Mr G Georgiev v FedEx Express UK Transportation Ltd: 6004596/2024
EMPLOYMENT TRIBUNALS
Case No 6004596/2024
Between
Mr G GeorgievClaimantFedEx Express UK Transportation LimitedRespondent
Before
Employment Judge GrayIn person for claimantMr Wright (instructed by Counsel) for respondentDate 18 December 2025
JUDGMENT
[1]The judgment of the tribunal is that the Claimant’s complaints of unfair dismissal, direct race discrimination and victimisation fail and are dismissed. Approved by: JUDGMENT OF THE EMPLOYMENT TRIBUNAL Heard at: Southampton On: 15 to 18 December 2025 Before: Employment Judge Gray Appearances For the Claimant: In person (assisted by a Court appointed interpreter - Miss T Lisiyska – Amirashayeri, on days 1 and 2 - Miss M Spirdonova on day 4) For the Respondent: Mr Wright (Counsel)[3]The judgment of the tribunal is that the Claimant’s complaints of unfair dismissal, direct race discrimination and victimisation fail and are dismissed. JUDGMENT having been delivered on the 18 December 2025 (and sent to the parties on the 12 January 2026), and written reasons having been requested by correspondence from the Claimant dated 13 January 2026, in accordance with Rule 60(3) of the Employment Tribunal Procedure Rules 2024, the following reasons are provided:
REASONS
[1]By a claim form submitted on the 26 June 2024 the Claimant complains of unfair dismissal, race discrimination and victimisation.[2]The ACAS certificate is dated 21 April 2024 to 2 June 2024.[3]Matters complained about on or after the 22 January 2024 are in time.[4]It is not in dispute that the date of termination is the 29 January 2024 and that this claim is complaining about that dismissal, the Claimant asserting it is unfair, discriminatory and victimisation. No time limit jurisdictional matters are therefore raised in this claim.[5]For reference at this hearing the Judge was provided witha. A 231-page bundle including index. To which, during the hearing, were added two further pages by the Claimant with the consent of the Respondent (an ariel photograph of the work depot and a copy of a handwritten petition).b. A chronology and cast list.c. Witness statement on behalf of the Claimant.d. On behalf of the Respondent witness statements from: i. Kevin Reeves (KR) ii. Daniel Windridge (DW) iii. Paul Sullivan (PS) iv. James Hawkins (JH)e. Written closing submissions on behalf of the Respondent.[6]The proposed timetable for this hearing had been agreed at the previous case management hearing before Employment Judge Rayner and was met, with submissions being made in the afternoon of day 2 and judgment on liability being delivered on the morning of day 4.[7]The issues to be determined in this case were confirmed as those agreed with Employment Judge Rayner at the previous case management hearing (as set out in Annex A below) save that the time limit paragraphs (paragraph 1) were confirmed as not requiring determination and it being confirmed that it is not in dispute that the Claimant was dismissed.[8]The Facts[9]The Judge found the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after considering the closing submissions made by and on behalf of the respective parties.[10]On the 14 March 2017 the Claimant starts as a PUD Driver Category B (‘Pick Up and Delivery Driver’) based at the Respondent’s Alton Depot. The Tribunal was provided with a copy of the Claimant’s particulars of employment (pages 60 to 62).[11]Chronologically it is then asserted by the Claimant that he did a protected act in September 2023. The list of issues note (at 4.1.1) that the Claimant raised concerns with Daniel Windridge in September 2023 that the Claimant and his wife who is also Bulgarian were being allocated work with a larger number and much heavier packages compared to those that other drivers were being allocated and asked whether this was because him and his wife were foreigners.[12]About the asserted protected act, the Claimant’s addresses this in paragraph 2 of his witness statement. The Claimant says that … “In September 2023, I raised legitimate and reasonable concerns with Mr Windridge regarding consistently excessive loading of my van compared to other drivers. … I provided photographic evidence to support this. … Instead of addressing the issue, Mr Windridge responded in a hostile and threatening manner, stating: “You are stepping into a very dangerous area.””.[13]The Claimant does not say that he asked if it was because he and his wife were foreigners.[14]DW addresses this matter in paragraph 18 of his witness statement. He recalls that the … “… Claimant did come and speak to me about consignment volume and weight but he did not say that he felt this was because he and his wife were “foreigners”. The Respondent, like other parcel companies allocate work by providing drivers with routes. A route is usually a geographical area. The size and weight of the packages are variable from one day to the next and will depend on what customers are asking us to transport for them. The volume of packages depends on geographical location. Drivers operating in more urban areas will typically have more parcels and a greater number of stops but less driving to do. Whereas in contrast the drivers operating in more rural areas will have less parcels and stops to make but more driving between stops. Additionally, some stops may have multiple parcels being delivered to them subject to the nature of the customer’s business. I recall explaining this to the Claimant and that the geographical area that he was more familiar with was often a busier route in terms of packages but not necessarily with more stops. The Claimant compared his workload to other drivers but some of these had more stops but less packages per stop. The conversation did not relate in any way to the Claimant and his wife being Bulgarian.”