In person v Respondent — 2022

The tribunal dismissed the direct race discrimination, race-related harassment, and victimisation complaints. It found that the claimant's grievance of 13 October 2017, his grievance of 10 July 2019, and the trade union statement of 14 January 2020 were protected acts for section 27 Equality Act purposes, and it accepted that some of the underlying events occurred. However, it found no reliable evidence that the later treatment complained of was because of race or because of those protected acts. It also held that, if any Equality Act complaints were out of time, it was just and equitable to extend time, but each individual discrimination and victimisation allegation still failed on the merits.

The unfair dismissal claim succeeded. The claimant was dismissed on 25 November 2019 for alleged leaving of site without permission on 13 and 14 May 2019. The tribunal held that the respondent had not carried out a reasonable investigation because it failed to investigate the claimant's and his union representative's evidence that leaving through the turnstiles to the car park during breaks was common practice. It also found genuine confusion about what counted as leaving the site, given the different policy wording used by the respondent and BMW.

The tribunal further found procedural unfairness because Mr Elmore, who dismissed the claimant on 25 November 2019, had previously been involved in the earlier disciplinary appeal concerning the June 2018 absence allegation. That prior involvement was not disclosed at the start of the later disciplinary process. The tribunal held that this compromised the fairness of the process. It also found the dismissal substantively unfair because briefly going to a car in the company car park during a break did not amount to gross misconduct on the evidence before it.

The unauthorised deduction from wages claim was not finally determined at liability stage. The tribunal said there was insufficient evidence about the alleged pay shortfalls between September and November 2019 and that further evidence would be needed at the remedy hearing. The case was therefore listed for a further hearing to determine remedy for unfair dismissal and to consider the wages claim.