Member P McColl Tribunal Member W Muir Mr S Belvue v Represented by Mr G Singh - Solicitor Retail & Asset Solutions Limited — 2019

The claimant, a Black Afro-Caribbean casual worker originally from Haiti, worked for the respondent in stocktaking roles and later drove minibuses for stock takes. The reasons section records that an indirect discrimination claim had earlier been withdrawn and dismissed by judgment dated 5 September 2019. The final judgment then determined direct race discrimination, race harassment, and unlawful deductions from wages.

On the race discrimination claim, the tribunal accepted that the claimant was removed from driving duties on 6 December 2018, but found that his engagement with the respondent was not ended entirely because he remained able to work as a counter and could apply for shifts through the online system. Applying the approach in Shamoon, the tribunal held that the claimant's race played no part in the decision to remove driving duties. It accepted the respondent's evidence that the decision was taken because another driver had been identified for the area, together with concerns about the claimant's conduct and the fact that December was a quiet period for the business. The tribunal also found that, even if a comparator analysis were required, a hypothetical comparator in the claimant's position would have been treated the same way.

The harassment claim also failed. The allegation was that GM had told the claimant that he was 'always smelling of cannabis' when explaining that he would no longer be offered driving duties. The tribunal preferred GM's evidence, found that the remark was not made, and recorded that GM had given a full explanation for the decision that did not rely on any belief that the claimant smelled of cannabis. Because the conduct alleged was not proved, the harassment claim was dismissed.

For the wages claim, the tribunal preferred the respondent's records and calculations to the claimant's oral evidence, which it found inconsistent and unsupported by documentary proof. It found that the claimant had been underpaid for 59 minutes worked in November 2018. At the contractual hourly rate of £7.90, that underpayment came to £7.77, and the tribunal held that this was an unauthorised deduction from wages and ordered payment of that sum.