Mr F Gaynes v Third Space Holdings Ltd — 2019

Mr F Gaynes, a black British personal trainer of Caribbean descent aged 64, complained of race and age harassment, direct discrimination and indirect discrimination by Third Space Holdings Ltd. The case arose out of the Respondents' uniform, timekeeping and presentation rules at the Soho club, including the 15-minute rule for classes and the Music Brand Standards Policy requiring music to have been produced or released within the previous 18 months.

The tribunal found that Mr Gaynes had repeatedly breached the Respondents' uniform and related presentation rules, and that management had raised those issues with him on a number of occasions in July, October 2019 and early 2020. It accepted some of the factual complaints he made, including that Mr Darby attended the 2 October 2019 meeting, that Mr Pate used the phrase 'fed and watered', that Mr Woodall told him the matter would go to a disciplinary hearing, and that he was invited to a disciplinary meeting in February 2020, but it rejected other allegations or found them to be ordinary managerial steps.

On harassment, the tribunal held that most of the incidents relied on were not capable of amounting to harassment within s26 Equality Act 2010. Where conduct could in principle have reached that threshold, including the 'fed and watered' remark, the statement that the matter would proceed to discipline, and the February 2020 invitation, the tribunal found no unlawful link to race or age and no reasonable basis for treating the conduct as harassing. It also rejected the allegations concerning the uniform enforcement and the various meetings.

On direct discrimination, the tribunal held that the claimant had not shown any detriment or less favourable treatment because of race or age. It rejected reliance on Ms Alice Liveing as a comparator because she was self-employed and not in the same employment position, and it found Mr Lambert's treatment consistent with the Respondents' case because he responded when spoken to about uniform. The tribunal also found no wider evidence that black or older employees were being treated disadvantageously.

On indirect discrimination, the tribunal identified the Music Brand Standards Policy as the relevant PCP but held that Mr Gaynes had not shown that it put people of his age or race at a particular disadvantage, or that it put him at such a disadvantage. It added that, even if that hurdle had been cleared, the policy pursued a legitimate aim of enhancing members' experience through current music technology and was a proportionate means of achieving that aim. Because it found no unlawful conduct amounting to conduct extending over a period, the tribunal held that all complaints apart from allegation 4.13 and the indirect discrimination complaint were also out of time. The proceedings were dismissed and no remedy was awarded.