Mr F Davies v GEO Speciality Chemicals UK Ltd: 1404399/2022

EMPLOYMENT TRIBUNALS

Case No 1404399/2022

Between

Mr F DaviesClaimant

GEO Speciality Chemicals UK LtdRespondent

Before

Employment Judge Scott

In person for claimant

Mrs Holden (instructed by Counsel) for respondent

Date 1 August 2024

JUDGMENT

[1]The Claimant’s claim for harassment on the grounds of race is not well founded and does not succeed.

[2]The Claimant’s claim for direct discrimination succeeds in part, limited to discrimination on the basis of a failure to pay 100% of his pay

[3]The Claimant’s claim was made in such a period as the Tribunal considers is just and equitable and is therefore within time.

[4]The Claimant’s complaint of automatic unfair dismissal is not well founded and does not succeed.

[5]The Claimant’s complaint of breach of contract and unauthorised deductions of wages were not made within time and the Tribunal does not extend time.

REASONS

There is no reasonable prospect of the original decision being varied or revoked, because

[1]Pursuant to rule 69 of the Employment Tribunal Rules of Procedure 2024, an application for reconsideration must be made in writing, and copied to all parties of the appeal, within 14 days of the date the written reasons were sent. By order dated 16 October 2024 that time limit was amended to 21 days. This application for reconsideration has therefore been made within time and has been copied to the Respondent.

[2]In his email dated 20 January 2025 the Claimant renewed his application for reconsideration and asked for permission to amend his application made on 31 July 2024. That permission is unnecessary. It was for Mr Davies to explain why he believed that there was an error of judgment, a legal mistake or a mistake in the way the Tribunal reached its decision, when he renewed his application following the written reasons, where those reasons are different to those already advanced.

[3]The Claimant was given a further period until 28 February 2025 to provide reasons why he maintained there was an error of judgment, a legal mistake or a mistake in the way the Tribunal reached its decision. By email dated 28 February 2025 the Claimant explained that he was unable to provide those reasons due to ongoing hospital treatment. In support of this he provided a discharge summary dated 11 January 2025, however all details have been obscured.

[4]The Claimant was due to provide these reasons by 10 February 2025, 21 days after receipt of the written reasons. Given the approaching remedy hearing it is in line with the overriding objective for this application for reconsideration to be resolved prior to that hearing. If the Claimant has additional reasons for seeking reconsideration following receipt of the written reasons, he may make a further application for reconsideration providing appropriate evidence (at a minimum with his full name legible) and explaining why it was not possible for him to provide those reasons earlier, particularly when he has already made an application running to 20 pages.

[5]I have considered whether it is necessary in the interests of justice for this matter to be reconsidered and for the reasons set out below, conclude it is not. Pursuant to rule 70(1) I consider whether there are reasonable prospects of the original decision being varied or revoked for the reasons set out by Mr Davies and I conclude that there are not. I understand Mr Davies argument for reconsideration to be for four reasons:a. That the panel was wrong to conclude that it was reasonably practicable for Mr Davies to bring his claim within time due to his mental health. (paragraph 1)

b. That the Tribunal made an error concluding that there was no discriminatory conversation as alleged in April 2022 between Mr Colman and Mr Chapman because the Tribunal should have accepted the Claimant’s account. (paragraph 2a)

c. That the Tribunal erred in not cross-examining Mr Coleman regarding his evidence that Sean Austin called the Claimant ‘Black Jesus’. (paragraph 2b)

d. That the Tribunal erred in preferring Mr Drust’s evidence regarding the alleged derogatory conversation in April 2022. (paragraph 3)

e. That the Tribunal erred in finding that Mr Cocker’s conduct was not discriminatory (paragraph 4 & 6).

f. That the Tribunal was wrong to prefer the evidence of Gemma Seymour to that of the Claimant (paragraph 5 & 6)

g. That the Tribunal erred in concluding that the Claimant termination of his employment was unjustifiable.

h. That the Tribunal gave incorrect weight or otherwise considered inappropriately the Claimant’s comparators. Taking these points in turn: Time limit:

[7]The Claimant argues that the Tribunal should have extended time for the Claimant’s automatic unfair dismissal claim, breach of contract claim and his wages claim, on the basis that he was a litigant in person and that he had ‘been ill and medically impaired’ preventing him from making his claim in time.

