Mr G C Iazdi v Grayson Automotive Services Ltd: 1306234/2024
EMPLOYMENT TRIBUNALS
Case No 1306234/2024
Between
Mr G C IazdiClaimantGrayson Automotive Services LtdRespondent
Before
Employment Judge FloodIn person for claimantMr Cooper (instructed by Solicitor) for respondentDate 29 January 2026
JUDGMENT
[1]The complaint of unfair dismissal (contrary to section 94 Employment Rights Act 1996 (‘ERA’)) is dismissed because the claimant did not have the required period of qualifying service under section 108 ERA (2 years) to bring such a complaint.[2]The complaint of breach of contract (wrongful dismissal) in relation to notice pay is not well-founded and is dismissed.[3]The complaints of direct race discrimination (contrary to section 13 of the Equality Act 2010) are not well founded and are dismissed.
REASONS
[1]By a claim form presented on 25 June 2024, the claimant brought complaints of unfair dismissal and race discrimination and ticked boxes indicated that he was making a claim related to whistleblowing, notice pay and other payments. The claim form alleged that he had not been provided with access to uniform and PPE like other employees. He also referred to two incidents where an argument had occurred and after that he had been dismissed without notice which he considered unfair and a breach of contract. In the narrative part of his claim form he did not make any allegations that what had occurred was because of his race. On 1 July 2024, before the claim was accepted and served, the claimant was asked by the Tribunal to clarify whether he was making a whistleblowing claim and to set out what the basis of his discrimination claim was. On 12 July 2024, the claimant confirmed that he was not making a whistleblowing claim and had ticked this box in error. He explained that the acts of discrimination complained of were access to PPE and uniform.[2]The respondent defended the claim on the basis that the claimant had been dismissed on the grounds of gross misconduct.[3]There was a preliminary hearing for case management before Employment Judge Kelly on 16 December 2024 where particulars of the complaints the claimant wished to bring were discussed. A list of issues in dispute was produced, and these were included in a case management orders sent to the parties on 18 December 2024. These are set out below and were referred to at the start of and during the hearing.[4]The Tribunal had the assistance of Miss Frota as Portuguese interpreter on the first day and Ms Rodrigues who took on that role on the second and third days. Both were sworn in and undertook translations as and when requested by the claimant and the Tribunal to assist the parties.[5]At the start of the hearing the position in relation to the complaint of unfair dismissal was clarified. The claimant had insufficient service under section 108 of the Employment Rights Act 1996 (‘ERA’) to bring such a complaint. There was no dispute that he was only employed from April 2024 until 16 May 2024 and no suggestion was made that the dismissal was because of one of reasons set out in section 99 to 105 of the ERA. The unfair dismissal claim was therefore dismissed because the claimant did not have the required period of qualifying service under section 108 ERA (2 years) to bring such a complaint. Documents before the Tribunal[6]An agreed bundle of documents was produced for the hearing and where page numbers are referred to below, these are references to page numbers in the bundle. At the beginning of the hearing the claimant said he had some additional documents he wanted to add which appeared to be correspondence between him and the respondent’s solicitor. Following a discussion with the respondent during the reading break, the claimant confirmed these would not need to be submitted. These documents in some cases were without prejudice communications, and should not be seen by the Tribunal.[7]On the second day of the Tribunal the respondent produced a number of documents which it said had been discovered following the previous days hearing when the matter arose during the claimant’s evidence. These were a multiple-choice assessment and training document for manual handling completed by the claimant and signed by him on 17 April 2024 together with a certificate of achievement noting completion of a theory and practical assessment on manual handling and an open discussion and presentation on health and safety on the same date. There was also a tick box sheet headed Health and Safety employee record of induction. The claimant objected to the admission of these documents. The Tribunal determined that it was relevant and necessary for the fair disposal of the proceedings for such documents to be admitted as the attendance or otherwise of the claimant at an induction process was a matter in dispute. The Tribunal was satisfied that this dispute only came up in evidence the day before which explained why they had not been disclosed earlier. The claimant was given the opportunity to review these documents and was recalled as a witness to give his evidence in relation to these documents.[8]On the third day of the hearing, all remaining complaints were dismissed by way of an oral judgment delivered to the parties.[9]The respondent made an application for costs to be awarded against the claimant and submitted a copy of a costs warning letter sent to the claimant in August 2025. The matter was listed for a separate cost hearing and directions were made.[10]The claimant made a request for written reasons on 30 January 2026. Due to an particularly heavy caseload, it has not been possible to produce such reasons until now. The Tribunal apologises to the parties for the delay.
