Ms J Jones v Tesco Stores Limited: 1401052/2016
JUDGMENT
[1]The Claimant’s complaints of constructive unfair dismissal, discrimination on the grounds of sex, victimisation, breach of contract, unpaid holiday pay and unlawful deductions from wages are all dismissed.[8]Heard at: Bristol On: 19, 22, 23, 24 and 25 May 2017REASONS
[1]By a claim dated 24 June 2016 the claimant brought complaints of unfair dismissal, constructive unfair dismissal, discrimination on the grounds of sex, breach of contract, unpaid holiday pay and unlawful deductions from wages.[2]In determining those claims we heard oral evidence from the claimant herself and from Mr Howells her partner. On behalf of the respondent we heard from Mr Bolton, the Transport Team Manager, Mr Legg, another Transport Team Manager, Mr McKenzie, Transport Manager and Mrs Dowding, formerly the respondent’s People Manager.[3]We received the following documents: C1 a bundle of supplementary documents supplied by the claimant C2 the claimant’s written closing submissions R1 the respondent’s bundle of documents for the hearing[4]We also read the witness statements of Mr Smith, a friend and former colleague of the claimant whose evidence was not challenged by Mr Holloway on behalf of the respondent.The Issues
[5]It is clear that the Tribunal had struggled to identify the issues which the claimant had wanted to be determined. Her several further and better particulars of 22 September, 28 October and 31 October 2016 perhaps did more to more to perplex than to clarify many of the allegations included in a table of allegations of 31 October were new in the sense that they haven’t been included in her original claim form and they were ultimately not proceeded with when the matters were discussed at a case management preliminary hearing which took place on 12 December 2016. See in particular paragraph 22 and 23 of Employment Judge Pirani’s Case Management Summary.[6]The issues were discussed at four case management preliminary hearings in total between 8 September 2016 and 24 March 2017 and were recorded as follows:[7]In relation to the complaints of discrimination on the grounds of sex there were complaints of direct discrimination which are set out between paragraphs 26(1) and 26(4) of the Case Management Summary of 12 December 2016 they had been extracted from a table of allegations which appeared at pages 58 and 59 of the bundle which was before the Employment Judge at that preliminary hearing. There was a further complaint of victimisation to determine under Section 27 of the Equality Act the protected acts were said to be the claimant’s grievance and her grievance appeal dated 13 August and 21 November 2015 which were in the hearing bundle R1 at pages 88 A – B and 88 D – E respectively.[8]Mr Holloway on behalf of the respondent accepted that they were protected acts.[9]The detriment that the claimant complained of was the issuing of the final written warning on 2 March 2016. Before leaving the complaints under the Equality Act it was worth noting that there were no complaints of harassment under Section 26 and that the respondent was not running the statutory defence under Section 109(4).[10]In relation to the complaint of constructive unfair dismissal the implied term of trust and confidence was relied upon, the breaches were the complaints of detriment under Section 13 and 27 (see paragraph 27 of the Case Management Summary of 12 December 2016) and the respondent was not attempting to run a fair reason for dismissal under Section 98(4) of the Act (see paragraph 12 of the Case Management Summary of 8 September 2016).[11]In relation to the complaint of breach of contract that related to the claimant’s notice.[12]I relation to the complaint of unpaid holiday pay the claimant alleged that she was owed 1½ days (see paragraph 18 of the Case Management Summary of 8 September 2016 and finally in relation to the unlawful deductions from wages claims there were three in total. The first concerned a period of eight days alleged unpaid Company sick pay, the second concerned an alleged £50 fleet board prize, the third concerned turn around bonus. These were all identified within paragraphs 13 – 16 of the Case Management Summary of 8 September 2016.[13]There were two points about the hearing. At the start of the hearing the claimant raised concerns that four new documents had been produced by the respondent for inclusion in the bundle on the first day. They were notes taken by Ms Brown dated 26 February 2016, and email from Miss Tollett dated 6 April 2016, the claimant’s letter to the respondent’s CEO dated 26 March 2016 and a letter to the claimant from Miss Brown dated 7 April 2016.[14]Although the claimant had no objection to the inclusion of the last two of those documents in the hearing bundle she maintained that she had never seen the first two before and that even though there had been redacted by the respondent she believed that they were top heavy which we understood to mean that she felt they painted an unfair picture of the events following the redactions particularly since the authors were not being called by the respondent as witnesses.[15]Mr Holloway on behalf of the respondent explained that the documents had been redacted to conceal the without prejudice matters but it was not clear to the Tribunal whether even in their redacted form they complied with Section 111A of the Employment Rights Act which prevented us from not only hearing evidence about any offers that might have been made but extended to cover any discussions that might have been held to that end in respect of the complaint of constructive unfair dismissal.[16]Mr Holloway made the point at Section 111A did not apply to complaints of discrimination but the complaints of victimisation and direct discrimination in this case did not concern the resignation but rather the issuing of a final written warning and it was difficult for us to see how any pre termination negotiations might have been relevant to those discrimination issues. We express some surprise and dismay that this issue had not been raised before particularly as the Judge had conducted the case management preliminary hearing on 24 March when issues over the hearing bundle had been discussed but when this issue had not been raised. Accordingly since we were not satisfied that even in their redacted form the documents complied with Section 111A since the claimant was clearly upset about the prospect of such documents being included without the authors present, since they had been produced so late and since their relevance to any other issues was unclear we were not prepared to admit them in evidence and therefore did not need to consider the nature and extent of any redactions that were made. We did not see the documents.[17]Since the third and fourth document fell into the same category as the first and second the parties agreed that they should not be put before us either. Further, the claimant accepted that pages 87 and 91 of her supplemental bundle C1 were also documents of the same type. We had not seen or read them and they were also removed before we could do so on the parties’ agreement.[18]The other point that needs to be made in relation to the hearing was this during the course of the claimant’s evidence it became clear that she possessed further relevant disclosure which concerned issues of remedy which may have been relevant to the reason for her resignation. Their production was ordered by us since it became apparent that documents existed which were relevant and some disclosure was made and added to the bundle at pages 208 and 209 of R1.[19]We now come to the facts that we found. We have reached our factual conclusions on the balance of probabilities, we have only reached factual findings in relation to matters which were relevant to a determination of the issues and that point needs to be stressed because there did appear to be an awful lot of peripheral material that was presented to us. Any pages numbers that we will give are to pages within the bundle R1 unless otherwise indicated.[20]The respondent is a well known supermarket chain the events n this claim concerned its Avonmouth distribution centre near Bristol. The distribution centre covers the south and west of Wales and down to the south coast of England and over as far as Lands End.[21]At the material time at Avonmouth there were a total of eleven Transport Team Managers (TTM) which included Mr Legg and Mr Bolton. Most of the TTMs had been drivers before they had been managers. Above them was the Transport Manager Mr McKenzie. There are approximately 220 drivers that they over saw only four or five of whom were women at the Avonmouth distribution centre.[22]In terms of the HR or Personnel function on site there was one dedicated member of staff Mrs Douding. Above her was a stream manager in HR Mrs Brown. Drivers routes were calculated centrally by software with other logistics Companies use widely called Paragon. Once a route was created the distribution centre locally allocated a driver to it. At Avonmouth the local Union agreement meant that drivers would not be allocated routes with calculated lengths of more than eleven hours. On board a further system called Microlise tract and recored a driver’s route and fed information back to the distribution centre about it. The panel that Microlise operated through was similar to the one in a driver’s cab shown in a photograph on page 75.[23]Amongst the respondent’s policies we were referred to its disciplinary policy at pages 70 – 72 although the first page was apparently from the Union’s version of it. The drivers out of hours policy at page 73 and the security guidelines for parking off site at page 74. We will refer to paragraphs or extracts from those policies as and if necessary.[24]Oddly, considering the nature of this case no equality opportunities policy was produced to us nor was evidence lead about the extent to which managers or employees were trained on such matters.[25]The claimant was employed from January 2011 as a Large Goods Vehicle Driver. As a driver she was subjected to rules relating to drivers’ hours including a 15 hour maximum shift and tachograph rules which also limited her driving time. The claimant’s Line Manager was Ms Dodd one of the TTMs at the Avonmouth distribution centre until June 2015 when it became Mr Legg.[26]Like other drivers the claimant regarded some of the routes she was allocated as having been unrealistic. Due to delays, breakdown and other unforeseen events there were occasions when drivers run out of hours whilst partway through a route. In such circumstances the claimant accepted that the expectations were generally that they would obtain a lift back by taxi and a relief driver would recover the vehicle or they would obrain a hotel or they would sleep on board or take a rest on board. On two occasions prior to the material events the claimant had previously run out of hours because of breakdowns. On the first occasion she booked herself into a hotel. On the second occasion she was picked up by Mr Howells her partner and work colleague and taken home.[27]The Fleet Board Prize. A fleet board score is a score produced by each vehicle’s recording system which reflects how smoothly it is driven. In late 2014 Mr McKenzie decided to award £50 of his own money to the driver with the best fleet board score. A man was the first winner. However, Mr McKenzie was soon criticised for establishing the prize because the Union’s felt that it was not good for moral for those who did less well. On more than one occasion it appeared, the claimant achieved the best fleet board score but by then the prize was no longer available having been withdrawn in late 2014 or early 2015 as a result of the Union’s criticism. It is quite clear to us that the claimant’s driving was broadly regarded as excellent (see page 78 or page 3 of the claimant’s bundle C1) but it was also quite clear that the prize was withdrawn because of Union pressure before the claimant had achieved the best score.[28]Background regarding Mr Reece. The claimant asserted that she had been harassed by Mr Reece a Shunter. Amongst other things he had sent explicit photographs of himself to her. In September 2014 the claimant raised a complaint against him which was treated by the respondent as a grievance. At a meeting in which her complaint was discussed she admitted to having sent images of herself to him. Mrs Dowding had the clear view that the claimant and Mr Reece had been in a relationship which had then ended. The claimant pursued her complaint to a further hearing which seems to have been regarded as an appeal in 2014. At the start of 2015 things seemed to have quietened down until March when she raised further allegations against him. In April 2015 Mr Reece was interviewed again but denied any recent contact with the claimant.[29]On 21 May the claimant’s complaints ultimately resulted in an outcome letter from Ms Brown at page C1 27 – 28. A number of things were offered to her. She was given the option of moving to the Magor distribution centre. She did in fact move on a trial basis before returning to Avonmouth. She was given the option of counselling through the respondent’s Occupational Health Department which she declined. She was given the option of having her shifts changed so as to avoid overlap with Mr Reece. It appears that that option was put into effect as was the claimant’s desire to undertake longer shifts to prevent her from returning to the distribution centre more often than might otherwise have been the case. The claimant was also given the option of a new manager which she took that was when Mr Legg became her new Line Manager as TTM.[30]The claimant made further allegations against Mr Reece into the latter part of 2015 including that he had deliberately driven his truck at her. Mr Williams an external Manager considered those allegations and reviewed the evidence including CCTV footage and dismissed the complaint. We were invited to draw inferences of discrimination in relation to those events.[31]Background and information issue in relation to Mr Chester. On 19 October 2015 the claimant alleged that she had been rugby tackled by Mr Chester at work. Mr Chester was interviewed by Mr Legg he gave a very different account of having hugged the claimant in the presence of his wife. Mr Legg interviewed more than seven other employees who broadly corroborated Mr Chester’s account (pages C1 39 – 50). Mr Legg concluded that that the claimant had not been violently assaulted or rugby tackled by Mr Chester but that Mr Chester’s actions were nevertheless not necessarily appropriate.[32]What subsequently concerned Mr Smith who provided the written statement on behalf of the claimant which we read, was that Mr Chester did not take the matter seriously and was seen to hug other employees and started a Facebook page with photographs of those events under the title hug a troll which was Mr Chester’s apparent nick name. (Page C1 77). Again we were invited to draw inferences from this background information. We were told that the police had been involved in both issues concerning Mr Chester and Mr Reece but no formal action was taken in either case.[33]The training position. Whilst on a trial at the Magor distribution centre, the claimant applied for a training position. She wasn’t interviewed and she issued a grievance against Mr Powell who she considered had taken the adverse decision (pages 88 a – b). That grievance dated 13 August 2015 included allegations of discrimination and was the first protected act.[34]The grievance was partly upheld (page 88g) because it was found that as an employee who had been on a trial at Magor, she ought to have been interviewed for the job at least but the failure to do so had not been because of her sex. Mrs Dowding told us that there was a misunderstanding as to the claimant’s role at Magor whether she was a transferee or whether as an employee on a trial and that was the reason why she had not been interviewed. The claimant took her grievance to a second stage on 10 November (pages 88d – e). She repeated allegations of discrimination within that email and that was accepted by the respondents to have been her second protected act. That second stage grievance was not completed before the claimant’s ultimate resignation. It was then apparently then in Mr McKenzie’s hands.[35]The parking issue. At the heart of this case was an incident which occurred in the early hours of the 18 January 2016 which was a Monday. We heard a good deal of evidence about the issues which took place on that day and we have reached the following factual findings on the balance of probabilities.[36]On 17 January (the Sunday) the claimant was given a route into south and west Wales. She delivered to Llanethly then went to Cardigan. She had to finish be back at Avonmouth having also delivered to Ammanford by 5.00am which was the end of her maximum 15 hour working day and the Road Transport Working Time Regulations.[37]During the early part of her route she maintained contact with Ms Price who was the TCM who was then on duty. She called Avonmouth at 10:20 before she had reached Cardigan and she told the distribution centre that she was concerned about being late because she had been delayed at Llanethly. That conversation was recorded by her own cab camera and the transcript showed that the new TTM on duty Mr Bolton was keen for her to have made her drips nevertheless and that they would speak later. He was particularly keen that the claimant went to Ammanford because that was one of the respondent’s .com stores and that there were certain KPIs against which its performance were measured. The conversation is at page 97 of the bundle.[38]The claimant then dropped at Cardigan and spoke to Mr Bolton again at 1:20am as she was leaving. It was agreed that he wanted the claimant to continue to Ammanford knowing that she may well then run out of time. There was a broad discussion about the possibility of her being picked up at Chepstow if she had run out of time on her return. Shortly after 1:20 Mr Howells the claimant’s partner and work colleague also phoned Mr Bolton. He remonstrated on her behalf. The claimant then dropped at Ammanford when she was there she called Mr Howells and arranged to be collected by him at a specific point because she realised then that she would not make it back to Avonmouth that was at 3:20am. During the claimant’s evidence she was very hesitant about that part of her account.[39]We were not able to understand how she could have predicted her whereabouts at 5.00am when she had spoken to Mr Howells at 3:20 given where she actually ended up. She did not then, or subsequently phone Avonmouth to arrange to be collected anywhere or to make any plans regarding her expected running out of hours. Instead she proceeded along the M4 and pulled off at junction 23A Magor. She did not then pull into Magor Services where there was a two hour free parking area or proceed for 1.74 miles to the respondent’s Magor distribution centre in the last five or six minutes that she had left (pages 137 and 119). Instead she drove to a lay-by opposite a brewery on a B road near Magor and parked her truck facing the direction of on coming traffic. The lay-by shoed certain photographs (page 184).[40]The respondent asserted that it was a bus stop and there clearly had been a bus stop sign erected there in 2011 (page 92) but that stop sign appears to have been removed by 2015 (page 93). There was nevertheless a raised kerb for bus passengers. Mr Bolton who had her vehicle and about a hundred others out on the road spotted that she had parked by about 5:30am. He did that by viewing the Microlise data that he had received. He did not then try to contact her because she was then on her rest.[41]During her evidence the claimant asserted that Mr Howells had contacted the distribution centre on her behalf after she had parked that was what was said in her claim form on page 7 but it wasn’t evidence that was set out in her statement. It wasn’t anything which Mr Howells gave evidence about in his own statement or during his oral evidence. It hadn’t been asserted by the claimant at any stage of the disciplinary process and it wasn’t put to Mr Bolton when he gave evidence. We did not therefore conclude that it was probable that such a call had in fact been made.