Miss S Carvalho v Swissport GB Ltd and Birmingham Airport Ltd: 1305877/2019

EMPLOYMENT TRIBUNALS

Case No 1305877/2019

Venue Birmingham

Hearing 27 & 30 November 2020

Between

Miss S CarvalhoClaimant

Swissport GB Ltd and Birmingham Airport LtdRespondent

Before

Employment Judge Gaskell

Date 30 November 2020

JUDGMENT

[1]The claimant’s application for permission to amend her first claim (presented on 7 July 2019) to add the second respondent as a party to that claim is refused.

[2]The claimant’s second claim (presented on 16 March 2020) insofar as it relates to the second respondent is dismissed for want of jurisdiction.

[3]For the avoidance of doubt, the claimant’s claims against the first respondent in both the first and second claims are unaffected by this judgement. Employment Judge Gaskell 30 November 2020 Note Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. Case Number 1305877/2019 Type V 1 EMPLOYMENT TRIBUNALS BETWEEN Claimant AND Respondent Miss S Carvalho(1) Swissport GB Limited

(2) Birmingham Airport Limited

[1]The claimant’s application for permission to amend her first claim (presented on 7 July 2019) to add the second respondent as a party to that claim is refused.

[2]The claimant’s second claim (presented on 16 March 2020) insofar as it relates to the second respondent is dismissed for want of jurisdiction.

[3]For the avoidance of doubt, the claimant’s claims against the first respondent in both the first and second claims are unaffected by this judgement.

REASONS

[1]The judgement set out above was promulgated on 30 November 2020 following a hearing over two days on 27 & 30 November 2020. Reasons for the decision were given orally on 30 November 2020. An email dated 14 December 2020 the claimant requested written reasons which I now provide. Case Number 1305877/2019 Type V 2

[2]On 7 July 2019, the claimant presented a claim form which named a single respondent (the 1st respondent). It was a claim for unpaid wages and race discrimination. At the time of presentation, the claimant was an employee of the respondent.

[3]The circumstances of the claim are that the claimant was employed by the respondent as a Flight Dispatcher. The claimant worked in a secure part of airport; and, in order to perform her duties, she required a security pass issued by the operator of the airport - Birmingham Airport Limited (the 2nd respondent). In February 2019, the 2nd respondent suspended the claimant’s security pass and commenced an investigation into a possible security breach. Whilst her security pass was suspended, the claimant was unable to enter the secure part of the airport and accordingly could not undertake her normal duties. The respondent, acting as it claims in accordance with the claimant’s contract of employment, effectively suspended the claimant from work without pay and commenced its own disciplinary investigation. The respondent’s investigation led to there being no disciplinary action against the claimant – but, because her security clearance remained suspended, the claimant was unable to return to work as normal and she remained absent and unpaid.

[4]The 2nd respondent reported matters to the police; there was a criminal investigation; but ultimately, following consideration of the evidence by the Crown Prosecution Service there was no prosecution. Nevertheless, on 2 August 2019, the 2nd respondent decided to permanently remove the claimant’s security pass - a decision which was only communicated to the claimant on 3 October 2019. In the meantime, the claimant’s position at work remained unchanged - she was absent and unpaid until she resigned on 10 December 2019.

[5]On 22 November 2019, Employment Judge Mark Butler conducted a Preliminary Hearing at which the issues in the case were defined; Case Management Orders were made; and the Final Hearing was listed for six days to commence on 23 November 2020. During the course of that Hearing, the claimant advised Judge Butler that she intended to make an application to amend the claim to include the airport authority as a second respondent. Judge Butler indicated that, if this was the claimant’s intention, she should proceed quickly with her application so as to avoid jeopardising the trial date which he had fixed.

[6]In the event it was not until 16 March 2020 that the claimant made her application to amend. The terms of the amendment sought were as follows: -(a) To add the 2nd respondent to the claim - but the application contained no specific particulars of the claims to be pursued against the 2nd respondent.

(b) To add claims against the 1st respondent for unfair (constructive) dismissal and for victimisation. Case Number 1305877/2019 Type V 3

[7]On the same date, the claimant presented a second claim form. This named both respondents. The claims against the 1st respondent are for unpaid wages; race discrimination; religious discrimination; unfair dismissal; and victimisation. The claims against the 2nd respondent are for race discrimination; harassment; and victimisation. For reasons which are unclear to me, the tribunal administration did not issue a second Claim Number in respect of the new claim. Both claims have proceeded on the same Claim Number. I will refer to them simply as Claim 1 (7 July 2019) and Claim 2 (16 March 2020). Save that requires further particulars of the victimisation claim and that it reserves its position with regard to time points, the 1st respondent does not object to the amendment or to Claim 2.

[8]The 2nd respondent objects to being joined as a party to Claim 1 by Amendment. And has applied for the strike-out of Claim 2 against it for want of jurisdiction. The jurisdictional objections are that the relationship between the claimant and the second respondent’s was not an employment or work relationship; and accordingly, a complaint about how the 2nd respondent has discharged its duties regarding airport security is not for determination in the Employment Tribunal. Further, it is the 2nd respondent’s case that the Employment Tribunal lacks jurisdiction because the claims against it have been presented out of time. So far as the amendment application is concerned, the 2nd respondent’s position is that the jurisdictional objections are such that it would be wrong for the tribunal to grant to the amendment.

