Employment Judge J HendryMr S Jones (instructed by Solicitor) for respondentDate 14 August 2026
JUDGMENT
The claims for race discrimination not being well founded are dismissed.
REASONS
[1]The claimant in his ET1 sought findings that he had been discriminated against on the grounds of his race both in relation to his selection for redundancy and the failure to find him alternative work. The claims were opposed. Preliminary Matters[2]It was apparent from the digital file that there had been considerable correspondence between the parties over disclosure of documents. The claimant raised issues relating to disclosure at the start of the hearing. It had been explained to him previously that the tribunal did not have authority to deal directly with matters arising from his SAR and the failure as he saw it of the respondents to fully comply with that request. It should be noted that the respondent’s position was that they had complied with the statutory request and indeed had lodged some additional documents at the start of the hearing. The claimant’s position was that issues around disclosure were important as they might allow the Tribunal to hold that the redundancy process was not transparent and that this should be taken into account when considering whether or not race discrimination had occurred. The claimant outlined 10 categories of documents he wanted to discuss. We then worked our way through these. Issues around Disclosure[3]The first related to correspondence emails and the like around the appointment of Christopher Shepherd, one of the claimant’s comparators. His position was that if the respondents were to be believed, there were no minutes kept of meetings, no correspondence about his selection and no notes of telephone discussions. The respondent’s position in response was that there were no further documents to produce. He pointed out that records of calls between the respondent’s staff alone would not disclose what had been discussed. He also queried the relevance of the claimant’s request for the qualifications of all the other Barge Engineers employed by the Group. I pointed out to the claimant that he could cross-examine the respondent’s witnesses regarding what meetings etc took place and query the apparent absence of records but that if the respondent’s position was that there were no relevant records then it was up to the Tribunal once it heard the evidence to form a view on these matters.[4]The second category related to the certification of Barge Engineers between the period 2023 and 2024 who had been appointed. Mr Jones reiterated that this was not relevant as the only relevant information would relate to the comparator. The third category of documents related to other employees who had been made redundant the claimant's position was that all those at risk were all ultimately employed elsewhere. Mr. Jones challenged this and said that in any event the two comparators that had been identified were the only employees whose records were relevant to the claim,[5]The claimant also sought information in relation to the appointment of Mr Mcluckie and how the Marine Superintendent post was filled. Mr Jones stated that this was also not relevant as the claimant ultimately withdrew his application for this role. The claimants’ position was that Mr Mcluckie was given the role including payment of his accommodation costs which was the bar to him accepting the position[6]In relation to categories 5 and 6 the new documents lodged satisfied the claimant. (Parties were given a short break to consider the new documentation and the claimant did not pursue categories 5 and 6)[7]Mr. Jones was given leave to amend his written pleadings to take out the word ‘‘immediate’’ where it appeared in paragraph 5.12.5 of the ET3 on line two. This was unopposed. It also meant that the claimant did not require documentation showing that there was an immediate need for this post to be filled as he had requested.[8]The claimant also wanted documentation in relation to Mr Shepherd’s DP training and certification. Mr Jones opposed the matter on the grounds of relevancy. The claimant asked for documents relating to the senior DPO post which Mr Shepherd had been unsuccessful in obtaining. The claimant’ position was that although he was unsuccessful in getting this relatively junior post he was later appointed to the post which the claimant believes he was not qualified to hold namely Barge Engineer in the Pool Crew and which the claimant believed he had been appointed. Mr. Jones suggested that the information or rather the detail of the information was not required as this this was not a post that the claimant had applied for and was not relevant.[9]The claimant wanted documents related to the Marine Superviser post and the respondent’s job description for that role. Mr Jones indicated that Mr Flynn could give evidence about these matters and that there was no need for documentation to be produced which had little relevance.[10]Finally, the claimant asked for the telephone logs in relation to discussions between Mr Flynn and others relating to Mr Shepherd's appointment. Mr Jones's position was that they were not available as they had not been kept beyond 12 months. In any event he reiterated that they would not tell anyone looking at the logs that the conversations related to the claimant’s selection. The claimant in drawing attention to these matters said that he was going to argue that the failure to produce these documents was a matter from which the tribunal could fer race discrimination had occurred.[11]I asked the claimant what he wanted to happen explaining that even if he persuaded me that one or more of the categories contained relevant documentation it would almost certainly mean delay and probably discharge of the hearing. I observed that the case had been ongoing for some time. I explained that it might be some months before new dates could be arranged. I suggested to him that he was able to give evidence of his own understanding of matters and if that wasn't challenged then that was evidence the tribunal could accept without the need for documentation. He would also have two witnesses from management one of whom was from HR giving evidence for the respondents who he could ask questions of and explore if there was crucial documentation that had not been produced. He could at a later stage renew his application if some document emerged as being important. I also observed that the application for these documents comes late in the day, the relevance of many of them was problematical and I would be reluctant to postpone or discharge the hearing on the basis of what I had heard.[12]Following a short adjournment, Mr Katkoria agreed to proceed and renew his applications for any document if it looked as if a particular document existed and was important to an understanding pf the case.[13]I then took a little time to explain to him how the evidence would be led and generally what the process would be. I explained examination- in- chief, cross examination and re-examination and the importance of referencing documents to ensure they were part of the evidence. I invited him to ask questions as we went along about the process in case there was any matter that he did not fully understand. He agreed to do so. In the event it soon became apparent that the claimant had diligently researched his legal position and thoroughly prepared his case.[14]It was agreed that standing that there were issues in relation to the claimant’s methodology in his calculations of loss the hearing would deal with remedy alone.
Issues
[15]There was no list of issues but in the case management hearing that took place on the 15 September 2025 before Judge Buzzard it was recorded at paragraph 7 that the complaint made related to the claimant’s redundancy dismissal and the failure to appoint him to alternative positions. These were a full time position as Pool Crew and a positions as Marine Superintendent which was an onshore position.
Evidence
[16]The Tribunal had the benefit of a Joint Bundle of documents. As noted earlier Mr Jones added additional documents to the Bundle by agreement in the first morning as did the claimant at a later point in the hearing.[17]The claimant gave evidence and the respondent called Ms Amy Boston HR Manager and John Flynn Marine Manager. Facts
Background
[18]The respondent company operates deep water drilling ships and other vessels in the North Sea and in other oil bearing regions throughout the globe. The have an office and personnel in Aberdeen. They are part of a wider shipping group.[19]Stena Drilling seek, where possible, to deploy more highly qualified staff than their immediate competitors. They are relatively small company compared to other vessel operators and value loyalty and try and retain staff where possible despite the vagaries of their business.[20]The senior staff on board a vessel are the OIM and the four heads of department including the Barge Master. In the Merchant Navy, equivalent ranks would be Officers. Terms OIM or Offshore Installation Manager Barge Master (BM): The role is one held by a senior mariner. They are head of the marine department onboard and responsible for the safe operation of a vessel. They oversee the crew, manage cargo, and ensure vessel stability and marine operations. Barge Engineer (BE): The Barge Engineer sits below the Barge Master in seniority . They deputise for the Barge Master when not on duty. DPO/Junior or Trainee DPO/Senior DPO: Drilling and other vessels now use Dynamic Positioning a computer based system to stay on station. This allows the ships engines to compensate for vessel movement caused by winds and currents rather than relying on anchors. Pool Crew: a staff member assigned to the Pool Crew was paid a salary and used as and when required to fill gaps vessel’s complement usually at short notice because of illness or family emergency. Some deployments were planned for longer periods such as for long term illness , paternity and maternity leave. The number of staff on the Pool Crew was usually small and when a full time post became available they were usually given that post. Retention of someone on the Pool Crew required a business case to be proposed and accepted to cover the cost. Other means of covering task staff to act up into the role or to get cover from Agency staff. History[21]The claimant had been working with agencies with the respondent and had completed a trip on the Stena Spey and Stena Don as Barge Engineer. He was interested in joining the company and learning more about offshore drilling operations.[22]The claimant was interviewed for a post of Barge Engineer with the respondent company in June 2023. Mr Flynn the Marine Manager who agreed his employment commented: ‘‘Jai is without doubts a driven mariner who's achieved his Masters and a command position before the age of 28 and he is clearly an intelligent individual with a clear grasp on marine law, legislation and regulation but during interview he tended to supply answers that were not totally aligned with Stena policy - this is understandable given the short time he's been with Stena but I hope he is able to accept it takes time to learn a company's culture. Jai has received very strong feedback from the OEM and Reg manager as well as external visitors to the Stena Spey and I've taken that into account and I agree that he should continue with his application for the role of Barge Engineer’’. The claimant was subsequently approved for employment.[23]The claimant was employed as a Barge Engineer from 21 June 2023 until termination of his employment by reason of redundancy on 21 August 2024.[24]The respondent company assigns staff to particular vessels. Each vessel is treated as a commercial unit on its own and this is reflected in contractual documentation.[25]The claimant was assigned to work on the vessel Stena Spey a semisubmersible drilling rig. The vessel was relatively elderly and given the prevailing market conditions in the North Sea was struggling to find work. When a vessel is not working it is moored in a safe place and partially or totally de-manned. This is referred to as ‘stacking’. The Spey was moored at Invergordon.[26]The possibility of obtaining work and maintaining the ship in operation was not high. It was not a ‘‘state-of-the-art’’ vessel. In addition it needed work to be carried out to it to bring it up to an appropriate standard. The market conditions were adverse leading to a lack of drilling work in the North Sea. Nevertheless, the company did not immediately decommission the vessel and make all the staff assigned to it redundant. They decided to use these employees to fill gaps in their fleet complement elsewhere whilst waiting to finally decide what to do with the vessel. There were 35 employees assigned to the Spey.[27]The claimant was used as ‘‘Pool Crew’’ and asked to mobilise when needed to other vessels. This was later referenced by email dated 8 May 2024 (JBp152) when Mr Flynn wrote: ‘‘ …In short we need to continue to use you across the fleet until such a time as a BE slot opens up on a unit which we can get you into permanently and on a set rota ..’’[28]By the end of 2023, there was no anticipated work for the Spey. Those assigned to the Spey including the claimant were told that their jobs were at risk. Staff including the claimant were written to on the 11 June 2024 after the decision was taken to scrap the ship and advised that the redundancy process was to proceed (JBp162).[29]On the 12 June the claimant received an email confirming the vessel was to be scrapped and that all 36 employees assigned to vessel were at risk of redundancy (JB0163) Barge Engineer Post[30]A Job description for the post of barge engineer was produced (JBp62-64) The qualifications and experience needed (p64) were given. Under essential a postholder was required to have a valid marine class 2 (Chief Mates) certificate. Also under essential criteria the postholder required to have DPO certification ( DP MODUS and Drillships - Unlimited DP certificate) This latter requirement was also contained in the Desirable category.[31]At this time almost all of the respondent’s vessels had DPO capability but previously some vessels including the Spey had not.[32]The claimant produced his offshore performance appraisal for 2023. It showed a high level of skill, qualifications and aptitude (JB p95-113). Mr Shepherd’s Appraisals were also produced (JB P115-133). Email exchanges re mobilisation[33]On the 17 March 2024 the claimant was asked by Susan Wilson Personnel Logistics Superviser by e-mail whether or not he could cover the Barge Engineer role for the Carron. It would require the claimant to be in LPA ( Gran Canaria) for Tuesday (JB p148) to join the vessel. The claimant responded by e-mail that evening: “Apologies for the late read, packing and transiting currently for a hotel for my OERTM course which starts tomorrow morning and ends Thursday evening full stop new paragraph apologies but will not be able to make it for the Carron.”[34]The OERTM course had been arranged and paid for by the respondent. As the claimant did not have a permanent fixed post the respondent had used the opportunity to send him on various courses to improve his technical knowledge for working in drilling.[35]On Saturday 13 April 2024, Ms Wilson emailed the claimant but due to sickness he was looking for support on the dawn from Monday until 30 April 2024 when he was asked if he could join on Monday. The claimant responded on the same day that he was just home from he course he had been on he stated that Monday will not be possible as I will need to make arrangements for dependents I could join on Wednesday for the duration dash hopefully this can tie in with the marine support requirements miss Wilson got back to him and asked if he could do Tuesday he confirmed by e-mail that he was available to travel on Tuesday afternoon he was told he'd be covering the bargemaster's position.