Ms T Tisha v Sainsbury’s Supermarket Ltd: 2207871/2020
EMPLOYMENT TRIBUNALS
Case No 2207871/2020
Between
Ms T TishaClaimantSainsbury’s Supermarket LtdRespondent
Before
Employment Judge HodgsonMr N Bidnell-Edwards (instructed by counsel) for respondentDate 5 August 2021
REASONS
[1]On 5 January 2021, the claimant submitted her claim. The ACAS conciliation period ran from 9 November 2020 to 9 December 2020. It is - 1 - accepted the claims that are subject to a three month limitation period, an which are older than 10 August 2020, are out of time.[2]The claimant ticked the boxes alleging claims of race discrimination and maternity/pregnancy discrimination. In addition, there was a money claim which is understood to be for wages.[3]There was a lengthy narrative attached. However, that narrative was unclear and failed to identify any specifc claim adequately .[4]The matter came before EJ Norris on 19 April 2021. She listed the matter for a public preliminary hearing to consider three matters; whether time should be extended for any claims of direct race and/or pregnancy discrimination; whether all or any other claim should be struck out as having no reasonable prospect of success; thereafter, time permitting, the full merits hearing to determine the wages claim.[5]Her note indicates there was a discussion on the nature of the claims. The Claimant complains of the following: a) Race: direct discrimination (section 13 (1) Equality Act 2010 (EqA)) - that in 2017 the Respondent withdrew her work placement without consultation. The Claimant says that this was because she was an international student; b) Pregnancy: direct discrimination (section 18(2)(a) EqA) - that at the end of 2017, when the Claimant was pregnant, the Respondent failed for three months to supply her with a chair that she had requested; when a chair was provided in January 2018, the Claimant says it was wholly inadequate. c) Unlawful deductions (– that since July or August 2020, the Respondent has failed to pay her in full.[6]EJ Norris made a number of observations as follows:[1]The Claimant has worked for the Respondent since March 2014, having come to the UK from Bangladesh in 2002 to complete her further education. She told me that she was working at least initially under a Tier 4 visa that entitled her to work for 20 hours a week in term time. In 2017, she was required by her university to complete a work placement. She says that the Respondent withdrew that placement later in 2017, without consultation, because she is an international student. She confirmed that this is the only complaint of race discrimination on which she relies.[2]Also in 2017, the Claimant became pregnant and she says she asked for a chair to enable her to work on the checkouts. She says no - 2 - chair was provided for three months, and in January 2018, the chair that was provided was extremely dirty, broken and unsuitable, to the extent that (she says) she actually vomited when she saw it. The Claimant said that this failure to provide a (suitable) chair was “inhuman” and an act of pregnancy discrimination. She confirmed there were no acts of pregnancy or maternity discrimination thereafter. The Claimant went on maternity leave later in 2018. While she was on maternity leave, there was a restructure, and when she returned from her maternity leave in January 2019, she was required to work at the Paddington Station store; she has remained working there ever since.[3]The Claimant says that she is contracted to work ten hours a day (07.00 to 17.00), two days a week. She does not take her break during the day but at the end of her shift, and it is at this point that she leaves work. She alleges that the Respondent is thereby treating her as if she is leaving work early, when in fact this should be treated as her break and paid accordingly. (She told me she is contractually entitled to be paid for her breaks).[4]The Claimant entered Early Conciliation between 9 November and 9 December 2020 and submitted her claim to the Tribunal on 5 January 2021. On the face of it, therefore, she would be out of time to complain about any act done before 10 August 2020, which includes her complaints of discrimination in 2017 and/or 2018. The Respondent defends the claim (so far as it can be understood) in its entirety and sought Further and Better Particulars in the ET3, repeated in the draft case management agenda prepared by its representative prior to the PHCM.[5]The Claimant attended the PHCM and explained that she is being advised by a Mr Dey of Lexpert Solicitors LLP. He is not on the record with the Tribunal and has not made himself known to the Respondent as the Claimant’s representative. However, the Claimant said that she has been taking advice from him since February and that he would have attended the PHCM to represent her had he not been prevented from doing so by having food poisoning. It was therefore regrettable that Mr Dey had not assisted the Claimant prior to the PHCM in finalising a list of issues so that the matter could be progressed, or even in supplying answers to the request for particulars of the discrimination complaints that was set out in the Respondent’s ET3 and repeated in the agenda. The Claimant did however appear to have been given assistance by Mr Dey to the extent that she told me she wished to seek an extension of time under section 123 EqA for the complaints of race and pregnancy discrimination, which she acknowledged were out of time.[6]In order to make some progress, I therefore spent some time with the Claimant discussing how she puts these complaints, which are now confirmed in the summary above. The Claimant is clearly aggrieved at what she perceives as poor and potentially unlawful treatment in 2017 and early 2018, and she is unhappy with the Respondent’s requirement for her to move to Paddington Station in 2019. However, the legal and factual basis for the complaint of race discrimination in particular was still not clear to me, even after asking the Claimant over a period of some 50 minutes to help me understand it, at which point Mr Bidnell- Edwards intervened and submitted that I risked the creation of an unequal footing between the parties, contrary to the overriding objective, given that the Claimant was still unable to articulate her complaints. There was also no explanation for her delay in going to ACAS.