[9]In the light of the 2nd respondent’s objection to the amendment and its application for the strike-out of Claim 2, the cases were listed for a further Preliminary Hearing before Employment Judge Hindmarsh on 16 October 2020. Judge Hindmarsh vacated the listed trial date and directed that the 2nd respondent’s applications should be determined at an Open Preliminary Hearing listed before me on 27 & 30 November 2020. The Law Jurisdiction of the Employment Tribunal

The Law

[10]The jurisdiction of the Employment Tribunal to deal with breaches of the Equality Act 2010 (EqA) is conferred by Section 120 of that Act. It is limited to contraventions of Part 5 (Sections 39 – 83) of the Act and to contraventions of Sections 108,111 and 112 which relate to Part 5. Part 5 is concerned with relationships between employers and workers; the holders of public office such as police officers; the regulation of partnerships; professional bodies; the offering of professional qualifications; employment services (such as employment agencies); trade organisations; and memberships of local authorities. The Part also deals with occupational pensions and equal pay. Case Number 1305877/2019 Type V 4

[11]Essentially, Part 5 prohibits discrimination in the field of employment; and Section 120 confers jurisdiction on the Employment Tribunal to enforce that prohibition. Section 108 governs employment relationships which have ended and where there is an ongoing prohibition against discrimination. And Sections 111 & 112 prohibit incitement causing, inducing or aiding such contraventions.

[12]In his skeleton argument Mr Lewis referred me to Section 109 EqA (and I have also considered the provisions of Section 110). These Sections confer liability on an employer (or other organisation or individual to whom the Part 5 prohibition applies) for acts/omissions on the part of other employees or agents. Time Limits

[13]Section 123 EqA states that an Employment Tribunal may only consider a complaint for the contravention of Part 5 if the claim is brought within three months of the act/omission complained of or such other period as the Tribunal considers to be just and equitable. Where the complaint relates to conduct extending over a period, for the purpose of determining the time limit, the act is to be treated as done at the end of the period.

[14]Robertson -v- Bexley Community Centre

[2003] IRLR 434

(CA) An Employment Tribunal has a very wide discretion in determining whether or not it is just and equitable to extend time. It is entitled to consider anything that it considers relevant. However, time limits are exercise strictly in employment cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. On the contrary, a tribunal cannot hear a complaint unless the claimant convinces it that it is just and equitable to extend time. The exercise of discretion is thus the exception rather than the rule. Amendment

[15]The Tribunal may at any stage of the proceedings, on its own initiative or on application, make a case management order: Rule 29. Although there is no specific reference to amendment in the Rules, no doubt such an order may include one for the amendment of a claim or response.

[16]In Selkent Bus Co Limited v Moore

[1996] ICR 836

(EAT) the EAT gave the following general guidance as to the exercise of the Employment Tribunal’s discretion and the factors which might be taken into account: -(a) The nature of the amendment. Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on Case Number 1305877/2019 Type V 5 the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.

(b) The applicability of time limits. If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that application is out of time, and, if so, whether the time limit should be extended under the applicable statutory provisions.

(c) The timing and manner of the application. An application should not be refused solely because there has been a delay in making it. There are no time limits laid down … for the making of amendments. The amendments may be made at any time – before, at, or even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery.

[17]The paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.

[18]Time limits arise as a factor only in cases where the amendment sought would add a new cause of action. If a new claim form were presented to the tribunal out of time, the tribunal would consider whether time should be extended, either on the basis of the “not reasonably practicable” test (for example, for unfair dismissal) or on the basis of the “just and equitable” test (for example, for unlawful discrimination). If time were not so extended, the tribunal would lack jurisdiction to entertain the complaint, and it would fail. However this does not mean that the mere fact that a claim would be out of time should automatically prevent it being added by amendment. The relevant time limits are an important factor in the exercise of discretion but they are not decisive.

[19]Under the general power of case management a Judge may at any time, on the application of a party or on his own initiative, make an order (among other things) that any person who he considers has an interest in the outcome of the proceedings be joined as a party to them. This power is often used where the claimant’s employer has been wrongly identified or where, in a complaint of unlawful discrimination, a named individual against whom allegations are made is added as a respondent in addition to the employer. The Claimant’s Case

[20]The claimant’s case is that the decision taken by the 2nd respondent firstly to suspend, and then to permanently withdraw, her security pass prevented her Case Number 1305877/2019 Type V 6 from undertaking her contractual employment duties. As such, a remedy should lie against the second respondent if it has acted in a discriminatory fashion.

[21]In an opening skeleton argument, Mr Lewis specifically relied on the provisions of Section 109 EqA suggesting that, for the purpose of security clearance, the 2nd respondent was acting as an agent of the 1st respondent.

[22]Accordingly, the claimant argues that, because of the impact of its decision on her employment, the Employment Tribunal has jurisdiction to determine her complaint of race discrimination against the 2nd respondent. And that she should be permitted to amend Claim 1 to include the 2nd respondent and to proceed with Claim 2 against both respondents. The claimant does not accept that the claims are presented out of time; but, even if the tribunal finds this to be the case, she argues that it would be “just and equitable” for time to be extended.

[23]In support of her claim for a “just and equitable” extension of time, the claimant asserts that on 2 December 2019 she retained the pro-bono services of a trainee barrister who she believed was dealing with the presentation of Claim 2 and the application to amend. On 20 January 2019, she received information that the trainee could not, in fact, assist her and this accounts for the delay.

[24]The claimant also relies on the fact that on 19 February 2020 she obtained ECCs against both respondents (in each case this was the 2nd ECC). It is her case that this validates her claim presented on 16 March 2020. The 2nd Respondent’s Case

[25]On behalf of the 2nd respondent, Ms Scully argues that the relationship between the claimant and the 2nd respondent, as effectively the licensing authority for security clearance, is not a relationship encompassed within Part 5 EqA; and, accordingly, pursuant to Section 120 EqA, the Employment Tribunal does not have jurisdiction to determine the claimant’s complaint against the 2nd respondent. If the tribunal lacks jurisdiction to hear the complaint, then Claim 2 should be dismissed; and, lack of jurisdiction would be a significant ground to refuse the amendment of Claim 1.

