Mr Y Ceesay v City Facilities Management Ltd: 1804762/2019

EMPLOYMENT TRIBUNALS

Case No 1804762/2019

Between

Mr Y CeesayClaimant

City Facilities Management LimitedRespondent

Before

Employment Judge Licorish

In person for claimant

Date 30 December 2020

JUDGMENT

[1]The grounds of the claimant’s claim are amended to include a complaint of direct race discrimination based on his dismissal. The amendment allowed is as set out at paragraphs 7.9 to 7.13 of the separate case management summary dated 25 November 2019.

[2]No separate deposit order has been made relating to the claimant’s complaints.

[3]The claimant’s complaints of automatically unfair dismissal, ordinary unfair dismissal and direct race discrimination will continue. The parties should proceed to comply with separate case management orders dated 25 November 2019.

REASONS

The Claim

[1]The claimant was employed by the respondent as a cleaner at one of its client’s sites. He was dismissed for gross misconduct in April 2019. By a claim form accepted by the Tribunal on 28 August 2019 (following a period of early conciliation) the claimant brought complaints of unfair dismissal and race discrimination. In terms of the discrimination complaint, he ticked “race” at box 8.1 of the claim form, but did not further specify the type of discrimination Case No: 1804762/2019 2 he complains of or on what basis he intended to pursue such a complaint. In the attached grounds of his claim he summarised the circumstances of his dismissal. He also stated: “There is so many things that has happened but I am able to discuss this at a Tribunal.”

[2]In its response, the respondent maintains that the claimant’s race discrimination complaint should not have been accepted by the Tribunal under rule 12 of the Employment Tribunal Rules of Procedure 2013 (the Rules), on the basis that it cannot be sensibly responded to. In the alternative, the respondent argues that it should be struck out or a deposit order made because the complaint has no or little reasonable prospects of success. This preliminary hearing was accordingly listed to clarify the complaints and issues, and determine any applications as necessary.

[3]Today the claimant clarified that he intends to pursue a complaint of direct race discrimination. He describes himself as black and of African origin. The treatment complained of is dismissal. There is a dispute about the circumstances under which he booked annual leave to go to the Gambia. He took that leave because a close family member was about to undergo major surgery. The claimant was eventually dismissed for gross misconduct because the respondent considered that part of his leave was unauthorised.

[4]The claimant is able to name two actual comparators in respect of the holiday issue. At the final hearing, he also wants the Tribunal to take into account a number of matters in deciding whether the respondent’s actions were tainted by race discrimination, including the following allegations:4.1 The respondent has an inconsistent approach to conduct issues generally (for example, white colleagues have not been disciplined for fighting).

4.2 Another black African colleague was told that he would have to resign and reapply for his job when he asked for unpaid time off to attend the funeral of a close family member in the Gambia.

4.3 The respondent was consistently difficult whenever he asked for time off to go to the Gambia.

4.4 Following the transfer of his employment to the respondent, the claimant was (among other things) moved from a day to night shift, where he was mostly made to work on his own. He says that his working environment was “very white” as a significant number of BAME cleaners left the respondent’s employment. The claimant believes that he was also overlooked for promotion to supervisor.

[5]The claimant now understands that he cannot simply submit a claim and provide details as it progresses. He therefore asked the Tribunal for permission to amend his claim as now clarified.

Issues

[6]The respondent also helpfully accepted that the only mechanism by which a respondent can challenge the Tribunal’s decision to accept a claim is by an application to strike out the claim, rather than an application under rule 12 itself. Otherwise, if the claimant is allowed to amend his claim, the respondent will argue that both of his complaints should be subject to the payment of a deposit.

[7]The Tribunal therefore proceeded to determine the following preliminary issues in order: Case No: 1804762/2019 37.1 whether the claimant is required to amend his claim for the Tribunal to determine any complaints raised and, if so, to determine his application to amend;

7.2 if relevant, whether to strike out any complaint because it has no reasonable prospects of success;

7.3 whether to order the claimant to pay a deposit as a condition of continuing to advance any specific allegation or argument if the Tribunal considers that any such allegation or argument has little reasonable prospects of success.

[8]The respondent produced a file of documents (marked as R1) and copies of legal authorities. In the event, the Tribunal was referred only to two documents in the bundle. The respondent will readily recognise how the Tribunal has taken its submissions into account in the following analysis. Amendment

[9]The Tribunal accepts that permission is required on the basis that the factual allegations pleaded by the claimant relate only to the disciplinary charge he faced and the circumstances which led to his dismissal. Although he reserved his position in the grounds of his claim, in Chandhok v Tirkey

2015 IRLR 195

the EAT confirmed: “The claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a respondent is required to respond.”

[10]Additionally, Chandhok states that if a claim is to be understood as being wider than that set out in the claim form, it would be open to a claimant after a relevant time limit has passed to point to other documents or statements to advance a different case: “Such an approach defeats the purpose of permitting or denying amendments; it allows the issues to be based on shifting sands; it ultimately denies that which clear-headed justice most needs, which is focus.”

[11]The question as to whether a claim form contains a specific complaint has to be judged by reference to the whole ET1, and considering the name given to the complaint as well as any accompanying factual details (Office of National Statistics v Ali

2005 IRLR 201

, CA). However, in Baker v Commissioner of Police of the Metropolis

UKEAT/0201/09/CEA

the EAT also confirmed that it was correct for a Tribunal to decide that a claim form did not include a claim for disability discrimination when the claimant had ticked the box marked “disability” at section 6, but did not make a complaint which was recognisably an allegation of disability discrimination in the notes attached to his ET1.

[12]The relevant factors in deciding whether to allow a claim to be amended are summarised in the Presidential Guidance on general case management. The Guidance (among other things) sets out the principles in the case of Selkent Bus Co Ltd v Moore

1996 ICR 836

. Put simply, the Tribunal must carry out a careful balancing exercise of all the relevant factors, taking into account the interests of justice and the relative hardship that will be caused to the parties by allowing or refusing any amendment. Relevant factors include (but are not limited to) the nature of the amendment, the applicability of time limits, and the timing and manner of the application. Case No: 1804762/2019 4

[13]First, the Tribunal is satisfied that there is a link between the amendment and the facts described in the claim form. The further information provided by the claimant therefore amounts to the addition of facts or the addition or substitution of facts already described, or a labelling or relabelling of facts already described.

[14]In this case, the claimant has indicated in his claim form that he intends to pursue complaints of unfair dismissal and race discrimination, and has set out the circumstances of his dismissal. In the Tribunal’s view, the proposed amendment therefore ascribes the legal label of direct race discrimination and sets out further factual allegations against the respondent in support of that complaint, which is based on his dismissal. He does not seek to pursue an unrelated and free-standing complaint, for example based on the respondent’s alleged failure to promote him.

[15]Secondly, in terms of the timing and manner of his application, the claimant explained that English is not his first language and he found it difficult to explain what he wanted to say in writing. That is why he effectively reserved his position in the grounds of his claim. The respondent highlights that the claimant made allegations of discrimination and victimisation during his appeal, but did not refer to his race (R1, pages 56 and 60). The claimant explained that his working environment was challenging – his colleagues were mostly white and English, and he found it difficult to raise the issue of his race in that context. The respondent maintains that that does not explain the lack of detail in the claim form.

[16]Generally, the Tribunal also takes into account that if permission to amendment his claim form is refused, the claimant will be deprived of the opportunity to have a complaint of direct discrimination based on his dismissal determined on the merits. The respondent argues that allowing the amendment will put it to extra time and effort, and involve calling additional witnesses.

[17]In the circumstances, the Tribunal finds that the balance tilts towards the claimant. Today he put forward a clear statement of the proposed amendment when given the opportunity to do so. The alleged discrimination is limited to his dismissal. As part of his unfair dismissal complaint, he alleges that the respondent treats its employees inconsistently. Much of what the claimant alleges as part of his race discrimination complaint is therefore likely to be as relevant to his unfair dismissal complaint in any event.