The Issues
[11]The issues to be determined by the Tribunal were as follows: Wrongful dismissal I Notice pay. 57. It is agreed that the notice period was one week.57.1 It is agreed that the claimant was not paid for that notice period. He worked a 37.5 hour week at £14 per hour, being £525 per week gross.57.2 Was the claimant guilty of gross misconduct? The respondent relies on the claimant's actions on 15 May 2024 when he acted aggressively to team members and his actions on 16 May 2024 when it says he was aggressive and intimidating to managers. Remedy issue.57.3 Did the claimant/respondent unreasonably fail to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures by failing to raise a complaint of failure to pay notice pay internally/failing to address the respondent's complaint.57.3.1 If so, is it just and equitable decrease/increase any award payable to the claimant?57.3.2 If so, by what proportion, up to 25%? Direct race discrimination (Equality Act 2010 section 13) 58. The claimant identifies as Mixed Brazilian. 59. Did the respondent do the following things: 59.1 Failed to provide the claimant with an electronic pin to allow him to access uniform and PPE when he became an employee, which the claimant says was 1 1 Apr 2024 and the respondent says was 22 April 2024. The claimant says he was given a Pin, but no-one told him that it should be used to get uniform and PPE. He was only told it was for clocking in and out. He says he did not have access to uniform and PPE as he should have had. He was never issued with a uniform. He was never given PPE in the way he should have had access but had to beg the production leader for it. He compares himself with Dean who is White British who started a week after the claimant and was given the Pin to access uniform and PPE. 59.1.1The respondent says PPE is available to all staff without a Pin and that the Pin for uniform was issued to the claimant on 22 Apr 2024 on his first day of permanent employment. 59.1.2 On 16 May 2024, regarding an incident in the car park: The claimant was in the process of rear parking his car. Two managers stood in front of the car talking. The claimant asked them to move so he could finish parking his car properly. The managers walked in an aggressive manner to the driver's door (IE quickly) and shouted aggressively, 'What's your problem?' The claimant responded that he was trying to park his car properly and they were stopping him doing that by standing in front of the car. The managers then went into the building and gave a different version of what had happened, lying (which led or contributed to the claimant’s dismissal). The claimant compares himself to the managers who are White British. 59.1.3 Dismissed the claimant on 16 May 2024. The claimant acknowledged that it dismissed the claimant but said it was for gross misconduct as above. 60. Was that less favourable treatment?60.1 The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant's.60.2 If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated.60.3 The claimant says they were treated worse than Dean and the managers in the car park and, also, in respect of allegations 2 and 3, as a theoretical comparator.60.4 If so, was it because of race? Remedy for discrimination 61. Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend? 62. What financial losses has the discrimination caused the claimant? 63. Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job? 64. If not, for what period of loss should the claimant be compensated? 65. What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that? 66. Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that? The claimant says he suffered burns to be hands because the failure to supply PPE. 67. Is there a chance that the claimant's employment would have ended in any event? Should their compensation be reduced as a result? (See Chagger v Abbey National Pic [2010] ICR 397, CA). 68. Did the claimant unreasonably fail to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures by failing to raise a complaint of discrimination internally?68.1 If so is it just and equitable decrease any award payable to the claimant?68.2 If so, by what proportion, up to 25%?68.3 Did the respondent unreasonably fail to comply with the ACAS Code of Practice on Disciplinary Procedures?68.4 If so is it just and equitable decrease any award payable to the claimant?68.5 Should interest be awarded? How much?
Findings of Fact
[12]In the judgment, the Tribunal has on occasion used initials to identify the people listed below rather than their full names in the interests of brevity. Other terms used may also be defined in a similar manner through the judgment. Witnesses and other individuals[13]The following people attended to give evidence on behalf of the claimant: 13.1.1 The claimant (‘C’)[14]The following people attended to give evidence on behalf of the respondent:14.1.1 Ms K Bennett (‘KB’) HR Manager;14.1.2 Ms L O’Rourke (‘LOR‘), Production Manager.[15]The following individuals were referred to during the evidence:15.1.1 Mr L Chambers (‘LC’), Production Supervisor15.1.2 Mr M Edgington (‘ME’), Production Supervisor15.1.3 Mr S Campbell (‘SC’), Production Operative15.1.4 Mr S Hadley (‘SH’), Production Operative15.1.5 Mr A Raymond (‘AR’), Production Operative15.1.6 Mr D Sheldrake (‘DS’), Production Manager15.1.7 Mr A Taylor (‘AT’) Production Manager15.1.8 Mr S Jackson (‘SJ’) Health and Safety Manager15.1.9 Ms M Hitchens (‘MH’) HR Administrator Credibility[16]Mr Cooper for R asked the Tribunal to find that C was not a credible witness, pointing to his account on the induction carried out and of what was said during the dismissal meeting to support this. He contends that R’s witnesses were credible, forthright and untainted of any discriminatory agenda. The Tribunal found that on some matters C was credible and in particular his evidence that he had not actually known or understood the position about the use of the PIN in relation to the vend machine, albeit this was been communicated to him. However on other matters his account was less reliable and in particular about what was said and done in the incident in the car park and his reactions during the dismissal meeting. The Tribunal finds that this is explained by his high emotional and agitated state on these occasions. He lost control of his emotions and may have said and done things in anger and bravado that were not intended. He now cannot recall these matters, finds it difficult to accept he could have said them and would regret having said them. R’s witnesses were straightforward and highly credible. There were contemporaneous records of the events and C admits he was aggressive and that he overreacted. It is hard to know what caused C to behave as he did on those 2 days which appeared to be out of character and also does not accord with the way he presented during this Tribunal hearing which was calm and polite at all times.