[26]In any event, with regard to Claim 1, and the proposed amendment there are no allegations to be found in Claim 1 against the second respondent; and nothing has been particularised in the amendment application.

The law

[27]Regarding both claims, Ms Scully argues that against the 2nd respondent they are clearly out of time. On any view, the latest act of discrimination which could be attributed to the 2nd respondent is the permanent withdrawal of the claimant’s security pass. This decision was taken on 2 August 2019 although it appears to be conceded that the claimant was unaware until 3 October 2019. Taking a start date of 3 October 2019, the primary time-limit would expire on 2 Case Number 1305877/2019 Type V 7 January 2020. The claimant consulted ACAS regarding her potential claim against the 2nd respondent on 15 November 2019 and an Early Conciliation Certificate was issued on 15 December 2019. Allowing for the conciliation period, the time-limit would still expire on 2 February 2020; but neither the amendment application, nor the Claim 2 were presented until 16 March 2020. Discussion & Conclusions The Jurisdiction of the Employment Tribunal

Conclusions

[28]I have considered the whole of Part 5 EqA and the various types of relationship which are provided for. Principally, the relationship must be between an employer and a worker; but other types of relationship are also in frame including the holders of public office; elected representatives; qualification authorities; professional bodies; employment agencies. In my judgement, the relationship between the claimant and the 2nd respondent does not fall within the provisions of Part 5. There was no employment relationship of any description. For the purposes of security clearance, the 2nd respondent was carrying out statutory duties - there are documents in the bundle showing that this was done under an agreement between the 2nd respondent, the Civil Aviation Authority and the Department for Transport. Individuals may require security clearance at the airport for reasons other than employment - all that the 2nd respondent was concerned with was the individual’s suitability.

[29]I would find it surprising if there was not some redress available to the claimant following the withdrawal of her security pass if this was done unlawfully. But I am satisfied that such redress does not lie within the jurisdiction of the Employment Tribunal. It is not for me to research the matter and advise the claimant, But, from experience, I would imagine that such redress would lie with the First-tier Tribunal (General Regulatory Chamber) or by way of Judicial Review. In my judgement, the best analogy would be that of an employee for whom it is a precondition to be the holder of a valid driving licence. If that employee’s driving licence were revoked by DVLA unlawfully resulting in a loss of employment, there would be no remedy against DVLA in an Employment Tribunal but doubtless a remedy would lie elsewhere. Likewise an employee who loses employment because of an unlawful decision by the Immigration Authorities.

[30]There is nothing in the claimant’s pleaded case to suggest that she alleges that the 2nd respondent caused, induced or aided the 1st respondent to act in a discriminatory way. It is the claimant’s case that the 2nd respondent discriminated directly and of its own volition. In my judgement, Sections 111 & 112 EqA are not engaged. Sections 109 & 110 EqA, if engaged, would fix the 1st respondent with liability for the acts/omissions of the 2nd respondent. But those provisions would not give rise to direct liability on the 2nd respondent. Mr Rogers for the first respondent, is aware that the application of Section 109 & 110 remain Case Number 1305877/2019 Type V 8 in play in this case and will have to be determined at the trial of the case against the first respondent.

[31]Accordingly, I find that the tribunal has no jurisdiction to consider the claimant’s claim against the 2nd respondent and accordingly Claim 2 is dismissed for want of jurisdiction. Time Limits

[32]Had I not found that the tribunal lacked substantive jurisdiction to consider the claim against the 2nd respondent, I would have had to consider whether the tribunal was deprived of jurisdiction because of the presentation of Claim 2 out of time. I agree with Ms Scully’s analysis of where the deadlines lie based on time running from 3 October 2019. (Ms Scully does not accept this date; and would argue instead for 2 August 2019). But, even taking the later date, it is clear that Claim 2 was presented several weeks late.

[33]It is unclear to me why the claimant obtained second EC Certificates against both respondents in February 2020. But I am certain that the claimant cannot extend time simply by the device seeking a second EC Certificate. And, in any event, by the time she consulted ACAS for the second time the claim against the 2nd respondent was already out of time.

[34]On the question of whether or not it would be just and equitable to extend time, I remind myself that it is for the claimant to satisfy me of the justice and equity of so doing and the hurdle which she must overcome is high. The claimant has explained the position with regard to the trainee barrister; but she was aware of that position by 20 January 2020; she has provided no explanation for the delay between then and 16 March 2020. She may have had a credible case if Claim 2 had been presented late by just a few days in early February 2020. But, in my judgement, she has not satisfied me that there is a just and equitable case to extend time until 16 March 2020.

[35]Accordingly, I find that, even if the tribunal did not lack substantive jurisdiction, it would still be deprived of jurisdiction by reference to the time limits set out in Section 123 EqA. Amendment

[36]I have found on two separate grounds that the employment tribunal does not have jurisdiction to consider the claimant’s claim against the 2nd respondent. On the first of these, the substantive jurisdiction point, in my judgement, of itself justifies the refusal of the amendment application - the tribunal lacks substantive jurisdiction to hear Claim 1 against the 2nd respondent. Case Number 1305877/2019 Type V 9

[37]Whilst the time point would not automatically prevent the grant of an amendment, my judgement is that, in this case, it would not have been in the interests of justice to allow an amendment to join the 2nd respondent some ten months after the presentation of the claim in respect of causes of action (the suspension of the security pass and the commencement of an investigation) which were well known to the claimant when Claim 1 was presented.

[38]Accordingly I refuse the application to amend Claim 1 to join the 2nd respondent.