.[15]DW does not say the Claimant referred to him and his wife being foreigners. DW also denied in cross examination that he had said “You are stepping into a very dangerous area” to the Claimant.[16]Based on the evidence presented to this Tribunal the Claimant has not proven the protected act as alleged.[17]It is not in dispute that up to this point the Claimant has a clean disciplinary record.[18]There is then an incident on the 26 October 2023 that leads to a disciplinary process and then the Claimant’s dismissal.[19]The Claimant does not dispute that on the 26 October 2023 while refuelling the work van, he urinates by the fuel tank. There are still CCTV images provided to this Tribunal (some of which has been zoomed in) that show the Claimant attaching the fuel hose to the van and then walking behind the fuel tank and appearing to urinate (pages 69 to 78). The Claimant does not dispute that this is what happened (confirming it in paragraph 3 of his witness statement), asserting that he had an urgent and unavoidable need to urinate due to a medical condition.[20]KR (Deputy Manager, Station Operations based at Alton) explains that on the 26 October 2023 he received an email from Daniel Brisland, Supervisor, regarding an incident that had happened earlier that evening whereby a member of staff, Ashley Creaser, Operations Support Agent-Advanced, had reported that he had seen the Claimant urinating against the onsite fuel tank at the Alton station (paragraph 4 of KR’s witness statement).[21]The email says (page 68) … “This evening I received a phone call from Ashley Creaser regards to Georgi Georgiev, at 17:36pm 26/10/2023 advising that he's urinated behind the Diesel Pump. I've gone on to CCTV and it does appear to look like Georgi goes behind the diesel pump at 17:30:44pm on the Fuel Pump Camera. I had spoken to Ashley outside and advised him not to make a scene or mention it to anyone as it doesn't need to be spreading round the station, as we will deal with this in a sensible manner.”.[22]Mr Creaser is asked to confirm what he complains about and writes in an email dated 27 October 2023 (page 79) … “As per our conversation I arrived back at the depot yesterday at around 17:30. Whilst waiting at the gate because the button was being temperamental as normal, I witness a vulgar site of Georgie Georgiev heading to the side of the fuel tank to then take his cock out and have a piss! This is absolutely disgusting. Other people need to use the pump and I'm pretty sure they don't want it to smell of Georgie's piss because he's too lazy to use the on-site toilets. Also, this isn't just a lack of human decency, I shouldn't have to see another person's genitals whilst I do my job.”.[23]Mr Creaser is clearly aggrieved by the matter, but appears to exaggerate the details, as even the zoomed images of the CCTV stills do not show the Claimant’s penis being out and urine coming out of it.[24]KR confirms (paragraph 5) … “After taking advice from our then HR advisor, Cyndy King, I did not suspend the Claimant as his continued presence in the workplace did not pose a risk to the business, other staff, the investigation process, or the Claimant himself.”.[25]There is an investigation meeting between KR and the Claimant on the 30 October 2023 (page 82). The notes record the Claimant admitting that he had urinated by the fuel tank explaining that he had a problem with his kidneys which meant that he struggled to hold in his urine at times … “Sometimes I have a problem with my Kidneys, and I cannot hold on, so I will go where I can. I admit that I did it and it’s because of a medical problem that means sometimes I cannot hold on.”.[26]KR decides the matter should proceed to a disciplinary and by letter dated 30 October 2023 (pages 80 to 81) the Claimant is invited to a disciplinary hearing on the 2 November 2023. The allegation is … “On Thursday 26th October 2023 at approx. 17:30 you were seen by another member of staff urinating against the fuel tank on site at Fedex Alton”. That hearing was then postponed so that further investigation could be carried out by KR. This involved KR interviewing the Claimant again on the 3 November 2023 (pages 85 to 87).[27]During the further investigation meeting the Claimant hands in a copy of a letter from a doctor at Health Hero Solutions dated 2 November 2023 that notes … “For past 2 years time he has problems during urination, He finds it difficult to hold his urine. Feels residual urine in his bladder. Has wet himself as well. This has been a problem at his work. Last week he was in a warehouse and needed to go quickly to pass urine. No weight loss. No loss of appetite. He has been on aspirin. He is concerned about kidneys and prostate. He has had optic neuritis in the past. He would like to see a specialist for further management.” (page 84). KR was sceptical about this evidence from the Claimant as it post-dates the initial investigation and does not confirm a diagnosis. It is not from the Claimant’s GP. KR considers that if the Claimant was not being truthful about a medical condition, it may amount to a breakdown of trust and confidence.[28]The notes from the investigation meeting do record the Claimant saying at its conclusion … “I hope I am not going to lose my job, I am sorry for what I did, there is nothing more I can say about it.”.[29]The Claimant is then invited to a rescheduled disciplinary hearing on the 23 November 2023 by letter dated 20 November 2023 which confirms the allegation as: “• On Thursday 26th October 2023 at approx. 