Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  17430/19

 

CLAIMANT:                          Denen Beeka

 

RESPONDENTS:               1.         Lloyds Banking Group PLC

                                                2.         HBOS PLC

 

 

JUDGMENT

 

The unanimous judgment of the tribunal is that all claims are dismissed.

 

 

CONSTITUTION OF TRIBUNAL

 

Vice President:                                           Mr N Kelly

                       

Members:                                                     Mrs D Adams

                                                                        Mr B Heaney

 

 

APPEARANCES:

 

The claimant appeared in person and was unrepresented.

 

The respondents were represented by Ms Sarah Agnew, Barrister-at-Law instructed by Eversheds Sutherland Solicitors.

 

 

BACKGROUND

 

1.         The respondents are banks who operated a credit card business.

 

2.         The claimant worked for the respondents for approximately six years in a call centre.  He dealt with victims of credit card fraud on the telephone.

 

3.         The claimant alleged that he had been subjected to race discrimination in relation to his treatment in the workplace.  He alleged direct discrimination, harassment and victimisation. 

 

4.         The claimant resigned on 22 July 2019 on one month’s notice.  His employment was due to terminate on 22 August 2019.  The claimant then resigned (for the second time and two days before the first resignation took effect) with immediate effect in a letter 20 August 2019.  The claimant alleged constructive unfair dismissal. 

 

5.         The claimant also alleged that he had suffered unauthorised deductions from earnings in relation to an unsocial hour’s payment which had not been paid to him for a period at the end of his employment. 

6.         The claimant had been employed by the second-named respondent.  The second‑named respondent was owned by the first-named respondent.  The role of the first-named respondent is not clear in all of this but the parties agreed at a Case Management Discussion that the two respondents should be named. 

 

7.         The tribunal claim was lodged on 24 July 2019.  The respondents denied all the claims. 

 

RELEVANT LAW

 

Race Discrimination

 

8.         The Race Relations (Northern Ireland) Order 1997 provides that:-

 

                        “Article 3(1) –

 

A person discriminates against another in any circumstances for the purposes of any provision of this Order if –

 

(a)       on racial grounds he treats that other less favourably than he treats or would treat other persons;

 

…

 

                        Article 4(1) –

 

A person (‘A’) discriminates against another person (‘B’) in any circumstances relevant for the purposes of any provision of this Order if –

 

(a)       he treats ‘B’ less favourably than he treats or would treat other persons in those circumstances; and

 

(b)       he does so for a reason mentioned in Paragraph (2).

 

                        Article 4(2) –

 

                        The reasons are that –

 

                                    (a)       ‘B’ has –

 

(i)         brought proceedings against ‘A’ or any other person under this Order; or

 

(ii)        given evidence or information in connection with such proceedings brought by any person; or

 

(iii)       otherwise done anything under this Order in relation to ‘A’ or any other person; or

 

(iv)       alleged that ‘A’ or any other person has (whether or not the allegations so states) contravened this Order; or

 

 

(v)        ‘A’ knows that ‘B’ intends to do any of these things or suspects that ‘B’ has done, or intends to do, any of those things.

 

                        Article 4A(1) –

 

A person (‘A’) subjects another person (‘B‘) to harassment in any circumstances relevant to the purposes of any provision referred to in Article 3(1B) where, on grounds of race or ethnic or national origins, ‘A’ engages in unwanted conduct which has the purpose of effect of –

 

            (a)       violating ‘B’s’ dignity, or

 

(b)       creating an intimidating, hostile, degrading, humiliating or offensive environment for ‘B’.

 

Conduct shall be regarded as having the effects specified at                    Sub-paragraphs (a) and (b) of Paragraph (1) only if, having regard to all the circumstances, including, in particular, the perception of ‘B’, it should reasonably be considered as having that effect.

 

            The 1997 Order provides at Article 52A:-

 

“(1)      This Article applies where a complaint is presented under Article 52 and a complaint is that the respondent –

 

(a)       has committed an act of discrimination on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in Article 3(1B) (a), (e) or (f), or Part IV in its application to those provisions, or

 

(b)       has committed an act of harassment.

 

Where on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent –

 

(a)       has committed such an act of discrimination or harassment against the complainant,

 

(b)       is by virtue of Article 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant,

 

the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed that act.”

 

Article 32 - (1) –

 

Anything done by a person in the course of his employment shall be treated for the purposes of this Order as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval. 

 

Article 32 - (3) –

 

In proceedings brought under this Order in respect of an act alleged to have been done by an employee of his, it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from –

 

            (a)       doing that act, or

 

            (b)       doing, in the course of his employment, acts of that description.”

 

Shifting Burden of Proof

 

9.         The proper approach for a Tribunal to take when assessing whether discrimination has occurred and in applying the provisions relating to the shifting of the burden of proof in relation to discrimination has been discussed several times in case law. 

 

10.       In Frank McCorry and Others v Maria McKeith [2016] NICA 47, the Court of Appeal stated:

 

                        “The Shifting Burden of Proof.

 

[35]      While Ms McKeith did not advance a claim for disability related discrimination in relation to the period before the dismissal decision, her background treatment in the preceding months did inform the approach of the Tribunal in relation to the dismissal decision.  The background included the requirement that Ms McKeith remain absent from work for periods to look after her disabled daughter. Had it arisen for decision, the Tribunal would have concluded that the previous treatment of Ms McKeith amounted to disability related discrimination (paragraph 132).

 

[36]      On taking into account that background and the evidence in relation to the dismissal of Ms McKeith, the Tribunal stated that “the shifting burden of proof is going to be crucial” (paragraph 136). 

 

[37]      The Burden of Proof Directive (EEC) 97/80 was extended to the United Kingdom in 1998 and Article 4(1) provided -

 

“Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them have established, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.”

 

[38]      Section 17A(1B) of the 1995 Act provides –

 

`Where, on the  hearing of a complaint under sub-section (1), the complainant proves facts from which the Tribunal could, apart from this sub-section, conclude in the absence of adequate explanation that the respondent has acted in a way which is unlawful under this Part, the Tribunal shall uphold the complaint unless the respondent proves that he did not so act.’”

 

[39]      The approach to the shifting burden of proof was considered by the Court of Appeal in England and Wales in Wong v Igen Ltd (2005) EWCA Civ 142.  It was stated that the statutory amendments required a two-stage process.  The first stage required the complainant to prove facts from which the Tribunal could, apart from the section, conclude, in the absence of an adequate explanation, that the employer had committed, or was to be treated as having committed, the unlawful act of discrimination against the employee.  The second stage, which only came into effect on proof of those facts, required the employer to prove that he did not commit or was not to be treated as having committed the unlawful act, if the complaint is not to be upheld.

 

[40]      The issue was revisited by the Court of Appeal in England and Wales In Madarassy v Nomura International plc [2007] EWCA Civ 33 which set out the position as follows (italics added) –

 

“56.     The Court in Igen v Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the Tribunal could conclude that the respondent `could have’ committed an unlawful act of discrimination.  The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination.  They are not, without more, sufficient material from which a Tribunal `could conclude’ that on the balance of probabilities, the respondent had committed an unlawful act of discrimination.

 

57.       `Could conclude’ [in the Act] must mean that `a reasonable Tribunal could properly conclude’ from all the evidence before it.  This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent contesting the complaint.  Subject only to the statutory ‘absence of an adequate explanation’ at this stage (which I shall discuss later), the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the complaint to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by [the Act]; and available evidence of the reasons for the differential treatment. 

 

58.       The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent.  The absence of an adequate explanation only becomes relevant if a prima facie case is proved by the complainant.  The consideration of the Tribunal then moves to the second stage.  The burden is on the respondent to prove that he has not committed an act of unlawful discrimination.  He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant.  If he does not, the Tribunal must uphold the discrimination claim.”

 

[41]      The Tribunal was satisfied that Ms McKeith had established a prima facie case that she had been directly discriminated against because she had been the primary carer of her disabled daughter (paragraph 147).  The Tribunal then found that the Ardoyne Association had not put forward any convincing or coherent explanation for its decision to make Ms McKeith redundant (paragraph 148).  It was accepted on the hearing of the appeal that, if this was a case where the burden of proof shifted to the employer, there had not been a sufficient explanation.  Accordingly, the challenge was concerned with whether the evidence before the Tribunal was such that a prima facie case of associative direct discrimination had been made out. 

 

[42]      In this regard the Tribunal set out a number of facts which concerned Ms McKeith having been sent home on previous occasions because of her disabled daughter, Ms Burns’ belief that she should be at home with her disabled daughter, the reluctant piecemeal and incomplete nature of discovery, the other two persons  who were made redundant at the same time were first re-engaged as volunteers and then rehired, the evasive and unconvincing evidence of the Manager and the non-compliance with statutory dismissal procedures.  The Tribunal stated “. If this is not a case where the burden of proof should shift, no such case exists” (paragraph 147). 

 

[43]      We are satisfied that, as outlined by the Tribunal, there was such evidence of a difference in status, a difference in treatment and a reason for differential treatment that, in the absence of an adequate explanation, a Tribunal could conclude that the employer committed an unlawful act of associative disability discrimination.  The burden on the Ardoyne Association was not discharged. It followed that the Tribunal would find disability discrimination.

 

[44]      We are not satisfied on any of the appellant’s grounds of appeal.  The appeal is dismissed.”

 

Constructive Unfair Dismissal

 

11.       In London Borough of Waltham Forest v Omilaju [2005] IRLR 35, the Court of Appeal (GB) set out the basic propositions of law relating to constructive dismissal.  It stated that they were:-

 

                        “1.        The test for constructive dismissal is whether the employers’ actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Ltd v Sharp [1998] IRLR 27.