[39]All claims against the 2nd respondent are accordingly dismissed. Employment Judge Gaskell 14 January 2021 Case No: 1305877/19 1 O EMPLOYMENT TRIBUNALS Claimant: Sophia Carvalho Respondent: Swissport GB Limited Heard at: Birmingham (via video conferencing) On: 29,30 November 1,2,3 & 6 December 2021 Before: Employment Judge J Jones Mr D Faulconbridge Mr D Spencer Representation Claimant: Mr O Prys Lewis (counsel) Respondent: Mr S Peacock (solicitor) JUDGMENT having been sent to the parties on 29 December 2021 and written reasons having been requested by the Claimant on 15 December 2021 in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

procedure.

[40]On 3 October 2019, over 3 months after the grievance was lodged, it was suggested that the grievance was going to be considered at a meeting convened for a different purpose – namely to discuss the claimant’s future employment. These facts contrasted markedly with the way in which the claimant’s 2 prior grievances were handled, neither of which raised allegations of race discrimination. In relation to the wages grievance (dated 18 March 2019) – this was heard by Mr Lear on 18 April 2019 and a written outcome delivered on 26 April 2019 and in relation to the Goodwin grievance (dated 11 May 2019), there was also a meeting and a written outcome dated 30 May 2019. When the race discrimination grievance was finally considered (after the claimant’s employment had ended), the claimant was not invited to supply information about the identity of the comparator referred to, nor copies of the documents referred to in the body of the grievance itself.

[41]Having considered these matters, the Tribunal concluded that, as a matter of law, the burden of proof did indeed shift to the respondent under section 136 EqA and it therefore must look to the respondent for an explanation. Unfortunately, none was forthcoming. The most that was said was that there had been some re-organisation of the HR function of the respondent that was supporting Birmingham airport and that Ms Marston was absent on sick leave Case No: 1305877/19 24 after 3 October 2019. The Tribunal concluded that these were not full or adequate explanations from which it could conclude that the delay in dealing with the claimant’s race discrimination grievance was not related to the fact that it was a protected act. Indeed, Mr Lear’s summary rejection at the reconvened disciplinary meeting on 9 July 2020 of the matters the claimant had raised in relation to Mr Coombes as “irrelevant” suggests that there was no appetite to take the claimant’s concerns of bias on grounds of race seriously at all.

[42]The operation of section 136 EqA means that, in the circumstances described above, the Tribunal found that the complaint of victimisation that the respondent failed to properly consider the claimant’s grievance of 20 June 2019 was well founded. Unlawful deduction from wages

[43]The test here, as explained above, was a contractual one. The Tribunal found that the claimant’s contract was clear that, in circumstances, as here, where she could not fulfil her contractual duties as a result of not holding a valid security pass, the respondent had the contractual right to withhold her salary. The Tribunal did not agree with the claimant’s analysis of the contract that the situation fell within the second sentence of paragraph 7.3 of the contract dealing with situations outside the employee’s control. In any event, that sentence requires the respondent contractually to merely “consider” the reinstatement of the claimant’s salary. Here, such a consideration occurred when the claimant raised her wages grievance which was heard and determined in April 2019.

[44]There was no breach of the claimant’s contract and therefore she was not paid less than she should have been according to its terms in any pay period. The claim to an unlawful deduction of wages therefore failed. Unfair dismissal

[45]The Tribunal did not find that the claimant had demonstrated a breach of her contract of employment by the respondent or that it was a fundamental breach of her contract that led her to resign her employment.

[46]The claimant explained her reason for resignation in her witness statement at paragraph 268. To summarise, she explained that she had no alternative but to resign because, despite the conclusions of the respondent and the CPS, BAL refused to reinstate her security pass. She added that she felt let down by the respondent because it had not been actively seeking information to exonerate her and did not provide her with any information about how she might appeal against BAL’s reinstatement of her pass. The Tribunal did not find evidence of the withholding of information by the respondent and concluded that it was the actions of BAL, not the respondent, that was the primary driver that led the claimant to conclude that her ongoing employment with the respondent was untenable. The Tribunal concluded that the claimant resigned when she did as she anticipated, for the same reason, that the respondent, having failed to find her an alternative position, was about to terminate her employment.

[47]In these circumstances, the claimant was not able to show that she had been ”dismissed” within the meaning of section 95 ERA and therefore her claim to unfair dismissal was bound to fail. Case No: 1305877/19 25 Employment Judge J Jones 25 January 2022 Case No: 1305877/19 26 Miss S Carvalho Claimant -and- Swissport GB Limited Respondent LIST OF ISSUES (Merits)1 Unlawful deductions from wages

[1]Did the respondent make unauthorised deductions from the claimant’s wages in accordance with Employment Rights Act 1996 (ERA) section 13, from 10 February 2019 (when her security pass was suspended) until(a) 7 July 2019 – the date of submission of the first claim (R’s case); or

(b) 10 December 2019 – the effective date of termination (C’s case) ? R’s position is that the second ET1 submitted to the ET on 16 March 2020 does not include an unlawful deduction from wages claim. C’s position is that ET1 form 16.3.20 does claim compensation and the loss of wages section is filled in. It would be artificial to say the victimisation etc. does not include the obvious deduction from wages. Direct race discrimination (section 13, Equality Act 2010 (EqA))

[2]Did the respondent do the following:2.1 Prevent the claimant from continuing employment with the respondent from 8 February 2019;

2.2 Fail to treat the claimant as suspended from 8 February 2019;

2.3 Fail to pay the claimant from 10 February 2019;

2.4 Fail to deal with grievances raised by the claimant on 18 March 2019 (in relation to non-payment of wages) and/or 20 June 2019 (in relation to a complaint of race discrimination);

2.5 Fail to properly investigate allegations raised against the Claimant by Birmingham Airport Limited (BAL);

2.6 Bring disciplinary proceedings against the claimant;

2.7 Fail to provide the claimant with accurate information received by them from BAL as to the reasons why the claimant was not being permitted back on to the Birmingham Airport site ?

