Dr M Yousef v Offshore Renewable Energy Catapult: 8002222/2024 Dr M Yousef v Offshore Renewable Energy Catapult: 8002222/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8002222/2024Venue GlasgowHearing 16 – 20 June 2025
Between
Dr M YousefClaimantOffshore Renewable Energy CatapultRespondent
Before
Employment Judge CampbellMr A Crammond (instructed by Counsel) for respondentDate 4 August 2025
JUDGMENT
[1]The claimant was not directly discriminated against, harassed or victimised;[2]No unlawful deduction was made from wages in respect of the respondent’s non-payment of a bonus to him in July 2024;[3]The respondent did not breach the claimant’s contract at common law in respect of its non-payment of a bonus to him in July 2024; and[4]The claim is dismissed.
REASONS
[1]This was a claim by a former employee of a company in relation to two issues or processes, one arising in early 2023 and the other in July 2024.[2]The claimant represented himself and Mr Crammond represented the respondent. The parties had prepared a joint bundle and numbers in square brackets below are references to the page numbers of the bundle.[3]The claimant gave evidence first. The respondent led the following witnesses – Pamela Nichol-Littlejohn (Director of People), Tom Quinn (Head of Analysis and Insights), Peter Macdonald (Head of Engineering – Development & Operations), Andrew Macdonald (Director of Development and Operations) and Audrey Bowie-Cameron (Head of Projects).[4]The parties both provided very helpful written closing submissions which were considered carefully in the preparation of this judgment. The parties are thanked for the manner of conduct of their respective cases, which assisted the tribunal in line with its overriding objective.
Relevant law
[5]The relevant statutory provisions together with some applicable case law authorities are referred to in the sequential discussion of each legal complaint below in the section titled ‘Discussion and decision’. Legal issues[6]The issues for the tribunal to decided were identified at a case management hearing on 11 February 2025. The parties confirmed that those were still the relevant issues to be decided. They are not repeated here verbatim but are dealt with in sequence in the section below titled ‘Discussion and decision’. In summary, there were complaints of: 1. direct discrimination based on race under section 13 of the Equality Act 2010 (‘EqA’), 2. harassment based on race under section 26 EqA, 3. victimisation under section 27 EqA, 4. unlawful deduction from wages under section 13 of the Employment Rights Act 1996 (‘ERA’) and 5. breach of contract at common law. Findings of fact The following findings were made as relevant to the issues to be decided, based on the evidence provided and on the balance of probability.
Findings of fact
[1]The respondent is a company which is partly publicly and partly privately funded, with the purpose of assisting businesses in the offshore renewable energy sector. It also conducts research and testing functions. It falls within a restricted category of companies permitted not to use the word ‘Limited’ in its name.[2]The claimant was engaged as a Techno-Economic Analyst, beginning his service on 1 November 2022. He resigned by letter on 7 June 2024, giving notice which took effect on 4 September 2024. He initially reported to a Mr Charlton Bannister as his manager, who in turn reported to a Mr Tom Quinn. Mr Bannister left the respondent’s service around August 2023 and from then on the claimant reported to other managers. The claimant mainly worked remotely, from home.[3]For the purposes of his claim and in relation to race as the term is used in the EqA, the claimant identifies as being Arab.[4]The claimant was issued with a written statement of his terms of employment (referred to as his ‘contract’ in this judgment) which he signed on 23 August 2022 [87-99].[5]Some particular provisions in the contract are of importance in the claim. Those are as follows:a. Clause 2.2 – this stated that the first three months of the claimant’s employment would be a probationary period, which could be extended by up to three further months. His performance and suitability would be monitored in that time, and he would be told at the end of the period if he had successfully completed it;b. Clause 4.1 – this said that the claimant’s place of work was at the respondent’s Glasgow address or such other place as the respondent decided;c. Clause 5.4 – the respondent confirmed that it operated a discretionary ‘performance related pay’ (i.e. bonus) scheme which could result in a payment of up to 10% of salary based on the performance of both the respondent and the employee. Advance notice of any payment would be given and it would be ‘purely discretionary and not form part of your contractual remuneration under this agreement’. Payment on any occasion did not oblige the respondent to make a payment thereafter.[6]The details of the bonus scheme were set out in the respondent’s ‘Total Reward Policy & Procedure’ (referred to in this judgment as the ‘Policy’). This was hosted on the respondent’s intranet and available to view there by all staff.[7]The terms of the Policy changed over time and the version hosted on the intranet would be amended or replaced to reflect that. In particular it was changed in the following ways:a. It was updated in October 2022 after apparently having been initially drafted in June 2022. The nature of the change was not clear, but the updated version was produced [432-447]. The criteria for bonus eligibility were that employees beginning their service in the year of payment or leaving before the date of payment in a given year (normally July) would not be eligible.b. It was updated again on 25 November 2023 [146-165], although unfortunately those details were not added to the modification record on the cover page, which still showed the last update as October 2022. There was a change to the bonus eligibility criteria so that employees working their notice period on the July payment date would not be eligible.c. It was further updated on 18 July 2024 [106-121]. Again the modification record was not updated. There was not change to the eligibility criteria for a bonus in this version, but some details in relation to healthcare benefits were reworded.[8]The claimant was made aware of the existence of the Policy during his induction. A PowerPoint presentation delivered to new joiners included a slide summarising the eligibility criteria. The slide was not changed when the Policy was revised in November 2023, and did not clarify that employees on notice at the date of payment would no longer be eligible. No further notifications of changes to the Policy were directly sent to him or other employees.[9]Having begun his employment on 1 November 2022, the claimant’s contractual probationary period ran until the end of January 2023. He completed four-week and eight-week reviews with Mr Bannister without any issues arising. His feedback was positive. There was no further communication about his probation until Mr Bannister emailed him on 26 February 2023 about a number of subjects, in which he asked the claimant to arrange a meeting between the two to review the claimant’s performance and set some objectives for the next year. Mr Bannister then said it would be better for Mr Tom Quinn, a more senior manager, also to be involved and the location was changed to the Glasgow office and scheduled for 13 March 2023. The claimant prepared some notes and suggested objectives in advance.[10]The meeting began by the managers saying there was good and bad news – they had decided to extend the claimant’s probationary period but he would be given a chance to meet the requirements of the role in that time. The reasons given were that he was not fulfilling his full contractual hours, he was not contactable, was taking excessive breaks and the quality of his work was not up to standard. He would need to work in the Edinburgh office twice per week and have his work monitored more closely. A letter from Human Resources would be sent confirming the position. The claimant felt taken by surprise and that he was not being allowed to respond to the criticisms being made with his own comments. He felt he was interrupted when trying to do so. To an extent this was so as the two managers had an impression the claimant did not accept critical feedback well, and wished to avoid a debate on the points they were making.[11]The claimant did not receive a letter confirming what had been covered in the meeting. He contacted HR two days later to ask for the suggested letter, but one did not follow. Mr Bannister asked him to schedule a meeting to review matters at the end of the probation extension, on 12 June 2023 – i.e. three months on from the meeting.[12]Being dissatisfied with how things were handled in the meeting and immediately following, the claimant raised a complaint by email on 16 March 2023 [194-199]. He had an informal meeting with two members of HR, Lynsey Atkinson and Daniel Maxwell to discuss how he wished the complaint to be handled. He confirmed that he wished this to be treated as a grievance. Ms Atkinson confirmed to him that the extension to his probation would not be happening and he was now being treated as having successfully completed it within the initial three months. This was to be confirmed in writing (but in the event through oversight was not).[13]Peter MacDonald was nominated to hear the claimant’s grievance and the two met with Mr Maxell also present on 23 March 2023. Notes taken by Mr Maxwell were converted into a written record which the claimant confirmed was a suitably accurate summary of the meeting. Mr MacDonald also confirmed, at the outset, that the claimant had successfully passed probation. Having noted the issues raised by the claimant he met with Mr Quinn on 27 March and Mr Bannister on 29 March 2023 before issuing his decision to the claimant by letter on 11 April 2023 [248-252]. In summary, Mr MacDonald upheld the claimant’s complaints about the criticisms he had received in the meeting of 13 March 2023 and the proposed extension of his probation. He found no grounds for believing that the claimant could not be managed by Mr Bannister and Mr Quinn going forward, and said that existing working arrangements would remain unchanged, including twice-weekly working in the Edinburgh office. He planned to meet with Mr Bannister to discuss management of the claimant from that point on.[14]The claimant appealed against the grievance outcome. He sought various outcomes including apologies from Mr Bannister and Mr Quinn, disciplinary proceedings against them, a change of manager and not to have to work in the Edinburgh office.[15]Andrew Macdonald was identified to deal with the claimant’s appeal. Both met on 25 April 2023 to discuss the claimant’s points. Ms Atkinson was also present, took notes and prepared a written record. In relation to the instruction to work two days in Edinburgh, the claimant sad that he did not have a problem in general, but it was a way in which he was being treated differently from his colleagues as nobody else was required to do that. Following that meeting Mr Macdonald met with Mr Bannister and then reached a decision in the appeal. He confirmed that by letter dated 9 May 2023. He noted that the original decision had gone in the claimant’s favour but attempted to provide further details in response to the claimant’s ongoing concerns. In particular, he stated that he did not find any evidence that the instruction to the claimant to work from the Edinburgh office two days per week was discriminatory, and believed it to have been well-intentioned.[16]The claimant confirmed in evidence that he did not believe that the way that either the original grievance or the appeal were handled involved discrimination or harassment.[17]The issuing of this letter marked the end of the respondent’s process for dealing with the grievance.[18]It was agreed by all parties that matters settled down after the conclusion of the grievance process. No further issues with the claimant’s performance were documented or raised, and he and Mr Bannister were able to work effectively with each other until the latter left the business later that year.[19]On 18 April 2024 Mr Quinn emailed the claimant to attach a letter which confirmed his new salary following review, effective as of the beginning of that month. The email said ‘Letter with bonus details to follow…’. It was normal practice for the respondent to confirm to those deemed eligible for a bonus that they were being awarded one, and the amount. Those who were not awarded a bonus tended not to get a letter at all.[20]The claimant explored alternative employment options outside of the respondent in 2024 and secured a role with another employer around June. On 7 June 2024 he emailed Ms Nichol-Littlejohn to confirm that he was resigning with notice to run to 30 August 2024 (although in the event his service ended on 4 September 2023). He completed a leaver’s questionnaire [410-414]. He gave his main reasons for leaving as better salary, better benefits and career progression. He indicated that working environment or culture was a secondary reason. Given the option to say whether the reason for leaving was ‘due to a result of discrimination’ or ‘due to lack of inclusivity’ he confirmed no. He rated his relationship with his line manager as five out of five.[21]The claimant received his July 2024 payslip on the 24th of that month and noted that it did not include a bonus payment. He contacted a member of the HR team by Teams to ask for clarification and was told that he was not eligible because he was serving his notice period. The individual referred to the Policy as the source of this rule. The claimant said that was news to him and asked when the Policy had been changed. He was told October 2022, although that was an error caused by the cover page of the Policy not reflecting the November 2023 update (or for that matter the 18 July 2024 update, albeit that did not change the term in question). The claimant requested and was sent a copy of the Policy.[22]The next day the claimant emailed Ms Atkinson. He said that he had checked the Policy in May and June and it contained the previous eligibility wording, which would not have excluded him by virtue of being on notice. He mentioned that he had been told the day before that the Policy had been updated in October 2022, but attached a screenshot showing that it had last been updated on 18 July 2024 (which was correct, but not to amend the bonus eligibility wording at that time). He also mentioned that he had contacted two former colleagues who had been paid a bonus the previous July despite being on notice. Although he did not appreciate this at the time, that was consistent with the wording only being changed in November 2023, i.e. after those people left the business.[23]This email resulted in exchanges between the claimant and Ms NicholLittlejohn who took up the matter as Ms Atkinson was on leave. She contacted the head of the respondent’s Information, Communication and Technology (ICT) team, Daniel Hindmarsh, who confirmed that the bonus eligibility change had been implemented at least as far back as 24 November 2023 and that was the version available to view on the intranet thereafter. That version was retrieved from the recycle bin and uploaded to the intranet again (alongside the later version revised on 18 July 2024) so the claimant could view it. Mr Hindmarsh had told her that the claimant would have seen the November 2023 version had he checked it in May or June of that year. There was a digital log of the claimant accessing the policy on 21, 24 and 26 June and 26 July 2024. At this time it was picked up that the cover sheet had not been updated to show the two revisions since October 2022. That was explained.[24]The claimant did not accept that explanation as he believed the 2023 and 2024 versions of the Policy were identical in all respects (although the screenshot he provided as evidence of this showed a side-by-side comparison of the bonus eligibility wording only and not the whole Policy). The respondent did not accept that both versions were completely identical. The claimant raised further points including that, unlike with other policy changes, he had not been directly notified of any changes to the Policy since he started in his role. Ms Nichol-Littlejohn replied to concede that the process of charting the revisions to the Policy had not been as clear as it could have been, but the changes had nevertheless been made, and in any event the respondent had discretion both to change the Policy rules and to decide whether an employee would receive a bonus in any given situation.[25]The claimant remained dissatisfied and raised a grievance by email on 8 August 2024. Ms Atkinson again asked Peter MacDonald if he would look into it, and he agreed. Mr MacDonald read the grievance grounds and met with the claimant to understand better the concerns. He was sympathetic as he had also not noted the change to the Policy between the 2023 and 2024 payment dates. He spoke to Mr Hindmarsh who showed him on a screen what were the different versions of the Policy and when they had been available to view on the intranet. He also spoke to Ms Nichol-Littlejohn. She confirmed that the change to the eligibility wording had been made consciously by the respondent. She also verified that four employees were working notice when the July pay date fell, and that three (including the claimant) did not receive a bonus. The fourth, a Mr Wilson, received a bonus but only because he emailed his resignation at 3.36pm on 23 July 2024 when the payroll had been closed and payments authorised to the respondent’s bank before 10.38am that morning. Ms Nichol-Littlejohn had discussed with others the possibility of trying to recover that money from Mr Wilson, including by way of deductions from his final salary payments. It was considered that the respondent had contractual power to do so but that it would be problematic to raise and possibly enforce, and so this would not be done. The two individuals who did not receive a bonus through being on notice were Ms Atkinson and a Mr Leigh, who resigned on 3 and 21 June 2024 respectively. Both were white and British.[26]Mr MacDonald confirmed his decision by letter dated 28 August 2024 [363- 365]. He did not find that the claimant should have been paid a bonus in July 2024, or should at the time of writing his letter be paid a bonus.[27]The claimant appealed by email the following day and Ms Audrey BowieCameron was asked to oversee the process. She met with the claimant on 3 September 2024, the day before his service ended. She then spoke to Mr Hindmarsh, a Quality Manager Mr Robson and Ms Nichol-Littlejohn. She issued her decision on 13 September 2024 [382-386]. She did not accept that the claimant was entitled to a bonus or had been treated inconsistently compared to others.[28]As with his grievance the previous year, the claimant did not allege that the way that this grievance was dealt with involved discrimination under section 13 of EqA.[29]The rules of the Scheme gave an indication of how bonus would be calculated. It was a percentage of the previous year’s salary based partly on how well the respondent considered it had performed as a business and partly on individual performance as assessed through the PDR process. As such the claimant was able to calculate that had he received a bonus in July 2024, it would have been £3,511.22 gross. The respondent accepted the calculation was correct. Discussion and decision Time bar – section 123 EqA[30]The starting point when dealing with issues of time bar is section 123(1) EqA which states as follows: ‘123 Time limits (1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.’[31]It had been decided at a previous stage in the claim that the question of time bar should be dealt with at the full hearing of the claim. This is often the best approach given the tribunal’s overriding objective, because often only by hearing all of the relevant evidence can questions such as whether there was a continuing act or series of similar acts be most fairly determined.[32]Other questions which may arise are often best addressed at a full hearing for the same reason, such as whether it is just and equitable to decide any complaints on their merits which are technically time-barred. This often involves exploring questions such as why the complaints were not raised earlier when they would have been within time, why the complaints were ultimately raised when they were, what was the claimant’s degree of knowledge of the relevant law and tribunal process, what advice and assistance if any they received at various points in time, and what are the actual or provisional merits of the late complaints they wish to have decided. Even if earlier complaints do not relate closely enough to later ones to form a continuing act, there may be relevance in the similarities and differences between them.[33]An employment tribunal has a wide discretion to extend time under section 123(1)(b). However, the starting point should always be that the primary time limit of three months should be applied. Only if it is just and equitable to extend time should that happen.[34]Neither party is subject to a burden of proof in relation to the issue, although a decision to extend time must be based on some relevant material or facts. That need not necessarily be provided by the claimant in such a case, although often this will happen as they are the party seeking the exercise of the discretion.[35]A helpful list of factors to consider was provided in the cases of British Coal Corporation v Keeble [1997] IRLR 336 and DPP v Marshall [1998] IRLR 494, namely:a. The length of and reasons for the delay,b. The extent to which the cogency of the evidence is likely to be affected by the delay,c. The extent to which the respondent had co-operated with any requests for information,d. The promptness with which the claimant acted once they knew of the possibility of taking action, ande. The steps taken by the claimant to obtain appropriate professional advice once they knew of the possibility of taking action.[36]Further or more specific potentially relevant factors identified in other cases include:a. The provisional merits of the complaint,b. The degree to which the claimant had knowledge of the relevant rules or the assistance of people with such knowledge,c. The existence of and reasons for any delay in a claimant gaining knowledge of the relevant details of their complaint, such as the existence of a comparator or differing treatment, andd. Any instance of the respondent concealing information or misinforming the claimant as to relevant facts.[37]However, it has been made clear in subsequent cases that there is not a closed or definitive list to be slavishly followed. Some factors will be more relevant in a given claim than others.[38]There is no onus on a claimant to provide reasons why the complaint was not presented on time, although it will normally be helpful for them to do so. The tribunal can take into account anything it believes to be relevant and it has a wide discretion.[39]The claimant began ACAS Early Conciliation on 2 October 2024, which ended on 1 December 2024. He submitted his claim to the tribunal on 28 December 2024. Going by those dates and applying the relevant rules, any act complained of occurring before 3 July 2024 would be out of time, unless part of a continuing act (i.e. ‘conduct extending over a period’ within section 123(3) of EqA) which carried on beyond that date. This meant that his complaints in relation to the probation extension and his managers’ behaviour around that time were provisionally time-barred, but the claim in relation to non-payment of bonus was within time.[40]The tribunal considered first whether those earlier events could be linked to the later ones as a continuing act. From the claimant’s perspective he perhaps perceived them that way as from his point of view they both involved him being treated differently and less favourably. However, when objectively viewed this is not how matters appeared. Firstly, there was a substantial time gap between the events in which there was no evidence of the claimant perceiving he was unfairly treated. What evidence there was suggested that, after the extension to his probation and connected measures were reversed through the grievance process, things settled down and there were no issues on either side relating to the claimant’s performance or how he was managed. This covered the period of the issuing of the grievance appeal outcome on 9 May 2023 until the non-payment of a bonus on 25 July 2024 – over a year. Secondly, the individuals concerned were different. In 2023 they were Mr Bannister, who had ceased to be the claimant’s manager and left the business altogether by around July 2024, and Mr Quinn who was also not involved in the process resulting in the non-payment of the bonus. The nature of the issues complained about was different also, in that the first set was about how he was personally treated whereas the second involved the application of the rules of an existing policy to him.[41]There was therefore not a continuing act which connected the 2023 issues to those arising in 2024. The former complaints were therefore out of time and the tribunal next considered whether it was possible and appropriate to extend the time limit for presenting them so that they could be decided on their merits.[42]The tribunal considered the reasons the claimant gave for not submitting a complaint about the 2023 matters sooner. Those were that(i) he wished to allow matters at work to settle down after his grievance had concluded,(ii) he feared for his position in the business if he raised a claim, at a time when he and his partner were trying to buy a property,(iii) unspecified family and health issues(iv) being unaware of the specifics of the process and time limits involved,(v) not having support or representation from anyone with that knowledge and(vi) being led by the wording of the appeal outcome letter to think that no further process was available to him, even outside of the organisation. Under cross-examination he accepted that there was no reason why he could not have contacted a Citizens Advice Bureau in 2023 as he did in 2024, but repeated that he chose not to pursue the question of whether he could make a claim further as he feared he would lose his job if he did.[43]In submissions the respondent argued that the delay was substantial, the claimant’s reasons for not raising a claim earlier were not adequate and that the claimant had enough knowledge and intelligence to know his position legally, or at least to go and research it. It also argued that there was little or no prejudice to the claimant in excluding any time-barred complaints because part of his claim would still proceed. There would be more prejudice to the respondent if the late claims were considered, because it would have to answer again allegations which the claimant had received a response to at the time and drawn a line under, and from a practical point of view Mr Bannister was no longer in its service (although no evidence was provided as to whether the respondent had attempted to have him attend the hearing).