Mr T Karabacak v Bartlett Mitchell Ltd: 2200432/2020

EMPLOYMENT TRIBUNALS

Case No 2200432/2020

Between

Mr T KarabacakClaimant

Bartlett Mitchell LtdRespondent

Before

Employment Judge Emma Burns

Date 6 January 2021

JUDGMENT

[1]The Claimant’s complaint of “other payments” is dismissed on withdrawal.

[2]The remaining complaints in the claim proceed to a Hearing.

REASONS

[1]By his claim to the Tribunal the Claimant, Mr Karabacak, made complaints of unfair dismissal, disability discrimination under s15 of the Equality Act 2010 i.e. discrimination because of something arising in consequence of disability, and victimisation. By its response, the Respondent, Bartlett Mitchell Limited, disputed those complaints.

[2]The Tribunal is unanimous in the reasons that follow. Preliminary Matters

[3]At the commencement of the hearing the Tribunal heard and determined applications by the Claimant for specific disclosure and witness orders. The Tribunal refused these applications, giving oral reasons for its decision. In - 1 - summary, the applications related to the facts of incidents (which are referred to below) preceding the one which led directly to the Claimant’s dismissal. The issues to be determined by the Tribunal did not include finding as a matter of fact what had occurred on these occasions. Evidence on those matters would not, therefore, assist the Tribunal in determining the claim. Allowing that evidence to be introduced would have lengthened the hearing and, (in the case of the witness orders) would have risked causing an adjournment, as the individuals concerned would have to be located and served with the order.

The Issues

[4]The issues were defined by Employment Judge Emma Burns at a preliminary hearing on 21 August 2020 in the following terms. Unfair Dismissal

[5]What was the reason for the Claimant’s dismissal? Did the Respondent have a potentially fair reason for his dismissal pursuant to s.98(2)(b) of the Employment Rights Act? Conduct, on which the Respondent relies, is a potentially fair reason. The Claimant contends that he was dismissed because he had raised complaints about his disability related treatment.

[6]Given its size and administrative resources did the Respondent act reasonably or unreasonably in treating the reason for dismissal as a sufficient reason for dismissing the Claimant, and in particular:(a) Did the Respondent have an honest belief that the Claimant was guilty of the alleged conduct?

(b) Did the Respondent have reasonable grounds for believing that the Claimant was guilty of the alleged conduct?

(c) At the time of its belief, had the Respondent carried out as much investigation as was reasonable in the circumstances?

[7]Did the Respondent’s decision to dismiss the Claimant fall within the range of reasonable responses that a reasonable employer in those circumstances might have adopted? Is it appropriate for the Tribunal to look at the first and final written warning previously imposed on the Claimant by the Respondent?

[8]Did the Respondent follow a fair procedure, and if not, what is the chance expressed in percentage terms, that a different outcome would have been reached if it had, and when. Disability Discrimination

[9]The Respondent agrees that the Claimant has a disability (ankylosing spondylitis). The Claimant contends that this affects his movement, and that the medication that he takes for the condition suppresses his immune system. He - 2 - says that his doctors have recommended that he adjust his working hours and that he is unable to work an evening shift because of his physiotherapy. He says that this inability to be flexible in his working hours is “something arising in consequence” of his disability. Section 15 Equality Act 2010

[10]The Claimant relies on the following conduct.(a) In or round March/April 2019 he says that he was not considered for a supervisory role at a client site (White and Case). He says that the reason for this was that his colleague Ms Burn preferred another person, Lukasz, for the supervisor’s role. The Claimant says that Ms Burn and Lukasz had worked together before and that the two reasons combined (their friendship and his health condition) were the reasons why he was not promoted.

(b) At the end of September 2019, the Claimant applied for a promotion to Butler while working at another client site (Hogan Lovells). He says that he was offered an interview but was told by Mr Hageman, General Catering Manager, that he was not suitable for the role because of his inflexibility. The Claimant said he could not see the point in attending the interview if he was unsuitable.

(c) The Claimant applied for the promotion to Butler and was shortlisted to the final two. He was not successful. The successful applicant left after a short period of time. The Claimant says he should have been offered the promotion at this stage, but the Respondent decided to get rid of the post rather than offer it to him. Was the Claimant treated unfavourably because of something arising in consequence of his disability, namely his inability to be flexible in his working hours?

(d) If so, did the Respondent have a legitimate aim and if it did, did it use a proportionate means to achieve it (this issue was not in the event relied upon by the Respondent). Victimisation

[11]Did the Claimant do a protect act or acts? The Claimant relies on a written complaint in March/April 2019 regarding an attempt by Ms Burn to change his working hours and discussions with his employer about the butler role which lead to an email complaint to Mr Hall on 4 November 2019. Did they, or either of them, make express or implied allegations that the Respondent or another person had contravened the Equality Act? The Respondent concedes that an email dated 4 March 2019 written by the Claimant accusing Ms Burn of harassing him is a protected act.

[12]If so, was the Claimant dismissed because he had done a protected act? - 3 -

[13]There were then issues as to remedy which did not need to be addressed in the event. Evidence and Findings of Fact

[14]The Tribunal heard evidence from the following witnesses: 1. The Claimant. 2. Ms Milda Burn, General Manager for the White and Case site. 3. Mr Ian Kingston, Senior Operations Manager. 4. Ms Samantha Lawrence, Operations Support Manager. 5. Mr Mikkel Hageman, General Catering Manager at the Hogan Lovells site. 6. Ms Stacey Till, Front of House Talent Manager. 7. Mr Laurence Jan Peters, Hospitality Manager at Hogan Lovells. 8. Mr John Howarth, Junior Sous Chef, Hogan Lovells. 9. Mr Timothy Froggatt, Operations Manager. 10. Mr Francoise Gautreaux, Managing Director.

[15]The Respondent also relied on a witness statement from Mr Gregory Hall, Senior Operations Manager. Mr Hall is seriously unwell and the Claimant helpfully agreed that it was not necessary to call him to give evidence.