[3]If so, was that treatment “less favourable treatment', i.e. did the respondent treat the claimant as alleged less favourably than it 1 Prepared by the Tribunal and shared with the parties on 1 December 2021; amended by the parties’ representatives and returned to the Tribunal on 2 December 2021) Case No: 1305877/19 27 treated Sam Jennings or would have treated another (hypothetical comparator) in not materially different circumstances?

[4]If so, was the less favourable treatment because of the claimant's race? Indirect discrimination (section 19, EqA)

[5]Did the respondent have a practice, criterion or policy (PCP) of an inconsistent application of the disciplinary policy?

[6]If yes, did the respondent apply the PCP(s) to the claimant at any relevant time?

[7]If yes, did the respondent apply (or would the respondent have applied) the PCP(s) to persons with whom the claimant does not s hare the characteristic of being African-Caribbean, Jamaican and/or Black-British?

[8]Did the PCP put persons with whom the claimant shares the characteristic, e.g. somebody who is African-Caribbean, Jamaican and/or Black-British at one or more particular disadvantages when compared with persons with whom the claimant does not share the characteristic, in that: inconsistent application of the policy meant that disciplinary allegations were brought against the claimant?

[9]Did the PCP put the claimant at that/those disadvantage(s) at any relevant time?

[10]The respondent no longer asserts a defence of objective justification. Time limits

[11]Were the claimant's complaints of direct and indirect race discrimination presented within the time limits set out in sections 123(1)(a) & (b) of the Equality Act 2010 ("EQA”)? In relation to each of the alleged acts of discrimination, the parties’ positions as to when time began to run is as follows: See the enclosed “out of time annex”. Victimisation (section 27 EqA)

[12]The parties agree that the claimant did a protected act on 20 June 2019 by submitting a grievance complaining of race discrimination to the respondent.

[13]Did the respondent subject the claimant to all or any of the following detriments because she did the protected act : Case No: 1305877/19 2813.1 continue to withhold her wages;

13.2 fail to redeploy her;

13.3 fail to properly consider her grievance of 20 June 2019?

[14]The parties agree that these claims are in time as they were all acts continuing at the effective date of termination or beyond (10 December 2019). Unfair Dismissal

[15]Did the respondent do the following things:15.1 deducted the claimant’s wages for 10 months on the basis of an allegation only which was never fully investigated;

15.2 failed to consider suspension for an unproven Allegation;

15.3 failed to give consideration to the full terms of clause 7.3 of her employment contract in particular the act of a third party;

15.4 failed to adjourn the investigation hearing on the 18th of March 2019 until the independent police investigation had been completed;

15.5 failed to properly consider the claimants grievance regarding deduction of pay even when the police investigation had been discontinued;

15.6 failed to even consider evidence of other employees undertaking filming inside;

15.7 failed to adhere to their disciplinary procedure when dealing with the Claimant’s racial discrimination claim of the 20th of June 2019. This claim was dealt with over a period of months rather than within 7 days with completion within probably a month;

15.8 Failed to have regard to the claimant’s repeated complaints about the lack of progress on her racial discrimination claim.2

[16]Did that breach the implied term of trust and confidence? The Tribunal will need to decide:16.1 whether the respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent; and

16.2 whether it had reasonable and proper cause for doing so.

[17]Did that breach clause 7.4 of the contract? 2 Section 15 is included verbatim - as provided by claimant’s counsel on 2.12.21 Case No: 1305877/19 29

[18]Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the claimant was entitled to treat the contract as being at an end.

[19]Did the claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the claimant’s resignation.

[20]Did the claimant affirm the contract before resigning? The Tribunal will need to decide whether the claimant’s words or actions showed that they chose to keep the contract alive even after the breach.

[21]If the claimant was dismissed, what was the reason or principal reason for the breach of contract?

[22]Was it a potentially fair reason? The respondent alleges that it was “some other substantial reason”.

[23]Did the respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the claimant? 2 December 2021 Case No: 1305877/19 30 MISS S CARVALHO v SWISSPORT: ANNEX TO LIST OF ISSUES - JURISDICTION First ET1 submitted: 07.07.19 ACAS Date A: 21.05.19 ACAS Date B: 10.06.19 Extended Limitation Date for ‘Date of Act’: 08.02.19 is: 10.07.19 Second ET1 submitted: 16.30.20 ACAS Date A: 18.02.20 ACAS Date B: 19.02.20 Extended Limitation Date for ‘Date of Act’: 10.12.19 is: 19.03.20 Less favourable treatment C R2.1 Prevent continuing employment R accepts continuing act to 10.12.19 Extended Limitation Date ²ET1: 19.03.20 Therefore: In Time

2.2 Continuing act: In Time Decision not to suspend If date of Act 08.02.19 3 month date: 07.05.19 ACAS Date A: 21.05.19 Therefore: Out of time If date of Act: Continuing: Extended Limitation Date: ¹ET1 10.07.19 Therefore: In Time

2.3 Failure to pay R accepts continuing act to 10.12.19 Extended Limitation Date ²ET1: 19.03.20 Therefore: In Time

2.4 In Time Failure to deal with grievances Depends on ET findings If found to be continuing act to 10.12.19 then In time: Extended Limitation Date ²ET1: 19.03.20 If ET find an earlier date than 10.12.19, may need to do another ACAS EC Limitation calculation to consider whether or not in time. Therefore: TBC

