In person For the v Respondent — 2022

Mr Prexy Simbol, a Filipino supermarket assistant at Waitrose Exeter, alleged race discrimination, harassment, and victimisation arising from refusal of a Level 4 apprenticeship application, later rejection for an Assistant Team Manager (Nights) role, a meeting with Mr Sharp, and a disciplinary process. The tribunal heard from the claimant and several managers, found serious concerns about the claimant's credibility, and preferred the respondents' evidence where it conflicted with his account or with contemporaneous documents.

On the apprenticeship issues, the tribunal found that the Level 4 application was rejected because the claimant lacked management experience, not because of race or nationality. It also found that the discussion in which Mr Tilley explained that the ATM role required management experience did not involve the alleged derogatory 'high calibre' remark. For the ATM (Nights) vacancy, the tribunal found that the interview process was transparent, the successful candidate scored highest and met the minimum criteria, and the decision not to appoint the claimant was based on his continuing lack of management experience rather than race.

The tribunal also rejected the claimant's allegations about the later management meetings and disciplinary process. It found that Mr Sharp's 30 October 2020 meeting was a coaching and development conversation, not aggressive or confrontational; that the investigation by Ms Bowen and the disciplinary steps taken by Ms McConnachie were based on the claimant's refusal to engage with his line manager and complete his PDP; and that there was no evidence of collusion or fabrication by the managers involved. The claimant's threat on 7 November 2020 to take matters to a tribunal was accepted as a protected act, but the tribunal found no causal link between that act and the disciplinary process.

The claim for direct discrimination was dismissed because the tribunal found no facts from which discrimination could be inferred under the burden of proof provisions in s.136 EqA 2010, and it applied the authorities cited in its reasons including Igen v Wong, Madarassy v Nomura International Plc, and related cases. The harassment claim was dismissed because the tribunal found no unwanted conduct related to race that met the statutory test in s.26 EqA 2010, and the victimisation claim was dismissed because the protected act had no significant influence on the decision to commence disciplinary proceedings. The tribunal added that, in any event, allegations 1 to 6 would have been out of time; only the later disciplinary allegation fell within the limitation period.