17:30 you were seen by another member of staff urinating against the fuel tank on site at Fedex Alton• Breach of the FedEx Code of Conduct• Breakdown of trust and confidence”[30]DW (Manager Station Operations based at the Alton depot) conducts the disciplinary hearing on the 23 November 2023. The Claimant is accompanied by his union representative.[31]There are notes from the disciplinary hearing (pages 103 to 108). DW is sceptical about the Claimant’s medical condition explanation and did not consider the Claimant had shown any remorse. DW confirmed in his oral evidence that the Claimant had not offered an apology to him. DW considered the Claimant could have used the nearby toilet facilities.[32]At the conclusion of the disciplinary hearing DW says he formed the view that … “… the Claimant’s actions were likely to amount to gross misconduct under section 4.13 of the Respondent’s disciplinary procedure [page number 172] as it had the capability of bringing the Respondent into disrepute and there was a serious breach of trust and confidence. I prepared a draft letter to send to the Claimant which was dated 27 November 2023 [page number 109].” (paragraph 11).[33]The draft letter notes the reason for dismissal as being (page 109):• You have admitted to urinating behind the fuel tank.• You showed no remorse in doing this throughout the investigation or disciplinary• Provided no reasonable excuse to go behind the fuel tank despite the toilets in the Station being available and in proximity.• You acknowledge as part of your mitigation that you had a medical issue but there was no substantial evidence to suggest that this was the case and through your own admission you've not sort medical support prior to the investigation.• Lack of care and hygiene whilst on site.• Bringing the company into disrepute[34]These draft reasons do not refer to a serious breach of trust and confidence.[35]DW says that after drafting the letter he reflected on and revisited his thought process. He decided that he should further explore the Claimant’s medical condition and its impact on his misconduct by referring him to occupational health before making a final decision. The decision was therefore deferred pending the occupational health assessment.[36]A copy of the OH assessment dated 27 December 2023 is provided at pages 110 to 112. The report notes … “Mr Georgiev does experience a frequency to urinate and is however able to stop whilst working and use a bathroom local to him. Mr Georgiev has no other underlying health concerns and this condition is unlikely to have an impact on his role and he is currently fulfilling his role and does not allow this condition to affect his workload.”. Further … “Having spoken with Mr Georgiev this afternoon I do not believe that there is a requirement for workplace or role-based adjustments to be put in place.”. The Claimant did not dispute the content of the OH report. It does not support that the Claimant had to urinate behind the fuel tank due to a medical condition.[37]DW holds a follow up meeting with the Claimant on the 16 January 2024. Notes from this meeting are at pages 113 to 115. The notes record the Claimant saying he didn’t say he had a medical problem (page 115). The Claimant is also not remorseful, for example asserting that he hasn’t done something right or wrong and that the person who complained is wasting company time and pretending to be offended (page 114).[38]DW confirms (paragraph 14) … “I had not received any medical evidence to support the Claimant’s alleged medical condition, save for the referral letter from Health Hero, who had no access to the Claimant’s medical records, and which had been provided at the investigation meeting on 3 November 2023 [page number 84]. There was no evidence of any follow up to this call by the Claimant, nor was there any evidence that the Claimant could show us to support that he had raised the issue to his GP prior to the incident on 26 October 2023 and being investigated for urinating on the fuel pump. It was clear to me that the Claimant had made the call to Health Hero in response to the disciplinary investigation process only, in order to provide him with an excuse for his conduct. I also reviewed the CCTV available [stills at page number 69 to 78] and was able to see that the Claimant parked his vehicle, walked around the vehicle, opened and closed the doors and began refuelling prior to going around the fuel tank to urinate on it. There was no degree of urgency to his movements as alleged by the Claimant, and I simply did not find it plausible that he was unable to use the facilities that were 30 seconds away at normal walking pace. Adding all of these factors together I did not believe that the Claimant had a medical condition that meant that he had been unable to visit the bathroom in time to relieve himself, and that it was necessary for him to have done so on the onsite fuel tank.”.[39]DW takes the decision to dismiss the Claimant with immediate effect for gross misconduct. This is confirmed in a dismissal letter dated 29 January 2024 (pages 121 to 122). It records the basis of the decision as being: “You had arrived in the yard and were carry out duties for a period of time, prior to urinating, during which time, you had every opportunity to use the facilities, which were very close by. The CCTV shows, that despite your comment that there was an urgency, you proceeded to walk around the fuel tank at a normal pace and were not seen to be rushing or have any urgency. You then urinated in a place that is within the view of the public and were seen urinating by a colleague. If you have a condition that caused an urgency to urinate, it is my belief, you would manage such condition by ensuring you urinated frequently to avoid getting caught in a difficult situation, especially in the role you