2.5 Continuing act: In Time Failure to properly investigate BAL allegations Depends on ET findings Case No: 1305877/19 31 If found to be continuing act to 10.12.19 then In time. If ET find an earlier date than 10.12.19, may need to do another ACAS EC Limitation calculation to consider whether or not in time. Therefore: TBC

2.6 In Time Disciplinary proceedings Date of Act: 09.07.19 (Meeting where C told no disciplinary action) 3 month date: 08.10.19 ACAS Date A: 18.02.20 Therefore: Out of time

2.7 Failure to provide accurate information Depends on ET findings If found to be continuing act to 10.12.19, then In time. If ET find an earlier date than 10.12.19, may need to do another ACAS EC Limitation calculation to consider whether or not in time. Therefore: TBC Indirect discrimination In Time Application of Disciplinary Policy Date of Act: 09.07.19 (Meeting where Mr Lear told C no disciplinary action) 3 month date: 08.10.19 ACAS Date A: 18.02.20 Therefore: Out of time Case No: 1305877/2019 1 O EMPLOYMENT TRIBUNALS Claimant: Miss Sophie Carvallo Respondent: Swissport GB Limited1 Heard at: Birmingham (via video conferencing) On: 29,30 November 1,2,3 & 6 December 2021 Before: Employment Judge J Jones Mr D Faulconbridge Mr D Spencer Representation Claimant: Mr O Prys Lewis (counsel) Respondent: Mr S Peacock (solicitor) JUDGMENT having been sent to the parties on 29 December 2021 and written reasons having been requested by the Claimant on 15 December 2021 in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

[27]Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; Case No: 1305877/2019 17 (d) making an allegation (whether or not express) that A or another person has contravened this Act.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. 123 Time limits (1) …. proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (2) … (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.

(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. 136 Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. 11. When considering whether Sam Jennings was capable of being an actual comparator for the claimant’s direct race discrimination claim, the Tribunal reminded itself of the decision of the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

[2003] IRLR 285

, ICR 337. As Lord Scott explained in that case 'the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the Case No: 1305877/2019 18 same position in all material respects of the victim save that he, or she, is not a member of the protected class.' 12. In relation to the constructive unfair dismissal claim, the Tribunal considered the framework provisions in sections 95 and 98 Employment Rights Act 1996 (“ERA”) which provide as follows: 95 Circumstances in which an employee is dismissed (1) For the purposes of this Part an employee is dismissed by his employer if … (a)… (b)… (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct. 98 General (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a ) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. (3) In subsection (2)(a)— (a) “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and (b) “qualifications”, in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held. (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— Case No: 1305877/2019 19 (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case. 13. In considering whether the claimant had been dismissed, the Tribunal applied the well-known test in Western Excavating (ECC) Ltd v Sharp

[1978] QB 761

asking itself whether there had been a fundamental (repudiatory) breach of the claimant’s contract of employment by the respondent and if so, whether the claimant had resigned in response to that breach within a reasonable time. 14. If dismissal was proven, then the Tribunal noted that it would be for the respondent to show the reason for dismissal and that it was for one of the reasons set out in section 98(1) ERA. In this case the respondent said that dismissal, if proven, was because of some other substantial reason being BAL’s decision not to reinstate the claimant’s blue pass meaning that she could not do her job at Birmingham airport. 15. The Tribunal would in those circumstances go on to look at whether the dismissal was fair or unfair, applying the wording of section 98(4) ERA and asking itself whether dismissal was within a range of reasonable responses, taking care not to substitute its own decision for that of the respondent employer. 16. Finally, the Tribunal considered the test to be applied in determining the claim to unlawful deduction from wages by the withholding of the claimant’s salary following the suspension of her blue security pass. This was a contractual matter – in other words, was the claimant paid in accordance with the terms of her contract of employment or not? This reflected the statutory provision under which the claim to unlawful deductions was made which is in section 13 ERA. Section 13(3) states: “Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion. Conclusions 17. The tribunal reached its conclusions unanimously by applying the law to the facts it had found. In doing so the tribunal took each claim in turn as set out in the final version of the list of issues. Race discrimination – time 18. The claimant’s claims of direct and indirect race discrimination were the subject of some discussion with the representatives relating to the applicable Case No: 1305877/2019 20 time limits. The parties were asked to clarify their positions, which they did by completing a table in which they stated their respective positions in relation to when and whether each claim of discrimination was out of time (see “the out of time annex”). It was admitted by the respondent that the claim of victimisation was in time. 19. The first claim (in which the claims of direct and indirect race discrimination were made) was lodged on 7 July 2019. This followed a period of ACAS conciliation between 21 May 2019 and 10 June 2019. Alleged discrimination that occurred prior to 21 February 2019 was therefore on its face out of time, unless it was “conduct extending over a period” – also referred to as a “continuing act” - within the meaning of section 123(3) EqA. Where reference to “continuing acts” is made in these reasons it is purely by way of short form and does not signify a departure from the statutory test. 20. For the avoidance of doubt, it appeared to the Tribunal that the respondent had erroneously used the dates of submission and early conciliation associated with the second claim when completing the out of time annex, when the claim for discrimination was in fact included in the first claim. The points made therein about whether or not a claim was “continuing” held good, however. 21. The respondent accepted, rightly in the Tribunal’s view, that the alleged discriminatory acts outlined at

2.1 (prevent continuing employment) and 2.3 (failure to pay wages) were in time because the matters complained about were ongoing when the first claim form was submitted. 22. In relation to the remaining allegations of alleged discrimination, the respondent conceded that they were also in time if the Tribunal came to the same view – namely, that these were still “live” issues or a continuing state of affairs when the claimant lodged her claim with the Tribunal. The Tribunal considered each act of alleged discrimination, as set out in the list of issues, and determined that, as with 2.1 and 2.3, they were in fact all complaints about ongoing matters at the time the claim form was submitted on 7 July 2019 and were therefore in time applying the test set out in section 123(3) EqA. 23. Issue