[7]I explained to the Claimant the difference between a continuing act and an act with continuing consequences. Even if the Claimant was - 3 - asserting that the requirement to work at Paddington Station was an act of victimisation following her return from maternity leave (and she did not specifically say that it was, even after I pressed her repeatedly to confirm the last date of any act complained of), that would appear to have been an act with continuing consequences and the claim so far as the discrimination complaints are concerned would be out of time by many months, if not two years.[8]The Claimant told me that she was not a member of the union USDAW at the material time, though she is now, and that she has been in poor health following her Caesarean section; she has a young child and a disabled husband for whom she is the sole carer. However, if she wishes to rely on these or any other explanations for the delay, it seemed to me to be proportionate for her to do so as part of a PH, which Mr Bidnell-Edwards and the Claimant herself agreed was the appropriate way to proceed.[9]That PH, which was listed to the parties’ convenience, will therefore consider first the time point and whether to extend time for the race and pregnancy discrimination complaints. The Claimant must address this issue in the witness statement that she has been ordered to serve by no later than 4 pm on 21 May 2021. If the Employment Judge does allow the complaints to proceed notwithstanding that they were presented out of time, the Tribunal will go on to consider whether they stand any (reasonable) prospect of success, under the Rules of Procedure) and whether they should be struck out or a deposit (or more than one) ordered if the Claimant pursues those complaints. I made no order that the Claimant produce either medical evidence or evidence as to her means, but if she wishes the Tribunal to consider either of these at the PH (the latter in relation to any deposit that the Employment Judge might order), she should ensure that such evidence is sent to the Respondent in sufficient time for it to be inserted into the bundle, which must otherwise contain at least the pleadings and this summary, as well as the evidence in relation to the wages complaint on which either party intends to rely.[10]Having dealt with these preliminary points in relation to the discrimination aspect, the Employment Judge will consider making any further necessary case management orders and listing the case for a full merits Hearing in front of a Tribunal panel Employment Judge sitting with Members) if the case is to proceed in whole or in part. The Employment Judge will then convert the PH to a final Hearing in accordance with Rule 48 to address the complaint of unlawful deductions from wages only; this is said to be a continuing act and therefore does not require either an extension of time or a full panel to deal with it.[11]The parties are reminded that the services of ACAS, which are free to use, are available throughout the process. If the matter is resolved through ACAS or other means, the parties must notify the Tribunal at the earliest opportunity. 7. At the hearing, I was eventually able to download the bundle and relevant statements. I adjourned in order to consider the documents. The hearing commenced at 11 o'clock. Thereafter, I sought to clarify the claims identified. 8. The claimant was represented by consultants Mr Kamara. He confirmed he had been instructed by the solicitors, The claimant was also assisted by a paralegal from the solicitor’s firm. - 4 - 9. I expressed concerns as to whether the claimant, in fact, intended to bring other claims. I allowed a further adjournment so the claimant's instructions could be obtained. Mr Kamara confirms that the only claims pursued were those identified in the order EJ Norris. During the course of the hearing, I clarified those claims further. 10. The claim of race discrimination concerned the removal of secondment to the respondent from about 7 July 2017. The claimant was undertaking a business course with BPP. That secondment was terminated by email of 7 July 2017 by BPP. To the extent this is a claim brought against the respondent, it is said that Ms Lorraine Pearson, area HR manager, terminated the claimant's workplace. It was a six-month work placement. 11. The claimant already worked for Sainsbury for 20 hour; her normal employment continued. It was agreed that this was the only claim of direct race discrimination and the alleged detriment occurred on 7 July 2017.[12]There was a claim of pregnancy discrimination. It is common ground the claimant was pregnant at the material time. It is the claimant's case that in November 2017 she made a verbal request of Mr Ruhul Amin, her line manager, for a chair. It is alleged that the chair was not provided until the first week of January 2018, and that it was, in any event, wholly inadequate. It is said that first the delay and second the provision of the actual chair were acts of pregnancy discrimination. It is accepted that the date of the detriments was no later than 7 January 2018.[13]The only other claim was the alleged failure to pay wages. I was unable to determine if this claim is in time.[14]It was specifically agreed that there were no other claims. I noted that there were other references, including a reference to backlash because of previous complaints. The term whistleblowing was used. The term harassment was used. There was also reference to medical conditions.[15]It was difficult to understand what was intended, and it did not appear to me that there were clear words identifying specific claims and linking them to a cause of action such as unfair treatment, victimisation, harassment, or detrimental treatment for protected disclosure. The claimant indicated that she may wish to bring other claims, in particular, I identified discrimination associated with disability. However, no application was made either orally or in writing.