[44]The tribunal considered all factors which appeared relevant to this issue and reached the view that it was just and equitable to extend time and decide the time-barred complaints. Although over a year had passed since the last date when they would have been within time, and notwithstanding the fact that the claimant could have acted earlier in 2024 when he did decide to pursue a claim, the factors most in favour of extending time were:a. The claimant had given reasons for not raising a claim in 2023 which were not challenged by cross-examination as being irrelevant or false;b. At least some of those reasons appeared credible, particularly in relation to the claimant’s lack of specific knowledge of the requirements of making a claim, the absence of an advisor and the concern over his job security given his short period of service and loss of trust in his managers;c. There was in the event no apparent disadvantage to the respondent through the unavailability of witnesses or degradation of evidence as a result of the additional passage of time. There was contemporaneous documentation of the key exchanges. Mr Bannister’s absence appeared to cause the respondent no disadvantage, primarily as the complaints the claimant made about his treatment at that time were essentially admitted by Mr Quinn and upheld through the grievance process.[45]The time-barred claims were therefore admitted by extending the time for presenting them to the date when the claim was actually presented, and decided on their merits below. Direct race discrimination – section 13 EqA[46]A worker will be directly discriminated against if they are treated less favourably than their employer treats, or would treat, another person because of the protected characteristic relied on – section 13 EqA.[47]This involves considering how the claimant was treated compared to how a real comparator was treated, or how a hypothetical comparator would have been treated. In either case the comparator will not have the protected characteristic but otherwise be in materially similar circumstances.[48]The onus of proof initially falls on a claimant to show discrimination occurred. If there is evidence which would allow the tribunal to conclude in the absence of any other explanation that it did, the tribunal will make that conclusion unless the respondent shows that it did not – section 136 EqA. In other words, if a claimant can provisionally show that they were less favourably treated than their comparator because of the protected characteristic they rely on then the onus of proof shifts from them to the employer to show that discrimination has not occurred – because it did not happen at all, or because what did happen was not ‘because of’ the protected characteristic. If the employer does so, for example by providing stronger evidence that the less favourable treatment was for a non-discriminatory reason, the claim will not succeed. If the respondent cannot discharge that onus of proof then the claim will succeed. To shift the onus in this way a claimant must establish ‘primary facts’ of discrimination – this means ‘something more’ than just the existence of the protected characteristic and some form of unequal treatment - Madarassy v Nomura International plc [2007] IRLR 246.[49]This statutory rule has been discussed and its application further clarified in a line of cases including most notably Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332, Igen Ltd and others v Wong and others [2005] IRLR 258, Hewage v Grampian Health Board [2012] IRLR 870, Royal Mail Group Ltd v Efobi [2021] UKSC 33 and Madarassy above.[50]The tribunal therefore considered the following for each complaint of direct race discrimination:a. What is the alleged less favourable treatment related to race,b. Who is the comparator,c. Is there evidence which provisionally shows that, in the absence of another explanation, that less favourable treatment occurredd. If so can the respondent show that the less favourable treatment did not occur – at all, or at least because of race.[51]The first allegation according to the list of issues was that Mr Bannister had spoken to him in an aggressive manner and using an inappropriate tone, telling the claimant he expected more of him. The claimant clarified that this conduct allegedly occurred on three occasions, 13 January, 20 January and 3 February, all 2023. The claimant did not identify an actual comparator in this complaint.[52]The documentary evidence from around the time, in the form of emails and Teams chats, showed a general picture of Mr Bannister requesting certain pieces of work from the claimant and giving feedback on those. The tone is respectful and friendly. The claimant’s email to Mr Bannister on 13 January 2023 [171] and the reply he received and acknowledged four days later [172] were reliable evidence of there being a meeting between the two on the earlier of those dates. Both agreed that there had been ‘miscommunication’ between them as to Mr Bannister’s expectations in relation to a report the claimant was to prepare (referred to as the ‘grid report’), and both appeared to find the email exchange helpful in clarifying the perspective of each and clearing the air. They were written in an amicable tone. Those emails are not direct evidence of the meeting which proceeded them, but gave a sense that Mr Bannister had become frustrated with what he saw as a lack of progress and had voiced this, at times in direct terms. This did not in itself amount to ‘aggressive’ or ‘inappropriate’ conduct, but the tribunal accepted that the claimant viewed it as such, hence he felt the need to follow up with his email and also to speak with Mr Quinn, as he said he did. Ultimately the tribunal only had the claimant’s oral evidence to rely on and this was accepted.[53]Whilst, therefore, the claimant was able to establish evidence of unfavourable treatment, it was not evidence of less favourable treatment than a comparator and it did not suggest race was a factor. There was no such evidence. In any event, there was positive evidence suggesting that the claimant had not been less favourably treated than any comparator. The email from Mr Bannister above, and the oral evidence of Mr Quinn, showed that Mr Bannister was an inexperienced manager who had not fully appreciated the extent of the task he had set the claimant and not been sufficiently clear about his expectations. This was accepted to be the reason for any inappropriate or aggressive conduct at the meeting, and it was not connected to race. A suitable comparator would have been a white Scottish employee with the same experience and qualifications as the claimant, who began working for the respondent at the same time and who had been set the same task in the same way. All of the evidence pointed to Mr Bannister behaving the same way as he did with the claimant in that scenario.[54]The allegation relating to 20 January 2023 concerned a Teams meeting. There were no documents to support what had happened. The claimant alleged that Mr Bannister was ‘aggressively shouting’ and not allowing room for discussion. It was suggested that he told the claimant he had high expectations of him which were not being fulfilled, and that the claimant should not need so much management and ask so many questions.[55]This was another discussion about the progress of the grid report. The claimant said that Mr Bannister had criticised him over lack of progress in preparing it. The claimant’s response was that Mr Bannister had repeatedly asked him to expand its scope beyond the initial remit. What began as a brief which could be covered in a six-page report had grown to around sixty pages. The claimant confirmed that he was working on a number of other tasks at the time which Mr Bannister did not take issue with.[56]As with the allegation in relation to the meeting on 13 January 2023, the tribunal considered the claimant’s evidence within the context of the working relationship between him and Mr Bannister as a whole. At that level it was cordial and productive, involving regular positive feedback. The tribunal again accepted the claimant’s unchallenged evidence that Mr Bannister had become frustrated during the Teams meeting on 20 January 2023 at what he perceived as insufficient progress with the report and voiced some criticisms of the claimant’s way of working. Again however there was no evidence that the claimant was being, or would have been, treated less favourably than another person managed by Mr Bannister, let alone because of race. The evidence suggested that the reason for Mr Bannister’s conduct was the same as for the previous meeting and a comparator, who would also be the same, would not have been treated any more favourably.[57]The third incident, said to have happened on 3 February 2023, was that Mr Bannister called the claimant and said he was unhappy about him saying he might need to take leave to deal with an ill family member. In this conversation Mr Bannister again reputedly said that the claimant was not making enough progress with his work or meeting high enough standards.[58]Once more the tribunal was prepared to accept the claimant’s evidence of the conversation. Again however it gave no indication that the claimant was being treated less well than a real or hypothetical comparator, and did not suggest any difference related to race. It was a further expression of Mr Bannister’s frustration at what he saw as a lack of effort by the claimant to prepare the grid report. Whether or not his disappointment was justified, that was his reason for treating the claimant unfavourably in the discussion.[59]The second allegation of direct discrimination was that in his meeting with Mr Bannister and Mr Quinn on 13 March 2023, he was told(i) that his probation period would be extended, that(ii) he did not act professionally or work to the required standard, and also that(iii) he was not allowed to respond to these statements. The third allegation was that, following the meeting, the claimant was not sent any written confirmation of what had happened in the meeting or its outcome.[60]The tribunal was conscious to remember that it was not scrutinising the respondent on how reasonable a process it followed in a general sense. It appreciated that the claimant felt somewhat blindsided by first the cancellation of the original PDR meeting with Mr Bannister alone and then the rescheduled meeting in a different office, involving Mr Quinn and criticism which he did not anticipate. However, unless any of the conduct of his managers was discriminatory then the tribunal could not judge it.[61]The claimant nominated an employee named Jamie Platts as a comparator in this complaint. Mr Platts had a different and slightly less senior role but was also an Analyst working for Mr Bannister at the same time as the claimant. He was white and Scottish. He started employment with the respondent around February 2022 and was subject to a three-month probationary period, but was not managed by Mr Bannister at that time. Mr Bannister joined the respondent around August of that year.[62]As with the first allegation, the claimant’s evidence was essentially accepted. It was not challenged to any fundamental degree by Mr Quinn in his own evidence, and the grievance and grievance appeal hearers accepted that a correct process had not been followed.[63]The claimant’s chosen comparator, Mr Platts, was not a valid comparator for the purposes of section 13 because, although he had joined not long before the claimant and been subject to a three-month probation period, he had not been managed by Mr Bannister. There was also no evidence of how he had performed against his manager’s expectations during those first three months. And further, the requirements of his role would have been different from those of the claimant’s. It could not therefore reliably be said that he was treated more favourably than the claimant by not having his probation period extended because of race. The onus on the claimant was to at least provisionally show this, but there could just as easily have been other reasons.[64]The only correct comparator would have been a person of different race who had the claimant’s skills and experience, starting at or around the same time as he did and in the same role, reporting to Mr Bannister. There was no evidence that such a person would have been treated any differently by Mr Bannister. The evidence showed that Mr Bannister would still have become dissatisfied with that person’s performance (rightly or wrongly) and dealt with it in the same way.[65]The failure to send a letter to the claimant following the meeting was most likely an oversight and there was no evidence that it was more intentional and personal to the claimant, let alone because of his race.[66]The tribunal notes here that the fourth allegation was that it was not found as part of his grievance that he was subject to discrimination. The claimant confirmed that he was no longer making this argument. That is to say, he did not believe that the way his grievance was dealt with involved any further acts of discrimination.[67]The fifth allegation was that the respondent did not pay him a discretionary bonus on 25 July 2024. Potentially this could be broken down into two distinct arguments:a. The respondent ought to have paid a bonus in the first place;b. The respondent ought to have exercised discretion in his favour after he raised a grievance about non-payment, and particularly in light of the knowledge of Mr Wilson being allowed to keep his bonus.[68]It was an undisputed fact that no bonus was paid to the claimant in July 2025. Similarly, that he expected to receive one and believed that the rules of the Scheme made him eligible.[69]The claimant named Mr Wilson as his comparator in this complaint. He was white, Scottish and was under notice at the time of payment of the bonus but received a bonus payment.[70]The tribunal did not accept that Mr Wilson was however a valid comparator. Unlike the claimant who had given notice over a month before the payment date, Mr Wilson had resigned after the time when the respondent’s bank had been given the irreversible instruction to make monthly salary payments (including bonus payments to those who were to receive them) – albeit by a matter of hours. Two other colleagues of the claimant were more suitable comparators – Mr Leigh and Ms Atkinson – as they were white, British and had given notice of resignation closer to the time the claimant had intimated his. Neither received a bonus and neither challenged that decision. Therefore, viewing the claimant’s treatment against a correct comparator, he was not treated less favourably.[71]In any event and for completeness, the tribunal accepted that the wording of the eligibility terms had been changed in November 2023 and was viewable as such on the staff intranet from that date, despite the fact that the cover sheet did not record the update (or the one following it on 18 July 2024). The claimant did not believe that it had but he did not produce evidence of that. However, the whole issue of whether and when the wording was changed was ultimately academic. The claimant’s argument was that he was less favourably treated because of race in not getting paid a bonus. But the best and most relevant evidence was that two white British employees also under notice did not receive a bonus. So, even if the respondent had gone against the wording of its own policy, it did so indiscriminately.[72]The tribunal also accepted that the circumstances of Mr Wilson were substantially different from those of the claimant at the point where the claimant had raised a grievance and was essentially asking the respondent to waive the eligibility rule which denied him a bonus. The evidence suggested that Mr Wilson’s bonus would have been equivalent to the one the claimant might have received, or less. It was one thing to have accidentally paid an employee a bonus and to decide against getting into a potential dispute over trying to recover it. It was another thing altogether to have made a decision consistent with one’s rules (and consistent with the treatment of others) but then to change one’s mind simply because the individual concerned had a misplaced belief in their entitlement. Harassment – section 26 EqA[73]The complaints of harassment were the same as the first, second and third allegations within his complaint of direct discrimination, as above.[74]Under section 26 EqA, harassment occurs where, related to a protected characteristic, a person engages in unwanted conduct which has the purpose or effect of violating another’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.[75]Unlike direct discrimination, there need not be a comparator but the unwanted conduct must be ‘related to’ a protected characteristic, and not merely be generally unacceptable behaviour. In testing whether the alleged conduct has the effect complained of, the tribunal must look both at how the individual experienced and perceived it, but also whether it was reasonable for the conduct to have the effect alleged – section 26(4). Therefore, an unduly sensitive individual may not be protected.[76]The tribunal found above, as part of the section 13 complaint, that none of the three allegations constituted less favourable treatment because of race. It accepted that materially all of the claimant’s complaints about how he was treated were factually established, but that a colleague in similar circumstances would have been treated no better. When assessed as potential acts of harassment the same outcome is reached. That is to say that the communications by Mr Bannister in January and February 2023, the conduct of the meeting on 13 March 2023 and the omission of a letter following the meeting all occurred, and were ‘unwanted’ conduct on the part of those responsible, and therefore ultimately the respondent itself.[77]The tribunal saw no evidence of those actions having the purpose of creating a prohibited outcome under section 26. Their purpose, such as there was one, was to raise perceived shortcomings in the claimant’s performance at a relatively early stage so that he would improve upon them. As to whether those actions had an unlawful effect, the tribunal accepted that the conduct of the meeting on 13 March 2023 created an intimidating and humiliating environment for him because he was effectively outnumbered, taken by surprise, told a series of personal criticisms and not allowed to respond to them. That environment existed whilst the meeting was taking place and for a time afterwards, up until the resolution of his grievance on 11 April 2023. The change that made was to effectively vindicate the claimant’s concerns and, together with the previous oral confirmation that his probation period would not be extended, give the claimant assurance that his employment was not of concern and under threat.[78]For completeness, the tribunal did not conclude that any other aspect of the conduct of those involved was material enough to have an effect prohibited by section 27, particularly given the provisions of section 27(4). They were unwanted, but simply not that damaging when objectively viewed.[79]The last part of the test was whether the conduct which created an intimidating and humiliating environment was ‘related to’ his protected characteristic (or, technically, any protected characteristic). Consistent with the assessment of the section 13 complaint, there was no evidence of a connection between the two. There was, for example, no hint of racist attitudes or language being at play and the claimant himself did not – in the meeting itself or the grievance which followed – suggest that race was a factor. Once more, the evidence which did exist clearly pointed to a genuine, but in some ways inexpert, attempt to identify and address areas for improvement in the claimant’s performance. Victimisation – section 27 EqA[80]A victimisation complaint has two essential elements – a protected act (or the belief in a protected act) followed by detrimental treatment because of it.[81]An act will be protected only if it falls within the circumstances listed in section 27(2) EqA.[82]The claimant relied on one protected act, his grievance on 16 March 2023 in which he said he referred to discrimination and therefore made an allegation that the EqA was being contravened. The respondent argued that this was not a protected act as it did not allege such a contravention.[83]The grievance took the form of an email, combining the claimant’s points with embedded images of document extracts, previous emails and calendar appointments. It is detailed in setting out the claimant’s points and runs to just over 5 pages. In the concluding section he stated, ‘I feel very disrespected and discriminated against by this treatment which I did not expect from a company that prides itself on having a people-centric culture.’[84]The Employment Appeal Tribunal has upheld in at least one tribunal decision that an employee who said they were ‘discriminated against’ was not carrying out a protected act where they meant that they were being treated unfairly in a general sense rather than in one of the more specific ways set out in the EqA (Durrani v London Borough of Ealing UKEAT/0454/12). The judge however emphasised that each case had to be assessed on its own facts and it could be possible that such language could convey a belief in contravention of EqA.[85]Reading the whole of the claimant’s grievance, the tribunal concluded that the reference to discrimination was an expression of a general sense of unfairness and not intimation of what he considered to be a breach of EqA. It was in the context of a lengthy and detailed statement of everything he felt his manager had unjustifiably done, but it did not make reference to any other person as a comparator and gave no indication of which protected characteristic might be in play. The claimant accepted in cross-examination that he was not raising a complaint of breach of EqA by the use of the words he chose. He also confirmed that if he felt he had been treated differently because of his race that would be unlawful.[86]The tribunal therefore concluded that the claimant did not carry out a protected act. This meant that a claim of victimisation could not succeed. Given that this point was relatively finely balanced, the tribunal considered whether, in any event, the claimant had suffered a detriment because of the allegation of discrimination made in his grievance.[87]The tribunal noted that the single remaining detriment alleged was the nonpayment of the bonus. It was clear by the time that all of the evidence had been heard that he was not paid a bonus by the simple and neutral application of the eligibility rules at the time. Two of his colleagues were in exactly the same situation. They had not raised grievances and had not alleged that the respondent was in breach of EqA. A third, Mr Wilson, ended up receiving a payment through simple luck of the timing of his resignation. There was no evidence of anyone making a conscious choice not to pay a bonus to the claimant. By the time he was arguing for a payment under his grievance the situation had shifted from the question of whether he was eligible under the prevailing rules to whether the rules should be disapplied in order for him to receive a payment when by default he would not. Again, there was no evidence of any connection between how that issue was dealt with and the claimant having alleged discrimination over a year before. Unlawful deduction from wages – section 1 ERA[88]For there to have been an unlawful deduction from wages, a worker has to have been paid less than the amount ‘properly payable’ to them, unless it is through an error. Wages can include a bonus payment, including one which is non-contractual – section 27(1) and (3) ERA.[89]Lawful deductions can be made either by requirement of law or where the employee gives their consent by way of a term in their contract or otherwise in writing beforehand.[90]For the 2024 bonus to be considered wages ‘properly payable’ to the claimant there must be an entitlement to it and it must be capable of calculation. The latter was not in issue here since essentially a formula was applied and all of the variables were known. It was similarly clear when the payment should have been made, because it was always done as part of July payroll and everyone who received a bonus in 2024 did so on the 25th of that month.[91]A worker has been held to be entitled to a bonus even if there is not an absolute contractual term in their favour – section 27(1)(a) covers payments made ‘under his contract or otherwise’ (emphasis added). However, when the process involves rules properly applied by the employer, or the use of discretion in a fair and consistent way, there will be no such entitlement. In the present case, the claimant had no absolute right to a bonus as the relevant terms within the Scheme were framed as discretionary. However, he would have a legitimate expectation of receiving a bonus if the application of the discretionary rules to his circumstances suggested that outcome. This is where a difficulty arose for him. The rules clearly stated that no employee serving notice at the payment date would be eligible. By their operation he would not receive a bonus, and the respondent did nothing to override or contradict this outcome.[92]He therefore had no legitimate expectation of a bonus on 25 July 2024 and consequently the sum did not amount to wages ‘properly payable’ to him on that date. There was therefore no unlawful deduction when the money was not paid to him. Breach of contract at common law[93]The claimant’s contract was drafted so as to be governed by the common law of England and Wales. The principles under that system which apply to this case are not materially different from those under Scots law.[94]First, the claimant had to prove that a term of his contract entitled him to a bonus – not merely in principle but a specific sum and payable on a date which could be determined. Secondly, he had to go on to prove that the performance of that term had not taken place and was overdue.[95]There was clearly no express term in the contract entitling him to a bonus. What wording did exist said the contrary, that any payment was discretionary. The complaint could only therefore succeed if there was an implied right to a bonus. Implied terms can be introduced by statute – not relevant here – or by common law through the intentions of the parties or by custom and practice. However it was not possible to find that an implied term had been created which entitled the claimant to a bonus. Although he would have been paid one had the provisions of the previous year still operated, the respondent consciously changed them. That positive action ruled out any realistic prospect of finding that it intended to go on paying bonuses to employees under notice.[96]Consequently it was not possible for the claimant to prove that there was either an express or an implied term entitling him to receive a bonus in July 2024. As there was no such term, it could not have been breached.
Conclusion
[97]For the above reasons none of the claimant’s legal complaints were successful, and so they must be dismissed. There was no requirement to consider matters relating to remedy. RECONSIDERATION JUDGMENT OF THE EMPLOYMENT TRIBUNAL Following reconsideration of the tribunal’s judgment issued to the parties on 4 August 2025, the tribunal’s decision is to confirm that judgment.
Introduction
[1]By a written application dated 18 August 2025 (the ‘application’) the claimant applied for reconsideration of the tribunal’s judgment issued to the parties on 4 August 2025 (the ‘judgment’). The judgment dismissed all complaints he had made, which were of direct discrimination, harassment and victimisation under the Equality Act 2010 (‘EqA’). unlawful deduction from wages under the Employment Rights Act 1996 (‘ERA’) and common law breach of contract.[2]Upon initial consideration I did not believe there to be ‘no reasonable prospect of the judgment being varied or revoked’ in terms of rule 70(2) of the Employment Tribunal Procedure Rules 2024 (the ‘procedure rules’) The issues the claimant raised appeared to require more detailed consideration. I therefore sought submissions from the respondent. It submitted its written grounds of opposition to the application on 9 September 2025.[3]Both parties agreed there need not be a hearing to determine the application. I was similarly content to deal with the application on the basis of written submissions, particularly as both parties had clearly set out their positions in that way.
Relevant law
[1]The mechanism for reconsideration of tribunal judgments is contained in Part 12, rules 68 to 71 of the procedure rules. Whether a party applies for reconsideration or a tribunal decides itself to do so, a judgment can only be reconsidered if ‘it is necessary in the interests of justice to do so.’ That is the paramount principle. The result of reconsideration may be that the judgment is confirmed, varied or revoked.[2]In conducting reconsideration, a tribunal should consider the interests of both parties and also the public interest in finality of litigation (in relation to the last of those, Ebury Partners Ltd v Acton Davis [2023] EAT 40 being relevant). A party should not be permitted to use the reconsideration process to reargue their case a second time around, and thus gain a ‘second bite of the cherry’.[3]A number of authorities provide clarification and guidance as to when a judgment should be varied or revoked upon reconsideration and when it should not. A principle which emerges is that it is generally appropriate to vary or revoke a previous judgment when there has been a procedural misstep which appears to have had a material influence on the outcome, but not when the parties had a fair opportunity to present their cases and no procedural issues or errors arose – Ebury Partners Ltd, Trimble v Supertravel Ltd [1982] ICR 440, Ministry of Justice v Burton and another [2016] EWCA Civ 714. In those circumstances, the correct process is to submit an appeal to the Employment Appeal Tribunal. I note that the claimant has done that by way of a notice of appeal which was acknowledged and sealed on 15 September 2025.[4]The claimant’s application is arranged in numbered paragraphs. The grounds on which reconsideration is sought are within paragraphs numbered 2 to 11. The respondent provided submissions on each, following the same order. They are dealt with in turn below.[5]In paragraph 2 the claimant says that a particular version of the respondent’s ‘Total Reward Policy & Procedure’ (the ‘policy’) was removed from the joint hearing bundle by the respondent shortly before the hearing began. He says that this suggests the policy ‘may have been changed after the fact to justify denying me a bonus’. He does not go as far as to say that the terms of the policy at the relevant time, when applied to him, would have resulted in him being eligible for a bonus. He said that he raised the omission in the hearing but no steps were taken to remedy it. He contrasts this with the respondent being permitted to add documents to the bundle up until the day before the hearing began.[6]The respondent commented that the policy version the claimant was referring to had been present in the bundle when the hearing started and explained on which pages it could be found. He therefore had the opportunity to give evidence about it and to ask the respondent’s witnesses about it in crossexamination.[7]My conclusions are that the version the claimant believes was missing from the bundle was in fact within it, that the parties had the opportunity to refer to it in evidence during the hearing, and that they did so. I noted their evidence and the relevance of that particular version of the policy is considered and explained in the judgment. I recall that the claimant raised during the hearing that he believed a relevant version of the policy was missing, but that this was clarified and accepted not to be the case, in the same way as described by the respondent in its grounds of resistance to the application. The claimant appeared to accept the explanation given and he did not make a request for any orders or other steps to be taken for any other versions of the policy to be added to the bundle. In any event, he does not say that any ‘missing’ version of the policy, if there had been one, would have made any difference to the respondent’s decision not to grant him a bonus. The differences he identified related to eligibility for health insurance and not any bonus. On the question of when the respondent added certain documents to the bundle late, this was an unrelated matter and the claimant was given the opportunity to raise at any point in the hearing that a document was being referred to which he was unprepared to deal with. He did not do so.[8]I am also conscious, and record here, that the issue the claimant raised in this part of his application was that the wording of the policy may have read so as to allow employees who were serving notice of termination of their employment to be eligible for a bonus. This would have brought him into scope as he had served notice himself. As I found in the judgment, whatever the wording in that regard had been at the appropriate time, the point was essentially academic. This was because his claim incorporated three arguments as to why he should have received a bonus. One was that it was an act of direct race discrimination for him not to have been paid one, the second was that the non-payment was an act of victimisation and the third was that he had a contractual right to a bonus. The judgment makes clear why none of those allegations were supported by the evidence. Payment of a bonus to any employee was clearly discretionary as all versions of the policy spelled out, and there had been no unlawful exercise of such discretion against him.[9]In paragraph 3 of his application the claimant said that there was a lack of evidence to support the respondent’s evidence about which changes had been made to the policy and when. He referred to a lack of corroborating evidence of various types. The respondent said that the tribunal was entitled to accept the evidence from the respondent’s witnesses. The tribunal had considered both what they had said and also their credibility and reliability. There was no new evidence to consider.[10]In essence, the claimant’s point is concerned with the burden of proof which applies in employment tribunals. Findings of fact are made on the balance of probability – or to paraphrase, what is most likely to have happened – based on the evidence brought before them. In the judgment I explained how I had considered and evaluated the three versions of the policy, what evidence provided by the respondent’s witnesses had been accepted, and that the claimant had been unable to challenge that (either in cross-examination or by providing contrary evidence of his own). There was adequate evidence before me on which to make the findings which I did given the standard of proof which applied.[11]Paragraph 4 of the application alleged that I had not followed the correct approach to applying the burden of proof in the direct discrimination complaint under section 136 of EqA. The claimant argues that he had established enough by way of primary facts to shift the burden onto the respondent to show that it had not acted in a discriminatory way. This is a point of law and I note that it has been included in the claimant’s appeal. The respondent argued that section 136 had demonstrably been applied correctly in the judgment.[12]The claimant is in my view incorrect to say, as he does, that I was wrong to conclude that he had failed to provide enough evidence to shift the burden. He suggests I should have taken a ‘cumulative’ approach to that, which overlooks that I found in relation to each of his direct discrimination complaints that at least one necessary factor required by section 13 of EqA was missing. A ‘cumulative’ approach cannot cure the absence of a valid comparator, for instance, which the claimant was unable to identify.[13]The claimant revisits the question of comparators as well as his harassment complaint in paragraph 5 of his application. The common theme is that the tribunal acknowledged he had been treated by managers in a way which could be considered detrimental or unfavourable, but that such treatment was not found to be related to the protected characteristic of race which he relied on.[14]As it relates to his direct discrimination complaint this is largely a repetition of his argument in paragraph 4 of his application, which is addressed above. He does not articulate in any clear way how the requirements of section 26 were improperly applied to the findings made. He points out that it is the effect of a perpetrator’s behaviour rather than their intent which is relevant, a point I do not disagree with, and dealt with in the judgment. He does not acknowledge that the legal test for harassment requires that whatever conduct is complained of must be ‘related to’ a protected characteristic. This is essentially where his claim failed, as there was no evidence to support that finding.[15]The claimant revisits the connection between the treatment he was proven to have received and his protected characteristic in paragraph 6. He refers to his harassment complaint but the points he makes also apply to his direct discrimination claim. Again this is a point of law and it is contained in his appeal. He is once more suggesting a more holistic view should have been take of his evidence. Again also, this does not deal with the fact that he was unable to identify a valid comparator – real or hypothetical – who was or would have been less favourably treated than he was, and therefore that his complaint under section 13 could not succeed. In relation to his harassment complaint his submissions repeat arguments he made in the hearing and which were evaluated at that stage. I determined in the judgment that there was no connection between any treatment which provisionally fell within section 26(1)(b) and the protected characteristic of race which he relied on. I see no reason why that analysis was wrong. And there was no procedural mis-step preventing him from having his complaint fairly heard.[16]Paragraph 7 discussed the issue of whether the claimant had carried out a ‘protected act’ as defined in section 27 of EqA by raising a grievance. I found that, on the evidence, the grievance was not such an act. Revisiting the findings I made and the basis for this decision I see nothing in the application to persuade me that this was wrong. It was essentially a question of evidence and fact. In an attempt to provide further certainty I explained why, had the grievance been a protected act, I would not have found that the claimant had been detrimentally treated (thus victimised) as a result of it. The detriment alleged was the non-payment of a bonus. There was no evidence whatsoever to suggest a connection between the claimant’s grievance and that outcome. This is another academic point.[17]In paragraph 8 the claimant says that the tribunal acknowledged the respondent’s non-compliance with a contractual requirement. This related to the respondent's omission of written confirmation that his probation period was extended. This does not relate to any complaint the tribunal had to decide. It was not found to be a breach of contract. The claimant had no right to have the extension confirmed in writing and it was confirmed verbally, before being revoked on a later date.[18]In paragraph 9 the claimant challenges the tribunal’s finding that a white colleague, Mr Wilson, was not a valid comparator. He had been paid a bonus when the claimant had not. He was found not to be a valid comparator because the circumstances surrounding his receipt of a bonus, particularly the timing of his tendering of notice in relation to final approval of bonus payments, were materially different from those of the claimant. Furthermore, there were at least two other colleagues who were valid comparators, and the claimant was compared to them and found to have been treated in the same way. Nothing the claimant now raises persuades me that my exclusion of Mr Wilson, or inclusion of the other two colleagues, was incorrect.[19]The claimant raises the determination of his complaint of unlawful deduction from wages in paragraph 10 of his application. He takes issue with the finding I made that he did not have any ‘legitimate expectation’ of a bonus, although he omits the first of those words. The judgment explained why he had no legitimate expectation, which was because the rules of the scheme explained that no employee under notice would receive one. The claimant appears to be using the word ‘expectation’ in isolation to express that he personally assumed he would receive a bonus. That was not the sense of the term adopted. It was the respondent which had the power to decide, it set out in the policy the approach it would take, it applied the principles which it said that it would, and it did so consistently across all employees, the claimant included. If he had an expectation of receiving a bonus it was not a legitimate one in that legal sense.[20]Paragraph 11 deals with a number of matters such as his general credibility – with which I took no issue – and the question of whether there was sufficient evidence to support certain findings which I made. Again, given the standard of proof which applied there was adequate evidence to support those findings. Ultimately, the claimant could not directly challenge the respondent’s evidence on the key issues in the claim. He believed that he was the victim of discrimination but the evidence pointed the other way and was not sufficient to help him.[21]For the above reasons, on reconsideration of my decision in light of the parties’ submissions I believe it would not be in the interests of justice to change any aspect as requested by the claimant. I am conscious of the importance of finality in judgments, but had there been a reason to review and change any aspect I would have been willing to do so. However, on consideration of the claimant’s grounds I see no relevant and material errors in the judgment and therefore it is confirmed and the application is unsuccessful.