In person For the v Ms D Ajibade (legal representative) — 2023

Mr Makkar and Mr Bakiu moved with their employment from Beverley Hills Ltd to Neve Jewels Ltd under TUPE on 8 September 2021 and worked at the Hatton Garden store. The tribunal accepted that, around the transfer, Mr French told them words to the effect that the Respondent did not want the Beverley Hills staff because they were paid too much. It also found that the Respondent later set ambitious sales targets, altered its position on overtime and working hours, and dealt with the Claimants' concerns in ways that contributed to the breakdown of trust and confidence.

In Mr Makkar's case, the tribunal found that X made the alleged aftershave comment on 11 November 2021 and that it was race-related and unwanted. It also found that Ms Jethwa threatened him on 11 January 2022 by saying the company could terminate his contract without reason, and that his formal grievance about X, that threat, and Mr French's comments was not properly investigated. The tribunal held that Ms Jethwa was in substance the decision-maker for the disciplinary and grievance process, including the appeals, and that this was materially unfair, especially because part of the grievance concerned her. It also found that the final written warning over the training of Y was unjustified, including the finding that he had lied about the dates he worked, and that the later grievance appeal dismissal was one of the most serious breaches. Mr Makkar resigned on 6 June 2022 and his constructive unfair dismissal claim succeeded.

In Mr Bakiu's case, the tribunal held that the same transfer remark by Mr French, the later overtime and working-hours dispute, the treatment of Y as more favoured, the handling of the keys issue, the 3 May 2022 fact-finding meeting, and the way he was required to work alone on a locked-door basis all formed part of a cumulative breach of trust and confidence. It found that the Respondent's responses to Y's conduct and to Mr Bakiu's complaints were materially more lenient than the approach taken to the Claimants, and that the later disciplinary and fact-finding steps were heavy-handed and unreasonable. Mr Bakiu resigned on 9 May 2022 in response to the cumulative treatment, with the tribunal describing the later disciplinary handling as the final straw for him. His constructive unfair dismissal claim succeeded.

On the race harassment claim, the tribunal accepted that the remark about aftershave and India was made and that it amounted to harassment on the merits, but it held that the claim was brought outside the three-month time limit in s.123 EA 2010. It refused to extend time on a just and equitable basis, relying on the length of delay, the reason for the delay, and the fact that the Claimant did not promptly pursue the isolated incident as a standalone claim. That claim was therefore dismissed.

On the disability reasonable adjustments claim, the tribunal found that the Respondent had a PCP of requiring lone working on a locked-door basis where the shop was short-staffed, and that this placed Mr Bakiu, who it accepted was a Type 1 diabetic, at a substantial disadvantage. It accepted that the Respondent knew he was diabetic by the end of 2021, but held that it did not know and could not reasonably have been expected to know that the PCP created the relevant disadvantage until he explained the problem to Mr French on 16 April 2022. From that date the duty to make reasonable adjustments arose, and the Respondent failed to comply with it on the identified occasions. The tribunal held that the time limit issue for that claim, including whether it was just and equitable to extend time, would be determined at the remedy hearing listed for 19 and 20 October 2023.