Mr M Bolomoni Godly v ASEL Temporary Security Solutions Ltd: 6000895/2025
EMPLOYMENT TRIBUNALS
Case No 6000895/2025
Between
Mr M Bolomoni GodlyClaimantASEL Temporary Security Solutions Limited.Respondent
Before
Employment Judge T.R. Smith, sitting aloneIn person for claimantDate 29 May 2026
JUDGMENT
The claimant’s complaint of unlawful deduction from wages is not well founded and is dismissed. The claimant’s complaint of non-payment of holiday pay whether under the Employment Rights Act 1996 or under the Working Time Regulations 1998 is not well founded and is dismissed. The claimant’s complaint of direct race discrimination (or in the alternative harassment related to race on the same facts) is not well founded and is dismissed. The claimant’s complaint of victimisation is not well founded and is dismissed.
REASONS
[1]Definitions 1.1.The ACAS code. The ACAS Guide : Discipline and grievances at work (2015). 1.2.ERA 96. The Employment Rights Act 1996. 1.3.TULCRA 92. The Trade Union and Labour Relations (Consolidation) Act 1992. 1.4.WTR. The Working Time Regulations 1998. 1.5.EQA 10. The Equality Act 2010. 1.6.EHRC Code. The Equality and Human Rights Commission Code of Practice on Employment (2015).[2]The issues 2.1.At the start of the hearing the parties agreed the issues the tribunal had to determine, were as set out below. The tribunal made it clear to the parties that it would address the issue of liability first and then, if necessary, it would address remedy ( including mitigation and whether the claimant was ready, willing and able to work and if so from when) by means of a separate hearing.[3]Direct race discrimination 3.1.The claimant self described himself as of Indian heritage. 3.2.Did the respondent do the following thing: 3.2.1.Cancel the shifts booked for the claimant for 25, 26, 31 August and 01 and 02 September 2024 ( the respondent conceded it did, but for a none discriminatory reason) 3.3.Was that less favourable treatment? 3.4.The claimant said he was treated less favourably than a white Englishman who acquired his shifts. 3.5.If so, was it because of race 3.6.The claimant relied upon the same facts, in the alternative, as harassment related to race. It was agreed the determination of one complaint determined the other.[4]Victimisation 4.1.Did the claimant do all or any of the following alleged protected acts: 4.1.1.Issue tribunal proceedings on 09 January 2025.( It was conceded by the respondent that he did and this was a protected act) 4.1.2.Text the respondents control room on 24 August 2025 (65 to 70) complaining about his shifts.( Not conceded as a protected act) 4.1.3.Text his manager Mr Alan Cook on 24 August in respect of the same issue (77 to 79). .( Not conceded as a protected act) 4.1.4.Raise a concern in an email dated 24 August 2024 timed at 14.10.( Not conceded as a protected act) 4.2.Did the respondent do the following things:- 4.2.1.Fail to speak to the claimant about a possible redundancy on the site on which he principally worked (NSK). 4.3.By doing so, did it subject the claimant to detriment? 4.4.If so, was it because the claimant did a protected act or acts?[5]Holiday pay 5.1.Did the respondent fail to pay the claimant for annual leave the claimant had accrued and claimed? (The claimant’s case was that he was owed 16 days unspecified holiday from the holiday year 2023 to 2024 and had, in addition, 6 days to carry forward from 2022 to 2023 for which he had not been paid.)[6]Unlawful deductions from pay 6.1.Did the respondent make unauthorised deductions from the claimant’s wages and if so how much was deducted? ( The claimant’s case was that he was contracted to work a minimum of 24 hours a week and no work was offered to him after 24 August 2024 and he remained employed. The respondent conceded the claimant remained an employee but had not been dismissed and denied he was contracted on fixed hours. The respondent alleged the claimant was on a zero hours contract).[7]SECTION 207A TULCRA 7.1.Did the ACAS Code apply? 7.2.Did the respondent or the claimant unreasonably fail to comply with it? 7.3.If so, was it just and equitable to increase or decrease any award payable to the claimant? 7.4.If so, by what proportion, up to 25%?[8]The Evidence 8.1.The tribunal had before it a main bundle which consisted of 450 pages and a supplemental bundle which totalled 52 pages. 8.2.On the morning of the hearing the claimant sought to adduce a second supplemental bundle which was numbered 53 to 59 .For the oral reasons given it was admitted in evidence. 8.3.During the hearing the tribunal was provided with yet further documents which it marked supplemental bundles 3, 4, 5, and 6 and which consisted of documents from the respondent seeking to address matters raised in the claimant’s supplemental bundle and copies of documents embedded, but not copied, in some of the claimant documents. 8.4.A reference to a number in brackets is a reference to the main bundle unless otherwise stated. 8.5.The tribunal heard affirmed evidence from the claimant. The tribunal permitted the claimant to rely upon his statement, exchanged late, for the oral reasons given. 