Mr M ObiClaimantWarmer Roof LtdRespondentDate 16 March 2020
JUDGMENT
The complaint that the Claimant was unfairly dismissed is struck out.
REASONS
[2]Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than two years’ service to make an unfair dismissal complaint.[3]The Claimant was employed by the Respondent for less than two years and he therefore is not entitled to bring such a complaint.[4]The Claimant has failed to give an acceptable reason why the complaint should not be struck out despite having been given the opportunity to do so.[5]Accordingly, the complaint of unfair dismissal is struck out.[6]The Claimant’s other complaints are not affected by this judgment.[1]The claimant who was black Nigerian by colour and national origin was employed by the respondent from 30 March 2018 as a Roof Insulator until his dismissal on 11 July 2018.[2]On 3 December 2018, he commenced claims identified at a case management hearing on 11 June 2019 as being of harassment related to race under section 26, direct discrimination on grounds of race under sections 13 and 39(2), and post employment victimisation contrary to section 26 all of the Equality Act 2010.[3]The claimant had entered into early conciliation on 9 October 2018 and received an early conciliation certificate on 9 November. He thus had until 9 December to present his claims to the Tribunal and did so on 3 December. This was thus within the three month time limit as extended by early conciliation from the date of dismissal and the victimisation claims are also clearly within time. However, there is a time issue so far as the claimant’s harassment claims are concerned. Case Management[4]The claimant was represented at the telephone case management hearing on 11 June 2019 by a CAB representative whom he had been consulting since shortly after his dismissal and who wrote the claim form. The claimant was with her during the case management hearing. In addition to identifying in detail, the issues in the case and listing the substantive hearing it was originally listed for October but was postponed on the respondent’s application to this hearing. The Employment Judge made case management orders including for the parties to exchange relevant documents and witness statements. The relevant documents in the claimant’s case included tests on a mobile phone owned by his partner or former partner who is also the mother of his children and whose address in Radstock was given on his claim form at C/O 3 Pine Walk. Unfortunately, for a number of reasons given by the claimant, he completely failed to comply with these case management orders. The respondent wrote several times to the Tribunal notifying these failures which resulted in unless orders and strike out warnings to which the claimant did not initially respond. The Tribunal finally made an order coming into effect on 4 November 2019 debarring the claimant from relying upon any documentary evidence at the hearing except with the exceptional leave of the Tribunal.[5]The claimant attended the Tribunal on day one unrepresented with no witness statement. Furthermore, he notified the Tribunal that he was unable to read documents including the four typed witness statements which had been provided to him on 3 February two days before the hearing was due to start. He had notified the Tribunal in writing but only on 14 January 2020 that he had been unable to access his previous address since October 2019, long after the case management orders had been sent out to that address and he also on 14 January gave a new address that apparently of a cousin who lives in Radstock. It was however clear that the claimant had had access to advice throughout from the CAB who we assume wrote the letter of 14 January on the claimant’s behalf. With these matters in mind, we caused enquiries to be made to find somebody to assist the claimant in reading documents at the Tribunal. The claimant told us that his children’s mother was about to give birth again and his cousin was unavailable due to his work commitments as a crane drive.[6]Without objection from the respondent’s Counsel, we decided to allow the claimant to rely upon the details contained in the claimant’s claim form at pages A13 – 14 of the respondent’s bundle as his evidence in chief subject to its contents being read out to claimant and confirmed on oath.[7]We then adjourn to read into the case. It was in the meantime arranged that a representative of Support through Court Mr Barwell, to whom we express our gratitude, to be made available at 9.30am on 6 February to read the witness statements to the claimant and to assist the claimant during the remainder of the hearing. In addition, on day 1 the claimant had with him his partner’s mobile phone with texts on it supposedly relevant to the victimisation claims and a typed list of questions for one of the four of the respondent’s witnesses Mr Simon Fry the respondent’s charge hand and his step son Steven Taylor who as not however called as a witness and who is alleged by the claimant to have been the harasser. Having adjourned to read the evidence we commenced the hearing with the claimant’s evidence in cross examination he having adopted the contents of the ET1 which were read to him line by line by the Employment Tribunal during the hearing, as passage from the mobile texts was read out and Counsel for the respondent had the opportunity to read at least some of them. The claimant did not however, apply to put them in evidence. There are however, relevant quotes from the texts in the claimant’s claim form at page A14. His evidence was completed on day one. We started late on day two to allow time for Mr Barwell to complete reading the respondent’s witness statements to him. The respondent’s witnesses’ evidence was completed by 3.00pm. Counsel for the respondent then made closing submissions orally and we adjourned for twenty minutes for the claimant to consider his submissions by way of reply which were provided to the Tribunal in writing by Mr Barwell who read them. The relevant statutory provisions Direct discrimination[8]Section 13(1) provides:[9]That “a person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Race is defined by section 9 as being one of the protected characteristics and it includes colour, nationality and national origins. The provisions of the Equality Act are referred to in relation to employment at section 39 of the Act which materially provides at sub paragraph (2) an employer must not discriminate against an employer of A’s (B) by dismissing B or by subjecting B to any other detriment.[10]Section 23 (1) of the Act defines a comparator for the purposes of a comparison between the treatment of the claimant and somebody who does not share his characteristic. It is defined as follows:[11]On a comparison of case for the purposes of section 13, there must be no material difference between the circumstances relating to each case. That of course excludes the different racial or national origin. There is a comparator in this case it is Nigel Lay whose job role with the respondent was described as box pick. Harassment[12]Section 26 of the Act defines harassment as follows:[13]A person(a) (A) harasses another(b) (B) if: (a) (A) engages in unwanted conduct related to a relevant protected characteristic. (b) The conduct has the purpose or effect of (i) Violating B’s dignity. (ii) Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.[14]Subsection (4) provides:[15]That in deciding whether conduct has the effect referred to each of the following must be taken to account.(a) The perception of B.(b) The other circumstances of the case.(c) Whether it is reasonable for the conduct to have that effect. Victimisation[16]Section 27 of the Act provides that a person:[17](a) (A) victimises another person(b) (B) if A subjects B to a detriment because: (a) B does a protected act. (b) A believes that B has done or may do a protected act.[18]A protected act consists of bringing a complaint to a Tribunal of any act of discrimination on any protected ground or giving evidence or information in connection with proceedings under the act or doing any other thing for the purposes of or in connection with the act or making an allegation whether or not express that A or any other person has contravened the act.[19]Detriment because of a protected act is defined as any action by the respondent which a reasonable person would consider would put the employee at a disadvantage in the future employment relationship.[20]Two of the acts of victimisation occurred after the employment ended with the claimant’s dismissal on 11 July 2018. Such actions are however caught by section 108 of the Equality Act which provides that a person must not discriminate against another if the discrimination arises out of and is closely connected to a relationship which used to exist between the employer and the employee. That covers harassment and victimisation.[21]Section 123 provides time limits for the bringing of claims. In this particular case, it relates only to the claims of harassment. Proceedings on a complaint to a Tribunal may not be brought after the end of the period of three months starting with the date of the act which complaint relates or such other period as the Employment Tribunal thinks just and equitable.[22]If there is conduct extending over a period in other words a series of acts of a similar character the conduct of the time limit is to be treated as starting at the end of the period. That is contained in section 123(3) of the Act.[23]Finally, there are special provisions about the burden of proof in the Equality Act which are contained in section 136. Rather than read out that section we will explain them. Because it is very difficult for a claimant who is claiming discrimination to prove that discrimination has occurred because employers are usually very reluctant to admit that it has occurred.[24]There is a two stage burden of proof required. At the first stage, the claimant has to prove facts from which a Tribunal could reasonably conclude that discrimination has occurred ie that the reason for the treatment was because of his protected characteristic. The burden then shifts to the respondent to prove that the reason for the treatment had nothing whatsoever to do with the particular protected characteristic.
The evidence
[25]The claimant gave evidence on oath as described above and the respondent called the following witnesses. First Mr Carl Muspratt, a Director and the owner in effect of the business, secondly, Mr Barry Stevenson, a Driver for the respondent, Thirdly, Mr Simon Fry, Chargehand and fourth, Mr Andrew Taffs the Account Administrator.
