College of Further Education EAT 0630/11. Mr Justice Langstaff, pointed out that the word “environment”, means a state of affairs. Such an environment may be created by a one-off incident, but its effects must be of longer duration to come within the meaning of harassment under EqA.

[81]In HM Land Registry v Grant

[2011] EWCA Civ 769

, Lord Justice Elias said: “…when assessing the effect of a remark, the context in which it is given is always highly material. Everyday experience tells us that a humorous remark between friends may have a very different effect than exactly the same words spoken vindictively by a hostile speaker. It is not importing intent into the concept of effect to say that intent will generally be relevant to assessing effect. It will also be relevant to deciding whether the response of the alleged victim is reasonable… Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment. The claimant was no doubt upset that he could not release the information in his own way, but that is far from attracting the epithets required to constitute harassment. In my view, to describe this incident as the tribunal did as subjecting the claimant to a “humiliating environment” when he heard of it some months later is a distortion of language which brings discrimination law into disrepute.” Liability for acts of third parties under the Equality Act 2010

[82]For a respondent employer to be liable for any acts that are proven, it has to be the employer of the discriminator, or the discriminator must be its agent and be acting with the respondent’s authority, within the meaning of s.109 EqA. Common law principles of agency apply to the definition of agent in discrimination law (Ministry of Defence v Kemeh

[2014] EWCA Civ 91

[83]According to Bowstead and Reynolds on Agency (Sweet and Maxwell, 23rd edition, 2023): “Agency is the fiduciary relationship which exists between two persons, one of whom expressly or impliedly manifests assent that the other should act on his behalf so as to affect his legal relations with third parties, and the other of whom similarly manifests assent so to act or so acts pursuant to the manifestation. The one on whose behalf the act or acts are to be done is called the principal. The one who is to act is called the agent.”

[84]An employee can potentially argue that the respondent employer's inaction in the face of third-party harassment itself amounted to an unlawful act. However, the Court of Appeal held in Unite the Union v Nailard

[2018] EWCA Civ 1203

that an employee would need to show that the reason why the employer failed to take adequate steps to protect them against the harassment by the third party was itself done because of the protected characteristic. The focus was on the grounds for the employer's action, not the third party's harassment. Constructive unfair dismissal

[85]Section 95(1)(c) of the Employment Rights Act 1996 (“ERA”), provides “(1) For the purposes of this Part an employee is dismissed by his employer if –(a) …

(b) …

(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”

[86]In Western Excavating (ECC) Limited v Sharp [1978] Q.B.761, Lord Denning stated: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed.”

[87]The most common repudiatory (i.e. fundamental) breach that is relied upon is the duty of trust and confidence which is implied into every contract of employment by operation of law. In Malik and Anr v Bank of Credit & Commerce International SA (in compulsory liquidation)

[1998] AC20

, the duty of mutual trust and confidence was defined: “The employer must not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.”

[88]It has since been clarified that the duty on the employer is to,“…not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee”.

[89]This term can be breached by a single (serious) act or omission, or by a series of acts / omissions that culminate in a “last straw” that causes the employee to resign (per Waltham Forest v Omilaju [2005] 1 All E.R.75).

[90]In Kaur v Leeds Teaching Hospitals NHS Trust [2018] 4 All E.R.238, the Court of Appeal listed five questions that a Tribunal should consider when determining whether an employee was constructively dismissed:(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?

(2) Has he or she affirmed the contract since that act?

(3) If not, was that act (or omission) by itself a repudiatory breach of contract?

(4) If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of the implied term of trust and confidence?

(5) Did the employee resign in response (or partly in response) to that breach?

Analysis

[91]In the following analysis, we have dealt with each allegation in chronological order and addressed each claim that the Claimant brings in respect of that matter. This is because there was some (but not a complete) overlap between the direct race discrimination and harassment claims and some overlap with the incidents relied upon as accumulating to a breach of the implied term of trust and confidence for the constructive unfair dismissal claim. Moving Claimant to APU6 between January and June 2020 and comments / shouting allegedly made by Ian Franklin after this time along the lines “what are you doing, you belong in my area?” (direct discrimination and harassment)

[92]As we have found above, the Claimant was assigned to APU4/5 but was asked to work in APU6 on an ad hoc basis between January and June 2020.

[93]As stated above, the Respondent had the express contractual right to move employees around different work areas as reasonably needed. Various of the Respondents’ witnesses stated how this operated in practice and that it was a power that was regularly used.

