Mr D Heaven v Single Resource Limited and 2 others — 2023

Mr D Heaven worked for the 1st Respondent, an agency employer, at a Sports Direct warehouse from around 30 March 2021 until his dismissal for gross misconduct on 14 September 2022. In his first claim he alleged direct race discrimination, race-related harassment, and victimisation. In his second claim against the 2nd Respondent he alleged unfair dismissal and victimisation arising from a note that he should not be re-employed after his summary dismissal. The Tribunal recorded that the Claimant did not bring a whistleblowing claim and that the Respondents were employment agencies within the same group.

The Tribunal struck out the harassment allegations under Rule 37. The alleged comment 'Go back to Africa' could not be attributed to an identified person or respondent, because the Claimant did not know who made it and declined an opportunity to help identify the person. The other harassment allegations failed because the manager called Russell and Ms Plonska were employed by Frasers, which was not a respondent in the proceedings, and the Claimant did not plead a case that the named Respondents failed to protect him from harassment.

The direct race discrimination allegations were also struck out. On the promotion allegation, the Tribunal accepted that the messages the Claimant sent to Ms Plonska were sexual in nature and found that the suggestion she raised harassment allegations simply to stop his promotion because he was black was bound to fail. On the task-allocation allegation, the Claimant gave inconsistent explanations about who assigned the unloading work and did not provide comparator details despite repeated orders. On the dismissal allegation, the Tribunal accepted the Respondent's account that the dismissal followed the Claimant's sexual messages to Ms Plonska and held that the claim that it was racially motivated had no reasonable prospect of success.

The first victimisation allegation was struck out because the Claimant identified protected acts, namely a February 2022 racism complaint and a grievance, but did not properly plead the detriments or explain which protected act caused them despite repeated opportunities to do so. In the second claim, the unfair dismissal complaint failed because the Claimant accepted that he did not have two years' service and the claim was also out of time. The victimisation complaint in the second claim was out of time as well and no just and equitable extension was granted. The Tribunal said that, even if that claim had been in time, it would still have failed because the refusal to re-employ him was said to enforce equal opportunities and anti-harassment policies. No monetary award was made.