perform as a courier, yet you commented that you never have an issue, as you know of places to stop and use facilities; thereby, suggesting you have adequate time, to stop your vehicle in an appropriate and safe position, lock it and make your way to facilities. You have not visited your GP for advice prior to the incident, regarding your alleged condition, or mentioned any such condition that may affect your work, to your line manager. You have showed no remorse of your actions throughout the investigation or disciplinary and have not provided any reasonable response for your actions despite the toilets in the Station being available and in close proximity. The occupational Health report confirmed that you are able to use available facilities, did not confirm any condition exists, but suggested you consult with your GP. After careful consideration of all the evidence, it is my belief that you were very capable of using the facilities available and there is no reasonable excuse for your actions, in addition to this it is my genuine belief that you have been misleading and dishonest in the reasons you provided for your actions and caused unnecessary delay to the process. This amounts to a breakdown in trust and confidence.”[40]The Claimant is told of his right of appeal which he exercises (by email dated 31 January 2024) (page 124) complaining that there was a delay in the process and … “I have consistently upheld honesty and integrity throughout my seven years at the company, demonstrating commitment and minimal sick leave. While acknowledging an error in using an unconventional restroom location, I want to stress that it doesn't impair my ability to perform my duties at FedEx. I am prepared to provide a letter from my GP detailing my condition and the prescribed medication during the appeal meeting.”.[41]PS (Senior Manager for Operations) conducts the first appeal hearing on the 7 February 2024. There are notes from the appeal at pages 128 to 132. The Claimant is accompanied by his union representative. PS understands the Claimant’s appeal to also cover that the decision to dismiss was too harsh, that the Claimant felt that he had been mocked, bullied, vilified and marginalised. This included by DW and David Pearson, Manager Station Operations, who the Claimant alleged had made comments to the Claimant that he should wear a diaper or have a bag. Also, that the Claimant had stated that he felt that he had been remorseful and that he had apologised. Further, that he had a medical condition which was the reason that he had to urinate so urgently (paragraph 6).[42]PS investigates these matters and concludes (as set out in full in paragraph 8 of his statement) in summary:a. That David Pearson had not made comments that were consistent with bullying and harassment. Instead, he had made a helpful suggestion that the Claimant could look into a bottle or Stadium Pal portable urinal to assist the Claimant. This is consistent with what is recorded in the copy meeting notes presented to this Tribunal.b. The time that it took for the Claimant to be provided with the outcome to the disciplinary process was not excessive. Delay was caused by the obtaining of an OH report.c. Scepticism as to the apology the Claimant had given KR.d. The Claimant could have planned to urinate appropriately if he were aware of a condition requiring him to urinate urgently.e. The medical evidence (in particular the OH report) did not support the Claimant’s position.f. Scepticism as to the need for the Claimant to urinate when and where he did.[43]Having considered the notes of the meetings presented to this Tribunal and the contemporaneous medical documentation, what PS concludes is not unreasonable.[44]The Claimant’s appeal is rejected by letter dated 22 February 2024 (pages 133 to 135).[45]The Claimant is given a second right of appeal which he then exercises appealing on the following basis (page 143): “1. You have been accused of breaching trust and confidence, but you were allowed to work until your disciplinary hearing where you dismissed. 2. During the appeal process, you were made aware that a dismissal letter had already been prepared in November 2023 and believe that this was prejudgment of the situation without affording you a fair hearing. 3. You have stated that there was a personal condition that you did not disclose due to embarrassment and shame.”[46]JH (Managing Director, Operations UK South District) then conducts the second appeal hearing. It takes place on the 6 March 2024. JH clarifies the Claimant’s grounds of appeal as being:a. The Claimant alleged to have been provided with a draft outcome letter confirming his dismissal, dated 24 November 2023. He believed this to be evidence that the outcome was pre-determined and that the delay in issuing the outcome until 29 January 2024 was simply to secure his services during the peak season;b. The Claimant stated that he suffered a medical condition so severe that he had no opportunity to utilise the toilet facilities at the station. He stated that he felt insufficient consideration had been given to his medical condition at the disciplinary hearing and appeal; andc. The Claimant felt that the sanction was too harsh when compared to the outcomes of other disciplinary cases at the Alton Station.