[94]In his live evidence, the Claimant accepted that others who were not of Asian descent / ethnicity (including his comparators Adam Denni and Bartosz Zakrzewski) were moved to other units on occasion. He accepted that others were not only rotated within their units (as was standard practice under the collective agreement) but were also moved to different units if they were needed there and were capable of it (as was permitted in respect of the Claimant by the terms of his contract). The Claimant further accepted in his live evidence that he was never moved to a job in a unit that he was not capable of doing (although he disputed whether he had been formally “trained” on all such jobs).

[95]The Claimant did not explain why being moved to APU6, from APU4/5 would be a negative “detrimental” move. However, we have considered that some employees prefer routine and familiarity and therefore are willing to accept that a move could reasonably be regarded as detrimental, or “unwanted conduct”.

[96]The basis on which the Claimant asserts that the decision to move him was related to or because of race was that “I was only Asian in that area yes and I was always asked to be moved first”.

[97]We were not presented with any evidence that enabled us to decide whether the Claimant was always (or ever) asked to move first, prior to non-Asian Associates being asked. However, even this were the case, such that he could establish less favourable treatment than a real or hypothetical comparator, we find that there is no evidence from which we can infer that the reason for asking the Claimant to move to APU6 at times between January and June 2020 was related to or because of race. The Claimant advanced none. The Respondent had a right to move staff and did so as needed. The Claimant, on his own evidence, was one of the more capable Associates, skilled in over 50 processes, who had worked in APU6 prior and been signed as capable of various jobs within that unit. As a result, the Claimant would be a prime candidate to move more readily than less experienced / able Associates.

[98]Therefore, even if the Claimant was the first to be asked to move, and even if such a request / move is “detrimental” or “unwanted conduct”, such that it could be said he had been treated less favourably than others who were not Asian, we find that the request(s) to move was / were not because of or related to race, but rather, because of the Claimant’s skills and experience and the Respondent’s need to move labour around to meet demand / shortfalls. Therefore, the claim for race discrimination and harassment predicated on this act are not upheld.

[99]As to the claim that Ian Franklin constantly shouted at the Claimant “What are you doing here, you belong in my area?” after the Claimant had returned to working in APU4/5 (from APU6), we have held above that Ian Franklin did not do this in the manner described. Ian Franklin denied he made any such comments / shouting and there is no other evidence to support the Claimant’s claims other than his own testimony. If such comments were “constant” as the Claimant alleged, we would expect that Mr Toth might have recalled them or that the Claimant would have been able to produce a witness that could. Neither gave evidence on this matter. Further, even when the Claimant referred to incidents he was aggrieved by in a stress risk assessment in December 2022, which we return to below, he referred to various matters, but not this alleged shouting.

[100]Further still, Ian Franklin worked in APU4/5 until April 2021 (per paragraphs 12 and 13 Mr Franklin’s statement) hence it would not make sense for him to be making the comment to the Claimant after June 2020, when they were both working in the same area at that time. Further, Ian Franklin worked a different shift pattern to the Claimant and would not therefore cross paths with him much or at all.

[101]However, even if Mr Franklin had asked the Claimant to move at times or commented on which area he was working in, this would have been within his power / remit due to his role and the Respondent’s right to move Associates around. As to “shouting” we note that the production line was a noisy environment and it might be necessary to raise voices at times. The Claimant might have misconstrued this as shouting on occasion. However, we do not hold that Mr Franklin ever shouted at the Claimant in the manner alleged.

[102]In summary, the underlying facts are not substantiated in respect of this allegation and it is therefore dismissed as a claim. Missing Parts (direct discrimination only).

[103]As found above, there is no evidence that the Claimant was given any “warnings” in respect of missing parts as he alleges and we find that he was not so warned. We find that the Respondent’s management did speak to the Claimant about the process followed to see why a part was missing and the Claimant may have misconstrued this as a warning or accusation, but that as a matter of fact, he was never issued with anything that could be classed as a warning, either verbally or in writing.

[104]Based on the findings made above, we reject the Claimant’s claim that Mr Sahqab took no action when the Claimant complained that Liam Sturdy had removed a part in April 2021. As held above, the matter was looked into and the CCTV viewed. We reject the Claimant’s assertion that Mr Sahqab “continued” to verbally warn him (the Claimant) about missing parts in April 2021, as set out above.