[18]The claimant has also provided sound reasons for acting as he did. In the Tribunal’s view, his race discrimination complaint is apparently arguable. In the circumstances, permission is therefore granted to amend the claim to include a direct race discrimination complaint as now set out at paragraphs 7.9 to 7.13 of a separate case management summary dated 25 November 2019.

[19]Further and separately, if the Tribunal had been persuaded that there was no link between any facts described in the claim form and the proposed amendment, and the claimant was therefore seeking to add an entirely new cause of action, the Tribunal would have been bound to consider whether the new complaint is in time, taking into account the applicable test for extending time limits. Extensions of time to present a discrimination complaint are made on a just and equitable basis. Case No: 1804762/2019 5

[20]For the purposes of time limits, amendments to Tribunal claims which introduce substantively new complaints or causes of action take effect at the time permission is given to amend. However, the fact that a relevant time limit for presenting a new claim has expired is an important factor but not determinative. The balance of hardship must always be considered.

[21]The Tribunal would still have found that the balance tilts towards the claimant in respect of his race discrimination complaint. The claimant has provided a number of reasons why he acted as he did. He does not appear to have acted improperly. It would therefore have been just and equitable to extend time. Notwithstanding the respondent’s views of the merits of the race discrimination complaint, it also involves disputes of fact which will need to be determined at a final hearing to establish whether discrimination should be inferred.

[22]The contended discrimination is further limited to the claimant’s dismissal. In the circumstances, the balance of hardship tilts towards the claimant. Permission would therefore have also been granted to amend the claim to include a complaint of direct race discrimination as an entirely new cause of action. Deposit order

[23]The respondent’s position is that if the Tribunal allows the claimant to amend his claim, it acknowledges that it would be inappropriate to strike out the race discrimination complaint as having no reasonable prospects of success, but nevertheless contends that deposit orders would be appropriate in respect of the claimant’s claim in its entirety.

[24]Rule 39(1) of the Rules provides that where at a preliminary hearing a Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, “it may make an order requiring a party (‘the paying party’) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument”. However, before making an order, the Tribunal must make reasonable enquiries into the ability of the party to pay the deposit, and have regard to any such information when deciding the amount of the deposit (rule 39(2)).

[25]When determining whether to make a deposit order, a Tribunal is not restricted to a consideration of purely legal issues but is also entitled to have regard to the likelihood of the party being able to establish the facts essential to his case, and, in doing so, to reach a provisional view as to the credibility of the assertions being put forward (Van Rensburg v Royal Borough of Kingston-upon-Thames

UKEAT/0095/07

[2007] All ER (D) 187

(Nov)). In any event, the Tribunal “must have a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim or response”.

[26]In this respect, the respondent says that the claimant’s claim is otherwise threadbare and lacks detail. A deposit order would therefore require the claimant to give careful consideration as to whether he wishes to pursue it. Such an order is effectively a “yellow card” rather than an impediment to access to justice.

[27]Today the claimant was able to clarify the basis on which he brings both of his complaints. What the Tribunal has heard and read today, assessed objectively, shows no proper basis for doubting the likelihood of the claimant Case No: 1804762/2019 6 being able to establish the facts essential to his complaints of unfair dismissal and direct race discrimination.

[28]The Tribunal appreciates that much of the evidence will be disputed. The claimant’s position is that much more was happening behind the contemporaneous documentation, and he found it difficult to raise certain issues in direct terms. The Tribunal’s provisional view that much will depend upon the credibility of all witnesses at the final hearing. It does not automatically follow that, because central facts are disputed, the claimant’s complaints accordingly have little reasonable prospects of success. In the circumstances, the Tribunal declines to make a separate deposit order in respect of the claimant’s complaints as now pleaded. Employment Judge Licorish Date: 27 November 2019 Case No:1804762/2019 1 EMPLOYMENT TRIBUNALS Claimant: Mr Ceesay Respondent: City Facilities Management Ltd Employment Judge: E P Morgan Members: Mr Taj Mr Pearse Hearing: By CVP: 7 & 8 December 2020 Deliberations in Chambers: 9 December 2020 Representation: Claimant: In Person Respondent: Mr Brown (Solicitor)

Conclusions

[1]The Claimant was unfairly dismissed contrary to section 98 (4) Employment Rights Act 1996.

[2]The claim of automatically unfair dismissal contrary to section 104 of the Employment Rights Act 1996 is not well founded and is dismissed.

[3]The claim of direct race discrimination contrary to section 13 of the Equality Act 2010 is not well founded and is dismissed.

[4]The matter will be listed for a remedy hearing with an estimated time of 1 day. The hearing will be conducted by CVP.

Conclusions

[1]By his claim lodged with the Tribunal on 28 August 2019, the Claimant alleges he was unfairly dismissed. He believes his dismissal was on the grounds of his race and/or was, in any event, procedurally and substantively unfair. Further, he alleges that the dismissal was on account of his having asserted a statutory right to remain on his existing terms and conditions of employment; the benefit of which he retained following a TUPE transfer some years earlier. 2 The Response

[2]The claims are denied in their entirety. It is admitted that the Claimant was dismissed summarily. The Respondent asserts that the reason for the Claimant’s dismissal was conduct; being the Claimant’s unauthorised absence from the workplace which, it is said, constituted ‘gross misconduct’. It is denied the Claimant was subject to any form of discrimination on the grounds of race; whether by way of dismissal or at all. It is also denied that the dismissal was in any connected with the Claimant’s wish to remain on his existing terms and conditions of employment. Issues Requiring Determination

[3]In advance of the hearing, case management orders were issued in the usual way. At the outset of the hearing, the parties confirmed the orders had been complied with. Neither raised any preliminary legal or housekeeping matters requiring consideration prior to reception of the evidence. It was further agreed that the issues requiring determination where those identified within the earlier case management hearings; supplemented by an agreed statement of facts of 14 April 2020 [p45].

Evidence

[4]The Tribunal was provided with an agreed bundle extending to some 125 pages. Within the agreed bundle, there was also a document entitled: Agreed Facts [page 45]. As requested by the parties, the Tribunal has read and had regard to the terms of that document in the formulation of its factual findings in this Judgment.

[5]The Tribunal received evidence from the following:5.1 On behalf of the Claimant: The Claimant, Mr Ousman Yarboe and Mr Baba Darboe; and

5.2 On behalf of the Respondent: Mr Brownridge (Cluster Facilities Manager), Mr Constable (Depot Hygiene Manager) and Mr Macauley (Facilities Manager). Principal Findings of Fact

[6]Having considered the evidence adduced by the parties and upon the balance of probabilities, the Tribunal makes the following primary findings of fact:6.1 The Respondent is concerned in the provision of cleaning and related services to logistics and retail operator clients within warehouse facilities and other outlets;

6.2 The Claimant was transferred to the employment of the respondent in 2011. Since that time, he has remained upon certain of his original contractual terms and conditions insofar as they relate to pay and working hours. For the purposes of these proceedings, it is conceded that the Claimant is to be taken as having continuity of employment with the Respondent from 2006. Accordingly, at the time of the events with which the Tribunal is concerned, the Claimant enjoyed somewhere in the order of 13 years’ service;

6.3 The Claimant was employed by the Respondent as a cleaner. In that capacity he operated as a member of a two person team of employees allocated upon a four-week shift rota basis. At all times relevant to these proceedings, the Claimant worked exclusively on the night shift. This meant that he would, ordinarily, report to and be managed by, Vanessa Martin, a Depot Hygiene Manager. In this capacity, Ms Martin would be required to approve any annual leave requests. There was no HSS on the night shift; Case No:1804762/2019 3

6.4 The Tribunal heard evidence, and accepts, that the demographic of the Respondent’s workforce is comprised of approximately 10-15% BME employees. The claimant is Black African. He originates from The Gambia. Members of his immediate family, including his mother, have remained there;