 

                        2.         It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between employer and employee: see, for example, Malik v Bank of Credit and Commerce International SA [1997] IRLR 462, 464 (Lord Nicholls) and 468 (Lord Steyn).  I shall refer to this as ‘the implied term of trust and confidence’.

 

                        3.         Any breach of the implied term of trust and confidence will amount to a repudiation of the contract; see, for example, per Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347; 350.  The very essence of the breach of the implied term is that it is ‘calculated or likely to destroy or seriously damage the relationship’.

 

                        4.         The test of whether there has been a breach of the implied term of trust and confidence is objective.  As Lord Nicholls said in Malik at p464, the conduct relied on as constituting the breach must “impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer”.

 

                        5.         A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a serious of incidents.  It is well put at para 480 in Harvey on Industrial Relations and Employment Law –

 

                                    ‘Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time.  The particular incident which causes the employee to leave may in itself be insufficient to justify him taking that action, but when viewed against the background of such incidents, it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal.  It may be the ‘last straw’ which causes the employee to terminate a deteriorating relationship’.”

 

12.       The Court also stated:

 

                        “Although the final straw may be relatively insignificant, it must not be utterly trivial.  The principle that the law is not concerned with very small things (more elegantly expressed in the maxim “de minimis non curat lex”) is of general application.”

 

13.       The Court went on to state:

 

                        “The question specifically raised by this appeal is:  What is the necessary quality of a final straw if it is to be successfully relied on by the employee as a repudiation of the contract?  When Glidewell LJ stated that it need not itself be a breach of contract, he must have had in mind, amongst others, the kind of case mentioned in Woods at page 351 where Browne-Wilkinson J referred to the employer who, stopping short of an actual breach of contract, squeezes out an employee by making the employee’s life so uncomfortable that he resigns.  A final straw, not itself a breach of contract, may result in a breach of the implied term of trust and confidence.  The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term.  I do not use the phrase “an act in a series” in a precise or technical sense.  The act does not have to be of the same character as the earlier acts.  Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence.  It must contribute something to that breach, although what it adds may be relatively insignificant.”

 

      The Court went on to state:

 

                        “Moreover an entirely innocuous act on the part of an employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in his employer.  The test of whether the employee’s trust and confidence has been undermined is objective … .”    

 

14.       In Brown v Merchant Ferries Ltd [1998] IRLR 682 , the Northern Ireland Court of Appeal said that although the correct approach in constructive dismissal cases was to ask whether the employer had been in breach of contract and not to ask whether the employer had simply acted unreasonably; if the employer’s conduct is seriously unreasonable, that may provide sufficient evidence that there has been a breach of contract.

 

15.       Apart from establishing a repudiatory breach of contract, the claimant must have left his employment because of that breach of contract and he must not have delayed too long in resigning.

 

16.       In Kaur v Leeds Teaching Hospitals NHS Trust [2018] IRLR 833, the Court of Appeal (GB) held that in a normal case where an employee claims to have constructively dismissed, it is sufficient for a tribunal to ask itself the following questions:

 

                        “(i)       What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered his resignation?

 

                        (ii)        Has he or she affirmed the contract since that act?

 

                        (iii)       If not, was that act (or omission) by itself a repudiatory breach of contract?

 

                        (iv)       If not, was it nevertheless part of a course of conduct comprising several acts or omissions which viewed culmatively amounted to a repudiatory breach of confidence (if it was, there is no need for any separate consideration of a possible previous affirmation).

 

                        (v)        Did the employee resign in response (or partly in response) to that breach?”

 

17.       In United First Partners Research v Carreras [2018] EWCA Civ 323, the Court of Appeal (GB) stated:

 

                        “It was also common ground before us that where an employee has mixed reasons for resigning, his resignation will constitute a constructive dismissal provided that the repudiatory breach relied on, was at least a substantial part of those reasons: there is a good deal of authority to that effect -”

 

Unfair dismissal

 

18.       To ground a successful claim, a constructive dismissal must, of course, also be unfair. 

 

            Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-

 

                        “130-(1)          In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

 

                                                (a)       the reason (or if more than one, the principal reason) for the dismissal and

 

                                                (b)       that is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

 

                                 (2)          a reason falls within this paragraph if it -

 

                                                (b)       relates to the conduct of the employee,

 

                                 (4)          where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

 

                                                (a)       depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

 

                                                (b)       shall be determined in accordance with equity and the substantial merits of the case.”

 

Unauthorised Deduction from Earnings

 

19.       A claim of alleged unauthorised deductions from earnings under Article 45 of the Employment Rights (NI) Order 1996 is a claim that the claimant did not receive the monies due to him under his employment contract.

 

Procedure

 

20.       The claimant lodged a complaint of constructive unfair dismissal and race discrimination on 24 July 2019 against the first-named respondent.  That claim was supplemented by further details sent on 25 September 2019 in which the claimant alleged that he had resigned with immediate effect by a letter dated 20 August 2019.  The claimant had already resigned on 22 July 2019 (before the date of claim) giving one month’s notice.

 

21.       In the claim, as supplemented, the claimant alleged a conspiracy against him by both his employer and by his trade union.  He alleged that documents had been “manipulated” and “planted in my file”.  He referred to “illegally planted documents” and to documents being “fraudulently placed in my file.”  No claim of unauthorised deduction from wages in respect of the unsocial hour’s payment was contained within the claim.

 

22.       The respondents denied the claims in a response of 7 October 2019 and pointed out that the claimant had been employed by HBOS PLC and that he had in fact resigned his employment on one month’s notice in writing on 22 July 2019.  It applied for the substitution of HBOS PLC as the proper respondent. 

 

23.       In a first Case Management Discussion on 21 November 2019, the claimant stated that he was not in agreement with the substitution of HBOS PLC but he agreed to the addition of HBOS PLC as a respondent.  HBOS PLC was therefore added as a second respondent.  The respondents appear to have agreed to this addition.  In any event, the identity of the correct respondent was not raised at the full hearing until the tribunal raised that point.

 

24.       The claimant stated that he had concerns about the way his trade union had dealt with him.  The claimant was advised that the trade union was not a party to these proceedings. 

 

25.       The claimant stated that the reason he had tendered his resignation was that he had not been given documents that he had requested so that he could prepare for a grievance hearing that had been arranged. 

 

26.       The full tribunal hearing was listed for 11 to 15 May 2020 and further directions were given in relation to the interlocutory procedure and the witness statement procedure.

 

27.       At that first Case Management Discussion, issues were agreed.  The legal issues were:

 

                        “Preliminary matters

 

                        1.1       whether the claimant’s claims have been lodged within time, and if not, whether the tribunal should extend time to permit jurisdiction on the basis of what is justice and equitable?

 

                        Race Discrimination

 

                        1.2       The claimant’s comparators are Dean Quates, Hannah Dorman and a hypothetical comparator. 

 

                        1.3       Whether the claimant was less favourably treated on the grounds of his race contrary to Article 3(1)(a) of the Race Relations (Northern Ireland) Order 1997 in respect of:

 

                                    1.3.1   The treatment of him in or around January 2018 in relation to the mistake he made at work shortly after the death of his grandfather,

 

                                    1.3.2   The placing of a note on the claimant’s file in relation to the matters referred to in paragraph 1.3.1 above,

 

                                    1.3.3   The discussions in August/September 2018 on the working floor between the claimant and Brian Rolston,

 

                                    1.3.4   The alleged false allegations made in September/October 2018 by Tess Bawtree in relation to the claimant allegedly failing to send emails,

 

                                    1.3.5   Allegedly being hurt, embarrassed and intimidated in September 2018 by Tess Bawtree and Jonathan Lindsay,

 

                                    1.3.6   The investigation meeting which took place on 2 May 2019,

 

                                    1.3.7   Failing to investigate the claimant’s grievances when he raised them.

 

                        1.4       Whether the claimant was harassed in relation to his race, contrary to Article 4A of the Race Relations (NI) Order 1997, as amended in relation to the incident cited at 1.3 above?

 

                        1.5       Whether the claimant was victimised in relation to his race contrary to Article 4 of the Race Relations (NI) Order 1997 in respect of the incident cited at 1.3 above?

 

                                    1.5.1   Whether the claimant carried out a protected act?

 

                                    1.5.2   If the answer to 1.5.1 above is yes, what is the protected act and what was the date of the protected act?

 

                        Constructive Dismissal

 

                        1.6       What is the breach of contract relied upon by the claimant?

 

                        1.7       Did the claimant resign in response to this alleged breach on the respondent’s part?

 

                        1.8       Was the claimant unfairly dismissed?”

 

28.       The tribunal directed that a Preliminary Hearing would be heard on 30 January 2020 to determine whether the claims had little reasonable prospect of success; and if so, whether the claimant should be ordered to pay a deposit of up to £500 before being permitted to proceed with those claims, or with part of those claims.

 

29.       The claimant corresponded frequently and at some length with the tribunal.  In a letter dated 26 November 2019 he, inter alia, asked that “updates be added on to my already existing claim form”.  Much of what he raised appears to have been already raised in the claim form.  However he raised for the first time an alleged unauthorised deduction from wages without providing any details of that allegation. 

 

30.       In a further letter of 16 December 2019 the claimant asked that “the following updates be added on to my already existing claim”.  The claimant again referred to an unauthorised deduction from wages which he alleged had occurred since July 2019 without providing any details. 

 

31.       The claimant wrote again on 30 December 2019 to argue that a Deposit Order should not be made against him.

 

32.       The claimant wrote again on 12 January 2020 stating that “I write to amend and make further additions to my claim”.   The contents of that letter seemed to be another repetition of the allegations he made in his original claim form. 

