Case No 8001395/2025Venue GlasgowHearing 2 – 5 February 2026
Between
Ms H KaurClaimantGE Caledonian LimitedRespondent
Before
Employment Judge BuzzardMs Stein (instructed by Counsel) for respondentDate 3 March 2026
JUDGMENT
[1]The claimant’s claims of sex discrimination are dismissed following the unequivocal withdrawal of all such claims in advance of this hearing and confirmed at this hearing.[2]The claimant’s claims of indirect race discrimination are dismissed following the unequivocal withdrawal of all such claims in advance of this hearing and confirmed at this hearing.[3]The claimant’s claims for unpaid holiday pay are dismissed following the unequivocal withdrawal of all such claims at this hearing.[4]The claimant’s allegation that she was subjected to an act of harassment on or around 13 March 2025 by a Mr John Anderson is dismissed following the unequivocal withdrawal of this allegation at this hearing.[5]The claimant’s remaining claims are determined not to be well founded and are dismissed.[6]The claimant’s application for a reconsideration of the above decisions, the decisions and oral reasons having announced at the hearing, is refused.
REASONS
[1]A summary of the claims and allegations that the claimant withdrew 1.1. In case management hearings in advance of this hearing the claimant confirmed that no claim of sex discrimination or of indirect race discrimination was pursued. On this basis these claims were dismissed. 1.2. At this hearing the claimant withdrew her claims for unpaid holiday pay. This was done on the basis that the claimant agreed that she had been paid more than her accrued entitlement to holiday pay. On this basis this claim was dismissed. 1.3. At this hearing the claimant withdrew the harassment allegation listed as allegation 6(b) on the parties list of issues. This was an allegation that on or around 13 March 2025 a Mr John Anderson had stated to the claimant words to the effect that the respondent’s managers might, in his opinion, discriminate against her. Whilst potentially relevant background, the claimant confirmed that this was not itself an act of harassment. On this basis, this claim was dismissed.[2]What allegations did the claimant continue to pursue? 2.1. The claimant pursues claims of direct race discrimination and race related harassment only. These are based on the following allegations: 2.1.1. Allegation 1: That the respondent had provided the claimant with mostly 1 to 1 training rather than group training, and this was an inferior training format. 2.1.2. Allegation 2: That on an unspecified date around 10 March 2025 two unidentified white male employees aged around 35 to 45 approached the Claimant while she was working alone and allegedly said “Excuse me, how you got a job in here? How come they gave you a job and our friends never got it? You must be a special person. They normally don’t hire coloured people from other ethnic groups so how have you been hired as the company is a white male dominated company.” 2.1.3. Allegation 3: That on 18th or 19th March 2025 three alleged comments were made by one or more of Kyle Bicker, Johnny Muir, Stephen Ferrol and Craig Cains. These alleged comments were: a) “Why is she here?” b) “Why she’s been hired?” c) “She shouldn’t be here” The claimant claims she heard these comments, and when those making them realised she had heard them they “gave her angry or hostile looks” and/or they “made hostile gestures directed at her”. 2.1.4. Allegation 4: That the claimant was dismissed on 20 March 2025. 2.1.5. Allegation 5: That after being notified of her immediate dismissal, Kyle Bicker aggressively escorted the claimant from the respondent’s premises and threatened to call security if she did not leave. 2.1.6. Allegation 6: That the claimant was not given adequate notice of her shift patterns during her brief employment.[3]The use of an Interpreter by the claimant at this hearing 3.1. The claimant had asked for an interpreter to assist her in this hearing. One was provided for the claimant throughout the hearing. 3.2. Early in the hearing the claimant confirmed to the Tribunal, when asked why she was not using the interpreter, that she only needed the interpreter to assist if there was something that she did not fully understand. 3.3. It was agreed that the hearing could proceed on the basis that the claimant was free to make use of the interpreter provided to the extent that she needed at any point. 3.4. In the event, the claimant made very limited use of the interpreter. The extent to which the interpreter was used was entirely under the claimant’s control.[4]What legal provisions apply to the determination of these claims? 4.1. Part 5 of the Equality Act 2010 applies to employees and prohibits discrimination and harassment of employees in the workplace. 4.2. In relation to discrimination s39 states: “39 Employees and applicants (2) An employer(a) (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment;(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;(c) by dismissing B;(d) by subjecting B to any other detriment.” 4.3. This prohibits discrimination in the terms of employment, in the way access to training or other benefits is given, by dismissal or by subjecting an employee to any other detriment. 4.4. In relation to harassment s40 states: “40 Employees and applicants: harassment (1) An employer (A) must not, in relation to employment by A, harass a person (B)— (a) who is an employee of A's; (b) who has applied to A for employment.” 4.5. The definition of discrimination and harassment comes from Part 2 of the Equality Act. This firstly creates the concept of protected characteristics, the relevant one here being race. Part 2 Chapter 2 goes on to define what the different types of discrimination and harassment are.