6.5 In consequence of a TUPE transfer which took place in July 2011, the Claimant was one of a significant group of employees who had retained pretransfer terms and conditions. Like his colleagues, the Claimant was approached periodically and given the option to migrate to the Respondent’s existing terms and conditions. The Tribunal is satisfied that approaches of this kind occurred on an annual basis; coinciding with the annual pay review exercise. The Tribunal finds that in making these approaches, there was no attempt to single out the Claimant. Rather, he was, together with his colleagues, part of a wider workforce based process, applied to those employees who had chosen to remain upon their original contractual (i.e. pretransfer) terms;

6.6 Throughout the period with which the Tribunal is concerned, the Respondent operated a detailed annual leave policy; with the annual leave year operating from April to March. Pursuant to the terms of this policy, the Respondent did not permit accrued unexercised leave to be carried over from one leave year to the next. The Tribunal finds that the terms and operation of the annual leave policy were widely known within the Respondent organisation. Employees, including the Claimant, understood that they were obliged to give four weeks’ notice of prospective leave. This obligation was recognised as being of particular importance in relation to those employees seeking “extended leave”. Within the context of this particular employment, “extended leave” was said to comprise a single leave period exceeding 10 consecutive days. The scheme of the annual leave policy was affirmed by, amongst other things, an ‘Absence Policy’ operated by the Respondent. Taken together, these policy arrangements confirmed the Respondent's perspective that the requirement of cover and co-ordinated absences were important to operational efficiency and the attainment of the service levels necessary to meet client demand;

6.7 Prior to 2017, the Claimant had demonstrated his familiarity with the requirements of these policies, through the exercise of annual leave. There is no suggestion of any ambiguity or uncertainty as to the terms of the policies in question, or, the process to be followed. Indeed, at some stage during 2017, the Claimant requested and obtained permission for an extended period of leave. Whilst the precise date upon which he did so is unclear, the Tribunal is satisfied that this period of extended leave occurred within the three years preceding April 2019;

6.8 During 2018, the Claimant became the subject of a disciplinary procedure. This was said to have related to workplace practices; including an allegation that the Claimant had left operational equipment unattended. Mr Brownridge was directly involved in the disciplinary process adopted at that time. Matters culminated in the imposition of a final written warning. This warning was applied to the Claimant on 23 July 2018. It was not the subject of appeal. The Claimant does not – within these proceedings – raise any challenge or criticism in connection with the conduct of the disciplinary process, Mr Brownridge’s involvement in it, or, the disciplinary sanction which was imposed at that time;

6.9 For day to day operational purposes, the Claimant reported to Vanessa Martin and Dawn Whittle (HSS). The Tribunal is satisfied that Mr Brownridge was not based at the same site as the Claimant. He was in fact Miss Martin's line manager. As a consequence, the operational interaction between the Claimant 4 and Mr Brownridge was extremely limited. The Tribunal accepts the evidence of Mr Brownridge to the effect that they had shared no more than 15 conversations over the period of 8 years which had elapsed since the Claimant was transferred to the employment of the Respondent. There is no suggestion of any antagonism or adverse interaction between Mr Brownridge and the Claimant;

6.10 As at March 2019, the Claimant had accrued 3 days annual leave which was outstanding. If the Claimant was to exercise this leave in line with the Respondent’s policies, he needed to do so prior to 31 March 2019. In conformity with the annual leave policy, the Claimant made the necessary request and the approval of this leave was granted;

6.11 The Claimant’s mother lives in The Gambia. On or about 25 March 2019 the claimant became received notice that his mother was seriously unwell and required significant cardiac surgery. On receiving this news, the Claimant telephoned Mr Brownridge. In doing so, the Claimant recognised that his own line manager (Ms Martin) was herself absent and further that the supervisor (Miss Whittle) did not have the necessary authority to approve any further holiday requests in Ms Martin's absence;

6.12 At the time of receiving the Claimant's telephone call, Mr Brownridge was driving. The conversation involved the Claimant making a request for leave which was both urgent and, inevitably given its purpose, was to be extended. In the view of the Tribunal, the Claimant was, in effect, seeking a dispensation from the needs to provide the necessary 4 weeks’ notice of proposed absence; whilst at the same seeking an extended period to allow him to return to The Gambia and be with his family. The Tribunal finds that both requests implicitly involved a recognition on the part of the Claimant that there were conditions under the annual leave policy which but for his family difficulties, required compliance. As an experienced manager, Mr Brownridge was aware of the conditions determining eligibility for extended leave under the annual leave policy. He also had a recollection that the Claimant had, at some stage in the preceding three years, been granted a request for extended leave. He was therefore of the provisional view that the Claimant was not eligible for extended leave at the time of making the request of 25 March 2019;

6.13 The Tribunal finds that it was during the course of this conversation that the Claimant gave the reason for the request as relating to his mother's ill-health. Initially he did not disclose to Mr Brownridge the significance or detail of his mother's medical condition. However, the Tribunal is satisfied that he did impress upon Mr Brownridge the nature of the urgency and the seriousness of her medical position at a later stage in the conversation;

6.14 Mr Brownridge’s response was initially unsupportive. This was on account of fact that he considered the claimant to be ineligible under the terms of the annual leave policy. The Tribunal is satisfied that the Claimant became agitated. It was on this account that Mr Brownridge issued a warning that if the claimant was unable to control either his tone or his manner of communication, the conversation would be brought to an end. Shortly after this exchange, the conversation was terminated. Immediately thereafter, Mr Brownridge contacted the Respondent’s Human Resources team. By this means, he was able to satisfy himself of both the conditions of eligibility under the annual leave policy and the fact that the Claimant had received the benefit of an extended period of leave in the 3 years preceding this telephonic request;

6.15 Equipped with this confirmation from Human Resources, and having stopped his vehicle, Mr Brownridge felt himself able to resume discussion with the Claimant with sufficient focus. He returned the Claimant's telephone call. During the course of the resultant conversation Mr Brownridge informed the Case No:1804762/2019 5 Claimant that it would not be possible for him to exercise an extended period of leave on the dates contemplated. However, the Tribunal is satisfied that Mr Brownridge did make a counter proposal, namely: that the Claimant should exercise the initial 3 days accrued leave on the days for which they had already been booked, return to work, and thereafter be given a further period of leave of 10 days. From the Claimant’s perspective, the adoption of this proposal had two immediate and unwelcome consequences, namely:

(a) it would prevent the Claimant from leaving for The Gambia immediately; and

(b) the discontinuous nature of the arrangement, would deprive the Claimant of the ability to be with his mother at the time she required his presence most (i.e. in the period immediately preceding her surgery). Mr Brownridge’s counter proposal would also have increased significantly the financial cost of the Claimant’s journey. There is no suggestion of any question being raised over the nature of the Claimant’s proposed journey or the matters which prompted it. The Tribunal finds that the Claimant made clear this request was the product of a family emergency; one which required his return to The Gambia. For the Claimant, this was not a matter of choice. In his view, the counter proposal would have the effect of depriving his mother of his arrival and presence at the family home at the very time when his attendance with his family was most acutely needed. The parties were unable to agree a method by which the Claimant's aspirations could be fulfilled;

6.16 Whatever else may be said with regard to this conversation and eventual exchange, the Tribunal is satisfied that during the course of this particular discussion the Claimant made clear that he would not be in a position to return to the workplace prior to 18 April 2019. The Tribunal is satisfied that this communication was made not as an act of belligerence on the part of the Claimant, but rather, as an indication of the invidious position in which the Claimant considered he was, by reason of the family emergency, placed. In this discussion with Mr Brownridge, the Claimant made clear he was confronted with an irreconcilable dilemma. From both a familial and cultural perspective, it was important that he should be seen to be providing support to his mother in The Gambia whilst she was awaiting serious surgery. The Tribunal is satisfied that the Claimant was during the course of this conversation, seeking to impress upon Mr Brownridge what was for him a situation in which there was, in reality, no choice. He communicated this dilemma to Mr Brownridge; making clear that he could not be present at work until 18 April 2019;

