Mr M Rahman v Network Rail Infrastructure Ltd: 3313546/2022 Mr M Rahman v Network Rail Infrastructure Ltd: 3313546/2022

EMPLOYMENT TRIBUNALS

Case No 3313546/2022

Between

Mr M RahmanClaimant

Network Rail Infrastructure LtdRespondent

Before

Employment Judge M Warren

Members

Mrs L Gaywood and Mr R Allan

Ms Loutfi (instructed by Counsel) for claimant

Ms Shepherd (instructed by Counsel) for respondent

Date 30 December 2024

JUDGMENT

The Claimant’s claims of direct race discrimination, harassment related to race, direct discrimination on the grounds of religion, harassment related to religion, victimisation and for having been subjected to a detriment for having made protected disclosures, each fail and are dismissed.

REASONS

[1]Mr Rahman is employed by the Respondent and has been since 23 July 2000, latterly as Team Leader on Track Maintenance. He has been suspended from work since 22 June 2022. After Early Conciliation on 31 October 2022, he issued these proceedings on 15 November 2022 claiming race and religious discrimination, victimisation and detriment for having made a protected disclosure, (whistle blowing).

[2]There have been three Preliminary Hearings: before Employment Judge Laidler on 10 May 2023, Employment Judge Spencer on 20 October 2023 and Employment Judge Alliott on 27 June 2024.

[3]Mr Rahman has not had the benefit of legal advice until a short time before this hearing, when he was able to instruct Ms Loutfi through Direct Access.

The Issues

[4]We were provided with an Agreed List of Issues at the outset of the case. Both Counsel confirmed that we could rely upon this List of Issues. It appears below, cut and pasted and in its original format. Claim(s) under Equality Act 2010 s120

The Issues

[1]Whether claim(s) in time1.1 Has the Claimant brought his claim within the time limit set by Section 123(1) of the Equality Act 2010? This gives rise to the following sub-issues:1.1.1 What was the date of the act to which the complaint relates?

1.1.2 Was the act to which the complaint relates an element of conduct extending over a period? If so, when did that period end?

1.1.3 Insofar as the complaint relates to a failure to do something, when did the Respondent decide on it?

1.2 If not, is it just and equitable for the Employment Tribunal to extend time for the presentation of the complaint pursuant to section 123(1)(b) of the Equality Act 2010? Race Discrimination Direct discrimination: Equality Act 2010 s13

[2]The Claimant alleges that the Respondent did the following things which constituted direct race discrimination:2.1 On 8 December 2021 Mr Gordon sent the Claimant an email claiming that mileage was missing from the mileage book and that the difference was

2.2 On 9 December 2021 Mr Gordon accused the Claimant of having the store key in his possession and accused the Claimant of lying;

2.3 In the first week of January 2022 whilst the Claimant was on track doing an

2.4 On 7 January 2022 Mr Gordon asked the Claimant to give him the key to the and false accusations in that Mr Gordon said “you’re a lying motherfucker” repeatedly, in an aggressive manner and tone. Further, Mr Gordon said “you fucking prick I don’t want to hear that” and accused the Claimant, alleging that the Claimant wanted Mr Gordon to fail, so he could not complete jobs on track. Mr Gordon went on to say “I don’t want to hear that you fucking lying prick I know you and your Muzzie kind”, approached the Claimant with his fists clenched and continue using the language and insults as described;

2.5 On 16 January 2022 Mr Gordon asked Mr Evans to include the Claimant in email replies to another employee, Mr Hasan. Mr Gordon stated this was because the Claimant was related to Mr Hasan stating “Rahman is his uncle, they are both brown-skins”;

2.6 On 17 January 2022 in the mess room Mr Gordon accused the Claimant of telling multiple staff that Mr Gordon was racist. Mr Gordon was shouting, screaming and swearing. He mocked the Claimant’s failed job applications and accused the Claimant of reporting him to the Office of Rail and Road (ORR). Mr Gordon called the Claimant a “liar, shithouse, bullshitter” and taunted the Claimant by saying that if the Claimant wanted to do something about his behaviour he should report it and that he did not care if the Claimant did so;

2.7 On 22 June 2022 the Claimant was informed by Bright Chibanda that he was inappropriate behavious and breaching the bullying and harassment policy.

[3]Whether Claimant subjected to a relevant detriment 3.1 Did the Respondent do the things alleged?

[4]Whether treatment was less favourable4.1 In doing the act complained of, did the Respondent treat the Claimant less favourably than it treated Jack Makuch, Paul Summerville, Chris Madden, Paul Russell, Azem Oztemel, Stuart Brown, Daniel Evans, Daniel Spelman, Edward Ahmagjoka, Nicky Wadkins, Trevor Hopkins, Paul Bavington, Paul Tubby, Toby Brooks, Martin Oneil, Paul Summerville, Ray Cristoe, Brain Plassard, and/or Lloyd Durham? 4.1.1 If so, was there any material difference between the circumstances relating to the Claimant and the comparator?

4.2 In doing the act complained of, did the Respondent treat the Claimant less favourably than it would have treated others in comparable circumstances?

[5]Reason for less favourable treatment 5.1 If the Respondent treated the Claimant less favourably, was this because of the Claimant’s colour, nationality or ethnic or national origins? The Claimant defines his colour as “brown, politically black” and his nationality or ethnic or national origins as “South East Asian Bangladeshi”. Harassment: Equality Act 2010 s26

[6]The Claimant alleges that the Respondent engaged in the following conduct which constituted harassment related to race:6.1 On 8 December 2021 Mr Gordon sent the Claimant an email claiming that mileage was missing from the mileage book and that the difference was

6.2 On 9 December 2021 Mr Gordon accused the Claimant of having the store key in his possession and accused the Claimant of lying;

6.3 In the first week of January 2022 whilst the Claimant was on track doing an

6.4 On 7 January 2022 Mr Gordon asked the Claimant to give him the key to the and false accusations, as described at paragraph 2.4 above;

6.5 On 16 January 2022 Mr Gordon asked Mr Evans to include the Claimant in email replies to another employee, Mr Hasan. Mr Gordon stated this was because the Claimant was related to Mr Hasan stating “Rahman is his uncle, they are both brown-skins”;

6.6 On 17 January 2022 in the mess room Mr Gordon accused the Claimant of telling multiple staff that Mr Gordon was racist. Mr Gordon was shouting, screaming and swearing. He mocked the Claimant’s failed job applications and accused the Claimant of reporting him to the Office of Rail and Road (ORR). Mr Gordon called the Claimant a “liar, shithouse, bullshitter” and taunted the Claimant by saying that if the Claimant wanted to do something about his behaviour he should report it and that he did not care if the Claimant did so;

6.7 On 22 June 2022 the Claimant was informed by Bright Chibanda that he was inappropriate behavious and breaching the bullying and harassment policy.

[7]Whether incidents/events complained of occurred 7.1 Did the Respondent do the things alleged?

[8]Whether conduct related to race 8.1 Was the conduct in question related to the Claimant’s colour, nationality or ethnic or national origins? The Claimant defines his colour as “brown, politically black” and his nationality or ethnic or national origins as “South East Asian Bangladeshi”.

[9]Whether conduct unwanted 9.1 Was the conduct in question unwanted?

[10]Purpose/effect of conduct10.1 Did the conduct in question have the purpose of violating the Claimant’s dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?

10.2 Did the conduct in question have the effect of violating the Claimant’s dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant, taking into account: the Claimant’s perception, the circumstances of the case, and whether it was reasonable for the conduct in question to have that effect? Religious or belief-related discrimination/harassment

[11]The Claimant is Muslim. Direct discrimination: Equality Act 2010 s13

[12]The Claimant alleges that the Respondent did the following things which constituted direct religious or belief discrimination:12.1 On 6 May 2021, Jack Makuch told Mr Gordon that there were too many “Muzzies (Muslim people)” in the patrol gangs. Mr Gordon replied saying that he “cannot have too many eggs in one basket”. This dialogue was prompted by Muslim staff booking leave for Eid;

12.2 On 6 May 2021, the Claimant told Mr Gordon that the dialogue set out at paragraph 12.1 above was discriminatory and unacceptable in behaviour. Mr Gordon replied “I am a manager, I can do whatever I want”;

12.3 Between May and June 2021 Mr Gordon changed the roster, moving the Muslim staff (Humza Mouse, Bradely Agostoni, Zackery Ali, Sheickill Chairi, Syed Hasan and Ahmed Gabaja) into different gangs causing a number of Muslim staff to leave Stonebridge P-Way (Humza Mouse, Bradely Agostoni, Zackery Ali);

12.4 In mid September 2021 the Claimant was blocked out of organising the roster that he created and Mr Gordon refused to provide the Claimant with the password for the roster. Other supervisors (Stuart Brown, Dan Evans, Daniel Spelman and Jack Makuch, also Gary King however Mr King was not a supervisor) were given access to the roster. Colleagues (Aaron Narmh, Clement Ekere, Henry Odili, Chrysostoms.K, Sheickill Chairi and Ahmed Gbaja) informed the Claimant that Mr Gordon said he did not want a “Muzzie” in the office. Daniel Evans informed the Claimant that Mr Gordon described the Claimant using racial slurs i.e. “I am not going to have a muzzie Paki telling us what to do, how to do it. He was already causing me problems”;

12.5 On 21 September 2021 the Claimant raised Covid-19 safety issues relating

12.6 On 25 October 2021 Mr Gordon revealed to the whole depot that the Claimant had applied for other jobs and mocked the Claimant’s lack of success stating “who would want to employ him? Nobody will ever hire him, I’ll make sure of it. He will never be a supervisor again, not in this DU”;

12.7 Between October 2021 and November 2021 there was an after work party for the depot that the Claimant was not invited to and did not attend. Mr Gordon later spread rumours that the Claimant had called a drug and alcohol test because he did not get the supervisor job, causing colleagues to deliberately avoid and ignore the Claimant;

12.8 Between October 2021 and November 2021 the Claimant approached Paul Bavington, the Euston DU Manager, to complain about Mr Gordon. Mr Bavington told the Claimant “I do not want to talk to you about these issues”. Management and supervisors (Paul Tubby, Stuart Brown, Daniel Evans, Daniel Spelman, Edward Ahmagjoka, Nicky Wadkins) began to deliberately avoid and ignore the Claimant;

12.9 On 21 November 2021 the Claimant was told by Paul Tubby to do a patrol Makuch’s response was ‘you know why’;

12.10 On 28 November 2021 Mr Gordon called a meeting with patrol staff but did not invite the Claimant. Mr Gordon did not invite the Claimant to subsequent patrol and team leader meetings. Mr Gordon informed Mr Evans and other staff not to speak to the Claimant;

12.11 On 8 December 2021 C delivered the mileage book. Mr Gordon sent the Claimant an email claiming that mileage was missing and the difference was

12.12 On 9 December 2021 Mr Gordon accused the Claimant of putting false information in the mileage book, called the Claimant a liar and screamed “Who the hell do you think you are?”;

12.13 On 9 December 2021 Mr Gordon emailed the Claimant accusing the Claimant of having the store key in his possession and accusing the Claimant of lying;

12.14 In the first week of January 2022 whilst the Claimant was on track doing an

12.15 On 7 January 2022 Mr Gordon asked the Claimant to give him the key to the and false accusations as set out at paragraph 2.4 above;

12.16 On 22 June 2022 the Claimant was informed by Bright Chibanda that he was

12.17 Whether Claimant subjected to a relevant detriment

12.18 Did the Respondent do the things alleged?

[13]Whether treatment was less favourable13.1 In doing the act complained of, did the Respondent treat the Claimant less favourably than it treated Jack Makuch, Paul Summerville, Chris Madden, Paul Russell, Azem Oztemel, Stuart Brown, Daniel Evans, Daniel Spelman, Edward Ahmagjoka, Nicky Wadkins, Trevor Hopkins, Paul Bavington, Paul Tubby, Toby Brooks, Martin Oneil, Paul Summerville, Ray Cristoe, Brain Plassard, Lloyd Durham? 13.1.1 If so, was there any material difference between the circumstances relating to the Claimant and the comparators?

13.2 In doing the act complained of, did the Respondent treat the Claimant less favourably than it would have treated others in comparable circumstances?

[14]Reason for less favourable treatment 14.1 If the Respondent treated the Claimant less favourably, was this because of the Claimant’s religion? Religion or belief related harassment: Equality Act 2010 s26

[15]The Claimant alleges that the Respondent engaged in the following conduct which constituted harassment related to religion or belief:15.1 On 6 May 2021, Jack Makuch told Mr Gordon that there were too many “Muzzies (Muslim people)” in the patrol gangs. Mr Gordon replied saying that he “cannot have too many eggs in one basket”. This dialogue was prompted by Muslim staff booking leave for Eid;

15.2 On 6 May 2021, the Claimant told Mr Gordon that the dialogue set out at paragraph 12.1 above was discriminatory and unacceptable in behaviour. Mr Gordon replied “I am a manager, I can do whatever I want”;

15.3 Between May and June 2021 Mr Gordon changed the roster, moving the Muslim staff (Humza Mouse, Bradely Agostoni, Zackery Ali, Sheickill Chairi, Syed Hasan and Ahmed Gabaja) into different gangs causing a number of Muslim staff to leave Stonebridge P-Way (Humza Mouse, Bradely Agostoni, Zackery Ali);

15.4 In mid September 2021 the Claimant was blocked out of organising the roster that he created and Mr Gordon refused to provide the Claimant with the password for the roster. Other supervisors (Stuart Brown, Dan Evans, Daniel Spelman and Jack Makuch, also Gary King however Mr King was not a supervisor) were given access to the roster. Colleagues (Aaron Narmh, Clement Ekere, Henry Odili, Chrysostoms.K, Sheickill Chairi and Ahmed Gbaja) informed the Claimant that Mr Gordon said he did not want a “Muzzie” in the office. Daniel Evans informed the Claimant that Mr Gordon described the Claimant using racial slurs i.e. “I am not going to have a muzzie Paki telling us what to do, how to do it. He was already causing me problems”;

15.5 On 21 September 2021 the Claimant raised Covid-19 safety issues relating

15.6 On 25 October 2021 Mr Gordon revealed to the whole depot that the Claimant had applied for other jobs and mocked the Claimant’s lack of success stating “who would want to employ him? Nobody will ever hire him, I’ll make sure of it. He will never be a supervisor again, not in this DU”;

15.7 Between October 2021 and November 2021 there was an after work party for the depot that the Claimant was not invited to and did not attend. Mr Gordon later spread rumours that the Claimant had called a drug and alcohol test because he did not get the supervisor job, causing colleagues to deliberately avoid and ignore the Claimant;

15.8 Between October 2021 and November 2021 the Claimant approached Paul Bavington, the Euston DU Manager, to complain about Mr Gordon. Mr Bavington told the Claimant “I do not want to talk to you about these issues”. Management and supervisors (Paul Bavington, Paul Tubby, Stuart Brown, Daniel Evans, Daniel Spelman, Edward Ahmagjoka, Nicky Wadkins) began to deliberately avoid and ignore the Claimant;

15.9 On 21 November 2021 the Claimant was told by Paul Tubby to do a patrol Makuch’s response was ‘you know why’;

15.10 On 28 November 2021 Mr Gordon called a meeting with patrol staff but did not invite the Claimant. Mr Gordon did not invite the Claimant to subsequent patrol and team leader meetings. Mr Gordon informed Mr Evans and other staff not to speak to the Claimant;

15.11 On 8 December 2021 C delivered the mileage book. Mr Gordon sent the Claimant an email claiming that mileage was missing and the difference was

15.12 On 9 December 2021 Mr Gordon accused the Claimant of putting false information in the mileage book, called the Claimant a liar and screamed “Who the hell do you think you are?”;

15.13 On 9 December 2021 Mr Gordon emailed the Claimant accusing the Claimant of having the store key in his possession and accusing the Claimant of lying;

15.14 In the first week of January 2022 whilst the Claimant was on track doing an

15.15 On 7 January 2022 Mr Gordon asked the Claimant to give him the key to the and false accusations, as set out at paragraph 2.4 above;

15.16 On 22 June 2022 the Claimant was informed by Bright Chibanda that he was

[16]Whether incidents/events complained of occurred 16.1 Did the Respondent do the things alleged?

[17]Whether conduct related to religion or belief 17.1 Was the conduct in question related to the Claimant’s religion?

[18]Whether conduct unwanted 18.1 Was the conduct in question unwanted?

[19]Purpose/effect of conduct19.1 Did the conduct in question have the purpose of violating the Claimant’s dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?

19.2 Did the conduct in question have the effect of violating the Claimant’s dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant, taking into account: the Claimant’s perception, the circumstances of the case, and whether it was reasonable for the conduct in question to have that effect? Victimisation: Equality Act 2010 s27

[20]The Claimant alleges that the Respondent did the following things which constituted victimisation:20.1 On 22 June 2022 the Claimant was informed by Bright Chibanda that he was The Claimant asserts that this was retaliation for submitting his grievance;

20.2 On 8 August 2022 the Claimant received a letter from David Bannister stating his suspension would remain in place. The Claimant had received no welfare checks since his suspension and had received no communications regarding his grievance;

20.3 On 13 September 2022 the Claimant was informed that Tom Chapman had been appointed as independent investigation manager. The Claimant had not received a welfare check or update regarding his grievance;

20.4 On 28 October 2022 the Claimant received a letter from Mr Killworth regarding C’s grievance.

[21]Whether Claimant did a protected act21.1 The Claimant relies on the following protected acts:21.1.1 Alleging discrimination to Mr Gordon on 6 May 2021;

21.1.2 In early December 2021 approaching Mr Brown to complain about the conduct of Mr Gordon;

21.1.3 Submitting a grievance on 28 March 2022;

21.1.4 On 17 May 2022 attending the grievance meeting with Naiha Takiar and Mr Killworth.

21.2 Did the Claimant bring proceedings under the Equality Act 2010?

21.3 Did the Claimant give evidence or information in connection with proceedings under the Equality Act 2010? 21.3.1 Was the evidence or information given by the Claimant in connection with proceedings under the Equality Act 2010 false and given in bad faith?

21.4 Did the Claimant make an allegation that someone had contravened the Equality Act 2010? 21.4.1 Was the allegation made by the Claimant that someone had contravened the Equality Act 2010 false and made in bad faith?

21.5 Did the Claimant do any thing for the purposes of or in connection with the Equality Act 2010 other than bringing proceedings, giving evidence or information in connection with proceedings or making an allegation of a contravention?

21.6 Did the Respondent believe the Claimant had or may bring proceedings under the Equality Act 2010 or give evidence or information in connection with proceedings under the Equality Act 2010 or do any other thing for the purposes of or in connection with the Equality Act 2010 or make an allegation that someone has contravened the Equality Act 2010?

[22]Whether Claimant subjected to a detriment22.1 Did the Respondent do the things alleged?

22.2 Did the act complained of constitute a detriment to the Claimant?

[23]Reason for detrimental treatment 23.1 Did the Respondent subject the Claimant to a detriment because the Claimant had done a protected act or because the Respondent believed the Claimant had done or may do a protected act? Whistleblowing

[24]The Claimant alleges that he was subject to the following detriments:24.1 In early July 2021, in a conversation relating to Zachery Ali and Jordan Connell being placed as engineering supervisors on a big worksite, Mr Gordon said to the Claimant “Who the hell are you to tell me what the rules are? If I say they do it, they had better do it!” Mr Gordon argued with the Claimant and began screaming, asking the Claimant if he was going to teach him the rules and repeated the taunt “Go on then, I dare you!” Mr Gordon put Mr Ali as the Engineering Supervisor with Anthony Collins as Mentor despite Mr Collins’ sentinel card being invalid;

24.2 On 21 September 2021 the Claimant raised Covid-19 safety issues relating

24.3 On 21 November 2021 the Claimant was told by Paul Tubby to do a patrol Makuch’s response was ‘you know why’.

[25]Whether Claimant subjected to a detriment25.1 Did the Respondent do the things alleged?

25.2 Did the act complained of constitute a detriment to the Claimant?

[26]Reason for detrimental treatment 26.1 Did the Respondent subject the Claimant to a detriment because the Claimant had made a protected disclosure?

[27]Whether Claimant made a qualifying disclosure27.1 The Claimant relies on the following as qualifying disclosures:27.1.1 In early July 2021 the Claimant raised concerns with Mr Gordon about Zachery Ali and Jordan Connell being placed as engineering supervisors on a big worksite, stating that they did not feel confident to do the duties as they were both new engineering supervisors, that they needed more mentorship, that if something went wrong they would be held accountable and someone could get seriously injured or killed;

27.1.2 On 21 September 2021 the Claimant raised Covid-19 safety issues relating to numbers of people in work vehicles at a union meeting via conference call but no action was taken. The Claimant also raised this with Mr Gordon prior to the conference call and Mr Gordon advised for staff to use face masks.

27.1.3 On 21 November 2021 the Claimant was told to do a patrol with no COSS or lookout. The Claimant refused stating safety concerns. After a lengthy argument the Claimant was given a contractor lookout and the relevant line blockage.

27.2 Did the Claimant disclose information?

27.3 Did the Claimant reasonably believe the information disclosed tended to show a relevant failure falling within paragraphs (a) to (f) of section 43B(1)?

27.4 Did the Claimant reasonably believe it was in the public interest to make the disclosure?

[28]Whether disclosure was a protected disclosure 28.1 Was the disclosure made in accordance with any of section 43C to 43H of the Employment Rights Act 1996?

[29]Remedy29.1 Is it just and equitable to award compensation?

29.2 What amount of compensation would put the Claimant in the position he would have been in but for the contravention of the Equality Act 2010?

29.3 Has the Claimant taken reasonable steps to mitigate his loss?

29.4 Was the Claimant guilty of contributory fault and, if so, to what extent should any compensation be reduced? Evidence 5. We had before us a witness statement from Mr Rahman and supporting him, a further statement from a work colleague Mr Hasan. On 13 November 2024, Mr Rahman applied for a witness order in respect of Mr Hasan. Unfortunately, that was not referred to an Employment Judge. It is likely the application would have been refused, because Mr Rahman did not explain the efforts that he had made to ask Mr Hasan to attend the hearing voluntarily, nor identify the evidence that he be able to give relevant to the issues. However, at the outset of the case, Ms Loutfi was able to report that Mr Hasan has agreed to attend voluntarily. 6. Unfortunately, the witness statement provided by Mr Hasan was problematical and the Respondent took objection to it. The statement is thirteen pages and sixty nine paragraphs long, primarily containing allegations of discrimination to which he says that he has been subjected to and which we understand to be the basis of a claim he himself has brought against the Respondent. We identified that there were elements of Mr Hasan’s statement that were relevant to the issues in this case. Having regard to the overriding objective and the balance of prejudice, we therefore directed Counsel to liaise and agree on a redacted version of Mr Hasan’s witness statement, limited to the evidence he was able to give that is directly relevant to the issues in this case. That exercise was undertaken and in due course we heard evidence from Mr Hasan, limited on that basis. 7. Mr Rahman had also on 13 November 2024, made an application for a witness order in respect of a Mr Zachery Ali. That application had not been referred to an Employment Judge. It did not explain what efforts had been made to ask Mr Ali to attend voluntarily and did not explain what evidence he would give, relevant to the issues. There was no witness statement from Mr Ali. Ms Loutfi told us that her instructions were that the relevant evidence Mr Ali would give pertained to Allegation 24.1 in the List of Issues that a Mr Collins held a Sentinel Card that was not valid and in relation to Allegation 27.1.1, that Mr Rahman had a conversation with Mr Gordon about whether Mr Ali, (and one other) felt confident to undertake their duties as Engineering Supervisors. 8. We had regard to the Employment Tribunals Rules of Procedure, Rule 32 enabling a Tribunal to order a witness to attend, the overriding objective at Rule 2 and the Presidential Guidance on Case Management. Exercising our discretion we sought to advance the interests of justice and to balance relative prejudice to the parties: 8.1. Employment Judge Alliott had Ordered exchange of witness statements on 19 September 2024. We were told that statements were in fact exchanged on 1 November 2024. 8.2. Whatever Mr Ali might have to say in evidence, would be a surprise to the Respondent. It would have the potential to extend the length of the hearing, place its completion under threat and potentially entail an adjournment. 8.3. Ms Loutfi told us Mr Rahman has approached Mr Ali who has said he was not prepared to provide a witness statement, nor attend without a summons. 8.4. On an analysis of the List of Issues, it seemed that the potentially relevant evidence was in relation to two discreet and on the face of it, relatively minor points. With regard to Issue 24.1, the issue would be in a conversation between Mr Gordon and Mr Rahman, how did Mr Gordon behave towards Mr Rahman and what did he say. Mr Ali was not said to be a party to that conversation. 8.5. With regard to Issue 27.1.1, the issue was whether the conversation between Mr Rahman and Mr Gordon amounted to a protected disclosure by Mr Rahman. Once again, Mr Ali was not said to have been a witness to that conversation. Mr Gordon acknowledged in his witness statement that he’d had a direct conversation with Mr Ali which was not in dispute. 8.6. In neither case did it seemed that the evidence of Mr Ali was likely to assist the Tribunal and we therefore refused the Witness Order Application. 9. For Mr Rahman, we had witness statements from: 9.1. Mr Rahman himself; 9.2. Mr Hasan, as noted above; and 9.3. Mr Raymond Cristoe. 10. We heard oral evidence from Mr Rahman and Mr Hasan. Mr Cristoe was not called to give evidence, as the Respondent did not wish to cross examine him. We had regard to his evidence. 11. For the Respondent, we had witness statements from: 11.1. Mr David Banister, Rail Management Engineer; 11.2. Mr Bright Chibanda, Infrastructure Maintenance Engineer; 11.3. Ms Jessica Yates, Senior HR Business Partner; 11.4. Mr Stuart Gordon, Senior Network Delivery Manager; 11.5. Mr Daniel Spelman, Assistant Track Maintenance Engineer; 11.6. Mrs Nicola Wadkins, Section Planner; 11.7. Mr Paul Tubby, Track Maintenance Engineer; 11.8. Mr Ashley Killworth, Section Supervisor; 11.9. Mr Paul Bavington, no longer employed by the Respondent, formerly Infrastructure Maintenance Delivery Manager; 11.10. Mr Edmir Ahmagioka, Track Maintenance Supervisor; and 11.11. Mr Jack Makuch, Team Leader. 12. We heard evidence from all of the Respondent’s witnesses except Mr Ahmagioka, who Ms Loutfi did not wish to cross examine. We had regard to his evidence. 13. During a one day adjournment at the beginning of the case, we read all of the witness statements, we read or looked at in our discretion the documents referred to in the witness statements and read the documents referred to in a Reading List provided by Ms Shepherd. We reminded Counsel that they must not assume that we have taken on board everything relevant in the documents and they must make sure that they take us to what they consider to be the relevant and important passages during cross examination. 14. The Bundle before us was properly paginated and indexed. Originally the Bundle ran to page number 1082. During the course of the hearing, the Respondent introduced without objection, two further documents: 14.1. An email with attached Excel Spreadsheet dated 30 May 2021, at pages 1083 – 1092; and 14.2. A grievance on the part of Mr Hasan dated 15 January 2024, at pages 1093 – 1097. 15. At the end of the case but before closing submissions, the Tribunal asked for and was provided with the recording of a conversation between Mr Gordon and Mr Rahman on 17 January 2022, which we listened to. The Law Discrimination 16. The relevant law is set out in the Equality Act 2010. 17. Section 39(2)(d) proscribes an employer from discriminating against an employee by subjecting the employee to a detriment. 18. Section 40 prohibits harassment by an employer. 19. Race and religion are protected characteristics identified at s.4. 20. Race is defined at s.9 and includes colour, nationality, ethnic and national origins. Direct Discrimination 21. Mr Rahman says that he was directly discriminated against because of his race and his religion. Direct discrimination is defined at s.13(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”. 22. Section 23 provides that in making comparisons under section 13, there must be no material difference between the circumstances of the Claimant and the comparator. The comparator may be an actual person identified as being in the same circumstances as the Claimant, but not having his protected characteristic, or it may be a hypothetical comparator, constructed by the Tribunal for the purpose of the comparison exercise. The Claimant must show that he has been treated less favourably than that real comparator was treated or than the hypothetical comparator would have been treated. 23. The leading authority on when an act is because of a protected characteristic is Nagarajan v London Regional Transport

[1999] IRLR 572

and in particular, the speech of Lord Nicholls of Birkenhead, (I quote from paragraphs 13 and 17): “…in every case it is necessary to enquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator… I turn to the question of subconscious motivation. 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.” 24. The protected characteristic does not have to be the only, nor even the main, reason for the treatment complained of, but it must be an effective cause. Lord Nicholls in Nagarajan referred to it being suffice if it was a, “significant influence”: “Decisions are frequently reached for more than one reason. Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.” 25. Detriment was defined in Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] IRLR 285

; the Tribunal has to find that by reason of the act or acts complained of, a reasonable worker would or might take the view that he or she had been disadvantaged in the circumstances in which he or she had thereafter to work. However, an unjustified sense of grievance does not amount to a detriment. Harassment 26. Harassment is defined at s.26: “(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B… (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case;

(c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are— … race; religion or belief; ....” 27. We will refer to that henceforth as the proscribed environment. There are three factors to take into account: 27.1. The perception of the Claimant; 27.2. The other circumstances of the case, and 27.3. Whether it is reasonable for the conduct to have that effect. 28. The conduct complained of that is said to give rise to the proscribed environment must be related to the protected characteristic. That means the Tribunal must look at the context in which the conduct occurred. 29. HHJ Richardson observed in Hartley v Foreign and Commonwealth Office Services

UKEAT/0033/15/LA

at paragraph 23: “The question posed by section 26(1) is whether A's conduct related to the protected characteristic. This is a broad test, requiring an evaluation by the Employment Tribunal of the evidence in the round — recognising, of course, that witnesses will not readily volunteer that a remark was related to a protected characteristic. In some cases the burden of proof provisions may be important, though they have not played any part in submissions on this appeal. The Equality Code says (paragraph 7.9): ‘7.9. Unwanted conduct ‘related to’ a protected characteristic has a broad meaning in that the conduct does not have to be because of the protected characteristic.’ …”

The Law

[30]The motivation and thought processes of those accused of harassment may be relevant to the question of whether their conduct amounted to harassment, see Unite the Union v Nailard

[2018] IRLR 730

at paragraphs 108 -109.

[31]Sir Patrick Elias said in Grant v Her Majesty’s Land Registry

[2011] EWCA Civ 769

of the words, “intimidating, hostile, degrading, humiliating or offensive” that Employment Tribunals, “should not cheapen” the significance of those words, they are an important control to prevent trivial acts causing minor upsets being caught up in the concept of harassment.

[32]In Pemberton v Inwood

[2018] EWCA Civ 564

Underhill LJ said at paragraph 88: “ In order to decide whether any conduct falling within sub-paragraph (1) (a) has either of the proscribed effects under sub-paragraph (1) (b), a tribunal must consider both (by reason of sub-section (4) (a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of subsection (4) (c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances – sub-section (4) (b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so.” Victimisation

[33]Section 27 defines victimisation as follows:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

(4) This section applies only where the person subjected to a detriment is an individual.

(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.

[34]The meaning of, “detriment” is explained above.

[35]To be an act of victimisation, the act complained of must be, “because of” the protected act or the employer’s belief. The protected act does not have to be the sole cause of the detriment, provided that it has a significant influence, (see Lord Nicholls in Nagarajan v London Regional Transport [1999]ICR 877cited above). “Significant influence” does not mean that it has to be of great importance, but an influence that is more than trivial, (see Lord Justice Gibson in Igen v Wong cited below). Section 136 deals with the burden of proof: “(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.

[36]It is therefore for the Claimant to prove facts from which the tribunal could properly conclude, absent explanation from the Respondent, that there had been discrimination. If he does so, the burden of proof shifts to the Respondent to prove to the tribunal that in fact, there was no discrimination. The appeal courts’ guidance under the previous discrimination legislation continues to be applicable in the context of the wording as to the burden of proof that appears in the Equality Act 2010. That guidance was provided in Igen Limited v Wong and others [2005[ IRLR 258, which sets out a series of steps that we have carefully observed in the consideration of this case. We will set them out- 36.1. It is for the Claimant to prove, on the balance of probabilities, 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 Claimant. 36.2. If the Claimant does not prove such facts, he will fail. 36.3. It is important to bear in mind that it is unusual to find direct evidence of discrimination. Few employers would be prepared to admit discrimination even to themselves. 36.4. The outcome, at this stage, of the analysis by the Tribunal will, therefore, depend upon what inferences it is proper to draw from the primary facts found by the Tribunal. 36.5. At this stage the Tribunal does not have to reach a definitive determination that such facts would lead to the conclusion that there was an unlawful act of discrimination. At this stage the Tribunal is looking at the primary facts proved by the Claimant to see what inferences of secondary fact could be drawn from them. 36.6. In considering what inferences or conclusions can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation for those facts. 36.7. These inferences can include, in appropriate cases, any inferences that are just and equitable to draw from evasive or equivocal replies to questionnaires. 36.8. Likewise, the Tribunal must decide whether any provision of any relevant Code of Practice is relevant and if so to take it into account. This means that inferences may also be drawn from any failure to follow a Code of Practice. 36.9. Where the Claimant has proved facts from which conclusions could be drawn, that the Respondent has treated the Claimant less favourably on the prohibited grounds, then the burden of proof moves to the Respondent. 36.10. It is then for the Respondent to prove that it has not committed the act. 36.11. To discharge that burden of proof it is necessary for the Respondent to prove, on the balance of probabilities, that the prohibited ground in no sense whatsoever influenced the treatment of the Claimant, (remembering that the test now is whether the conduct in question was, “because of” the prohibited ground – see Onu v Akwiwu referred to above). 36.12. The above point requires the Tribunal to assess not merely whether the Respondent has provided an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that the prohibited ground was not a ground for the treatment in question. 36.13. Since the facts necessary to prove an explanation would normally be in the possession of the Respondent, the Tribunal would normally expect cogent evidence to discharge that burden of proof. In particular the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.

[37]This does not mean that we should only consider the Claimant’s evidence at the first stage; Madarassy v Nomura International plc

[2007] IRLR 246

CA is authority for the proposition that a Tribunal may consider all the evidence at the first stage in order to make findings of primary fact and assess whether there is a prima facie case; there is a difference between factual evidence and explanation.

[38]In Hewage v Grampian Health Board

[2012] UKSC 37

Lord Hope of Craighead said: “It is important not to make too much of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.”

[39]Having said that, HHJ Tayler cautioned in Field v Steve Pye and Co limited & Others

[2022] EAT 68

: “Although it is legitimate to move straight to the second stage, there is something to be said for an employment tribunal considering why it is choosing that option “

[40]In essence, one may as well set out the reasoning in the two stages as simply going straight to and accepting the Respondent’s explanation.

[41]Tribunals are cautioned against taking too fragmented an approach when there are many individual allegations of discrimination. Although we should make individual findings of fact on each allegation and consider whether they amount to an instance of discrimination, we should also stand back, look at the bigger picture and adopt a holistic view on whether the Claimant has been subject to discrimination. See Quershi v Victoria University of Manchester

[2001] ICR 863

, Rihal v London Borough of Ealing

[2004] IRLR 642

and Fraser v Leicester University EKEAT/0155/13/DM. Protected Disclosure

[42]What amounts to a protected disclosure is defined in the ERA at Section 43A as a qualifying disclosure. That in turn is defined at Section 43B as: “… Any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following – … a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any of the preceding paragraphs has been, or is likely to be deliberately concealed.

[43]In summary: 43.1. There must be a disclosure of information; 43.2. The worker must reasonably believe that the disclosure is in the public interest, and 43.3. The worker must reasonably believe that the disclosure tends to show one of (a) to (e).

[44]A protected disclosure must, (per section 43A) be made to one of a number of specified persons set out at sections 43C to 43H. Section 43C provides for disclosure to the claimant’s employer. Detriment

[45]Section 47B of the ERA provides that a worker has the right not to be subjected to any detriment because he has made a protected disclosure.

[46]A detriment may be inflicted by any act, or failure to act, (Section 47B(1)).

[47]The term, “detriment” is not defined in the ERA. We look to the meaning attributed to that phrase in the discrimination case law, in particular as defined in the seminal case of Shamoon v the Chief Constable of the Royal Ulster Constabulary

[2003] IRLR 285

as noted above.

[48]Section 48(2) of the ERA provides that it is for the employer to show the ground on which any act, or deliberate failure to act, was done. The claimant must still first prove on the balance of probabilities, that there has been a protected disclosure and that there was a detriment to which the claimant was subjected by the respondent. Then the burden shifts to the respondent to prove that the detriment was not because of the disclosure.

[49]Thus where it is established that there has been a protected disclosure, in considering whether a worker has been subject to a detriment as a result, an Employment Tribunal must ask itself: 49.1. Whether the worker has been subject to detriment; if so, 49.2. Whether that detriment has arisen from an act or deliberate failure to act by the employer, and if so 49.3. Whether that act or omission was done on the ground that the worker has made a protected disclosure. See Harrow London Borough v Knight

[2003] IRLR 140

[50]As to the link between the disclosure and the detriment, (“on the ground that”) one has to analyse the mental process, (conscious or unconscious) which caused the employer to act. The Court of Appeal considered this in Fecitt v NHS Manchester

[2012] IRLR 64

where it was held that there is a causal link if the protected disclosure materially influences, (in the sense of being more than a trivial influence) the employer’s treatment of the whistleblower.

[51]The respondent then, must prove on the balance of probabilities that the act, or deliberate failure, was not on the grounds that the claimant had done the protected act i.e. that the protected act did not materially influence, (was not more than a trivial influence on) the respondent’s treatment of the claimant, see Fecitt, in particular at paragraph 41.

Credibility

[52]In this case we have found it appropriate to take an overview of the evidence and assess credibility, before embarking on the fact finding exercise. That is not to say that this preliminary view on credibility determines the outcome of each and every conflict of evidence, but it does inform that process.

[53]We begin with an overview of the basic chronology: 53.1. Mr Rahman had been Acting Supervisor for a number of years, enjoying a financial advantage and a certain status as a consequence; 53.2. Mr Gordon was seconded to the Stonebridge Depot in December 2020; 53.3. Mr Rahman failed in his application for appointment to the substantive post of Supervisor in September 2021; 53.4. There was a consequence of loss of status and income following his thereafter ceasing to act up into the Supervisor role; 53.5. It is from that point that significant problems began to occur in Mr Rahman’s interactions with Mr Gordon; 53.6. In January 2022, there was a covertly recorded conversation between Mr Gordon and Mr Rahman, in which Mr Gordon ill advisedly raised his voice in confronting Mr Rahman for having accused him, (not to his face) of being racist; 53.7. In March 2022, Mr Rahman raised a grievance, making complaint about the way he had been treated by Mr Gordon, including an allegation that he had subjected him to discrimination; 53.8. As a consequence of anonymous complaints called, “Speak Outs” an investigation was undertaken, by interviewing staff at Stonebridge; and 53.9. After the conclusion of that investigation, Mr Rahman was suspended on 22 June 2022.

[54]Next we consider the information gathered during the June 2022 investigation. It is important to make it clear that we have not heard evidence from the individuals quoted in the investigation. What those individuals, (anonymously) are recorded to have said may or may not be true. The information gathered informs the Respondent’s actions thereafter, (in particular, the decision to suspend Mr Rahman) and it provides some corroboration and is of some assistance in assessing credibility.

[55]The notes taken of what various individuals said to the Investigating Manager, (one Ms Parker, HR Project Manager) are forty three pages long. She referred to there historically having been a Site Manager, (referred to as LD) who was not actively involved in running the site and an Acting Supervisor, namely Mr Rahman, “…who controlled time sheets and the signing of time sheets; high grade duty codes, overtime, was the site Union Rep; and controlled the allocation of vehicles and equipment, for the staff on site. There is clear evidence that there has been favourable treatment by previous management to certain staff, and mistreatment to others.”

[56]Ms Parker wrote in her conclusions, “I would describe the experience, for some of these members of staff, and the way they have been treated, as them being victims in a coercive, domestic abuse relationship; there are members of staff who have been terrified to speak out for fear of repercussions to them; and have been controlled financially, psychologically, and emotionally, by colleagues and managers. It would appear, that there is a minority (R and A), [that is Mr Rahman and Mr Hasan] who wish for the site, to revert to the previous management behaviours, (under LD), and look to achieve this by trying to change the current working environment by making it a negative place to work, or by forcing people to leave.”

[57]Having read through the notes of the investigation, the Tribunal can understand why Ms Parker wrote her conclusions in those terms. We ourselves make the following observations: 57.1. There was no record of anybody complaining of racist language by Mr Gordon; 57.2. There were no references to the use of the expression “muzzie” or other racist language; 57.3. Everybody was complementary of Mr Gordon, (who replaced LD) except Mr Rahman and Mr Hasan; 57.4. Many accused Mr Rahman of racism; 57.5. Many accused Mr Rahman of nepotism, both literally in relation to his son and figuratively, in relation to his friends or favourites; and 57.6. It is a shame that the ethnicity of the anonymous individuals is not recorded, but we can certainly discern from what is written that two of the individuals who complain about Mr Rahman are Muslims, namely S and J1.

[58]There is a great deal in the interview notes that could be recited, we pick out a few of the more egregious points by way of illustration, (it would not be proportionate to include everything): 58.1. “J felt that the Africans on site were the only group who had been refused cars. 58.2. J feels that Mr Rahman discriminated against African staff members and that the Blacks on site were demonised by Mr Rahman and that he displayed nepotism, favouritism and bullying. 58.3. J1 complains about vehicle allocation, Mr Rahman looking after his favourites, hearing rumours that Mr Rahman tampered with time sheets. 58.4. S complained about not being given time off for fasting, he spoke of Mr Rahman saying to him that he would, “crush” him. He spoke of Mr Rahman having his favourites who were on-call and no one else getting a chance. 58.5. E1 who is Polish reported Mr Rahman making jokes that he showered in Vodka. 58.6. D quoted Mr Rahman as referring to I, (who we gather is black) as a “blind knight Stevie Wonder”. 58.7. O is quoted as saying, “I’ve been told because I am Albanian I sell drugs; I should work in a car wash and I am a criminal by “R”. I have a text from him, me asking for a training course and him saying I’m not registered in the EU”. 58.8. S, (quoted above) said that Mr Rahman also did not like white people. He also said that Mr Rahman had all of LD’s passwords to his work computer and would respond to emails using LD’s computer. 58.9. G said that he felt that Mr Rahman did not like him because he was black. 58.10. O complained that “…wasn’t a fair process under LD and R, on days R oversaw training, overtime, high grade, vehicles, what cars people got and ordering PPE. R’s kid started at Stonebridge and started six months after O started, he had more tickets than O, he was allowed to do more training than anybody else. O worked committed to overtime or do more than O needed to; O had to keep getting onto R with training.” 58.11. S complained that when he started working for the Respondent and told Mr Rahman that his name was Hamza, Mr Rahman had replied, “Abdul Hamza, that is a terrorist”. He also said there were other things that he wanted to say, but he wouldn’t because the Police would get involved. He heard Mr Rahman and Mr Hasan saying that they were going to “finish off” Mr Gordon. He quoted Mr Rahman as referring to a Somalian as “a pirate” and an Irish man as “gypo”.

[59]There were issues with the credibility of Mr Rahman’s oral evidence before the Tribunal in cross examination: 59.1. Mr Rahman’s evidence that his former friend and colleague Mr Makuch did not used to make derogatory comments about Muslims until the arrival of Mr Gordon at the Depot was not credible. 59.2. Many of the allegations in the List of Issues refer to use of the expression, “muzzie”. Mr Rahman makes no reference to the use of the word “muzzie” in his grievance documents, or at any point until the issue of these proceedings. He is a former Trade Union Representative. If the expression had been used in a derogatory context, he would have complained about it at the time and he would certainly have included it in his written grievance documents. 59.3. Mr Rahman’s case is that Mr Gordon reorganised the rotas to target Muslims. The document at page 1083, an email dated 30 May 2021 explaining the reorganisation of the rotas and the intention to move everybody about regularly to avoid cliques, to ensure that staff use their competencies and to make sure that the Depot is resilient, is compelling evidence that refutes that allegation. 59.4. Mr Rahman suggested in evidence that a Muslim colleague, Mr Agostini, left the Stonebridge Depot because of Mr Gordon and the racist Islamophobic way he was treated by Mr Gordon. In an email dated 12 July 2021, Mr Agostini praised Mr Gordon, describing him as firm but fair. In contrast, he criticised Mr Rahman in terms that are reminiscent of some of the investigation quotes we have set out above. This allegation is entirely without credibility. 59.5. Mr Rahman alleged that Mr Gordon made him swap his 4 x 4 vehicle because he is Muslim. The Respondent’s case was that the depot needed 4 x 4 vehicles available for call outs during the winter. Mr Rahman himself in a clandestine recording he made of a conversation with Mr Evans, observed that Mr Makuch, (Polish and not Muslim) was also asked to release his 4 x 4 vehicle and indeed, to pass it on to somebody called Az, who is a Muslim. 59.6. Similarly, Mr Rahman alleges that Mr Gordon refused to provide him with an alternative vehicle on a number of occasions, but in the transcript of the clandestine recording Mr Rahman made of his conversation with Mr Gordon, he commented that he had just once asked for another vehicle and that was on an occasion when Mr Gordon was not at the Depot. 59.7. Mr Rahman’s case was that Mr Gordon was responsible for taking away his competencies. Despite his attempts to obfuscate, the evidence was clear that one competency was taken away because it was no longer required once he ceased to be acting up as a Supervisor. In respect of the other competency, known as an SO53, he himself had said that he was not comfortable and therefore, he was placed upon probation so that he could be mentored in the task before the competency was reinstated. Being placed upon probation for a competency is not the same as having the competency removed. 59.8. During the clandestine recorded conversation between Mr Gordon and Mr Rahman on 17 January 2022, it is notable that at no point does Mr Gordon use the word “muzzie” or use any other racist language towards Mr Rahman. Mr Rahman does not take the opportunity to accuse him of being racist, or using racist language toward him, or in any other way. 59.9. Similarly, during his clandestine recorded conversation with Mr Bavington, discussing Mr Gordon, the transcripts reveal that he does not complain of racism by Mr Gordon. 59.10. One of the allegations is that Mr Rahman was not invited to a party celebrating the end of Covid. An email in the Bundle at page 573 shows that he clearly was, yet he persisted with the allegation.

[60]When confronted with these contradictory pieces of evidence during cross examination, Mr Rahman was unable to answer them, he dissembled and obfuscated. He did not relent or concede that he was wrong or may have been mistaken or withdraw his allegations.

[61]We heard, during evidence, that Mr Makuch and Mr Rahman, who had been colleagues for more than twenty years, had been friends. Mr Makuch says that he and Mr Rahman fell out when Mr Rahman told him to “fuck off”. Mr Rahman said that they had fallen out because Mr Makuch was currying favour with Mr Gordon. Mr Makuch’s explanation was the more credible.

[62]We listened, (at our request) to the recording of the conversation between Mr Gordon and Mr Rahman on 17 January 2022. We noted that Mr Rahman denied having called Mr Gordon a racist, that during the course of their exchange he did not accuse Mr Gordon of being a racist, nor accuse him of using the term “muzzie”. We noted that Mr Rahman had been recording for some thirty minutes before Mr Gordon entered, corroborating the reputation that he was said to have, of secretly recording peoples’ conversations. Mr Gordon was very obviously angry, angry that Mr Rahman had been telling others that he, Mr Gordon, was racist. Mr Gordon’s voice was raised, some might describe the manner as shouting, to say that he was screaming would be an exaggeration. Mr Gordon’s behaviour certainly in the first part of their exchange, was inappropriate on the part of a manager and certainly, an inappropriate reaction to being accused of racism. Mr Rahman of course knew that the conversation was being recorded, which explains how remarkedly calm and polite he remained throughout the conversation. We also noted that as the conversation progressed things calmed down, Mr Gordon encouraged cooperation, Mr Rahman responded appropriately and by the end, all appeared to be well.

[63]We noted the evidence of Mr Brown, also somebody who was on friendly, amiable terms with Mr Rahman and had known him for some time. He gave compelling evidence, speaking of being wary of Mr Rahman, of keeping, “your friends close and your enemies closer”, of being suspicious of Mr Rahman’s honesty. He is the witness that pointed out that contrary to Mr Rahman’s allegation, he had been invited to the post Covid party, by him, in the email at page 573.

[64]It was clear to the Tribunal Mr Rahman’s evidence when uncorroborated or when contradicted by others, must be treated with circumspection.

Findings of Fact

[65]Mr Rahman describes himself as Bangladeshi Muslim.

[66]The Respondent owns and runs the Railway Infrastructure for England, Scotland and Wales. These proceedings arise out of Mr Rahman’s employment at the Respondent’s Stonebridge Depot, responsible for maintaining a section of some of the busiest railway lines in the country.

[67]Mr Rahman’s employment began on 23 July 2000 as an Infrastructure Maintainer. He progressed to Team Leader. That is, leader of a team that was one of a number of teams responsible for maintaining the track. Since 2010, he had acted up as an Acting Supervisor, that is performing the role of a Supervisor, but remaining on Team Leader terms and conditions. In acting up, Mr Rahman received pay enhancement and remained entitled to overtime to which he would not have been entitled, had he been appointed to the substantive post of Supervisor. A person acting up as a Supervisor is substantially better paid than an appointed Supervisor. A person would nonetheless normally be incentivised take a Supervisor appointment as a first step on a career path in management.

[68]Mr Rahman’s duties as an Acting Supervisor entailed spending some of his working time in the office at the Stonebridge Depot and some of his time out on the tracks with the teams.

[69]From about 2015, Mr Rahman was also a Trade Union Representative with the RMT (the National Union of Rail, Maritime and Transport Workers).

[70]Team rosters were agreed between Supervisors and Union Representatives, before finally being submitted to and sanctioned by, Management. The rosters were agreed in thirteen week blocks and rarely changed from one block to the next.

[71]Mr Rahman during his time at Stonebridge, worked under a number of Track Section Managers. For a period, the Track Section Manager was an individual we will identify as LD. When LD started in that role is not clear to us, but he was in that position for a number of years ending in December 2020, when he was replaced by Mr Gordon. We have been told that LD suffered from health issues and that there were known problems with Management of the Stonebridge Depot during his tenure. Some of those problems are identified in some of the quotes set out above from the Parker Investigation. Problems also related to the performance of the Depot.

[72]In December 2020, LD was relocated and Mr Gordon was temporarily seconded to Stonebridge, with a view to his resolving the issues perceived by Senior Management to exist at that Depot, before moving on elsewhere in the Respondent’s career structure. Issues 24.1 and 27.1.1

[73]On 31 March 2021, an Engineering Supervisor who we will call ZA expressed concerns to Mr Gordon that he was not comfortable undertaking Engineering Supervisor duties because he felt inexperienced in dealing with machinery on a work site. ZA was certified as competent to perform that role, but in view of his expression of lack of confidence, Mr Gordon arranged for ZA to be mentored and guided to a point where he became comfortable in that role and was able to perform it. Mr Gordon did not have a conversation with Mr Rahman about ZA and another individual, JC, being placed as Engineering Supervisors on big work sites, nor did Mr Gordon say to Mr Rahman in any conversation, “Who the hell are you to tell me what the rules are? If I say they do it they had better do it!”

[74]Mr Gordon did not scream at Mr Rahman with regard to teaching him the rules, nor did he say, “Go on then, I dare you!”

[75]ZA’s email to Mr Gordon raising his concerns, dated 31 March 2021, is at page 1077. Issues 12.1, 12.2, 15.1, 15.2 and 21.1.1

[76]Mr Rahman alleges that on 6 May 2021, with Eid approaching, Mr Makuch told Mr Gordon that there were too many “muzzies” in the patrol gangs, that Mr Gordon said there were “too many eggs in one basket” and that he had complained to Mr Gordon that these remarks were discriminatory. He alleges that Mr Gordon told him that he is the Manager and he can do what he wants. We find that no such conversation took place between Mr Makuch and Mr Gordon, nor between Mr Rahman and Mr Gordon.

[77]We acknowledge that it is the Respondent’s case on the papers that the expression “muzzies” was never used to describe Muslims and nobody had ever heard the expression. Mr Makuch said as such in his witness statement. In his evidence, without hesitation or even prompting, he acknowledged that the expression was frequently used in the Gangs on the track, between Muslims to refer to themselves. He acknowledged that he himself used the expression when talking to his Muslim colleagues, with their express permission. In other words, that he had asked them whether it was okay for him to use that expression and whether they would be offended by it and they told him that it was okay and that they would not be offended. Mr Makuch was also quite clear and adamant that the expression was never used outside the gang environment and not by or to Management. Notwithstanding that, Mr Makuch had earlier sworn that the contents of his witness statement were true, in which he said at paragraph 16, “I have never heard that language or language similar to it whilst at work.”

[78]English is not Mr Makuch’s first language, he is Polish. This apparent change in evidence seemed to us to say more about the care with which his witness statement was prepared rather than the honesty of Mr Makuch himself. Mr Makuch struck us as being an honest witness, evidenced by his willingness to immediately acknowledge that the expression was used. We found him to be a reliable and impressive witness. Issues 12.3 and 15.3

[79]On 30 May 2021, Mr Gordon sent an email to supervisors and managers with regard to changes to the roster, (page 1083). He explained that he was making changes to the gangs, rotating them regularly so that staff gain experience in all areas of inspection and maintenance, he wrote that he considered this would be healthier for team work, to avoid cliques, to ensure that staff get to use their competencies and he referred to rotating regularly to make them more resilient.

[80]Mr Rahman alleges Mr Gordon changed the roster by moving six named Muslim staff into different gangs, causing a number of Muslim staff to leave, including ZA and two others we will identify as HM and BA. The roster was agreed with the Union six weeks in advance. The changes were made for business reasons. After the changes, HM moved to Signalling and Telecoms at a different depot, BA moved to an operational role at a different depot and ZA moved to working on overhead lines, although still based at Stonebridge. The moves of HM and ZA represented promotions and the email of BA at page 463 gave the impression that his move was not as a consequence of the actions of Mr Gordon, whom he described as firm but fair, but rather because of his expressed views of Mr Rahman as a bully. The changes were not limited to Muslims.

[81]On 14 July 2021, Mr Gordon sent an email to Supervisors and Managers under the subject heading, “SM update and small changes to running of office”. Amongst other things, he spoke of the Depot being placed in Special Financial Measures. He wrote of there being a clamping down on staff acting up as supervisors and indicated that there would be new Supervisor posts open for people to apply for in due course. Issues 12.4 and 15.4

[82]The roster and other documents such as overtime sheets and patrol sheets had been stored on a shared drive to which Mr Rahman and other Supervisors had access. On 16 September 2021, Mr Gordon moved those and other documents onto SharePoint, to which access was controlled. Who could access which document was controlled and who could edit or not was also controlled. As we have heard, the roster, (which is the document to which Mr Rahman refers in the List of Issues) was agreed in advance with the Union once the roster was approved by Management and it was placed on the IT system without further amendment. It was wholly confusing as to what document Mr Rahman was complaining that he did not have access to after 16 September 2021. The most likely explanation arising out of the confusing evidence that we heard, is probably that Mr Rahman was trying to access documents on the shared drive when they had been moved to SharePoint. Mr Gordon did not refuse to provide Mr Rahman with a password, for the roster or for any other document. Mr Gordon did not say that he did not want a “muzzie” in the office. Mr Gordon did not say, “I am not going to have a muzzie paki telling us what to do, how to do it. He was already causing me problems.” Or words to that affect. Issues 12.5, 15.5. 24.2 and 27.1.2

[83]Mr Rahman alleges that on 21 September 2021, he raised Covid related issues relating to the number of people in work vehicles, in the course of a Health and Safety meeting which included Trade Union Representatives. He says that he raised this with Mr Gordon prior to the meeting, who had told him that staff in the vehicles should wear face masks. Further, he alleges that after the meeting, Mr Gordon told two Supervisors, (Mr Spelman and Mr Evans) not to listen to Mr Rahman. He says Mr Gordon was angry that he had raised Health and Safety issues and had said that he did not want a “muzzie” in the office. During an investigation meeting on 12 December 2022, Mr Evans told Mr Killworth, (see below) that he did not recall Mr Gordon telling him not to speak to Mr Rahman. The evidence of Mr Spelman, (and Mr Gordon) was that Mr Gordon had not told him not to speak to Mr Rahman. We find that Mr Gordon did not tell Mr Evans and Mr Spelman not to speak to Mr Rahman. Mr Gordon accepts that Mr Rahman may have raised issues with regard to Covid and Health and Safety, many such issues were raised, by Mr Rahman and others. From the evidence that we saw and heard, we find that Mr Gordon was safety conscious about Covid and he took steps to enforce Health and Safety Rules, which he took seriously. Mr Gordon was not angry about Health and Safety issues being raised and did not say that he did not want a “muzzie” in the office.

[84]On 22 September 2021, Mr Rahman was interviewed for permanent appointment to the position of Supervisor. Three new Supervisor roles had been created at the instigation of Mr Gordon. He was interviewed by Mr Gordon and Mrs Wadkins. He performed badly at interview and was not appointed. This is not an issue in the case.

[85]On 23 September 2021, Mr Rahman stepped down as a Trade Union Representative, (page 511).

[86]On 25 September 2021, Mr Rahman received an email from Human Resources to inform him that he had been unsuccessful at interview in his application for appointment to Supervisor. This email is not in the Bundle.

[87]On 29 September 2021, Mr Gordon sent an email to Team Leaders, Supervisors and Managers, (page 512) about vehicle management. It referred to vehicles having been inspected recently and there being a number of issues that had to be improved. Those issues included laxity in completing Mileage Books, that individuals were not correctly recording the mileage of every journey they take in the vehicle that they are using. He observed, “Some had not been filled in for six months”. He reminded people that the Mileage Book has to be completed at the end of every journey.

[88]On 1 October 2021, Mr Gordon wrote to Mr Rahman to inform him that he had been unsuccessful at interview, noting that Mr Rahman himself had acknowledged at the interview that it had not gone well and that he had not been able to demonstrate the technical knowledge required in answer to four questions. He offered to provide further feedback on the interview and the technical questions. Mr Rahman politely acknowledged the email and asked Mr Gordon to book him on any training that would be available to improve his knowledge.

[89]The option of Supervisors acting up had been removed with the appointments made to the new Supervisor positions. Therefore, on 4 October 2021, Mr Gordon wrote to Mr Rahman to ask him to clear his desk and hand back his office keys. He acknowledged that Mr Rahman would be disappointed, but made the point that there were other Supervisor posts likely to be advertised in the imminent future, (page 560). Mr Rahman replied phlegmatically, (page 565) that it was not a disappointment, he did not think he was one hundred per cent committed, saying, “You win some, you lose some”, he confirmed that he would take Mr Gordon up on the offer of skill development.

[90]Mr Rahman alleges that Mr Gordon revealed to the whole Depot that Mr Rahman had applied for other jobs and knocked his lack of success stating, “Who would want to employ him? Nobody will ever hire him, I’ll make sure of it. He will never be a supervisor again, not in this DU”.

[91]Mr Rahman’s evidence was that Mr Gordon had informed four members of staff including Mr Brown, who said in evidence that was not true. Mr Rahman in his witness statement did not say that he had heard this himself, but that he had been told by Mr Evans that Mr Gordon had done so. Mr Gordon denies it. We find that Mr Gordon made no such pronouncement either to the Depot at large, or to individuals and he did not use the words of which he is accused by Mr Rahman. Issues 12.7 and 15.7

[92]Mr Rahman complains that during October / November 2021, there was an after work drinks party to which he was not invited. He further accuses Mr Gordon of spreading rumours that a subsequent drug and alcohol test of staff had been called by Mr Rahman because he did not get the Supervisor’s job, which caused colleagues thereafter to deliberately avoid and ignore him. It is not true to say that he was not invited, he was. In addition to notice of the party placed upon the staff notice board, an email was sent out, of which Mr Rahman was a named recipient, (page 573). Mr Gordon denies that he spread rumours that a drugs and alcohol test was called at Mr Rahman’s instigation. He says that he knew precisely why the testing had been arranged and that it was nothing to do with Mr Rahman. We accept Mr Gordon’s evidence; he did not spread such rumours and he did not thereby cause Mr Rahman’s colleagues to avoid and ignore him. Issues 12.8 and 15.8

[93]Mr Rahman says that he approached the Euston DU, (Delivery Unit) Manager Mr Bavington to complain about Mr Gordon. He alleges Mr Bavington said to him he did not want to speak to him about these issues. He further alleged that Managers and Supervisors, (namely Mr Tubby, Mr Brown, DE, Mr Spelman, Mrs Wadkins and an individual we will refer to as EA) as deliberately avoiding and ignoring him. Mr Bavington in evidence acknowledged that Mr Rahman had approached him during a quarterly Euston DU Health and Safety Trade Union Representative meeting. He explained these meetings were governed by a strict agenda in accordance with a Collective Bargaining Agreement and that a discussion about other matters was strictly not permitted. Mr Bavington explained he knew that matters were being raised in Speak Outs and that the Health and Safety meeting was not an appropriate venue for discussion about other matters. He therefore shut down the conversation. We accept Mr Bavington’s evidence. There is no evidence before us other than Mr Rahman’s allegation, that the other named individuals began to deliberately avoid and ignore him. We find that they did not.

[94]As alluded to in the preceding paragraph, during this time the Respondent had begun to receive a number of what it calls Speak Out complaints. Some of these were from Mr Rahman and Mr Hasan about Mr Gordon, some of them were from others and some were about Mr Rahman.

[95]Upon Mr Rahman returning to Team Leader duties, the Track Inspection Competency, known as TR07, was removed by Mr Gordon from Mr Rahman, as it was not a requirement for a Team Leader.

[96]In respect of the Points Inspection Competency, known as an SO53 which was required of Team Leaders, Mr Rahman told Mr Gordon that he did not feel comfortable performing such inspections, as a consequence of which Mr Gordon placed Mr Rahman on probation in relation to that particular competency, which meant that he was appointed a mentor when he carried out the task and that after a period of time he would be assessed and his competency reinstated, assuming he passed that assessment. Email correspondence corroborates this, see in particular at page 596, an email exchange on 10 and 11 November 2021.

[97]On 11 November 2021, Mr Rahman forwarded to Mr Gordon by email a photograph of his fuel card and the Mileage Log Book for the vehicle that he was using, pursuant to Mr Gordon’s request that he do so. Issues 12.9, 15.9, 24.3 and 27.13

[98]Mr Rahman alleges that on 21 November 2021, Mr Tubby told him to do a patrol with no COSS or look out. He said he was given a contractor as a look out after an argument with Mr Tubby. He further alleges that on this day, he asked Mr Makuch why he was ignoring him and that Mr Makuch had responded, “you know why”.

[99]Dealing with the latter point first, contrary to Mr Rahman’s suggestion that the reason why Mr Makuch was ignoring Mr Rahman was that he was currying favour with Mr Gordon, (after more than twenty years of friendship). We accept Mr Makuch’s evidence that at some point, (he did not recall the date) during a Roll Call, Mr Rahman had asked him where Mr Hasan was and Mr Makuch had replied that he was out on the track, in response to which Mr Rahman told Mr Makuch to, “fuck off” and said, “who the fuck are you telling him where to go”, (or words to that effect).

[100]Mr Makuch did not like the way that he had been spoken to.

[101]A COSS is a Controller of Site Safety. A COSS holds a qualification to that effect. There was much discussion during evidence in Tribunal about when a COSS was or was not needed, whether a Look Out or more than one Look Out was needed or not. In short, we accept the evidence of Mr Tubby that he has never and would never tell anyone to do a patrol with no COSS or Look Out in circumstances where the same were required and he did not do that of which he is accused by Mr Rahman, on 21 November 2021. We accept Mr Tubby’s evidence that he did not have an argument with Mr Rahman.

[102]On 24 November 2021, Mr Gordon emailed Mr Rahman to request that he return his fuel card so that it could be shared out. He was the only person with his own fuel card. Issues 2.10 and 15.10

[103]Mr Rahman alleges that Mr Gordon called a meeting of patrol staff but did not invite him and that he did not subsequently invite him to Patrol and Team Leader meetings. He also alleges that Mr Gordon told Mr Evans and others not to speak to him. In the meeting with Mr Killworth on 22 December 2021, Mr Evans confirmed that he did not recall being told by Mr Gordon not to speak to Mr Rahman. Mr Gordom denies the allegation, we accept his evidence and find that he did not tell Mr Evans not to speak to Mr Rahman, nor did he tell anybody else not to speak to Mr Rahman.

[104]Mr Rahman was not invited to a meeting of Patrollers because he was not a Lead Patroller. Mr Gordon did not cease to invite Mr Rahman to Team Leader meetings.

[105]Mr Rahman alleges by way of asserting a Protected Act, that in early December 2021 he approached Mr Brown to complain about the conduct of Mr Gordon. Mr Brown denies that Mr Rahman ever approached him to complain that he was being subjected to discrimination by Mr Gordon. We accept Mr Brown’s evidence.

[106]At the beginning of December 2021, with winter approaching, Mr Gordon decided that the 4 x 4 vehicles on the depot fleet should be kept at the depot, available for the On-call Team. Mr Rahman had a 4 x 4 vehicle known as a Hilux. On 2 December 2021 Mr Gordon emailed Mr Rahman and asked him to return the Hilux, assuring him that there would be other vehicles available for him. He made a similar request to Mr Makuch, who had a 4 x 4 vehicle known as a Ford Ranger, (see page 608 and 833). Issues 2.1 and 6.1

[107]This is an allegation that Mr Gordon sent Mr Rahman an email claiming that mileage was missing from the Mileage Book and that the difference was greater than the home to Depot distance.

[108]Linked to that are: Issues 12.11, 12.12, 15.11 and 15.12

[109]These are that Mr Gordon accused Mr Rahman of putting false information in the Mileage Book, calling him a liar and screaming at him, “Who the hell do you think you are?”

[110]Mr Rahman had not immediately returned his vehicle as requested, he then called in sick with the relevant vehicle still at his home. The vehicle was not returned until 7 December 2021, driven to the depot by Mr Rahman’s son. It was returned without the Mileage Book. Therefore, on 7 December 2021, Mr Gordon wrote to Mr Rahman, “When you return please ensure you have the mileage book with you. Until I receive this you will not be authorised to drive any NR vehicles. The last time this was checked there were six months missing and now the van has been returned it is not there.”

[111]The Mileage Book was returned on 8 December 2021, but Mr Gordon saw that it was incomplete. He therefore wrote, “Can I please have details on the missing mileage. This is far greater than the mileage from home address to the depot that was carried out after the van was returned.”

[112]Mr Rahman replied, (page 617) asserting that the missing mileage was that from his home to the Stonebridge Depot and explaining that the Mileage Book was not with the vehicle when it was returned because the book had been taken out along with everything else when it was emptied for return. Mr Gordon replied, “That is not correct and the mileage was much higher when checked Saturday. Either way it makes no difference, I knew it wouldn’t be right after previous inspections, but the book should have been with the vehicle, it was your own family that returned it, and they never raised there was no book either. Either way it is done now and there was no reason for it. Just playing games and didn’t like being found out.”

[113]Although Mr Gordon’s response is somewhat forthright, it is explained by the history of the vehicle not being returned when it was asked for, not being returned with the Mileage Book, with the discrepancy on the mileage and the previous issue of mileage not being entered as it should have been.

[114]We accept Mr Gordon’s evidence that he did not speak with Mr Rahman again about the matter, his email at page 617 quoted above brought the matter to a conclusion. Mr Gordon did not scream, “who the hell do you think you are?”. Issues 2.3, 6.3, 12.14 and 15.14

[115]Mr Rahman says that in the first week of January 2022, whilst he was on track doing an inspection, Mr Gordon attended and snapped at him, rudely telling him to do the inspection properly. This was an assessment following Mr Rahman’s probation on the SO53 Competency as referred to above. We find that nothing inappropriate was said by Mr Gordon, he did not snap or speak rudely to Mr Rahman, he may well have encouraged him to do the inspection properly, because he wanted him to pass and his competency reinstated, with the probation status removed. Issues 2.4, 6.4, 12.15 and 15.15

[116]Mr Rahman alleges that on 7 January 2022, Mr Gordon did not believe him when he said he did not have a key to a particular store and that he therefore verbally attacked him using foul language, insults and false accusations saying, “You’re a lying mother fucker” repeatedly and in an aggressive manner and tone. He says that Mr Gordon had said, “You fucking prick, I don’t want to hear that” and accused him of wanting Mr Gordon to fail and that he said, “I don’t want to hear that you fucking lying prick, I know you and your muzzie kind”, approaching Mr Rahman clenching his fists.

[117]There was an incident in which Mr Gordon asked Mr Rahman for a key. It was for a key to a store for paint and a degreaser, (not the main store office referred to in the List of Issues). Mr Gordon felt he knew Mr Rahman had a key, because he had seen him use it previously, as corroborated by Mr Makuch and Mr Brown. Mr Gordon thought that Mr Rahman was not telling the truth, that he was being deliberately obstructive. He accepts that he challenged Mr Rahman saying that he knew that he had a key and Mr Rahman continued to deny that he did. We note the content of the email dated 7 January 2022 following this incident, in which Mr Gordon wrote, “You told me today that you never had keys for certain locks even though I knew you did. I did not want to push the issue as it wasn’t worth the effort but it has now been confirmed you do? I have seen you use them before. I am not at all surprised but why lie about this? “

[118]Having heard the recording of Mr Gordon’s conversation with Mr Rahman on 17 January 2022, we accept that it is possible that Mr Gordon was angry and used foul language. However, his reference in his contemporaneous email to not wanting to push the issue corroborates his denials that he used offensive language. We note that these details as to what was said were not provided by Mr Rahman in his original claim, it was provided by way of further and better particulars at a later stage. It seems to us an embellishment and an exaggeration. The language used does not seem credible, in particular the expression, “I know you and your muzzie kind”. Whilst Mr Gordon may have been angry and may have sworn, we find that he did not use the extreme language attributed to him in recital of Issue 2.4 or that he behaved physically in the way alleged. Issues 2.5 and 6.5

[119]It is alleged that Mr Gordon told Mr Evans, copying Mr Rahman in on emails to Mr Hasan, it was because Mr Rahman was his uncle and that they were both, “brown skins”. We accept that Mr Gordon never used the expression, “brown skins” to describe Mr Rahman, Muslims or anybody else. It is an unlikely expression. Issues 2.6 and 6.6

[120]This was a conversation between Mr Gordon and Mr Rahman on 17 January 2022, which Mr Rahman covertly recorded. The transcript begins at page 650. We listened to the recording. We have explained what was said and our views above.

[121]On 28 January 2022, Mr Bavington sent an email to all staff at the Stonebridge Depot as follows, “I have received a number of anonymous reports regarding issues that are alleged to be happening within the Stonebridge Park Track Team. The Speak Out process is every employee’s right to use but if possible, I would also urge people to raise issues within the organisation as well so that they can be progressed much quicker; it is extremely difficult to investigate anonymous allegations as I have no one to follow up with or clarify allegations.”

[122]Mr Bavington also visited the Stonebridge Depot and encouraged people to speak to him, but no one did. Subsequently, the precise date is unclear, Mr Bavington further wrote to the staff at Stonebridge to explain that he had not received any substantive feedback to his request and that he had therefore asked an independent Manager Ms Parker to come to the Depot and speak to people about issues they may wish to raise.

[123]On 15 and 22 March 2022, Mr Bavington had two conversations with Mr Rahman, which he covertly recorded and transcripts of which were in the Bundle at pages 680 and 672 respectively. Mr Rahman is indicating that he wishes to complain about Mr Gordon. Mr Bavington encourages him to submit a grievance, so that it can be looked at properly. We note no allegations of discrimination as such, are made by Mr Rahman.

[124]On 24 March 2022, Mr Gordon emailed somebody in the Respondent’s Finance Department, (PA) to request that they provide him with the fuel card history in respect of the fuel card held by Mr Rahman. He wrote, “It was in circulation with someone in my team without my knowledge so I want to make sure everything is in order.”

[125]Mr Gordon acknowledges he made this request because he was suspicious that Mr Rahman had made fraudulent use of the fuel card. He told us that he has reported his suspicions, but is unaware whether or not they have been investigated.

[126]On 28 March 2022, Mr Rahman raised a grievance complaining of discrimination, (page 708). This is a short letter simply saying that he has multiple complaints. It does not provide detail. There is a document which follows in the Bundle at page 711 which does provide detail, but it appears this was not provided at the time of the letter. In a subsequent meeting with the Grievance Investigator, Mr Rahman said he had been unable to attach notes to the Grievance Application, which seems odd from a Trade Union Representative who must have been familiar with the process of submitting grievances, (page 1040).

[127]A manager from a different part of the business, Mr Killworth, was appointed to hear the grievance on 22 April 2022, (page 717). Extraordinarily, Mr Killworth told us he had not originally been provided with a copy of Mr Rahman’s grievance, not even the single page letter. He says he was simply told that there was a grievance about discrimination for him to investigate.

[128]By letter dated 28 April 2022, Mr Killworth wrote to Mr Rahman to invite him to attend a Grievance Hearing on 17 May 2022.

[129]We note from the Respondent’s Grievance Policy at page 196, that a date for a Grievance Hearing should be agreed within seven days of the submission of the grievance.

[130]At the Grievance Hearing on 17 May 2022, Mr Rahman provided Mr Killworth with his written narrative setting out the detail of his grievance, for the first time. Notes of the Grievance Hearing begin at page 1040. Mr Killworth talked to Mr Rahman about his grievance. The meeting lasted between 10:10am and 12pm. It concluded with Mr Killworth telling Mr Rahman that he would review the meeting and the notes and that a further meeting would be scheduled in a few weeks’ time. No such further meeting was ever scheduled.

[131]Ms Parker conducted her interviews with the Stonebridge staff between 6 and 16 June 2022 and produced a report. The original report was not anonymised, it identified the individuals interviewed. The report was reviewed by Mr Chibanda, (Infrastructure Maintenance Engineer), Mr Bavington and an Employee Relations Advisor Ms Takiar. In view of the content, the allegations of bullying, harassment and racism, the decision was taken to suspend Mr Rahman and Mr Hasan. Issues 2.7, 6.7, 12.16 and 15.16

[132]Mr Chibanda attended Stonebridge on 20 June 2022 to inform Mr Rahman that he was suspended. The decision to suspend was confirmed in a letter dated 22 June 2022, (page 794) it confirmed that he was suspended because of concerns raised regarding allegations of inappropriate behaviour which might amount to gross misconduct and a serious breach of the Bullying and Harassment Policy.

[133]A final version of the Parker Report with the names of the individuals anonymised, was produced dated 26 July 2022.

[134]Mr Chibanda had two conversations with Mr Rahman during the first six weeks of his suspension, at the instigation of Mr Rahman. He was trying, unsuccessfully, to procure the return of his mobile device.

[135]On 8 August 2022, Mr Banister wrote to Mr Rahman to confirm that his suspension would continue, (page 796). The decision to continue his suspension was made by Mr Chibanda, but from this point on Mr Rahman’s suspension was managed by Mr Banister.

[136]By letter dated 13 September 2022, Mr Rahman was informed that a Mr Chapman had been appointed to investigate the disciplinary allegations against him.

[137]In October 2022, Ms Yates started in post as Senior HR Business Partner for the area that includes Stonebridge Depot. She became responsible for providing HR support in respect of Mr Rahman’s case and became the HR Advisor to Mr Killworth.

[138]On 28 October 2022, Mr Killworth wrote to Mr Rahman to inform him that he aimed to complete the Grievance Investigation by week commencing 14 November 2022.

[139]Mr Rahman commenced ACAS Early Conciliation as a pre-cursor to issuing these proceedings, on 31 October 2022. He subsequently issued these proceedings on 15 November 2022. On the face of it, any matters complained of after this date are not the subject of these proceedings without amendment and there is no Order expressly permitting amendment. We note that at the Preliminary Hearing before Employment Judge Laidler on 10 May 2023, a Draft List of Issues was prepared after Ms Shepherd had been through a twenty one page document produced by Mr Rahman. It rather looks therefore, that the Respondent has consented to the claim including matters post issue, insofar as they appear in the List of Issues as finalised and agreed at the Preliminary Hearing before Employment Judge Spencer on 20 October 2023. Rightly so.

[140]On 29 November 2022, Mr Banister reviewed Mr Rahman’s suspension and decided that it should continue, as confirmed in a letter of that date, (page 800). A little more detail is given as to the allegations faced, including: bullying and harassment, falsification of company records in relation to time sheets and pay grade codes, unfair removal of competencies, unfair allocation of training and race discrimination.

[141]By letter dated 20 February 2023, Mr Rahman wrote to complain about the delay.

[142]Mr Banister reviewed Mr Rahman’s suspension on or about 28 February 2023 and confirmed that it should continue in a letter of that date, (page 812).

[143]By email dated 15 March 2023, (page 814) Mr Rahman requested that his grievance be dealt with before the disciplinary matter. Ms Yates confirmed the Respondent agreed, in an email of 28 March 2023, stating that the Disciplinary Investigation would be on hold pending the outcome of the Grievance Hearing and any subsequent Appeal.

[144]On 16 March 2023, Mr Banister telephoned Mr Rahman to enquire as to his wellbeing, known as a Welfare Call. His hand written notes are at page 816. This was the first such Welfare Call during Mr Rahman’s suspension.

[145]On 11 March 2023, Ms Yates emailed Mr Rahman to explain the delays in the grievance, anticipating that a report would be produced within the next couple of weeks, (page 807).

[146]Mr Banister made a further Welfare Call on 6 April 2023, then subsequently on 28 April 2023. His notes are at page 817. A further Welfare Call was scheduled for 12 May 2023, but Mr Rahman indicated that he did not want any further such calls.

[147]On 28 April 2023, Ms Yates wrote to Mr Rahman with regard to his access to his work laptop and mobile telephone. In this email, she wrote with regard to the delay in the investigation of his grievance and acknowledged that it was taking longer than anticipated.

[148]Mr Rahman did not receive an outcome to his grievance until more than a year later, 8 August 2024, (page 996). His grievance was not upheld. Mr Killworth wrote that there was no independent evidence to corroborate Mr Rahman’s allegations.

Conclusions

[149]In each instance of alleged discrimination, we have considered whether on our findings of fact, there are facts from which we could properly conclude absent explanation from the Respondent, that there had been discrimination such that the burden of proof shifts to the Respondent to satisfy us that discrimination played no part in its actions. In doing that, we considered not only the facts pertinent to each individual allegation, but we have also looked at the case overall in the round. Direct Race Discrimination

[150]In respect of the allegations of less favourable treatment because of race, Mr Rahman defines his race by reference to his colour, which he describes as, “brown, politically black” and his ethnic or national origins, which he describes as South East Asian Bangladeshi. Comparators

[151]The comparators relied upon are named at 4.1. None of those individuals were in the same or not materially different circumstances as Mr Rahman. A hypothetical person would be a white British person acting up as Supervisor, who had behaved in the same way in that role as Mr Rahman, who had failed in an application for permanent appointment as Supervisor, as had Mr Rahman. Issue 2.1

[152]Mr Gordon did send Mr Rahman the email of 8 December 2021 claiming that mileage was missing from the Mileage Book of the returned vehicle and that the difference was greater than the journey from Mr Rahman’s home to the Depot to which the vehicle had been returned. Mr Gordon was tightening up with everybody that he was managing, to ensure accurate and timely completion of mileage records for each vehicle and journey. A hypothetical comparator, a white British person in the same circumstances, would have received the same correspondence from Mr Gordon. There are no facts from which we could properly conclude that the reason for the treatment was race and the burden of proof does not shift. Issue 2.2

[153]This was withdrawn. Issue 2.3

[154]Mr Gordon attended Mr Rahman’s track inspection in January 2022 in order for him to be recertified as competent. He encouraged Mr Rahman to do the inspection correctly in that context and not rudely. Mr Gordon would have given the same encouragement to the hypothetical comparator. It was not a detriment and it was not less favourable treatment. Issue 2.4

[155]On the facts, we found that Mr Gordon did not use the language attributed to him and did not clench his fists. Mr Gordon did not believe Mr Rahman when he said he did not have the key to the store. There are no facts from which we could properly conclude that Mr Gordon’s actions were because of race and we accept in any event, that Mr Gordon’s reason for telling Mr Rahman that he did not believe him when he said that he did not have the key, was because he had been told by others that Mr Rahman did have the key. By this time, Mr Gordon had reason to believe that Mr Rahman was being difficult and obstructive, after losing the acting up role. Issue 2.5

[156]On our findings of fact, Mr Gordon did not direct Mr Evans to forward correspondence to Mr Hasan to Mr Rahman because he was his uncle and they were both “brown-skins”. Issue 2.6

[157]On the facts this allegation is upheld save that we find that Mr Gordon was not, “screaming” at Mr Rahman. He was shouting and swearing. He did accuse Mr Rahman of telling multiple staff that Mr Gordon was a racist. He did so because he had been told by staff that Mr Rahman had described him as a racist. He did make reference to Mr Rahman’s failed job application and did accuse him of reporting him to the Office of Rail and Road. He did call Mr Rahman a “liar”, “shit house” and “bullshitter”, he did say if the Claimant wanted to make a complaint about his behaviour he should report it formally, though we would not describe the manner in which he said that as amounting to taunting. Much of what was said, in the early part of the exchange and how it was said was a detriment to Mr Rahman. His conduct is to be deprecated. The context is that he had been accused, (behind his back, not to his face) of being racist. None of the language used by Mr Gordon is in itself racist and his outburst of temper does not obviously indicate racist motivations. We do not consider on the facts of this event, that we could properly conclude absent explanation, that the outburst amounted to less favourable treatment because of race. Even if we had decided differently, we would have accepted Mr Gordon’s explanation that the reason for his outburst was that behind his back, he had been accused of racism by a person who had been behaving obstructively ever since they had failed in their application for promotion. We are satisfied that Mr Gordon would have been equally angry and would have reacted in the same way with the hypothetical comparator. Issue 2.7

[158]Mr Chibanda did inform Mr Rahman that he was suspended. The decision to suspend was right and justified, based upon the information that the Respondent had gathered in the Parker Investigation. There are no facts upon which we could properly conclude that the decision to suspend was because of Mr Rahman’s race. We accept in any event, the explanation given. For the avoidance of doubt, there was no inappropriate conduct on the part of Mr Chibanda in the way he behaved towards Mr Rahman on that occasion. Race Related Harassment

[159]The allegations of harassment are identical to the allegations of direct race discrimination. The questions to be answered in considering our conclusions are, however, different. Insofar as any of the facts forming the allegations are upheld, were they related to race? In other words in this case, are they related to the fact that Mr Rahman is, “brown, politically black” or to the fact that he is of South East Asian Bangladeshi origins.

[160]If any of the factual allegations are upheld and found to be related to race, the question for us is then whether the conduct had the purpose or effect of violating Mr Rahman’s dignity and / or creating an intimidating, hostile, degrading, humiliating or offensive environment for him, taking into account his perception, the relevant circumstances and whether it could be said to be reasonable for the conduct to have that effect. Issue 6.1

[161]Mr Gordon did send Mr Rahman an email regarding the mileage that was missing from the Vehicle Mileage Book and as we have set out above, he had good reason to do so as he was tightening up on completion of Vehicle Mileage Logs with everybody. The email was not related in any way to race. Issue 6.2

[162]This allegation was withdrawn. Issue 6.3

[163]As noted above, Mr Gordon encouraged Mr Rahman to complete a track inspection correctly so that he could certify him as competent, he did not do so rudely and did so by way of encouragement. It was not related in any way to race. Issue 6.4

[164]As we have explained above, on our findings of fact, Mr Gordon did challenge Mr Rahman when he said he did not have the key to the store, but he did not use the language attributed to him, nor clench his fists. Mr Gordon genuinely believed that Mr Rahman was being deliberately difficult with him and did not believe him when he said that he did not have the key. That belief and Mr Gordon’s words and actions, had nothing to do with and was not related to, Mr Rahman’s race. Issue 6.5

[165]As explained above, on our findings of fact, Mr Gordon did not give a direction that Mr Hasan’s emails should be copied to Mr Rahman because he was his uncle and they were both “brown-skins”. Issue 6.6

[166]As explained above, most of this allegation is upheld on the facts, save that Mr Gordon did not scream at Mr Rahman. However, there was no racial element to Mr Gordon’s outburst to Mr Rahman. That it was in response to Mr Rahman having accused Mr Gordon, behind his back, of being a racist is not sufficient in our view to make the outburst, “related to race”. It is not related to the fact that Mr Rahman describes himself as “brown, politically black”, nor that he is of South East Asian Bangladeshi origin. If we had concluded otherwise, we would in any event have found that the outburst could not reasonably have been regarded by Mr Rahman as creating the proscribed atmosphere, having regard to the fact that Mr Rahman knew Mr Gordon believed that Mr Rahman had been accusing him of being a racist behind his back and that, with the benefit of having heard the recording, the impression from the transcript being confirmed, the verbal exchange quickly calmed down on Mr Gordon’s part, (Mr Rahman knowing that he was recording himself always remained calm) and the two of them had a very reasonable and sensible conversation about working together in a sensible and co-operative way going forward. Issue 6.7

[167]Mr Rahman being suspended was related to race in that amongst the reasons for his being suspended was that a number of individuals had accused him of racism. Having regard to all the circumstances, Mr Rahman could not have reasonably considered this to create the proscribed atmosphere, because the Respondent was taking proper and appropriate action in response to significant and numerous allegations of racism made against him. Direct Religious Discrimination

[168]Mr Rahman’s claims are that he was treated less favourably because he is Muslim.

[169]The actual comparators relied upon are the same as those relied upon in respect of the direct race discrimination claim. They are not appropriate actual comparators, they are not individuals in the same or not materially different circumstances.

[170]The appropriate hypothetical comparator is a non-Muslim, a person of another or of no religion, in the same or not materially different circumstances as Mr Rahman. As with the direct race discrimination, that would be a person who had behaved in the same way as Mr Rahman, who has acted up as a Supervisor, who had failed in an application for promotion to Supervisor and against whom allegations had been made by work colleagues.

[171]On the facts we have found Mr Makuch and Mr Gordon did not have a conversation in which Mr Makuch said there were too many “muzzies” in the patrol gangs and in which Mr Gordon said he “could not have too many eggs in one basket”. No such conversation took place.

[172]On the facts we have found that Mr Rahman did not tell Mr Gordon the above mentioned dialogue was discriminatory, (it did not take place), nor did Mr Gordon reply or at any point say to him “I am a Manager, I can do whatever I want”.

[173]Mr Gordon did not change the roster, the roster was agreed between Trade Unions and Management and posted in thirteen week cycles. What Mr Gordon changed was the composition of the gangs working on the tracks. The changes that he made were not to do with moving Muslims around. Muslims and others were moved. As we explained in our findings of fact, the changes were made for business reasons. The three individuals named by Mr Rahman as having moved because of the changes, in fact left for other reasons. This in any event, does not appear to be an allegation of less favourable treatment of Mr Rahman.

[174]On the facts we have found that Mr Rahman was not blocked out of organising the roster, (it was agreed between Trade Union Representatives and Management), Mr Gordon did not refuse to provide him with a password for the roster or for any other documents. Those who were given access to the roster or other documents were those who needed it. Mr Rahman was not deprived of access to any document to which he needed access. Mr Gordon did not say that he did not want a “muzzie” in the office and Mr Rahman was not informed by others that he had. Mr Gordon did not say of Mr Rahman, “I’m not going to have a muzzie paki telling us what to do, how to do it. He was already causing me problems.” Nor did Mr Evans tell Mr Rahman that he had.

[175]Mr Rahman did raise Covid-19 Health and Safety issues, as did others. Mr Gordon dealt with Health and Safety issues relating to Covid seriously and appropriately. Mr Gordon did not tell Mr Spelman and Mr Evans not to listen to Mr Rahman, he did not describe him as, “only an acting Supervisor”. He was not angry about Health and Safety issues being raised and did not say that he did not want a “muzzie” in the office.

[176]We found that Mr Gordon did not on 25 October, or on any other date, reveal to the Depot that Mr Rahman had applied for jobs, did not mock his lack of success and did not use the words alleged.

[177]Mr Rahman was invited to the after work drinks party. Mr Gordon did not spread rumours that Mr Rahman had called for a drug and alcohol test.

[178]Mr Rahman did approach Mr Bavington to speak about Mr Gordon, at a Health and Safety Trade Union Representative meeting which was governed by a strict agenda. Mr Bavington did shut the conversation down, explaining that any new matters were being raised in ‘Speak Outs’ and that the Health and Safety meeting was not the appropriate venue. In those circumstances, it was not a detriment to do so. Had we found otherwise, there are no facts from which we could properly conclude that his doing so was because of Mr Rahman’s religion. In any event, we accept Mr Bavington’s explanation as to why he shut the conversation down.

[179]Mr Bavington did not say, “I do not want to talk to you about these issues”. Management and Supervisors did not begin to deliberately avoid and ignore Mr Rahman.

[180]Mr Tubby did not tell Mr Rahman to conduct a patrol with no COSS or Look Out.

[181]When Mr Rahman asked Mr Makuch why he was ignoring him, Mr Makuch did reply, “you know why”. The reason was, Mr Rahman had told him to “fuck off”.

[182]Mr Rahman was not invited to a patrol meeting because he was not a Lead Patroller and his attendance at the meeting was not appropriate. There are no facts on which we could properly conclude that the reason Mr Rahman was not invited to the patrol meeting was that he is Muslim.

[183]Mr Gordon did not tell Mr Evans and others not to speak to Mr Rahman.

[184]As noted above, on the facts Mr Gordon did email Mr Rahman about mileage missing from the Mileage Book. We accept Mr Gordon’s evidence that mileage was missing from the Mileage Book. The email was justified. There are no facts from which we could conclude that this email was because of Mr Rahman’s religion.

[185]Mr Gordon did not call Mr Rahman a liar and scream at him, “who the hell d’you think you are?” on 9 December 2021, nor did he accuse him of putting false information in the Mileage Book. What he accused him of was not putting information in the Mileage Book that should have been there, in other words an account for the mileage shown on the vehicle’s odometer. His email did amount to suggesting Mr Rahman was not telling the truth and there was good reason for him to make that suggestion, it was not because of Mr Rahman’s religion.

[186]This issue has been withdrawn.

[187]As we have found above, in January 2022, Mr Gordon did suggest to Mr Rahman that he carry out his track inspection properly, he was not rude in doing so. He did so because he was assessing Mr Rahman for his competency. There are no facts on which we could properly conclude without explanation that the reason for this encouragement was Mr Rahman’s religion.

[188]As noted above at Issue 2.4, Mr Gordon did not believe Mr Rahman on 7 January 2022 when he said he did not have the key to the store. He did not verbally attack Mr Rahman, nor use foul language, insults or false accusations. He did not believe Mr Rahman and that was because others had told him that he had a key, that he himself had seen him use the key in the past and because Mr Rahman had been difficult and obstructive since losing his position as acting up Supervisor.

[189]Mr Rahman was suspended and for good reason. There are no facts from which we could properly conclude without explanation, that Mr Rahman’s suspension nor the conduct of Mr Chibanda toward him on 22 June 2022, was because of his religion. Harassment Related to Religion

[190]The same allegations in relation to direct religious discrimination are relied upon as allegations of harassment related to religion.

[191]As noted above, this allegation is not upheld on the facts.

[192]As noted above, this allegation is not upheld on the facts.

[193]As noted above, this allegation is not upheld on the facts.

[194]As noted above, this allegation is not upheld on the facts.

[195]As noted above, this allegation is not upheld on the facts.

[196]As noted above, this allegation is not upheld on the facts.

[197]As noted above, this allegation is not upheld on the facts.

[198]As noted above, this allegation is not upheld on the facts.

[199]As noted above, this allegation is not upheld on the facts.

[200]As noted above, Mr Rahman was not invited to a Patrol Staff meeting because he was not a member of the Patrol Staff.

[201]As noted above, Mr Gordon did send an email to Mr Rahman about the mileage missing from the Mileage Book, for good reason. There is nothing to suggest that this was in any way related to his religion.

[202]As noted above, this allegation is not upheld on the facts and insofar as Mr Gordon challenged Mr Rahman about the information in the Mileage Book, that was for good reason and was not in any way related to Mr Rahman’s religion.

[203]This allegation was withdrawn.

[204]As noted above, this allegation was not upheld on the facts.

[205]As noted above, Mr Gordon did challenge Mr Rahman with regard to his denial that he had a key to the store. He had good reason to challenge him. He did not use the language of which he is accused. There is nothing to suggest that Mr Rahman being challenged about his denial that he had a key was in any way related to his religion.

[206]As noted above, Mr Rahman was suspended, there is nothing to suggest that that was in any way related to his religion, nor that Mr Chibanda’s conduct towards him was in any way related to his religion.

[207]Insofar as any of the foregoing allegations are upheld on the facts, we have already noted that none of them are in any way related to the fact that Mr Rahman is a Muslim. Further, nor could any of them reasonably be regarded by Mr Rahman, having regard to all the circumstances, as giving rise to the proscribed environment. Victimisation

[208]We consider each of the alleged protected acts first.

[209]On the facts, we have found that Mr Rahman did not make an allegation of discrimination to Mr Gordon on 6 May 2021.

[210]On the facts, we have found that Mr Rahman did not complain to Mr Brown about the conduct of Mr Gordon in December 2021, because Mr Brown closed down the conversation. He did not mention he considered Mr Gordon’s actions towards him amounted to discrimination. The conversation did not amount to a protected act.

[211]Mr Rahman did submit a grievance containing allegations of racism, that being an allegation of contravention of the Equality Act 2010. That did amount to a protected act.

[212]Mr Rahman did make allegations of racism in his grievance meeting with Mr Killworth on 17 May 2022, that was an allegation of contravention of the Equality Act 2010 and was therefore, a protected act.

[213]There are therefore two protected acts, in March and May 2022. We consider each of the alleged detriments in turn and insofar as they are upheld on the facts, whether they were inflicted on Mr Rahman because of the protected acts, having regard to the burden of proof as explained above.

[214]As we have explained, Mr Rahman was suspended for good reason and that was nothing to do with the fact he submitted a grievance. There are no facts upon which we could conclude without an explanation, that it was. The reason for his suspension is very clear, the content of the Parker Investigation.

[215]The allegations are correct. Mr Rahman did receive a letter from Mr Banister on 8 August 2022 stating that his suspension would remain in place. That is because nothing had changed and his suspension was entirely appropriate. This was nothing to do with his grievance.

[216]It is also true to say that as at August 2022, Mr Rahman had not received any Welfare Checks and had not received any communications with regard to his grievance. We accept Mr Chibanda’s evidence that there was a misunderstanding and miscommunication between Mr Chibanda, Mr Banister and the Respondent’s Human Resources Advisors, over the need for Welfare Checks and who would be responsible for them. Mr Banister was not told that he should be making Welfare Check calls until 28 February 2022. We also accept that Mr Banister did not know about the allegations of discrimination until the issue of these proceedings.

[217]It does look as if Mr Rahman’s grievance was forgotten about until 28 October 2022 when Mr Killworth wrote to him to say that he hoped to complete his Grievance Investigation by week commencing 14 November 2022. There was therefore a four month gap between the Grievance Hearing on 17 May 2022 and the letter of 28 October 2022. We accept the evidence of Mr Killworth that the reason for that delay was the time taken by him to review relevant documents and other matters. It is tardy. The fact that one has raised a grievance raising issues of discrimination and that grievance is not dealt with timeously, is something from which we could conclude the motive might be that the grievance was about discrimination. That is sufficient to shift the burden of proof. However, we accept the credible explanation from Mr Killworth and Ms Yates, the reason for delays are what they regarded as the complex and sensitive nature of the allegations, ongoing challenges at Stonebridge, changes within the HR Department, the amount of material to review, the preparation time required in advance of interviewing witnesses and the annual leave of many of those involved. We find that the delay was not because of the allegations of discrimination either in the original grievance or in the Grievance Hearing.

[218]Mr Rahman was informed on 13 September 2022 that a Mr Chapman had been appointed as Independent Investigation Manager in relation to the disciplinary matters. We have explained above the position with regards to the absence of a Welfare Check or update in respect of his grievance. That somebody was appointed to investigate the disciplinary allegations against him had nothing to do with his having raised a grievance about discrimination, it was because of the outcome of the Parker Investigation. There are no facts from which we could properly conclude otherwise, absent an explanation from the Respondent.

[219]Mr Rahman did receive a letter dated 28 October 2022 with regard to his grievance. The letter informed him Mr Killworth hoped to complete his investigation into the grievance by 14 November 2022. That is not a detriment. If by this issue, Mr Rahman’s intention was to complain about the delay, we have already explained above the reasons for the delay and that we accept that such was nothing to do with the fact that he had raised a frievance in which he had made allegations of discrimination. Whistle Blowing

[220]We will deal with the alleged qualifying disclosures first. Issue 27.1.1

[221]On the facts we find that the question of ZA and JC working as Engineering Supervisors was raised in March 2021 by ZA and not by Mr Rahman. There was no protected disclosure. Issue 27.1.2

[222]Mr Rahman did raise Health and Safety concerns in relation to Covid with Mr Gordon in September 2021. Those concerns would have related to the likelihood of somebody’s health and safety being endangered and it would be the reasonable belief of Mr Rahman that it was in the public interest that such matters be raised. We therefore find that Mr Rahman did raise a protected disclosure when he brought up Health and Safety Covid issues in September 2021. Issue 27.1.3

[223]Mr Rahman was not told to do a patrol with no COSS or Look Out and there was no debate between him and Mr Tubby involving his refusing to do so, Mr Tubby providing him with a Contractor and Line Blockage. There was no protected disclosure.

[224]Now we consider the alleged detriments. Issue 24.1

[225]Our findings of fact are that Mr Gordon did not shout and scream or use the words alleged. Issue 24.2

[226]Our findings of fact are that Mr Gordon did not tell Supervisors not to listen to Mr Rahman and that he was only an acting Supervisor. He did not use the words alleged, nor was he angry. Issue 24.3

[227]As we have already explained, Mr Tubby did not instruct Mr Rahman as alleged. The reason Mr Makuch was avoiding Mr Rahman was because Mr Rahman had told him to “fuck off” and not because Mr Rahman had raised Health and Safety Covid issues. Final Conclusion

[228]For these reasons the Claimant’s claims fail and are dismissed.