Ms Roberts of counsel For the v Respondent — 2020

The claimant, Mr Jaskan Nijjar, was of Indian ethnic origin and brought a direct discrimination claim under s.13 Equality Act 2010. He complained about the decision to refer him for disciplinary action, the decision to demote him on 24 December 2019, an alleged remark at the appeal meeting, the refusal to review further CCTV, and the decision to reject his appeal. The tribunal set out the burden of proof under s.136 Equality Act 2010 and referred to King v Great Britain China Centre when addressing inference from the primary facts.

The tribunal accepted that Mr Nijjar had injured his shoulder on 20 November 2019 and later obtained fit notes and occupational health input. It also found that management’s review of CCTV and the occupational health referral were reasonable enquiries prompted by concerns that his injury might not be genuine, and that those steps had nothing to do with his ethnic origins. The tribunal held that the investigatory letter of 17 December 2019 fell below ACAS standards because it did not clearly identify that his driving standards were being investigated, but it did not accept that this showed the case against him had already been decided.

On the merits of the disciplinary case, the tribunal found that the footage from 27 November 2019 showed prolonged poor driving over about two hours, including taking both hands off the wheel, reading while driving, drinking twice while driving, holding a pen, and handling change. It found that some of these matters were not injury-related, that they undermined his control of the vehicle, and that the respondent had good reasons to treat the conduct as serious. The tribunal also found that the comparators relied upon were not in materially similar circumstances.

The tribunal found that the alleged remark at the appeal meeting was more likely than not a reference to false sickness claims costing the company money, but not a remark motivated by race. It further found that refusal to review more CCTV would not have altered the position, and that the appeal decision was consistent with the material before the manager. The claim was dismissed because the tribunal could not infer race discrimination and found no less favourable treatment at all.