6.17 Given this position, Mr Brownridge was under an obligation to refer the Claimant to the operation of the Respondent's absence procedures and did so. The Claimant accepted that, in due course and upon his return, he might be subject to the Respondent’s procedures and “face the book’. Importantly, at no stage during this conversation was mention made of the emergency leave or compassionate leave policies operated by the Respondent;

6.18 In their discussion concerning the potential application of the absence policy, the conversation and quality of understanding between the Claimant and Mr Brownridge entered into particular difficulty. According to Mr Brownridge, he was alerting the Claimant to the fact that there would need to be a return to work interview and the operation of absence policy procedures might follow thereafter. The Claimant accepts that this was his own understanding as far as it went. However, from the Claimant's perspective nothing was said to him to indicate that the period of absence beyond the authorised paid annual leave, would be treated or categorised as absence without leave (AWOL) or misconduct. He formed the view, that the additional absence had been notified to the Respondent and would be treated as a period of absence in respect of which he would receive no pay; 6

6.19 The Tribunal finds that the discussion between the Claimant and Mr Brownridge concluded with the position that both parties had communicated what they considered to be their own perspective and expectation in clear and unequivocal terms. The Tribunal is satisfied, however, that whilst they believed they shared an understanding, they were in fact at cross purposes;

6.20 The Claimant was, in consequence of both the accrued leave from the current leave year and the concession given to him by Mr Brownridge, able to embark upon leave immediately. This was an important concession. At the end of the conversation both understood that the Claimant was able to exercise immediate authorised paid leave for a consecutive period which extended until 10 April 2019. There is no suggestion that the concession placed any operational difficulty upon the Respondent or that the Claimant’s departure imperilled operational efficiency;

6.21 Before embarking upon the leave period, the Claimant had a further discussion with Dawn Whittle. It involved the completion and submission of an annual leave request form [page 79]. The document was thereafter processed for signature by the Respondent's managers. The Tribunal is satisfied that this took place after the Claimant had embarked upon the leave in question. The Tribunal is also satisfied, however, that in the completion of this document, Dawn Whittle had annotated the request form with a return date of 18 April 2019. This followed a conversation with the Claimant;

6.22 It follows, that the annotation of 18 April 2019 was made prior to the document being presented to the Respondent's managers for approval of the leave itself. The Tribunal considers the annotation was conspicuous and could not have been overlooked by any person called upon to countersign the form. In reality, the holiday leave for which the Claimant had made requests and obtained permission, was also clearly recorded on the same document. The form was completed so as to indicate a defined period of approval. Somewhat unusually, however, and from the Tribunal's perspective, significantly, there was no attempt on the part of management to engage with the annotation of the anticipated return date of 18 April 2019;

6.23 The Claimant travelled to The Gambia in order to be with his family. Whilst there, he was alerted to correspondence having been received at his home address indicating the respondent had activated its Absence Policy with regard to absence without leave. Having been so alerted, the Claimant attempted to make contact with the Respondent's HR Department: “People Services”. He was unable to do so;

6.24 The Claimant returned to work on 18 April 2019. It was his evidence, which was not contradicted, and the Tribunal accepts, that he participated in a return to work interview and was counselled in connection with the duration of his absence. He then continued to work his shifts as rostered between 18 April 2019 and 26 April 2019. In that period, and by letter dated 23 April 2019, the Claimant was invited to participate in an investigatory interview concerning potential misconduct. The misconduct was to comprise unauthorised absence, failure to comply with the Respondent’s Absence Policy and non-compliance with a management instruction. He attended the interview with his manager (Vanessa Martin) on 26 April 2019. It was Ms Martin’s task to determine whether or not the Claimant's absence and alleged non-compliance was such as to generate the potential for disciplinary action. She considered the Claimant had been intentionally absent and further, that the case was one of potential misconduct justifying a disciplinary process. Within the investigation process conducted by Ms Martin, there was no attempt to probe the provenance or rationale of the return date on the annual leave form; a form which, on the evidence before the Tribunal, she in fact processed. Similarly, Case No:1804762/2019 7 the explanation provided by the Claimant for the timing and duration of his absence was seemingly not challenged or taken into account;

6.25 By letter dated 30 April 2019, the Claimant was invited to attend a disciplinary hearing. The Tribunal is satisfied that the invitation included a specific direction to the Claimant to make contact with the Respondent in the event that either the appointed time and/or venue were likely to prove inconvenient. The letter also made express reference to the right to be accompanied. The Claimant did not respond to the letter of invitation;

6.26 It was the Respondent's practice as far as possible, to convene employment related meetings and hearings during in line with the employee’s shift pattern. The Tribunal accepts the explanation given on behalf of the Respondent to the effect that this arrangement was intended to ensure meetings of this kind did not trespass upon the ordinary rest periods or days off to which the employee might otherwise be entitled. The Tribunal heard evidence that this practice was subject to alteration where there had been a suspension. However, there is no suggestion that the Claimant was suspended or considered a candidate for suspension;

6.27 The disciplinary hearing proceeded on 3 May 2019 as indicated in the invitation. The hearing was chaired by Mr Constable. The Claimant attended unaccompanied. He did not request an adjournment or indicate any difficulty in securing a colleague or representative to accompany him. In the view of the Tribunal, the Claimant is an articulate person who had made a choice to proceed to the hearing without assistance. The Claimant considered he had already been counselled in a return to work interview; with the result that he did not attach the same degree of seriousness to these matters as might otherwise have been conveyed by the Respondent’s correspondence. In this respect, the Claimant was, amongst other things, drawing upon the fact he had not suspended;

6.28 Mr Constable is a senior manager. The Tribunal accepts his evidence that he is highly experienced in the conduct of employee related matters and workplace hearings. The Tribunal is satisfied that Mr Constable had both the authority and competence to convene a meeting and make a determination with regard to the allegations which had been presented against the Claimant. Before the Tribunal, the Claimant disputed Mr Constable’s authority. The Tribunal is satisfied that there was no basis for him to do so. The Tribunal also finds that there was no adverse or other history between the Claimant and Mr Constable which could have undermined his impartiality or affected his determination of the issues he was required to consider;

6.29 During the course of the disciplinary hearing, the Claimant was questioned about his conversations with Mr Brownridge and, in particular, the Respondent’s perspective that the Claimant had deliberately acted in breach of a management instruction. In the view of the Tribunal, the Claimant’s responses confirmed the reason for his requested absence. There was no suggestion from management to the effect that his account was challenged or was considered inauthentic. Instead, the management focus was upon the notion that the Claimant was considered to have failed to return and failed to report his non-attendance (i.e. had been AWOL). The Claimant indicated he did not accept this depiction of what had occurred. The divergence of perspective involved a general discussion around the absence request form [page 79] and the dates which had been expressly agreed as amounting to paid holiday leave. There was no dispute that the Claimant had requested, and obtained, immediate leave without the necessary 4 weeks’ notice. There was equally no dispute that the Claimant had the benefit of 3 accrued days 8 from the preceding holiday year. In the view of the Tribunal, the dispute was in fact confined to the explanation and/or justification for what was considered to be the Claimant’s non-reporting and non-attendance at work outside the paid holiday leave period (i.e. the absence from 10 April 2019). The Respondent considered the Claimant was required to notify management of his non-attendance from 10 April 2019 onwards. The Claimant considered he had already openly indicated his intentions to Mr Brownridge, later Ms Whittle and had thereafter ensured this information had been annotated upon the holiday request form; the same form which had, during his holiday absence, been seen and signed by Ms Martin. From the Claimant’s perspective, therefore, there had been no failure to notify absence and he was not in fact AWOL. He considered the Respondent’s managers were aware of the reason for his absence and his location; having been expressly informed in the conversation with Mr Brownridge;

