The claimant was initially engaged by the respondent as an agency worker before being directly employed by the respondent. The employment was from October 2019 until the claimant’s resignation in January 2020.   

The issues leading to the case centred upon action taken in relation to the claimant’s personal hygiene. This first occurred when he was an agency worker with a complaint made that it was difficult to work alongside the claimant. A meeting was convened between the agency and the claimant and the claimant says he took those matters on board. The issue arose again when he was in direct employment with the respondent. Again, there was a meeting within the respondent outlining that there were showers available and he could have extra t-shirts (especially as he was cycling to work).  Following this there was an incident between some employees of the respondent in which the claimant was sprayed with aftershave. The claimant alleged that this was done because he was black. Both the employee who sprayed the aftershave and another onlooker denied it was because of the claimant’s race. The Tribunal stated that when faced with conflicting opinions it then fell to the credibility of the witnesses.  It was found that one of the other employees was regarded as sincere and genuine and his evidence was accepted.  

A training meeting took place on 30th December 2019 in which the facilitator of the meeting was overcome by the body odour. A further meeting was held with the claimant where he was told that if it continued then formal action may need to be taken. It should also be noted that he was asked if there was any medical issue or if he needed support from Occupational Health but the answer was no to both of those questions.  The claimant also alleged that there were monkey like noises made towards him but he was unable to detail when they had actually taken place. All of the respondent witnesses stated they had never heard monkey like noises from the employee in question and the Tribunal found that there was insufficient evidence from the claimant to discharge the burden. 

The claimant resigned in January 2020 and there was again conflicting evidence. The claimant stated it was due to racist behaviour in the workplace whereas Ms Moore for the respondent stated she was told that he was leaving to take up a course. Ms Moore’s account was accepted by the Tribunal on the basis that she was consistent, she had kept a contemporaneous note of the call and an email was sent following the phone call to record the resignation with no reference being made to racism. 

The claimant brought two substantive claims. The first was in relation to race discrimination and the Tribunal dismissed it on the basis that the claimant was unable to produce persuasive evidence of less favourable treatment.  It was found that a comparator white employee with similar body odour issues would have been met with the same treatment (with the meetings and advice). The second claim was for constructive dismissal but the claimant did not have the requisite service and in any event the Tribunal found that there was no repudiatory breach of the contract. As a result, the case was dismissed. 

Practical Lessons

This case demonstrates the importance of keeping a note when engaging with employees on workplace matters. This was precisely stated by the Tribunal when it came to conflicting accounts relating to the resignation. The fact that a contemporaneous note was taken provided more weight to the argument raised by the respondent. Therefore, the key take away from this case is to ensure that notes are kept and retained.  

NI Tribunal decisions are available on the OITFET website: 
http://www.employmenttribunalsni.co.uk/