Mr D Uzunov v ABM Technical Solutions: 2202637/2020

EMPLOYMENT TRIBUNALS

Case No 2202637/2020

Between

Mr D UzunovClaimant

ABM Technical Solutions OPEN PRELIMINARY HEARINGRespondent

Before

Employment Judge Brown

In person for claimant

Mr A O’Neill (instructed by solicitor) for respondent

Date 18 November 2022

JUDGMENT

[1]The Claimant’s complaints of race discrimination and disability discrimination are struck out because they have no reasonable prospects of success.

[2]Time is extended for the Respondent to present its ET3 response to 16 July 2021.

[3]The Claimant brought his complaints of automatic and ordinary unfair dismissal in time on 1 May 2020.

[4]The issue of whether the Claimant had sufficient service to bring a claim of ordinary unfair dismissal will be determined at the final hearing.

[5]The Claimant shall pay a deposit of £ 450 as a condition of continuing to advance both his unfair dismissal claims; he shall pay a deposit of £150 as a condition of continuing to advance his automatically unfair dismissal claim on the grounds of trade union membership and/or activities and £300 as a condition of continuing to advance his ordinary unfair dismissal claim. Case Number: 2202637/2020 2 of 18 Issues for Open Preliminary Hearing(1) This open preliminary hearing had been listed to determine the following: (i) Whether to accept the ET3 out of time. (ii) Whether the tribunal has jurisdiction to hear the claims bearing in mind the time limits in sections 111 of the Employment Rights Act 1996 and section 123 of the Equality Act 2010. (iii) Whether the tribunal has jurisdiction to hear a claim for unfair dismissal when the claimant has less than two years’ service. (iv) Whether the claim or any part of it should be struck out as having no reasonable prospect of success. (v) Whether the claim should be struck out because the manner in which the proceedings have been conducted by or on behalf of the claimant has been scandalous, unreasonable or vexatious relying upon the claimant’s email to the respondent sent on 19 July 2021 at 23:49 hours. (vi) Whether the claimant should be ordered to pay a deposit, not exceeding £1,000 per claim as a condition of continuing to advance any allegation or argument on grounds that it has little reasonable prospect of success. (vii) Case management as necessary including, if applicable, listing the full merits hearing.

(2) An interpreter in the Bulgarian language attended the hearing. The Background

(3) By a claim form presented on 1 May 2020 the claimant Mr Dimo Uzunov brought complaints of unfair dismissal, race and disability discrimination and unlawful deductions from wages against the Respondent, his former employer. He also said he claimed about “my registration with Unite the Union”.

(4) On 19 November 2020 the tribunal wrote to the parties to apologise for the considerable delay in serving the claim. The tribunal was unfortunately unable to explain exactly why a batch of claims, including this one, was not processed during lockdown.

(5) The claim was initially rejected by Employment Judge Snelson on grounds that it could not sensibly be responded to. Judge Snelson considered that the claim form did not identify recognisable claims and the claimant had less than 2 years service and had not explained why he said he was unfairly dismissed.

(6) On 10 December 2020 the claimant sought a reconsideration of the decision to reject his claim. On 7 May 2021 Judge Snelson reconsidered the decision, because the defects he had identified had been rectified. Judge Snelson said that the original decision to reject the claim was correct, but that the defects had been rectified, the claim was treated as accepted with effect from 10 December 2020. Case Number: 2202637/2020 3 of 18

(7) On 7 May 2020 the Tribunal sent Notice of the claim to the respondent. The respondent was given until 4 June 2021 to file a Response to the claim. The respondent did not file a response by that date.

(8) On the ET1 claim form itself, the claimant gave his dates of service as 1 April 2019 to 29 January 2020. On that basis, he did not have 2 years’ service.

(9) The claimant had worked for the respondent as an Electrical Maintenance Engineer. The respondent is a facilities management company.

(10) A preliminary hearing took place on 21 June 2021 before Employment Judge McKenna. The claimant attended, the respondent did not.

(11) On 21 June 2021 the respondent’s solicitors wrote to the tribunal. They said that the respondent had not received notice of the claim. They said that the first correspondence they had received from the tribunal was dated 18 June 2021. They asked to be placed on record. They wrote twice on 21 June and once on 1 July. In their letter of 1 July, they said that they still had not received any documentation sufficient to be able to respond to the claim.

(12) The respondent’s solicitors wrote a further letter on 16 July 2021. In that letter, the respondent made an application for an extension of time to present its ET3 Response, which it attached. It said that the effects of the pandemic meant that the receipt of the Claim was simply missed. The documentation was located on 14 July 2021 and the solicitors were submitting the Response two working days afterwards. The solicitors said that there was no prejudice to the Claimant in allowing the Response to be accepted, other than having his Claim contested, whereas there would be significant prejudice to the respondent in being unable to defend this Claim. They said that the respondent had real prospect of defending the claim given:

a. It was significantly out of time; and

b. The Claimant was dismissed for a very serious breach of health and safety, which could potentially have led to a fatality, due to his failure to comply with very basic safety requirements when working with electricity and water.

c. The Claimant’s defence to the allegation of gross misconduct for which he was dismissed was that all the evidence was fabricated and all his colleagues were lying, which included voice recordings. It had been confirmed that fabricating the voice recordings was not possible.

(13) The respondent also applied to strike out the claim on grounds that it had no reasonable prospect of success or for a deposit order on grounds that it had little reasonable prospects of success for the following reasons: it was out of time; it lacked particulars and that some or all of it disclosed no reasonable prospect of success.

(14) In a second letter also dated 16 July 2021 the respondent sought from the claimant particulars of the claim following the decision of the EAT in Cox v Adecco

EAT/0339/19

(HHJ Tayler – judgment 9 April 2021). In that case Judge Tayler said that a tribunal cannot decide whether a claim has reasonable prospects of success if it did not know what the claim was. Before considering strike out, or making a deposit order, reasonable steps should be taken to identify the claims, Case Number: 2202637/2020 4 of 18 and the issues in the claims. With a litigant in person, this involves more than just requiring the claimant at a preliminary hearing to say what the claims and issues are; but requires reading the pleadings and any core documents that set out the claimant's case.

(15) On 20 July 2021 the respondent sought strike out on a further ground under Rule 37(1)(b) ET Rules of Procedure 2013 because of the manner in which the proceedings had been conducted by the claimant was scandalous, unreasonable or vexatious. The respondent relied on an email from the claimant sent late at night on 19 July 2021 to a junior member of the HR team at the respondent, in response to the request for further particulars, saying: “All this is a big lie and everyone has their consequences!!!”, which was considered by the respondent to be a threat.

(16) There was a further preliminary hearing before EJ Elliot on 12 August 2021. She ordered the claimant to provide to the respondent, on or before 2 September 2021, the particulars of his claim as requested in their letter to him of 16 July 2021, page 2 points 1 – 4 . The claimant confirmed, during that hearing, that he had received that letter. The letter was resent to him during that hearing.

(17) EJ Elliot also ordered the Claimant, also by 2 September 2021, to confirm, if there is a claim for disability discrimination, “what is his disability and how he says the respondent knew about it. Who did he tell and when?”

(18) She ordered the Claimant, if he brought a claim for arrears of pay (rather than compensation), “to explain this claim and say what he was not paid under his contract of employment.”

(19) EJ Elliot ordered the parties to exchange any documents they would rely on at the Open Preliminary Hearing by 16 September 2021. She ordered that the claimant should include in his documents any documentation relevant to his financial situation, including, if he is working, a copy of his most recent payslip.

(20) The Claimant did not provide the particulars which had been ordered. On 13 September 2021 EJ Elliot wrote to the parties, telling them that the Open Preliminary Hearing on 22 October 2021 would also consider whether the claim should be struck out because it was not being actively pursued and/or the claimant had failed to comply with Tribunal Orders. The Claims

(21) It is appropriate to set out what the claimant has said in his claims. In his ET1 claim form, presented on 1 May 2020, the claimant ticked the boxes unfair dismissal, race discrimination, disability discrimination and “other payments”. On the form, he said, “Unfair Dismissal - including race/discrimination and disability, also my registration with Unite the Union.” In paragraph 8.2 the claimant said that he had attached a copy of a “file” regarding his case. Case Number: 2202637/2020 5 of 18

(22) On searching through the electronic filing system available to judges at London Central during this hearing, EJ Brown located the “file” and provided it to the parties.

(23) This “file”, or rider to the ET1 provided the following details of the claims, “I am writing this message because I want to inform you and to report the company I worked for and from which I was unfairly removed and fired. The company name is ABM Technical Solution / ABM Building Value. I worked at the same place at Broadgate Campus for five years and one, two months.I signed my first contract with 'COFELY GDF Swiz' on January 9/2015. After one year on 30/03/2016 the company was renamed to ENGIE Building Services. One year after that the company lost its contract and on 01/04/2017 my contract was transfered via TUPE to the new company - 'George Birchall Services Ltd'. After few months I was transfered to another building in Broadgate Campus because the company could not to find an qualified Electrical Engineer to cover the position for the money they was offering, and because I was at their hand with lies and manipulation they transfered me without my consent. All the time I was manipulated and used for anyting, then I signed up for Unite the Union and start to comunicate with them, what was happening to me. On 28.03.2019 George Birchal Ltd lost their contract at Broadgate Campus. On 01.04.2019 come ABM Technical Solution with with which we signed a temporary contract. They told as that this contract will be probation for six months which has not been renewed to the end. The contract stated that we were unemployed and were starting a new job in the same place and the same conditions as we had in the previous company. My managers was informed that I am registered with Unite the Union and they looking for a way to eleminate me until one day on 11.12.2019 I was suspend from my position with lies and fraud. Two three days before I was suspended I attended on their conversation at our Building office between one lady from Engineering Management Office and my Technical Manager Peter Shore and my supervisor Barrie Arnold and the shift leader Marthin ............She told them "Guys we must to start paying you right because you see what he do". It was about me so I comunicate with Unite the Union. It was a matter of paying them more money but hiding the Tax, and in order not to change their wages they decided to eleminate me. I woul like if is posible to check the company I was fire from because they are evading thaxes from HRMC .”

(24) That “file” had not been located by the Tribunal when the claim was first served on the respondent. It also appeared that EJ Snelson had not seen the “file”.

(25) After the Claimant’s claim was rejected, on 10 December 2020 the Claimant emailed the Tribunal. He said in material part, “… I worked in Broadgate Campus for five and a half years and I was cast out as the last criminal because I was registered with Unite the Union and I corresponded with them about my situation in the company ABM Technical Solutions. My managers hear about it and Case Number: 2202637/2020 6 of 18 decided to fire me because I hindered them in the tricks they did. It is not at all fair to take advantage of someone's work and kindness and to make the career on his back. .. ”. TUPE transfer, Length of Service and Time Limits

(26) During this OPH hearing on 22 October 2021, the respondent was provided with the “file” he Claimant had attached to his ET1, for the first time. Having had time to consider the “file” the respondent accepted a number of matters. First, the claimant had set out his employment history in his claim, and appeared to be contending that he had been subject to a TUPE transfer, so that he had more than 2 years’ service. Second, that the claimant had, in his original claim, presented on 1 May 2020, contended that he had been dismissed because of his membership and/or communication with Unite the Union.

(27) The respondent therefore agreed that the claimant had presented a claim for automatic unfair dismissal in time, on 1 May 2020. That claim could proceed to a final hearing.

(28) Looking at the “file” rider to the ET1, I said that I considered that the claimant had also pleaded the facts of an ordinary unfair dismissal claim. At the top of the “file” he said, “ I want to inform you and to report the company I worked for and from which I was unfairly removed and fired.” He had also said that “ they looking for a way to eleminate me until one day on 11.12.2019 I was suspend from my position with lies and fraud.” The claimant appeared to be contending that he was dismissed for an unfair reason. I said that, while the claimant had contended that the reason for dismissal was his trade union membership/activities, it was for the respondent to prove that it had dismissed for a potentially fair reason. Even if the tribunal did not find that union membership / activities were the principal reason for dismissal, the claimant was still contending that there was not a fair reason for dismissal.