[17]In order to determine the issues, it was not necessary to make findings on all the matters heard in evidence. The Tribunal has made findings though not only on allegations made as specific discrimination complaints but on other relevant matters raised as background. These findings may have been relevant to drawing inferences and conclusions. We made the following findings of fact on the balance of probability:17.1 R is a manufacturer and supplier of components for heavy vehicles and machinery and has its head office and factory at Wharfdale House, in Tyseley in Birmingham.17.2 C started work as a production operative (pipe fitter/welder) at R initially as an agency worker via the employment agency Proactive Personnel from 15 January 2024. His duties included soldering, brazing, cutting and threading copper pipework and valves using a propane gas torch to fabricate kits for use in heavy vehicles and machinery.17.3 C had performed well and LOR decided that he would be taken on as an employee and was offered a permanent contract with R. He was informed of this and was issued with a contract of employment with a start date of 8 April 2024 which he signed on 11 April 2024 (pages 33- 40). The contract confirmed that it was subject to the successful completion of a probationary period of 6 months. During that probationary period, the notice period required in order to terminate employment on either side was 1 week. The contract also contained a provision stating that it reserved the right to terminate without notice of pay in lieu of notice in the event of a breach of contract or gross misconduct.17.4 The start date of the contract was then subsequently changed to 22 April 2024. KB explained that this was because C had not completed 13 weeks of agency work by this time (as he had been off for 2 of those weeks) and so the start date of permanent employment had to be changed. R’s policy at the time was to convert temporary workers to employees once they had successfully done 13 weeks with the agency. C signed an addendum to his contract of employment with a date of 22 April 2024 on 16 April 2024 (page 41). Alleged induction17.5 R contended all new starters whether employed direct or transferring from agency working, attended induction training. This generally took place on the first day of employment and consisted of a 1-hour HR induction starting at 9am. During this meeting KB said that the new starter would be issued with the HR PIN or employee id. This was created automatically on its system upon completion of contractual documentation for a new employee. She explained that this PIN is for use to access the HR systems to book holidays, change personal details and that this PIN can also be used for R’s clocking in system. The PIN was also something that was used to access R’s VEND machine. This was a large type of vending machine operated and maintained by external suppliers, Cromwell. It had supplies of personal protective equipment (‘PPE’) inside it which could be accessed by all employees who had a PIN. This machine also had a screen which allowed employees to order items of uniform in the appropriate size which would be delivered within 48 hours of request. This was accessible to employees only and agency workers would wear plain black clothing whilst performing duties and would be issued with the relevant PPE by their supervisor or manager. She explained that this is a large machine which was the width of the Tribunal room and could not be missed.17.6 The employee would also provide their bank details during the HR induction so that these can be loaded on to the system to make sure the employee is paid. She explained that PPE is only touched on briefly during this induction as it is then followed by a 3-hour health and safety induction which generally starts straight after, at 10am. During this session she said PPE was discussed at great length and new employees are shown around, shown the clock in machine, the canteen and the VEND machine.17.7 KB also gave evidence that MH the HR administrator conducted the HR induction for C. It had been suggested that C had attended his induction on his first day on 22 April 2024.17.8 C alleged he never attended any HR induction. He gave evidence that there was no training or induction, but when he was moved from a temporary to permanent contract he was called into the HR room and asked him to sign the contract (which happened on two occasions due to his start date changing). He acknowledged that he had been issued with the PIN number, and he was told that he could use this to clock in and out. He contended he had never seen the VEND machine and only got to know about it when a colleague called Dean told him about it 4 or 5 days before he was dismissed. C said he became upset when he found out about this and was going to raise it with managers but never got the opportunity to do so.17.9 R produced documents on the second day consisting of attendance records for C suggesting he had been involved in a health and safety induction and manual handling process on 17 April 2024. R had originally contended this was on 22 April 2024 but accepted that it was on 17 April 2024 which although was before the start date of the permanent contract, was in anticipation of C starting his permanent contract on that date. They explained the discrepancy because the original intention was that he started on an earlier date.17.10 C recalled attending the manual handling health and safety training (mentioning it was about moving items around) and accepted that he signed the documents to show his attendance. In relation to the general induction he said he was just asked to tick the boxes and sign the form but also stated, “I did not pay attention to it”. C continued to maintain that he was not informed about the use of the VEND machine in relation to PPE or uniform and was unaware of this.17.11 The Tribunal finds that C attended an induction on health and safety on 17 April 2024, as evidenced by the attendance sheets completed which include his signature and handwriting. It also finds that C must have been provided with some information about how PPE is made available during this induction process as evidenced by the ticked box on the general record of induction form. However the Tribunal also accepts that for whatever reason C failed to appreciate or understand the exact process for obtaining PPE that was explained to him. He acknowledged in evidence that he did not pay attention to the documents he was signing.17.12 In relation to the HR induction, there was no similar checklist to show attendance on a particular date and what was discussed (which would have resolved the matter and might be something R wishes to adopt in future). However the Tribunal finds it is more likely than not that C did attend at least a brief form of induction with HR, and this took place on 16 April 2024. This is the date that C signed the updated version of his contract (page 41) and C recalls going to the HR room to sign this. We were also shown an e mail from MH to their VEND supplier, Cromwell on 15 April 2024 (page 42) asking for C’s PIN to be added to the VEND. C was clearly aware of his PIN number and that this could be used for clocking in and clocking out. He must have provided his bank details to HR on this or an earlier occasion in order for his pay to be progressed. Therefore some communication was made to C about the wider use of the PIN number. However again C appears to have either not heard or has misunderstood what he was told about this, and we accept that for whatever reason he did not seem to be aware that he could order uniform items directly from the VEND. This is evidenced by the fact that C did not in fact order any uniform or access any PPE from the VEND machine in the weeks following 16/17 April until his dismissal.17.13 C gave evidence about issues he had with PPE and that he was using fabric gloves with a hole in it which resulted in him burning himself (and produced photographs to show this). He said when he raised this with his supervisor, ME that he was directed to a box of latex gloves under the desk which he said were unsuitable for the task. C never reported any burn that occurred at work to anyone at R. We accept that C in fact understood that he was required to access PPE via the VEND when his colleague Dean told him 4-5 days before he was dismissed. However this had been communicated to him before, albeit he had either misunderstood or forgotten what he was told. Incident on 15 May 202417.14 On 15 May 2024 C was involved in an altercation with some other employees on the factory floor, AR, SC and SH. C’s account was that the previous day AR had used his pipe cutter and then when C asked for it back, AR responded aggressively saying he did not know where it was and C later found it back in his took box. He said that AR then started to stare at him and laughed which C ignored. The next day, C said he was working at his station and felt something hit the top of his work boot. He said he turned around and saw AR with the rivet gun, and he was laughing in his direction, so he assumed AR had thrown the rivet at him. In his witness statement C said he approached AR and asked him to be more careful, but acknowledged in cross examination that he spoke loudly, was aggressive and lost a bit of control,17.15 Although we did not have any direct evidence from any of those present, LOR took statements from the others present which were shown at pages 55-61. The statements of AR, SC and SH broadly gave the same account that the three of them had their back to C and there was some laughing and joking as SH had been showing the others a process that AR found difficult. They then recall that C started shouting and waving his arms around behind them and stating that he could fight anyone who wanted it. They recalled C suggesting someone had thrown something at him. The accounts record that C’s comments etc were aimed at AR and that there was some pushing and shoving before ME intervened. ME and LC recorded in writing that they had first noticed C shouting and waving his arms around and then intervened to calm things down.17.16 The Tribunal finds on the balance of probabilities that C felt a rivet hit his boot and then when he turned round and saw AR with the rivet gun jumped to the conclusion that AR had thrown it at him. This may have been influenced by the events of the day before and also because the three people behind him were laughing at the time and C believed it was directed at him. However the Tribunal finds that no rivet was in fact thrown because of the location of those present who had their backs to C at the time. In addition, C did not actually see anyone throw the rivet. We find it is more likely that a rivet that was already on the floor was accidently sent in C’s direction when the three were moving around.17.17 The Tribunal finds that C reacted to this by becoming aggressive and accusing AR of throwing the rivet at him. C then made comments to the effect that he would fight anyone he wanted to. C acknowledged he lost control, became aggressive and shouted and the Tribunal finds that in this elevated and emotional state and believing he was being targeted by AR, he did make statements of this nature. The fact that the three people present all recorded this being said in contemporaneous statements is particularly persuasive. It is also a comment that rings true in the context of the argument that had erupted when C felt he had something deliberately thrown at him.17.18 It is not disputed that ME and LC intervened and walked C away from the situation towards LOR’s office where a discussion took place with C. LOR stated that ME and LC told her that C had suddenly become angry and started shouting at other operatives, mentioned that this was because something had been thrown at him. C did not deny what was said and LOR told him he should not be verbally abusive or threatening to colleagues. C, ME and LC then returned to the factory floor. LOR told us she asked C whether he wanted to go home to calm down but he said he didn’t. C denied this was done, but the Tribunal finds that it was and accepted LOR’s evidence and also because it is noted in the notes of meeting that took place the next day that this took place.17.19 LOR at the time concluded that no further action would be taken about this as she felt it was so out of character that it must be a one-off incident. Car Park Incident on 16 May 202417.20 The next morning an incident occurred in the car park when C arrived for work. C’s account of this in his witness statement was that when he arrived for work and attempted to park his car that two managers (AT and DS) were standing directly in front of his vehicle. He said he politely asked them to move but they reacted aggressively walking to his car and shouting ‘what’s your problem’. C then said he tried to explain but the situation then escalated. During cross examination he further added that he used his arm to signal that they move away from the car and that they did not like it and then came towards the car asking him in an aggressive manner what was going on. He said at this point he started talking to them aggressively. He acknowledged that he was aggressive but could not remember anything else that he or the others said after the argument started. The Tribunal also noted that C’s account of the incident as noted during the meeting held later that morning was that the managers were blocking his way and shouted at them to move out of his way as they were going to make him late. When asked whether he swore at them during this meeting, he did not comment but acknowledged he shouted.17.21 We did not have witness evidence from either AT or DS but have their accounts in e mails sent to LOR at 09:31 and 09:54 that morning. LOR asked for such accounts to be given after the matter had been reported to her. They give similar accounts of events. DS stated that he had stopped in the car park to speak to AT and that they then heard someone shouting at them. When they turned to look, he said that C told them to ‘fucking move’. He then said AT went over to the car to ask what was wrong and DS could see C speaking aggressively to AT. DA then said he went over and asked C who his manager was and C replied that it did not matter and that DS needed to be careful. AT stated that he had just parked when he saw C arrive and reverse at speed into the space two slots away from him. He then he then got out and went to speak to DS when C started waving his hands around in the car and when he approached the car C started shouting and saying AT had no brain and that he remained aggressive to both managers.17.22 LOR gave evidence that she was already in work when DS came to see her straight away and reported the incident stating that C had been abusive. She asked both managers to provide their account of events which they did.17.23 There is not a huge amount of dispute about what occurred that day, but the Tribunal finds that C arrived in a hurry that morning and pulled abruptly into a parking space. This is the account given by AT and C later references not wanting to be late. The Tribunal also finds that C perceived that AT and DS were in his way and preventing him from conducting his manoeuvre and parking correctly. It is not necessary to find as a fact whether they were obstructing him but it is clear that C strongly believed this. The Tribunal then finds that C reacted aggressively waving his arms and that he did shout and swear that they should get out of his way. Although the account shifted in the hearing to suggest that it was the managers who had been aggressive first, C’s account during the meeting that took place that same day admits he shouted first. The Tribunal finds that C was perhaps already anxious coming to work because of the events the previous day, was rushing to avoid being late and became angry that he felt he was being blocked from parking. He then very much overreacted and behaved aggressively shouting at the two managers. Dismissal meeting17.24 LOR discussed the matter with KB on her arrival at work and decided she needed to take action. She called C into a meeting room with her away from the production area and asked LC to attend too. LOR said she had selected LC as he had been working closely with C and was known to be very precise. LC made notes of the meeting which were shown at pages 64-67. During the Tribunal hearing C challenged the accuracy of the notes and stated that 60% of what was said in the meeting was not the truth. However we accept the submissions of R that C never challenged what was set out in the notes nor did he give a different account in his own witness statement despite having seen this document since March 2025 and the account in the witness statement since May 2025. The Tribunal accepts that the notes are an accurate summary of what was discussed in particular some of the comments which are striking and unlikely to have been misinterpreted or distorted as alleged.17.25 These record that C was informed it was a formal meeting and asked whether he would like a witness but said he did not. LOR then went on to read out the statements given by e mail by DS and AT. She then asked C for his interpretation of what happened in the car park when C said that the managers were blocking his way and as they were going to make him late, he shouted out to them to move out of the way. He was asked whether he swore, did not directly answer but stated as they would not move that he shouted at them. He acknowledged that they were questioning him and that he was not interested in what they were saying as he worked for LOR. The notes record LOR saying it was no way to speak to other members of staff and that he had been told this yesterday following the altercation and asked how he had gone from this yesterday to behave aggressively to managers. C is then recorded as saying that LOR did not like him and had it in for him and had given others t shirts and not him. She is then recorded saying this was not correct and it had taken R a long time to find and train him and they had given him a fulltime contract. It records a discussion with C saying LOR only spoke to him to tell him off and that he had not been given uniform and her explaining to him that once logged on to the system, C could order whatever uniform he wanted.17.26 LOR then is noted as informing C that staff members had to get along and follow the code of conduct. The notes then record C making the following statement, ‘You don’t know me, you don’t know what I am capable of and then being asked what he meant and LC asking why C was aiming everything at LOR who had offered him the chance to go home and calm down yesterday. It records LOR stating that she had been surprised by the last two days events as C had been compliant and quiet. C is then recorded as accusing LOR of lying about his start date and which point she explained the issue with his start date. C is then recorded as accusing LOR of having it in for him and walking around looking angry all the time and telling him off.17.27 She noted that C was getting angry and then is noted as having said. “At this point, I do not think there is any way we can move forward in a positive way. I do not know what has triggered the outbursts you have instigated in the last 24 hours. Not only have I discussed with other staff members / witnesses, who said yesterday's events came from no-where, I am now amazed that although you worked for the afternoon without further issue, you have come in today and again had a further altercation in the car park with two managers. Due to these breeches of the code of conduct Section 7; Disciplinary Procedure: Failed misconduct during your probation period. I have no alternative but to fail your 6 months probationary period, effective immediately. Your acts over the last 24 hours, consist of actual verbal abuse and threatened assault on any person. You will be paid any holiday or wages owing to you. You will now be escorted off site. Do you have any personal items still on the section?”17.28 C is then noted as saying that R could not get rid of him, and he knew his rights and again stated they did not know what he was capable of and that R would be sorry. He is then recorded as saying, “You really don't know who I am, my father is the head of the Brazilian Mafia, I will make sure you are dealt with. I will find out where you live.” He was then told to calm down and is noted as saying, You are stupid, when my father dies, I will take over and I will make you pay. At which point LOR is noted as saying that C could continue to rant and rave but that the decision had been made and C had not helped himself. She asked LC to escort C off site, which was then done. There was evidence about alleged vandalism but as this was not something this Tribunal needs to consider to determine the issues further, it is not necessary to make any findings about this.17.29 C’s dismissal was confirmed in writing on 16 May 2024 citing that he had been dismissed without notice by reason of gross misconduct, namely aggressive and threatening behaviour on two separate occasions. C was informed in this letter he had the right to appeal. No appeal was submitted.17.30 C commenced early conciliation in these proceedings on 16 May 2024 and his early conciliation certificate was issued by ACAS on 25 June 2024. He presented his claim form on 25 June 2024.
The Relevant Law
[18]The relevant sections of the EQA applicable to this claim are as follows: 4 The protected characteristics The following characteristics are protected characteristics: … race;” 13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.[23]Comparison by reference to circumstances(1) On a comparison of cases for the purposes of section 13....there must be no material difference between the circumstances relating to each case.” 136 Burden of proof(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. 19. The relevant authorities which we have considered on the direct discrimination and victimisation claims are as follows: Burrett v West Birmingham Health Authority 1994 IRLR 7, EAT is an example of the proposition that it is for the tribunal to decide as a matter of fact what is less favourable treatment and the test posed by the legislation is an objective one. The fact that a claimant believes that he or she has been treated less favourably does not of itself establish that there has been less favourable treatment, although the claimant’s perception of the effect of treatment is likely to be relevant as to whether, objectively, that treatment was less favourable. Anya v University of Oxford & Another [2001] IRLR 377 - it is necessary for the employment tribunal to look beyond any act in question to the general background evidence in order to consider whether prohibited factors have played a part in the employer’s judgment. This is particularly so when establishing unconscious factors. Igen v Wong and Others [2005] IRLR 258 The employment tribunal should go through a two-stage process, the first stage of which requires the claimant to prove facts which could establish that the respondent has committed an act of discrimination, after which, and only if the claimant has proved such facts, the respondent is required to establish on the balance of probabilities that it did not commit the unlawful act of discrimination. In concluding as to whether the claimant had established a prima facie case, the tribunal is to examine all the evidence provided by the respondent and the claimant. Madarrassy v Nomura International Ltd 2007 ICR 867 - the bare facts of the difference in protected characteristic and less favourable treatment is not “without more, sufficient material from which a tribunal could conclude, on balance of probabilities that the respondent” committed an act of unlawful discrimination”. There must be “something more”. Nagarajan v London Regional Transport [1999] IRLR 572, HL,-The crucial question in every case was, 'why the complainant received less favourable treatment … Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job?' Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48, [2001] IRLR 830, [2001] ICR 1065, HL, - The test is what was the reason why the alleged discriminator acted as they did? What, consciously or unconsciously was their reason? Looked at as a question of causation ('but for …'), it was an objective test. The anti-discrimination legislation required something different; the test should be subjective: 'Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.' Bahl v Law Society [2003] IRLR 640 – “where the alleged discriminator acts unreasonably then a tribunal will want to know why he has acted in that way. If he gives a non-discriminatory explanation which the tribunal considers to be honestly given, then that is likely to be a full answer to any discrimination claim. It need not be, because it is possible that he is subconsciously influenced by unlawful discriminatory considerations. But again, there should be proper evidence from which such an inference can be drawn. It cannot be enough merely that the victim is a member of a minority group. This would be to commit the error identified above in connection with the Zafar case: the inference of discrimination would be based on no more than the fact that others sometimes discriminate unlawfully against minority groups.” 20. In a claim for breach of contract, the question for the Tribunal is whether there has been a repudiatory breach of contract justifying summary dismissal. The degree of misconduct necessary in order for the employee’s behaviour to amount to a repudiatory breach of contract is a question of fact for the Tribunal to determine. The test set out in Neary and anor v Dean of Westminster [1999] IRLR 288 is that the conduct: “must so undermine the trust and confidence which is inherent in the particular contract of employment that the [employer] should no longer be required to retain [the employee] in his employment”. 21. In Briscoe v Lubrizol Ltd 2002 IRLR 607, CA, the Court of Appeal approved the test in Neary above and stated that the employee’s conduct should be viewed objectively, and so an employee can repudiate the contract even without an intention to do so. 22. In the case of West London Mental Health NHS Trust v. Chhabra [2014] IRLR 227, the Supreme Court confirmed that in order for misconduct to amount to gross misconduct there does need to be some sort of “wilful” or deliberate breach of the employee’s duties. 23. Mgubaegbu v Homerton University Hospital NHS Employment Foundation Trust UKEAT/0218/17 (18 May 2018, unreported) Choudhury J - the Tribunal must make its own findings of fact in relation to the breach in order to determine whether that breach was sufficiently serious to warrant immediate termination. Conclusion Claim for wrongful dismissal/notice pay.
Conclusion
[24]As set out in the list of issues at (paragraph 57) it is agreed that the notice period was one week and that C did not work and was not paid for his notice period. The issue this Tribunal has to determine is whether R was able to terminate C’s contract without notice i.e. as set out at paragraph 57.2 was C guilty of gross misconduct?[25]R relies on C’s actions on 15 May 2024 when he acted aggressively to team members and his actions on 16 May 2024 when it says he was aggressive and intimidating to managers. The Tribunal has found as a fact that C did act aggressively to team members and managers during the incidents on 15 and 16 May 2024 (see paragraphs 17.16- 17.18 and 17.23). C admits aggressive behaviour albeit he says that this was explained or excused in some manner and that in respect of 16 May 2024, the managers were aggressive to him first. However this does not change the fact that C behaved aggressively on two occasions within a very short time period to his colleagues. The Tribunal is satisfied that this took place and that this amounted to repudiatory contract justifying summary dismissal. Behaviour of this nature undermines the trust and confidence inherent in the contract of employment such that the employer should not longer be required to retain the employee in their employment. Acting in this manner is clearly a wilful and deliberate act and was sufficiently serious to warrant immediate termination of contract. It is still unclear what caused C to lose control of his emotions and act in such an apparently uncharacteristic aggressive and threatening manner on these two days. The Tribunal accepts he may have been unhappy at work and felt he could not approach managers. He may have felt frustrated by his view that he was being excluded from accessing uniform. He believed he was being laughed at by colleagues and that things were being thrown at him. He lost his temper and control of his emotions on 15 May 2024 and that incident alone could have led to his dismissal. However, R was prepared to overlook it as out of character. However the incident the very next morning really made it difficult for R not to take action. C may well have been stressed as to what happened the day previously, that he was running late and felt he was being obstructed. However his behaviour in the car park was completely out of proportion to any perceived slight. C lost control and again behaved aggressively. His further threatening behaviour during the meeting that morning really left R with little choice. The claim for breach of contract and thus wrongful dismissal is not well founded and is dismissed. EQA, section 13: direct discrimination because of race[26]In order to decide the complaints of direct disability discrimination, we had to determine whether R subjected C to the treatment complained of and then go on to decide whether any of this was “less favourable treatment”, (i.e. did R treat C as alleged less favourably than it treated or would have treated others (“comparators”) in not materially different circumstances). We had to decide whether any such less favourable treatment was because of C’s race as mixed Brazilian.[27]We applied the two-stage burden of proof referred to above. We first considered whether C had proved facts from which, if unexplained, we could conclude that the treatment was because of race. The next stage was to consider whether R had proved that the treatment was in no sense whatsoever because of race.