[16]There was an agreed bundle of documents and page numbers that follow in these reasons refer to that bundle.

[17]The Respondent provides catering services to, among others, the City solicitors’ firms of White and Case and Hogan Lovells. The Claimant was employed as a hospitality assistant, beginning work with the Respondent on 20 February 2017 at the White and Case site. He had a front of house role providing drinks, meals and other refreshments to the client’s employees and visitors.

[18]As noted in the issues above, the Claimant has a disability arising from the condition ankylosing spondylitis, and it is necessary for him to carry out exercises and /or physiotherapy in order to mitigate the effects of this condition. His case, which was not disputed by the Respondent and which is accepted by the Tribunal, is that it is difficult for him to do these exercises first thing in the morning before work and therefore he needs to do them after work. This in turn meant that it was difficult for him to work a late shift as he needed time in the evening to do his exercises. The Respondent accommodated this need, meaning that he worked early shifts only, commencing at about 6:30 or 7am.

[19]Ms Burn began work as manager of the team which included the Claimant in August 2018. She held a one to one meeting with each team member and met the Claimant on 17 August 2018. It was common ground that Ms Burn asked the Claimant whether he would be able to alter his shift pattern so as to work late shifts from time to time in common with the other team members. Although there was some disagreement about how much detail the Claimant gave, it was again - 4 - common ground that he told Ms Burn that he was unable to work late shifts because of his medical condition, and that she took this suggestion no further.

[20]On 18 December 2018 the Claimant had a conversation with a young female trainee at White and Case who was of Chinese ethnic origin. Although the Tribunal heard a considerable amount of evidence about what was said on this occasion, it is not necessary for us to make any specific findings of fact. There was a disciplinary investigation, followed by a disciplinary meeting conducted by Mr Kingston. In his outcome letter of 27 December 2018 at page 87 Mr Kingston stated that he found that the Claimant had asked the trainee about “her exotic looks” and made some reference to “kung-fu moves”, and that she found this distressing and offensive. Mr Kingston issued the Claimant with a first and final written warning. The letter included the following: “If within the next twelve months there is any repetition of this misconduct or any other misconduct or performance issues, then the consequences may be dismissal. I hope that this warning will lead to a sufficient immediate improvement in your conduct so that such action will not be necessary”.

[21]The letter referred to the right to appeal against the decision. The Claimant raised an appeal, which was considered by a Mr Brydon, who dismissed the appeal, giving his outcome in a letter dated 24 January 2019 at pages 94-95.

[22]A vacancy for a hospitality supervisor at the White and Case site became available in February 2019. The record at page 95d indicates that this was advertised as from 12 February 2019 with a closing date of 12 March 2019.

[23]The Claimant had meanwhile indicated to the Respondent’s head of HR, Ms Newbould, that he wished to be transferred away from that site. In an email of 21 February 2019 at page 96 he stated that he was requesting a transfer to another unit, that he felt that his position at the site was no longer tenable due to mistreatment by one of the employees, and that as a result of the client’s unfair action he was very concerned and did not feel comfortable at that site. This was evidently a reference to the complaint by the trainee.

[24]There then occurred on 4 March 2019 a conversation between the Claimant and Ms Burn which was somewhat confrontational. Again, the Tribunal heard a fair amount of evidence about this incident, but ultimately it was of limited significance as neither of the decision makers in relation to the Claimant’s dismissal took this into account. The Tribunal noted, however, that on the same date at page 102 the Claimant sent another email to Ms Newbould asking for his transfer to be processed as soon as possible, and complaining of harassment by Ms Burn related to his medical condition. This email was accepted by the Respondent as amounting to a protected act for the purposes of the victimisation complaint.

[25]On 12 March 2019 the Claimant raised a grievance against Ms Burn at pages 111-113. This contained a number of points, the first of which concerned the conversation with Ms Burn about the possibility of the Claimant changing his - 5 - shift pattern. In the email he identified this as having taken place in December, although it was in fact in August, as the Tribunal has noted above. The Claimant also referred to the supervisor’s position, stating that Ms Burn had appointed an employee named Lukasz, who had worked with her previously and had been employed on her recommendation. The Claimant said that this was unjust as the position had not been advertised and no one else was considered for it.

[26]The grievance continued that the Claimant had been off sick for five days, being due to return to work on 12 March. He said that on 11th he had been asked to go to a different site and made various points about whether this was a transfer and about the arrangements or lack of arrangements that accompanied that request. The Claimant also said that he had not had proper appraisals.

[27]Ms Lawrence held a grievance meeting with the Claimant on 20 March 2019, giving her outcome in a letter of 25 March at pages 137-140. Ms Lawrence made the following findings.27.1 The supervisor’s job had been advertised from 14 February until 14 March 2019, the hospitality team had been made aware of the vacancy by Ms Burn, and Lukasz’s appointment followed interviews of fourteen applicants for the position.

27.2 The Claimant had been given leave to attend a medical appointment when he had provided the information requested.

27.3 In relation to the discussion about a change in shift pattern, Ms Burn was demonstrating a duty of care in conducting a return to work interview, and part of this was to review the Claimant’s work and duties. Ms Lawrence stated that she noted that the shift pattern had not in fact been changed.

27.4 Ms Lawrence partly upheld the complaint that the Respondent had not taken the Claimant’s medical condition seriously in that the risk assessment had not been fully reviewed and there had not been the necessary appraisals. She said that there should be a personal development plan discussion by 1 May 2019, with all meetings to be conducted in a private meeting room.

