In Person v Respondent — 2023

The Tribunal refused the claimant's strike-out application and heard evidence from both sides. On day two of the hearing the claimant withdrew his age discrimination complaint, and the Tribunal dismissed it on withdrawal. The remaining claims concerned alleged race discrimination, victimisation, protected disclosure detriment, unlawful deductions, and constructive unfair dismissal arising from the handbook, pay, college fees, the 14 January 2021 site incident, the later investigation and performance improvement plan, and the claimant's resignation on 20 September 2021.

On direct race discrimination, the Tribunal accepted that the claimant did not receive an employee handbook at the start of employment, but it found the omission was explained by the handbook being a work in progress for UK staff and not by race. It also rejected the travel-time claim: although travel-time payment was inconsistent across the business before January 2021, the claimant did not show that Seamus O'Donnell was in materially the same circumstances on travel, and the Tribunal accepted the respondent's evidence that the policy was being regularised company-wide. On pay, the Tribunal found the claimant was paid more than Seamus O'Donnell at the relevant stages and therefore had not shown less favourable treatment.

The Tribunal also rejected the claims based on college fees and the events after the Felixstowe accident. It found a material difference between the claimant and Seamus O'Donnell because Seamus had always been with BETS, whereas the claimant was using XS Training, which invoiced differently. The respondent later reimbursed the 18th edition fee, and the AM2 refresher fee was not required for the qualification. The Tribunal held that the handling of the 14 January 2021 incident, the yellow card for lateness, Mr Kelly's treatment, and the requests for fit notes were explained by site procedures, performance concerns, lateness, and contractual sickness-reporting obligations, rather than race.

On victimisation and whistleblowing, the Tribunal accepted that the claimant's 15 January 2021 email was a protected act and also a protected disclosure because it complained about inaccurate accident recording and raised health and safety concerns. However, it found no pleaded detriment was caused by that protected act or disclosure. The refusal to fund fees pre-dated the email, the later investigation and PIP were driven by the respondent's concerns about college attendance, timekeeping, health and safety, and work quality, and the decision to send the claimant back to Felixstowe was taken for reasons unrelated to the complaint.

On constructive unfair dismissal, the Tribunal accepted that some of the respondent's conduct was unsatisfactory but held it did not amount to a fundamental breach of the implied term of trust and confidence. It found the handbook issue had an explanation, travel-time payments were inconsistent before January 2021, the pay-rate dispute did not establish a breach, the college-fee issue had a separate explanation, the investigation into the college-attendance issue was justified, and the PIP was a management tool used because of genuine performance concerns. In any event, the claimant had affirmed the contract by continuing in employment and by corresponding about fit notes after the grievance outcome of 8 July 2021 until his resignation on 20 September 2021. The unlawful deductions claim also failed: the travel-time element was out of time, there was no further wage entitlement on the pay-rise/back-pay issue, and the college-fee complaint failed because the fee had been reimbursed and no unpaid balance remained. All claims were dismissed and no award was made.