[47]JH carries out an investigation into the matters raised which includes a meeting with DW and PS on the 19 March 2024 (pages 196 to 198). JH concludes that:a. DW’s explanation as to the preparation of the draft dismissal letter and then seeking a review by OH actually demonstrates the decision was not predetermined. Further, that the timing of the final outcome was clearly driven by the time taken to obtain and consider the OH report with the Claimant’s dismissal being confirmed on 29 January 2024, a number of weeks after the 2023 peak season had concluded. JH therefore considered that the allegation that the delay was in order to secure the Claimant’s services during the peak season was entirely without foundation.b. The first time that the Claimant sought medical advice was one week after the incident on the 26 October 2023, by way of an online consultation. Furthermore, the OH report did not support the Claimant’s position. JH therefore considered the decisions reached by DW and PS as to not accepting this in mitigation were reasonable.c. Following the review of the comparator cases, Sam Sutton, Ryan Hills and Ashley Creaser, JH considered the sanction the Claimant received was reasonable.[48]JH rejects the Claimant’s appeal by letter dated 27 March 2024 (pages 150 to 152).[49]The Claimant did not raise as part of the disciplinary or appeal process that his dismissal was because of his race.[50]DW provides evidence on the three comparators as it was his decision in each case (paragraphs 22 to 24 of his witness statement): “22) Sam Sutton was accused of signing for a delivery on behalf of a customer and leaving a package unattended. This individual showed a high level of remorse and a willingness to learn and improve and was therefore issued with a Stage 1 formal letter of concern [page numbers 188 to 189]. 23) Ashley Creaser was accused of damaging company property by punching and breaking glass on a cabinet. This individual showed a high degree of remorse, accepted that his actions were unacceptable and took steps to manage himself and his emotions, and was therefore issued a Stage 3 final written warning [page numbers 190 to 191]. 24) Ryan Hills was accused of driving without a tachograph. There are no records of this incident as no formal action was taken against this employee as this was a training issue. The employee was unaware of the correct procedure in the event of losing his tachograph card. Further training was provided to him because of the incident. Therefore, no further action was considered necessary.”[51]These are all materially different circumstances to the Claimant. DW denied dismissing the Claimant because of his race or the asserted protected act and confirmed in cross examination that the outcome would still have been the same regardless of race.[52]I accept the reasons presented by DW as to why he dismissed the Claimant. DW considered the Claimant to be guilty of gross misconduct and in particular DW believed that the Claimant was … “… very capable of using the facilities available and there is no reasonable excuse for your actions, in addition to this it is my genuine belief that you have been misleading and dishonest in the reasons you provided for your actions and caused unnecessary delay to the process. This amounts to a breakdown in trust and confidence.”.[53]This falls within the Respondent’s definition of gross misconduct (page 172): “4.13 Gross Misconduct The following are examples normally regarded as gross misconduct. This list is not exhaustive:• Failure to obey a reasonable, legitimate instruction from a Manager• Gross negligence; including that resulting in financial loss to the business and/or damage to company property• Deliberate damage to Company property or bringing the Company into disrepute as a result of an act either inside or out of work• Dishonesty, fraud, or theft (including the disposal of stolen goods, goods avoiding customs duty, or goods sold without a licence)• Unauthorised possession of Company or customer goods• Deliberate falsification of any Company document• Violation of security systems to access Company information, including electronic data• Acts or threats of physical violence against others• Extreme rudeness or abusiveness to others or acts of harassment, bullying, or victimisation of a fellow worker• Serious violation of company policies/procedures (e.g. Health & Safety, 3.11 Fitness for Duty, Security etc.) Or the terms and conditions of the Employment Contract• Any other action resulting in a serious breach of trust and confidence”[54]The allegations against Sam Sutton and Ashley Creaser would also fall within the company’s definition of goss misconduct but it appears they, unlike the Claimant, demonstrated a high level / degree of remorse and a willingness to learn.[55]DW confirms (paragraph 15 of his witness statement) that in respect of the Claimant’s conduct that he had … “… also considered that this was a breach of the Respondent’s Code of Conduct, specifically that the conduct amounted to a breach of the responsibilities of the Respondent’s team members to act with integrity, including acting with respect [page number 204] In making this decision I considered mitigating factors and considered a sanction lesser than dismissal, such as a final written warning. However, I felt that the seriousness of the incident itself, compounded by the breakdown in trust and confidence due to his dishonest and misleading actions following the incident, did not warrant a lesser sanction.”.[56]The Law[57]It is not in dispute that the reason for the dismissal was the Claimant’s conduct which is a potentially fair reason for dismissal under section 98 (2) (b) of the Employment Rights Act 1996 (“the Act”). What is in dispute is that what the Claimant did amounted to misconduct sufficient to justify dismissal.[58]An employer must hold a genuine belief in an employee’s misconduct, for which there must be reasonable grounds to sustain that belief, having carried out as much investigation into the matter as was reasonable in all the circumstances: British Home Stores Ltd v Burchell [1978] IRLR 379, at 380.[59]In addition to the test set out in Burchell, if the dismissal is to be fair it must have been reasonable for the employer to have dismissed the employee for the misconduct in question. Was the sanction within the band of responses which a reasonable employer might have adopted? The tribunal should not substitute its own factual findings about events giving rise to the dismissal for those of the dismissing officer (including about the credibility of any witnesses, Tai Tarian Ltd v Christie UKEAT/0059/19 3.3.20). It is for the employer to judge the severity of the offence.[60]An employer’s decision to dismiss an employee must fall within a range of reasonable responses that a reasonable employer in those circumstances and in that business might have adopted: Iceland Frozen Foods Ltd v Jones [1982] IRLR 439, at 442. The range of reasonable responses test applies both to the decision to dismiss and to the consideration of whether the investigation into the suspected misconduct was reasonable in all the circumstances: Sainsburys Supermarkets Ltd v Hitt [2003] IRLR 23, at 27.[61]Section 98 (4) of the Act provides “…. the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and –(b) shall be determined in accordance with equity and the substantial merits of the case”.[62]Also relevant are section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, and in particular section 207A(2) and the ACAS Code of Practice 1 on Disciplinary and Grievance Procedures 2015 (“the ACAS Code”).[63]Discrimination[64]The Claimant is also alleging discrimination on the grounds of a protected characteristic (race) under the provisions of the Equality Act 2010 (“the EqA”).[65]The Claimant complains that the Respondent has contravened a provision of part 5 (work) of the EqA. The Claimant alleges direct discrimination and victimisation.[66]In respect of the burden of proof, there is a two-stage process for analysing the complaint. At the first stage, the Claimant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondent had committed an unlawful act of discrimination against the Claimant. At the second stage, if the Claimant is able to raise a prima facie case of discrimination following an assessment of all the evidence, the burden shifts to the Respondent to show the reasons for the alleged discriminatory treatment and to satisfy the tribunal that the protected characteristic played no part in those reasons (Igen -v- Wong [2005] EWCA Civ 142 as affirmed in Ayodele -v- CityLink Ltd [2018] ICR 748).[67]The recent decision of Efobi v Royal Mail Group Ltd (2021) ICR 1263 is also noted which confirmed that the reverse burden of proof remains good law under the EqA.[68]Also, considering Madarassy v Nomura International Plc [2007] ICR 867, Mummery LJ stated: “The Court in Igen v Wong expressly rejected the argument that it was sufficient for the claimant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an act of discrimination”.[69]The burden of proof does not shift to the Respondent simply on the Claimant establishing a difference in status and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that the Respondent had committed an unlawful act of discrimination (Madarassy). “Could conclude” must mean that “a reasonable Tribunal could properly conclude” from all the evidence before it. This would include evidence adduced by the Claimant in support of the allegations of discrimination. It would also include evidence adduced by the Respondent contesting the complaint.[70]In Igen the Court of Appeal cautioned tribunals ‘against too readily inferring unlawful discrimination on a prohibited ground merely from unreasonable conduct where there is no evidence of other discriminatory behaviour on such ground’ but made it clear that a finding of ‘unexplained unreasonable conduct’ is a primary fact from which an inference can properly be drawn to shift the burden.[71]Direct discrimination – section 13 Equality Act 2010[72]For a claim for direct discrimination, under section 13(1) of the EqA 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.[73]Direct discrimination claims require a comparison as between the treatment of different individuals i.e., individuals who do not share the protected characteristic in issue. In doing so there must be no material difference between the circumstances relating to each individual (section 23 EqA). The Tribunal therefore must compare 'like with like'.[74]Victimisation – section 27 Equality Act 2010[75]Victimisation occurs where one person subjects another to a detriment because that person has done a protected act or the former believes that that person has done, or may do, a protected act: s.27(1) EqA.[76]The following are protected acts under EqA:(1) bringing proceedings under EqA;(2) giving evidence or information in connection with proceedings under EqA, regardless of who brought these proceedings;(3) doing any other thing for the purposes of or in connection with EqA; and(4) alleging, whether expressly or otherwise, that the respondent or another person has contravened EqA: s.27(2) EqA.[77]As to whether the protected act is the cause of an alleged detriment the test is whether the alleged detriment was to a material degree influenced by the protected act. Importantly this is not a ‘but for’ test as explained by Lord Nicholls in Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 at paragraph 29.[78]The job of the Tribunal is to establish the reason why an act or omission has occurred and from that decide whether it was influenced to a material degree by the protected act.[79]The Decision[80]It is not in dispute that the reason for the dismissal was the Claimant’s conduct which is a potentially fair reason for dismissal under section 98 (2) (b) of the Employment Rights Act 1996.[81]I accept that it is the Claimant’s conduct that is the reason for the dismissal in this case.[82]As to the fairness the starting point should always be the words of section 98(4) themselves. In applying the section, the tribunal must consider the reasonableness of the employer’s conduct, not simply whether it considers the dismissal to be fair.[83]In judging the reasonableness of the dismissal, the tribunal must not substitute its own decision as to what was the right course to adopt for that of the employer. In many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might take one view, and another might quite reasonably take another. The function of the tribunal is to determine in the particular circumstances of each case whether the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band, it is unfair. It is not for the Tribunal to make its own decision as to what should have happened.[84]The correct approach is to consider together all the circumstances of the case, both substantive and procedural, and reach a conclusion in all the circumstances. A helpful approach in most cases of conduct dismissal is to identify three elements (as to the first of which the burden is on the employer; as to the second and third, the burden is neutral):a. that the employer did believe the employee to have been guilty of misconduct;b. that the employer had in mind reasonable grounds on which to sustain that belief; andc. that the employer, at the stage (or any rate the final stage) at which it formed that belief on those grounds, had carried out as much investigation as was reasonable in the circumstances of the case. The band of reasonable responses test applies as much to the question of whether the investigation was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss.[85]I accept the evidence of DW and that he did believe the Claimant to be guilty of misconduct. I also accept that he had in mind reasonable grounds on which to sustain that belief. Further, that he had carried out as much investigation as was reasonable in the circumstances of the case.[86]Considering then whether the sanction of summary dismissal was within the band of responses which a reasonable employer might have adopted. DW did deem the offence severe (gross misconduct) and summary dismissal the appropriate sanction. A lack of remorse is a significant factor. I have to consider the band of responses test. Although this sanction is at the harshest end, it is not something that I can say is outside of the band.[87]As to the complaint of the dismissal being direct race discrimination. The Claimant has not discharged the relevant burden of proof so that this Tribunal could properly conclude from all the evidence before it that the Respondent had committed an act of discrimination. This includes the evidence adduced by the Claimant in support of the allegations of discrimination and the evidence adduced by the Respondent contesting the complaint. The circumstances of the named comparators are materially different. It has not been proven that a hypothetical comparator would have been treated differently.[88]The Claimant has not proven the asserted protected act to then assert that the dismissal was an act of victimisation.[89]For all these reasons the Claimant’s complaints of unfair dismissal, direct race discrimination and victimisation fail and are dismissed. Approved by: Employment Judge Gray Dated 26 January 2026 Reasons sent to Parties on 09 February 2026 ANNEX A – THE ISSUES[1]Time limits1.1 The claim form was presented on 26 June 2024. The claimant commenced the Early Conciliation process with ACAS on 21 April 2024 (Day A). The Early Conciliation Certificate was issued on 2 June 2024 (Day B). Accordingly, any act or omission which took place before 22 January 2024 (which allows for any extension under the Early Conciliation provisions) is potentially out of time so that the Tribunal may not have jurisdiction to hear that complaint.1.2 Were the discrimination / victimisation complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act or omission to which the complaint relates?1.2.2 If not, was there conduct extending over a period?1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?1.3 Was the unfair dismissal complaint made within the time limit in section 111 of the Employment Rights Act 1996? The Tribunal will decide:1.3.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the effective date of termination /?1.3.2 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?1.3.3 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?[2]Unfair dismissal2.1 Was the Claimant dismissed?2.2 What was the reason for dismissal? The Respondent asserts that it was a reason related to conduct / capability / redundancy / some other substantial reason, which is a potentially fair reason for dismissal under s. 98 (2) of the Employment Rights Act 1996.2.3 MISCONDUCT Did the Respondent hold a genuine belief in the Claimant’s misconduct on reasonable grounds and following as reasonable an investigation as was warranted in the circumstances? The burden of proof is neutral here but it helps to know the Claimant’s challenges to the fairness of the dismissal in advance and they are identified as follows;2.3.1 The claimant asserts that he was treated more harshly than other colleagues who had committed serious acts of misconduct were treated he relies upon 3 colleagues who were not dismissed: Sam Sutton, Ryan Hills and Ashley Creaser.2.3.2 The claimant alleges that other people did what he was accused of but were not disciplined;2.3.3 The claimant alleges that there was in reality no breach of trust and confidence because he continued to work for FedEx for two months despite the allegation against him;2.3.4 The claimant had long service and a clean disciplinary record and should have been treated more leniently in this case.2.4 Was the decision to dismiss a fair sanction, that is, was it within the range of reasonable responses open to a reasonable employer when faced with these facts?2.5 Did the Respondent adopt a fair procedure? The claimant challenges the fairness of the procedure in the following respects;2.5.1 The claimant was treated more harshly compared to other employees as set out above.2.5.2 the respondent failed to take proper account of his long service and clean disciplinary record as set out above.2.6 If it did not use a fair procedure, would the Claimant have been fairly dismissed in any event and/or to what extent and when?2.7 If the dismissal was unfair, did the Claimant contribute to the dismissal by culpable conduct? This requires the Respondent to prove, on the balance of probabilities, that the claimant actually committed the misconduct alleged.[3]Direct race discrimination (Equality Act 2010 section 13)3.1 The Claimant describes himself as Bulgarian.3.2 Did the Respondent do the following things: 3.2.1 dismiss the claimant;3.3 Was that less favourable treatment? The Tribunal will have to decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and those of the Claimant. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether he was treated worse than someone else would have been treated. The Claimant says he was treated worse than other English colleagues, including Sam Sutton, Ryan Hills and Ashley Creaser. In the alternative the claimant relies upon a hypothetical English comparator.3.4 If so, was it because of race?3.5 Is the Respondent able to prove a reason for the treatment occurred for a nondiscriminatory reason not connected to race?[4]Victimisation (Equality Act 2010 s. 27)4.1 Did the Claimant do a protected act as follows: 4.1.1 Raise concerns with Daniel Windridge in September 2023 that he and his wife who is also Bulgarian were being allocated work with a larger number and much heavier packages compared to those that other drivers were being allocated, and ask whether this was because cause him and his wife were foreigners……;4.2 Did the Respondent do the following things: 4.2.1 dismiss the claimant4.3 By doing so, did the Respondent subject the Claimant to detriment?4.4 If so, was it because the Claimant had done the protected acts?[5]Remedy Unfair dismissal5.1 The Claimant does not wish to be reinstated and/or re-engaged OR The Claimant wishes to be reinstated to their previous employment or re-engaged to comparable employment or other suitable employment. Should the Tribunal order reinstatement? The Tribunal will consider, in particular, whether such an order is practicable and, if the Claimant caused or contributed to the dismissal, whether it would be just to make it and upon what terms it ought to be made.5.2 What basic award is payable to the Claimant, if any?5.3 Would it be just and equitable to reduce the basic award because of any conduct of the Claimant before the dismissal? If so, to what extent?5.4 If there is a compensatory award, how much should it be? The Tribunal will decide:5.4.1 What financial losses has the dismissal caused the Claimant?5.4.2 Has the Claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?5.4.3 If not, for what period of loss should the Claimant be compensated?5.4.4 Is there a chance that the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?5.4.5 If so, should the Claimant’s compensation be reduced? By how much?5.4.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? If so, did the Respondent or the Claimant unreasonably fail to comply with it? No breach is specified by the parties. If so is it just and equitable to increase or decrease any award payable to the Claimant and, if so, by what proportion up to 25%?5.4.7 If the Claimant was unfairly dismissed, did he cause or contribute to dismissal by blameworthy conduct? If so, would it be just and equitable to reduce his compensatory award? By what proportion?5.4.8 Does the statutory cap of fifty-two weeks’ pay or £105,707.00 until 6 April 2024 or £115,115.00 thereafter apply? Discrimination or victimisation5.5 Should the Tribunal make a recommendation that the Respondent take steps to reduce any adverse effect on the Claimant? What should it recommend?5.6 What financial losses has the discrimination caused the Claimant?5.7 Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job?5.8 If not, for what period of loss should the Claimant be compensated for?5.9 What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that?5.10 Has the discrimination caused the Claimant personal injury and how much compensation should be awarded for that?5.11 Is there a chance that the Claimant’s employment would have ended in any event? Should their compensation be reduced as a result?5.12 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? If so, did either party unreasonably fail to comply with it? No breach is specified by the parties . If so, is it just and equitable to increase or decrease any award payable to the Claimant and, if so, by what proportion up to 25%?5.13 Should interest be awarded? How much? Schedule 5 Employment Act 2002 cases5.14 When these proceedings were begun, was the Respondent in breach of its duty to give the Claimant a written statement of employment particulars or of a change to those particulars?5.15 If the claim succeeds, are there exceptional circumstances that would make it unjust or inequitable to make the minimum award of two weeks’ pay under section 38 of the Employment Act 2002? If not, the Tribunal must award two weeks’ pay and may award four weeks’ pay.5.16 Would it be just and equitable to award four weeks’ pay?