Mr R Ewujowoh v Jennings Racing Ltd and 2 others — 2018

Mr Ewujowoh was recruited as a duty manager by Jennings Racing Ltd after an initial withdrawal of the offer following a DBS check, but Mr Jowett reinstated the offer after meeting him on 4 December 2017. The tribunal found that the claimant failed the duty manager test on 5 January 2018 with a score of 67%, and it said that, even if the dismissal complaints had not been withdrawn, the employment would have ended because he failed the test twice. The breach of contract claim and the sex discrimination claim were both withdrawn during the hearing and dismissed forthwith upon withdrawal.

The remaining direct race discrimination allegations concerned events on 6, 8, 12 and 23 January 2018, including the dispute with Mr Crooks at Commercial Road, the email from Mr Broadbridge, the suspension, and the investigation by Mr Rogers. Applying the burden of proof approach referred to in Madarassy and Igen, the tribunal found that the claimant had not proved facts from which race discrimination could properly be inferred. It accepted the managers' evidence that the difficulties arose from the claimant's training performance and his interactions with staff, not from race.

On the Commercial Road incident, the tribunal accepted that Mr Crooks told the claimant to leave the shop after a disagreement, but it did not accept that he had threatened violence on racial grounds. It found that the 12 January message to Marcie Fleming was not a protected act for victimisation purposes because it did not mention race discrimination, and so the alleged failure to investigate that complaint was not made out. The tribunal also rejected the complaint that Mr Rogers conducted a biased investigation interview on 25 January 2018, finding the meeting was structured and was followed promptly by a fuller investigation by Mr Jowett.

The tribunal rejected the victimisation complaint based on the 24 January grievance and the ensuing suspension. It held that the 24 January complaint could in principle amount to a protected act because it was headed 'Bullying and Race Discrimination', but the evidence did not show that any detriment was imposed because of a protected act. The remaining victimisation complaint at 6.11.1 was dismissed as not well founded, and the other victimisation allegations had already been withdrawn and dismissed forthwith upon withdrawal.