8.6.On behalf of the respondent the tribunal heard affirmed evidence from:- 8.6.1.Mr Alan Cook ( the claimant’s former line manager until end of August 2024/early September 2024) 8.6.2.Mr Robert Cook ( Guarding director) 8.6.3.Ms Tracy Childs (HR consultant)[9]Background 9.1.The respondent’s correct name is ASEL Temporary Security Solutions Limited. It was formerly known as The Protector Group Limited ( “Protector”) which at one time traded as Amberstone Security ( “Amberstone”). 9.2.The respondent has a diverse work force. 9.3.The respondent is a security company and the claimant worked for the respondent as a security guard. 9.4.The post occupied by the claimant was not his principal job. From 2021 he had other employment. Initially he worked as an area supervisor for another security firm and more recently he had been working as a Regional Manager for a rival of the respondent. 9.5.The claimant had worked in the security industry for almost 20 years prior to the events that gave rise to this claim and therefore was well aware of the staffing vagaries of the industry. 9.6.Within the respondent organisation, security guards were broadly divided into two categories. 9.6.1.The first were those employees who had permanent contracts, sometimes assigned to a particular client, although not always. 9.6.2.The second were relief officers. Such officers covered for sickness, holidays, staff training, demand surges, staffing shortages and a host of other challenges that faced the industry. Such employees were on zero hours contracts. The respondent utilised zero hour contracts for its relief officers. Over a period of time the respondent had been gradually phasing out zero hour contracts and offering guaranteed hour contracts, sometimes at a relatively low guaranteed level, with the opportunity of additional work, dependent upon demand. 9.7.Those employees on a permanent contract, understandably always received preference to a relief officer in the allocation of work. 9.8.The respondent operated a control room (“control”). It was the function of control to seek to marry the available staff to customer requirements. On occasions if, for example there was known long term sickness, control might roster an employee for a number of months in advance. On other occasions notice of an assignment could be very short, for example, just a few hours. 9.9.An employee on a zero hours contract could utilise a portal to indicate their availability or non-availability to control and to ascertain what shifts were available. 9.10.Initially under Mr Alan Cook’s tenure Mr Cook told the claimant of his shifts whilst the portal was introduced. The portal was fully operational in respect of the events of August and September 2024, which gave rise to much of this claim. 9.11.A controller when allocating work would not know the name, race or identity of an officer, merely the officers pin number, although the local manager would be aware of such information. 9.12.The claimant is a highly intelligent man. His qualifications included a Masters degree in Business Administration and a Masters degree in Computer Applications. 9.13.The claimant began his employment with the respondent on 17 July 2019. The respondent, surprisingly, had taken no steps to terminate the claimant’s employment, although the claimant had not undertaken any work for the respondent since 24 August 2024. 9.14.At no stage prior to the issuing of proceedings had the claimant ever raised a formal grievance as to the allocation of his hours. The claimant said he had informally complained as to his hours and the removal of shifts and usually, when he did, he got a few more shifts and then they dropped off. At the time he did not suggest his race had anything to do with the allocation of shifts. The tribunal found the reason he made no such assertion was because, as a relief security officer, and a man with significant managerial experience in the sector, he knew that this was part and parcel of the employment. 9.15.The claimants claim form was posted to the respondents on 28 January 2025.The respondent would not have known that proceedings had been issued until ,at the earliest, 29 January 2025.[10]The “contractual” documents 10.1.There were a number of documents placed before the tribunal that were said to be relevant to the claimant’s asserted contractual hours, and the tribunal dealt with them in chronological order. 10.2.The claimant entered into a contract with Protector dated 22 July 2019 and which he signed on 27 July 2019. (111 to122). This was not disputed. 10.3.Relevant to these proceedings were the following clauses found in the contract. 