[5]Direct Discrimination 5.1. Direct Discrimination is defined by s13 of the Equality Act as when: “13(1) A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” 5.2. Direct discrimination therefore requires the claimant to identify a comparator. It is clear from the wording of the section, ‘or would treat others’ that a hypothetical comparator can be used. 5.3. The claimant must have been treated less favourably than the comparator she uses for a direct discrimination claim to succeed. Less favourable treatment is not defined in the Equality Act. Whether treatment is capable of amounting to less favourable treatment is a question for a Tribunal to decide, not the claimant. The EAT in Burrett v West Birmingham Health Authority [1994] IRLR 7 made it clear that the mere fact that a claimant thinks they are being treated less favourably does not mean that they are. However the House of Lords in R v Birmingham City Council ex parte Equal Opportunities Commission [1989] AC 1155, [1989] IRLR 173, gave guidance that the test for less favourable treatment must not be onerous, and whilst not determined by the claimant it must not disregard the perception of the claimant. Ultimately the decision of whether treatment is less favourable is for the Tribunal to reach, accounting for the perceptions of the claimant. 5.4. Establishing less favourable treatment is not, however, sufficient. For the claim of direct race discrimination to succeed it has to be found that the less favourable treatment was ‘because of’ the claimant’s race. 5.5. The Court of Appeal established in Owen and Briggs v James [1982] IRLR 502, that the protected characteristic, in this case race, does not have to be the only reason for the less favourable treatment. The question is whether it was an effective cause of the treatment.[6]Harassment 6.1. Harassment is defined by s26 of the Equality Act as: “26 Harassment (1) A person (A) harasses another (B) if: (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of: (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.” 6.2. The first question for the Tribunal is whether the alleged unwanted conduct occurred. This is a question of fact determined by application of the balance of probabilities test to the evidence presented at the hearing. 6.3. If the conduct did occur, the Tribunal must also be satisfied that the conduct was related to the claimant’s race for the claim to succeed. This is again an issue of fact for the Tribunal to determine by application of the balance of probabilities test to the evidence presented at the hearing.[7]The Burden of Proof 7.1. When determining the claimant’s claims for discrimination and harassment the burden of proof is determined by s136 of the Equality Act. The relevant parts of this section state: “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.” 7.2. This in effect reverses the traditional burden of proof. Section 136(1) expressly provides that this reversal of the burden applies to ‘any proceedings relating to a contravention of this [Equality] Act’. Accordingly it applies to both the claimant’s discrimination and his harassment claims. 7.3. This is commonly referred to as the reversed burden of proof, and has 2 stages. 7.3.1. Firstly, has the claimant proved facts (applying the balance of probabilities test to the evidence presented at the hearing) from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent breached the Equality Act? This is more than simply showing the respondent could have committed such a breach. 7.3.2. If the claimant passes the first stage then the respondent has to show that they have not breached the Equality Act. This is often by explanation of the reason for the relevant conduct, and that the reason is in no sense whatsoever connected to the relevant protected characteristic. If the respondent fails to establish this then the Tribunal must find in favour of the claimant. With reference to the respondent’s explanation, the Tribunal can take into account evidence of an unsatisfactory explanation by the respondent, to support the claimant’s case. The standard of proof at this stage is again the balance of probabilities. 7.4. It is not necessary for the Tribunal to approach these two elements of the burden of proof as distinct stages. The court of Appeal has given guidance that despite the two stages of the test all evidence should be heard at once before a two stage analysis of that is applied.[8]What are the Issues in dispute for each allegation that were determinative? 8.1. Allegation 1: Pursued as direct race discrimination. 8.1.1. This is the allegation that the respondent had provided the claimant with mostly 1-1 training, rather than group training, and this was inferior 8.1.2. There does not appear to be any dispute that the claimant was given mostly (but not exclusively) 1-1 training, and some others were trained in mostly in groups. To amount to direct race discrimination it has to be found that this training format was less favourable treatment that was applied to the claimant because of her race. 8.1.3. The respondent states that the allocation of the training was based on who on a particular shift needed the training, and accordingly in no sense whatsoever related to the claimant’s race. 8.1.4. The reason for the application of 1-1 or group training to the claimant and whether that was in any sense whatsoever related to the claimant’s race was the determinative issue of fact for this allegation. 8.2. Allegation 2: Pursued as race related harassment. 8.2.1. This is the allegation that on an unspecified date around 10 March 2025 two unidentified white male employees aged around 35 to 45 approached the Claimant while she was working alone and said “Excuse me, how you got a job in here? How come they gave you a job and our friends never got it? You must be a special person. They normally don’t hire coloured people from other ethnic groups so how have you been hired as the company is a white male dominated company.” 