6.30 During the disciplinary hearing, there was no attempt to receive any oral evidence from Mr Brownridge. Nor was any consideration given to requesting him to provide further clarification of the statement obtained from him in the investigatory process. In fact, Mr Constable, did not carry out any additional investigation or interviews of his own. Mr Constable was therefore confronted with a difficulty. Namely: that the Claimant considered there had been an understanding to the effect that he would remain absent until 18 April 2019; with only part of that period of absence being treated as annual paid holiday leave and thus paid. This perspective - which had been the consistent explanation offered by the Claimant - was not tested or otherwise considered;

6.31 The Tribunal is satisfied that reference was made to the holiday request form during the disciplinary hearing. However, there is no indication that Mr Constable considered it necessary to verify how or by what means the return date had been annotated on the form itself. He did not have the benefit of any evidence from Dawn Whittle or Ms Martin regarding the completion and processing of that form. As a result, during evidence before the Tribunal, he was required to draw upon assumption as to what he believed would have occurred at the time of its completion, countersigning and submission. The Tribunal finds that there was therefore no inquiry within the disciplinary hearing concerning the potential relevance of that annotation or the part played by the Claimant, if any, in securing the completion of the form in that way. Similarly, there was no inquiry made of the managers who had signed the leave form as required under the annual leave policy arrangements;

6.32 Mr Constable considered the information available to him. Like Mr Brownridge (and indeed Ms Martin) he did not give consideration to the potential for emergency leave and/or compassionate leave or indeed, whether the Claimant would have been eligible at that time under either policy. In his view, the Claimant had been absent from the workplace beyond the period approved as annual leave. Mr Constable concluded there had been a failure by the Claimant in the period following 10 April 2018 to notify his employer of his absence. There were, in Mr Constable’s view, no mitigating or extenuating circumstances. Despite this, he informed the Tribunal - and the Tribunal accepts - that he approached the issue of disciplinary sanction with considerable reluctance. Having done so, he concluded that the appropriate sanction was dismissal. In reaching this conclusion, he was conscious that the behaviour in question would in other circumstances have led to the imposition of a warning. However, as he made clear in his evidence to the Tribunal, given the Claimant’s disciplinary warning from the preceding year, he viewed that the only sanction available to him was that of dismissal. He considered his ‘hands were tied’;

6.33 In the view of the Tribunal, the discussion held between Mr Constable and the Claimant in the disciplinary hearing was successful in identifying their Case No:1804762/2019 9 respective positions. However, insofar as the hearing was intended to engage with the detail of the Claimant’s explanation and understanding, it failed to do so. This failure occurred in the context of a case in which the account advanced by the Claimant had been received without contradiction or suspicion of incredulity. Despite these realities, Mr Constable’s notes of his deliberations [page 105] record there were no mitigating circumstances. Further, the outcome letter [page 107] suggests that the Claimant had in fact admitted the misconduct. The Tribunal is satisfied that whilst the Claimant had admitted the chronology, he had not at any time admitted any wrongdoing. Similarly, and contrary to the terms of the same letter, the Claimant had indeed provided an explanation for his absence and the reasons for it. It was not correct to suggest that no explanation has been provided. In fact, the explanation provided by the Claimant had been repeated on a number of occasions and had not been the subject of challenge;

6.34 The Claimant was informed of his summary dismissal in writing on 14 May 2019 [page 107]. He exercised his right of appeal [page 109]. Mr Macauley was tasked with hearing the appeal. Like Mr Constable, Mr Macauley had no prior dealings with the Claimant and there was no history between them. Mr Macauley considered it was his role as appeal officer to carry out a review of the process which had been undertaken. He did not conduct any additional interviews or inquiries. The notes of the appeal, like the disciplinary hearing, focus upon the limited nature of the permission given for annual holiday leave. Thereafter, Mr Macauley proceeded upon the basis that the remaining period during which the Claimant was away from the workplace was unapproved and had not been the subject of prior notification from the Claimant. He considered the Claimant had failed to adhere the absence notification procedures and thus had been AWOL. The Claimant attended the appeal hearing with the benefit of a Union Official: Mr Bywater. The Claimant provided a detailed explanation to the effect that he had informed Mr Brownridge of his inability to return to work prior to 18 April 2019. In this explanation, he confirmed his own recollection that he would ‘face the book’ on his return. In the view of the Tribunal, Mr Macauley accepted (and relied upon) this statement only insofar as it indicated the Claimant’s awareness that there might be consequences for his continued absence beyond the approved annual leave. In his conduct of the appeal, Mr Macauley did not delve into either why the Claimant considered he had no other option, or, in fact whether there were other options available to the Claimant or the Respondent. Nor was any consideration given to the annotation upon the holiday leave form and/or the Claimant’s assertion that he had given advance notice of his intended absence and the reasons for it. It is clear that Mr Macauley considered only the grounds of appeal. He did not give any consideration as to whether the sanction of dismissal was itself appropriate or proportionate. He did, however, record that he considered there were no mitigating circumstances. His reasons for coming to this view are not recorded. However, the notes provided [page 119] indicate he also considered no further investigation was required and the absence in question had been ‘admitted’. This represented a less than complete engagement with the issues before him and indeed, betokened a lack of engagement with the explanations which the Claimant had himself provided to Mr Macauley and others in the disciplinary process;

6.35 By letter of 12 June 2019 [page 121] the Claimant was informed his appeal had been dismissed and the decision of summary dismissal had been upheld;

6.36 The Respondent operates both compassionate leave and emergency family leave policies. The Absence Policy [page 51] acknowledges that absence in respect of either compassionate leave or family emergency would not constitute a trigger to the application of the absence policy itself. The Tribunal 10 accepts the limited evidence provided to it, which confirms that the compassionate leave policy is not confined to occasions of bereavement. The policy itself was not produced. Mr Constable was unable to express any familiarity with it. The evidence of Mr Brownridge indicated that he was in a similar position. The Claimant considered he was confronted with a family emergency which was compelling. The Respondent has not at any time challenged the veracity of the circumstances which prompted the request for leave or the purpose of the Claimant’s return to The Gambia. Despite this, it is clear that no consideration was given – at any stage of the processes to which the Claimant was subjected- to either: eligibility under those policies; or, the fact that the Claimant was confronted with a family emergency which compelled him to proceed as he did. Furthermore, no consideration was given to the important question of whether the Claimant had – in his conversation with Mr Brownridge and the completion of the annual leave form – given advance notice of absence; such that he could not be said to have failed to notify the Respondent as alleged in the disciplinary process. Submissions

[7]On behalf of the Claimant, it was submitted that the dismissal was on account of either his race or his resistance to contractual changes. In any event, the Claimant’s fall-back position is that the reason for his dismissal was not conduct and the procedure adopted by the Respondent was demonstrably unfair; with the sanction of dismissal being excessive and disproportionate.

[8]On behalf of the Respondent, it was submitted that there was no form of discriminatory conduct, on the ground of race or otherwise. It was also submitted that the Claimant’s dismissal was wholly unconnected with the annual discussion around terms and conditions. Rather, the reason for the dismissal was the Claimant’s conduct; such being an admissible reason. Further, Mr Brown submitted that the sanction of dismissal was the product of a fair investigation and procedure and ought to be considered ‘fair’ having regard to all of the circumstances of the case. In the alternative, he submitted that if and to the extent there had been any want of procedure, it was self-evident that the Claimant would have been dismissed following a fair procedure in any event; such that a significant reduction in compensation was required in line with the Polkey principle.

[9]Neither party referred the Tribunal to any legal authorities. Conclusions (1) Reason for Dismissal

[10]For the purposes of Part X of the Employment Rights Act 1996 (ERA) it is for the Respondent to show the reason for the admitted dismissal. It is well settled that the reason may be a set of facts known to, or beliefs held by, the respondent. The burden of proof has been described as notoriously low. Having considered the entirety of the evidence before it, the Tribunal has no hesitation in concluding that the reason for dismissal in this case was the Respondent’s belief that the Claimant had been guilty of misconduct, namely: unauthorised absence and failure to comply with a management request.

[11]In reaching this conclusion, the Tribunal has considered the Claimant’s assertion that the principal reason for his dismissal related to the assertion of rights for the purposes of section 104 ERA. The Tribunal is satisfied that the Respondent had a considerable number of employees who had migrated to its workforce by reason of transfers under regulation 3(1)(b) TUPE. In the view of the Tribunal, this is hardly surprising given the services provided by the Respondent. It is clear to the Tribunal that the Respondent and its managers were familiar with both the annual request for reconsideration of terms and conditions and the right of the relevant affected Case No:1804762/2019 11 employees to maintain their existing terms. The agreed evidence before the Tribunal confirms that such discussions were common place and were not confined to the Claimant. There is no suggestion that others had been dismissed for reaching the same conclusion and/or expressing the same choice as the Claimant. The Tribunal finds that management had no difficulty with the exercise of choice and/or the decision of individual employee’s in response to the approaches which were made. Indeed, certain of the managers recognised that overall the retention of existing terms was in the best interests of the individual employee and considered the choices made in line with their own preferences. Further, the Tribunal is satisfied that these were matters which played no part in the deliberative processes of Mr Constable and Mr Macauley.

[12]In consequence, the claim of automatic unfair dismissal contrary to section 104 ERA must fail and is dismissed.

[13]The Claimant also contends that the real reason for the dismissal was his race.

[14]The Claimant did not dispute the fact that the Absence Policy was well known within the workplace as imposing obligations with which all employees were required to conform. Despite this, the Claimant relies upon the act of dismissal as an act of less favourable treatment and direct discrimination contrary to section 13 of the Equality Act 2010.

[15]The Equality Act 2010 is not concerned with unfair treatment but less favourable treatment on the grounds of a protected characteristic. In this instance, the protected characteristic relied upon is the Claimant’s “race”. For this purpose, of this allegation, the Claimant relies upon a hypothetical comparator. It is well settled that the comparator (real or hypothetical) must not occupy materially different circumstances to those operating upon the Claimant. However, it was not at any time suggested by the Claimant that there have been similar absences to his own which had been tolerated in the sense of having gone without any form of disciplinary reaction, investigation or sanction. Nor was any such suggestion made to the Respondent’s witnesses during the course of the hearing.

[16]The Tribunal has reminded itself that the only act of less favourable treatment is said to be that of the dismissal itself. As such, it is necessary for the Tribunal to focus its attention upon the deliberative processes of the decision makers themselves.

[17]Having done so, the Tribunal has reminded itself that the Claimant need only lay before the Tribunal information from which it could conclude that the treatment of which he complains was on the ground of the protected characteristic of race. If, and only if, he is able to discharge this burden, is it incumbent upon the Respondent to establish that that reason or principal reason for the alleged less favourable treatment was not the Claimant’s race.

[18]In the unusual circumstances of this case, the Tribunal is satisfied that the Claimant has not laid before the Tribunal information from which it could conclude that the Claimant has been subjected to less favourable treatment on the grounds of race. However, in the event that the Tribunal is wrong in that view, it is nonetheless satisfied that the decisions made by Mr Constable and Mr Macauley were on account of the Claimant’s absence from the workplace and were wholly unconnected with the Claimant’s race.

[19]Having regard to the language of section 13 of the Equality Act 2010, the Tribunal finds that the act of dismissal did not amount to less favourable treatment because of the protected characteristic of race.

[20]Accordingly, the claim of direct discrimination is not well founded and is dismissed. 12 (2) Potentially Fair Reason

[21]The evidence before the Tribunal confirms that the Respondent was required to operate and maintain a client service commitment. The Tribunal accepts that the Respondent’s attendance and annual leave procedures were intended to enhance the Respondent’s ability to deliver that service. The policies were clearly communicated and widely known by the workforce. The Claimant did not suggest otherwise. Likewise, workplace attendance was known, and understood to be, a core requirement of service delivery. The Respondent considered the Claimant had been absent from work without permission for the period 10 April 2019 to 17 April 2018. Its managers were also of the view that such conduct would result in disciplinary sanction up to and including dismissal. Mr Constable considered that the misconduct in question would, but for the prior written warning, have resulted in the imposition of a warning and not dismissal.

[22]The question whether the sanction of dismissal was within the range of potential disciplinary response to the perceived misconduct must be viewed from the vantage point of the reasonable employer. It is no part of the Tribunal’s function to substitute its own view. Adopting this perspective, the Tribunal is satisfied that unauthorised absence and a perceived failure to adhere to absence policy reporting obligations would entitle a reasonable employer to give consideration to the sanction of dismissal. (3) Fair Procedure

[23]Mr Brown invited the Tribunal to conclude that the procedure adopted by the Respondent was, when viewed in the round, fair and proportionate. The Claimant submitted the opposite. The Tribunal has reminded itself that it is necessary to consider the totality of the disciplinary process; from investigation to appeal. It has also borne in mind that it is no part of the employer’s obligation to replicate the procedural standards of the courts and Tribunals. There is, however, a core obligation on the employer to engage with the detail of the disciplinary allegation and consider and assess, with care, the employee’s response to it. As is commonly the case in misconduct cases, this extends to a duty to identify and consider the information available, and pursue lines of investigation, including exculpatory material, where it is available. Whilst astute to avoid the risk of substitution, in the collective experience of the Tribunal, a reasonable employer would have given careful consideration to the requests made by the Claimant of Mr Brownridge, the unchallenged explanation of the family emergency with which the Claimant was confronted, and the extent to which, if any, the Claimant’s domestic needs might well have been accommodated through its own emergency family and compassionate leave policies. Yet these were not considered at the investigatory, disciplinary or appeal stages. More fundamentally, it was Mr Constable’s evidence that he considered his hands ‘were tied’. The Tribunal accepts his evidence as accurately capturing the position as he perceived it. Despite this, the deliberation documentation [page 105] which required completion by him, was populated so as to indicate there were no extenuating or mitigating circumstances. In the view of the Tribunal, the circumstances prompting the Claimant’s approach to Mr Brownridge were legitimate points of reference for the disciplinary officer. The completion of the document in the form before the Tribunal is difficult to reconcile with: the unchallenged explanation provided by the Claimant, Mr Brownridge’s own counter proposal which accepted the invidious position in which the Claimant found himself, or, for that matter, the fact that, if managed differently, the situation might well have prompted reliance upon other policies operated by the Respondent.

[24]Having regard to these matters, the Tribunal has come to the conclusion that the dismissal was procedurally unfair. In the view of the Tribunal, a reasonable employer would have recognised, engaged with, and given consideration to, the matters which prompted the Claimant’s request, the timing and form of his request, the implications Case No:1804762/2019 13 of the conversation with Mr Brownridge, together with the manner in which the annual leave form had been completed and processed. These were not considered at the investigatory or disciplinary stages. Their omission was repeated on the appeal hearing conducted by Mr Macauley which, on his own evidence, was confined to a review of the decision reached by Mr Constable. Where, as here, the Respondent operates both a compassionate leave policy and an emergency family leave arrangement, a reasonable employer would necessarily have considered whether the Claimant’s conversations with management (and the submission of the annual leave form) ought to have prompted accommodation under either policy. As previously noted in this Judgment, the Tribunal has not been provided with copies of those policies. It was the evidence of Mr Brownridge that compassionate leave was not confined to cases of bereavement and further, that emergency leave could be granted for periods of several days.

[25]There is no evidence to indicate that any of these factors were accommodated or featured within the deliberative processes which culminated in the Claimant’s dismissal and the rejection of his appeal.

[26]It follows that the claim of unfair dismissal contrary section 98(4) of ERA is well founded and succeeds. (4) Polkey and Contribution

[27]Having found the Claimant’s dismissal to be procedurally unfair, the Tribunal is required to consider the prospects of the Claimant being dismissed in the event a fair procedure had been adopted. Both parties have made submission on the Polkey issue. Mr Brown submits there should be a significant Polkey reduction. The Claimant: the exact opposite.