2.2 states that the respondent unlawfully discriminated against the claimant by “failing to treat [her] as suspended from 8 February 2019”. The use of the word “from” here is significant as it is suggestive of an ongoing state of affairs. The respondent decided when the issue of the claimant’s security pass first arose not to suspend her pending disciplinary investigation but rather to invoke clause 7 of her contract and instruct her to stay at home because she did not have the requisite security pass to access her workplace. This was a decision that could have been changed at any time up until her employment ended. In addition, if the linked complaint of failure to pay the claimant (issue

2.3 ) was a continuing act then the Tribunal concluded that, by extension, so was the linked decision not to suspend her on full pay. 24. Issue

2.4 related to the alleged failure to deal with the claimant’s wages and race discrimination grievances. These were both lodged after 21 February 2019 and so were complaints of acts of discrimination that were in time when the first claim was lodged. Case No: 1305877/2019 21 25. Issue

2.5 (alleged failure to investigate the allegations raised against the claimant by Birmingham airport) commenced on or about 8 February 2019 and was ongoing until at least the decision by the respondent not to issue the claimant with a disciplinary sanction (disciplinary outcome letter, 16 July 2019, p360). This is why the Tribunal considered that this allegation was in time. 26. Issue

2.6 concerned the bringing of disciplinary proceedings against the claimant which was notified to her by the letter of 4 April 2019 (p237), therefore also making this an allegation which was in time. 27. Finally, in relation to the allegations of direct race discrimination, the claimant alleged that the respondent had failed to provide her with accurate information from BAL as to their reasons for withholding her security pass. Again, this was very much said to be a continuing state of affairs when she lodged her first claim in July 2019 at the Tribunal.

[28]The indirect discrimination claim relating to the alleged inconsistent application of the respondent’s disciplinary procedure was clearly continuing when the tribunal claim was lodged as the claimant’s reconvened disciplinary hearing was not due to take place until 9 July 2019. This claim was therefore also in time. Race discrimination – merits

[29]Turning to the merits of the direct discrimination claim, the tribunal concluded that, in answer to the questions in paragraph 2 of the agreed list of issues, the respondent did not “prevent the claimant from continuing employment with the respondent from 8 February 2019”. On the contrary, the respondent took no steps to end the claimant’s employment prior to her resignation. The fact that the claimant was not able to go into work was the consequence of an act on the part of BAL in removing her pass, no the result of an act on the part of the respondent in “preventing” her from doing so, as alleged.

[30]The respondent did not suspend the claimant on 8 February 2019. The tribunal was not satisfied, however, that this amounted to less favourable treatment, despite the financial impact of the decision in these particular circumstances. Suspension is often cited as an act of less favourable treatment in itself, despite its neutral status. It was the failure to pay the claimant from 10 February 2019 that was the act of unfavourable treatment (issue 2.3).

[31]The tribunal was not satisfied that the respondent failed to deal with the wages grievance and, whilst there was an inordinate delay in dealing with the race discrimination grievance of 20 June 2019 (see below re victimisation), it could not be said to represent unfavourable treatment at the time when the first claim was lodged on 9 July 2020, the point in time when the Tribunal was required to adjudicate on this question (issue 2.4).

[32]The tribunal did not agree that the respondent had failed to properly investigate the allegations raised against the claimant by BAL (issue 2.5) or provided the claimant with accurate information received from them by BAL (issue 2.7). The evidence showed that the respondent had asked a number of times for BAL to provide evidence which had been declined and there was no evidence that the respondent had withheld information from the claimant received from BAL about why her pass had been withdrawn. Case No: 1305877/2019 22

[33]Finally in relation to the direct race discrimination allegations, the respondent did bring disciplinary proceedings against the claimant and, although they were later dropped, the Tribunal accepted that this was treatment that the claimant could reasonably conclude was unfavourable.

[34]In relation to the failure to pay the claimant and the disciplinary proceedings, the tribunal went on to consider who would be an appropriate comparator. The tribunal concluded that Sam Jennings, whom the claimant relied upon, was not an appropriate comparator because in his case there was no involvement from BAL nor suspension of his blue security pass. Indeed, the claimant was asked by the respondent’s solicitor during cross-examination the following question “none of the other comparators had their passes stopped by BAL did they?” The claimant answered “true”. The tribunal concluded that, applying the EqA and relevant case law such as the Shamoon decision, the correct comparator would be a person of a different race to the claimant who had also been observed by BAL to have been allegedly breaching security rules and had his or her BAL security pass withdrawn/suspended and was unable to carry out their contractual duties as a consequence.

[35]The tribunal heard no evidence from either party about the treatment of any other employee of any race whose BAL security pass been withdrawn/suspended. For the purpose of the direct race discrimination complaint, therefore, the tribunal was left with looking at how an hypothetical comparator would have been treated.

[36]This led the Tribunal to the conclusion that there had been no less favourable treatment of the claimant. The tribunal was not satisfied that a person in the same position as the claimant would not have been treated the same as she was. The respondent followed the contractual term that was in the contracts of all its staff setting out what would happen in the situation where security clearance was not available, in relation to the payment of salary. At the time that the disciplinary process was commenced, there was a serious allegation that had been made against the claimant by BAL, and there was evidence by way of CCTV footage, that the respondent’s managers had viewed and considered potentially incriminating of the claimant. After an investigatory meeting with the respondent, the concerns remained and the claimant, albeit acting on advice, had not provided any explanation to alleviate the respondent’s concern. The disciplinary process was invoked against this backdrop and to enable the respondent to progress its investigations and pursue the claimant’s explanation (page 249).