8.2.2. The respondent did not accept that any such comments were made. 8.2.3. The determinative fact for this allegation was whether the alleged comments had been made. 8.2.4. This is a determination of fact based on the evidence presented applying the balance of probabilities test. As explained later, it was determined that the comment was not made, as such the claim based on this allegation was dismissed. 8.3. Allegation 3: Pursued as race related harassment; and in the alternative pursued as direct race discrimination. 8.3.1. This is the allegation that on 18th or 19th March 2025 three comments were made by one or more of Mr Kyle Bicker, Mr Johnny Muir, Mr Stephen Ferrol and Mr Craig Cains as follows: 8.3.1.1. Why is she here? 8.3.1.2. Why she’s been hired? 8.3.1.3. She shouldn’t be here 8.3.2. The claimant claims she heard these comments, and when those making them realised they “gave her angry or hostile looks” and/or they “made hostile gestures directed at her” 8.3.3. The respondent disputed that these comments, looks or gestures occurred. 8.3.4. The determinative fact for this allegation was whether the alleged comments had been made and the alleged looks or gestures had occurred. 8.3.5. This is a determination of fact based on the evidence presented applying the balance of probabilities test. As explained later, it was determined that the comments were not made and the looks and gestures had not occurred. As such the claim based on this allegation was dismissed. 8.4. Allegation 4: Pursued as direct race discrimination. 8.4.1. That the claimant was dismissed on 20 March 2025. 8.4.2. There is no dispute that the claimant was dismissed. 8.4.3. The claimant invites the Employment Tribunal to draw an inference that her dismissal was related to her race. 8.4.4. The respondent states that the reason for the claimant’s dismissal was that she had failed to pass training courses that were a health and safety requirement to be able to do her job. As such, the respondent states that the claimant’s dismissal was in no sense whatsoever related to her race. 8.4.5. The claimant was unable to identify any other person of any race who had failed to pass all the required training, so had to rely on a hypothetical comparator. 8.4.6. The determinative issue in this claim based on the claimant’s dismissal was whether her dismissal was in any sense whatsoever related to her race. 8.4.7. The determination of whether the respondent has proved that the reason for the claimant’s dismissal was in no sense whatsoever related to her race, is one of fact for the Employment Tribunal to reach, based on the evidence presented and applying the balance of probabilities. 8.5. Allegation 5: Pursued as race related harassment. 8.5.1. This is the allegation that after being notified of her immediate dismissal, Kyle Bicker aggressively escorted the claimant from the respondent’s premises and threatened to call security if she did not leave. 8.5.2. There is no dispute that the claimant was escorted from the building by Mr Bicker. 8.5.3. There is no dispute that Mr Bicker stated to the claimant that if she did not leave he would get security involved, or words to that effect. 8.5.4. The disputes in this allegation are: 8.5.4.1. Did Mr Bicker behave in an aggressive manner; and 8.5.4.2. If he did, was that related to the claimant’s race? 8.5.5. These are disputes of fact to be determined based on the available evidence. 8.6. Allegation 6: Pursued as direct race discrimination. 8.6.1. This is the allegation that the claimant was not given adequate notice of her shift patterns. 8.6.2. There is a dispute of fact about what notice the claimant was given of her shift patterns. The claimant states it was inadequate, the respondent states it was the same as everyone else, and adequate. 8.6.3. There is a further dispute about whether the notice of shifts given to the claimant was in any sense whatsoever related to the claimant’s race. 8.6.4. These were the determinative issues of fact for this allegation. 8.6.5. The determination of these facts was based on the evidence presented applying the balance of probabilities test.[9]What was put before the Tribunal 9.1. The claimant gave evidence on her own behalf. No other witness appeared for the claimant. 9.2. For the respondent evidence was given by three witnesses: 9.2.1. Mr Cains – the claimant’s line manager accused of having been part of the group making comments on 18/19 March 9.2.2. Mr Bicker – a manager accused of having been part of the group making comments on 18/19 March and also the manager who decided to dismiss the claimant and escorted her from the site 9.2.3. Mrs Thomson – who heard the claimant’s appeal against her dismissal. 9.3. In addition to this witness evidence the Employment Tribunal were presented with a bundle of relevant documentary evidence that was described by the parties at the outset as having been agreed. 9.4. The Employment Tribunal were also provided with written submissions by both parties, the claimant submitting further written comments following receipt of the respondent’s written submissions. The respondent added nothing to their written submissions. The claimant made further brief oral submissions to clarify parts of her written submissions.[10]Relevant Background 10.1. The claimant was only employed briefly, from 24 February 2025 until her dismissal on 20 March 2025. 10.2. The claimant was employed as a materials mover, on a probationary term of 3 months. 10.3. Materials movers work on a 3 week rotating shift pattern: 10.3.1. Week 1 – 7am – 3pm 10.3.2. Week 2 11pm – 7 am 10.3.3. Week 3 3pm – 11pm 10.4. For the first week of employment new materials movers have to attend a site induction. This lasts for 3.5-4 days. The balance of the first week is spent shadowing an experienced materials mover. All materials movers are placed on a day shift in their first week of employment. 10.5. For the second week of employment materials movers will start working the three week rotating shift pattern. They do not all start at the same week of the pattern. Their initial shifts are allocated based on vacancies that need to be filled. 10.6. An essential safety requirement for the claimant’s role was training that included a need to pass two sets of theory and practical tests, relating to the safe use of equipment, known as the A1 and A5 tests. The claimant continued to shadow an experienced materials mover before starting to do the required tests in the week commencing 10 March 2025. 10.7. The tests are provided by an external provider. A candidate for the tests must pass both the theory and practical elements on the same occasion. This means that if the theory is passed and the practical failed, the entire test, including the theory element, must be redone and passed. 10.8. For both tests the process described was similar: 10.8.1. The candidate watches a slide show presentation lasting about 1 hour. 10.8.2. The candidate then completes the theory exam, a process that the claimant gave evidence took her about 90 minutes. 10.8.3. The exam is then marked, a process that takes about 10 minutes. 10.8.4. If the theory test has been failed, it has to be done again and passed before the candidate can proceed to the practical test. 10.8.5. Once the theory test is passed, the candidate then undertakes the practical test. This involves a demonstration followed by the candidate undertaking the task. The demonstration takes about 10 minutes, and then the candidate undertaking the test takes about 15 minutes. If in a group, candidates have to take this practical test in turn. 10.9. The claimant first attempted the A5 training on 11 March 2025. She failed the theory test at the first attempt, and passed it at the second attempt. The claimant was not able to pass the practical test that day. The claimant says that this was because the equipment needed was in use when it was needed up to the end of her working day. The claimant’s evidence was that she progressed to being able to do the practical element about 90 minutes before the end of her shift. Because all elements had not been completed on this day, the entire test had to be retaken at a later date. 10.10. The claimant made a first attempt at the A1 training on the 12 March 2025. It is noted that the claimant believed this was actually her second attempt at the A5 training. The contemporaneous email summarising the outcomes which the Employment Tribunal was taken to in evidence clearly describes the training on this date as being the A1 assessment. The claimant again failed the theory test at first attempt. There is dispute about whether she passed it at the second attempt, but regardless, the claimant had started this day of training late due to a hospital appointment. Having failed the theory test and then having to retake it, there was no time to attempt the practical test on this date. 10.11. The claimant attempted the A1 training on 14 March 2025. This was taken as part of a group. The claimant passed the A1 training on this date. This was following a second attempt on this day at both the theory and practical tests. The trainer sent an email to the respondent that recorded concerns about the claimant’s competence and suggested that the claimant had a period of working under supervision and was then reassessed. 10.12. The claimant made a further attempt to pass the A5 training on 18 March 2025. Despite having previously passed the theory element of this assessment, the claimant was unable to pass the theory test on this date, failing at both attempts. The claimant’s scores in the theory were worse on the second attempt on this date than on her first attempt earlier in the same day. 10.13. Later that week the claimant was asked to attend a meeting with HR. At this meeting she was informed that her employment was being terminated. The reason given was that the claimant had not been able to pass the required tests. This was stated as the reason in the written letter confirming dismissal sent to the claimant the following day, which was in evidence before the Employment Tribunal.[11]Findings and conclusions 11.1. For ease these are set out on an allegation by allegation basis in these reasons. This is specifically done to try to make the reasons as clear and accessible as possible. 11.2. The decisions were, however, reached taking all allegations into account together. They were not determined in isolation from each other. 11.3. The reasons below set out the findings of fact that the Tribunal considered to be significant. Only where there was a credible dispute about a relevant, and significant, finding of fact is the evidential basis for that finding explained.[12]Allegation 1: That the respondent had provided the claimant with 1-1 training rather than group training, and this was inferior. 12.1. This allegation is pursued as direct race discrimination only. 12.2. There is no dispute that the claimant did in fact have a mixture of 1-1 and group training. Whilst most of the claimant’s training was 1-1, on 14 March 2025 her training was as part of a group of 4. 12.3. The claimant’s position is that 1-1 training is less favourable because in a group candidates could help each other with the assessments. This submission, in effect that candidates would be able to cheat in a safety related test, is not persuasive. The respondent’s position, that 1-1 training was better because there was sole access to the trainer rather than shared access, is persuasive. On this basis, it does not appear to the Tribunal that the provision of 1-1 rather than group based training could amount to less favourable treatment. This point was not, however, determinative of the claim for the reasons explained below. 12.4. The respondent’s position is that whether group or 1-1 training is provided is based on who in a cohort of workers on a shift rotation need the training. If it is only one person, the training is 1-1. If more than one person needs the training on that shift, then group training is provided. 12.5. This appears to be an entirely logical approach as explained by the respondent’s witnesses in evidence. 