Mr R Soares v Office of Gas and Electricity Markets (Ofgem) — 2022

The Claimant, a Brazilian national, worked for Ofgem as a Sharepoint Developer from 25 November 2019 and remained in his probationary period, which was extended in March 2020. The tribunal accepted that Mr Kuenzel had genuine concerns about the Claimant's performance, behaviour, quality of work, and ability to work collaboratively, and that these concerns were recorded from the mid-probation review onwards. It found that allocating him service desk tickets, extending probation, and ultimately dismissing him after the rescheduled probation review on 3 August 2020 were all based on those performance concerns rather than race.

On the direct race/nationality discrimination complaints, the tribunal found no facts from which it could infer that the Claimant was treated less favourably because of his Latin American ethnicity. It rejected the contention that he had been overloaded with work when compared with colleagues, finding instead that the April 2020 meeting discussion about cooking and gardening was a discussion about activities outside work, not evidence of overwork. It also rejected the claims that he had been demoted, that his probation was extended for a discriminatory reason, that he was required to use annual leave on 5 and 8 June 2020 because of race, or that the refusal to extend time to appeal the grievance outcome was racially motivated.

On harassment, the tribunal held that Mr Kuenzel's remark 'let's play it by ear' on 14 February 2020 was a one-off pun made in the context of the Claimant's ear infection and was not unwanted conduct or conduct that created a hostile environment. Other harassment allegations failed because the tribunal either could not make clear factual findings about the incident, found the allegation factually misconceived, or concluded that the conduct was not related to race. It also held that the exclusion of the Claimant from the 26 June 2020 union meeting was a decision taken in a union context, not conduct for which the Respondent was responsible. All complaints were dismissed and no award was made.