[8]The Tribunal considered the Claimant’s claim to have been unwell at the time, and accepted that he was impaired by his anxiety and depression, but that the evidence before the Tribunal was not that the Claimant was so unwell it was not reasonably practicable for him to have submitted his claim within time. In particular, the Tribunal noted that the Claimant had received advice from the CAB in advance of the deadline so should have been aware of the requirement to provide an ACAS certificate.

[9]The Claimant disagrees with the Tribunal decision in this regard, but there is no reasonable basis for the decision to be varied or revoked given these matters have been considered in full by the Tribunal previously. Disagreement with Tribunal findings

[10]The Claimant’s arguments at paragraphs 2 – 6 of his application for reconsideration are a restatement of his case and an argument that the Tribunal was wrong in preferring the evidence of the Respondent’s witnesses. The Claimant has not identified any reasons why the Tribunal’s conclusions were unsafe, but rather, that the Tribunal should have preferred his own evidence. That evidence has been discussed in the decision, and the reasons why the Respondent’s evidence was preferred has been explained. In those circumstances I do not see that there is a reasonable prospect of the decision being revoked or varied for the reasons identified by Mr Davies and conclude it is not in the interests of justice for the decision to be reconsidered.

[11]In relation to the Claimant’s argument at paragraph 2b of his application, that I erred in not cross examining Mr Coleman’s reference to a nickname used by Mr Austin for the Claimant, firstly, it is not the role of a Judge in proceedings to cross examine. The Claimant had a further opportunity to ask questions of Mr Coleman but did not do so, and the Claimant addressed this point in submission, confirming that Mr Coleman’s evidence was accurate and was a joke between the Claimant’s friend and himself, and was not part of the Claimant’s case. As the Claimant correctly states, this reference did not form part of the Claimant’s case and therefore did not pertain to an issue in this appeal. The Tribunal erred in failing to concluding his dismissal for using his mobile phone was unjustifiable.

[12]Mr Davies argues that the decision to terminate his employment as a result of his bringing a mobile telephone on site is discriminatory. The Tribunal found that the reason for the Claimant being dismissed for using his mobile telephone, was due to this being a clear breach of the Respondent’s health and safety policy and not for a discriminatory reason on the grounds of his race.

[13]I therefore do not consider there are reasonable prospects of the decision being varied or revoked on the basis of the Claimant’s application for reconsideration. Treatment of Comparators.

[14]The Claimant argues at paragraph 8 of this reconsideration application that the Tribunal made an error in not giving proper weight to his comparators. However, in relation to the treatment of his deviation resulting in the reduction of his pay, the Tribunal found that the Claimant had demonstrated a difference in treatment to his comparators, (paragraph 233 written reasons).

[15]I therefore do not consider there are reasonable prospects of the decision being varied on revoked on this basis.

[1]This hearing follows the liability hearing heard on 8 – 12 April 2024 and 20 – 21 May 2024. The initial remedy hearing was adjourned, and reconvened on 18 March 2025.

[2]The claimant had indicated in correspondence prior to the hearing that he had health difficulties, but it was not clear whether he sought to adjourn the hearing on the basis of his ill-health. At the hearing, the claimant confirmed both that he was well enough to proceed and that he wished to proceed because this litigation was exacerbating his health conditions.

[3]The parties provided an agreed bundle of 379 pages and the claimant provided a witness statement with 20 paragraphs over 3 pages. The parties confirmed that these were all the documents the parties sought the Tribunal to have regard to when reaching its decision on remedy. The Tribunal has considered all these documents when reaching this decision.

[4]As set out in the Judgment dated 5 August 2024 and in the written reasons dated 20 January 2025, the claimant was successful in one ground of challenge, namely that the decision not to award the claimant his full pay on 18 February 2022, and in July 2022 was discriminatory conduct by the respondent. All other grounds of challenge failed. The Law.

[5]The Tribunal reminds itself that the remedy for discrimination as set out by section 124 (2) Equality Act 2010 includes a declaration as to the rights of the complainant, an order that the respondent pays compensation, and /or an appropriate recommendation.

[6]In Ministry of Defence v Cannock

[1994] IRLR 509

the EAT set out the aim that the applicant must be put into the position he would have been in but for the unlawful conduct.

