Mr A Findlay v Rendall and Rittner Ltd Heard via CVP (London Central) — 2021

Mr A Findlay was employed by Rendall and Rittner Ltd as a Day Concierge at Bermondsey Works from 4 December 2019. The tribunal found that he missed an overtime shift on 8 May 2020 because he forgot he had signed up for it, and accepted that he apologised afterwards. It also found that any later restriction on overtime shifts was more likely to reflect Steve Fryer’s view of the claimant’s reliability than the claimant’s race.

On the race discrimination claim, the tribunal rejected the claimant’s comparison with Caitlin Colman. It found material differences between the situations: Colman’s error was an administrative oversight in offering overtime shifts, whereas the claimant failed to attend a shift he had signed up for, causing inconvenience and the need to find last-minute cover. The tribunal also found that Colman was not a valid comparator and that there were no facts from which it could infer that the claimant’s dismissal was racially motivated. It noted that the other Concierges at the property were also Black African and that none of them failed probation.

The tribunal accepted that the claimant disputed several of the performance concerns raised at the probation review, but it found that Steve Fryer had valid non-discriminatory reasons for ending employment. It recorded that this was not an unfair dismissal claim, and that even if some of the underlying information was disputed, the question was whether race was the reason for dismissal. The tribunal concluded that it was not.

The breach of contract claim also failed. The contract allowed, but did not require, probation reviews and probation extension. The tribunal found no express term requiring the respondent to hold reviews during probation or to extend probation in borderline cases. It also rejected the argument that the respondent lost the right to fail probation because the review took place a few days after the six-month anniversary. The tribunal referred to Johnson v Unisys Ltd and said the claimant had no stand-alone right to be treated fairly in these circumstances. Both claims were dismissed and no remedy was awarded.