Kieran Sidhu v Exertis (UK) Ltd and 4 others — 2017

At a 19-day liability hearing, the tribunal accepted that the claimant's diary was largely accurate and found that the workplace had a culture of crude sexual innuendo, sexualised banter and race-based remarks. It did not accept every pleaded incident, and it recorded that the religion, sexual orientation, gender reassignment and disability discrimination claims, together with the sick pay and holiday pay claims, were withdrawn. Claims against the fifth respondent were found to be out of time.

On race, the tribunal found a continuing course of unwanted conduct directed at the claimant, including race-specific name-calling and other humiliating treatment. It held that race was a significant influence on the treatment the claimant received and that the first respondent directly discriminated against him because of race by constructively dismissing him on 24 May 2017. The same course of conduct was also held to amount to harassment related to race against respondents 1 to 4. The tribunal rejected the section 109 reasonable steps defence, finding no pre-incident equality training and no effective preventive steps.

On whistleblowing, the tribunal found protected disclosures about PayPal/Amazon login access, Ballicom pricing, and Plantronics/CEX stock. It held that removal of the Accessories accounts, the placement of the claimant on a PIP and the pressure to sign it were detriments on the ground that he had made protected disclosures. The tribunal also found that some later treatment was linked to those disclosures. However, it did not find that the dismissal was principally because of protected disclosure, so the automatic unfair dismissal claim under s.103A ERA 1996 failed.

On victimisation, the tribunal accepted that the claimant's 3 February 2017 verbal complaint and his March 2017 grievance were protected acts, but it did not find that the later detriments were because of those acts. It criticised aspects of the grievance investigation, including the limited interviewing of witnesses and confidentiality issues, but did not regard the process as being unlawfully long. The victimisation claim therefore failed.

On dismissal and contract, the tribunal held that the cumulative bullying, the failure to tackle it, the grievance handling and the whistleblowing detriments amounted to a repudiatory breach of the implied term of trust and confidence. The claimant resigned on 24 May 2017 and was constructively unfairly dismissed. No potentially fair reason was advanced. The claim for breach of contract in respect of notice pay succeeded. The tribunal did not determine compensation in this judgment and directed a preliminary telephone hearing for remedy on 29 November 2019.