[37]In relation to the indirect discrimination claim, the Tribunal asked itself whether the respondent had a practice, criterion or policy (PCP) of an inconsistent application of the disciplinary policy, and concluded that this was not established on the evidence. There was no clear comparator on the evidence before the Tribunal, as explained above. The individual referred to in the claimant’s race discrimination grievance was not identified by her nor was any documentary evidence put forward from that person, although it was alluded to in the grievance. Sam Jennings, whose circumstances were not the same as the claimant, was treated consistently with her in that he too was subjected to the disciplinary process. The application of this process by the respondent in his case resulted in a harsher outcome – he received a final warning and the Case No: 1305877/2019 23 claimant’s discipline was discontinued when Mr Lear could not obtain copies of the evidence from BAL. Victimisation

[38]There were 3 complaints of victimisation which the Tribunal considered in turn. The Tribunal was not satisfied that the decision to continue to withhold the claimant’s wages or the failure to redeploy her were influenced in any way by the fact that she had lodged a grievance of race discrimination on 20 June 2019 (the protected act). This is because there was no evidence from which the Tribunal could conclude that this link was there when the wages had been withheld pursuant to the contract since February 2019 and the redeployment issue was still under discussion at the time of her resignation. There was no evidence before the Tribunal of a suitable role at a suitable alternative location to which the claimant could have been redeployed.

[39]In the case of the third allegation of victimisation – the failure to properly consider the claimant’s grievance of 20 June 2019, the Tribunal came to a different conclusion. Applying section 136 EqA, the Tribunal found that there were facts from which it could conclude, absent a satisfactory explanation from the respondent, that the respondent’s considerable delay in considering the claimant’s race discrimination grievance was related to its status as a protected act i.e. a complaint of discrimination. These facts included the fact that the respondent’s grievance procedure set out its expectation that grievances would be considered within 7 days, that the employee raising them would be invited to a meeting to discuss them and that an outcome would be delivered in 7 further days, or as soon as reasonably practicable. Whilst a failure to adhere to those strict time limits was not in itself a reason to draw any particular inference, there were no steps taken by the respondent at all to investigate the claimant’s race discrimination complaint from 20 June 2019 until 3 October 2019, despite the respondent being chased by the claimant on 3 and 9 July 2019 and indicating on 16 July 2019 in writing that it would be investigated in accordance with the

procedure.

[41]Having considered these matters, the Tribunal concluded that, as a matter of law, the burden of proof did indeed shift to the respondent under section 136 EqA and it therefore must look to the respondent for an explanation. Unfortunately, none was forthcoming. The most that was said was that there had been some re-organisation of the HR function of the respondent that was supporting Birmingham airport and that Ms Marston was absent on sick leave Case No: 1305877/2019 24 after 3 October 2019. The Tribunal concluded that these were not full or adequate explanations from which it could conclude that the delay in dealing with the claimant’s race discrimination grievance was not related to the fact that it was a protected act. Indeed, Mr Lear’s summary rejection at the reconvened disciplinary meeting on 9 July 2020 of the matters the claimant had raised in relation to Mr Coombes as “irrelevant” suggests that there was no appetite to take the claimant’s concerns of bias on grounds of race seriously at all.

[47]In these circumstances, the claimant was not able to show that she had been ”dismissed” within the meaning of section 95 ERA and therefore her claim to unfair dismissal was bound to fail. Case No: 1305877/2019 25 Employment Judge J Jones 25 January 2022 Case No: 1305877/2019 26 Miss S Carvalho Claimant -and- Swissport GB Limited Respondent LIST OF ISSUES (Merits)1 Unlawful deductions from wages

procedure.

[2]Did the respondent do the following:2.1 Prevent the claimant from continuing employment with the respondent from 8 February 2019;

2.2 Fail to treat the claimant as suspended from 8 February 2019;

2.3 Fail to pay the claimant from 10 February 2019;

2.4 Fail to deal with grievances raised by the claimant on 18 March 2019 (in relation to non-payment of wages) and/or 20 June 2019 (in relation to a complaint of race discrimination);

2.5 Fail to properly investigate allegations raised against the Claimant by Birmingham Airport Limited (BAL);

2.6 Bring disciplinary proceedings against the claimant;

2.7 Fail to provide the claimant with accurate information received by them from BAL as to the reasons why the claimant was not being permitted back on to the Birmingham Airport site ?

[3]If so, was that treatment “less favourable treatment', i.e. did the respondent treat the claimant as alleged less favourably than it 1 Prepared by the Tribunal and shared with the parties on 1 December 2021; amended by the parties’ representatives and returned to the Tribunal on 2 December 2021) Case No: 1305877/2019 27 treated Sam Jennings or would have treated another (hypothetical comparator) in not materially different circumstances?

[4]If so, was the less favourable treatment because of the claimant's race? Indirect discrimination (section 19, EqA)

[5]Did the respondent have a practice, criterion or policy (PCP) of an inconsistent application of the disciplinary policy?

[6]If yes, did the respondent apply the PCP(s) to the claimant at any relevant time?

[9]Did the PCP put the claimant at that/those disadvantage(s) at any relevant time?

[10]The respondent no longer asserts a defence of objective justification. Time limits

[12]The parties agree that the claimant did a protected act on 20 June 2019 by submitting a grievance complaining of race discrimination to the respondent.

[13]Did the respondent subject the claimant to all or any of the following detriments because she did the protected act : Case No: 1305877/2019 2813.1 continue to withhold her wages;