Claimant v London United Busways Limited

The tribunal found that Mr Arora was an appropriate comparator. Both were suspended following the incident, so there was no difference in treatment on suspension. Mr Harwood-Allen was suspended longer (19-28 July) than Mr Arora (19-20 July), but there were no facts from which race discrimination could be inferred. The delay was due to lack of available managers to conduct the fact-finding interview, not race.

Regarding being refused representation at the fact-finding meeting: Mr Arora had been allowed a Trade Union representative, while Mr Harwood-Allen was not. However, the tribunal found no facts from which it could infer that this difference in treatment was because of race. The difference in treatment plus difference in race was insufficient to reverse the burden of proof.

Mr Harwood-Allen alleged he was not allocated Relief Manager roles from December 2021. The tribunal found that Mr Neville was not an appropriate comparator as he was appointed to different (interim/permanent manager) roles. For the period Mr Harwood-Allen was suspended or off sick (from 19 July 2022), a hypothetical comparator would also not have been assigned. For the earlier period, there was insufficient evidence about when Relief Managers were used or the sexual orientation of other Relief Managers to establish facts from which discrimination could be inferred.

The tribunal found (by majority) that the respondent applied a PCP of issuing a stage 1 warning if an employee's sickness absence exceeded four instances over a rolling twelve-month period. This placed Mr Harwood-Allen at a substantial disadvantage. The reasonable adjustment would have been to disregard absences related to his ulcerative colitis (30 Nov-4 Dec 2021 and 25-26 May 2022), which would have brought him below the threshold. The respondent failed to take this reasonable step.

In relation to the PCP of recording sickness absence and holding a meeting if absences exceeded four instances in twelve months, the tribunal found it would not have been reasonable to adjust the threshold in advance or exclude Mr Harwood-Allen from this part of the policy. The disadvantage of attending a meeting was relatively minor, and LUB had a legitimate interest in monitoring sickness absence to support employees.