In person. For the v Respondent — 2021

The claimant, an HGV driver, was dismissed after a 7 May 2020 delivery incident at Woodham Ferrers in which the tribunal found he breached the respondent’s Health & Safety Procedures and Operating Procedures. The tribunal recorded three allegations: failing to lower the tail lift when placing empty trollies on it, jumping off the tail lift while it was upright, and moving the vehicle with the tail lift upright and two full trollies on it, causing a trolley of milk to fall into a busy road and nearly strike a third-party car.

The claimant pursued only a direct race discrimination claim under s.13 Equality Act 2010, relying on race as the protected characteristic. The tribunal also noted that he did not have the requisite continuity of employment to pursue unfair dismissal. Applying the burden of proof framework in s.136 and referring to Shamoon v Chief Constable of the Royal Ulster Constabulary, the tribunal asked whether there was evidence linking the dismissal to race.

The tribunal rejected the claimant’s account that he was under pressure because of a queue of customers and panic buying, finding that the CCTV showed no queue and that the incident occurred during the first lockdown rather than before it. It also rejected his evidence that he had not been trained on tail-lift operation, because the documents showed he had recently attended and signed for that training. The tribunal found parts of his evidence contradictory and unreliable, and accepted the evidence of Elaine Hornigold as clear and credible.

The claimant relied on a number of alleged comparators, but the tribunal found no cogent evidence that they were reliable comparators or that they showed race-based treatment. In most instances the tribunal accepted the respondent’s explanation that the incidents were materially different, often involving road traffic matters or less serious conduct. It concluded that the dismissal was because of the proven misconduct on 7 May 2020 and not because of race, so the claim was dismissed.