[28]However, having formulated its primary findings of fact, the Tribunal has concluded that its ability to conduct the necessary informed hypothesis is presently impeded by the absence of the Respondent’s policies concerning compassionate and emergency family leave. Given the potential importance of these documents, the Tribunal has concluded that the proper course is to defer the determination of this issue, together with the matter of potential contributory conduct, to enable receipt of additional documentation and submissions to be received upon the remedy hearing. (5) Statutory Uplift

[29]The parties will be invited to make submissions on the question of the statutory uplift (if any) at the remedy hearing. Employment Judge Morgan Date: 30th December 2020 Case Number: 1804762/2019 1 EMPLOYMENT TRIBUNALS Claimant: Mr Ceesay Respondent: City Facilities Management Ltd Employment Judge: E P Morgan QC Members: Mr Taj Mr Pearse Hearing: By CVP 16 March 2021 Representation: Claimant: In Person Respondent: Mr Brown (Solicitor)

[1]The Respondent is ordered to pay to the Claimant the sum of £7429.50 by way of compensation in respect of the claim of unfair dismissal.

[2]The Employment Protection (Recoupment of Benefit) Regulations 1996 do not apply to this award.

[1]By its judgement issued to the parties on 11 January 2021, the Tribunal dismissed the claims of raised Race Discrimination and automatic unfair dismissal. However, the claim of unfair dismissal contrary to section 98 (4) of the Employment Rights Act 1996 was upheld.

[2]This hearing has been held to determine the issue of remedy. For this purpose, the Tribunal has been provided with a bundle of additional documents [93 pages]. The tribunal has also received additional oral evidence from the Claimant. It has also had the benefit of evidence from Miss Dunbar, People's Director with the Respondent company.

[3]At the outset of the hearing, the parties confirmed that the documentation provided to the Tribunal was available to them. There were no other preliminary matters. Case Number: 1804762/2019 2 Further Findings of fact

[4]Within the course of its earlier judgement, the tribunal detailed a number of principal findings of fact. Those findings are, to be treated as repeated and adopted within the course of this Judgment.

[5]Having received the additional documentation and evidence, the Tribunal makes the following further findings upon the balance of probabilities:5.1 At the time of his induction with this Respondent, and annually thereafter, the Claimant was given access to his own copy of the “Colleague Handbook” adopted by the Respondent. This document details the principal policies and procedures relied upon by the Respondent insofar as they relate to hourly paid employees. It was the evidence of Miss Dunbar, which the Tribunal accepts, that revisions of this document prompted the circulation of up-to-date copies to Depot Managers, for onward transmission to each individual employee;

5.2 The Colleague Handbook contains “standards of conduct”. The opening paragraph of that document states: "Not attending work places additional workload on other colleagues and reduces our opportunity to deliver great service. Absence from work can however sometimes be unavoidable. City therefore strictly monitors absence to ensure those who generally need time off are supported and those whose absence becomes a problem are dealt with in a fair and consistent manner."

5.3 Thereafter, detailed guidance is given as to the step to be taken by those who are absent from work and the obligation to maintain direct communication with their "Line Manager" during absence;

5.4 Within the same section of the Handbook there is specific mention of "Absence without leave". It provides: "Failure to follow City's absence reporting procedure will result in you being classed as absent without leave (AWOL). Under our absence policy, where we are unable to make contact with colleagues, the absence is unauthorised, classified as gross misconduct and could lead to your dismissal." [P64]

5.5 In connection with disciplinary and grievance procedures, the same document records: “There are types of behaviour and conduct which are taken very seriously by the Business and can result in disciplinary action or even dismissal. In order to ensure that our actions are consistent and fair, we have a procedure to deal with misconduct and breaches of our rules. Although we hope you will never be involved in disciplinary action, this procedure allows for counselling, warnings and, for continuing lapses, dismissal with notice. Gross misconduct may result in summary dismissal. These procedures do not form part of your contract of employment but give details of what to do if you wish to appeal against a disciplinary decision or if you wish to raise a grievance.”

5.6 The Respondent has adopted what it terms as "Family Friendly Policies." These include reference to compassionate leave and absence to aid dependents. With regard to "time off for dependents" certain key pointers are provided by way of Case Number: 1804762/2019 3 guidance. These include a statement to the effect that such absence is "unpaid". It also provides: “The right is to a reasonable amount of time off-normally a day or two but this will depend on individual circumstances. The right to time off is to deal with emergencies involving a dependent. A dependent is someone who depends on a colleague for care.… The colleague must tell is as soon as possible the reason for the absence and how long they expect to be absent.” [P87]

5.7 In connection with compassionate leave, the handbook provides the following: "All colleagues will be able to take compassionate leave of up to 5 days with pay in the event of the death of a husband, wife, living partner, civil partner, child, parent, grandparent, brother or sister.…"

5.8 As indicated in the course of the Tribunal's previous judgement, the Claimant did not at any time seek to invoke these policies. The approach which he made to Mr Brownridge was and remained a request for extended leave. In the view of the Tribunal, this is hardly surprising. As the evidence of Miss Dunbar confirmed, non-management employees would be unaware of any wider managerial discretion in the event of extenuating family circumstances or the need for other urgent requests not specifically addressed within the course of the policies promulgated by the Respondent.

5.9 In fact, contrary to the evidence given to the Tribunal by the Respondent's managers at the previous hearing, the policies do not in fact provide for compassionate leave in circumstances where there is no bereavement. Similarly, the express terms of the policy concerning dependent relatives are directed to those who are in the care of the relevant employee. Neither appear to have any application to the Claimant. The Claimant does not suggest otherwise. Miss Dunbar confirmed that the circumstance in which the Claimant found himself in March 2019 would not have given rise to any entitlement under either of those policies;

5.10 As noted in the previous findings made by the Tribunal, it is the Claimant's case that he was confronted with a dilemma, namely: the need to travel urgently to The Gambia in order to support his mother in the pre-operative stage of medical treatment (i.e. before scheduled surgery was to take place). In the events, he was able to arrive in The Gambia on 2 April 2019. The surgery in question was not scheduled to take place until 12 April;

5.11 Whilst in The Gambia, the Claimant had access to various forms of electronic and telephonic communication which enabled him to make contact with the Respondent should he wish to have done so;

5.12 Within the disciplinary procedure which culminated in the Claimant’s dismissal, there was no mention made of any discretion being enjoyed on the part of the relevant disciplining or appeal officer. Indeed, Mr Constable indicated to the Tribunal that he considered his “hands were tied". This was on account of the fact that the Claimant was already the subject of a disciplinary sanction in the form of a final warning; such warning having been imposed on 23 July 2018 [P91]. That sanction had not been the subject of appeal and was therefore operative at the time of the events which culminated in the Claimant's dismissal; Case Number: 1804762/2019 4

5.13 Having embarked upon his leave, the Claimant was clear in his own mind that he would not be returning to the workplace until 18 April 2019.

5.14 During the course of his absence, the Claimant's wife received a letter indicating that the Respondent considered the Claimant to be absent without leave. It is the Claimant's evidence to the Tribunal that he made an attempt to telephone managers, but was unable to make contact with them. In the view of the Tribunal, this was an isolated attempt. There were other avenues of communication available to the Claimant. These included email, WhatsApp messaging or texts. Indeed, given the Claimant had received communication from his wife following correspondence received from the Respondent, it is clear that he had both the means and the opportunity to communicate with his employer should he have wished to do so;

5.15 In the view of the Tribunal, there is an important distinction to be made between the demands which were operating upon the Claimant at the time of his interaction with Mr Brownridge and his ability to communicate with his employer having embarked upon the leave in question. In the former, the Claimant considered that the position was "time critical". Whether on account of cultural tradition or otherwise, as the eldest of his family, there was an expectation upon him to return to The Gambia to support, guide and advise his mother in preparation for her scheduled surgery. However, having secured his attendance at the family home, it was possible for him to assess circumstances and, in the view of the Tribunal, to reconsider both the duration of his stay and the reasons for it. It was open to him thereafter to communicate more directly with his employer his own position and to do so in greater detail than that which may been available to the time of dealing with Mr Brownridge;

5.16 At no stage during the course of the disciplinary or appeal procedure was any mention made of the discretion enjoyed by managers with regard to those eventualities which were not expressly catered for in the Respondent's policies;

5.17 Following the Claimant's dismissal he made several applications for alternative employment. Happily, within the period of three weeks he secured a position. He remains in that same employment as at the date of the remedy hearing;

5.18 The Claimant has since that time made some modest attempts to find further employment. In total these are said to be limited to somewhere in the order of 10 applications. The Tribunal was not provided with any documentation evidencing these applications. The Claimant's evidence on this issue was far from precise. Whatever the exact position, the Claimant has remained in his new employment since and has worked entirely day shifts. He has given evidence the Tribunal, which the Tribunal accepts that he has suffered a loss in income of £80 per week gross; his gross pay in his new employment is £18,738 per annum. His average gross weekly income is £360 per week as against £440 per week earned with the Respondent. The Claimant does not receive any additional benefits in kind as part of that arrangement; and

5.19 In his search for alternative employment, the Claimant was required to take into consideration the fact that he does not himself drive, with the result that he was limited in his search for employment within a reasonable travelling distance from his home. Case Number: 1804762/2019 5 Issues

[6]As confirmed by the parties, there are four issues which require resolution by the Tribunal. These comprise: the compensatory loss sustained by the Claimant; the extent to which any such losses should be reduced to reflect the prospect of the Claimant having been dismissed in the event of a fair procedure being adopted (the Polkey question); the issue of contributory conduct and the application of any statutory uplift. Submissions

[7]The submissions made by the Claimant may be shortly stated. He denies that there was a prospect of a fair dismissal; with the result that he invites the Tribunal to conclude that should be no Polkey reduction. He denies also that his conduct at any time could or should have contributed to the risk of dismissal. With regard to the statutory uplift, the Claimant invites the Tribunal to make a full uplift of 25% of the compensation awarded.

[8]On behalf of the Respondent, Mr Brown submitted:8.1 The Claimant has failed to mitigate his losses;

8.2 There was a significant prospect of the Claimant being dismissed in the event of a fair procedure been followed; and

8.3 There is no legitimate basis upon which the Tribunal could or should make an award by way of statutory uplift.

[9]Before dealing with the resolution of those matters, the Tribunal also notes that it was the Claimant's admission that he was also entitled to a total of 21 days accrued unpaid holiday pay. This claim did not feature in the original claim form. The tribunal has not heard any evidence in support of it. The tribunal therefore has no difficulty in dismissing that submission and/or any claim to which it relates. Discussion and

Conclusions

Discussion and Conclusions

[10]Section 123 of the Employment Rights Act 1996 requires the Tribunal to determine the question of compensation having regard to what it considers to be “just and equitable. The first step in the formulation of its answer to that question is to identify the losses sustained by the Claimant. Claimant’s Loss

[11]In this respect, the Tribunal concludes as follows:11.1 As a result of his dismissal, the Claimant has suffered immediate losses of three weeks pay. This translates to the sum of £1320; and

11.2 For reasons identified earlier in the course of this judgment, the Claimant has suffered continuing loss of £80 per week. This, of course, takes into account the sum of £360 per week from his substitute employment.

[12]Where it is asserted that there has been a failure to mitigate, the burden of proof is upon the Respondent. The Tribunal is satisfied that the burden of proof has not been discharged. In reaching this conclusion it bears in mind that the Claimant had been Case Number: 1804762/2019 6 summarily dismissed. On any view, this would initially at least, impede the Claimant's ability to secure alternative employment. However, the Tribunal is also satisfied that having gained such employment, it was then open for the Claimant to enhance the terms upon which he was employed by means of alternative employment within a period of six months. Whilst not a finding of a failure to mitigate, it is a factor of relevance to the Tribunal's assessment of what it considers to be just and equitable for the purposes of section 123 of ERA. Polkey

[13]Following Polkey v Daynton Services it is incumbent upon the Tribunal to consider and evaluate the prospect of a dismissal in the event a fair procedure had been adopted. In approaching this question, the Tribunal must exercise caution so as to avoid the risk of substitution. It is clear that, contrary to the evidence received by the Tribunal on the last occasion, the employer's policies would not have covered the circumstances in which the Claimant found himself. However, the matter does not end there. As the evidence of Miss Dunbar confirms, managers were invested with a discretion. Miss Dunbar accepted that it was possible for a manager to conclude that the issue of "cost" relative to the return to The Gambia might be a factor as to why the Claimant's absence may have been justified. She did not go so far to suggest that this factor would – taken in isolation-serve to exonerate the Claimant or otherwise liberate him from the potential for disciplinary action. By contrast, the Claimant suggests that the appropriate outcome ought to be in the imposition of counselling and nothing more.

[14]The Tribunal is unable to accept the Claimant's submission on this point. The reality is that the employer was confronted with two matters:(i) an employee identified and considered to be absent without leave; and

(ii) evidence to suggest that such absence had been both deliberately pursued and maintained in disregard of the employer's absence policy. In the view of the Tribunal, a reasonable employer would entertain some doubt as to whether or not this was a wilful departure from the demands of the absence policy insofar as there was no attempt to report to management following the return to The Gambia (i.e. when the time-critical nature of the previous request had been overcome).

[15]Accordingly, whilst the Tribunal accepts there was no policy available to the Claimant which might otherwise provide exemption for the absence or his failure to report it, it is clear that management did enjoy a residual discretion as to how to engage with those issues. In this respect, it cannot be overlooked that the Claimant was already on a final warning which was live at the relevant time.

[16]Taking these matters into consideration, the Tribunal is satisfied that there was a prospect of the Claimant being fairly dismissed following a fair procedure. The Tribunal assesses the chances of such dismissal in the order of 50%. Contribution

[17]Section 122 (2) and section 123 (3) of ERA permit the Tribunal to reduce the basic and compensatory awards on the basis of contributory conduct. In the case of section 123(6) ERA, the Tribunal must be satisfied that the conduct in question caused or contributed to the act of dismissal. For this purpose, the Tribunal’s focus is upon the conduct of the Claimant alone. The Tribunal is satisfied that there was contributory conduct on the part of the Claimant in his failure to make any meaningful attempt to communicate with management on his arrival in The Gambia; especially when being alerted by his wife to the correspondence which had been received. The Tribunal is further satisfied that this did in fact contribute to the decision to dismiss and fuelled the Respondent’s view that the Claimant was intentionally disregarding the reporting Case Number: 1804762/2019 7 obligations under its absence policy. In the view of the Tribunal, it is therefore appropriate to making a finding of contribution of 10% and the basic and compensatory award will be accordingly reduced. Statutory Uplift

[18]Where the Tribunal is satisfied that there has been material non-compliance with the ACAS Code applicable to disciplinary procedures, it has the power to award an uplift of compensation of up to 25%. The Claimant has submitted that an award should be made. His submission was founded upon his own view that the dismissal was fundamentally unfair. However, the threshold for the making of such an award is noncompliance with the ACAS Code. The Tribunal has no hesitation in concluding that there should be no uplift award in this case. In reaching this conclusion, it is borne in mind that the deficiency identified in the previous judgment was one of deliberation; not process. There was no issue of non-compliance with the ACAS Code. Award of Compensation

[19]In the light of these conclusions, the calculation of the award payable to the Claimant is calculable as follows: Agreed calculation of basic award £6380 Less 10% pursuant to section 122 ERA (£638) _____ Basic Award: £5742 Loss of earnings 3 weeks (3 x 440) £1320 6 months (26 x 80) £2080 Loss of statutory Rights £350 _____ £3750 Polkey Reduction 50% (£1875) _____ £1875 Less 10% pursuant to section 123(6) ERA (£187.50) _____ Total Compensatory Award £1687.50

[20]Accordingly, the total award payable by the Respondent to the Claimant is £7429.50 and judgment is entered accordingly.