[105]We accept that the Respondent did not launch a formal investigation into the matter after the CCTV was checked, but we do not consider that such an omission was detrimental to the Claimant in any way. There is no evidence to suggest that the Claimant was treated less favourably than a non-Asian employee in the same circumstances was or would have been treated. Further, there is nothing from which inferences could be drawn that this decision not to launch a formal investigation was because of the Claimant’s race. In any event, the Respondent has given credible non-discriminatory reasons as to why the matter was not further investigated after the CCTV was viewed, namely that there was no evidence of wrongdoing form which to launch an investigation. Therefore, even if there was evidence to pass the burden of proof to the Respondent to explain this decision, we find that the Respondent has adequately explained its actions and the claim would have failed. Leaving for break a minute early (direct discrimination only)

[106]As held above, the Respondent runs a tight production line in which Associates are told to work “buzzer to buzzer”. Leaving a minute early is the loss of a car (in that a car is made every minute on the line). The Claimant accepted he knew this and that he did leave early on this occasion (he says due to the need to go to the toilet).

[107]The Claimant’s complaint is that when he left early, it was escalated to Mr Sahqab by Mr Goff but when Adam Denni left early it was not. However, there is no evidence that Adam Denni in fact ever left work early. Even the Claimant could only say he assumed he must have done because he was in the canteen early and that he was told Mr Denni had done so. Further, the Claimant cannot know whether any others who did leave early were reported / reprimanded. Indeed, Mr Toth stated that “Happens lots of time people leave much more early and non one says a word and sometimes they do give disciplinaries for leaving early even if line is not running”. Therefore, we do not hold there is evidence of less favourable treatment compared with a real or hypothetical comparator.

[108]Neither Mr Goff nor Mr Sahqab can recall Mr Goff raising this with Mr Sahqab and the Claimant does not advance any positive evidence on this. He does not assert that Mr Sahqab spoke to him about this for example. Therefore, there is no evidence of differential treatment between the Claimant and Mr Denni (or a hypothetical non-Asian comparator) in respect of this incident.

[109]Further and in any event, we accepted the Respondent’s witnesses’ evidence that anyone who left the line early might be spoken to, and it would be escalated if it were a regular occurrence. This is for obvious operational reasons and we find it reasonable in the Respondent’s working environment. It is implausible that some people would be regularly allowed to leave early without sanction / discussion. It would defeat the purpose / efficiency of the production line. It is more likely, and we hold that this is the case, that if people “got away” with leaving early on occasion, it is because management did not see it on that occasion.

[110]Furthermore, there is no evidence to suggest that the way the Claimant was treated was because of race. He argued that there were no other Asians on his unit and this is how he knows that he was being treated less favourably due to race. However, in his live evidence, he accepted there were other Asian workers in his unit, namely Mr Jack Mohammed, Mr Alinaz, and Mr Sahqab.

[111]No evidence was provided to us that Asian Associates were treated one way and non-Asian associates another. Hence, even if there were a finding of less favourable treatment compared to an appropriate comparator, there is no evidence from which to draw inferences that the reason for this was race. The claim therefore fails. “Paki” comment by Afmet Lika (direct race discrimination and harassment)

[112]As stated above, we have held that Mr Lika did make the derogatory comment that led to the Claimant’s grievance and that he continued to make derogatory comments (though of a different nature) during the investigation. Such comments were unwanted conduct and the first was related to race and could thus amount to harassment in law. Alternatively, such a comment could amount to direct race discrimination. (Although the Claimant did say himself that the reason for the comment was “because he had reported Afmet Lika for putting parts on incorrectly in the assembly line’, not because of his race.)

[113]However, Mr Lika is not employed by the Respondent and therefore the Respondent can only be held to be liable for his actions if he was acting as agent for the Respondent and made the comment with the Respondent’s authority.

[114]We find that Mr Lika was not an agent of the Respondent. He was not given authority to represent or act for the Respondent in dealings with third parties. He was in fact engaged to work for the Respondent by a separate agent. Further, the comments were made entirely outside the scope of the tasks / work he was authorised to do. We therefore find that the Respondent is not liable for the making of the comments. As such, we do not uphold this claim as direct discrimination or harassment by the Respondent. Grievance process following derogatory comment by Afmet Lika (direct race discrimination and harassment)

[115]The Claimant contends that the Respondent took inadequate steps to protect him from further abuse by Mr Lika after it was aware of the comment and that for four weeks he was subject to further abuse by Mr Lika (though not using the same offensive word).