[7]In regards to injury to feelings, in Prison Service and ors v Johnson

1997 ICR 275

, the EAT set out the general principles for making such an award as follows:a. Awards should compensate the injured party fully, but not be punitive.

b. An award must not be inflated by indignation at the parties conduct.

c. Awards should not be so low as to diminish respect for the policy of discrimination legislation, but must also not be so excessive that they are untaxed riches.

d. Awards should be similar in range to personal injury cases

e. Tribunals should bear in mind the value in everyday life of the sum they are contemplating and

f. Tribunals should bear in mind the need for public respect for the level of the award made.

[8]The Tribunal has had regard to the Presidential Guidance on Employment Tribunal awards for injury to feelings and psychiatric injury and the principles as set out in De Souza v Vinci Construction (UK) Ltd [2017] 15 EWCA 879 and Vento c Chief Constable of West Yorkshire Police (No. 2)

2003 IRLR 102

. It is accepted by the parties that the claim form was submitted in the 2022/2023 tax year, and therefore, the relevant Vento bands are; £990 - £9900 (less serious cases), £9,900 - £29,600 (cases that do not merit an award in the upper band); and an upper band of £29,600 - £49,300 (the most serious cases).

[9]The Tribunal has also had regard to the decision of Eddie Stobart Ltd v Graham

2025 EAT 14

, in particular, that there must be some evidence of injury to feelings before an award could be made. Where evidence is sparce, the manner of discrimination could be a useful guide to infer the level of injury, including;a. Whether the discrimination was ‘overt’

b. The existence of ridicule or exposure, and particularly that discrimination played out in front of colleagues or others might well cause greater harm.

c. Whether the discrimination reflects or exposes an asymmetry of power influence and information, leading to worry or isolation.

[10]The Tribunal has had regard to s207A of the Trade Union and Labour Relations (Consolidation) Act 1992, that the Tribunal may increase an award by up to 25% if it is just and equitable to do so, and where the employment tribunal find that;a. The claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies

b. The employer has failed to comply with that Code in relation to that matter

c. That failure was unreasonable

[11]Similarly, s207A (3) provides that an award may be reduced by 25% where an employee has unreasonably failed to comply with the ACAS code, in the equivalent circumstances. Pecuniary loss.

[12]The parties agreed that the difference in salary between his actual pay between 18 February 2022 and the end of his employment, and his pay if he received 100% of his salary on 18 February 2022, including pension contributions is £1227.93.

[13]The claimant also sought to recover loss of earnings both to the date of the remedy hearing, and into the future, to include loss of earnings, loss of employment benefits, job seeking expenses, and loss of statutory employment rights. However, the Tribunal did not find that his dismissal was discriminatory or that it was automatically unfair.

[14]The claimant explained at the hearing that he believed he should be able to recover for these past and future losses because the decision makers who made the decision to dismiss him had considered stated that were not reassured that he would not bring his mobile telephone on site again given he had explained other staff members also breached the rule.

[15]The Tribunal found, as recorded at paragraph 108 of the written reasons, that the principal reason for the claimant’s dismissal was his breach of the respondent’s rule that mobile telephones were prohibited on site. The claimant’s argument falls short of showing a causal link between the discriminatory act of failing to increase the claimant’s pay to 100%, and his dismissal. Therefore, these losses of earnings and other benefits are not recoverable. Injury to feelings

[16]The parties agree that the claimant should receive a payment for injury to feelings.

[17]The claimant in his schedule of loss seeks compensation in the upper Vento band for the most serious cases and seeks to recover £49,300 for injury to feeling, including the impact on his mental health.

[18]The respondent argues that this payment should be at the lower end of the lower Vento band, and indicates £1200 to be an appropriate figure that would not diminish the publics respect for discrimination law.

[19]As set out above, the Tribunal has found that the discriminatory acts to be the failure to deem the Claimant competent and pay him his full pay on 18 February 2022, and again in July 2022. The discriminatory acts are limited therefore to decision taken on two occasions. The Tribunal also found at p246 that there was no evidence that the discriminatory decision was made with the intention to discriminate against the claimant.

[20]The Tribunal has considered the effect of the discriminatory act on the claimant. The claimant, in a letter regarding his claims (p21) refers to the failure to pay 100% of salary as creating a hostile work environment for him.

[21]In his further particulars of claim (p59) he refers to team members and colleagues referring to him as incompetent and other bullying remarks which began to have a psychological effect on the claimant’s mental health. The Tribunal found at paragraph 70 of the written reasons that all operators would be aware of other employees competency status. Further, that if Mr Drust referred to the Claimant’s status, it would have been as not ‘fully competent’ rather than incompetent, and not in a bullying or discriminatory way. In any event, the Tribunal concluded that such an incident did not happen in April 2022 at all. However, the Tribunal also recognised that the Claimant was sensitive to the subject of his competency.

[22]The Tribunal accepts that the decision to refuse to pay him 100% of his salary and not to deem him competent had an impact on the Claimant, resulting in an injury to feeling as claimed. In the Tribunal’s view, this was an overt act, in that it resulted in all the Claimant’s colleagues being aware that he was ‘not competent’ when he should, in fact, have been deemed competent and received his full pay. As a result, as referenced by the evidence of Mr Drust, he would have been deemed ‘not competent’ which, whilst Mr Drust’s actions were not discriminatory in themselves, resulted in the claimant feeling regularly and unjustly picked on by his colleagues.

[23]The Claimant also sought to raise his pay with his line manager and with HR, and despite this, no action was taken in relation to the discriminatory act, with the Claimant told by Ms Seymour in HR to speak to Ms Bennett directly. The Tribunal accepts that this made the Claimant feel isolated and ignored.

[24]In relation to his diagnosed mental health condition, the Claimant’s witness statement dated 7 March 2025, the claimant refers to his anxiety and depression having persisted for a couple of months (paragraph 7). In response to Tribunal questions Mr Davies clarified that he wrote the statement in advance of the hearing listed in October 2024 which was subsequently adjourned. However, even so, this indicates that the Claimant had not developed his anxiety and depression until midway through 2024, a significant period after the discriminatory acts, and which does not marry with the GP records, discussed below.

[25]At paragraph 8 of his witness statement, the Claimant states ‘the symptoms persist for weeks and are so bad that it interfered with my work which eventually resulted in a situation where I was unable to cope and continue with the job’. During the claimant’s witness evidence, the Tribunal sought clarification of this aspect of his witness statement. In relation to the duration of his symptoms, he confirmed that his symptoms persisted for 2 – 3 weeks, which appears to contradict his claim that discriminatory acts from 18 February 2022 and July 2022 continued to affect his health at the date of the remedy hearing.

[26]Furthermore, in his schedule of loss, the claimant has stated that he has received no income from any other job since being dismissed from GEO Speciality Chemicals ltd in August 2022. However, the witness statement refers to being unable to continue with the job. In oral evidence, the claimant clarified that he had in fact obtained paid employment following the termination of his employment with the respondent. The Tribunal understood his evidence to be that he had an agency job in approximately September 2022 which lasted until October 2022.

[27]The Tribunal has been provided with the claimant’s GP records at pages 297 – 344. Those GP records have been heavily redacted, including entries on which the claimant relies to evidence his anxiety and depression. In any event, those medical records show that the claimant first sought GP support for his mental health on 15 November 2022, and refers to the claimant having taken his phone to work premises against the rules, ‘so his employment was terminated in August. No prior notice was given. Feels there was a racial involvement. Struggling to come to terms with this. Stress’. (p302).

[28]In cross examination the claimant confirmed there is no reference to the discriminatory acts in this GP record, which refers only to his dismissal. However, the claimant stated that this is only a short record, and that the racial involvement reflected the entire treatment he received from the respondent.

[29]On 16 April 2023, the claimant appears to be diagnosed with mixed anxiety and depressive disorder for the first time. However, parts of this entry which appear to relate to his symptoms have been redacted. Furthermore, the entry does not provide context to the diagnosis of anxiety and depression to indicate that this is related to the discriminatory acts of his employment with the respondent, rather than his dismissal.

[30]At 31 January 2024, it appears that the claimant’s symptoms have progressed, with the records reflecting that at 20 February 2024 his symptoms were worsening. As indicated above, the claimant’s account of his symptoms lasting 2-3 weeks, and arising a few months prior to October 2024 cannot be reconciled with the GP records available.

[31]In cross examination, the claimant stated that the 16 April 2023 appointment was a follow up, based on the same information he had previously given regarding the causes of his stress and depression.

[32]The Tribunal was also shown at p378, a confirmation from universal credit that the claimant was deemed unfit to look for work, however, there is no information as to why the claimant was deemed unfit for work within the bundle.