The Facts
[26]The background facts are as follows:(1) KM took over the premises of Sentinel as from 30 March 2018. He used for the business the name of the respondent which he had purchased as a dormant company in 2016. There were at that time seventeen employees all of whom apart from one who left had previously worked for Sentinel. There may or may not have been a transfer under the transfer regulations but it is irrelevant for the purposes of the case because although the claimant had also worked for Sentinel from May 2017, he still did not have two years service at the date of his dismissal to claim unfair dismissal. That claim was struck out on 4 January 2019.(2) The respondent manufactures and installs insulated wooden roof replacement for conservatories.(3) We find as a fact that the claimant the claimant was provided with a copy of his statement of terms and conditions at pages B1 – B5 which however, he did not sign. We accept from the meta data information added to the bundle by the respondent during the hearing that this document was created on 26 March 2018 and modified on 28 March. It gives the claimant’s name. We consider it highly unlikely that the respondent would have gone to the trouble of creating this document without giving it to the claimant. Certainly, we accept that all of the employees from Sentinel were also given a copy of their statements of terms and conditions. The claimant’s job title is given in the STC.(4) The claimant had at least from March 2018 probably earlier a good relationship with Simon Fry SF who was the Chargehand for the respondent. SF regularly gave lifts to the claimant to the workplace in Frome from Radstock where they both lived. Sometimes the claimant contributed lump sums of petrol money. The claimant was a regular visitor at SF’s house. Also living at the house for a time at least was Steven Taylor (ST) SF’s step son, the son of SF’s partner. He moved out to live with his girlfriend nearby and started working for the respondent in about May 2018.(5) The principal allegations made by the claimant were as follows: (i) On two occasions, the dates of which are not entirely clear the claimant claims that ST called him at work a “Black prick” or “fucking prick”. In his ET1 the claimant identifies the date of the first occasion as being the last week in May 2018 when the claimant claims that he had done seven hours overtime but ST told his step father that the claimant had only done four hours. When the claimant disputed this, it is asserted that that was the first occasion on which ST racially abused him. (ii) The second occasion identified in the ET1 was in June 2018 in front of a customer and Barry Stevenson (BS) the Driver. We accept that if these words are proved to have been used to the claimant in the circumstances it certainly would have amounted to harassment related to race under the Act. The claimant also claimed that on 20 June 2018 Matthew Leggatt a Roof Builder was abusive to him – the claimant claims that he told him to “fuck off” but the claimant does not assert that he used on this occasion racist language.(6) In the list of issues in the case management orders and notes the dates for the two acts of racial harassment by ST are identified as being on or about 28 May and on or about 10 June. The claimant claimed in his oral evidence that he had reported the racist abuse to KM after the dismissal on 11 July 2018 and that KM ignored it. This is not in the claim form. The claimant also claimed that he had told SF about it at the time and in the car during a lift home on 11 June (this date is identified in the case management orders but not in the claim form.(7) The claimant claimed in his oral evidence to the Tribunal that SF had responded in the car “don’t worry he swears at me too”. KM and SF deny that any such complaint was made to them. BS denies being present on any occasion when the claimant was racially abused.(8) Detriment and dismissal. These are the direct discrimination claims. The claimant claims that SF on or about 11 June told the claimant to “fuck off” and that he would no longer offer him lifts to work and only relented when the claimant spoke to his partner when lifts were resumed. SF denied that he ever said this.(9) So far as the dismissal is concerned, it is not disputed that the claimant was dismissed summarily on 11 July. The claimant claims that it was due to his race and/or national origins. The respondent claims that the claimant was dismissed together with another white employee Nigel Lay whose job was a box picker (this requires the downloading from a computer of a substantial list of different parts for each order and their sourcing from stock to enable manufacturing to take place). The reason given to both of them at the meeting on 11 July was the slow start to trading and the low volumes of sales. The claimant agrees that Lay was told that he was being dismissed at the same meeting which was attended also by Mr Taffs, Garry Corbitt who was not a witness and SF. However, the respondent concedes that NL was not in fact dismissed that day as the claimant was and that he was kept on for two weeks and that thereafter he continued to work and on 7 August 2018 was taken back on permanently again in writing. Victimisation(10) The acts of victimisation. Some of them including the alleged removal of the offer of lifts taking place before the dismissal and some after. They are those set out in sections 19.1.4 and 19.1.8 of the case management orders and in the claim form at page A40. The Tribunal’s Conclusions[27]The claimant has to prove facts from which a Tribunal could reasonably conclude that he had been treated less favourably, harassed or victimised because of his racial origins or for a reason related to race in the case of harassment or because he had made a protected act. If he does so, the burden shifts to the respondent to prove that the reason for the treatment if the treatment is proved had nothing whatsoever to do with the claimant’s protected characteristic.[28]As to the harassment claims, the claimant has not satisfied us on the balance of probabilities that he was racially abused, although we do not make a finding that he has lied to us or made the allegations up, there is an important difference, the reasons are these.[29]First, there is no contemporaneous documentary evidence of this occurring and recognising that the claimant has difficulty writing. He must have had access to help from his partner and his now ex partner’s mobile phone and it is correct that later he was certainly able to receive and must have had the opportunity to respond to texts on the mobile phone. He could have complained by text to the respondent with assistance but did not.[30]Secondly, he had access to CAB advice from an early stage because a letter of enquiry was written on his behalf on 20 July 2018 ninety-nine days after the dismissal asking for the written reason for the dismissal but that letter did not mention any allegation of harassment or indeed of race discrimination. These allegations were not made at the earliest until the reference to ACAS and in particular, the ET1 dated 3 December 2018.[31]Fourthly the claimant’s evidence as to the occasions when he reported the alleged racist abuse is extremely confused and not consistent; and the claimant has added a new allegation at the hearing of ST spitting at him at the same time of the racist abuse on one or both occasions which is a significant allegation missing from the claim form, although it was mentioned for the first time at the case management hearing in June 2019 which was however eleven months after the event.[32]Fifthly, the respondent’s witnesses all deny having received any information or complaint about racial abuse. That on its own would not have been sufficient to cast doubt on the claimant’s evidence. As is being said in another context they would deny it wouldn’t they.[33]We have also recognised that ST has not been called by the respondent to deny racial abuse. We accept however, that ST was on 21 November 2018 summarily dismissed by KM for gross misconduct namely fighting on the shop floor and has not worked for the respondent since.[34]As to the allegation that SF threatened to stop giving the claimant lifts we are not satisfied that that occurred and in any event, it is not in dispute that the lifts continued regularly up to the day before the dismissal.[35]On 10 July 2018, we accept that no pick up in fact occurred but we do not accept that that was due to any deliberate failure on SF’s behalf. We are not satisfied that an early pick up time had been agreed and it would not have been beyond the claimant’s capacity if he had turned up at 5.20am surely to have gone to SF’s house. The car being parked nearby to the house. SF’s said that he went at the normal time around 7.30am. As to the dismissal we find that the burden of proof at the first stage does shift because the white comparator was treated differently in very material in particular. He was not summarily dismissed but was kept on, eventually permanently. We are however satisfied on the balance of probabilities by the respondent’s explanation for the dismissal. We are broadly satisfied from KM’s evidence and from the table in Mr Taff’s witness statement that the turnover in the business was slow. In the claimant’s case we accept that his skills set was very limited being confirmed to the comparatively simple task of roof insulation and he certainly did not have the skills to perform the computer aided task of box picked. In addition, LN was also dismissed even if it never came into effect and we do not accept the inference that his initial dismissal was some kind of Sherrard at the time to conceal discrimination. We also accept that the respondent did have in mind at the time to share the box pick task amongst other skilled members of the workforce. The table contained in Mr Taff’s witness statement is not entirely satisfactory because it contains details of task completed in April 2018 only the month after the business had actually started but it does corroborate the substantial upturn from September 2018 which continued. The fact that two other drivers were taken on and Stuart Robson was taken on 21 September 2018 as a Roof Builder from that date does not undermine the reason for the claimant’s dismissal. The respondent now employs forty people.[36]The victimisation claims. The problem with this from the claimant’s point of view is that we have not accepted that there was a protected act namely a complaint of racial harassment or complaint of any mistreatment because of his racial or national origins.[37]Secondly, we are not satisfied that the allegation said to amount to a detriment in particular after the end of the employment which are set out at paragraph A14 of the claimant’s claim form and in the texts, did relate to the claimant’s employment. Essentially, they related to the relationship between the claimant and Mr Fry’s family including his step son Steven which we do not accept were sufficiently or at all connected to the employment in that respect. In addition, those events took place a long time after the dismissal and before any Tribunal claim was filed.[38]There is also a problem with the harassment claims in that there was a course of conduct which ended in June and the claims in that respect were presented out of time. If we had been minded to find that they were well founded, we might well have extended the time limit on the basis that it would be just and equitable to do so and on the basis that the respondent was in a position to deal with those claims but we had not found them to have been proved. That issue doesn’t really arise.