Ms G ForrestMs A BerryIn person for claimantMr Kediyal (instructed by Counsel) for respondentDate 7 November 2025
JUDGMENT
[1]The complaint of direct race discrimination is not well-founded and is dismissed.[2]The complaint of victimisation is not well-founded and is dismissed.
REASONS
[1]Early conciliation began on 05 December 2025 and ended on 16 January 2025.[2]The claim was issued on 19 January 2025.[3]Following a preliminary hearing for case management before Employment Judge Manley on 05 June 2025, a list of issues was prepared and agreed.[4]A further preliminary hearing was held before Employment Judge Davidson on 16 September 2025 to consider the respondent’s application to strike out the Claimant’s claims and / or make a deposit order. The Claimant did not attend this hearing due to a family bereavement overseas.[5]Further to the hearing on the 16 September, the respondent’s applications were refused except that Employment Judge Davidson made a Provisional Decision. This was that they were minded to make a deposit order on the basis that the claimant’s allegations that she was directly discriminated against by being subject to disciplinary action and dismissal because of her race had little reasonable prospect of success. As the Claimant was not in attendance, she was permitted to provide written representations and evidence of her means. She subsequently provided these. However, the final decision by Employment Judge Davidson had not yet been reached as at the date of this hearing.
The Claims
[6]The Claimant claims direct race discrimination. She describes her race as black and compares herself to an actual comparator, KT who is white and a hypothetical comparator, who is a person who is not black and in the materially the same circumstances as the Claimant.[7]Victimisation, in that the Claimant was dismissed because of making a protected act. The alleged protected act being the raising of a complaint of sexual harassment against three other employees.[8]The issues to be considered in relation to liability are as follows: Direct Race Discrimination (Section 13(1), Equality Act 2010) 8.1. The Claimant alleges that she has been directly discriminated against on the grounds of her race. The Claimant is black. 8.2. Did the Respondent subject the Claimant to less favourable treatment than an actual and/or hypothetical comparator was or would have been treated. The acts of less favourable treatment alleged by the Claimant are: 8.2.1. Following an incident on 18 October 2024 in which the Claimant alleges that a fellow worker engaged in an inappropriate conversation in the workplace about sexual partners, which the Claimant reported, by taking no action against the fellow worker when disciplinary action was subsequently taken against the Claimant in relation to taking video footage in the workplace (the “Complaint”); 8.2.2. By dismissing the Claimant (dismissal is admitted) (the “Dismissal”). 8.3. If the Respondent did treat the Claimant less favourably in any of the ways described in paragraph 2 above, did the Respondent do so by reason of the Claimant’s race? 8.4. In answering this question with respect to the Complaint: 8.4.1. Did the Respondent carry out an internal investigation and find that the Claimant’s allegations were not supported by the evidence? 8.4.2. Was there any link between the Respondent’s decision not to take any action in relation to the Claimant’s report of an alleged inappropriate conversation and the decision to take action in relation to the Claimant’s misconduct? 8.4.3. If there was any such link, was the Claimant’s race a factor in the Respondent’s decision to decline to take action in respect of the alleged inappropriate conversation and yet to take action in relation to the Claimant’s misconduct? 8.5. In answering this question with respect to the Dismissal: 8.5.1. Did the Respondent believe that the Claimant had taken video footage in the workplace and posted it on TikTok? 8.5.2. Was taking video footage in the workplace and posting it on TikTok in breach of the Respondent’s policies and procedures? 8.5.3. Did the Respondent conduct an investigation into the Claimant’s alleged misconduct? 8.5.4. Was the dismissal of the Claimant by reason of her conduct? 8.5.5. Was the decision of the Respondent to dismiss for conduct made by reference to the Claimant’s race? Victimisation (Section 27(1), Equality Act 2010) 8.6. Did the Claimant do a protected act and/or did the Respondent believe that the Claimant did, or may do, a protected act for the purposes of section 27(1) and 27(2) of the Equality Act 2010? The Claimant relies upon the following protected act: 8.6.1. The Complaint, in that the Claimant reported an incident on 18 October 2024 in which the Claimant alleges that a fellow worker engaged in an inappropriate conversation in the workplace about sexual partners. 8.7. If so, did the Respondent subject the Claimant to a detriment because of this? The Claimant relies upon the following detriment: 8.7.1. The Dismissal, in that the Complaint was the reason or one of the reasons for the Claimant’s dismissal by the Respondent.