[116]We have held above that moving Mr Lika to a different process (an “LA”) in the same APU / Unit was an inadequate interim solution. We have held that in that time, Mr Lika continued to make abusive comments (though not the same racially loaded comments) accusing the Claimant of lying about the comment and calling him a “pussy”. However, we do not find that the Respondent taking four weeks to investigate the grievance was excessive or delayed in the circumstances. The Respondent had to liaise with Mr Lika’s agency, it interviewed various staff members (between 8 and 13 December 2021) and delivered the outcome on 16 December 2021 [415]. This is reasonably swift in the circumstances bearing in mind that the grievance manager (Mr Sahqab) had to continue with his normal duties as well as the investigation. He would also have needed HR advice and support.

[117]Therefore, we do not find that the period taken to determine the grievance was unduly long or delayed. We do not accept the Claimant’s case that there was unreasonable “delay”. Further and in any event, in accordance with Nailard, the Respondent could only be liable for the continued abuse by Mr Lika and the period of the grievance investigation if the Respondent itself acted / failed to act because of the Claimant’s race. There is no evidence to suggest or from which we could infer that the process would have been handled any differently (or more swiftly) if the Claimant was not Asian. There is no evidence from which we could infer that the Respondent would have taken better steps to separate the Claimant and Mr Lika if the Claimant were not Asian. Further, there is no evidence to suggest that either of these things were done (or omitted to be done) because of race.

[118]Therefore, whilst we criticise the Respondent for not ensuring a greater degree of separation between Mr Lika and the Claimant during the investigation, we reject the Claimant’s claims that this, or the time taken to hear the grievance, were acts of harassment or discrimination. Such claims therefore fail. Claimant accused of ‘pushing the line’ (harassment only)

[119]As held above, Mr Franklin did tell the Claimant to stop pushing the line on this occasion but we do not find that he shouted at the Claimant.

[120]We accepted Mr Franklin’s evidence that if he believed the Claimant had pushed the line forcefully, there was a risk that Associates or the equipment / machinery could be damaged. We therefore find that this was the reason why Mr Franklin told the Claimant to stop pushing the line. There is nothing racial about this comment and the Claimant did not advance any evidence to link this incident to race. Indeed, he stated in his oral evidence that when he complained to Mr Sahqab about this, he was told that due to H&S reasons, he should not push the line forcefully.

[121]Therefore, whilst we accept that the Claimant was told to stop pushing the line, we do not find that it was an act related to race, nor that it could be said to have violated the Claimant’s dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for him. The act complained of does not meet the threshold for the sorts of matters that might amount to harassment. The claim therefore fails. Claimant warned for not wearing his hard hat (direct race discrimination and harassment)

[122]As held above, the obligation to wear hard hats was meant to be universal but had been sporadically enforced and on the specific occasion in question, we find that Mr Goff did address the Claimant only, not others, for failing to wear his hard hat, despite the fact that others were not wearing theirs, including Mr Sturdy. Therefore, we find that there was less favourable treatment than non-Asian comparator(s).

[123]However, there is no evidence from which the Tribunal could infer that that the reason for the disparity in treatment was because of race (or related to it). Indeed, the Claimant did not advance any such evidence. Mr Alinaz, the Claimant’s witness (who is also of Asian origin) was asked in cross examination whether he witnessed anything that might indicate that the reason for the difference in treatment was race. He stated “Not through my eyes I did not see everything I was in a specific area and had to concentrate on job.” When Mr Toth was asked why some people got away without wearing hats and others did not, he stated: “I think those not in hats are showing off that do not have to, to those of us that do.” Mr Toth is not of Asian origin and he grouped himself in the group of workers that did have to wear a hard hat, contrasting that with those who “got away” without.

[124]Therefore, on balance of probabilities, we find that there was a group of workers that would ‘get away’ without wearing their hard hats from time to time, whereas in respect of the Claimant, Mr Toth and others, they were more readily told to put their hats back on. We do not find that this disparity in treatment was in any way whatsoever due to race or related to it. Therefore, the claims fail. Claimant moved to a different part of the assembly line (direct race discrimination) / Job rotation sheet showed that only the Claimant’s position was being altered (direct race discrimination and harassment)

[125]As held above, Mr Franklin did not alter the automatically-generated job sheet in respect of only the Claimant’s duties. The system produced a computer-generated reshuffle of Associates’ work and this is what caused the move for the Claimant and others at this time.

