Miss H Lau v Dragon Cat Ltd T/a Dragon Cat Cafe and Others: 2216707/2023
EMPLOYMENT TRIBUNALS
Case No 2216707/2023
Between
Miss H LauClaimantDragon Cat Ltd T/a Dragon Cat Cafe and OthersRespondent
Before
Employment Judge FordeMr D Flood (instructed by Barrister) for respondentDate 17 February 2025
JUDGMENT
[1]The complaint of constructive unfair dismissal is well founded and is upheld against the first respondent.[2]The claim of direct race discrimination in not founded and is dismissed.[3]The claim of wrongful dismissal is well founded and is upheld against the first respondent.[4]The claim of not allowing the claimant to be accompanied contrary to s.10 Employment Rights Act 1999 is not founded and is dismissed.
REASONS
[5]By way of a claim form dated 1 November 2023 the claimant makes claims of constructive unfair dismissal against the first respondent and claims of direct discrimination against all three to respondents. The claim of constructive dismissal relates to events that took place between 31 July 2023 and 4 August 2023. The claim of direct race discrimination arises from the claimant’s complaint that the respondents caused her to work more weekends than a direct comparator, her suspension and subsequent dismissal.[6]The claimant started her employment with the first respondent on 2 December 2019 and it ended on 4 August 2023 when the claimant resigned. It is the claimants case, as is common with all of those who pursue claims of constructive unfair dismissal, that there were circumstances in play at the material time which justified her reaching the view that the respondents had committed a repudiatory breach of her contract of employment, such that this allowed the claimant to terminate the contract by resignation.[7]The claimant describes her race as Hong Kong Chinese. She was employed by the first respondent first as a waiter and thereafter as a manager. The claimant is able to work in the United Kingdom because she has a visa sponsored by the first respondent which allows her to work. On the first morning of the hearing, Dr Young who represents the claimant informed the tribunal that the claimant may only have a further 60 days to stay within the country.[8]Early conciliation started on 16 September 2023 and ended 9 October 2023.[9]The first respondent is the business entity that employed the claimant. The second and third respondents are directors of the first respondent.[10]It is the claimant’s case that on the day following the scheduled closure of one of the first respondent’s 2 cafes that it operated within which the claimant had worked, the claimant was suspended, initially without pay and disingenuously with a view to dismissing the claimant due to the fact that the first respondent no longer had a need 2 employed managers when it ran only one cafe.[11]What happened after, forms a large part of the evidence in this case. The claimant, with the assistance of Dr Young, engaged a lawyer Mr Paul Daniels who in turn made representations on behalf of the claimant to the first respondent. Those representations were fielded in the main by the second respondent in the knowledge of the third respondent.[12]The key date in this case is 31 July 2023. This is the cause at 11:00 AM on that day, the claimant met with the second and third respondents. What was discussed in that meeting forms the basis of the respective parties positions in this case. The claimant says that it was not clear to her what was discussed during the entirety of the meeting. As a consequence, she says that she has effectively been ambushed by two areas of concern relied upon by their respondents.[13]The respondents, through the second and third respondents, say that they discussed two important issues with the claimant. First, they discussed issues relating to the preparation of food and drinks and in particular wheel cakes and bubble tea, key products sold by the cafes run by the first respondent. Essentially, the respondents say that following complaints by both staff and customers, they had legitimate concerns with regards to the quality or food and drinks being served by the claimant and in addition and perhaps more seriously, they had received reports from customers that food and drinks served what of poor quality or substandard, and that the claimant had engaged in conduct relating to the storage of wheel cakes which is correct, would not only adversely affect the quality of the product being served to customers but would also potentially have significant implications with regards to food health and safety.[14]During her suspension, The claimant says that the respondents failed to either properly explain the allegations that they were investigating against the claimant or provide any evidence of any concerns stating that the rationale behind their conduct was “totally fabricated and intended to conceal other, more sinister motivations based upon discrimination” (see paragraph 3.5 grounds of claim, page 17 bundle). The claimant goes on to say that after weeks of trying to take steps to resolve the issues between the parties, the claimant was “forced to resign from her position as manager at the company, with immediate effect, on 4 August 2023, by reason of constructive unfair dismissal, resulting from(a) the repudiatory breach of her contract of employment and(b) the discriminatory, inappropriate and unsupported actions and conduct of the Respondents” (paragraph 3.6, page 17).