In person For the v Respondent — 2020

Mr Ellington was employed by Amey from 10 August 2017 and transferred to the London Borough of Hammersmith and Fulham on 1 May 2019 under TUPE, after which he worked as a cleaning supervisor. He is black and of African descent. The tribunal rejected the suggestion that the respondent had deliberately failed to disclose documents, but held that the pre-transfer matters relied on by the claimant were outside its jurisdiction because any liability would not have transferred under TUPE and those allegations were also out of time.

On the direct race discrimination claim under s13 and s39 EQA, the tribunal found no evidence that Mr Rahman treated the claimant less favourably because of race in relation to the Stephen Wiltshire Centre inspection, the late-night alarm call, the request to attend and clean toilets, the handling of Ms Felix and Mr Gordon's grievances, the suspension decision, or the 12 July 2019 calls. It accepted that some of Mr Rahman's conduct may have felt embarrassing, undermining or irritating, but found reasonable work-related explanations and no evidence that he made the alleged comment about Mr Oni's African accent or swore at the claimant repeatedly. The race harassment claim under s26 EQA failed for the same reasons.

The tribunal accepted that the claimant felt his status had reduced after the TUPE transfer, but held that this did not amount to a breach of the implied term of trust and confidence and in any event had been affirmed by continued employment. It nevertheless found that the suspension imposed on 12 July 2019 was unnecessary and excessive, that the suspension letter lacked sufficient particularity, that Mr Rahman's involvement in the suspension process was inappropriate, and that the later 28 August 2019 email expanded the allegations before the claimant had been interviewed. The tribunal treated those matters, together with the surrounding handling of the grievance and suspension process, as a continuing course of conduct.

The claimant resigned on 2 September 2019 and the tribunal held that he resigned in response to the cumulative breaches culminating in the 28 August 2019 email, so the constructive unfair dismissal claim succeeded. It recorded that the later investigation report concluded there was no direct evidence of inappropriate conduct by the claimant and that the bullying and harassment allegations were not substantiated. Any contribution, ACAS Code reduction, or monetary award was left to a remedies hearing.