Mr O O Okanlawon v London City Airport Limited — 2020

Mr O Okanlawon was employed as an engineering shift technician from 30 July 2018 until his probationary employment was terminated on 26 December 2018. He brought direct race discrimination complaints, arguing that the respondent delayed his full airside pass, required three competence exams, queried his Nigerian passport, refused annual leave, and paid him SSP rather than full sick pay. The tribunal applied the Igen v Wong burden-of-proof approach and held there were no facts from which it could infer less favourable treatment because of race or ethnic origin. It found the respondent had repeatedly assisted with the referencing process, extended the temporary pass, arranged training while he was off sick, and issued the full pass on 14 November 2018.

The tribunal also held that each discrimination allegation was out of time. The leave-refusal complaint was first raised at the 17 June 2019 preliminary hearing, around three months after the refusal on 7 December 2018; the airside-pass, exam, passport, and sick-pay complaints were raised later still. No basis was advanced for extending time under s.123 Equality Act 2010, and the tribunal said that even if there had been a continuing act it would have no jurisdiction to determine the claims.

The annual leave complaint failed because by 7 December 2018 the claimant had accrued only about 2.5 weeks' leave, but he asked for about five weeks from 11 December 2018 to 15 January 2019 with only four days' notice. The respondent was within its contractual and Working Time Regulations rights to refuse the request, particularly during probation and the Christmas/New Year period. The unlawful deductions claim failed because the respondent's handbook and offer documents provided for SSP only during probation, and the tribunal accepted the evidence that another probationary employee, Jason Adams, was treated the same way.

The holiday pay complaint was dismissed because the tribunal found the claimant had in fact been paid holiday pay in April 2019, but the calculation had been based on six months rather than five months' service, so the payment was an overpayment rather than a sum still owed. The breach of contract complaint also failed: the tribunal held the claimant had been paid one week's notice under the probationary terms, with an additional five days by payroll error, and that the disciplinary procedure did not apply because the dismissal was for failure to complete probation rather than for misconduct.