12.6. The claimant did not produce any evidence that suggests this was not the approach taken. 12.7. On this basis, the finding of the Employment Tribunal must be that whether training was 1-1 or part of a group is related solely to who on the shift needs the training. This is not in any sense whatsoever related to any protected characteristic, including as claimed here, race. 12.8. It is noted the claimant’s position at the hearing appeared to be that the respondent could have changed the shifts around so she was trained in a group. That may be correct, but does not assist the claimant. The only question for this Employment Tribunal is whether the allocation of training as 1-1 or group based was in any sense whatsoever related to the claimant’s race. It is found that it was not. 12.9. Accordingly, this part of the claimant’s claim must fail and is dismissed.[13]Allegations 2 & 3: The alleged comments made on or around 10 March 2025 and on or around 18/19 March 2025. 13.1. These allegation were pursued as race related harassment and for allegation 3, in the alternative, direct race discrimination. 13.2. These two allegations are considered together given their similar nature. 13.3. The claimant has not been able to identify the persons alleged to have made the comments on 10 March 2025. 13.4. The claimant does not say that she mentioned these alleged comments prior to her dismissal or at her dismissal meeting. That is not necessarily surprising given the claimant was a probationer and had no notice of the dismissal meeting purpose. 13.5. It is noted that the claimant submitted an appeal against her dismissal in the form of a detailed 4 page letter. That was one of the documents the Tribunal was taken to by the parties at the hearing. The claimant does not refer to these alleged comments in that appeal letter. The explanation that the claimant, as a probationer, was reluctant to raise such allegations is less persuasive when applied to a letter appealing against dismissal. 13.6. The first time that these alleged comments are recorded as having been mentioned by the claimant is at her dismissal appeal meeting on 7 April 2025. 13.7. The Employment Tribunal was taken to a note of that appeal meeting. The evidence was that the notes were prepared by a notetaker at the meeting. The claimant suggested that she had sent an email complaining that the appeal meeting notes were incomplete. No such email was in evidence. The appeals officer Mrs Thomson’s was clear in her evidence that the notes were accurate and that no such email was received. 13.8. The notes record the claimant having said the following in her appeal meeting: “…on the shopfloor, 2 unidentified colleagues approached her and asked her how she got this job when their friends didn’t” – this is the alleged comment from around 10 March 2025; and “On another occasion, [the claimant] walked past gate 1 hub and 4 people leaders were having a meeting there (Johnny Muir and Kyle Bicker were the 2 [the claimant] could name). [the claimant] believes she heard the word ‘she’ and they gave her ‘angry looks’ when walking past, and she believed they were talking about her” – this is the alleged comment on 18/19 March 13.9. These are materially different allegations to those that are pursued at this hearing. 13.10. The claimant now says that in the first alleged instance, the following additional words were stated: “You must be a special person. They normally don’t hire coloured people from other ethnic groups so how have you been hired as the company is a white male dominated company.” 13.11. This addition to the comment she is recorded as having previously recalled and alleged does not appear to be natural or likely language that would be used on a shop floor. Whilst far from determinative, this casts some doubt on the claimant’s evidence on this point. 13.12. The addition is the only overtly race related part of the comments. It appears to have been added to the claimant’s account of what she heard only after her appeal was denied. This is found to be a disturbing lack of consistently in the way the alleged comments have been reported, initially omitting to include the only allegedly overtly race related parts. 13.13. In relation to the second alleged instance, the claimant now alleges she heard and recalls the whole of what was said, not that she believes she heard the word ‘she’ and they were talking about her. 13.14. The claimant stated at this hearing, whilst cross examining the appeals officer who was present at the meeting, that the notes of the appeal hearing have omitted part of what she said at that meeting. This was not stated in evidence, but given the claimant is a litigant in person has been taken as if it had been. That position is, however, not persuasive. What is recorded in relation to the second comment is not merely part of what is now alleged, i.e. there is an omission from the notes, it is fundamentally different. The claimant is recorded as having stated at her appeal that she thought they used the word ‘she’ and they were talking about her, whereas she now says she heard and can recall the whole of the alleged three comments. 13.15. In addition, the claimant now states that she can recall all four persons present at the time of the second alleged set of comments. At the time of the appeal it is recorded that there were only two of the alleged persons present that she “could name”. The difference is more than any suggested omission to note all the names she gave, it is a substantive difference. 13.16. Those the claimant now names include Mr Cains as well as Mr Bicker. Both Mr Bicker and Mr Cains separately gave clear and consistent relevant evidence about this allegation: 13.16.1. The location where these comments are alleged to have been made is adjacent to machinery that runs constantly, 24 hours a day, 7 days a week. This is noisy machinery to the extent that some staff wear ear defenders. This would make it hard for anyone passing to hear a conversation as the claimant describes. This evidence is consistent with what the claimant is recorded as having said at her appeal meeting, in effect she did not hear what was said other than she thinks she heard the word “she” being used. 13.16.2. Both witnesses stated clearly, and separately, that whilst they do attend a daily operations meeting in that location, personnel matters are never discussed at such meetings. 13.16.3. Both witnesses consistently denied ever making or hearing such a comment, at one of their operations meetings or otherwise. This was despite it being put to them repeatedly in cross examination. 13.16.4. Both witnesses consistently denied any looks or gestures as alleged. 13.16.5. Neither witness recalled having seen the claimant on the dates alleged. Mr Cains was clear he did not see the claimant. Mr Bicker could not recall seeing the claimant but conceded it was possible she had walked past. Whilst the claimant appears to seek to place reliance on this difference, the Tribunal do not find any material discrepancy in their evidence. The fact that Mr Bicker said he could not recall seeing the claimant but conceded that it was possible she had been nearby is unremarkable. The fact that Mr Cains was clearer that he did not recall seeing the claimant is in no way inconsistent with this. Regardless, the issue is not whether the claimant passed by on that date, the issue is whether the claimant heard the comments she now alleges, or merely thought she heard the word “she” as she is recorded as having alleged earlier. Whether the claimant was, or was not, in the vicinity does not assist with this, and the fact that one witness conceded that, despite having no recollection to that effect, it is possible that she was is of no assistance or significance. 13.17. Carefully weighing the available evidence, it is not found that the comments the claimant now alleges were made were in fact made, and the associated looks and gestures did not occur. There was no independent witness to the comments looks or gestures, and the claimant’s account of the comments has expanded and changed over time. The respondent’s account has been consistent, and insofar as it correlates with the noise environment at the place of the second alleged comment is persuasive. For this reason, it is found that the respondent’s evidence that the comments were never made and the looks and gestures never occurred is more likely to be accurate. 13.18. Given the finding that the alleged comments looks and gestures did not occur all claims based on the alleged such allegations must fail and are dismissed.[14]Allegation 4: That the claimant was dismissed on 20 March 2025 14.1. This was pursued as an allegation of direct race discrimination only. 14.2. The respondent has set out clearly the reason they say motivated the claimant’s dismissal. That was that the claimant had failed her safety related training assessments. It is therefore the respondent’s position that the reason for dismissal was in no sense whatsoever the claimant’s race. 14.3. The evidence is clear, the claimant had repeatedly failed this safety related training. At the point of her dismissal, the claimant had still not successfully passed the all the required safety related training assessments. 14.4. The claimant suggests in her submissions that other white staff who failed these safety related training assessments were not dismissed. The claimant had no evidence to support this contention. She conceded that she had no information to support this contention. 14.5. The evidence from the respondent’s witnesses was that they had never encountered someone who had been unable to pass the safety related training assessments. 14.6. The contemporaneous emails sent regarding the claimant’s training were in evidence before the Employment Tribunal. These record the following concerns were raised about the claimant: 14.6.1 11 March A5 fail: - comments of Mentor Trainer noted as: “Employee seemed somewhat overwhelmed by both the course and the information being given. Employee was very distracted, attention wandered, and did not seem to be concentrating or taking the information in. Employee had poor awareness, and didn’t have full control of the vehicle – employee hadn’t grasped the thumb controls or other controls on the A5 at all” In relation to the same date, it is recorded that the trainer was “hesitant to say that the employee would pass following a second day’s practical training due to the level of assistance required on the controls.” 14.6.2. 14 March A1 course pass: - feedback from the Mentor “Harjit Kaur passed their practical on the 2nd attempt. Scott did note that the delegate did struggle a little bit, he has recommended a few weeks of supervision with a more experienced colleague to build up her confidence on the PPT" And a further comment: “It should be noted that Harjit passed the theory on the 2nd attempt with the remedial assistance, which is standard procedure on any Mentor training course. However, was the 4th attempt over 2 course attendances. Following this feedback I would recommend that Harjit is supervised on shift for a period of 6 weeks while operating the powered pallet, and then resits the Power Pallet course to ensure that she is competent to operate the truck on her own.” 14.6.3. 18 March A5 fail: feedback from the mentor trainer: “Doesn’t seem to be retaining the knowledge. She seems to be a little overwhelmed, particularly seems to struggle with stability.” 14.7. Whilst the claimant clearly does not agree these comments are accurate, there was no suggestion that they were not set out in genuine emails. These were comments fed back to the persons who decided to dismiss the claimant. 14.8. Noting that, at the point of dismissal, the claimant had still failed to pass the required A5 course, despite at least two cycles, including the claimant having appeared to score less as time progressed, it is accepted that there were genuine concerns about the claimant’s competence. In relation to A5 scores, the claimant appears to have scored enough to pass the theory test at her second attempt (which did not count as the practical element was not passed), and then scored less and failed her third attempt and even less and failed her fourth attempt. The claimant has not presented any evidence that challenged the respondent’s evidence that failures like this could not be recalled to have ever occurred before. That evidence was persuasive, and is consistent with the position set out in the claimant’s appeal letter, where she states that she believes that dismissal of probationary employees by the respondent is unheard of. 14.9. The claimant has presented no evidence to suggest her dismissal was related to her race other than her belief. The evidence about events that has been presented does not amount to a basis upon which it could reasonably be inferred that race was in any way a factor that influenced the decision to dismiss the claimant. To dismiss a probationary employee who has failed an essential safety related test repeatedly and appears to be getting worse in her performance in tests as time progresses is a logical and rational step. 14.10. In any event, the respondent’s evidence regarding the reason for dismissal is accepted. It was consistent across all witnesses, was supported by contemporaneous records and entirely logical. That reason was solely the claimant’s poor performance in safety related training assessments, which was in no sense whatsoever related to her race. 14.11. For these reasons the claimant’s dismissal is not found to have been an act of direct race discrimination and that claim is dismissed.[15]Allegation 5: That after being notified of her immediate dismissal, Kyle Bicker aggressively escorted the claimant from the respondent’s premises and threatened to call security if she did not leave. 15.1. This was pursued as an allegation of race related harassment only. 15.2. There was some broad agreement between the claimant and Mr Bicker about the timing of these events. 15.3. The claimant was informed she was dismissed, and asked to gather her things and leave site. Mr Bicker was required to escort her in this process. 15.4. It was agreed that the claimant first went to get her belongings from her locker. She then proceeded to the car park. Throughout this process the claimant was trying to persuade Mr Bicker to change the decision, and to argue she should not be dismissed. In doing this the claimant would stop to speak to Mr Bicker. This made the process take longer than it should have. 15.5. Mr Bicker invited the claimant to take a few minutes in her car to compose herself before driving. Mr Bicker states this was because the claimant was visibly upset and he wanted her to be safe when driving. Mr Bicker was required to wait until she drove through the security gate before retuning to other duties, as he had to escort her past security. 15.6. The claimant did not proceed to drive away. After a few minutes she got out of her car, approach Mr Bicker, and again tried to argue about the decision to dismiss her. It was at this point that Mr Bicker told her if she did not leave site he would call security. 15.7. The claimant confirmed that the alleged aggression of Mr Bicker occurred after she got back out of her car. 15.8. Mr Bicker denied being aggressive. It was clear from the claimant’s evidence that she perceived Mr Bicker as being aggressive. 15.9. There was no other evidence relating to this point. 15.10. It is accepted that it is logical that Mr Bicker would have become frustrated with the prolonging of the process of escorting the claimant from the respondent’s site. That is consistent with him referring to the need to involve security. It appears likely that this frustration would have become visible in the way Mr Bicker spoke and behaved. It is accepted that the claimant perceived Mr Bicker as being aggressive. 15.11. There is no basis, however, to infer any part of the way Mr Bicker conducted himself had anything to do with the claimant’s race. The claimant had continued to argue with Mr Bicker and was not leaving site. Mr Bicker was frustrated by this. The perception of the claimant that Mr Bicker was at this point being aggressive is found to have been a response to his frustration becoming apparent. Frustration with the claimant failing to follow the instruction to leave site and repeatedly trying to argue about the decision to dismiss her for repeatedly failing to pass safety a related training requirement is in no sense whatsoever related to the claimant’s race. 15.12. Accordingly, the actions of Mr Bicker are not found to relate to the claimant’s race and cannot therefore amount to race related harassment. For this reason this claim cannot succeed and is dismissed.[16]Allegation 6: That the claimant was not given adequate notice of her shift patterns. 16.1. This was pursued as an allegation of direct race discrimination only. 16.2. There was little or no evidence presented in relation to this specific allegation. 16.3. There was no evidence that suggested the claimant had missed a shift due to a lack of notice or similar. 16.4. The respondent’s evidence was that all material movers work a three shift rotating pattern. Once you get your first shift on that pattern, all future shifts are predictable and not separately notified. 16.5. The claimant did not dispute the shift pattern. The claimant did not dispute the evidence that it was on a fixed rotation and thus entirely predictable. 16.6. On that basis, at worst, the claimant could complain she was not told about her first shift after induction week, i.e. which would be her first shift in the rotating shift pattern. 16.7. It may be that the claimant had failed to grasp that her shifts were automatically rotating in a predicable way, and as such she perceived a lack of information. There was no evidence to show this. There was clear evidence from the respondent’s witnesses that the shift system was explained as part of the interview process and again in the induction week. 16.8. On this basis, it is not found that nothing in the claimant’s case gave a basis upon which a reasonable inference could be made that the way she was told of her position on the rotating shifts was not communicated to her. Accordingly, the claimant has failed to reverse the initial burden of proof for this allegation and her claim must fail and is dismissed. Reasons for refusal of the claimant’s reconsideration request[17]Timing of the application for reconsideration 17.1. The reasons for the decisions in this claim set out above reflect the oral judgment delivered to the parties at the conclusion of the hearing. 17.2. Following the hearing the claimant sent an email requesting the above written confirmation of the reasons for the decision. At the same time as the claimant requested written reasons, she presented a request that the oral judgment be reconsidered.[18]The Law as it applies to reconsideration of decisions 18.1. An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 68(1)). 18.2. Rule 70(2) of the 2024 Rules directs that a reconsideration application must be refused where, based on preliminary consideration, there is no reasonable prospect of the original decision being varied or revoked. The rule states: “70. Process for reconsideration (2) If the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application must be refused and the Tribunal must inform the parties of the refusal.” 18.3. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily..” 18.4. Similarly in Liddington v 2Gether NHS Foundation Trust EAT/0002/16 the EAT chaired by Simler P said in paragraph 34 that: “a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.” 18.5. In common with all powers under the 2024 Rules, preliminary consideration under rule 72(1) must be conducted in accordance with the overriding objective which appears in rule 3, namely to deal with cases fairly and justly. This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues, and avoiding delay. Achieving finality in litigation is part of a fair and just adjudication.[19]Grounds set out by the claimant in her application for reconsideration 19.1. Ground 1: Failure to consider material evidence 19.1.1. This ground of application does not set out or explain what part of the evidence presented was not considered. It suggests in general terms that the decisions “lacked adequate findings of fact or proper analysis”. 19.1.2. The findings of fact and basis for them was explained in the oral judgment, as set out in the above written reasons. It is not clear why, or in what way, the claimant alleges there was not a proper analysis or the findings were inadequate. 19.1.3. As such, there is no reasonable prospect that the decision will be varied or revoked on this ground and the application for reconsideration on this ground is therefore refused. 19.2. Ground 2: Misapplication of the burden of proof 19.2.1. This ground of application for reconsideration appears to misunderstand the law. 19.2.2. The determination of what factually occurred is reached by application of the balance of probabilities to the evidence and submissions presented. It is only if the facts found applying this standard of proof could support an inference of discrimination that the burden of proof shifts. 19.2.3. In relation to a significant part of the allegations raised, the findings of fact were that events did not occur as the claimant alleges. The reverse burden of proof does not apply to findings of fact. An inference cannot be drawn from events that have been found not to have occurred. 19.2.4. For other parts of the decision, where events were found (or mostly conceded) to have occurred, the reasons given, and as repeated above, did apply the reverse burden of proof. 19.2.5. Accordingly, there is no reasonable prospect of the decision being either varied or revoked on this ground and the application for reconsideration on this ground is refused. 19.3. Ground 3: Failure to assess evidence cumulatively 19.3.1. The oral decision, as repeated in the written reasons above, expressly confirmed that although for ease the reasons were set out on a by allegation basis, the decisions were reached considering the claim as a whole. 19.3.2. This ground of application therefore misstates the basis for the decision. Accordingly, there is no reasonable prospect of the decision being either varied or revoked on this ground and the application for reconsideration on this ground is refused. 19.4. Ground 4: Procedural unfairness during the hearing 19.4.1. It is correct that both the claimant and the respondent’s representative were prevented from asking questions not relevant to the issues in the claim and not helpful to the Tribunal. 19.4.2. It is further correct that the Tribunal on occasions attempted to assist the claimant to put her questions as multiple single questions rather than long and multifaceted questions that could unfairly confuse a witness. 19.4.3. The above do not amount to procedural unfairness. Accordingly, there is no reasonable prospect of the decision being either varied or revoked on this ground and the application for reconsideration on this ground is refused. 19.5. Ground 5: Inadequate reasoning 19.5.1. This appears to repeat the substance of ground 1 of the application. 19.5.2. It is refused for the same reasons as set out above. 19.6. Ground 6: Errors of Law 19.6.1. This ground appears to be an assertion that the prior grounds of application amount to material errors of law. 19.6.2. As nothing is added to this ground of application, it is refused on the same basis as the earlier grounds set out in the claimant’s application. Notes Judgments (apart from judgments under rule 51) and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found at www.judiciary.uk/guidance-and-resources/employment-rules-and-legislationpractice-directions/