Employment Judge Shastri-Hurst, Ms B Osborne and MsIn person for claimantMr S Way (instructed by counsel) for respondentDate 11 July 2026
JUDGMENT
[1]The claim of constructive unfair dismissal is not well-founded and fails.[2]The claim of direct race discrimination is not well-founded and fails.[3]The claim of direct religion or belief discrimination is not well-founded and fails.[4]The claim of unauthorised deductions is not well-founded and fails.
REASONS
[1]The claimant started working for the respondent as a Deputy Store Manager at its Heathrow store, Terminal 5, on 18 March 2019. He was promoted to Store Manager on 5 August 2019. The claimant tendered his resignation on 6 November 2023 and it was agreed that his last working day would be 5 February 2024. The claimant was placed on garden leave from 31 December 2023.[2]The claimant commenced the ACAS early conciliation process on 8 December 2023. That process ended on 11 December 2023, and the claimant presented his claim form to the Tribunal on 21 February 2024.[3]The claimant presented claims of constructive unfair dismissal, direct race discrimination, direct religion or belief discrimination, and unauthorised deduction of wages.[4]The claimant represented himself and the respondent was represented by Mr Way of counsel.[5]The Tribunal had the benefit of an agreed bundle of 463 pages (including the index): the nomenclature used below for page X is [X].[6]We also had witness statements from: 6.1. For the claimant: 6.1.1. The claimant; 6.1.2. Mr Rauf – Store Manager at St Pancras store (21 September 2023 to 29 February 2024); 6.1.3. Ms Sheikh – Deputy Store Manager at Heathrow T5 store)1 February 2023 to 18 October 2023). 6.2. For the respondent: 6.2.1. Mr Ghouse – Director of Retail; 6.2.2. Ms Doherty – Head of Regional Stores and the claimant’s line manager from June 2023; 6.2.3. Mr Blackbrough – General Manager from February 2020 to July 2023, then Head of Retail at the Piccadilly store; 6.2.4. Mr Coutinho – General Manager, Operations & Customer Experience at Piccadilly and Disciplinary Manager who issued a final written warning to the claimant on 23 November 2023; 6.2.5. Mr Baker – Head of Property and Grievance Manager for the claimant’s grievance.[7]The claimant had prepared an Opening Submission to which we listened; it was helpful in providing us with an overview of his case. The respondent had also produced a chronology and cast list for our benefit, for which we are grateful. Preliminary/interlocutory matters[8]It was identified by the claimant that the document at [259-260] was incomplete. It is an extract from notes of a grievance hearing regarding Ms Islam on 1 August 2023. The claimant applied for the whole of those notes to be disclosed, and we granted that application. The respondent produced the additional pages and they were inserted in the bundle. The first two pages replace [259-260] and the remaining page numbers will be [260a260m].[9]The claimant also raised that pages [271-280] were not easily legible. We determined not to act on this, but to see how we got on with deciphering them as and when we were taken to those pages. In the event, we did not need better copies.[10]The claimant sought specific disclosure of contracts of employment for: 10.1. Mr Blackbrough; 10.2. Mr Aparudai; and 10.3. Mr Rammoddo.[11]The claimant said that these documents were relevant to this claim at Issues 1.1.10 and 2.2.4, those being direct discrimination claims in which Messrs Aparudai and Rammoddo are said to be comparators. The claim relates to the claimant being given less holiday pay than those comparators.[12]Having heard both parties’ submissions on this application, we determined not to grant it. This was on the basis that, in relation to Mr Blackbrough, he is not a comparator for the claim. In relation to the other two gentlemen, the respondent admitted that Messrs Aparudai and Rammoddo did get more holiday than the claimant. Therefore, there was no dispute of fact regarding the contents of their contracts of employment and so their disclosure was not necessary.[13]During the course of the hearing, both sides applied for the admission of further documentation. We refused the respondent’s application to adduce a document said to be Ms Doherty’s notes of discussions with the claimant on 25 & 28 July 2023 for reasons given at the time. We permitted the inclusion of a document presented by the claimant, demonstrating that Google says St Pancras station offers good mobile reception throughout the main station concourse and platforms: this became [464]. This was mainly because the respondent did not oppose its inclusion.[14]On reading Ms Sheikh’s original witness statement, we noted that it contained no substantive information. The claimant informed us that this was because Ms Sheikh was subject to a settlement agreement with the respondent and she was not sure whether or not she was permitted to provide a witness statement in those circumstances. Ms Sheikh had sent an email to that effect, asking for the Tribunal’s advice on 30 October 2025: unfortunately that email had not been picked up or acted upon.[15]It was agreed that Ms Sheikh could provide a witness statement and we would ensure that Mr Way had time to read it and prepare any crossexamination he considered necessary. She provided a statement on Day 3 of the hearing, with two accompanying photographs; these were admitted as appendices to her statement. Issues[16]The issues were set down by Employment Judge McCooey at a case management hearing on 6 November 2024 – [83]. Those issues were then amended by Employment Judge Anstis following a hearing on 21 May 2025. The amended and finalised issues relating to liability are set out below: the numbering is true to the original EJ McCooey list, hence why there are some gaps in the numbering following edits by EJ Anstis. Following the hearing with EJ Anstis, there are now ten allegations of direct race discrimination and nine allegations of direct religion/belief discrimination (some but not all allegations overlapping). 1. Time limits 1.1. Given the date the claim form was presented and the dates of early conciliation, some of the complaints may not have been brought in time. 1.2. Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide: 1.2.1. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates? 1.2.2. If not, was there conduct extending over a period? 1.2.3. If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? 1.2.4. If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: 1.2.4.1. Why were the complaints not made to the Tribunal in time? 1.2.4.2. In any event, is it just and equitable in all the circumstances to extend time? 1.3. Was the unauthorised deductions complaint made within the time limit in section 23 of the Employment Rights Act 1996? The Tribunal will decide: 1.3.1. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the date of payment of the wages from which the deduction was made etc? 1.3.2. If not, was there a series of deductions and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one? 1.3.3. If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit? 1.3.4. If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period? 2. Unfair dismissal (Constructive) 2.1. Was the claimant dismissed? 2.1.1. Did the respondent do the following things: 2.1.1.1. Treatment outlined below as being acts of direct race and religion/belief discrimination (that occurred prior to the claimant’s resignation on 6 November 2023). 2.1.2. Did the claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the claimant’s resignation. 2.1.3. Did the claimant affirm the contract before resigning? The Tribunal will need to decide whether the claimant’s words or actions showed that they chose to keep the contract alive even after the breach. 3. Direct race discrimination (Equality Act 2010 section 13) 3.1. The claimant describes his race as Pakistani. He compares his treatment with white colleagues, and in some instances, with Indian and Bangladeshi colleagues. 3.2. Did the respondent do the following things:1.1.1 On June 2023, requiring the claimant to unfairly extend a new colleague, Alma Sheikh’s, probationary period;1.1.2 [removed]1.1.3 August 2023 Caroline Doherty during a phone conversation on the Duty manager’s phone about dismissing Ms Sheikh before the end of her probationary period, said words to the effect of, ‘you need to listen to me you Paki’. The claimant collapsed at work following that;1.1.4 Caroline Doherty and Sean Ghouse refused the Claimant's request for compassionate leave to see his seriously ill father in August 2023;1.1.5 [removed]1.1.6 Requiring the claimant to unfairly give Ms Sheikh extra work to claimant when he refused;1.1.7 The Claimant's grievance dated November 2023 was not investigated fairly and was not upheld;1.1.8 [removed]1.1.9 [removed]1.1.10 Giving more work and less holiday leave to the complaint; compared to other colleagues, for example, Marco Rammoddo and Pream Aparudai;1.1.11 [removed]1.1.12 [removed]1.1.13 Giving the claimant a final written warning;1.1.14 Constructively dismissing the claimant on 6.11.23.1.1.15 Sean Ghouse's decision not to pay the Claimant a bonus of £4,200 whilst he was on his notice period in November 2023.1.1.16 Caroline Doherty and Sean Ghouse placed the Claimant on garden leave in January 2024 after ‘using and abusing’ him for the Christmas period. 1.2 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimant has not named anyone in particular who they say was treated better than they were save where named above. 1.3 If so, was it because of race? 1.4 Did the respondent’s treatment amount to a detriment? 2. Direct religion or belief discrimination (Equality Act 2010 section 13) 2.1. The claimant describes his religion as Islam. He compares his treatment with nonMuslim people. 2.2. Did the respondent do the following things: 2.2.1. Requiring the claimant to work every Christmas and Easter over 5 years as they wrongly assumed he would not take the holiday; 2.2.2. Requiring the claimant to work on his religious holidays. In particular, Sean Ghouse required the claimant to work on Fridays, despite allowing Christian colleagues, Marco Rammoddo and chef, Pream Aparudai to take Sundays off to go to church; 2.2.3. Caroline Doherty and Sean Ghouse refused the Claimant's request for compassionate leave in August 2023; 2.2.4. Giving more work and less holiday leave to the complaint; compared to other colleagues, for example, Marco Rammoddo and Pream Aparudai; 2.2.5. [removed] 2.2.6. [removed] 2.2.7. Giving the claimant a final written warning; 2.2.8. Constructively dismissing the claimant on 6.11.23; 2.2.9. The Claimant's grievance dated November 2023 was not investigated fairly and was not upheld; 2.2.10. Sean Ghouse's decision not to pay the Claimant a bonus of £4,200 whilst he was on his notice period; 2.2.11. Caroline Doherty and Sean Ghouse placed the Claimant on garden leave in January 2024 after "using and abusing" him for the Christmas period. 2.3. Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimant has named Marco Rammoddo and Pream Aparudai, Claire Pugmore, and Anastasia as people who were treated better than him. 2.4. If so, was it because of the claimant’s religion or belief? 2.5. Did the respondent’s treatment amount to a detriment? 3. Unauthorised deductions 3.1. Did the respondent make unauthorised deductions from the claimant’s wages and if so how much was deducted? 3.2. The claimant is claiming £4,200 for a bonus. He calculates that as being 10% of yearly earnings (£42,000) and says the same calculation was made in respect of other colleagues’ bonuses in the same role, namely Pream Aparudai and Marco Rammoddo.
Findings of fact
[17]The claimant started work for the respondent at its Heathrow Terminal 5 store on 18 March 2019. He started as a Deputy Store Manager but was quickly promoted to Store Manager on 5 August 2019. Findings regarding witnesses The claimant[18]We found the claimant to be confrontational in his own cross-examination, and when he was cross-examining the respondent’s witnesses. This was particularly so during his evidence on Day 1. He was also content to make allegations of a personal nature against the respondent’s witnesses that were simply not relevant to these proceedings, and so we do not record them in any detail here.[19]Instead of simply answering the question with which he was faced, the claimant had a tendency to try to look behind the question to query the motivation of the question. This did at times appear somewhat evasive.[20]We note that the claimant had a clean disciplinary record, with no issues at all being raised with his performance or conduct as far as we have been made aware, until Ms Sheikh joined the respondent’s employment in February 2023. It appears to us that there was something beyond a professional working relationship between the claimant and Ms Sheikh: we do not make any criticism of this, it is simply an observation with which we need not concern ourselves further. However, it is clear that Ms Sheikh had a strong effect on the claimant: throughout this hearing, the claimant clearly had a strong desire to defend Ms Sheikh and prosecute any alleged wrong done to her by the respondent. We had to repeatedly remind the claimant that we were not here to determine any allegations of discrimination by the respondent said to have been suffered by Ms Sheikh. We also note that Ms Sheikh attended throughout the final hearing, and had some input into the claimant’s cross-examination questions for the respondent’s witnesses. This is not meant as a criticism at all, the claimant can be assisted by anyone he so chooses. It is merely an observation on the closeness of these two individuals, and the impact that the perceived unfairness towards Ms Sheikh has had on the claimant.[21]Ms Sheikh’s time with the respondent coincided with the claimant’s parents being seriously ill: his father later passed away in April 2024 - [226]. We find that his parents’ ill health and the eventual passing of his father deeply affected the claimant, understandably. We consider it may also have understandably affected his perspective and priorities as well as influencing his expectations as to the respondent’s duty towards him at that time.[22]The claimant is clearly hugely passionate about this case, due to the importance he attaches to his job and his desire to do that job correctly. Further, the status of Store Manager was important to the claimant: he was keen to explain to us that, although the title on his job contract was Store Manager, he was known as Senior Store Manager. He also, understandably, took pride in being the Cricket Captain for the respondent’s team in an inaugural match against the Royal Household. He is clearly motivated by a strong sense of fairness and justice. Due to these factors, we find that the claimant was significantly rocked by two acts of the respondent that he took to be an undermining of his status and the regard in which the respondent held him: 22.1. The overruling of his desire to pass Ms Sheikh’s probation without extension; and, 22.2. His views and concerns about Ms Islam (a co-worker at the Terminal 5 store) were not perceived to be taken seriously. Ms Sheikh[23]In terms of Ms Sheikh, we find that she was an articulate witness who, for whatever reason, is heavily invested in this case. We know that Ms Sheikh has had her own issues with the respondent, which have been resolved: however, this means that she cannot be said to be an impartial witness.[24]We accept the point that was made on behalf of the respondent: that Ms Sheikh’s substantive witness statement was produced during the course of this hearing, specifically during the course of the claimant’s evidence. Therefore, she had the benefit of hearing his evidence before submitting her witness statement. We do however accept that Ms Sheikh had used her best efforts to provide a witness statement in line with the original Tribunal orders, but was prevented from doing so by the lack of communication from the Tribunal. Mr Rauf[25]We found Mr Rauf to be a credible witness, but sometimes unreliable: we note that there is a marked difference between credibility and reliability. For example, Mr Rauf did concede the need to backtrack from some bold statements made in his witness statement on occasion. However, when the flaws in certain of those bold statements were raised with him, he was able to answer swiftly and without hesitation. This indicated to us that Mr Rauf was not fabricating his evidence. Furthermore, we found his answer as to why he did not raise a complaint about certain matters credible; he explained to us that he was a new employee within the respondent, not yet established within his role and was fearful of reprisals.[26]On some occasions, he would also downplay parts of his written evidence. For example, in his statement he recorded full sentences of overheard conversations, whereas under cross-examination it transpired that he had only really heard snippets in passing. In short, he did not come up to proof on his witness statement. Ms Doherty[27]We did not consider Ms Doherty’s evidence about what was and was not said in the back office at the St Pancras store to be credible. The respondent’s case, which was advanced for the first time in crossexamination and did not appear in the respondent’s witness statements, was that St Pancras had poor telephone reception. This would mean that Mr Rauf at the St Pancras store would be wrong about overhearing conversations Ms Doherty had whilst at the St Pancras store. The claimant was able to counter that argument with Mr Rauf’s evidence (that he would call his girlfriend from the store) and the evidence at new [464]. We therefore find that the mobile reception at the St Pancras store was adequate.[28]We also consider that Ms Doherty’s evidence as to the CCTV evidence used in the disciplinary process against the claimant was poor. Ms Doherty was unable to remember or give clear evidence about what precisely she saw on the CCTV. In her witness statement at [CD/15], Ms Doherty stated: “I reviewed CCTV footage which showed that the shutters for the store had been closed before 10pm on several occasions”.[29]This gives the impression that: 29.1. The CCTV footage was a video; 29.2. That it demonstrated the shutters to the store in motion, and going all the way down to close the store prior to 10pm; and, 29.3. That the footage showed the shutters being closed before 10pm on several different dates.[30]In fact, when Ms Doherty was asked questions about the CCTV by both the claimant and the Tribunal, it transpired that she had only seen one still image, which showed only that the shutter was partially shut prior to 2200hrs.[31]We find that the evidence within Ms Doherty’s witness statement was inflated in order to bolster the respondent’s decision to discipline the claimant.[32]We find that Ms Doherty’s evidence as to the CCTV was not forthcoming. Furthermore, given the weight that Ms Doherty appeared to place on the CCTV footage during the internal disciplinary investigation, she made no attempt to save that footage/documentation and took no responsibility for failing to do so, instead placing that responsibility on Mr McCready (the respondent’s Head of Security). She told us “it wasn’t in my purpose to find [the CCTV]”. Mr Blackbrough[33]On several occasions, Mr Blackbrough told us in answer to questions that he could not remember. The claimant highlighted this in his crossexamination as indicating that Mr Blackbrough was being evasive. We, however, consider the time that has lapsed between the events relevant to this claim and the date of this hearing. We accept that Mr Blackbrough will not have spent nearly as much time thinking about the case as the claimant over the past few years. We find it to be a credible answer that he could not always remember everything. Mr Coutinho[34]As with Ms Doherty, we have some concerns about Mr Coutinho’s evidence regarding the CCTV relevant to the disciplinary process.[35]Within his witness statement, Ms Coutinho states at [JC/18]: “...The evidence I considered included: ... 18.3 CCTV footage of the T5 store, which showed the shutters being closed in store earlier than 10pm on several occasions”.[36]On the natural reading of that sentence, one would be led to believe that Mr Coutinho had seen the CCTV himself. However, when asked, he said “I didn’t say I had seen it”. On further questioning, and on it being clear that the Tribunal were concerned that the claimant had not been shown any CCTV, Mr Coutinho’s evidence was that he did not recall whether he saw the CCTV or not, but he thought he went by the notes of Ms Doherty. In his oral evidence to us he focused much more on the till reports and downplayed the part any CCTV played in his decision-making. We found him to be somewhat evasive in his evidence.[37]On another note, the Tribunal asked Mr Coutinho whether the fact that, by the time he was making his decision, the claimant had resigned had any bearing on his decision-making regarding the appropriate sanction. His evidence was that the resignation made no difference. In light of the issues we have set out above with the CCTV, and issues we will explore further below regarding the disciplinary investigation, we find that the respondent’s approach to the disciplinary was that it did not require a counsel of perfection, as the claimant was leaving anyway. Mr Baker[38]Mr Baker was reluctant to respond to questions that went beyond the scope of his witness statement: he asked the Tribunal whether such questions were permitted. This demonstrated to us a closed and somewhat guarded approach to the litigation: this may simply be explained by the very fact that there is litigation between the parties. This caginess was also evident on occasions when Mr Baker was somewhat condescending to and uncooperative with the claimant in his answers. Mr Ghouse[39]We found Mr Ghouse to be a patient and reasonable witness. He answered questions in a simple and straightforward manner. He did not get in the least aggravated when the claimant on occasion was somewhat aggressive in his tone of questioning, but continued to do the job of a witness, and just answer the question in front of him.[40]We consider that Mr Ghouse is loyal to the respondent and sought to outwork its duty of care to its employees within the remit of his role.[41]Mr Ghouse’s recollection was good and markedly less vague than some of his colleagues from whom we heard evidence. We consider him to have been a very credible witness. Conspiracy theory[42]The claimant’s case rests primarily on the assertion that Mr Ghouse, Ms Doherty and Mr Blackbrough were all conspiring to remove him from the respondent on the basis that he was supportive of Ms Sheikh.[43]We find that there is no good evidence to support this theory and it is a baseless assertion. The only point that the claimant really relies upon to suggest a conspiracy is the physical proximity within which the three individuals worked. He alleged that they all shared an office: this is not quite so, but in any event would not be sufficient evidence upon which to base a conspiracy theory such as this.[44]We consider each of the three individuals mentioned below.[45]We accept that, on the limited evidence we have heard on the matter, there appears to be a trend of South Asian employees raising complaints (whether valid or not) within the respondent’s satellite stores, and a general dissatisfaction regarding Ms Doherty’s management from that same demographic. However, there is no good evidence that any concerns held by the South Asian demographic against Ms Doherty were valid, or indeed that any alleged failures in Ms Doherty’s managing ability is connected to the race of those reporting to her (see our findings as to Issue 1.1.3, the “Paki” allegation, below at paragraphs 77-78).[46]In relation to Mr Ghouse, there is no good evidence to support the contention that he had any motivation for wanting the claimant to leave the respondent’s employ, regardless of the reason for that alleged motivation.[47]Regarding Mr Blackbrough, the claimant took against him when he was perceived to be parachuted in to deal with Ms Sheikh’s probation process, effectively going over the claimant’s head and his wishes. However, Mr Blackbrough was the claimant’s line manager at the time, and we consider that there was nothing inappropriate about Mr Blackbrough holding Ms Sheikh’s latter probation review meetings instead of the claimant. This, we accept, was in the remit and authority of his role. Furthermore, Mr Blackbrough’s evidence was that, given Ms Sheikh’s reduced hours (0515hrs to 1015hrs) she and the claimant did not overlap at work, meaning that there was no opportunity for them to hold further probationary meetings. We accept this practical reason as to why Mr Blackbrough stepped in to undertake these meetings, and note that Mr Blackbrough was not challenged when he gave this answer in cross-examination.[48]We are therefore not satisfied that there was any conspiracy to push the claimant out of his role.[49]Furthermore, the assertion by the claimant that the motivation for the alleged conspiracy was that he was supportive of Ms Sheikh undermines his discrimination claims.[50]Throughout the hearing, we had to repeatedly remind the claimant that his claims were that he had been treated less favourably because of his race or religion, not because of his support of Ms Sheikh. The claimant may feel that this support of Ms Sheikh was the reason for the alleged treatment; however, that is not the claim which we are tasked with determining. Evidence of discrimination[51]The claimant relies on some background points to invite us to draw an inference that the respondent’s employees’ actions giving rise to this claim were discriminatory.[52]In his witness statement, the claimant at [C/17-21] sets out certain allegations that he says show racism and sexism. There are some assertions within those paragraphs for which the relevant facts are not explained. For example, “I personally witnessed her discriminate against three other employees of South Asian background, in addition to myself”. There are no facts set out within that allegation, and it was not explored in evidence. We therefore are not able to accept that this assertion is accurate.[53]There are three factual matters within those paragraphs of the claimant’s statement: 53.1. Mr Ghouse and Mr Blackbrough allegedly mocked two Indian employees, stating “No need to promote them, they are living their lives”; 53.2. Ms Doherty promoted only white female Store Managers, particularly at the Royal Exchange; and, 53.3. Ms Doherty did a social media post expressing her goal to have an “all-female leadership team”.[54]The first point regarding Mr Ghouse and Mr Blackbrough was not put to either witness. We have been taken to no supporting evidence. We therefore are not satisfied that this incident occurred as stated by the claimant.[55]We have not seen any evidence within the bundle about statistics of the ethnicity of those promoted from Store Managers. We do however note that the social media post to which the claimant refers is at [58]: Ms Doherty in that post says: “I also reflected on having an all female leadership team, whilst that wasn’t intentional, it does feel empowering as I know these Managers have so much to offer”.[56]This screenshot is dated 20 July 2024 in the bundle. We therefore accept (as it appears to be common ground) that, in July 2024, the satellite store leadership team was all female.[57]However, this is not a sex discrimination claim. It is a race/religious belief claim. The claimant commented on the fact that all the women in the picture are white. The claimant asked Mr Ghouse about this picture (he did not explore this picture or this topic with Ms Doherty). Mr Ghouse confirmed that there were “probably” some pictures of Ms Doherty on LinkedIn with people who are non-white. He gave a specific example of a photograph of Ms Doherty with Amrit (one of the current managers) at a refit at Terminal 5.[58]The claimant picked up on the fact that Mr Ghouse had posted a comment on Ms Doherty’s post at [58] - [59]. That comment makes no reference to sex or race. It is a supportive message to the satellite store leadership team.[59]We find that there is nothing in this post or the make-up of the Satellite Leadership Team in July 2024, that provides us with evidence from which we could safely draw an inference that Ms Doherty (or Mr Ghouse and Mr Blackbrough) were inherently racist. Issue 1.1.1 - June 2023 – requiring the claimant to unfairly extend Ms Sheikh’s probationary period[60]Ms Sheikh started work for the respondent’s Heathrow store on 1 February 2023 as its Deputy Store Manager, directly below the claimant in terms of line management hierarchy. Ms Sheikh’s employment was subject to a probation period, during which she had the following probation meetings: 60.1. On 1 March 2023, a positive 4-week review with the claimant - [213]; 60.2. On 31 March 2023, a positive 8-week review with the claimant - [219]; 60.3. On 2 May 2023, a positive 12-week probation review with Mr Blackbrough at which her probation period was extended - [229]; 60.4. On 4 June 2023, a further positive probation review with Mr Blackbrough at which a further extension was granted - [243].[61]The reason why Mr Blackbrough decided to extend the claimant’s probation period on 2 May 2023 is set out in [231]: “I would like to extend Amna’s probation based on the fact she has been working for a number of weeks on reduced hours following her injury, meaning we have not seen her for as many hours as we usually would. I forsee [sic] that if Amna continues as she is currently that there would be no reason for her not to pass probation at then [sic] end of this extended period”.[62]This rationale is repeated in the “Extension to Probationary Period” letter at [233], and apparently accepted by Ms Sheikh at the time, as per her email at [234]: “I was happy and agreed with the extension of x4 weeks with James [Blackbrough]...”[63]At the next review, on 4 June 2023, Mr Blackbrough gave the following reason for a second extension - [245]: “Similar to the last review where we extended due to the reduced hours Amna is working, we will need to do the same again as the situation is the same. We need to be able to see her working across all shifts and hours to suitably asses [sic] her performance”.[64]Ms Sheikh’s probation was extended to 13 August 2023, following the end of her doctor’s note – [246].[65]The reason for extending Ms Sheikh’s probation period given within the contemporaneous documentation is supported by Mr Blackbrough’s witness evidence. The claimant argued that this was not the genuine reason for the extension: his case was that Ms Sheikh was not actually working reduced hours. However, we do not consider that this assertion is sufficient to undermine the evidence of the respondent as to the reason for the extension. We therefore accept that the extension to the probation period was due to the need to see more from Ms Sheikh, given she had been working reduced hours. We consider that reason to be a reasonable rationale behind extending probation. We are not satisfied that the decision to extend was unfair as per the allegation.[66]Returning to the allegation, strictly it is not the case that the claimant was required to extend Ms Sheikh’s probation. In reality the allegation is that the claimant’s role was overtaken by Mr Blackbrough, who made a different decision than the one the claimant would have taken (to pass Ms Sheikh’s probation).[67]Even if this is the allegation, different decision was taken by Mr Blackbrough than would have been taken by the claimant, in that Mr Blackbrough decided to extend probation. We are satisfied that the reason for that was the need to see more from Ms Sheikh, given she had been working reduced hours. Issue 1.1.3 - August 2023 – Doherty during a phone conversation on the Duty Manager’s phone about dismissing Ms Sheikh before the end of her probationary period, said words to the effect of “you listen to me you Paki”. The claimant collapsed at work following that[68]On or around July/August 2023, the claimant had a telephone call with Ms Doherty. It is alleged by the claimant (and Mr Rauf) that Ms Doherty was at the St Pancras store when this conversation occurred.[69]The claimant’s case as to what words were used varies slightly: 69.1. The allegation is “you listen to me you Paki”; 69.2. In his witness statement at [C/13] he records the words being an “insubordinate Paki”.[70]There is also some discrepancy as to the topic of conversation: in the List of Issues, it is said to have been a conversation regarding Ms Sheikh’s dismissal. In the claimant’s witness statement, he says that the conversation was about Ms Islam’s compassionate leave.[71]We consider the evidence that the claimant relies upon to support his claim: 71.1. In Ms Sheikh’s statement, she says at [AS/12] that she heard Ms Doherty use the word “Paki”; 71.2. In Mr Rauf’s statement at [PR/5], he reports hearing Ms Doherty telling the claimant to “shut up and people like your kind should just do as they are told”.[72]Taking Mr Rauf’s evidence first, we find that he did not overhear the conversation to which this allegation relates. He was not employed at the time at which this conversation is said to have occurred by either side: the claimant says it was August, the respondent says it was 25 July 2023. Further, he does not allege that he heard the word “Paki” used. Therefore, we find that, whatever conversation he did overhear, it was not the one to which this allegation relates and as such his evidence does not take us any further.[73]Turning to the respondent’s evidence, Ms Doherty refers to an occasion when she was told that the claimant had collapsed, and accepted that they may have had a conversation on that day. However, she robustly denies the use of the word “Paki”, saying it is not the sort of language she would use – [CD/10].[74]There is no documentary evidence to assist us on this allegation. Neither Ms Sheikh nor the claimant made a complaint to anyone about Ms Doherty’s alleged use of language.[75]Ms Sheikh in fact did not mention the use of the word “Paki” prior to her statement that was produced after the commencement of this hearing. She explained that the day after this incident, she was off sick and was having a heart operation; hence she did not complain. We accept that evidence. We also accept that she tried to call Mr Ghouse and Ms Doherty on the day in question. However, we found Ms Sheikh’s evidence about these attempted calls somewhat odd. Her evidence was that she was trying to call them to alert them to the claimant’s ill health, and that the Paki comment may have come up in that context. She did not give the impression that she was ringing the two individuals with the intention of raising a complaint with them about Ms Doherty’s use of language.[76]Attached to Ms Sheikh’s statement are two photographs showing the claimant around the time of his collapse, including showing the presence of paramedics and an ambulance. We query why Ms Sheikh felt the need to take these photos, unless it was to create a record, to mount a complaint of some description against the respondent.[77]Returning to the claimant’s complaint about this alleged conduct by Ms Doherty, we note that this allegation was not in the original claim form, his resignation, or his internal complaint. This is despite the fact that the claim form and internal complaint both raise complaints about Ms Doherty. In relation to the internal complaint, we note that the claimant even goes as far as raising the conversation subject to this allegation, but does not reference the word “Paki” - [298]: “[I] would like to draw your attention to July 2023 I had a very difficult conversation with Caroline discussing that she should not be going behind my back. She left me so stressed that an ambulance was called”.[78]We find that, had this incident occurred as the claimant alleges, he would have raised the complaint at some point prior to his Further and Better Particulars. We consider that this stark use of discriminatory language would have been at the forefront of his mind when considering complaints about Ms Doherty. Given the claimant was content to raise a grievance about Ms Doherty on 28 November 2023, and explicitly mentions the facts around this allegation, we find it incredible that he would not have complained about her use of the word “Paki” if indeed she had used that word. The claimant has proffered no good reason why he did not raise the “Paki” complaint: by the time of his resignation, he would have had nothing to lose.[79]We therefore reject this allegation on its facts. Issue 1.1.4 and 2.2.3 - August 2023 – Ghouse and Doherty refusing the claimant’s request for compassionate leave to see his seriously ill father[80]On 7 August 2023, the claimant requested 6-weeks' compassionate leave due to his mother being unwell (not his father) - [268]. The respondent responded the same day, refusing the request, but suggesting that the claimant take two-weeks annual leave with some additional support around permitting the claimant flexibility to attend appointments with his mother - [268]. This refusal appears to have inflamed an increasingly fraught relationship between the claimant and the respondent’s management.[81]Factually, therefore, we find that the claimant’s request was rejected. The question then becomes “why?”.[82]The respondent’s primary reason for rejection was due to their concern that they would not be able to provide management cover at T5 for six weeks: this lack of cover is alluded to in the respondent’s email on [268]: “we do need to ensure that we also have efficient cover for your store”.[83]The second reason given by the respondent was that the claimant had been given some compassionate leave the previous year following an accident. On further questioning of Mr Ghouse, it transpired that he meant enhanced sick pay had been paid to the claimant, rather than him having taken compassionate leave. We find that the terminology that the respondent used here was inaccurate, but this was because in summary Mr Ghouse and Ms Doherty were looking at the overall fairness to employees. There was a suggestion from Mr Ghouse in his evidence to us that, because the respondent had been generous in the previous year to the claimant (in relation to enhanced sick pay) it would then be too generous to allow him such a prolonged period of leave in the current year.[84]The claimant seeks to undermine the respondent’s alleged reasoning, highlighting that it would have been possible for Ms Doherty to cover the claimant. Further, he pointed out that the respondent had been able to cover him when he then went off on sick leave for a prolonged period. The respondent’s answer to these points was that Ms Doherty would not be able to store manage the T5 store as well as doing her own role, and they had no option but to find cover for the claimant when he was off sick.[85]The claimant pointed to more favourable treatment of Ms Islam in that she was granted compassionate leave when she was on probation and not entitled to compassionate leave. We have looked at the compassionate leave policy and there is nothing that excludes employees during their probation period – [193]: “In the event of the death or serious illness of a close relative, if you may benefit from some time off work, you should speak to your manager or the HR team. How much time off and whether it is paid or unpaid is at the discretion of your manager, but we will do what we can to support you at a difficult time”.[86]During the course of this hearing, it has become clear that the reason the respondent offered Ms Islam compassionate leave was because she had raised a complaint against the claimant and Ms Sheikh. In light of that complaint, she did not feel able to work in the T5 store alongside those two individuals. This compassionate leave was for a period of two or three days, as opposed to a number of weeks. We accept that this scenario does not fall within the definition of compassionate leave at [193]. It may have been more accurate to term this “special leave”, however we have already found that sometimes terminology used by the respondent regarding types of leave is not always accurate.[87]We accept the respondent’s reason for rejecting the claimant’s request. Mr Ghouse and Ms Doherty were consistent in their evidence, which supports the contemporaneous evidence within the rejection email. Furthermore, it is credible that to cover a store manager for a period of six weeks (when it was not due to sickness absence) would stretch the respondent and place the operation of the store in difficulty: to request six weeks was unrealistic and optimistic. We consider it would be very unusual to grant a period of six weeks for a dependent relative.[88]Although we accept that this was the reason, we do consider that the respondent could have offered the claimant some compassionate leave, even if only for a few days like Ms Islam. Mr Ghouse and Ms Doherty explained that this was just not something that was raised as an option by HR when the matter was discussed with them. The approach the respondent took, including notably not discussing the claimant’s request with him to see if there was an agreeable compromise, was lacking in pragmatism, empathy and compassion. This was compounded by the proposed solution being that the claimant take annual leave out of his annual leave allowance to accommodate any level of time off. We accept that the claimant felt he was not being heard or considered; we can understand that. The respondent failed to engage with him on this request before making a decision. Issue 1.1.6 - requiring the claimant to unfairly give Ms Sheikh extra work to claimant when he refused[89]This allegation was unclear to us at the commencement of the hearing. In cross-examination, the claimant explained his complaint: he meant that Ms Sheikh was required to cover the claimant’s role when he was off sick, doing her full hours instead of reduced hours. Throughout the hearing (and as mentioned above) the claimant referred to Ms Sheikh being under a GP’s fit note for reduced hours: we have not seen that fit note in the bundle.[90]This allegation was not really put to any of the respondent’s witnesses, and we consider it to be fairly nebulous. For example, we have been given no dates for this allegation, or any reference to the period to which it relates, other than it was whilst the claimant was on sick leave.[91]In terms of the allegation that the respondent “required” the claimant to give Ms Sheikh more work, we understand from his evidence that the claimant was off sick at this time and therefore was not in a position to be managing Ms Sheikh. In terms of any “requirement”, the claimant’s evidence in crossexamination was that when he raised his concern about Ms Sheikh working full hours he was told “that is the job, she is an adult, if she doesn’t complaint then don’t raise anything”.[92]Given the lack of clarity on this issue, we are not satisfied that the claimant was required to give Ms Sheikh any extra work. As such, we reject the claim on its facts. Issue 1.1.7 and 2.2.9 - November 2023 – grievance not investigated fairly and not upheld[93]The claimant raised a grievance on 28 November 2023 against Ms Doherty and Mr Blackbrough – at [297]. He was invited to a grievance meeting scheduled for 11 December 2023 - [333]. The handwritten notes of that meeting are at [339-344], with the typed version at [345-350]: these were used to create the more comprehensive official meeting notes at [334].[94]Looking at those minutes, we find that the claimant had a fair opportunity to air his complaints within the meeting: he was also asked what his preferred outcomes would be. We note that Mr Baker did not probe the claimant’s account in this meeting, however the meeting ended with Mr Baker explaining that he would now investigate the claimant’s complaints.[95]In terms of the steps Mr Baker took to investigate, he met with Mr Blackbrough on 11 December - [351]. We note that, during the course of that interview, Mr Blackbrough ventured to say: “any decision made on the disciplinary was based on the evidence provided in the disciplinary meeting and against what was outlined in policy”.[96]However, Mr Blackbrough was not the decision-maker on the claimant’s disciplinary, and so we query why he felt able to answer this. However, on reading the notes as a whole it appears to us that Mr Blackbrough was being interviewed as the representative for the respondent; he was the only person interviewed but was questioned about all matters, even those of which he did not have first-hand knowledge (for example the refusal of compassionate leave) - [353].[97]The claimant’s main criticism towards Mr Baker in his cross-examination was that Mr Baker had not included the final written warning in his considerations. Mr Baker explained that this was because there was an appeal against the disciplinary outcome in process (the claimant appealed the final written warning on 23 November), and the respondent’s policy was to keep those two processes separate. This is reiterated in [JBR/14], albeit Mr Baker did ask Mr Blackbrough about this matter briefly - [353]. We accept that keeping the disciplinary process separate from the grievance was a reasonable approach to take, and explains why Mr Coutinho was not interviewed.[98]We find that Ms Doherty was not interviewed as a part of the grievance process. In his oral evidence, Mr Baker said that he questioned “them” and did investigate the allegations against Ms Doherty: no interview with Ms Doherty is mentioned in Mr Baker’s statement and there are no notes of such a meeting.[99]Following the grievance meeting with Mr Baker, the claimant sent him several emails at [355-356], [357-360], [361-374], [375-380] and [381-387]. Mr Baker also took into account the staffing rotas between August and October 2023 – [JBR/16].[100]Returning to the allegation here, the claimant criticises the grievance investigation at [C/16], stating that it was not investigated fairly and that: “The process was superficial, biased, and designed to protect senior management”[101]However, beyond criticising the lack of inclusion of the final written warning, the claimant did not specify why the investigation and decision was unfair in his evidence to us.[102]We find that Mr Baker’s investigation was lacking in thoroughness, for example he did not interview Ms Doherty who was one of two alleged perpetrators. We find that, in giving evidence, Mr Baker was fairly dismissive of the claimant and his grievance. We therefore uphold the allegation on its facts.[103]We consider the reason for Mr Baker’s conduct was because, at the time of the grievance, the claimant had submitted his notice and so would be leaving the employment of the respondent in any event. Therefore, in reality only lip service was paid to this grievance. This was not a reason advanced by either side: however, having heard the evidence we are not satisfied that the respondent or claimant can prove their asserted cases on this point. We are therefore entitled to find a different reason for the conduct than that advanced by the parties. This is explored more in our conclusions below. Issue 1.1.10 and 2.2.4 - giving the claimant more work and less holiday than Mr Aparudai and Mr Rammoddo[104]In terms of this allegation, we are not clear still as to what work the claimant says he was given that was additional to his job role. We understand the allegation regarding holiday leave, and therefore take the allegation as a whole: that, because the claimant was granted less holiday, he by default worked more days across the year than his comparators.[105]It is common ground that the claimant did have less holiday entitlement than his two comparators. This is explained in Mr Blackbrough’s statement at [JBH/21-26]: Mr Blackbrough recalls the claimant raising this issue with him and he then looked into the matter.[106]It transpired that Mr Aparudai and Mr Rammoddo’s contracts had been varied in the same way as Mr Blackbrough’s, prior to the claimant’s employment. The same variation occurred in all contracts for management level employees. The variation was to increase the notice period from one month to three months, in order to guard against someone leaving and the respondent not having sufficient time to find a replacement. The more onerous increase in notice period was offset by providing these individuals at management level with additional holiday days, taking them from 28 to 33 days each.[107]The three-month notice period was incorporated into all new management level contracts after this initial variation, but new contracts did not have the 33 days holiday allowance. We find that the claimant’s contract, being drafted after the variation affecting Mr Blackbrough and others, was the same as all other new store manager contracts employed after that time (3 months’ notice, starting with 28 days’ annual leave).[108]The reason for the difference in holiday allowance was because the claimant was not employed at the point at which the initial variation to the notice period was implemented. By the time of his employment, the notice period clause had been harmonised across the contracts for store managers.[109]We remind ourselves that the claimant’s contract does allow for employees to earn more holiday to reflect the number of years’ service. For example, after 5 years’ service, the claimant’s allowance would have increased to 33 days: this is referred to in an email the Ms Douglas sent to the claimant on 27 February 2023, confirming this position – [211]. Issue 1.1.13 and 2.2.7 - 20 November 2023 – giving the claimant a final written warning[110]On 24 July 2023, various matters came to the respondent’s attention regarding the claimant’s alleged conduct due to Ms Islam entering a grievance against the claimant and Ms Sheikh. An extract from that grievance is at [251]: “Store managers close store at 9.30pm with shutters half down and we have been following 9.45pm from them when the store closes 10pm if this can be checked on CCTV between 5-7 July when I started new”.[111]It appears that there were a number of issues between Ms Islam, the claimant and Ms Sheikh, leading to Ms Islam making a complaint about the other two individuals. The only matter of relevance to this claim is this issue of closing the store early: we therefore do not explore any of the other matters raised by Ms Islam.[112]On 1 August 2023, Ms Islam was invited to a grievance hearing, chaired by Ms Doherty: the full notes are now at pages [259-261m]. The relevant section regarding the early closure is on [261a], in which Ms Islam says: “Raja mentioned if there are not passengers or flights showing in gate A, we can close earlier, but to call Raja or Amna. That day, he put the shutters down at 9.30pm. ... Yes, just to put it down at 9.45pm. So, we were all following that, until I had that chat with you and you said the shutter should go down at 10pm.”[113]Following Ms Islam’s grievance hearing, the claimant was invited to a meeting to discuss the outcome of Ms Islam’s grievance – [252]. That meeting took place on 2 August; notes of the meeting are at [261]. Within this meeting, the claimant raised his own concerns about Ms Islam: we will not dwell on these as they are not relevant to the claim we need to determine.[114]The discussion around early closures is found at [266]. We find that the claimant’s position evolved somewhat during this meeting in terms of who was accountable and how often the shutter came down early: [266] - “Shutter half way at 9.50, closes completed [sic] at 10pm. ... Closing the store early that’s their call. I have been informed a few times that they are pulling the shutter down at 9.50pm and they are doing the cash. ...” [266] - CD asked “...has this been authorised and who gave the authority to do so?”. The claimant replied “9.50pm is the basic thing in Heathrow”. [266] - the claimant explained that he knew of one instance when the store closed before 9.50pm, because “A gate was empty”. When asked who authorised that, he said “no one” and confirmed that this was his “call”. [266] - “If the duty managers ask me that the A gates are empty and then phone calls are made, the bar is empty and the flights are done. No one is involved accept [sic] me”[115]During the meeting, Ms Doherty discussed specific dates and times with the claimant regarding early closure. However, she did not give the claimant the till information print-out that we now have in the bundle. We have the till information for the two tills within the Terminal 5 store at [326/330] and [328].[116]The till information, most easily viewed at [328], shows the individual operator of the tills on each day the store was open. We can see that the claimant is only named on one occasion between 1 May 2023 and 25 July 2023, on 8 June 2023. On that occasion, he closed one till at “9:31:44hrs” and Rajpreet Dhillon closed the second till at “9:24:18hrs”. There are other occasions on which one or both tills are closed before 2200hrs. We accept that, as Store Manager, he is ultimately responsible for the management (including opening/closing) of the Terminal 5 store.[117]Following this meeting, Ms Doherty says in her witness statement at [CD/15]: “...I reviewed CCTV footage which showed that the shutters for the store have been closed before 10pm on several occasions”.[118]As we have set out above at paragraph 30, this in fact transpired not to be the case. Ms Doherty saw one screenshot of CCTV footage, for an unknown date, which showed the shutter was part way down. She did not see any video footage, so could not have seen the shutters being closed, and did not have CCTV evidence that there had been early closure on “several occasions”. Ms Doherty’s witness statement overstates the CCTV evidence she had before her.[119]Ms Doherty also spoke to other members of the claimant’s team, namely Reuben Rogtao and Amit Summi. Mr Rogtao’s notes are at [431], and the relevant exchange is as follows - [435]: “CD: ... As far as you are aware, you have been given authority to close early but only if you contact managers, is that correct? RR: As far as I was told, we close the shutters at 9:45pm and then close completely at 10pm. I worked with Amna [Sheikh] a couple of shifts where she would close at 9:30pm...she said “Reuben don’t think you can do this, it’s only the managers that have the authority to do this”.”[120]The notes of Ms Summi’s interview are at [439]. Again, the relevant exchange is as follows - [441]: “CD: Have you ever closed early? AS: No. We normally tend to leave at 10pm and the shift closes just before 10pm. ... AS: ...We start the cash up procedure before 10pm, which takes around half an hour 45 minutes. We have two tills, and we keep trading on one till. We cash up the cash first and bank it then when it is time to close, we do the final till. CD: Do you close the shutter early when you’re doing the cashing up? AS: No, we bring it down slightly, but we don’t shut the shutter. CD: When would you bring the shutter down? AS: About 9:45pm, we maybe slightly bring it down but we never shut the shutter. ... CD: Just for clarity on this one, who has given permission to put the shutter down before 10pm? AS: We were told, sometimes it gets completely dead on the south side, so we have been told to bring the shutters down, just so you know the shop is about to close. CD: Who has given you that direction? AS: I think it was always the procedure. CD: When you started, who told you that? AS: Raja, he was there. CD: Ok, so it was part of your training? AS: Yes, bring the shutters down if it is quiet, that way you can finish the replen and do the closing properly.[121]In light of Ms Doherty’s findings, she recommended that there was a case to answer and the matter was referred for a disciplinary process.[122]On 4 October 2023, the claimant was sent a letter setting out that there was a disciplinary case to answer regarding the alleged early closure of the Terminal 5 store - [281]. On that same day, the claimant participated in a “follow up meeting and wellbeing meeting”, the minutes of which are at [282]. In that meeting, chaired by Ms Doherty, she reminded the claimant of the investigation and the fact that a disciplinary process would now ensue.[123]The claimant resigned on 6 November, before the disciplinary hearing took place and before the claimant received an invitation to the disciplinary meeting, but after Ms Doherty’s reminder and the letter of 4 October 2023.[124]The claimant was invited to a disciplinary hearing by letter of 8 November 2023, for a meeting on 13 November – [286]. That letter simply recalls that the evidence to be considered will be the “investigation meeting notes”: there is no mention of the till information or CCTV. There is also no written confirmation that any meeting notes, till information or CCTV evidence were sent to the claimant. We find as a fact that the claimant was not sent any of these items: we have not been shown any evidence that such documentation was sent to the claimant; the invitation letter does not assert that those documents were enclosed or attached.[125]The claimant replied the same day at [288] stating that he would not be attending the disciplinary hearing as he had resigned. The respondent, via Mary Olubori (Interim Employee Relations Advisor) advised the claimant that the fact of resignation did not mean he was exempt from attendance. She offered to reschedule if the claimant was unable to attend – [288]. In the event, the hearing was rescheduled for 20 November 2023: the invitation explained that if the claimant did not attend a decision may be taken in his absence - [291]. We have not seen a reply to this correspondence from the claimant.[126]The disciplinary hearing went ahead on 20 November 2023 with Mr Coutinho; however, the claimant did not attend. Mr Coutinho dealt with the hearing on the basis of the evidence before him. As discussed above at paragraph 36, despite how his statement reads, Mr Coutinho cannot now remember whether he saw any CCTV evidence or not. We find that Mr Coutinho did not see the CCTV. He was equivocal at best in his evidence to us, stating at one point “I didn’t say I had seen it”. We find that if Mr Coutinho had been provided with a copy, he would have remembered. Furthermore, if Mr Coutinho had seen a copy of a screenshot, it would have meant that there would be a copy available to go in the bundle. The fact that we have no CCTV evidence in the bundle goes to support our view that Mr Coutinho did not see any.[127]Even in his witness statement, we find that Mr Coutinho is vague about what evidence precisely he did see at the stage of making his decision. At [JC/18.4] he states: “I believe that I also considered the statements which Caroline had obtained from Mehenaz Islam, Reuben Rogtao and Amit Simmi [sic] as part of the investigation process ... although I do not recall specifically”.[128]We consider that this is poor evidence, and demonstrates a lack of care or thought regarding the internal process for which Mr Coutinho was responsible. To not have made a clear record of the documentation upon which a disciplinary decision is taken shows a lackadaisical approach to the role of disciplinary officer.[129]As we have set out above, we consider that there were failings with the respondent’s disciplinary process. Had the claims required us to consider the reasonableness and fairness of the disciplinary process, we consider that the respondent would have been found wanting in that regard. However, the only claims before us in relation to the disciplinary process are ones of direct discrimination.[130]The allegation is that the respondent gave the claimant a final written warning. Clearly this is factually correct. The question is, “why did Mr Coutinho impose a final written warning on the claimant?”.[131]We find that the disciplinary hearing and the decision to impose a final written warning were influenced by the fact that the claimant was already in his notice period. Although Mr Coutinho stated that the claimant’s resignation made no difference to his decision making, we do not accept this evidence. The lack of care shown by Mr Coutinho during the disciplinary process and the giving of evidence on that topic (in being unclear and arguably misleading about what evidence he reviewed) demonstrates to us that went through the motions in this disciplinary process. We consider that, from the respondent’s perspective, the claimant would soon be leaving the respondent’s employ: as such there was no reason for the respondent to dismiss the claimant. Mr Coutinho imposed a sanction that we consider was harsh in the circumstances. In his witness statement, Mr Coutinho cites loss of custom and reputational harm as reasons for the sanction - [JC/20]. However, he had no evidence before him to suggest that, in fact, either had occurred.[132]We consider that, once Ms Doherty had referred the matter for a disciplinary, Mr Coutinho simply accepted that there was misconduct here without really giving the evidence much more than lip service. We will return to the reason for this in our conclusions.[133]As we have said, the allegation before us is strictly limited to the implementation of the final written warning by Mr Coutinho. However, we consider it worth mentioning Ms Doherty’s recommendation that this go to a disciplinary. In our view, that decision was heavy handed by Ms Doherty. This is particularly in light of what Ms Doherty said in the disciplinary appeal, that it could be agreed that the shutters come down 10 minutes early but not closed all the way - [322].[134]We accept it was reasonable to investigate the early closure point once it was raised. However, we consider it would have been more appropriate to have had a discussion with the claimant following the investigation as opposed to sending it to disciplinary. It appears to the Tribunal that this is not a case in which the claimant had acted in breach of any direct order, but had managed the store and his staff as he saw fit. It would have been more proportionate to set out to him the errors in his understanding and put in place clear rules about closure and the respondent’s expectations. Issue 1.1.15 and 2.2.10 - November 2023 - Ghouse’s decision not to pay annual bonus Issue 3 – unauthorised deduction of the same bonus[135]Factually, it is correct that the respondent did not pay the claimant a bonus for 2023. The next question is “what was the reason for this decision?”.[136]The bonus policy is at [169-170] and provides as follows: “Bonus payments will only be paid to colleagues who are employed by the Company on the date when the payment is made. If a colleague is serving their notice period, they will not be eligible for the bonus payment. For the avoidance of doubt, this also includes if the colleague remains employed but is working their notice on the pay-out date”.[137]The claimant’s situation here is exactly as covered by these two paragraphs within the bonus policy. The claimant had entered his resignation on 6 November 2023, and the bonus payments that year were handed out in December 2023: this was Mr Ghouse’s evidence at [SG/33] and this was not challenged by the claimant. In December 2023, the claimant was working his notice period. Therefore, on the normal construction of the bonus policy, the claimant was not entitled to a bonus in December 2023.[138]We accept the claimant’s point that he had worked the entire year for which the bonus was due, and it is not fair that he did not get his bonus. However, it is entirely in line with the respondent’s policy. The claimant denies having seen this policy, however it makes no difference whether he knew of the policy or not. The point is that there is no good evidence to suggest that this policy has been invented and was not in place in December 2023. Therefore, we accept that the reason why the claimant was not paid a bonus for 2023 was because the respondent was implementing the Discretionary Bonus Scheme Guidelines applicable at that time.[139]Contractually, we accept that the bonus was not a contractual bonus, but a discretionary one. In any event, there is nothing within the claimant’s terms and conditions, or indeed within the Discretionary Bonus Scheme Guidelines, that is capable of demonstrating that the claimant was contractually or legally entitled to a bonus payment in 2023. Issue 1.1.16 and 2.2.11- January 2024 – Mr Ghouse and Ms Doherty placing the claimant on garden leave and “using and abusing” him over the Christmas period[140]We address first the allegation that the claimant was “used and abused” for the Christmas period. In cross-examination, the claimant accepted that he had in fact just been required to do his normal job over Christmas, as opposed to anything more strenuous. It is common ground that Christmas is the respondent’s busiest time of year, and so we accept that the work would have been taxing: but nothing beyond the volume of work over any other Christmas period.[141]We therefore reject the latter element of this allegation on the facts and focus on the placing of the claimant on garden leave as of 31 December (as opposed to any time earlier).[142]Garden leave is addressed within the claimant’s contract of employment at clause 16 – [159]: “During any period of notice, and provided that we continue to pay your salary and provide the benefits to which you are entitled under this Agreement until your employment terminates, then we are entitled in our absolute discretion during this period of your notice (or any part of such period) to place you on garden leave. ...”[143]Following the claimant’s resignation, there was various communication about his notice period.[144]In the grievance meeting on 11 December with Mr Baker, the claimant confirmed that he was content to be either at work or on garden leave - [336]. At the end of this meeting, the claimant altered that slightly to say that he would ideally like to be placed on garden leave.[145]There are various contemporaneous emails regarding the claimant’s garden leave. On 27 December 2023 (at 1642hrs), the claimant sent an email to Dawn Douglas (Head of People Business Partnering) stating as follows - [39]: “Further to your phone call and our conversation this evening I am accepting your offer of garden leave to starts [sic] from December 31st 2023 until February 5th 2023 [sic] of my official last day in the business”.[146]In reply, Ms Douglas sent the claimant an email at 1731hrs the same day, stating - [395]: “I have spoken to Sean, and he has approved you being on Garden leave from 2nd January 2024 to 5 February 2024, however I have read your email sent today at 16.42, which states that you have changed your mind and are agreeing to the original date suggested of 31st December 2023, as your last day in the business”.[147]It therefore appears as if the claimant had initially been seeking a later date to go on garden leave than the respondent (2 January versus 31 December). Looking at the entirety of the evidence on this matter, we find that the date on which the claimant went on garden leave was a matter of agreement between parties following amicable discussions. That is the reason why the respondent placed him on garden leave when it did. There is no evidence in the bundle to suggest that the claimant asked to go on garden leave earlier and was refused. Issue 2.2.1 - requiring the claimant to work every Christmas and Easter over 5 years[148]We have the rotas for Christmas and Easter in the bundle and they show as follows: Page Easter/Christmas Bank holiday (& Claimant working Christmas day) dates 207 Easter 2019 19 / 21 (Sunday) / No / Yes / No 22 April 207 Christmas 2019 25 Dec / 26 Dec Yes / Yes 208 Easter 2020 3 / 5 (Sunday) / 6 No / No / No April 208 Christmas 2020 25 Dec / 28 Dec No / Yes 209 Easter 2021 2 / 4 (Sunday) / 5 No / No / No April 209 Christmas 2021 25 / 27 Dec / 28 Dec Yes / Yes / Yes 210 Easter 2022 15 / 17 (Sunday) / No / No / Yes 18 April 210 Christmas 2022 25 / 26 Dec / 27 Dec Yes / Yes / Yes 227-228 Easter 2023 7 / 9 (Sunday) / 10 Yes / Yes / Yes April 401 Christmas 2023 25 Dec / 26 Dec Yes / Yes[149]The evidence from the rotas therefore shows that the claimant did not work over Easter every year (and, specifically, did not work Easter Sunday every year); further, he worked 4 out of 5 Christmas Days whilst he worked for the respondent.[150]Strictly, therefore, the allegation is not made out on its facts, as it is not the case that the claimant worked every Christmas and Easter.[151]For completeness we will explore why the claimant worked the Christmas and Easter Days that he did. The respondent’s case is that the Store Manager is responsible for the rota for their specific satellite store: in other words, the respondent says that the claimant timetabled himself to be on duty on the Christmas/Easter Days that he worked - [SG/21]. The claimant disputed this, arguing that Ms Doherty had ultimate control over the rotas and would change them unilaterally. However, Ms Doherty only took on line management responsibility for the claimant from June 2023. Therefore, even on the claimant’s case, Ms Doherty would not have influenced Easter and Christmas rotas before June 2023. He made no such allegation in his oral evidence against Mr Blackbrough (as his previous line manager). We prefer the respondent’s evidence on this point, that it was the claimant who organised the rotas.[152]There is a dispute between the two sides regarding a conversation that is said to have taken place between the claimant and Mr Ghouse at the Gordon Ramsay restaurant at Heathrow. The claimant says that Mr Ghouse said to him: “Oh yeah, Raja, you are working Christmas Day. Oh yeah, you get £100 extra”.[153]Mr Ghouse says he cannot remember any such conversation, but said that it was more likely he asked the claimant “who is covering Christmas?”. We prefer Mr Ghouse’s evidence on this point for the reasons previously stated about his credibility – see paragraphs 39 – 41 above. However, even if the claimant’s evidence is right, the statement “Oh yeah, Raja....” above does not disclose evidence that the claimant was required to work over Christmas; it simply shows that he was in fact working over Christmas. This point therefore really takes the matter no further. The claimant does not alleged that Mr Ghouse said “Raja, you will work over Christmas this year”, and in fact does not allege that the order to work came from Mr Ghouse.[154]The claimant’s evidence in his witness statement on this matter is at [C/7] and states: “I was the only Store Manager required to work every Christmas and Easter, while my requests for Eid leave were continually rejected”.[155]We have been taken to no evidence within the bundle that demonstrates a request for leave over Eid being rejected. Further, this issue of being forced to work over Easter and Christmas is not in the internal grievance that the claimant submitted.[156]On balance, we prefer the evidence of the respondent. The claimant’s case is undermined by the fact that he did have some of the Easter and Christmas bank holidays off in his five-years of service. There is no good documentary evidence to support the claimant’s claim within the bundle.[157]We do not uphold this allegation on its facts, as the claimant did not work all Easters and Christmases. In any event, we find that when the claimant did work on Easter/Christmas Days or associated bank holidays, it was because he produced the roster that way. We do not accept that he was forced to work over Easter and Christmas. Issue 2.2.2 - requiring the claimant to work his religious holidays (including Fridays)[158]The claimant’s terms and conditions at [153] set out as follows: “We can require that your hours of work take place on any day of the week. You agree to work whatever hours we reasonably allocate to you”.[159]In the respondent’s Authorised and Other Absence Policy at [136], the following provision is made at paragraph 9: “Colleagues will need to be mindful that they have a responsibility to be reasonable to both the company and their colleagues when asking for time off or other work adjustments to facilitate their religious observance. Where possible the business will try to accommodate the colleagues request for time off on religious or belief ground”.[160]The Store Manager is responsible for their store rota. We have set out above that we accept that, at the T5 store, the claimant was responsible for the rota. The claimant’s evidence was that in fact Ms Doherty would ultimately have power to change the rota, along with Mr Blackbrough and “Mr Ghouse was on their back”. We have addressed this “conspiracy theory” already and rejected it as a theory without any basis. Further, we repeat the observation made above, that Ms Doherty only started line managing the claimant in June 2023.[161]Looking at the other evidence we heard and saw, we make the following findings. The claimant asked Mr Ghouse “how often did I raise a difficulty with praying”: Mr Ghouse answered as follows: “Never, you never mentioned any difficulty or that Friday was a religious day”.[162]We accept that evidence. We have previously explained that we found Mr Ghouse to be a credible, straight-forward witness – paragraphs 39 - 41 above. Furthermore, this evidence is supported by the lack of request within the bundle from the claimant to have Fridays off. We remind ourselves of Mr Ghouse’s oral evidence to us, that if individual employees make requests, the respondent will see if those requests can be accommodated (as per the policy cited above). We accept that this is the case and that the claimant did not raise Friday working as an issue contemporaneously.[163]To compound the lack of request for Fridays off, we have seen an email dated 29 June 2023 from the claimant to Ms Doherty stating - [247- 248]: “Last few week [sic] due to store cover I have taken some weekends off normally as being a senior manager I have worked over the weekends for last few months and years and my normal day [sic] off are Thursday/Friday and sometimes Friday Saturday”.[164]This is evidence that the claimant did normally have Fridays off. We have not been taken to any rotas to demonstrate to the contrary.[165]In terms of other religious holidays, we note that Ms Sheikh’s evidence was that others were allowed time off for Easter but not for Eid and Ramadan. This statement is unsupported by any documentary evidence.[166]We are not satisfied on the evidence that the claimant was required to work religious holidays (specifically Fridays and Eid). As such, we reject this allegation on its facts. Issue 1.1.14 and 2.2.8 - 6 November 2023 – constructive dismissal Issue 2 – constructive unfair dismissal[167]The claimant relies on the conduct within the discrimination claims as amounting to a fundamental breach of contract. In relation to the claimant’s allegations, we have upheld on the facts the following allegations: 167.1. Issue 1.1.4/2.2.3 - refusal of compassionate leave; 167.2. Issue 1.1.7/2.2.9 - not upholding the claimant's grievance; 167.3. Issue 1.1.13/2.2.7 - giving the claimant a final warning; 167.4. Issue 1.1.15/2.2.10 - not paying the claimant a bonus; 167.5. Issue 1.1.16/2.2.11 - placing the claimant on garden leave.[168]The only one that occurred prior to resignation on 6 November 2023, and therefore in theory could be causative of that resignation, was the refusal of the claimant’s compassionate leave request. We have however rejected that matter as being an act of direct discrimination on the basis of race and/or religion. We therefore reject Issue 1.1.14 and 2.2.8: as there were no discriminatory acts that pre-dated the claimant’s resignation (in fact, we have rejected all discrimination allegations), any constructive dismissal cannot be discriminatory.[169]We turn to the “ordinary” constructive dismissal case. We must, for the purposes of this claim, consider whether the refusal of compassionate leave for six weeks was a fundamental breach of the implied term of trust and confidence.[170]We find that this is not such a breach. The power to grant compassionate leave is discretionary, and we have accepted the respondent’s rationale for refusing the claimant’s request. Although we accept that the respondent could have dealt with this situation better (as set out at paragraph 88 above), we are not satisfied that this is sufficient to amount to a fundamental breach of the implied term of trust and confidence.[171]The claim therefore fails at this point as there was no fundamental breach of contract.[172]The refusal to allow compassionate leave occurred in August 2023. The claimant did not resign until November 2023. The claimant took some sick leave between August and early October, meaning there was a period of around one month when the claimant was back at work and did not resign in response to the refusal. We will return to this point within our conclusions below. Legal framework Direct discrimination because of race/religion[173]Employees are protected from discrimination by s39 EqA: “(2) An employer(a) (A) must not discriminate against an employee of A’s(b) (B) - … (d) by subjecting B to any other detriment.”[174]Direct discrimination is set out in s13 EqA: “(1) a person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[175]There are two parts of direct discrimination:(a) the less favourable treatment and(b) the reason for that treatment. Sometimes however it is difficult to separate these two issues so neatly. The House of Lords gave some helpful guidance in Shamoon v Constable of the Royal Ulster Constabulary [2003] UKHL 11: “11. This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others. 12. The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case. There will be cases where it is convenient to decide the less favourable treatment issue first. But, for the reason set out above, when formulating their decisions employment tribunals may find it helpful to consider whether they should postpone determining the less favourable treatment issue until after they have decided why the treatment was afforded to the claimant. Adopting this course would have simplified the issues, and assisted in their resolution, in the present case.” “Because of”: the reason for less favourable treatment[176]The correct approach to the issue of causation under s13 EqA is to determine whether the protected characteristic, here race/religion, had a “significant influence” on the treatment – Nagarajan v London Regional Transport [1999] IRLR 572. The ultimate question to ask is “what was the reason why the alleged perpetrator acted as they did? What, consciously or unconsciously, was the reason?” - Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48. This is a question of fact for the Tribunal to determine, and is a different question to the question of motivation, which is irrelevant. The Tribunal can draw inferences from the behaviour of the alleged perpetrator as well as taking surrounding circumstances into account.[177]If there is more than one reason for the treatment complained of, the question is whether the protected characteristic (in this case, sex) was an effective cause of the treatment – O’Neill v Governors of ST Thomas More Roman Catholic Voluntary Aided Upper School [1996] IRLR 372. Burden of proof under the Equality Act 2010[178]The burden of proof for discrimination claims is set out in s136 EqA: “(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision”.[179]In Laing v Manchester City Council and anor [2006] ICR 1519, Mr Justice Elias held that: “the onus lies on the employee to show potentially less favourable treatment from which an inference of discrimination could properly be drawn”.[180]It is not enough for the claimant to show that there has been a difference in treatment between him and a comparator, there must be something more. In Madarassy v Nomura International plc 2007 ICR 867, Lord Justice Mummery held: “56. The court in Igen Ltd v Wong [2005] ICR 931 expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination”.[181]This approach was subsequently approved by the Supreme Court in Hewage v Grampian Health Board [2012] ICR 1054, at paragraph 31: “The complainant must prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the complainant which is unlawful. So the prima facie case must be proved, and it is for the claimant to discharge that burden”.[182]At this first stage, the Tribunal is required to consider all the material facts without considering the respondent’s explanation. However, this does not mean that evidence from the respondent undermining the claimant’s case can be ignored at stage one – Efobi v Royal Mail Group Ltd 2021 ICR 1263. The case of Efobi also upheld the approach of the decisions set out above, that it is for the claimant to prove, on the balance of probabilities, facts from which, in the absence of any other explanation, the Tribunal could infer discrimination. Although the Tribunal may consider all the evidence before it (not just that of the claimant) the burden rests firmly with the claimant at this first stage – see discussion at paragraphs 21 to 34 of Efobi.[183]In terms of comparators, the definition is at s23 EqA: “(1) On a comparison of cases for the purposes of section 13, 14, 19 or 19A there must be no material difference between the circumstances relating to each case”.[184]In Virgin Active Ltd v Hughes 2023 EAT 130 (specifically paragraph 65), it was highlighted by the EAT that the consideration of whether there are material differences in the circumstances of an actual comparator compared to those of the claimant needs to take place before applying the shift in the burden of proof. The EAT gave the following example at paragraph 68: “For example, if two people who differ in a protected characteristic attend a job interview and one is appointed but the other is not, that, of itself, would not be enough to shift the burden of proof, but if they scored the same marks in the assessment, so there is an actual comparator, the difference of treatment would seem to call out for an explanation”.[185]Regarding a hypothetical comparator, the claimant must show that the comparator would have been treated more favourably. This requires the Tribunal to be able to draw inferences of likely treatment of a hypothetical comparator from the evidence before it.[186]It is only if the initial burden of proof is reached that the burden shifts to the respondent to prove to the Tribunal that the conduct in question was in no sense whatsoever based on the protected characteristic – Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases 2005 ICR 931.[187]Overall, however, the courts caution against placing too much emphasis on the burden of proof provisions. This was emphasised in Martin v Devonshires Solicitors [2011] ICR 352 when the EAT held that: “39. …[The burden of proof] provisions are important in circumstances where there is room for doubt as to the facts necessary to establish discrimination – generally, that is, facts about the respondent’s motivation (…) because of the notorious difficulty of knowing what goes on inside someone else’s’ head (…). But they have no bearing where the tribunal is in a position to make positive findings on the evidence one way or another, and still less where there is no real dispute about the respondent’s motivation and what is in issue is its correct characterisation in law”.[188]The Supreme Court in Hewage agreed with this approach, citing the decision in Martin with approval at paragraph 32. Constructive unfair dismissal[189]Section 95 of the Employment Rights Act 1998 (“ERA”) sets out circumstances in which an employee is dismissed: “(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2), only if)—(a) the contract under which he is employed is terminated by the employer (whether with or without notice),(b) he is employed under a limited-term contract and that contract terminates by virtue of the limiting event without being renewed under the same contract, or(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.”[190]“Constructive dismissal” as set out in sub-section 1(c) is the statutory version of a principle originally from common law. The burden is on the employee to prove constructive dismissal. In order to establish that he has been constructively dismissed, the employee must show: 190.1. there was a fundamental breach of contract on the part of the employer that repudiated the contract of employment; 190.2. the employer's breach caused the employee to resign, and 190.3. the employee did not delay too long before resigning, thereby affirming the contract and losing the right to claim constructive dismissal. Implied term[191]The relevant term in this case alleged to have been breached is the implied term of trust and confidence between the parties. The term has been established in the case of Malik v Bank of Credit and Commerce International SA 1997 ICR 606 to mean that an employer or employee: “will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties”.[192]It is established that it is not the intent of the respondent that matters, but the effect – Woods v WM Car Services (Peterborough) Ltd [1981] ICR 666 page 670-671: “To constitute a breach of this implied term it is not necessary to show that the employer intended any repudiation of the contract: the tribunal’s function is to look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it”.[193]A breach of the implied term of trust and confidence will always amount to a fundamental breach – Morrow v Safeway Stores plc 2002 IRLR 9. Reason for resignation[194]It is a question of fact for the Tribunal as to whether the claimant resigned in response to the breach. The breach need not be the only reason, but the claimant must have resigned at least in part because of the breach. The “crucial question is whether the repudiatory breach played a part in the dismissal” - Abbycars (West Horndon) Ltd v Ford EAT 0472/07, paragraph 34. Affirmation[195]An employee must not wait too long before resigning, otherwise he may be taken to have affirmed his contract. In Western Excavating (ECC) Ltd v Sharp 1978 ICR 221, it was held that the employee “must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged” - page 226. Although delay is a factor, it is not determinative. The last straw[196]The Court of Appeal in Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978 approved London Borough of Waltham Forest v Omilaju [2005] IRLR 35, which set out various propositions of law relevant to the issue of the last straw in a constructive unfair dismissal case: ''14 The following basic propositions of law can be derived from the authorities: … 5. A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a series of incidents. It is well put at para. [480] in Harvey on Industrial Relations and Employment Law: “Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the “last straw” which causes the employee to terminate a deteriorating relationship.” 15. The last straw principle has been explained in a number of cases, perhaps most clearly in Lewis v Motorworld Garages Ltd [1985] IRLR 465, [1986] ICR 57. Neill LJ said (p 167C) that the repudiatory conduct may consist of a series of acts or incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory breach of the implied term of trust and confidence. Glidewell LJ said at p 169F: “(3) The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term? … This is the “last straw” situation.” 16. Although the final straw may be relatively insignificant, it must not be utterly trivial: the principle that the law is not concerned with very small things (more elegantly expressed in the maxim “de minimis non curat lex”) is of general application. ...19. The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase “an act in a series” in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant.20. I see no need to characterise the final straw as “unreasonable” or “blameworthy” conduct. It may be true that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality to which I have referred.21. If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect. Suppose that an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment. Instead, he soldiers on and affirms the contract. He cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle.22. Moreover, an entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in his employer. The test of whether the employee’s trust and confidence has ben undermined is objective…”[197]The Court of Appeal in Kaur held that, if the last straw matter is one part of a course of conduct that amounts to a breach of the implied term of trust and confidence, then it is irrelevant that the claimant may have affirmed his/her contract after each of the earlier incidents in that course of conduct. A last straw revives the right to accept the employer’s repudiatory breach, and resign.[198]Furthermore, the Court of Appeal in Kaur set down a list of questions the Tribunal should ask itself when dealing with last straw cases (paragraph 55): “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 [2005] ICR 481) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? (If it was, there is no need for any separate consideration of a possible previous affirmation …) 5 Did the employee resign in response (or partly in response) to that breach?” Unauthorised deduction of wages[199]S27(1) Employment Rights Act 1996 (“ERA”) defines wages as: “any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise”.[200]The Claimant’s claim relates to his salary, which falls squarely within this section, and is not an excluded payment under s27(2) ERA.[201]S13(3) ERA provides as follows: “Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.”[202]The question of what is properly payable generally requires the Tribunal to determine what payment the worker is legally entitled to receive by way of wages – New Century Cleaning Co Ltd v Church 2000 IRLR 27, CA. This is an issue to be decided in line with the approach of the civil courts in contractual actions – Greg May (Carpet Fitters and Contractors) Ltd v Dring 1990 ICR 188, EAT. The question for the Tribunal is “on the basis of ordinary contractual and common law principles, what was the total amount of wages that was properly payable to the worker at the relevant time?”.[203]In determining the terms of the contract in question, it is necessary to take into account all the relevant terms of the contract, including implied terms – Camden Primary Care Trust v Atchoe 2007 EWCA Civ 714, CA.[204]The burden of proof is on the claimant to prove to the Tribunal, on the balance of probabilities, that he was paid an amount less than that which was properly payable to him. Conclusions Issue 1.1.1 - June 2023 – requiring the claimant to unfairly extend Ms Sheikh’s probationary period
Conclusions
[205]We have found that, strictly on the facts, this allegation is not upheld as it was not the claimant who extended Ms Sheikh’s probation and the extension was not unfair. See our findings at paragraphs 60 to 67 above.[206]However, we will take the allegation more broadly, and construe it as an allegation that Mr Blackbrough undermined the claimant by making a different decision to that which the claimant would have made.[207]We have found at paragraph 65 above that the reason for this was the need to see more from Ms Sheikh, given she had been working reduced hours.[208]There is no good evidence to suggest that Mr Blackbrough’s conduct was discriminatory, and no evidence from which we could infer that his decision making was significantly influenced by the claimant’s race.[209]In fact, the claimant’s own evidence on this point undermines his legal case. He told us, repeatedly, that the respondent took against him because he was supportive of Ms Sheikh, and the respondent wanted Ms Sheikh out because she asked too many questions and the respondent’s employees found her threatening. Even if the claimant were right on this, and we have found that he is not, this would not prove a claim of direct race discrimination.[210]We find that the burden of proof has not shifted to the respondent. If we are wrong on that, we are satisfied that the respondent has provided a non-discriminatory reason for its conduct.[211]As such, this allegation fails. Issue 1.1.3 - August 2023 – Doherty during a phone conversation on the Duty Manager’s phone about dismissing Ms Sheikh before the end of her probationary period, said words to the effect of “you listen to me you Paki”. The claimant collapsed at work following that[212]Our findings of fact in relation to this allegation are at paragraphs 68 to 79 above. This allegation we rejected on its facts. Issue 1.1.4 and 2.2.3 - August 2023 – Ghouse and Doherty refusing the claimant’s request for compassionate leave to see his seriously ill father[213]We have found at paragraph 81 above that this allegation is made out on the facts. We have also set out that we accept the respondent’s reason for the refusal of compassionate leave – see paragraph 87 above. The reason for the refusal of the compassionate leave request was therefore not the claimant’s race or religion.[214]To explore this further, we are not satisfied that the claimant has put before us evidence from which we could infer that the respondent’s treatment was discriminatory. The claimant sought to rely on the more favourable treatment of Ms Islam, however she has not been pleaded as a comparator. In any event, we consider that she would not be an appropriate comparator: her situation was entirely different from that of the claimant, as was her request for compassionate leave (a request of a matter of days rather than weeks, and for a different reason). We consider instead a hypothetical comparator and conclude that there is no good evidence which would lead us to conclude that a Store Manager of a different race and/or religion at the T5 store asking for six weeks compassionate leave in relation to their ill mother, who had had a period of enhanced sick leave the previous year, would have been treated any differently.[215]We therefore conclude that the burden of proof has not shifted to the respondent. However, if we are wrong on that, we are satisfied that the respondent’s reasons for rejecting the request were non-discriminatory.[216]These claims therefore fail. Issue 1.1.6 - requiring the claimant to unfairly give Ms Sheikh extra work to claimant when he refused[217]We have rejected this claim on its facts, but there are a few points worthy of record in relation to this allegation as a claim of direct race discrimination.[218]The claimant’s case regarding the respondent’s treatment of the claimant when matters involved Ms Sheikh was that the respondent took against the claimant for supporting Ms Sheikh. Further, the alleged treatment of Ms Sheikh by the respondent was, on the claimant’s case, due to the respondent feeling threatened by Ms Sheikh and its concern that she asked too many questions.[219]The claimant’s own evidence therefore undermines his case that this alleged treatment was because of his race. His evidence was clearly that this alleged treatment was for a wholly different reason. There was also a suggestion (on several occasions) that the respondent had failed to make reasonable adjustments for Ms Sheikh. As we have previously recorded, it was necessary for us on several occasions to remind the claimant that he was not at the Tribunal as Ms Sheikh’s representative, and was not here in relation to a claim of disability discrimination by Ms Sheikh.[220]We conclude that, even if we are wrong and Ms Sheikh was being made to do additional hours, there is no good evidence from which we could infer that any such treatment was because of the claimant’s race. The burden of proof therefore would not shift to the respondent and the claim would fail on the basis of the necessary causative link not being made out. Issue 1.1.7 and 2.2.9 - November 2023 – grievance not investigated fairly and not upheld[221]We have found that there was a non-discriminatory reason for any failures within the grievance process – see paragraph 103 above.[222]For completeness, we consider the burden of proof. We conclude that there is no good evidence from which we could draw an inference that Mr Baker discriminated against the claimant on the basis of either his race or religion.[223]We note that the claimant had to be prompted by the Tribunal to suggest to Mr Baker that he was influenced by race/religion. The claimant has not placed any facts before us that would lead us to draw an inference of discrimination. As such, we are satisfied that the burden of proof has not shifted.[224]If we are wrong on that, we have found that there was a nondiscriminatory reason for the grievance process and outcome.[225]The claim therefore fails. Issue 1.1.10 and 2.2.4 - giving the claimant more work and less holiday than Mr Aparudai and Mr Rammoddo[226]We have found that there was a non-discriminatory reason for the difference in holiday entitlement between the claimant and his comparators – see paragraph 108 above.[227]In any event, we consider that Messrs Rammoddo and Aparudai are not appropriate comparators under s23 EqA. It cannot be said that they were in materially the same circumstances as the claimant. Specifically, the two comparators were not Store Managers within one of the respondent’s satellite stores. Secondly, they had been employed by the respondent for a longer period than the claimant. Thirdly, they were employed at the time at which the notice period clause in management level contracts needed to be altered.[228]Turning then to a hypothetical comparator, there is no good evidence from which we could draw an inference that the reason the claimant had less holiday was because of his race or religion. We therefore conclude that the burden of proof has not shifted. Even if we are wrong on that, we are satisfied that there was a non-discriminatory reason for the difference in holiday allowance.[229]The claim therefore fails. Issue 1.1.13 and 2.2.7 - 20 November 2023 – giving the claimant a final written warning[230]Factually, Mr Coutinho did impose a final written warning, and so we then need to explore the reason for this conduct.[231]We consider a hypothetical comparator would be: 231.1. a Store Manager at the Terminal 5 store who had given the same answers in the investigation meeting; 231.2. For whom the same evidence was before Mr Coutinho; 231.3. Who had resigned a few weeks prior and was serving his notice period; but, 231.4. Of a different race and/or religion[232]There is no good evidence before us to suggest that there would be any difference in treatment towards such a comparator and the claimant. In other words, there is no evidence before us that the comparator would be given a lesser penalty. There is no evidence from which we can draw an inference that the decision to impose a final written warning was significantly influenced by the claimant’s race or religion.[233]As such, the burden of proof does not shift to the respondent, and so the claim fails. Issue 1.1.15 and 2.2.10 - November 2023 - Ghouse’s decision not to pay annual bonus Issue 3 – unauthorised deduction of the same bonus[234]We have found that the reason why the claimant was not paid a bonus in 2023 was that the respondent implemented and followed its own Discretionary Bonus Scheme Guidelines in the context of the claimant’s position – see paragraph 138 above. As such, the reason for the treatment complained of was not the claimant’s race or religion.[235]We are not satisfied that there is any good evidence from which we could conclude that the decision regarding the bonus was on the basis of race or religion. Other than it being unfair, the claimant did not put forward any basis as to why he considered that this treatment was because of his race/religion.[236]We therefore conclude that the burden of proof does not shift to the respondent. If, however, we are wrong on that, the respondent has satisfied us that the reason for non-payment of the bonus was non-discriminatory.[237]The discrimination claims regarding both race and religion therefore fail.[238]In terms of the unauthorised deduction of wages claim, we have found that the claimant was not contractually or legally entitled to a bonus payment in 2023. This leads to the conclusion that the respondent did not make any unauthorised deduction by not paying the claimant a bonus in 2023: there was no contractual or legal entitlement to such a bonus payment. Issue 1.1.16 and 2.2.11- January 2024 – Mr Ghouse and Ms Doherty placing the claimant on garden leave and “using and abusing” him over the Christmas period[239]We have found that the reason for the claimant being placed on garden leave on 31 December 2023 was that it was a matter of agreement between the parties – see paragraph 147 above. Therefore, the reason was not race or religion.[240]For completeness, we are not satisfied that the burden of proof shifted in relation to this allegation. There is no good evidence from which we could infer that placing the claimant on garden leave from 31 December was an act of discrimination on the grounds of race and/or religion.[241]In any event, we are satisfied that there is a non-discriminatory reason for the claimant going on garden leave when he did.[242]The claim therefore fails. Issue 2.2.1 - requiring the claimant to work every Christmas and Easter over 5 years[243]We have found that, strictly, this allegation is not made out on the facts – paragraph 150 above. In any event, we went on to consider the reason why the rosters were done in the way they were. We have found that the claimant produced the roster and assigned himself shifts, as opposed to being forced to work on any given holidays.[244]For completeness, we consider that the burden of proof on this point has not shifted. There is no good evidence from which we could infer that the reason the claimant sometimes worked Easter and Christmas was discriminatory. In any event, we have found that there was a nondiscriminatory reason for his working those holidays.[245]We therefore reject this claim. Issue 2.2.2 - requiring the claimant to work his religious holidays (including Fridays)[246]We rejected this allegation on its facts, therefore the claim fails. Issue 1.1.14 and 2.2.8 - 6 November 2023 – constructive dismissal Issue 2 – constructive unfair dismissal[247]In terms of the discriminatory constructive dismissal claims, as we have rejected all the discrimination allegations, there was no discriminatory act that could even in theory amount to a fundamental breach of the implied term of trust and confidence. As such, the discriminatory constructive unfair dismissal claims must fail.[248]We have found at paragraph 171 above that there was no fundamental breach of contract here on which to base a constructive unfair dismissal claim. Therefore, this ordinary constructive unfair dismissal claim fails at the first hurdle.[249]In any event, the period between the alleged breach and the claimant’s resignation was around three months. Even taking into account the period of sickness absence that the claimant experienced, we conclude that the claimant affirmed his contract by working into November 2023. In other words, he lost the right to rely on the refusal of compassionate leave as being a fundamental breach of contract. Time limits[250]We have not upheld any of the claims in this matter. As such, we consider that there is no need for us to consider any issues relating to time limits. Approved by: