in person (by CVP) For the v Respondent — 2022

The claimant, Mr Y Hassan El-Nahla, worked for Top Discount Electrical Stores Ltd from 14 May 2018. The hearing took place in Watford on 16 and 17 August 2022 before Employment Judge George with lay members Mr D Sagar and Ms A Brosnan. The respondent relied on witness statements from Philip Kurland and Chris Kurland, but neither attended to give oral evidence, so the tribunal assessed those statements against the claimant's evidence and the contemporaneous documents.

By majority, the tribunal accepted the claimant's account of two comments made by Phil Kurland in June and July 2018. It found that a remark on 18 June 2018 about Mecca and a remark on 19 July 2018 asking whether the claimant was kneeling towards Mecca were unwanted, related to religion, and intended to harass. The alternative race harassment complaint was dismissed, and the tribunal also rejected the direct race and religion discrimination claims arising from the other alleged conduct, including allegations about being called crazy, ignored on greeting, delayed commission, the timing of the contract, the informal hours request, the disciplinary process, the hearing location, and the dismissal.

The harassment complaints about the June and July 2018 comments were out of time on their face, but the tribunal extended time on a just and equitable basis. It treated the two incidents as a continuing course of conduct, found the delay to 13 December 2018 was under two months, and took into account that the claimant was new in post, had sought advice, and had shown a plausible explanation for the delay. It found no proved prejudice to the respondent.

On whistleblowing, the tribunal found that the claimant made protected disclosures on 21 September 2018 about a colleague driving after drinking beer and threatening him, and on 27/28 September 2018 about being threatened with a Stanley knife. It held that three detriments succeeded: being told to take annual leave while the complaint was investigated, the failure to take action to keep him safe at work, and the failure to communicate the outcome of the investigation. Those detriments were treated as conduct extending from 27 September to 9 November 2018 and were therefore in time.

The automatic unfair dismissal claim under section 103A ERA 1996 failed. The tribunal found that the dismissal on 10 October 2018 was for misconduct and persistent lateness, supported by contemporaneous lateness records and text messages, and that the disciplinary process had begun before the protected disclosures. A remedy hearing was listed for 4 November 2022, so this decision recorded liability only and no monetary award.