[28]It is clear that C perceives that he as a non-British employee working in R was treated differently to others. He appears to genuinely hold this belief. However in all instances for us to reach the conclusion that C has been subjected to such discrimination, there must be evidence, although it is possible that evidence could be inferences drawn from relevant circumstances. A belief, that there has been unlawful discrimination, however strongly held is not enough. We set out below our conclusions on these matters for each allegation listed in the List of Issues above with reference to each. Paragraph 59.1 - Failed to provide the claimant with an electronic pin to allow him to access uniform and PPE when he became an employee. The claimant says he was given a Pin, but no-one told him that it should be used to get uniform and PPE. He was only told it was for clocking in and out. He says he did not have access to uniform and PPE as he should have had. He was never issued with a uniform. He was never given PPE in the way he should have had access but had to beg the production leader for it. He compares himself with Dean who is White British who started a week after the claimant and was given the Pin to access uniform and PPE.[29]The Tribunal refers to its findings of fact at paragraphs 17.5 to 17.13. From the start of his permanent employment on 22 April 2024 C had an electronic PIN or employee ID that allowed him to access uniform and PPE via R’s VEND machine. The only issue really of note was whether this was communicated with someone informing him that the PIN allowed him to get PPE and order uniform from the machine. C was in fact unaware that this was the case, as evidenced by him not ordering any uniform or accessing the VEND machine at all during the period of his permanent employment. However the Tribunal is satisfied that this information was given to C during initial induction discussions. C may not have fully heard or understood what he was told (admitting he did not take much attention to what was being said) and clearly only took the message that the PIN was for clocking in and out.[30]In any event, we cannot conclude that anything that was done in terms of C’s access to his PIN, uniform or PPE or how this was communicated was in any way connected to his race. He points to Dean as a comparator and clearly Dean did understand the wider use of the PIN to access the VEND machine as he later told C of the process. There is nothing really to suggest that there was a deliberate attempt to not give C this information and there is nothing at all to suggest that this was in any way connected to race. The burden of proof has not passed to R as no evidence has been put forward at all to suggest the treatment could have been because of race. C relies on his general feeling that those who were non-British were treated less well than others, but this is really no more than an assertion on his behalf. R has a diverse workforce. C was initially taken on as a temporary worker but given a permanent contract which does not suggest a discriminatory motivation in respect to him. This claim of direct race discrimination is dismissed. Paragraph 59.1.2 On 16 May 2024, regarding an incident in the car park: The claimant was in the process of rear parking his car. Two managers stood in front of the car talking. The claimant asked them to move so he could finish parking his car properly. The managers walked in an aggressive manner to the driver's door (IE quickly) and shouted aggressively, 'What's your problem?' The claimant responded that he was trying to park his car properly and they were stopping him doing that by standing in front of the car. The managers then went into the building and gave a different version of what had happened, lying (which led or contributed to the claimant’s dismissal). The claimant compares himself to the managers who are White British.[31]The essence of this complaint appears to be that the conduct of the managers in the car park and their reporting of this LOR was less favourable treatment on the grounds of race. As per findings of fact at paragraphs 17.20 to 17.23, the two managers had not acted aggressively but were standing talking and C felt they had prevented him parking. There is no evidence at all to suggest that the two managers were motivated by C’s race in the way they acted in the car park nor in the way they reported the matter to LOR. Their actions in reporting the matter and then providing an e mail account were proportionate and reasonable. The accounts given are corroborative and C accepts much of what was said. It also appears that C is complaining of being invited to a disciplinary meeting (ultimately leading to his dismissal) and says this is less favourable treatment when compared to the two managers and their involvement in the matter. He seemed to be suggesting during the hearing that the managers’ actions in standing having a conversation in the car park should have led to disciplinary action being taken against them. The Tribunal concludes that C behaving in an aggressive and threatening manner in the car park and the managers’ actions in simply standing having a conversation is in no way comparable. There was no less favourable treatment. In addition neither the actions of the managers on that date or the actions of LOR in holding this meeting was connected to race. C has adduced no evidence to suggest this was the case. Accordingly the claim is dismissed. 59.1.3 Dismissed the claimant on 16 May 2024.[32]We refer to our findings of fact at paragraphs 17.24 to 17.27 and conclusions on the breach of contract complaint above. C was dismissed as a result of his aggressive behaviour on two consecutive days which amounted to gross misconduct. He has not adduced any evidence whatsoever that any other person in a similar situation, but who was not of his race would not have been treated in the same manner. We conclude that a comparator would not have been treated differently. Any other employee of a different race who behaved as C did would also have been dismissed. There was no less favourable treatment and no evidence to suggest race played any part. This allegation fails and the complaint is dismissed.