(29) (I acknowledged that, if the Claimant does not have 2 years’ service the burden of proof will be on the Claimant to show the principal reason for dismissal was Trade Union grounds).

(30) The respondent said that, in that case, it was not in a position to address the question of whether the claimant had been TUPE transferred to it, so that he had more than 2 years service. It had not received the claimant’s “file” until this hearing and the Claimant had not told the respondent, otherwise, before this hearing, that he was contending he had been TUPE transferred.

(31) The claimant told me that he believed he had been TUPE transferred to the respondent, because he had been dismissed by his previous employer, which was in administration, on 28 March 2019, but had immediately been offered new employment in the same job by the respondent on 29 March 2019. He said that he had never paused his work - his work had continued seamlessly from his previous employer, George Birchall Service Ltd, to the respondent. Case Number: 2202637/2020 7 of 18

(32) Having heard from the claimant, and having found his “rider” on the electronic tribunal file system, I considered that there was a real issue as to whether the claimant’s employment had been TUPE transferred to the respondent. I noted that, because George Birchall Service Ltd was in administration, the respondent might not be able to rely on reg 8(7) TUPE 2006 which provides. ''Regulations 4 [transfer of employment contracts and liabilities] and 7 [control of dismissals of employees because of relevant transfer] do not apply to any relevant transfer where the transferor is the subject of bankruptcy proceedings or any analogous insolvency proceedings which have been instituted with a view to the liquidation of the assets of the transferor and are under the supervision of an insolvency practitioner.''

(33) The respondent would have to give evidence about the potential TUPE transfer. It was not in a position to do so at this hearing. Disclosure and witness evidence on that issue had not yet been ordered or exchanged.

(34) I therefore concluded that the question of whether the claimant had been TUPE transferred to the respondent, so that he had sufficient service to bring an ordinary unfair dismissal claim against the respondent (as well as his automatic unfair dismissal claim), should be decided at the final hearing. The parties would have exchanged all relevant documents by the final hearing, so that the matter could then be resolved fairly.

(35) Although the question of whether the claimant had sufficient service to bring a claim of unfair dismissal had been ordered, by another Employment Judge, to be determined at this hearing, there had been a material chance of circumstances. The “file” attachment to the ET1 had been discovered and the new issue of a TUPE transfer had been raised. Extension of Time for Presenting ET3 Response

(36) By r20 ET Rules of Procedure 2013 “Applications for extension of time for presenting response (1) An application for an extension of time for presenting a response shall be presented in writing and copied to the claimant. It shall set out the reason why the extension is sought and shall, except where the time limit has not yet expired, be accompanied by a draft of the response which the respondent wishes to present or an explanation of why that is not possible and if the respondent wishes to request a hearing this shall be requested in the application. (2) The claimant may within 7 days of receipt of the application give reasons in writing explaining why the application is opposed. (3) An Employment Judge may determine the application without a hearing. (4) If the decision is to refuse an extension, any prior rejection of the response shall stand. If the decision is to allow an extension, any judgment issued under rule 21 shall be set aside.

(37) In Pendragon plc (t/a CD Bramall Bradford) v Copus

[2005] ICR 1671

, Burton J, the EAT said at para 17, that the absence of a good reason for delay in presenting a Response does not rule out consideration of 'all the other matters, which Case Number: 2202637/2020 8 of 18 inevitably must be considered on a discretionary decision by the tribunal, including, but not limited to, the reasonable prospect of success'.

(38) In Pendragon, Burton J said that the power to review a decision not to accept a Response (under the ET Rules of Procedure then in force) should be exercised in accordance with the principles set down in Kwik Save Stores Ltd v Swain

[1997] ICR 49

, EAT. In Kwik Save the EAT said that all relevant documents and other factual material must be put before the tribunal to explain both the noncompliance and the basis on which it is sought to defend the case on its merits, and the employment judge in exercising his discretion must take account of all relevant factors, including the explanation or lack of explanation for the delay and the merits of the defence, and must reach a conclusion which is objectively justified on the grounds of reason and justice, 55 B -

d. D.

(39) In Kwik Save, Mummery J commented that an important part of exercising discretion will be to take account of the prejudice to each party, p55C- D. Another factor to take into account is the merits of the case. “Thus, if a defence is shown to have some merit in it, justice will often favour the granting of an extension of time, since otherwise there will never be a full hearing of the claim on the merits. If no extension of time is granted for entering a Notice of Appearance, the [employment ] tribunal will only hear one side of the case. It will decide it without hearing the other side. The result may be that [a Claimant] wins a case and obtains remedies to which he would not have been entitled if the other side had been heard. The Respondent may be held liable for a wrong which he has not committed.. This does not mean that a party has a right to an extension of time on the basis that, if he is not granted one, he will be unjustly denied a hearing. The applicant for an extension has only the reasonable expectation that the discretion relating to extensions of time will be exercised in a fair, reasonable and principled manner. This will involve some consideration of the merits of his case.”

(40) I considered that the Respondent had honestly admitted its mistake in overlooking the claim. It had acted quickly when the documents were located, presenting its Response and an application to extend time 2 days later. It had pleaded a defence on the merits, including that the claim was only treated as having been presented on 10 December 2020, many months out of time.

(41) As Kwik Save has advised, if a defence on the merits has been shown, justice will often favour the granting of an extension of time, since otherwise there will never be a full hearing of the claim on the merits. The result may be that a Claimant wins a case and obtains remedies to which he would not have been entitled if the other side had been heard. The Respondent may be held liable for a wrong which he has not committed.

(42) I decided that the justice of the case required that the Respondent be allowed to defend the claim. I accepted the Respondent’s contention that there would be little or no prejudice to the Claimant in allowing the Response to be accepted, other than having his Claim contested, whereas there would be significant prejudice to the Respondent in being unable to defend this Claim. The Respondent has shown a defence on the merits and there are significant issues Case Number: 2202637/2020 9 of 18 regarding whether the claim has any real prospect of success at all. The Respondent has permission to present its ET3 Response out of time. Strike Out - Discrimination claims

(43) In his ET1 claim form, the Claimant ticked the boxes: unfair dismissal; race and disability discrimination; and “other payments”. He did not say what race or disability he relied on.

(44) During this hearing, the Claimant told me that he had attached a document to his ET1 claim form. He did not have a copy of that document. Initially, I did not accept that the Claimant had attached a document to his claim form. It was not originally found by the Tribunal and was not served on the respondent. The claimant had not retained the document and had not provided a copy of it.

(45) However, having examined the local electronic file, which had been recently created, I found the Claimant’s attachment. I therefore reconsidered my decision that he had not attached a file to his claim.

(46) In his “file” attachment to the ET1, the Claimant did not mention race or disability discrimination.

(47) In his letter of 10 December 2020, responding to EJ Snelson’s initial rejection of his claim, he did not mention race or disability discrimination at all.

(48) On 12 August 2021 the Claimant was ordered to provide the following particulars of his race and discrimination claims by 6 September 2021: “a. What instances of less favourable treatment do you rely on? b. When do you say each alleged instance of less favourable treatment took place, and who do you say the perpetrator was? c. Who do you say is the appropriate comparator? This is a person who is the same as you in every material way but does not share your race and/or disability. You must show that you were treated less favourably than this person. d. Why do you say that you were subjected to each alleged instance of less favourable treatment because of your race and/or disability?”

(49) The Claimant did not provide the particulars of his discrimination claims. He said to me in the Tribunal today that he had sent lots of emails to the Respondent, which were evidence of how he was treated by the Respondent. He said that he was not a solicitor and he did not have time to provide particulars because he was busy working through an agency.

(50) Mr O’Neill said that the Claimant had sent him about 40 emails before the 12 August 2021 hearing in front of EJ Elliot, but it was not for the Respondent’s solicitors to sift through the Claimant’s evidence and emails and guess, from the evidence, what claims he was bringing. That was why the Claimant had been ordered by EJ Elliot to provide particulars of his claim. Case Number: 2202637/2020 10 of 18

(51) I considered that the Claimant had had ample opportunity, before today’s hearing, to provide particulars as required in Cox v Adecco

EAT/0339/19

(HHJ Tayler – judgment 9 April 2021). I considered that reasonable steps had been taken to identify the claims, and the issues in the claims. The Claimant was asked to provide particulars, but had failed to do so, because he says he is too busy. His pleadings also disclose none of the essential facts which might rise to a discrimination claim; they do not identify the nature of the claimant’s protected characteristic- what race, or disability he relies on. They plead no unlawful acts done because of his (unspecified) race or disability. They plead no comparator.

(52) The claimant has not applied to amend the claims to plead any facts upon which a discrimination claim might be advanced. If he did, any amendment application, pleading new facts, would be likely to be subject to time limits.

(53) I decided that there was no reasonable prospect of success in the claimant’s discrimination claims, which disclose none of the essential facts required for such a claim to succeed. The claims are struck out. Strike Out - Claim for Other Payments

(54) The Claimant had not provided any particulars of his claim for other payments either. He told me, at this hearing, that the Respondent had not paid him a redundancy payment because they sacked him. His claim is for a redundancy payment.

(55) However, the Claimant has not pleaded any facts on which the ET could decide that the Claimant was dismissed for redundancy. The Claimant does not allege that he was, in fact, redundant. He also told me that he had accepted a redundancy payment in respect of his dismissal by George Birchall Ltd on 28 March 2019, less than 2 years before his dismissal. He had not served a further 2 years employment thereafter in order to gain the right to a further redundancy payment.

(56) I considered that the Claimant had no reasonable prospect of success in his claim for a redundancy payment. He does not say that he was redundant, or that he was dismissed for redundancy. His claim for “other payments” is struck out. Unfair Dismissal Claims – Not Struck Out

(57) The Claimant brings claims of ordinary unfair dismissal and automatically unfair dismissal under s152 TULRCA 1992, because of Trade Union membership and activities.

(58) S152(1)(a) and s152(b) TULRCA 1992 provide: “S152 TULRCA 1992 Case Number: 2202637/2020 11 of 18 (1) For purposes of [Part X of the Employment Rights Act 1996] (unfair dismissal) the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee— (a) was, or proposed to become, a member of an independent trade union, … (b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time, …

(59) The claimant told me that he is a member of Unite the union and had been in touch with his Unite representative during his employment, who had contacted the building manager. The building manager was annoyed that the claimant was complaining to the Union and that the Union was regularly contacting the building manager and the respondent dismissed the claimant as a result.

(60) The respondent says that the claimant, an electrician, was dismissed for extremely serious breaches of health and safety, at least one of which he admitted during his disciplinary hearing. He admitted not “locking out” a distribution board which he was working on. He also switched the board on when there was significant water damage in the area.

(61) Having discussed the claims with the Claimant and the Respondent, I was able to identify the issues in the claims as follows:

[1]Does the Claimant have the 2 years’ service required to bring an ordinary unfair dismissal claim?

[2]Has the Respondent shown that the Claimant was dismissed for the potentially fair reason of conduct, in that he:a. Failed to carry out instructions as given by supervisor on making a safe Distribution Board and not following Lock Out Tag Out (LOTO) on 10th December 2019.

b. Switched the board on when there was significant water damage on 10th December 2019 which was a risk to the Claimant and others.

[3]If not, did the Respondent dismiss the Claimant for the automatically unfair reason/s or trade union membership and/or activities?