[42]The claimant then was taken home by Mr Howells who had met her at the lay-by. They went straight back to Chepstow together. The claimant had the lorry’s keys.[43]The claimant then had two days rest Monday and Tuesday. She dropped the keys into the distribution centre nevertheless on Tuesday. She retuned to work on Wednesday 20 January. Meanwhile the vehicle had been recovered having been spotted on the road by another driver and reported to Mr McKenzie.[44]On 18 January Mr McKenzie heard about the events. He emailed all of his TTMs (pages 122 – 123). The email read as follows: “Good Evening I understand that Emily had some issues with her day on Sunday resulting in her having a night out in Magor. The truck was parked up opposite the Inn Bev Brewery on the side road – not a legally parking area and half a mile from Magor distribution centre. We have had no communication from Emily at all through the day. Our plan is to despatch a driver with the spare set of keys to the truck and bring it home. On Emily’s first shift back we need to conduct and investigation into the chain of events. My concerns are…(1) The amount of time Emily spends at stores wasting time. Please print off the debrief.(2) Why was the truck illegally parked?(3) Why have we had no communication from Emily as the plan to leave it there for few days?(4) Who did she speak to at the DC? Without pre-empting anything I am looking for a written warning at least for this driver’s poor conduct over this event. If anyone has anything to add please let me know asap”.[45]Ms Price who had been the TTM on duty at the start of the claimant’s shift set out her account of the events in an email back to Mr McKenzie (pages 121 – 122).[46]On 19 January Mr Bolton set out his account of the events in a detailed email as well (pages 120 – 121).[47]On 20 January the claimant was then invited to an investigatory meeting (page 124) but the following day she raised a grievance against Mr Bolton (page 125). She alleged that he had failed to consider her circumstances adequately which had given rise to the predicament on 17 and 18 January.[48]On 21 January the investigatory fact finding meeting took place. Mr Legg chaired it, he was not only her Line Manager but according to the respondent’s evidence he was the only manager that she indicated that she would deal with at that time. There was a dedicated note taker present and the claimant was supported by a Union representative Mrs Wall. (The notes are at pages 126 – 133).[49]Mr Legg considered the highway code with the claimant particularly those parts which related to parking on a road and the need not to face oncoming traffic (Rules 239 and 248 on pages 101 and 102). The claimant said that she had had her period and that that had been the problem and the reason why she had needed to get home. Mr Legg asked why she had not called the distribution centre. It was a question that had to be put on a number of occasions and it was one that he did not manage to get an answer to.[50]It was clear to us that the meeting produced new evidence. The claimant said that Mr Bolton had suggested a pick up at Chepstow that was not something contained in Mr Bolton’s account. She also said that she had contacted the distribution centre on about six occasions. She also said that a similar thing had happened to Mr Howells in the past. Mr Legg however, conducted no further enquiries or investigations into those matters and certainly none that were recorded.[51]There was a further investigatory fact finding meeting that took place on 10 February. It took some time for the hearing to be resumed because there were different shift patterns that the claimant and Mr Legg were on and that meeting on 10 February was a very short one (pages 139 – 140) which the claimant was simply informed that based upon what Mr Legg had discovered the matter was going to be passed on for consideration for the use of the disciplinary process.[52]The claimant alleged that Mr Legg had gone through the investigatory meeting minutes with Mr McKenzie before the next step in the process that was firmly denied by Mr Legg and we did not consider it likely to have occurred. It appeared to have been an assumption on the claimant’s part.[53]On 11 February the claimant was then invited to a disciplinary hearing to face three allegations (page 141) that she had parked illegally, that she had left a Company vehicle unattended and that she had failed to inform the distribution centre of the situation. She was not given anything more than the notes of her own investigatory meeting, she was not given copies of emails which formed the rest of the investigation from Mr Bolton and from Ms Price (pages 120 – 122) which Mr McKenzie had. Mr McKenzie also spoke to Mr Bolton before he conducted the disciplinary hearing but kept no record of the evidence that he gathered at that point and therefore did share any evidence with the claimant efore the hearing.[54]On 2 March the hearing took place. Mrs Wall was late, Mr Howells offered to represent her but Mr McKenzie was prepared to wait for Mrs Wall to arrive which she subsequently did. Mr McKenzie was also supported by a dedicated note taker (notes are at pages 142 – 147).[55]Mr McKenzie was particularly interested as to why the claimant had not used Magor services on the M4. The vehicle could have been parked both safely and legally and the claimant could have stayed at the hotel there or at least she could have stopped and called for the vehicle to have been collected or two hours of free parking to which we have already referred to at page 94. He was also curious to know why the claimant had not attempted to get the Magor distribution centre.[56]He was also concerned that the claimant had parked in what he considered to have been a bus stop and against the flow of traffic at night which he considered to have been in breach of the highway code.[57]He informed the claimant that he contacted Monmouthshire County Council who confirmed that the area was in use as an active bus stop but again no evidence from the claimant to that effect nor was any evidence produced to us. The claimant confirmed that she had not called Mr Bolton at the distribution centre again either as she travelled back on the M4 or as she neared Magor at the end of her driving time or after she had parked and left the vehicle. The claimant claimed that she had been delayed during her route, particularly at Llanethly, Mr McKenzie did not dispute that it was what she did at the end of her shift which concerned him. The claimant complained that no compassion had been shown to her over the fact that she had been menstruating. Mr McKenzie had informed her that she would receive a final written warning. Once told the claimant stood up, took of her uniform polar shirt to reveal another beneath it with a slogan which read “if you think I’m a bitch you should see my mother” she went to leave. Mr McKenzie asked her to sit down because the meeting had not ended. She was persuaded to sit down by Mrs Wall.[58]The meeting then concluded and she received confirmation of the final written warning (page 159) and a note was placed on her file (page 158).[59]On 6 March the claimant appealed (page 160 – 166). It was a long letter of appeal in which she made a number of allegations. Including the fact that she had parked in a recognised bus stop. It is worthy of note that during the entire disciplinary process the claimant never alleged that any decision had been taken against her because of her sex or because of the fact that she had committed protected acts.[60]We didn’t hear any evidence about the appeal. We understood that there were discussions about which we could not hear and because of certain documents having been removed from the bundle to which we have already referred. However, it was nevertheless clear that the claimant resigned with an effective date of termination of 26 March 2016.[61]After she left Mr Chester was given her old start time of 3:00pm. The claimant went straight into other work. She had an offer to work as a bus driver back in 2015 which she had not taken up. It had lapsed. However she said that she had reapplied for that job after 2 March 2016 and she was successful that was the evidence orally bit after her oral evidence had concluded the documents to which we have ready referred were produced on the third day of the hearing and page 208 rather suggested something to the contrary because the letter from First Bus showed that there had been an application and an offer and an acceptance all before the 2 March 2016. Neither the claimant nor the respondent applied to have the claimant recalled to deal with that apparent inconsistency.[62]Other matters to deal with include evidence of the comparators relied upon by the claimant. Mr Howells and/or Mr Moore and/or hypothetical comparators were relied upon and a number of other named drivers see paragraph 26 of the Case Management Summary on page 64).[63]In relation to Mr Howells we heard this. He stated that he had run out of hours and parked in a lay-by for nearly fifteen hours and had not contacted the distribution centre on an occasion yet nothing was done and no questions had been asked. He said that he had left his vehicle in a lay-by in Chepstow overnight. That occurred in 2013 or 2014 and there appeared to have been an understanding on the manager’s part at the distribution centre that the lorry would not have been returned until after his nine or eleven rest. Mr McKenzie had known nothing about it when he was asked to deal with that particular matter in evidence.[64]In relation to Mr Moore. Mr Moore was referred to in paragraph 26(3) of the Case Management Summary (page 64) but we heard very little evidence about the situation which he had been involved in save what was contained within four lines on page 9 of the claimant’s evidence. Again there was no evidence that Mr McKenzie had known of the alleged event. The claimant relied upon other male drives in relation to the allegation at paragraph 26(4) but there was no evidence given as to their circumstances.[65]In relation to holiday pay the claimant’s statement contained no evidence about this aspect of the case. At the end of the claimant’s employment the respondent calculated that she had accrued three days of holiday pay (pages 177 – 178). Because she actually left at the end of the financial year, the payment was made as an arrears payment on her May pay slip. There was also a deduction of three days pay to be made because the claimant did not work for three days covered by the last pay slips period (she didn’t work on 16, 17 and 18 March) and so the May pay slip was confusing on page 178 because it showed a credit of £271.58 for holiday pay “arrears SN” and a deduction of £271.56 for 25.5 hours which were not worked that was shown as a credit to basic pay. That was evidence that we received from Mrs Dowding.[66]Finally in relation to turnaround bonus. Part of the claimant’s case related to this bonus which was received in line with the respondent’s overall performance which it considered needed to have been turned around from previous years. However the bonus was only paid to those in employment on 23 May 2016 and only if they had been employed before the 31 August 2015 (see pages 87 – 88). The claimant of course, was not employed in May 2016 and so according to the respondent she was not eligible to have received the turn around bonus. This was again Mrs Dowding’s evidence. Oddly in her case however, she received a final unspecified arrears payment in a later June payslip that payment was only of £16.26 (page 181) and for some reason she also received a very small payment which was labelled a turnaround payment although she did not appear to have been entitled to it.[67]Those are the facts we now come to the conclusions that we have reached on the issues.[68]Direct Discrimination. Some of the claimant’s claims were brought under Section 13 of the Equality Act should written reasons be requested that Section will be set out in full. Protected characteristic of course that was relied on was her sex.[69]The comparison that we had to make was under Section 23 again which will be set out in full as will Section 136 which contains the burden of proof provisions which we have applied through the prison of the decision in the case of Igen v Wong [2005] WWCA Civ 142.[70]In order to trigger the reversal of the burden of the claimant needed to show either directly or by reasonable inference that a prohibited factor may have been the reason for the treatment alleged. She needs to establish more than a difference in treatment and a difference in protected characteristic before the burden would shift. The evidence needed to have been of a different quality but the claimant did not need to have to find positive evidence that the treatment had been on the alleged prohibited ground. The evidence from which reasonable inferences could be drawn might have sufficed. Unreasonable treatment of itself was generally a little helpful relevance when considering the test. The treatment ought to have been connected to the protected characteristic what we were looking for was whether there was evidence from which we could see, either directly or by reasonable inference that the claimant had been treated less favourably than others not of her sex, because of her sex. The test within Section 136 encouraged us to ignore the response explanation for any poor treatment until the second stage of the exercise. We were permitted however to take into account its factual evidence of the first stage but ignore explanations or evidence as to motive within it.