Ms C D’Souza, Counsel For v Respondent — 2021

The claimant, Adebola Ibitoye, was a black Nigerian Chartered Surveyor employed by Network Rail from 2007 to 30 April 2018. The tribunal considered claims of direct race discrimination, direct disability discrimination, discrimination arising from disability, failure to make reasonable adjustments, race and disability harassment, victimisation, constructive dismissal and holiday pay. It accepted that he had bronchiectasis and stress/anxiety disabilities at the material times, and that the respondents knew of those conditions and of his 2012 race proceedings and February 2017 complaints.

The tribunal found significant shortcomings in the respondent's management training and procedures, including the absence of recorded equality and diversity training for key managers for much of the relevant period. It also accepted that the recruitment process for the Development Manager role was not followed as the policy contemplated. However, it found that Nigel Carr was appointed because he had the relevant development experience and knowledge needed for the team, while the claimant did not. The tribunal rejected the allegation that Mr Carr made the remark "It’s no good complaining, I’m here for a reason" or that he imposed a requirement that the claimant sit within his sight and report every morning.

On the race allegations, the tribunal found that the Property Diversity and Inclusion Day incident was not as alleged. It accepted that there had been a brief discussion about accents in the team, including the claimant's, but found that it was not mocking, was not directed only at the claimant, and did not amount to harassment applying the approach in Dhaliwal and Pemberton. It also rejected the allegations that the claimant was singled out in relation to promotions, sick notes, performance reviews, project allocation, salary or bonus, or later contact, and it found that the victimisation claim failed because the treatment was not because of protected acts.

On the disability claims, the tribunal accepted that the claimant was allowed to work from home when he said he needed to and was permitted to attend medical appointments. It found, however, that he was not required to attend physiotherapy three times a week in 2017 as he had suggested to Occupational Health, and the records showed only a small number of physiotherapy appointments in the relevant period. The tribunal therefore rejected the claims that work appointments were scheduled to prevent physiotherapy attendance, that the respondent failed to make reasonable adjustments, and that the proposed review of working hours in September 2017 amounted to unlawful treatment arising from disability. It also held that the response to the claimant's stress complaints was a proportionate means of managing the working relationship and the grievance process.

The tribunal further rejected the allegations about grievance handling, the July 2017 meeting, the RICS invoice, the salary and bonus comparison, and the letters sent in April 2018. It found that Mr Carr and later HR were dealing with a workplace relationship and absence-management situation, not acting because of race, disability or protected acts. Applying the constructive dismissal test, the tribunal held that the respondents had not destroyed trust and confidence and that the 25 April 2018 letter was not a fundamental breach or last straw. The holiday pay claim was not pursued and was withdrawn. Because all substantive claims failed, the remedy hearing was vacated.