[36]Ms Wilson asked him if he could go to the Stena Forth to cover paternity leave from 16 May. The cover was for two weeks but it was likely that he would remain on board for four weeks she indicated that she would cancel the training that had been booked from 22 May and put the claimant on the course at a later date the claimant despond it on the same date he wrote: ‘‘Firstly, I organised my leave based on my course dates and as such have plans including arrangements for my girlfriends birthday next weekend scheduled accordingly to make sure I made my flights for post more on the Sunday secondly I would like to remain on a regular rotation as the lazy to plan my life ahead. I always want to assists Tanner and heat having to see new due to plans or otherwise when coverage is required. If it helps I'm happy to go back into the spirit station and last sport opens up on an operational asset finally I just want to mention that I had a successful hitch on the dawn. Considering a new environment, I believe the IAM and shell are very content with my standard of work... I didn't I also received my voluntary redundancy letter a few weeks ago full so I didn't sign it as I hope there is work for me with instead of moving forward. There have been numerous hires after I was hired, so I assume my job is safe.”[37]The claimant received an e-mail from Mr Flynn on the same date. The matter have been brought to his attention. He wrote (JBp152): “Susan passed your e-mail onto me and after discussion internally, I thought it best to reply to you myself. I totally understand your e-mail and the reasons behind it, so allow me to explain our thinking As you are aware we see you as a valued asset to the company and we want you to develop and grow. So while you are technically assigned to the Spey we don't believe its in anyone's interest to have you on a stacked rig with an uncertain future so we are trying our best to use you across the fleet in a sort of POOL role to get as much experience and exposure as possible. This makes you much more valuable to us moving forward should the Spey no longer be a Stena asset, the downside of this of course is an uncertain router until we get to a fixed position, it's the Ying to the Yang, I guess. I note your comment and wanting to stay on the semis, which is (in?) a normal world is fine and you work well on these units, however we only have one working semi and it would be remiss of us for you to hang your coat on one unit. We need you to be able to work on all 7 units come especially if you want to progress in rank. We also try and accommodate employees but at the end of the day we have slots to fill and we have to ensure we have the right competency and training in place to fill these slots. Your slot on the Spey is no longer available as we continue to down man the unit - you refer to the voluntary redundancy which is another route for us to continue this process. This process will continue unless we get a contract for the Spey which is challenging at this point and we are actively looking for at other options for the speed which will take her out of the Stena Fleet, this has been relayed by our CEO so should not be seen as a new story. In short we need to continue to use you across the fleet until such a time as BE slot opens up on a unit which we can get you into permanently and on a set rota and while we plan training you are up on POSMOOR, operational demands take priority and we have to use a competent BE if one is available rather than hire expensive agency staff who we cannot confirm the competency off. I believe you have a long and rewarding future with Stena as we continue to grow with modern drilling assets and blue chip clients but no journey is easy and currently you are in a disturbed section but that will settle down and I'm sure you will have lots of birthdays we (to?) celebrate in the future.’’[38]The claimant had issues over the way he was paid which he raised with the respondents. He had correspondence with the payroll department. He wrote on 7 July to Kirsty Barr (AHR Adviser) (JBp167/168) in relation to the calculation of his salary. He wrote: ‘‘there have certainly been situations this year where I have not been immediately available, and the situations listed below. Please note at no stage was I part of the Pool Crew’’.[39]He also emailed her on 27 June (JBp174): ‘‘Received my June payslip today, and assume there is a mistake. See attached. Firstly it says department Spey. On this matter I am still assigned to the Spey, but have been utilised fleet wide but I'm not in the Pool Crew’’ Redundancy Process[40]In July 2024 the claimant and other staff were advised about possible vacancies.[41]Mr Shepherd who was assigned to the Spey. He wrote to Sam McDonald the Senior Recruitment Personnel Officer on the 1 July indicating an interest in a Barge Engineer role as Pool Crew that was available. He indicated that although he had worked in the role of Barge Engineer with other companies he did not have a DPO certificate. He confirmed that he had recently obtained his Chief Mate’s certificate and was still ‘‘very fresh with rules and regulations’’ He had worked with Stena for many years.[42]The claimant was advised on the 2nd of July by Mr MacDonald that questions about possible vacancies would be discussed at individual consultation meetings. The claimant had before this consultation applied for the role of Barge Master but had been unsuccessful. He sent an updated CV on the 4th of July.[43]The claimant had correspondence with Mr MacDonald about vacancies. He asked about the Marine Superintendent role and was advised that this was an onshore role (p185). The claimant formally applied on the 5 July (p187). He wrote that he would e interested in the role “with some training” (JBp191).[44]He wrote to Mr MacDonald (JBp188): ‘‘I'm offshore at the moment and have no time to update my CV. I sign off on the 9th. I have an e-mail from John Flynn saying my job is safe’’ Mr MacDonald responded that he could use the CV he had submitted when he was interviewed for the barge master position.[45]When the claimant was still offshore he heard another employee that Mr Shepherd had applied for the Pool Crew Barge Engineer’s role. He was surprised to hear this as he did not leave Mr Shepherd was qualified for the rule. He asked Ken McHardy the Chief Engineer on the Stena Don where he been working to send a reference on his behalf which he did. It stated (JBp193) “So I'd just like to see how impressed I have been with jay's work, I first met him on the Stena Spey last year and I was very impressed with his broad knowledge of the rig even though he had only been there a short while you paragraph he then turned up on the dawn and covered the barge masters rule back in April, again, he fell into what is a very client based demanding role with relative ease on both rigs he's come across as confident and knowledgeable, he appears very proactive and his understanding of what's required of him from the rig and the client I believe he is assigned to the Stena Spey his future with Stena may be in the balance. If Jai does not return to the Don I hope he is employed elsewhere in the fleet and not lost to one of our competitors, he is one of the better lads to pass through the department.”[46]The e-mail was forwarded to Aberdeen and considered by Mr Flynn. Mr MacDonald emailed Mr Flynn on the 10th of July about the effort to reassign personnel affected by potential redundancy and he indicated that he had received 2 applications for the Marine Superintendent position. He asked to confirm who should be invited for interview. He subsequently withdrew the application as it was based in Aberdeen and the claimant’s home was in London.[47]On 11 July the claimant received a letter in relation to potential redundancy inviting him to a consultation meeting.[48]Mr Flynn responded to Mr MacDonald that he had no issues interviewing ‘‘Chris’’ for both the pool crew DPO role. He wrote that ‘‘-he currently does not have the certification for either but both are potentially in hand’’[49]The claimant attended an individual consultation meeting discussion with Ms Amy Boston on the 17th of July. The meeting was minuted. (p200-203) The minutes recorded the position accurately. It was noted that the claimant had not yet applied for the vacant Barge Engineer position in the Pool Crew. The Minutes record: ‘‘You mentioned that due to your responsibility for dependants this type of vacancy is not well suited and that your preference is a regular slot/ position. You described how mobilising very quickly with little notice is not always possible for you given your personal situation’’ Ms Boston Pool Crew personnel are required to mobilise at short notice and to cover lower positions if needed. There was a discussion about leave and that ‘lost’ leave was not automatically paid out as it was the company's preference to exhaust leave at a mutually appropriate time. He was told that is he was the best candidate then the redundancy would stop. It was noted that the claimant’s position was that He was asked to confirm if he was interested in the BE position as soon as possible.[50]On the 19 July 2024 Ms Boston asked the claimant to confirm his position on the Pool Crew vacancy (p211) The claimant emailed Ms Boston on the 22 July (p211): ‘‘Please take this e-mail as confirmation of taking the Pool Crew position. Will I receive a new contract after the trip on the Don? I'd appreciate any more information on the Pool Crew if available’’. Ms Boston responded: ‘‘Sorry for delayed reply thank you for confirming. We'll be in touch during/ towards end of your Don trip with next steps. Many thanks’’[51]The claimant understood that he had taken the Pool Crew position by emailing Ms Boston in these terms. She did not have the authority to allow him to male his temporary assignment a permanent one.[52]The claimant emailed on 22 July ‘‘Notes are all good’’ (JBp218).[53]Mr Sheppard qualified as Chief Mate as of the 31 July 2024. He had over 17 years’ service with the company and extensive drilling experience. The respondent’s management had kept an eye on how he was getting on in relation to obtaining his this qualification. He had advised the respondent that he was confident about passing. He had to resit the stability test a number of times.[54]Mr Shepherd was unsuccessful in his application for a DPO role.[55]He was interviewed for the Pool Crew Barge Engineers role on or about the 23 July. A report of the interview was provided to Mr Sam McDonald (p204).It recommended that he should be retained subject to him getting his Chief Mates certification.[56]On the 21st of August (p221) the claimant received his redundancy notification that his employment was to be terminated effective 21 August 2021. The email recorded that he had been working on temporary assignment. It stated that following the consultation meeting and a review of his suitability for the permanent Pool Crew Barge Engineer position has taken place alongside all other candidates that he had not been considered the most suitable candidate.[57]On the 30 August the claimant emailed asking to appeal the process. Ms Boston responded (p223) that he was not the most suitable candidate and that the role was unique and covered: ‘‘flexibility, adaptability, approach and attitude’’[58]The claimant emailed on 27 August (p224) He stated: ‘‘The letter states I wasn't the most suitable candidate for position, however, I was the only employed Barge Engineer without assignment. There has been one Pool Crew Barge Engineer who started after I started with Stenna. I fail to understand how I would not be the most suitable candidate, having served across the fleet in a Pool position as requested since January. Please could you explain how I have become the only Barge Engineer in the consultation to not being the suitable option’’[59]Mr Sheppard had been in contact with the respondent’s management in July giving them details of his progress in getting his Chief Mates certification ( p259-262) On the 1 July (p260/261) he wrote ‘‘OK I didn't have any files of these dates but using AI to find exam dates and memory this is what I think is correct’’ He then gave details of the various tests and examinations he had failed and passed. He had struggled to pass some elements of the process.[60]On 9 August (p213) Mr Shepherd received a letter that his employment was terminated. He contacted Mr Flynn at home on Saturday morning to advise him of this and to thank him for the opportunities of obtaining the qualifications. Mr Flynn was surprised as the usual process was for imminent redundancies to be intimated to him to allow a termination to be postponed if there was a vacancy or ongoing recruitment. On Monday he spoke to HR and advised them that Mr Shepherd was pursuing an application for the Pool Crew post and had just obtained the necessary qualification as Chief Mate to make him eligible to do so. He did noy yet have a DPO certificate.[61]On 15 August, Mr Shepherd received a letter indicating that the redundancy was withdrawn (p215). The letter indicated that a ‘‘suitable alternative permanent vacancy emerged that we were able to offer you’’. He was appointed Barge Engineer in the Pool Crew.[62]On 20 August, the claimant received an e-mail from Ms Boston that the candidates have been under review over the last couple of weeks. The outcome of that review would be confirmed in writing ‘‘asap’’.[63]On the 12 August Mr Flynn emailed the training department asking for what Mr Shepherd would need in terms of training to work in any Stena vessel as a Barge Engineer (p265). The response (p264) listed the certification he held and what was missing such as DPO certification. Mr Flynn responded: “That's excellent-He has now passed his Chief Mates cert so once he has the cert in hand I'll get you a copy. If you can update his file please. Can we please start planning some courses for him …I’d start with DP basic course and then ECDIS familiarisation ”[64]A meeting took place between Mr Flynn, Ms Boston and Ms Trish Craig, Head of HR, to discuss who would be recommended and approved for the barge engineers post. There was a discussion about feedback around the claimant’s issues regarding mobilisation. Ms Boston told Mr Flynn about the content of the consultation meeting. Mr Flynn had a number of concerns. He noted that the claimant had not initially applied for the Pool Crew post. He did not think the claimant was overly enthusiastic about the role. He noted that there had been some negative feedback about his ability to mobilise quickly. He noted that the claimant's position was that the post was not very suitable for him as he had dependants and that he really wanted a fixed rotational post for personal reasons. Mr Flynn was confident that although he had no data to hand that Mr Shepherd would be able to mobilise quickly because of his lengthy service he would have been required to mobilise urgently at various points in his career and that there was no such adverse feedback about his ability to mobilise. He appeared enthusiastic about the role. He had considerably longer service than the claimant and extensive experience on drilling vessels. He believed that Mr Shepherd would be a steady performer in the role. He concluded that Mr Shepherd should be offered it.[65]The claimant after his redundancy was disappointed to discover a colleague from the Spey Mr Mcluckie had apparently been given the role and was being paid accommodation costs. He was unaware that he had been given the role only on an interim basis and that his interim duties related to acting as a tow master. He remained in this role until a permanent position was found. He was accommodation costs.[66]The Marine Superintendent’s role is a senior role requiring extensive experience in drilling. It was ultimately filled by someone with around 20 years’ experience in a similar role with a large oil company. The company do not pay accommodation costs to the holder of the post. Witnesses[67]I found the claimant to be an intelligent and able advocate in his own cause. He went through the circumstances in great detail. He was generally credible and a reliable historian. Hower, there were some aspects of his evidence that I did not accept. In particular I found his interpretation of events around allegedly being given the Pool Crew Post was not consistent with the contemporaneous emails or the evidence of Ms Boston whose evidence on this matter I preferred. It is true that in hindsight the respondent’s did not fully clarify his exact status on the Pool Crew and perhaps should have indicated more clearly that he had not been transferred there permanently or explain that his assumption that he simply had to confirm his intention to stay there to be appointed as a permanent member was wrong.[68]I found Ms Boston to be a credible and reliable witness who gave straightforward and professional answers to the questions put to her. Mr Flynn was generally credible and reliable in his evidence although I had suspicions that the Tribunal was not being told about everything that was occurring behind the scenes in relation to retaining Mr Shepherd nor was I completely convinced that the issues with the claimant’s mobilisation were as significant at the time of their occurrence as they became in hindsight when used to justify the claimant not being appointed to the Pool Crew role. I also came to the view that he was downplaying somewhat the importance of the DPO certification for a fleet made up almost entirely of vessels using that technology. To downplay the need for a Barge Master to have certification in the system seemed rather to ignore the importance of the Barge Engineer having a sound knowledge of the DPO system his crew operated, to be able to ‘act down’ in that role if needed and the aspirations of the company that the fleet had the best trained and certified personnel compared to its competitors. Submissions[69]The claimant provided detailed submissions. His primary position was that the Tribunal should infer race discrimination from the totality of the evidence before it. He relied on section 136 Equality Act 2010 and on various legal authorities such as Efobi, Madarassy and Nagarajan, to argue that the burden had shifted to the respondent because the facts supported an inference of discrimination.[70]His central submission was that the contemporaneous documents supported his account and contradicted the respondent’s witnesses. He contended that he was effectively working in a Pool Crew role, accepted the Pool Crew position in writing, and was in any event objectively better qualified than Mr Shepherd, who was retained despite lacking qualifications which the respondent allegedly treated as essential.[71]He argued that concerns about his flexibility were raised only after the event and were unsupported by contemporaneous records. He relied on the treatment of white comparators such as Mr Shepherd, shifting explanations, missing documents and absent witnesses. The claimant submitted that the respondent failed to provide a credible non-discriminatory explanation and that the claim should succeed.[72]The claimant then took the Tribunal through the background referring to the correspondence and history. His evidence was at odd with that of Ms Boston and Mr Flynn. He had been invited to apply for available vacancies to avoid the termination of his employment by reason of redundancy. He had expressed an interest in two available vacancies, an onshore Marine Superintendent position and a Barge Engineer position in the Pool Crew. He should not have been excluded from the Marine Supervisor’s role. The company went to great lengths to retain staff except him. He could have carried out this role if provided with accommodation expenses.[73]The claimant was astonished that the Barge Engineer’s role was just given to Mr Shepherd despite him being the incumbent and being markedly better qualified. Respondent’s Submissions[74]Mr Jones first of all dealt with the claim relating to the Marine Superintendent position. The reason that the claimant was not considered for the Marine Superintendent position was because he withdrew his application after learning that the role was based in Aberdeen. He was not misled in any way about the job specification for the Marine Superintendent position. The same job location requirements applied to the successful applicant for that vacancy. Stena makes no contribution to any accommodation costs. He was not in any event experienced enough to fulfil this role. The claimant’s allegation of less favourable treatment is not made out on the facts and, in any event, there was no evidence adduced showing any link between the treatment complained of and the claimant’s race.[75]The claimant was unsuccessful with his application for the Pool Crew position because John Flynn felt that he could not guarantee the flexibility to mobilise offshore at short notice which is an essential requirement of the position. The claimant explicitly told the respondent at the redundancy consultation meeting, as is recorded in the meeting minutes (p201). There had been multiple occasions in 2024 when he had not been immediately available to mobilise offshore on the dates requested by the respondent, and he had persistently expressed his preference for a position with a steady, predictable rotation pattern.[76]The comparison with Chris Shepherd is misconceived. Mr Shepherd was not appointed to the Pool Crew position because the respondent decided that he was a better qualified or more capable Barge Engineer than the claimant. John Flynn decided not to offer the position to the claimant because he had concerns about the claimant’s ability to reliably meet the essential Pool Crew criteria of being able to mobilise at short notice. Mr Flynn’s evidence in that regard was credible and convincing.[77]None of the treatment that forms the basis for the claimant’s race discrimination complaints is linked to the claimant’s race in any way whatsoever. No prima facie case[78]Mr Jones turned to a consideration of the legal position. When assessing whether the claimant has established a prima facie case of race discrimination, the correct approach is for the Tribunal to assess each of the Claimant’s allegations of discrimination separately (Clifton Diocese v Parker [2026] EAT 68).[79]The respondent submitted that the claimant has fallen well short of establishing any prima facie case in respect of any of his complaints of race discrimination. The primary facts would not justify any inference of race discrimination being drawn by the Employment Tribunal.[80]As per Madarassy, the claimant has done no more than assert a difference in race and difference in treatment. There was no evidence adduced which would entitle the Tribunal to draw any inferences that race was the reason for the treatment complained of. Decision that the claimant’s role was redundant[81]The claimant’s position on the Spey was genuinely redundant and that clearly had absolutely nothing to do with his race. The assertion that he was the only person made redundant was factually incorrect as almost half of the employees based on the Spey were made redundant. A decision had been made to dismantle the Spey because of a lack of forthcoming work opportunities and unsuccessful attempts to sell the vessel. All remaining positions on the Spey were therefore redundant, including the claimant’s. A total of 36 employees who were assigned to the Spey were placed at risk of redundancy (p163). The claimant was not the only Spey employee to be made redundant. The Tribunal heard unchallenged evidence from Mrs Boston that 13 voluntary and 14 compulsory redundancies were made.[82]The claimant’s contention that he had been permanently reassigned to the Pool Crew before he was placed at risk of redundancy is disingenuous. The claimant clearly understood the distinction between, on the one hand, temporarily working across the fleet due to the uncertainty affecting the Stena Spey and, on the other hand, being permanently assigned to the Pool Crew. This is reflected in the e-mails that the claimant sent to the respondent’s payroll and HR departments he explicitly stated that he was not a part of the Pool Crew (p167 and 174).[83]The claimant is clearly an intelligent individual and his suggestion that this was not what he meant is not credible. The relevant e-mails were sent by the claimant on 27 June and 7July 2024, which was after he maintains that he had been permanently assigned to the Pool Crew based on the e-mail that he received from Mr Flynn on 8 May 2024 (p152).As the Tribunal heard in evidence from the respondent’s witnesses, there are a limited number of employees who are permanently assigned to the Pool Crew. The claimant was issued with no such contractual terms.[84]There was no evidence that Mr Flynn guaranteed in some way that the claimant’s job was “safe”.In the e-mail that he sent to the claimant on 8 May 2024 (p152). That is the claimant’s subjective interpretation. On an objective analysis, that is not what the e-mail says. Mr Flynn was very clear in his evidence that he would never give any employee assurances that their job was safe when it appeared likely that there would be a requirement for redundancies.[85]Mr Flynn’s comments about continuing to utilise the claimant across the fleet until a permanent Barge Engineer position with a set rotation became available on a specific vessel in the fleet reflected the respondent’s intentions at that time. No final decisions had yet been made about what would happen to the Stena Spey. As Mr Flynn said in evidence, if the Spey had won another contract, the claimant would have returned to the Spey.[86]In the event no permanent Barge Engineer role materialised on any of the other vessels in the fleet and the Claimant remained contractually assigned to the Stena Spey. Mr Flynn’s e-mail did not make any reference to permanently redeploying the claimant into a Pool Crew position.[87]Circumstances changed after Mr Flynn’s e-mail to the claimant on 8 May 2024. It was understandably not economically viable for the respondent to keep all employees from the Spey indefinitely until a suitable permanent vacancy became available. The economic reality is that there had to be a point in time where redundancies were contemplated. As Mr Flynn said in his evidence, the need to make compulsory redundancies was something that the respondent tried to delay for as long as possible. The redundancy process was sttarighfroward.[88]The claimant was in the same position as all other employees who remained assigned to the Spey. The suggestion that this was the product of race discrimination is completely fanciful.[89]It ought to have been clear to the claimant when he was placed at risk of redundancy and attended an individual consultation meeting that his job was not safe. Those events all occurred after the e-mail from Mr Flynn on 8 May 2024. Pool Crew position[90]The claimant’s pleaded allegation is that Mr Flynn did not offer him a Barge Engineer position in the Pool Crew because of his race. That completely ignores the fact that the claimant was employed as Barge Engineer throughout his employment with the respondent and recruited by Mr Flynn.[91]The claimant was initially engaged as an agency worker. The respondent approached him about the Barge Engineer vacancy on the Stena Spey. The claimant was interviewed for the position by John Flynn. The outcome of the interview was that Mr Flynn endorsed the claimant’s application and recommended him for employment, notwithstanding the claimant’s lack of experience in the offshore drilling industry and the fact that he had only completed a limited number of offshore trips as an agency worker (page 140 of the bundle).[92]This all completely contradicts the contention that Mr Flynn harboured any racial prejudice towards the claimant. If Mr Flynn did harbour such prejudice, then it is inexplicable that this prejudice did not manifest itself when the claimant first applied for employment as a Barge Engineer. Mr Flynn was in control of that recruitment process and could easily have decided not to employ the claimant.[93]During his employment with the respondent, the claimant was then given multiple opportunities to act up as a Barge Master and, on one occasion, as an OIM. All of those temporary promotions were approved by John Flynn.[94]The fact that Mr Flynn afforded the claimant significant career development opportunities during his employment with the respondent in the form of temporary promotions is again completely at odds with the claimant’s contention that Mr Flynn harboured racial prejudice towards him or that he was disadvantaged because of his race.[95]There is no evidence before the Tribunal of Mr Flynn ever having made any derogatory remarks to the claimant, let alone any discriminatory ones. There is likewise no evidence before the Tribunal of Mr Flynn having subjected the claimant to any unfavourable treatment prior to the redundancy process.[96]When Mr Flynn was asked to provide comments on the list of employees assigned to the Spey who were at risk of redundancy [p165 ], he commented that he would have liked to retain the claimant. Mr Flynn’s evidence was that if a permanent Barge Engineer position with a set rota had become available on another vessel within the fleet, then he would have had no issue with offering that to the claimant. It was clear from Mr Flynn’s evidence that he regarded the claimant as a very capable Barge Engineer and good performer. That is also borne out by the documentary evidence, including the positive comments that Mr Flynn made about the claimant in his e-mail to the claimant of 8 May 2024 (p152).[97]The claimant had less than two years’ service. Rather than instantly dismissing the claimant when the Spey came off contract, the respondent kept the claimant employed and deployed him across the fleet. The claimant was then fully included in the redundancy consultation process and given a full opportunity to apply for any available vacancies. All of that is indicative of the respondent attempting to avoid making the claimant redundant, rather than there being any plan to dismiss the claimant because of his race.[98]As the Tribunal heard in evidence from both of the respondent’s witnesses, the Pool Crew is a flexible substitution function to provide short notice cover across the fleet. Being available to mobilise offshore at short notice is an essential job requirement of a Pool Crew position.[99]Even if the Tribunal has sympathy with the claimant’s inability to mobilise on those prior occasions or considers that it was unreasonable for the respondent to treat these events as missed mobilisations that, without more, does not give any proper basis for drawing any inferences of race discrimination (Bahl v Law Society). It was not put to Mr Flynn at all in crossexamination that his views about the claimant’s flexibility were influenced by the claimant’s race in any way.[100]The claimant was not told by Ms Boston at the redundancy consultation meeting that he was the only suitable candidate for the Pool Crew position. He was not offered the Pool Crew position by Mrs Boston at that meeting. None of that is recorded in the meeting minutes which were approved by the claimant and in her evidence before the Tribunal, Mrs Boston emphatically denied that any of that was said. Mrs Boston’s evidence was entirely consistent with the approved contemporaneous meeting minutes.[101]The e-mail that Mrs Boston sent to the claimant on 19 July 2024 asking him to revert on the Pool Crew position was clearly sent as a follow up to the prior discussions at the redundancy consultation meeting. As recorded in the meeting minutes, Mrs Boston had asked the claimant whether he wished to be considered for the position rather than offering him the role (bottom of page 202 and top of page 203). As Mrs Boston said in evidence, her remit was to establish whether the claimant was interested in being considered for the role, she had no authority to offer the job to the claimant. The claimant’s response to Mrs Boston’s e-mail that he would take the Pool Crew position cannot unilaterally create an offer of employment when no such offer had been made.[102]The claimant’s position in evidence was that the e-mail that he sent to Mrs Boston purporting to confirm acceptance of the Pool Crew position showed that he had made suitable caring arrangements for his dependent. That was not something that the claimant ever told the respondent. There was no evidence before the Tribunal that the claimant had ever told the respondent that the concerns that he had raised about short notice mobilisation at the individual consultation meeting had been resolved/were no longer applicable.[103]The claimant is also mistaken to suggest that Mr Shepherd lacked the required certification for the Barge Engineer Pool Crew position. Mr Shepherd had achieved his Chief Mate’s certificate when the position was offered to him and the letter rescinding his previous notice of redundancy was issued to him on 16 August 2024 (p215). Both Mr Flynn and Mrs Boston gave very clear and convincing evidence that the notice of redundancy sent to Mr Shepherd on 9 August 2024 (p213) was sent in error, without advance warning being provided to Mr Flynn.[104]By 12 August 2024, Mr Flynn was aware that Mr Shepherd had passed all of his Chief Mates exams (page 264 of the bundle) and was therefore able to sail in the capacity of a Chief Mate. It was undoubtedly clear from the list of credentials supplied by Mr Flynn at the start of his evidence that he is a reliable industry leading authority on the applicable statutory requirements.[105]Mr Flynn clarified that it was an error for the Barge Engineer job description to list a DP Unlimited ticket as both an essential and desirable requirement (page 64 of the bundle). He was clear that this is a desirable rather than an essential requirement. Mr Flynn explained that a Barge Engineer would not be required to sit at a DP console and that this is something which would be done by a DPO or Senior DPO, and that the Barge Master and OIM could also provide cover, if necessary.Mr Flynn’s evidence was that Mr Shepherd was able to work across the fleet as a Barge Engineer without a DP ticket. His unchallenged evidence was that Stena had allowed other individuals to work as a Barge Engineer on DP vessels without a DP ticket, and not just Mr Shepherd.[106]Because Mr Shepherd was assigned to the Spey, which was not a DP vessel, he was unable to achieve a DP ticket whilst working on that vessel. Mr Flynn’s evidence was that achieving an unlimited DP ticket required a couple of short training courses and 60 days of on-the-job training.[107]His evidence was that it was a reasonably easy ticket to obtain. Again, offering alternative employment where any additional relevant training could be easily undertaken is something that a reasonable employer would be expected to do in a redundancy situation to avoid claims for unfair dismissal. Mr Flynn’s evidence was that Mr Shepherd did subsequently complete the necessary training and now holds a DP Unlimited ticket.[108]Mr Flynn’s evidence was that Stena would ensure that appropriately certified personnel covered DPO and SDPO positions and that this is not something that Mr Shepherd would be required to do until he had obtained a DP ticket. Mr Flynn was very clear that this was not an impediment to employing Mr Shepherd as a Pool Crew Barge Engineer or Mr Shepherd working as a Barge Engineer on DP vessels.[109]The claimant’s contention that “different standards” were applied to Mr Shepherd than to him is without substance. This is not a case where both Mr Shepherd and the claimant did not have a DP ticket, with Mr Shepherd being told he could apply for the Pool Crew role but the claimant being told that he could not. Really, the nub of the claimant’s point is that he had a greater level of certification than Mr Shepherd. That does not mean that Mr Shepherd did not meet minimum Stena mandated certification requirements for the job.[110]Mr Shepherd was a long-serving and highly regarded employee. He had 12 years of experience of working as a Barge Engineer and Senior Barge Engineer in the offshore drilling industry with a previous employer. He had far greater experience than the claimant in that respect. His appraisals were excellent and the respondent viewed him as deserving of a promotion to Barge Engineer.[111]The claimant has not proved facts from which, in the absence of an explanation, the Tribunal could conclude that the decision not to offer the claimant the Pool Crew position was an act of race discrimination. There is no evidence that this had anything to do with the claimant’s race.[112]For Mr Shepherd to be a valid statutory comparator all characteristics of the claimant which are relevant to the way his case was dealt with must also be found in Mr Shepherd (Advocate General for Scotland v MacDonald 2003 ICR 937). Unlike the claimant, Mr Shepherd did not indicate that he would have an issue with mobilising at short notice. That is why Mr Flynn decided he was suited to a Pool Crew position. As such, Mr Shepherd is not an appropriate comparator.[113]The claimant also sought to rely on Scott Jarvis as a comparator. Scott Jarvis was employed for the Pool Crew. He was not assigned to the Stena Spey. He was therefore not at risk of redundancy and that is why he was retained. Only individuals assigned to the Spey were placed at risk of redundancy.[114]What was put to Mr Flynn was that he relaxed job requirements for Mr Shepherd because he was white, which is something that Mr Flynn robustly denied. Even if that was something that Mr Flynn was found to have done, and it is submitted that there is absolutely no evidential basis for such a finding, that still does not provide any evidential basis for the Tribunal to conclude that Mr Flynn’s concerns about the claimant’s flexibility were motivated by the claimant’s race. That is simply not something that Mr Flynn was ever challenged about by the claimant when he gave evidence.[115]Relying on Madarassy and Clifton Diocese v Parker [2026] EAT 68, the respondent’s submit that the claimant has done no more than identify differences in race and outcome. There is no evidence linking any treatment complained of to race and accordingly the claims fall to be dismissed. Witnesses[116]I found the claimant to be an intelligent and able advocate in his own cause. He was generally credible and a reliable historian. Hower there were some aspects of his evidence that I did not accept. In particular I found his interpretation of events around allegedly being given the Pool Crew Post was not consistent with the contemporaneous emails or the evidence of Ms Boston whose evidence on this matter I preferred. It is true that in hindsight the respondent’s did not fully clarify his exact status on the Pool Crew should have indicated that he had not been transferred there permanently or that he simply had to confirm his intention to stay there to be appointed as a permanent member.[117]I found Ms Boston to be a credible and reliable witness who gave straightforward and professional answers to the questions put to her. Mr Flynn was generally credible and reliable in his evidence although I had suspicions that the Tribunal was not being told about everything that was occurring behind the scenes in relation to Mr Shepherd retention nor was I completely convinced that the issues with the claimant’s mobilisation were as significant at the time of their occurrence as they became in hindsight when used to justify the claimant not being appointed to the Pool Crew role. That said I could detect no antipathy towards the claimant and indeed the point is well made that he was recruited by Mr Flynn, allowed training and experience opportunities by him and was well regarded. Discussion and Decision[118]The question of who must prove what in discrimination claims has been a vexed and contentious issue that has led to considerable legal commentary on the interpretation of the statutory provisions set out in Section 123 of the Equality Act 2010.[119]Before the burden of proof provisions, the leading authority was King v Great British-China Centre. In that case the Court of Appeal in England held that the Tribunal had been entitled to draw an inference of discrimination as the respondent’s explanations for its treatment had been inadequate and unsatisfactory. This was not characterised as a reversal of the burden of proof rather a balancing of all the relevant factors.[120]It has been recognised that it is often difficult for an employee to prove discrimination of any type. Few employers admit to such discrimination even to themselves. In some cases discrimination will not be ill-intentioned but merely based on an assumption that “he or she would not have fitted in” or someone else will have fitted in better. The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts.[121]At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.[122]After King, the question became the subject of EU law in the form of The Burden of Proof Directive (1997/80/EC). This in turn led to legislative amendments and ultimately to section 136 of the Equality Act 2010.[123]The matter of the burden of proof was addressed in the case of Igen Ltd v Wong. This was a race discrimination claim but the principles apply to all forms of discrimination. It held that it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant. The Tribunal looking at the primary facts before can see what inferences it can draw. Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent. It is a two stage test. It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act. To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on discriminatory grounds. This was then encapsulated in section 136 of the Equality Act[124]After the Equality Act 2010 came into force in October 2010, the Supreme Court was called upon to consider the burden of proof provisions, in the case of Hewage v Grampian Health Board. This expressly endorsed the twostage test which had been laid down in Igen. The Hewage case related to the burden of proof provisions under s.63A of the Sex Discrimination Act 1975 and s.54A of the Race Relations Act 1976. The matter was revisited by the Employment Appeal Tribunal in Efobi v Royal Mail Group UKEAT/0203/16/DA. This related to many unsuccessful applications for ITrelated jobs that the claimant made to the respondent. The Employment Tribunal upheld claims of harassment and victimisation in relation to certain matters, but rejected his other claims, including a claim of direct discrimination in relation to his job applications. The claimant appealed. The EAT allowed the appeal. At paragraph 78, Laing J stated: “Section 136(2) does not put any burden on a claimant. It requires the ET, instead, to consider all the evidence, from all sources, at the end of the hearing, so as to decide whether or not “there are facts etc” (cf paragraph 65 of Madarassy). Its effect is that if there are such facts, and no explanation from A, the ET must find the contravention proved. If, on the other hand, there are such facts, but A shows he did not contravene the provision, the ET cannot find the contravention proved.” This was the first time a claimant has been found to have no burden whatsoever in pursuing a claim of this kind.[125]In the present case the claimant says that there are facts from which discrimination can be inferred. In the case of Ryglewicz v Hanson Quarry Products Europe Ltd a Tribunal concluded that it was remarkable the respondent had no notes of the interviews, as they had been destroyed. The Tribunal expressly referred to the ECHR Code of Practice and concluded that an inference could be drawn. The claimant points to a lack of recorded information, Minutes of meetings and the like in relation to why his application was rejected in favour of Mr Shepherd.[126]It is also valid for the claimant to draw attention to any inconsistency in the respondent's position. The nub issue here is was the respondent's actions unreasonable and if so did that shift the burden .Much depends on the precise nature of any case. It is important not to conflate the reasons given for the treatment with the explanations. The tribunal has to consider whether the protected characteristic was the reason for the respondent's actions not that another non-discriminatory reason is being advanced by the employer. The employer might be discriminating against the employee subconsciously. It i's therefore important to identify the two stage test and then consider what facts have been established at the first stage and whether these are sufficient to shift the burden of proof and if so what is the respondents position.[127]The claimant has a difficulty in that he says that the respondent’s actions were unreasonable and would not have occurred if he was white Scottish/British. But as the case of Bahl v Law Society (2004) EWCA Civ 1070 makes clear unreasonable behaviour in itself does not show a particular type or form of discrimination at play. Marine Supervisers Post[128]The primary facts are that the claimant has shown that he withdrew his interest in a role after being told that no accommodation costs would be paid. The permanent postholder was not paid accommodations costs nor was tit the employers custom to pay for accommodation for permanent postholders. There is nothing indicative or suggestive of race discrimination.[129]The evidence suggest that the claimant’s interest in this post was driven by the lack of other more suitable alternative vacancies and that as someone who had only relatively recently moved into the world of oil drilling he would have been considerably inexperienced in the role. He recognised this himself indicating that he would need training. It was clear from the evidence that the post is usually held by a senior figure with considerable drilling experience such as the present incumbent. However, the claimant points to the fact that he would have pursued his interest if he had his accommodation costs paid. I accepted the evidence of the respondent’s witnesses that they only pay accommodation costs rarely and only as a temporary arrangement and not to someone who accepts a permanent onshore role. The current postholder gets no payment towards his accommodation costs. What has complicated the position was that Mr McLuckie an OIM was asked to cover the role on an interim basis while the successful applicant served his notice. He was asked to do because a requirement came up to use his experience as a tow master this is a specialist marine role involving towing vessels and moving/positioning rigs. The claimant’s suggestion that was it not for his race he would have been offered accommodation costs and allowed to carry out the role is not rooted in the reality of the situation. If he compares himself to Mr McLuckie he does not have his experience in towing vessels. He cannot compare himself to the current postholder in terms of knowledge and experience. The facts are simply that he withdrew his interest in the post as no accommodation costs would be paid to him or to another full time postholder. Barge Engineer Post[130]The first issue was whether the claimant was entitled to regard himself as having been already appointed to the Pool Crew as Barge Engineer. His position on that matter was untenable. A fair reading of the overall situation and in particular of Mr Flynn’e email of the 8 May (p152) shows that he was being used across the fleet as if was in the Pool Crew. He had never been permanently appointed to a Pool Crew position which would have required higher authorisation. The claimant’s own correspondence with Payroll despite his best efforts to interpret the words he had used as not meaning what they clearly say shows that this was his understanding as well. His attempts to argue that the respondents had accepted his stated position that the Barge Engineer post and his job was safe were unfortunately not immediately rebutted at the time. I accepted that there were various reasons for this principally that Ms Boston and the HR department were very busy dealing with the consultation and redundancy exercise and did not pay as much attention to the correspondence as they should in retrospect have done. But the fact is that the claimant was not told his job was safe but he had been led to believe he would have a bright future in the company and that is certainly what was hoped for.[131]It is important to bear in mind that there clearly was a redundancy situation and that the pool for selection for redundancy was the group of employees such as the claimant assigned to the Spey. This is not a claim for unfair dismissal where the fairness of the selection and process can be judged against the reasonableness of the employers actions. The issue boils down to why the claimant was preferred to Mr Shepherd for the only available post that of Barge Engineer in the Pool Crew. The claimant should also bear in mind that as he had less than 2 years service the respondent could have simply given him notice of termination of his employment. The respondents did not use this argument but it would have been cheaper for them to do this and not make Mr Shepherd redundant because his long service would have meant a relatively high redundancy payment and notice.[132]I would observe that if there were material concerns, as Mr Flynn articulated, about the Barge Engineer being able to mobilise quickly it is odd that the matter does not seem to have been directly raised or recorded when Mr Shepherd was interviewed. The notes are silent on that matter except that he did not ‘‘mind the prospect’ of working there. Mr Flynn was of the view that as there had been no reported concerns about his ability to mobilise in the past then this showed that he would have no difficulties. Given the importance attributed to this matter I found it difficult to understand why issues around caring for dependents and such commitments was not explored especially as such responsibilities often change throughout life.[133]The claimant was also able to point to a lack of any records about the assessment made of the two competing applications and who was involved. We heard evidence about the matter and how Ms Boston appraised Mr Flynn about the consultation meeting. Any assessment seems to have been brief and Mr Flynn conscious of the possible issues around mobilisation for the claimant as compared to what he regarded as a ‘safe pair of hands’ in Mr Shepherd indicated that the claimant was unsuccessful. These matters might be seen as supportive of his argument that the respondents were acting unreasonably (the absence of formal records of the decision did assist them in this) but unreasonable behaviour is insufficient, without more, to suggest that the decision to give the post to Mr Shepherd was motivated by race discrimination either consciously or unconsciously.[134]The claimant made sone strong points about the process that unfolded. As Mr Jones pointed out this was not an unfair dismissal claim. The claimant throughout stressed that he was the most able and technically proficient candidate. That, however, ignores the fact that Mr Shepherd had considerably more experience in drilling and in working for the respondent company in the North Sea. He was perhaps also seen as being more enthusiastic about the role and had no question marks over his ability to mobilise quicky. As was noted in the case Advocate General for Scotland v MacDonald 2003 ICR 937 a comparator must have all the relevant protected characteristics of the complainant which are relevant. And these factors were undoubtedly relevant.[135]There is no doubt that the claimant has a palpable and genuine sense of grievance. However, that is insufficient to make a successful claim whatever his suspicions. There has to be primary facts from which race discrimination can be inferred to shift the burden to the employers. The claimant did not have statistical or other evidence to assist him. He could only point to the seeming unfairness of the decision to appoint someone else to the Pool Crew post rather than himself and in the end this is not enough. The claims are accordingly dismissed.