[71]If we made clear findings of fact in relation to what had been allegedly discriminatory conduct the reverse burden within the act may have had little practical effect. When dealing with a number of discrimination allegations a Tribunal was permitted to go behind the first stage of the burden of proof test and step back to look at the issue holistically and look at the reasons why something happened. In the case of Shamoon v Royal Ulster Constabulary the House of Lords considered that in an appropriate case it might have been appropriate to consider the reason why some thing happened first in other words before addressing the treatment itself.[72]First in this case we considered the background information upon which the claimant relied namely the issues which concerned Mr Reece and Mr Chester and the issue which concerned the training position about which we heard very little evidence. We considered that whilst there was certainly incidents between the claimant and other employees which the respondent had had to address, there was no evidence from which we were able to conclude that its handling of those matters had been discriminatory. It was worth noting that Mr McKenzie had very little to do with them, yet he was the one who ultimately issued the final written warning about which the claimant really complained. It was also worth noting that the police had been involved in the situations which had arisen with Mr Reece and Mr Chester and had taken no formal action in either case.[73]Next we considered whether certain aspects of the disciplinary process could at least have raised an inference of discrimination. Mr McKenzie’s email of 18 January at pages 123 and 124 could have been read as a snap pre-empted Judgment. Even he said that it could have been worded better and Mrs Dowding clearly sought to distance herself from it.[74]There were also further flaws in the investigatory and disciplinary process which followed which the respondent’s witnesses candidly acknowledged. For example, the claimant had not been given a copy of Mr Bolton’s and Ms Prices’ email evidence. Mr McKenzie conducted enquiries with Monmouthshire County Council and Mr Bolton himself which were not recorded and shared with the claimant. Mr Leg did not investigate any of the new issues which she raised with him at the investigatory stage.[75]The question for us was whether those flaws raised an inference of discrimination. We concluded that it was undoubtedly evidence of poor industrial practice but we did not consider that the flaws on their own were capable of enabling us to conclude that they had occurred because of the claimant’s sex without more. Even if we were wrong, having considered the respondent’s evidence we were satisfied that the respondent’s explanation for those flaws had had nothing to do with her sex. Here, the respondent effectively relied on two arguments. First that the extent of the investigation was limited because of the extent to which the claimant had actually challenged the essential elements of the evidence and second that the flaws had reflected human error and human inexperience and not discrimination. On the first point crucially the claimant did not challenge or overcome the fact that she had left the lorry in a lay-by on or next to a public road, that she had not contacted the distribution centre after 1:20am to agree a way forward and/or to have her or her lorry collected. There were other things that she might have done eg an attempt to get to Magor distribution centre or another store or Magor services instead which would have provided greater security for her or her vehicle.[76]In relation to the second issue it was clear that both Mr Legg and Mr McKenzie were relatively inexperienced managers in the sense of their experience with a disciplinary process. It was also clear that they were not closely guided through that process by Human Resources. We had the clear sense of honest naive inexperienced and incompetence but not of malicious or discriminatory motive.[77]As Mr Holloway put it in closing it was a leap too far to infer sex discrimination from the mistakes of busy and experienced people in light of the clear misconduct on the claimant’s part.[78]The key to this case was to remember what the claimant complained about. She complained about the issuing of a final written warning not the process which got to that warning. Objectively in our view there were non discriminatory reasons for imposing that penalty. The claimant’s actions had been contrary to the respondent’s security guard (page 74) particularly the final two paragraphs and its out of hours policy (page 73) as stated: “All drivers, should they be nearing their maximum driving time, one hour to go, and will not make it back to their distribution centre will make all efforts to contact the transport office and inform them of the situation. The transport office will make the decision to go and meet the driver at a suitable reference point allowing the driver to return to the distribution centre without contravening their EU Drivers Hours Regulations. All drivers should they be nearing their maximum Road Transport (Working Time) 2005 12 hours into their working day and will not make it back within their 15 hour maximum working day will make all efforts to contact the transport office and inform them of their situation. The transport office will make the decision to go and meet the driver at a suitable reference point allowing the driver to return to the distribution centre without contravening the Road Transport (Working Time) 2005 Regulations. An investigation will be required if the driver has deliberately not been in contact with the transport office in good time due to unforeseen circumstances whilst out on the road”.[79]Critically it was the claimant’s failure to have contacted the distribution centre which struck with Mr McKenzie who had not known any such similar situation in his sixteen years of experience with the respondent. As Mr Holloway put it in closing Mr McKenzie issued a final warning because the claimant had not contacted the distribution centre after 1:20am and had left the lorry on the side of the road and had gone home.