Laetitia Ponde Nkot v Greene King Retail Services Ltd: 2207170/2018
EMPLOYMENT TRIBUNALS
Case No 2207170/2018
Between
Laetitia Ponde NkotClaimantGreene King Retail Services LtdRespondent
Before
Employment Judge Mr J Tayler
Members
Mrs D OlulodeMs L MoretonIn person for claimantMr J Bryan (instructed by Counsel) for respondentDate 4 November 2019
JUDGMENT
[1]The claims fail and are dismissed.
REASONS
[1]By a Claim Form submitted to the Employment Tribunal on 20 December 2018 the Claimant brought complaints of unfair dismissal, sex discrimination and race discrimination.[2]The Clamant gave the following particulars of her complaint:[3]The matter was considered at a Preliminary Hearing for Case Management before Employment Judge Wade on 28 March 2019. The claim of unfair dismissal was dismissed on withdrawal as the Claimant accepted that she did not have qualifying service.
Issues
[4]The issues for determination were:4.1 Was the dismissal of the Claimant an act of direct race discrimination4.2 Was the Claimant subject to sexual harassment as alleged in the Claim Form
Evidence
[5]The Claimant gave evidence.[6]The Respondents called:6.1 Graeme Lancaster-Smith, General Manager6.2 Mariusz Krzyzanowski, Kitchen Manager[7]The witnesses who gave evidence before us did so from written witness statements. They were subject to cross-examination, questioning by the Tribunal and, where appropriate, re-examination.[8]We were provided with an agreed bundle of documents. References to page numbers in this judgement are to the page number in the agreed bundle of documents.
The Law
[9]Race and sex are protected characteristics for the purposes of the Equality Act 2010 (“EqA”).[10]Direct discrimination is defined by Section 13 EQA:[13]Direct discrimination(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. 11. Section 23 EQA provides that a comparison for the purposes of Section 13 must be such that there are no material differences between the circumstances in each case. In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 Lord Scott noted that this means, in most cases, the Tribunal should consider how the Claimant would have been treated if she had not had the protected characteristic. This is often referred to as relying upon a hypothetical comparator. 12. Harassment is precluded by Section 26 EqA: (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.(2) A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b). (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.” 13. The Courts have long been aware of the difficulties that face Claimants in bringing discrimination claims and of the importance of drawing inferences: King v The Great Britain-China Centre [1992] ICR 516. Statutory provision is now made by Section 136 EQA: 136 Burden of proof (1)This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. But subsection (2) does not apply if A shows that A did not contravene the provision.[14]Guidance on the reversal of the burden of proof was given in Igen v Wong [2005] IRLR 258. It has repeatedly been approved thereafter: see Madarassy v Nomura International Plc [2007] ICR 867. The guidance may be summarised in two stages:(a) the Claimant must established on the totality of the evidence, on the balance of probabilities, facts from which the Tribunal ‘could conclude in the absence of an adequate explanation’ that the Respondent had discriminated against her. This means that there must be a ‘prima facie case’ of discrimination including less favourable treatment than a comparator (actual or hypothetical) with circumstances materially the same as the Claimant’s, and facts from which the Tribunal could infer that this less favourable treatment was because of the protected characteristic;(b) if this is established, the Respondent must prove that the less favourable treatment was in no sense whatever on the grounds of race or gender.[15]To establish discrimination, the discriminatory reason for the conduct need not be the sole or even the principal reason for the discrimination; it is enough that it is a contributing cause in the sense of a significant influence: see Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 572 at 576.[16]There may be circumstances in which it is possible to make clear determinations as to the reason for treatment so that there is no need to rely on section 136 EqA: see Amnesty International v Ahmed [2009] ICR 1450 and Martin v Devonshires Solicitors [2011] ICR 352 as approved in Hewage v Grampian Health Board [2012] ICR 1054. However, if this approach is adopted it is important that the Tribunal does not fall into the error of looking only for the principal reason for the treatment but properly analyses whether discrimination was to any extent an effective cause of the reason for the treatment.[17]In considering what inferences can be drawn, tribunals must adopt a holistic approach, by stepping back and looking at all the facts in the round, and not focussing only on the detail of the various individual acts of discrimination. We must “see both the wood and the trees”: Fraser v University of Leicester UKEAT/0155/13 at paragraph 79.[18]If the Employment Tribunal finds as a fact that the detrimental treatment did not occur the claim will fail.
Findings of fact
[19]In Autumn 2018 the Respondent advertised online a position as a chef at the Silver Cross pub. The Claimant indicated interest and was contacted by the Kitchen Manager, Mr Krzyzanowski, and an arrangement was made for her to join the Respondent and undergo online training.[20]On 24 October 2018, the Claimant attended for an interview with Mr Krzyzanowski. He proposed to Mr Lancaster-Smith that she should be employed. The Claimant alleges that Mr Lancaster-Smith asked for a National Insurance Card. Mr Lancaster-Smith accepts that he asked for the Claimant’s National Insurance number but states the he did not require her to provide a card.[21]The Claimant was provided with a contract of employment that gave her start date as 26 October 2018.[22]On 29 October 2018, the Claimant attended for initial training. The Claimant brought her laptop computer. Mr Krzyzanowski sought to help her logon to the Respondent’s WiFi. The Claimant was adamant that she knew how to logon. It is common ground that Mr Krzyzanowski sat next to the Claimant on a bench while he tried to help her to logon. The Claimant suggests that he deliberately placed his hands close to her “bottom” and that this was an act of sexual harassment.[23]On 30 October 2018 the Claimant attended a trial day. She was wearing leggings. Mr Krzyzanowski told her that leggings were not safe because if hot liquid was poured on her legs she could be badly burned so should wear trousers. The Claimant alleges that while saying this Mr Krzyzanowski tried to grab her thighs. It is common ground that Mr Krzyzanowski provided her with trousers.[24]The Claimant undertook her first full day of work on 1 November 2018. Mr Krzyzanowski was not at work that day.[25]The Claimant worked on 2 November 2018. She argued with Mr Krzyzanowski about labelling of jars that she had opened. Mr Krzyzanowski stated that the Claimant was refusing to label jars with the date on which they were opened immediately after opening them. The Claimant argued that she should not have to go from one side of the kitchen to the other to get labels while she was preparing food. Mr Krzyzanowski also alleges that the Claimant had used the same spoon to scoop out both sour cream and guacamole which was contrary to food hygiene regulations as it could result in cross contamination. Mr Krzyzanowski complained that the Claimant was failing to plate dishes precisely as shown in photographs of the dishes. Mr Krzyzanowski states that when he raised these issues with the Claimant she would not listen to him and kept stating that she was a professional chef.[26]She alleges that at one point she was sitting in the restaurant on her break and that Mr Lancaster-Smith walked past her and said “no black here”.[27]Mr Lancaster-Smith states that he had to come into the kitchen repeatedly because a pudding order had not been completed. Mr Krzyzanowski said that the Claimant had been asked to prepare the order. She denied this and argued with Mr Krzyzanowski that she did not need to prepare the pudding. In the end Mr Krzyzanowski prepared the dish.[28]Mr Lancaster-Smith alleges that the Claimant was consistently arguing with Mr Krzyzanowski and that he advised Mr Krzyzanowski that the relationship seemed unworkable and that the Claimant’s probation should be terminated.[29]The Claimant was told by Mr Lancaster-Smith that her employment was to be terminated. Mr Lancaster-Smith states the following in his witness statement about the conduct of the Claimant after she was told that her employment was to be terminated:[30]The Claimant accepts that she took jars out of the fridges and photographed them but denies that she was angry or swore.[31]On 3 November 2018 the Claimant sent an email complaining about the termination of her employment:[32]The Claimant did not complain of sexual harassment or race discrimination. The Claimant stated that this was because she wished to obtain employment at another of the Respondent’s pubs.[33]After the Claimant had submitted the Claim Form Mr Lancaster-Smith sent a letter seeking to explain the reason for the termination of her employment:
Analysis
[34]The key to this case is deciding what factually occurred. We have taken account of all the evidence, in forming our view as to the credibility of the witnesses and determining, on balance of probability, what occurred. We have taken into account the fact that the Claimant’s first language is not English. She gave her evidence to the Tribunal through an interpreter. However, where there are significant inconsistencies in the Claimant’s evidence we were satisfied that this was not because of a misunderstanding of language, but were actually different accounts of the events.[35]We first considered the claim of race discrimination. The Claimant placed considerable emphasis on her contention that when she was interviewed Mr Lancaster-Smith had asked for her National Insurance card. It was not entirely clear why she thought that was of such significance. There is a possible inference that he was seeking to make it difficult for the Claimant to be employed and/or was excessively sceptical about her right to work because of her race. On balance, we conclude that Mr Lancaster-Smith simply asked for the Claimant’s National Insurance number as he was required to do. Had he any animus against the Claimant because of her race he could have decided not to employ her. He did the opposite.[36]The most significant factual allegation against Mr Lancaster-Smith is that he said “no black here”. We note that the Claimant did not allege this in her original email complaining about the termination of her employment. The Claimant contended that she did not do so because she was hoping to obtain work at another of the Respondent’s pubs. We consider that had Mr Lancaster-Smith made such an explicitly racist comment it is more likely than not that the Claimant would have raised it in her initial email of complaint, as it was such a significant event and would explain why he had decided to terminate her probation for a reason that was not her poor attitude that would be likely prevent her being given a job at another pub. We also note that there is a significant inconsistency between the way in which the Claimant explained the incident to us; stating that Mr Lancaster-Smith walked past her while she was sitting in the restaurant on her break and said “no black here” to no one in particular, while walking into the kitchen: and the way in which it is put in the Claim Form in which the Claimant alleged that the comment was made to Mr Krzyzanowski. The Claimant was asked about this inconsistency, but was unable to explain it. She said “I don’t know why I wrote he said to Head Chef, it is very odd, it is not what I would like to write”. We also consider that it is inherently implausible that Mr Lancaster-Smith would say this out loud to the person that he was proposing to discriminate against. Finally, had Mr Lancaster-Smith held such views he could simply have chosen not to employ the Claimant at the outset. On balance of probabilities we find that the comment was not made.[37]That finding is of significance because the alleged comment would have provided the most significant evidence that the decision to dismiss the Claimant was because of her race. We are entirely satisfied that the real reason for the dismissal of the Claimant was the fact that Mr Lancaster-Smith had observed that the Claimant was arguing with Mr Krzyzanowski and would not accept instruction from him. Even when Mr Krzyzanowski told the Claimant to prepare the pudding, she refused to do so. Mr Lancaster-Smith considered that this was unacceptable and so agreed with Mr Krzyzanowski that the Claimant’s employment should be terminated. We accept the evidence that Mr Krzyzanowski and Mr Lancaster-Smith gave about the Claimant’s poor attitude. They were having considerable difficulty in recruiting staff for the kitchen and had no reason to terminate the Claimant’s employment had she been more co-operative and prepared to take instruction from Mr Krzyzanowski.[38]We next deal with the allegations of sexual harassment. We consider that it is more likely than not that had these incidents occurred, the Claimant would have raised them in the email she sent complaining about the termination of her employment. Furthermore, we consider that there is a significant inconsistency between what the Claimant stated in her Claim Form where she said that “he don't cease to put his hands on me as soon as it was possible”, suggesting that Mr Krzyzanowski had touched her, and her evidence to us that on both occasions (when he sat next to her while she was seeking to log onto the Wi-Fi system during her training and when he suggested that she should not wear leggings) that he had wanted to touch her, but had not. We fully accept that harassment may occur without any physical contact. A person can invade personal space without actually touching. However, we consider that there is a significant issue as to the credibility of the Claimant’s evidence because of the different versions she has given of the events. On balance, we do not accept that these two alleged events of harassment occurred.[39]Accordingly, the claims fail and are dismissed.