Mr K Clarke v GXO Logistics Drinks Limited (formerly XPO Logistics Drinks Limited) — 2023

The claimant worked as a Fleet Operative-Drayman at the Preston depot from 2013 and the tribunal found a long history of other employees refusing to work with him, with management allowing or organising arrangements to keep him away from those colleagues. It found he was removed from driving for an extended period after complaints in 2015, returned to driving in 2018, and then again taken off driving after the August 2019 yard incident. The tribunal also found that he raised grievances about discrimination and unfair treatment in July and October 2019, and that the later mobile-phone video incident led to suspension, a disciplinary process and dismissal on 11 March 2020.

On the dismissal claims, the tribunal rejected the respondent's explanation that the claimant was dismissed simply for using a mobile phone while driving. It found the named comparators were not sufficiently similar, but accepted that the treatment of white drivers involved in earlier incidents, the lack of clear documentary support for the alleged policy change, the late withdrawal of the August 2019 disciplinary process, and the wider background of hostility provided facts from which race discrimination could be inferred. The respondent did not satisfy the tribunal that the dismissal and appeal were in no sense whatsoever because of race, so the direct race discrimination claim succeeded. The tribunal then held the dismissal was necessarily unfair under the Employment Rights Act 1996, because race is not a fair reason for dismissal.

On the remaining allegations, the tribunal upheld victimisation where Mr Meiring became less chatty with the claimant after the 2 October 2019 grievance, but rejected the allegation that Mr Carroll stopped greeting him because the conduct was not proved. It dismissed victimisation in relation to the 'playing the race card' remark, the December 2019 remark about facing discipline because of the claimant, and the resignation incident, but upheld harassment on those three allegations as race-related conduct capable of creating a hostile environment. The tribunal found the allegations formed part of a course of conduct ending with the dismissal, so the pre-dismissal harassment and victimisation complaints were within time.

This was a liability judgment only. The tribunal found a 10% Polkey deduction on the compensatory award and a 50% reduction for contributory fault to both the basic award and the compensatory award, but it did not assess any monetary figures in this judgment and listed the case for a separate remedy hearing.