The Hearing
[9]The hearing took place by video link.[10]The Tribunal had the following documents: 10.1. Bundle of 524 pages. 10.2. Bundle Index 10.3. Witness statements of: 10.3.1. The claimant 10.3.2. Ms Layla Benton 10.3.3. Ms Sarah Fitzsimmons 10.3.4. Mr Eyan Hinson[11]The Claimant provided a new statement at the start of the hearing, which included a new paragraph. The Respondent objected to this addition. The Claimant accepted that the new paragraph did not go to the issues in the case and the hearing would continue with the original statement.[12]At the start of the hearing, the list of issues was reviewed and was restructured to provide clarity in relation to the separate claims of direct discrimination and victimisation.[13]The Claimant gave evidence on her own behalf. The Claimant had called another witness, Ms Layla Benton, however Ms Benton did not appear. The statement from Ms Benton was included within the Claimant’s documents and was unsigned.[14]The Respondent called two witnesses, Mr Eyan Hinton and Ms Sarah Fitzsimmons. Both provided signed statements. No other witness evidence was produced.[15]Having concluded her own evidence and during the cross examination of Mr Hinton, the Claimant asked for an alternative screenshot of a WhatsApp message to be incorporated into the bundle. This WhatsApp message had always been in the Claimant’s possession and there was a copy of it in the bundle, however, during questioning of Mr Hinton, the Claimant had realised that the screenshot did not include the date.[16]The Claimant apologised and asked for the message to be included and the Respondent objected given that the Claimant’s evidence had been concluded and that this would be new information not previously disclosed to the Respondent despite it being in the Claimant’s possession.[17]Whilst the Tribunal accepts that the Claimant did not deliberately withhold this message, it was not in the interests of justice to admit this evidence at this stage in the proceedings. The Claimant had had the opportunity to produce it at any time but had not. Her evidence had been concluded, and the evidence of Mr Hinton was also almost concluded. The content of the WhatsApp message was in the bundle but did not refer specifically to the issues the Tribunal is being asked to consider. In these circumstances, permission to admit the WhatsApp message was refused. Findings of Fact Policies and Procedures
Findings of Fact
[18]The Respondent operates a range of policies and procedures. The following were addressed in evidence: 18.1. Code of Conduct effective March 2024, this states: Unacceptable behavior (this list is not exhaustive)[24]Taking breaks on the production floor.[25]Possessing or using electronic fames, photographic equipment (including cell phones or other electronic communication devices equipped with cameras), radios, tape players, compact disk players, or non-business related electronic devices on the production floor or training classrooms. 18.2. This Code of Conduct also provides the following: Code of Conduct The Company Code of Conduct is communicated during the induction process and you be asked to complete some Code of Conduct training on joining Percepta. All employees are expected to comply with Percepta’s Code of Conduct at all times during their employment. 18.3. Employee Handbook v14 141119. Mobile Telephone Use You are permitted to bring camera mobile phones on site but are prohibited from using the camera function to capture any images. Please be aware that the onsite Security Department reserve the right to review the content of any images contained on camera mobile phones which are on Company premises and random checks may be introduced at site access and exit points. Standard cameras cannot be brought on site without the prior authorisation from site security 18.4. UK Standards of Behaviour Telephones Telephony and electronic device use Mobile telephones or smart phones may not be used at work stations or on the Operations floor. This includes voice calls, text messaging, internet browsing or social media usage, unless for company purposes i. e. Operation Managers/ Account Managers. Ring tone must be set at a low volume and phones should not be on desks unless a prior arrangement has been made with your Line Manager. Mobile phones may be used off the floor during break and lunch times. 18.5. Standards of behaviour provides: Every employee is personally responsible for knowing and understanding Percepta’s Code of Conduct. If you have questions, please raise them with your Manager/Team Leader or a member of the Human Resources team. All employees are expected to comply with Percepta’s Standards of Behaviour at all times during their employment. Percepta’s Workplace Standards All employees must adhere to the following rules and standards of conduct: 2) All telephone usage is limited to Percepta related business purposes only. However, in emergency situations all staff should ask the Manager/Team Leader to utilise their mobile telephone in the first instance.• Mobile telephones should not be used whilst at workstations, unless it is used for Company purposes i.e. Operation Managers/Account Managers, however, the ring tone should be set at a low volume or on silent mode. 18.6. Acceptable Use Policy dated 08 July 2014 states: TELEPHONE Mobile 'phones must not be used on the Operational floor during working hours apart from designated breaktimes (except in exceptional circumstances), and must be switched to ‘Silent’ mode at all times. 19. On 04 June 24 within an email from the respondent (Julie Jarvis) an Offer of employment was made, which enclosed the documents above. The Claimant was asked to review and sign acceptance of these, which she did on the 11 June 2024. 20. On the 25 June 24 in an email from Chanelle Knight the Claimant was provided with an induction schedule. On the 01 July 2024, Ms Knight provided the Claimant with details of her mandatory training for the Code of Conduct. 21. We find that the respondent’s policies provide clear instructions that the use of mobile phones, particularly the camera function, is strictly prohibited on the operational floor and in the training rooms. The policies allow the use of mobile phones during breaks but not in these areas. 22. In circumstances where the respondent is handling customer confidential and business confidential data, we find that the above policies and procedures are reasonable. Contract 23. The Claimant was provided with a Contract of Employment, which she signed and returned on the 20 June 2024. This provided for a start date of 01 July 2024. 