 

33.       On or about 7 January 2020 the solicitors for the respondents wrote to the claimant indicating that they would object to any application to amend the claim to include a claim of unlawful deduction from wages and a claim of failure to provide statutory particulars of employment.

 

34.       The claimant wrote again, at some considerable length, on 30 January 2020 to “seek an amendment and update my claim form”.  The contents of that letter appear to simply replicate the allegations already made.  This appears to be the pattern established by the claimant in his frequent correspondence with the tribunal. 

 

35.       In the Deposit Order Hearing which was held on 27 January 2020, the claim was amended to include a claim of unauthorised deduction from wages in respect of the non-payment latterly of an unsocial hours payment.

 

 

36.       It is not customary to refer to Deposit Orders, applied for or granted at an earlier stage, in a full tribunal hearing in this jurisdiction.  Deposit Orders and references to Deposit Orders are removed from tribunal files to reduce the risk of prejudicing the decision of the full tribunal.  However the claimant has referred to the Deposit Order in his witness statement and the relevant paperwork was included in the agreed bundle.  It would therefore be artificial and impossible to ignore the existence of a Deposit Order in setting out the judgment this case.  However, the tribunal has reached its decision on liability without any reference to the Deposit Order.

 

            The Deposit Order was granted at a Preliminary Hearing on 30 January 2020.  The Employment Judge hearing that Preliminary Hearing determined that the claims brought by the claimant in respect of race discrimination had little reasonable prospect of success and the claimant was ordered to pay a £40 deposit within four weeks before being permitted to proceed with that part of his claim.  The claimant paid that deposit.

 

37.       Because of the pandemic, the full hearing on 11-15 May 2020 was cancelled and the matter was listed for a Review Case Management Preliminary Hearing on 19 August 2020.  At that RCMPH, it was confirmed that the claim alleged unlawful deduction from earnings, race discrimination and unfair dismissal.  There were no other claims.  The matter was relisted for a full hearing from 30 November 2020 to 4 December 2020.  Further directions were given in relation to the witness statement procedure and the interlocutory procedure. 

 

38.       A Progress Review Case Management Preliminary Hearing was heard by telephone on 11 November 2020.  The parties confirmed that they were ready for hearing.  Each party sought permission for one witness to give evidence remotely from England.  Permission was granted to each party.  The position in relation to the provision of technology was explained to the parties.

 

39.       A further Preliminary Hearing was held by telephone on 23 November 2020.  The arrangements for remote evidence by WebEx were clarified.  The parties confirmed that they were ready.

 

40.       Despite having confirmed to the tribunal that he was ready for hearing, the claimant wrote on 24 November 2020 to seek an adjournment of the final hearing because of what he described as “very serious errors” by the respondent solicitor in relation to the bundle.  That request for a postponement was refused.  It was groundless.  The respondents’ solicitor was content to add any documents identified to them by the claimant.

 

            The claimant’s request for a postponement appeared to be motivated solely by a desire to delay the hearing and to prolong proceedings.

 

41.       The claimant gave evidence on his own behalf and called a Mr Ade Murtala who gave evidence remotely from an address in England.  The claimant had also submitted a witness statement from a Mr Adeniran James.  However the start of the full hearing, he indicated that Mr James was “very ill” but provided no medical evidence to support that claim.  Despite the alleged illness of Mr James, the claimant sought a Witness Attendance Order to compel his attendance.  The claimant then stated that Mr James still worked for the respondents and that he was “scared”.  It was not clear, whether the claimant was alleging that Mr James was sick or if he was alleging that Mr James was reluctant to attend.  The tribunal indicated to the claimant that it was unwilling to issue a Witness Attendance Order to someone who the claimant had just said was “very ill”.  The claimant was directed that the case should proceed.  The tribunal concluded that the claimant simply wished to delay the hearing and to prolong proceedings.  Mr James did not appear to give evidence.  No medical evidence was produced and no further application was made.

 

42.       At the final hearing, the witness statement procedure was used.  Each witness swore or affirmed to tell the truth, adopted their previously exchanged witness statement as their evidence in chief, and moved immediately into cross-examination and brief re-examination.

 

43.       The respondents called as witnesses Mr Aaron McNaughton, Ms Tess Bawtree, Mr Brian Rolston, Ms Rachel Gallagher and Ms Helen Garrett-Lang.  Ms Garrett‑Lang attended remotely.

 

44.       The full hearing was from 30 November 2020 to 3 December 2020.  The panel met on the next day and reached their decision.  This document is that decision. 

 

RELEVANT FINDINGS OF FACT

 

45.       The allegations put forward by the claimant were discursive and disjointed.  They were extremely difficult to understand and were spread over three handwritten narrative pages on his claim form, together with five typed letters sent on various dates to the tribunal which either described the contents of those letters as supplemental to the claim form or a proposed amendment to the claim form, and which comprised some twenty three pages.  The claimant had also submitted a witness statement, comprising eight pages, which he adopted as his evidence to the tribunal.  These documents, together with the claimant’s answers during his cross-examination by counsel for the respondent and his own cross‑examination of the respondents’ witnesses, were confusing and contained a wide variety of allegations which were not credible.

 

46.       Essentially, the claimant alleged that there had been a conspiracy organised by the respondents to drive him out of employment by directly discriminating against him, harassing him and victimising him, on grounds of race.  He alleged that he had resigned as a result and that an unsocial hours payment had been withheld from him in breach of contract.

 

47.       Insofar as it is possible to put the claims in any sort of logical or coherent sequence, and using the agreed list of legal and factual issues as a guide, the incidents or issues complained of by the claimant are as follow below in this judgment.

 

Telephone Call on 25 January 2018

 

48.       The claimant, in the course of his ordinary duties, had a telephone call with a customer on 25 January 2018.  The substantive part of the telephone call had lasted some 24 minutes but for the next 35 minutes the claimant had not terminated the call.  The claimant had apparently continued to stay on the line in silence for those 35 minutes after the conversation with the customer had finished. 

 

49.       Mr McNaughton, in his role as the claimant’s line manager, came across this call when reviewing a number of the claimant’s calls on an ad hoc basis to monitor his performance.  Mr McNaughton had selected calls of unusual length.  That had been a normal process and one undertaken routinely by team managers for all their staff. 

 

50.       Given that the claimant’s job had been to respond to telephone calls and to be available to customers of the respondent, the practice of leaving a line “dead” could be viewed as call avoidance which, in the context of a call centre operation, was a potential disciplinary offence. 

 

51.       On 5 February 2018, Mr McNaughton met with the claimant to discuss that call.  Mr McNaughton pointed out to the claimant that the 35 minutes would have been a time when other customers could have been dealt with and that, as part of his role, he was responsible for “ensuring all customers are dealt with quickly and professionally.”  The claimant stated he could not recall the telephone call or what had happened during the 35 minute period.  He did not refer to the death of his grandfather or to any health issue.  The claimant thought he may have stepped away from his computer at this point for a break without logging out from the computer properly as required.  Mr McNaughton stated that whether the claimant had simply sat on the telephone line for 35 minutes with no response or if the claimant had stepped away from his desk without logging out, either explanation was unacceptable. 

 

52.       Because this had been the first incident of any such problem with the claimant, Mr McNaughton agreed with Human Resources that there would be no further action in respect of this call.  However the claimant was specifically warned that if there were any further examples of non-compliance with conduct standards, this call would be taken into account. 

 

53.       Mr McNaughton’s decision (and that of Human Resources) not to move to a disciplinary charge, when there had clearly been grounds for doing so, does not fit easily with the claimant’s assertion that there had been a settled and widespread conspiracy to get rid of him on grounds of race.  If management had wanted to get rid of the claimant they had had an opportunity to do so by issuing a disciplinary charge as a result of the call on 25 January 2018 and they decided not to proceed in that way.

 

54.       The claimant again argued in the tribunal hearing that there was something sinister in the fact that the record of the relevant discussion on 5 February 2018 had not been signed either by Mr McNaughton or by the claimant.  After the meeting ended, Mr McNaughton provided a copy of the notes to the claimant for signature.  The claimant had refused to sign the notes.

 

55.       The claimant alleged in his tribunal claim form that he had failed to end the call correctly on 25 January 2018 because of the death of his grandfather.  That however is not consistent with what he said during the meeting on 5 February 2018, or indeed during the wellbeing meeting of 20 February 2018 or during his return to work meeting on 26 February 2018.  In the investigation meeting into other allegations on 2 May 2019, the claimant had referred on two occasions to the death of his grandmother, not his grandfather, before correcting himself, “no my grandfather”, at the end of that meeting.

 

            This is one of many occasions when the claimant’s version of events has been subject to change.

 

56.       The claimant alleged that the notes of the meetings on 5 February 2018, 20 February 2018, 26 February 2018 and 2 May 2019 had been manipulated, altered and falsified by the respondent. 

 

57.       The tribunal is satisfied that those records were accurate.  If the claimant had put forward the death of his grandfather as a reason for his behaviour during the meeting on 5 February 2018, it would have been recorded in the record of that meeting and indeed in the records of the meetings on 20 February 2018 and 26 February 2018.

 

            The only reason that the record of the meeting on 5 February 2018 had not been signed by the claimant is that the claimant had refused to do so.

 

Death of Claimant’s Grandfather

 

58.       The claimant’s grandfather died in Nigeria in January 2018.  The claimant did not ask for and did not take leave at this time.  He did not return to Nigeria at this time.  He continued to work.  He was then absent on sick leave from 7 February 2018 to 26 February 2018 due to stress.  The respondents internal attendance policy was triggered because the claimant had been absent from work for ten consecutive days due to a psychological condition.  A health and wellbeing absence plan was initiated on 20 February 2018. 

 

59.       The claimant attended a “health and well being” meeting with Mr Aaron McNaughton, his line manager, on 20 February 2018.  The claimant’s trade union representative was present.  The claimant was referred to seven periods of absence in the previous two years.  Those absences had comprised, in turn, 2 days, 4 days, 5 days, 7 days, 18 days, 4 days and 14 days.  His various health conditions were discussed and a 12 week plan was put in place to assist his return to work with reviews approximately every four weeks.

 

60.       The meeting and the plan were recorded in a document.  The claimant again refused to sign that document.  The claimant appeared to object to the fact that the line manager, Mr McNaughton had not signed that document.

 

61.       The claimant returned to work on 26 February 2018 and attended a return to work interview on that day.  Again the claimant refused to sign the document recording that meeting but, in the course of the tribunal hearing, objected to the fact that Mr McNaughton had not signed it.

 

62.       The claimant did not allege in either meeting (20 February and 26 February) that he had failed to end the telephone call correctly on 25 January 2018 because of the death of his grandfather.

 

63.       Mr McNaughton raised the issue of the meeting on 5 February 2018 to discuss the telephone call.  He explained to the claimant that it had not been his intention to upset the claimant but he had been obliged to deal with this type of issue.  He explained to the claimant that the notes of the previous meeting would be placed on the claimant’s file.  The claimant’s trade union representative, Mr Fielding, did not object to this and indeed accepted that the claimant did not need to sign the document.  The claimant acknowledged that the conversation had taken place.  However he again refused to sign the notes of the meeting. 

 

64.       In any event, the tribunal is satisfied, given the level of the claimant’s absences from work, that the respondents had acted correctly in arranging the health and wellbeing meeting and in arranging the action plan to assist the claimant.  The claimant alleges that the respondents failed to support him at this time but it is difficult to see the basis for that allegation.  There is no evidence before the tribunal of any breach of contract or of any discriminatory motive behind either meeting or the action plan.  Any employee who had such frequent and substantial absences from work would have been treated in the same way.  In particular, the claimant had not been “treated like a criminal” on the death of his grandfather.  The claimant produced no evidence of any other employee being treated differently in such circumstances or of any hypothetical comparator.

 

August/September 2018

 

65.       In his claim form, the claimant alleged “unfair treatments”, “sometime between August/September 2018”.  The claimant alleged that Mr Rolston and Mr McNaughton placed him in the middle of the working floor and, in view of others, accused him of causing a PSR (“Payment Services Regulations”) breach.

 

66.       In his responses to the respondents’ Notice for Additional Information, the claimant referred to this as “humiliating activity” by adopting an interrogative style during feedback in September 2018.

 

67.       In his witness statement, the claimant stated “September 2018 Aaron and Brian Rolston placed me in the middle of an open floor conducting feedback in an interrogative manner”.

 

68.       This particular complaint centres on a coaching conversation which took place on 13 September 2018.  It concerned a telephone call between the claimant and a customer who had reported fraudulent activity on his card.  It is clear that the claimant had been praised for his conduct of the call but it had been pointed out to the claimant that he had failed to complete the necessary actions after the call.  That failure had resulted in a delay and therefore in a possible PSR breach.  It had been accepted that the claimant had been distracted by carrying out another process.

 

69.       The claimant was not subjected to disciplinary action.  He was advised that further issues of this type could lead to intensive coaching and other actions.  The claimant signed the record of the meeting.

 

70.       The meeting had been conducted in an empty bay in the open plan office, well away from other colleagues.  The meeting, or coaching conversation, had been conducted properly.  The respondents could have chosen to take disciplinary action in relation to the telephone conversation but they chose not to do so. 

Incidents with Tess Bawtree

 

71.       Ms Bawtree had been the claimant’s team manager for a brief period between July 2018 and August 2018.  Taking into account absences on annual leave, and for other reasons, Ms Bawtree had directly managed the claimant for a period of approximately three weeks.  The claimant alleged that in or around 25 October 2018: (it appears to have been on 26 October 2018)

 

                        “Tess Bawtree and Jonathan walked up to me aggressively and ordered me in a loud and harsh tone in front of all my colleagues and ordered me to log out and follow them.  I made it clear I was not happy with the manner they approached me like military officers and the aggressive manner in which they spoke to me as I felt embarrassed humiliated and I felt stressed and had to leave before the end of the shift.”

 

72.       Both the claimant and Ms Bawtree gave evidence in relation to the incident.  Each had a different version of events.  Mr Beeka alleged this had been an act of race discrimination and that Ms Bawtree had acted aggressively and improperly towards him in front of his colleagues.

 

73.       Ms Bawtree stated that on 22 October 2018 she had been informed by another colleague that the claimant had been involved in a potential PSR breach (Payment Services Regulations breach).  The matter concerned a number of calls that the claimant had taken during a period when some of the computer systems had been taken off-line.  Those systems had included a system which had been used to process refunds in fraud cases.  There had been a contingency plan during that period which required employees, including the claimant, to email a particular team with details of any refunds that needed to be processed.  The claimant had not sent the relevant emails and therefore refunds that had been due to customers had not been processed within the time limit set by the Regulations.  Ms Bawtree concluded that the reason for this failure had been that the claimant’s email folder had been full and that, although the claimant had typed the emails, they had been stuck in the claimant’s outbox.  On his next shift, the claimant deleted some of his emails and the stuck emails were released.  Ms Bawtree discussed the matter with the claimant and explained that because it was a PSR breach it could be regarded as very serious for the business.  Again, no disciplinary action was commenced at that stage in relation to this PSR breach.  That does not sit easily with the claimant’s assertion that there had been a settled and widespread conspiracy to discriminate against him and to get rid of him because of his race.

 

74.       During the same week, Ms Bawtree needed to speak to the claimant again about an incorrectly categorised telephone call.  Ms Bawtree was concerned about doing so because she had felt intimidated by the claimant.  She asked for another team manager, Mr Johnny Lindsay, to join her in the meeting of 26 October 2018.  She stated that she had approached the claimant and had asked him to log off, after his current call had ended, and to join them for a meeting.  She denied that she had marched over to him or that she had ordered him like a military officer.  This incident had been in an open plan office and she would not have acted that way.  She went to a meeting room with both the claimant and Mr Lindsay and discussed the matter.  In particular, the customer had not hung up the telephone correctly and had then proceeded to make another call to a third party.  Since the claimant had not hung up the line either, he would have been able to hear the conversation that the customer had with the third party.  It had also meant that the claimant had not been free to take other calls from customers.  Ms Bawtree explained to the claimant that this sort of behaviour could potentially be considered call avoidance.  The claimant got angry and heated.  He left the meeting abruptly and left the respondents’ premises before the end of the shift without notifying management.

 

75.       In evidence to the tribunal, the claimant alleged that Ms Bawtree had said to him “you are too stupid to know the difference between a fraud and a dispute”.  That appears to be the first time the claimant alleges that those words had been said to him by Ms Bawtree.  In his grievance on 17 May 2019, the claimant refers to this alleged incident but not to this alleged form of words.  Similarly, the alleged statement is not mentioned in the claim form or in the claimant’s replies to the Notice for Additional Information.   The claimant alleged that Ms Bawtree had been racially motivated in the manner in which he had treated him, but produced no evidence to support that allegation.

 

76.       The tribunal has carefully considered the evidence of Mr Beeka and Ms Bawtree.  It notes in particular that Mr Beeka, although he states he had been clearly annoyed about this meeting and although he states that he had formed the view that it was race discrimination, made no formal or written complaint about the matter.  He stated before the tribunal that his union representative had told him to forget about it.  That seems highly unlikely.  The claimant alleged he had made an informal verbal complaint of race discrimination (see later) about the incident.

 

77.       This incident had been in an open plan office with a diverse workforce.  The claimant had been well aware of his rights and had been capable of lodging a formal or written complaint if he had wished to do so.  He had been represented by a trade union at that time.  The tribunal considers it highly improbable that Ms Bawtree would have behaved in a racially discriminatory manner or as described by the claimant in such an environment and equally unlikely, if it had happened, that the claimant and indeed his trade union would have taken no written or formal action.  It is equally unlikely that Ms Bawtree would have acted in such a manner in front of another team manager, Mr Lindsay.

 

78.       It is also highly unlikely that Ms Bawtree had told the claimant that he had been “too stupid to know the difference between a fraud and a dispute”.  The tribunal concludes on the balance of probabilities that Ms Bawtree had acted correctly in relation to her meetings with the claimant and that nothing had occurred in the course of those meetings which had been either improper or unlawfully discriminatory on the grounds of race. 

 

Alleged Verbal Complaints in or around October/November 2018

 

79.       The claimant alleged that while off work he had made a verbal complaint in October 2018 to a member of management of race discrimination during his meeting with Tess Bawtree and a further such complaint direct to Mr Rolston “during return to work in November 2018”. 

 

            At two points on his claim form, the claimant refers to one such alleged complaint only in October 2018 and does not identify to whom this single complaint had been made.  In that claim form, he did not allege that he had made a second complaint in November 2018 to another manager.  In his Replies on 21 November 2019, the claimant alleged that he had made verbal complaints to both a Ms Laight and to Mr Rolston but that both complaints were made in October 2018.

 

            The claimant appears confused about when and to whom any alleged verbal complaint had been made.  This is another instance where the version of events put forward by the claimant alters over time.

 

80.       The claimant alleged that the detailed record of the wellbeing meeting on 21 November 2018 had been fraudulently manipulated to remove any references to race discrimination and to stress being caused by work.  The tribunal does not accept that this had occurred.  The claimant adopts the position in relation to several matters that if a written contemporaneous and detailed record does not support his particular narrative (and that narrative is somewhat fluid and subject to change), then the document in question must have been “manipulated” and falsified.  If the claimant is correct in all these allegations, there had been a massive conspiracy within the respondent organisation involving several managers who, according to the claimant, were all willing to fraudulently alter documents to support the respondents’ position in relation to a tribunal case.  Furthermore, the tribunal notes that in the record of the wellbeing meeting on 21 November 2018, Mr Rolston referred in some detail to the claimant’s allegation about Ms Bawtree.  There was no mention of race discrimination.  If he had simply wanted to avoid discussing the claimant’s complaint about Ms Bawtree, he would not have recorded it at all.  It is also inconceivable the claimant’s trade union representative would have conspired with Mr Rolston to alter the notes of the wellbeing meeting as suggested by the claimant.

 

81.       Therefore the tribunal unanimously concludes no verbal complaint was made by the claimant either in October or in November 2018 alleging race discrimination against Ms Bawtree.  It is clear that the claimant at some point told his trade union representative that he thought that it might have been race discrimination but he did not make that complaint to Mr Rolston or to anyone in management and his trade union representative did not make any such complaint on his behalf.  There had been no protected act as alleged by the claimant.

 

Computer Systems

 

82.       The claimant alleged that the respondent had, as an act of victimisation, removed his access codes to various computer systems after he had made the alleged verbal complaint (or complaints) of race discrimination against Ms Bawtree.  He described this action in various ways including “sabotage” and “criminal vandalism”.  He also stated that he did not “know who did it”.

 

83.       In the bundle, there is only one brief record of an involvement from the IT Department in relation to the claimant’s access to systems.  That involvement appears to have occurred over a period of some eight days up to 29 November 2018 where it was recorded as “closed was resolved”.  The tribunal was not referred to any other documentation between the claimant and IT or any other documentation supporting the claimant’s allegation that there had been a lengthy interruption to his access to computer systems.  The claimant alleged that relevant documentation existed but that it had been destroyed by the respondents.  That is not credible.

 

84.       In cross-examination, the claimant alleged that Mr Rolston had “confessed” in a grievance interview on 21 October 2019 that the problem with access to computer systems had been going on for “several weeks”.  That record of that meeting said that Mr Rolston had referred to the problem lasting “a couple of weeks”.  That was not rebutted by the claimant.  That is not that different from a period of eight days.  It is not consistent, as the claimant alleged, with an allegation that there had been a lengthy and sustained interruption to the claimant’s access to computer systems. 

 

85.       Essentially, the claimant alleges that because of the alleged verbal complaint, (or complaints) of race discrimination, which the tribunal has determined had never occurred, the respondents had deliberately sabotaged their own computer systems to deny the claimant access to teleport and to other systems and that this had been done as some form of retribution.  That would have exposed the respondents to PSR complaints and to action by the regulatory authority, the FCA.  Furthermore, Mr Rolston was quite clear, and the tribunal accepts, that he would not have known how to disable the claimant’s computer systems, in the manner alleged by the claimant.  Such an action could only have been taken by the IT Department which was based in England and which had no contact with, or knowledge of the claimant, apart from that one brief period leading up to 29 November 2018.  The IT Department would have had no reason to take any action against the claimant.

 

86.       The unanimous decision of the tribunal is that there had been a brief period of approximately eight days during which the claimant had had difficulties with access to the computer systems but that that issue had been resolved by the IT Department on 29 November 2018.  The suggestion that someone within the respondents’ organisation would have deliberately sabotaged their own system in relation to a particular employee, to the detriment of their customers and thereby exposing the bank to regulatory action, is simply incredible and unsupported by any evidence.

 

The Investigation into Call Conduct in 2019

 

87.       In February 2019, Brian Rolston, the claimant’s manager had been reviewing comments received from customers about their experience of telephone calls with his team.  That was a routine matter and had been done on a daily basis in respect of all employees. 

 

88.       There had been a negative review from a customer in relation to the claimant which alleged that the customer had been cut off in the course of a telephone conversation.

 

89.       Mr Rolston discussed this matter with his manager Rachel Gallagher.  Ms Gallagher advised Mr Rolston to carry out further investigations to see whether this was an isolated incident and Ms Gallagher suggested to Mr Rolston that he should listen to some other calls.  Mr Rolston told Ms Gallagher that he had already completed a sampling of the claimant’s calls and that he had found other issues.  Mr Rolston and Ms Gallagher decided that a trace should be placed on the claimant’s line which would indicate whether a call had been ended by the claimant or ended for some other reason. 

 

90.       That trace demonstrated a number of telephone calls where it appeared that the claimant had been dropping or ending calls deliberately.

 

91.       The respondents’ Human Resources Department recommended that an investigation took place.  Ms Sharon McCann was ultimately appointed as the Investigation Manager.

 

92.       Ms McCann held an investigation meeting with the claimant on 2 May 2019.  The claimant went on sick leave on the following day and did not return to work.  He remained on sick leave until his contract terminated. 

 

93.       In the investigation meeting on 2 May 2019, the claimant was specifically asked what his relationship was like with his line manager Mr Rolston.  He stated that they “get on ok”.  He also stated that he had regular one to one meetings and coaching with his manager.  The claimant did not report any alleged remark about Nigerians not being able to earn more than their managers or any other allegation of race discrimination against Mr Rolston or indeed with anyone else.  He did not refer to any alleged verbal complaint for complaints) of racial discrimination which, if they had existed, would have been outstanding for six months at that stage.  He stated that he enjoyed dealing with customers and the relationships with his colleagues. 

 

            It is remarkable, given that the claimant now alleges that he was the subject of a detailed and sinister conspiracy to remove him from the bank on racial motives that he made no allegation of any such conspiracy during the course of this meeting.

 

94.       The investigation meeting covered a range of subjects.  When the claimant was discussing his meeting with Mr McNaughton on 5 February 2018, he made no allegation of making any reference to race discrimination or to stress at work in the course of that meeting. 

 

            He initially denied ever seeing the record of 5 February 2018 meeting.  “I am seeing this document for the first time”.  He then said he did not sign the document “as I was going through a difficult time and I would not sign it”.

 

95.       The claimant alleged, in his later grievance on 17 May 2019 and before the tribunal, that the decision to conduct an investigation into his call conduct had been an act of race discrimination, including victimisation and harassment.  He alleged that Mr McNaughton had drafted a record of the meeting on 5 February 2018 was an “unfair” and an “invalid” document.  He alleged that this document had been used as the basis for an investigation into “malicious allegations”.  He alleged that the notes of the investigation meeting had also been “manipulated”.

 

96.       The tribunal unanimously concludes that the decision to conduct an investigation had been entirely proper.  It had been motivated by a customer complaint which had been properly investigated by the claimant’s line manager Mr Rolston.  This had had nothing whatsoever to do with race or with any alleged verbal complaint about Ms Bawtree.  It had been an entirely normal reaction by the respondents to the claimant’s conduct.

 

Claimant’s Grievance

 

97.       On 17 May 2019, some two weeks after the investigation meeting, the claimant lodged a lengthy internal grievance.  He raised a long list of complaints:

 

            (i)         that Mr McNaughton had been unsympathetic about the death of the claimant’s grandfather and had manipulated the notes of the meeting on 5 February 2018;

 

            (ii)        that Mr Rolston had used those manipulated notes to start an investigation into “malicious allegations”;

 

            (iii)       that the notes of the investigation meeting had been manipulated;

 

            (iv)       that those “manipulated” notes had been deliberately sent to his ex-wife’s address;

 

            (v)        that the respondents had “turned a blind eye to my ill-health” and were “trying to destroy my personality as a human being”;

 

            (vi)       that Mr Rolston had accused him of a PSR breach “in full view of my colleagues”;

 

            (vii)      that Ms Bawtree had in September 2018 raised a PSR breach where she alleged he had not sent emails; he claimed his inbox had not been full;

 

            (viii)     that Ms Bawtree and Mr Lindsay had walked up to him and stood over him “like police officers” (not on this occasion like military officers or generals);

 

            (ix)       that he had been told that Ms Bawtree would be moved;

 

            (x)        that Ms Bawtree had not been moved;

 

            (xi)       that someone had removed his access to computer systems;

 

            (xii)      that he had been unable to use his designated workstation;

 

            (xiii)     that malicious allegations were made against him;

 

            (xiv)     that “they” were planning to set him up and accuse him of wrongdoing;

 

            (xv)      that he had been subject to “overbearing and intimidating levels of supervision”;

 

            (xvi)     that a request to work part-time had been declined;

 

            (xvii)    that management “adopted systematic ways to frustrate my efforts to return and be healthy again” and “displayed desperation and manipulated documents”;

 

            (xviii)   that white colleagues were treated with more sympathy when bereaved;

 

            (xix)     that the respondents actions were “unfriendly, unprofessional, unsympathetic and malicious”;

 

            (xx)      that “I suspect deliberate sabotage of my systems”;

 

            (xxi)     that Mr Rolston had said “I am sure you lived like a king in Nigeria”.

 

98.       On 12 June 2019, a wellbeing meeting was held to discuss the claimant’s absence from work.  It was conducted by Ms Gallagher. The claimant attended and was represented by a trade union official.  The claimant was reminded of nine periods of absence including the current period of absence which had commenced on 3 May 2019, the day after the investigation meeting.  The claimant’s state of health was discussed in detail including his cognitive behavioural therapy, thyroid medication and blood pressure levels. 

 

99.       Ms Gallagher made it plain to the claimant that his grievance of 17 May 2019 was not going to be discussed in the course of that wellbeing meeting.  She indicated to the claimant that the respondents had received his grievance and that an independent manager would look into his concerns.  It was specifically made clear to the claimant that the independent manager was on annual leave and that she would contact him on her return by the end of June to discuss the next steps. 

 

            Towards the end of the meeting, Ms Gallagher asked the trade union representative if he had any questions.  The trade union representative stated:

 

                        “Yes, hearing manager for investigations, back from holidays between 19‑30 June will contact DB (the claimant)”.

           

            Ms Gallagher confirmed that that was the case.  The claimant was present throughout this exchange and could have been in no doubt that the respondent was acting in relation to his grievance and in no doubt that an independent manager had been appointed to consider that grievance.  Equally, he would have been in no doubt that that independent manager would contact him on her return from holidays.  The notes of the meeting were sent to the claimant on 17 June 2019. 

 

100.    The claimant replied on 19 June 2019 to state that he was not happy that the notes he had been sent did not have a provision for his signature. 

 

101.    He went on to complain about what he had perceived as the delay in dealing with his grievance.  He stated:

 

                        “It is over a month now and my concerns regarding the unfair treatments I have received is still pending an investigation and no-one has invited me to discuss the matter.  I wish to remind you that effort to return to work without due consideration to look into my concerns will be unfair.  The ongoing bullying, victimisation and lack of genuine care when I was dealing with series of life events is unfair.  I perceive all the unfavourable treatments towards me to be because of my race.  This is causing me a lot of stress and I will appreciate if the issue be taken seriously.  I also plead with you to ensure my grievance dated 17 May 2019 is investigated immediately without further delay.”

 

102.    The attitude of the claimant, when he had been advised one week earlier on 12 June 2019 that an independent manager had been appointed and that that independent manager would contact him on her return from holidays “by the end of June”, is extraordinary.  The claimant acted as if he had not been present during the meeting on 12 June 2019. 

 

103.    On 4 July 2019, the independent manager, Ms Garrett-Lang tried to telephone the claimant on the telephone number which he had provided.  That number was invalid.  Ms Garrett‑Lang had returned to work on the previous day and had acted promptly in trying to contact the claimant.

 

            The tribunal concludes that there had been no undue delay on the part of the respondent in dealing with this matter.  The claimant had submitted a lengthy grievance, raising a list of complaints against several people.  This had not been a simple grievance which would have been determined quickly.  It comprised seven typed pages covering a range of alleged incidents.

 

104.    A formal invitation to what was described as the “first formal interim meeting” was posted to the claimant on 7 July 2019 to further discuss the claimant’s wellbeing issues.  He had at that stage been absent from work for over two months.

 

105.    Ms Garrett-Lang notified the respondents that she had tried calling the claimant, leaving voice mails and text messages with limited success.  The claimant had returned her telephone calls once but she had missed that call and she had heard nothing since.  She wanted to send a formal invitation letter to a grievance meeting but understood that it was not possible because the claimant was off sick. 

 

106.    In early July 2019, Ms Helen Garrett-Lang sent a text to the claimant which stated:

 

                        “Good Morning Denen, my name is Helen Garrett-Lang and I am your hearing manager for both your disciplinary and grievance.  I have tried calling you and I know I missed your call so I thought a text might be easier for now.  I would like to get the meeting arranged to hear the disciplinary first where you can put forward some of your grievance as mitigation for the disciplinary and then I will hear your separate grievance in a second meeting on the same day.  Would either 22 July or 24 July work for you?  Will you be represented by the union rep?  Can you let me know your personal email address and postal address?  Happy for you to reply via text or even email me at (email address given) or call me on this number.  Many thanks, Helen.”

 

107.    Ms Gallagher had tried to get the claimant’s union representative to contact him and his union representative had provided a telephone number which again proved to be invalid. 

 

            DHL tried to deliver letters to the claimant on 8 July 2019 and 9 July 2019 but were unsuccessful on both occasions.  Those letters were invitations to his grievance and disciplinary meetings. 

 

108.    A further meeting invitation was sent by post to the claimant on 18 July 2019 inviting him to a meeting on 6 August 2019.  On the same date a separate invitation to a disciplinary meeting was also sent to the claimant.  It specifically referred to an allegation that the claimant had purposefully terminated customer calls without due cause on 18 occasions specifying the dates and times and, additionally, that the claimant had purposefully avoided taking customer calls by remaining on the line when the customer call had ended on four separate occasions given the dates and the times. 

109.    DHL attempted twice again to deliver the invitation letter on 18 July 2019 and 19 July 2019.  There were unsuccessful on both occasions. 

 

110.    On 22 July 2019, the claimant resigned by letter.  He stated:

 

                        “I write to express my pain.  I can no longer bear or tolerate ongoing and consistent bullying harassment racial victimisation threat and the unreasonable delay of the grievance process.  I am now scared to go into work.”

 

                        “I am off sick at the moment for stress and I consider a text message sent to my mobile on 10 July 2019, informing me of a disciplinary hearing before my grievance will be heard on the same day a threat and inappropriate.”

 

111.    The claimant further stated in this letter of resignation that:

 

                        “I am being maltreated and degraded in many ways including careless jokes, mention of my letter dated 17 May 2019.  Brian joked when I returned from my holiday, he smiled and said to me “the money you earn here, I am sure you will live like a king when in holiday in Nigeria.”  “Do you consider such a joke appropriate banter?”

 

            It is notable that the claimant referred only to one remark, which had been potentially innocuous and not to the more serious remark currently alleged by the claimant ie that a person from Nigeria or from Africa “should not earn more than his manager”.  That strongly suggests that this allegation has been invented more recently to bolster the claimant’s case.

 

112.    Further invitations to the disciplinary hearing and to a grievance meeting to be held on 12 August 2019 were posted to the claimant on 2 August 2019. 

 

113.    On 6 August 2019, the respondent acknowledged the claimant’s letter of resignation.  Ms Gallagher referred to the invitations to the grievance and disciplinary meetings and asked him to confirm that he would be attending.  She stated:

 

                        “We deny that you had been unfairly or constructively dismissed and it was disappointing that you have felt the need to resign before we have been able to discuss these matters with you.”

 

114.    The claimant replied on 8 August 2019 complaining again about what he perceived to be the unreasonable delay in looking into his grievance.  Despite complaining again about alleged delay, and even though he was not working, he stated that the dates for the meeting were “not convenient” for him and asked for it to be rearranged.  He also asked for a list of documents. 

 

115.    Yet further invitations to the disciplinary hearing and the grievance hearing were issued on 9 August 2019 for rearranged meetings on 27 August 2019.  Those letters indicated that, as the meeting had already been rescheduled twice, it was unlikely that the respondent would agree to postpone it again unless there were exceptional circumstances.  The claimant was advised that failure to attend the hearings would result in a decision being taken in his absence.

 

116.    Despite having already resigned, the claimant wrote again on 20 August 2019.  That letter was headed in bold “resignation with immediate effect”.  The claimant rehearsed his many grievances and complaints.  Again he referred to what he regarded as “careless jokes”.  He repeated an allegation that Mr Rolston had stated “with the money you earn here, I am sure you lived like a king when in holiday in Nigeria.”  Again the claimant did not mentioned the much more serious allegation, that he now makes, that at or about the same time Mr Rolston had said that no man from Nigeria or from Africa should earn more than his manager. 

 

117.    The respondent attempted on several occasions to deliver the documentation requested by the claimant to the claimant by DHL.  They attempted delivery on three occasions but were unable to complete the delivery and they returned the documentation on 21 August 2019. 

 

118.    The claimant sent yet another letter on 21 August 2019 in which his several complaints were rehearsed again. 

 

119.    Ms Garrett-Lang wrote again to the claimant on 29 August 2019 inviting him to yet another rearranged grievance meeting on 9 September 2019.  That letter was also sent on 30 August 2019. 

 

120.    The claimant replied on 7 September 2019.  He stated that he was “disappointed that my grievance of racial discrimination was not investigated while he was an employee.”  The claimant stated that the letter had not reached him in time and he had not been able to make arrangements for a meeting on 9 September 2019.  He complained that his union had showed him “a lack of genuine support”.  He stated that instead he would be available to discuss his concerns on 17 September 2019 at 2.00 pm. 

 

            The respondents accommodated the claimant and the meeting proceeded on 17 September at 2.00 pm via WebEx.

 

121.    The documentation that the claimant had requested had been posted to him on 9 September 2019.  Despite that, the claimant denied receiving the documents.  The claimant was advised in the course of the meeting that once the matter was reviewed the documents would be sent to him again.  The meeting had been conducted by WebEx and not in person and therefore the documents could not be handed to him in the course of the meeting.

 

122.    The claimant rehearsed his various grievances in the course of that meeting until he ended the meeting despite the respondent wanting to continue.

 

123.    The documents he requested in the course of the meeting were sent to him again by post on 18 September 2019.

 

124.    The claimant was sent a copy of the minutes of the meeting but refused to sign them. 

 

125.    Ms Garrett-Lang interviewed Mr Rolston and corresponded with other staff.  She studied the relevant records.

 

126.    On 28 October 2019, Ms Garrett-Lang wrote to the claimant with a formal decision on the grievance.  It stated the grievance was not upheld.  The claimant alleged that he wrote on 1 November 2019 to appeal against the decision not to uphold his grievance.  He stated:

 

                        “I perceive your conduct towards me to be an act of direct racial discrimination as you have failed to demonstrate unbiased intentions during the cause of your investigations.”

 

127.    The respondent and in particular Ms Garrett-Lang denied receiving that letter.  Ms Garrett-Lang was quite specific in stating that the first time she had seen this letter was when she had been asked by her solicitors about it. 

 

128.    The tribunal concludes that this appeal letter was not sent by the claimant to the respondent on 1 November 2019 and had simply been invented after the event.  If it had been sent, and simply ignored as alleged by the respondent, that would have been raised at the time by the claimant.  It was not.

 

129.    The claimant did not contact the respondent to ask about the progress of his appeal, either directly through his trade union or through his solicitors.  That can only be consistent with the claimant having invented this grievance appeal and producing a copy to his solicitors without ever, in fact, having sent it to the respondent.

 

Alleged Remarks by Mr Rolston

 

130.    The claimant alleged that Mr Rolston, his manager, had, in an open plan office with a diverse workplace and in the presence of not just the claimant but in the presence of Mr Ade Murtala, made two specific remarks on or about the same occasion on the claimant’s return from holiday in Nigeria:

 

                        “I am sure you lived like a king when in Nigeria”

 

                        “No person from Nigeria (or Africa) should earn more than their manager.”

 

131.    The claimant and Mr Murtala were adamant in cross-examination that both remarks had been made by Mr Rolston. 

 

132.    Mr Rolston stated that he had joked with the claimant on his return from holiday about a luxury hotel or a luxury apartment where the claimant had stated he had stayed in Nigeria.  Mr Rolston stated that there was no racial element in that remark and that he would have made similar remarks if any other employee had referred to luxury accommodation on holiday.  The tribunal accepts that this was an entirely innocent exchange and a normal conversation between Mr Rolston and the claimant. 

 

133.    Mr Rolston denied making the second remark either to the claimant or in respect of the claimant.  Mr Rolston stated that there had been a running joke amongst staff about those who had worked a lot of overtime and whose earnings had exceeded Mr Rolston’s.  The staff in question were local staff and were not from any racial or ethnic minority.  Mr Rolston stated, and the tribunal accepts, that the claimant would have been aware of that running joke and would have been equally aware that that running joke had nothing to do with the claimant or with race or indeed with the claimant’s holiday in Nigeria. 

 

134.    The tribunal accepts Mr Rolston’s evidence that this remark had simply not been made as alleged by the claimant or at all.  The evidence put forward by the claimant and supported by Mr Murtala is simply not credible because:

 

            (a)       Neither the claimant nor Mr Murtala had made any complaint either oral or written in relation to that remark at the time.  If it had been true that that second remark had been made, a complaint would have been made and would have been actively pursued by the claimant and by Mr Murtala. 

 

            (b)       No complaint either oral or written had been made by the trade union about that alleged remark.

 

            (c)        No complaint was made by anyone else who had been present in the open plan office at that time.

 

            (d)       The alleged remarks had been made in front of two people ie the claimant and Mr Murtala who could legitimately be expected to have taken offence at the second alleged remark and it is simply highly improbable that Mr Rolston would have made that second alleged remark in front of the claimant and Mr Murtala.

 

            (e)       The allegation about the second alleged remark appeared very late in the day.  The grievance lodged by the claimant on 17 May 2019 referred only to the first alleged remark and not to the second and the more serious alleged remark.  If that second alleged remark had indeed been made as alleged by the claimant, it would have been mentioned in the grievance.  It was not mentioned. 

 

            (f)        The claimant did not refer to either alleged remark in his claim form to the tribunal. 

 

            (g)       The claimant was asked in a Notice for Additional Information of 4 November 2018 to give full and precise details of his complaints of race discrimination and to provide details of each alleged act which he believed had amounted to less favourable treatment on the grounds of race.  In a lengthy reply, comprising seven typed pages, on 21 November 2019, the claimant did not mention either alleged remark. 

 

            (h)       In the four typed pages of “amendments” to his claim in the letter of 25 September 2019 the claimant did not mention either alleged remark. 

 

            (i)         In the three typed pages of “amendments” to his claim in the letter of 1 November 2019, the claimant did not mention either alleged remark. 

 

            (j)         In the agreed list of legal and factual issues attached to the CMD record of 21 November 2019, there was no mention of either alleged remark.

 

            (k)        In the two typed pages of “updates” to his claim in the letter of 26 November 2019, the claimant did not mention either alleged remark.

 

            (l)         In the five typed pages of “updates” to his claim in his letter of 16 December 2019, the claimant mentioned the first alleged remark but, crucially, did not mention the more serious remark now alleged to have been made at or about the same time. 

 

            (m)      In the two typed pages of “amendments” and “updates” in his letter of 12 January 2020, the claimant did not mention either alleged remark.

 

            (n)       In fact, the first mention of the second alleged remark ie that a Nigerian should not be earning more than a supervisor, appears to have been made in the course of a Deposit Order Hearing on 27 January 2020. 

 

            (o)       If that second alleged remark had been made by Mr Rolston as now alleged by the claimant, it would have been alleged in the grievance, in the tribunal claim form and in any event, long before the 27 January 2020.  The tribunal concludes that this allegation was invented by the claimant to bolster his claim and to minimise the possibility of a Deposit Order.

 

Data Breach

 

135.    The claimant alleged that Mr Brian Rolston, or someone else within the respondents’ organisation, had deliberately sent documentation which he had requested as part of the internal processes, to his ex-wife’s address in order to embarrass him as an act of victimisation.  This tribunal has no statutory role in relation to data protection.

 

136.    The tribunal has already concluded that no oral complaint of race discrimination had been made by the claimant in October/November 2018 and those alleged protected acts were the only such acts put forward by the claimant.

 

137.    In any event it is clear that Mr Rolston sent the documents to the address shown by the claimant on his most recent sick note.  While Mr Rolston had not taken the additional step of checking central records for the claimant’s updated personal address, this had been an entirely understandable action on his part and was not in any sense motivated by any protected act that the claimant might have performed. 

 

138.    If the burden of proof has shifted in regard to this allegation, the tribunal is satisfied that the respondent has effectively rebutted any presumption of unlawful victimisation. 

 

Unlawful Deduction from Wages

 

139.    The claimant alleged that he had been subjected to an unlawful deduction from his wages in July and August 2019.  That alleged deduction related to the non‑payment of an unsocial hours payment by the respondent which was ordinarily made in respect of the claimant’s shifts during unsocial hours.  However the clear policy of the bank and the contractual entitlement of the claimant was that that payment ceased once an employee had been absent from work for more than 28 days.

 

140.    The claim of an alleged failure to make a payment in accordance with the claimant’s contract of employment is without any foundation.

 

Credibility of the Claimant

 

141.    The evidence of the claimant either in his witness statement or in his cross‑examination was difficult to follow and even more difficult to understand.  It seemed to consist primarily of wild and unsupported allegations of conspiracies and fraudulent activity which he stated had been put in place with the sole object of removing him from his employment.  His evidence was simply incredible. 

 

            At the risk of some significant repetition, the tribunal concludes that the following matters call the claimant’s credibility into serious question;

 

            (i)         The claimant argued that there had been a widespread conspiracy against him within the respondent organisations because he had made oral complaints of race discrimination in October and November 2018 in relation to the alleged conduct of Ms Bawtree.  He now alleges that he had made one oral complaint to a manager, Ms Laight, and a second oral complaint to Mr Rolston.  He had earlier referred to only one complaint.

 

                        There was no corroborative evidence of any such oral complaints and it is highly unlikely that the claimant, or his union, would have made such oral complaints of race discrimination and had then let them be ignored for a lengthy period without pursuing the matter promptly and in writing.  The claimant appeared to be confused about when and to whom the alleged oral complaints had been made.  There was no evidence of any attempt by the claimant or by his trade union to follow up any alleged oral complaint at the time.  The tribunal concludes that there were no such oral complaints of race discrimination about Ms Bawtree in either October or November 2018. 

 

            (ii)        The claimant alleged that Mr McNaughton had “falsified” and “manipulated” records of the meeting on 20 February 2018 to remove references to workplace stress and to raise discrimination.  That allegation was simply not credible.  He stated that Mr McNaughton had done this because of his alleged oral complaints which, if the claimant’s evidence were to be accepted in this respect, occurred some eight or nine months later.

 

            (iii)       The claimant alleged in evidence that in October or November 2018, Ms Bawtree had “shouted at me to stand up and follow me” and she had said to him “you are too stupid to know the difference between a dispute and a fraud”. 

 

                        The words “you are too stupid --” appear to be a recent addition. This was supposed to have happened in an open plan office with a diverse workforce and in the presence of another manager, Mr Lindsay.  That allegation is not credible. 

 

            (iv)       The claimant alleged that the respondents had wilfully “sabotaged” and “criminally vandalised” his access to computer systems, in an act of retaliation for his alleged verbal complaints of race discrimination in October and November 2018 (which the tribunal has determined never happened).

 

                        Such an action, on the part of the respondents, would have exposed those respondents to complaints from customers and, if the Payment Services Regulations had been breached, because credit card refunds had not been processed within the stated time limit, (which would have been probable), to regulatory action.  This allegation is again simply not credible.

 

            (v)        The claimant alleged that he had been subject to overbearing supervision by Mr Rolston and others.  The claimant clarified this as a complaint about a trace being put on his calls, after a complaint from a customer and after further checks had raised matters of concern, to determine whether he had been ending calls himself or if calls had been ended for some other reason. 

 

                        There had been no overbearing supervision and the respondents’ actions in this respect had been entirely proper.  This allegation is again simply not credible.

 

            (vi)       The claimant alleged that an unidentified person had been responsible for deliberately removing his access to computer systems as an act of victimisation.  Mr Rolston stated in evidence, and the tribunal accepts, that this would have been an IT issue and that he, or anyone he worked with, would not have known how to go about it.  The tribunal accepts that this alleged course of action would have involved highly technical changes to the computer system.  Mr Rolston speculated that only the IT Department, which had been based in England and separate from the organisation in Belfast, would have known how to go about it.  That IT Department and anyone based on that IT Department would not have had any motive or alleged motive to conduct such a course of action.  This is again yet another incredible and unsupported allegation.

 

            (vii)      The claimant alleged that Mr Rolston, as manager, in an open plan office with a diverse workforce, and in the presence of not just the claimant but a Mr Ade Murtala, made two remarks on the claimant’s return from holiday in Nigeria;

 

                                    “I am sure you lived like a king when in Nigeria”

 

                                    “No person from Nigeria (or Africa) should earn more than their manager.”

 

                        The claimant and Mr Murtala were adamant that both remarks had been made by Mr Rolston.  Mr Rolston stated that he had joked about a luxury hotel or luxury apartment where the claimant had said he had stayed in Nigeria.  The claimant did not dispute that evidence.  Mr Rolston stated that did not make the second remark to the claimant or in respect of the claimant.  There had however been a running joke with one other member of staff who had worked a lot of overtime and whose earnings had exceeded Mr Rolston’s.  That had had nothing to do with either the claimant or with race.

 

                        The allegation of the claimant in respect of these two remarks, which had been supported by Mr Murtala, is simply not credible because:

 

                        (a)       no complaint of any sort was made by either the claimant or Mr Murtala in relation to either remark at the time.  If it were true that the second remark had been made, a complaint would have been made and actively pursued by the claimant or by Mr Murtala.

 

                        (b)       No complaint of any sort was made at the time by the trade union. 

 

                        (c)        No complaint was made by anyone else present in the open plan office.

 

                        (d)       The alleged remarks had been made in front of two people the claimant and Mr Murtala, who could legitimately be expected to take offence at the second alleged remark and it is highly improbable that that would have happened. 

 

                        (e)       The grievance lodged by the claimant on 17 May 2019 referred only to the first alleged remark and not to the second and more serious alleged remark.  If that second alleged remark had been made it would have been mentioned in the grievance.  It was not mentioned.

 

                        (f)        The claimant did not refer to either alleged remark in his claim form.

 

                        (g)       The claimant was asked in a Notice for Additional Information of 4 November 2018 to give full and precise details of his complaints of race discrimination and to provide details of each alleged act which he believed had amounted to less favourable treatment on the ground of race.

 

                                    In a lengthy reply, comprising seven typed pages, on 21 November 2019, the claimant did not mention either alleged remark.

 

                        (h)       In the four typed pages of “amendments” to his claim in the letter of 25 September 2019, the claimant did not mention either alleged remarks.

 

                        (i)         In the three typed pages of “amendments” to his claim in the letter of 1 November 2019, the claimant did not mention either alleged remark.

 

                        (j)         In the agreed list of legal and factual issues attached to the CMD record of 21 November 2019, there was no mention of either alleged remark.

 

                        (k)        In the two typed pages of “updates” in his letter of 26 November 2019, the claimant did not mention either alleged remark.

 

                        (l)         In the five typed pages of “updates” in his letter of 26 November 2019, the claimant did not mention either alleged remark.

 

                        (m)      In the five typed pages of his letter of 16 December 2019, the claimant referred only to the first alleged remark.

 

                        (n)       In the two typed pages of “amendments” and “updates” in his letter of 12 January 2020, the claimant did not mention either alleged remark.

 

                        (o)       The first mention of the second alleged remark; ie that a Nigerian should not be earning more than a supervisor appears to have been made in the Deposit Order Hearing on 27 January 2020.

 

                        If that second remark had been made by Mr Rolston, as now alleged by the claimant, it would have been alleged in the grievance, in the claim form and, in any event, long before 27 January 2020.  The tribunal concludes that this allegation was invented by the claimant to bolster his claims.

 

            (viii)     The claimant alleged that a range of managers had removed or falsified or deleted documents.  They included not just Mr Rolston but Mr McNaughton, Ms Louise Laight and others.  This is simply not credible.

 

            (ix)       The claimant alleged that Mr Brian Rolston had deliberately posted documents to his ex‑wife’s address to give the respondent time to succeed “in a plan to get rid of me”.  There was a simple explanation for the use of the wrong address; it had been the address on the claimant’s latest sick note (which the claimant had submitted to the respondents).  In any event, the allegation of trying to gain time to succeed in getting rid of the claimant makes no sense whatsoever.  If the respondents had wanted to get rid of the claimant, they could have done so more simply and quickly by pressing ahead with the disciplinary action or by simply addressing the claimant’s poor attendance record.  No elaborate conspiracy would have been necessary.  That is another incredible allegation.

 

            (x)        The claimant knew that an independent manager had been appointed to investigate his grievance and he knew when that independent manager would return from holiday after a brief absence.  Yet the claimant immediately started to complain of delay.  His complaints of delay continued, even though it was apparent that it had been the claimant who had evaded contact by telephone, by post or by courier throughout this process and it was the claimant who had effectively caused any delay.  The allegations of delay in relation to grievance are incredible and utterly groundless.

 

DECISION

 

Direct Race Discrimination

 

142.    As set out above, there was no evidence before the tribunal of any unfair or detrimental treatment of the claimant by either respondent and in particular no evidence before the tribunal of any racial motive. 

 

143.    The claimant had been treated fairly by the respondents at all times and had been subject to normal, and indeed restrained, supervision in relation to his work. 

 

144.    In the absence of any prima facie evidence, the burden of proof has not passed to the respondents and the claim is dismissed.

Race Harassment

 

145.    This claim is also dismissed.  With the exception of the matter dealt with in the following paragraph, there was no prima facie evidence before the tribunal of any harassment of the claimant by either respondent and the burden of proof has not passed to the respondents.

 

146.    In relation to the particular allegation of harassment which concerned two alleged remarks which were said to have been made by Mr Rolston on the claimant’s return from his holiday in Nigeria, the tribunal concludes that the first remark had been made by Mr Rolston.  However that remark had been made as part of a normal conversation between Mr Rolston and the claimant and had been in response to the claimant’s own statement to Mr Rolston that he had lived in some form of luxury accommodation in Nigeria during his holiday.  The tribunal is content that such a remark would have been made by Mr Rolston, or indeed by any other manager, to any employee in such circumstances.  There was no prima facie evidence, or indeed any evidence, of any racial motive.  The tribunal notes in particular that in the subsequent investigation meeting, the claimant stated that he got on well with Mr Rolston and the tribunal also notes in particular that no complaint had been made by the claimant or by Mr Murtala at the time about this remark or indeed for some considerable time after that meeting.  The tribunal concludes the second alleged remark ie that no Nigerian should earn more than his manager, had not been made at all by Mr Rolston.  The tribunal notes that this particular, and incendiary, allegation, had not been by the claimant until a very late stage in the proceedings ie during the Deposit Order hearing in January 2020.  The tribunal also notes that neither the claimant or Mr Murtala had made any such complaint immediately after that meeting on the claimant’s return from his holiday in Nigeria. 

 

            The tribunal therefore concludes that while the burden of proof shifted to the respondents in relation to this particular allegation, the respondents have discharged that burden of proof and the allegation is not upheld.

 

Race Victimisation

 

147.    That claim is dismissed. 

 

148.    There was no prima facie evidence before the tribunal of any protected act or any act of victimisation.

 

149.    The claimant alleged in this regard that he had been victimised in various ways because of a specific protected act or acts.  He alleged that those protected acts had been two oral complaints of race discrimination which he had made in October and November 2018 about his meeting with Ms Bowtree in October 2018.  No such oral complaints, or indeed complaints of any sort in relation to race discrimination, were made by the claimant in October or November 2018.  Therefore there were no protected acts as pleaded by the claimant.

 

150.    As set out above, the various allegations made by the claimant about alleged unfair or detrimental treatment were simply incredible and therefore were not believed by the tribunal.  Even if there had been a protected act as pleaded, the allegation of victimisation would not have been upheld.

 

Constructive Unfair Dismissal

 

151.    This claim is dismissed.

 

152.    For the reasons set out above, there had been no repudiatory breach of contract on the part of the respondents on either of the two occasions on which the claimant had resigned.  There had been no unlawful discrimination, harassment or victimisation.  The respondents had tried to provide documentation to the claimant in relation to his internal grievance.  The claimant had failed to facilitate the delivery of that documentation.  The respondents had also tried to arrange a grievance hearing within a reasonable time, but the claimant had repeatedly delayed any such hearing. 

 

153.    There had been no single act, or course of conduct culminating in a final straw, which could have amounted to any repudiatory breach of contract. 

 

154.    In any event, the unanimous decision of the tribunal is that the claimant did not resign in relation to his alleged breach of contract.  He resigned to avoid being subjected to disciplinary action. 

 

Unauthorised Deduction from Wages

 

155.    There had been no such unauthorised deduction.  The non-payment of the unsocial hour’s payment in the last two salary payments was in accordance with the claimant’s contract of employment and the respondents’ policies.  The claimant had simply been absent from work and therefore not entitled to an unsocial hour’s payment.  When that had been put to the claimant in cross-examination, the claimant did not rebut or disagree with that position.

 

Statutory Terms and Conditions of Contract

 

156.    It is entirely unclear whether the claimant wished, or did, bring any such claim to the tribunal.  However the tribunal is satisfied that the claimant had been provided with statutory terms and conditions in accordance with the 1996 Order and, in any event, any finding in that regard could only be made if the tribunal had, in accordance with Article 27(1) of the Employment (Northern Ireland) Order 2003, found in favour of the claimant in relation to his allegations of constructive unfair dismissal and/or race discrimination.  The tribunal has not done so.

 

 

 

           

Vice President:

 

Date and place of hearing:          30 November, 1, 2 and 3 December 2020, Belfast.

 

This judgment was entered in the register and issued to the parties on: