Mr M Awan and Royal Mail Group Ltd and Others: 3309006/2022 and 3310190/2022

EMPLOYMENT TRIBUNALS

Case No 3309006/2022, 3310190/2022

Between

Mr M AwanClaimant

Royal Mail Group Ltd and OthersRespondent

Before

Employment Judge Shastri-Hurst, Ms D Ballard, Ms H

In person for claimant

Mr G Deane (instructed by counsel) for respondent

Date 3 October 2024

JUDGMENT

[1]The claim of direct race discrimination is not well-founded and fails;

[2]The claim of victimisation is not well founded and fails;

[3]The claim of unauthorised deduction of wages is not well-founded and fails. JUDGMENT having been sent to the parties on 4 December 2024 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunal Procedural Rules 2024, the following reasons are provided:

REASONS

[1]The claimant brings claims against the four respondents. His claims are for direct race discrimination against Royal Mail Group Ltd (“Royal Mail”), Mr Miller and Mr Coke; victimisation against Mr Miller and unauthorised deduction of wages. These claims were presented to the tribunal across two claim forms.1.1 In terms of the first claim, case number 3309006/2022, the ACAS process began on 22 April 2022 and ended on 1 June 2022. The claim form was submitted on 30 June 2022. The respondents named in this claim were Royal Mail, Mr Miller and Ms Sandu.

1.2 In terms of the second claim, case number 3310109/2022, the ACAS process started on 3 July 2022, ended on 2 August 2022 and the Tribunal claim was submitted on 8 August 2022. The respondents to that claim are Mr Miller, Ms Sandu and Mr Coke.

[2]The claims were subject of a case management preliminary hearing on 8 March 2023 in front of Employment Judge Anderson. She set out the list of issues for the final hearing which is at page 95 of the bundle.

[3]In reaching our decision we have had the benefit of hearing evidence from the claimant. On behalf of the respondents, we have heard evidence from Mr Miller (Plant Manager), Ms Sandu (Resourcing Manager) and Mr Patel (Industrial Engineer). We had a statement from Mr Coke but he did not attend; we heard that he had retired last year. The claimant had also provided us with numerous short witness statements from his colleagues (Claude Forbes, Khalid Khan, Khader Aden, Claudio Chaby, Hamid Deen) and CWU Trade Union Representatives (Muhammed Ali, Felix Viegas). Those individuals did not attend to give evidence either. For those witnesses who did not attend we have read their statements and given their evidence some weight, although not as much weight as if they had attended to be cross examined. We have also had sight of a bundle of 295 pages. During the course of the hearing several additional documents were added at page 275A to D and 283A to B. We also have a small separate bundle of documents which we have labelled as Appendices A to G.

[4]The claimant has represented himself throughout this hearing and Mr Dean has represented all four respondents. We thank them both for the courteous and professional manner in which they have conducted themselves.

Issues

[5]The list of issues for determination at this hearing were set out, as mentioned above, at page 95 of the bundle. They are recorded immediately below:

Issues

[1]Direct race discrimination 1.1. The claimant is a British born Muslim man of Pakistan Asian descent. Claim 3300906/2022 1.2. Did the respondents do the following things: 1.2.1. In October 2021 Darren Miller refused special unpaid leave to the claimant leaving him with the only option of taking a career break. 1.2.2. From 13 January 2022 to 30 March 2022 stopping the claimant from returning to work? 1.3. Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether he was treated worse than someone else would have been treated. The claimant says he was treated worse than Trevor Moseley. 1.4. If so, was it because of race? 1.5. Did the respondent’s treatment amount to a detriment? Claim 3310190/2022 1.6. Did the respondents do the following things: 1.6.1. On or after 25 April 2022 Kenneth Coke refused to follow Royal Mail’s grievance procedure and failed to issue an outcome to the claimant’s grievance. 1.7. Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether he was treated worse than someone else would have been treated. The claimant has not named anyone in particular who he says was treated better than he was. 1.8. If so, was it because of race?

[2]Victimisation Claim 33000906/2022 2.1. Did the claimant do a protected act as follows: 2.1.1. Raise with Darren Miller in a meeting on 25 March 2022 that he believed that his treatment by the respondents in relation to the career break and pay was because of his race. 2.2. Did the respondent do the following things: 2.2.1. Darren Miller in the meeting of 25 March 2022 said: 2.2.1.1. He didn’t really have to hold the meeting; 2.2.1.2. He was doing the claimant a favour; and, 2.2.1.3. If the claimant wished to work he should be careful about what he said. 2.3. By doing so, did it subject the claimant to detriment? 2.4. If so, was it because the claimant did a protected act? 2.5. Was it because the respondent believed the claimant had done, or might do, a protected act?

[3]Remedy for discrimination or victimisation 3.1. Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend? 3.2. What financial losses has the discrimination caused the claimant? 3.3. Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job? 3.4. What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that? 3.5. Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that? 3.6. Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result? 3.7. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? 3.8. Did the respondents or the claimant unreasonably fail to comply with it? 3.9. If so is it just and equitable to increase or decrease any award payable to the claimant? 3.10. By what proportion, up to 25%? 3.11. Should interest be awarded? How much?

[4]Unauthorised deductions Claim 3300906/22 and potentially Claim 3311378/22 4.1. Were the wages paid to the claimant for the period 13 January 2022 to 30 March 2022 less than the wages he should have been paid? 4.2. Was any deduction required or authorised by statute? 4.3. Was any deduction required or authorised by a written term of the contract? 4.4. Did the claimant have a copy of the contract or written notice of the contract term before the deduction was made? 4.5. Did the claimant agree in writing to the deduction before it was made? 4.6. How much is the claimant owed?

[5]Remedy 5.1. How much should the claimant be awarded? Findings of fact Policies

Findings of fact

[6]In terms of policies, two of the respondent’s policies bear mentioning at this stage.6.1 The first is the Other Time Off Special Leave Guide. The correct copy is at Appendix6.1.1 “Domestic leave”, either urgent domestic leave or for emergencies like house flooding or burglary. Then there is domestic events such as needing to be at home for a delivery.

6.1.2 “Family leave”, which provides us with different reasons for leave such as dependents leave for emergency caring, emergency family leave, family events and long-term care of a dependent. This is arguably the most relevant one to the hearing before us. The policy suggests that one option for long-term care needs is to explore flexible working or alternative shift and attendance patterns. Another option is for unpaid time off of up to six months. The policy specifically says “Where the employee is looking for a longer period of time off a career break could be considered.”

a. A. This sets out the type of leave that is available both paid and unpaid:

6.2 We then have the Career Break Policy. Again, we have the relevant policy that was in use at the time relevant to the claimant’s claim at Appendix

b. B. At page 2 of 5 it states: “A career break is an extended period of unpaid time away from work which can be taken for a variety of reasons. For example, to fulfil caring responsibilities for dependents”.

6.3 In terms of effect on employment, the policy makes clear that the right to return applies to the employee’s former function or business unit but not to their same job or duties. It makes it clear that the employee will return to their former or equivalent grade. In terms of the decision to authorise a career break, various factors are listed at page 3 of 5. The policy sets out that a career break may not always be the best option but that there are alternatives such as a flexible work application, annual leave or other time off as per the Other Time Off Policy Guide. In terms of organisational changes during a career break, this is covered at page 5 of 5 and says: “Should any organisational change occur Royal Mail will ensure that where possible employees who are taking a career break and who are due to return to work within three months are involved in any consultation or other appropriate procedures on the same basis as all affected employees.

6.4 In relation to steps prior to a return to work, the policy makes clear that any employee who has a career break will need to be re-vetted before returning to work. Vetting

[7]We understand that all roles within Royal Mail require a standard level of vetting; this is due to the personal, sensitive, confidential nature of information that they are handling in the normal course of their work due to handling post. There is a further advanced vetting process for those working at the Heathrow Worldwide Distribution Centre (“HWDC”). Vetting is referred to as AVSEC, referring to aviation security. This is a regulatory requirement and is required due to the fact that employees are handling items to be exported, and so a heightened level of security is required. Mr Miller and Mr Patel told us, and we accept, that employees working at the International Logistics Centre (“ILC”) and HWDC are often transferred between those sites, which neighbour each other, in order to cover business needs, particularly at peak times. In order to facilitate this type of transfer swiftly and effectively, the Royal Mail requires that all employees across ILC and HWDC are subject to the advanced vetting process. Mr Patel told us that, in fact, Royal Mail International encompasses three sites; HWDC, ILC and the London Airmail Centre (“LMU”). At all three sites, employees need the advanced or AVSEC vetting due to the international nature of their work. Depending on their circumstances, including whether there is meaningful work available, employees waiting for their advanced vetting to be completed may be allowed to work at ILC until such time as their vetting is complete for only a short period of around two weeks. By “meaningful work”, we understand that Royal Mail and, in this case Mr Miller, meant that there is work available for an extra employee to do who is not on the original shift pattern. For example, if there is work that Royal Mail could expect to be covered by 100 employees on shift, then there would not be meaningful work for the 101st employee to undertake. Whether or not there is meaningful work is down to the shift manager’s judgment. We have not heard about any objective metric that is used. Likewise, if it so happens that there are 101 employees on duty but only work available for 100 employees, this would not be flagged by any automated system. If there was a lack of meaningful work at either HWDC or ILC, then the employees would be sent to the other site assuming that there was meaningful work to be done there. Chronology of events

[8]Turning then to the chronology of events.

[9]The claimant commenced his work as an Operational Postal Grade on 25 June 2012 according to his contract, which is at page 132 of the bundle. The claimant worked three days a week; Saturday, Sunday and Monday. At the beginning of April 2021 the claimant’s son was born and he took a period of paternity leave starting on 6 April 201. This was for two weeks until 19 April. The claimant then asked to use his outstanding annual leave to extend his paternity leave. He was allowed to do this for a period of time. The claimant then started his annual leave on 20 April 2021. His annual leave ended on 19 May 2021. He then appears to have been back at work but only actually undertaking short periods of work due to periods of annual leave and sickness absences.

[10]On 9 August 2021, he was marked as having “special leave unpaid”. This was granted until 15 September 2021.

[11]Sometime in mid-September, the claimant’s length of special unpaid leave was flagged on the system and picked up by Mr Miller, his second line manager. At some point Mr Miller discussed this situation with the claimant and his then trade union representative, Felix Viegas.

[12]The claimant submitted an application for a career break on 20 September 2021 for a period from that date to 3 April 2022. We note that there is a change of date on the form for both the signing of the form and the actual career break, a change from 3 September to 20 September 2022 on page 151. We find that the change of date from 3 to 20 September was a change by the claimant and he had signed those changes himself. Thus, on the balance of probabilities, we are satisfied that the claimant had the form in his possession from 3 September 2021 and therefore had over two weeks to consider the document before re-signing it and handing it in. The claimant said that he did not read the form before signing it, but he accepted that, on signing it, it would be taken that he had indeed read it. We find that, on signing, he was bound by the conditions within that document and had constructive knowledge of the terms therein. We note that the application states at the top “Please read the Career Leave Police and Guide before completing this request form.” A Guide is also referred to in the Career Break Policy itself. We have not seen that Guide.

[13]The application for a career break was authorised by Mr Miller on 20 September. The claimant told us that he had asked Mr Miller for a couple of months leave but this appears inconsistent with applying for a period of leave of six and a half months which exceeds the minimum period of a career break of six months. If the claimant had wanted less than a six month break he would have applied for the shortest possible period of six months. The relevant terms of the career break agreement are at page 152, and we highlight two specifically;13.1 Firstly, “As my absence is for more than 28 days I will be subject to vetting checks before my return to work”; and,

13.2 Secondly, “I will not be entitled to pay whilst on a career break”.

[14]This brings us to the facts of issue 1.2.1. Both Mr Miller and the claimant are in agreement that there was no “special leave unpaid” request made by the claimant after the expiry of his special unpaid leave ending on 15 September 2021 (i.e. on or after 16 September 2021). This is in the notes of their respective meetings with Mr Patel in September 2022 – pages 237 and 245. Therefore, we find that there was no refusal of an application for special unpaid leave in October 2021.

[15]In terms of the second part of this allegation, being forced down a career break route, we find that on the claimant’s situation being flagged to Mr Miller, Mr Miller took the view that these periods of special unpaid leave were unsustainable and, in the circumstances, it was more appropriate for the claimant to take a career break. The claimant’s evidence was that he told Mr Miller that he needed a couple of months off. Mr Miller does not remember that but told us that, in any event, this was an indeterminate amount of time for a period leave.

[16]We accept that the circumstances that Mr Miller took into account were this lack of clarity on the end date of any leave and the organisational disruption of the claimant repeatedly requesting special unpaid leave (domestic): we accept that those requests were made on the first day of a shift week, on both 6 and 13 September 2021. Although we accept that Mr Miller did not proactively raise other possibilities for the claimant, we find that the claimant likewise did not raise any other options. He would have been in a position to do so given his CWU representative was present, he had the relevant policies available to him, and those policies were signposted in the career break application form.

[17]We note that the Special Unpaid Leave Policy allows for a period of leave of up to six months and so could have been an option available to Mr Miller and the claimant. However, we consider Mr Miller’s decision to go down the career break route was not unreasonable in the circumstances where the claimant had had the majority of a five-month period not working, on various forms of leave where the underlying reason was the same, that his wife needed his support. Furthermore, there had been no improvement to the claimant’s domestic situation and neither at this time in September was there any indication of any improvement.

[18]To the extent that the claimant’s only option was a career break, we find that the reason for that was Mr Miller’s view that there was uncertainty as to the length of any leave period and it was likely the leave would not be short lived. These we accept were reasonable conclusions in light of the circumstances of the claimant at the time.

[19]On 7 December 2021, the respondent sent the claimant a letter including career break terms and conditions. That is at page 153 of the bundle. As well as repeating the term regarding “no pay being received during a career break,” that letter also records: “If you wish to return to work earlier or later than presently agreed you should give your line manager or local resource manager a minimum of three months’ notice in writing.”

[20]The claimant said he did not receive this or at least does not remember seeing this.

[21]We accept that the letter was sent. We find that the claimant’s evidence on whether he received this or not to be equivocal. He told us that it was not sent by signed delivery and that he did not remember seeing it, but it was not given to him by hand, and that he was off on career break by the time it was dated. He said, “[w]hether I received it months down the line I can’t remember.” We note that it was sent a few months “down the line” and not immediately on the commencement of the claimant’s leave. We find that the claimant did receive this letter, whether or not he read it is another matter.

[22]In terms of the mechanism for providing three months’ notice of early return, this was common ground between the parties. Without this mechanism, the claimant would not have been contractually entitled to return to work before April 2022. Mr Moseley

[23]The claimant cites Mr Trevor Moseley as his comparator in relation to his direct race discrimination claim regarding issues 1.2.1 and 1.2.2.

[24]Mr Moseley took an extended period of leave from work. He had a longer period of special unpaid leave than the claimant, some 309 days. Furthermore, Mr Moseley was off continuously on one form of leave or another from April 2020 through to his career break in June 2021, including 72 days of furlough. His career break then lasted 18 months until December 2022. When Mr Moseley returned to work, he returned on the night shift due to a realignment of staff (see more below).

[25]The reason for his need for time off work related to his mother. At the time, Mr Moseley’s mother was experiencing extremely poor health and was hospitalized for an extended period. When Mr Moseley was at work, Mr Miller recalled that he (Mr Moseley) would receive almost daily calls from the hospital to inform him that his mother was not going to make it through the day and that he should attend to say his goodbyes – Mr Miller’s statement paragraph 49.3.

[26]Mr Miller’s view was that Mr Moseley’s situation with his mother was “unknown and changing daily” – paragraph 49.4 of his witness statement. However, Mr Miller’s view at the time of making decisions about Mr Moseley’s leave was that this period of uncertainty would be fairly short lived: it was anticipated that Mr Moseley’s mother would sadly pass away in the near future. Claimant’s request to return to work in January 2022

[27]On 23 December 2021, at page 268, the claimant emailed Sukhbir Sandu saying, “I have been on a career break” and that he was intending to return to work in April, but he wanted to return in fact on Sunday 2 January 2022. We note that this is in breach of the requirement to provide three months’ notice of a return to work. We also consider it was unreasonable for the claimant to send this email at around 8pm the day before Christmas Eve and expect to be entitled to a response before 2 January or indeed to expect to be able to return on 2 January. We take judicial notice that most companies operate a skeleton staff over the Christmas period and that employees tend to take annual leave around this time. Ms Sandu did not receive the email until she returned from annual leave after the first week in January. This is recorded at page 242 of Mr Patel’s notes in the meeting with her and in Ms Sandu’s witness statement.

[28]On her return to work, on or around Monday 10 January, Ms Sandu forwarded the email to Charlotte Garler, who was HWDC Night Shift Resourcing Manager. Ms Sandu considered that Ms Garler was the more appropriate person to respond to the claimant’s email as the claimant was to be returning to nightshift work at HWDC, as were all employees (such as Mr Moseley) returning from career breaks at this time due to a reorganisation and realignment of staff. We consider that the normal process that should then have happened was that Ms Garler would have reached out to the claimant at some point to start the vetting process for his return. However, this did not happen because the claimant took it upon himself to return to work on 2 January and so matters followed a different route. Claimant’s return to work in January 2022

[29]On 2 January, the claimant returned to work at ILC without having had an email acknowledgement from his email of 23 December. The claimant said that his name was on the sign in sheet. We find that this was because he was still on Royal Mail’s books as an employee based at ILC. Mr Miller explained to us that, if an employee is away from work because of a career break, holiday, sickness leave and so on, their name still appears on the sign in sheet but with a code next to their name. The code for “career break” was “CB”. The claimant denies that, at the beginning of January 2022 there was a “CB” by his name. We have seen the claimant’s leave schedule which is at page 148: we can see that he was formally on career break up to and including 28 March 2022. We understand from Mr Miller that the sign in sheet and its codes are produced from the records on the People Services Portal (“PSP”) which is the respondent’s HR System. So, if the claimant is marked as on a career break on PSP, the code will be automatically printed on the sign in sheet. Furthermore, we note that the claimant’s pay had stopped because he was on a career break which we find must have meant that the PSP system had him marked as a career break. We therefore accept this evidence that “CB” appeared on the sign in sheet when he returned to work in January 2022.

[30]The claimant’s evidence was that, on 2 January, he had spoken to the frontline manager on duty, Mr Angelo Fernandes, who asked whether he had told anyone about his return to work. The claimant had answered “Yes.” We find that, if Angelo had been told by the claimant that he had spoken to someone about his return, it would have been a reasonable assumption that vetting had taken place. Vetting would not be done by the front-line manager but by the Compliance Department, and so we would not expect Mr Fernandes to interrogate the issue of vetting. We find that the claimant returned to work without the appropriate authorisation and vetting, despite knowing that re-vetting was required given that this requirement was made abundantly clear on the career break application form.

[31]On 3 January 2022, the claimant attended work again. His case is that he had informed Mr Miller of his return on that day. In evidence to us, the claimant stated that he saw Mr Miller on 3 January, he did not however say that he spoke to him. Mr Miller’s evidence was that he may well have been a shift manager on Monday 3 January, but that his role was not to line manage front-line staff, of which there are around 200. His job was to manage their managers. As such, he would not be aware of which individuals were at work on any given day just because he was in the building and on shift. We accept this evidence. It makes sense to us that with a level of hierarchy comes a level of removal from the goings on on the shop floor. We find that Mr Miller was not aware of the claimant’s return to work on 3 January. This finding is supported by the email that follows from Mr Miller on 10 January at page 156 in which he shows surprise that the claimant had returned to work.

[32]On 10 January, Naim Aslam emailed Mr Miller and Ms Sandu stating: “Can you please do ECR Mr Awan from above staff he is back from career break.” ECR has to be done to get any form of pay as an employee.

[33]Mr Miller replied on the same day: “Who agreed he could come back to work early? Is he vetted? When did he select a role?”

[34]Ms Sandu replied on the same day also stating: “He requested to return back CB on 2 January. I forwarded his request to HWDC Resourcing to deal with as he picked up a duty on nights in HWDC. I was informed today that he returned up for work in ILC and was allowed to work without any vetting done. He is currently tagged to M Iqbal.”

[35]The last part regarding tagging meant his line manager on the computer system, PSP, was Mr Iqbal.

[36]This chain of emails supports Mr Miller and Ms Sandu’s case that they were not aware until this point that the claimant had in fact returned to work. We accept that it was on this date that they both became aware that the claimant had returned to work. The contemporaneous emails are consistent with their evidence in their witness statements and to us. We find that the claimant returned to work without permission.

[37]On 11 January, Mr Miller instructed HRCS Security Vetting to begin the vetting process, which is at page 160. We find that Mr Miller would have been entitled to refuse the claimant’s request to return to work immediately and require him to supply three months’ notice of an early return to work. However, instead he acted on the claimants’ request within 24 hours of hearing about it.

[38]Also on 11 January, the claimant said he was told by his Trade Union representative at the time that Mr Miller and Ms Sandu had said he was not allowed to enter the building. This is consistent with the evidence that we heard, that employees were not allowed in the building at HWDC without vetting. The respondent takes vetting very seriously because, if someone is found on site and not to have their vetting in order, the building can be shut down. Ms Sandu told us this and her evidence to that effect was not challenged.

[39]We note here that vetting is a regulatory issue stemming from the Department of Transport, not a requirement imposed at the discretion of the Royal Mail.

[40]The following day, on 12 January, Mr Miller instructed that the claimant’s ID pass be deactivated until vetting was complete; that is at page 158. From this date, the claimant accepted in cross examination that the reason he was not working was because he had not undertaken the vetting process.

[41]On 13 January, HRCS Security Vetting sent to Mr Miller and others the vetting documentation that the claimant would need to complete on page 159.

[42]Also on that date, the claimant spoke to Ms Sandu during which conversation the instruction not to enter the building was repeated. The reason given was the lack of vetting. The claimant emailed Mr Miller and Ms Sandu as well as others to state “I understand the current impediment blocking my return to work is the vetting process.” That is at page 201, copy at 180. He also raised that he was aware of other employees who had been on a career break and allowed back whilst the vetting process was ongoing.

[43]We note that the claimant said in this email “[t]he reason given was my lack of vetting procedure I was never informed of before my leave or throughout its duration”. This is simply not the case. It is made abundantly clear in both the Career Break Policy and the Career Break Request Form that vetting will be required on a return from a period of leave of over 28 days.

[44]Mr Miller responded at page 200, attaching a copy of the Career Break Policy and setting out the key terms.

[45]Also on 13 January, the claimant obtained a fit note for insomnia, signing him off until 10 February 2022. However, this was not submitted to the respondent at this point: in fact, it was only submitted after it had expired. The fit note appears at page 193.

[46]On 16 February 2022, the claimant returned his vetting forms to Mr Iqbal after having had them in his possession for around a month. We have not heard any reason why the claimant took a month to return these documents. That is at page 270.

[47]The following day, on 17 February, Mr Iqbal emailed HRCS Security Vetting returning the claimant’s paperwork: page 184.

[48]On 22 February, HRCS Security Vetting informed Mr Iqbal, Mr Miller and others that they were missing a second page of the security check consent form: page 213.

[49]By this stage, and as we have already set out, there had been a reorganisation and there was a realignment of the workforce, meaning that work had moved from ILC to HWDC. In other words, there was no meaningful work on the late shift at ILC which had been the claimant’s duty prior to his break. The available shifts on the claimant’s return were night shifts at HWDC. It had been agreed by the CWU that those returning from a career break who had been displaced by the realignment would return to night shifts. We note that night shifts attracted a higher allowance than the late shift and, indeed, the Sunday allowance.

[50]On 27 February, at pages 191 to 193, the claimant informed Mr Coke that he was “unable to work night shifts due to a longstanding medical issue after suffering an extremely traumatic episode in my life”. This is when the fit note was provided regarding insomnia. This stated that day shifts only should be worked for the period 13 January to 10 February. At this specific time, the respondent did not look for other roles for the claimant as the fit note had expired before the claimant’s communication.

[51]On 1 March 2022, three days later, following a call with Mr Coke, the claimant emailed Mr Coke who then took steps to see if Royal Mail could find him new shifts so that he would not have to do night shifts. This is at page 191.

[52]Also on 1 March, Mr Coke spoke to the claimant on the telephone. From Mr Coke’s witness statement at page 12 we understand that Mr Coke thought that this was a discussion to obtain a resolution to an informal grievance.

[53]On 7 March, the claimant chased Mr Miller by text for an update regarding his vetting following which, a few minutes later, Mr Miller chased Security Vetting. Those communications are at page 213 and one of our appendices, Appendix F.

[54]On 14 March, the claimant’s standard vetting came back clear: page 214.

[55]On 15 March, Mr Miller emailed Mr Stephen Hibbert, Resource Manager, stating that “[t]his guy won’t stop contacting me. What job has he got. Who will his line manager be as I need them to take over the case.”

[56]There should have been a change in the claimant’s second line manager at around this time. At this point, PSP had the claimant assigned to night shifts. This would mean that the claimant’s line management would transfer to the night shift line manager. We heard from Mr Patel that the computer system records a receiving manager, who would be a night shift manager, and a transferring manager, who would be a late shift manager. Upon the receiving manager accepting line management responsibility, the transferring manager would be removed from the system.

[57]On 21 March 2022, Mr Coke emailed still trying to find the claimant different shifts to work: page 221. On 24 March, Mr Hibbert emailed Mr Miller regarding the claimant, stating at page 220: “He was on a career break and like all other returnees from a career break was put on nights when he resumed. Several conversations have been had about Mr Awan and one of the latest from Ken was to explore late part-time.” Protected disclosure and detriments

[58]The following day, 25 March, the claimant had a meeting with Mr Miller, at which Mr Khan attended as the claimant’s companion as his CWU representative was not available that day. This is the subject of the victimisation claim. We have seen various accounts of this meeting in the evidence before us and I take each in turn:58.1 Mr Miller’s account on the same day in an email at page 222. This sets out the claimant’s alleged behaviour towards him, stating the claimant had a terrible attitude and was threatening legal action (in summary). We accept this evidence; it is contemporaneous, done in response to the meeting on the same day and reads to us as a genuine immediate response. At that point, there was no good reason why Mr Miller would make up this detail if it were not true. In fact, there was no need to write the email at all. We note also that, as well as reporting on the meeting and asking to have no further involvement, Mr Miller was still attempting to progress the case of the claimant by setting out possible shifts for him. Furthermore, we note that Mr Miller raised his concern that the claimant may go to the Tribunal. We consider that, if the claimant had raised race or difference in treatment, then Mr Miller would have flagged this specifically at this point as being something the claimant may pursue to the Tribunal specifically.

58.2 We have Mr Miller’s account to Mr Patel from October 2022 at page 248. There is no mention of the claimant raising difference in treatment with Mr Miller in this meeting.

58.3 We have Mr Miller’s account in his witness statement. Again, there is nothing about the claimant raising difference in treatment at this meeting.

58.4 We have Mr Khan’s account to Mr Patel in which he stated that the claimant, in this meeting, said he was treated wrongly and unfairly – page 250. In Mr Khan’s short witness statement to us there is nothing about anything the claimant said on 25 March.

58.5 We have the claimant’s account in the meeting with Mr Coke. There is a reference to inequality in those notes at page 277. However, we read that as being the claimant’s understanding of his treatment as of 25 April 2022 rather than his recollection of what he said to Mr Miller in the meeting of 25 March.

58.6 The claimant’s account in Mr Patel’s meeting. He did not mention saying anything to Mr Miller at this meeting about difference in treatment.

58.7 We have the claimant’s account in the Tribunal claim form. Again, this is silent on any possible protected act that the claimant made in the meeting.

58.8 We have the claimant’s witness statement, specifically paragraph 11, in which he recorded the 25 March meeting. There is nothing in that paragraph about what he said in the meeting. We note that, at paragraph 12, it appears that it occurred to the claimant after the meeting that there may have been differential treatment.

58.9 The List of Issues records that the claimant alleged he raised race discrimination in this meeting. The claimant, in cross examination, confirmed that these are not words he used. The height of his evidence was that he had said he was treated differently.

[59]In light of all that evidence, we find that the claimant did not say anything about different treatment or unequal treatment during this meeting. As we have said, we accept Mr Miller’s account of this meeting. Mr Miller was consistent in his evidence across his meeting with Mr Patel, his witness statement and his evidence to us, whereas the claimant’s evidence has been inconsistent from his meeting with Mr Coke and Mr Patel, his witness statement and his oral evidence to us. It is also inconsistent with the List of Issues as well. We note that the claimant’s supporting witness, Mr Khan, does not in fact support him on this point in his witness statement for the Tribunal.

[60]This meeting is a meeting in which detriments are said to have occurred. The claimant said that Mr Miller made three comments that were detriments. Mr Miller did not deny making these comments but told us that they were out of context. We are satisfied that the reason Mr Miller made the comments on 25 March was because the first two statements were true. By this time Mr Miller was not the claimant’s second line manager and there was no obligation on him to hold the meeting and he was doing it as a favour.

[61]In terms of the third comment about the claimant being careful, Mr Miller accepted that he could have worded this better and used the word “mindful.” However, we have accepted Mr Miller’s account of the claimant’s behaviour and accept that Mr Miller’s comment was in response to that behaviour.

[62]Following the meeting on 25 March, Mr Miller emailed the wider team in the email we have already referred to at page 222. The relevant parts at this point, aside from his recollection of meeting itself, are as follows:62.1 That the claimant “was sent home due to not being vetted”;

62.2 That “his security vetting came back clear on 14/03/22. And since then he has been pushing for his old role at ILC which I believe is lapsed due to insufficient workload, hence him being allocated a role on the HWDC Night Shift during the 2021 revision”.

62.3 Finally, the claimant “cannot work on the Night Shift because he suffers from insomnia *sick cert supplied), the roles he can choose from are as below”.

[63]Also on 25 March, Gordon Mashiter sent an email. Mr Mashiter was the Aviation Security HWDC Training and Compliance Manager. Mr Mashiter confirmed that the claimant’s manager should have requested aviation vetting as it is needed by staff working at both ILC and HWDC due to joint staff resourcing. That is at page 226 and 225.

[64]The date of 28 March is recorded as the last day of the claimant’s career break at page 148. Also on 28 March the claimant emailed an informal grievance asking why he had suffered inequality and targeting. Notably, it did not raise race discrimination. That is at page 274.

[65]On 29 March, there was a chain of emails between various managers. Mr Coke emailed other managers, at page 225, reporting that the claimant was to report to ILC three days a week, Wednesday to Friday, and that this would be until his AVSEC vetting was complete and he could transfer to HWDC. Mr Mashiter had approved the claimant working out of the ILC temporarily.

[66]On 30 March, the claimant returned to work at ILC pending transfer to HWDC. That is confirmed at page 225. There was a wait to transfer to HWDC due to only standard vetting being completed, not the AVSEC vetting.

[67]This then leads us to the facts regarding issue 1.2.2 and whether the claimant was stopped from returning to work between 13 January and 30 March 2022.

[68]We find that the claimant was not contractually entitled to return to work until he had reached the end of his career break in April 2022. He had not taken any of the necessary steps to return early including providing three months’ notice and completing the requisite vetting procedures.

[69]This period can be split into two parts.69.1 The reason why the claimant was not able to return to work for the period of 13 January to 14 March was because the requirement that the claimant had, as a minimum, standard vetting had not been met until 14 March.

69.2 From 14 to 30 March, there were two impediments to the claimant returning. Firstly, for health reasons, he could not work on the night shift at HWDC to which he had been assigned and the respondents were taking active steps to accommodate his needs to have an alternative shift. Secondly, and in any event, he had not completed his AVSEC vetting. The claimant raised the point that he could have been placed at another centre from 14 March where only standard vetting was required. On this point, we accept Mr Patel’s evidence that Royal Mail International is a very separate entity to its domestic branch. Royal Mail International covers ILC, HWDC and LMU. Mr Patel told us that the transfer between International and Domestic is rare and only in exceptional circumstances, such as extreme weather conditions or industrial action. Mr Patel specifically said he would be very surprised to hear of someone in the claimant’s position of waiting for AVSEC vetting to be transferred to a domestic centre. 70. 4 April was the claimant’s anticipated return to work date as per his signed career break agreement.

[71]On 12 April, the claimant went off on a period of sickness absence related to stress until 4 June. That is at page 256.

[72]Two days later, on 14 April, the claimant raised a formal grievance, two weeks after returning from a lengthy period of being off work. That grievance is at pages 275(a)-(d).

[73]On 25 April 2022, a grievance meeting was held between Mr Coke and the claimant. The notes of which are at page 276. The claimant did not raise race discrimination in this meeting. The only reference to difference in treatment is the use of the word “inequality” in relation to ILC’s treatment of him generally. The meeting was left with Mr Coke saying he would send a note of the minutes to the claimant for him to sign and return and one copy for him to keep.

[74]Factually, we accept there was no outcome from Mr Coke following this meeting and, in fact, there is no reference in the hearing note to say that he would provide an outcome. The meeting was not concluded with any idea of any next steps, and we can understand why the claimant felt that his complaint had not been concluded by Mr Coke.

[75]The process, at this stage, appears to us to be confused. We accept that Mr Coke was involved as a more senior manager to Mr Miller, against whom the claimant’s complaint was raised. Mr Coke started the meeting in the notes by saying it was a fact find but, in his witness statement, he does not refer to this meeting on 25 April at all. This confusion may explain why there is no outcome as it appears that Mr Coke was not completely clear on what his role was in this process within the context of the grievance policy and what steps were relevant to him. In fact, the Tribunal would not be surprised to learn that this meeting had in fact occurred earlier than 24 April and that the date on the notes is incorrect, as it appears to us to be out of place in the general chronology of events. We say this as, by this time, Mr Coke had already arranged for the claimant to return to work on a shift pattern on 29 March and the claimant had, in fact, returned to work on 30 March. Again, that is at page 225. In any event, no outcome was received. It would have been helpful for Mr Coke to have attended the Tribunal to explain in more detail and unravel the confusion we have mentioned but we understand he has now retired.

[76]We find that, on the contemporaneous documentary evidence in the bundle, the reason Mr Coke did not provide an outcome was that, from his perspective, the claimant’s main issue was, as it appears highlighted in bold on page 275 of the complaint, the delay in him being able to return to work. Mr Coke had resolved this and got the claimant back to work on 30 March.

[77]On 4 June 2022, the claimant returned from his period of sickness absence. The claimant was then on annual leave for the majority of June and July. He had a short period of paid special leave in August 2022 and then some more annual leave. He then appears to have returned to work mid-August for a period of about six weeks before being signed off sick again.

[78]On 7 June, the claimant received the notes from Mr Coke’s meeting with him. That is at page 283.

[79]On 16 September, Mr Patel was approached to deal with the grievance. We see that at page 283(a).

[80]On 21 September, the case was formally assigned to Mr Patel.

[81]On 28 September, Mr Patel contacted the claimant to state that he would conduct a review of the grievance: page 257.

[82]On 29 September, there was a grievance meeting in which the claimant was present with his union representative, Mr Ali, and with Mr Patel. The typed notes contain the claimant’s manuscript amendments and are at page 236. We find that, as soon as he was appointed, Mr Patel dealt with the matter expediently. We find that he was a suitable person to undertake the meeting and the grievance. We reject the claimant’s assertion that Mr Patel was unsuitable due to having family working directly under Mr Miller. We understand that Mr Patel’s wife works on the late shift but we are satisfied that this did not impact Mr Patel’s ability to deal with this matter objectively. As a witness before us, Mr Patel was able to rationalise his decision making and the action he took throughout this process and was clear as to his reasoning throughout. The pertinent parts of the minutes of this meeting are as follows:82.1 Page 237, the claimant accepted he did not complete an unpaid leave form;

82.2 Page 238, the claimant said he was looking for only three months leave. This is inconsistent with the evidence we have heard that he was asking for a couple of months leave;

82.3 Also on page 238, the claimant said he never wanted a career break of six months but, as we have already said, this appears inconsistent with the career break application which is for a period of six and a half months.

82.4 Also at page 238, the claimant said no one explained the career break policy to him, not even his CWU representative. We find this unlikely and, in any event, we have found that he had constructive knowledge of the terms of the career break agreement before signing it.

[83]Noticeable by its absence is any suggestion that, on 25 March, the claimant said either that Mr Miller had treated him differently or that Mr Miller had discriminated against him. Noticeable also is the lack of complaint of discrimination within this meeting with Mr Patel. The height of the allegation from the claimant is that he had been subjected to blatant inequality in relation to the matter in which his return to work was dealt with in February/March 2022. That is at page 239.

[84]On 12 October, Mr Patel met with Ms Sandu to conduct an investigation meeting, the notes of which are at page 242. The pertinent points there are that Ms Sandu confirmed that the reason the claimant was unable to work initially from 13 January was that he needed to submit his security vetting checks. That is at page 243.

[85]On 14 October, Mr Patel held an investigation meeting with Mr Miller, the notes of which are at page 245:85.1 On page 245, Mr Miller confirms that he did not receive any request for unpaid special leave from 16 September 2022.

85.2 On page 248, Mr Miller’s account is set out of the meeting of 25 March which is consistent with his email of that same date, 25 March, and his evidence to us.

[86]On 8 November, Mr Patel met with Mr Khan who had attended the meeting of 25 March with the claimant. Those notes are at page 250: 86.1 At page 251, Mr Khan stated that the claimant said on 25 March that he had been treated wrongly and unfairly.

[87]The claimant then went off sick on 22 November 2022. He received the outcome of the grievance on 28 November. That is at page 253.

[88]We find that this was a reasonable time period for the grievance outcome to be produced from the date on which Mr Patel was assigned the case. We are also satisfied that Mr Patel took reasonable steps to investigate the matter: his outcome is fairly lengthy and demonstrates that he considered the matter with sufficient weight and importance. It is a diligent piece of work addressing each and every point raised by the claimant.

[89]The claimant appealed the decision on 9 December 2022 but eventually that appeal was withdrawn. The appeal appears at page 262. The law Direct race discrimination

The law

[90]Employees are protected from discrimination by s39 EqA: “(2) An employer(a) (A) must not discriminate against an employee of A’s

(b) (B) - … (d) by subjecting B to any other detriment.”

[91]Direct discrimination is set out in s13 EqA: “(1) a person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

[92]There are two parts of direct discrimination:(a) the less favourable treatment and

(b) the reason for that treatment. Sometimes however it is difficult to separate these two issues so neatly. The Tribunal can decide what the reason for any treatment was first: if the reason is the protected characteristic, then it is likely that the claim will succeed – Shamoon v Constable of the Royal Ulster Constabulary

[2003] UKHL 11

. “Because of”: reason for less favourable treatment

[93]The correct approach to the issue of causation under s13 EqA is to determine whether the protected characteristic, here race, had a “significant influence” on the treatment – Nagarajan v London Regional Transport

[1999] IRLR 572

. The ultimate question to ask is “what was the reason why the alleged perpetrator acted as they did? What, consciously or unconsciously, was the reason?” - Chief Constable of West Yorkshire Police v Khan

[2001] UKHL 48

. This is a question of fact for the Tribunal to determine, and is a different question to the question of motivation, which is irrelevant. The Tribunal can draw inferences from the behaviour of the alleged perpetrator as well as taking surrounding circumstances into account.

[94]If there is more than one reason for the treatment complained of, the question is whether the protected characteristic (in this case, race) was an effective cause of the treatment – O’Neill v Governors of ST Thomas More Roman Catholic Voluntary Aided Upper School

[1996] IRLR 372

. Burden of proof under the Equality Act 2010

[95]The burden of proof for discrimination claims is set out in s136 EqA: “(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision”.

[96]In Laing v Manchester City Council and anor

[2006] ICR 1519

, Mr Justice Elias held that: “the onus lies on the employee to show potentially less favourable treatment from which an inference of discrimination could properly be drawn”.

[97]It is not enough for the claimant to show that there has been a difference in treatment between him and a comparator, there must be something more. In Madarassy v Nomura International plc

2007 ICR 867

, Lord Justice Mummery held: “56. The court in Igen Ltd v Wong

[2005] ICR 931

expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination”.

[98]This approach was subsequently approved by the Supreme Court in Hewage v Grampian Health Board

[2012] ICR 1054

, at paragraph 31: “The complainant must prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the complainant which is unlawful. So the prima facie case must be proved, and it is for the claimant to discharge that burden”.

[99]At this first stage, the Tribunal is required to consider all the material facts without considering the respondent’s explanation. However, this does not mean that evidence from the respondent undermining the claimant’s case can be ignored at stage one – Efobi v Royal Mail Group Ltd

2021 ICR 1263

. The case of Efobi also upheld the approach of the decisions set out above, that it is for the claimant to prove, on the balance of probabilities, facts from which, in the absence of any other explanation, the Tribunal could infer discrimination. Although the Tribunal may consider all the evidence before it (not just that of the claimant) the burden rests firmly with the claimant at this first stage – see discussion at paragraphs 21 to 34 of Efobi.

[100]In terms of comparators, the definition is at s23 EqA: “(1) On a comparison of cases for the purposes of section 13, 14, 19 or 19A there must be no material difference between the circumstances relating to each case”.

[101]In Virgin Active Ltd v Hughes

2023 EAT 130

(specifically paragraph 65), it was highlighted by the EAT that the consideration of whether there are material differences in the circumstances of an actual comparator compared to those of the claimant needs to take place before applying the shift in the burden of proof. The EAT gave the following example at paragraph 68: “For example, if two people who differ in a protected characteristic attend a job interview and one is appointed but the other is not, that, of itself, would not be enough to shift the burden of proof, but if they scored the same marks in the assessment, so there is an actual comparator, the difference of treatment would seem to call out for an explanation”.

[102]Regarding a hypothetical comparator, the claimant must show that the comparator would have been treated more favourably. This requires the Tribunal to be able to draw inferences of likely treatment of a hypothetical comparator from the evidence before it.

[103]It is only if the initial burden of proof is reached that the burden shifts to the respondent to prove to the Tribunal that the conduct in question was in no sense whatsoever based on the protected characteristic – Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases

2005 ICR 931

[104]Overall however, the courts caution against placing too much emphasis on the burden of proof provisions. This was emphasised in Martin v Devonshires Solicitors

[2011] ICR 352

when the EAT held that: “39. …[The burden of proof] provisions are important in circumstances where there is room for doubt as to the facts necessary to establish discrimination – generally, that is, facts about the respondent’s motivation (…) because of the notorious difficulty of knowing what goes on inside someone else’s’ head (…). But they have no bearing where the tribunal is in a position to make positive findings on the evidence one way or another, and still less where there is no real dispute about the respondent’s motivation and what is in issue is its correct characterisation in law”.

[105]The Supreme Court in Hewage agreed with this approach, citing the decision in Martin with approval at paragraph 32. Victimisation

[106]S27 EqA sets out: “(1) A person(a) (A) victimises another person

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

(d) Making an allegation (whether or not express) that A or another person has contravened this Act.” Protected act

[107]The relevant provisions as to a protected act in this case are ss27(2)(c)&(d). Regarding “doing any other thing for the purposes or in connection with this Act”, this is the catch-all provision. Under pre-Equality Act legislation, it was held that the requirement that something be done “in reference to” the Race Relations Act would be met if it was done by reference to that Act “in the broad sense, even though the doer does not focus his mind specifically on any provision of the Act” – Aziz v Trinity Street Taxis Ltd and ors

[1988] ICR 534

[108]In terms of “making an allegation…”, although it is not necessary for the Equality Act to be mentioned, it is vital that the facts as set out by the claimant would be capable of amounting to a breach of that Act. In other words, it must be conveyed that there has been conduct which interferes with a protected characteristic – Durrani v London Borough of Ealing [2012]

UKEAT/0454/2012

. Detriment

[109]In terms of the meaning of detriment, the Court of Appeal in Ministry of Defence v Jeremiah

[1980] ICR 13

held that a detriment exists: “if a reasonable worker would or might take the view that the treatment was in all the circumstances to his detriment”.

[110]In other words, if the claimant has suffered a disadvantage compared to other employees (whether real or hypothetical), they will have suffered a detriment. Despite this, there is no strict need for a comparator in cases of detriment. Causative link

[111]For a detriment to be because of a protected act, it is necessary that it had a significant influence on the perpetrator. It is not necessary for the Tribunal to identify conscious or subconscious motivation – Nagarajan v London Regional transport

[2000] 1 AC 501

at p512-513. The meaning of “significant” has been held to mean “more than trivial” – Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases

[2005] ICR 931

. Unauthorised deduction from wages

[112]S13 of the Employment Rights Act 1996 provides: “(1) An employer shall not make a deduction from wages of a worker employed by him unless –(a) The deduction is required or authorized to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

(b) The worker has previously signified in writing his agreement or consent to the making of the deduction. (2) In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised – (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion. (3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion. …”

[113]The claimant’s claim under this heading is in fact a claim for losses flowing from discrimination. The claimant accepts that he did not work in the period between 13 January 2022 and 30 March 2022, and therefore it cannot be that he is claiming wages for work done in that period.

[114]His claim is that he should not have been prevented from working, that prevention he claims was an act of discrimination. His case is that, had he not been subjected to discrimination, he would have been at work in the period 13 January to 30 March 2022 and so would have received wages accordingly. This falls squarely within a remedy claim following a successful claim for discrimination. In other words, these wages for that period would equate to losses flowing from a discriminatory act, if the discrimination claim were to be successful.

[115]This distinction between a claim of unauthorized deduction of wages and a remedy claim flowing from discrimination was explained to the claimant during the course of the hearing. Conclusions Direct race discrimination – issue 1.2.1

Conclusions

[116]Turning first to issue 1.2.1 and the question of the proposed comparator of Mr Moseley. We consider that Mr Mosley is not an appropriate comparator under section 23 of the Equality Act as he and the claimant were not in circumstances which had no material difference between them.

[117]We accept that Mr Miller thought Mr Mosely’s situation would resolve itself imminently by Mr Moseley’s passing away. However, in contrast, the situation with the claimant was open-ended and continued to be openended.

[118]We consider that the claimant and Mr Mosely were treated fairly similarly in any event. They both had periods of special unpaid leave and then were told to go on a career break; they were both returned to night shifts on their return due to the realignment. We accept that Mr Mosely had a longer period of special unpaid leave, some 309 days, and we note that Mr Mosely was off continuously on one form of leave or another from April 2020 through to his career break in June 2021, including 72 days of furlough. His career break then lasted 18 months. However, we maintain that Mr Mosely is not an appropriate comparator as his and the claimant’s circumstances were different. To the extent relevant, we consider him as an evidential comparator.

[119]The claimant’s evidence is that Mr Mosley is white and was treated better and so Mr Miller’s actions must be discriminatory.

[120]We turn then to consider a hypothetical comparator. A hypothetical comparator needs to be someone with exactly the same leave record and in the same circumstances as the claimant but white. There is no evidence from which we could draw an inference that Mr Miller’s decision on a career break would be any different for such a hypothetical comparator, and therefore was discriminatory. A difference in race and difference in treatment is not enough in any event to allow us to draw inferences of discriminatory treatment. Furthermore, we do not accept that Mr Miller’s actions were unreasonable and so draw no inference on that basis. As such, the claimant does not pass the initial burden of proof and we dismiss this claim at that point.

[121]In any event, and if we are wrong and the claimant has met his burden of proof, we have accepted the respondent’s non-discriminatory reasoning and so we would, in any event, dismiss the claim – see paragraph 18 above. Direct race discrimination – issue 1.2.2 – from 13 January 2022 to 30 March 2022 stopping the claimant from returning to work

[122]Turning to the second issue of direct race discrimination at 1.2.2. The claimant raises Mr Mosely again as an appropriate comparator. He is not an appropriate comparator as he was not in materially the same circumstances as the claimant. Notably, Mr Moseley was able to return on night shifts, unlike the claimant. We have no evidence that Mr Mosely attempted to return to work early and unilaterally, and without having submitted the correct paperwork. We also have no evidence as to the vetting process that took place for Mr Moseley, particularly whether his manager only asked for standard vetting originally as opposed to AVSEC vetting.

[123]We therefore turn to consider a hypothetical comparator once more, and we conclude that there is no evidence from which we could safely draw an inference that the respondent’s actions were discriminatory. Again, we repeat that a difference in race and difference in treatment, without more, is not sufficient to get over the initial burden of proof.

[124]To the extent that the claimant said the respondent’s treatment of him in January through to March was unreasonable and that we can draw an inference on that basis, we do not accept this. Therefore, the claimant again has not met his initial burden of proof and we reject the claim at that stage.

[125]Once again, if we are wrong on this and the burden has shifted to the respondent, we are satisfied that the respondent has proven to us that their actions regarding the claimant’s return to work were not in any way tainted by discrimination and we reject the claim. We have set out our findings as to the reasons for the claimant’s inability to return to work between 13 January to 30 March at paragraphs 67-69 above. Direct race discrimination – issue 1.6.1 – on or after 25 April 2022, Kenneth Coke refused to follow Royal Mail’s grievance procedure and failed to issue an outcome to the claimant’s grievance

[126]In relation to issue 1.6.1, the claimant has informed us that he relies on a hypothetical comparator for this situation.

[127]Once again, there is no evidence from which we could safely draw an inference that Mr Coke’s behaviour was discriminatory. The claimant was specifically asked on what he based his assertion of race discrimination. He gave us two points.127.1 Firstly, that Mr Coke and Mr Miller were friends and both white; and,

127.2 Secondly, that Mr Coke’s conduct was unreasonable.

[128]On the first point, Mr Miller denied being friends with Mr Coke specifically saying that he had not spoken to Mr Coke since his retirement and had never socialized with him out of work. The claimant suggested that there was a link between Mr Miller and Mr Coke because Mr Miller had stepped into Mr Coke’s role. We find no evidence to suggest there was anything improper about Mr Miller’s promotion and it does not serve to support the claimant’s race claim. In any event, even if Mr Miller and Mr Coke were friends, this would not lead us to the conclusion that they acted in a way which was discriminatory simply because they are both white; there is no good evidence before us to suggest this.

[129]In terms of Mr Coke acting unreasonably, we do not find that Mr Coke acted unreasonably, although we accept he could have sent something in writing just to close off the meeting with the claimant. He was not unreasonable in failing to do so. In any event, unreasonable conduct, without something more, is not sufficient to lead to an inference of discrimination. There is nothing before us from which we could draw an inference that the respondent’s actions were discriminatory.

[130]Once again, in the event we are wrong on that and the burden of proof has shifted to the respondent, we are satisfied that there was a nondiscriminatory reason for Mr Coke’s action, or inaction, as we have set out at paragraph 76 above.

[131]Finally, we note that the claimant’s grievance was in the end dealt with by Mr Patel who, as we have found, provided a very full outcome letter. Victimisation – issue 2.1.1 – did the claimant do the protected act of raising with Darren Miller in a meeting on 25 March 2022 that he believed that his treatment by the respondents in relation to the career break and pay was because of his race

[132]On the facts as we have found them to be, we have found that the claimant did not make any allegation of a breach of the Equality Act or do anything for the purposes of or in connection to the Equality Act: see paragraphs 58 and 59 above. As such we conclude that the claimant did not do a protected act as pleaded on 25 March 2022. There was nothing within his conversation on 25 March that demonstrated an allegation that his rights under the EqA had been breached, or that there had been conduct that had interfered with his race. His claim therefore fails at this stage. Victimisation – issue 2.2.1 – did Darren Miller in the meeting of 25 March 2022 say(1) he didn’t really have to hold the meeting;

(2) he was doing the claimant a favour; and,

(3) if the claimant wished to work he should be careful about what he said

[133]In any event, if we are wrong and there was a protected act, we are satisfied that the reason Mr Miller made the comments said to be detriments on 25 March was because the first two statements were true. By this time as we have said, Mr Miller was not the claimant’s second line manager: there was no obligation on him to hold a meeting and it was done as a favour. See our findings at paragraph 60 above.

[134]Secondly, in terms of the third comment about the claimant being careful, again, as we have stated, Mr Miller accepted that he could have used a better word. However, we have accepted Mr Miller’s account of the claimant’s behaviour on this date and accept that Mr Miller’s comment was in response to that behaviour: see paragraph 61 of our findings above.

[135]The victimisation claim therefore fails. Unauthorised deduction of wages – issue 4.1 – were the wages paid to the claimant for the period 13 January 2022 to 30 March 2022 less than the wages he should have been paid?

[136]We have found that the claimant was not contractually entitled to be working in the period 13 January to 30 March. The respondent was therefore not in breach of his contract by not facilitating his return to work earlier than 30 March. There is therefore no contractual or legal entitlement for the claimant to be paid for that period and therefore no deduction has been made.

[137]This claim is in fact one for compensation following an alleged discriminatory act. However, we have dismissed the discrimination claims and so the money is not capable of being claimed through that route either. This claim fails.

[138]There was a time point in reference to issue 1.2.1; in other words the claim was, on the face of it, presented to the Tribunal outside the primary time limit of three months. However, given that we have not upheld this claim on its merits, we do not consider that point any further. Approved by Employment Judge Shastri-Hurst Date: 7 March 2025 N Gotecha Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practicedirections/