[4]If the respondent has shown that it dismissed the Claimant for the potentially fair reason of conduct, did the Respondent nevertheless act unfairly in dismissing the Claimant because: i. The decision to dismiss was predetermined – the respondent had already decided to dismiss the claimant and used the electricity allegations as a pretext for doing so; ii. The evidence on which the respondent relied in dismissing the claimant was fabricated or manipulated: the audiotapes were edited and water was sprayed onto the relevant area before photographs were taken. iii. The respondent did not have reasonable evidence on which to dismiss the claimant because the photographs of the relevant area on which it relied were of the wrong place; the claimant was working on the second floor but the photographs were of the fifth floor. Case Number: 2202637/2020 12 of 18 Iv. The respondent had not provided the claimant with any training in 5 years - the respondent failed to send the claimant on an inspection and testing course. V. The respondent did not provide the claimant with tools Vi. The claimant had only one day’s notice of the investigatory meeting. (62) Mr O’Neill, for the respondent, produced the record of the claimant’s disciplinary hearing on 15 January 2020. The disciplinary hearing notes record that, during the hearing, audiorecordings, showing the instructions given to the claimant on the relevant day, were played for the claimant to listen to. The notes record that the disciplinary hearing manager pointed out that the recordings, played to the claimant during the hearing, showed that the claimant had been given instructions on what to do “AP – I know it says on your statement that Barry did not tell you what to do, but the recording says otherwise, do you agree? DU No…”. (63) The notes also record the claimant admitting that he did not “lock out” the distribution board: “AP – When Barry asked you to switch off the board, did you lock it out? DU – No, I switched it off. Called him and told him I found the fault. He called me and told me to find the problem with the lighting on 2nd floor.” The notes also record the claimant saying that he turned the board on, and the hearing manager saying that there was water damage in the area, “ AP – You said the lights on the boards were off and there was no water, you switched the board on. DU – Just turned on the MCC board for just for 1 minute to check what the fault is AP – Which feed the lightboard. Did you turn it back off? Why? DU – Yes, I was told to AP – No water? DU – No AP – I saw the water damage.” (64) Mr O’Neill said that the claimant’s unfair dismissal claims should be struck out because there was no reasonable prospect of the ET finding that that the Respondent was able to fabricate time-stamped audio recordings as the claimant has alleged. He said that there was no reasonable prospect of the ET finding that the dismissing officer did not have a reasonable belief in the claimant’s guilt of the misconduct: from the record of the disciplinary hearing, the dismissing officer went to the relevant location himself and saw the water. He also said that there was no reasonable prospect of the ET finding that there had been a conspiracy to dismiss the claimant, with evidence fabricated to do so. Instead, as was clear from the note of the disciplinary hearing, the claimant admitted that he did not “lock out” and “tag out”. Mr O’Neill said that it was self-evident that an electrician should not work on any live electricity. A tag is tied around the relevant electrical equipment to show that someone is working it. There was no reasonable prospect Case Number: 2202637/2020 13 of 18 an ET finding that such a serious failure in health and safety would not result in dismissal. Mr O’ Neill said that there was no requirement under the ACAS Code of Practice to give notice of an investigatory meeting. (65) Mr O’Neill said that, in the alternative, it was clear that a deposit order should be made. (66) The Claimant said that he was telling the truth. He said that he was a qualified electrician. He said that he only received one day’s notice of the investigatory meeting. He said that he would tell the ET that the dismissal was because the building manager got sick of Unite the Union complaining all the time. Strike Out - Law (67) An Employment Judge also has power to strike out a claim on the ground that it is scandalous, vexatious or has no reasonable prospect of success under Employment Tribunal Rules of Procedure 2013, Rule 37(1)(a). (68) The power to strike out a claim on the ground that it has no reasonable prospect of success may be exercised only in rare circumstances, Teeside Public Transport Company Limited (T/a Travel Dundee) v Riley

[2012] CSIH 46

, at 30 and Balls v Downham Market High School & College

[2011] IRLR 217

EAT. In that case Lady Smith said: “The Tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospects of success. I stress the word ‘no’ because it shows that the test is not whether the Claimant’s claim is likely to fail nor is it a matter of asking whether it is possible that his claim will fail. Nor is it a test which can be satisfied by considering what is put forward by the Respondent either in the ET3 or in submissions and deciding whether their written or oral recessions regarding disputed matters are likely to be established as facts. It is, in short, a high test. There must be no reasonable prospect”. (69) A case should not be struck out on the grounds of having no reasonable prospect of success where there are relevant issues of fact to be determined, A v B

[2011] EWCA Civ 1378

, North Glamorgan NHS Trust v Ezsias,

[2007] ICR 1126

; Tayside Public Transport Co Ltd (t/a Travel Dundee) v Reilly

[2012] CSIH 46

. On a striking-out application (as opposed to a hearing on the merits), the tribunal is in no position to conduct a mini-trial. Only in an exceptional case will it be appropriate to strike out a claim for having no reasonable prospect of success where the issue to be decided is dependent on conflicting evidence. Such an exceptional case might arise where there is no real substance in the factual assertions made, particularly if contradicted by contemporary documents E D & F Man Liquid Products Ltd v Patel

[2003] EWCA Civ 472

, or, where the facts sought to be established by the claimant were 'totally and inexplicably inconsistent with the undisputed contemporaneous documentation', Ezsias para 29, per Maurice Kay LJ. (70) I did not strike out either of the unfair dismissal claims. I did consider that the claims were close to ones where there was no real substance in the claimant’s factual assertions about the reason for dismissal, as they were contradicted by Case Number: 2202637/2020 14 of 18 contemporary documents E D & F Man Liquid Products Ltd v Patel

[2003] EWCA Civ 472

, and, where the facts sought to be established by the claimant were 'totally and inexplicably inconsistent with the undisputed contemporaneous documentation', Ezsias para 29, per Maurice Kay LJ. The reasons for dismissal set out in the dismissal letter were, on the face of it, very serious. The Claimant was alleging that relevant evidence of his failings had been fabricated, which was inherently unlikely given that it was audio and photographic evidence. (71) However, I concluded that there was a core of disputed fact as to the reason the claimant was dismissed; whether the respondent had dismissed the claimant because of his Trade Union membership and activities. The claimant will say that he made use of the Trade Union and his officer telephoned the company, causing the building manager to become weary and irritated by the claimant’s trade union membership and activities and that the claimant was dismissed as a result. Without hearing the evidence and without disclosure of all relevant documents, including records of communication with the union, it was not appropriate to say that there was no reasonable prospect of success in the claimant’s unfair dismissal claims. Inferences might be drawn from records of discussions with the union and any internal communications following these discussions. Furthermore, there is a dispute of fact regarding whether a relevant photograph was of the correct location. If it was not, there would be a question about whether the respondent had reasonable evidence on which to dismiss, on one of the allegations against him. Deposit Order (72) If, at a Preliminary Hearing, an Employment Judge considers that and specific allegation or argument in a claim or response has little reasonable prospect of success, he or she may make an order requiring that party to pay a deposit not exceeding £1,000 as a condition of continuing to advance the allegation or argument, r39(1) ET Rules of Procedure 2013. (73) The Tribunal is required to make reasonable enquiries into the paying party’s ability to pay the deposit and to have regard to such information into account in deciding the amount of the deposit, r39(2). (74) When determining whether to make a deposit order, a Tribunal is not restricted to a consideration of purely legal issues but is entitled to have regard to the likelihood of the party being able to establish the facts essential to his case, and, in doing so, to reach a provisional view as to the credibility of the assertions being put forward (Van Rensburg v Royal Borough of Kingston-upon-Thames

UKEAT/0095/07

[2007] All ER (D) 187

(Nov). Although, as Elias J pointed out in that case, the less rigorous test for making a deposit order allows a tribunal greater leeway to take such a course than would be permissible under the test of no reasonable prospect of success, the Tribunal 'must have a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim or response' (para 27). Case Number: 2202637/2020 15 of 18 (75) I decided that the claims were clearly ones in which a deposit order should be made, because the claimant’s contentions have little reasonable prospects of success. (76) I ordered the claimant to pay a deposit as a condition of continuing to advance his automatic unfair dismissal claim because I considered that there is little reasonable prospect of the Tribunal finding that the principal reason for dismissal was the claimant’s trade union membership/activities, rather than that he failed to operate lock out , tag out on making a safe distribution board and that he switched the board on when there was significant water damage. (77) On the contemporaneous record of the disciplinary hearing, the claimant admitted that he did not “lock out and tag out” the distribution board – he said he simply turned it off. He also agreed that he had turned the distribution board on. He therefore admitted much of the central allegations against him. Further, on the audiorecordings, the claimant had been given instructions to carry out the relevant work. The claimant contends these recordings of his instructions are fabricated. I decided that there was little reasonable prospect that the Tribunal would find, on the claimant’s bare assertion, that the audiorecordings had been invented. Accordingly, there was little reasonable prospect that the Tribunal would find that the claimant had not made serious health and safety breaches in carrying out work which he had been instructed to do. (78) In order for the claimant’s automatic unfair dismissal claim to succeed, the trade union membership and activities would need to be the “principal” reason for dismissal. There was little reasonable prospect of this, given that the claimant’s admitted actions, in failing to make a distribution board safe and turning on a live distribution board, in an area where the dismissing manager had himself seen water damage. These actions were evidently dangerous for an electrician and likely to result in dismissal, whatever his employer felt about his trade union activities and membership. (79) I also ordered the Claimant to pay a deposit as a condition of continuing to advance his ordinary unfair dismissal claim, and, in particular, 2 central arguments in it. (80) First, I considered that there was little reasonable prospect of the Tribunal finding that the dismissal was predetermined and evidence was fabricated to ensure this. The claimant contends that audiotapes were tampered with and that the respondent sprayed water in the area, in order to entrap the claimant and invent evidence against him. (81) I agreed with the respondent that there was little reasonable prospect of the ET finding that audiotapes, which were time recorded, could have been tampered with. The claimant’s contentions rely in an alleged conspiracy and highly deceitful behaviour, for which the claimant advances no evidence, apart from his assertion. I accepted is inherently very unlikely that the tribunal would prefer the claimant’s assertion of conspiracy and invention over actual photographic and audio evidence. Case Number: 2202637/2020 16 of 18 (82) Second, I considered that there was little reasonable prospect of the claimant succeeding in his argument that his dismissal was unfair because the respondent did not train him. I considered there was little reasonable prospect of ET finding that an electrician was not at fault in failing to operate safe practices regarding live electricity and water damaged areas; these circumstances are obviously dangerous, even to an untrained individual. The claimant told me that he is a trained electrician. I considered that there was little reasonable prospect of the ET finding that any alleged lack of training by the respondent, specifically, meant that a decision to dismiss for serious health and safety failings regarding live electricity was not within the band of reasonable responses. Such failings are so serious, given the risk of death, that it is highly likely that dismissal will be found to be fair. (83) I considered the appropriate amount of the deposit orders. (84) The respondent said that the claimant had been required to exchange documents in relation to his means by 16 September 2021and had failed to do so. It said that the tribunal had therefore already made reasonable enquiries into the claimant’s means and did not need to investigate further. (85) I considered that it would not be appropriate to order a deposit which the claimant could not afford to pay, as that would potentially deny him access to a fair hearing. I asked the claimant about his income and assets. He said that he had been working for 3 months through an agency until Friday 15 October 2021 as an electrical and maintenance engineer. He produced 3 recent weekly payslips, showing that he was paid £606.79 net on 10 October 2021, £485.19 net on 26 September 2021 and £493.39 net on 5 September 2021. Such sums were broadly in line with his pay at the respondent. The Claimant said that he had been unemployed for 8 months last year. (86) The claimant lives at 79 Spearman Street, Woolwich. It is a rented property, owned by a private landlord. The claimant pays £1,250 rent each month. (87) I considered that there was no reason why the claimant would not be able to obtain alternative agency work as an electrician / maintenance operative almost immediately. It is generally known that there is a shortage of skilled tradespeople. He ought to be able to earn at least what he was earning each week until 15 October. (88) I ordered the claimant to pay a total deposit of £450 as a condition of continuing to advance his unfair dismissal claims - £150 as a condition of continuing to advance his automatic unfair dismissal claim and £300 as a condition of continuing to advance his ordinary unfair dismissal claim. I considered that 2 of his contentions in his ordinary unfair dismissal claim had little reasonable prospect of success. (89) I considered that the claimant ought to be able to afford to pay the total amount of the deposit. When he is in work, he earns more than £2,000 each month, net. With rent of £1,250, each month he has more than £750 for other spending, Case Number: 2202637/2020 17 of 18 including necessities. It is important that the claimant thinks seriously about whether he wishes to continue with these claims. (90) I explained to the claimant that the real force of a deposit order lies in the costs risk attached to the Claimant if he continues to pursue the allegations when a deposit order has been made. Strike out for Unreasonable Conduct Refused (91) An Employment Judge has power to strike out a claim on the ground that the manner in which the proceedings have been conducted has been scandalous, unreasonable or vexatious; under Employment Tribunal Rules of Procedure 2013, Rule 37(1)(b). (92) In Bolch v Chipman