27.5 A complaint about comments by a manager was not upheld on the basis that there was no evidence to support it.

27.6 A complaint about holiday requests was not upheld as ultimately the request was approved.

[28]The Claimant appealed the grievance outcome, but in the event the appeal did not proceed because he dropped his appeal when the investigation into the incident involving him and Ms Burn was also dropped. There was some dispute about precisely how this situation came about and how the idea that both processes could be mutually dropped arose. It was not, however, necessary for the Tribunal to make any findings about this, we simply noted the outcome. - 6 -

[29]The Claimant started work at the Hogan Lovell site on 29 March 2019. On 4 April 2019 at page 153 the Claimant sent an email to Ms Newbould saying that the assignment was not really working for him, and raising issues about the location and travel to that site and about the food that was made available for members of staff.

[30]On a date in mid April 2019 there took place a conversation between the Claimant and a barista which led to the latter making a complaint. She said that they had had a conversation about music which ended with the Claimant saying words to the effect that if she did not like music she should go and die somewhere. When interviewed about this the Claimant said that he had no recollection of such an incident and that he would never say anything like that to anyone (page 159, interview on 30 May 2019).

[31]In his evidence to the Tribunal the Claimant said that he did recall such an incident but that what he had said to the barista was that she should go and lie down somewhere. Again, it is not necessary for the issues to be determined by the Tribunal for us to reach a conclusion about exactly what was said on this occasion. What is relevant for us to record is that there was no disciplinary sanction as such in respect of this incident, but that at page 161 Mr Hageman issued a document entitled “interview of concern” to the Claimant on 24 June 2019. This recorded concern about inappropriate behaviour towards a colleague and said that this was not a formal warning, but a copy would remain on the Claimant’s personnel file for a period of six months, and that should any further incidents occur of a similar nature then he might be called to a formal disciplinary hearing.

[32]In early July 2019 the Claimant applied for the role of a butler at the Hogan Lovell site. Mr Hageman had a conversation with him about the need for working some evening hours in that position. This was confirmed in an email of 2 July 2019 from Mr Hageman to the Claimant at page 162 which contained the following: “Just wanted to confirm with you that we have discussed the withdrawal of your application for the butler position on the 12th floor at Hogan Lovells. Based on the working hours and flexibility that is required in the job, we have discussed that this position is not an option for you, please confirm with me that you agree with this or let me know if you have any questions”.

[33]The Claimant replied on 4 July 2019 at page 163 stating that he had not withdrawn his application and that in fact his application for the vacancy had been unsuccessful. He wrote: “You had told me that I am not suitable for this position as it requires flexibility in terms of working hours and I do not have this flexibility because of my health condition and commitments that I have for it. Although you have offered me the chance to have an interview for this vacancy after you told me that I was not suitable, I could not see the point of this interview if I was not suitable, therefore we agreed it was unnecessary”. - 7 - The Claimant’s email concluded: “Ultimately my application still stands if you are willing to accommodate my required working hours”.

[34]On 21 August 2019 the Claimant had an interview for the position as butler, conducted by Mr Peters and Mr Hageman. There were notes of this interview at pages 173-176. On page 175 a question about flexibility was recorded to which the Claimant replied as follows: “Currently I am doing 7am to 3:30pm. I can also start at 6:30am or start up to one hour earlier or later than my usual starting time. I am available between 6:30am – 4:30am latest 5pm. Latest I need to be home is 6pm this is due to my health reasons, I won’t be able to do evening work due to my doctor’s recommendations. I have to do my exercise hopefully improvement will come and I can be more flexible and do my exercise in the morning.

[35]The Claimant was one of two applicants for the position who was sent forward to a second interview. This was conducted on 24 September 2019 by Ms Till and Mr Peters, with the latter ultimately being responsible for the decision. The interview included a presentation about a VIP event for two hundred clients. The Claimant contended, and the Respondent accepted, that this went beyond the usual requirements for the role of a butler. The Respondent’s case was that this exercise nonetheless tested the skills and abilities that would be looked for in the successful candidate.

[36]In the event the other candidate was successful and the Claimant’s application was unsuccessful. Ms Till’s evidence was that both candidates interviewed well, but the other applicant was far stronger than the Claimant. Ms Till stated that the other candidate’s version of the event sheet that the candidates had been asked for was more professional than the Claimant’s, and that generally the other candidate gave more focussed answers than did the Claimant. She said that the Claimant identified challenges in the situation but gave no solutions. She acknowledged that he showed knowledge and passion about the menu and the food and wines that he would propose for the event.

[37]The Claimant raised a complaint about this appointment, which was considered by Mr Hall at an informal meeting on 22 October 2019, notes of the meeting being at pages 198-203. The Claimant said that he felt that the decision had been made before his interview and that he was regarded as not suitable because of his lack of flexibility on evening shifts. Mr Hall referred to the function sheets for the VIP event and asked the Claimant whether he wanted to challenge the process. He replied that he did not want to challenge it, he just wanted to understand so he could learn.

[38]The Claimant made the point that he believed that the functions sheet went beyond the requirements for the role. He then said that he felt that there was a vendetta against him, in support of which he referred to a number of matters which included a discussion with Mr Hageman about smoking, his not having - 8 - welcome or leaving drinks when he moved from one unit to the other, that he had received a birthday card from the Respondent four months late, and the complaint by the barista. The Claimant also mentioned his complaint about the food that was being provided and said that he did not feel that he was being assisted to progress within the Respondent’s organisation.

[39]The successful candidate left the butler role at Hogan Lovells after a relatively short period. Ms Till’s evidence was that at that point, a decision was made not to try to recruit another person to the role, but to cover it using experienced casual staff. She said that, on the evidence of the earlier interview, the Claimant would not have been suitable for the role.

[40]The Tribunal accepted this account. It was evident that the Respondent had not recruited another individual to the role, and there was therefore no reason to doubt the explanation given.

[41]There then occurred on 24 October 2019 an incident which led to the Claimant’s dismissal. It was common ground that there was indeed an incident and that this involved the Claimant’s use of a trolley to take cookies from the kitchen to the front of house. On 29 October 2019 at pages 204-206 Mr Howarth put his account of the incident in an email. He said that the upright trolley was often used to transport cookies but that on this occasion it was needed to store food and to be used by an applicant doing a trial shift for the head chef position. Mr Howarth said that he told the chef de partie to make sure that this was communicated to the front of house staff that day.