[16]Any further claims would necessitate an application to amend.[17]Having clarified the claims before the tribunal, I considered it appropriate to first consider the question of time, as it was a jurisdictional point.[18]I noted that the wages claim of failure to pay wages had not been set out adequately in the claim form, any further document, or the claimant's witness statement. I confirmed it would be necessary for the claimant to - 5 - provide proper particulars. Given her failure to clarify the claim despite a number of attempts, I considered whether an unless order should be attached. It is impossible to know the claim the claimant envisages. It is not possible for the respondent to meet the claim. What is required is for the claimant to set out the details. If she fails to do so, there can be no possibility of a fair hearing. The claimant has had ample opportunity to clarify the claim. If she fails to do so in accordance with the order which I will do separately, it is appropriate that the claim for wages should be struck out. It is appropriate to attach an unless order to my order requiring particularisation, I will attend to this of this in my case management order.[19]I had regard to the bundle of documents. In particular I consider the claim form and EJ Norris's case management order. The claimant produced a witness statement. She was cross examined by respondent's counsel.[20]A witness statement had been ordered EJ Norris. The order stated, "The statement must deal with the reason why the complaints of discrimination were not submitted in time and with her evidence on the wages claim."[21]I considered the claimant's original statement, as updated and amended on 6 July 2021.[22]The statement gave much background information concerning the claimant's employment. She described what she considered to be unfair treatment extending over a long period. That narrative includes the history relevant to the two complaints.[23]The claimant also set out specific factors which appear to be advanced as explanations for the failure to present her claims in time.[24]The claimant referred to a number of grievances and stated she pursued grievances under the employer's policy when subject to discrimination and harassment. She stated, "I thought they are ongoing matters until and/or unless the employer is finished looking into the matter and provided outcome." This would suggest that the claimant was conscious of the potential to bring a claim, but chose not to do so whilst the grievances were ongoing.[25]She referred to her maternity leave from 18 February 2018, returning in January 2019. She stated she experienced a hostile environment even before returning to work. The statement does not explain how this contributed to any delay in bringing a claim.[26]The statement refers to a medical condition. She stated she had a Csection by epidural with side effects. The nature and duration of the side effects is not specified. She also refers to various problems including sciatica, back pain, and haemorrhoids. The statement falls short of explaining how that prevented her from bringing a claim, if at all. - 6 -[27]The statement refers to her husband's medical condition. He contracted polio as a child and I understand this has paralysed his right leg. She does not set out how this prevented the claimant from bringing a claim.[28]However, in oral evidence, the claimant alleged that she was her husband's sole carer. She accepted that her husband works for Sainsbury. She says that he has limited mobility. He uses a stair lift. His walking is limited. As for her personal care to him, this appears to be limited to assisting him to dress. The claimant undertakes all the cooking washing cleaning another domestic activities for her husband.[29]The statement states she is the sole carer for a husband and her newborn baby.[30]The statement refers to a housing eviction. It is alleged she was evicted from a house due to a licensing issue between the landlord and the council. The relevant date is not set out. The statement does not explain how this prevented her from presenting a claim.[31]She refers to her immigration status as a full-time student. She states that as an international student she experienced pressure in complying with the time constraints of a course.[32]The claimant states she was not a member of a trade union and was unable to obtain advice must trade union about legal proceedings.[33]She refers to her financial capability. She states that the tuition fees for her and husband educational were more than £75,000. She states, "Any additional costs would have been a means of huge pressure so would have been legal proceedings cost as they are quite expensive and difficult to manage for me and my family." There is no indication in this section if the claimant did not know that she could pursue legal proceedings.[34]The statement refers to mental and physical condition. She alleges that the discrimination and harassment contributed to mental and physical stress and depression. She states, "Having been advised that legal proceedings may take 6 to 12 months’ time and much mental and physical engagement over time also cause me much stress and depression and lost strength of legal proceedings." The claimant fails to say when she received advice, or the nature of legal proceedings she had in mind.[35]The statement refers to the pandemic and states the claimant and her family were depressed and worried.