Member J McCullagh Tribunal Member J McCaig Mr D Hawksworth v Greencore Food To Go Limited — 2021

The claimant had originally advanced race and disability harassment claims, unfair dismissal, victimisation, and whistleblowing, but the disability allegation was withdrawn before the final hearing. The tribunal found that Patrick Murray repeatedly used race-related abuse towards the claimant, including calling him 'English prick'/'English bastard' and saying he would be on a bus back to England, and held that those comments were unwanted conduct related to the claimant's nationality and amounted to harassment under s.26 Equality Act 2010. Other allegations, including the HR email about prison and the 2 December 2019 court-case question, were not found to be race harassment.

The tribunal dismissed victimisation and the whistleblowing/protected disclosure claims. It accepted that bringing Equality Act proceedings was a protected act, but found no evidence that Mark Campbell knew the claimant had issued such a claim or dismissed him because of it. It also held that the claimant's 1 October 2019 email to DVSA was a general question about cracked windscreens, not a qualifying disclosure under s.43B ERA 1996, so there was no protected disclosure and no automatic unfair dismissal under s.103A.

On unfair dismissal, the respondent said the dismissal was for conduct because the claimant had worked for PS Ridgeway while off sick. Applying the Burchell approach and s.98(4) ERA 1996, the tribunal held that the investigation by Mr Pentland and the dismissal decision by Mr Campbell were not reasonable because they did not properly explore why the claimant had taken other work, did not investigate his complaints about Mr Murray, and did not consider further occupational health input or alternative deployment. The tribunal rejected Polkey reduction and contributory fault reduction, and awarded £12,000 for injury to feelings, a £906 basic award, and £400 for loss of statutory rights, making a total award of £13,306.