Claimant v Brent Community Transport

The tribunal found that the claimant did not make the protected disclosures he alleged. His discussions with Moses in autumn 2021 about JPCHR invoicing did not amount to disclosures that a criminal offence had been committed or that a person had failed to comply with a legal obligation. The claimant did not state or imply that JPCHR was dishonestly charging an improper fee or that the respondent would be breaching any legal obligation by paying the invoices.

Because the claimant did not make protected disclosures, the alleged detriments (suspension in January 2022, commencement of disciplinary proceedings, dismissal on 15 August 2022, refusal to allow him to resume work after reinstatement, commencement of new disciplinary proceedings in November 2022, and delay in progression) could not have been on the ground of protected disclosures. All detriment complaints therefore fail.

The tribunal found no facts from which it could conclude that the claimant's race (ethnically Asian, born in Iran, not Afro-Caribbean) played any part in any of the treatment complained of: suspension, commencement of disciplinary proceedings in January 2022, dismissal on 15 August 2022, refusal to allow return to work, commencement of new disciplinary proceedings in November 2022, delay in progression, dismissal in February 2023, or non-reinstatement on appeal. The burden of proof did not shift to the respondent on any allegation.

The tribunal considered allegations of direct race discrimination in relation to all aspects of the claimant's treatment from January 2022 to dismissal and appeal in 2023. Taking the evidence as a whole, there were no facts from which the tribunal could conclude that a hypothetical comparator of a different race would have been treated differently. The decision makers genuinely believed the evidence justified their decisions, and race played no part consciously or unconsciously.

The tribunal accepted the respondent's own calculation that there was a shortfall in payment in lieu of accrued but untaken holiday on termination. The respondent admitted an underpayment of £58.02. The tribunal agreed with this calculation and found that the shortfall was not larger than the admitted sum.

The tribunal found the dismissal was for a potentially fair reason (conduct: alleged dishonesty in making unauthorised payments to himself). However, the tribunal concluded the employer did not have reasonable grounds for the belief in guilt and did not carry out a reasonable investigation. Moses had signed off on the claimant's payments repeatedly. There were no reasonable grounds to conclude the claimant had paid himself unauthorised amounts. The investigation failed to properly analyse which payments were authorised and which were not, and failed to take into account audited accounts and documentary evidence provided by the claimant. The process was outside the band of reasonable responses. The unfairness was not cured on appeal. This was an 'ordinary' unfair dismissal, not automatically unfair under section 103A.

The respondent failed to prove that the claimant had fundamentally breached his contract of employment such that he lost his entitlement to notice or payment in lieu of notice. The respondent did not prove the claimant acted dishonestly, nor that his actions were so negligent as to constitute a fundamental breach. The claimant was therefore entitled to his contractual notice entitlement.