[126]Even if we were wrong in that conclusion, the Claimant was unable to advance any evidence or explanation for why he considered any change to his duties to have been done because of race or related to race. When he was asked what evidence there was to link any such act to race, he stated “I cannot answer that no” and there was not otherwise any evidence from which the Tribunal could infer that race was the reason for any change in jobs within the unit. Indeed, the evidence suggested that Associates were regularly rotated within units as standard practice using a computer-generated shuffle, in accordance with the Collective Agreement, and that there was a need to manually alter that schedule as needed from time to time. Further, as above, that Associates could also be moved outside of their units as needed from time to time (and were so). This included Associates who were not Asian. We were not presented with any evidence from which we could conclude that this process occurred differently or less favourably towards Asian Associates in comparison with non-Asian Associates. For this reason, these claims are dismissed. Accused of ‘overcycling’ (harassment and constructive dismissal)

[127]As held above, in around November 2022, Mr Goff informed Ian Franklin that he believed the Claimant was over cycling. We find that the reason Mr Goff raised this and the reason Ian Franklin investigated it is because they genuinely believed that the Claimant was overcycling. The Claimant was not being targeted or blamed for this in any way. Rather, management were trying to ascertain the cause of the delay in the process. The Claimant accepted in his evidence that management were entitled to do so. The Claimant accepted that he cannot know how many times (or if at all) any other Associates had been spoken to about overcycling but he knew that it was an ongoing issue. The act of being asked about or even accused of overcycling is not inherently related to race and we could find no evidence from which to conclude it was related to race on this occasion.

[128]Whilst the Claimant may have disliked being spoken to by management, we do not consider this to be detrimental or negative. He may have perceived it as unwanted, but any perception that this action violated the Claimant’s dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for him was unreasonable in the circumstances. If the process was disrupted / delayed (which the Claimant accepted it was) management were entitled to and should try to resolve it by identifying where the delay occurred. Further, this was a oneoff act and due to its nature, cannot on its own have given rise to the prohibited environment. We do not find that anything about the way this matter was raised with the Claimant would be serious enough to amount to harassment, even though he did not like being spoken to about it.

[129]Further still, there is no evidence from which we can infer that the reason for the managers’ actions was related to race. We accepted Mr Franklin’s evidence that he was not blaming the Claimant on this occasion, merely trying to ascertain the cause of the delay in the process and this was the reason for his actions.

[130]Therefore, this claim fails as an act of harassment.

[131]In respect of an incident accumulating to a breach of trust and confidence, we find that the Respondent had reasonable and proper cause to address the issue of overcycling with the Claimant and that the way in which it was done was reasonable. We do not find that this is a matter which could reasonably be said to form part of a series of acts that amount to a breach of trust and confidence, even when aggregated with other matters. It is entirely benign. Given less than 24 hours’ notice of a disciplinary hearing on 10 November 2022 which prevented the Claimant from obtaining his chosen union companion and prevented him from preparing for the meeting (direct race discrimination and constructive dismissal)

[132]As held above, the Claimant was given less than 24 hours’ notice of the meeting on 10 November 2022. However, we do not accept that this was in breach of any applicable policy or the ACAS Code. The process was being conducted under the AIP policy, not the Respondent’s disciplinary policy, despite the letter erroneously stating that it was a disciplinary hearing.

[133]The Claimant can be forgiven for believing at the time that it was a disciplinary meeting and that he was entitled to notice given the Respondent’s error in the letter. This is likely to have been stressful and jarring for him. However, as a matter of fact, he was not entitled to any minimum notice because it was an AIP meeting. Under the Respondent’s policies, employees are entitled to two days’ notice of disciplinary hearings, but AIP meetings have no such notice requirement [292]. Under the ACAS Code, the need for reasonable notice only applies to disciplinary hearings for misconduct or poor performance. This was not a disciplinary hearing for misconduct or poor performance.

[134]The Claimant was unable to secure his chosen union representative as a result of the short notice, but the Respondent was not aware of this and the unavailability of the chosen representative was not something said or done by the Respondent. Therefore, the short notice itself was not the detriment or unwanted conduct, rather, what was detrimental or unwanted was the inability to obtain his chosen representative. The Claimant could have asked for an adjournment on this basis but he did not and indeed he stated expressly in the meeting that he was happy with the representative he did have.

[135]Further and in any event, we do not consider that there is any evidence to suggest that a non-Asian Associate with the same absence record would have been treated any differently (more favourably) and there is nothing to link the lack of longer notice to race. There is no evidence form which the Tribunal could infer that the decision to hold the meeting the day after the invite was related to or because of race.

[136]As such, this claim fails as an act of race-related harassment or direct race discrimination.

[137]As an incident which could aggregate to a breach of trust and confidence for a claim for constructive unfair dismissal, we find that the Respondent did not have reasonable and proper cause for mis-labelling the meeting as a disciplinary meeting in the letter and this could mislead and cause stress to the worker. However, that is not the Claimant’s claim. His claim is that the lack of notice was a breach of policy and ACAS Code and that it meant he was not adequately prepared for the meeting. Given that we have found there was no breach of policy or the ACAS Code, there is no express breach of any contract term and we have to consider whether the decision to hold a meeting under the AIP one day after the invitation to the meeting (i.e. giving the Claimant just one day’s notice) was done without reasonable and proper cause.

[138]We find that a day’s notice was short in the circumstances and that in addition to the other ways in which the process was deficient, this could have been a matter which formed part of a series of matters leading to a final straw for a breach of trust and confidence. However, on its own, it was not significant enough to amount to such a breach. Ian Franklin insisted in the meeting on 10 November 2022 that one of the three absences which the Claimant disputed was classed as absence and that he would print out the return to work sheets later, rather than obtaining them during the meeting as requested (direct discrimination and CUD)

[139]As held above, at the meeting on 10 November 2022, Mr Franklin did not have the paperwork with him that he should have done, and he did not take a break to go and get it when the Claimant asked him to. Despite the Claimant indicating he disputed one of the three absences, Mr Franklin proceeded on the basis that the record he had was correct and he did not check it before delivering the outcome to the Claimant.

[140]We find that this was a management failing. It was unwanted and unfavourable. However, there is no evidence to suggest that it was less favourable than how Mr Franklin did or would have treated a person who was not Asian in the same circumstances. Indeed, on balance of probabilities we find that Mr Franklin would have behaved the same to all Associates. We find that the reason he failed to check the records properly was his own lack of attention to detail and that his failings were essentially caused by incompetence. When he failed to obtain the records immediately for the Claimant (as requested) this was due to his own idleness, not a deliberate choice to mislead or get the Claimant into trouble.

[141]Further, there was no evidence (and the Claimant did not advance any such evidence) to suggest that Mr Franklin’s omissions were related to race or done because of it.

[142]In respect of an incident in a string of matters relied on as a constructive unfair dismissal, we find that Mr Franklin’s errors were done without reasonable and proper cause and caused alarm and distress when the mistake could and should have been discovered earlier by Mr Franklin obtaining and checking the records before calling the meeting. Had he done so, he might have noted the error and might never have called the meeting. Alternatively, he could have shown the Claimant the records in the meeting and the error would have become apparent at that stage. Either way, had Mr Franklin done his duties more diligently, the Claimant would not have been issued with an outcome warning letter placing him under a 13-week review period for attendance. Therefore, this is a matter which could, if aggregated with others, ultimately amount to a breach of the trust and confidence term, but on its own, or even combined with the matter held above, was not sufficient to do so. Backdating the AIP outcome letter and denying the Claimant the opportunity to appeal it (direct discrimination and constructive dismissal)

[143]As held above, Mr Franklin did inform the Claimant he was under a 13-week attendance review period and he did back-date the 13-week review period to 22 August 2022, instead of making it run from the date of the meeting itself, on 11 November 2022. This would mean that 11 weeks 4 days of the review period would already have expired (without the Claimant having been absent) by the date of the AIP meeting. This is beneficial to the Claimant in comparison to making the 13-week period commence on 11 November 2022. It meant that the review only continued for a further 1 week 3 days after the review meeting, until the clock was reset to zero on his absence monitoring.

[144]Further, the Claimant was given a right of appeal in the meeting held on 10 November 2022 [433]. Therefore, he had a right of appeal and his claim that he did not is factually incorrect. The fact that the record of formal discussion was withdrawn that same afternoon would mean any appeal was unnecessary / redundant in any event. There can have been no detriment in not having a right to appeal if the underlying outcome had already been rescinded.

[145]Moreover, there is no evidence from which we can conclude that a non-Asian Associate in the same material circumstances would have been treated more favourably in respect of these matters. There is no evidence of less favourable treatment of a real comparator nor that a hypothetical one would have been treated more favourably.

[146]We accept that being told he was subject to a 13-week review period with escalating levels if he was absent again was detrimental. In respect of that detriment however, the Claimant only suffered from it for a few hours on 10 November 2022, i.e. from being issued with the outcome letter that day to when the mistake was noted and the process voided on the same day.

[147]This detriment was thus short-lived. Nonetheless it was detrimental. However, it was caused both by the Claimant’s own error in completing the paperwork (on returning from absences) and Mr Franklin’s failures to check the paperwork and note the mistake, as dealt with above. There is no evidence from which the Tribunal can infer that the imposition of the review period or the decision to back-date the review period was done because of race. The claim for discrimination on this basis is thus dismissed.

[148]As a claim for constructive unfair dismissal, being placed on a 13- week review for a few hours until the error was rectified could contribute (in a modest way) to a series of matters that could ultimately accumulate to a breach of trust and confidence, if, taken collectively, the matters were serious enough. On its own, it was not serious enough to do so. Grievance process

[149]It was not clear whether the Claimant was arguing that the grievance process conducted by Mr Mohammed amounted to an incident accumulating to breach of the implied term of trust and confidence. He did rely on it as an act of race-related harassment. However, as above, we have held that the grievance was not delayed and it was handled reasonably in the circumstances. The Claimant was invited to a meeting which he attended with his representative. He was given an opportunity to develop his points of grievance and Mr Mohammed suggested outcomes that the Claimant appeared to be content with (and which he stated in his evidence to the Tribunal he was in fact content with at the time). An outcome was provided to the Claimant, well within the deadline stipulated in the policy and he was given a right of appeal.

[150]We do not therefore find that there was any unwanted conduct in the handling of the grievance and we consider it to have been an entirely fair process. There was further nothing which could suggest that Mr Mohammed took any decisions because of race or that any decision / act / omission by Mr Mohammed was related to race.

[151]In the event that the Claimant was relying on the grievance process as an act in a chain accumulating to a breach of trust and confidence, we find that there was nothing which amounts to conduct done without reasonable or proper cause that could contribute to or cause or be calculated or likely to destroy trust and confidence in respect of this matter. Constructive unfair dismissal claim

[152]We have taken a step back to consider whether the matters we have found to be culpable (though not discrimination or harassment) could give rise individually or cumulatively to a breach of the implied term of trust and confidence. We find that even when aggregated, the matters are not serious enough to breach the implied term of trust and confidence.

[153]For clarity, had we held that any of the matters were direct race discrimination or harassment related to race, they would have been more serious and would have been more likely to amount to a fundamental breach of trust and confidence. However, since we do not find that any of the matters were acts of unlawful discrimination or harassment, they are not sufficient to amount to a breach of the implied term.

[154]We also note that the Claimant stated in his live evidence that he did not consider the issue of race discrimination or harassment at the point at which he resigned. Rather, it was something that was suggested to him when he was drafting the claim form. Therefore, he cannot have resigned in response to this, even if any of the allegations of discrimination / harassment had been upheld.

[155]We do not need to find whether he waived any breach or resigned in response to the matters claimed because we have already held there was no breach.

[156]Accordingly, the claim for discriminatory constructive dismissal and ordinary (non-discriminatory) constructive unfair dismissal are not upheld. Time Limits

[157]The Tribunal did not need to decide the issue of time limits given that the claims under the Equality Act 2010 have failed on their merits and the claim for unfair dismissal was in time anyway.

Analysis

[1]The Claimant’s two applications dated 16 and 17 January 2025 respectively for reconsideration of the judgment sent to the parties on 13 January 2025 are refused.

[2]There is no reasonable prospect of the original decision being varied or revoked, because (taking the Claimant’s points in turn)1:

[3]The tribunal made a finding of fact that the nature of the meeting on 10 November 2022 was in fact a meeting under the Respondent’s Attendance Improvement Procedure (AIP), which is part of the collective agreement. It was therefore held not to be a meeting under the disciplinary procedure, which is a separate part of the collective agreement. It was held that the reference to a disciplinary meeting in the invite letter was an error (§132). This was based on the Respondent’s evidence. 1 Both applications, sent one day apart, are similar though not identical and I have considered both.

