in person The v Respondent — 2021

The claimant, a Polish national employed as Brand Manager from 4 December 2017 to 11 February 2019, brought claims under section 103A of the Employment Rights Act 1996 and for direct race discrimination under the Equality Act 2010. The tribunal identified the protected disclosure case as concerning oral concerns raised in winter 2017/2018 and 2018/2019 about cold store temperatures and heaters, and a later issue about Mr Saunders' contract being left unattended. It found that the temperature concerns were raised with Mr Clack, but that the claimant did not establish a genuine and reasonable belief that staff health and safety was endangered or that the respondent was breaching legal obligations, and it did not accept that the contract issue involved a qualifying disclosure about data protection.

Even if the temperature or contract matters had been qualifying disclosures, the tribunal found they were not the principal reason for dismissal. The dismissal followed the respondent's investigation into complaints from AM about a text message describing her as "a little bitch", repeated calls, and an instruction not to pay her wages. The tribunal accepted that those AM-related allegations were the reason Mr Clack dismissed the claimant, and noted that the claimant did not suggest during the investigation, disciplinary hearing, or appeal that he was being dismissed because of the temperature or contract concerns.

On the race discrimination claim, the tribunal considered the requirement that the claimant undertake numeracy and literacy tests when recruited in October 2017. It found that the claimant had not established facts from which it could conclude that he was treated less favourably because of his Polish nationality, relying in part on evidence that his British successor Mr Darren Arnell was also tested and that the tests were normal recruitment practice for other employees. The tribunal also held that the claim was significantly out of time and that it would not have been just and equitable to extend time, noting the delay from October 2017 to the presentation of the claim on 11 May 2019.