In Person/Mr L Ogilvy, Consultant For the v Respondent — 2017

On the direct race discrimination claim, the tribunal accepted that the claimant was black and the only black trainee on the Poole spa course, but found that the extra "talking trainer treatments" and hands-on support were given to Ms Robins because she was less experienced and needed more assistance. It rejected the claimant's case that such support was reserved for white colleagues. The tribunal also found that the decision to send the claimant and Ms Gonzalez back to Oxford Street to continue training was not less favourable treatment because the relevant comparators, including Ms Lee and Ms Robins, were not in materially different circumstances, and any differences were explained by training needs and performance.

On victimisation, the tribunal held that the claimant's email of 25 August 2016 was not a protected act because it did not expressly or sufficiently clearly allege race discrimination under the Equality Act 2010. It accepted that the text message of 14 August 2016 and the telephone remarks of 29 August 2016 were protected acts, but found that those complaints did not influence the dismissal decision. The tribunal found that the later complaint to Mr Constantine was not before the decision-makers and postdated the decision.

The tribunal found that the claimant was dismissed because of her conduct towards colleagues and the view that her behaviour was not conducive to the spa environment, not because of her protected acts or race. It noted that the dismissal procedure was cursory and that the claimant had no right of appeal, but that procedural fairness was not one of the issues before it. It held that the burden of proof did not shift, and in any event the respondent had a clear non-discriminatory explanation. Both claims were therefore dismissed and no award was made.