[2004] IRLR 140

, EAT, Burton J said that there were four matters to be addressed in deciding whether to strike out a claim because the Claimant has behaved scandalously, unreasonably or vexatiously. First, there must be a conclusion by the tribunal, not simply that a party has behaved scandalously, unreasonably or vexatiously, but that the proceedings have been conducted by or on his behalf in such a manner: 'If there is to be a finding in respect of [rule 37(1)(b)] … there must be a finding with appropriate reasons, that the conduct in question was conduct of the proceedings and, in the circumstances and context, amounted to scandalous, unreasonable or vexatious conduct.' Second, even if such conduct is found to exist, the tribunal must reach a conclusion as to whether a fair trial is still possible. In exceptional circumstances (such as where there is wilful disobedience of an order) it may be possible to make a striking out order without such an investigation, but ordinarily it is a necessary step to take. Third, even if a fair trial is not considered possible, the tribunal must still examine what remedy is appropriate, which is proportionate to its conclusion. It may be possible to impose a lesser penalty than one which leads to a party being debarred from the case in its entirety. Fourth, even if the tribunal decides to make a striking out order, it must consider the consequences of the debarring order. For example, if the order is to strike out a response, it is open to the tribunal, pursuant to its case management powers under [r 29] or its regulatory powers under [r 41], to debar the respondent from taking any further part on the question of liability but to permit him to participate in any hearing on remedy. (93) The respondent asked that I strike out the claim because of the claimant’s unreasonable conduct and his failure to comply with orders. The unreasonable conduct was the claimant sending an email late at night on 19 July 2021 to a junior member of the HR team at the respondent, in response to the request for further particulars, saying: “All this is a big lie and everyone has their consequences!!!”. That happened once and was not repeated. I considered that a fair hearing was still possible at this stage – and that that conduct was not so unreasonable as to justify strike out in those circumstances. (94) I did warn the claimant, however, that if he continued to fail to comply with orders for exchange of documents and evidence, it would more and more likely that his claim would be struck out because a fair hearing would not be possible. Case Number: 2202637/2020 18 of 18 (95) I told the parties that I would make orders for preparation for the final hearing. I agreed with the respondent that a 3 day final hearing would be needed, as the claimant requires the assistance of a Bulgarian interpreter. __________________________ Employment Judge Brown 22 October 2021 Judgment sent to the parties on: 26/10/2021. For the Tribunal: OLu Case No: 2202637/2020 10.5 Reserved judgment with reasons – rule 62 March 2017 EMPLOYMENT TRIBUNALS Claimant: Mr D Usunov Respondent: ABM Technical Solutions Limited Heard at: London Central On: 23 and 24 March 2022 and in chambers (remotely by CVP) 25 March 2022 Before: Employment Judge Heath Ms C Ihnatowicz Mr D Carter Representation Claimant: In person Respondent: Mr A O’Neill (Solicitor)

REASONS

Conclusions

[1]The claimant claims that he was automatically unfairly dismissed for trade union membership and/or activities contrary to section 152 Trade Union & Labour Relations (Consolidation) Act 1992 (“TULRCA”). He also claims “ordinary” unfair dismissal under section 98 Employment Rights Act 1996 (“ERA”). Claims of race discrimination, disability discrimination and for a redundancy payment have been struck out because they had no reasonable prospects of success at a preliminary hearing.

[2]The respondent does not accept the claimant has continuity of service from his previous employer by virtue of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”), and thus does not have the two Case No: 2202637/2020 10.5 Reserved judgment with reasons – rule 62 March 2017 years’ service necessary to bring an unfair dismissal claim. It was agreed between the parties and the tribunal to hear the ordinary unfair dismissal claim, together with the TULRCA claim, on the assumption that the claimant had the qualifying service, and then to determine the continuity issue if he would otherwise succeed in his unfair dismissal claim.

The issues

[3]A draft List of Issues have been prepared by the respondent prior to the hearing based on issues which have been discussed at a previous case management hearing. The claimant had not agreed these with Mr O’Neill prior to the hearing (despite case management orders directing this), but he agreed at the hearing that these with the issues the tribunal had to decide. The List of Issues are annexed to this decision.

Procedure

[4]A Bulgarian interpreter was provided for the claimant for this hearing. He indicated at the outset that he wanted to conduct the hearing in English, but to seek help from the interpreter as and when he needs it from time to time. This is, in fact, how he did use the interpreter during the hearing.

[5]The ordinary unfair dismissal requires the claimant to have had two years’ service before the tribunal can accept jurisdiction. There is no such requirement for an automatic unfair dismissal claim under section 152of TULRCA. The respondent proposed that the tribunal assumed, for the purposes of the hearing, that the claimant had two years service. Mr O’Neill proposed that the tribunal adjudicate on the unfair dismissal claim on this basis. If the tribunal was satisfied on the evidence that the dismissal was unfair under section 98 ERA, the tribunal could come back to consider the TUPE question. This was explained to the claimant, who agreed with this approach. Accordingly, the tribunal considered that this was an appropriate approach in the circumstances.

[6]There have been some difficulties in case preparation. The claimant did not comply with case management orders in respect of production of his witness statement. Amended case management orders were made, which he did not comply with, and a further order was made for the production of sequential witness statements, which he did not comply with. On 14 March 2022 Employment Judge Brown ordered that “Unless the claimant sends his witness statement to the respondent, copied to the tribunal, by 15 March 2022, he will not be permitted to give evidence on liability to the tribunal, save that he can rely on the contents of his claim forms and the List of Issues as his evidence in the case”.

[7]On 15 March 2022 at 10.48pm the claimant sent ½ page email to the tribunal, in which he made some observations about procedure and also factual assertions in relation to the case. The tribunal treated this, together with the claim for and the List of Issues as the claimant’s evidence in the case.

[8]At the start of the hearing, the claimant indicated that he wanted to refer to some documents in his possession. These documents had not been disclosed to the respondent, had not been referred to at case management discussions and the claimant had not brought copies to the hearing. The respondent objected to these being considered by the tribunal. Additionally, Case No: 2202637/2020 10.5 Reserved judgment with reasons – rule 62 March 2017 the claimant at the start of the hearing said that he wanted to play audio recordings of his disciplinary hearing and the appeal hearing. He had not disclosed these, or even mentioned them to the respondent prior to the hearing, and had not provided transcripts. He said these recordings were each about an hour long. The tribunal asked why the claimant was asking for these recordings to be played, and he responded “Everything that came up is recorded”. The respondent objected to these.

[9]The tribunal decided that further documents, which had not been disclosed prior to the hearing in accordance with case management orders, were not to be used at the hearing. The tribunal also decided that clandestine recordings, never before referred to let alone disclosed, to be played at the hearing. The claimant had been left in no doubt during the case management of this case at previous hearings about the need for proper and orderly advance disclosure of evidence. “Dumping” a large amount of evidence on the respondent at the start of the hearing risked prejudicing the respondent. The only way to ensure the respondent could have remained on an equal footing, would be to adjourn the case to allow it to read and listen to the evidence, for Mr O’Neill to take instructions and take a view on how to deal with the evidence. This evidence should have been disclosed prior to witness statements to give the witnesses an opportunity to comment on the evidence. It would not be fair or just to allow what was little more than an ambush. Allowing further time for the respondent to consider the evidence would just waste time and delay matters further. The evidence would not be allowed in.

[10]During the evidence of Mr Shore, recordings of radio comms that had been played during the claimant’s disciplinary hearing were played.

[11]The first two days of the hearing were conducted in person. The third day was also due to be conducted in person. By this stage the tribunal had heard both evidence and submissions. Unfortunately the judge had, during the course of the second day, developed symptoms he feared might be of COVID. The tribunal sought the views of the parties, and decided to deliberate the following day in chambers by CVP. The decision would be reserved.

[12]The tribunal was provided with a 444 page bundle, evidence from the claimant as set out above, and witness statements on behalf of the respondent from:a. Mr Peter Shore, Contract Manager;

b. Ms Sophie Buckingham, HR Adviser;

c. Mr Paul Douglas, Contract Manager.

[13]Mr O’Neill and the claimant gave oral closing submissions.

The Facts

[14]The respondent is a company which provides various services to different sectors. It employs around 5000 people providing facilities services, and around 350 people providing technical services. The respondent provided technical services to the managers of a building known as Broadgate, for its customer Broadgate Estates. Case No: 2202637/2020 10.5 Reserved judgment with reasons – rule 62 March 2017

[15]The claimant is a Bulgarian born British citizen who is an electrician. For reasons we have outlined above, we have not heard detailed evidence or made findings in respect of any potential transfer of the claimant’s employment to the respondent, but the claimant worked for five years for companies also providing technical services at Broadgate.

Procedure

[16]The claimant commenced employment as an electrician with the respondent on 29 March 2019. Although we have not heard evidence on this, it would appear that his previous employment terminated on the administration of the company employing him. The claimant was one of the 350 members of staff employed by the respondent providing technical services.

[17]On 13 July 2019 the claimant emailed the HR Department of the respondent, copied to Mr O’Donnell, a Regional Officer of the claimant’s trade union, Unite, expressing dissatisfaction about his pay. He said that he felt he had been “manipulated by some of the people who are in management staff of previous companies we have been worked before we have transferred to [the respondent]”. He also complained that some less qualified members of staff had been able to progress through the company and become more highly remunerated. He provided a copy of his City and Guilds certificate and qualification.

[18]In around October 2019 Mr Shore was transferred to the Broadgate site as Contract Manager for the site. He became the claimant’s line manager.

[19]On 10 December 2019, a Mr Warrington, the Technical Services Manager of Broadgate Estates (the respondent’s client) emailed Mr Shore with the subject heading”[EXTERNAL] REF: 1BG – ABM site Engineer’s – To Be Removed Off Site IMMEDIATELY!” Mr Warrington referred to the “current/ongoing situation regarding” the claimant. He referred to the fact that in addition to various observations he had collated since January 2019 and previous discussions and emails, he had “just heard a seriously concerning conversation over the radio comms” between a supervisor, Barrie Arnold, and the claimant. The email included the following: -• “Dimo was asked to safely isolate and open up a particular DB within the SW Plant room. The instructions were to 'Safely Isolate' and open up the Distribution Board (One of the DBs that was affected from yesterday's CHW leak) to allow this to dry out.

• Dimo responded over the radio that he had switched it on, putting power back onto a DB that still contained visible signs of water. Barrie asked twice to confirm and then instructed Dimo to switch it off.”

[20]Mr Warrington said that he hoped Mr Shore would agree that this was a “ ‘Major Breach of Health and Safety’ endangering not only himself but potentially others as well”. He requested that the claimant be removed from site with immediate effect.

[21]A customer instruction to remove a member of the respondent’s staff from site is not a common occurrence. At the time Mr Shore saw the email, the claimant was not on site. Mr Shore met with the claimant, together with Case No: 2202637/2020 10.5 Reserved judgment with reasons – rule 62 March 2017 Ms Fox, Lead Contract Support, who took notes, at 10:21 AM on 11 December 2019. What happened at this meeting was recorded in a template Investigation Form.

[22]The reason for the investigation was given as “Suspension and thirdparty removal from site due to breach of Health & Safety on 10 December 2019”.

[23]The claimant was told he was suspended with immediate effect following the third-party request for removal from site. He was told that he would be invited to an investigation where he would have an opportunity to put his case forward.

[24]He was asked for some work items and was told he was suspended on full pay. The claimant was also told that he could have a representative attend any further investigation meeting. The claimant was told not to return to site. The claimant responded that there were “plenty of liars are located here”. He wanted to speak to the client, but was asked not to.

[25]Mr Shore was tasked with investigating this issue. On 12 December 2019 he interviewed Mr Arnold, the Supervisor. The details of this interview were set out in a Statement Form.

[26]Mr Arnold said that on 10 December 2019 he had showed the claimant a water damaged distribution board on the level 2 south-west plant room. He told the claimant that the board was damaged, showed him the isolation point next to the board, and explained that the board needed to be isolated, and its cover removed so that it could dry out. Mr Arnold said that there was a further meeting between him and the claimant where he issued the claimant a padlock to lock out (i.e. ensure that the installation could not be switched on again).