[36]The claim refers to the fact her father passed away more than a decade ago her mother continues to live in Bangladesh. She stated her ability to travel was constrained. But she does not set out how this prevented from bringing a claim. - 7 -[37]In oral evidence, the claimant alleged that she did not know of the right to bring any claim for direct race or pregnancy discrimination until she approached ACAS in November 2020. The respondent's counsel sought to ascertain when the claimant knew of the possibility to bringing a claim for race discrimination. I clarified to the claimant that what she was being asked was whether she knew that there was a potential claim of race discrimination, and if so, when she knew that. The claimant's answers were equivocal and at times evasive. The claimant did indicate, at one point, that she had difficulty understanding, and perhaps her answers were confused because of the language barrier. I clarified the questions for her and she confirmed she understood. I am satisfied that she did understand the questions being raised.[38]The claimant maintained that she knew nothing of the potential for bringing a claim of direct discrimination, whether because of race or pregnancy, at any point prior to contacting ACAS in November 2020. However, the claimant failed to explain what prompted her to contact ACAS, or when, or how, she became aware of that potential rights.[39]I consider carefully her statement. It is apparent that the statement makes reference to legal proceedings. There is nothing in her statement which would indicate that she had no knowledge of the potential to bring claims until November 2020. Her statement would suggest the opposite.[40]At paragraph 67 of her statement she specifically says that she had been advised that legal proceedings may take some 6 to 12 months. She also repeatedly refers to bringing grievances concerning discrimination. I reached the conclusion that the claimant gave misleading and evasive evidence. I do not accept that she only learned of the right to bring direct discrimination claims when approaching ACAS November 2020. On the balance of probability, I find that she knew that she could bring claims of direct discrimination at all material times
The law
[41]Section 123 Equality Act 2010 sets out the time limits for bringing a claim. (1) Subject to section 140A proceedings on a complaint within section 120 may not be brought after the end of-- (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. … (3) For the purposes of this section-- (a) conduct extending over a period is to be treated as done at the end of the period; - 8 - (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something-- (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.[42]It is possible to extend time for bringing discrimination claims. The test is whether the tribunal considers in all the circumstances of the case that it is just and equitable to extend time.[43]It is for the claimant to convince the tribunal that it is just and equitable to extend the time limit. The tribunal has wide discretion but there is no presumption that the tribunal should exercise its discretion to extend time (see Robertson v Bexley Community Centre TA Leisure Link 2003 IRLR 434 CA).[44]It is necessary to identify when the act complained of was done. Continuing acts are deemed done at the end of the act. Single acts are done on the date of the act. Specific consideration may need to be given to the timing of omissions. In any event, the relevant date must be identified.[45]The tribunal can take into account a wide range of factors when considering whether it is just and equitable to extend time.[46]The tribunal notes the case of Chohan v Derby Law Centre 2004 IRLR 685 in which it was held that the tribunal in exercising its discretion should have regard to the checklist under the Limitation Act 1980 as modified by the Employment Appeal Tribunal in British Coal Corporation V Keeble and others 1997 IRLR 336. A tribunal should consider the prejudice which each party would suffer as a result of the decision reached and should have regard to all the circumstances in the case particular: the reason for the delay; the length of the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued had cooperated with any request for information; the promptness with which the claimant acted once he or she knew of the facts giving rise to a cause of action; and the steps taken by the claimant to obtain appropriate advice once he or she knew of the possibility of taking action.[47]This list is not exhaustive and is for guidance. The list need not be adhered to slavishly. In exercising discretion the tribunal may consider whether the claimant was professionally advised and whether there was a genuine mistake based on erroneous advice or information. We should have regard to what prejudice if any would be caused by allowing a claim to proceed. - 9 -[48]Tribunal's may, if they consider it necessary in exercising discretion, also consider the merits of the application, but if the tribunal does so the party should be invited to make submissions.[49]There is no suggestion in this case of any continuing act. It is accepted that the allegation of race discrimination is approximately three years out of time. It's accepted the allegation pregnancy discrimination is to nearly half a year out of time.[50]Whilst the claimant indicated that she may wish to apply for amendment, there was no suggestion that any amendment would introduce any matters which could form any continuing course of conduct: since the material events, the claimant has moved to a new branch has different management.[51]It is for the claimant to establish her reason.[52]It is possible to identify three broad areas relied on. First, the claimant alleges that she was under pressure which limited the time that she could dedicate. Second, the claimant alleges she was concerned about cost. Third, the claimant alleges that she lacked the relevant knowledge of the causes of action.[53]I will consider each of these.[54]The delays involved are lengthy. I do not accept that the claimant was under such pressure that she could not have sought advice, established the potential claims, and lodged a claim form. Specific pressures, at specific times, may explain short delays. The pressures experience by the claimant do not explain the delays in this case.[55]It is unclear to me why the claimant alleges that she was concerned about cost. It would have been possible for the claimant to seek advice, and it would have been simple for her to ascertain that tribunal's are generally no cost forums.[56]I do not accept there is any significant language barrier. English may not be claimant's first language, but it is clear that she has academic ability, and she is a student. Any language barrier is not sufficient to prevent her from obtaining basic information. The claimant is intelligent, and it would be possible for her to seek advice. Indeed, her statement would indicate she did seek advice, albeit she has chosen to give no proper detail of that.[57]I considered the claimant's explanation that she lacked the relevant knowledge of the potential to bring claims of direct discrimination until she approached ACAS in November 2020. I have found her evidence on this to be misleading, and I do not accept it. I reject that evidence for the reasons I have given. - 10 -[58]The reasons given by the claimant for delay are therefore unconvincing. Taking her evidence as a whole, it is clear that part of the reason for delay is that she chose not bring a claim. I find the main reason why the claimant did not bring the claims is because that was the claimant's choice. I also find when she made that choice, she knew that she could bring claims.[59]The length of the delays are considerable as explained above.[60]It is unclear how far the evidence will be less cogent. The respondent does not seek to argue that it would be possible to defend this claim.[61]There is nothing to suggest any action of the respondent led to any delay.[62]There is nothing to suggest respondent's failure to cooperate.[63]The claimant has not explained what steps she took to obtain advice. To the extent that it is referred to in her statement, it is clear that she obtained some advice and then chose to present no claim. It is unclear what advice was given and when. However, it is clear the claimant could have obtained advice at any time, or undertaken research.[64]The claimant has done nothing to explain how she came to understand that she could approach ACAS, and it is clear that she has not given a full account of her actual knowledge or the research undertaken.[65]It is necessary to consider the balance of prejudice. However, the fact that the respondent could meet a claim is not conclusive when considering whether discretion should be exercised. The claimant should explain the reason for delay and the extension of time is discretionary.[66]Having regard to all the matters I have identified, I do not find that is just and equitable to extend time. Any prejudice to claimant is caused because of her own choice to delay. Moreover, I do not consider that she has given accurate or frank evidence. I have rejected parts of her evidence.[67]The fact that the respondent could deal with a claim does not mean that it should, or that it is just to extend time. The respondent will find it more difficult to meet these old claims now than if they had been brought at the time.[68]I find that both claim of discrimination are out of time. I refuse to extend time.[69]This leaves only the claim of unlawful deduction from wages.[70]The directions of EJ Norris envisage a full merits hearing of the wages claim before a judge sitting alone. Whether it is permissible to delineate the wages claim in that manner, I do not need to decide. If there is no - 11 - further claim added by way of amendment, it would now be appropriate for that wages claim to be dealt with by just sitting alone. In the circumstances I do not have to consider whether I would have had the power to decide that claim as a "preliminary issue" or as part of some split liability hearing, had I decided to extend time.
The facts
[71]The claimant’s case is that during this conversation Ms Popal said “Don’t treat me like EK (i.e. Mr Elkhalil). I am not EK. I reiterate that I am not EK, if you feel you can treat me or talk to me in the mannerisms that you did with EK, I will not follow it”. The claimant describes this as defamatory and false.[72]Ms Popal acknowledged that she did not refer to Mr Elkhalil by name during this conversation, but did, in response to the claimant’s raised voice and sarcastic tone, say that she did not know whether she was allowed to conduct herself like she did with other managers, but that she, Ms Popal, would not tolerate it.[73]We do not find that there is a vast amount of difference between the two accounts. We do not find that referring to Mr Elkhalil by name really makes any difference. We find that there was a conversation which became heated, in all likelihood on both sides, where Ms Popal indicated that however the claimant may have behaved with previous managers, she (Ms Popal) would not tolerate the way the claimant was behaving. We find nothing defamatory or offensive about this, even taking the claimant’s case at its highest.[74]We further find that Ms Popal raised the issues she did, and raised them in the heated manner we find that she did, because of her frustration with the claimant’s defiance of her repeated instructions. We do not find that the claimant’s or her husband’s disability, or the fact that she had presented a tribunal claim, motivated Ms Popal to say what she did in the way that she did.[75]This was the last interaction between Ms Popal and the claimant.[76]On 13 June 2021 the claimant emailed Ms Popal to say she could not work from 14 June 2021 and did not expect to return before 28 June 2021. She said she was experiencing a workplace-related stress and depression along with other ongoing medical conditions which have been exacerbated by Ms Popal’s inappropriate and unfair actions.[77]On the same day Ms Popal emailed senior management and HR about the claimant. Ms Popal set out the factual background and indicated that she would be withholding sick pay and would like a discussion about the reasoning for this. Ms Popal told us that she believed that the claimant’s absence may have been as a direct response to the issues that occurred on the meeting of 10 June 2021 rather than genuine sickness, and accordingly felt that withholding sick pay was appropriate.[78]To withdraw sick pay in such circumstances appears odd. However, we have reminded ourselves the claimant’s claims and the issues in the case, and note that there is no claim in respect of this. We further note that there was no evidence led and no cross examination about any withdrawal of sick pay, although it is referred to in the claimant’s schedule of loss. As it is not a claim before us and we heard no evidence about it we say no more about this.[79]On 3 July 2021 the claimant submitted a grievance. She alleged “disability discrimination in association” about the refusal to allow time off for her husband’s coded vaccination on 14 June 2021. She also alleged “obstruction on the ongoing fair trial at Employment Tribunal”, and this concerned refusal to allow time off on 17 and 20 May 2021, which she described as victimisation. She also raised “travel disruption on bank holiday and medically collapsed”, which related to not being allowed unpaid time off on 31 May 2021. She also complained about “working pattern – break time” which was concerning her 45 minute break which she said she was allowed to take at the end of each day. She also complained about “defamatory statement” about the words used by Ms Popal on 10 June 2021. Her final complaint was in relation to “hostile environment continuation” which was around Ms Popal’s management of her. She asked for the area manager to conduct the grievance meeting.[80]HR acknowledged the claimant’s grievance by email on 5 July 2021. On 26 July 2021 the claimant sent a chasing email to HR as she had heard nothing. HR responded that day apologising and saying the matter had been escalated for the attention of the relevant manager who would contact the claimant in due course.[81]On 5 August 2021 Mr Ahmet Kaan, Operations Manager, wrote to the claimant inviting her to a Fair Treatment (the name of the respondent’s grievance process) meeting on 24 August 2021 at a store of the claimant’s choice or by telephone or video link.[82]The meeting took place on 24 August 2021. The claimant was accompanied by her union representative and Mr Ahmet Kaan was supported by a notetaker. Mr Ahmet Kaan explained at the beginning of the meeting that he had been on holiday when he had been asked to pick up the grievance investigation, and he apologised for the delay. He explained the purpose of the meeting and gave the claimant the opportunity to give as much detail as she wanted. The claimant said that she did not want to expand on her statement which contained what she wanted to say. Mr Ahmet Kaan wanted to go through the allegations in turn, but the claimant wanted him simply to look at the written material. The representative indicated that the claimant felt exhausted by the process and wanted Mr Ahmet Kaan to look at the claimant’s grievance. The representative asked for a response by 7 September 2021, which Mr Ahmet Kaan agreed to.[83]Mr Ahmet Kaan did not respond within this timeframe, and the claimant chased him for a response on 2 October 2021. On 18 October 2021 Mr Ahmet Kaan replied to apologise for the late email, indicating he had almost concluded the grievance but did have a question for the claimant. He invited a further meeting to discuss one point of her grievance so that he could investigate this further. On 21 October 2021 the claimant responded that she had nothing further to add on this point and that he should speak to Ms Popal about this issue.[84]On 2 November 2021 Mr Ahmet Kaan interviewed Ms Popal who gave her account of the matters raised in the claimant’s grievance.[85]On 4 November 2021 Mr Ahmet Kaan sent the claimant grievance outcome letter in which he did not uphold much of her grievance. He partially upheld her complaint of “defamatory statement” “as there appears to have been a challenging conversation however I am not able to conclude if the exact comment was made as there are opposing versions of events”.[86]Mr Ahmet Kaan gave evidence that in addition to his own holiday, his store manager took leave shortly afterwards, that he was a new manager in a store, that he had a high workload and had difficulty coinciding diaries with Ms Popal, another busy manager. It was not put to Mr Ahmet Kaan in cross examination that his delay was motivated by the claimant protected act of putting in a discrimination grievance or a previous tribunal claim. The tribunal itself asked this question, and Mr Ahmet Kaan was clear that this was not why his investigation was delayed.[87]We find is a fact that the reason why the grievance proceeded more slowly than it should have done was because of holidays, diary clashes and a heavy workload. The law Unauthorised deductions from wages
The law
[88]Section 13 of the Employment Rights Act 1996 (“the ERA”) provides: - (1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction. […] (3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion. Equality Act 2010 (“EA”) claims[89]Section 39(2) EA provides as follows: - An employer (A) must not discriminate against an employee of A's (B)— (c) by dismissing B; (d) by subjecting B to any other detriment. Direct discrimination[90]In respect of direct discrimination, Section 13(1) of the EA provides as follows: A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[91]Section 23(1) of the EA deals with comparisons, and provides:- On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case.[92]The EAT in Chief Constable of West Yorkshire v Vento [2001] IRLR 124 made clear that using examples of individuals who were not true comparators was a proper way of constructing a hypothetical comparator.[93]The burden of proof provisions (which apply equally to harassment) are set out in section 136 EA:-(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.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.[94]When considering direct discrimination, the tribunal must examine the “reason why” the alleged discriminator acted as they did. This will involve a consideration of the mental processes, whether conscious or unconscious, of the individual concerned (Amnesty International v Ahmed [2009] IRLR 884). The protected characteristic need not be the only reason why the individual acted as they did, the question is whether it was an “effective cause” (O'Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School and anor [1996] IRLR 372).[95]Guidance on the application of the burden of proof provisions of the Sex Discrimination Act 1975 (which is applicable to the EA) were given by the Court of Appeal in Igen v Wong [2005] IRLR 258: ''(1) Pursuant to s 63A of the SDA 1975, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of s 41 or s 42 of the SDA 1975 is to be treated as having been committed against the claimant. These are referred to below as “such facts”. (2) If the claimant does not prove such facts he or she will fail. (3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that “he or she would not have fitted in”. (4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. (5) It is important to note the word “could” in SDA 1975 s 63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them. (6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts. (7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s 74(2)(b) of the SDA 1975 from an evasive or equivocal reply to a questionnaire or any other questions that fall within s 74(2) of the SDA 1975. (8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to s 56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice. (9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent. (10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act. (11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since “no discrimination whatsoever” is compatible with the Burden of Proof Directive. (12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question. (13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.''[96]Tribunals are cautioned against taking too mechanistic an approach to the burden of proof provisions, and that the tribunal’s focus should be on whether it can properly and fairly infer discrimination (Laing v Manchester City Council [2006] ICR 1519). The Supreme Court has observed that provisions “will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence, one way or the other” (Hewage v Grampion Health Board [2012] UKSC 37).[97]The Court of Appeal has emphasised that “The bare facts of a difference in treatment, without more, sufficient material from which the tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination” (Madarassy v Nomura International plc [2007] IRLR 246). “Something more” is needed for the burden to shift. Unreasonable behaviour without more is insufficient, though if it is unexplained then that might suffice (Bahl v Law Society [2003] IRLR 640). Harassment[98]Section 26(1) EA provides: - A person(a) (A) harasses another(b) (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.[99]Section 26(4) EA sets out factors which tribunals must take into account: - (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.[100]Section 212(1) EA provides that conduct amounting to harassment cannot also be direct discrimination.[101]The Court of Appeal in Richmond Pharmacology v Dhaliwal [2009] IRLR 336 stated:- “an employer should not be held liable merely because his conduct has had the effect of producing a proscribed consequence. It should be reasonable that that consequence has occurred. The claimant must have felt, or perceived, her dignity to have been violated or an adverse environment to have been created, but the tribunal is required to consider whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so….We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”[102]The Court of Appeal again emphasised that tribunals must not cheapen the significance of the words of section 26 Equality Act 2010 as “they are an important control to prevent trivial acts causing minor upsets being caught up by the concept of harassment” (Land Registry v Grant [2011] ICR 1390). Victimisation[103]Section 27 Equality Act deals with victimisation and provides: -(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.[104]A person suffers a detriment if a reasonable worker would or might take the view that they have been disadvantaged in the circumstances in which they had to work (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11. An unjustified sense of grievance is not sufficient (Barclays Bank plc v Kapur (No. 2) [1995] IRLR 87 and EHRC Employment Code, paragraphs 9.8 and 9.9). Conclusions Unauthorised deductions from wages
Conclusions
[105]As is apparent from our findings of fact, we have found that there was no agreement for the claimant to take a break at the end of each 10 hour shift. The time she took off from September 2021 onwards was unauthorised and unpaid. She had not worked her contractual hours on these days and there were no sums properly due in respect of the shortfalls. There was no deduction under section 13 ERA. Equality Act claims[106]We will deal with the claims in the order in which they appeared in the agreed list of issues, which is not strictly chronological. Most of the acts alleged are put further and in the alternative as claims of direct discrimination, harassment, and victimisation. Where that is the case, we will deal with all claims under the heading of each act. As will be apparent from our findings of fact above, we have already made findings in relation to the motivation of the relevant actors. We remind ourselves of the provisions of section 212(5) EA which mean that we cannot find that an act is both an act of direct discrimination and of harassment. Refused to grant the claimant’s leave request for 14 June 2021.[107]Our findings of fact are that the reason why Ms Popal declined the leave request for 14 June 2021 was because, on the information available to her on both Kronos and from talking to Romina, she had no management cover for the store. It was not motivated by disability (the claimant’s or her husband’s) or by a protected act.[108]The refusal was clearly unwanted, but it did not relate to disability in any way. Even if it had in some way related to it, it would not have been reasonable, in all the circumstances including the claimant’s perception, for the conduct to have the requisite harassing effect (to use shorthand for the effect set out in section 26(1)(b) EA) and there was no evidence that that was its purpose.[109]The claimant’s claims of direct discrimination, harassment and Refused to grant the claimant’s leave request for 6 May 2021 and 17-20 May[110]Again, we have found as a fact that the reason why Ms Popal declined the leave requests was because of legitimate staffing reasons. In respect of 6 May 2021, the request was raised orally, Ms Popal asked the claimant to progress requests on Kronos and the claimant did not do so for this date. This refusal had nothing to do with disability or a protected act.[111]In respect of 17 and 20 May 2021, we have found that the reason why these dates were not granted was because Ms Popal saw on the Kronos system that there was no management cover. She had granted days off the previous week (despite the requests not being put in in the timescale envisaged by the policy) which is strongly suggestive of no improper motive. This refusal had nothing to do with disability or a protected act.[112]Again, the refusal was unwanted but did not relate to disability. Even if it did, it would not have been reasonable to regard the refusal as having the requisite harassing effect, and there was no evidence that that was its purpose.[113]The claimant’s claims of direct discrimination, harassment and Refused to grant the claimant’s leave request for 28 May 2021.[114]We found as a fact that on 28 May 2021, when the claimant requested the bank holiday of 31 May 2021, Ms Popal took the decision based on the fact that there was no management cover. She nonetheless allowed the claimant to explore the possibility of swapping her shift. The claimant did this, arranged for a colleague to cover the Monday shift, and instead worked the following Friday. The reason why Ms Popal took this approach was for staffing reasons and had nothing to do with the claimant’s or her husband’s disability or the claimant’s protected acts.[115]The refusal of leave was unwanted, but was not related to disability in any way. Even if it had been it would not have been reasonable to regard this as having the requisite harassing effect, and there was no evidence that that was its purpose.[116]The claimant’s claims of direct discrimination, harassment and When had conversation manager accused her of something not true. She believes that was to defame her, accuse her, and to make up a false allegation. This was on 10th June 2021[117]We have found that there was indeed a heated conversation between the claimant and Ms Popal on 10 June 2021. However, we found that the reason why Ms Popal said what she did in the way that she did was her frustration at the claimant openly defying her clearly articulated instructions to work her contracted hours. We struggle to see any defamation or false allegations here, even on the claimant’s case.[118]What Ms Popal said and the way that she said it was not related to disability. Again, even if it were, it would not be reasonable to regard it as having the requisite harassing effect, and there was no evidence that that was its purpose. If, somehow, some sort of relationship with the claimant’s disability and her desire to leave early could be established, Ms Popal was obviously raising matters which had genuinely been a concern for management. On the most generous reading of the facts to the claimant this type of conduct comes nowhere near that envisaged by the cases of Dhaliwal and Grant.[119]The claimant’s claims of direct discrimination, harassment and Being forced to work until 5pm on 10th June 2021[120]Our findings are that the claimant was not “forced” to work until 5 PM on 10 June 2021. What happened was that Ms Popal, like Mr Elkhalil before her, and having confirmed the position with HR, told the claimant what her contracted hours were and warned her that if she continued to leave early, against management instruction, her absence would be treated as an unauthorised and possibly a conduct matter. The reason why Ms Popal did this was to make clear what the claimant’s contractual obligations were and to warn her of the consequences of continuing not to comply with them. Ms Popal’s motivation was in no sense because of the claimant’s or her husband’s disability or because of any protected acts.[121]Ms Popal’s instruction was not related to disability. Even if it was, it would not be reasonable to regard such conduct as having the requisite harassing effect, and there was no evidence that this was its purpose.[122]The claimant’s claims of direct discrimination, harassment and The respondent marking her breaks from 3 May 2021 onwards as unauthorised (victimisation)[123]We have found as a fact that the reason why Ms Popal began recording the claimant’s time when she left early as unauthorised unpaid was because she genuinely believed (and reasonably so on our findings) that there was no agreement for the claimant to leave early, that the time she left early was unauthorised and that it should be unpaid. We further found that the protected act was in no sense the reason why she took this approach.[124]The claimant’s claim of victimisation is not upheld. Delay in terms of responding to the claimant’s grievance[125]As indicated above we found that the reason why Mr Ahmet Kaan took longer than he would have hoped to deal with the claimant’s grievance was because of his and a colleague’s holidays, a heavy workload and difficulty finding time in both his and Ms Popal’s diaries to meet up. There is no evidence that the fact that the claimant had put in a claim of discrimination, or alleged it in her grievance had any bearing on the time taken to deal with the grievance.[126]The claimant’s claim of victimisation is not upheld. Overall conclusion[127]For the reasons set out above none of the claimant’s claims are upheld and they are dismissed.