[15]In terms of her allegations of direct race discrimination, the claimant says in her claim that the measures taken against her were different to those taken against a British manager. She makes 3 allegations of discrimination namely by forcing her to work every weekend, by suspending her, and by constructively dismissing her. The claimant says that she is owed her notice pay as a result of a wrongful dismissal claim also. Lastly, the claimant makes a claim of a failure to be allowed the right to be accompanied and makes that claim in relation to the meeting that took place on 31 July 2023.[16]The first respondent denies breach of contract it says that the dismissal was fair. It points to the fact that the claimant was in fact asked to reconsider her position as to resignation for the stop notwithstanding, and certainly by the time that this matter was before EJ Hodgson on 11 March 2024, it was indicated that the respondents would rely on some other substantial reason namely that the claimant would have been dismissed for gross misconduct involving the bullying of an employee and serving food that was not fit for human consumption. Procedural matters[17]The hearing was set down for 7 days to deal with liability only and this was considered a suitable hearing length due to the respondent indicating during the preliminary hearing that intended to call 5 witnesses. However, the only witnesses to appear before the tribunal were the claimant and the second and third respondents. Consequently, the time allowed for the tribunal to read into the papers and thereafter hear evidence was reduced to six days.[18]On the first day of hearing, Dr Young on behalf of the claimant indicated that the claimant wished to make an application for strike out of the response and did so on the grounds described as procedural fairness and natural justice. In support of that application, Dr Young handed up two bundles including one of 167 pages which in the main contains inter partes correspondence and correspondence with the tribunal which in turn centres on the compliance or purported non-compliance of the respondent's representatives.[19]The application took one day to determine and this was in part due to the fact that Mr Flood who appears on behalf of the respondent was not in possession of the claimants bundle and required time to deal fully and properly with the issues raised by Dr Young before the tribunal.[20]The full detail of what the tribunal heard need not be repeated in full here. In short, it was Dr Young's submission that during pretrial preparation the respondent had engaged in conduct which was serious and systemic in respect of procedural fairness and natural justice as a result of multiple, material and outstanding breaches of Judge Hodgson's case management order dated 11 March 2024.[21]The breaches Dr Young relies upon is that of disclosure which was ordered to taken place or no before 17 April 2024. Irwin Mitchell who act for the respondents did not complete disclosure on this date but did so five days later on 22 April 2024. In his submission, Dr Young describes this as a material and significant extension of time which the respondents unilaterally awarded to themselves. He goes on to describe this act as being materially late.[22]He then goes on to say that Irwin Mitchell acted in bad faith in refusing to email certain documents to him. Specifically, this relates to the disclosure of recordings of meetings first with the claimant on one July 2023 and thereafter, investigatory meetings concerning the claimants conduct which followed with other staff members. Dr Young says that he explained to Irwin Mitchell that he was not prepared to compromise the security or safety of his computer by downloading documents from a file sharing site used by he firm. He asked for the recordings to be sent to him by e-mail and this wasn't done. Issue of recordings remained outstanding as at the start of the hearing.[23]The second limb of his application relates to the bundle. Dr Young says that the respondents failed to provide all documentary disclosure on 20 June 2024 and did so later, first refusing to send by e-mail and thereafter agreeing to do so and completing the task after the direction of the tribunal had stipulated this task to be done by. Dr Young also raises the point that the hearing bundle was not agreed with the claimant and that this constitutes an unwillingness to collaborate which of itself constitutes significant procedural unfairness.[24]The third limb of the application relates to the exchange of witness statements which was to have occurred on 2 July 2024. In short, the respondent was late by 20 minutes in disclosing its witness statements. There is slightly more to this allegation that arises from the communication between the parties during the course of the day.[25]Dr Young's submission was that the cumulative effect of all of these breaches was that the claimant has endured significant and repeated instances of procedural unfairness and breaches of natural justice due to what are described as multiple violations of tribunal orders.[26]The tribunal's finding and subsequent ruling is that this was a repeat of an application made and determined by employment Judge Hodgson months before. At page 124 of the bundle there is a letter addressed to the parties from the tribunal dated 24 July 2024. The letter says the following: “Dear parties, Employment Judge Hodgson has considered the claimant’s application to strike out the defence for non-compliance with orders. He is not satisfied that a fair hearing is no longer possible and the application to strike out his refused.”[27]This is clearly a decision in respect of an application to strike out meaning that the claimant was effectively seeking to appeal the decision before the tribunal at the start of the hearing. Further, the claimant postulated that it was a renewed application in her submission document. Consequently, the tribunal determined that it would not be appropriate to go behind an issue that has already been determined nor would it be lawful to do so. The parties and the tribunal are entitled to rely on the principles of finality and certainty and to that extent, it would be in our view entirely inconsistent with tribunal procedure and unfair on the respondent in the extreme to allow this application to be granted given the circumstances.[28]Moreover, and in respect of each of the breaches identified by Dr Young carefully and eloquently, the tribunal considers those breaches to be minor and in the relation to the third limb arising from the delayed exchange of witness statements, the tribunal considers this to be a trivial breach, if it amounts to a breach at all.[29]The tribunal's finding in relation to these matters is important because an application to strike out can only be considered under rule 37 of the tribunal’s 2013 rules. Rule 37(1)(b) allows for strike out where the conduct of the party has been scandalous, unreasonable or vexatious. Rule 37(1)(c) allows for strike out through non-compliance with tribunal orders. The law is settled in that when considering strike out, the tribunal must first establish grounds for strike out and thereafter determine whether it would be right to strike out. In other words, the tribunal must exercise its discretion as to whether or not it would be appropriate to strike out given a fact finding on the issues before it. When doing so, the tribunal must have regard to the overriding objective which requires the parties to be on an equal footing and, amongst other things, dealing with the case proportionately.[30]Even if the tribunal had found that the allegations raised by Dr Young had met the threshold within r.37(1)(c) (as it was) for establishing grounds for strike out, the tribunal will have found that it would have been it would be a disproportionate outcome to strike out the responses for what are either minor or trivial delays in terms of procedural compliance. While this is noncompliance in its strictest meaning, the application fails to recognise the disproportionate effect of the outcome it seeks when compared with the reality of what happened.[31]Dr Young made the point that the claimant had yet to review the recordings described above. He said that this was a failure on the part of Irwin Mitchell that meant that the claimant was disadvantaged because she had not been able to prepare for the hearing in the same way that the respondents had. While this was undoubtedly true, the tribunal took the view that there being four days before evidence was to be heard, that it was within the claimants gift to review the recordings which had been successfully emailed to Dr Young during the hearing and if necessary, file a supplementary witness statement dealing with anything arising from the recordings. Mr Flood expected that the claimant may wish to produce a supplementary witness statement once she had reviewed the recording of the meeting 1 July 2023.[32]The judge explained that it would be inappropriate to exclude the recordings and in particular the recording of the meeting between the parties because there was a dispute between the parties over what was said and happened at that meeting. The recording could assist the tribunal in terms of its fact finding as regards at what happened during the meeting. Further, the tribunal was concerned with justice, and a correct fact finding.[33]It considered the late availability of the recordings to the claimant as challenging in terms of Dr Young's preparation for the hearing but nonetheless essential when considered against the interests of justice and the overriding objective which demands that cases are disposed of reasonably, justly and fairly. The recordings had been available for approximately 5 months. There was nothing in the bundle before the tribunal that indicated the Dr Young or the claimant had chased this issue. Dr Young justifies his conduct overall in correspondence with Irwin Mitchell on the basis of what he considers its conduct to have been, namely wilful and repeated disobedience of tribunal orders. While the tribunal takes the view that the correspondence between the parties was fractious and non-collegiate contrary to the overriding objective, it is the tribunal's finding that both parties could have done a lot more to have resolved this issue.[34]Accordingly, the tribunal ordered that the recordings were admitted into evidence, that the additional bundles prepared for the purpose of the strike out application should form part of the hearing bundle, and that the claimant would have leave to submit a supplementary witness statement limited to issues arising from the recordings that have been described above.
Evidence
[35]The tribunal had access to a joint hearing bundle comprised of approximately 430 pages, and two Further bundles prepared by Dr Young in respect of the application. There was also a bundle for witness statements which contained the witness evidence of the claimant, the first and second respondents, and two further witness statements which the tribunal were not directed to and which were not considered by the tribunal. The claimant and the first and second respondent gave live evidence to the Tribunal.