24. The contract includes the following relevant provisions: 2. PROBATION PERIOD2.1 You have a four (4) month probation period, which commences on your first day of employment with the company.2.2 During the probationary period, the period of notice the Company is required to give you is one (1) week, in accordance with clause 21.1.2.3 During the probationary period, your performance will be continually assessed, and you will receive regular coaching sessions from your manager, during which an appraisal of your performance will be given. Performance criteria will be dependent upon the client and the project requirements. The homeworking arrangements will also be monitored during this period to assess whether they are appropriate for your continued employment. 2.5 The probation period may be extended at the Company’s discretion to a maximum of four months, and this is without prejudice to the Company’s right to terminate your employment before the expiry of the probation period. An extension may be implemented in circumstances where your performance or conduct during probation has not been entirely satisfactory, but it is thought that an extension to the probation period may lead to improvement, or where you have been absent from work for any reason for a significant period during probation. 12. ABSENCES DUE TO SICKNESS OR INJURY 12.1 During the initial (4 month) probation period and during any extension to your probation, you will, if you are absent from work due to sickness, be entitled only to Statutory Sick Pay (SSP). The Company will not exercise its discretion under its discretionary sick pay scheme to make any payment to you which is over and above SSP rates. 15. CODE OF CONDUCT 15.1 All employees are expected to adhere to the Global Percepta Code of Conduct. 21 TERMINATION OF EMPLOYMENT 21.6 The Company reserves the right to terminate your employment without following all steps of the Company’s disciplinary procedure during or at the end of the probation period (or during or at the end of any extension to your probation) on the grounds of unsuitability for the role, poor or unsatisfactory performance, misconduct, poor attendance, poor timekeeping, lack of capability, for reasons of health and safety or if it is believed or established that you do not have the qualifications, experience or knowledge that you claimed to have at the time of recruitment. This list is not exhaustive. Any termination will be confirmed to you in writing and there will be no right of appeal. 25. We find that these terms of the contract of employment are reasonable.[26]In evidence the Claimant accepted that she had received, reviewed and signed the above documents and employment contract. She also confirmed that she had completed the mandatory training in relation to the Code of Conduct, which was a full day of training.
Background
[27]The Claimant was employed by the respondent from 01 July 2024 until 13 November 2024 as a customer experience specialist at their Ford dealership.[28]The respondent is a company that provides customer service solutions for the automotive and mobility markets. Findings of fact relevant to the issues[29]Throughout the claimant’s probationary period, which was initially the 01 July until 01 November 2024, there were no issues raised in relation to her performance.[30]During probationary review meetings with her manager, Ms Leigh Anness (Customer Service Supervisor), Ms Anness did raise points in relation to communication style. This included: 30.1. On 02 August 2024, the importance of office etiquette and to watch what was said. 30.2. On 15 August 2024 she was told to be “mindful of what she says in the office and to whom. An incident occurred and a comment was made by Victoria which upset another agent. Leigh advised that if Victoria has an concerns to raise to Leigh or Jay, and not give her opinion to that agent in the office”. This is an incident in relation to a colleague, Ms Jessica Donoghue. 30.3. On 03 September the Claimant was told to be “mindful of when she is in the office and the level of noise and what is said.” 30.4. On 19 September 2024 the Claimant was told that she had been “seen walking with her phone which isn’t allowed. An email was sent out last week the companies policies and to ensure these are stuck too.”[31]Outside of the probationary reviews, Ms Anness also raised the following with the Claimant: 31.1. On 20 September 2024, that the use of quotation marks within an email to a client was not appropriate. 31.2. On 11 November 2024, on the team chat (Webex) that Ms Kirsty Drake made the comment “don’t put it on team chat then if you don’t want other people to answer.” Mr Jay Tarbuck (Lead Customer Experience Specialist), Stated, “Victoria, this is the team chat where multiple people can help, if you just require me or Leigh then come to us directly .[32]We find that these are all reasonable management instructions to the Claimant and others, including Ms Drake.[33]On the 22 to the 23 August 2024 the Claimant did not attend work because she was off sick. Following this absence there was some confusion as to whether the Claimant would be paid and the Claimant became upset during the probationary review meeting on the 03 September 2024. Ms Anness explained that the Claimant would receive SSP only as she was in probation, which the Claimant accepted. The Claimant was properly paid these sums.[34]On 18 October 2024, at a time between 11am and 3pm and incident occurred involving the Claimant, KT and two other female colleagues. The Claimant states that her colleagues approached her and others and asked them what their body count was. This is a reference to how many sexual partners an individual had had. The Claimant refused to answer, and the colleagues moved away to ask others. We will call this the “Body Count Incident”. The fact that this occurred is not disputed.[35]At approximately 3.15pm on the 18 October 2024, Mr Tarbuck went to see Mr Hinson (Assistant Operations Manager in the Commercial Vehicle & Fleet Service Centre) as Ms Anness was away. Mr Tarbuck informed Mr Hinson that it had been brought to his attention that the Claimant had allegedly recorded a video at her desk and that this had been uploaded on TikTok.[36]Mr Tarbuck showed Mr Hinson a screenshot of a TikTok video which showed the Claimant and appeared to be filmed at the desk at which she was sitting at in the Contact Centre. Mr Hinson was satisfied that this showed that the Claimant had filmed a video at her desk and posted it online. We accept this explanation.[37]On 18 October 2024 there was a Webex message between the Claimant and Mr Eyan Hinson). The Claimant states that she initiated the message, Mr Hinson states that it was him. There is no Webex to view as this system is no longer used or accessible to the respondent.[38]Having heard evidence from both, we find that the Webex contact was initiated by Mr Hinson. We find that Mr Hinson messaged the Claimant asking her to come over to his office as he and Mr Tarbuck needed to speak to her. The Claimant replied that she would and that she wanted to speak to him too. This is not disputed.[39]They agreed to meet at the larger offices away from the Contact Centre floor as soon as the Claimant became free.[40]Mr Hinson and Mr Tarbuck met the Claimant.[41]Mr Hinson states that the conversation with the Claimant was not straightforward. He says that he told the Claimant that it had come to his attention that she had posted a TikTok video that looked as if it had been filmed in the Contact Centre. He told the Claimant that this was a very serious breach of Percepta policy and she needed to delete it immediately and that this would be picked up by HR the following week.[42]The Claimant agreed to delete the video and then said that it could have been in the kitchen area and that this was in her break time. This is recorded in a meeting note dated 18 October 2024.[43]In evidence Mr Hinson stated that the Claimant accepted that the video had been made at her desk before then denying it stating it was made in the kitchen and on her break.[44]We find that the notes are the accurate reflection of what happened. This records the following: EH thanked VO for coming round to speak to him and JT. EH said he’d been made aware that VO had recorded a Tik Tok video on the department floor that day. EH said this is very serious and a breach of Percepta policy and she needed to delete it immediately. EH said they will then pick this up in more detail with her and HR next week. VO said it is her birthday and she was off all of next week. EH said that was fine and they would discuss further when she back to work. VO said she would delete the video immediately, however this was not at her desk, it could’ve been in the kitchen area and could be a breach of her privacy as this was done in her time as was on a break. EH said that this is Ford premises and was most certainly not something she could do, he also said there are signs as people come into the Liive Centre saying no filming or cameras. And even if it was on her break, it was in work time. EH said the lighting above suggested it was at her desk at not where she said it may have been. VO said it could easily have been in her bedroom if she had the same lights and she did it in her own time, not work time. JT said VO had just said it was taken on the floor elsewhere. VO said that this is her social media, she was just expressing herself and didn’t mention Ford or Percepta, her job or show anything and she certainly didn’t mean any harm or have anything negative to say about her job. VO said she worked hard and didn’t want to do anything wrong. VO got upset and EH said he didn’t want to see her upset but this is why he had to urgently speak to her as it is serious. VO said she respected her employer and has no issues with her job or her employers. VO said she is someone who has integrity and is accountable and would never want her employer to think she was saying anything negative. VO says she took responsibility for what has happened. EH said any Tik Tok’s she makes in her own spare time that aren’t about her job/employer is her business and he has no issues with that, but we simply can’t have people ever filming anything in the Liive Centre – or Ford premises - and putting it on social media. VO said as she was upset and her make up was running, could JT arrange with a colleague to discreetly get her bag so she could go to the toilets. EH said of course and don’t expect her to go back to the floor upset, we’ll arrange this and why doesn’t she take a break after and he will get her more CM time for time she has lost. VO said sorry again and she understands the impact. EH thanked her for her time and said have a good birthday and time off and that they would discuss things further when she returns to work.[45]At this time, the Claimant had not been shown the specific video or screenshot. In evidence the Claimant stated that she responded as she did as she felt badgered and harassed by Mr Hinson into answering his questions. In evidence Mr Hinson stated that he was endeavouring to be thoughtful as this was a serious situation, but that he did not badger the Claimant. We accept his evidence.[46]By her response to Mr Hinson’s questions, we find that it was reasonable for him to believe that the Claimant had recorded a video at work and posted it on TikTok.[47]During the meeting, the Claimant became upset. It is not disputed that Mr Tarbuck left the meeting to speak to a colleague to ask her to meet the Claimant in the bathroom with the Claimant’s bag, so that she could compose herself.[48]During Mr Tarbuck’s absence, the Claimant states that she told Mr Hinson about the Body Count Incident.[49]Mr Hinson denies that the Claimant told him about the Incident. In evidence he says that whilst they were alone, she accepted responsibility for what had happened, that she was an accountable person. This is consistent with the meeting note.[50]In evidence, Mr Hinson went further to say that the Claimant had also stated that it felt like she had let her father down, as in she had let Mr Hinson down. This is very specific and we are satisfied that the Claimant also said this.[51]At the conclusion of the meeting, the Claimant states that Mr Hinson told her to write up her complaint and send it to him. We find that the Claimant wrote her complaint and saved the document on the 18 October 2024, but not that she was told to do so by Mr Hinson. We also find that she did not send this to Mr Hinson.[52]Whilst the Claimant was absent from work on holiday Mr Hinson prepared the meeting note. The Claimant was on leave for the following week, 21 – 25 October 2024. Mr Hinson emailed this to the Claimant on 25 October 2024 asking for her to review, sign and return to Ms Anness.[53]Mr Hinson was on leave for the 28 – 29 October 2024.[54]On the 25 October 2024, the Business Operations Manager emailed all employees to remind them of Office Conversations and to prevent inappropriate conversations.[55]On 28 October 2024 during a probationary review, Ms Anness informed the Claimant that her probationary period would be extended due to her sickness absence and that this was within company policy. The review meeting note was signed by the Claimant on 31 October 2024 and confirmed in writing on the same date.[56]On 29 October 2024 the Claimant wrote to Ms Anness with her formal complaint regarding the Body Count incident. This was forwarded to Mr Hinson, which he saw on his return to work on 30 October 2024. The complaint specifically stated as follows: Incident report of Inappropriate behaviour in the workplace taken place on the 18/10/2024 approximately between 11-3pm. By Victoria Omisore I was at my desk sitting with my team and was looking at my screen doing my work and my colleagues Jessica Broad , Katie Tucker and Kirsty Drake were discussing and asking our fellow colleagues about the amount of sexual partners they have slept with ‘’Body counts’’ casually at work Katie was the main one initiating the question but my fellow colleague Kirsty and Jess B chimed in encouraging the behaviour and pressuring other agents to get answers to her question ‘’What is your body count?’’ I overheard her asking Jessica she answer detailing her sexual history then asked Katie T what about you?, Katie T answered detailing her past then she asked Kirsty B in which she answered detailing her sexual history, then the question was asked by Katie T to me asking ‘’ Victoria what’s your body count?’’ in which the first instance I ignored and then she asked again then got Kirsty who was closer in the table to ask me on behalf of Katie ‘’ Katie asked what is your body count’’ I responded by saying ‘’I do not discuss such things at work’’. Katie asked again assuming she didn’t hear me the first time my colleague next to me Sahara reiterated what I said as I was clearly uncomfortable to answer. Then Katie turned around with Kirsty also chiming in asking ‘why?’ and I then replied ‘’that it is personal information’’ in which she said she could no hear me then got Kirsty to repeat it to Katie that I said ‘ It is personal information’. Katie proceed to asking my colleague Sahara in which I think she felt pressured to answer as Jess B , Katie T and Kirsty all looked at her awaiting a response.[57]This is the first time that the Claimant has raised her complaint formally. We have found that the Claimant did not disclose the Body Count Incident to Mr Hinson on the 18 October 2024 and there is no evidence that this raised with anyone else prior to 29 October 2024.[58]On 31 October 2024 Mr Hinson and Ms Anness met with the Claimant and informed her that there would be a investigation in relation to the TikTok. In an email to Ms Fitzsimmons (HRBP), he also stated that the Claimant had now informed him that the video had been recorded at University and would not be signing the meeting notes from the 18 October 2024.[59]On 04 November 2024, the claimant was invited to a meeting regarding her complaint. This letter acknowledged her complaint of the 29 October 2024 and invited her to a meeting on the 06 November. Due to the Claimants work commitments, this meeting was rescheduled to the 12 November 2024.[60]We find that it is reasonable for an employer to speak to the complainant as a first step in the investigation of a complaint. We find that the delay was due to the Claimant’s work commitments and that the investigation was started within a reasonable time following the written complaint. The investigation was to be managed by Mr Simon Pockett (ONE Warranty Solutions Business Lead).[61]On 06 November 2024, the Claimant was sent a letter inviting her to a disciplinary investigation hearing, regarding the TikTok video. The allegation was: It is alleged that you may have recorded a video in the Ford Liive Centre at the Ford Dunton Technical Centre Site on your personal mobile device that was subsequently posted on social media on 18th October 2024. Due to this concern, you may have breached Company policies and procedures and are not in line with our Company Values. The policies that may have been breached are as follows:• Code of Conduct• Standards of Behaviour• Acceptable Use• Employee Handbook[62]The meeting was to be held on 08 November and Mr Miguel Almeida (CX Operations Supervisor) as manager. Ms Fitzsimmons attended as HR representative and notetaker.[63]The Claimant was invited to have a companion and was warned that because she was in probation, that a possible outcome could be the termination of her employment.[64]On 08 November 2024 at 10am Mr Almeida met Mr Hinson, with Ms Fitzsimmons present. Mr Hinson told Mr Almeida that the Claimant had accepted that the video was at work, then said it was in the kitchen and then university. He explained that he thought it was at work because of the lighting.[65]Mr Hinson also explained that whilst the Claimant had said that she had raised her complaint first, she knew that someone on the team had seen her video. He believed that the complaint was raised following the video coming to light.[66]Mr Almeida also met with Mr Tarbuck, with Ms Fitzsimmons present at 10.30am. Mr Tarbuck had taken a screen shot of the video and WhatsApp’d it to Mr Almeida during the meeting. He explained that he thought that it was the work place. He did not say that the Claimant admitted it. He stated that she was defensive and that her story changed. He agreed that her original position was that she was on her break when it was filmed.[67]On 08 November 2024 Mr Almeida met with the claimant as scheduled at 1200. The Claimant confirmed she had received the invitation letter and that she did not want a companion.[68]The Claimant confirmed that she was aware of the relevant policies and procedures and that no photos or videos were to be taken in the Liive Centre.[69]The Claimant confirmed that the TikTok title was as follows: POV: ‘Eating and silently plotting at work because little do they know imma leave my 9-5 job I’m going to pursue my tiktok career and be a tiktok superstar’[70]She stated that the video had been filmed at University and that it had been uploaded on 17 October 2024 at 8.27pm.[71]The Claimant admitted that she had originally told Mr Hinson that she had done it, but then stated that she did this because she felt that she had been badgered and she was angry and embarrassed to be discussing TikTok with her manager.[72]In evidence the Claimant confirmed that videos or images can be taken at any time, stored in drafts and uploaded later.[73]The Claimant stated that she had referred to work in the title to get “likes”, but that she was not at work.[74]During the meeting, Ms Fitzsimmons invited the Claimant to send a screenshot showing the time the video was recorded.[75]The outcome of the meeting was that Mr Almeida told the Claimant the following: “based on the information provided I have decided that there is a case to answer and therefore will be referring your case to disciplinary, my reasoning for this is that you have admitted to record this interaction on Dunton site and the wording on the title on the video states at work, you have not provided that this video was recorded elsewhere.”[76]After the meeting the Claimant sent Ms Fitzsimmons a screenshot of when the video was posted and other images. She did not send a screenshot of when the video was recorded.[77]Mr Almeida did not give evidence to this Tribunal. Ms Fitzsimmons as HR Representative and notetaker stated that the notes were an accurate representation of the meeting. The notes had been sent to the Claimant and were not challenged. We accept that these are an accurate representation of the meetings.[78]Mr Almeida prepared an investigation report dated 11 November 2024. His summary of findings was: Below I have given my interpretation of the findings: Victoria has admitted that the Tik Tok video was recorded in the office (Dunton) site and the wording on the title on the video states “at work” which is very explicit. Looking into the screenshot I was provided; Victoria has not provided that this video was recorded elsewhere.[79]The screenshot in the report shows that it was taken on 18 October 2024 at 1531.[80]Mr Almeida deemed that there was a case to answer.[81]On 12 November 11.30am the Claimant met with Simon Pockett and Chanelle Knight, HR representative and notetaker to discuss her complaint about the Body Count Incident. During the meeting the Claimant gave a full account of what happened and named the individuals involved. Mr Pockett confirmed that he was investigating her complaint and that it may involve interviewing everyone.[82]On 13 November the Claimant was called to a meeting. There is no invitation letter and the meeting was chaired by Ms Anness with Ms Fitzsimmons present.[83]At the start of the meeting the Claimant was offered a companion which she neither refused or accepted as she had no notice of the meeting.[84]Ms Anness explained that because the investigation into the TikTok video had found that there was sufficient evidence to show that the video was recorded at work, the decision was made that there was a case to answer. The Claimant stated that the video was at university.[85]Ms Fitzsimmons stated in evidence that the Claimant became angry and rude to Ms Anness and the Claimant stated that she was angry at the situation and frustrated but was not rude to Ms Anness. We find that we prefer the evidence of Ms Fitzsimmons.[86]Ms Anness adjourned the meeting and on return determined that because the investigation had found that there was a case to answer and that her conduct in the meeting was also being taken into account, the decision was to terminate the Claimant’s employment with notice, which would be paid in lieu.[87]We find that the dismissal was because of a failed probation and not because of a disciplinary outcome.[88]A termination during probation letter was issued on 14 November 2024 which confirmed the reason for termination being the that the investigating officer determined that there was a case to answer regarding the video being taken in the workplace.[89]The investigation into the Claimant’s complaint regarding the Body Count Incident continued, and the three employees involved, and a witness were interviewed on 14 November.[90]Mr Pockett produced an investigation report dated 22 November, which recommended that the three employees named by the Claimant proceed to a disciplinary investigation and that everyone should retake their Equality and Diversity Training. The content of this report was not disputed.[91]We find that this is a reasonable outcome following the investigation.[92]On 25 November the Claimant submitted a grievance and gave her intention of filing a complaint to the Employment Tribunal. We find that the investigation report by Mr Pockett was concluded prior to this communication from the Claimant.[93]The Claimant states that but for her grievance of the 25 November, the respondent would not have progressed her complaint further than the additional training, i.e. the disciplinaries would not have happened. We find that the respondent properly acted upon the recommendations of Mr Pockett and disciplinary proceedings followed.[94]Following a disciplinary process, the employee (KT) who was in probation had her employment terminated on 13 December 2024 and was paid her notice in lieu. Ms Fitzsimmons was the HR Representative and notetaker at this meeting.[95]The other employees involved in the Body Count Incident were also disciplined and received Final Written Warnings. They were not in their probationary period. Evidence[96]We have considered the evidence of all witnesses and find where there is contemporaneous evidence to support witness evidence, that has been preferred.[97]With regards to oral evidence, we found Mr Hinson to be calm and consistent as was Ms Fitzsimmons.[98]The Tribunal understands that for a Litigant in Person this is a very stressful experience. That being said, we found that the Claimant’s evidence was cautious and defensive. She was not open to fully answering some of the direct questions she was asked.[99]In these circumstances, we preferred the evidence of Mr Hinton and Ms Fitzsimmons.[100]The statement of Ms Benton was unsigned and she did not attend the Tribunal to give evidence. The Tribunal have not placed any weight on this document. The law Direct race discrimination
The law