[33]It was put to the claimant that trigger for his anxiety and depression was his dismissal and not the discriminatory conduct on 18 February 2022 and in July 2022 in refusing to deem the claimant competent and raise his salary to 100% of an operators pay. The claimant responded that it was the whole of his experiences with the respondent, including the dismissal, the failure to pay 100% of pay, the hostile environment, harassment and bigotry statements he experienced.

[34]The Tribunal has considered the evidence before it and reminds itself that the burden is on the Claimant to evidence the injury to feelings he has experienced. The Tribunal is not satisfied from the medical evidence before it, that the diagnosis of a generalised anxiety disorder and depression on 16 April 2023 is attributable to the discriminatory act. The Claimant’s own evidence states that it was a combination of all his grounds of claim, both unsuccessful and successful, which resulted in his diagnosis. His medical records state it was his dismissal that he is unable to move past.

[35]Further, between the discriminatory act and dismissal and his first appointment with the GP regarding his mental health problems, he has had a further period of employment. Earnings from this employment have not been disclosed in his schedule of loss, nor have details of this employment and the reasons for it ending been provided. If, as Mr Davies explained in evidence, this ended as a result of his mental health problems in October 2022, it is difficult to understand why the claimant not seek medical assistance until 15 November 2022. Furthermore, the Claimant’s failure to disclose this employment in his schedule of loss, or earlier in proceedings is damaging to his credibility.

[36]The claimant seeks to recover aggravated damages. First, the claimant relies on the fact he was treated differently to other staff members. In the Tribunal’s view, this is not an aggravating feature of this claim, but forms part of the compensation to be received for injury to feelings. Second, the claimant relies on a claimed discriminatory statement made during a witnesses evidence at the hearing on 20 May 2024. The claimant has not successfully argued that this is an act of discrimination and cannot therefore recover on this basis.

[37]Overall, the Tribunal is persuaded that this claim falls within the lower Vento band of less serious cases, on the basis that the discrimination was based on the basis of a decision, taken on two different occasions by a single decision maker. This decision impacted the claimant, but it was only one of the reasons he felt as he did, given his difficult personal circumstances and his dismissal.

[38]However, the Tribunal is not persuaded that this is at the lower end of the lower Vento band. The Tribunal concludes that although the discriminatory acts were limited to two instances, in February 2022 and July 2022, in deciding not to deem the claimant competent, the injury to feelings the claimant experienced was exacerbated by the reference from colleagues to being ‘not competent’ and the Claimant feeling isolated and targeted by his employer. The Tribunal is persuaded that so far as his diagnosed mental health condition can be attributed to his experience with the respondent, it is the non discriminatory dismissal that appears to be primary cause for his attendance at the GP in November 2022, however, the Tribunal does accept that the failure to pay him his full pay will also have been a contributing factor. For all these reasons, the Tribunal awards £6000 in injury to feelings. Acas uplift.

[39]The Tribunal has found that the respondent failed in not treating the claimant’s chat with Gemma Seymour as an informal grievance. However, the claimant took no steps to follow up his grievance, nor did he make a formal grievance when no action was taken.

[40]The Tribunal is not satisfied that the Respondent’s failure was unreasonable. Had the claimant followed the ACAS code then the respondent’s error in treating the matter as resolved would have been apparent. Accordingly in so far as the respondent is at fault, the claimant is also at fault in not pursuing his complaint and therefore it is not appropriate in the circumstances for an uplift to be applied. Interest

[41]The Tribunal is persuaded that it is appropriate to award interest in this case as the claimant has been deprived of his wages properly payable since 18 February 2022. However, the Tribunal limits the payment of interest to the hearing on 20 May 2024. The initial liability hearing was part heard because the claimant changed his evidence during the course of the hearing. This necessitated a delay to allow the respondent to call a further witness to respond to that change in evidence. The Tribunal considers it would be unfair for the Respondent to be penalised in interest for the delay attributable to the Claimant.

[42]The Tribunal awards interest for pecuniary losses calculated as follows: 1277 .93 × 0.08 × 823 𝑑𝑎𝑦𝑠= £230.52

[43]The Tribunal also awards interest in relation to the injury to feelings payment, from the mid-point between 18 February 2022 and the hearing on 20 May 2024 for the same reasons. The Tribunal awards interest for injury to feelings as follows: 6000 × 0.08 𝑥 823 = 541.15 365 2 Approved by: