Mr A Suliman v Wm Morrison Supermarkets plc: 1805184/2018

EMPLOYMENT TRIBUNALS

Case No 1805184/2018

Between

Mr A SulimanClaimant

Wm Morrison Supermarkets plcRespondent

Before

Employment Judge Maidment

Members

Mr R Webb

Mr M Taj

In person for claimant

Mr N Bidnell-Edwards (instructed by Counsel) for respondent

Date 28 December 2018

JUDGMENT

[1]The Claimant’s complaints of automatically unfair dismissal and detrimental treatment for making a protected disclosure and for bringing to his employer’s attention matters he believed harmful to health and safety fail and are dismissed.

[2]The Claimant’s complaint of direct race discrimination fails and is dismissed.

[3]The Claimant’s complaint seeking damages for breach of contract (notice pay) is dismissed upon his withdrawal of it. Employment Judge Maidment Date 19 November 2018 Note Reasons for the judgment having been given orally at the hearing, written reasons will not be Case No: 1805184/2018 10.2 Judgment - rule 61 March 2017 provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. Case No: 1805184/2018 10.8 Reasons – rule 62(3) March 2017 EMPLOYMENT TRIBUNALS Claimant: Mr A Suliman Respondent: Wm Morrison Supermarkets Plc Heard at: Bradford IAC On: 12-15 November 2018 Before:

REASONS

[1]The Claimant contends that he made a number of protected disclosure in which he informed the Respondent that he had been assaulted at work by a colleague, Mr Wilson and that he was concerned for his own health and safety. These were identified at a Preliminary Hearing on 19 July 2018 as being made on 29 January 2018 when the Claimant spoke to Mr Mesicek, on 29 January 2018 when he spoke to Mr Gradski, on 29 January 2018 when he gave Mr Gradski his signed statement, on 30 January 2018 when he spoke to Mr Gradski and on 4 February 2018 when he gave the Respondent a letter of grievance. At the outset of this final hearing the Claimant applied to add to such disclosures an email of 1 February 2018 sent to an HR manager. In circumstances where the Respondent accepted it was unlikely to be prejudiced by this addition, the Claimant application was granted. The Respondent did not accept any protected disclosures to have been made. Case No: 1805184/2018 10.8 Reasons – rule 62(3) March 2017

[2]In the alternative, the Claimant relies on the same provision of information as constituting health and safety complaints. Over the course of evidence, it was accepted on behalf the Respondent that there was no evidence of any safety representatives or safety committee within the workplace and no contention that the Claimant had brought his safety concerns to the Respondent’s attention by unreasonable means.

[3]The Claimant then maintains that on the ground of his protected disclosures and/or raising of health and safety concerns he was subjected to detrimental treatment by the Respondent in it beginning a formal probationary review process.

[4]That process in fact led to the Claimant’s dismissal and the Claimant maintains that such dismissal was automatically unfair, the reason or principal reason for his dismissal being his protected disclosures and/or his raising of health and safety concerns. It is noted that the Claimant does not have two years’ continuous service and therefore is unable to bring a complaint of ordinary unfair dismissal.

[5]The Claimant defines himself as black Pakistani in terms of his ethnicity/national origin. He brings a further complaint that his dismissal was an act of less favourable treatment because of race, relying on the aforementioned Mr Wilson as his comparator.

[6]The Claimant had previously also brought a complaint seeking damages for breach of contract with reference to his notice period. He now accepts, however, that he was paid for his notice period and confirmed his withdrawal of such complaint.

Evidence

[7]The Tribunal had before it an agreed bundle of documents. Having discussed the issues with the parties, the Tribunal then took some time to privately reading into the witness statements exchanged between the parties and relevant documents referred to. As a result, when each witness came to give their evidence they could do so simply by confirming the contents of their written statements and then, subject to any brief supplementary evidence, be open to be cross-examined on them.

[8]The Tribunal heard firstly from Mr Ijaz Ahmed, a former colleague of the Claimant and then from the Claimant himself. The Claimant had the assistance of an interpreter throughout the hearing. On behalf of the Respondent, the Tribunal then heard from Mr Milan Mesicek, Team Manager of the bacon department and Mr Sebastian Gradski, Department Operations Manager. Both parties provided written submissions which they supplemented orally.

[9]Having considered all of the relevant evidence, the Tribunal makes the findings of fact as follows. Case No: 1805184/2018 10.8 Reasons – rule 62(3) March 2017

Facts

[10]The Claimant initially worked at the Respondent’s food processing site in Bradford as an agency worker but became a permanent employee on 16 October 2017. He worked as a factory operative in the bacon department but was identified as an individual to be trained up into the role of a machine operative and received an increase in pay to reflect that. The Respondent does not point to any concerns regarding the Claimant’s performance, timekeeping or attendance.

[11]His employment was subject to a 26 week probationary period. That provided for an informal review for employees who were not meeting the required standards with the possibility of a second stage formal probationary review meeting if no improvement was shown. The policy allowed for moving immediately to stage 2 and the option existed of extending a probationary period by up to 12 weeks. Employment might be terminated at the review meeting with a decision to be confirmed in writing. In such circumstances there would be an entitlement to notice or a payment in lieu. The policy, however, directed managers to refer to the Respondent’s separate disciplinary policy in cases of suspected gross misconduct.

[12]That policy was stated to apply to all employees apart from those covered by local agreements or in their probationary period. It provided for the convening of a disciplinary hearing with various stages of warning given unless the employee was guilty of gross misconduct. One example of gross misconduct referred to: “fighting, physical assault, verbal or physical abuse, violent, threatening behaviour or unwanted contact.”

[13]On 29 January 2018 the Claimant commenced an 8 hour shift at 6 a.m.. He was working on a bacon cutting machine which required him to take plastic wrapping off pieces of bacon and place this in large black plastic bin bags. At around 6.10 a.m. a colleague who had been working on production line 9, Carl Wilson, came across to the Claimant’s work area on line 10. A form of altercation resulted. Mr Wilson is white British in terms of ethnicity/national origin.

[14]The Claimant’s Team Manager, Mr Mesicek, heard some shouting and saw the Claimant and Mr Wilson shouting at each other. He walked over to them. It became clear that there was a dispute as to whether Mr Wilson could take some of the plastic bags away from line 10 for his own use. The Claimant’s evidence was that this ended by Mr Wilson walking off leaving the bags behind. The evidence of Mr Mescicek is that he split the bags and gave half each to the Claimant and Mr Wilson. This is not a material conflict of evidence. Whilst the Claimant maintains that he told Mr Mesicek that Mr Wilson had assaulted him, the Tribunal prefers the evidence of Mr Mesicek that he was unaware of any alleged assault given Mr Mesicek’s reaction of leaving the Claimant and Mr Wilson to get on with their work and his lack of reporting of the incident. His actions reflected his view at that moment in time, which he stated before the Tribunal, that this was a minor incident. Case No: 1805184/2018 10.8 Reasons – rule 62(3) March 2017

[15]The Claimant thought further about the incident with Mr Wilson however and when it came to his break at around 10 a.m. he went to the People Team Office and told one of the People Assistants, Ms Carter, that there had been an incident between him and Mr Wilson. Ms Carter made Mr Gradski, Department Operations Manager, aware of what the Claimant had reported and a meeting was swiftly arranged with the Claimant, Mr Gradski and Ms Carter. A record was kept of that meeting which lasted around 15 minutes and which the Claimant signed. The Claimant maintains that some of the pages of the interview notes are missing but the second page of the notes does refer to Mr Gradski having one final question and there is no indication that the conversation continued.

[16]Mr Gradski opened the meeting by saying that a concern of the Claimant had been brought to his attention. He asked the Claimant to explain what had happened. The Claimant said that Mr Wilson had taken all of the Claimant’s bin bags and the Claimant had asked him why. The notes record the Claimant then referring to Mr Mesicek arriving on the scene, but the Tribunal concludes that either the Claimant’s account or the notetaking was confused at this stage. Mr Mesicek, it concludes, arrived later and, in particular, later than the point where the Claimant then alleged that Mr Wilson had pushed him and said to him that he would see him after work, effectively threatening him. The Claimant does not maintain before the Tribunal that Mr Mesicek was a witness to that. The Claimant gave the names of a number of potential witnesses and said that he had also reported the matter to his line manager, Jan. He said that Mr Wilson had also (on a separate occasion) abused a female colleague, but that she wouldn’t complain. The Claimant said that he was scared as Mr Wilson worked with a knife. He said that he had been moved to line 1 after the incident as he needed to work there. He said that he didn’t want to work on line 10 and said that Mr Wilson might use the knife to kill him. The Claimant demonstrated the nature of the alleged push to Mr Gradski. The Claimant was told not to worry and that Mr Gradski would ensure action was taken before the end of the Claimant’s shift.

[17]The Claimant’s move to line 1, the Tribunal concludes, was for him to operate a machine on line 1 instigated by another Team Manager, Kasha Gdula. The move occurred, on the Claimant’s evidence, before his meeting with Mr Gradski, but he had not reported his fears before he went to People Management which led quickly to this meeting with Mr Gradski. Mr Mesicek had seen the incident as having been minor in nature, based upon what he was aware of. He would not have recognised any need or desire on the Claimant’s part to move to a different line. It is noted that the Claimant returned to work on line 10 the following day and did not raise any concern about so doing.

[18]Mr Gradski conducted interviews then with potential witnesses. Mr Ahmed said that, whilst he had not heard what had been said between the Claimant and Mr Wilson, he saw Mr Wilson push the Claimant. He said that Mr Wilson touched the Claimant’s shoulder and pushed him out of the way, continuing that they were shouting at each other. He said that he was not aware of any other issues, but that Case No: 1805184/2018 10.8 Reasons – rule 62(3) March 2017 the Claimant and Mr Wilson did shout at each other. Mr Ali-Jina, when interviewed, said that Mr Wilson came to get bags and that the Claimant told him he couldn’t take the bags and stood in his way. When asked if there was physical contact, he said that Mr Wilson had held the Claimant’s shoulders and moved him out of the way continuing that “he wasn’t aggressive just moving past him.” He said that Mr Mesicek then arrived and that they were having a “tug-of-war” with the bags. Ms Angora said that Mr Wilson came to line 10 and the Claimant and he were arguing and “they started pushing each other”. She said that the Claimant touched Mr Wilson on the chest saying “don’t touch bags”. She said that they had had arguments about the bags before. Ms Irum said that she hadn’t seen anything. Ms Rojikova said that both Mr Wilson and the Claimant had been shouting and pushing, but she didn’t see who had started it.

[19]Mr Wilson was then interviewed. He said that he had gone for some bags. The Claimant had told him that he couldn’t take them and squared up to him. In response to a question from Mr Gradski as to why he touched him, he said “because I couldn’t move and was getting backed up so just moved him to get myself out of the way.” Mr Wilson was told that there was an ongoing investigation and to keep matters confidential.

[20]Mr Gradski spoke to Mr Mesicek who said that he had approached the Claimant and Mr Wilson because they were arguing, but that he did not view the incident as particularly serious. Mr Gradski then checked the CCTV footage but found that it did not capture the relevant area. The Tribunal heard and accepted his clear and detailed explanation that the fixed position camera covered the end of line 8 and 9 where a bagging machine was located. Around two years previously there had been an incident with that machine when staff had cut a sensor. This caused the Respondent to position the camera to view that piece of machinery. The Claimant worked around 20 metres from the bagging machine and therefore the camera did not record him when working at his normal workstation.

[21]The Claimant attended work the next day. He spoke to Mr Gradski chasing progress on the investigation. The Claimant maintains that he said that he was worried about being attacked by Mr Wilson. Mr Gradski denies that the Claimant raised this and that he himself then said that the Respondent could not provide the Claimant with security at work and was not responsible if anything happened. Whilst the Tribunal can accept that the Claimant raised his concern about Mr Wilson, as he had already of course the previous day, the Tribunal does not regard it as credible that Mr Gradski would effectively deny any responsibility – the evidence is consistent with the incident being taken seriously and fully investigated. The Tribunal accepts that the Claimant’s perception was that nothing was being done, but not that Mr Gradski told him that the Respondent would not protect him.

[22]Mr Gradski said to the Tribunal that he then considered that both the Claimant and Mr Wilson’s behaviour warranted further consideration. On balance, he felt that Case No: 1805184/2018 10.8 Reasons – rule 62(3) March 2017 both had behaved inappropriately. He also took the view that the Claimant appeared to be the aggressor because or in the sense that he was the one who stopped Mr Wilson from taking the bin bags and had blocked his way. He felt that the Claimant might have provoked Mr Wilson. A better option, he considered, would have been for the Claimant to have ignored Mr Wilson and raised the issue with his manager if Mr Wilson taking bin bags away from line 10 was a problem. Equally, he took the view that having been challenged by the Claimant, Mr Wilson had made inappropriate contact with the Claimant. He made a recommendation to HR that Mr Wilson be invited to a disciplinary hearing. Responsibility for that was ultimately passed to Mr Naylor, Engineering Manager.

[23]On 1 February Mr Gradski asked HR to write to the Claimant inviting him to attend a meeting with him to formally review his conduct and behaviour during his probationary period. Essentially, he felt it was appropriate to bring forward the Claimant’s probationary review.

[24]The Claimant emailed HR on the evening of 1 February saying that he had been assaulted by a colleague. He asked for a copy of the Respondent’s procedures and of CCTV footage. He did not mention fears for his safety and/or Mr Gradski having said that the Respondent could not protect him. This omission does not support the Claimant’s contention that Mr Gradski spoke to him in these terms, nor does the Claimant’s failure to challenge him on this point in cross-examination.

[25]A letter inviting the Claimant to a probationary review was handed to the Claimant whilst at work on 2 February. The meeting was initially scheduled for 5 February. The Claimant within this letter was notified of his right to be accompanied and told that a possible outcome could be his dismissal. The Claimant was not however given copies of the notes of the investigation meetings with the witnesses to the incident.

[26]The Claimant, on 4 February, emailed human resources a letter of grievance referring to the probationary meeting and saying that he felt he was being victimised for raising a grievance. He referred in this grievance, for the first time, to Mr Gradski allegedly saying that the Respondent could not provide him with security at work and was not responsible if anything happened.

[27]Mr Gradski’s evidence before the Tribunal was that he was completely unaware at the time of the Claimant’s 1 and 4 February emails sent to HR and there is no evidence to the contrary. He only became aware of them after the commencement of these proceedings.

[28]The Claimant’s probationary review meeting ultimately took place on 8 February. The Claimant attended. Mr Gradski was accompanied by Ms Mguni of human resources who took a note. Mr Gradski expressed his view that the statements Case No: 1805184/2018 10.8 Reasons – rule 62(3) March 2017 gathered revealed that both the Claimant and Mr Wilson were arguing over bags. This was unprofessional. He continued that based on the statements it seemed like both of them were “attackers”. Both of their behaviour was unacceptable and it was 50/50 on the statements. He said that he was not convinced from the statements that the Claimant had been attacked by Mr Wilson and that the information said otherwise. Mr Gradski agreed, when put to him in evidence, that the statements were conflicting, but he felt they showed inappropriate behaviour on the Claimant’s part, not least in that the Claimant should not have stood so as to block Mr Wilson’s path. He considered that the Claimant’s behaviour during the probationary meeting also displayed an element of aggression which reinforced the view he took from the witness statements. If the Claimant had behaved calmly, he said, then that would not have corresponded with how the Claimant came across from the witness statements.

[29]The Claimant raised that the probationary policy was to deal with issues of performance and behaviour not conduct. Mr Gradski disagreed. He adjourned the meeting for 19 minutes and came back to give his decision. This was to terminate the Claimant’s employment based on his gross misconduct on 29 January. He was told he had no right to appeal as he was still in the probationary period. The matter had been investigated on the basis that the Claimant had said he was the victim. However, from information they had from the statements, Mr Gradski said that they had learned that the Claimant was the aggressor in the incident. The Claimant again queried why the disciplinary procedures had not been followed and Mr Gradski responded that the Claimant was not going to tell him how to do his job.

[30]Mr Gradski’s evidence was that the Claimant became increasingly aggressive at this point which necessitated his removal from site by security. The Claimant denied any aggression and explained how it was absolutely routine for security to escort him firstly to his lockers and then to the exit door at which point he would hand back his electronic pass.

[31]Mr Gradski explained to the Tribunal that he had terminated the Claimant’s employment because during a probationary period, in which the Respondent put extra focus on employees’ behaviour, focus and attendance, the Claimant demonstrated that he was not capable of behaving appropriately. Probationary staff had to show that they deserved to become permanent employees – someone had to be “crystal clear” to get a permanent job. In his view the Claimant’s behaviour was not acceptable and he had significant concerns that if he was capable of behaving in this way so early on in his employment relationship, when he should be making a good impression, there was a good chance that he would do it again. He had lost confidence in the Claimant (and indeed, he said, Mr Wilson). He said nevertheless that he had not suspended them from work and had allowed them to continue to work in close proximity to each other because he thought Mr Wilson had calmed down and would not react further. He did not think that there was a safety concern. Case No: 1805184/2018 10.8 Reasons – rule 62(3) March 2017

[32]Mr Gradski said that the nature of the incident was nothing serious but at the same time their behaviour was not appropriate and could not be tolerated. It was a bad example to the other 300 workers Mr Gradski had to manage and he had to take it seriously. Mr Gradski recognised that the Claimant had himself reported the incident but said that the Claimant had not realised when doing so that he had not behaved appropriately himself. It would have been very different if he had let Mr Wilson take the bags and then reported it or if he not had shouted himself. He had no interest in losing the Claimant’s services – he had one less employee who could operate a machine and was already 20 people short on any given shift. He denied that the Claimant’s race was relevant at all or influenced his decision.

[33]Mr Gradski’s decision was confirmed in writing to the Claimant in a letter of 12 February. This referred to the 29 January incident as gross misconduct “where you put yourself and other colleagues at risk during an argument with another colleague on line 10. Your conduct and behaviour on line 10 is a serious gross misconduct act.” The Tribunal notes that the Claimant has since been paid by the Respondent in respect of his notice pay entitlement.

[34]Mr Mark Naylor subsequently conducted a disciplinary hearing with Mr Wilson. Mr Gradski was not involved at all in this process. Mr Wilson had received a much fuller invite to his disciplinary hearing than the Claimant’s invitation to a probationary review. He was given a list of evidence to be considered and, it appears, copies of relevant statements. Mr Wilson’s disciplinary hearing took place on 20 February. Mr Wilson referred during it to moving the Claimant out of his way. After an adjournment, Mr Naylor explained that he understood that Mr Wilson needed some bags. He said that he accepted he was not aggressive but that he needed to be mindful. There was also a separate disciplinary charge regarding a breach of social media policy where Mr Wilson had messaged as follows: “some asshole from line 10 said I threatened to kill him outside.”

[35]Mr Naylor wrote to Mr Wilson by letter of 22 February confirming that he was considered guilty of gross misconduct in firstly aggressive behaviour towards another colleague risking that other colleague’s safety and secondly in commenting about the disciplinary process on Facebook. However, it had been decided to issue him with a first written warning for his conduct. He was given the right to appeal against this decision.

[36]Mr Gradski was not informed of that decision but asked himself, after a return from leave, what the outcome had been. He was not happy with the outcome and told the Tribunal that if he had conducted Mr Wilson’s hearing, he would most likely have dismissed him as on the facts he considered that Mr Wilson had been guilty of inappropriate behaviour, as had the Claimant.

[37]The Tribunal has been shown dismissal letters relating to other employees, 2 of which were issued by Mr Gradski, all headed “probationary review meeting outcome”. The first was issued on 28 April 2015 to a Polish employee for gross Case No: 1805184/2018 10.8 Reasons – rule 62(3) March 2017 misconduct in an admitted theft. A second, which Mr Gradski could not recollect any involvement in, was sent to a white British employee dated 18 July 2016 for breach of the social media policy and for inflammatory comments and a third to a Polish worker dated 20 May 2017 for unacceptable behaviour in shouting and swearing at colleagues and failing to declare a previous dismissal when applying for employment with the Respondent.

Conclusions

[38]The Claimant complains of direct race discrimination in his dismissal. In the Equality Act 2010 direct discrimination is defined in Section 13(1) which provides: “(1) 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.”

[39]Section 23 provides that on a comparison of cases for the purpose of Section 13 “there must be no material difference between the circumstances relating to each case”.

[40]The Act deals with the burden of proof at Section 136(2) as follows:- “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravenes the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provisions”.

[41]In Igen v Wong

[2005] ICR 935

guidance was given on the operation of the burden of proof provisions in the preceding discrimination legislation (particularly on the Tribunal’s scope for inferring discrimination) albeit with the caveat that this is not a substitute for the statutory language. The Tribunal also takes note of the case of Madarassy v Nomura International Plc

[2007] ICR 867

[42]It is permissible for the Tribunal to consider the explanations of the Respondent at the stage of deciding whether a prima facie case is made out (see also Laing v Manchester CC IRLR 748). Langstaff J in Birmingham CC v Millwood 2012 EqLR 910 commented that unaccepted explanations may be sufficient to cause the shifting of the burden of proof. At this second stage the employer must show on the balance of probabilities that the treatment of the Claimant was in no sense whatsoever because of the protected characteristic. At this stage the Tribunal is simply concerned with the reason the employer acted as it did.

[43]The Tribunal refers to the case of Shamoon v The Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

for guidance as to how the Tribunal should apply what is effectively a two stage test. The Supreme Court in Hewage v Grampian Health Board

[2012] UKSC 37

also made clear that it is important not to make too much of the role of the burden of proof provisions. They will require Case No: 1805184/2018 10.8 Reasons – rule 62(3) March 2017 careful attention where there is room for doubt as to the facts necessary to establish discrimination. However, they have nothing to offer where the Tribunal is in a position to make positive findings on the evidence one way or the other.

[44]Section 43A of the Employments Right Act 1996 provides that a “protected disclosure” means a qualifying disclosure (as defined by Section 43B) which is made by a worker in accordance with any of the Sections 43C to 43H.

[45]In turn Section 43B of the Employment Rights Act 1996 provides as follows:- “(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, [is made in the public interest and] tends to show one or more of the following:-(a) that a criminal offence has been committed, is being committed or is likely to be committed.

(b) that a person has failed, is failing, or is likely to fail to comply with any legal obligation to which he is subject; ….

[46]Section 43C deals with disclosure to an employer and in terms of qualifying disclosures provides the lowest threshold for an employee to overcome. The Tribunal has been referred by Mr Bidnell-Edwards to the case of Chesterton Global Ltd v Nurmohamed

2017 EWCA Civ 979

on the question of “public interest”. There it was said that the Tribunal had to ask whether the worker believed at the time he was making it that the disclosure was in the public interest and if so whether that belief was reasonable. The question whether disclosure was in the public interest depended on the character of the interest served by it rather than simply on the numbers of people serving that interest. He submits that in this case the character of the interest was purely personal. Even if the Claimant genuinely held a belief that a public interest was served in reporting an assault, that was wholly unreasonable given the low-level nature of the incident even on the Claimant’s own account.

[47]The Claimant alleges that he has been dismissed by reason of him having made a protected disclosure and therefore that his dismissal was automatically unfair. He alternatively argues that in his disclosures he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety – see Section 44 (c) of the 1996 Act which the Tribunal notes does not include any additional hurdle that the raising of concerns is reasonably believed to be in the public interest. The Respondent has produced no positive evidence of the existence of any elected safety representative or safety committee. Case No: 1805184/2018 10.8 Reasons – rule 62(3) March 2017

[48]Section 103A of the Employment Rights Act provides that:- “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”

[49]Section 100 is framed in similar terms in respect of the raising of health and safety concerns.

[50]They require a test of causation to be satisfied. The sections only render the employer’s action impermissible where that action was done because the employee had made a protected disclosure/raised a health and safety concern. In establishing the reason for dismissal, this requires the Tribunal to determine the decision-making process in the mind of the dismissing officer which in turn requires the Tribunal to consider his conscious and unconscious reason for acting as he did.

[51]The issue of the burden of proof in whistleblowing cases was considered in the case of Maund v Penwith District Council

1984 ICR 143

. There it was said that the employee acquires an evidential burden to show – without having to prove – that there is an issue which warrants investigation and which is capable of establishing the competing automatically unfair reason that he or she is advancing. However, once the employee satisfies the Tribunal that there is such an issue, the burden reverts to the employer who must prove on the balance of probabilities which one of the competing reasons was the principal reasons for dismissal. However, there is an important qualification to this which applies, as in the current case, where the employee lacks the requisite two years’ continuous service to claim ordinary unfair dismissal. In such a case the Claimant has the burden of proving, on the balance of probabilities, that the reason for dismissal was an automatically unfair reason.

[52]Nevertheless, it is appreciated that often there will be a dearth of direct evidence as to an employer’s motives in deciding to dismiss an employee. Given the importance of establishing a sufficient causal link between the making of the protected disclosure and the dismissal, it may be appropriate for a Tribunal to draw inferences as to the real reason for the employer’s action on the basis of its principal findings of fact. The Tribunal is not, however, obliged to draw such inferences as it would be in any complaint of unlawful discrimination. The same principles apply when the raising of a health and safety concern is put forward as the reason for dismissal.

[53]This case also involves allegations that the Claimant has been subjected to a detriment in the commencement of a formal probationary review process on account of his having made a protected disclosure/raised safety concerns. Case No: 1805184/2018 10.8 Reasons – rule 62(3) March 2017

[54]Section 47B of the 1996 Act encapsulates a worker’s rights (in circumstances other than where the worker is an employee and the detriment in question amounts to dismissal) - Section 44 is in similar terms when dealing with the raising of a safety concern - providing at subsection (1) that :- “(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”

[55]Again, the issue of causation is crucial. The Tribunal refers to the case of NHS Manchester v Fecitt and others

[2001] EWCA Civ 1190

and in particular the judgment of Elias LJ. His view was that section 47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer’s treatment of the whistleblower. He said: “Once an employer satisfies the Tribunal that he has acted for a particular reason – here, to remedy a dysfunctional situation – that necessarily discharges the burden of showing that the proscribed reason played no part in it. It is only if the Tribunal considers that the reason given is false (whether consciously or unconsciously) or that the Tribunal is being given something less than the whole story that it is legitimate to infer discrimination in accordance with the Igen principles”.

[56]Applying the applicable law to the facts as found, the Tribunal reaches the conclusions set out below. Conclusions

[57]The Claimant’s complaints all require the Tribunal to consider the reason for his dismissal. He maintains that his dismissal was automatically unfair by reason of him having made protected disclosures or raised a health and safety concern. He maintains also that he suffered detrimental treatment on these grounds in the Respondent beginning a formal probationary review process, but that process is one which the Claimant himself would say was one embarked upon to lead to an inevitable decision to terminate his employment and both the decision to go to a probationary review hearing and to terminate his employment was taken by Mr Gradski. The Claimant also maintains that his dismissal was an act of less favourable treatment because of his race.

[58]Unfortunately for the Claimant, with less than two years’ service, he cannot bring a complaint of ordinary unfair dismissal. That means that any lack of fairness in the process or unreasonableness in the sanction of dismissal does not lead to a finding of unfair dismissal. A finding of unfair dismissal is dependent upon the Case No: 1805184/2018 10.8 Reasons – rule 62(3) March 2017 Tribunal determining that the reason was the Claimant’s raising of his health and safety concerns.

[59]The Tribunal has focused on a consideration of all of the evidence to determine what was Mr Gradski’s conscious or unconscious motivation for the decision he took to commence a formal probationary review and to terminate the Claimant’s employment – ‘the reason why’.

[60]However, this was in circumstances where the Tribunal has accepted/concluded that the Claimant has shown that he brought to the Respondent’s attention by reasonable means circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health and safety i.e. his reporting on 29 January 2018 that he had been assaulted on the factory floor by Mr Wilson. There is no evidence of the Respondent having any safety representatives or a safety committee such that it is not contended that the Claimant acted in any way improperly or so as to take him outside the scheme of legal protection by making a complaint to Mr Gradski or the Respondent’s HR department.

[61]The Tribunal also, on balance, concludes that the Claimant made a protected disclosure when at the meeting of 29 January 2018 he told Mr Gradski about the alleged assault and that there had been a breach of health and safety in Mr Wilson’s behaviour towards him. The Tribunal accepts that information was provided which tended in the Claimant’s reasonable belief to show such a breach. It is not suggested that the Claimant did not consider himself to have been assaulted and indeed the Claimant’s belief must have been reasonable in circumstances where a number of witnesses corroborated his account of Mr Wilson making physical contact with him. The Claimant also reasonably believed his disclosure to be in the public interest. His primary motivation in raising the concern was in respect of his own welfare, but that does not preclude a wider belief that the disclosure was in the public interest. The character of the disclosure, it being in relation to health and safety and in circumstances where the Claimant considered Mr Wilson to be capable of aggression at work, has to be considered. It is also noted that the Claimant referred to one other employee he felt had been subject to abuse by Mr Wilson in the context that the Claimant was also concerned about her welfare.

[62]There was, however, no disclosure to Mr Mesicek on 29 January or in a later conversation the Claimant had with Mr Gradski on 30 January. The Claimant’s email communications to human resources of 1 and 4 February cannot have been material to Gradski’s decision-making in that he was unaware of them at the time he decided to initiate a probationary review and terminate the Claimant’s employment. Case No: 1805184/2018 10.8 Reasons – rule 62(3) March 2017

[63]The Tribunal recognises that the burden of proof operates differently in the complaints of unlawful detriment, race discrimination and automatic unfair dismissal. It would, however, have concluded that when looking at what the Tribunal considers to be a very harsh decision, a lack of consideration in a detailed and forensic manner of the witness statements and Mr Wilson being at least just as culpable as the Claimant, yet receiving a sanction at the bottom end of the scale rather than the top, that it is entitled to look to the Respondent for its explanation of its treatment of the Claimant.

[64]The Tribunal has considered all of the Claimant’s points regarding, predominantly, procedural matters in this case. The Claimant could have been shown CCTV footage but was not, even if that was just to demonstrate to him that the camera had not recorded the relevant work area. The Claimant was not provided with witness statements being considered against him. It is surprising that HR did not provide Mr Gradski with a copy of the Claimant’s grievance. It is noted that the notes of an interview someone other than Mr Gradski conducted with Mr Wilson on 6 February 2018 have been lost.

[65]However, that does not lead the Tribunal to doubt the veracity of Mr Gradski’s evidence. Mr Gradski did give clear and credible evidence that he dismissed the Claimant because of his view of the Claimant’s behaviour and for no other reason. Essentially, the Claimant, as an employee still working under his probationary period, was regarded as more easily and appropriately dispensed with than someone who was a permanent member of staff and in all probability any employee who had more than two years’ service and therefore qualified to bring a claim of ordinary unfair dismissal. It is clear that the Respondent treats probationary employees differently from permanent employees. Probationary employees are quite simply invited to a probationary review meeting without necessarily the provision of detailed information about the offences they are charged with whereas it is clear from the invitation letter of Mr Wilson to a disciplinary hearing that formal procedural safeguards were thought appropriate in the case of a permanent employee.

[66]The Tribunal considers the decision to dismiss the Claimant a harsh one and doubts whether the Claimant’s employment would have been terminated if he had had two years’ service. Certainly, if he had had such service then, not least on procedural grounds, it is almost inevitable that the Tribunal would have found this dismissal to be unfair. However, again, the Claimant’s probationary status is effectively the answer in terms of the reason why the Claimant was treated as he was.

[67]The Tribunal does not consider that the Claimant was guilty of any act of gross misconduct. It does, however, conclude that Mr Gradski considered the Claimant to have been guilty of inappropriate behaviour. Tribunal also considers that Mr Gradski was not simply making a bare assertion of such belief but that he has been able to demonstrate to the Tribunal a rational basis for him holding that belief. Case No: 1805184/2018 10.8 Reasons – rule 62(3) March 2017 Whilst the incident which gave rise to the Claimant’s dismissal was not, he would accept, of the most serious nature, extra focus was put on employees on probation to see if they deserved to be made permanent employees. The Claimant, rather than reporting Mr Wilson’s taking of the bin bags to his manager, had decided effectively to confront Mr Wilson over his behaviour and this had led to a form of altercation where there was evidence from some witnesses that there had been physical contact on both sides and certainly evidence from all of the witnesses of shouting and an argument. That is the reason he decided to dispense with the Claimant’s services and he followed a process to do so he would have adopted in the case of any other probationary employee.

[68]Mr Gradski did not act inconsistently in his treatment of Mr Wilson. He advanced both the Claimant and Mr Wilson to hearings which might in both cases have led to the termination of their employment. Indeed, the Tribunal accepted Mr Gradski’s evidence that if he had decided Mr Wilson’s case it was most likely that he would have decided to terminate his employment as well.

[69]The Claimant’s race did not play any part whatsoever in his considerations. Mr Wilson was treated with greater leniency than the Claimant, but he is not a true comparator in that crucially he was a long serving employee who enjoyed greater protection both legally and through the Respondent’s own procedures. Crucially, again, there is no evidence whatsoever that Mr Gradski was involved in the decision-making regarding Mr Wilson. Indeed, the Tribunal finds was not. The Tribunal has already addressed the reason why Mr Gradski came to his decision regarding the ending of the Claimant’s employment – it was untainted by any consideration of the Claimant’s race.

[70]The Claimant would not have been dismissed had he not have reported his health and safety concerns. However, this simply provides a context for his dismissal and does not explain the reason why his employment was terminated. The Tribunal considers that there is no evidence that Mr Gradski or anyone else within the Respondent was concerned or upset that the Claimant had brought the health and safety issue to their attention. The evidence is of indeed the matter being fully investigated and pursued both in respect of the Claimant and Mr Wilson. It was not the bringing to the Respondent’s attention of the incident which caused the dismissal but the fact that the Respondent through Mr Gradski concluded that the Claimant had himself behaved inappropriately within the incident so as to justify dismissal. Again, the reason for the initiation of a probationary review and his dismissal was the genuine view Mr Gradski took of the Claimant’s behaviour at work, unrelated to the fact that he had only become aware of this through the Claimant’s own initial disclosure and unrelated to his race.

[71]On this basis all of the Claimant’s complaints of race discrimination and of suffering a dismissal and detrimental treatment for raising health and safety concerns and protected disclosures must fail and are therefore dismissed. Case No: 1805184/2018 10.8 Reasons – rule 62(3) March 2017