[101]Section 13(1) of the Equality Act 2010 states as follows: - 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.[102]The protected characteristics relied upon by the Claimant is race. Race is a protected characteristic under the Equality Act 2010. Section 9 of the Act provides: s.9 Race(1) Race includes— (a) colour; (a) nationality; (b) ethnic or national origins.(2) In relation to the protected characteristic of race— (a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular racial group; (b) a reference to persons who share a protected characteristic is a reference to persons of the same racial group.(3) A racial group is a group of persons defined by reference to race; and a reference to a person's racial group is a reference to a racial group into which the person falls.[103]As a first stage, it is for the Claimant to prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the Respondent has committed, or should be treated as having committed an unlawful act of discrimination Igen Ltd v Wong [2005] IRLR 258.[104]If it is proven that there was differential treatment, the second element of the burden of proof requires the Tribunal to consider whether the Respondent had a neutral reason for its conduct in relation to each allegation. The Tribunal can consider firstly whether the Claimant would have been treated in the same way ‘but for’ the fact of their race, and then turn to consider the ‘reason why’ the Respondent treated him so. In order to demonstrate that the reason for the treatment was because of the Claimant’s race, it should be more than a minor or trivial part of the cause (Villalba v Merrill Lynch Co Inc [2007] ICR 469).[105]Although the tribunal may look at all of the information globally when considering the second limb (see Madarassy v Nomura International plc [2007] ICR 867]), this does not negate the need for the tribunal to be satisfied that there are facts from which it could be established that the claimant was treated less favourably because of their protected characteristic, absent an explanation from the respondent (Hewage v Grampian Health Board [201]ICR 1054).[106]This Burden of Proof test applies equally to all protected characteristics.[107]S.13(2) above provides that Direct Discrimination because of race cannot be objectively justified.[108]When considering a comparator, this can be either an actual or hypothetical comparator.[109]An actual comparator is where an employee was treated less favourably than their colleague was actually treated.[110]A hypothetical comparator is where the employee was treated less favourably than they would have been treated if they did not have the protected characteristic. The circumstances of this hypothetical comparator must be the same or not materially different from the claimant, although the circumstances can be different. (Hewage v Grampian Health Board [2012]UKSC 37).[111]The question of comparator is to assist the Tribunal in determining what is the reason why the claimant was treated as they were, was it because of the protected characteristic or wholly for other reasons. (Shamoon v Royal Ulster Constabulary [2003] UKHL 11).[112]In considering the reason for the treatment, the protected characteristic need not be the only reason for the less favourable treatment, it may not even be the main reason. If the decision in question was significantly, so more than trivially, influenced by the protected characteristic, the treatment will be because of that characteristic. Victimisation[113]Section 27 of the Equality Act states: Victimisation(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.[114]Victimisation in the Equality Act has a technical meaning. Victimisation is prohibited conduct in order to encourage workers to challenge or complain of discrimination or harassment without fear of repercussions.[115]A worker can be protected by complaining that someone else has been the victim of discrimination. However, it is not a protected act to make a false allegation in bad faith or for complaining about unfairness in a general sense.[116]This section protects workers from suffering a detriment. This must be a detriment in the employment field (Tiplady v. City of Bradford [2019] EWCA Civ 2180). The detriment must also be considered from the employee’s perspective (Shamoon).[117]If it is established that(a) the employee did a protected act (or was about to do one) and(b) the employer subjected the employee to a detriment, the Tribunal must consider why did the employer subject the employee to that detriment? Was it because they had done (or might do) the protected act? Or was it wholly for other reasons? (Chief Constable of West Yorkshire Police v. Khan [2001] ICR 1065). Submissions[118]Both parties gave their closing submissions orally. Conclusions Direct race discrimination (Equality Act 2010 section 13)
Conclusions
[119]The claimant identifies herself as black and they compare their treatment with people who are not black. An actual comparator has also been named, KT who was a white employee, also working within her probationary period. Did the respondent do the following things:[120]Following an incident on 18 October 2024 in which the Claimant alleges that a fellow worker engaged in an inappropriate conversation in the workplace about sexual partners, which the Claimant reported, by taking no action against the fellow worker when disciplinary action was subsequently taken against the Claimant in relation to taking video footage in the workplace;[121]In considering this issue, the Tribunal have had regard to the following: 121.1. Did the Respondent carry out an internal investigation and find that the Claimant’s allegations were not supported by the evidence? 121.1.1. We have found that the respondent initiated its investigation in good time and accepted that the Claimant allegations were supported by her evidence. 121.2. Was there any link between the Respondent’s decision not to take any action in relation to the Claimant’s report of an alleged inappropriate conversation and the decision to take action in relation to the Claimant’s misconduct? 121.2.1. We have found that the respondent did take action in relation to the Claimant’s report of an inappropriate conversation (Body Count Incident) and that it acted promptly and properly to the allegations she raised. 121.2.2. The respondent took action both in relation to the Body Count Incident and the claimant’s misconduct. We conclude that the respondent’s decision in relation to these events are not linked. 121.3. If there was any such link, was the Claimant’s race a factor in the Respondent’s decision to decline to take action in respect of the alleged inappropriate conversation and yet to take action in relation to the Claimant’s misconduct? 121.3.1. We have concluded that there was no such link.[122]In the first instance we consider the burden of proof; has the Claimant satisfied the Tribunal that there are primary facts from which it could, in the absence of any other explanation, determine that discrimination took place.[123]The primary facts found in relation to the dismissal that the Claimant has established are: 123.1. That the respondent investigated her complaint. 123.2. That the respondent took action against the employees involved, including dismissal.[124]We are not satisfied that there are primary facts from which the Tribunal could, in the absence of any other explanation, determine that discrimination took place. Was that less favourable treatment?[125]Both the Claimant and her actual comparator, who was in materially the same circumstances, i.e. in probation, were dismissed with a payment in lieu of notice. They were treated equally and there was no less favourable treatment because of race.[126]If a hypothetical comparator is considered, i.e. a person in materially the same properly in taken steps to investigate the Claimant’s complaint and in disciplining those involved. We are satisfied that there was no less favourable treatment because of race. Did the respondent do the following things:[127]Dismissing the Claimant (dismissal is admitted)[128]In considering this issue, the Tribunal have had regard to the following: 128.1. Did the Respondent believe that the Claimant had taken video footage in the workplace and posted it on TikTok? 128.1.1. We have found that the respondent in its oral and documentary evidence believed that the Claimant had taken the video footage in the workplace and posted it on TikTok. 128.2. Was taking video footage in the workplace and posting it on TikTok in breach of the Respondent’s policies and procedures? 128.2.1. The respondent operates a range of policies and procedures which we have found to be reasonable. They are consistent in that the use of cameras on the operational floor and training rooms is forbidden. The act of recording a video in the workplace and not in the kitchen or breakout room, is a breach of the respondent’s policies and procedures. 128.3. Did the Respondent conduct an investigation into the Claimant’s alleged misconduct? 128.3.1. We have found that the respondent met with the claimant on three occasions to discuss the video prior to the termination meeting. We conclude that the alleged misconduct was investigated. 128.4. Was the dismissal of the Claimant by reason of her conduct? 128.4.1. We have found that the claimant was dismissed due to her probation being terminated as a consequence of the investigation finding that there was a case to answer. This is permitted by s.21.6 of the contract of employment. 128.5. Was the decision of the Respondent to dismiss for conduct made by reference to the Claimant’s race?[129]If a hypothetical comparator is considered, i.e. a person in materially the same properly in taken steps to investigate the Claimant’s misconduct.[130]We have considered whether the Claimant would have been treated this way but for her race and find that she would as the alleged misconduct was a serious breach of policy.[131]In the first instance we consider the burden of proof; has the Claimant satisfied the Tribunal that there are primary facts from which it could, in the absence of any other explanation, determine that discrimination took place.[132]The primary facts found in relation to the dismissal that the Claimant has established are: 132.1. That the Claimant uploaded a video to TikTok that refers to work. 132.2. That she was interviewed on three occasions regarding the video. 132.3. That she provided details of when the video was uploaded but not when it was recorded. 132.4. That she knew and had received training on the company policies and procedures including the Code of Conduct.[133]We are not satisfied that there are primary facts from which the Tribunal could, in the absence of any other explanation, determine that discrimination took place. Was that less favourable treatment?[134]Again, the Claimant and her actual comparator, who was in materially the same circumstances, i.e. in probation, were dismissed due to a failure of probation with a payment in lieu of notice. They were treated equally and there was no less favourable treatment because of race.[135]If a hypothetical comparator is considered, i.e. a person in materially the same properly in taken steps to investigate the alleged misconduct. We are satisfied that there was no less favourable treatment because of race.[136]We conclude that the claim for direct discrimination because of race, fails. Victimisation (Equality Act 2010 section 27)[137]Did the claimant do a protected act as follows: 137.1. Raise a complaint, in that the Claimant reported an incident on 18 October 2024 in which the Claimant alleges that a fellow worker engaged in an inappropriate conversation in the workplace about sexual partners.[138]The allegation raised by the Claimant on 29 October 2024 specifically references conduct that was unwanted and of a sexual nature. The raising of the complaint is the giving of information or evidence in connection with an alleged allegation of sexual harassment. We conclude that this satisfies s.27(2)(b) and the act was therefore protected.[139]We find that the Claimant raised a protected act in her email to the respondent on 29 October 2024 providing the written details of her complaint in relation to the Body Count Incident.[140]The dismissal is admitted, and a dismissal is a detriment. The question is whether the dismissal was because the claimant did a protected act?[141]The alleged misconduct in relation to the video was brought to the Claimant’s attention on 18 October 2024. We have found that the respondent was made aware of the complaint on the 29 October 2024, i.e. the protected act.[142]We have found that the Claimant’s alleged misconduct would amount to a serious breach of policy and we have found that the investigation believed that there was a case to answer. The respondent’s employment contract permits it to not follow the full disciplinary process for employees who are still within their probationary period. Both the Claimant and the employee against whom she complained, who was also on probation, were dismissed with notice.[143]Had the Claimant not been in her probationary period, a further disciplinary meeting may have resulted in a different outcome, but that is not the claim before us.[144]We conclude that the allegation of misconduct which raised an issue of a potential serious breach of policy arose before the protected act. We have found that the respondent believed that she had acted in the manner alleged and therefore conclude that the dismissal was not because the claimant did a protected act but because the respondent found, following an investigation, that there was a case to answer and because she was in probation, this justified her dismissal.[145]We conclude that the claim for victimisation fails.