[4]At page [292] of the bundle, the AIP policy stated that ‘associates returning from a period of absence are to be interviewed within the first shift of their returning to work.’ (emphasis add). Page [292] also sets out a grid of four stages to the AIP process, starting with a ‘recorded discussion’ and escalating to a ‘final review’. The first stage of the AIP that can lead to a ‘recorded discussion’ sets a 13-week review period and appears to be akin to an informal discussion, not a disciplinary-type stage.

[5]Page [113] of the bundle states ‘Associates… will be notified in writing of AIP and Disciplinary hearings at least 2 days prior to the hearing’. However the tribunal understood that this only applies to AIP meetings that could lead to disciplinary-type sanctions, i.e. those AIP outcomes specified under the second to fourth stages of the AIP i.e. a First Improvement Letter; Second Improvement Letter; or Final Review. If it were otherwise, there would be no scope for the ‘interview within the first shift back’ to apply and there would therefore be two contradictory periods of time in which the meeting under the AIP should be held.

[6]Further, it would be most peculiar for the first stage of the AIP (first meeting after reaching 200 points which could lead to a ’recorded discussion’) fell within the remit of the disciplinary policy, it is not disciplinary in nature or in its potential outcome. There is no risk of a ‘warning’ or sanction. Therefore, for the stage of the AIP that the Claimant was invited to, we held there was not a two-day minimum notice requirement under the policies. This is consistent with the quote provided by the Claimant from page 445 where his own representative stated in the meeting: ‘200 point, they are counselling letters and they are the lowest form and it is your manager speaking to you about counselling your absence and it isn’t as much as a discipline, it is a counselling but the letter says aboyut [sic] disciplinary. So I think the letter needs to be amended. People see a letter and it makes the alarm bells go, we know the difference, you get a disciplinary all evidence in advance but counselling you get it in the meeting. When you get into that meeting the first thing you ask is RTW…’ [emphasis added]

[7]This recognizes that the meeting was a counselling meeting and that there was an error in the letter which needed amending.

[8]In any event, at §138, of the Reasons, the Tribunal held that: ‘We find that a day’s notice was short in the circumstances and that in addition to the other ways in which the process was deficient, this could have been a matter which formed part of a series of matters leading to a final straw for a breach of trust and confidence. However, on its own, it was not significant enough to amount to such a breach.’

[9]At §152 of the Reasons, the tribunal recorded: ‘We have taken a step back to consider whether the matters we have found to be culpable (though not discrimination or harassment) could give rise individually or cumulatively to a breach of the implied term of trust and confidence. We find that even when aggregated, the matters are not serious enough to breach the implied term of trust and confidence.’

[10]Therefore, the tribunal did consider that the notice of the meeting was inadequate but nonetheless held that it was not enough to amount to a fundamental breach (individually or in aggregation with other matters). As such, even if the Claimant had been correct in his reading of the policies, it would not have made any difference to the outcome of the constructive unfair dismissal claim. Similarly, in respect of the race claims predicated on this aspect, due to the finding at §135 of the Reasons (that there was no evidence to link the notice period to race) the outcome of the claim would not have been any different even if the Claimant’s interpretation of the policies was correct.

[11]As to the suggestion that the Claimant could not have called ‘Donald union rep’ as a witness because he ‘is still working for BMW UK MANUFACTURING LTD so I was not able to get a witness statement of him’ this is not correct. The Claimant could of course have contacted him to request he attend as a witness for him. If he refused to attend, the Claimant could have asked for a witness order, or raised it during the hearing so that the matter could have been considered. Further and in any event, the Claimant has not specified what evidence he says this witness could have given and how it might have changed any of the findings. As such, there is no basis for reconsidering the decision on this ground.

[12]As to the assertion that ‘Mr Mohammed did not investigate the grievance fairly’, this issue was canvassed during the hearing, evidence was heard from both sides and the documents were considered. The tribunal held at §§149- 151 of its Reasons that the grievance process was reasonable and fair. The Claimant has not advanced any basis as to why that that factual determination should be altered.

[13]Finally, the Claimant asserts that none of his evidence was taken into consideration and that the decision was taken ‘on the submission of the respondent’. It is plain from the judgment that the Claimant’s evidence was taken into account and the tribunal did discuss and weigh up the evidence where there was a dispute of fact. Part of the tribunal’s job is to decide disputed facts and when it does so, preferring one party’s case to that of the other, there will always be one party disappointed. However, there is nothing to suggest that the findings are incorrect on the evidence presented by the parties and there is no basis for reconsideration. Approved by: