Mr T Adeloye v Royal Mail Group Ltd and Angard Staffing Solutions Ltd: 3307745/2023

EMPLOYMENT TRIBUNALS

Case No 3307745/2023

Between

Mr T AdeloyeClaimant

Royal Mail Group Ltd and Angard Staffing Solutions LtdRespondent

Before

Employment Judge Dick

In person for claimant

Mr S Peacock (instructed by solicitor) for respondent

Date 21 June 2025

JUDGMENT

[1]The complaints relating to events before 17 January 2023 were not presented within the applicable time limit. It is not just and equitable to extend the time limit. The following complaints are therefore dismissed:a. Harassment and direct discrimination related to or because of age, race and/or disability (so far as they related to events before that date).

b. Indirect disability discrimination (so far as it related to events before that date).

c. Failing to make reasonable adjustments (so far as it related to events before that date).

[2]The complaint of unfair dismissal is well-founded. The second respondent unfairly dismissed the claimant. Remedy will be decided at a later hearing.

[3]The following complaints were not well founded and are dismissed:a. Harassment and direct discrimination related to or because of age, race and/or disability (so far as they related to events after 17 January 2023).

b. Victimisation.

c. Indirect disability discrimination (so far as it related to the events of 26 and 27 January 2023).

d. Failing to make reasonable adjustments (so far it related to the events of 26 and 27 January 2023). SUMMARY OF OUR REASONS

[1]We decided that Mr Adeloye was unfairly dismissed because Royal Mail and Angard did not follow a proper procedure. They should have asked the other people who were in the room on 26 and 27 January 2023 what they saw and heard. There were some other things that were unfair as well.

[2]But we also decided that Mr Adeloye did say: “They smell of curry”; “All you Indians stick together”; and “Tell them to stop speaking in their language it is getting on my nerves”. We did not think that Mr Dobe of Miss Buffin were telling lies about Mr Adeloye. Because of that, at the next hearing we will have to decide whether Mr Adeloye would still have been dismissed if Royal Mail had followed a proper procedure. If we think that he still would have been dismissed, we may award him less money than we otherwise would have done.

[3]We decided that Royal Mail and Angard did not discriminate against Mr Adeloye because of his age, race or disability in the way it treated him on 26 January and 27 January and afterwards.

[4]The other things Mr Adeloye complained about were from before 2023. Because they happened so long ago we thought it was not fair to decide whether they were discrimination. The above is only intended as a summary to assist the claimant. It does not form part of the reasons for our decision.

REASONS

Key to references: [x] = page of agreed bundle.

INTRODUCTION

[1]For the sake of brevity we refer, as did the parties, to the first respondent as Royal Mail and to the second respondent as Angard. From 2015 the claimant was employed by Angard, an agency which supplied workers, one of whom was the claimant, to Royal Mail. In February 2023 Angard effectively suspended the claimant and then subjected him to a disciplinary process, which resulted in his dismissal in October 2023 for what the respondents say was gross misconduct. This was all a result of allegations that the claimant had used racially discriminatory language about and in the presence of his coworkers in January 2023 (“the January allegations”). The claimant’s case is that he did not use such language – the January allegations were false – and that the dismissal was substantively and procedurally unfair. The January allegations were made by two employees of Royal Mail, Jason Dobe and Ashley Buffin.

[2]The claimant also makes a number of other complaints, which we set out in more detail below. In summary, he says that the dismissal was the last of a number of acts of harassment or direct discrimination because of or related to his age, race or disability – the claimant is black, aged over 70 and has a number of disabilities which we also set out in more detail below. The acts complained of in 2023 relate largely to the disciplinary process and the events which triggered it. Some of those acts were also, the claimant says, acts of victimisation done because he had submitted a grievance in March 2023 and contacted ACAS in April 2023. The March grievance complained about the respondents’ treatment of the January allegations but also said that the respondent viewed the claimant as a troublemaker as he had complained about various things from 2016; it said that the claimant had been discriminated against because of his race and age from 2016. Some of what the claimant says was discrimination from 2016 was also the subject of complaints (subject to the issue of time limits) before this Tribunal. The complaints about events before 2023 related to two particular things. First, the claimant being required to lift parcels over 11 kg and to do other “heavy” work. Second, the respondents not taking proper account of the claimant’s need to urinate more frequently than most other people. Both were also the subject of complaints of failing to make reasonable adjustments. CLAIMS AND ISSUES

[3]Early conciliation in this case began on 17 April 2023 and ended on 29 May 2023. The claimant presented his claim form on 30 June 2023, i.e. after he was “suspended” but before he was dismissed. Those timings mean that any act complained of which took place before 18 January 2023 would be outside the usual time limit of three months plus time in early conciliation.

[4]The claimant produced two documents particularising his claim in advance of a preliminary hearing, which took place on 9 April 2024 (after his dismissal) before our colleague Employment Judge (“EJ”) L Brown. EJ Brown identified the claims as we set them out below, clearly taking account of those documents – in effect, although it is not explicitly stated in EJ Brown’s orders, the claim was amended by agreement to include the further particulars. There was no issue about that before us, in other words the respondent did not suggest there needed to be an application to amend the claim. EJ Brown also prepared a list of issues, which did not deal with time limits, though as we explain below, we considered that we were obliged to deal also with that point. The case therefore proceeded on the basis that the issues to be decided were as set out in the list of issues (save for disability, which was now conceded by the respondent) plus, in the case of the claims under the Equality Act 2010, whether those complaints before formed part of conduct extending over a period which ended after 17 January 2023 and, if not, whether the complaints had been made in such other period as the Tribunal thought just and equitable

[5]EJ Brown set out the claims by reference to two detailed appendices. Our summary of the claims combines EJ Brown’s summary and both appendices. We also include some detail which we established from the claimant in submissions at the start of the February 2025 hearing. We should also say that we confirmed that it was the claimant’s intention that the older matters were to be complaints in their own right and not merely background evidence relevant to the 2023 complaints.

[6]As will be apparent from the judgment above, we decided that any complaint relating to events before January 2023 was not part of conduct extending over a period which ended after 17 January 2023 and it was not just and equitable to extend time. We therefore did not make a substantive decision on any complaint from before 2023. The reasons for that decision are set out under Conclusions below, but it will assist if we set out here all of the complaints which the claimant wished us to consider.

[7]The following was said to be harassment or direct discrimination related to or because of the claimant’s age, race and/or disability:a. 22 August 2018 – the claimant was falsely accused of breaching security by using the toilet behind the security desk before he had signed in. (As well as a being stand-alone complaint, these events were also said to have been unfairly relied upon as an act of insubordination as part of the decision to dismiss the claimant in 2023.)

b. 7 February 2019 – the claimant was “reported” for requesting lighter duties, i.e. not having to carry bags heavier than 11-20 kg [this act was said only to be about the claimant’s age, not his race or disability].

c. Requiring the claimant to do pallet moving work (i.e. heavy work). The claimant confirmed during the course of the hearing that he did not do any heavy work after he was moved to different sites in December 2021, so this complaint related to before December 2021.

d. 26 and 27 January 2023: i. Jason Dobe was friendly towards to the claimant’s colleagues but was hostile to the claimant. ii. Jason Dobe questioned the claimant’s ability to work at a computer and asked him to demonstrate, but did not ask others. iii. Jason Dobe required the claimant, but not others, to show his customs ID badge. iv. Jason Dobe and Ashley Buffin reported the claimant for taking frequent breaks to use the toilet (twice outside his allotted break time) and get drinking water, in order to “beef up” up the allegations which follow. v. Jason Dobe and Ashley Buffin falsely accused the claimant of making racial comments to end his assignment with Royal Mail.

e. During the disciplinary investigation/proceedings: i. Joanne McLaughlin subjected the claimant to false allegations of making racial comments, insubordination and irrelevant historical allegations. ii. The respondents did not follow through with offering the claimant a six month assignment because of the allegations. iii. The claimant was not sent Jason Dobe and Ashley Buffin’s statements until after the investigation had concluded and was not sent a copy of two other statements until after he was dismissed. iv. The claimant was referred for a misconduct hearing on the basis of the false allegations about him making racial comments. v. Witness statements were not obtained from every person present on 26 and 27 January 2023; CCTV was not viewed; the claimant was not provided with a list of staff who had been on shift despite his requests. vi. The claimant was dismissed.

[8]So far as comparators are concerned, the claimant says that another worker on 26 and 27 January 2023, who was older than the other workers but younger than the claimant, was not disciplined for taking comfort breaks. He further says that all the other workers on those dates, who were white or Asian, were not treated in the way he was treated. The claimant also says that the allegations about him making racial remarks were made by two white employees but no Asian employee complained. The claimant further alleges that Royal Mail had a pattern of giving the hard labour tasks to black employees and that the number of black employees employed by both respondents has reduced over the past several years as black people have chosen to leave the workplace. 9. 7 (e)(iii) to (vi) above were also said to be acts of victimisation because the claimant had done two protected acts:a. Submitting a grievance about discrimination on 28 March 2023.

b. Starting early conciliation on 17 April 2023, complaining of discrimination.

[10]The claimant says that the respondent had the following provisions, criteria or practices (PCPs):a. A requirement to lift mail or parcels weighing 11 kg or more. The claimant clarified that this was said to have been applied in 2022 and earlier.

b. Failure to communicate adjustments (i.e. to supervisors/managers) relating to lifting etc. which had previously been agreed. The failures were said to have been in 2021 and 2022.

c. Requiring the claimant only to use the toilet after signing in. This specifically related to the 22 August 2018 incident described above.

d. Requiring the claimant only to use the toilet at break times, applied on 26 and 27 January 2023.

[11]The PCPs were said to have led to indirect disability discrimination by putting the claimant at these disadvantages:a. He was perceived by colleagues as not pulling his weight.

b. He was subject to complaints about his conduct and performance.

c. He was incorrectly perceived as a troublemaker.

[12]The same PCPs were also said to have put the claimant at a disadvantage and so given rise to a duty, which the respondent breached, to make reasonable adjustments.

[13]There was also of course the complaint of “ordinary” unfair dismissal.

[14]At the start of the hearing before us, Mr Peacock for the respondents confirmed that there was now no dispute that at all material times the claimant was a disabled person within the meaning of the Equality Act 2010, although the extent of the respondents’ knowledge was still a live issue. No issue was taken with the claimant’s written particularisation of his disabilities at [61]. The claimant had (and still has) diverticulitis, angina and arthritis. PROCEDURE, EVIDENCE etc.

[15]As is more fully explained in our case management orders of 4 October 2024, we first began hearing evidence in this case on 3 October 2024. We adjourned/postponed the hearing the following day because we had concerns about the claimant’s ability to communicate, having particular regard to our own observations and also to references in the bundle to the claimant having learning difficulties. Over the period of the adjournment an intermediary assessment was conducted and an intermediary report was prepared. On 11 December 2024 a hearing took place before EJ Dick sitting alone where the contents of that report were considered and an intermediary was appointed to assist the claimant for all of the rest of the main hearing. An intermediary is a communication specialist but is not a clinician – the report made no diagnosis of any learning difficulty and we have not been provided with one. Indeed it appears that the claimant has never had any formal diagnosis. We are content that the report enabled us to conduct the rest of the case in a manner which was fair to both parties and which in particular enabled the claimant to communicate.

[16]We made adjustments to the Tribunal’s usual procedure including the following. At the December hearing EJ Dick had set out a number of ground rules to be followed, which included: regular breaks (and in practice we took a break whenever we, the intermediary Miss Goody or the claimant felt one was required); questions in a particular format recommended in the intermediary report, avoiding the use of tagged questions etc.; the respondent providing the claimant in advance with a list of a list of topics to be covered in crossexamination; Mr Peacock in advance of the hearing considering the Advocate’s Gateway Toolkit Planning to question someone with ‘hidden’ disabilities; allowing the claimant to refer to notes he had prepared while he was giving evidence, which he understood Mr Peacock would be entitled to see, although in the event Mr Peacock decided he did not need to see them. At the start of the February hearing we invited further suggestions from Miss Goody once we had given her the chance to read the list of topics for questioning and the other key documents in the case. Just as she should have done, during the course of the claimant’s evidence Miss Goody intervened whenever she thought necessary to make sure that questions had been clearly put; throughout the whole of the hearing Miss Goody also intervened whenever necessary to make sure that the claimant had understood and had been understood. She produced simplified timelines and lists of things that the claimant would need to do. We observed a marked difference in the way we were able to communicate with the claimant once the intermediary was involved. We would like to express our thanks to Miss Goody for her assistance and, where necessary, interventions inside and outside the hearing – it was a real help. Although at the December hearing, with the claimant’s agreement, EJ Dick had dispensed with the future services of a Yaruba interpreter for the claimant, an interpreter Mr Seun had nevertheless been asked to attend the February hearing. We asked him to stay and in the event he too was of considerable assistance to the Tribunal and we would like to express our thanks also to him. The claimant asked that rather than translate every word he simply assisted where necessary and that is what happened. With the consent of the parties we decided on 24 February 2025 that it was best to start afresh. Given our concerns about the claimant’s participation on 3 October 2024 we disregarded any evidence that we had heard on that day. Unless we indicate otherwise, anything we say from hereon refers to what happened at the hearings in February and March 2025.

[17]Once we had read the statements in the case it was apparent to us that the claimant had not covered some of the issues in his statement. We raised this with the parties before hearing any evidence and an agreed position was reached. The claimant was given overnight to identify any documents in the bundle where he had dealt with those issues. With Mr Peacock’s assistance, the claimant identified written grievances he had presented to the respondent at [150 to 157] and [222]. At the start of his oral evidence the claimant adopted those documents so that in effect they were further witness statements. The claimant also asked us to consider the respondent’s incident management report for the 2018 “security breach” incident at [125], what Mrs David had said about that to Mr Mullen in 2023 at [222] (see below) and an incident management report in 2019 at [144] in which a manager had recorded that the claimant was struggling with physical tasks assigned to him.

[18]We had also noted that some of those topics, particularly on the older complaints about disability discrimination, were not dealt with in the respondents’ witness statements. Mr Peacock explained that the respondents had taken a deliberate decision not to do so, relying instead only on submissions about time limits and, where relevant, the extent of the respondents’ knowledge of the claimant’s disability.

[19]On the subject of time limits, as we have said these had not been included in the list of issues and it appeared to us that no decision had been made on the point. Since whether a complaint has been brought in time is a matter of jurisdiction, we considered ourselves obliged to consider time limits even though they have been omitted from the list of issues. This did not appear to come as a surprise to the parties and we explained the law on time limits to the claimant. The claimant explained that his position was that any acts of the respondents earlier than three months before he went to ACAS were part of conduct extending over a period. He did, as we have said, wish to rely on the older matters as particular complaints before the Tribunal rather than merely as background evidence to the more recent complaints.

[20]Mr Peacock accepted on the respondents’ behalf that, were liability established, the respondents would be jointly and severally liable for any acts of discrimination. These reasons therefore do no contain an analysis of the particular provisions of the Equality Act 2010 which would operate to establish liability on the part of one respondent for the actions of the other respondent’s employees. Of course only the second respondent, as the claimant’s employer, could be liable for unfair dismissal.

[21]The respondents had not intended to call Ms Williams and Mrs David to give evidence at the October hearing and at that point they had not provided statements. At the December hearing before EJ Dick the claimant had asked for witness orders for both women. EJ Dick declined to make orders at that hearing, but did indicate to the respondent a provisional view that both witnesses might on the face of it be able to provide relevant evidence given the nature of the allegations. Statements were accordingly taken from those witnesses in advance of the February hearings.

[22]The claimant also made applications, at various points in the proceedings, for orders to compel the attendance of other witnesses. These included: two of the trade union officials who had represented him at investigatory or disciplinary meetings; two managers who had been working on 26 or 27 January but who were not said to have witnessed what the claimant did or did not say to or about his co-workers on those days; and co-workers of his who he said had given him lifts home and could provide character evidence. These applications were all refused. We were not asked to give written reasons for those decisions, but in short none of those witnesses appeared likely to be able to give evidence which was of more than marginal relevance and the claimant had made no efforts to get those witnesses to attend voluntarily. We did of course keep the matter under review during the course of the proceedings and our view did not change.

[23]During the course of the proceedings the respondents had asked for permission to call some witnesses by CVP. The claimant indicated a preference for those witnesses to come to the Tribunal but did not have a strong view. We were of the view that there were good reasons for the applications and granted them and we are content that hearing the witnesses over CVP did not cause the claimant any disadvantage.

[24]Before the February hearing the claimant had also raised some other matters by email to the Tribunal, for example what he said was the late service of the list of topics about which he would be questioned (Mr Peacock accepted they were six days late). We gave the claimant a number of opportunities to raise any point such as these before the evidence began and he chose not to. We would of course have raised any of these issues ourselves with the parties had we considered them to be matters of concern.

[25]Before the evidence was called we explained to the parties that we would read the witness statements but they should be sure to refer us to any documents of relevance in the agreed bundle during the course of the evidence or submissions. We also discussed the issues with the parties (see paragraph 4 above). We indicated that we would not need to hear evidence about remedy at this stage.

[26]After taking time to read the statements, we heard evidence from the witnesses. In each case the usual procedure was adopted, i.e. their written statements stood as their evidence-in-chief and they were then cross-examined. As we have said, the claimant gave evidence. He did not call any other witnesses. The witnesses called by the respondents were as follows:a. Mr Jason Dobe, a witness to the events of 26 and 27 January 2023.

b. Miss Ashley Buffin, a witness to the events of 27 January 2023.

c. Ms Dawn Williams, said by the respondent to have conducted the factfinding prior to the disciplinary hearing.

d. Mr Andrew Mullen, who conducted the disciplinary process and decided to dismiss the claimant.

e. Miss Helen Worfell, who decided to uphold Mr Mullen’s decision on appeal.

f. Mrs Lindsie David, an employee of Reed Talent Solutions Limited who was responsible, amongst other things, for booking Angard workers on to shifts.

[27]The evidence had taken a little longer than had been expected and so we adjourned the case part-heard for a final day in March to deal with submissions. This allowed the claimant plenty of time to prepare his submissions, which he had confirmed in February he would prefer to make orally rather than in writing. At Miss Goody’s suggestion, to help the claimant with this part of the process, she produced a summary note of the evidence which she sent to the claimant, the respondent and the Tribunal in advance of the March hearing. At the start of the March hearing we all discussed the summary and agreed it was accurate before going on to deal with submissions. We also explained to the claimant that there was no need for him to address us on a recent written application he had made to amend his claim – it in fact dealt with matters which we were already considering.

[28]After submissions we reserved judgment. One further adjustment we made to the usual procedure, is that we prepared the above simplified version of our decision and reasons. FACTUAL FINDINGS

[29]We find the following facts on the balance of probabilities. Where facts were not in dispute we simply record them; where we have needed to resolve disputed facts we make that clear. We have not made findings on every disputed issue of fact presented to us, but merely on those which assisted us to come to a decision bearing in mind the issues we had to decide. The claimant’s disabilities

[30]What we now refer to were physical impairments which had a substantial and long-term adverse effect on the claimant’s ability to carry out normal day-to-day activities – there was no dispute about that. We set out here only those aspects of the claimant’s disabilities which were relevant to the complaints before us. In order to manage his diverticulitis, the claimant had to drink 2 to 3 litres of water a day and therefore had to urinate more frequently than someone without his condition. His arthritis meant that he could not move as quickly as someone without that condition. When the claimant experienced chest pain because of his angina he would not be able to carry heavy loads. In short, there was no dispute that the claimant would find it significantly harder to do the “heavy work” that we refer to above than would someone without his disabilities. The respondents and their sites, the nature of the work

[31]Angard supplied agency workers or “casuals”, as they were known, to Royal Mail. The claimant worked briefly for Royal Mail from November 2013 to January 2014 as a letter and parcel sorter. He was then formally employed by Angard from 2015 until his dismissal in 2023.

[32]In 2017 the claimant received training which allowed him to do customs work, i.e. work involving international mail. So from 2017 his work involved, as a “casual”, doing either letter and parcel sorting or customs work at various Royal Mail sites. The claimant and respondents agreed that at the time we are concerned with the claimant was considered to have “agency workers’ rights” or “agency worker recognition” status. We were never offered a precise definition of this, but the claimant and others appeared to believe that this meant that he was considered to have all the rights and obligations that an employee of Royal Mail would have. We take the status in fact to be a recognition of the effect of the Agency Workers Regulations 2010 and in particular regulation 5, which requires that an agency worker who has worked for more than 12 weeks must receive the same basic working and employment conditions (i.e pay, working time and annual leave) as people hired directly. Angard did have its own disciplinary procedure, despite the claimant’s suggestion that he should have been subject to Royal Mail’s procedures.

[33]During the course of the evidence a number of Royal Mail sites where the claimant worked were referred to. The Jubilee Mail Centre (“JMC”) in Hounslow was where the claimant, Mr Dobe and Miss Buffin were working on 26 and 27 January 2023. The claimant said that although he would sometimes do heavy work at that site, on 26 and 27 January it was light work. The Princess Royal Distribution Centre (“PRDC”) was in Wembley and the claimant only did light work – sorting – there. The International Logistics entre (“ILC”) was in Slough. There the claimant could do light work or heavy work. The Mount Pleasant site was in Holborn in Central London. There, the claimant said, he would do only light work.

[34]The claimant’s undisputed recollection was that he had been sent to work at the ILC from 1 March 2021, having worked there before. Around December 2021 he was sent to work at PRDC and Mount Pleasant, where he worked without any problems until being sent to JMC on 26 January 2023. It follows that the claimant’s complaints about events before the January allegations relate to events no later than December 2021, because the claimant did not have to do heavy work after December 2021. Events before 2023

[35]Given our decision on time limits there is no need for us to make detailed factual findings about events before 27 January 2023, save that we do record the following.

[36]On 22 August 2018, the claimant was due to be working at the ILC in Slough. He had had a long journey, and by the time he arrived, had an urgent need to urinate. Rather than go immediately through the usual security process he went past the security desk and used the toilet near to the security desk. The respondents considered this to be a breach of security procedures, which were strict given the customs work done at the site. The claimant was not allowed to start work and was told to go home. The claimant’s manager at the time completed an Incident Management Report which suggested that the claimant should not be allowed back on the site until the matter had been investigated.

[37]On 22 September 2018, the claimant submitted a complaint to the respondent which, amongst other things, raised the incident of 22 August 2018. In response, a case report was completed by the night shift manager at the relevant premises. The claimant’s complaint was not upheld. The report recommended “conduct action” should commence against the claimant. In the claimant’s witness statement for these proceedings, he says that the issue was resolved after going through his Angard Manager and through ACAS conciliation. (The relevance to the later complaints in these proceedings is that the claimant says that the incident was “later used against him as an accusation of the allegation in Jubilee Mail Centre by Ms Donaldson, HR Angard Adviser, on 10 October 2023”. We deal with that point later.)

[38]One other point in issue between the parties was whether Mr Dobe had ever met the claimant before 26 January 2023. Mr Dobe had no recollection of ever having done so. The claimant suggested they had worked together on a number of occasions before that. We accept the claimant’s evidence on this point. He had reason to remember Mr Dobe because he knew Mr Dobe’s father. However, we also accept that Mr Dobe genuinely did not remember the claimant when he met him again on 26 January 2023. 26 and 27 January 2023 – Uncontested facts

[39]On 26 and 27 January 2023, the claimant worked two shifts for Angard at Royal Mail’s Jubilee Mail Centre. The claimant was one of a number of workers sat in a room together around one large table. The work involved inputting information about particular parcels or “packets” into spreadsheets. The workers were supervised on both days by Mr Dobe, who was an acting manager employed by Royal Mail at the time. By Mr Dobe’s account he was supporting nine agency – i.e. Angard – workers or casuals, and one Royal Mail employee. The Royal Mail employee was Ashley Buffin, who was an “Operational Postal Grade.” The respondents did not dispute the claimant’s recollection that there had been more workers on 27 than on 26 January; we take Mr Dobe’s recollection of the numbers of workers to relate to the second day, 27 January. So on 27 January, in addition to the claimant, Mr Dobe and Miss Buffin, there were eight other people working in the same room. There was no dispute that Ashley Buffin was only present on the second day, 27 January.

[40]There was no dispute that the claimant was the only black person on both shifts. We were not provided with formal information about the race or ethnicity of the other workers, though no issue was taken with Mr Dobe’s description of the other casuals as being of “Indian ethnicity”. Mr Dobe was not asked about his race, though an email of 21 February [190] suggests that the claimant believed him to be of the same “heritage” as the other “casuals”. No issue was taken with the respondent’s assertion that Miss Buffin was white. 26 and 27 January – Contested facts apart from the comments made by the claimant

[41]Before we set out and explain our conclusions on particular points, we address the evidence about the January allegations generally. Broadly, our task as regards 26 and 27 January was to decide between the versions of events given, on the one hand, by the claimant and, on the other, by Mr Dobe and Miss Buffin, who were the three witnesses we heard from on oath who had directly witnessed the events of the 27th. That is not to say that there were not some other sources of evidence. There was some documentary evidence in the form of contemporaneous or near contemporaneous and later accounts of witnesses (including but not limited to those three people). We were not provided with any CCTV evidence. We took all of those things, which we deal with at some length below, into account. We took into account that the claimant had consistently denied the allegations and continued to deny them on oath to us. Although there were inconsistencies between their accounts, which we deal with below, we ultimately preferred the evidence of Mr Dobe and Miss Buffin to that of the claimant. We found Mr Dobe and Miss Buffin to be honest and, particularly in the case of Miss Buffin, credible witnesses on the points that we had to decide. While Mr Dobe was sometimes confused or wrong about when and where particular comments were made, we accepted that when he told us something had happened, it had indeed happened. We had to consider whether Mr Dobe and Miss Buffin were entirely incorrectly recalling hearing the comments attributed to the claimant, in other words whether they were mistaken or, alternatively, being dishonest. In our judgment, in the circumstances there was no realistic chance of Mr Dobe and Miss Buffin having misheard or misinterpreted innocuous comments. Simply, either Mr Dobe and Miss Buffin had heard the things they said they heard or they had not. We concluded that, on the balance of probabilities, they had. In doing so, we rejected the claimant’s suggestion that they had confected the allegations against him and also concluded that they were not mistaken.

[42]It was the claimant’s case that Mr Dobe was friendly towards the other workers but was hostile to him. We do not accept that. Having heard Mr Dobe’s evidence we accept what he said: that on 26 January he went and introduced himself to each worker and explained to them how to use the equipment that they were to be using. We accept Mr Dobe’s evidence that he had to show everyone how to put data into the laptops that they were using for each of the packets. We accordingly reject the claimant’s suggestion that Mr Dobe questioned his ability to work at the computer and then asked him to demonstrate how the work should be done but that he did not ask others to do the same. We accept Mr Dobe’s evidence that when he noted that the claimant appeared not to be doing much work, he offered support but the claimant’s response was “I have a degree in computers and this is easy work for me.” In light of what we now know regarding the claimant’s need for an intermediary, it may well be that the claimant’s attitude can properly be attributed to difficulties doing the work rather than an unwillingness to work. However, none of that would have been obvious to Mr Dobe at the time, particularly in light of the claimant’s response to his offer of support. We also note the claimant’s own account of this interaction in an email he sent to Angard on 2 February 2023, which in our view is more consistent with Mr Dobe’s account than with the claimant’s later account. He said: Jason taught us on what to do all in 20 minutes individually. I did my data fast and accurate well entered in the computer and nobody pointed any errors to me whatsoever. Although the claimant there is asserting that he was working at an acceptable speed, he is also acknowledging that Mr Dobe spent 20 minutes with him individually to explain the process and, critically, that Mr Dobe did the same for others.

[43]We also reject the claimant’s suggestion that Mr Dobe required him, but not other workers, to show his Customs ID badge. We consider Mr Dobe’s response to that point to be entirely plausible – the workers were not doing customs work so there would be no need for anybody to show their badge; Mr Dobe disputed therefore that he had asked the claimant to do that. We do accept that Mr Dobe reminded all the workers – not just the claimant – that they needed to display their ID badge at all points. On some of these points Mr Dobe’s recollection was corroborated by the evidence of Miss Buffin about 27 January.

[44]We reject the claimant’s contention that he had been offered work for a further six months. This contention appeared to be based solely on the claimant’s recollection that on 27th Miss Buffin had told him that the data entry project was intended to continue for about six months. Even on the claimant’s case, that came nowhere near to a promise to employ him for six months. Since there was no offer, the offer cannot have been withdrawn.

[45]Another point of dispute between the parties was the claimant’s allegation that Mr Dobe and Miss Buffin reported him for taking frequent breaks to use the toilet and to get drinking water. This, he said, was to “beef up” the allegations which followed. As we set out below, the incident report which Mr Dobe completed, clearly criticised the length rather than the frequency of the breaks that the claimant was taking. This was in the context of uncontested evidence that the nearest toilet was very nearby. There is no dispute that, due to his disability, the claimant needed to drink a lot of water which meant that his need for breaks to urinate was more frequent than others. However, the claimant has made no suggestion that this meant that he needed to take longer toilet breaks – Mr Dobe had observed, and we accept, that the claimant’s breaks were lasting for around 30 minutes. This was corroborated by Miss Buffin’s recollection that the claimant was also taking long breaks, albeit she recalled 45 minutes rather than 30. Both witnesses were clear, and we accept, that Mr Dobe asked the claimant merely about the length of his breaks. The claimant, we accept, did not tell Mr Dobe the reason for him taking frequent breaks. This must be viewed in the context of Mr Dobe’s evidence, which we also accept, that at the start of the shifts it was his habit to ask if anyone had any issues regarding the work or environment and if they did not want to say anything in front of others they should come and speak to him privately. The claimant, he recalled, had never approached him in any way other than by saying “I’m an old man.” The claimant never told him about any disability or adjustments that he required. We infer that the reason the claimant never told him that he needed long breaks was because there was no medical need for long breaks. We also accept Mr Dobe’s evidence that he had told the workers that they could go for water breaks if they needed to as the room was warm. We do not accept that there was any requirement that the claimant could only use the toilet at break times. 26 and 27 January – The competing accounts about what the claimant said

[46]The primary point of contention between the parties was whether the claimant had made racially discriminatory remarks towards his colleagues on 26 and 27 January. We carefully considered whether it was necessary to make findings about whether the claimant had in fact made those comments. If the case were simply a claim of unfair dismissal then that might not have been necessary, since the only question for the Tribunal would be the reasonableness or otherwise of the respondent’s reaction to the allegations being made. However, in this case the claimant, as part of both the unfair dismissal and the discrimination claims, made a specific assertion that the allegations against him were fabricated by Mr Dobe and Miss Buffin as part of a conspiracy with the aim of ending his assignment with the Royal Mail. We considered that it would be difficult, if not impossible, for us to decide whether there had been a conspiracy to fabricate allegations without deciding whether the claimant had actually said what he was alleged to have said on 26 and 27 January.

[47]We accept, in particular, Miss Buffin’s account of what happened on 27 January 2023. Where her recollection conflicts with Mr Dobe’s, we prefer hers. We also accept Mr Dobe’s account of what happened on 26 January. We accordingly reject the claimant’s account of what happened on both days. We reject the suggestion that Miss Buffin and Mr Dobe conspired together to tell lies about the claimant in order to get him sacked. There was no conspiracy. Mr Dobe and Miss Buffin did not manufacture allegations against the claimant. We also accept that Mr Dobe had no knowledge whatsoever of any of the grievances or complaints that the claimant had previously submitted to the respondents. There was simply no reason why he would have been aware of any of those and, as we have already said, we accept his evidence that he had no recollection of having ever met the claimant before 26 January. Quite simply, we could see no reason why either Mr Dobe or Miss Buffin would go to such lengths to have the claimant removed from his assignment. The reporting of the January allegations

[48]Before we come to what did and did not happen on 26 and 27 January, we deal with how the allegations first came to the claimant’s and the respondents’ attention. Everyone agreed that the claimant did not become aware of any allegations against him until some days after 27 January.

[49]Mr Dobe’s account in evidence was that on 26 January, after the shift, he spoke to his line manager, Mr Miller, about some complaints some of the casuals had made about the claimant’s conduct. Mr Dobe was unable to recall the precise nature of those complaints and it does not appear that any formal action was taken that day. We therefore conclude that whatever happened on 26 January was trivial; we find that the claimant did nothing which amounted to misconduct that day.

[50]Mr Dobe also recalled having a similar conversation with Mr Miller on 27 January (we accept that) and then recalled making a phone call to Mrs Lindsie David on 27 January as well. We were not provided with any evidence from Mr Miller but we did hear from Mrs David. Mr Dobe recalled telling Mrs David that he did not want the claimant to return to the site. Mrs David’s role was to manage the staffing on behalf of Angard and, as such, she would have been a point of contact regarding staffing issues. However, although she had some involvement in the case, which we will return to later, Mrs David had no recollection of being phoned by Mr Dobe on 27 January, which was a Friday. She clearly recalled that she had finished at 4pm on the Friday and the timings are such that she could therefore not have taken the call that Mr Dobe describes. We accept Mr Dobe’s evidence so far as that he must have spoken to somebody but, clearly, he incorrectly recalls who that person was. We should say that we were not provided with any contemporaneous record of the call. In other words, we were not provided with any record of what might be termed the first complaint. We consider this regrettable given how serious the allegation was.

[51]The account presented by the respondent’s witnesses about how the allegations against the claimant first came to the respondent’s attention was somewhat confused. We consider it more likely than not that the account given to us by Mrs David was correct, albeit that a lot of the information she relied upon appeared to have come second-hand. Mrs David told us that she had not been aware of the complaint until 31 January, when she was told about it by Mohammed Rashman. Mr Rashman was the manager responsible for giving the claimant shifts, or one of them. The claimant described him as his consultant. Mr Rashman told Mrs David that he had had a call about the claimant. The call, Mrs David thought, had come from Dawn Williams who had called a line known as N900 and spoken to Mr Rashman. Ms Williams’ role was as a Deputy Work Area Manager for Royal Mail. Her written evidence dealt with how she had conducted what she terms a “fact finding meeting” with the claimant which we deal with later. She appeared to us not to have any recollection of having dealt with the incident any earlier but she was not asked directly about it in her oral evidence. We conclude that, although she has no recollection of it or may not have done, she nevertheless was involved in the way explained by Mrs David. After Ms Williams reported the allegations to Mr Rashman, Mr Rashman then spoke to Lindsie David about them. This would have been, as Mrs David recalls, on 31 January. Mrs David’s evidence was clear that this information had come from Mr Rashman and we accept that. We do not accept the claimant’s suggestion – so far as anything turns on it – that whoever it was that phoned to report the allegations could only have spoken to someone by the name of Liam rather than to Mr Rashman. Mrs David gave us a clear account of the respondent’s processes when it came to calls to the N900 number and we could see no reason why such a call would not have gone through to Mr Rashman.

[52]Given the details on the incident report form, which we refer to in more detail in a moment, we consider that it is most likely that it was Dawn Williams who made the call to Mr Rashman even though she appeared to have no recollection of doing so. We consider it more likely than not that Ms Williams had been informed of the allegations, as we have said by Mr Dobe, albeit that Mr Dobe incorrectly recalls that he was in fact, speaking to Lindsie David. So in summary, we find that Mr Dobe reported the allegations to Mr Miller and to Ms Williams. Ms Williams then spoke to Mr Rashman, who then spoke to Mrs David.

[53]We accept Mr Dobe’s oral evidence that when he spoke to Mr Miller on Friday 27 January, he had mentioned the allegations about the claimant using racially discriminatory language. The closest we saw to a contemporaneous record of the allegations came in the form of the incident report form. Mr Dobe’s evidence was that he had produced a handwritten statement about what he had seen and heard and given that to his manager, Mr Miller. We were never provided with a copy of that handwritten statement. In the course of his oral evidence, Mr Dobe was shown the (typed) incident report. He told us that, to the best of his recollection, it reproduced his handwritten statement. He did not appear to recall producing the report himself although, on a natural reading the narrative part of the report under the heading “Outline of the incident,” does appear to have been completed by him. The first page of the form records the reporting manager’s name as Dawn Williams although Ms Williams, in her oral evidence, had no recollection of completing the form. That record was under a heading “Royal Mail site to complete,” and recorded “Date issue occurred” as 26 and 27 January. Under a different heading “Angard staffing to complete” it was recorded that the incident report had been received by Angard on 1 February 2023. We return to exactly what Mr Dobe recorded on the form a little later.

[54]It is clear that the claimant was not made aware of the allegations until 1 February, i.e. the date on which the incident report was received by Angard. Before then, at [160] to [162] of the agreed bundle were emails exchanged by the claimant and Mrs David on 29 and 30 January 2023. The emails concerned shifts that the claimant wanted, or believed he should have been allocated, for the following week at JMC. The claimant’s case was that Mrs David had not allocated him shifts or some shifts that following week because of the January allegations and/or because of previous grievances he had submitted. We accept Mrs David’s evidence that the reason for him not being allocated those shifts that week had nothing to do with either of those things. As we have already said, at this point Mrs David was not aware of the allegations. It is simply a coincidence. On the basis of Mrs David’s evidence, we accept that the work allocated to the claimant had been allocated entirely in line with the respondent’s usual practices. He was booked for shifts on 30 January, 31 January, 3 February and 4 February, at the PRDC site; that was why he was not also booked for shifts at JMC. We do not accept the claimant’s suggestion that the fact that those shifts had been booked somehow showed that the complaints made against him were false. As we have said, at the time that those shifts were booked, Mrs David was entirely unaware of the allegations.

[55]The shifts which we have just referred to that had been booked were cancelled when Angard became aware of the allegations. We accept the claimant’s evidence that he had first learned about the allegations when he realised that Mr Rashman had cancelled his shifts and he spoke to Mr Rashman to ask why. Mr Rashman would not tell him why the shifts had been cancelled but said that he would be called by the office. The claimant was informed of the allegations later that day in a call from Joanne McLaughlin, who was the Operations Manager for Angard. We did not hear evidence from Ms McLaughlin. The call was followed by an emailed letter on 1 February 2023 from Ms McLaughlin. The letter explained that Angard had received a request from Jubilee Mail Centre (i.e. Royal Mail) to end the claimant’s assignment in response to allegations for gross misconduct which were specified in two bullet points:• You acted insubordinately by refusing to undertake the reasonable requests of a Royal Mail manager.

• You made offensive and racially discriminative [sic] comments about and towards other workers. The letter went on to say that as a result, the claimant’s assignment at Jubilee Mail Centre had been ended with effect from 1 February 2023 and that an investigation into the incident would now take place. The claimant was required to send an initial written statement in response to the allegations. We note that the allegations, as they were put to the claimant in writing, were vague to say the least. They did not explain what he was said to have done or when he was said to have done it.

[56]The 1 February letter also did not explain that the claimant would not also be permitted to work at PRDC (i.e. where his then-current shifts were booked). We were shown an email from the claimant in response to the letter asking whether he could be reallocated work at another location as the investigation was going on at the Jubilee Centre. Ms McLaughlin replied on 2 February to say that, due to the nature of the allegations, he would not be able to work at any Royal Mail location. The claimant’s responses to the January allegations

[57]The claimant provided a detailed statement to the respondent on 2 February 2023 [166]. Given the paucity of the information he had then been provided with about the allegations, there is no suggestion that this was an inadequate response. Indeed, he gave a full account of what he said was his recollection of the events of 26 and 27 January. In short, his account was that nothing untoward had happened. In response to his request for further information about the allegation, the claimant was told on 3 February 2023 that the incident was said to have happened on 26 and 27 January. There was then some correspondence in which the claimant attempted to withdraw the statement he had made on 2 January. We did not consider that point in detail because there appeared to us no suggestion that the statement of 2 January was used against the claimant in any way. We have taken no account of it save to note that the claimant was prepared to offer an account even though he had been given very little detail of the allegations against him.

[58]Some further information was provided to the claimant in an email of 6 February 2023. The claimant was told that the allegation was that, on 26 January, he made a “racial comment about other members of staff whereby a comment of ‘they smell of curry’ was made”. The site had also said that the claimant thought he was entitled to a 1 ½ hour break and on being told that he was only entitled to a 45 minute break he had refused to work. He was also said to have taken extended toilet breaks on 27 January. We note that this letter misstates the day on which the racially offensive comments were said to have been made.

[59]The claimant provided another detailed account of his version of events to the respondent on 9 February 2023. That appeared at [179] of the bundle and we have taken it into account. The claimant denied taking any break other than the 40 minutes he was entitled to on 26 January. On 26 January, the claimant said “There were several other workers who were of Asian descent” who were “speaking in a language I did not understand”. At one point, he said, “two of them were talking to each other loudly.” It was disturbing him and he asked them politely if they could please keep their voices down. On 27 January, the claimant said he had taken a 40 minute break to which he was entitled and he had never refused to do any work. He denied making the comments he was said to have made and said he never made any offensive or racist remarks about anybody.

[60]The claimant provided another written account on 21 February 2023 [190]. Note that this was provided after the claimant’s interview with Dawn Williams on 17 February 2023 (see below). The claimant denied that there was any argument about break times and again denied making any racist remarks. Mr Dobe’s accounts

[61]Mr Dobe’s assertion that the account in the incident report was, to the best of his recollection, what he had written in his statement, is of limited, if any, use given how long ago the events that he was referring to took place. Mr Dobe could not recall, for example, typing the incident report himself. The report records [159]: From the first day of [the claimant’s] arrival his behaviour was belligerent. He didn’t want to work and had no interest in what I [i.e. Mr Dobe] was showing him. [The claimant] made racial comments about other members of staff. For example, how they smelly [sic] of curry and the way they spoke. He said he was entitled to an hour and a half break as he was doing an 8 hours shift, when I refused and said you only get a 40-minute break, he then refused to work and said I’ll sit here and start my break now. The second day […] I asked all staff to sit where they like, and he did not want me moving the other staff so he could sit where he wanted to sit. When I said there was other seats available [the claimant] complained then he started to use the race card he said I was showing favouritism. [He] kept going to the toilet every 30 mins and coming back after 30 mins. When challenged why he’s taking so long to come back, he again said I’m showing favouritism towards the other staff. On a natural reading of the narrative, the comments about curry appear to have been made on the first day, in other words 26 January. The report records Ashley Buffin as a witness.

[62]The next account provided by Mr Dobe was in an interview on 19 June conducted as part of the disciplinary process. In that account Mr Dobe said that, on 26 January, the claimant had been rude and aggressive and had started watching football on his phone and had wanted a longer break. On 27 January, Mr Dobe said, there had been an argument about where people sat and the claimant had said he did not want to sit next to “these people”, saying they smell, making racist remarks. Mr Dobe said that he had then taken the claimant outside and said he could not say those things. When asked what the comments were, Mr Dobe said, “They smell of curry, I don’t want them near me. I don’t like the way they speak.” He thought that a few of the agency staff had heard as well as Miss Buffin.

[63]Mr Dobe of course also provided a written statement for the purpose of these proceedings, which we considered to have a confused chronology. He said that the claimant had started watching football on his phone on 27 January (not 26 January). On 27 January the claimant had said he did not want to sit next to his “Indian colleagues because they smelt like curry”. The claimant had also said in the office that their language got on his nerves. On 27 January the claimant was the last person to enter the office that they had been assigned to and the claimant had asked Mr Dobe to ask his colleagues to move and make space for him. Mr Dobe had replied saying there were other seats to choose from and the claimant had said “All you Indians stick together.”

[64]In his oral evidence, Mr Dobe said that he had not personally witnessed any racially offensive remarks made by the claimant on 26 January. The racially offensive remarks he had heard were on 27 January. He was clear in his oral evidence that he had heard all of those remarks in the room in which they were all working.

[65]Given the inconsistencies between the various accounts given by Mr Dobe, we would have had some concern about relying on his evidence alone. But, as we go on to say, it was corroborated in certain key aspects by the evidence of Miss Buffin and, to a lesser extent, by the written statements provided by others during the course of the respondent’s investigation. Although we found Mr Dobe to be an honest witness, so far as the events of 27 January were concerned, we considered that his evidence added only a little weight to the account given to us by Miss Buffin. Miss Buffin’s accounts

[66]As part of the respondent’s investigation into the incident, Miss Buffin provided a handwritten statement which she accepted she had signed. Next to her signature was the date 14 February 2023 which Miss Buffin told us was not her handwriting. We accept that. No witness called by the respondent was able to explain how that date came to be written on the statement. We accept Miss Buffin’s evidence that she was called by her boss, Mr Miller, on the Monday – which would have been 30 January – and asked if she had witnessed anything. She told him that she had and she wrote the statement in her own hand.

[67]That statement, which we were shown, dealt with the events of 27 January 2023. Miss Buffin said that as the workers were being signed in, the claimant said to Mr Dobe, “Can you tell them not to speak today their language gets on my nerves and I don’t want to sit with them they smell of curry.” Upon entering the room the claimant had asked Mr Dobe to tell the other workers to move to make space for him and when Mr Dobe said no, the claimant had said “Oh that’s it show favouritism to the ladies all you Indians stick together.” She referred to the claimant later taking a 25 minute break to get water. She then said that the claimant stopped work early and started watching football on his phone.

[68]The next account that Miss Buffin gave was in an interview as part of the disciplinary process on 20 June 2023. Although this account contains a little more detail it was broadly consistent with the written statement.

[69]In her evidence to this Tribunal, Miss Buffin clarified that when she spoke about remarks being made during signing in she meant that that had happened downstairs, in other words, in a totally different room to the office where they had all been working. She recalled the claimant had made the remarks under his breath. This contrasted with Mr Dobe’s recollection which was those comments had been made in the office. Later, i.e. in the office, the claimant had said, “Tell them to stop speaking in their language it’s getting on my nerves”. The claimant had also said, “All you Indian’s stick together” in the office.

[70]Miss Buffin was adamant that she heard what she said she heard. It was not suggested to her in cross examination that she might have misheard some innocuous remark made by the claimant. She told us that she had challenged the claimant when he made the remarks when signing in, asking him, “What did you just say” and he just smiled at her. Although she was shocked by the comment, she did not think to make a formal complaint about it. She did not know if anybody else would have heard the comments made in reception. She accepted she had not reported it to her boss until he had asked her about the incident. In cross-examination it was put to her that in her June interview she had said that the claimant was sitting right beside her when he made the comments. However, in the context of that particular sentence, it is not immediately clear whether Miss Buffin was talking about the remarks made downstairs or upstairs although it appears more likely she was referring to the remarks upstairs given that her exact words are recorded as “It was because he sat right next to me upstairs that I heard him say it again.” We therefore do not regard this as being inconsistent with her oral evidence to us, in which Miss Buffin was clear that the remarks about the ladies smelling of curry were made downstairs in reception. Other people’s accounts

[71]As part of the evidence we were also provided with statements from three other witnesses (“the other three witnesses”). These were statements gathered as part of the respondent’s initial investigation rather than statements taken for the purposes of the litigation before this Tribunal. The witnesses who made the statements were not called to give evidence before us. For that reason alone, we thought it appropriate to give those statements very little weight.

[72]The evidence about how the statements came to be taken was also unclear. Mr Dobe’s recollection was that the following Monday, i.e. 30 January 2023, Mr Miller had come round and taken statements from people. We accept that that is broadly correct. Mr Dobe did not know who Mr Miller had spoken to but there does not appear to be any other explanation for how the three statements with which we were presented came into being. We were not provided with any explanation why none of the three witnesses who made the statements were not called to give evidence before us. There seemed no reason to doubt that the other three witnesses had indeed worked with the claimant on 26 and/or 27 January 2023 although the claimant had no knowledge of that – he was not aware of his co-worker’s names.

[73]The first statement was provided by a Ms Bodakuntla and dated 15 February 2023. As with the other two statements, which we will turn to in a moment, it is not clear whether the statement was written by the person whose name appeared on it or whether it was written on their behalf by somebody who had listened to what they had to say about the incident. The former seems most likely as the three are in different handwriting. We were not provided with an explanation why Ms Bodakuntla’s statement (and indeed the next one we describe) carried the date of 15 February given that the best recollection from a witness we heard from was that they had been taken on 30 January. Ms Bodakuntla’s statement said that she had been working on 26 and 27 January. So far as is relevant, she said that on 26 January the claimant had said, in an impolite manner, that they were talking too loudly – by “they” she meant she and a colleague she was speaking to. On 27 January she said that she had been sitting on a chair and the claimant came over at the start of his shift and demanded that she got off it like it was his own chair.

[74]The second statement was provided by a Ms Maram, who said that she had been present on 27 January. She said that the claimant had asked a colleague to move from a seat he had sat in the day before. The claimant, she said, was upset and complained to the manager. The statement then reads, “I do not see any issue to upset here.” It is unclear whether she means that she did not see anything that upset her or whether instead she meant that she had not seen anything that could have caused the claimant to become upset. She mentioned another incident where she and a colleague had been talking “in our language” and the claimant had complained to the manager that they were “discussing general topics” and were loud. She said the claimant had accused the manager of showing favouritism which she, Ms Maram, had not noticed. She also said that the claimant was watching football on his phone.

[75]The third statement was a short statement from a Ms Aden. She said that on 26 January the claimant kept on moaning about the work and, at one point, shouted to one of the casuals to be quiet.

[76]As will be apparent from the preceding brief summary of the other witnesses’ statements, none of the three said that the claimant had used any racially offensive language, albeit that some of the things some of them recall were in some other ways consistent with the events recalled by Mr Dobe and Miss Buffin.

[77]As we set out below in some more detail, only one of the other three witnesses was spoken to during the course of the disciplinary process. That witness was Ms Bodakuntla although we were not provided, as had been the case for the other people interviewed during the course of the disciplinary process, with a record of her conversation with Mr Mullen. Instead, we were provided only with an exchange of emails on 27 June 2023. Ms Bodakuntla’s email said simply “Yes, I can confirm this is true.” This was in response to an email from Mr Mullen which said as follows: I spoke with you on the telephone minutes ago. I asked you questions in relation to you working with [the claimant on 26 and 27 January]. Can you confirm what you told me on the telephone, that [the claimant] was very rude, telling you “you’re talking loud.” Also he was watching football on his phone, and that he said to you “You Indians smell of curry.” Can you confirm this to be true.”

[78]Mr Mullen’s evidence on how he came to send that email was unclear, particularly in the absence of any contemporaneous note of the original conversation. We did not think it appropriate to place any weight whatsoever on this particular piece of evidence when considering whether the claimant had made the comments about his colleagues smelling of curry.

[79]As we have said, we did think it appropriate to give some small amount of weight to the three near contemporaneous statements, but we stress only a very small amount of weight. Our findings on what the claimant said on 27 January

[80]In evidence before us, there were two clear accounts of what had happened on 27 January. Those accounts came from Miss Buffin and from the claimant. As will be apparent, those accounts were substantially at odds. We considered Miss Buffin’s oral evidence to be compelling and preferred it to the claimant’s. Despite the difficulties with Mr Dobe’s recollection, we did consider that it added some weight to the account given by Miss Buffin. The evidence of the other three witnesses added a little more weight. Some of them recalled some of the things mentioned by Miss Buffin and Mr Dobe even if they did not recall, or had not heard, any racially offensive remarks. It seems unlikely to us that had those women heard such remarks, they would not have included them in the written statements. Therefore, either the remarks were not made, or the remarks were made but they did not hear them. Taking into account our view of Ashley Buffin’s evidence, we consider that the latter is more likely than not. We consider it significant that when the claimant was first asked, he did make comments about the ladies talking in their own language. Clearly, this was something significant enough for him to remember. Put simply, it was something, we find, that had annoyed him.

[81]Below we made significant criticisms of the failings in the respondents’ investigation. In particular, the fact that a number of people who were in the room and could potentially have heard the remarks were not, as far as anyone is aware, spoken to. Only around half the people in the room on 27 January provided statements, and not all of them were actually spoken to or interviewed during the disciplinary process. There was also the lack of CCTV evidence. A number of witnesses said a number of different things about CCTV. We considered that the witness most likely to be right was Miss Buffin. She told us, and we accept on the balance of probabilities, there was no CCTV operating in the room where the claimant had been working on 26 and 27 January, though she thought there would probably have been CCTV in reception where she heard the first offensive comment. None of the witnesses seemed clear about whether, if there had been CCTV, it would have recorded sound. Although, given Miss Buffin’s evidence that the claimant had said what he said under his breath, it seems unlikely that even if the CCTV had been recording sound, it would have captured what the claimant said. That involves however a degree of speculation. What we can say with clarity is that nobody on behalf of the respondent made any effort to check and make a record of whether there was CCTV let alone to get access to it.

[82]Given all of that, clearly, when we made findings, we had to do that on the basis of incomplete evidence. We took all of that into account but, ultimately, we had to make findings on the basis of the evidence that was available.

[83]In his evidence before us, the claimant maintained what he had said at various points to the respondents. Simply, he denied that anything out of the ordinary had happened on 26 or 27 January. It was clear to us that, on the basis of the claimant’s account, there was no scope for him having said something that had been misheard or misinterpreted by Miss Buffin. The claimant said that Mr Dobe had not signed him in on 27 January and so Mr Dobe could not have overheard the comments that Miss Buffin had told us about. Given Miss Buffin’s clear evidence on the point, we do not accept the claimant’s account of that.

[84]The claimant suggested that, if he had said what he was accused of saying, then he would have been told about that the same day. Of course, on the basis of Mr Dobe’s and Miss Buffin’s account, he was indeed challenged about what he had said on both days, albeit that he was not notified about a formal investigation until some time afterwards.

[85]On the basis that the most objectionable comments were, as we will go on to find, made on the Friday 27 January, we accept the respondent’s suggestion that there is nothing unusual about the claimant not being made aware of those allegations until Monday 30 January, given particularly that Mr Dobe could not have made any formal report until late on Friday 27 January. We do not accept the claimant’s suggestion that the fact that one of his colleagues gave him a lift home on 27 January must mean that he had not said what he was accused of saying.

[86]We took account of the claimant’s evidence that he came from a multicultural family which included relatives by marriage who are of Indian heritage. We also considered the significant point that during a long record of service no similar allegations had been made against him. Nevertheless, we find it more likely than not that Miss Buffin was telling the truth about the events of 27 January, as she remembered it, and that she remembered the material details correctly. In particular, we find on the balance of probabilities, that the following things happened on 27 January 2023:a. As the claimant and other agency workers were being signed into the building, the claimant said, under his breath, words to the effect of, “They smell of curry,” referring to his colleagues. This was heard by both Mr Dobe and Miss Buffin, albeit that Mr Dobe was mistaken in his recollection to us about precisely where he was when he heard the comment.

b. After the workers had been signed in they went upstairs to the room in which they would work. As they went in the claimant asked Mr Dobe to ask his colleagues to move. Mr Dobe refused and the claimant said words to the effect of “All you Indians stick together.”

c. Later, when they were upstairs working in the office, the claimant said words to the effect of “Tell them to stop speaking in their language it is getting on my nerves.” This was said to Mr Dobe and was also heard by Miss Buffin.

[87]It follows from those findings that we further find, on the balance of probabilities, that Mr Dobe and Miss Buffin were telling the truth as best they remembered it during the course of the disciplinary process and, indeed, to us in these proceedings. Put simply, there was no conspiracy to, as the claimant put it, “beef up” allegations against him to end his assignment.

[88]It also follows from all of that that the claimant’s assertion that Ms McLaughlin subjected him to false allegations is simply incorrect. Given the severity of the allegations against the claimant we can find no fault in the respondent’s decision to take him off shifts until the matter had been investigated. Indeed, it was not a specific complaint made by the claimant that it was inappropriate for him to be, in effect, suspended. We find as a fact that the decision to suspend the claimant and to subject him to disciplinary proceedings was made solely because of the January allegations had been made against him. There is simply no other plausible explanation for those decisions. Those January allegations, we find, were made in good faith and, indeed, were substantially true. The decision to, in effect, suspend the claimant and subject him to disciplinary proceedings therefore had nothing to do with his race, age or disability. The claimant’s interview with Ms Williams

[89]After the statements we have already described were taken, the next part of the respondent’s investigation consisted of an interview with the claimant, in the presence of his union representative, conducted by Dawn Williams on 17 February 2023, who we heard from in evidence. Ms Williams described that as a fact finding meeting and recalled that it was her last involvement in the case; there was no dispute about that although, as we have said, there was some issue about her involvement before 17 February.

[90]We do not accept the claimant’s recollection that the meeting lasted only five minutes. We were provided with a written record of the meeting which showed that it started at 4.20 and ended at 5.05. Given how long the meeting lasted, the record clearly does not record what was said verbatim. The specific allegations were not put to the claimant during the course of the interview no doubt because, as Ms Williams told us, she had not been provided with any of the statements taken from anybody else. The claimant was simply asked to, and did, provide an account of what he said had happened on those two days. He said he was not aware of any incident and denied Mr Dobe had discussed an incident with him. As we have observed, the claimant is recorded as saying the following, “Most of the other staff were speaking in their language he asked them to lower their voice.” We accept Ms Williams’ evidence that that is an accurate record of what the claimant said. We note that in an email of 28 February, at page 193 of the bundle, the claimant took the opportunity to make corrections to the record of the interview and took no issue with the passage above.

[91]One issue the claimant took was that Ms Williams had later recorded that the interview had taken place at the respondent’s Jubilee House premises when, in fact, it had taken place somewhere else. The claimant suggested that this was a deliberate misrecording as Ms Williams knew the interview should have been conducted at Jubilee House where there could have been access to witnesses and CCTV. We consider this point to be misconceived. Regardless of whether CCTV was or was not available at particular venues, there was no reason why the claimant should have been interviewed by Ms Williams in any particular place. We accept Ms Williams’ evidence to us which was that her misrecording of the venue was a simple mistake. Jubilee House, she told us, was usually where interviews like that would take place but, for a number of reasons which were completely unconnected to the claimant, this particular interview had not taken place there and the misrecording was a genuine mistake on her part.

[92]Although, as we have said, Ms Williams described the interview as fact finding, it is clear that Ms Williams did not purport herself to have found any facts in the sense that we are finding facts now. What she meant was actually that she had gathered evidence, in other words, asked the claimant for his account. Ms Williams made no claim to have decided for example, that there was a case to answer. We accept that all she did was take the claimant’s account and provide it to the next investigator, Mr Mullen.

[93]One other point made by the claimant about Ms Williams was that, he said, around March 2023 she told him that she had asked Angard to reinstate him, i.e. to allow him to work at a different site. Ms Williams’ recollection was somewhat different. She did recall having a conversation with the claimant around 8 March 2023 where he had asked her whether he could work at different sites. She had told him that if Angard agreed, then that could happen. However, when she later spoke with Angard, they told her that the claimant could not do any work until the investigation was complete. We accept Ms Williams’ evidence on that point. It is in fact entirely corroborated by a recording of that conversation which the claimant himself had provided to the respondent as part of his appeal – see below. The March 2023 grievance

[94]On 31 March 2023 – before the respondents’ investigation was complete – the claimant submitted a written grievance to Angard. A copy of that was at [194]. In reference to the January allegations, the claimant complained that he had been the subject of unfair allegations to get rid of him because of the email he had sent to Ms David. It remains unclear to us how the claimant could have concluded that simple enquiries he made to Ms David about why he had or had not been given particular shifts could possibly have resulted in untrue allegations being made against him about having made racially offensive remarks to colleagues. As we have already said, Ms David was not even herself aware of the allegations when the claimant emailed her. The claimant, in his grievance, set out a number of other complaints dating back as far as 2016, including about the 2018 incident which we detail above. Two particular points about the grievance are as follows. First, it is clear that the grievance contained complaints that the claimant had been discriminated against on the basis of his age; it specifically mentions the Equality Act 2010 in the context of age discrimination. Second, in this grievance, sent to the respondent during the course of the disciplinary process, it was the claimant himself who raised the 2018 incident. His complaint that this incident was therefore somehow used against him in the disciplinary process is clearly entirely misconceived. He was asked about it in the disciplinary process quite simply because it was something that he had brought up himself. Having considered the decision maker’s reasoning (see below) it is also apparent that the issue had no bearing at all upon the decision to dismiss the claimant.

[95]As we have said above, shortly after sending the grievance, in fact on 17 April 2023, the claimant contacted ACAS and early conciliation began. Mr Mullen and the disciplinary process

[96]On 28 April 2023, the case was passed to Mr Mullen for his consideration. Mr Mullen’s job title was People Case Manager and he worked in the Royal Mail’s HR Department. It was Mr Mullen who decided that there was a case to answer and, therefore, invited the claimant to a disciplinary hearing. Mr Mullen’s recollection was that the case had been passed to him as Dawn Williams thought that the potential misconduct may require a penalty that was above her level of authority. Ms Williams, in her evidence, had no recollection of this but we conclude that Mr Mullen is probably right about that. Beyond all of that we were not provided with any particular explanation as to why it took until 12 May 2023 for the claimant to be invited to a disciplinary hearing. In an emailed letter of 12 May, Mr Mullen set out three “Notifications” (in other words charges). All were of “racially discriminatory behaviour towards colleagues on 27 January”. The first was the comment “Can you tell them not to speak today. Their language gets on my nerves.” The second was the comment “I don’t want to sit with them they smell of curry.” The third was the comment “All you Indians stick together.” Clearly, Mr Mullen had decided to base disciplinary proceedings only on the racially offensive remarks and not also upon the lesser complaints about the claimant taking breaks that were too long etc.

[97]We were provided with a typed note of the meeting of 17 May (page 200 of the bundle). The note shows the following, which we accept is accurate. The claimant was first asked about the grievance he had raised on 31 March and provided quite some detail about particular points in the grievance. The charges we set out above were then read to the claimant. The contents of his interview with Dawn Williams on 17 February were summarised and the claimant accepted that they were correct. The relevant parts of Ashley Buffin’s statement were read to the claimant and the claimant said that it was all false. What was described as Jason Dobe’s evidence was also read to the claimant. It is apparent that what was being read to the claimant was what is recorded on the incident report form we have described above. The statements of the other three workers, which we have referred to above, were also put to the claimant in summary form.

[98]At one point, according to the meeting notes, the claimant said that he had not received a copy of Miss Buffin’s statement. The record shows [205] Mr Mullen saying that he had earlier emailed it to the claimant and offering the claimant a pause if he wanted to see it. The interview continued without any objection from the claimant or from his union representative who was also present. We also note that in his letter of 12 May, Mr Mullen said to the claimant “I enclose all documentation that has arisen during the investigation stage.” The claimant maintained during the course of the case before us that he had never been sent the statements at that stage. We therefore allowed an application by the respondent, which the claimant did not oppose, for them to be able to adduce into evidence the email that Mr Mullen had sent. It was clear to us from looking at the filenames of the attachments to that email that the claimant had, indeed, been sent the statements of Miss Buffin and the three other employees prior to the interview.

[99]It was the claimant’s case that the quality of the connection during the interview, which took place over Teams, was so bad that, in effect, he and Mr Mullen had not understood anything the other had said. In light of Mr Mullen’s clear and lengthy written note of the meeting we do not accept that. However, we accept, albeit with the benefit of some hindsight given what had happened in this case regarding the appointment of an intermediary, that there may well have been some difficulty on the claimant’s part in understanding all that had been said. That said, the claimant clearly, on the basis of what Mr Mullen has recorded, was able to get his point across. In other words, he denied that what Miss Buffin was saying was true. The claimant was also offered, and took up, the opportunity to correct any misunderstandings on multiple occasions. The first example of this is that on 17 May, in other words the same day that the interview had taken place, the claimant emailed Mr Mullen to say that he and his representative had had trouble understanding and to ask for the meeting to be rearranged or for him to be sent questions to answer in writing. The email said in particular: “As a matter of fact I have some learning disabilities. I cannot assimilate, listen and answer immediately, it takes me time to reason out questions.” Similarly, in an email the following day, the claimant said that due to his learning disabilities he had difficulty understanding “statement and making sense of it quickly.” He also said that English was not his first language and that his wife was writing the email because of his difficulties. There is no dispute that these emails set out the extent of the respondent’s knowledge of the claimant’s learning difficulties. We have carefully considered whether the respondent should have taken any steps that it did not take during the course of the investigation in relation to the claimant’s learning difficulties. We conclude that the respondent’s actions were appropriate in this regard. The claimant, having had difficulties with being interviewed orally, asked for the opportunity to answer questions in writing. It is clear from the evidence that we were provided with in the bundle that, following that meeting, the claimant was in fact provided with the opportunity, on multiple occasions, to provide an account in writing just as he was asking for. For example on 18 May [257] he emailed Mr Mullen to thank him for allowing him to correct his statement, concluding with: “Thank you very much for you effort. God bless you sir.”

[100]We were provided with a record of further questions dated 12 June 2023 (bundle page 212). Although this had the appearance of a transcript of an oral conversation, Mr Mullen told us in evidence that it was in fact cut and pasted from the claimant’s written responses provided by email to Mr Mullen’s written questions. We accept that. Indeed, there was no particular dispute about it. The claimant, in summary, provided a detailed written response to the allegations made against him. That written response was considered by Mr Mullen and, indeed, we considered it too.

[101]Between 19 and 21 June Mr Mullen also conducted oral interviews with Mr Dobe, Miss Buffin and Mrs David (which included, at [222], Mrs David’s brief recollection of the 2018 incident having been asked whether she knew of the claimant ever complaining to her about his treatment by the respondents). It was apparent to us from the written evidence that the written records of those interviews – which we also saw – were provided to the claimant by Mr Mullen and the claimant was given the opportunity to comment upon them before Mr Mullen made his decision. As we have already said, it is also apparent that Mr Mullen spoke to Ms Bodakuntla in the circumstances that we have set out above.

[102]Although in his oral evidence to us Mr Mullen initially recalled speaking to the other two women who had provided statements, it was clear from his written report that, in fact, he had not done so.

[103]The claimant was not provided with a decision until 6 October 2023. During May and June, as we have said, Mr Mullen was gathering the claimant’s account, first orally and then in writing, and then speaking to the witnesses. The claimant provided further points in writing for Mr Mullen ’s consideration on 20 July. Most of the rest of the delay appears to be because of industrial action, Mr Mullen being on annual leave, and Mr Mullen having other work to complete.

[104]As we have already observed, Mr Mullen did not speak to many of the other people who had been in the room when the claimant had made the comments which were the subject of the disciplinary charges. When asked about this, Mr Mullen told us that he had asked Angard for the names of those present and had interviewed everyone whose name he had been provided with. As we have already said, it appears that he did not in fact speak to two of the people who gave statements. It should also have been obvious to anyone conducting an investigation that there were a number of other people in the room whose names had not been provided. We were not provided with a satisfactory explanation about why those people had not been identified. We accept that the claimant did not know their names. They were working and being paid. It is inconceivable that it was impossible for the respondents to have known who was working that day, and we can see no reason why Mr Mullen should not have been provided with that information.

[105]We do consider that it was reasonable in all of the circumstances for Mr Mullen not to have looked for CCTV footage. He reasonably came to the conclusion that the footage would only have been of assistance if it captured audio. He knew from his own experience of similar investigations such recordings did not include audio, although we should say that that was one of only three reasons that Mr Mullen gave for not getting CCTV. The other two, which were rather less satisfactory, were that he thought Royal Mail would not release footage unless there was an allegation of violence or theft and that he considered that the evidence was sufficiently compelling and overwhelming without CCTV. The first of those appears unlikely to us. The second was particularly concerning, in our view, since it is apparent, in our judgment, that Mr Mullen had failed to appreciate that there were considerable discrepancies between the evidence given by the various witnesses. But, even if we are correct in having those concerns, if Mr Mullen was right to conclude that the footage was unlikely to assist, then it cannot have been unreasonable for him not to try to get the footage.

[106]Mr Mullen’s ultimate conclusions were set out in a detailed report which we were provided with [231]. Mr Mullen considered that Miss Buffin was a credible witness and accepted her account. As we have already observed, he did not note the inconsistencies between her account and those of the other witnesses. He took account of what Ms Bodakuntla had told him in their conversation of 27 June, but did not explicitly note that none of the other three witnesses had in their initial statements said anything about any racially offensive remarks. He also did not note that Mr Dobe’s initial account appeared to be that some of the comments had been made on 26 January.

[107]Mr Mullen further concluded that there was no need for him to investigate the historical grievances raised by the claimant. We consider that that was an entirely reasonable decision.

[108]Having found the allegations proven, Mr Mullen took into account the claimant’s record of service – in other words that the claimant had not committed any misconduct before but considered that any penalty other than dismissal would be inappropriate. He explicitly considered whether lesser penalties, such as a suspended dismissal, would be appropriate, and concluded that it would not.

[109]It is apparent from reading Mr Mullen’s decision, as it was apparent to us form hearing his evidence, that, having taken the decision not to investigate the grievance, Mr Mullen’s decision to dismiss the claimant was not in any way affected by the fact of the grievance having been raised. Mr Mullen’s reasons are clearly set out and relate solely to the evidence Mr Mullen considered (as relates to the decision that the claimant had committed misconduct) and to the gravity of the misconduct (as relates to the decision to dismiss rather than to impose a lesser penalty). Miss Worfell and the appeal

[110]The claimant presented an appeal against his dismissal. This appeal was dealt with by Helen Worfell. Miss Worfell is employed by Royal Mail as an Independent Casework Manager. Part of her role is to hear appeals against dismissal for Royal Mail but she also hears appeals by staff of Angard as an associated company of Royal Mail. On 11 October, Miss Worfell wrote to the claimant to say that his appeal meeting would take place on 18 October via video conference.

[111]The basis of the claimant’s appeal was set out in a written document which was at page 241 of the bundle. Amongst other things, the claimant pointed out that on the respondents’ case only two of the numerous people in the room had heard what he was alleged to have said. He also suggested that if CCTV was viewed it might be possible to see whether somebody was talking to him or not, or whether something else had happened.

[112]Having received the invite to the appeal meeting, the claimant responded to say that his “Speed of thinking and catching with speech from far distance is very slow” and that he was unable to do a video call or telephone conference. He provided further detailed written submissions which were at [248] to [252]. On that basis, Miss Worfell decided to conduct the appeal on the basis of the paperwork. Since the claimant had not specifically requested an in-person hearing instead, we consider that that this was an entirely reasonable decision given in particular that the claimant had been given, and taken, the opportunity to present very detailed written submissions.

[113]The claimant did not dispute that, by the time Miss Worfell considered the appeal, he had been provided with all the relevant documents. The claimant provided Miss Worfell with a number of recordings of conversations with people which he said were relevant. On 20 October she emailed him to say that she was unable to hear what was being said on the recordings. On 23 October Miss Worfell conducted a Teams call with the claimant where he played the recordings to her. We were provided (at [292]) with Ms Worfell’s note of the three recordings which she listened to. Each was of a conversation involving the claimant. One was with Ms McLaughlin which was undated. She explained that the reason for her call was that Angard had received a complaint about what had happened on 26 and 27 January. She said that she was disappointed it had taken so long for Angard to be notified. She put the allegations in very broad terms – that he had acted inappropriately to directions from a manager in respect of breaktime and working and had made racist comments towards other workers. The claimant said that she was the first person who had contacted him about the issue and suggested that he should have been spoken to six days earlier. The second conversation was with Dawn Williams. Again, the recording was undated. The record shows Ms Williams as saying that if Angard said he could work at PDRC – in other words a different site – then “She had no problem.” The third was a conversation with Mr Rashman, again undated. The record shows Mr Rashman confirming that the claimant’s shifts had been cancelled and that the HR Team would be in touch. He said that it was in relation to an incident at Jubilee but he could not go into any further details. He said that while the investigation was ongoing the claimant could not be on site.

[114]Miss Worfell’s record also contains a note of what the claimant had to say to her about the recordings. He also told Ms Worfell that there were another five people present and that they should give written statements as well. He again requested that CCTV footage be obtained.

[115]On 1 November 2023, Miss Worfell wrote to the claimant to say that having considered his appeal, she believed that the original decision was appropriate, and his appeal was rejected. She set out her reasons in a document we were provided with [304]. On the basis of the recordings she had listened to, Ms Worfell considered that Ms Williams had not told the claimant that he could return to work. In light of her note of the recording that was clearly a reasonable decision. Ms Worfell considered and rejected the claimant’s point that, if he had said what he had said, it would have been raised with him earlier. For reasons we have already set out, we consider that her conclusion on that point was reasonable as well. In short, there was a delay of a few days in the report being passed from Royal Mail to Angard. This did not show that the allegations were untrue.

[116]Miss Worfell also addressed the claimant’s complaint that Lindsie David had not mentioned the allegations on 30 January. Again, for reasons we have already set out, Miss Worfell’s conclusion on that point was quite reasonable. Mrs David simply did not know about the allegations at that point.

[117]Miss Worfell said she had considered whether it was necessary to ask others to provide statements and said that she did not think it was necessary because “I do not believe that further statements will change the facts” and the claimant had not provided the names of any other person that he wished to be interviewed. This, in our judgment, overlooks both the fundamental reason for taking more than one person’s account and also the very obvious fact that the claimant did not know the identities of those persons whereas the respondent clearly could, or should, have known.

[118]Ms Worfell also considered that it would not be appropriate to seek CCTV footage as it would not capture what was said. Our earlier observations in regard to Mr Mullen’s decision on that point apply here also. Ms Worfell further concluded that the allegations had not been raised against the claimant due to his age or race and that Mr Dobe had not fabricated the allegations against him or conspired with Miss Buffin to do so.

[119]It is clear from Ms Worfell’s reasons that she considered the strength of the evidence herself rather than simply considering whether the original decisionmaker had reached a reasonable decision. She too came to the view that the allegations were made out on the evidence, in essence, because both Mr Dobe and Miss Buffin were consistent and supported, at least in respect of the “curry” comments, by the evidence of Ms Bodakuntla. The report made no mention of any of the inconsistencies between those witnesses’ evidence. Ms Worfell also considered that having found that the events had happened, the decision to dismiss was reasonable. Other evidence

[120]As part of the evidence, we were asked to listen to two other recordings the claimant had made of telephone calls. We were also provided with a transcript of those calls beginning at [427]. We are satisfied that those transcripts are materially accurate, albeit that they do correctly record that certain passages were inaudible.

[121]The first is a telephone conversation involving the claimant, his union representative, and Mr Mullen. It clearly took place immediately after the first disciplinary interview that had taken place over Teams. The union representative, so far as we were able to hear, asked if the claimant could be emailed questions to which he could respond by email. No suggestion is made that any technical problems with the video call had occurred although the union representative does appear to be suggesting that the claimant had had difficulty getting his point across.

[122]The second call [429] is between the claimant and Mr Mullen. It is clearly concerning the transcript of the original disciplinary interview that Mr Mullen had sent the claimant. The claimant said, “I just went through all those things and I see there’s a lot of mistakes and omissions.” Mr Mullen said he did not think there were any, but agreed that the claimant could provide him in writing the things that he said had been missed. All of this was simply further evidence of the fact that the claimant had requested an opportunity to provide responses in writing and had been given that opportunity. LAW Time limits

LAW

[123]By s 123(1) of the Equality Act 2010 (“EqA” or “the Act”), claims to the Employment Tribunal under the Act may not be brought after the end of the period of 3 months starting with the date of the act to which the complaint relates or such other period as the Tribunal thinks just and equitable. That period of three months is subject to provisions which extend it to take account of the mandatory early conciliation involving ACAS. Also, s 123(3) of the Act provides that conduct extending over a period is to be treated as done at the end of the period.

[124]There was no dispute that the practical effect of all those provisions in this case is that any complaint about an act done before 18 January 2023 would be out of time unless(i) it was part of conduct extending over a period which ended on or after that date or

(ii) we thought it was just and equitable to extend time.

[125]A distinction is drawn between a continuing act (i.e. a policy, rule, scheme, regime or practice that continues to be applied) and an one-off act that has merely continuing consequences. But in Commissioner of Police of the Metropolis v Hendricks

2003 ICR 530

, the Court of Appeal said that ‘policy, rule, scheme, regime or practice’ should not be treated as a complete statement of what amounts to a continuing act; the focus should be on the substance of the complaint. This was approved in Aziz v FDA

2010 EWCA Civ 304

, where the Court noted that, in considering whether separate incidents form part of an act extending over a period, one relevant but not conclusive factor is whether the same or different individuals were involved in those incidents.

[126]There is no requirement that the ‘conduct’ extending over a period for the purpose of S.123(3) must all relate to the same protected characteristic. Similarly, there is no reason why conduct extending over a period cannot involve a number of different types of prohibited conduct, such as a mixture of harassment and direct discrimination. It may be more difficult to establish that there has been discriminatory conduct extending over a period where the acts that are said to be linked relate to different protected characteristics and different types of prohibited conduct, but there is no absolute bar. (Worcestershire Health and Care NHS Trust v Allen

[2024] EAT 40

, para 13.)

[127]Unproven or non-discriminatory acts cannot be relied on as conduct extending over a period (South Western Ambulance Service NHS Foundation Trust v King

2020 IRLR 168

; Lyfar-Cisse v Brighton and Sussex University Hospitals NHS Trust and ors EAT 0100/19).

[128]So far as the discretion to extend time is concerned, it has been said that the exercise of the discretion is the exception not the rule (Robertson v Bexley Community Centre t/a Leisure Link

2003 IRLR 434

). But an extension does not require exceptional circumstances. In exercising the discretion a Tribunal may (not must) have regard to the checklist contained in S.33 of the Limitation Act 1980, as modified by the EAT in British Coal Corporation v Keeble and ors

1997 IRLR 336

. As summarised by the authors of the IDS Manual, this suggests the Tribunal consider the prejudice that each party would suffer as a result of the decision reached and have regard to all the circumstances of the case, in particular: the length of, and reasons for, the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the respondent has cooperated with any requests for information; the promptness with which the claimant acted once he or she knew of the facts giving rise to the complaint; and the steps taken by the claimant to obtain appropriate advice once he or she knew of the possibility of taking action. ACAS Code

[129]The ACAS Code of Practice on disciplinary and grievance procedures (“the Code” was issued under s 199 of the Trade Union and Labour Relations (Consolidation) Act 1992. Under s 207 of the same Act, although any failure to observe any provision of the Code does not of itself establish liability, any provision of the Code which appears to the Tribunal to be relevant to any question arising in proceedings shall be taken into account in determining that question. Discrimination generally

[130]The EqA prohibits discrimination on the grounds of various “protected characteristics”, set out at sections 5 to 18. An employer must not discriminate against (or harass or victimise) an employee by (amongst other things) dismissing them or by subjecting them to any other detriment (sections 39 and 40). There was no dispute here that the claimant was the second respondent’s employee within the meaning the Act. Nor was there any dispute that the respondents would be liable under s 109 for any contraventions of the Act done by other employees. The Tribunal’s jurisdiction to hear complaints about contraventions of the provisions prohibiting discrimination in employment is established by s 120.

[131]The Equality and Human Rights Commission Employment Code (“the EHRC Code” provides a detailed explanation of the EqA. The Tribunal must take into account any part it that appears relevant to any questions arising in proceedings (s 15 Equality Act 2006).

[132]We remind ourselves that discrimination may be sub-conscious. As Lord Nicholls said, in the context of a case about race discrimination, in Nagarajan v London Regional Transport

[1999] IRLR 572

: All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. It goes without saying that in order to justify such an inference the tribunal must first make findings of primary fact from which the inference may properly be drawn.

[133]S 136 of the EqA makes provisions about the burden of proof. If there are facts from which the Tribunal could decide, in the absence of any other explanation, that there was a contravention of the Act, the Tribunal must hold that there was a contravention, unless the respondent proves that that there was not a contravention. S 136 requires careful attention where there is room for doubt as to the facts necessary to establish discrimination, but has nothing to offer where the Tribunal is in a position to make positive findings on the evidence one way or another. The burden of proof does not shift where there is no evidence to suggest the possibility of discrimination (Field v Steve Pye and Co (KL) Ltd

[2022] EAT 68

). Guidelines on the application of s 136 were set out by the Court of Appeal in Igen Ltd v Wong

[2005] EWCA Civ 142

. We do not reproduce the thirteen steps of the guidance here, but we took account of all steps. One important point to note is that the question is whether there are facts from which a Tribunal could decide… It is not sufficient for the employee merely to prove a difference in protected characteristic and a difference in treatment. Something more is required (Madarassy v Nomura International Plc

[2007] EWCA Civ 33

). Unfair or unreasonable treatment on its own is not enough (Glasgow City Council v Zafar

[1998] IRLR 36

). If the burden of proof does shift, under the Igen guidance the employer must prove that the less favourable treatment was “in no sense whatsoever” because of the protected characteristic. Because the evidence in support of the explanation will usually be in the possession of the employer, Tribunals should expect “cogent evidence” for the employer’s burden to be discharged. Direct discrimination

[134]Under s 13(1) EqA read with s 9, direct discrimination takes place where because of a protected characteristic a person treats a claimant less favourably than that person treats or would treat others.

[135]By s 23(1), when a comparison is made, there must be no material difference between the circumstances relating to each case. The circumstances need not be precisely the same, provided they are close enough to enable an effective comparison: Hewage v Grampian Health Board

[2012] UKSC 37

. In many direct discrimination cases, it is appropriate for a Tribunal to consider, first, whether the claimant received less favourable treatment than the appropriate comparator and then, secondly, whether the less favourable treatment was because of a protected characteristic (in this case, race). However in some cases, for example where there is only a hypothetical comparator, these questions cannot be answered without first considering the “reason why” the claimant was treated as they were (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

;

[2003] IRLR 285

[136]The protected characteristic need not be the only reason for the treatment, provided it had a significant influence on the outcome (Nagarajan v London Regional Transport

[1999] IRLR 572

, HL). The case law recognises that very little discrimination today is overt or even deliberate; people can be unconsciously prejudiced. A person’s motive is irrelevant, as even a wellmeaning employer may directly discriminate. Harassment

[137]Under 26(1) EqA read with s 9, harassment related to, for example, race takes place where there is unwanted conduct related to race which has the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. In deciding whether the conduct has that effect the Tribunal must take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[138]In Richmond Pharmacology Ltd v Dhaliwal

[2009] IRLR 336

, the EAT said (at para 22): Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct… it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.

[139]A similar point was made by the EAT in Betsi Cadwaladr University Health Board v Hughes and others

[2014] EAT 0179/13

(at para 12): The word “violating” is a strong word. Offending against dignity, hurting it, is insufficient. “Violating” may be a word the strength of which is sometimes overlooked. The same might be said of the words “intimidating” etc. All look for effects which are serious and marked, and not those which are, though real, truly of lesser consequence.

[140]By operation of s 212(2), something which amounts to a detriment for the purposes of EqA does not include conduct which amounts to harassment. In cases where both direct discrimination and harassment are alleged, it will therefore usually be appropriate to consider first whether the conduct amounts to harassment and, if not, then to consider whether it amounts to direct discrimination. Victimisation

[141]By s 27 EqA, a person A subjects another person B to a detriment because B does a protected act (or because A believes that B has done or may do a protected act). One type of protected act is making an allegation (whether or not express) that A or another person has contravened the EqA. So generally speaking a complaint of, for example, age discrimination will be a protected act. There is an exception where the allegation is made in bad faith, but it was not suggested that exception applied in this case. Detriment does not generally include harassment (s 212(1)) but for these purposes does include dismissal. An employee suffers a detriment if, by reason of the act or acts complained of, a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

[142]The detriment need not have been solely or mainly because of the protected act. Rather, the question is whether the protected act had a significant influence on the employer’s decision, a significant influence being one which is more than trivial (Igen Ltd and ors v Wong and other cases

2005 ICR 931

; Villalba v Merrill Lynch and Co Inc and ors

2007 ICR 469

). Indirect discrimination

[143]By s 19 EqA:(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.

[144]The EHRC Code (para 4.5) says that the term “provision, criterion or practice” (“PCP”) should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions. In Ishola v Transport for London

[2020] EWCA Civ 112

, although the Court of Appeal accepted that the words ‘provision, criterion or practice’ were not to be narrowly construed or unjustifiably limited in their application, it considered it significant that Parliament had chosen these words instead of ‘act’ or ‘decision’. The words ‘provision’, ‘criterion’ and ‘practice’ all carry the connotation of a state of affairs indicating how the employer generally treats similar cases or how it would deal with a similar case if it occurred again. The Court also pointed out that a PCP must be capable of being applied to others. Although a one-off act or decision may amount to a PCP it is not necessarily one.

[145]The disadvantage referred to in ss (2)(b) is known as the group disadvantage. Not every person with the protected characteristic need be affected by the disadvantage. In order to test whether there is a group disadvantage, it may be necessary to construct a pool of people for comparison who are all affected by the PCP, some with the protected characteristic and some not. If those with the protected characteristic are significantly more negatively affected, that will be good evidence of the disadvantage. When making the comparison, the claimant’s group is restricted to those who have the same disability (by virtue of s 6(3) EqA).

[146]It will be for the claimant to establish the discriminatory elements in ss (2)(a) to 2(c). In contrast, the burden is on the employer to show justification under ss (2)(d). In order to establish this “objective justification”, the employer will need to show:a. The aims(s) of the PCP.

b. That the aim(s) was/were legitimate.

c. That the PCP was proportionate to achieving the aim(s).

[147]The clearer the disadvantage, the more compelling the justification will need to be. The Tribunal will consider whether or not the same aim could have been achieved by less discriminatory means. The balancing exercise will involve careful consideration of the evidence, including the particular business needs of the respondent. Reasonable adjustments

[148]The requirements of the duty to make reasonable adjustments are set out in s 20 EqA and, by s 21, a failure to comply with the duty amounts to discrimination. For the purposes of this case, the duty applies where a PCP puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled. The disadvantage must be linked to the disability. The duty is to take such steps as it is reasonable to have to take to avoid the disadvantage. “Substantial” means “more than minor or trivial” (s 212 EqA). Paragraph 6.8 of the EHRC Code says that the duty to make reasonable adjustments applies at all stages of employment including dismissal.

[149]So far as the burden of proof is concerned, it is for the claimant to establish that the duty has arisen and that there are facts from which it could reasonably be inferred, absent an explanation, that it has been breached. Demonstrating that there is an arrangement causing a substantial disadvantage engages the duty, but it provides no basis on which it could properly be inferred that there is a breach of that duty. There must be evidence of some apparently reasonable adjustment which could be made. It will then be for the respondent to show that it did not fail to comply with the duty. (Project Management Institute v Latif

UKEAT/0028/07

.) Unfair dismissal

[150]Section 94 of the Employment Rights Act 1996 “ERA” confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111. The employee must show that he was dismissed by the employer (see s 95 ERA), but in this case the respondent admits that it dismissed the claimant.

[151]S 98 ERA deals with the fairness of dismissals in two stages. First, the employer must show that it had a potentially fair reason for the dismissal within section 98 (1) and (2). Second, if the employer shows that it had a potentially fair reason for the dismissal, the Tribunal must consider, without there being any burden of proof on either party, whether the respondent acted fairly or unfairly in dismissing for that reason.

[152]So far as the first stage of fairness is concerned, S 98 ERA provides, so far as is relevant:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it— … (b) relates to the conduct of the employee…

[153]So in this case it is for the respondent to prove that the principal reason for the claimant’s dismissal was misconduct.

[154]The second stage of fairness is governed by s 98 (4) ERA: (4) … the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.

[155]In deciding fairness, we therefore must have regard to the reason shown by the respondent and to the resources etc. of the respondent. In general, the assessment of fairness must be governed by the band of reasonable responses test set out by the EAT in Iceland Frozen Foods Ltd v Jones

1983 ICR 17

. In applying s 98(4), it is not for us to substitute our judgment for that of the employer and to say what we would have done. Rather, we must determine whether in the particular circumstances of this case the decision to dismiss the claimant fell within the band of reasonable responses open to a reasonable employer.

[156]In a misconduct case, the Tribunal starts with the test set out by the EAT in British Home Stores Ltd v Burchell

1980 ICR 303

. Broadly, the question is whether the employer entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. The employer must show that:a. it believed the employee guilty of misconduct;

b. it had in mind reasonable grounds upon which to sustain that belief; and

c. at the stage at which that belief was formed on those grounds, it had carried out as much investigation into the matter as was reasonable in the circumstances.

[157]In considering (b) and (c) above it is however important to note that the Burchell test was formulated when the burden was on the employer to prove reasonableness – now that is no longer the case. The Birchall test also applies to the question whether it was reasonable for the employer to treat the reason as a sufficient reason to dismiss (although again the burden is not on the employer at that stage). In Sainsbury’s Supermarkets Ltd v Hitt [2003] I.C.R. 111 the Court of Appeal held that the range of reasonable responses approach applies to the conduct of investigations as much as it applies to other procedural and substantive aspects of the decision to dismiss for a conduct reason.

[158]By operation of s 207 Trade Union and Labour Relations (Consolidation) Act 1992, any failure to take account of the ACAS Code of Practice on Discipline and Grievance Procedures will be relevant to the issue of the fairness of the dismissal. In summary, the Code provides that employers must normally:a. carry out an investigation to establish the facts;

b. inform the employee of the problem;

c. hold a meeting with the employee to discuss the problem;

d. allow the employee to be accompanied at that meeting;

e. decide on the appropriate action;

f. provide the employee with an opportunity to appeal the decision.

[159]It will also be relevant whether the employer followed their own procedures. Other points relevant to whether the employer acted within the band of reasonable responses may include: the nature of the allegations, the position of the employee and the size and resources of the employer. A meticulous investigation of the kind that would be done in a criminal enquiry is not required.

[160]In the event that the dismissal was unfair, we would go on to consider whether any adjustment should be made to the compensation on the grounds that if a fair process had been followed by the respondents in dealing with the claimant’s case, the claimant might have been fairly dismissed, in accordance with the principles in Polkey v AE Dayton Services Ltd

[1987] UKHL 8

. We would also go on to consider whether any adjustment should be made to the compensation on the basis of “contributory fault”, applying s 123(6) ERA: “Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the [claimant], it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.” CONCLUSIONS Time limits

CONCLUSIONS

[161]The complaint about the 2018 “security breach” incident did not amount in our judgment to part of conduct extending over a period. Although it related broadly to the claimant’s need to use the toilet, as did part of the complaints in 2023, there was a five-year gap between the incidents, which involved different managers on different sites. The fact that the claimant raised the 2018 incident during the 2023 disciplinary process does not change that. We also note the claimant’s own evidence that the 2018 incident was taken up with ACAS and resolved.

[162]The events in between 2018 and 2023 which the claimant sought to rely on, i.e. the complaints about being required to do heavy work between 2019 and 2021 (including the reasonable adjustments complaint) were not in any way linked to the events 2018 or 2023. The claimant’s complaints about 2019 to 2021 were about fundamentally different things – being required to do heavy lifting, rather than suffering detriment etc. for using the toilet. They involved different people in different places. The claimant simply saying they were about his age, race or disability was not sufficient in our judgment to establish a link, let alone conduct extending over a period. Even if the 2019 and 2021 events could be said to amount to conduct extending over a period (which we doubt given the time in between them) that period ended in 2021.

[163]If, as we have found, none of the events relied upon before 2023 were part of conduct extending over a period, the claimant would only be entitled to rely on them if the complaints had been made within such period as we think just and equitable. Given the considerable lapse of time, the fact that the allegations concerned totally different facts and so would potentially require a whole new set of witnesses to cast their minds back four or more years, and the lack of any reason whatsoever being offered for the failure to make the complaints in time, the complaints about events before 2023 were not made within such period as we think just and equitable. We consider that the respondent would be significantly prejudiced if it had to defend the claims after all that time. This is not outweighed by the prejudice to the claimant, who would still be able to pursue his principal complaints. Effect of our decision on time limits

[164]Our decision on time limits leaves the following complaints to be determined:a. Direct age, race and/or disability discrimination and/or harassment as set out at para 7(d) and (e) above, relating only to the events of 26 and 27 January, the investigation and disciplinary processes and the dismissal.

b. Indirect discrimination and/or breach of the duty to make reasonable adjustments as a result of a PCP, applied on 26 and 27 January, of requiring the claimant only to use the toilet at break times.

c. Victimisation for the 28 March 2023 grievance and for starting early conciliation.

d. Unfair dismissal. Discrimination and harassment

[165]The claimant did not produce any evidence about another colleague who was not disciplined for taking comfort breaks (and of course the claimant was not actually disciplined for taking comfort breaks). Otherwise, we do not accept that the claimant’s colleagues were valid comparators (either for the purposes of s 23 or as evidential comparators) for the purposes of the direct discrimination complaints. There were material differences between the claimant and his colleagues. There was simply no evidence that they were taking unusually long (or frequent) toilet breaks. None of them was disciplined for making racially offensive remarks, but that was because no such allegation was made against them. The claimant was not the only person subjected to false allegations because he was not in fact subjected to false allegations.

[166]Given that we have found that the claimant did make the remarks he was alleged to have made, the fact that no Asian employee complained about them has no logical relevance to whether the claimant was subjected to discrimination. We were presented with no evidential basis whatsoever for the claimant’s contention that the number of black employees employed by both respondents had reduced over the past several years as black people have chosen to leave the workplace, and this contention was in any case linked to the complaint about the claimant having to do heavy work which we decided was out of time.

[167]We have found that a number of things relied upon by the claimant as acts of harassment or direct discrimination simply did not happen. These are the events set out at paras 7(d)(i) to 7 (d) (iii) and 7 (e)

(ii) to 7 (e)(iii). The following allegations are also not made out, because although the accusations/allegations about which the claimant complains were made, they were not, as the claimant asserted, false: 7 (d)(v), 7 (e)(iv).

[168]One qualification to the above is that it is correct to say that the claimant was not sent Mr Dobe’s statement at the disciplinary stage (though he was sent the incident report which, as we have found, was completed by Mr Dobe and the contents of that were summarised for the claimant by Mr Mullen). The explanation for this appears to us to be that nobody kept a copy. Not sending the statement to the claimant was not therefore a deliberate act and so cannot have been because of or related to any of the claimant’s protected characteristics.

[169]This leaves three areas to be considered, which we now consider in turn below. Allegation 7 (d) (iv): Jason Dobe and Ashley Buffin reported the claimant for taking frequent breaks to use the toilet (twice outside his allotted break time) and get drinking water, in order to “beef up” up the allegations which follow.

[170]The claimant’s breaks were “reported” in two senses only. First, in the incident report Mr Dobe made, which made clear that the complaint was about the lengths rather than the frequency of the breaks. As we have said, there was no evidence that the lengths of the breaks were related to the claimant’s disabilities. Second, in the accounts Mr Dobe and Miss Buffin gave as part of the disciplinary process. On the facts we have found, it was entirely reasonable for those “reports” to have been made. We find they were made in good faith and were not made to “beef up” the allegations. Further, Mr Dobe took no issue with the claimant taking breaks to get water.

[171]In those circumstances, although the conduct was unwanted, it was not in our judgment related to any of the claimant’s protected characteristics. It was related simply to what Mr Dobe and Miss Buffin observed; they made the “reports” because of what they observed. What they had observed – the long breaks – was not related to the claimant’s disability (not to any other protected characteristic). The reports were not made with the purpose of violating the claimant’s dignity nor creating an intimidating, hostile, degrading, humiliating or offensive environment for him. We also find that the reports did not have that effect, even taking into account the claimant’s perception of events. At its highest, the claimant was being questioned about taking unusually long toilet breaks, in the context that there was no medical need for long breaks, i.e. no reason linked to his disability and in the context where, as we have found, the claimant had been given the opportunity – which he did not take up – to explain any need for long breaks in a discrete manner. The “reporting” was done in good faith and in an entirely appropriate manner.

[172]We further find that the ”reports” had nothing whatsoever to do with the claimant’s age, race or disability. No Tribunal could decide, on the basis of the facts as we have found them, that there was discrimination here, even in the absence of an explanation. (The fact that the allegations were true is not an explanation, it is a primary fact.) The claimant was not in our judgment treated any differently to how someone without his protected characteristics but otherwise in the same circumstances would have been treated. Allegation 7 (e)(i): Joanne McLaughlin subjected the claimant to false allegations of making racial comments, insubordination and irrelevant historical allegations.

[173]In her written and oral communications McLaughlin did not subject the claimant to false allegations of making “racial comments”, nor did she subject the claimant to any historical allegations, irrelevant or otherwise. (Though as we have already observed, the historical allegations were raised by the claimant during the disciplinary process and we are satisfied that, when Mr Mullen quite properly considered them, they did not play any material role in his decision to dismiss the claimant.) It is correct to say that Ms McLaughlin’s letter of 1 February 2023 included the following allegation: “You acted insubordinately by refusing to undertake the reasonable requests of a Royal Mail manager.” So in that sense the claimant was “subjected” to an allegation of insubordination. This was a reflection of the incident report made (as we have found) by Mr Dobe, in good faith, which we set out above at para 61, where he said the claimant’s behaviour was belligerent and he had refused to work. In the circumstances it was in our judgment perfectly reasonable for Ms McLaughlin to have passed that allegation on to the claimant, to give him the opportunity to answer it. As we have already observed, Mr Mullin chose not to formally examine the allegation as a “charge”, no doubt because is was trivial in comparison to the “charges” which were pursued.

[174]In all of those circumstances no Tribunal could conclude that Ms McLaughlin putting the allegation of insubordination to the claimant was an act of discrimination. There is no reason to conclude that anyone not sharing the claimant’s protected characteristics but otherwise in the same circumstances would have been treated any differently. Nor was Ms McLaughlin’s conduct, however unwanted, related to the claimant’s protected characteristics. Further, it did not have any of the purposes or effects listed in s 26(1) EqA. Allegations 7 (e) (v) and 7 (e) (vi): Witness statements were not obtained from every person present on 26 and 27 January 2023; CCTV was not viewed; the claimant was not provided with a list of staff who had been on shift despite his requests; The claimant was dismissed.

[175]These allegations are factually correct – statements were not obtained, CCTV was not viewed, the claimant was never given the names of the other members of staff and the claimant was dismissed. The person responsible for the relevant decisions was Mr Mullen (though we accept that he did ask Angard for a list of names, it should have been obvious that he was never given a complete list; further requests could have been made, or the names obtained some other way). When we consider unfair dismissal below, we set out at some length why we consider that the dismissal was unfair. In short, the decision not to view CCTV was not unreasonable but the respondent could and should have made efforts to get evidence from the other people in the room. It follows that the claimant should also have been provided with those people’s names when the respondents, through Mr Mullen, decided not to obtain statements. Could a Tribunal properly conclude, in the absence of any other explanation, that there was discrimination here? We keep in mind it is unusual to find direct evidence of discrimination. In this case there were no comparators, so we had to consider whether there was a difference in treatment, in the sense that someone without the claimant’s protected characteristics would have been treated any differently. While at this stage we do not take into account any explanation offered by the respondent, clearly we must take into account the decisions on their face, including the written reasons given by Mr Mullen. While we conclude below that the decisions not to interview people and to dismiss the claimant were outside the range of reasonable responses, it is well established that unreasonable conduct alone cannot properly lead to an inference of discrimination. The decision-maker was called to give evidence and did not provide false or inconsistent (as opposed to inadequate) explanations. There is nothing else in this case in our judgment that could lead a Tribunal to conclude that Mr Mullen reached his decisions for any reasons other than those he set out in writing. Put another way, we conclude that Mr Mullen’s decisions were made in no sense whatsoever because of the claimant’s age, race or disability.

[176]Miss Worfell upheld Mr Mullen’s decision on those points. It was not suggested to her that her decisions had anything to do with the claimant’s age, race or disability, but for the avoidance of doubt we make the positive finding that they did not. Indirect discrimination and reasonable adjustments

[177]The PCP which the claimant relied upon both for the purposes of the indirect discrimination and reasonable adjustments complaints was not in fact applied to the claimant. There was no evidence that the claimant was required only to use the toilet at break times. The complaints of indirect discrimination and failure to make reasonable adjustments fail on that basis alone.

[178]At its highest, all that happened was that Mr Dobe asked the claimant about the lengths of the breaks (having previously given him an opportunity to discretely say whether he had any special requirements) and the claimant chose not to offer an explanation; and that Mr Dobe, and later Miss Buffin too, told the respondents that the claimant was taking breaks that were too long. Even if the length of the breaks was related to the claimant’s disability, about which there was no evidence, there was no suggestion that Mr Dobe in fact prevented the claimant from taking the breaks. Although the initial disciplinary notification mentioned the breaks, the eventual disciplinary process did not consider them. So even if there was a PCP that could be expressed in a different way to the one on which the claimant relied, it is hard to see how it could have put the claimant at a disadvantage. Victimisation

[179]Submitting the March 2023 grievance was plainly a protected act – it contained express allegations that the respondent had, amongst other things, subjected the claimant to discrimination because of his age. So too was the claimant going to ACAS.

[180]The claimant was subjected to the detriment of being dismissed. The decision-maker Mr Mullen was aware that the claimant had done the protected act of raising the grievance, though there does not appear to be any suggestion that he knew about the claimant contacting ACAS. Was Mr Mullen’s decision because of the protected act, or for wholly other reasons? For the reasons we have already set out, we find that Mr Mullen’s decision was not because of the protected act (whether consciously or subconsciously). There was therefore no victimisation. Unfair Dismissal

[181]In our judgment, on the basis of our findings above the respondents (strictly, the second respondent) have proved that the reason for dismissal was misconduct. We must therefore turn to whether the dismissal was fair or unfair.

[182]A number of potential sources of unfairness were raised during the course of the case. As we have already said, the claimant did not specifically suggest that the decision to suspend him was unfair but, for the avoidance of doubt, we consider that it was fair, subject to any consideration of delay. On the point of delay, clearly the process took a considerable length of time. Looking at Mr Mullen’s decision, it appears that there was a delay of roughly three months between him ending work on the case and delivering a decision. The time between the allegation first being made and the claimant being informed of the decision to dismiss him was about nine months. We do accept that a significant part of the delay was because of Mr Mullen’s efforts to obtain the claimant’s comments or submissions in writing, which the claimant provided over the course of a number of months. We also accept that Mr Mullen’s workload would of course have included a considerable amount of other work. Whilst it clearly would have been better for everyone had the decision been delivered more quickly, we do not consider that that delay materially added to the unfairness in the case. (All of that said, all through the nine months the claimant was not paid as he was not allowed to work – that may be something that is relevant when it comes to remedy.)

[183]For the reasons we have set out already, we also consider that the claimant was given a fair opportunity by Mr Mullen to set out his side of the story. The claimant provided numerous detailed written submissions for Mr Mullen and, we find, did have the opportunity to respond orally in that first interview. We come to that conclusion even with the benefit of hindsight, knowing what we now know about the claimant’s need for an intermediary. But the fairness of the procedure at the time has to, in our judgment, be considered in light of the respondent’s knowledge at the time. The respondent’s knowledge was that the claimant said he had difficulty communicating orally but that he was content that he could communicate adequately by email. Having viewed all of the claimant’s written submissions, it is clear to us that he was well able to get his point across to Mr Mullen.

[184]We also accept that, although the information provided to the claimant initially was sparse, by the time of the claimant’s first meeting with Mr Mullen he had been provided with sufficient information about the alleged misconduct as to enable him to prepare to answer the case. The evidence was also read out to him or summarised in the first interview with Mr Mullen.

[185]We have already explained why (albeit with some hesitation as to some of the reasons given) it was ultimately reasonable for the respondents not to have sought CCTV evidence.

[186]The ACAS Code says that in a misconduct case, where practicable, different people should carry out the investigation and disciplinary hearing. This appears to have been complied with in this case in the sense that the statements and the claimant’s first account were taken by people other than Mr Mullen.

[187]We do however consider that the respondent’s failure to interview other potential witnesses led to significant unfairness in the procedure adopted in this case. Of the eleven people in the room (i.e. the claimant and eight other casuals, Mr Dobe and Miss Buffin) it appears that only six of them provided some form of account. There was simply no explanation provided to us why the five other people in the room did not provide statements. We do not even know whether they were even asked to do so. Detailed evidence was provided by Mr Dobe and Miss Buffin. Rather less detailed evidence was provided by the other three witnesses, none of whom said that the claimant had made racially offensive remarks. Only one of those three witnesses was spoken to during the course of Mr Mullen’s disciplinary process. Given these inconsistencies and the seriousness of the allegation made against the claimant, an allegation that was sufficiently serious in essence, to end his career, we do not consider that it was reasonable for the respondent not to have asked others in the room what they saw and heard. In a similar vein, the fact that the claimant was not told who the other people in the room were in effect deprived him of the opportunity to call witnesses in his defence.

[188]We are conscious that our decision here might be thought to jar somewhat with the fact that we have ourselves made findings of fact about what happened on 27 January without any further witnesses. But the Tribunal process and the disciplinary process are different in two significant respects. First, in the disciplinary process the decision-maker had control over which witnesses were spoken to; in contrast we are restricted to making findings on the evidence which the parties present to us. Second, our decision is made on the basis of sworn evidence subjected to cross-examination.

[189]Further unfairness was added by the absence of any recording of the first accounts given by Mr Dobe to Mr Miller and to Ms Williams and the apparent loss of Mr Dobe’s original statement. It is not clear how statements came to be taken in the first place from some of those present but not others. Nor is it clear how the witness Ms Bodakuntla came from saying nothing about racially offensive remarks in her statement to confirming by email to Mr Mullen that she had heard such remarks. Given the seriousness of the allegations, better records should have been kept.

[190]Finally, as we have set out above, there were significant inconsistencies in and between the accounts given by Mr Dobe, Miss Buffin and the other three witnesses. It would have been one thing for the decision-makers to have considered those inconsistencies and concluded, nevertheless, that they accepted (say) Miss Buffin’s account. But those inconsistencies were simply not identified, so they were not addressed by Mr Mullen, nor by Ms Worfell on appeal. Indeed, none of the failures we list above were cured on appeal, although the appeal did not introduce any further unfairness.

[191]At para 4 of the Code, one element of a fair process is said to be that employers should carry out any necessary investigations, to establish the facts of the case. What is necessary will be dependent on the nature of the allegation and the respondent’s size and resources, amongst other things. Ultimately, we conclude that given the gravity of the allegations and the relative ease with which the respondent could have avoided or rectified the failures we have identified, the respondents did not carry out “necessary” investigations.

[192]Turning to the Burchell test, we accept that the respondents genuinely believed that the claimant was guilty of misconduct. However given the failures we have identified above it is questionable whether they had in mind reasonable grounds upon which to sustain that belief. Whether or not that is right, at the stage at which the belief was formed the respondents had not carried out as much investigation into the matter as was reasonable in the circumstances.

[193]We take into account that the process must be viewed as a whole and that the law does not require a perfect process. It is not for us to substitute our judgment for that of the employer; it is immaterial what decision we would have made. The band of reasonable responses applies as much to the investigation as it does to the decision. Given the respondent’s size and resources, the failures we have identified meant the investigation fell outside the band of reasonable responses. The significant failures we have addressed above taken together mean that in our judgment no reasonable employer would have concluded, on the basis of the investigation that had been conducted, that the claimant had said what he was alleged to have said. It follows that the dismissal was in our judgment unfair. Concluding remarks

[194]The claimant should understand that there is a significant chance that, even though he has succeeded in his complaint of unfair dismissal, the damages we award will be significantly reduced from the sum he seeks. Given our findings of fact in this case there is clearly an issue about whether, had a fair process been followed, the misconduct alleged would still have been found to have happened (though we appreciate that the claimant might suggest that in the absence of material witnesses that can only be speculation). If the alleged misconduct had been proved as part of a fair process, we consider that it would have been well within the band of reasonable responses for the respondent to have dismissed the claimant, taking into account the gravity of the misconduct and in particular its effect upon those who heard it and the likely effect on those who could have heard it. Given all of this, we consider that it would be appropriate to give the parties the opportunity to consider these written reasons, make further submissions and, if they and we think it necessary, to call further evidence, in order to address the Polkey point in this case before we make a decision on remedy for unfair dismissal. Employment Judge Dick will therefore issue a separate set of case management orders relating to fixing and preparing for a remedy hearing. Approved by:

CONCLUSIONS

[1]By rule 68(1), the Tribunal may, on the application of a party, reconsider any judgment where it is in the interests of justice to do so. A judgment under reconsideration may be confirmed, varied or revoked. Rule 69 requires that, except where it is made during a hearing, an application for reconsideration must be made in writing within 14 days of the date on which the judgment, or the written reasons for the judgment, were sent to the parties. Upon receipt of an application made under rule 69, rule 70(2) says that if the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked, the application must be refused. This consideration will be by a judge alone even if the original decision was made by a full Tribunal. It is only if the Tribunal does not so consider that the parties are invited to make written representations, following which the Tribunal then decides whether to conduct a reconsideration at a hearing or on the papers.

[2]In this case, the application for reconsideration of the judgment was not made within the 14 days required by rule 69. The claimant says that although the judgment records that it was sent on 23 June, he did not in fact receive it till 28 July. This does not account for why it took the claimant until 21 August to seek reconsideration. Nevertheless I am prepared, taking account of the fact that the claimant required an intermediary to assist him at the main hearing, to consider the application out of time. I treat the 15 July and 1 September documents as one application.

[3]In my judgment there is no reasonable prospect of the Tribunal's judgment Case No: 3307745/2023 being varied or revoked, having in mind the test which the Tribunal would have to apply upon reconsideration, namely whether it is necessary in the interests of justice. I therefore refuse the application for reconsideration, for the following reasons.

[4]While I acknowledge the amount of work that the claimant put in to his written application, I do not consider it appropriate to respond to the application point by point. The application identifies no errors of law said to have been made by the Tribunal. Instead, it largely raises factual issues which could have been, and in some cases were, raised before the Tribunal. It also seeks to relitigate applications that were dealt with, or could have been dealt with, at the hearing, for example concerning witness orders (see para 22 of the written reasons), without giving any good reasons why the applications should be reconsidered. Contrary to the assertion made in the application, the claimant was not deprived of the opportunity to clarify particular facts at the main hearing. He gave oral evidence with the aid of an intermediary and of various other adjustments to the usual Tribunal procedure (see para 16 of the written reasons) and was permitted to deal with issues he had not included in his witness statement (para 17).

[5]The application essentially sets out why the claimant disagrees with the factual findings of the Tribunal. Having sat on the Tribunal which decided the case, nothing said there leads me to conclude that there could be any question of it being in the interests of justice to reconsider the case. Approved by:

CONCLUSIONS

[1]It is just and equitable to reduce the basic award payable to the claimant by 75 % because of the claimant’s conduct before the dismissal.

[2]The second respondent shall pay the claimant a basic award of £1,687.88 (that being the appropriate amount following the 75% reduction referred to above).

[3]There is a 100 % chance that the claimant would have been fairly dismissed in any event. There is therefore no compensatory award.

[4]The claimant caused or contributed to the dismissal by blameworthy conduct and it would have just and equitable to reduce any compensatory award payable to the claimant by 75 %.

[5]The Employment Protection (Recoupment of Benefits) Regulations 1996 do not apply to this award. The following is the decision of Employment

Judge Dick alone:

[6]The claimant’s application for reconsideration of the above judgment is refused under rule 70(2). There is no reasonable prospect of the judgment being varied or revoked.

INTRODUCTION

[1]Liability in this case was decided by way of a reserved judgment and reasons sent to the parties on 21 June 2025. Employment Judge Dick refused the claimant’s request to reconsider that decision under rule 70(2) in a judgment and reasons place on 30 September 2025, but unfortunately that hearing had to be adjourned as an intermediary had not been booked for the claimant. The remedy hearing eventually did take place on 19 November 2025. The Tribunal gave an oral judgment and reasons that day. Written reasons were not requested at the hearing, but the claimant sent a request for reasons by email that evening. This request was passed to Employment Judge (“EJ”) Dick on 27 November 2025. Before EJ Dick had had the opportunity to prepare a written judgement and reasons, the claimant sent in his request, on 1 December 2025, for a reconsideration of the judgment on remedy. EJ Dick decided to deal with the judgment, reasons and reconsideration request in one document. Although that resulted in some delay in the claimant receiving the written judgment, EJ Dick considered that it was desirable to do so in order to avoid duplication of work. EJ Dick nevertheless apologises for the time it had taken to prepare this final document, due in part to holiday periods and to pressure of other work.

[2]In his request for reasons the claimant also complained that he had not received the reserved decision on liability until some time after the date the Tribunal recorded it had been sent. EJ Dick referred that point to the Tribunal’s administration and these reasons do not deal with it.

[3]The written request for reasons contained a request that the reasons deal with a number of specified points, some of which were plainly based upon misunderstandings of what the Tribunal had actually decided. For example, the claimant wrongly stated that a 95% deduction had been applied for contributory fault. The claimant also asserted that the Tribunal had concluded that his “belief that the two main witnesses had fabricated their allegations” amounted to misconduct and/or justified reducing the damages, when in fact the Tribunal had decided no such thing. How the claimant had arrived at such fundamental misunderstandings mere hours after the hearing is unclear given that he had the assistance of an interpreter (who only needed to help on occasions given the high standard of the claimant’s English) and an intermediary throughout the process. The claimant was not obliged to provide grounds for the request for reasons and these written reasons do not attempt to cover every point in the claimant’s request. They simply set out the reasons for the decision. Procedure

[4]We were provided with a 224 page bundle for the hearing and a number of other documents which included various written submissions from the claimant, a schedule and counter-schedule of loss. There was also a new witness statement from Mr Mullen, whom the respondent decided not to call. We did not need to decide whether to given Mr Mullen’s unsworn evidence any weight since, in the event, there was nothing in his statement which assisted us in making any of the decisions we needed to make. The claimant gave evidence and was crossexamined on behalf of the respondent. Further findings of fact

[5]We have of course already made a number of relevant factual findings in our decision on liability. Any further findings of fact we make, as last time, are on the balance of probabilities.

[6]The first set of factual findings concern a week’s pay for the claimant. There was no dispute that we should take an average of the gross pay that the claimant had received over the 12 weeks nearest to his dismissal for which he had received any pay (e.g. if he did not receive any pay in week 12, week 13 was instead taken into account). That calculation came to £688.33, which is a little over the applicable statutory cap which, on the date of dismissal was £643, so we take the claimant’s weekly wage, applying the statutory cap, to have been £643.

[7]The next point in issue was how many years the claimant was in continuous employment. In short, we accept the respondent’s submission that he was in continuous employment for seven full years. For each of those, the claimant was not below the age of 41. The claimant suggested we should take into account a longer period than that, originally asserting that he had worked for Royal Mail since Christmas 2013 and that he was continuously employed since then. But, in fact, he accepted that that engagement for Royal Mail had been on a casual basis and that there were significant breaks, so we did not need to decide whether the respondent was right or not to say the claimant was not in fact an employee from 2013. The point is that he was only in continuous employment from either December 2015, as the claimant says, or January 2016, as the respondent says, and, in fact, the result is the same whichever of those is correct. The claimant was continuously employed for seven years (as in fact is made clear at paragraph 31 of the judgment on liability).

[8]As to the disciplinary process, we had already made a factual finding that the respondent acted reasonably in suspending the claimant. We further find that the respondent was entitled to do so without paying the claimant during the period of suspension, because there was no contractual obligation to offer the claimant any particular number of hours each week or month.

[9]We have already found, on the balance of probabilities, that the claimant did the conduct that the respondent alleged against him and that there was no conspiracy against him (see in particular paragraphs 86 and 87 of the liability judgment). On the basis of those findings and in particular that the claimant did do the conduct that was alleged, even given the procedural failures in this case, in our judgment, it is still appropriate to come to the conclusion that, as a matter of fact, the claimant was wholly to blame for his dismissal. That does not necessarily mean that we must make a 100% reduction for contributory fault; we deal with the appropriate reduction in our Conclusions below.

[10]For the reasons set out under the heading Conclusions below, we considered that it was appropriate to reduce any compensatory award by 100%. It was therefore not strictly necessary for us to make any further factual findings relevant to the compensatory award, but we do think it appropriate to record the following.

[11]It follows from what we have decided so far about the respondent’s right to suspend the claimant without pay, that any compensatory period would have to start from 6 October 2023, in other words, the date of termination. We accept on the basis of the claimant’s evidence that he made reasonable efforts to find new work from 6 October, or to put it more accurately, the respondent has not disproved that. As the claimant told us, he got to the point where he was offered work (by DHL) having applied around April/May 2024 and he was asked to come in to sign some papers in August. We accept, given the claimant’s personal circumstances, that it was reasonable that it took him 10 months to find that alternative work. So, we find that the respondent has not proved a failure to mitigate loss up to August. If not for reductions under Polkey (see below) or for contributory fault, we would have found that the claimant would be entitled to compensation up to August 2024. The reason the compensation would have stopped in August is as follows. The claimant’s evidence was that he had decided not to go in and sign the papers relating to the offer of employment in August. As best as we could understand it, he was saying that he made that decision because he had been led to expect an offer of settlement from this respondent. We do not accept that that would have been a good reason not to take on alternative work. The claimant also suggested that he stopped work to prepare for these proceedings. Again, we do not accept that it would have been reasonable to do that in the circumstances. We accept the respondent’s submissions that what in fact happened was what the claimant himself had said in some of his own written submissions (albeit that it conflicts with his later assertions that he was and remained willing to work). As the claimant had set out in his written submissions, he effectively retired in order to care for various members of his family. We do not need to set out in this public document all of the difficulties that his family members faced but, even if the claimant, as he says, was planning on working in the evenings and caring for those people during the day, that simply, in our judgment, would not have been a sustainable arrangement, so we would have found, even without Polkey and contributory fault, that the claimant would not have been entitled to any compensation past August 2024. Law Reinstatement or reengagement

[12]By ss 112 to 114 of the Employment Rights Act 1996 (“ERA”) the Tribunal may make orders for reinstatement or reengagement if a claimant asks it to. An order for reinstatement is an order that the employer shall treat the claimant in all respects as if they had not been dismissed – the claimant is given their original job back. An order for reengagement is an order that the claimant be given a comparable job. Note the use of the word may in s 112(3) – the Tribunal has a discretion whether to make the orders, i.e. it is not obliged to make the orders. By s 116, in exercising its discretion the Tribunal must consider whether it is practicable for the employer to comply with the order and, where the complainant caused or contributed to some extent to the dismissal, whether it would be just to make the order. If no order is made for reinstatement or reengagement, the Tribunal must go on to make an award of compensation. Compensation for unfair dismissal

[13]The award for compensation for unfair dismissal is assessed under two heads on the principles set out at ss 118 to 126 of ERA.

[14]The first head is the basic award, which is calculated on a formula based on age, length of service and gross weekly pay. A week’s pay is subject to a statutory maximum (“cap”).

[15]The second head is the compensatory award, generally calculated net of tax. In this case, applying the principles set out below, we decided that it would be appropriate to reduce any compensatory award to zero. It was therefore unnecessary for us to calculate what the compensatory award would have been and so we do not set out here the law relating to such issues as past and future loss, mitigation of loss, uplifts for breach of the Acas code etc. Similarly, the Recoupment Regulations (i.e. the Employment Protection (Recoupment of Benefits) Regulations 1996) apply only to the part of a compensatory award relating to immediate loss. Since there is no compensatory award, the regulations could not apply in this case. Reduction of awards

[16]In accordance with the principles set out in Polkey v AE Dayton Services Ltd

[1987] UKHL 8

, the Tribunal may make an adjustment to the compensatory aspect of the award for damages on the grounds that if a fair process had been followed by the respondent in dealing with the claimant’s case, the claimant might still have been fairly dismissed. The principle applies whether a dismissal is procedurally or substantively unfair, since the distinction between the two is difficult to draw in practice. The question is what the particular employer would have done, not what a hypothetical fair employer would have done. The burden of proving that an employee would have been dismissed in any event is on the employer.

[17]Separately to Polkey, adjustments may also be made to the basic and compensatory elements of any award on the basis of “contributory fault”. S 122(2) deals with the basic award: “Where the tribunal considers that any conduct of the complainant before the dismissal … was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.” S 123(6) ERA deals with the compensatory award: “Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”

[18]In Steen v ASP Packaging Ltd

[2014] ICR 56

at para 11 the EAT said that when the Tribunal considers reducing the basic and compensatory awards on account of the claimant’s conduct it must:(1) identify the conduct which is said to give rise to the possible contributory fault;

(2) having identified that, ask itself whether that conduct is blameworthy;

(3) ask whether the blameworthy conduct identified caused or contributed to the dismissal and

(4) decide what the extent of the reduction should be. As the same case makes clear, there is no question of considering the band of reasonable responses – it is the Tribunal’s view alone which matters. The EAT also said that a finding that a claimant was 100% responsible for his dismissal, and that it would therefore be just and equitable to reduce compensation by that amount (i.e. to zero), would be unusual (para 17) or exceptional (para 18) but was permissible.

[19]In Hollier v Plysu Ltd

1983 IRLR 260

the EAT had suggested (and the Court of Appeal implicitly agreed at para 18) that the contribution should be assessed broadly and should generally fall within the following categories: employee wholly to blame (100% reduction); employee largely to blame (75%); employer and employee equally to blame (50%); employee slightly to blame (25%). A finding that an employee’s conduct is the sole cause of his or her dismissal will not inevitably result in a zero award; a Tribunal might still have to modify the percentage reduction in light of what is just and equitable (Lemonious v Church Commissioners

UKEAT/0253/12/KN

[20]In Rao v Civil Aviation Authority

[1994] IRLR 240

the Court of Appeal held that a Tribunal is entitled to reduce a compensatory award both for contributory conduct (under what is now s 123 ERA) and to reflect a finding that if a fair procedure had been followed then there was a chance that dismissal would still have happened (i.e. a Polkey reduction). The deduction under the Polkey principle may very well have a significant bearing on what further deduction should made for contributory conduct, so the Tribunal should first apply the Polkey principle and then consider contributory conduct. Since the deduction made under Polkey could affect what was the just and equitable deduction from the compensatory award for contributory conduct, the latter would not necessarily be the same as any deduction from the basic award for contributory conduct. But, if a different percentage is to be applied to the reductions in the compensatory and basic awards, the basis for that conclusion should be set out (Dee v Suffolk County Council EAT 0180/18). Conclusions Reinstatement or re-engagement

Conclusions

[21]Reinstatement or re-engagement are simply not realistic in the circumstances of this case, where we have made factual findings that the claimant did do the misconduct that he was accused of. It is not appropriate to make either order given that the claimant was entirely responsible for his own dismissal. We therefore do not need to go on to consider the respondent’s arguments about whether or not it would be impracticable for him to take up further work for the respondent. Basic award

[22]So far as the basic award is concerned, before any reduction the appropriate sum is 10.5 (i.e. 1½ times the 7 years in continuous employment) x £643, which is £6,751.50.

[23]We consider now the appropriate reduction to that basic award for contributory conduct. The conduct giving rise to the contributory fault is set out at paragraph 86 of our judgment on liability. Plainly that conduct was blameworthy and we have already found that it contributed wholly to the claimant’s dismissal. The question is what the extent of the reduction should be. In deciding what is just and equitable here we have taken account of the fact that the compensatory award will be reduced to zero by the Polkey reduction. A 100% reduction for contributory conduct, as the Employment Appeal Tribunal has made clear, is rare and it is not inevitable even where someone has been wholly to blame for their dismissal. We do consider that it would be just and equitable to reduce the amount, though not by 100%. The reduction we arrive at having considered all of the above points is 75%.Reducing the sum of £6,751.50 by 75% leaves a final figure of £1,687.88. Compensatory award

[24]In considering what a fair procedure would in fact have entailed we conclude, taking account of the factual findings we have already made, that it would have taken the same amount of time as the respondent’s procedure did, even if more witnesses had, as they should have been, been involved. The next question for us then is, would a fair procedure still have resulted in the respondent finding that the claimant did the misconduct? The short answer to that question in our judgment is, yes. We put no weight on the unsworn new evidence of Mr Mullen in coming to that conclusion, but instead, draw our own conclusions from those facts that have already been established. We accept that a number of witnesses were not interviewed in this case but we consider that it would be inappropriate to speculate on what they might have said had anybody asked them. We simply do not know. It is right to say though that, on the basis of the findings we have already made, it would have been quite possible only for Ms Buffin and Mr Dobe to have heard the comments that the claimant made. On the basis of all of that, we consider that Mr Mullen would still have believed Ms Buffin, who we of course ourselves found to be a credible witness.

[25]We therefore have to go on to consider what would have been the result upon the finding that the claimant had done what he was accused of. It is clear in our judgment that that conduct amounted to gross misconduct. The claimant continued to deny that he had done it so we accept that there was, in the circumstances, no realistic scope for a lesser sanction such as training or further reflection. Given what was alleged, in our judgment dismissal by the respondent was inevitable even in the absence of any previous disciplinary findings. We also accept the respondent’s point that, whatever might have happened during the disciplinary process, Royal Mail was always going to refuse to have the claimant back on its site because of the allegations being made about him by two people who were of course Royal Mail employees. That, in our judgment, would inevitably have tied Angard’s hand to a significant extent. There is also the point of course, that with the claimant maintaining that a Royal Mail manager and Ms Buffin had conspired against him, not just that they were wrong, it is hard to see how employment could have continued for any appreciable time, although, as Mr Peacock fairly points out, the employment may have ended on notice if that was the only difficulty form the claimant’s point of view. But, putting all of that together, even if there had been a fair process, in our judgment, there is a 100% chance that the result would have been the same and that the process would have taken the same amount of time and that the claimant would not have been paid during the period of his suspension. The appropriate reduction under Polkey must therefore be 100%.

[26]Given that finding, as we have already explained, there is no need for us to come to conclusions on what the appropriate compensatory award would have been in the absence of a 100% reduction, but we do record the following.

[27]We accept the respondent’s submissions that many of the things which the claimant says were breaches of the Acas Code were found by us to have been reasonable actions (see paras 182 to 186 of the liability judgment). However, as we set out at paras 187 to 191 the respondent did breach the Code, by failing to carry out necessary investigations to establish the facts of the case. This was a significant breach and we would have awarded a 10% uplift in the circumstances but, of course, that is a 10% uplift on zero and so that is rather an academic point.

[28]Likewise, also an academic point is how we would have reduced the compensatory award for the claimant’s contributory conduct. It is a slightly different test to the test we have already applied to the basic award. We have to consider whether the dismissal was to any extent caused or contributed to by any action of the claimant. Clearly, in our judgment, the conduct was culpable or blameworthy. It caused the dismissal and, equally clearly in our judgment, it is just and equitable to reduce the award and we would in the circumstances have arrived at the same 75%. But again, so far as the compensatory award is concerned, that 75% is of zero.

[29]We have already addressed why we would not have awarded damages for the pre-dismissal suspension period. It is also unclear to us the basis on which the claimant seeks to recover pension credit payments which, it seems to us, would have been made to him by the government. Likewise, we do not see that there is a basis for the claimant recovering travel costs and costs incurred in caring for his relatives since his dismissal. And, as we made clear to the claimant, the law simply does not permit us to compensate the claimant for injury to feelings for his unfair dismissal. So, for all of those reasons, the final award is in the sum of £1,687.87, i.e. the basic award reduced by 75 %.

Law

[30]By rule 68(1), the Tribunal may, on the application of a party, reconsider any judgment where it is in the interests of justice to do so. A judgment under reconsideration may be confirmed, varied or revoked. Rule 69 requires that, except where it is made during a hearing, an application for reconsideration must be made in writing within 14 days of the date on which the judgment, or the written reasons for the judgment, were sent to the parties. Rule 70(2) says that, upon receipt of an application made under rule 69, if the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked, the application must be refused. This consideration will be by a judge alone even if the original decision was made by a full Tribunal. It is only if the judge does not so consider that the parties are invited to make written representations and the Tribunal then decides whether to conduct a reconsideration at a hearing or on the papers.

[31]In this case, the application for reconsideration of the judgment was made before the time limit set by rule 69 took effect. This case illustrates why it is appropriate for a party to wait until receipt of the written reasons – it at least reduces the chances of applications for reconsideration being made upon the basis of mistaken understandings of the decision. Nevertheless it seems to me to be in the parties’ interests to consider the application now, so I (i.e. EJ Dick alone) go on to consider whether there is no reasonable prospect of the judgment being varied or revoked.

[32]In my judgment there is no reasonable prospect of the Tribunal's remedy judgment being varied or revoked, having in mind the test which the Tribunal would have to apply upon reconsideration, namely whether it is necessary in the interests of justice. I therefore refuse the application for reconsideration, for the following reasons.

[33]At points 1, 3 and 4 of the application, the claimant refers to a bereavement he suffered on 1 October 2025 which he says affected his conduct of and preparation for the 19 November hearing. While I have every sympathy for the claimant’s loss, he could and should have raised the issue before or during the hearing. The general principle is that the parties are entitled to finality in litigation; relevant maters should be raised at the time of the hearing and not afterwards. Further, I note that although the claimant asserts that he would have prepared better for the hearing if not for the bereavement, he does not in fact indicate anything that he might have done differently and there is no suggestion that the relevant evidence was not before the Tribunal. Points 4 and 5 further assert that the claimant received various documents, including the reserved judgment on liability, late. Whether or not that is correct, the claimant had received the respondent’s bundle, which contained the judgment on liability, in good time for the hearing. The claimant’s assertion that he did not know he could raise late service with the Tribunal cannot be right – according to my note he did raise the issue at the November hearing and eventually accepted that the respondent’s bundle did not contain any document with which he had not already been provided in advance. Points 2 and 6 are based entirely on misunderstandings about what the Tribunal actually decided. Approved by: