Employment Tribunals

Case No: 2408785/2022 EMPLOYMENT TRIBUNALS Claimant: Mr E Ben Ali Respondent: Activate Group Ltd Heard at: By CVP On: 29 January 2024 Before: Employment Judge Eeley Representation Claimant: In person Respondent: Ms L O’Neill JUDGMENT 1. The respondent’s application for strike out of the claimant’s claims (pursuant to rule 37(1)(a) of the Employment Tribunals Rules of Procedure 2013 on the basis that they have no reasonable prospects of success) is refused. 2. The respondent’s application for a deposit order (pursuant to rule 39 of the Employment Tribunals Rules of Procedure 2013) is refused. 3. The final hearing in the case remains listed between 28 and 30 October 2024. 4. The deadline for exchange of witness statements is extended. The parties shall send each other copies of the witness statements they rely on by no later than 15 March 2024. _____________________________ Employment Judge Eeley Date: 29 January 2024 JUDGMENT SENT TO THE PARTIES ON 5 February 2024 FOR THE TRIBUNAL OFFICE Case No: 2408785/2022 Notes Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. Public access to employment tribunal decisions Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employmenttribunal- decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case. Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practicedirections/ Case No. 2408785/2022 1 EMPLOYMENT TRIBUNALS Claimant: Mr E Ben Ali Respondent: Activate Accident Repair Limited Heard at: Manchester On: 28, 29 and 30 October 2024 and in chambers on 24 March 2025 Before: Employment Judge McDonald Ms C Metcalfe Ms E Cadbury REPRESENTATION: Claimant: In person Respondent: Mr Singer (Counsel) JUDGMENT The judgment of the Tribunal is that: 1. The correct respondent is Activate Accident Repair Limited. By consent, it is substituted as the respondent to the claimant's claim in place of Activate Group Limited. 2. The claimant's complaint of direct race discrimination fails and is dismissed. 3. The claimant’s complaint of direct religion or belief discrimination fails and is dismissed. 4. The claimant's complaint of race-related harassment fails and is dismissed. 5. The claimant's complaint of religion-related harassment fails and is dismissed. 6. The claimant's complaint that the respondent failed to pay him holiday pay due to him fails and is dismissed. 7. The claimant's complaint of unauthorised deduction from wages succeeds in relation to the following which were conceded by the respondent during the hearing: Case No. 2408785/2022 2 a. The deduction of £298.06 “Previously Paid” made from the claimant’s monthly pay on 31 July 2022 b. A deduction of £100 from the claimant’s final pay on 31 August 2022. That was a failure to pay the claimant his night shift allowance of £25 for each of the 4 nights he worked in the first week of August 2022. 8. The claimant’s other complaints of unauthorised deductions from wages fail and are dismissed 9. The respondent shall pay the claimant the following: a. £298.06 without further deduction. It was a deduction made after tax and national insurance. b. £100.00 gross less. The claimant is responsible for the payment of any tax or National Insurance on that sum which was deducted from his gross pay. 10. The claimant’s unfair dismissal complaint is struck out. Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than 2 years’ service to make an unfair dismissal complaint. The claimant was employed by the respondent for less than two years and failed to give an acceptable reason, despite being given the opportunity to do so, why the complaint should not be struck out. REASONS Introduction 1. This was the claimant's claim arising from his employment by the respondent between March and August 2022. 2. By a claim form dated 8 November 2022 the claimant brought complaints of discrimination, unfair dismissal, failure to pay holiday and other pay and for injury at work. 3. The claimant did not have the 2 years’ length of service ordinarily required to bring a complaint of unfair dismissal. The Tribunal gave him until 13 February 2023 to provide reasons why that complaint should not be struck out. He failed to do so and the Tribunal confirmed in a letter dated 23 February 2023 that the unfair dismissal complaint would be struck out. It is not clear that a strike out judgment was issued. For the avoidance of doubt, we have confirmed the striking out in this judgment. 4. At the preliminary hearing for case management purposes on 8 March 2023, the claimant confirmed he was not bringing a complaint of disability discrimination. His discrimination and harassment complaints related to the protected characteristics of race and religion. Case No. 2408785/2022 3 Preliminary Matters - correct respondent 5. The claimant had issued his claim against Activate Group Limited. During our discussions at the start of the hearing the claimant accepted that he was employed by Activate Accident Repair Limited. It is one of five companies in the Activate Group. 6. By consent, we substituted Activate Accident Repair Limited for Activate Group Limited as the respondent to the claim in place of Activate Group Limited. References in this judgment to “the respondent” are to Activate Accident Repair Limited. The Issues 7. At the preliminary hearing on 8 March 2023, Employment Judge Ross identified the issues in the case. The List of Issues from that hearing is attached as an Annex to this Judgment. 8. During the preliminary discussions Mr Singer pointed out that there were 2 complaints omitted from the List of Issues drawn up at that preliminary hearing. He accepted that those claims were part of the claimant's claim form and there was no issue about the claimant needing to apply to amend. 9. The complaints were of unauthorised deduction from wages and failure to pay the claimant’s accrued but untaken holiday pay. We have added those as issues 4 and 5 to the List of Issues. To avoid repetition, we have set out the details of those complaints in our findings of facts about the claimant’s pay and holiday below. The respondent conceded during the hearing that it had made 2 unauthorised deductions from the claimant’s pay. They were: a. A deduction of £100 from his August 2022 pay by failing to pay him his night shift allowance (4 x £25) for the last week he worked; and b. A deduction of £298.06 from the claimant’s July 2022 which was marked “Previously Paid” but which the respondent could not explain. 10. We have reflected those concessions in our judgment. 11. In hearing the evidence we identified 2 errors in the Schedule of Allegations. First, the claimant confirmed that Allegation 1 should have referred to Mr Bailey (rather than Mr Neat) being aware that the claimant was lone working. Second, the parties were agreed that Allegation 11 should refer to Mr Scott (rather than Mr Wells). We have shown those amendments as tracked changes in the List of Issues in the Annex to this judgment. Evidence 12. There was an agreed hearing bundle. At the start of the hearing that bundle was 522 pages. During the hearing the parties agreed to the addition of further documents. They included copies of the claimant’s sickness and holiday records and passport/travel documents. References to “the Bundle” in the judgment are to that final bundle. Case No. 2408785/2022 4 13. References to page numbers in this judgment are to pages in the Bundle. We were provided with an updated index dated 28 October 2024. It numbered the pages in the Bundle up to 531. However, it seems to us that some of the pages added during the hearing were duplicated and that there also seemed to have been an earlier miscounting of pages at around p.540 onwards. We are confident that did not affect the evidence we heard and read during the hearing. To try and avoid confusion, we have in this judgment referred to the page numbers shown on the documents themselves rather than the number shown in the index. 14. For the claimant we heard oral evidence from: a. the claimant; b. Michael Brennan (“Mr Brennan”), a Paint Technician who worked with the claimant at the time of the incidents in the case; c. James Wells (“Mr Wells) a Paint Technician who worked with the claimant at the time of the incidents in the case. 15. For the respondent we heard oral evidence from: a. Mark Neat (“Mr Neat”), the respondent’s Operations Manager. At the time of the incidents in the case he was a Bodyshop Manager based in Birmingham; b. Jamie Scott (“Mr Scott”). At the time of the incidents in the case he was Workshop Supervisor and then Assistant Manager based in Manchester; c. Danielle Chruszcz (Ms Chruszcz”), Activate Group’s People Director. 16. There was a written witness statement from each witness. On Day 2 of the hearing the respondent provided a second witness statement for Ms Chruszcz. It dealt with the claimant’s pay claim which had been clarified during our discussion on Day 1 (“Ms Chruszcz’s Statement on Pay”). The Hearing 17. On the morning of the Day 1 of the hearing we discussed the issues and preliminary matters above. We adjourned to read the witness statements and key documents. 18. As we explain above, the respondent had not understood the claimant to still be pursuing the holiday and pay complaints. As a result, it had not included evidence about that in its witness statements. Mr Singer explained he would need to take instructions and identify the appropriate respondent witness to give evidence about those complaints. 19. We agreed with the parties that the hearing would deal with liability only. We also agreed that we would start on the afternoon of Day 1 by hearing the witnesses’ evidence about the discrimination and harassment complaints. We would then recall the claimant and any relevant respondent witnesses to hear their evidence about the holiday and pay complaints. That would give the respondent an opportunity to produce Case No. 2408785/2022 5 its witness evidence on those complaints and give the claimant an opportunity to prepare his cross examination on that evidence. It seemed to us that was in accordance with the overriding objective, enabling us to deal with the case fairly and justly while minimising the risk of the case being part-heard. 20. The claimant explained that Mr Wells, was abroad and unable to attend until Day 3 of the hearing. At the start of the hearing we agreed with the parties that to reduce the risk of the case being part-heard we would if needs be hear the respondent’s witnesses before hearing Mr Wells on Day 3. 21. Mr Brennan had attended with the claimant on Day 1 of the hearing. Mr Singer estimated his cross examination of the claimant would take several hours. That meant it was likely to go over into Day 2. We suggested to the claimant that it might be appropriate for Mr Brennan to give his evidence first instead of the claimant. That could avoid Mr Brennan having to attend on Day 2. Having discussed with Mr Brennan in the adjournment while we read the case papers the claimant confirmed to the clerk that Mr Brennan would be giving his evidence first. 22. That meant that on the afternoon of Day 1 we first heard Mr Brennan’s evidence. Mr Singer asked a question in cross examination. There were no questions from the Tribunal. 23. We then heard the claimant’s cross examination evidence on the discrimination and harassment complaints for the rest of Day 1 and the morning of Day 2. He also answered questions from the Tribunal. 24. On the afternoon of Day 2 we heard from the respondent’s witnesses. Mr Neat, Mr Scott and Ms Chruszcz gave their evidence on the discrimination and harassment complaints. Each gave brief supplemental oral evidence, were cross-examined and answered questions from the Tribunal. 25. At the end of Day 2 we explained to the claimant we would need him to provide his submissions on the case on Day 3. The Employment Judge gave a brief explanation of what was required. 26. On the morning of Day 3 we heard Mr Wells’s evidence on the discrimination and harassment complaints. Mr Singer had no questions for him in cross examination. Mr Wells answered brief questions from the Tribunal. 27. Next on the morning of Day 3 we heard the claimant’s evidence on the holiday and pay complaints. At the start of that evidence Mr Singer confirmed that the respondent conceded there had been an unauthorised deduction of £100. That was because of a failure to pay 4 x night shift allowance of £25 for the 4 nights worked by the claimant on 1 to 4 August 2022. The £100 was the gross amount and would need to be paid through the payroll to ensure deduction of appropriate tax and national insurance. 28. The claimant was cross examined by Mr Singer. In a break during that cross- examination Mr Singer took instructions on the deduction of £298.06 from the claimant’s July pay marked “Previously Paid” on the July payslip (p.310). Having done so he confirmed the respondent did not have an explanation for that deduction and conceded that it was an unauthorised deduction. Case No. 2408785/2022 6 29. We then heard Ms Chruszcz’s evidence on the holiday and pay complaints. The claimant chose not to cross examine her. There were no questions for her from the Tribunal. 30. We heard oral submissions from Mr Singer before the lunch break on Day 3. We gave the claimant additional time over the lunch break to finalise his submissions. We heard his submissions and then reserved our decision. 31. The Tribunal began its deliberations in chambers on the afternoon of Day 3. We were due to conclude them on 16 December 2024. Unfortunately, due to the Employment Judge’s absence from the Tribunal due to ill-health the Tribunal were unable to re-convene to complete its deliberations until 24 March 2025. 32. The Employment Judge apologises to the parties that a further period of ill- health absence after those deliberations has led to a delay in finalising this judgment. Relevant Law Equality Act 2010 claims 33. The complaints of direct race or religious discrimination and race-related or religion-related harassment were brought under the Equality Act 2010. 34. S.39 and s.40 of the 2010 Act prohibit discrimination and harassment of employees. So far as material to this case they provide as follows: “39 Employees and applicants ….(2) An employer (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service; (c) by dismissing B; (d) by subjecting B to any other detriment. ……… 40 Employees and applicants: harassment (1) An employer (A) must not, in relation to employment by A, harass a person (B)— (a) who is an employee of A's”. The Burden of Proof 35. The 2010 Act provides for a shifting burden of proof. Section 136 so far as material provides as follows: Case No. 2408785/2022 7 "(2) If there are facts from which the Court could decide in the absence of any other explanation that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision." 36. This means that it is for a claimant to establish facts from which the Tribunal can reasonably conclude that there has been a contravention of the 2010 Act. If the claimant establishes those facts, the burden shifts to the respondent to show that there has been no contravention by, for example, identifying a different reason for the treatment. 37. In Hewage v Grampian Health Board [2012] ICR 1054, SC, the need to avoid an overly technical approach to the application of section 136 was emphasised. Lord Hope observed that the burden of proof provisions will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other. 38. Where there is "room for doubt", s.136 provides a valuable tool for determining whether the inference of discrimination should be drawn. In Field v Steve Pye & Co [2022] IRLR 948 EAT HHJ Tayler emphasised that if there is evidence that could realistically suggest that there was discrimination it is not appropriate to just add that evidence into the balance and then conduct an overall assessment, on the balance of probabilities, and make a positive finding that there was a non-discriminatory reason for the treatment. Instead, “where there is evidence that could indicate discrimination there is much to be said for properly grappling with the evidence and deciding whether it is, or is not, sufficient to switch the burden of proof. That will avoid a claimant feeling that the evidence has been swept under the carpet. It is hard to see the disadvantage of stating that there was evidence that was sufficient to shift the burden of proof but that, despite the burden having been shifted, a non-discriminatory reason for the treatment has been made out.” 39. As for what is required to discharge the burden at the first stage, that must be something more than a difference in the relevant protected characteristic and a difference in treatment; see Madarassy v Nomura International plc [2007] ICR 867, CA. That said, the something more required at the first stage need not be a great deal; see Deman v EHRC [2010] EWCA Civ 1279. 40. A finding that an employer has behaved unreasonably, or treated an employee badly, will not, however, be sufficient, of itself, to cause the burden of proof to shift; Glasgow City Council v Zafar [1998] ICR 120. 41. The guidance in in Igen Ltd v Wong [2005] ICR 931, CA states when the burden has passed, not only must the respondent provide an explanation for the facts proved by the claimant, from which the inferences could be drawn, but that explanation must be adequate to prove, on the balance of probabilities, that the protected characteristic was no part of the reason for the treatment. However, that explanation need not be “adequate” in the sense of providing a reason which satisfies some objective standard of reasonableness or acceptability – it does not matter if the employer has acted for an unfair or discreditable reason provided that the reason had Case No. 2408785/2022 8 nothing to do with the protected characteristic (Royal Mail Group v Efobi [2021] UKSC 33 at para 29). Direct Race or Religious Discrimination 42. The definition of direct discrimination appears in section 13 of the 2010 Act and so far as material reads as follows: “(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”. 43. The concept of treating someone “less favourably” inherently requires some form of comparison, and section 23(1) provides that: “On a comparison of cases for the purposes of section 13 … there must be no material differences between the circumstances relating to each case”. 44. It is well established that where the treatment of which the claimant complains is not overtly because of race or of religion or belief, the key question is the “reason why” the decision or action of the respondent was taken. 45. A protected characteristic need only have a material influence in detrimental treatment for discrimination to be established: Nagarajan v London Regional Transport [2000] 1 AC 501. Race-related or religion-related harassment 46. The definition of harassment appears in section 26 of the 2010 Act which so far as material reads as follows: “(1) A person (A) harasses another (B) if - (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B… (4) In deciding whether conduct has the effect referred to sub-section (1)(b), each of the following must be taken into account - (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.” Case No. 2408785/2022 9 47. The Equality and Human Rights Commission gives more detail on the factors relevant in deciding whether conduct has the effect referred to in s.26(1)(b) (“a harassing effect”) at paragraph 7.18 of its Statutory Code of Practice on Employment (“the EHRC Code”): “7.18 In deciding whether conduct had that effect, each of the following must be taken into account: a) The perception of the worker; that is, did they regard it as violating their dignity or creating an intimidating (etc) environment for them. This part of the test is a subjective question and depends on how the worker regards the treatment. b) The other circumstances of the case; circumstances that may be relevant and therefore need to be taken into account can include the personal circumstances of the worker experiencing the conduct; for example, the worker’s health, including mental health; mental capacity; cultural norms; or previous experience of harassment; and also the environment in which the conduct takes place. c) Whether it is reasonable for the conduct to have that effect; this is an objective test. A tribunal is unlikely to find unwanted conduct has the effect, for example, of offending a worker if the tribunal considers the worker to be hypersensitive and that another person subjected to the same conduct would not have been offended.” 48. For a complaint of race-related or religion-related harassment to succeed, the Tribunal must be satisfied that there was unwanted conduct which was related to race or religion and which had a harassing purpose or a harassing effect. Harassment can occur even if the conduct did not have a harassing purpose, so long as it had the harassing effect. 49. The test of whether conduct is “related” to a protected characteristic (in this case race or religion) is different to that of whether it is “because of” a protected characteristic which applies in a case of direct discrimination. The term ‘related to” is wider and more flexible than “because of”. In a race-related harassment case, conduct could be found to be “related to” race where it was done because of race, but that is not a requirement. So, for example, if A subjects B to unwanted conduct with the purpose of “creating an intimidating environment for B” in circumstances in which it is established that A would not have subjected someone of a different race to the same conduct, that would establish that the conduct was “related to race”. But there are many other ways in which conduct could be “related to race” such as where there is conduct that is inherently racist such as telling racist jokes (Blanc de Provence Ltd v Ha [2023] EAT 160). 50. Whether conduct is ‘related to’ a protected characteristic is a matter for the appreciation of the Tribunal, making a finding of fact drawing on all the evidence before it. The fact that the claimant considers that the conduct is related to that characteristic is not determinative. There must be still, in any given case, be some feature or features Case No. 2408785/2022 10 of the factual matrix identified by the Tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim (Tees Esk and Wear Valleys NHS Foundation Trust v Aslam and anor 2020 IRLR 495). 51. Case-law has made it clear that the language used in s.26, i.e. "violation of dignity" and "intimidating, hostile, degrading, humiliating, or offensive" is significant: "Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment." (per Elias LJ in Grant v HM Land Registry [2011] EWCA Civ 769 at paragraph 47) "The word 'violating' is a strong word. Offending against dignity, hurting it, is insufficient. 'Violating' may be a word the strength of which is sometimes overlooked. The same might be said of the words 'intimidating' etc. All look for effects which are serious and marked, and not those which are, though real, truly of lesser consequence." (per Langstaff P Betsi Cadwaladr University v Hughes UKEAT/0179/13 at paragraph 12)”. 52. S.212(1) of the 2010 Act provides that, other than in circumstances not relevant to this claim, “detriment” does not include conduct which amounts to harassment. Conduct which is found to be an act of harassment cannot also be an act of direct discrimination. Time limits for the Equality Act complaints 53. The time limit for bringing a complaint under the 2010 Act appears in section 123 as follows:- “(1) subject to Sections 140A and 140B proceedings on a complaint within Section 120 may not be brought after the end of – (a) the period of three 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. (2) … (3) for the purposes of this section – (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.” Unauthorised deduction from wages 54. S.13(1) of the Employment Rights Act 1996 (“ERA”) provides that : Case No. 2408785/2022 11 "(1) An employer shall not make a deduction from the wages of a worker employed by him unless- (a) the deduction is required or authorised to be made by virtue of a statutory provision of a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.” 55. S.27(1) of ERA says: "(1) In this Part 'wages', in relation to a worker, means any sums payable to the worker in connection with his employment, including- (a) Any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise” 56. S.13(3) of ERA says: "Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion." 57. In New Century Cleaning Co Ltd v Church 2000 IRLR 27, CA the majority of the Court of Appeal held that a worker would have to show an actual legal, although not necessarily contractual, entitlement to the payment in question in order for it to fall within the definition of “wages”. 58. S.23(2) of the ERA provides that a Tribunal shall not consider an unauthorised deductions complaint unless it is presented before the end of the period of 3 months beginning with the date of payment of the wages from which the deduction was made or (in the case of a series of deductions) beginning with the date of the last deduction in that series. Findings of Fact 59. In this part of the judgment, we set out our findings of fact based on the evidence we heard and read during the hearing. Background Facts 60. The respondent is one of the companies in the Activate Group Limited. That group is an accident management business. It partners with fleet companies and insurers to service road accident claims. It has 14 sites made up of 11 repair centres, 2 offices and a parts warehouse. At the time of the hearing the group had around 750 employees. 61. The 11 repair centres carry out repairs to vehicles involved in accidents. In 2022 the repair centres side of the business was relatively new, having started in 2019. The claimant worked at the respondent’s Manchester repair centre which opened in July 2021. Case No. 2408785/2022 12 62. In early 2022 the respondent set up a night shift at the Manchester repair centre. At that time Mr Neat was the Bodyshop Manager at the respondent’s Birmingham repair centre. There was no Bodyshop Manager at Manchester, so Mr Neat was also acting as interim Bodyshop Manager for that repair centre. He continued to do so until Ryan Bailey (“Mr Bailey”) started as Bodyshop Manager at Manchester on 25 April 2022. Mr Bailey did not give evidence in the case. 63. The claimant is a qualified automative technician. He identifies his race as Arab, Libyan and his religion as Islam (Muslim). The claimant’s appointment and terms and conditions 64. Mr Neat and Jim Gordon (Operations Director) interviewed the claimant on 8 February 2022. They decided to employ him at the Manchester repair centre. He was sent a written offer of employment by a letter dated 22 February 2022. His job title was “MET Technician - Night Shift”. There is a dispute about the specific role the claimant was employed to carry out. We deal with that at paras 74-80 below. 65. The claimant’s contract of employment (pp.114-124) confirmed that his employment began on 7 March 2022. He was employed to work on the night shift for 44 hours a week, working 4 days a week. He worked Monday to Thursday, his first shift of the week starting on Monday evening and his last finishing on Friday morning. He was entitled to an unpaid break of 1 hour per shift. 66. The claimant’s starting salary was £34,320.00 a year (equivalent to £15.00 per hour). It was payable monthly on the last working day of the month. That was increased to £38,896.00 per annum (equivalent to £17.00 per hour or £187 per day) with effect from 1 April 2022 (p.132). The claimant was also entitled to a £25 shift allowance for every night shift worked. There was also a monthly discretionary, non- contractual bonus scheme linked to productivity (see para 82 below). 67. Clause 3 confirmed that the claimant’s employment was subject to a six- month probationary period. The respondent was entitled to terminate his employment by one week’s notice in writing during that period. Clause 16 provided that on completion of his probationary period the claimant was entitled to one month’s notice to terminate his employment. 68. Clause 9 of the contract dealt with hours of work. It confirmed that the claimant was contracted to work 44 hours with his specific Shift Rotation being confirmed by the Bodyshop Manager or workshop controller. The claimant could be required to work on weekends or public holidays. He was expected to attend work early enough to ensure an efficient handover. 69. Clause 12 of the claimant’s contract of employment dealt with holiday entitlement. We deal with that at paras 193. Knowledge of the claimant’s nationality and religion 70. For the respondent, Mr Singer submitted that the respondent did not know that the claimant was Libyan. We find that the claimant’s nationality was recorded on the respondent’s HR System as “British”. We find that was incorrect. The claimant Case No. 2408785/2022 13 had a Libyan passport. He did have a document confirming his right to remain in the UK until July 2023 (p.525). That also confirmed his nationality was Libyan. 71. Mr Scott’s evidence was that he did not know the claimant’s nationality or religion. The claimant’s evidence, which we accept, was that he handed in his travel document at his induction with Mr Scott. We find that document made clear the claimant’s Libyan nationality. Given the degree of interaction between them, we find it implausible that Mr Scott would not have known the claimant’s nationality and religion. We do not find that his being incorrectly recorded as “British” on the HR System would have made any difference to that. We find that Mr Scott and the claimant’s other managers’ knowledge of the claimant would have been derived from dealing with him in the Manchester repair centre rather than being based on consulting his HR details. 72. Mr Neat’s evidence was that the claimant had chatted to him about his family background and nationality and about being a Muslim. Although Mr Neat said he could not remember whether the claimant specifically referred to being Libyan and Arabic we find it implausible he would have discussed his background and nationality without doing so. 73. In the absence of any evidence from Mr Bailey we accept the claimant’s case that Mr Bailey knew about his nationality and religion. We also find that Mr Neat and Mr Scott did so. The claimant’s role on the night shift 74. There was a dispute about the exact role in which the claimant was employed. That was relevant to the allegations about the work allocated to the claimant, particularly Allegation 3. 75. The claimant’s contract of employment used the generic job title “Technician - nights”. We find that the technicians employed by the respondent were sub-divided into 3 “specialisms”. They were Paint Technicians, Panel Technicians and MET Technicians (Mechanical, Electrical and Trim Technicians). The parties agreed that the claimant was employed as an MET Technician. 76. However, the respondent’s case was that in practice there are two types of MET Technicians. The first is a “general” MET technician. They carry out tasks like stripping car bonnets, wings and bumpers, identifying damaged parts and sending photographs of the damage to vehicle damage assessors. They would later reassemble the car and parts. 77. The second type is a more specialist “Mechanical” MET technician. They can do the general MET tasks. However, they have additional expertise which mean they can carry out more technical mechanical work which the “general” MET Technician cannot. That could include swopping suspensions, exhausts and working on other vehicle components like gearboxes. The respondent’s case was that the claimant was a Mechanical MET Technician. Both Mr Neat and Mr Scott gave evidence to support the respondent’s case on this point. Case No. 2408785/2022 14 78. The claimant disputed that there were different types of MET Technician. He pointed out that neither the job description (p.110) nor his offer letter referred to his role being “Mechanical” MET Technician. Instead, both referred simply to “MET Technician”. On the respondent’s HR system, Cascade, his “Technician Specialism” was recorded as “MET” (pp.125-128). A spreadsheet produced by the respondent from its system showed other technicians whose specialism was marked “MET” based at Manchester. Some of those started their employment with the respondent before the claimant. All other than the claimant were recorded on the system as White British. The claimant was the only one whose religion was recorded as Islam. 79. The claimant accepted that his CV referred to “Strong mechanical aptitude”. In his cross-examination evidence he accepted he may have said during his interview that he had more experience of mechanical MET work. Mr Neat’s evidence was that the claimant had said during his interview that he had strong mechanical skills and that he had more experience as a mechanical MET then as a general MET technician. 80. On this issue we prefer the evidence of the respondent’s witnesses. We found Mr Neat in particular a credible witness and his evidence reliable. We find that the claimant was recruited as a Mechanical MET technician. His ability to carry out complex mechanical work was one of the reasons Mr Neat was keen to appoint him. There were other MET Technicians at Manchester but none of them were Mechanical MET technicians. That was true of both the day and night shifts. Another reason Mr Neat was keen to appoint the claimant was his willingness to work on the night shift and Mr Neat’s assessment of him as someone trustworthy. That was important for the night shift because the claimant would be working unsupervised. The Thatcham system and productivity measurement 81. When technicians were allocated tasks, they were given a time, expressed in hours and minutes, for completing that task. That “time weighted estimate” was based on Thatcham industry guidelines setting out how long the task was expected to take. The time weighted estimate for different tasks varied significantly depending on what they involved. For example, on the 10 March 2022 the claimant was allocated tasks ranging from a “pre sweep” of a vehicle with a time weighted estimate of 0 hours 27 minutes to a “mechanics” task on a Mini with a time weighted estimate of 4 hours and 3 minutes. If a task was found after initial inspection to involve more work than first thought, the time weighted estimate for that task could be adjusted on the respondent’s system to take that into account. 82. The respondent used that system as a basis to measure productivity. When a technician completed a task, they were “credited“ with the Thatcham time weighted estimate for that task. If a technician completed their allocated tasks in less time than the time weighted estimate, their total time weighted estimate could exceed their contracted hours for that shift. If that happened, they would potentially be entitled to a bonus by, in effect, “selling” the weighted time they had accrued in excess of their contracted time. If a technician’s total time weighted estimate was less than his contracted hours for a shift, that could raise concerns about his productivity. A technician would not get credit where work had to be re-done. 83. It was part of the claimant’s case that he was disadvantaged by being given more of the complex mechanical jobs. By definition, they took longer to complete. Case No. 2408785/2022 15 While we accept that they took longer to complete, we find that did not necessarily translate into a disadvantage when it came to measured productivity. We accept Mr Neat’s evidence that tasks with a longer Thatcham time weighted estimate provided more “wriggle room” for completing the task in less actual time than the Thatcham timings indicated the job should take. For tasks with a shorter Thatcham time weighted estimate, there was less such “wriggle room” for a technician to do the job in a shorter time than that weighted time estimate. 84. The Bundle included spreadsheets setting out tasks allocated to the claimant including the Thatcham weighted estimated time for those tasks (the “productivity spreadsheets”). We had the productivity data for the claimant (pp.172-196). We also had the productivity data for 3 MET technicians on the day shift at Manchester (pp.430- 504). They were Mr Bowdler, Mr Henry and Mr Briggs. None of them were of the same race or religion as the claimant. 85. We accept Mr Neat and Mr Scott’s evidence that the key metric used by the respondent in assessing productivity was the total time weighted estimate for tasks completed by a Technician in a shift compared to their contracted hours for that shift. Other measures included on the productivity spreadsheets were disregarded by the respondent when assessing productivity. That included in particular those columns on the spreadsheet which calculated productivity as a percentage figure based on the actual time recorded by a Technician for doing a task. We accept the respondent’s evidence that that was viewed as an unreliable measure. That was because the start and finish times on a task were recorded by the Technician clicking on their work tablet. The respondent’s view was that this gave too much scope for a Technician to manipulate their productivity figure, e.g. by recording a job as complete before it actually was. Outline of events 86. We set out our findings about the alleged incidents of discrimination or harassment at paras 99 onwards below. In this part of our judgment, we set out an outline of the events which provide the background to those incidents. 87. The night shift started in March 2022. The claimant’s first shift was the night shift starting Monday 7 March 2022. Mr Brennan also started work on the night shift on that date. He was a Paint Technician. 88. On 11 April 2022, Ryan Bailey (“Mr Bailey”) was appointed Bodyshop Manager for the Manchester repair centre. He resigned in September 2022. 89. Mr Neat carried out the claimant’s first probationary review on 11 April 2022 (p.130). The next review was set for the 8 August 2022. 90. After Mr Bailey was appointed, Mr Neat was no longer involved in management of the Manchester repair centre. He reverted to his substantive role as Bodyshop Manager at Birmingham. 91. In early May 2022 Mr Wells started work on the night shift. He was a Paint Technician. Until he started, the claimant and Mr Brennan were the only Manchester night shift workers. The claimant was the only MET Technician (mechanical or general) working on the night shift. Case No. 2408785/2022 16 92. On 9 May 2022 Mr Bailey terminated Mr Brennan's employment with effect from that date. 93. On 7 June 2022, Curtis Beaumont, another Paint Technician, also started working on the night shift. He had previously worked on the day shift. Mr Brennan’s dismissal meant that from 7 June the night shift consisted of the claimant, Mr Wells and Mr Beaumont. 94. On 13 June the claimant injured his arm at work (Allegation 5). 95. From 27th of June 2022 Mr Brennan was reinstated following an appeal hearing on the 9th of June 2022. From that date until the claimant was dismissed, the night shift consisted of the claimant, Mr Wells, Mr Beaumont and Mr Brennan. 96. On 8 August 2022 Mr Bailey terminated the claimant’s employment. The claimant was not required to work his notice (p.170). 97. The Manchester night shift ended in August 2022. 98. In September 2022 Mr Bailey resigned. The alleged acts of race-related or religion-related harassment and/or direct race or religion discrimination 99. In this section we set out our findings of fact about the alleged incidents of harassment and direct discrimination in the Schedule of Allegations. Mr Bailey’s remark about lone working (Allegation 1) and not requesting or offering that the claimant could change his contracted hours (Allegation 2) 100. The claimant confirmed that his case was that it was Mr Bailey who had known and appeared to have no problem with his working alone (rather than Mr Neat as the unamended List of Issues said). The day and night shifts 101. The day shift operated from 6 a.m. to 3.30 pm. The claimant’s contract and offer letter did not specify what his start and finish times. However, both he and Mr Scott confirmed that the expectation was that the night shift would be on site ready to start work by 4.30 p.m. 102. From May 2022 the night shift team were required to clock in and clock out using a facial recognition system. They did so at the main entrance of the building. After clocking out, the designated keyholder would lock up the building and lock the gate at the entrance of the site. They used a fob to set the alarm code. 103. The Bundle included a spreadsheet showing the clocking in and clocking out times for the night shift employees from 22 May 2022 to 25 August 2022 (pp.421- 426). Although the claimant suggested that data was not reliable, he did not put forward any evidence to back up that suggestion. We find that data reliable. Case No. 2408785/2022 17 104. Based on that and the witness evidence we find that the claimant usually arrived at work later than his night shift colleagues. We do not accept the claimant’s case that his colleagues regularly arrived at 3 p.m. and left by 3 a.m. The clocking in and out data contradicted that. We found they would generally arrive by 3.30 p.m. The claimant would usually arrive later (usually between 3.45 and 4.15 p.m. although there were occasions when he arrived later). We find that was because the claimant lived much further away than his colleagues (56 miles away) and his domestic and childcare arrangements made it difficult in practice for him to get to work any earlier. His colleagues were all Paint Technicians and arriving early meant they could move cars into the slots ready to be painted prior to the end of the day shift. 105. We find that some of the day shift would usually still be working when the claimant’s night shift colleagues arrived. The day shift would be trying to finish off tasks allocated to them. We find that the claimant did not usually overlap with the day shift because he arrived later. 106. Before Mr Bailey started as Bodyshop Manager in April 2022, Mr Scott would stay until 5.30–6 p.m. to hand over to the night shift. After he was appointed, Mr Bailey generally did that handover instead. He finished work around 5.30-6 p.m. That meant there was no manager on site for the majority of the night shift, including when it ended early the following morning. Outside the manager’s working hours, the night shift workers would communicate with Mr Bailey or Mr Scott either by text or by writing messages on the white board in the workshop. The managers would also use the white board to pass on messages for the night shift. The claimant lone working and Mr Bailey’s comment 107. Based on the clocking out data (pp.421-426) we find that the claimant did until mid-late June 2022 often clock out after his night shift colleagues, usually by around 20 minutes. He did not do so to the extent he suggested in his witness statement (para 3.2), i.e. for the last 2 hours of the night shift for almost a month. It seems to us that the data shows the claimant would stay until he had completed his contracted shift of 11 hours’ work. Because he started later than his colleagues that meant he stayed later than they did to do his 11 hours. 108. Mr Scott suggested that the clocking out data did not necessarily mean the claimant was left lone working on site. He suggested that, potentially at least, the other night shift workers might have finished working but still be on site, e.g. in the canteen or tidying up. We accept Mr Wells’s evidence that that did not happen. 109. We find that until mid-late June 2022 the claimant’s colleagues would finish their shift and then leave the claimant to lock up and set the alarm. There was a dispute about whether the claimant was a keyholder. We find that whatever the official position, he would be left a set of keys and fob to lock up and set the alarm. 110. We find that Mr Bailey did know that the claimant was lone working. He told Mr Neat about it. Mr Neat made it clear to Mr Bailey that that was completely unacceptable. Lone working was specifically identified as a risk in the respondent’s bodyshop risk assessment because of the risk to an individual if they were taken ill or had an accident when working alone. We accept Mr Neat’s evidence that it was also a security risk for someone to lock up on their own given the valuable vehicles and equipment at the repair centre. We also accept his evidence that he had on one Case No. 2408785/2022 18 occasion told the claimant not to come in for his shift because Mr Brennan (at that time the only other night shift worker) was off sick. 111. As a result of his conversation with Mr Neat we find Mr Bailey told the claimant that he could no longer stay in the workshop on his own for health and safety reasons. The claimant was not clear about the date of that conversation and we did not hear from Mr Bailey. However, the clocking out data shows that from the end of June 2022 until his dismissal the claimant clocked out at the same time (or slightly earlier) than his colleagues. The claimant was not able to arrive at work any earlier so the end result was that he did not always complete his full 11 hour working shift. 112. There was no evidence that Mr Wells or Mr Beaumont asked and were granted different working hours to the claimant. There was no evidence that they were offered an earlier start time by Mr Bailey, Mr Scott or any other manager. Their starting their night shift earlier than the claimant was something which they started doing off their own bat. There was no evidence that Mr Bailey monitored the clocking in or out time. There was no suggestion by the claimant that he approached Mr Bailey or Mr Scott to ask to start at a different time. Heavy mechanical jobs being assigned to the claimant rather than being sent to external specialists (Allegation 3) 113. We do not accept that prior to the claimant’s employment, work was sent to “external specialists” in the sense of being outsourced to an external company. However, the respondent accepted that prior to the claimant starting at Manchester repair centre some (but not all) complex mechanical work would be sent to the respondent’s Warrington repair centre. We find that some of the more complex mechanical tasks, such as engine faults, could only be done or could be done more efficiently by a Mechanical MET Technician. We find that until the claimant started work there was no Mechanical MET Technician employed at Manchester but there was one at Warrington. The vehicles needing repair would usually not be roadworthy so would have to be transported to Warrington. We find that sending vehicles to Warrington involved delay and cost to the respondent. 114. While he was acting Bodyshop Manager at Manchester, Mr Neat was responsible for work allocation to both the day and night shifts at Manchester. From early May 2022, Mr Scott took on that responsibility. Both gave evidence about how they allocated work. We found their evidence on this issue reliable. 115. We find that work was allocated through a central workflow system. The aim was to ensure that jobs were completed efficiently and without delay. To do that, work would be allocated to technicians based on their role, skills and available hours. There was no benefit in the respondent allocating work to technicians who did not have the specialist skills to carry out the task efficiently because that could lead to delay including, in the worst case scenario, to jobs having to be re-done. 116. The Thatcham weighted time estimate for a task would be used in deciding which and how many tasks to be allocated to a technician for a shift. Mr Scott confirmed that he would allocate total weighted time in excess of a technician’s contracted hours for a shift. That gave the technician the opportunity to earn a productivity bonus by completing those tasks in less actual time than the Thatcham weighted time estimate and “selling” those excess hours to the respondent. Case No. 2408785/2022 19 117. Mr Neat or (from May 2022) Mr Scott would also decide the order of priority for the allocated tasks. Those would be entered in the respondent’s central workflow system. Technicians would access the tasks on a tablet. Once they completed one task, they would move on to the next task on the tablet. Sometimes the order of priority might change, e.g. if expected parts had not arrived. If that was the case, Mr. Scott would sometimes leave a message for the technicians on the whiteboard about that change of priority rather than it being altered on the workflow system. 118. The availability of parts and vehicles also played a part in determining whether work was allocated to the day shift or to the night shift. Jobs might have to wait for the night shift if the necessary parts were not held in store and had not arrived in time for the day shift. 119. We find that the claimant had expressed a preference for doing heavier mechanical work rather than lighter trim jobs. That was his specialism and part of the reason Mr Neat was keen to appoint him. 120. Mr Scott accepted that the claimant was allocated more complex, heavy mechanical tasks than the other MET Technician. We find, based on the productivity data that he was not only allocated heavy jobs. He was also allocated some shorter “trim” tasks. The data also shows that other MET technicians were allocated tasks with longer Thatcham weighted time estimates, suggesting they were also allocated some complex tasks rather than all longer tasks being allocated to the claimant. 121. We do not accept the claimant’s case that he was allocated jobs which MET Technicians on the day shift had refused to do or complete. We accept Mr Scott’s evidence that had a Technician refused to carry out work which they had been allocated that would have been a disciplinary offence. We do find that Mr Scott took into account a Technician’s preferences when deciding which work to allocate to them. He did that with the claimant, who had expressed a preference for heavier mechanical work. 122. We find that Mr Scott would sometimes need to re-allocate tasks between Technicians and between the day and night shift. That might be because it had not been possible to complete a job during the day shift. It might be because the job had turned out to be more complex or involve different tasks than first envisaged. That might result in it being re-allocated to a Technician with a different or greater skillset. In the case of jobs which turned out to need greater mechanical expertise, that could result in jobs which others had started being re-allocated to the claimant. On one of his shifts, the claimant being assigned a heavy job (automatic transmission) which needed two people (Allegation 4) The respondent continuing to assign the claimant heavy jobs despite knowing that his GP had advised him not to do heavy lifting (Allegation 5) 123. In early-mid June 2022 the claimant had done mechanical work on a SEAT ATECA. We find that work on that vehicle had previously been assigned to one of the daytime MET technicians. Mr Scott asked the claimant whether he would take over the job and he agreed. In working on the car, the claimant found damage to its gearbox. There was a pause in work on the car while authority to carry out further work was sought. Case No. 2408785/2022 20 124. At the start of the night shift on Monday 13 June 2022 Mr Scott confirmed to the claimant that authority for work on the gearbox had been received. The claimant was assigned the task of stripping and refitting the gear box. We accept the claimant’s evidence that although he did not object when Mr Scott told him he was allocated the job he did query whether the Thatcham weighted time estimate allocated to the task (1.075 hours) was enough. It was a heavy job and he needed colleagues’ help to carry it out. 125. We find that the respondent did have equipment such as jacks to help Technicians to lift heavy mechanical parts. We find that in carrying out the task, the claimant asked Mr Wells to help him manually lift the gearbox. It was heavy and needed 2 people to lift it. When they were lifting it, it slipped out of Mr Wells’ hands so the claimant was carrying the full weight. The claimant sustained an injury to his arm and went home before the end of the 13 June night shift. 126. The claimant was not at work for the night shift starting 14 June. The claimant’s evidence was that he phoned Mr Bailey before the start of the shift to tell him he was not coming in because he had injured his arm when working on the gearbox with Mr Wells’ help. Mr Wells’ evidence was that he told Mr Bailey about the claimant’s injury at the start of that shift. We did not hear evidence from Mr Bailey to contradict that. We find that Mr Bailey knew from the start of the shift on 14 June that the claimant had injured his arm. 127. The claimant returned to work for the night shift on 15 June. He worked most of the shift but had to finish early at around 2.30 a.m. on the 15 June because of his sore arm. 128. On the 16 June the claimant called Mr Bailey and told him that he would not be in work for the 16-17 June shift and was trying to get an appointment with his doctor. 129. The claimant saw his GP on Friday 17 June. He gave the claimant medication and advised him not to do any heavy lifting for 1-2 weeks. He did not confirm that advice in writing or give the claimant a fit note. In a text exchange with Mr Wells on 17 June the claimant confirmed he was going to ask Mr Bailey to give him light work for a couple of weeks. 130. The following Monday, 20 June, the claimant told Mr Bailey before his shift that he had seen his GP been prescribed medication and that he must avoid heavy lifting for 2 weeks. The claimant accepted that for the first 3-4 days after he returned to work he was given lighter and non-mechanical jobs. His evidence was that after that he was again allocated heavy mechanical jobs. The claimant did not suggest he had raised concerns with Mr Bailey or Mr Scott about being given those heavier jobs. 131. Other than when he injured his arm, we find that the claimant did not raise concerns with Mr Neat, Mr Bailey, Mr Scott about the tasks he was being allocated. The respondent accusing the claimant of poor performance (Allegation 6) The claimant being overloaded with complex jobs white counterparts refused to do and at the same time being criticised for underperforming (Allegation 7) Case No. 2408785/2022 21 The claimant being the victim of false allegations of underperformance by his manager (Allegation 8) 132. As we have said, the respondent’s workflow system generated the data it used to monitor and assess its technicians’ productivity. We find that Mr Bailey would regularly monitor that data. He would raise with Mr Scott any concerns he had about a particular technician’s productivity. Mr Scott would then speak to the technician concerned about the issue. 133. The claimant disputed that concerns about his productivity had been raised with him at any point before his probation review on in August 2022. 134. Mr Neat’s evidence was that he had carried out an initial probationary review with the claimant on 11 April 2022. It was recorded on the claimant’s HR system for that date (p.130). The claimant denied he had had such a review. We prefer Mr Neat’s evidence. We do find that the meeting was not a formal review meeting but a 1:1 chat. The claimant may well not have recognised it as a formal review. It does not appear he was required to counter-sign it in any way. 135. We accept Mr Neat’s evidence that he told the claimant that he needed to speed up and do more hours during a shift. We find that is why the probationary review recorded the claimant as “working towards expectations” rather than as having “met expectations”. 136. When completing the probationary review details on the respondent’s HR system, Mr Neat set 8 August 2022 as the date of the next probation meeting. There was no evidence that the claimant was told at that point that his next pronation review was on that date. 137. Mr Scott’s evidence was that he spoke to the claimant about his productivity on a number of occasions. He said he also spoke to other technicians about their productivity. The claimant disputed that Mr Scott spoke to him about the issue. He disputed that he ever saw Mr Scott after Mr Bailey had been appointed as manager. We found Mr Scott’s evidence on this point more reliable than the claimant’s. Even on the claimant’s own case, there were at least some occasions when he and Mr Scott overlapped after then, e.g. in June 2022 when Mr Scott allocated him the SEAT gearbox job. We find that Mr Scott had raised the claimant’s productivity with him on more than one occasion before the August probation meeting. However, we accept that the issue was never raised as a formal issue with him. Mr Scott did not suggest that the claimant was specifically warned that unless his productivity improved he would be dismissed. 138. It was part of the claimant’s case that the productivity spreadsheets were inaccurate and that the criticism of his performance were false. We do accept that not every allocated task appears to have been recorded on the system. Mr Scott was not able to explain why the SEAT ATECA gearbox job to which Allegation 5 related did not appear on the productivity spreadsheet. We accept it may be that it did not because the job was not completed because the claimant had to go home. The claimant pointed to other jobs which he said were not reflected in the productivity data. We accept that if that is the case, the end result was that the claimant was not credited with the work he had done on that task because it was not completed. However, we accept that even if it was flawed, the respondent applied the same metric to everyone and genuinely Case No. 2408785/2022 22 believed that the productivity data provided an accurate basis for measuring the technicians’ productivity. 139. The respondent had prepared an analysis of the weekly productivity data for the claimant and for Mr Henry, Mr Briggs and Mr Bowdler, 3 daytime MET technicians (pp.506-521 with summary comparison table at p.522). We accept Mr Scott’s evidence that based on the productivity data, the respondent genuinely took the view that the claimant’s performance was below expectations. Although there were weeks where the claimant’s average completed weighted hours exceeded 10 hours (with an average of 15 hours in the week commencing 9 May 2022), for most weeks the claimant’s average completed hours were well below that. On balance we find his performance in terms of average completed hours was significantly worse that those of Mr Henry, Mr Briggs and Mr Bowdler. 140. We find the claimant was not the only night shift technician whose performance was criticised. Mr Scott had raised concerns about poor performance by other technicians, especially those on the night shift. On 28 July 2022 he emailed Mr Gordon with his concerns about the performance of the claimant, Mr Wells and Mr Beaumont. The Manchester night shift was eventually shut down completely because it was not providing the benefits in terms of productivity which the respondent had anticipated when it was established. Mr Bailey taking no action when the claimant complained about his work trolley being damaged, his work tools being hidden and stolen and his work bay being left in an unacceptable hazardous condition (messy, oil spillages, trash and rubbish left over) (Allegation 9) The claimant being required to clean his work bay before he started his shifts when the mess was caused by the workers on the other shift (Allegation 10) Mr Scott initially doing nothing when the claimant complained that his toolbox was missing (Allegation 11) 141. We find the technicians did not have dedicated work bays as such. However, the claimant tended to mainly use the same work bay. That was partly because that is where he kept his toolbox (which Mr Scott described as “big as a small house” so not something that would be moved from bay to bay). The other reason was that the bay in question had a ramp which the claimant needed when working on some of the heavy mechanical jobs he was allocated as a specialist Mechanical MET Technician. 142. We find that the day shift technicians did leave the bays messy at the end of their shift. We accept Mr Wells’ evidence that that happened regularly but not all the time. We find that the state in which the bays were left by the previous shift was an ongoing source of complaint for the claimant and other technicians. Mr Scott confirmed that the night shift complained about the day shift leaving the bays messy and vice versa. 143. Mr Wells’s unchallenged evidence was that the mess happened because the day shift technicians were trying to finish off bits of work before their shift ended. Mr Scott acknowledged that there was not always time for technicians to tidy up the bays at the end of a shift. His unchallenged evidence was that if he or another manager saw Case No. 2408785/2022 23 a particularly untidy bay (such as those shown on the photographs taken by the claimant of his bay on 25 May 2022 at p.59 of the Bundle) they would expect it to be dealt with and tidied up. We accept his evidence that he would on occasion leave notes on the White Board asking technicians on a shift to have a tidy up if they had time. We find that keeping bays tidy came lower in the priority order for management than getting tasks completed. 144. The bay the claimant used was not the only bay left needing a tidy up at the start of the night shift. We find it was a problem common to all the night shift technicians. Mr Brennan confirmed that the note at p.200 of the Bundle was one he had left for the day shift because they had not tidied up an area in which he worked. He confirmed in evidence that the day shift left the bay he used in a mess. During his appeal against his dismissal on 9 May 2022 Mr Brennan also complained that parts and materials had been hidden by the day shift to prevent his carrying out work correctly. 145. The claimant suggested that his bay was left in a worse state than other bays and was hazardous. We accept his evidence that on occasion his bay would be left by the day shift with oil spillages, old car parts and scrap. We also accept his evidence that he was annoyed and frustrated that he had to clean somebody else's mess before he could start his own work, particularly when he made an effort to leave his bay tidy at the end of his shift. 146. In the absence of any evidence from Mr Bailey, we accept the claimant’s evidence that he complained to Mr Bailey about his trolley being damaged and about having to tidy up his bay because of mess left by the day shift. We also accept his evidence that when he did complain, Mr Bailey told him not to tidy up the bay otherwise the day shift would get used to him doing so and there would be no incentive for them to keep the bay tidy themselves. The claimant’s own evidence was that Mr Bailey said he would talk to the day shift. The claimant said that despite that the problems continued. 147. Allegation 9 refers to the claimant’s “work tools” being stolen and hidden and Allegation 11 refers to the claimant’s” toolbox” being missing. However, the claimant’s evidence only related to one of his tools going missing, namely an electric impact gun and the battery for it. We find that tools did occasionally go missing for 1- 2 days as technicians moved from bay to bay to carry out different tasks. 148. We find the claimant noticed the gun and battery were missing on Monday 18 July 2020. We find the claimant was frustrated and upset by the missing gun. It was his personal tool which he used a lot. We find that he believed it had been taken by someone. The claimant asserted that Mr Scott knew who had taken the gun from day 1 but that was not put to him in cross-examination, and we accept Mr Scott’s evidence that that was not the case. 149. The claimant attended a daytime training course on Monday 25 July. He spoke to Mr Bailey before the shift on Tuesday 26 July to say he was not coming in because he was stressed (p.165). He was absent for the shifts beginning Tuesday 26 and Wednesday 27 July. Case No. 2408785/2022 24 150. He returned to work for the night shift starting on Thursday evening, 28 July. We find that he had still not found the gun so he spoke to Mr Scott about it. He followed that up with a text message to Mr. Scott on the following afternoon (a non-working day for the claimant). We accept Mr Scott’s evidence that the claimant first discussed the missing tool with him on 28 July. 151. We accept Mr Scott’s evidence that he spoke to a day-time technician, Mr Briggs, who realised that he had picked up the claimant's gun thinking it was his own. Mr Scott’s evidence was that Mr Briggs had an impact gun of the same brand and colour as the claimant. The claimant disputed that, but we prefer Mr Scott’s evidence on this point. We found his evidence reliable and also find it plausible that some of the technicians would have similar tools. 152. Mr Scott returned the gun to the claimant’s toolbox and texted him to confirm it had been returned. Mr Scott could not remember when the gun was returned to the claimant. His text message to the claimant was in the Bundle (p.167). Unfortunately, it was not very legible. However, doing our best with it, it appears to us that it was sent the same day as the claimant’s message. If that is correct, then the tool was returned within a day or so of the claimant raising the issue with Mr Scott. If we are wrong about that, it must have been returned at the latest within a week of his doing so because the following week was the last week the claimant worked for the respondent. The respondent held the claimant’s probation review meeting on 8 August 2022, one month before the probationary period ended. The respondent made a decision to terminate based on false accusations with no right to appeal the decision. (Allegation 12) 153. We understand this allegation to involve 3 elements. The first is said to be holding the probationary review a month early. The second is the decision to terminate the claimant’s probation based on “false accusation”. The third is not giving the claimant a right to appeal. The second element overlaps with Allegation 13 so we deal with it below in setting out our findings on that allegation. 154. For this allegation, the claimant relied on Mr Brennan as an actual comparator. The respondent’s probationary policy 155. Both the claimant’s and Mr Brennan‘s employment were subject to a probation period of 6 months. We find the respondent’s standard approach to all new employees. 156. Clause 3 of the claimant’s contract of employment confirmed that “the [respondent] will assess and review [the claimant’s] work performance during this time and reserves the right to terminate your employment at any time during your probationary period”. 157. The respondent had a “Manager’s Guide to Probationary Periods” (pp.83-87). It said that: a. probationary reviews should be held at the end of months 1 and 3, with a final probationary review at the 6-month point. Case No. 2408785/2022 25 b. The reviews should be minuted and support given to workers not meeting required standards. c. Where a manager had serious concerns about a new starter’s suitability the manager should contact their People Partner as soon as possible and if appropriate, set up a formal meeting with the new starter. d. Where there was sufficient evidence that the required standards were not being met and were unlikely to be met employment could be terminated at any stage during the probationary period. e. If an employee failed their probation the manager must set up a formal meeting with a new starter. That meeting had to take place before the probation end date. f. The employee was entitled to a minimum of one working day’s notice of the meeting and to be accompanied at that meeting by a colleague or trade union representative. g. Minutes of the meeting should be taken by another manager or (if that were not possible) a member of the People team. The new starter had to be provided with an outcome letter. The manager should draft that letter and send it to the People Admin Team for review. h. There were template letters including for the invitation to the formal meeting and the outcome letter. i. There was no reference in the guide to a right of appeal against a decision to terminate employment for failing probation. 158. The respondent had a “Manager’s Guide to Appeals” (pp.301-304). It did not refer to probationary dismissals. Under the heading “What is an Appeal” it said: “Team Members have the right to submit an appeal following the outcome of any formal process, including • Disciplinary • Grievance • Absence review • Flexible working • Capability • Redundancy”. Mr Brennan’s probation review, appeal and reinstatement 159. As we have said, Mr Brennan started work on the night shift on 7 March 2022. Like the claimant, his probationary period was 6 months. He was dismissed by Mr Bailey in his office on 9 May 2022, some 2 months into his probationary period. 160. In Mr Bailey’s letter dated 16 May confirming the decision to terminate (p.134) that meeting was referred to as a probation review meeting. We find it was nothing like the formal review meeting envisaged by the respondent’s “Manager’s Guide”. Case No. 2408785/2022 26 There was no second manager or People team member there to take minutes. We find it was a short meeting which consisted of Mr Bailey telling Mr Brennan that he had failed his probation because of absences and timekeeping. 161. Those reasons were confirmed in the letter of termination. Specifically: “Your absences, reporting of absences and time keeping has affected your fellow colleagues and had an effect on the business too.” 162. The letter confirmed that Mr Brennan’s employment terminated on 9 May 2022 and that he would receive one week’s pay in lieu of notice. We find the letter was based on a standard template. Other than minor changes to wording irrelevant to the issues in this case and the reasons for dismissal being different, it was identical to the termination letter sent to the claimant dated 9 August 2022 (p.170). Neither letter made any reference to a right of appeal against the decision to dismiss. 163. The letter was emailed to Mr Brennan by Haleema Hussain, a People Administrator with Activate Group. 164. The letter did not refer to a right to appeal against the decision to terminate employment. However, Mr Brennan did appeal. On 22 May 2022 he emailed Haleema Hussain to say he wanted to “raise an appeal for unfair dismissal”. He had previously contacted Mr Bailey and Mr Neat to say he wanted to appeal but had received no response from them. In a subsequent email exchange with Rebecca Worrell, a People Partner at Activate Group, he confirmed that he was seeking reinstatement either at Manchester or at Warrington (p.135). 165. As a result, an appeal hearing process took place. It was conducted by Derek Baker, the respondent’s Head of Health, Safety & Environment. On 1 June 2022 Mr Baker interviewed Mr Bailey and Mr Neat remotely. The appeal meeting with Mr Brennan took place on 9 June 2022. Haleema Hussain took notes of that meeting and the interviews with Mr Bailey and Mr Neat. 166. Mr Baker decided that Mr Brennan should be reinstated. He found that since Mr Brennan was not set up on the clocking in system at the point he was dismissed, there was no evidence to support the conclusion that there were problems with his timekeeping. He found there had been no formal probationary review meeting with Mr Brennan prior to his dismissal. He also concluded that Mr Brennan only had 2 days’ sickness absence according to the respondent’s HR System (Mr Bailey had suggested it was more). One of those related to having to take the day to look after his young child when his pregnant girlfriend was ill. Mr Baker found the incident which immediately preceded the termination of employment was Mr Brennan being absent because he had had to take his pregnant girlfriend to hospital. Mr Brennan had let Mr Bailey know he would ring him if he could come to work but had not left the hospital until 3 a.m. the following morning. 167. Mr Brennan was reinstated with effect from 27 June 2022. The claimant’s probation review and appeal 168. It is not disputed that the claimant’s probation period was due to end in September 2022, 6 months after he started work. At the 11 April initial review, Mr Neat had set 8 August 2022 on the Cascade HR System as the date for the next Case No. 2408785/2022 27 probation review (p.131). As we have said, there is no evidence to suggest that the claimant knew that was the case. 169. On 5 August 2022, the claimant was invited to a probationary review meeting with Mr Bailey at 4 pm on Monday the 8 August. The invitation was by an email sent to his home address. We find the invitation letter had been prepared by the Activate Group’s People Team. The letter was signed by Olivia Major, a member of that team on behalf of Mr Bailey. We find that Mr Bailey had prior to that invitation letter been in contact with the People Team about the Adblue incident (discussed under Allegation 13 below). 170. There was a dispute about what happened at the probationary review meeting itself. We had no evidence from Mr Bailey. There were no notes of the meeting other than those entered on the respondent’s HR system (pp.167 and p.305). 171. The claimant’s evidence was that the meeting was a 1-minute meeting at which Mr Bailey said “the company have decided to terminate your employment” and handed him the termination letter (p.170). However, that termination letter is dated 9 August 2022, the day after the meeting. It was signed by Olivia Major on behalf of Mr Bailey. We accept Ms Chruszcz’s evidence the People Team would not have dated the letter 9 August but provided it to Mr Bailey on 8 August. We found her evidence reliable and clear. We find that Olivia Major would have put together the letter after discussing the outcome of his meeting with the claimant with Mr Bailey on 9 August. We find that the People Team would then have emailed the letter to the claimant. That is what had happened in the case of Mr Brennan’s termination letter and we find it is consistent with the procedure in the Manager’s Guide to the Probation Process. 172. Although we do not accept that the claimant was handed his termination letter at the meeting on 8 August 2022, we accept the claimant’s other evidence about the meeting. We find it was a short meeting. We find it consisted of Mr Bailey telling the claimant his probation was terminated and briefly explaining why. We find that consistent with the way Mr Bailey had handled the equivalent meeting with Mr Brennan on 9 May 2022. We also find it consistent with Mr Baker’s findings in Mr Brennan’s appeal outcome, which was that managers at Manchester did not follow the correct procedures or maintain accurate records (p.155). 173. The claimant’s termination letter dated 9 August set out Mr Bailey’s reasons for terminating the claimant’s probation. They were that he had “not met the required standard of attendance and performance”. The specifics were set out in 3 bullet points: • You had 4 x absence occurrences • Concerns about your performance whilst at work • Evidence of misconduct 174. We accept Ms Chruszcz’s evidence that the third bullet point referred to the Adblue incident. We accept her evidence that the respondent had not made a finding of misconduct and did not base the dismissal on that. It had decided not to initiate a disciplinary process about that incident because Mr Bailey had already decided to dismiss the claimant because of his absence and concerns about his performance. 175. The termination letter did not offer a right of appeal. The claimant did not appeal against the decision. Case No. 2408785/2022 28 Findings about the treatment of other probationers – timing of termination 176. The Bundle included a data sheet which showed probation dismissals by the respondent in the 3 years to August 2024 (pp.406-407). Amongst other data it included Start and Finish dates, Job Title, Ethnic Origin and Religion. There was also a column headed “Leaver Reason”. That was “Unsuccessful Probation” for all entries, but some also specified “absence”, “conduct” or “performance”. The claimant did not refer to the sheet or suggest it showed a pattern of discrimination against non-white or Muslim probationers. We did not have sheets of data with the same headings showing the total number of probationers or successful probationers. We did not have an evidential basis for finding that non-white and/or Muslim probationers were disproportionately likely to fail their probation. 