[27]Mr Arnold said that at approximately 3 pm he had radioed the claimant to say “The area we looked at can you now isolate so we can dry out the board. Any problems to seek assistance from [Mr Arnold]”. The claimant replied that he had switched the board on, the lights were on and there were no problems. Mr Arnold asked the claimant to repeat this. The claimant confirmed the board was on, lights were on, things were live and there were no problems.

[28]Mr Arnold said that he immediately told the claimant to switch the board off and that he was en route. He asked why the claimant had switched the board on, and the claimant replied that Mr Arnold had told him to. Mr Arnold denied this and told the claimant to turn the power off and that he was on his way up.

The law

[29]Mr Arnold said that while he was en route to see the area, he could see the claimant leaving the building, going outside and leaving the area unattended.

[30]Mr Arnold said that when he arrived at the location he found the main board had been switched off. He felt that powering up the main board with the water damage had presented an immediate risk to the claimant’s wellbeing. He was concerned that the claimant had done the opposite of what he had requested. Case No: 2202637/2020 10.5 Reserved judgment with reasons – rule 62 March 2017

[31]Mr Arnold took photographs on his mobile phone of the main board, the lighting board and the general area, which he provided to Mr Shore.

[32]Later on 12 December 2019, Mr Shore interviewed Mr Lawman, Shift Leader. Mr Lawman said that he had overheard the radio conversation whilst he was at lunch. He indicated that he overheard Mr Arnold instructing the claimant not to switch on the board. Mr Lawman said, from the sound of things, the claimant had switched on the board rather than locked it off and tagged it, and had then left the area of concern.

[33]On 18 December 2019, Mr Shore sent the claimant a letter confirming his suspension and invited him to a Third Party Removal Request Meeting on 23 December 2019. The purpose of the meeting was to discuss the request to remove the claimant from site and “the impact this has on your ongoing employment. I must advise you that in the event that no suitable alternative employment can be found it may result in your dismissal from the company”. The letter went on to say that there were copies of available positions within the company, and that consideration would be given at the hearing to whether any of these were suitable to get the claimant back into work.

[34]Mr Shore told us, and we accept, that he had used a template letter for a Third Party Removal Request Meeting, filling in additional detail.

[35]On 23 December 2019 Mr Shore interviewed the claimant with a notetaker present. Minutes of the meeting appear in a Statement Form. By this time, Mr Shore had listened to a recording of the radio conversation between Mr Arnold and the claimant on 10 December 2019.

[36]The purpose of the meeting was explained to the claimant, and he was told that it was his opportunity to explain the situation and give his side of the story.

[37]The claimant said that he was removed because “the site sees him as a “Tron” and were trying to take him off site using lies”. (The claimant confirmed in his oral evidence to the tribunal that “Tron” was a Bulgarian word meaning something limiting the vision of someone else, or obstructing them from doing something).

[38]The claimant set out his account of what occurred that day. He had been informed that there were no lights at level 2. He said he had tried to find Mr Arnold a number of times to find out what to do, and saw him around 10 when Mr Arnold had arrived for work. He said he did not see Mr Arnold again until 4 PM.

Conclusions

[39]The claimant said that Mr Arnold had given him no instructions. He then said that he had seen Mr Arnold on a few occasions during the day, but that no instructions had been given face-to-face or by radio.

[40]The claimant said he had received radio instructions at 3:15 PM to go to level 2 to investigate. The claimant quoted Mr Arnold as saying “Dimo you have more time you can go to investigate what is the problem”.

[41]The claimant said whenever he went to the second floor the lights were off and the main MCCB breaker was off. The claimant said he told Mr Arnold there was no fault and there was no water and that he switched the lights on. Case No: 2202637/2020 10.5 Reserved judgment with reasons – rule 62 March 2017 He said the problem was that the breaker was off. He confirmed that there was no water.

[42]The claimant said that Mr Arnold had given him a padlock because he might need it, and had told him to find a fault.

[43]The claimant confirmed again the lights were always off, the boards were off, there was no water, and that he had switched the board on. He said that he had been given no instructions, but simply asked to investigate what the problem was.

[44]The claimant said that Mr Arnold “had lied plenty of times and not just this once”. He confirmed he had received “absolutely no instructions”. He said that there were no instructions to take covers off and dry the board and that he was “100% sure” of this.

[45]The claimant confirmed that Mr Arnold had asked him to switch the board off once it had been switched on. However, he denied getting any instructions on the radio.The claimant said that Mr Arnold was trying to find ways to make him look bad and that people were lying about him to try and “make him dirty”.

[46]On 30 December 2019 the claimant emailed the respondent’s HR Department attaching a copy of the Statement Form Mr Shore had prepared for the claimant’s investigation interview. The claimant had signed each page of the form indicating he had read and fully understood the statement. He had, however, written some of his own observations in handwriting on the form. At no point in the interview had the claimant mentioned anything about his membership of a trade union or any activities connected with his trade union. He did not make any handwritten comments about these issues either.

[47]On 2 January 2020, Mr Shore emailed the three statements he had taken during the course of his investigation to Ms Buckingham, a human resources adviser. He indicated that he considered there was a case for removal from site and dismissal from the respondent “on H&S gross misconduct”.

[48]On 10 January 2020 the claimant was sent a letter inviting him to a “Disciplinary Hearing – Gross Misconduct”. The purpose of the hearing was to consider an allegation of gross misconduct expressed as follows: “Failure to carry out instructions as given by supervisor on making a safe Distribution Board and not following Lock Out Tag Out (LOTO) on 10 December 2019. Serious breach of ABM policy, operating procedure and workplace rules whereby you switch to the board on when there was significant water damage on 10 December 2019 which is a risk to yourself and others”.

[49]The general wording of these two charges was lifted straight from the respondent’s disciplinary procedure as examples of gross misconduct, with specific details added. The disciplinary procedure was not in the bundle, but we accept this evidence.

[50]The letter of 10 January 2020: Case No: 2202637/2020 10.5 Reserved judgment with reasons – rule 62 March 2017

a. Attached the disciplinary policy and explained the claimant would be given the opportunity to explain his case and answer the allegations. He was told he could ask questions, dispute the evidence, provide his own evidence or otherwise argue his case. He was told that he could also put forward mitigating factors, and that due consideration would be given to any factors he raised.

b. Indicated that Mr Peakall, Account Director, would conduct the hearing assisted by Ms Buckingham, HR adviser. The claimant was given the right to be accompanied at the disciplinary meeting by a work colleague or a trade union official of his choice. The various outcomes open to the meeting were explained to the claimant, including dismissal without notice. He was told his suspension with full pay would continue.

c. Provided the claimant with the evidence, namely, Mr Arnold’s statement, Mr Lawman’s statement, the email from Mr Warrington, photographs of the wet distribution boards and switches. He was also told that the recordings of the radio traffic would be heard at

the hearing.

[51]The claimant received this letter and arranged representation by his trade union representative.

[52]The disciplinary hearing took place on 15 January 2020, chaired by Mr Peakall, who was assisted by Ms Buckingham who took notes. The claimant attended accompanied by a trade union representative Mr Olugun.

[53]During the hearing: -a. The disciplinary allegations the claimant faced were read to him, which were said to constitute gross misconduct, with a possible outcome of dismissal.

b. Evidence from the statements was read out to him, and he was given the opportunity to put forward his account. He was specifically asked to confirm whether any instructions had been given by Mr Arnold face-to-face or by radio. His response was “None, I went and checked the basement, no fault”.

c. The recordings of the radio comms were played at the disciplinary hearing. In the recordings Mr Arnold could clearly be heard to ask the claimant on one occasion “Can you dry out that panel onto the second floor please?” He further says that he needed it “stripped down to dry out”. Around eight minutes later the claimant asks Mr Arnold to call him back and says “the power is on on the south-west”. Mr Arnold says “How is that happened?”. The claimant says “the main breaker”. Mr Arnold asks “Have you reinstated power to that second floor board?” The claimant replies "Yes, the lighting board is on, everything is on with power". Mr Arnold instructs the claimant to switch it back off again and again said “Switch it off, the board is full of water”. The claimant said “You asked me to turn it on” and Mr Arnold replies “No Dimo, I asked you to strip the board so it could dry”. The claimant replied that the Case No: 2202637/2020 10.5 Reserved judgment with reasons – rule 62 March 2017 power was off. Mr Arnold said that he was on his way up and told the claimed not to touch anything.

d. During the hearing the claimant denied that there was any leaking in the second floor room or that the electrical board was wet. He denied that he had been told to dry the board or given instructions. He said that Mr Arnold had lied all the time. He then denied turning on the breaker, and again said that there was “no water at all” in the second floor room.

e. The claimant was shown photographs of wet distribution boards and switches from the second-floor room. His trade union representative said “the pictures were taken at another time, they are not an accurate representation”. The claimant went on to say “they were taken in February 2019”.

f. The claimant went on to complain that he had been pushed “to do the dirty jobs I have no training for”.

g. The claimant’s trade union representative put forward that the may have been an issue with the claimant’s “level in English”. The claimant, however, said “I understand what they are talking about”. He was asked specifically whether he understood the instructions and he responded “of course, yes”. He was specifically asked whether he understood the instruction to dry out the electrical board and he responded “the board was not wet”. He later said “I understood all of the instructions, I have been working for 5 years in the company” and said that he could communicate well. He complained about being underpaid and not being taken seriously.

h. At no point in the disciplinary hearing did the claimant or his trade union representative say anything about either his membership of a trade union, or any trade union activities.

[54]On 29 January 2020, Mr Peakall wrote to the claimant with the outcome of the disciplinary hearing. The outcome was dismissal without notice for gross misconduct. The reason given was: “Failure to carry out instructions as given by supervisor on making a safe Distribution Board and not following Lock Out Tag Out (LOTO) on 10 December 2019. Serious breach of ABM policy, operating procedure and workplace rules whereby you switch to the board on when there was significant water damage on 10 December 2019 which is a risk to yourself and others”.

[55]Mr Peakall noted the claimant’s assertion that he had not received any instructions regarding the distribution board, but referred to radio recordings that clearly demonstrated Mr Arnold had asked the claimant to dry out the board. He referred to the fact that the claimant had made clear that he had understood instructions.

[56]Mr Peakall wrote that he had asked the claimant why he had switched on the board when there was significant water damage, and noted that the claimant had denied switching on the board, but admitted to turning on the Case No: 2202637/2020 10.5 Reserved judgment with reasons – rule 62 March 2017 MCC board which feeds the light board. He noted that the claimant said that it was dry, despite the photographic evidence showing the board as being wet.

[57]Mr Peakall set out that “the risk that was taken by switching on a wet distribution board is extremely irresponsible and it could have caused serious harm to yourself as well as anyone else working on the other ends of the board”. He said he considered this misconduct was so serious that it warranted dismissal without notice and without giving any warnings.

[58]Mr Peakall offered the claimant a right of appeal, and set out that dismissal was effective immediately without notice or payment in lieu of notice. The claimant was told he would be paid for accrued but untaken holiday, and was asked to return company property.

[59]For reasons which were not entirely clear, the claimant claims he did not receive his dismissal letter until 21 February 2020. On 25 February 2020 the claimant appealed his dismissal by way of letter to Ms Buckingham, an HR adviser. He claimed to be the victim of “an organised lie” and said that photographs were forged in that someone had sprayed water before taking a photograph. He said that the photographs of the burnt distribution board were not from the second floor South West plant room. He said the radio comms recording was “manipulated” and that “everything is fabricated”. He further stated “I also want to tell you that in your company which is entrusted to you, you are surrounded by as many liars as you can’t imagine, and who you owe to believe. But you will understand it consequences of the time. I believe there is someone to take care of all that you have caused me. Sooner or later everyone pays for their Sins”. He said that the points he raised during the dismissal meeting were ignored and the decision to dismiss him was unfair. He wished to be reinstated into his role.

[60]In his grounds of appeal, the claimant did not refer to his trade union membership or any trade union activity.

[61]The claimant’s appeal against dismissal was heard on 1 April 2020. It was a remote meeting which the claimant attended by telephone and the appeal chair, Mr Paul Douglas, and the notetaker, Ms Buckingham, attended by video. The claimant was represented by Mr O’Donnell, the trade union Regional Officer.a. Mr Douglas began the meeting by asking the claimants to clarify his grounds of appeal. The claimant referred to a conversation he overheard and said “they are absolute liars”.

b. The claimant, essentially, said that the radio comms recording played at the disciplinary hearing did not reflect what had been said over the radio. He said he was “sure it has been manipulated, not what I heard on the radio. I remember exactly what he told me”. He claimed that Mr Arnold had spoken to someone and said “everything is dry”.

c. The claimant asserted that the photographs used at the disciplinary hearing had been taken on the fifth-floor, and not the second-floor room that he had attended. Case No: 2202637/2020 10.5 Reserved judgment with reasons – rule 62 March 2017

d. The claimant’s trade union representative put forward that the claimant believed people at work dislike him and have made false allegations against him in order to get him dismissed and he believed that he had been “set up”.

e. There was some discussion about what had been interpreted as threats in the claimant’s grounds of appeal.

f. Neither the claimant nor the trade union regional officer made any reference to the claimant’s trade union membership or to any trade union activities.

[62]At the meeting Mr Douglas indicated that he did not uphold the claimant’s appeal.

[63]On 8 April 2020 Mr Douglas wrote to the claimant setting out a written outcome to the appeal. He set out what he understood the basis of the claimant’s appeal to be, namely that the radio recordings had been tampered with, that photographs relied on at the disciplinary hearing were not of the plant room in question, and that he had been set up by colleagues in order to be dismissed. He further set out that he had had regard to radio recordings, and all of the written evidence used before the disciplinary hearing.

[64]Mr Douglas set out his conclusions that he did not accept that it was possible to manipulate the recordings as suggested by the claimant. He also confirmed that the photos had been taken in the correct second-floor plant room. Finally in respect of the allegation of being targeted by colleagues, Mr Douglas set out that he had confirmed that there had been no complaints of bullying put forward by the claimant on file. He indicated that he did not uphold the appeal

[65]Subsequent to the dismissal, and for the purposes of these proceedings, a photograph was taken of Mr Arnold’s mobile phone displaying various photographs used during the course of disciplinary hearings. The after-the-event photographs show the disciplinary hearing photographs on the screen of Mr Arnold’s phone together with digital information displayed. The digital information makes clear that the disciplinary hearing photographs were all taken on 10 December 2019. We find as a fact that they were taken on this date.

[66]As set out above, we were played recordings of radio comms of the afternoon of 10 December 2019. No evidence, beyond bald assertion, was put forward that these recordings were in manipulated or falsified in any way. We find is a fact that they are genuine recordings setting out the radio comms between Mr Arnold and the claimant on that day.

[67]Finally, in terms of our fact finding, we were told that the switches on the distribution board in the second floor room are of a sort that are not easily lockable. We were told that Mr Arnold, after he attended the second-floor room on 10 February 2019 went to a room in the basement of the building and “locked out” and tagged the electrical feed to the second floor room board. This was evidenced in a photograph on page 213 of the bundle. We were told that this was the appropriate way to “Lock Out Tag Out”. This evidence was not challenged, and we accept it. Case No: 2202637/2020 10.5 Reserved judgment with reasons – rule 62 March 2017 The law Automatic unfair dismissal

[68]Section 152 TULRCA provides, relevantly: - (1) For purposes of Part X of the Employment Rights Act 1996 (unfair dismissal) the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee— (a ) was, or proposed to become, a member of an independent trade union, (b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time Unfair dismissal

[69]Under section 98(1) ERA 1996 it is for the employer to show the reason for the claimant’s dismissal, and that this is a potentially fair reason under section 98(2) ERA 1996. In this context (and indeed for the section 152 TULRCA claim), a reason for dismissal is “a set of facts known to the employer, or it may be beliefs held by him, which cause him to dismiss the employee” (Abernethy v Mott, Hay & Anderson

[1974] ICR 323

[70]Potentially fair reasons include a reason relating to conduct (section 98(2)(b) ) and “Some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held” (section 98(1)(b) “SOSR”).

[71]The approach to fairness of dismissal is governed by section 98(4) ERA, which provides: - Where the employer has fulfilled the requirements of subsection (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 employer’s 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.

[72]Where the reason for the dismissal is said to be misconduct, the approach to fairness is the test in British Home Stores v Burchell

[1980] ICR 303

namely:a. Did the respondent have a genuine belief in the claimant’s misconduct?

b. Was such a belief based on reasonable grounds?

c. Following a reasonable investigation? Case No: 2202637/2020 10.5 Reserved judgment with reasons – rule 62 March 2017

d. And following a reasonable procedure?

e. Was dismissal within the range of reasonable responses open to a reasonable employer?

[73]This approach is suitable to an SOSR dismissal where it is alleged that trust and confidence broke down (Perkin v St George’s Healthcare NHS Trust

[2006] ICR 617

[74]In considering a dismissal that is disciplinary in nature, the tribunal will have regard to the ACAS Code of Practice on Disciplinary and Grievance Procedures (“ACAS Code of Practice”). Conclusions Section 152 TULRCA claim

[75]Our conclusions on this issue obviously have substantial overlap with one element of the ordinary unfair dismissal claim. For both claims it is necessary to examine what the reason for dismissal was. For this claim to succeed we must conclude that the reason, or principal reason, for dismissal related either to membership of an independent trade union or activities of an independent trade union at an appropriate time.

[76]The List of Issues, which we allowed the claimant to rely on as evidence in his case, refer at paragraph 1b) to an overheard conversation the claimant says was about him, which concerned some sort of unlawful activity about wages and tax. It also refers at paragraph 3a) to the claimant’s assertion that he communicated with his trade union who communicated with the building manager, to the annoyance of the latter.

[77]The claimant did not expand upon this in either statement form, orally at the hearing or by putting a case to the respondent’s witnesses. It is right to say paragraph 1b) and 3a) of the List of Issues represent the high watermark of the claimant’s case under section 152 TULRCA.

[78]It is right to say that the claimant, who was represented by a trade union representative and a Regional Officer in the workplace disciplinary proceedings, did not assert anything whatsoever about trade union membership or trade union activities during the course of the disciplinary or appeal process. Sometimes it is the case that employees are circumspect about making strong allegations against the employer when involved in internal disciplinary processes, but then do not hold back when they come to the tribunal. This approach is, in many ways, understandable when workers do not want to jeopardise their working relationship. The situation here is different. The claimant’s whole case in the internal process was that his employers had set him up, told lies about him and fabricated evidence. It is therefore difficult to understand why, if the claimant felt he was being disciplined, and subsequently dismissed, for trade union membership and /or activities, that he or his representatives did not mention it. The claimant could point to no post-employment revelation or disclosure which caused him to raise the allegation only at a later stage.

[79]On the other hand, the respondent’s dismissing officer and appeal officer heard recordings of specific and straightforward instructions being Case No: 2202637/2020 10.5 Reserved judgment with reasons – rule 62 March 2017 given to the claimant to deal with wet electrical installations. They saw photographs of electrical boards and switches clearly wet with visible water. They heard the claimant’s explanation that he had not been given any instructions, that the radio comms were manipulated, that photographs had been taken of the wrong room or at a different point in time, and that the disciplinary process against him was engineered by liars who were setting him up for dismissal. We did not hear from Mr Peakall, who no longer works for the respondent, but we saw minutes of the hearing he chaired, his dismissal letter and we heard from Ms Buckingham who attended the disciplinary hearing. We had no difficulty accepting that the reasoning set out in his dismissal letter accurately represented the evidence that he would have given.

[80]The explanation which overwhelmingly best fits the available facts is that the respondent dismissed the claimant because it believed on the evidence that he had committed an act of gross misconduct by failing to carry out instructions given by a supervisor to make safe an electrical installation, and by switching on an electrical board damaged by water when it was unsafe to do so.

[81]We conclude on the evidence that the dismissal had nothing whatsoever to do with the claimant’s trade union membership or any trade union activities. This claim is not well founded, and we dismiss it. Ordinary unfair dismissal

[82]We proceeded to consider this claim on the basis that the claimant had two years qualifying service.

[83]Again, we consider what was the reason for dismissal. As we have concluded in respect of the section 152 TULRCA claim, we find that the reason for dismissal related to conduct, or in the alternative some other substantial reason, namely the breakdown in trust and confidence between employer and employee.

[84]Both of these reasons are potentially fair under section 98(2) ERA.

[85]We turned then to fairness under section 98(4) and consider whether the respondent acted reasonably in all the circumstances in treating the reason given is sufficient reason for dismissal.

[86]We considered first whether respondent had a genuine belief in the claimant’s misconduct, and whether such belief was based on reasonable grounds. These are two elements of the Burchell test, but it is convenient to take them together.

[87]As set out above, the dismissing and appeal officers both had the benefit of audio recordings which allowed them to hear the instructions the claimant’s supervisor gave to him. They had the benefit of photographic evidence of what was asserted to be the venue where the misconduct took place and they had an investigation report that included written material and statements from the respondent’s client, the claimant’s supervisor and his shift leader. All of these had either been involved or overheard the radio comms. Mr Arnold, the supervisor, and additionally taken the photographs. A cogent case was made out by this evidence that the claimant had not Case No: 2202637/2020 10.5 Reserved judgment with reasons – rule 62 March 2017 followed his supervisor’s instruction and had switched on soaking wet electrical equipment.

[88]Against that, the claimant put forward the case that he was set up by liars who fabricated audio and photographic evidence against him. His case was built on assertion alone, without the benefit of any supporting evidence whatsoever.

[89]Faced with these competing narratives, the tribunal considers that there were reasonable grounds on which the employer could reasonably conclude that the claimant was guilty of the misconduct alleged against him. There is nothing put before us to suggest that their belief was not genuinely held. In many ways, the more reasonable the grounds are to entertain the belief, the easier it is to accept that the belief is genuine.

[90]The tribunal turned to the question of a fair investigation following a fair procedure. Again, these are two elements of the Burchell test, which it is convenient to take together.

[91]The tribunal had regard to the ACAS Code of Practice on Disciplinary and Grievance Procedures, which set out key principles for handling disciplinary issues in the workplace.

[92]The Code recognises by its use of language (“in some cases”, “where practicable”, “it would normally be appropriate” “wherever possible”) that it is not setting out rigid tramlines for how every disciplinary case should be run.

[93]The first step is for the employer to establish the facts of the case, if necessary, by having someone not involved in decision-making investigate the case. The second stage is to give the employee sufficient notice of the disciplinary issue that he or she is facing and its potential consequences. Any written evidence relied on should be provided at this stage. Next, a meeting to discuss the problem should be held without unreasonable delay, and the employee should be given the opportunity to be accompanied should they wish. After the meeting it is for the employer to decide on appropriate action and then to provide an opportunity to appeal to an impartial person not previously involved with the case.

[94]We have to assess whether the investigation fell within the bounds of reasonable responses open to the reasonable employer. We are not to substitute the steps we might have taken as an investigating employer. In all the circumstances, we conclude that the disciplinary procedure adopted by the respondent fell well within the band of reasonable responses open to a reasonable employer.

[95]Mr Shore was tasked with investigating the allegations. He took statements from relevant witnesses (or in the case of Mr Warrington, used his email). He met the claimant and conducted an investigation meeting at which evidence was put to him, and he himself was given the opportunity to put his version of events forward. A disciplinary meeting was held before Mr Peakall, who was independent of Mr Shore’s investigation. In advance of this, the misconduct allegations were clearly spelled out in an invitation letter, written and photographic evidence was provided, and the claimant was told that recordings of radio comms would be played. At the disciplinary meeting the allegations were put to the claimant, and he was given the opportunity to Case No: 2202637/2020 10.5 Reserved judgment with reasons – rule 62 March 2017 challenge the evidence and put forward his own account. The potential consequences of the allegations being proven was made clear to the claimant. He was accompanied by a trade union representative who was permitted to address the hearing. Mr Peakall found the allegation proven and dismissed the claimant for gross misconduct. The claimant was given a right of appeal which he exercised.

[96]For the most part, this whole process took place within a reasonable timescale. The disciplinary decision letter was unaccountably delayed, but assessing the matter in the round, we find that this did not cause unfairness or injustice.

[97]Mr Douglas gave his view to us that the allegation “Failure to carry out instructions as given by supervisor on making a safe Distribution Board and not following Lock Out Tag Out (LOTO) on 10 December 2019” was not worded as well as it could have been. He told us that the distribution board in the second floor room was not amenable to locking, but that the appropriate way of making the installation safe was to do as Mr Arnold had done by locking and tagging the feed in the basement. We agree that the charge could have been better worded, but, again, in the round we do not find any unfairness or injustice. The respondent reasonably took the view that the claimant, although he had switched off the electrical board, had left the scene. He had made no attempt to ensure that no electricity could flow to the board by locking it out at its feed in the basement, or in the alternative asked for advice or assistance on making the board safe. Anyone subsequently could have switched the board on at considerable risk to life and limb.

[98]We conclude, that despite the delay the claimant experienced in receiving the dismissal letter, and the imperfect wording of the first allegation, that the investigation and the procedure as a whole were within the band of reasonable responses of a reasonable employer.

[99]We turn finally to the issue of whether the dismissal was in the range of reasonable responses open to the employer. We have regard to the fact that Mr Arnold, had instructed the claimant to dry out the electrical board and given him a lock to lock out and tag out the system (i.e. isolate it so it could not be switched on). We note that failure to follow instructions is an example of gross misconduct as is failure to follow the respondent’s policy, operating procedures and rules.

[100]We also have regard to the fact that the claimant is an experienced tradesman. However, the danger of switching on a soaking wet electrical installation would be apparent to anyone. Mr Peakall found that the claimant’s actions were “extremely irresponsible and it could have caused serious harm to yourself as well as anyone else working on the other ends of the board”. In his evidence to the tribunal, Mr Douglas (who himself has an electrical inspection certificate) said the claimant’s actions on the day in question “risked loss of life” and that he “had put his own and others’ lives at risk”. In Mr Douglas’s view, it really was that serious.

[101]The way the claimant approached the disciplinary (by accusing management of falsifying evidence and of lying) did not leave any scope for examining extenuating circumstances or mitigation. The claimant did not change his approach at the tribunal. Case No: 2202637/2020 10.5 Reserved judgment with reasons – rule 62 March 2017

[102]We remind ourselves, again, that we are not to substitute our own opinion for that of the employer. We consider that the respondent reasonably believed the claimant had been responsible for a life-threatening act in turning on a wet electrical board. This was compounded by his leaving the scene and failing to ensure that the installation was properly isolated by locking it out and tagging it in the basement. We consider that the respondent’s decision to treat this as sufficient reason to dismiss summarily falls well within the range of reasonable responses open to an employer in all the circumstances.

[103]Accordingly, we find that the respondent did not unfairly dismiss the claimant, and his claim is not upheld and is dismissed.

[104]In the light of our findings we do not need to make conclusions in respect of the other issues. The TUPE question is now academic, and the question of remedy does not arise. Employment Judge Heath 13 April 2022____________________________ Date RESERVED JUDGMENT & REASONS SENT TO THE PARTIES ON 13/04/2022..... FOR EMPLOYMENT TRIBUNALS Case No: 2202637/2020 10.5 Reserved judgment with reasons – rule 62 March 2017 IN THE LONDON CENTRAL EMPLOYMENT TRIBUNAL CASE NO. 2202637/2020 BETWEEN Dimo Uzunov Claimant and ABM Technical Solutions Limited Respondent DRAFT LIST OF ISSUES

[1]Was the Claimant dismissed because of Trade Union membership and activities contrary s152 TULRCA 1992 (“the TU claim”) which states (inter alia)?a. “(1) For purposes of [Part X of the Employment Rights Act 1996] (unfair dismissal) the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee—

(a) was, or proposed to become, a member of an independent trade union, …

(b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time, …

b. The Claimant says in his ET1: “my managers were informed that I am registered with Unite the Union and they looking for was to eliminate me until one day on 11.12. 2019 I was suspended from my position with lies and fraud. Two three days before I was suspended I attended on their conversation at our Building office between one lady from Engineering Management Office and my Technical Manager Peter Shore and my supervisor Barrie Arnold and the shift leader Marthin ............She told them "Guys we must to start paying you right because you see what he do". It was about me so I comunicate with Unite the Union. It was a matter of paying them more money but hiding the Tax, and in order not to change their wages they decided to eleminate me [sic].”

c. The Claimant further stated in an email of 10 December 2020 to the Tribunal in support of his claim: “I was cast out as the last criminal because I was registered with Unite the Union and I corresponded with them about my situation in the Case No: 2202637/2020 10.5 Reserved judgment with reasons – rule 62 March 2017 company ABM Technical Solutions. My managers hear about it and decided to fire me because I hindered them in the tricks they did.”

[2]Was the Claimant dismissed because of his membership of his trade union?

[3]What were the activities which the Claimant undertook?a. The Claimant asserts he communicated with his trade union who communicated with the building manager and that this occurred regularly and the building manager was annoyed.

b. Do the activities constitute trade union activities?

c. Was the Claimant dismissed because of these activities?

[4]If the Claimant was not dismissed in respect of the TU Claim, did he have more than two years continuous service at the date of dismissal in order to claim ‘ordinary’ unfair dismissal?a. The Claimant asserts his employment was continuous with his former service with George Birchall Service Limited (“GBS”) pursuant to the Transfer of Undertakings (Protection of Employment) Regulations TUPE 2006.

b. Was there a relevant transfer under TUPE between GBS and the Respondent? If so, what sort of transfer was this? The Claimant does not specify this.

c. Assuming this is most likely to be a service provision change (“SPC”), what type of SPC was this?

d. If this was an SPC, was the Claimant part of an organised grouping of employees whose principal purpose was carrying out activities. What were the activities and how was the Claimant organized?

e. Was the Claimant assigned to any such group?

f. Did the Claimant in fact transfer under TUPE?

g. Did the Claimant object to transfer under TUPE? Case No: 2202637/2020 10.5 Reserved judgment with reasons – rule 62 March 2017

h. Does Regulation 8(7) TUPE apply to the transfer so as to limit the effects of TUPE in the Claimant’s case.

[5]If the Claimant had sufficient qualifying service as a result of a relevant transfer under TUPE transfer, was there a potentially fair reason in section 98(1) and (2) ERA 1996 to dismiss? a. The Respondent says this was conduct or in the alternative SOSR. Was this capable of justifying the dismissal?

[7]Has the Respondent proved that this was in fact the reason for dismissal? The Respondent says that the Claimant was dismissed for a serious breach of conduct, inter alia:a. Failed to carry out instructions as given by supervisor on making a safe Distribution Board and not following Lock Out Tag Out (LOTO) on 10 December 2019.

b. Switched the board on when there was significant water damage on 10 December 2019 which was a risk to the Claimant and others.

[8]If not, was there any other reason capable of justifying the dismissal within section 98?

[9]Did the Respondent act reasonably in all the circumstances in treating that reason as sufficient section 98(4) ERA 1996.a. “depends on whether in the circumstances (including the size and administrative resources of the employer's 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.'' This is a neutral burden.

[11]The Tribunal must not substitute its view. The Tribunal’s role is “to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair'.' (Iceland Frozen Foods v Jones

[1982] IRLR 439

)

[12]The Claimant did not initially provide any information as to why he says his dismissal Case No: 2202637/2020 10.5 Reserved judgment with reasons – rule 62 March 2017 was unfair other than as set out above in connection with the TU Claim. At the Open Preliminary Hearing on 22 October 2021 the Claimant stated (as recounted by EJ Brown in her Judgment) the following (“the Unfair Dismissal Factors”):a. The decision to dismiss was predetermined – the Respondent had already decided to dismiss the Claimant and used the electricity allegations as a pretext for doing so;

b. The evidence on which the Respondent relied in dismissing the claimant was fabricated or manipulated: the audiotapes were edited and water was sprayed onto the relevant area before photographs were taken;

c. The Respondent did not have reasonable evidence on which to dismiss the Claimant because the photographs of the relevant area on which it relied were of the wrong place; the Claimant was working on the second floor but the photographs were of the fifth floor;

d. The Respondent had not provided the claimant with any training in 5 years the Respondent failed to send the Claimant on an inspection and testing course; and

e. The Respondent did not provide the claimant with tools

f. The Claimant had only one day’s notice of the investigatory meeting. Was the dismissal fair?

[14]If not, what compensation should be awarded: Basic Award a. is there conduct of the employee before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to do so (ERA 1996 s 122(2)).

[15]If not, what compensation should be awarded: Compensatory Awarda. “…the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer”.(section 123(1) ERA 1996) Case No: 2202637/2020 10.5 Reserved judgment with reasons – rule 62 March 2017

b. “In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland ” (section 123(4) ERA 1996) “Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding” (section 123(6) ERA 1996). Specific issues on compensation: a) The award must be what is just and equitable in all the circumstances (W Devis & Sons Ltd v Atkins

[1977] IRLR 314

[1977] ICR 662

) b. Should there be a reduction for Polkey? Would the position have been any different if the Unfair Dismissal Factors had not occurred. c) Has the Claimant contributed to his dismissal? The Respondent says the Claimant wholly to blame for his dismissal. i. has there been conduct which was culpable or blameworthy in some way? ii. if so, did it contribute to the dismissal? iii. If so to what extent?, iv. in deciding whether to reduce compensation it is only the employee's conduct which can be taken into account; the conduct of the employer, and the treatment of other employees, is irrelevant (Parker Foundry Ltd v Slack

[1992] IRLR 11

) d. Has the Claimant failed to mitigate his loss? If the Claimant has failed to mitigate, to what extent? Case No: 2202637/2020 11.6C Judgment – Reconsideration refused – claimant - rule 72 EMPLOYMENT TRIBUNALS Claimant: Mr D Uzunov Respondent: ABM Technical Solutions Limited

[16]Mr O’Neill said these particulars were never provided, but that the claimant sent him another 33 different emails. He said EJ Brown similarly urged the claimant to seek legal advice. He said she also had to ask the claimant to sit outside the hearing room at one point because his behaviour was so bad.

[17]Mr O’Neill referred to paragraphs 53(h), 60, 61(f), 77, 78 of our liability decision as demonstrating that we had decided the specific allegations relating to the section 152 TURLCA claim which were subject to a deposit Case No: 2202637/2020 10.7 Judgment with reasons – rule 62 March 2017 order against the claimant. He pointed to paragraphs 66, 87-89, 100 and 101 of our liability decision as showing that the specific allegations in the ordinary unfair dismissal claim which were subject to the deposit order had been decided against the claimant.

[18]Mr O’Neill pointed to paragraphs 6 to 9 of our liability decision as examples of how the claimant had conducted proceedings unreasonably in the way he had approached disclosure and the production of evidence.

[19]Mr O’Neill drew attention to paragraph 4 of the claimant’s email of 27 October 2022 in which the claimant, effectively, accused EJ Brown of conducting the hearing in an improper and biased way. He also observed that the claimant’s email of 26 April 2022 (page 3 claimant’s bundle) contained similar allegations of bias, impropriety and corruption against this tribunal.

[20]Mr O’Neill took the tribunal through some correspondence between himself and the claimant and the tribunal, which included:a. On 16 July 2021 Mr O’Neill asked for specific further information;

b. On 6 September 2021 Mr O’Neill wrote to the claimant setting out his failure to respond to various letters, and notifying him that the respondent would apply to strike out his claim because of various matters, including the claimant’s behaviour. He set a deadline for the provision of the further information. The claimant did not comply with this.

c. On 20 October 2021 Mr O’Neill wrote to the tribunal highlighting the claimant had failed to produce particulars ordered by EJ Elliott;

d. An email of 8 November 2021 from Mr O’Neill highlighting the claimant not having told the truth about receiving a bundle, and his making accusations about other people’s conduct;

e. An email from Mr O’Neill to the claimant on 7 February 2022, in which he reiterated the tribunal’s advice to the claimant to seek legal advice.

f. Correspondence on 10 February 2022 showing the claimant rejecting an offer of £750 in full and final settlement of his claims. Correspondence on 4 March 2022 showing the claimant had rejected an offer of £2000.

g. A letter from Mr O’Neill to the claimant on 11 March 2022 setting out the deposit orders, setting out efforts to seek the claimant’s cooperation in preparing the bundle, highlighting his unwillingness to set out his claim (which Mr O’Neill suggested was because the claim was fundamentally flawed), setting out an intention to apply the costs which then stood at £6560 plus VAT, but which were likely to double if the matter went to trial. Again, he was urged to seek legal advice. Mr O’Neill drew attention to the rejected offers for Case No: 2202637/2020 10.7 Judgment with reasons – rule 62 March 2017 settlement of £750 and £2000. He said these offers were made to protect the respondent’s position in a subsequent cost application.

h. On 16 March 2022 Mr O’Neill wrote to the claimant again urging him to seek legal advice, confirming the current costs position of £8720 plus VAT (which was likely to be closer to £15,000 plus VAT at the end of the final hearing) and confirming the respondent’s intention to seek costs if his claim is unsuccessful.

i. Mr O’Neill emailed the claimant on 26 October 2022 encouraging him to attend the costs hearing with information about his financial position, including wage slips, savings and outgoings in property ownership information.

[21]The claimant’s response to the application consisted, almost entirely, of his complaints about how the respondent had treated him whilst employed by them. He also complained about how his complaints to the tribunal was not processed in a timely manner. He considered that he had cooperated with the tribunal direction to provide particulars by sending 20 emails to Mr O’Neill, and noted that Mr O’Neill complained of being bombarded with information.

[22]As regards rejecting offers of settlement, the claimant said that he had spoken to his trade union representative, Mr O’Donnell, who told him that the amount was not enough. He said that his trade union would not represent him at the tribunal hearing because of COVID.

[23]The claimant said he had not produced a witness statement for the final hearing, because he had spoken to a person at the employment tribunal who told him that if he did not have a witness, he did not need a witness statement.

[24]In response to being asked why he had pursued his claim after being ordered to pay a deposit, he appeared to suggest that at the hearing in front of EJ Brown on 21 October 2021, EJ Brown had asked questions which suggested that she had previous dealings with Mr O’Neill and that she knew something about a previous case. He also alleged that EJ Brown had come to the door of the tribunal room and had a conversation with Mr O’Neill. The claimant’s evidence on means

[25]The claimant gave sworn evidence on his means. He said that he had not worked for eight months following his dismissal as COVID had meant that offices stood empty. He said he made 700 applications for work and registered with 50 to 60 employment agencies. In this regard, as with all other matters concerning means, the claimant did not provide any documentation.

[26]He said he got a job on 17 October 2020 as an electrician through an agency, earning a similar amount to what he had earned with the Case No: 2202637/2020 10.7 Judgment with reasons – rule 62 March 2017 respondent (£2054 pcm net according to his ET1). He said he was unemployed at the moment, and had last worked on 20 October 2022, again earning a similar amount. He had been with this particular employer for three months until they sacked him for complaining about not being paid properly for overtime.

[27]The claimant said he paid rent of £1350 per month, and that his outgoings, including rent, were £1800 per month. He said that his daughter and family were living in a different place in London. He does not own any property in the UK or overseas. He has no car.

[28]The claimant said that he had registered for jobseekers allowance, but was not applying for that now as he was looking for jobs. He said he has received a P45 in the past, but not for the last employment.

The law

[29]Rule 75 ET Rules provides: (1) A costs order is an order that a party ('the paying party') make a payment to— (a) another party ('the receiving party') in respect of the costs that the receiving party has incurred while legally represented or while represented by a lay representative;

[30]The power to make a costs order is in Rule 76 which provides: (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; (b) any claim or response had no reasonable prospect of success;

[31]Rule 84 ET Rules provides: “In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party's (or, where a wasted costs order is made, the representative's) ability to pay”.

[32]Rule 39 ET Rules deals with deposit orders, and includes: (5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order— Case No: 2202637/2020 10.7 Judgment with reasons – rule 62 March 2017

(a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and

(b) the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded.

[33]Costs orders are the exception rather than the rule in employment tribunal proceedings, but that does not mean that the facts of the case must be exceptional (Power v Panasonic (UK) Ltd

UKEAT/0439/04

[34]Such awards can be made against unrepresented litigants, including where there is no deposit order in place all costs warning (Vaughan v London Borough of Lewisham

UKEAT/0533/120

[35]In terms of abusive, disruptive or unreasonable conduct, “unreasonableness” bears its ordinary meaning and should not be taken to be equivalent of “vexatious” (National Oilwell Varco UK Ltd v Van de Ruit

UKEAT/0006/14

[36]Guidance has been given by the Court of Appeal in Barnsley Metropolitan Borough Council v Yerrakalva

[2012] IRLR 78

on the approach to assessing unreasonable conduct: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had”.

[37]The tribunal does not need to identify a direct causal link between the unreasonable conduct and the costs claimed (MacPherson v BNP Paribas (London Branch) (No 1)

[2004] ICR 1398

[38]Rule 39(5) ET Rules provides a shortcut to finding unreasonable conduct for the purpose of considering the discretion to award costs under Rule 76, but the discretion as to whether to award costs remains to be exercised by the tribunal taking account of all relevant circumstances in determining whether it is appropriate and proportionate to make an order, and if so, in what amount (Oni v UNISON

UKEAT/0370/14

Conclusions

[39]There are three stages in determining whether or not to award costs under Rule 76 ET Rules; first, whether the party has reached the threshold of establishing that a party had acted vexatiously, abusively or disruptively or that a claim had no reasonable prospects of success. Second, if the threshold has been reached, the tribunal will go on to consider whether it Case No: 2202637/2020 10.7 Judgment with reasons – rule 62 March 2017 is appropriate to make an order for costs. Finally, if it is appropriate to make an order for costs tribunal will go on to consider the amount. Threshold

[40]As set out above, if the tribunal has made a deposit order, then where a tribunal subsequently decides that allegation or argument against that party then that party will be treated as having acted unreasonably unless the contrary is shown.

[41]We accept Mr O’Neill’s submissions, set out at paragraph 17 above, that our findings in the paragraphs referred to in our liability decision, exactly correspond with the deposit orders made by EJ Brown.

[42]We therefore consider whether the claimant has persuaded us to the contrary. He has not. His submissions were, more or less entirely, geared towards seeking to go behind our liability decision, rather than addressing the issues at play in the cost application. He has advanced nothing that would persuade us that he should not be treated as having acted unreasonably in continuing to pursue the claims after the deposit orders were made. Accordingly, we find that the threshold for making a costs order has been made out. The claimant has acted unreasonably in pursuing the specific allegations or arguments subject to the deposit orders.

[43]In deciding the above, we have not considered it appropriate to decide whether the claimant had, aside from pursuing the claim after the deposit orders had been made, conducted the case unreasonablyor pursued a claim which had no reasonable prospects of success. Unless there are particular features of the case which might need to be considered at stages two and three of the approach to cost outlined above, an applicant for costs need only get over the threshold once. Appropriateness of a costs order

[44]We have taken into account a number of factors in deciding that it is appropriate and proportionate to make an order for costs in this case.

[45]The claimant was urged on numerous occasions, by EJ Elliott, by EJ Brown and by Mr O’Neill to seek legal advice on his claim. It appears he did not heed this advice. Ms might have been particularly useful to him after the deposit orders had been made and he was told in very clear terms that his claims stood little prospect of success.

[46]It appears, in fact from document J which the claimant produced after lunch at the costs hearing, that even before this his trade union had been telling him how weak his case was. In an email in response to the claimant’s email of 25 April 2020, Mr O’Donnell, the Unite Regional Officer, writes “You can continue but I’m afraid Unite cannot support you in your claim because as you have under 2 years service any claim for unfair dismissal would have no prospects of success at the tribunal”. As Mr Case No: 2202637/2020 10.7 Judgment with reasons – rule 62 March 2017 O’Neill observed, it is only after this point that the claimant sought to bring discrimination claims (which were struck out) and the section 152 TURLCA claim, which could get round the lack of service issue. But the real point is that even the claimant’s own trade union representative had been telling him that his claim would not succeed.

[47]The claimant was the recipient of a number of costs warning by the respondent’s solicitor, which he ignored.

[48]The claimant also refused two offers of settlement, which in the context of his bringing claims which stood little reasonable prospects of success, were more than reasonable.

[49]The effect of all of this was that the claimant pursued his claims after 22 October 2021, when the reasonable approach would have been to have withdrawn his claims. This put the respondent to the expense of having to continue to defend the proceedings.

[50]The claimant also conducted proceedings in an unreasonable manner in a number of respects. At paragraphs 6 to 9 in our liability decision we have set out what we described as “difficulties in case preparation”. This was an understatement, as the claimant was in breach of case management orders, and behaved in a thoroughly unreasonable manner. Similarly, at the costs hearing the claimant did not produce any documentary evidence of means, despite this having been sensibly suggested by Mr O’Neill. He also produced documents late, with no copies for the respondent or the tribunal, and which were unpaginated.

[51]Tribunals are prepared to be more forgiving when litigants in person do not conduct litigation in the way that represented party would. But the claimant’s conduct has fallen far below what a tribunal could reasonably accept of a litigant. He has repeatedly failed to comply with orders to produce further particulars and a witness statement. He has been reminded of his obligations both by the tribunal and by Mr O’Neill. His late production of single unpaginated documents that the costs hearing led to time being wasted. His failure to comply with orders has hampered the orderly preparation of the case for hearing and resulted in unnecessary and costly correspondence.

[52]For all these reasons, we consider it appropriate and proportionate to make an order for costs. Amount of order

[53]While we are satisfied that the claimant was conducting his claim unreasonably prior to the making of the deposit orders on 22 October 2021 (by failing to produce particulars requested by the respondent and ordered by the tribunal, for example) this date is the starting point for our consideration of the appropriate amount. Case No: 2202637/2020 10.7 Judgment with reasons – rule 62 March 2017

[54]The claimant was a litigant in person and it is reasonable for him, perhaps, to ignore suggestions from the respondent solicitor that his case is weak. However, the deposit orders made it clear that the claims had little prospects of success. It was unreasonable for the claimant to continue with his claims after the deposit orders were made. The claims really should have stopped there.

[55]Our starting point was to look at the respondent’s costs schedule after the 22 October 2021.

[56]Rule 84 ET Rules provides that the tribunal “may” have regard to the claimant’s ability to pay. Mr O’Neill urges us not to have regard to it. However, we have had regard to it and assessed the evidence put before us by the claimant.

[57]He was earning £2000 net per month, with outgoings of around £1800 per month. We accept as evidence that there would have been a period following his dismissal where he would not have worked because of the effect of the pandemic on the construction and facilities industries.

[58]The claimant was invited to produce documentary evidence, and chose not to. He was evasive in his answers on means, and as Mr O’Neill points out it is surprising that, just as immediately before the hearing on 22 October 2021 where his means were relevant to the making of deposit orders, so here the claimant has apparently just lost another job. His evasiveness and his failure to produce any documentary evidence lead us to conclude that he has probably sought to minimise his means in his evidence to us.

[59]We find that the claimant is an experienced tradesman with an in-demand set of skills. He has good earning potential, and even on the basis of the evidence that he has chosen to put before us has disposable income of £200 per month.

[60]We looked at the costs schedule prepared by Mr O’Neill. His charge-out rate is £200 per hour. The schedule sets out costs of £14,000 for 70 hours work. This is from 21 June 2021 until 31 October 2022. Mr O’Neill said that he would charge for a further five hours, £1000, for the costs hearing. We consider this costs schedule reasonable and even restrained.

[61]We have deducted all of the costs on the schedule up to 22 October 2021, and added the £1000 costs claimed for today. This led to a figure of just over £12,000. We round this down to even £12,000. Standing back, and looking at this figure as a whole in the context of the unreasonable conduct by the claimant (largely in continuing to pursue his claim after being made subject to deposit orders) we consider it an appropriate and proportionate sum. Case No: 2202637/2020 10.7 Judgment with reasons – rule 62 March 2017