[42]Mr Howarth continued that when he arrived at 7:15am he found that everything had been removed from the trolley and left around the kitchen. The chef de partie told him that the Claimant had turned up, had been told that the trolley was unavailable, and had taken it anyway. Mr Howarth continued that when the Claimant returned with the trolley he asked him to step outside the kitchen, and that he explained that if the chefs say that something is the case they are doing it because there is a genuine reason, and that it was unacceptable for him to disregard the chef’s request. Mr Howarth said that the Claimant became confrontational, telling him that he and his staff were lazy and uncooperative, and arguing that if his doing the cookies was such an inconvenience then maybe they should cook them for him. Mr Howarth then said that he felt that the discussion was pointless and that he would continue it with the Claimant’s line manager.

[43]In his email Mr Howarth stated that, as there was an applicant for the head chef position in the kitchen at the time it was important that the problem be handled as efficiently and discreetly as possible, and that this was why he asked the Claimant to step outside of the kitchen. He said that he did not want him to feel that he was being told off in front of other staff members, and he also wanted the discussion to be out of sight of the potential new head chef.

[44]Mr Froggatt investigated this incident, interviewing Mr Howarth and subsequently (on 5 November 2019) the Claimant. There are notes of the latter interview at pages 214-219. At the outset of the meeting the Claimant - 9 - complained that the letter notifying him of it had been delivered at 7:30am on Saturday, waking his wife, who was unwell. The discussion then turned to the incident itself. In paragraph 30 of his witness statement Mr Froggatt said that he read out to the Claimant Mr Howarth’s email giving his account of the incident. The Tribunal accepted his evidence on this point: this would have been the natural thing to do in the circumstances (the Claimant had not seen the email at this stage).

[45]Mr Froggatt asked what had happened and whether the Claimant had used an aggressive tone. The Claimant said that he had been asked not to use the trolley by the chef because they were busy and needed it. He then gave an account of making the cookies, looking for the trolley and finding it with items on it, which he removed.

[46]The Claimant said that a chef named Jordan then went “Oi Oi Oi Oi don’t use that trolley”. The Claimant asked what trolley should he use, and he was told another one. The Claimant said that the other trolley was not suitable for that purpose and that he had been told not to use it by his manager. He said that using the other trolley would mean making more than one trip and that the other trolley was not safe for either the cookies or for him. The Claimant said that when he had finished he returned the trolley to the place by the oven from where he had taken it and that Jordan said to him “Oi Oi Oi Oi can you put these back on the trolley”, to which the Claimant said the trolley should not be used for storage and he left the kitchen.

[47]The Claimant continued that Mr Howarth then came out of the kitchen and said the Claimant should do as he had been asked. Mr Froggatt asked the Claimant how it was that the incident came to be seen as confrontational, to which the Claimant said that Mr Howarth had come and confronted him, saying “he, John, came to tell me what to do he did not need to do this”. Mr Howarth again asked whether the Claimant was being confrontational or not to which the Claimant said he was not, but there may have been a heated discussion. Once again Mr Froggatt asked the Claimant whether he had been confrontational, to which he replied that the task was dangerous and there had been a leak under the oven every morning for quite a while now.

[48]At page 219 the note recorded that the Claimant said that he had not been confrontational, and that Mr Froggatt once again asked if he had been in any way confrontational, to which he replied that he had been asked to make a report in writing on the same day. At the close of the meeting the Claimant asserted that there was a vendetta against him and that the company was using this allegation to cover their tracks, and that he had no faith in the company.

[49]Mr Froggatt recommended that the matter should be considered for a disciplinary hearing, and after an initial date had been revised a letter was sent on 19 November 2019 at pages 228-229 inviting the Claimant to a meeting on 27 November. The allegation was said to be one of unreasonable and confrontational behaviour towards colleagues, and by way of evidence the Claimant was provided with the note of his investigatory meeting with Mr - 10 - Froggatt. The Claimant was not provided with either the note of Mr Howarth’s meeting or with a copy of his email about the incident.

[50]Meanwhile, at page 233 on 21 November 2019 Mr Hall sent an email to the Claimant with his findings about the matters discussed at the informal discussion on 22 October. He concluded that he had found no evidence of malicious behaviour or any intent.

[51]Mr Kingston conducted the meeting on 22 November 2019 and there are notes of it at pages 235-242. The Claimant again gave his account of the incident involving the trolley. He said that when he greeted Jordan with “good morning” the latter ignored him, but that when he realised that he had taken the trolley he told him not to. The Claimant said again that he asked what he should use instead and that Jordan pointed to a different trolley that was too small and would require multiple trips. The Claimant again said that he had been told not to use that trolley and that it was dangerous. The Claimant said that he thought that, as Jordan had ignored him on arrival, he was being awkward, but that the reason why he did not do what he said was that it was wrong, unreasonable, and he did not give a reason for it.

[52]The Claimant gave essentially the same explanation of the incident as that given to Mr Froggatt. At the foot of page 238 he was recorded as saying that he felt that he was already helping the chefs by cooking the cookies, which is a chef’s job, and so they should help him and not be awkward “therefore I told him why don’t you put the things back himself”. The Claimant again made the point that he considered that Mr Howarth was the one who was being confrontational and added “if he is so busy why he has time to come and talk to me about that”. When Mr Kingston asked the Claimant about Mr Howarth’s approach the Claimant replied “unreasonable – if so busy why don’t you go and do your job you can talk to me later”.

[53]Towards the end of the meeting there was some discussion about the difference between an order and a request. The Claimant said that he felt the whole process had been a storm in a tea cup and he was still not sure if this was a complaint or a grievance or reported as a simple issue. He said that he felt it was unreasonable to make this the subject of a formal investigation and if it were down to him he would not have done so, and it was time consuming, stressful and unfair.

[54]In his witness statement Mr Kingston stated that he had read the contents of the Claimant’s personnel file before reaching his decision, and he gave the impression that he had been aware of all of the first and final written warning, the altercation with Ms Burn on 4 March 2019, and the complaint by the barista. In his oral evidence Mr Kingston stated that in fact he had only been aware of the first and final written warning which he had given himself, and that it was not the case that he had read about the others in the personnel file.

[55]On 25 November 2019 at pages 243-244 Mr Kingston gave the Claimant the outcome of the disciplinary hearing, which was that he should be dismissed with notice. He said that the Claimant had knowingly not complied with the - 11 - company procedures and that he had behaved unreasonably and in a confrontational manner towards colleagues. He said that the Claimant had not given any reason for this conduct, nor was he remorseful about his actions and that he showed no regard or respect for his colleagues, his manager, the customers or the relationship with the client. Mr Kingston said he had fully considered all the circumstances including the fact that the Claimant had a live final written warning for misconduct on his file. He referred to the right to appeal.

[56]In paragraph 85 of his witness statement Mr Kingston said that he found the Claimant’s attitude in the disciplinary hearing to be rude and dismissive, and that he was not remorseful in any way. He said that his lack of insight or acknowledgement that he had done anything wrong led him to believe that the Claimant could be given no more chances, and Mr Kingston said that this was not the first, second or even the third time that there had been complaints about the Claimant’s aggressive and unacceptable conduct and language. Again, the Tribunal comments that in his oral evidence Mr Kingston stated that he was in fact only aware of the first incident and the present (final) one, and that he had not in fact known about what were described as the second and third incidents at the time of making his decision.

[57]In paragraph 87 of his statement Mr Kingston said that he concluded that the Claimant found it impossible to behave in a courteous and professional manner and no matter where he worked “or how many times we gave him warnings”. This again seemed to be referring to the existence of four incidents rather than the two of which Mr Kingston stated he was in fact aware.

[58]The Claimant appealed against Mr Kingston’s decision and this was referred to Mr Gautreaux. In his email raising the appeal at pages 245-246 the Claimant said that the outcome was unfair and wrong as he had done nothing wrong, as he was asked not to use the correct trolley, but to use one that was wrong and dangerous. He repeated that it had been he who was confronted by Mr Howarth, who had no reason to come out of the kitchen to confront him. The Claimant said that baking cookies was not his actual duty or responsibility, and so he should have been supported and helped rather than treated in an undignified way. He said that there was an insufficient and biased investigation, again referring to the question of whose responsibility it was to bake the cookies. The Claimant also said that the proceedings were incorrect in that he was not given any information about whether the investigation was about a complaint, a grievance, or a reported incident, and he said that he was not given any statement regarding the investigation prior to, during or after the investigation and disciplinary meetings. He said that the original first and final warning had itself been wrong and unfair and that dismissing him for the incident on top of that was totally wrong and unfair.

[59]Mr Gautreaux held the appeal meeting on 19 December 2019 and there are notes of that at pages 250-257. The Claimant said that the trolley he was told to use had been banned and was not safe. He reiterated that it was the chefs’ job and not his to be making cookies. On page 255 the Claimant made the complaint that he was not sent any statements from people saying what the investigation was, to which Mr Gautreaux asked: - 12 - “Do you not feel that the allegation was made clear to you at the initial investigation hearing and do you understand the allegation now?” The Claimant replied: “There was never any fact finding telling me who made the allegation. I was not confrontational, I didn’t refuse any reasonable request. I would like to see the statement of what someone has said, I didn’t see the statement therefore it’s biased”

[60]Mr Gautreaux repeated the question “do you understand the allegation and was it made clear to you at the investigation”. The Claimant replied “you keep telling me I am in the wrong, you don’t give me the statements so I think you are making things up to cover for other people not doing things properly or lying”.

[61]The Claimant again made the point distinguishing between a request and an order. Mr Gautreux asked at page 256 why the Claimant thought that it was relevant that the chef was late to which the Claimant was recorded as replying: “I don’t know if he was late or if I was late. If you are doing a thorough investigation, you should know this”.

[62]Following this meeting, Mr Gautreaux visited the site and walked the route that the Claimant would have taken with the trolley. His evidence, which the Tribunal accepted, was that he found that non slip mats had been purchased for use with the trollies that the Claimant said were not suitable for the job. Mr Gautreaux walked the route that would have been taken, using the cookie trays that the Claimant had used and found that there was minimal risk of them slipping. He also did the route again with a glass of water on the trolley, finding that it took approximately two and a half minutes and there was minimal spillage of the water, indicating that the route was comparatively flat. Mr Gautreaux accepted that using the taller metal trolley enabled the Claimant to deliver the cookies in a single trip and that using the other trollies which he declined to use would have meant more than one trip. (It would have been two or three trips depending on the number of trays involved, as to which there was a dispute. The Tribunal concluded that whether two or three trips would have been required made no material difference).

[63]Mr Gautreaux gave the outcome of the appeal in a letter of 6 January 2020 at pages 269-273. He described his investigations into the safety of the trolley, in connection with which he said at page 270: “Whilst I could almost have understood some of your reasons for taking the trolley originally, your refusal to return it to its original place, which you yourself claim would have been a quick and easy task, was the greater transgression and demonstrated a lack of respect for your colleagues and lack of consideration for the impact of your actions”. “I find the entire incident could have been avoided or mitigated if you had demonstrated even a little consideration for others. You could have - 13 - explained yourself to the chef in the first instance, or apologised for taking something that was clearly being used by someone else, or assured the chef that you would return it after using it and most of all, you could have easily returned it and its contents to their original place rather than just leaving it for the chef to do”.

[64]Mr Gautreaux said that he found no evidence of their being a vendetta against the Claimant. He said that he considered that the first and final written warning demonstrated that “leniency and reasonable actions were taken, allowing you to remain in employment, despite the seriousness of the allegation and the fact that the client at the site at which you were working had asked that you no longer work at that site”. In relation to the lack of provision of statements Mr Gautreaux said that he believed that the allegation had been very clearly explained and that the Claimant had been given every opportunity to put his case forward.

[65]Mr Gautreux also wrote that he found that throughout the hearing the Claimant was confrontational and lacking in respect for colleagues and authority. He wrote “in the appeal hearing you repeatedly pointed at me and accused me and others of making things up, failing to properly investigate things, or lying to cover peoples tracks, when I was literally reading from evidence provided from statements and minutes of previous meetings that had been shared with you and asking questions as part of the investigation process”. Mr Gautreaux continued: “You consistently assert that you are in the right and that any problems you have experienced are either due to a “vendetta” against you or other people being lazy, incompetent or confrontational, which having investigated, I do not agree to be correct. It is my view that you are clearly unable or unwilling to accept any accountability for your own actions or to consider the feelings of your colleagues”. “In summary I feel that both requests were reasonable, that you refused them with insufficient grounds, and that your behaviour throughout was confrontational. I therefore find that the original outcome of dismissal with notice should be upheld”.

[66]In a similar way to that found with Mr Kingston’s statement, Mr Gautreaux’s witness statement implied that he had taken into account all of the previous incidents, having read about them in the personnel file. In his oral evidence he said that he had not been provided with the whole file but only extracts, that he was aware of the first and final written warning, and that he thought that he was aware of the incident with the barista, but not any other matters. The applicable law and conclusions

[67]The Tribunal first considered the complaints under the Equality Act 2010, s.136 of which makes the following provision about the burden of proof. - 14 - (2) If there are facts from which the Court could decide, in the absence of any other explanation, that a person (A) contravene the provision concerned, the Court must hold that the contravention occurred. (3) But sub section (2) does not apply if (A) shows that (A) did not contravene the provision.

[68]In Igen v Wong

[2005] IRLR 258

and Madarassy v Nomura

[2007] IRLR 246

(both decided under the earlier anti discrimination legislation) the Court of Appeal identified two stages to the similar test under that legislation. At the first stage the Tribunal would ask whether the facts were such that, in the absence of an explanation, it could properly find that discrimination had occurred. If it could do so, at the second stage it would ask whether the Respondent had proved that it had not discriminated against the Claimant. In Madarassy the Court of Appeal emphasised that at the first stage the Tribunal should ask itself whether it could properly find that discrimination had occurred. It would not be enough for there to be a difference in protected characteristic and in treatment, there would have to be something more in order to make a proper finding of discrimination. The something more might not in itself be very significant, but it had to exist. In Hewage v Grampian Health Board

[2012] UKSC 37

Lord Hope, in the Supreme Court, observed that the two stage test would not be of assistance to Tribunals where they were able to make findings of fact about why particular treatment occurred.

[69]In the present case, the Claimant made three complaints under s.15 of the Equality Act 2010, which provides as follows: (1) A person (A) discriminates against a disabled person (B) if – (a) (A) treats (B) unfavourably because of something arising in consequence of (B) disability, and (b) (A) cannot show that the treatment is a proportionate means of achieving a legitimate aim.

[70]In the present case, although the matter was raised in the list of issues, the Respondent did not rely on the defence under subsection (1)b.

[71]The first complaint concerned the supervisory role at White and Case. The Tribunal considered that the Claimant’s difficulty about flexibility in relation to shifts might be a potential reason for not preferring him as a supervisor. There was, however, no evidence that this was a factor in Ms Burn’s mind in not considering the Claimant for this role. The Tribunal found that the role was advertised and that the Claimant did not apply for it. Other individuals did apply for it. In the circumstances, and in particular given that the Claimant had already expressed the wish to move away from the White and Case site, there was no reason why Ms Burn should have considered him for that role.

[72]The Tribunal therefore found that, if the Heward approach were applied, the reason why the Claimant was not considered for the role was the simple one that he had not applied for it. Alternatively, applying the two stage approach, the facts were not such that in the absence of an explanation the Tribunal could - 15 - properly find that discrimination had occurred. The facts found show that the role had been advertised and applications invited, the Claimant had not applied, and there was therefore no reason why he should have been considered for it. Should the Tribunal be wrong about that, we have accepted the Respondent’s explanation that the reason why the Claimant was not considered was that he had not applied, and that he was leaving the site anyway. This is sufficient to prove that discrimination did not occur.

[73]Further to all of this, this allegation was made out of time. Section 123 of the Equality Act 2010 provides as follows in relation to time limits. (1) Proceedings …may not be brought after the end of – (a) the period of three months starting with the date of the act to which the complaint relates, or (b) such other period as the Employment Tribunal thinks just and equitable. (3) For the purposes of this section (a) conducting extending over a period is to be treated as down at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it

[74]The Respondent conceded that the third allegation under s.15 was within time. This related to the available position as a butler at the Hogan Lovell site. The Tribunal considered that the complaint about the supervisory position at White and Case could not be regarded as an aspect of conduct extending over a period including the complaint about promotion to butler at Hogan Lovells. The allegation was clearly outside the period of three months from the date of the failure to consider the Claimant for the supervisory role. There was no reason why the Claimant could not have raised a complaint about this within the primary three month limit, and the time that had passed from then until when the proceedings were presented was considerable. The Tribunal concluded that, quite apart from its conclusions on the merits of this complaint, it would not be just and equitable to extend time for considering it and that it therefore did not have jurisdiction to do so.

[75]The second complaint under s.15 concerned the Claimant’s application for promotion to butler at the Hogan Lovell site. When cross-examined about this the Claimant agreed that it may have been the case that the other candidate performed better than he did in the final interview, and that he had not prepared particularly well for that interview. Ultimately, he did not appear to dispute the decision to appoint the other candidate at that stage.

[76]The Tribunal therefore concluded that there was not, on this aspect, any less favourable treatment of the Claimant, whatever Mr Hageman may have said at an earlier stage about the need for flexibility in regard to shifts in the role. The Claimant was one of two candidates selected for final interview and, as he - 16 - essentially accepted, the other candidate performed better than he did at that interview.

[77]Alternatively, on these facts, the Tribunal finds that the reason why the other candidate was preferred was the simple one that he performed better at the interview. Further to this, if the two stage approach is taken, those facts are not such as could provide a proper basis for a finding that discrimination had occurred. If the Tribunal is wrong about that, we have accepted the Respondent’s explanation that the reason why the other candidate was preferred and the Claimant was unsuccessful, was that the other candidate performed better at the interview. The Respondent had therefore proved that discrimination had not occurred. On all points, there was no evidence that any question of flexibility in shifts had been a factor in the decision. To the extent that this had been mentioned by Mr Hageman at an earlier stage, the Tribunal noted that by the time of the second interview the Claimant was saying that he would be able to carry out his exercises, or hoped to be able to carry out his exercises, earlier in the day, so that this particular point would not be a problem.

[78]In relation to time limits on this point, although the allegation is on the face of the matter out of time, the Tribunal assumed in the Claimant’s favour that it could form an aspect of conduct extending over a period including the third allegation.

[79]That allegation was that when the successful candidate left after a short period, the Claimant was not offered the promotion at that stage. His argument was that, as the candidate who had effectively finished second, when the one who finished first left, he should have been offered the position in that person’s place.

[80]The Tribunal has found that the reason why the Claimant was not offered the position in those circumstance was that, in spite of his being one of two who were selected for the final interview, and who therefore in a sense finished second in the selection process, the Respondent had concluded that he had not shown that he fulfilled the requirements for the role. As the Tribunal has found, the Respondent therefore decided to cover the role using experienced casual workers and not to offer it to the Claimant. On the Heward approach, that is the Tribunal’s finding as to why the treatment concerned occurred. On the two stage approach, these are not facts from which the Tribunal could properly find that discrimination had occurred. Alternatively, if the Tribunal is wrong about that, we have accepted the Respondent’s explanation as proving that discrimination did not take place.

[81]The Tribunal then considered the question of the Claimant’s dismissal, including the contention that this was an act of victimisation.

[82]In relation to unfair dismissal, s.98 of the Employment Rights Act 1996 provides as follows:(1) In determining .... whether the dismissal of an employee is fair or unfair it is for the employer to show; - 17 - (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within sub section (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this sub section if it (b) relates to the conduct of the employee. (4) Where the employer has fulfilled the requirements of sub section (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employers undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case

[83]In British Home Stores v Burchall

[1980] ICR 303

the Employment Appeal Tribunal stated that in cases where the reason relied on by the employer was one related to conduct, the question of fairness would involve considering the following:(1) Did the Respondent have a genuine belief that the Claimant committed the conduct concerned.

(2) Did the Respondent have reasonable grounds for so believing.

(3) Had the Respondent carried out as much investigation as why reasonable in the circumstances.

(4) Was dismissal within the range of reasonable responses that a reasonable employer in those circumstances might have adopted. An alternative formulation of this element is to ask whether no reasonable employer acting reasonably could have dismissed the Claimant in the circumstances.

[84]In Sainsburys Supermarkets v Hitt

[2003] ICR 111

the Court of Appeal confirmed that the test of the range of reasonable responses applied to all elements of the Burchall analysis.

[85]The Claimant also relied on his dismissal as an act of victimisation contrary to s.27 of the Equality Act 2010, which provides as follows:(1) A person (A) victimises another person (B) if (A) subjects (B) to a detriment because – (a) (B) does a protected act, or - 18 - (b) (A) believes that (B) has done, or may do, a protected act

(2) Each of the following is a protected act – (d) making an allegation (whether or not expressed) that (A) or another person has contravened this act

[86]It is not necessary for the protected act to be the sole or principal reason for the detriment; it is sufficient if it is a substantial reason for it. The burden of proof provisions cited above apply to a victimisation complaint.

[87]In relation to this part of the claim the Tribunal first considered whether either of the matters relied on by the Claimant amounted to protected acts within s.27. The Respondent conceded that the grievance of 12 March against Ms Burn was a protected act, and the Tribunal so finds.

[88]The Claimant also relied on his discussions with Mr Hall which took place on 22 October 2019 and were described in Mr Hall’s email of 21 November 2019 at page 233. The notes of the discussion at page 199 showed that, in relation to the recruitment for the position of butler, Mr Hall asked the Claimant whether he wanted to challenge the process. He replied: “No I don’t want to challenge, I just want to understand so I can learn, as it hasn’t been explained to me, as you have just told me, I fell short on the function sheet that I prepared, is that correct? I have been told that the member of staff successful was more experience than me, more able, that’s all I have been told” A little later the Claimant said this: “If I am unsuccessful, I would like to understand where I went wrong for feedback and learn and would be great to see the experience that the successful candidate had and what he produced so I can learn. I just want to understand where I went wrong a decision can be made based on certain things, that’s fine”.

[89]As had been described, the Claimant made reference in this discussion to a number of matters, but it is clear that it is what he said in relation to the butler role is what he relies on in respect of victimisation. The Claimant’s conversation with Mr Hall was in terms of wanting to learn from the experience and understand why he was not successful. It was not a complaint, and he did not suggest expressly or impliedly that there had been any breach of the Equality Act. The Tribunal therefore found that this was not a protected act.

[90]The Tribunal then considered the reason for the dismissal. We accepted Mr Kingston’s evidence that he decided to dismiss the Claimant because of what he found about his conduct, primarily in relation to the final incident involving the trolley, but also set against the background of the first and final written warning, of which he was aware. We decided this for the following reasons: - 19 -90.1 We found that this was a plausible reason for dismissing the Claimant. He had failed to comply with a request or instruction not to use the trolley and when approached about this by Mr Howarth, he was confrontational. This was set against an extant first and final written warning.

90.2 Mr Kingston’s evidence ultimately was that he was unaware of the grievance against Ms Burn, which is accepted as being a protected act. As we have described above, his witness statement could be read as giving a different impression on this point. In the Tribunal’s view, however, the change (if that is it what it was) in his oral evidence on this point did not mean that his evidence could not be relied upon. It was unlikely that this was an opportunistic attempt to make his evidence more favourable to the Respondent’s case, as doing so would also involve the apparently less favourable evidence about Mr Kingston’s knowledge of the conduct issues that had arisen between the date of the first and final written warning and the date of the final incident. Overall, the Tribunal accepted Mr Kingston’s account that his witness statement was badly expressed, and that in fact he had been unaware of the grievance against Ms Burn.

[91]The Tribunal therefore found that the protected act of the grievance formed no part of the basis for Mr Kingston’s decision to dismiss the Claimant. Alternatively, if the two stage approach under the Equality Act is to be taken, the facts that have been established are not such that, in the absence of an explanation, the Tribunal could properly find that victimisation had occurred. If the Tribunal is wrong about that, we have accepted Mr Kingston’s explanation as proving that no victimisation occurred.

[92]The Tribunal has found that the discussion with Mr Hall was not a protected act. If we are wrong about that, there is no evidence that Mr Kingston knew about this discussion. Mr Hall’s email to the Claimant with his response to the discussion was sent only the day before the disciplinary hearing took place, and there was no evidence that this had found its way into the papers that Mr Kingston had for the purposes of the disciplinary hearing, and no reason to think that it would have done so by that time. The Tribunal found that this discussion played no part in Mr Kingston’s decision to dismiss the Claimant; alternatively, under the two stage approach, the facts we have found are not such as would properly form the basis of a finding that the dismissal was an act of victimisation. If we are wrong about that, we accept the Respondent’s explanation as proving that victimisation did not take place.

[93]Turning to the complaint of unfair dismissal, the Tribunal has therefore accepted that Mr Kingston’s reason for dismissing the Claimant was the potentially fair one of a reason related to conduct.

[94]The Tribunal found that Mr Kingston had reasonable grounds for believing that the Claimant had committed the conduct concerned. Essentially, the Claimant had denied being confrontational but had accepted the other elements of the incident as put to him. Mr Kingston had Mr Howarth’s account of what had happened. - 20 -

[95]The Tribunal then considered the question of the reasonableness of the investigation. The particular point that arose here was that, in the course of the investigation and disciplinary process, the Claimant was not shown Mr Howarth’s email setting out his account of what had occurred, nor was he shown the notes of the interview with Mr Howarth. Additionally, in the letter of 1 November 2019 at page 211 inviting the Claimant to the disciplinary investigation meeting, Mr Froggatt did not give any information about what incident was to be investigated.

[96]The Tribunal has accepted Mr Froggatt’s evidence that at the meeting he read out Mr Howarth’s email in full, thus explaining to the Claimant the details of what was under discussion. The Respondent, through Mr Froggatt, did therefore disclose the detail of the allegation to the Claimant. He in turn was able to give a full response and an account of his side of the incident to both Mr Froggatt and to Mr Kingston.

[97]The Tribunal concluded that the Respondent had been taking a risk in not disclosing the email or interview notes to the Claimant, in that he might not have understood what incident was under review, or might not have been able to provide a full response or explanation of his case. In the event, however, he was able to do these things.

[98]The Tribunal reminded itself that what is required is not a perfect process but a reasonable one (see for example Hitt). The Tribunal considered that what occurred here in this regard was within the range of reasonable processes. It would have been an improvement to have disclosed the written material, but the failure to do so did not take this process outside the range of what was reasonable.

[99]The principle in Polkey does not arise for decision in the event, but if it did, the Tribunal would find that this particular point made no difference to the outcome, and that if this was a procedural fault that took the process outside the range of what was reasonable, correcting it would inevitably have led to the same decision. Had the Claimant been provided with Mr Howarth’s email and/or interview notes, his position would have been the same, as would the outcome.

[100]The Tribunal then considered the sanction of dismissal. One question here was that of the approach that should be taken to the written warning. In paragraph 37 of its judgment in Wincanton Group PLC v Stone

[2013] IRLR 178

the Employment Appeal Tribunal (Langstaff J presiding) summarised the position as follows: “If a Tribunal is not satisfied that the first warning was issued for an oblique motive or was manifestly inappropriate or, put another way, was not issued in good faith nor with prima facie grounds for making it, then the earlier warning will be valid.” The Tribunal does not make such a finding regarding the written warning. There clearly was a complaint, and there were no grounds for believing that the warning was given for any ulterior reason. - 21 -

[101]The incident with the trolley might be regarded as fairly minor. However, as set out above, the Claimant at the disciplinary hearing gave an account of using confrontational language to both Jason (“why don’t you put the things back himself”) and to Mr Howarth (“if he is so busy why he has time to come and talk to me about that” and “if so busy why don’t you go and do your job you can talk to me later”).

[102]The Tribunal considered that it might be that some employers would not have dismissed the Claimant in this particular situation. However, given what he accepted about the way in which he behaved on the day in question, and his lack of contrition, all set against the background of there being an extant first and final warning, meant that dismissal was not outside the range of reasonable responses. The Tribunal could not say that in these circumstances no reasonable employer could reasonably have dismissed the Claimant.

[103]There remains the appeal. As we have described, the Claimant raised safety aspects which Mr Gautreaux followed up by walking the route himself using the trolley that it was said that the Claimant should have used. The Tribunal found that Mr Gautreaux dealt with this new point in a reasonable fashion and that it was therefore reasonable for him to reach the conclusion that he did and to uphold the dismissal.

[104]The effect of all of the above is that the complaints of unfair dismissal and under the Equality Act 2010 are all dismissed. Andrew Glennie