[80]For the sake of completeness we have considered each of the allegations of direct discrimination separately under paragraph 26 of the Case Management Summary (page 64). Our findings are as follows:(1) The claimant was not forced by Mr Bolton to park away from site. She was forced to make the Ammanford drop once it was realised that it was likely that she had run out of hours but the route was initially calculated by Paragon and the delay had been caused at Llanethly. Mr McKenzie had nothing to do with it. As to Mr Howells we had no evidence that he had been picked up and/or provided with a hotel in the past as alleged. More particularly we accepted Mr Holloway’s point that even if she had called the distribution centre at or before 4:56am she too would have been provided with similar assistance. We could not accept that a male comparator, whether hypothetical or otherwise would have been treated differently in those circumstances.(2) Nobody lied to the claimant over the Microlised data. The claimant had wanted data as to the telephone calls that she had made but the respondent never produced such data to her or to us as it continues to maintain that microlise does not provide that data. We had no evidence that Mr Howells was ever given such data in August 2016 or at any other time. Further and far more importantly there was no dispute that the claimant last called at 1:20am.(3) To start with, we should say that Mr Bolton did not “investigate” her conduct, Mr Leg did but what the claimant complained of was the imposition of a final written warning which Mr McKenzie was responsible for. We have dealt with the reasons for that final written warning and how in our judgment it had been issued for a reason unrelated to her sex. As to the alleged comparator, the evidence that we received regarding Mr Moore was extremely limited and appeared to describe a very different set of circumstances.(4) This allegation did not concern the claimant and we could not see what detriment she suffered after she had left her employment by Mr Chester having gained her old start time. As to her named comparators we heard no evidence as to how they had been treated more favourably.[81]We come to the complaints of victimisation under Section 27. Although the respondent did not dispute the fact that the claimant had performed protected acts within the meaning of Section 27(1) in the form of the emails of 13 August and 21 November 2015 it disputed the allegation that she had been subjected to the detriment complained of because of those acts.[82]The test of causation under Section 27 similar to that under Section 13 in that it required us to consider whether the claimant had been victimised because she had done the protected acts. We did not apply the “but for” test, the act had to have been an effective cause of the detriment but it did not have to be the principal cause. It had to have been the act itself that caused the treatment complained of, not issues surrounding it.[83]In order to succeed under Section 27 the claimant therefore needed to show two things. One that she was subjected to a detriment and second that it was because of the protected acts. We have therefore applied the shifting burden of proof under Section 136 to that test as well. However, it may already have been clear from our findings in respect of the final written warning that was issued that we did not consider that it had been given for any reason which concerned the claimant’s protected acts. Indeed Mr McKenzie was not even asked about that issue. We were conscious that Mr McKenzie had been tasked with considering the claimant’s grievance appeal and that it was inexplicably delayed but we were still of the view that the claimant’s final written warning had been issued for one reason only namely her perceived act of misconduct.[84]Constructive unfair dismissal. The first question of fundamental breach. The implied term of trust and confidence was not breach merely if an employer behaved unreasonably. It was breached if the employer participated in conduct which was calculated or likely to have caused serious damage to or destroyed that relationship. It has been referred to as the unvarnished Malik test from the case of BCCI v Malik [1998] 1AC20. Breaches must have been serious. The parties were expected to withstand what might be referred to as lesser blows. One of the more recent approaches to the test in the Court of Appeal decision of Tullett Prebon v BGC was to ask whether looked at in light of all of the circumstances objectively the parties’ intention had been to refuse further performance of the contract. It was also important to remember that there was a second consideration there needed to have been no reasonable or proper cause for the conduct for it to have been regarded as a fundamental breach of the implied term.[85]As to the question of causation the breach relied upon did not need to have been the only cause of the employee’s resignation in order for a claim to succeed it was sufficient for it to have been an effective cause. There was no issue that arose in relation to the question of affirmation or in relation to the possible application of Section 98(4) since the respondent did not run a positive a positive case in either respect.[86]The breaches relied upon in this case were the same acts of detriment relied upon under Section 13 (paragraph 27 of the Case Management Summary page 65). We did not consider that the first or second of those had been breaches of the implied term for the reasons that we have already given.[87]In relation to the fourth of those that could not have been a breach which caused the claimant to resign because the claimant had already resigned before Mr Chester was allocated her start time.[88]In relation to the third in the list the final written warning itself, there was in our view a reasonable and proper cause for it to have been issued and it did not constitute a breach of the claimant’s contract.[89]The lingering doubt in our minds concerned the disciplinary process adopted by the respondent. We could well have accepted that if the claimant had seen the email of 18 January (pages 122 – 123 for example) she may have lost faith in the process and taken the view that the outcome was predetermined. There are also other flaws to which we have already referred which the respondent recognised but they were not the breaches relied upon by the claimant in this case and they were also in our view not the reason for the resignation, the claimant had already applied for and accepted other work before 2 March (page 208) and so accordingly that claim also fails.[90]The consequence is that the claimant’s claim for breach of contract must be dismissed.[91]We then come finally to the complaints of unpaid holiday pay and unlawful deductions from wages. In relation to the former, the claimant’s statement as we have said contained no evidence on the issue. Mrs Dowding’s evidence was compelling and unshaken through cross examination. We concluded that no sum was owed in that respect.[92]In relation to the wages claims there were three which had been brought but again they were not covered by the claimant in her evidence. As to the first namely the sick pay issue, we had no evidence about that at all. In relation to the Fleet Board draw the claimant’s evidence did not enable us to be satisfied that there was any contractual entitlement to that sum, that entitlement was never proved.[93]In relation to the turnaround bonus the claimant’s entitlement to that sum did not arise because she had left before May 2016. She did however, receive a small bonus payment in June but we concluded that that had probably been an error. For those reasons the claims are dismissed. _____________________________ Employment Judge Livesey EMPLOYMENT TRIBUNALS Claimant Respondent Miss J Jones and Tesco Stores LimitedThe Issues
[1]The Claimant has applied for a reconsideration of the Judgment dated 25 May 2017 which was sent to the parties on 1 June 2017. The grounds are set out in her e-mails of 14 and 16 June 2017 which were received before she confirmed that she wished to receive written Reasons for the Judgment.[2]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”). Under rule 71, an application for reconsideration under rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The application was therefore received within the relevant time limit.[3]The grounds for reconsideration are only those set out within rule 70, namely that it is necessary in the interests of justice to do so. The earlier case law suggested that the ‘interests of justice’ ground should be construed restrictively. The Employment Appeal Tribunal, in Trimble-v-Supertravel Ltd [1982] ICR 440, decided that, if a matter had been ventilated and argued at the hearing, any error of law fell to be corrected on appeal and not by review. In addition, in Fforde-v-Black EAT 68/80 (where the applicant was seeking a review in the interests of justice under the former Rules which is analogous to a reconsideration under the current Rules) the EAT decided that the interests of justice ground of review did not mean “that in every case where a litigant is unsuccessful he is automatically entitled to have the tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order”. More recent case law has suggested that the test should not be construed as restrictively as it was prior to the introduction of the overriding objective (which is now set out in rule 2) in order to ensure that cases are dealt with fairly and justly. As confirmed in Williams-v-Ferrosan Ltd [2004] IRLR 607 EAT, it is no longer the case that the ‘interests of justice’ ground was only appropriate in exceptional circumstances. However, in Newcastle Upon Tyne City Council-v-Marsden [2010] IRLR 743, the EAT stated that the requirement to deal with cases justly included the need for there to be finality in litigation, which was in the interest of both parties.[4]The Claimant’s application relies upon 3 grounds; the existence of new evidence, alleged inaccuracies in the Judgment and questions over the credibility of witnesses, although the body of the application does not contain points or arguments which obviously relate to one or more of those points. It is somewhat unstructured. The arguments have been considered as they have been set out and the main threads seem to be as follows;(i) That the layby where the Claimant had parked was a recognised parking area for LGVs, as illustrated in further photographs, and was not properly designated as a bus stop; This was not a Burchell conduct unfair dismissal claim. The Claimant had resigned because she felt that the allegations of direct discrimination had amounted to a fundamental breach of the implied term of mutual trust and confidence. The allegations which had concerned of 17/18 January did not specifically relate to the alleged misidentification of the layby as a bus stop. That had always been a small point. The crucial issue for the Respondent had been the fact that she left the vehicle on a public road overnight and had not contacted Avonmouth;(ii) Mr MacKenzie's evidence concerning the identification of her vehicle from the M4; Even if there may now be some doubt as to Mr MacKenzie's ability to have identified the Claimant’s vehicle as he had travelled along the M4, the Claimant did not dispute that it was there. This was a small point and, even if Mr MacKenzie's evidence could have been called into doubt in that respect, it was not clear to what extent and/or how the Claimant sought to challenge other parts of it now;(iii) That the Claimant had no time to reach Magor DC; This point was argued before the Tribunal and there is no reason to re-open the matter now on the basis of what the Claimant has set out in her application. Again, the point has to be stressed that the Respondent's main concern had been her failure to contact Avonmouth, not her failure to have taken other opportunities, including the chance to have reached the Magor DC, earlier. Of those opportunities, her ability to park at Magor Services or an earlier service station on the M4, appeared to have been more relevant to the Respondent than the possibility of her having reached the Magor DC;(iv) The conduct of other drivers and the Respondent’s alleged inconsistency; The Claimant has now suggested that other male drivers may have parked their vehicles overnight and escaped discipline. In addition to the situations of Mr Moore and Mr Howells which we considered during the hearing, the Claimant has now referred to a Mr Garwood. It was important to remember that Mr Legg had investigated an issue concerning an alleged similar case during his investigation [131]; he had asked other managers about it, who had heard nothing about it. Mr McKenzie clearly stated that he had not been aware of any other incident similar to the Claimant’s.[5]In essence, the Claimant's arguments appear to be an attempt to rerun the original disciplinary hearing at which she received her final written warning. Given that the Tribunal was not dealing with an ordinary unfair dismissal complaint, she really needed to demonstrate that there had been no reasonable or proper cause for the action which was taken against her. The evidential issues that she has raises now do not undermine the thrust of the rationale for the Respondent's decision. With the exception of the possible further arguments of inconsistency, there is nothing in any of the points which have been raised which suggest that the four particular complaints of direct discrimination set out within paragraph 26 of the Case Management Summary of 12 December 2016 had any more merit than they did before the Tribunal. Importantly, since the alleged fundamental breach was based upon those same arguments, the constructive unfair dismissal complaint falls into the same category.