177. We accept Ms Chruszcz’s evidence that what the data does show is that probationers of various ethnic origins and religions were dismissed during their probationary period. We also find it shows that most, if not all, were dismissed before their full 6-month probationary period had expired. That was the case for those probationers employed as Technicians as well as those employed in other roles. The respondent dismissing the claimant (Allegation 13) 178. There were 3 reasons given for the decision to terminate the claimant’s employment. They were absence, performance and evidence of misconduct. We set out our findings on each below. For this allegation, the claimant relies on a hypothetical comparator rather than Mr Brennan as an actual comparator. However, it seems to us that the way Mr Brennan was treated is relevant in constructing what would have happened to a hypothetical comparator. We have set out our findings on that and on the other evidence about how other probationers were treated under the heading “The treatment of Mr Brennan and other probationers - dismissal” below. Absences 179. Absences were managed through the respondent’s HR System. Managers were supposed to record absences and subsequent return to work discussions on that system. The system would also generate prompts for managers, e.g. to carry out return to work meetings. 180. The respondent had Sickness Absence Triggers. When they were hit the HR System would prompt a manager to hold a Sickness Absence Review meeting with the employee concerned. The trigger points were: • 3 or more occasions of absence in a rolling 12-month period OR • 10 or more days of absence in a rolling 12-month period OR • A single occasion of absence lasting longer than 14 calendar days 181. By 21 June 2022 the claimant had hit the first of those trigger points. He had an absence on 26 April 2022 recorded as due to a “bad stomach” and the absences on 14 and 16 June 22 because of his sore arm. The sore arm was recorded on the HR System by Mr Bailey as “non-work related” and the claimant as saying he was “not Case No. 2408785/2022 29 sure how he had done it”. Those 3 absences in 12 months triggered the respondent’s absence review process. 182. On 21 June 2022 Mr Bailey sent the claimant a letter inviting him to an Absence Review Meeting at 4 p.m. on the following day (p.159-160). The claimant’s unchallenged evidence was that Mr Bailey had told him it was an automatically generated letter and not to worry about attending the meeting. Mr Scott (who the letter said would be in attendance) could not recall attending it. The claimant’s evidence was that Mr Scott had left by 4 p.m. We find that the absence review meeting did not take place. That seems to us consistent with the findings made by Mr Baker in Mr Brennan’s appeal that proper procedures like return-to-work meetings were not held as they should at the Manchester repair centre. Mr Bailey recorded the claimant’s absences as requiring “no further action” on the respondent’s Cascade HR system. 183. Mr Scott and Ms Chruszcz’s unchallenged evidence was that hitting the Sickness Absence Triggers during probation would usually result in a probation being terminated. We had no evidence from Mr Bailey and there were no records of the meeting so we do not know why the claimant’s employment was not terminated at that point. Mr Scott suggested that it was because the meeting was held as an Absence Review Meeting rater than a Probation Review Meeting. The respondent’s sickness absence process envisaged an employee being issued with first and final written warnings before they were dismissed for sickness absence. In contrast, an employee could be dismissed for sickness absence at a probation review meeting without previous warning having been issued. 184. The claimant had a further day’s sickness absence on 26 July 2022. The reason was the claimant saying “he wasn't coming into work as he was stressed”. The absence took the claimant’s total absences to 4 days in 5 months. It was recorded as requiring “no further action” on the respondent’s HR System. Performance 185. We have already set out our findings about the respondent’s view of the claimant’s performance in relation to Allegations 6-8 above. We accepted that even if the claimant is correct that there were actually flaws in the data, the respondent genuinely believed it was reliable and based their assessment of the technicians’ productivity on it. We accept Mr Bailey genuinely believed the claimant’s performance was not of the required standard based on that data. Evidence of misconduct - The Adblue incident 186. The claimant accepted that in July 2022 he used Adblue from work in his car. Adblue is a liquid additive used for certain diesel engines. The claimant’s evidence was that at the end of one of the night shifts (so around 4 a.m.) the warning light on his car was flashing to tell him to add more Adblue. He accepted that it had been flashing before he arrived for that shift. Because he had to drive 56 miles to get home the claimant (in his words) “borrowed” 2L of Adblue to top up his car. His evidence was that he had paid “Kenny” £20 for the Adblue. We find that must have been after the event because there was no Kenny working on the night shift. 187. Mr Scott’s unchallenged evidence was that the Adblue was need for a job the day shift was doing. When they couldn’t find it, Mr Scott reviewed the CCTV to try and Case No. 2408785/2022 30 track down what had happened to it. The CCTV showed the claimant taking the Adblue, putting it in his car and then putting the empty container in a skip. Mr Scott raised the incident with Mr Bailey. We accept Ms Chruszcz’s evidence that Mr Bailey then discussed the incident with Olivia Major and Rebecca Worrell of the People Team. They agreed that the incident was potentially gross misconduct and breach of trust and confidence. However, we find that because Mr Bailey was going to terminate the claimant’s employment because of his absences and performance, it was decided it would not benefit the claimant or the respondent to prolong matters by starting a disciplinary process relating to the Adblue. Both Ms Chruszcz’s and Jim Gordon (the respondent’s Operations Director) were made aware of that approach and agreed with it. Given the entry created by Rebecca Worrell on the respondent’s HR Management System was at 2.45 p.m. of the 5 August 2022 (p.305) we find those discussions took place on or shortly before that date. 188. The respondent accepted that it did not investigate the claimant’s alleged misconduct. It did not therefore know what the claimant’s explanation for his actions were. It did not investigate whether the claimant had paid “Kenny” for the Adblue and we had no findings about that beyond the claimant’s evidence. The treatment of Mr Brennan and other probationers - dismissal 189. As we recorded in relation to Allegation 12, Mr Brennan was initially dismissed in May 2022 for continuous lateness and absence. He had not reached the trigger point for an Absence Review Meeting on the HR System. At the point he was dismissed he had 2 days’ absence recorded on the HR System (though Mr Bailey told Mr Baker that he believed there was a further day which had not been recorded). Mr Bailey reported no problems with his performance in terms of productivity or quality of work (p.148). Mr Bailey believed Mr Brennan had failed to adequately notify him that he would not be coming in for a shift. 190. Although we did not have specific details of the treatment of other probationers, we find, based on the probationers’ data sheet (pp.406-407) that the respondent did dismiss other probationers (including those not sharing the claimant’s race and/or region) for reasons of performance, conduct or absence. The claimant’s holiday and pay complaints 191. The claimant clarified his holiday pay and unauthorised deduction complaints in his witness statement and during the hearing. As explained above, the respondent conceded 2 elements of the unauthorised deduction complaint. We set out our findings about the remaining complaints in this section. The claimant’s holiday entitlement and relevant contract terms 192. Clause 6 of the claimant’s contract of employment authorised the respondent to make deductions from the claimant’s pay in certain circumstances. They included where there had been an overpayment of wages and where the claimant had taken holiday in excess of his accrued entitlement at the point his employment terminated. 193. Clause 12 of the contract of employment dealt with holiday entitlement. It provided that: Case No. 2408785/2022 31 a. The claimant’s holiday entitlement was based on a full-time entitlement of 25 days. b. That entitlement was pro-rata’d where employees worked part time. c. The holiday year was the calendar year. d. The respondent also recognised 8 public holidays per annum. e. The claimant might be required to work bank holidays. f. If he did so, he was entitled to his normal hourly rate and equivalent time off in lieu for the hours worked. g. On termination of employment the claimant was entitled to holiday pay for any holiday entitlement accrued but untaken at the date of termination. 194. On termination of employment the respondent was entitled to make a deduction from the claimant’s final payment to reflect holiday taken in excess of holiday entitlement accrued at the date of termination. 195. The claimant worked 4 days a week. He was entitled to a pro-rata’d entitlement of 20 days per full holiday year. He was also entitled to holidays equivalent to the public holidays which fell on his working days. 196. In 2022 there were 10 public holidays. Good Friday and the Platinum Jubilee Bank Holiday on Friday 3 June fell on days which were not working days for the claimant. The remaining 8 fell on the claimant’s usual working days. Complaint 1 – Monday 18 April 2022 (claimant’s witness statement para 13) 197. The claimant complained that he had been required to book Monday 18 April 2022 (which was a Bank Holiday) as a day’s leave even though he was not expected to work on that day. He also said he had only been paid £75 for that day. 198. We find that Monday was a working day for the claimant. We accept he booked Monday 18 April 2022 as a day’s leave. 199. We do not accept the claimant’s complaint that he was only paid £75 for that day. The claimant was salaried. His payslip for April 2022 (p.307) shows he was paid his usual salary for that month (£3241.33) with no deductions other than tax, national insurance and pension. Complaint 2 – the respondent made an unauthorised deduction of £620.84 from the claimant’s final pay which did not correctly reflect the holidays accrued and taken (claimant’s witness statement para 13.1) 200. It was not disputed that the respondent had made a deduction of £620.84 from the claimant’s final pay on account of over paid holiday. 201. The claimant said he was entitled to 25 days holiday plus public holidays because he was contracted to work 44 hours a week. We find his entitlement was based on his working 4 days a week, so was 4/5 of the full-time entitlement of 25 days plus public holidays. Case No. 2408785/2022 32 202. The claimant’s evidence was that he only took 8 days’ holiday during his employment with the respondent, namely 4-14 July 2022. We prefer the respondent’s evidence that the claimant took 9 days’ leave from 30 June to 15 July. That is consistent both with the holiday record (p.524) and the clocking in records (p.423) for that period. Based on the holiday record we also accept the respondent’s evidence that the claimant also took leave on 14 April and 2 days leave on 27-28 April 2022. In addition to those 12 days’ leave the claimant took 3 public holidays during his employment where they coincided with his normal working days. That means the claimant took a total of 15 days leave (including public holidays) during his employment with the respondent. 203. The claimant’s period of employment by the respondent was 154 days giving him around 0.42 of his annual leave entitlement at the point his employment was terminated. We accept Ms Chruszcz’s calculation that this meant the claimant’s total accrued leave (including public holidays) by the time of dismissal was 11.3 days, meaning he had taken 3.7 days’ in excess of his entitlement. 204. The claimant’s equivalent daily rate of pay (calculated by dividing his annual salary by 52 weeks and then 4 shifts per week) was, at the time of his termination of employment, £187 per day. 205. Apart from deductions for sickness absences, we find the claimant was paid in full for the months in which he took leave. There was no deduction in those months related to holiday, only in his final pay in August. Complaint 3 – that the claimant attended an ATA Level 3 course on 25 July 2022 but was not paid for that day. The claimant says that that money was deducted from his final wages and that the respondent marked the course day as a sick day (claimant’s witness statement para 13.2) 206. There was no dispute that the claimant attended the training course on 25 July 2022. Other than the deduction of £209.06 for “previously paid” conceded by the respondent to be unauthorised, there are no deductions shown on his payslip for July 2022 other than those relating to tax, national insurance and pension. 207. The claimant’s payslip for August 2022 does show a deduction of £187 relating to a “sick day”. We have found that the claimant had a day’s sick leave on 26 July 2022. That was not reflected in the payslip for July 2022. We find the likely explanation is that the sickness absence day was reported too late to the respondent’s payroll to be reflected in the payroll for July. In any event, we are satisfied that that deduction relates to the sickness absence on 25 July 2022 rather than to the claimant attending a training course on 25 July. Complaint 4 – that the claimant should have been paid one week’s pay in lieu of notice (claimant’s witness statement para 13.3). 208. The claimant said that he worked 88 hours (i.e. 2 weeks) at £17 per hour in August which was the equivalent of £1,496 plus £200 night shift bonus plus £748 of a week in lieu, so that in total he should have been paid £2,444. 209. We find that in August the claimant worked 4 days from 1-4 August 2022, which was his usual working week. He then attended the meeting with Mr Bailey at the start Case No. 2408785/2022 33 of his shift on 8 August and was told he was dismissed. He did not work for the respondent after that. We find he was paid a week in lieu of notice, i.e. the equivalent of a further 4 days which was his normal working week. 210. The claimant’s August pay (before deductions) was £1683.00. We find that amounts to 9 days’ pay at £187 per day. Discussion and Conclusions The direct discrimination and harassment complaints 211. We have set out below our conclusions on each of the allegations in the Schedule of Allegations. Each of those allegations was relied as an act of race or religion related harassment or, in the alternative, as an act of direct race or religion discrimination. Taking each allegation in turn, we first set out our decision on whether the complaint of direct discrimination succeeds and then whether the complaint of harassment succeeds. 212. In relation to some of the allegations, the respondent submitted that the treatment or conduct complained of did not amount to a detriment. Where that submission was made we have dealt with it in our decision. For the other allegations that submission was not made. For the avoidance of doubt, in relation to those allegations we find that (where we found as a fact that the alleged treatment or conduct complained of did occur) it amounted to a detriment. Allegation 1 - Mr Bailey’s remark about lone working Direct race or religion discrimination: 213. Mr Bailey did make the remark to the claimant about lone working. 214. We do not accept that in making he remark Mr Bailey treated the claimant less favourably than he would have treated any other employee who did not share the claimant’s race or religion. The burden is initially on the claimant to prove facts from which we could conclude that Mr Bailey had treated him less favourably. The only argument he put forward was that the comment was made to him and he was the only Libyan Arab employee and the only Muslim employee on the night shift. However, to discharge the burden at the first stage, there must be something more than a difference in the relevant protected characteristic and a difference in treatment (Madarassy). There must be “something more” for the burden of proof to pass to the respondent. 215. The question for us is whether Mr Bailey would have made the same comment to a non-Libyan Arab or non-Muslim employee who had been lone working. We are satisfied that Mr Neat would have told Mr Bailey that it was unacceptable for any employee (regardless of race or religion) to be lone working. We are also satisfied that Mr Bailey would then have told an employee who had been lone working that they could no longer do so regardless of their race or religion. 216. Taking all that together we find the claimant failed to prove facts from which we could conclude that discrimination had occurred. In those circumstances the burden does not pass to the respondent to provide a non-discriminatory explanation. Case No. 2408785/2022 34 217. For completeness we will deal with the issue of “detriment”. Mr Singer for the respondent submitted that it could not be a “detriment” for a manager to tell an employee to stop working in a way which was potentially risky to that employee. By instructing the claimant not to lone work, Mr Bailey was removing him from a potentially dangerous situation. Even allowing for the low threshold required to prove a “detriment”, had we found that there was discrimination we would have accepted that submission. We do not think that a reasonable employee might have regarded being told not to lone work as a disadvantage. 218. The direct race or religion discrimination complaints relating to Allegation 1 fail. Race-related or religion-related harassment 219. We accept that Mr Bailey telling the claimant he could no longer lone work was unwanted conduct. We find the conduct was not race related nor related to the claimant’s religion. In considering the direct race discrimination complaint we decided that neither Mr Neat nor Mr Bailey’s behaviour was because of the claimant’s race or religion. We remind ourselves that the “related to race/religion” test in a harassment complaint is broader. The burden of proof is still on the claimant to prove facts from which we could conclude that harassment had occurred. The claimant did not put forward any evidence from which we could conclude that the conduct was related to his religion or his race. There was no evidence that Mr Bailey said anything to the claimant in making the comment which was explicitly racist or referred directly or indirectly to the claimant’s race or religion. 220. This allegation of harassment fails because the conduct was not race-related nor related to the claimant’s religion. 221. For completeness, we confirm that we also do not accept that Mr Bailey’s conduct had a harassing purpose. We found he was passing on Mr Neat’s clear instruction that the claimant should not lone work for health and safety reasons. For the avoidance of doubt, we also do not find that Mr Neat’s conduct had a harassing purpose. He was instructing Mr Bailey to ensure that employees complied with the respondent’s policy not to lone work. 222. We also do not accept that the conduct had a harassing effect. We accept that the claimant felt it was unfair that Mr Bailey was now telling him that he must not lone work when Mr Bailey had known he was doing it. However, the threshold required for conduct to have a harassing effect is higher than feeling unfairly treated. We are not satisfied that the claimant found Mr Bailey’s remark to have a harassing effect. He did not complain about it. Even if the claimant’s belief was that the conduct met the threshold for harassing effect required by s.26 of the Equality Act 2010 we do not find it was reasonable for it to have that effect. Mr Bailey was passing on a reasonable management instruction, the effect of which was to protect the claimant. 223. We did not find that Mr Neat or Mr Bailey’s conduct was race-related or related to the claimant’s religion. Even had we done so, the harassment complaint would have failed because it did not have a harassing effect or purpose. 224. The complaints of race-related or religion-related harassment related to Allegation 1 fail. Case No. 2408785/2022 35 Not requesting or offering that the claimant could change his contracted hours (Allegation 2) Direct race or religion discrimination: 225. Although this allegation involved 2 of the claimant’s colleagues, Mr Wells and Mr Beaumont, we understand the claimant to rely on a hypothetical comparator. His complaint, as we understand it, is that he was treated less favourably because he was not given the chance to change his hours when Mr Wells and Mr Beaumont started beginning their night shifts before he arrived. 226. Our findings of fact were that the situation whereby Mr Wells and Mr Beaumont started their shifts earlier than the claimant was a situation which developed without any managerial involvement. They did not ask for permission to start their shift early nor were they requested to. On the facts, the claimant was treated the same as them in that he could choose when he started his shift. In practice he had to start later. That was nothing to do with his race or religion but simply because he lived further away and his domestic arrangements meant he could not get to work earlier. 227. We do accept the claimant’s argument that that the effect of his colleagues’ starting earlier than he could was that (after being told by Mr Bailey he could not lone work) he had to finish his shift slightly earlier, sometimes without having worked his 11 hours per shift. 228. The question for us is whether an employee in the same material circumstances as the claimant but who did not share his race or religion would have been treated differently. The burden is initially on the claimant to prove facts from which we could conclude that he was treated less favourably because of race or religion. He was not able to do that. The fact that he was a Libyan Arab employee and a Muslim employee and neither Mr Wells nor Mr Beaumont shared his race or religion does not seem to us to be sufficient to pass the burden. The evidence is that they were treated the same as the claimant to the extent that they were all allowed to set their own start times. The “something more” required to pass the burden of proof is missing. 229. We find the claimant failed to prove facts from which we could conclude that discrimination had occurred. In those circumstances the burden does not pass to the respondent to provide a non-discriminatory explanation for what happened. 230. For completeness we will deal with the issue of “detriment”. In this case, we accept that the low threshold required to prove a “detriment”, would have been met had we found that there was discrimination. We accept Mr Singer’s submission that because the claimant was paid a salary rather than per hour, cutting short his shift did not reduce his basic pay. We find, however, that it would result in a potential disadvantage by reducing the claimant’s recorded productivity because he had less time to complete the tasks allocated to him. That increased the risk of his being subject to being penalised for low productivity and decreased the chance of his being able to earn a productivity bonus. 231. We do think that an employee might reasonably have regarded having the hours they could work curtailed because their colleagues started earlier than them a disadvantage given that it might impact on their productivity. Case No. 2408785/2022 36 232. However, in the absence of less favourable treatment because of race or religion, the direct race or religion discrimination complaints relating to this allegation fail. 233. The direct race or religion discrimination complaints relating to Allegation 2 fail. Race-related or religion-related harassment 234. An omission or failure to do something can be “conduct”. 235. In deciding the direct discrimination complaint relating to this allegation, we found the claimant had failed to discharge the burden of proving facts from which we could conclude that the respondent’s actions (or failures to act) were because of the claimant’s race or religion. The “related to race/religion” test in a harassment complaint is broader but the burden of proof is still on the claimant to prove facts from which we could conclude that harassment had occurred. The claimant did not put forward any evidence from which we could conclude that any conduct was related to his religion or his race. The difference in race and religion between him and Mr Wells and Mr Beaumont is not sufficient to do so. 236. This allegation of harassment fails because the conduct was not race-related nor related to the claimant’s religion (Issue 2.3). 237. There was no evidence that there was conduct with a harassing purpose (Issue 2.4). We also do not accept that the conduct had a harassing effect (issue 2.5). We accept that the claimant felt it was unfair that he was having to finish “early” to fit in with his colleagues’ chosen working pattern. The claimant’s evidence did not suggest that he viewed the situation as having a harassing effect meeting the threshold required by s.26 of the Equality Act 2010 nor do we find it was reasonable for it to have that effect. The situation might have been unfair (because it arguably limited the claimant’s ability to achieve productivity bonuses) but we do not find it could reasonably be viewed as violating the claimant’s dignity nor as creating an intimidating, hostile, degrading, humiliating or offensive environment. 238. We do not find that allegation 2 involved conduct which was race-related or related to the claimant’s religion. Even had we done so, the harassment complaint would have failed because it did not have a harassing effect or purpose. 239. The complaints of race-related or religion-related harassment related to Allegation 2 fail. Heavy mechanical jobs being assigned to the claimant rather than being sent to external specialists (Allegation 3) Direct race or religion discrimination: 240. The respondent accepted that the claimant was allocated heavy mechanical jobs some of which would have been sent to Warrington before he started. We find he was not exclusively given the heavy jobs but accept that he was allocated more of the heavy mechanical jobs than the MET Technicians working on the day shift at Manchester. Case No. 2408785/2022 37 241. The claimant relies on a hypothetical comparator. We accept the respondent’s case that the claimant was employed as a Mechanical MET Technician. We find the appropriate comparator is a Mechanical MET Technician based at Manchester of a different race or religion to the claimant who had, like the claimant, expressed a preference for doing such mechanical jobs. 242. The claimant did not establish facts from which we could conclude that he was treated less favourably than such a hypothetical comparator would have been. He relied on the fact that he was the only Libyan Arab and only Muslim MET Technician. That is not enough to pass the burden of proof. 243. We are satisfied that the claimant was allocated heavier work because he had the skills to do it and had expressed a preference for doing such work. It avoided the need for work to be sent off site and meant it could be done by the person best qualified to do it. 244. The complaints of direct race or religion discrimination relating to Allegation 3 fail. Race-related or religion-related harassment 245. We find that the claimant being allocated heavier mechanical job was not unwanted conduct. We found that the claimant stated a preference for that kind of work. He did not complain or raise concerns about being allocated that work at the time. The exception was when he hurt his arm (allegation 5) but that was linked to his injury rather than being a general concern about allocation of work. 246. In the absence of unwanted conduct, the harassment complaints related to Allegation 3 fail. 247. For completeness, we confirm that we also find that the conduct was not race- related or related to the claimant’s religion. The claimant did not prove facts to pass the burden of proof. He was allocated the work because he was the best person to do it and had expressed a preference for it. 248. We also accept Mr Singer’s submission that the conduct did not have a harassing purpose or harassing effect. The claimant himself raised no complaint about the work allocation at the time and we do not find it would have been reasonable for it to have a harassing effect given the claimant’s stated preference for the heavier work. In any event, even if the claimant did consider it unfair, we do not find that (by itself or taken with any other conduct) it met the threshold for a harassing effect required by s.26 of the Equality Act 2010. 249. The complaints of race-related or religion-related harassment related to Allegation 3 fail. On one of his shifts the claimant being assigned a heavy job (automatic transmission) which needed two people (Allegation 4) 250. We find this allegation related to the gearbox job on the SEAT ATECA. The claimant was assigned it in early-mid June 2022 and it led to the incident where the claimant hurt his arm on the night shift 13-14 June 2022 (see allegation 5 below). We Case No. 2408785/2022 38 found the job was originally allocated to a day shift MET Technician, but they had not been able to complete it, so Mr Scott reallocated it to the claimant. Direct race or religion discrimination 251. The respondent accepted that the claimant was allocated the SEAT gearbox job. The claimant relies on a hypothetical comparator. We accept the respondent’s case that the claimant was employed as a Mechanical MET Technician. We find the appropriate comparator is a Mechanical MET Technician based at Manchester of a different race or religion to the claimant who had, like the claimant, expressed a preference for doing such mechanical jobs. 252. The claimant did not establish facts from which we could conclude that he was treated less favourably than such a hypothetical comparator would have been. He relied on the fact that he was the only Libyan Arab and only Muslim MET Technician. That is not enough to pass the burden of proof. 253. The claimant suggested that he was treated less favourably than the day shift MET Technician who was originally allocated the task but failed to complete it. At times the claimant appeared to suggest he was allocated the job because that technician refused to do it. We do not accept that was the case. We find that the claimant was allocated the gearbox job by Mr Scott because it involved the kind of complex mechanical work for which the claimant had expertise as a Mechanical MET Technician. 254. We do not find that a mechanical MET Technician who did not share the claimant’s race or religion would have been treated any differently. We find that Mr Scott’s sole concern was making sure the job was completed as efficiently as possible and without delay. It made sense to assign it to the claimant as the Technician with the skills to carry it out. 255. The complaints of direct race or religion discrimination relating to Allegation 4 fail. Race-related or religion-related harassment 256. We find that the claimant being allocated the SEAT gearbox job was not unwanted conduct. We found that the claimant stated a preference for that kind of work. He did not complain or raise concerns about being allocated that work at the time until he injured his arm. His concern then was to be given light work. He did not suggest at the time that he should not have been given the gearbox job. 257. In the absence of unwanted conduct, the harassment complaints related to Allegation 4 fail. 258. For completeness, we confirm that we also find that the conduct was not race- related or related to the claimant’s religion. The claimant did not prove facts to pass the burden of proof. He was allocated the job because he was the best person to do it and had expressed a preference for it. 259. We also accept Mr Singer’s submission that the conduct did not have a harassing purpose or harassing effect. The claimant himself raised no complaint Case No. 2408785/2022 39 about the work allocation at the time and we do not find it would have been reasonable for it to have a harassing effect given the claimant’s stated preference for the heavier work. In any event, even if the claimant did consider it unfair, we do not find that (by itself or taken with any other conduct) it met the threshold for a harassing effect required by s.26 of the Equality Act 2010. 260. The complaints of race-related or religion-related harassment related to Allegation 4 fail. The respondent continuing to assign the claimant heavy jobs despite knowing that his GP had advised him not to do heavy lifting (Allegation 5) 261. We found that the respondent did know that the claimant’s GP had advised him to avoid heavy lifting for 2 weeks. The claimant had reported that to Mr Bailey. There was, however, no fit note or other written confirmation of how long that adjustment to duties should last. The claimant accepted that he had been given lighter jobs for 3-4 days. We understand his complaint to be that after that initial 3-4 day period he started being allocated heavy jobs again. Direct race or religion discrimination 262. The claimant relies on a hypothetical comparator. We find the appropriate comparator is a night-shift Mechanical MET Technician based at Manchester of a different race or religion to the claimant who had, like the claimant, suffered an arm injury and had time off work because of it. That comparator has to be in the same material circumstances as the claimant. We find those material circumstances include that the comparator had verbally informed Mr Bailey as his manager that his GP said he should be on light duties for 2 weeks but had not supplied a fit note or written confirmation from the GP to formalise the position. We find that the fact the claimant did not complain or raise concerns to Mr Scott or Mr Bailey when they restarted allocating heavy work to him is also a material circumstance. 263. We remind ourselves that we are not deciding whether the respondent acted reasonably or followed good practice in re-starting allocating heavy work to the claimant after 3-4 days. This is a direct discrimination complaint, so the question is whether Mr Bailey or Mr Scott would have treated a hypothetical comparator in the same material circumstances differently because of race or religion. 264. The burden is initially on the claimant to prove facts from which we could conclude they did so. We find the claimant has failed to do so. He was not able to prove facts to suggest that a non-Libyan Arab, non-Muslim would have been treated any better by the respondent. As we have said in relation to previous allegations, the fact that he was the only Libyan Arab and only Muslim MET Technician is not sufficient to pass that burden of proof. 265. The respondent accepted that Mr Bailey struggled somewhat in his managerial role. We found, for example, that he went through the motions when it came to the absence management process without really engaging with it in substance (para 182). We have also found that to a large extent the night shift was left to get on with things, e.g. when it came to start and finish times. There was no managerial presence except during handover from the day shift. We find that a hypothetical comparator who, like Case No. 2408785/2022 40 the claimant, had not raised concerns when he started being allocated heavier work again would have been treated the same as the claimant. 266. The complaints of direct race or religion discrimination relating to Allegation 5 fail. Race-related or religion-related harassment 267. We do accept that the claimant being allocated heavy work again after 3-4 days amounted to unwanted conduct. The fact that the claimant did not complain or raise a concern about being allocated that heavy work to Mr Bailey or Mr Scott does not seem to make that conduct any less unwanted given his injured arm. 268. However, we find that the conduct was not race-related or related to the claimant’s religion. The claimant did not prove facts to pass the burden of proof. The difference in race or religion between the claimant and his colleagues is not enough to do so. 269. We find that the conduct did not have a harassing purpose. There was no evidence to support that. We find the allocation of work was done to ensure it was done as efficiently and effectively as possible. 270. On balance, we also do not find that the conduct had a harassing effect. As we’ve noted the claimant himself raised no complaint about being allocated heavy work again at the time. We accept the claimant found the respondent’s conduct in ignoring his GP’s advice to be wrong and unfair. However, neither in his witness statement nor his oral evidence did he suggest that the conduct created an intimidating, hostile, degrading, humiliating or offensive environment or violated his dignity. 271. The complaints of race-related or religion-related harassment related to Allegation 5 fail. The respondent accusing the claimant of poor performance (Allegation 6) The claimant being overloaded with complex jobs white counterparts refused to do and at the same time being criticised for underperforming (Allegation 7) The claimant being the victim of false allegations of underperformance by his manager (Allegation 8) 272. There is an overlap between these 3 allegations because they all relate to the respondent’s conclusion that the claimant was underperforming so we have found it convenient to deal with them together in this section of our judgment. 273. In terms of relevant findings of fact, we accepted that the claimant was told he needed to improve his performance by both Mr Neat at his initial probation review and by Mr Scott (Allegation 6). We did not find that the claimant was given jobs that white counterparts refused to do (Allegation 7). We do accept the claimant was given heavier mechanical jobs but found that was partly because he preferred them and partly because he was best equipped to do them because of his Mechanical MET specialism. Case No. 2408785/2022 41 274. We do not find that the allegation of underperformance were “false” in the sense that they were made up or not based on performance data (Allegation 8). We accept the respondent’s case that, using the metrics on which the respondent relied (i.e. completed Thatcham weighted time) the claimant was not being as productive as the respondent required. 275. We accept that the claimant might have arguments to make that the metric relied on by the respondent was an unfair one. Arguably, since he was allocated more complex tasks with longer Thatcham time weighted estimates, he was less likely to complete as many of them in a shift than if he were allocated a series of tasks with shorter Thatcham time weighted estimates to complete. Relying on completed tasks only could be argued to ignore significant time worked on a complex job which was not completed, e.g. the SEAT ATECO gearbox job. We accept the claimant’s case that other work he had done did not appear to be reflected in the productivity data. 276. In addition, it seems to us that the metric relied on by the respondent arguably penalised the claimant because he was not always able to work his full shift because (at least from mid-June 2022 onwards) he had to leave when his colleagues on the night shift left. That might mean he would not always have the same time as them or technicians on the day shift to complete tasks. Mr Singer submitted that the extent to which the claimant was below the expected productivity target was not fully explained by the shortening of his shift. We accept there is something in that argument but find that the claimant’s productivity would to some extent inevitably be impacted by his having less time to complete his allocated task. 277. Ultimately, however the question for us is not whether the way the respondent assessed its technicians’ productivity was fair, but whether it applied that same metric to all its technicians regardless of race or religion. We find that it did. It relied on the Thatcham productivity data as the measure of productivity for its technicians. The claimant did not prove facts from which we could conclude that the negative assessment of the claimant’s productivity was because of his race or religion. 278. Dealing with the specific allegations. We find that an MET Technician not of the same race and religion as the claimant assessed by the respondent as having unsatisfactory productivity would also have been accused of poor performance. The claimant did not prove facts to pass the burden of proof in relation to this allegation (Allegation 6). 279. We have already found (Allegation 3) that the claimant was allocated the more complex mechanical work for reasons unrelated to his race or religion. We do not accept that he was allocated work white colleagues refused to do. We find that the criticism of the claimant for underperforming was based on the respondent’s view of his productivity based on the key metric by which they assessed all technicians. We have considered the argument that that metric penalised Mechanical MET Technicians allocated heavier, more complex jobs compared to other MET Technicians. Even if that is correct, any difference in treatment would be based on the technician’s mechanical specialism, not their race or religion. The claimant did not prove facts from which we could conclude that a mechanical MET Technician of a different race or religion would have been treated more favourably if their productivity was unsatisfactory when measured by the respondent’s key metric. The claimant did not prove facts to pass the burden of proof in relation to this allegation (Allegation 7). Case No. 2408785/2022 42 280. As we have already said, we did not find that the claimant was the subject of “false allegations” by his manager. The treatment alleged to be less favourbale did not occur (Allegation 8). 281. The complaints of direct race or religion discrimination based on allegations 6- 8 all fail. Race-related or religion-related harassment 282. In relation to Allegations 6-7 we accept that there was unwanted conduct. In relation to Allegation 8, we found the alleged conduct (“false allegations”) did not happen. 283. We find that the conduct was not race-related or related to the claimant’s religion. The claimant did not prove facts to pass the burden of proof. The difference in race or religion between the claimant and his colleagues is not enough to do so. The complaints fail because the conduct was not race-related or religion-related. 284. For completeness, we confirm that our finding is that the conduct did not have a harassing purpose. There was no evidence to support that. We find that the respondent monitored productivity as part and parcel of ensuring work was being done efficiently without delay. Where there were concerns about performance, that was raised with technicians. That was done as part of ordinary managerial practice, not with the aim of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. 285. We also do not find that the conduct had a harassing effect. We accept the claimant thought the criticism of his performance was unfair. He did not in his evidence suggest that the criticism of his performance created an intimidating, hostile, degrading, humiliating or offensive environment or violated his dignity meeting the threshold required by s.26 of the Equality Act 2010. We find it would have been unreasonable for it to have done so. It was part of routine workforce monitoring and management. There was no suggestion that the way that was done had a harassing effect, other than the allegation that the criticism was false (Allegation 8) which we have rejected on the facts. If anything, it was part of the claimant’s case that it had not been made sufficiently clear to him that the respondent regarded his productivity as so poor as to jeopardise his employment. 286. The complaints of race-related or religion-related harassment related to Allegations 6-8 fail. Mr Bailey taking no action when the claimant complained about his work trolley being damaged, his work tools being hidden and stolen and his work bay being left in an unacceptable hazardous condition (messy, oil spillages, trash and rubbish left over) (Allegation 9) The claimant being required to clean his work bay before he started his shifts when the mess was caused by the workers on the other shift (Allegation 10) Mr Scott initially doing nothing when the claimant complained that his toolbox was missing (Allegation 11) Case No. 2408785/2022 43 Direct race or religion discrimination 287. It is convenient to deal with these 3 allegations together because of their shared context. That context was that the day shift did on occasion leave the workshop in an untidy or messy state at the end of the shift. We find that the workshop being left untidy with something which affected all the night shift technicians, regardless of race or religion. 288. To the extent that the claimant’s bay was left in a “worse” condition, with oil spillages or mechanical trash we find that was a product of the kind of work that was done in that bay, i.e. heavier mechanical work. The claimant’s allegations related to the response of management to events rather than to the actions of the day shift workers in leaving the workshop untidy. For the avoidance of doubt, however, we do not accept that the claimant‘s bay was “targeted” because of his race or religion. The claimant did not prove facts from which we could find that was the case. The evidence we did hear was to the contrary, making it clear that the issue also affected his white, non-Muslim colleagues on the night shift. 289. When it comes to Allegation 9, the claimant’s own evidence was that when he spoke to Mr Bailey, he said he would speak to the day shift. We did not hear evidence from Mr Bailey, but the claimant was not in a position to say he hadn’t done so. He relied on the fact that the untidiness continued as evidence that Mr Bailey had not spoken to the day shift. It does not seem to us that that follows. Mr Bailey may have done so but been ignored. On balance, however, we find that Mr Bailey did not take any effective action so the factual basis of the allegation is made out. 290. For the claimant’s direct discrimination complaints to succeed, we have to be satisfied that he was treated less favourably than a hypothetical comparator would have been in the same circumstances. We find the relevant hypothetical comparator for Allegation 9 was a Mechanical MET technician who raised the same complaints to Mr Bailey as the claimant did but who was of a different race or religion. We find that a hypothetical comparator would have been treated in the same way. There was no evidence that Mr Bailey would have responded any more effectively if the same complaints were being made by a comparator who was not of the same race or religion as the claimant. The claimant did not prove facts to pass the burden of proof. The evidence was that technicians, regardless of race or religion, faced ongoing problems with the workshop being left untidy. 291. When it comes to Allegtaion 10, the claimant own evidence was that when he raised the issue of his bay being a mess with Mr Bailey, he told the claimant not to tidy it up otherwise it would encourage the day shift not to take responsibility for doing so. In that sense, the claimant was not, on the facts, “required” by Mr Bailey to clean his work bay. However, we accept that the claimant was “required” to clean his work bay in the sense that he had to do so before he could start. When it comes to this allegation, we do not accept that he was treated any less favourably than a hypothetical comparator would be. We find the hypothetical comparator was a Mechanical MET technician working on the night shift of a different race or religion to the claimant. We find that such a comparator would also have had to clean up the bay before starting work. The claimant did not prove facts from which we could conclude that they would have been treated any differently. The evidence we did hear pointed the other way. We found that Mr Scott gave instructions (via the Whiteboard) to all the night shift Case No. 2408785/2022 44 technicians to tidy up. We found Mr Brennan also had to tidy up mess left by the day shift. 292. We find that Allegation 11 should refer to the claimant’s electric impact gun and battery rather than his toolbox. This allegation fails on the facts. We found that after the claimant raised his missing gun with Mr Scott, he took steps to find and return the tool to the claimant. On our findings, he did so within a day or so of being asked about it by the claimant on 28 July. Even if we are wrong about that, he did so within the most a week. We do not find that the claimant’s allegation is supported by the facts and the complaint relating to it fails on that basis. If we are wrong about that, the complaint would have failed because the claimant did not prove facts to pass the burden of proof. He did not put forward any facts to suggest that Mr Scott would have acted differently had the claimant been of a different race or religion. The fact of the claimant’s race and religion is not in itself sufficient to do so. 293. For the reasons set out above, the complaints of direct race or religion discrimination arising from Allegations 9-11 all fail. Race-related or religion-related harassment 294. We accept that Mr Bailey failing to take action (Allegation 9) and the claimant having to clean up his bay (Allegation 10) amount to unwanted conduct. We do not accept that any such conduct was race-related or related to the claimant’s religion. Even allowing for the broader “related to” test which applies to harassment complaints, the claimant did not prove facts from which we could conclude that was the case. The claimant was not able to point to anything other than his race and religion as the basis for his claim that the conduct was race or religion related. As we have said in relation to the discrimination complaints relating to these Allegations, the evidence was that all the technicians experienced similar issues to the claimant. The complaints of harassment relating to Allegations 9 and 10 fail on the basis that the conduct was not race-related or religion-related. 295. We have already said that Allegation 11 fails on the facts-Mr Scott did initially take action about the missing tool. If we are wrong about that and the conduct did take place we would have found that it was unwanted. The complaint would have failed for the same reasons as Allegations 9 and 10 did, i.e. the absence of any evidence that the conduct was race-related or religion-related. 296. For the reasons given above, the complaints of race-related and religion- related harassment based on Allegations 9-11 fail. The respondent held the claimant’s probation review meeting on 8 August 2022, one month before the probationary period ended. The respondent made a decision to terminate based on false accusations with no right to appeal the decision. (Allegation 12) Direct race or religion discrimination 297. As we said in our findings of fact, we understand this allegation to involve 3 elements. We deal with the second (the decision to dismiss) when dealing with Allegation 13. Case No. 2408785/2022 45 298. The first element was holding the probationary review a month early. The claimant relied on Mr Brennan as his actual comparator. We find there was no less favourable treatment of the claimant compared to Mr Brennan. To the contrary, Mr Brennan was treated less favourably than the claimant. Mr Brennan’s probation review meeting was held after only 2 months of his probation rather than after 5 months as the claimant’s was. The fact that Mr Brennan was reinstated after appeal does not seem to us to negate the decision to also hold his probationary review meeting early, i.e. before the end of probationary period. 299. We find holding probationary review meetings before the end of a probation period consistent with the claimant’s Contract of Employment and the Manager's Guide to Probation. Both are clear that a review could be held “during” (rather than just at the end) of the probationary period. The Manager's Guide specifically says that if a decision has been made to end a new starter’s employment, that must be done before the probation end date (p.86). 300. There was no less favourable treatment of the claimant compared to the actual comparator identified by the claimant. 301. For the avoidance of doubt, had the claimant relied on a hypothetical comparator, our decision on this complaint would have been the same. We find that a probationer with the same performance, absence and conduct issues as the claimant would have been treated the same regardless of their race or religion. We find that the respondent applied a consistent practice of terminating unsatisfactory probationers during their probation period rather than at the end of it. That is supported not only by the contractual and policy documents but by the probationers’ data sheet (pp.406-407). 302. The complaint of direct race or religion discrimination fails relating to this element. 303. The third element in this Allegation is the failure to provide a right of appeal. The claimant relied on the Manager’s Guide to Appeals (pp.301-304). We accept that the list of formal processes giving rise to a right of appeal in that guide is not said to be exhaustive (it says “includes”). However, it does not refer to appeals against termination during probation. The Manager’s Guide dealing specifically with probation (pp.83-87) appears to us to be the more relevant guide and it does not refer to any right of appeal from a decision to terminate employment during probation. Neither did the respondent’s template letter terminating employment during the probationary period which we find was used as the basis for the letters to Mr Brennan and the claimant (pp.134 and 170). At the point when they were sent that letter, the claimant had not been treated less favourably than his actual comparator. Neither had been offered a right of appeal. 304. Mr Brennan proactively asserted a right of appeal. When he did so, he was allowed to appeal, leading eventually to his reinstatement. The claimant did not proactively assert a right of appeal. We find that is a material difference in their circumstances. Mr Brennan was not an appropriate comparator from the point he proactively asserted a right to appeal. Case No. 2408785/2022 46 305. The claimant was not treated less favourably than his actual comparator when they were in the same material circumstances. The complaint of direct race or religion discrimination fails relating to this element. Race-related or religion-related harassment 306. We accept that both elements in this allegation amounted to unwanted conduct. However, the claimant did not prove facts from which we could conclude that holding the probationary review “early” or not giving a right of appeal was related to his race or religion. The evidence was to the contrary. His actual comparator, Mr Brennan, was treated, if anything, less favourably than the claimant when it came to the holding of his formal probation review (2 months compared to 5 months for the claimant). The timing of the claimant’s formal probation review was consistent with the respondent’s Manager’s Guide which said that a probationary review meeting had to be held before the end of the probationary review if someone’s employment was going to be terminated. 307. We find the same applies to the third element of this allegation (not granting the claimant an appeal). We found that he was treated the same way as Mr Brennan while their material circumstances were the same. The claimant did not prove facts from which we could conclude that the decision not to offer him an appeal was related to his race or religion. Not doing so was consistent with the respondent’s standard practice as set out in the manager’s guide on probation. 308. For completeness, we do not find that the decisions to hold the probation review “early” (i.e. before the end of the probation period) and not offering a right of appeal amounted to conduct with a harassing purpose or having a harassing effect either in themselves or taking into account the earlier allegations discussed above. Even if the claimant experienced them as having such an effect, we find it was not reasonable for the conduct to have that effect. The respondent was following its standard procedures when it came to the timing of the review and the lack of an appeal. The claimant’s contract of employment was clear that the claimant’s performance would be kept under review during the probationary period and that his employment could be terminated during that period rather than just at the end. We do not think it was reasonable for the claimant to expect that the probation review would only happen at the end of the probation period and to view holding an earlier formal review meeting as having the harassing effect required by s.26. The respondent’s standard practice was not to offer a right of appeal. In those circumstances, we do not find that either element was conduct meeting the threshold required for a harassing effect. 309. For those reasons, the complaints of race or religion related harassment based on Allegation 12 fail. The respondent dismissing the claimant (Allegation 13) 310. In deciding the claimant’s complaints about this allegation, we remind ourselves we are dealing with complaints of discrimination and harassment, not a complaint of unfair dismissal. Direct race or religion discrimination Case No. 2408785/2022 47 311. When it comes to the complaint of direct race or religion discrimination, the question is not whether the respondent acted fairly in dismissing the claimant. The question is whether he was treated less favourably than a probationer of a different race or religion would have been treated in the same material circumstances. If so, was that because of his race or religion. 312. We have accepted that the claimant was dismissed after a brief meeting with Mr Bailey when he told the claimant he was dismissed and briefly explained why. We have accepted that the respondent genuinely believed that the claimant was underperforming. It was not in dispute that the claimant had 4 absences by the point of dismissal. We also find that the respondent had evidence of the claimant taking the Adblue although it had not at the point of dismissal carried out an investigation and heard the claimant’s version of events. 313. We find the relevant hypothetical comparator would be a probationary Technician of a different race and religion to the claimant. To be in the same material circumstances, they would be a Technician who the respondent genuinely believed was underperforming, had 4 days sickness absence in a 5 month period and in relation to who the respondent had evidence of potential misconduct. 314. Although Mr Brennan was not named as an actual comparator in this case, we do find the respondent’s treatment of Mr Brennan helpful in deciding how such a hypothetical comparator would have been treated. Mr Brennan was also dismissed for having too many days sickness absence. There were no concerns about his performance and no potential misconduct (although there were concerns about his timekeeping and failing to report absences). He was also dismissed by Mr Bailey in a short, unminuted meeting not held in accordance with the respondent’s probationary policy. We accept that Mr Brennan was reinstated but that was after he appealed and the circumstances of his case more carefully considered by Mr Baker at the appeal. The claimant did not appeal. 315. We find, taking into account how Mr Brennan was treated, that the claimant was not treated less favourably than a hypothetical probationer in the same circumstances, but having a different religion or race would have been. We accept that the respondent’s policy envisaged a formal probation review meeting to be attended by and minuted by another manager. That was not done in the claimant’s case, but neither was it done in Mr Brennan's case. We note Mr Baker’s finding that policies were not adhered to at the respondent’s Manchester repair shop. We find that was true of Mr Bailey’s approach to both Mr Brennan’s and the claimant’s dismissals. We find there was no less favourable treatment by the respondent dismissing the claimant. 316. The claimant did not establish any facts from which we could conclude that if there had been less favourable treatment, it was due to his race or religion. When asked by Mr Singer in cross-examination what evidence there was to support such a finding the claimant relied on his being the only technician of his race or religion. We do not find that sufficient to pass the burden of proof to the respondent. 317. The complaints of direct race or religion discrimination relating to this allegation fail. Race-related or religion-related harassment Case No. 2408785/2022 48 318. When it comes to the complaints of harassment arising from this allegation, we bear in mind the broader “related to” test that applies. While we accept that the dismissal was unwanted conduct, we do not find that it was related to the claimant’s race or religion. The claimant has not established facts from which we could conclude that that was the case. There is no evidence that in carrying out the dismissal meeting, Mr Bailey used any derogatory language related to the claimant race or religion or referred to his race or religion. 319. Had we been required to do so, we would have found that there was no harassing purpose in carrying out the dismissal. There was no evidence of such a purpose on Mr Bailey’s part. 320. Nor, we find, did it have a harassing effect. We do not find that the mere fact of being dismissed necessarily gives rise to conduct having a harassing effect. We can understand that a dismissal is almost always going to be upsetting, but there is no evidence that the circumstances or the way Mr Bailey carried out the dismissal in this case amounted to conduct meeting the threshold required by s.26 of the Equality Act 2010. 321. In those circumstances, the complaints of race related or religion related harassment arising from allegation 13 fail and are dismissed. Conclusion on the Equality Act 2010 complaints 322. We found that all the discrimination and harassment complaints failed. Before reaching our final decision, we considered whether our findings about each allegation, taken together as well as separately, meant that the claimant had succeeded in passing the burden of proof to the respondent. Our conclusion was that he had not. The claimant was asked by Mr Singer repeatedly why he said that any treatment which he regarded as less favourable was because of race or religion. The claimant initially said he did not know. In later answers he said that it was because he was the only one who was different i.e. of his race or religion. We find that was not sufficient in itself to pass the burden and our findings in relation to each allegation do not alter that position. Time Limits for the discrimination and harassment complaints (Issue 1) 323. All the complaints brought under the Equality Act 2010 fail. In the absence of any acts of discrimination or harassment this time limit issue does not arise. The claimant’s holiday and pay complaints (Issues 4 and 5) Complaint 1 – Monday 18 April 2022 (claimant’s witness statement para 13) 324. Monday was a working day for the claimant. Had he not taken it as a public holiday he would have been required to work. The claimant’s payslip for April 2022 (p.307) shows he was paid his usual full salary for that month (£3241.33) with no deduction relating to the holiday he took on 18 April 2022. There was no deduction from his wages so this complaint fails. Complaint 2 – the respondent made an unauthorised deduction of £620.84 from the claimant’s final pay which did not correctly reflect the holidays accrued and taken (claimant’s witness statement para 13.1) Case No. 2408785/2022 49 325. We find the claimant had exceeded his accrued holiday entitlement by 3.7 days at the point his employment ended. The claimant’s contract of employment authorised the respondent to deduct an amount for holiday taken in excess of that accrued. Based on a daily rate of £187 per day, 3.7 days excess holiday equated to £691.90. We find the respondent was entitled to deduct that amount from the claimant’s final pay. In fact, they deducted slightly less. The complaint that the claimant was not paid holiday pay for holiday accrued but untaken fails. The claimant had taken more holiday than he had accrued. The complaint that the deduction of excess holiday taken was an unauthorised deduction also fails. Complaint 3 – that the claimant attended an ATA Level 3 course on 25 July 2022 but was not paid for that day. The claimant says that that money was deducted from his final wages and that the respondent marked the course day as a sick day (claimant’s witness statement para 13.2) 326. We find that the respondent did not make this deduction. The deduction of £187 for a sick day referred to in the claimant’s August 2022 pay was an authorised deduction relating to the claimant’s sickness absence on 26 July 2022. 327. The complaint that the deduction was an unauthorised deduction fails. Complaint 4 – that the claimant should have been paid one week’s pay in lieu of notice (claimant’s witness statement para 13.3). 328. We do not accept the claimant’s submission that he worked 88 hours (i.e. 2 weeks) in August. We find that the claimant worked one full week in August. He was paid for attending the meeting with Mr Bailey on 8 August. He was then paid a week in lieu of notice. The respondent paid in him his basic pay for the days worked and a week’s pay in lieu of notice. It has accepted that he should also have been paid £25 for each of the night shifts he actually worked (those starting on 1-4 August 2022) making a total unauthorised deduction of £100 gross. 329. We find the claimant was paid a week in lieu of notice and there was no unauthorised deduction from the claimant’s pay in August arising from a failure to do so. Summary of Conclusions 330. The claimant’s complaints of discrimination and harassment all fail and are dismissed. 331. The claimant’s holiday pay and unauthorised deduction complaints also fail apart from those conceded by the respondent, i.e. the £100 night shift bonus which should have been paid for August 1-4 and the £298.06 “previously paid” deduction from his July 2022 pay. Case No. 2408785/2022 50 _____________________________ Employment Judge McDonald Date: 16 September 2025 JUDGMENT AND REASONS SENT TO THE PARTIES ON 18 September 2025 FOR THE TRIBUNAL OFFICE Public access to employment tribunal decisions Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment- tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case. Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice- directions/ Case No. 2408785/2022 51 Annex Complaints and Issues 1. Time limits 1.1 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide: 1.1.1 Was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the act to which the complaint relates? 1.1.2 If not, was there conduct extending over a period? 1.1.3 If so, was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the end of that period? 1.1.4 If not, were the claims made within such further period as the Tribunal thinks is just and equitable? The Tribunal will decide: 1.1.4.1 Why were the complaints not made to the Tribunal in time? 1.1.4.2 In any event, is it just and equitable in all the circumstances to extend time? 2. Harassment related to race and religion (Equality Act 2010 section 26) 2.1 Did the respondent do the following alleged things: as set out in the 13 schedule of allegations set out below. 2.2 If so, was that unwanted conduct? 2.3 Was it related to race and/or religion? 2.4 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? 2.5 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. 3. In the alternative: Direct race or religion discrimination (Equality Act 2010 section 13) Case No. 2408785/2022 52 3.1 What are the facts in relation to the following 13 allegations set out in the schedule of allegations below. 3.2 Has the claimant proven facts from which the Tribunal could conclude that in any of those respects the claimant was treated less favourably than someone in the same material circumstances of a different race and/or religion was or would have been treated? The claimant relies on a hypothetical comparison except where he has also in addition named a real comparator below. 3.3 If so, has the claimant also proven facts from which the Tribunal could conclude that the less favourable treatment was because of race and/or religion? 3.4 If so, has the respondent shown a non discriminatory explanation for the treatment. 4. Unauthorised deductions 4.1 Did the respondent make unauthorised deductions from the claimant’s wages and if so, how much was deducted? 5. Holiday Pay (Working Time Regulations 1998) 5.1 Did the respondent fail to pay the claimant for annual leave the claimant had accrued but not taken when their employment ended? Case No. 2408785/2022 53 Schedule of Allegations 1. The claimant worked for the respondent on night shift and his contracted hours were 4.30pm to 4.30am. After around three months of his employment another two new employees, Mr Curtis and Mr James Wells, started with the same contracted hours. After one month these employees, who lived locally, started coming to work at their preferred times, starting and finishing as they wished, usually arriving around 3.00pm and leaving around 3.00am. This meant that the claimant was left alone on the last hour of the night shift. The claimant was approached by Mr Ryan Bailey (Bodyshop Manager) who informed the claimant that he could not stay on his last hour at work on his own due to health and safety, despite Mr Bailey knowing the issue and having had no problem with the claimant staying on his own. The claimant relies on the remark of Mr Bailey as an act of direct discrimination because of race and/or religion and/or harassment related to race/religion. 2. The respondent did not ask or request the claimant to start one hour earlier or change his contracted hours when they permitted Mr Curtis and Mr Wells, who live locally, to change their hours. The claimant relies on this as an act of direct discrimination because of race and/or religion and/or harassment related to race/religion. 3. The claimant says that before he started working for the respondent heavy mechanical jobs such as transfer case, gearbox and engine repair were sent to specialists outside the premises. After the claimant commenced employment those heavy jobs were assigned to him. The claimant relies on this as an act of direct discrimination because of race and/or religion and/or harassment related to race/religion. 4. On one of his shifts he was assigned a heavy job (automatic transmission) which needed two people. The claimant relies on this as an act of direct discrimination because of race and/or religion and/or harassment related to race/religion. 5. The claimant injured his arm when doing a heavy job and went to see his GP and was signed off, and he was asked by his GP not to do heavy lifting for at least 14 days. The claimant returned to work after two days off sick informing the respondent of his GP’s advice. Despite this he had to finish the automatic transmission job and the respondent continued to assign heavy jobs to the claimant despite knowing his GP had advised him not to do heavy lifting. This was in or around June 2022. The claimant relies on this as an act of direct discrimination because of race and/or religion and/or harassment related to race/religion. 6. The respondent accused the claimant of poor performance. The claimant relies on this as an act of direct discrimination because of race and/or religion and/or harassment related to race/religion. Case No. 2408785/2022 54 7. The claimant states he was overloaded with complex jobs that other white counterparts refused to do, and at the same time he was criticised for underperforming. The claimant relies on this as an act of direct discrimination because of race and/or religion and/or harassment related to race/religion. 8. The claimant was the victim of false allegations of underperformance by his manager. The claimant relies on this as an act of direct discrimination because of race and/or religion and/or harassment related to race/religion. 9. The claimant complained to Ryan Bailey several times that when he arrived at work he found his work troller was damaged, his work tools were hidden and stolen, his work bay was left in an unacceptable hazardous condition (messy, oil spillages, trash and rubbish left over). The claimant left the bay tidy at the end of his shift. Mr Bailey took no action. The claimant relies on this as an act of direct discrimination because of race and/or religion and/or harassment related to race/religion. 10. The claimant was required to clean his work bay before he started his shifts when the mess was caused by the workers on the other shift. The claimant relies on this as an act of direct discrimination because of race and/or religion and/or harassment related to race/religion. 11. The claimant complained to Jamie Scott (a manager) that his toolbox was missing. He did nothing initially. The claimant relies on this as an act of direct discrimination because of race and/or religion and/or harassment related to race/religion. Eventually the manager Mr Wells found it for the claimant. 12. The respondent held the claimant’s probation review meeting on 8 August 2022, one month before the probationary period ended. The respondent made a decision to terminate based on false accusations with no right to appeal the decision. The claimant relies on this as an act of direct discrimination because of race and/or religion and/or harassment related to race/religion. The claimant relies on a real comparator, a white worker, Mike Brennan, who started employment at the same time as the claimant and was dismissed after three months of his employment due to absence occurrences and poor performance. He was given a right to appeal and was given his job back. 13. The claimant was dismissed. The claimant relies on this as an act of direct discrimination because of race and/or religion and/or harassment related to race/religion. Case No. 2408785/2022 55 NOTICE THE EMPLOYMENT TRIBUNALS (INTEREST) ORDER 1990 ARTICLE 12 Case number: 2408785/2022 Name of case: Mr E Ben Ali v Activate Accident Repair Limited Interest is payable when an Employment Tribunal makes an award or determination requiring one party to proceedings to pay a sum of money to another party, apart from sums representing costs or expenses. No interest is payable if the sum is paid in full within 14 days after the date the Tribunal sent the written record of the decision to the parties. The date the Tribunal sent the written record of the decision to the parties is called the relevant decision day. Interest starts to accrue from the day immediately after the relevant decision day. That is called the calculation day. The rate of interest payable is the rate specified in section 17 of the Judgments Act 1838 on the relevant decision day. This is known as the stipulated rate of interest. The Secretary of the Tribunal is required to give you notice of the relevant decision day, the calculation day, and the stipulated rate of interest in your case. They are as follows: the relevant decision day in this case is: 18 September 2025 the calculation day in this case is: 19 September 2025 the stipulated rate of interest is: 8% per annum. For the Employment Tribunal Office