Mr S Black v The Salvation Army Trustee Company — 2019

Mr Black brought a single claim of harassment related to religion or belief arising from comments he said were made by Mr Emery on 12 June 2018. The tribunal accepted the legal position agreed between the parties: if Mr Emery had made the comments, they would have amounted to unlawful harassment under the Equality Act 2010. The issue was therefore factual, namely whether Mr Black had proved that Mr Emery said the alleged words.

The tribunal heard evidence about earlier alleged race-related comments in December 2017 and January 2018, but it found Mr Black had not proved those comments were made. It considered his delayed complaints, especially the absence of any mention of race or religious abuse in his contemporaneous January 2018 complaint email and later performance review discussions, to be important against his account. It also noted that Mr Black and Mr Emery had a disagreement on 19 June 2018, but it did not accept that this explained the timing of the religious allegations.

On the 12 June 2018 incident, the tribunal found that the conversation took place at lunch rather than during the Cook and Eat session, supported by the Atlas record, service-user attendance information, and the accounts of Mr Myers and Ms Grieg. It found the claimant’s evidence less reliable than the respondent’s witnesses on the key issue and concluded, on balance, that it was the service user G, not Mr Emery, who made the comments insulting Islam and Muslims. It also accepted that G had a history of discriminatory comments, while Mr Emery’s anti-racist and anti-discriminatory background made it less likely that he was the source of the remarks.

The tribunal criticised the respondent’s handling of the grievance process and said the investigation was poor, including a failure to treat the January 2018 complaint as a grievance and an incomplete investigation in July 2018. However, it still found that Mr Black had not discharged the burden of proving that Mr Emery made the 12 June comments. The claim was therefore dismissed.