10.4.The first was clause 4 which related to the claimant’s place of work which stated “As the employee’s role is site based they will have no permanent place of work. The employee will be required to attend different sites to meet the demands of the company. The employee may be required to work on any site within a reasonable travelling distance from their home….. the employee’s attendance on any one site may be either long-term or short-term and the company has no obligation to assign the employee to or keep the employee assigned to any site. The employee will be informed of any available site/shift rota on a weekly basis at the company’s sole discretion” 10.5.Clause 6 provided “The employee’s hours of work will vary according to the needs of the company. The company is under no obligation to provide the employee with work or to offer any particular or minimum hours of work… work be provided by the control on a weekly basis… at the company’s sole discretion. The employee has no right to work any particular shift and the company will assign and offer shifts entirely at its discretion” 10.6.Clause 14 dealt with holidays and indicated an employee was entitled to the equivalent of 5.6 weeks holiday during each holiday year calculated on a pro rata basis, with holiday entitlement being 12.07% of hours actually worked in the holiday year. 10.7.The respondent’s holiday year ran from 1 October to 30 September. Carry over of holiday was not permitted save in limited specified circumstances, which were irrelevant to these proceedings. 10.8.The claimant contended in his evidence that he had been told that his contract would guarantee between 48 to 60 hours per week. In support of that contention he relied upon an email dated 22 June 2019 (SB1, 52) from a member of HR which read “Thanks could you attend an interview on Monday morning about 10:00 hours there is enough hours there it depends what you want would think around 48-60. If then (sic) any other vacancies, these will be advertised internally for your chance to apply” 10.9.The context was important. On the balance of probabilities the tribunal found the claimant had been told that what was on offer was a zero hours contract but there should be plenty of work and that he would have the opportunity of applying for a permanent contract, hence the reference to other vacancies. 10.10.The subsequent wage slips were wholly consistent with a zero hours contract rather than a fixed hours permanent contract. For example in the claimants October 2019 pay slip he was paid for 55 hours whereas in the November pay slip he was paid for 122.50 hours 10.11.There was then a document (SB1,12) dated 07 August 2020 from Protector written on a “to whom it may concern” basis which recorded the claimant as having “contract type 24 hours per week”. It enclosed 12 months pay slips which contradicted the hours stated in the letter as there was at least one month when the was not paid for 96 hours ( ie 4 weeks at 24 hours), April 2020 (SB1,17.).The tribunal found the document was prepared solely to assist the claimant in relation to his wife and children’s immigration status (SB 9). It was not to vary the existing contract. The claimant asked the respondent to use a specific format, necessary for the immigration authorities, which he supplied. The claimant in his witness statement said that he was “shocked when they provided me this letter”. 10.12.He sought to explain that comment on the basis that he was guaranteed 48 to 60 hours per week ( yet his case before the tribunal was that he was guaranteed 24). If that was really the claimant’s genuine belief then when he received this letter, being an intelligent man he would have raised a grievance as his hours had apparently been so drastically reduced. He did not. The claimant in cross examination said he did not raise a grievance because “I was happy with the 24- hours” The tribunal considered it was more likely that the claimant was shocked because he knew he was on a zero hours contract and delighted with what the respondent had had written as it assisted his family visa application. 10.13.There was then a further document which purported to be a contract from Protector dated 21 September 2021 although with a start date of 20 October 2021 (125 to 137) 10.14.The first page was in different typeface to the main document. It was not signed by the claimant. It did not name the claimant as the employee. It stated “you’re normal hours of work are 40 per week and are variable in accordance with the roster…” It gave a commencement date of 19 September 2004 which it was common ground was not the claimant’s start date. 10.15.The provenance of this document was not satisfactorily explained to the tribunal by either party. The respondent’s position was that it had no such document on its HR file. The claimant himself did not assert that he was contracted to work 40 hours per week. A 40 hour per week contract also would not make sense given, by this date, the claimant had another job. The tribunal rejected any suggestion that this was a contract issued by the respondent or its predecessor to the claimant, amending or replacing his zero hours contract. 10.16.On 08 July 2024 (139) the claimant requested information from the respondent, this time to assist in relation to his own immigration status. 10.17.The respondent replied that same day (140) on a “to whom it may concern” basis. The letter stated in connection with the claimant that “[he] is employed on a permanent full-time basis and has been an employee since 17 July 2019. They are contracted to do 12 – 35 hours per week and is currently working on average of 20.9 hours per week with an hourly rate of £11.44” 10.18.The claimant requested a clarification as to the name of his employer and subject to that amendment an identical letter was supplied by the respondent. 10.19.The respondent explained the letter was erroneous and provided by part of its HR function, contracted out to India. 10.20.The tribunal examined the explanation closely and made the following finding. A company known as Argenbright Security Europe Limited ( confusingly known as ASEL internally) acquired Protector and employees on fixed hour contracts transferred to it. Relief officers, those on zero hour contracts, transferred to the respondent. Thus there were two companies with very similar names but with different arrangements as regards contractual hours. An employee of ASEL could have a contract that guaranteed a minimum of 12 hours with a maximum of up to 35 albeit that additional hours could be available but were not guaranteed. 10.21.The tribunal was satisfied that the information provided in the “to whom it may concern” letter was incorrect. The personal details of the claimant clearly had not been adequately checked and the author had assumed that the claimant would be subject to a standard ASEL contract as that was the contract used for ASEL employees. That was consistent with the author not specifying an exact number of hours, but merely a range of hours. 10.22.A number of additional facts added credibility to the explanation. 10.22.1.The claimant did not have guaranteed contractual hours of “12 -35” as the shift documents placed before the tribunal showed there were weeks when the claimant did not work, at all, for no good reason, such as sickness or holidays. 10.22.2.Given it was the claimant’s case he had a guaranteed contract of 24-hours per week it was puzzling to the tribunal that he did not challenge this document when the respondent produced it. His explanation was that he“ kept quiet again”. If he had a guaranteed 24 hours per week there was no need to keep quiet as it would not damage his visa application. He did not correct this error. 10.22.3.At a case management hearing held on 08 April 2025 it was put by the judge to the claimant that the letter did not sit comfortably with his assertion he had a guaranteed 24 hours per week and the respondent said there was a mistake. The claimant was recorded in the case management notes as saying the letter was no mistake.(36) That again did not tally with the claimant’s claim of a guaranteed 24 hours. 10.22.4.Where there was no dispute upon was the letter did correctly record that the claimant worked on average 20.9 hours per week, again less than the 24 hours the claimant said he was contractually guaranteed. 10.22.5.The tribunal’s conclusion was further reinforced by a review of the shifts for the week commencing 08 July 2024, when the above letter upon which the claimant relied was written, as during the week the claimant did not have any annual leave and did not work at all. 10.22.6.Further the claimant’s payslips regularly showed he worked less than 24 hours per week. For example in January 2024 he was paid 13.45 hours. In February 2024 there were no hours to be remunerated. In March 2024 he was paid for 84 hours and in May 2024 he was remunerated for 38 hours. A similar pattern was found in August 2024 when he was paid for 68 hours and in September 2024 when he was paid for 38.5 hours. 10.22.7.It was possible to drill down further on the claimant’s working pattern or lack of it, as illustrated by document 152. By way of illustration only, In the month of April 2024 the claimant did not work for three weeks. In May 2024 there was a gap between the 11 and the 24 and in June 2024 he had no work until the 18 of the month. 10.22.8.A further fact that pointed away from the claimant having a contractual variation to a guaranteed 24 hours per week was found in a message the claimant sent to payroll in September 2023 when he said “ Please correct my….. tax code as this is my second job and I only do one or two shift ( sic) in a week. As last month I had no shifts at all”. 10.23.The tribunal was satisfied that the claimant, despite the letter of 08 July, did not have a guaranteed number of hours. For all the above reasons he was not on a guaranteed contract of 24 hours per week but on a zero hours contract. 11.24 August to 02 September 11.1.It was not disputed that the claimant was rostered to work on 25, 26, 30, and 31 of August and 02 September. 11.2.The claimant worked a rostered shift on 24 August. 11.3.The claimant found out on 24 August that the remaining shifts had been removed . He was upset and texted control and Mr Alan Cook and complained. The obvious thing for the claimant to say was that he had a contract with guaranteed hours. He did not. A further obvious thing to do was to send a screen shot of the letter 07 October 2020 which he now relied upon. He did not. 11.4.The shifts were allocated to another security guard who was white English but the claimant was not given that as a reason, the tribunal found, for the cancellation of his shifts either by control or Mr Cook. 11.5.The tribunal did not accept the claimant was told the shifts had been allocated to an Englishman to which he alleged he said immediately that considered that to be racially discriminatory. The contemporaneous documents from the claimant did not allege race discrimination despite what the claimant now said in his witness statement that he “immediately recognised it ( the alleged reference by control to the shifts being given to an Englishman/white man) as discrimination deeply distressed by it ” (paragraph 66). 11.6.It was not disputed that in the period between 24 August and 02 September the day-to-day scheduling and allocation of work was undertaken by the respondents control team who were not aware of the claimant’s ethnic origin or name or the ethnic origin or name of the person to whom the shifts were allocated. Specifically control would not know shifts were taken from a man of Indian heritage and allocated to a man of English heritage, at the time the decision was made. 11.7.The claimant also said he was told that his shifts had been reallocated because of the riots. That was a reference to the unrest that followed the stabbings in Southport. It was certainly true that there was unrest and indeed the respondents were aware of it so gave those staff from an ethnic background the opportunity of cancelling shifts or being reallocated. 11.8.The difficulty for the claimant was the riots took place between 30 July to 05 August 2024. The vast majority took place in city centres whereas the claimant was employed on an industrial estate in Peterlee. It was improbable therefore that this would be put forward to the claimant as a reason why he shifts had been reallocated. It also was not consistent with the texts. 11.9.Nor did tribunal find that on immediate reflection that the claimant considered he had been the victim of race discrimination ( as he claimed) as following his texts he applied for a promotional job on 03 September 2024 with the respondent to work as a regional manager, even though he told the tribunal that he had lost all trust and confidence in the respondent. Again this was a factor that told against the claimant in terms of credibility. 11.10.Thus the tribunal for all the above reasons preferred the respondent’s account of the events in connection with the shift changes. 11.11.The NSK site usually had four security guards allocated to it. With longer term client contracts an employee could be classified as a core guard, that is core to that site. 11.12.The recipient of the claimant’s shifts was a core guard. This was not challenged. It was not disputed that the recipient was on a permanent contract. 11.13.The newly reallocated employee had been awaiting the renewal of SIA licence before he could return to work at the location to which the claimant had been rostered. 11.14.Due to a change in training regulations, the availability of training, and a back log with the regulator the renewal of a SIA licence could take between 2 weeks to 3 months. The core guard obtained his licence and it was for that reason the claimant’s subsequent shifts were cancelled. This was consistent with the contemporaneous texts (67 and 80) from control which stated “In regards to the shifts you have lost this is due to the renewal of the core officer on that site having his badge renewed on his regular shifts on the base rota”. The claimant was offered alternative hours at another site which he did not take. Nothing was done about the refusal by the claimant to take that work, which again pointed to the claimant being on a zero hours contract.[12]NSK site 12.1.On 19 July 20245 the claimant received a letter from the respondent (157/158) which informed him that the NSK site was closing down and there was a potential redundancy. The letter indicated that there would be discussion with the claimant’s manager. 12.2.An identical letter was sent to all those employees who were working on the NSK site. 12.3.The respondent accepted that other than receiving the above letter, the claimant was not consulted as to the closure of the NSK site. 12.4.The site was closed on 31 August 2024. 12.5.No consultation took place with the claimant prior to any of his correspondence of 24 August 2024. Thus this was not a case where consultation was started and then stopped. It simply never happened in the case of the claimant. It did happen with those employees allocated to the site who were permanent core officers 12.6.The evidence before the tribunal, which was unchallenged, was that the manager Mr Alan Cook did not consult the claimant because the claimant could be moved to another site under the terms of his contract and had been advised by HR that it was not necessary as the claimant was on a zero hours contract (392). Whether that was legally right or not was irrelevant. What was relevant was an explanation was before the tribunal, which it accepted.[13]Discussion 13.1.The tribunal began by addressing the claimant’s contractual position as it was relevant in respect of a number of the agreed issues. 13.2.The position between the parties was stark. The respondent contended the claimant was subject to a zero hours contract and the claimant accepted he had signed such a contract on 27 July 2019 (111 to122). 13.3.The claimant’s position was that subsequently he had a contract that guaranteed him a minimum of 24 hours per week as per the letter of 07 August 2020(SB1,12) written on a “to whom it may concern” basis which recorded the claimant as having “contract type 24 hours per week”. 13.4.The key question for the tribunal was had there been a variation to the claimants zero hours contract on 07August 2020? 13.5.It is important to remember what is required for a contract to be formed. There must be an offer, acceptance, intention to create legal relations, consideration and certainty between the parties. All those elements must be present. 13.6.The tribunal was not satisfied that the letter of 07 August 2020 constituted a contractual variation for the following reasons: – 13.6.1.It was not addressed to the claimant. It was not a document setting out a variation between the claimant and the respondent. It was a statement made to the Home Office to assist the claimant in respect of his wife and children’s visa application. That was the agreed intention of both parties. It was not the intention to create a legal relationship between the claimant and the respondent. 13.6.2.The claimant provided no consideration. 13.6.3.The respondent did not regard it as a contractual variation as when the claimant failed to work his purported contractual hours it took no action whatsoever. That was consistent with a zero hours contract. 13.6.4.If there had been a true variation, given the claimant’s intelligence, and role elsewhere, it was surprising in the extreme that he had not issued a formal grievance or made an application to the employment tribunal for an unlawful deduction from wages. Of course the lack of action did not mean there could not have been a contractual variation but it was strongly suggestive that there was no offer and acceptance. 13.7.Nor can the letter of 08 July 2024 assist the claimant. 13.8.The document of 08 July 2024 (140) as slightly amended, was not addressed to the claimant but to assist him in respect of his immigration status. The letter itself was contradictory and lacked certainty because it said that the claimant was “employed on a permanent full-time basis”. Full-time would suggest 39 to 40 hours a week. It then went on to say that the claimant was contracted “to do 12 – 35 hours per week” 13.9.What was informative were two particular matters. 13.9.1.The first was that neither party could produce a copy of this contract. 13.9.2.The second was the respondent said, and it was not challenged, the claimant was working an average of 20.9 hours per week. The reference to the average hours was informative because it showed that the claimant was not working what he said was his minimum contractual hours of 24 per week. 13.10.The respondent provided a cogent and credible explanation as to how the letter of 08 July 2024 came into being and why it was erroneous. The conclusion of the tribunal therefore was the claimant was contracted to work on a zero hours contract. There was no contractual variation.[14]Unlawful deduction from wages 14.1.Having made the above finding as to the contractual relationship between the parties it followed the claimant’s claim of an unlawful deduction from wages, that is the failure to pay him from 31 August 2024 and ongoing at 24-hour a week had to fail. It had to fail because the claimant had not suffered an unauthorised deduction within the meaning of section 13 ERA 96. Under his zero hours contract he had no entitlement whatsoever to any guaranteed hours and therefore wages. This complaint was therefore dismissed.[15]Holiday pay 15.1.The claimant remains employed by the respondent. 15.2.Having regard to the provisions of clause 14 of the claimant’s contract even if he had established he was owed six days holiday pay from the previous holiday year he had no right to carry forward. 15.3.The claimant’s case was that he had been granted 16 days holiday in the holiday year 2023 to 2024 (which in accordance with his contract would run from 01 October to 30 September.) 15.4.However since the commencement of the proceedings, having attended two case management hearings, having provided numerous documents, and having been permitted to admit a statement late he still had not been able to identify any of those dates. Whilst his schedule of loss referred to a global figure for holiday pay the dates were not particularised. 15.5.Mr Alan Cook was adamant he had never denied the claimant leave. 15.6.The burden of proof lay upon the claimant to establish his claim. 15.7.In the absence of any credible evidence of non-payment of holiday this complaint had to be dismissed as the claimant had failed to lead any cogent evidence that came even close to establishing a prima facie case.[16]Victimisation 16.1.Section 27 EQA10 provides:- “(1)A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because— (a)B does a protected act, or (b)A believes that B has done, or may do, a protected act. (2)Each of the following is a protected act— (a)bringing proceedings under this ACT (b)….(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)…. (4)…. (5)The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.” 16.2.The first task of the tribunal was to determine whether or not there were any protected acts. 16.3.It was not disputed that the issuing of tribunal proceedings was a protected act but given the detriment the claimant relied upon predated the issuing of proceedings that aspect of the victimisation claim failed. The detriment must follow the protected act. 16.5.But were the other matters protected acts? Section 27 (2) (c) and (d) are widely drawn and anything that could be said, in the broad sense, to be done in connection with EQA10 will merit protection even if the person concerned does not focus their minds specifically on any provision of the act, see Aziz -v- Trinity Street taxis Ltd 1988 ICR 534 16.6.Whilst subparagraph (d) did not require a specific reference to the EQA10 but the facts alleged, if verified, must be capable of amounting to a breach of EQA10. As was said in Beneviste -v-Kingston University EAT 0393/05 it was not sufficient “merely by making a reference to a criticism, grievance or complaint without suggesting that the criticism, grievance or complaint was in some sense an allegation of discrimination or otherwise a contravention of the legislation”.[17]What of the disputed protected acts? 17.1.The text exchange of 24 August 2025 (65 to 70) simply showed the claimant was complaining after shifts taken of him. He said he would take the matter up with his union and ACAS if the shifts that he said he was offered were not given to him. He made reference to going to an employment tribunal. There was no mention, at all, of race discrimination, race or any breach of EQA 10. At its highest the claimant said in relation to shifts allocated to another employee “this is not fair and it’s showing me (sic) favouritism to other officer and this is not showing that all officers are treated equal” 17.2.The texts between the claimant and his manager, Mr Alan Cook ( 77 to 79) again showed the claimant was complaining about shifts having been taken away from him. He was advised that the decision had been taken by control and why. No reference was made to any form of race discrimination or even favouritism let alone a reference to any breach of EQA 10. The conclusion of the tribunal was that these were not protected acts. 17.3.The final protected at the claimant relied upon was an email dated 24 August 2024 timed at 14.10.( (“the disputed e-mail”) 17.4.The email was suspicious in the extreme as there were two different versions. 17.5.The first version ( the undisputed version) was found at page 172/173. It was sent on 24 August 1410 and was purportedly sent to 3 different email addresses of the respondent. One address hrss@amberstone.co.uk the tribunal was satisfied was not operational and indeed a test message showed that anyone utilising the address at the time would have received a bounce back. That said it was received by the respondent at the two other email addresses. 17.6.Broadly in the document the claimant again complained about shifts taken of him. At its highest he said “the way I am treated is not fair, this has happened to me before and it's happening every time. Why do you offer shifts and then why do you remove the shifts without even telling me? Do you treat us like employees or do you treat us like laborers (sic)? Why am I not considered equal to other employees? What makes me different from other colleagues is that you always treat me as no value and not respected. I would like to work for a company whose values are equality in diversity and supporting and helping its employees.” 17.7.That was not sufficient to amount to a protected act. 17.8.There is a second similar but not identical version of the same e-mail found in SB1 at page 50. This was apparently sent again on 24 August although timed 2.09. It was sent to the same addresses as in the undisputed version of the document but now with a correct address for HR. The respondent was adamant it never received this version. 17.9.The claimant had specifically been asked, rather than for a screenshot, for a copy of the original and had been unable to produce it. 17.10.A comprehensive search by the respondent’s IT department could only find the undisputed version. 17.11.The disputed version referred to the claimant’s shifts being offered to “English men” and that the claimant should be treated “equal (sic) same as other officers whether its Asian or English”. 17.12.The claimant’s explanation was that he sent both emails “ at the same time”. Why he would draft a toned down version and send it apparently in under 60 seconds of the previous document he could not explain. 17.13.His only explanation for the failure to produce the original was he could not find the disputed document on his computer. It would however have been next to or very close to the undisputed document which was sent on the same date and at about the same time and which he could produce. 17.14.The claimant also said that he sent a toned down version so as not to create problems for himself . The tribunal put it the claimant on three occasions that if there had been a mistake he had an opportunity to correct it now. He contended that there was no mistake. 17.15.The tribunal found the claimant’s explanations totally lacked credibility. It considered the submission of Mr McNally that the claimant has invented this document to try and bolster his claim to be a more likely explanation. This particular issue impacted significantly on the tribunal’s assessment of the claimant’s overall credibility, to his detriment. 17.16.The tribunal found that none of the disputed protected acts were protected acts in law. 17.17.However if the tribunal was wrong on its primary finding that there were no protected acts it then went onto consider the other elements of the complaint. 17.18. A detriment existed if a reasonable worker would or might take the view that the treatment was in all the circumstances to his disadvantage, but the starting point was to examine the situation from the claimant’s point of view, see Chief Constable of West Yorkshire Police v Khan 2001 ICR 1065, HL. Thus the tribunal had to look at the matter from the claimant’s point of view, but then determine whether that perception was reasonable in all the circumstances. Put differently the test for detriment was whether a reasonable worker would or might take the view that he had been disadvantaged in the circumstances in which he had thereafter to work. An unjustified sense of grievance cannot amount to ‘detriment’, see Shamoon-v-Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285. 17.19.The tribunal was not persuaded on these particular and somewhat unusual facts it constitutes a detriment in law to fail to consult with a zero hours worker as regards the closure of the site as he faced no risk of redundancy, had no entitlement to a redundancy payment, and had no right to any minimum hours and was required to work at any site within a reasonable travelling distance. 17.20.Finally if the tribunal was wrong on the detriment issue was the detrimental treatment because of the prohibited circumstances? The essential question in determining the reason for the claimant’s treatment was what, consciously or subconsciously, motivated the respondent to subject the claimant to the alleged detriment. This required an inquiry into the mental processes of the alleged discriminator(s). Thus the tribunal therefore had to identify the real reason or the core reason and motive for the way the alleged discriminator(s) acted. The protected act did not need to be the only reason for the treatment meted out but it had to have a significant influence, see paragraph 9.10 at the EHRC Code. 17.21.The text messages (65 to 70) were with control and Mr Cook. 17.22.There was not a shred of evidence that control had any involvement or influence in the claimant’s consultation. They did not even know his identity, only his identification number. There was no need for their involvement in consultation in any event as their role related to scheduling. 17.22.Mr Alan Cook was aware of the claimants concerns as to his shifts but that had no influence at all on the lack of consultation. He did not engage in consultation with the claimant because he was told by HR it was unnecessary as the claimant was on zero hours. 17.23.The e-mail dated 24 August 2024 timed at 14.10.( page172/173.) was never received by HR as it went to an incorrect and inoperative address. It cannot therefore have had any influence on the advice it gave to Mr Cook in respect of consultation. 18.Direct discrimination 18.1.Section 13(1) EQA10 provides as follows: “(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.” 18.2.Although the two-stage test (less favourable treatment; then ‘the reason why’) is often appropriate, the tribunal was not obliged to adopt it. The crucial question was why the claimant was treated as he was and it would sometimes be helpful, or indeed necessary, to address that question first: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 (paras. 7-12, per Lord Nicholls). 18.3.The Court of Appeal in Madarassy v Nomura International Plc [2007] IRLR 246 confirmed (at para. 56), “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent has committed an unlawful act of discrimination.” 18.4.In claims that involved a comparison, section 23 EQA 10 provided as follows: “(1) On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case.” S.136 EQA provides: (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. 18.5.As regards the burden proof, it was for the claimant to initially prove facts which could establish that an act of discrimination occurred. It was only once this has been satisfied that the burden shifted to the employer. Once the burden has passed to the respondent, it is on the respondent to show that a contravention did not occur. This was stage two of the s.136 EQA 10 burden. 18.6.This was further explained recently in London Ambulance Service NHS Trust -v- Sodola 2026 EAT 6 by His Honour Judge Tayler at paragraph 28. 18.7.The respondent accepted that the treatment meted out to the claimant took place. 18.8.The claimant cannot show there were facts from which the tribunal could conclude there was discrimination. 18.9.Mr Alan Cook’s evidence , who knew of the claimant’s ethnic origins had nothing to do with the allocation of the shifts. It was done by control and they had no knowledge of the claimant’s ethnic origins. 18.10.Further the claimant cannot succeed because there was a material difference between himself and his comparator. His comparator was on a permanent contract and the claimant was not. A proper comparison would have been with a white relief security guard. There was nothing before the tribunal to suggest that such a comparator would not have been treated in a comparable manner to the claimant. 18.12.The claimant direct discrimination must therefore be dismissed and as harassment was based on the same grounds it also must be dismissed. 19.Acas Code. 19.1.The claimant had not demonstrated any breach by the respondent of the code. 19.2. In any event given the tribunal made no liability finding in favour of the claimant section 207A of TULCRA 92 was not engaged.