Mr F Buyungo v DHL Services Ltd: 3315303/2022 and 3309044/2024

EMPLOYMENT TRIBUNALS

Case No 3315303/2022, 3309044/2024

Between

Mr F BuyungoClaimant

DHL Services LtdRespondent

Before

Employment Judge Alliott

Members

Ms M Castro

Mr L Hoey

In person for claimant

Mr P Thomison (instructed by counsel) for respondent

Date 29 October 2024

JUDGMENT

[1]The respondent failed to pay the claimant holiday entitlement.

[2]The claimant’s claims of race and/or sex discrimination, harassment related to race, unauthorised deductions of wages and breach of contract are dismissed.

[3]The respondent’s counter claim is dismissed upon withdrawal.

REASONS

[1]The claimant first worked for the respondent on an agency basis from 1 March 2021. On 1 February 2022 he became a permanent employee. He resigned with immediate effect on 3 October 2022. By a claim form presented on 20 December 2022, following a period of early conciliation from 28 October to 9 December 2022, he brings complaints of race and/or sex discrimination (s.13 Equality Act 2010), harassment (s.26 Equality Act 2010) and claims for holiday pay, unauthorised deduction of wages and breach of contract. The respondent defends the claims and brings a counter claim.

The issues

[2]The issues were recorded in a case management summary by Employment Judge Matthews following a preliminary hearing heard on 21 November 2023. The issues are as follows: “The Employment Judge discussed the issues with the parties and recorded that the matters between the parties which fall to be determined by the tribunal are as follows:

The issues

[1]Time limits1.1 The claim form was presented on 20 December 2022. The claimant commenced the early conciliation process with Acas on 28 October 2022 (Day A). The early conciliation certificate was issued on 9 December 2022 (Day B).

1.2 Were the discrimination complaints made within the time limit in s.123 of the Equality Act 2010? The tribunal will decide:1.2.1 Was the claim made to the tribunal within three months (plus early conciliation extension) of the act or omission to which the complaint relates?

1.2.2 If not, was there conduct extending over a period?

1.2.3 If so, was the claim made to the tribunal within three months (plus early conciliation extension) of the end of that period?

1.2.4 If not, were the claims made within a further period that the tribunal thinks is just and equitable? The tribunal will decide:1.2.4.1 Why were the complaints not made to the tribunal in time?

1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?

1.3 Was the unauthorised deductions complaint made within the time limit in s.23 of the Employment Rights Act 1996? The tribunal will decide:1.3.1 Was the claim made to the tribunal within three months (plus early conciliation extension) of the date of payment of the wages form which the deduction was made?

1.3.2 If not, was there a series of deductions and was the claim made to the tribunal within three months (plus early conciliation extension) of the last one?

1.3.3 If not, was it reasonably practicable for the claim to be made to the tribunal within the time limit?

1.3.4 If it was not reasonably practicable for the claim to be made to the tribunal within the time limit, was it made within a reasonable period?

[2]Direct sex and race discrimination (Equality Act 2010 s.13)2.1 The Claimant self-describes as Black and of Ugandan national origin and nationality.

2.2 Did the respondent do the following things:2.2.1 For the period 1 March 2021 to 1 February 2022 the claimant was not engaged on a permanent basis by the respondent (Ms Olatunbosun). The claimant relies on “Ashraful” as a comparator in this respect.

2.2.2 (Race and sex) In June, September and October 2021 and January 2022 the respondent did not interview the claimant for, or offer him the role of, Emergency Medical Technician or provide feedback on his application. The claimant relies on “Mia” and “Stephanie” as comparators in this respect. [It appears that the actual name of the comparator was Stefan].

2.2.3 On 19 November 2021 “Iqbal” intimidated and bullied the claimant asking the claimant to “Write a statement” and “Take a job off the claimant’s PDA” (a handheld device). (The claimant is ordered to provide more information on this above.) The further information provided is as follows: “Re statement on bullying and intimidation. On the issue of bullying, the claimant asserts that on November 19, 2021, was verbally and psychologically bullied by Iqba, and overloaded the claimant with unreasonable work thus, wanted the claimant to do extra work which was unreasonable. This had been a repeated behaviour not once or twice although when reported to the team leaders nothing was done. The supervisor ordered the claimant to write down a statement which was very undermining, offensive and stated that the claimant would be sacked soon, taken as threatening behaviour and bullying. The claimant further confirms that no duty of care was given to them even after reporting and complaining to the team leader/line manager Mark Bray on 23/11/2021, thus, the claimant’s complaint was disregarded.”

2.2.4 On 25 November 2021 “David” ignored complaints from the claimant .

2.2.5 In August 2022 Mr Hefesji sent the claimant home without an explanation.

2.2.6 In August 2022 Mr Hefesji ignored/failed to resolve the claimant’s complaints about his shifts (The claimant is ordered to provide more information on this above.) The further information provided is as follows: “Re statement on Mr Hefesji Moosa The claimant asserts that on 11 August 2022 wrote an email to Moosa Hefesji requesting for flexible working due to family demands and was ignored and failed to resolve their complaints about the shifts despite several verbal attempts from July 2022 though he honoured only one week from 02 August 2022 - 06 August 2022”.

2.2.7 On certain dates to be specified (see the order above) Ms Olatunbosun did not address the claimant’s complaints about the shifts allocated to him. The further information indicated the dates to be October 2021.

2.2.8 In July and August 2022 Ms Best assigned the claimant work as a single-man crew and ignored the claimant’s request to work as a two-man crew.

2.2.9 On 26 October 2022 Ms Hexter and Ms Olatunbosun falsely accused the claimant of being sick.

2.3 Was all or any of that less favourable treatment? The tribunal will have to decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and those of the claimant. If there was nobody in the same circumstances as the claimant, the tribunal will decide whether the claimant was treated worse than someone else would have been treated, The claimant offers the comparators identified above. Otherwise, the claimant relies on a hypothetical comparator.

2.4 If so, was it because of race (2.2.1 – 2.2.9 above) or sex (2.2.2 above only).

2.5 Is the respondent able to prove a reason for the treatment occurred for a non-discriminatory reason not connected to race and/or sex as appropriate?

[3]Harassment related to race (Equality Act 2010 s.26)3.1 Did the respondent do the following things: On 19 November 2021 “Iqbal” intimidated and bullied the claimant asking him to “write a statement” and “Take a job off the claimant’s PDA” (a handheld device). (The claimant is ordered to provide more information on this above.)

3.2 If so, was that unwanted conduct?

3.3 Did it relate to the claimant’s protected characteristic, namely race?

3.4 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile , degrading, humiliating or offensive environment for the claimant?

3.5 If not, did it have that effect? The tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[4]Holiday pay (Working Time Regulations 1998) 4.1 Did the respondent fail to pay the claimant for annual leave the claimant had accrued but not taken when the claimant’s employment ended?

[5]Unauthorised deductions (Part 2 of the Employment Rights Act 1996)5.1 Were the wages paid to the claimant less than the wages the claimant should have been paid?

5.2 If so, how much is the claimant owed?

[6]Breach of contract (Extension of jurisdiction Order 1994)6.1 Did this claim arise or was it outstanding when the claimant’s employment ended?

6.2 Did the respondent do the following:6.2.1 Fail to pay holiday pay and/or

6.2.2 Fail to pay sick pay.

6.2.3 Was that a breach of contract?

6.2.4 If so, how much should the claimant be awarded as damages?

[7]Counter claim7.1 Did the claimant receive pay of £520.64 more than the claimant’s contractual remuneration?

7.2 Is the respondent entitled to recover that or any other sum?

[8]Remedy In light of our findings the remedy issues are not set out here.” The law 3. S.13 of the Equality Act 2010 provides as follows: “13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” 4. S.23 of the Equality Act 2010 provides as follows: “23 Comparison by reference to circumstances (1) On a comparison of cases for the purposes of section 13… there must be no material difference between the circumstances relating to each case.” 5. S.26 of the Equality Act 2010 provides as follows: “26 Harassment (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.” 6. In his skeleton argument Mr Thomison made extensive submissions in relation to the legal framework concerning time limits, burden of proof, direct sex and race discrimination , harassment related to race, holiday pay, unauthorised deductions and breach of contract. I record here that we read the skeleton argument and have taken those submissions into account. The evidence 7. We had a hearing bundle running to 383 pages. In addition, we were provided with a log of the claimant’s working day for 19 November 2021. 8. We had witness statements and heard evidence from:8.1 The claimant.

8.2 Mr Michael Jackson, Head of Resourcing and planning at the relevant time.

8.3 Ms Jemma Taylor, Regional Resourcing Manager.

8.4 Mr Iqbal Hussain, Control Shift Manager.

8.5 Ms Natasha Olatunbosun, Transport Shift Manager.

8.6 Ms Julie Hexter, Team Leader.

8.7 Mr Hilmi Deveci, Control, Planning & Resourcing General Manager

The facts

[9]The respondent is a global logistics services provider operating across many sites in the UK. One of the services provided by the respondent is providing ambulance care assistants to support the NHS’s patient transport services.

[10]The claimant first went to work for the respondent as an Ambulance Care Assistant (“ACA”) on 1 March 2021 on an agency basis. The claimant was engaged on a “Temp to Perm” basis. The “Temp to Perm” basis was not a defined process and did not have a timescale. The candidates go through training and after successful completion of their training they are handed over to the Transport Team to ‘onboard’ them. The respondent had a 13 week trial period for the agency staff. Once an agency worker had successfully completed their training and the 13 week trial period, the expectation was that the process would begin to offer them a permanent contract. We find that there was no set timescale for this to happen. The process of becoming a permanent employee would involve the obtaining of a DBS certificate. Once the DBS certificate had been obtained the relevant department of the respondent would be responsible for generating a permanent employee contract.

[11]Due to the covid 19 pandemic, in 2021 the respondent increased the number of agency staff by about 100%.

[12]As far as the claimant and a number of other agency staff were concerned, Ms Olatunbosun was responsible for managing the process of his permanent employee contract.

[13]In early 2021 Ms Olatunbosun sustained a back injury and had time off work. Further, she worked from home due to the necessity of self-shielding. Ms Olatunbosun gave evidence that a combination of her absence from the workplace and the high number of agency workers who needed to be processed meant that there was a slight delay in the initiation of the process to grant permanent employee contracts.

[14]We have an email dated 6 August 2021 from Ms Olatunbosun with the subject “Agency to Perm”. This states: “This has been a burning issue of mine for some time. I have been asking this question for a while, as I am constantly inundated at home and when on site by our agency employees. … Attached is a list of our current agency employees and once we look at the length of service, incidents/accidents, performance, and attendance the plan was to select them for the next stage of becoming a DHL FTE.”

[15]The list attached has 28 agency employees. Six were engaged as agency employees prior to the claimant and three at the same time as the claimant.

[16]On 24 August 2021 the claimant was sent an email and invited to complete the link for a DBS check application.

[17]On 15 December 2021 the DBS certificate was completed. The claimant accepted that the delay was nothing to do with his race.

[18]On 15 December 2021 Ms Olatunbosun emailed the claimant to tell him that the DBS certificate had been received and that the process of raising his contract could begin. The claimant was given the link to complete the application.

[19]On 27 January 2022 the draft contract for the claimant was generated and he was made a permanent employee from 1 February 2022, signing the contract on 11 February 2022.

[20]The claimant complains about the delay in granting him a permanent contract. Given that the claimant began on 1 March 2021, the 13 week trial period would have expired in the first week of June 2021. The DBS check process was initiated on 24 August 2021 about two and three quarter months later than it could have been done had it been initiated at the conclusion of his 13 week training period.

[21]Issue 2.2.1 alleges that, for the period 1 March 2021 to 1 February 2022, the claimant was not engaged on a permanent basis by the respondent. This is factually accurate and we find this allegation proved.

[22]The claimant relies on “Ashraful” as a comparator. The respondent has not been able to identify any employee of that name. The claimant’s evidence on Ashraful was sketchy. He stated he was white and was a driver like the claimant. He alleged that Ashraf started in about February 2021 and had been made a permanent employee by September 2021. That oral evidence appears to be in contrast to his witness statement. Ashraf does not appear on the list of agency employees going back to 25 January 2021. We have no evidence that Ashraf was in fact an agency worker and so we cannot take him as a comparator as we are unable to assess whether he was in not materially different circumstances.

[23]The claimant accepted that four of the six agency workers engaged in January and February 2021, before the claimant, were white men. In our judgment, they are appropriate comparators, being agency staff of long engagement. In our judgment, they were kept waiting for longer than the claimant to become permanent members of staff. Further, the email to Ms Olatunbosun demonstrates to us that all the agency staff were waiting and keen to obtain permanent contracts. Consequently, we do not find that the delay was less favourable treatment

[24]Issue 2.2.2 alleges that in June, September and October 2021 and January 2022 the respondent did not interview the claimant for, or offer him the role of, Emergency Medical Technician (“EMT”) or provide feedback on his application.

[25]It was left to local team leaders to advertise vacancies for positions such as EMT (sometimes referred to as HTU). There was clearly one such advertisement as, on 14 June 2021, the claimant sent an email to Ms Olatunbosun expressing interest in the EMT role and enclosing his CV.

[26]Ms Olatunbosun told us, and we accept, that in fact there had been a previous round of recruitment which had successfully filled the then available EMT places. As such, the claimant’s application on 14 June was in the second recruitment round.

[27]The claimant was invited to an assessment day on 22 June. The assessment day consisted of a written examination and a practical. The claimant was assessed by trained technicians. Unfortunately, the claimant failed. We have an email from him dated 22 June 2021 wherein he states: “I take this opportunity to thank you for giving me an opportunity to participate but unfortunately I didn’t proceed through to the next stage thought I really performed well in theory and missed out on practical thanks to the DHL training team no doubt I trust them and believe in them..”

[28]The claimant told us in oral evidence that he had no complaints about his treatment in June 2021 and said that the feedback was fantastic. As such, we find that the respondent did assess the claimant and provided feedback on his application arising out of the June 2021 application. We find that the respondent did not offer the claimant the role of Emergency Medical Technician in June 2021 as he had failed the assessment day.

[29]It is clear to us that the second EMT recruitment round carried on through July and August. The claimant’s proposed comparators “Mia” and “Stefan” started working for the respondent after 2 August 2021. It was Ms Olatunbosun’s evidence that there were eight EMT vacancies and the respondent was very keen to fill them. Mia and Stefan were identified as having the necessary skills for the role and it is clear that Ms Olatunbosun actively recruited them. It appears that they were assessed and passed the assessment. As soon as they had passed the assessment they would have been trained and, subject to successfully completing their training, would have begun working as EMT workers before the contractual documentation had been generated and signed. This would explain why the claimant saw Mia and Stefan, amongst others, working as EMTs in the autumn of 2021. In our judgment, Mia and Stefan are not appropriate comparators as there was a material difference in their situation. They had passed the EMT assessment and the claimant had not.

[30]The claimant was not further considered in the second EMT recruitment round as he had already failed the assessment.

[31]In August 2021 a third EMT recruitment round was launched. On 30 August 2021 the claimant sent an email once again expressing interest in the EMT role and attaching his CV.

[32]On 14 September 2021 Ms Olatunbosun emailed the claimant thanking him for registering his interest in the EMT role and stating that once all the applications had been received they would start to shortlist candidates for the first round assessment.

[33]Ms Olatunbosun told us that, for business reasons, the third recruitment round was put hold for the rest of 2021. Ms Olatunbosun told us that all who had applied in August were informed that the recruitment process had been put on hold. She told us that a notice was placed on the notice board to that effect, albeit that Ms Olatunbosun was working from home from March to November 2021. It may be that the claimant missed that information and hence his concern at not being processed in the autumn of 2021. However, we find that the reason the claimant was not interviewed etc in September and October 2021 was because the recruitment process was on hold and that no one was interviewed or processed during that time.

[34]On 6 January 2022 the claimant was emailed and invited to an assessment day on 12 January 2022. The claimant attended the assessment day on 12 January 2022 and was successful.

[35]The claimant was subsequently invited for an interview on 17 January 2022. Ms Olatunbosun was part of the interview panel.

[36]We do not have any documentary evidence of the claimant being informed that he had failed the interview. However, we have seen an email dated 25 January which lists the eight successful candidates. As such, we conclude that the claimant did fail the interview.

[37]It is common ground that there was a meeting between the claimant and Ms Olatunbosun on 22 January 2022. Ms Olatunbosun told us that she told the claimant he had failed the interview because he was flustered and did not exhibit the relevant competencies. She told us that she outlined the next steps and further opportunities and would have wanted to encourage the claimant to try again. In contrast, the claimant asserted in his oral evidence that, at that meeting, Ms Olatunbosun told him that he had passed the interview but that the issue was with the shifts he wanted to work. One of the other successful candidates had childcare issues herself and an email we have seen, dated 26 January 2022, is seeking to accommodate that. We prefer the evidence of Ms Olatunbosun that the claimant was informed that he had failed the interview and was given some feedback. In our judgment, if the claimant had passed the interview then the respondent would have been keen to recruit him as an EMT. It is clear to us that the respondent had a pressing need for EMTs. This was the third recruitment round in 2021/early 2022 and the second round had not filled the number needed. As it is, a couple of the eight successful candidates on the third round dropped out due to failing the training. We find that, had the claimant passed the interview, the respondent would have been more interested in getting him trained and in post.

[38]Consequently, we find that in January 2022 the claimant was interviewed and provided feedback on his application. We find that the claimant was not offered the role of EMT but this was because he had failed the interview.

[39]An appropriate comparator would be an applicant who had failed the interview. We find that not offering the claimant the EMT role twice was not less favourable treatment as any other comparator who had failed the interview would also not have been offered the role.

[40]Consequently, we find that issue 2.2.2 in all its parts is not proved.

[41]Issue 2.2.3 relates to a call that took place on 19 November 2021 between the claimant and Mr Iqbal Hussain. Iqbal Hussain is a control shift manager but was a controller at the time in the Resources team. Controllers are responsible for the allocation of tasks to ACAs.

[42]On 19 November 2021, the claimant was working as part of a two man crew. He was allocated a task in North London but on arrival it was cancelled due to patient illness and the claimant was re-tasked to make 2 journeys, the second of which took him to Hammersmith.

[43]The claimant took his break between about 15.30 and 16.30. That left him with 3 ½ hours left of his shift. The claimant agreed this.

[44]The claimant was allocated a further journey. It involved transporting a patient from Whittington Hospital (N19) to an address in E10. The claimant did not think he would be able to complete the journey and return to base by his shift end. He called the controller. Iqbal Hussain states that he recalls the claimant being hesitant and complaining about the second journey. The claimant accepted that he asked for the job to be removed from his PDA (a handheld device). As far as Iqbal Hussain was concerned the claimant would be able to complete the journey to E10 by 19.02 which left him sufficient time to return to base. It seems clear and we find that there was probably a disagreement between the two of them with one saying he couldn’t do the job and the other saying that he should. Iqbal Husain states in his witness statement that if ACAs are unable to pick up patients during their shift “we usually request a statement at the end of the shift or advise them to escalate the issue”.

[45]The claimant wrote an email complaining on 23 November 2021. This states: “Am explaining about work intimidation between ACA’s and controller. I fell victim last week on Friday 19/11/21 when controller (Iqbal) not sure of his name spelling asked me to write a statement because I had asked to remove a job from my PDA since I could not do a run of 02 journeys stretcher and carry chair beyond 7pm yet I finish at 8pm.”

[46]We find that the claimant asked for the job to be taken off his PDA. We find that the claimant probably was told he would have to make a statement. We find that this would be in accordance with policy if the journey was not done. We do not find that Iqbal Hussain told the claimant he would be sacked soon as, had that occurred we would expect it to have formed part of the written complaint and it didn’t.

[47]We find that whilst both the claimant and Iqbal Hussain may well have expressed themselves forcefully, Iqbal Hussain’s conduct did not cross the threshold of intimidating or bullying behaviour. It was a disagreement.

[48]In any event, we find that Iqbal Hussain’s conduct and comments were not less favourable treatment as any hypothetical comparator stating he could not complete a journey in the time available in circumstances where the controller thought he could, would have been treated exactly the same.

[49]As it happens, the claimant did the journey and was back at base well before 8pm.

[50]Accordingly, we find issue 2.2.3 not proved.

[51]Issue 2.2.4 is that, on 25 November 2021 “David” ignored complaints from the claimant. The claimant could not provide any detail as to who David was and gives no evidence concerning this allegation in his witness statement. We do have a complaint in an email dated 25 November 2021 to the claimant’s line manager, Mark Bray. It may be that this allegation was intended to relate to Mark Bray. However, we cannot rewrite the list of issues as the respondent has basically said that they do not know who David is and do not know the details of this allegation. We have no information concerning what complaints were made or how David may have dealt with it and consequently we find this allegation not proved.

[52]Allegation 2.2.5 is that, in August 2022, Moosa Hefesji sent the claimant home without an explanation. We have the timesheets for the whole of August 2022. This records all the dates that the claimant was rostered to work. We also have a summary of all the days off work and why the claimant had those days off work. On 1 August the claimant failed to turn up for a days authorised swap. Thereafter, the claimant had four authorised unpaid days off for childcare. He missed 27 August due to a train strike and had two unpaid absent days on 30 and 31 August. Apart from this, there is no record of the claimant being sent home early by Moosa. Accordingly, we find this allegation not proved.

[53]The respondent did give evidence that on occasions the claimant would turn up when not rostered to work, for example, on Sundays. If that happened then it was probable that he would have been sent home. However, the allegation, as formulated, has not been proved.

[54]Allegation 2.2.6 is that, in August 2022, Mr Moosa Hefesji ignored/failed to resolve the claimant’s complaints about his shifts.

[55]On 3 August 2022 the claimant emailed Julie Hexter as follows: “I have spoke to Camil about by situation and advised me to apply for flexible working”.

[56]The claimant’s normal shift was 10am – 8pm. However, due to childcare commitments, and in order to dovetail with his wife’s working pattern, the claimant was requesting to work on a rotating shift pattern of day/night shifts every other week.

[57]The claimant had already been granted temporary flexible working by Moosa Hefesji for the week of 2 – 6 August 2022.

[58]On 3 August 2022 Julie Hexter replied to the claimant as follows: “I believe you have spoken with Moosa this morning. Moosa (shift manager) has honoured the temporary flexible working for this week 02.08.22 – 06.08.22. 20:00 – 06:00 From 09.08.22 you are to return to your normal shift 10.00 – 20.00 Tuesday – Saturday we can no longer continue with the rotation of shifts. You can of course apply for a permanent change to nights but this will be continuous and not rotating.”

[59]Notwithstanding the email from Julie Hexter, on 11 August 2022 the claimant emailed Julie Hexter reiterating his request that he work rotating shifts one week on days and one week on nights. Moosa Hefesji was copied in to that email and he forwarded it to Mike Jackson. Mike Jackson retorted that a flexible working request needed to be competed as per the DHL process. We have seen the DHL Flexible Working Policy and this requires a template form to be filled in and submitted.

[60]On 22 August 2022 Julie Hexter had a meeting with the claimant and Moosa Hefesji to discuss the amount of unpaid leave the claimant was having to take. The 22 August was a Monday and consequently the claimant was not in uniform as it was his rest day. Julie Hexter gave evidence that she expressly told the claimant that he could make a flexible working request if he wanted to permanently change his shift pattern. The claimant’s evidence was that he was not aware of any forms that had to be filled in and that Julie Hester told him to send an email to Moosa to ask about flexible working. The claimant was asked if he did send an email and his response was he did not remember if he did send an email.

[61]We find that whatever the claimant was told, he did not action further his request for flexible working. We find that Moosa Hefesji did not ignore the claimant’s request for flexible working. We find that there was no failure to resolve the claimant’s complaints by either Moosa Hefesji or Julie Hexter. The claimant had been told in clear terms that he could not have rotating shifts and that he would need to apply for a permanent change to nights if that is what he wanted. Consequently, we find this allegation not proved.

[62]Issue 2.2.7 alleges that on certain dates to be specified Ms Olatunbosun did not address the claimant’s complaints about the shifts allocated to him. The claimant has clarified that this relates to October 2021. We heard no real evidence from the claimant concerning this and it is not referenced in his witness statement. Ms Olatunbosun could not recall any such specific request in October 2021. It is clear to us that Ms Olatunbosun did address the claimant’s requests concerning shifts allocated to him during the course of 2021. The claimant was on a 15.00 – 01.00 Tuesday to Saturday shift pattern when he started but in March 20221 he was moved on to 11.00 – 21.00 Tuesday to Saturday and then, on 18 August 2021, he was moved onto his 10.00 – 20.00 Tuesday to Saturday shift. Ms Olatunbosun told us that she kept a list of vacant shifts as and when they became available and tried to accommodate any requests for changes. We accept her evidence on that point. In the absence of any information from the claimant as to what he was seeking in October 2021 and how it is said Ms Olatunbosun did not address it, we find allegation 2.2.7 not proved.

[63]Allegation 2.2.8 is that, in July and August 2022, Ms Best assigned the claimant work as a single man crew and ignored the claimant’s request to work on a two man crew.

[64]The claimant’s job always included working as a single man crew on occasions. The single man crews were allocated routinely and involved patients who were able to walk and board the vehicle independently for example. We were told and accept that a single man crew shift could often be less physically demanding than a two man crew shift.

[65]Whether or not an ACA was allocated to work a single man or two man crew shift depended on the controllers. It was not something that the line manager, Ms Best, could assign. As regards the claimant’s allegation that Ms Best ignored his request to work as a two man crew, once again the claimant has not addressed this issue in his witness statement. Further, the claimant has not told us why he wanted to only work on a two man crew. In his oral evidence the claimant seemed to suggest it was the way he was spoken to that he objected to. Since working as a single man crew was part of the claimant’s job, we readily understand why his line manager, Ms Best, may not have actioned any request to work only on a two man crew as it was not within his job description. However, in the absence of evidence as to how this allegation is put, we find that the claimant has failed to prove it.

[66]Allegation 2.2.9 is that, on 26 October 2022, Ms Hexter and Ms Olatunbosun falsely accused the claimant of being sick,. Ms Olatunbosun was not involved. It is correct that Ms Hexter accurately indicated that the claimant had been off sick on two occasions during the course of his engagement with the respondent. There was no false accusation. The claimant accepted this in oral evidence. Consequently, allegation 2.2.9 is not proved.

[67]By virtue of our above findings, the claimant’s claims of race and/or sex discrimination are dismissed. Harassment

[68]The alleged treatment is the same as in allegation 2.2.3. We make the same findings of fact.

[69]We find that from the claimant’s perspective the conduct was unwanted.

[70]We find that the conduct did not relate to the claimant’s race. We find that the exchange, such as it was, was one between a driver and a controller in circumstances where the driver was indicating that he could not undertake the tasks that had been allocated to him. There may have been some irritation on the part of Mr Hussain in those circumstances. However, we do not find that any part of the exchange was related to the claimant’s race. Holiday pay

[71]It is accepted by the respondent that the claimant is due £817.70 accrued holiday entitlement not paid at the time of the termination of his contract of employment.

[72]The claimant sought to maintain that he could carry over outstanding holiday from his time as an agency worker to when he became a permanent employee. We find that the claimant had no such contractual or other expectation that this would happen. Outstanding holiday due at the termination of his agency contract of employment is a matter to be dealt with by his agency.

[73]We accept the respondent’s workings in relation to the claimant’s holiday pay.

[74]His holiday entitlement was 28 days or 252 hours (based on a nine hour day). By 3 October 2022 the claimant’s entitlement was 191 hours.

[75]During the 2022 leave year the claimant took 117 hours of leave as follows:70.1 1 to 5 February 2022 5 days = 45 hours

70.2 3 to 7 May 2022 5 days = 45 hours

70.3 10 to 12 May 2022 3 days = 27 hours

[76]Consequently, the claimant had 74 hours of leave remaining which, at £11.05 = £817.70. Unauthorised deduction of wages

[77]We have been provided with all the claimant’s payslips. The claimant’s payslip for 25 October 2022 was calculated in the sum of £0. It is clear to us that the claimant was under the impression that he was paid his salary a month in arrears. Consequently, the claimant has maintained that he was due to be paid his monthly salary in his October payslip. The respondent’s payroll date appears to be around the 25th of each month. It is clear from the payslips that the salary paid on 25th of each month reflected that months salary. Deductions would relate to the previous months calculations. Consequently, the claimant was paid his September salary in his 23.09.22 payslip. He was paid basic pay of £2,154.75 less some deductions which were in relation to unauthorised absence in August 2022. As such, those deductions were a legitimate recovery of sums already paid to the claimant.

[78]In actual fact, it is the respondent’s case that the claimant was not entitled to be paid for the first three days of September 2022 in accordance with its sickness policy. Further, that the claimant was not entitled to be paid from 16 to 24 September as he did not provide a fit note until 26 September 2022 and that, because of the cumulative total of his sickness and other absences from 27 September to 1 October 2022, he was only entitled to Statutory Sick pay.

[79]Be that as it may, disregarding the issues in paragraph 78 above, Mr Thomison has calculated that in September 2022 the claimant still had a contractual entitlement to one week’s full company sick pay and three weeks half company sick pay. Disregarding the amounts that the respondent says the claimant was actually entitled to, had he been paid for September on the basis of his company sick pay entitlement, he would have been entitled to a total of £1,243.17 gross. As already recorded, he was actually paid £2,154.75 or £911.58 more than he could have been entitled to on a “best case” basis.

[80]Consequently, we find that there has not been an unauthorised deduction of wages or failure to pay his sick pay. Accordingly, the unauthorised deduction of wages/breach of contract claims fail.

[81]Obviously enough, the claimant has been overpaid £911.58 which is more than the £817.70 due to him for holiday pay and we set it off. Consequently, whilst the claimant is entitled to a declaration that the respondent has failed to pay him accrued holiday entitlement not paid at the date of the termination of his contract of employment, there will be an award of £0 as he has suffered no monetary loss as a result. Respondent’s counterclaim

[82]The respondent indicated that its counterclaim was to be dismissed upon withdrawal.

[83]For the above reasons, save for the declaration, the claimant’s claims are dismissed. Time issues

[84]Due to our findings on the facts, we do not need to deal with any time issues. Employment Judge Alliott Date: 29/10/2024 N Gotecha Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practicedirections/