MR SALAM v Metroline Travel Limited — 2022

The claimant, a bus driver, sought part-time working for childcare reasons and later said he would not attend work unless part-time hours or unpaid leave were agreed. The respondent placed his flexible working request in the amber category and there were no available part-time vacancies before his dismissal. The tribunal found the respondent had considered part-time vacancies and unpaid leave, but rejected unpaid leave for operational reasons.

On unfair dismissal, the tribunal found the sole reason for dismissal was conduct, namely unauthorised absence between 15 and 20 July 2020. It accepted that there was no separate investigation stage, but found this fell within the band of reasonable responses because the claimant had made his position clear, unauthorised absence was identified in the disciplinary policy as potential gross misconduct, and the respondent's policy allowed the investigation stage to be curtailed in such cases. The tribunal also found it was reasonable to proceed with the disciplinary hearing in the claimant's absence and not to take further action on a late appeal where the claimant did not respond to the respondent's request for an explanation.

On race discrimination, the tribunal found the claim was properly understood as based on Moroccan ethnic origin. It found the flexible working request was categorised by Ms Yesufu, who was unaware of the claimant's race or ethnic origin, and that the identified comparators had additional disability, illness or safeguarding factors which distinguished their requests. The tribunal concluded that the alleged treatment, including the amber categorisation, failure to progress the flexible working appeal, refusal of unpaid leave, and dismissal, was not because of race or ethnic origin. The harassment claim failed because the same alleged treatment was not related to race.