Mr K Fernando v SBH Hospitality Limited — 2022

Mr Fernando was employed as General Manager of the Epping Forest Hotel from 21 March 2020 until 30 June 2021. The tribunal treated the discrimination and protected disclosure detriment complaints as in time because they formed a continuing series of events. It also recorded that earlier claims described in the ET1 as discrimination because of marital status and a statutory redundancy payment had been dismissed upon withdrawal, and that a sex discrimination claim on the file was dismissed upon withdrawal because no such claim had in fact been made.

The tribunal accepted that some of the factual matters complained of happened, including some cleaning and mixed duties, limits on staffing levels, audit visits, and the 20 April 2021 call. However, it found that the respondent's operational explanation was more credible than the claimant's account, that five of the ten pleaded race allegations did not happen, and that the remaining alleged acts were not shown to be because of race. The harassment claim failed for the same reason, because the conduct found proved was not shown to be related to race, so the tribunal did not need to decide whether it had the required effect under section 26.

On whistleblowing, the tribunal found that some emails were qualifying disclosures, including the 25 August 2020 and 20 August 2020 health and safety emails and the 10 June 2021 staff room ceiling email, but other alleged disclosures failed because they were vague, not made in the public interest, or not based on a reasonable belief. None of the pleaded detriments was found to have been imposed on the ground of protected disclosures. The tribunal also found that Mr Fernando had not been dismissed: he ended his employment by refusing the TUPE transfer on 30 June 2021, so the automatic unfair dismissal and notice pay claims failed, and the telephone expense claim failed for lack of evidence. No remedy was required because all claims were dismissed.