Issues
[36]The claimant brings claims of direct discrimination on the basis of nationality, constructive unfair dismissal, arrears of play, breach of contract namely notice pay, and a failure to comply with the right to be accompanied pursued under section 10 Employment Rights Act 1999. The following are the issues before the tribunal: Direct discrimination – section 13 Equality Act 2010 1. The claimant’s is a Hong Kong national. 2. Did the respondent do the following things: 1. Force the claimant to work every weekend? 2. Suspend the claimant 1 July 2023? 3. Constructively dismiss the claimant on 4 August 2023? 3. Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. the claimant says that she was treated less favourably than another manager who holds UK citizenship, Mr Sam Ho. 4. If so, was it because of the claimant’s nationality? 5. Did the respondent’s treatment amount to a detriment? Constructive Dismissal – section 95(1)(c) Employment Rights Act 1996 1. Was the claimant dismissed? The respondents say no. 2. Did the respondent breach the implied term of trust and confidence? The Tribunal will need to decide:(a) whether the respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent; and(b) whether it had reasonable and proper cause for doing so.(c) Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the claimant was entitled to treat the contract as being at an end.(d) Did the claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the claimant’s resignation.(e) Did the claimant affirm the contract before resigning? The Tribunal will need to decide whether the claimant’s words or actions showed that they chose to keep the contract alive even after the breach.(f) If the claimant was dismissed, what was the reason or principal reason for dismissal i.e. what was the reason for the breach of contract?(g) Was it a potentially fair reason? (h).Did the respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the claimant? Legal Principles The following principles apply to the claims the tribunal has to decide in the claim. Constructive dismissal – s.95(1)(c) ERA 1996 (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) …, only if)— (a) the contract under which he is employed is terminated by the employer (whether with or without notice), [(b) he is employed under a limited-term contract and that contract terminates by virtue of the limiting event without being renewed under the same contract, or] (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct. (2) An employee shall be taken to be dismissed by his employer for the purposes of this Part if— (a) the employer gives notice to the employee to terminate his contract of employment, and (b) at a time within the period of that notice the employee gives notice to the employer to terminate the contract of employment on a date earlier than the date on which the employer's notice is due to expire; and the reason for the dismissal is to be taken to be the reason for which the employer's notice is given. Caselaw provides employment tribunals with guidance. The test for constructive dismissal was set out in Kaur v Leeds Teaching Hospital NHS Trust [2019] in which the Tribunal were invited to address the following questions:• What was the most recent act or omission that triggered the resignation? . . . . .• Had the employee affirmed the contract since that act?• If not, was the act or omission a repudiatory breach?• If not, was it part of a course of conduct which taken together with other matters would amount to a breach of the implied term of trust and confidence?• Did the Claimant resign in response to the breach?• If the Claimant was dismissed, what was the reason for the breach of contract, was it a fair reason and did the Respondent act reasonably in the circumstances as treating it as a sufficient reason to dismiss the Claimant? In relation to the breach, the breach must be a fundamental breach of contract (see Sharp v Western Excavating [1978] ICR 221), and a breach of the implied duty of trust and confidence can be a fundamental breach, (see Morrow v Safeway Stores [2002] IRLR 9). The duty is that “an employer will not, without reasonable and proper cause, conduct his business in a manner likely to destroy or seriously damage the relationship or trust 2 and confidence between employer and employee” (Malik v Bank of Credit and Commerce International [1997] ICR 606 HL. 6.). The act of suspension can amount to a breach of the implied term, (Gogay v Hertfordshire County Council [2000] IRLR 703) unless the employer has a “reasonable and proper cause” to suspend the employee. Direct discrimination – s.13 EqA 2010 (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. (2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim. (3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B. (4) If the protected characteristic is marriage and civil partnership, this section applies to a contravention of Part 5 (work) only if the treatment is because it is B who is married or a civil partner. (5) If the protected characteristic is race, less favourable treatment includes segregating B from others. Wrongful Dismissal An action for wrongful dismissal is a common law action based on breach of contract. It is very different from a complaint of unfair dismissal. The reasonableness or otherwise of an employer’s actions is irrelevant; all the court has to consider is whether the employment contract has been breached. If it has, and dismissal is the result, then it is wrongful — but it is not necessarily unfair. Right to be accompanied – section 10 Employment Rights Act 1999 Right to be accompanied. (1) This section applies where a worker— (a) is required or invited by his employer to attend a disciplinary or grievance hearing, and (b) reasonably requests to be accompanied at the hearing.
Findings of fact
[37]The first respondent operated 2 cafes up to the 30 June 2023. The first cafe was located in Hammersmith. The second cafe was located in Chinatown. At times material to the claim, the claimant worked at the Chinatown location, which is a kiosk. The parties agree that the kiosk is a very small venue. It is the claimant's case that the venue was very cramped and exposed to the elements such that when it was hot outside it was hot inside, and when it was cold outside it was cold inside the kiosk. These features made the kiosk a challenging place to work both in terms of the physical challenges it would offer to those that worked there but also in terms of the business of food preparation which was the day to day concern of the claimant.[38]For a time, the claimant worked with another employee, Mr Yu Hin Ho known as “Sam”. Whilst employed, and for the purposes of these proceedings, the claimant was known as Mandy.[39]It is said by the respondent that on 26th June 2023, the second respondent met with Sam. During the course of that meeting, Sam is said to have disclosed to the second respondent that he had been bullied by the claimant. Sam's allegations of bullying are relied upon by the respondents to rebut the claimant's claims. Other employees are said by the respondents to have complained about the claimant, namely that she bullied and also that she had spread rumours about Sam.[40]Perhaps most seriously as far as the respondents were concerned, the other employees known as Lauren and Xenia alleged that the claimant had stored wheel cakes that the respondent had produced, reheated them the following day and had sold them.[41]It is said by the second and third respondents that the claimant bullied. Lauren and Xenia and warned them that they should not tell anybody about what she was doing. The claimant denies that she bullied anyone and if anything, she was treated with disrespect by Sam. She does accept that for a short period of time, that she did reheat the wheel cakes for sale but that she did so after receiving direction from another employee, that the period of reheating for sale had end a long time previously and that she was unaware that the first respondent’s practice was to discard all cakes at the end of each working day.[42]Specifically, the first respondent told the tribunal that the cakes had to be consumed on the day of preparation because to the store and then reheat would contravene food safety guidelines and regulations. The third respondent told the tribunal that there were guides provided to all staff that stipulated how things were to be done, including the preparation and storage of food.[43]The second respondent told the tribunal that he was the only person within the first respondent who had directly received food safety training. It was his evidence that he cascaded his knowledge to the first respondent’s employees. He admitted that following some training at the start of employment, there was little in the way of ongoing training. Further, he confirmed that the first respondent did not produce guides, policies (including workplace policies) or anything else for the use of its employees, save for some documents what were in each shop and provided direction as to the opening and closing of stores, cleaning down the store and machinery and so on. There was no documentary record of when training had provided to staff and what food standards staff had to adhere to.[44]The Tribunal accepts that the respondents did not want wheel cakes to be stored and reheated for consumption. It is also the respondents' case that it operated policies and procedures in relation to the production and storage of wheel cakes. The respondents asserted that all employees had received training and in fact, it is stated within the respondents’ Grounds of resistance that the claimant received regular training in respect of food preparation.[45]However, it is the tribunal’s finding that no policies and procedures existed in relation to food preparation and storage. Further, the second respondent accepted in cross examination that he was the only person within the respondent who had received any food safety or hygiene training and that it was his responsibility to communicate the important aspects of this training to his employees. It is the tribunal's finding that no policies or procedures existed. This means that it was not possible for the first respondent assert that it had policies and procedures in place (see above) and that these policies had been communicated to the claimant in the way that it alleged. Further, the tribunal does not accept the second respondent’s evidence that he cascaded adequately or at all the food safety training that he had received.[46]It follows that the tribunal finds that it was not within the gift of the respondents to assert as they did that the claimant had fallen short or alternatively, had deliberately flouted policies and procedures in the way alleged and relied upon by the respondents when suspending the claimant without pay. Furthermore, the respondents accept that they fell into error by suspending the claimant without pay (see below).[47]Returning to the factual chronology, the respondents determined that they would meet the claimant and arranged to meet her on the first of July 2023. By this time, the first respondent had closed the Chinatown branch and the Claimant was due to start working at the first respondent’s Hammersmith branch. All other members of the First respondent’s Chinatown operation had ceased working for the first respondent. It is the respondents’ case that all of those employees resigned because of how the claimant behaved towards them. However, the tribunal does not accept that evidence. The tribunal has not been provided with any evidence that supports this assertion. The tribunal finds that it is far more likely to have been the case that those employees departed because of the closure of the Chinatown branch. Further, no evidence was presented to the tribunal that proved that the employees concerned resigned as opposed to having their employment terminated by the closure of the Chinatown branch.[48]On 1 July 2023, the first and second respondents met the claimant at a Starbucks cafe in Hammersmith. The claimant was provided no warning or indication as to what was to be discussed at the meeting. The format of the meeting was that the second respondent was to present the issues that concerned the respondents at that time to the claimant. The third respondent was responsible for recording what was said during the meeting. How this was done is a matter of great concern to the tribunal. Both the second and the third respondents explained in their own way that it was the third respondent's intention to record notes of the meeting in writing on her mobile telephone. However, the third respondent, told the tribunal that she encountered difficulties during the meeting almost immediately upon commencement of her note taking. This resulted in the third respondent. recording the meeting in the form of a voice note on her mobile phone.[49]What is concerning about the third respondent’s conduct here is that not only did she fail to point out to the claimant that the meeting was being recorded, but that she did it by concealing the fact of her phone. This was something that the third respondent conceded in evidence when she informed the tribunal that the mobile telephone that she was using was placed below the Table that the parties were sat at. The tribunal finds that the recording was not only concealed but the respondents had failed to provide an adequate explanation as to why a written note of the meeting could not have been taken and subsequently provided to the claimant. This is an important point because the claimant raised a subject access data request after the termination of her employment and despite this imposing a statutory obligation on the first respondent to disclose documents that relate to the claimant, the respondents failed to acknowledge the existence of the recording or provide a copy of it to the claimant until disclosure occurred in these proceedings. Within the bundle is contained a transcript of the meeting. The contents of the transcript are disputed. In fact, there was significant discussion about the admissibility of the recording of the meeting for reasons unconnected to the factual matrix relevant to the claim.[50]The meeting started amicably. But after a while, the second respondent started to raise a number of concerns with the claimant. The consequence of that discussion is that the claimant was informed that she was suspended without pay until matter and matters that were under concern would be investigated. The claimant was handed a letter. The stated purpose of the letter was to confirm the conversation that the parties had had on the first of July 2023 and contained two reasons for the suspension, namely a charge of bullying and for selling items unfit for consumption. It is important to note that the issue of bullying, detailed above, was never discussed with the claimant and in evidence, the second respondent said that the reasons why it was not discussed was because he forgot to raise it.[51]The claimant, on the advice of Dr Young, who represents her in the hearing before us, prepared a latter which was dated and sent the same day. That letter sets out the claimant's position in relation to the allegations and requested further information in relation to the allegations. It also intimated that the claimant was raising a formal grievance. It remains the case that the claimant did not receive a response to the points raised or any of the documents requested within it, specifically, the claimant asked for details of the allegations being raised against her.[52]The claimant engaged a solicitor, Mr Paul Daniels at Keystone Law. He sent a further letter to the respondents on 4 July 2023 requesting further information as to the allegations raised against the claimant and requesting certain documents will stop. On 6 July 2023 the second respondent sent a letter to the claimant that was a revised suspension letter. The letter confirmed that they she would be paid while suspended. Erroneously, it maintained that the parties had discussed the allegation of bullying which the second respondent conceded in evidence had not been discussed with the claimant during the meeting at Starbucks.[53]As far as the claimant was concerned, the relationship between she and the respondents deteriorated further when the revised the revised suspension letter. She considered and the tribunal finds that the second letter was an opportunity to correct the record but instead, the respondents deliberately misstated the corrected position with regards to what had been discussed in the meeting.[54]Thereafter, the claimant received several of what she considered to be harassing meeting invitation requests that arrived in short succession. The first was emailed to her directly by the second respondent at 11:33 AM on Sunday 9 July 2023, inviting her to an investigatory meeting the following morning at 10:30 AM. The claimant says that she became incredibly stressed and upset on reading its contents. This letter included what she described as further embellished accusations, and elevated the hitherto unarticulated allegation of bullying to gross misconduct. As is customary, this letter indicated that the claimant could be accompanied by an employee only at the meeting.[55]As she pointed out in evidence, it would have been impossible for her to arrange for a work colleague to have accompanied her to the meeting at such incredibly short notice. All of the first respondent’s employees were either working in the store at that time or may well have been ones who had raised the allegation of bullying against her and therefore would have been unsuitable. Moreover, the amount of notice given was incredibly short. The tribunal agrees. While second respondent informed the tribunal that he was, at the time a novice insofar as workplace dispute resolution processes were concerned, the tribunal finds that it was unreasonable for the first and second respondents to have acted expected the claimant to attend a meeting under these circumstances.[56]The meeting was to have taken place at the residential address of the second respondent and the third respondent. The claimant considered this to be an intimidating location, or at least one where she could not feel comfortable in. Mr Daniels write a further letter in which he estimated that the claimant was prepared and committed to cooperating with respondents' processes but that it was important for the claimant to understand the charges against her and that she was signed off sick and therefore seeking a delay in the process until she was well.[57]The letter proposed that written questions could be put to the claimant given her sickness as an alternative to a face-to-face meeting.[58]The claimant received the second invitation letter e-mailed to her directly on 12 July 2023. By this time the claimant had requested that all correspondence be sent directly to her lawyer. A further letter was sent on 18 June 2023 insisting on meeting and the forum being Costa Coffee in Hammersmith.[59]Throughout this time, it is the claimant’s case, and it is the tribunal’s finding that the respondents failed to provide the detail behind the allegations that the claimant was seeking at this time. It is the Tribunal's finding that the. respondents conduct and specifically the conduct of the first respondent through the actions of the second the respondents were serious and amounted to fundamental breaches of the claimant’s contract of employment.[60]Specifically, the claimant identifies at the failure to provide evidence or information in relation to the allegations that concerned her, the failure to pay the claimant until she raises a concern about it , and the repeated attempts to hold a meeting with the claimant despite her explanations of sickness in the circumstances that were known to the respondents as key factors.[61]On 31 July 2023 the claimant received a letter from the first respondent in which it was said that she would be removed from suspension and placed on statutory Sick pay, despite an assurance from the respondents that she would remain on full-pay while suspended. For the claimant, this was the “last straw” and she resigned on 4 August 2023. On 8 August 2023, the claimant received an e-mail from the second respondent containing an offer to reinstate, her, in full without any penalty or conditions attached. However, by this time, the claimant had seen enough; she had reached the point of no return. She considered the totality of the failures or conduct of the respondents to amount to matter amounting to a breach of the implied duty of mutual trust and confidence. To the claimant, the breaches were serious, fundamental and repudiatory. The tribunal concludes that the claimant was entitled to reach this assessment. The claimant resigned promptly after the breach and therefore cannot be said to have affirmed the respondents’ breach of her employment contract. It follows that the first respondent is liable for the claimant's unfair dismissal by way of constructive unfair dismissal.[62]Based on the tribunal’s findings of fact that the first respondent breached the claimant's contract of employment, it follows that the claimant succeeds in her claim of wrongful dismissal. Direct discrimination[63]Force the claimant to work every weekend?[64]The evidence within the bundle was incapable of amounting to a case that could sustain the allegation that the claimant was forced to work every weekend. In fact, there was evidence within the bundle and presented to the tribunal the claimant was not forced to work every weekend and was allowed time off when requested. In evidence the claimant accepts that she did not raise this concern to the respondents. On the balance of probabilities, the tribunal finds this allegation to be unproven. Accordingly, the tribunal finds that this issue is not one which engages the Equality Act 2010 because it fails to meet the evidential burden contained in Section 136 Equality Act 2010 as set out above.[65]Suspend the claimant 1 July 2023?[66]It is tribunal’s finding that the decision to suspend the claimant without pay did not arise for any reason other than the first respondent’s misconceived belief in the claimant's wrongdoing which in turn led to her suspension. As we have found and as set out above, the tribunal finds that the allegation of misconduct relating to the wheel cakes was unreasonable. Further, the allegation of bullying was never set out to the claimant. It is the tribunal’s finding that the conduct of the respondents, while serious, was more likely to be due to the inexperience of the second and third respondents in relation to the investigation and prosecution of disciplinary matters within the workplace rather than any actions grounded in race discrimination. Accordingly, this allegation fails to be proved on the balance of probabilities.[67]Constructively dismiss the claimant on 4 August 2023?[68]Again, it is the tribunal’s finding that the claimant was constructively dismissed due to the respondents, collectively and individually, breaching the claimant's contract of employment. we find that the breaches found such as the failure to pay the claimant were unrelated to her nationality or race and therefore this allegation is not proven on the balance of probabilities.[69]The claim of not allowing the claimant to be accompanied contrary to s.10 Employment Rights Act 1999[70]The tribunal finds that this claim is not made out since no relevant meeting occurred and because the tribunal does not find that the claimant was not allowed to be accompanied. RECONSIDERATION
Findings of fact
[1]The complaint of constructive unfair dismissal is well founded and is upheld against the first respondent for the reasons given previously.[2]The claim of direct race discrimination in not founded and is dismissed for the reasons given previously.[3]The claim of wrongful dismissal is well founded and is upheld against the first respondent for the reasons given previously.[4]The claim of not allowing the claimant to be accompanied contrary to s.10 Employment Rights Act 1999 is not founded and is dismissed.[5]The claimant applies for a reconsideration of the tribunal’s judgement on liability on four grounds. Those grounds will be addressed below.[6]The first ground for reconsideration is in respect of the tribunal’s finding on direct race discrimination. The claimant says that the tribunal’s judgement is affected by substantial procedural irregularities and material errors of law and goes on to identify what those are. Taking the claimant’s objections in the logical order that they are presented means that first, the tribunal must consider whether the tribunal misapplied the burden of proof test as set out in s.136 Equality Act 2010.[7]Essentially, what the claimant says is that the tribunal failed to shift the burden to the respondents once a prima facie case was established of discrimination as per Igen Ltd V Wong [2005] EWCA Civ 142.[8]The tribunal has considered what the claimant says under this ground of appeal. It is the tribunal’s finding that this strand of the claimant’s application is dismissed.[9]The basis for the tribunal’s dismissal of the application is that within the judgment the tribunal identifies that the claimant failed to persuade the tribunal of the facts that were said to underpin the allegations of direct race discrimination that she made against the respondents. That finding was reached on the balance of probabilities. As the tribunal did not make a finding of fact in relation to the allegations made by the claimant, the gateway through which the claimant must pass in order for the tribunal to go on and consider whether or not the conduct of the respondents was as the claimant complained of, was not traversed. Accordingly, the claim automatically fails. In other words, the burden does not shift to the respondents as the tribunal did not make any findings that would cause the burden to shift to the respondents to explain their conduct.[10]The second strand of the claimant’s appeal is in respect of the tribunal’s findings in respect of the claim made under s.10 Employment Relations Act 1999 namely in respect of the claimant’s right to be accompanied at a disciplinary hearing. The complaint raised by the claimant is that the judgment does not provide sufficient reasoning for the Tribunal’s conclusion.[11]The tribunal agrees with the claimant’s analysis and apologises to the parties for the insufficiency of reasoning contained within the tribunal’s judgement.[12]Starting with the law, section 10 ERA 1999 states: 10.— Right to be accompanied. (1) This section applies where a worker— (a) is required or invited by his employer to attend a disciplinary or grievance hearing, and (b) reasonably requests to be accompanied at the hearing.[13]It is clear that the law requires there to be a meeting at which could fall to be described as a disciplinary meeting. The tribunal has no issue in finding and in fact does find that the meeting that took place on 1 July 2023 was a disciplinary meeting in all but name.[14]In the facts found by the tribunal, the claimant was not advised of her right to be accompanied. In her submissions, it is accepted by the claimant that she was not aware of her right to be accompanied. The tribunal found on the facts available to it that she did not ask either the second or third respondents if she could be accompanied to the meeting.[15]However, section 10 of the Employment Relations Act provides the right to be accompanied in circumstances where the employee asks for the right to be activated and thereafter, the employer does not allow the right to be invoked by the employee. In other words, the claim for the right to be accompanied is only available to employees who asked for it. On the facts found by the tribunal, namely that the claimant did not ask to be accompanied, and notwithstanding the tribunal’s acceptance that the claimant would not have known of her right to be accompanied and nor was she as it was she informed by the second and third respondents of her right to be accompanied, the claimant is not entitled to succeed in a claim under section 10 ERA 1999 for this reason solely.[16]As the claimant has succeeded only in her claim of constructive unfair dismissal and not in respect of any of the claims of discrimination that she pursued against the second and third respondents, the tribunal is only able to reach a judgement in respect of the claimant successful claim in respect of the first respondent who was her employer.[17]Because this has been a request for a reconsideration it is a decision of the tribunal’s made under rule 68 of the tribunal’s rules which itself provides the tribunal with a general power to reconsider any judgement where it is necessary in the interests of justice to do so. The law is clear that a reconsideration can only be made in respect of the judgement.[18]Rule 2(1) defines a judgement as: ‘.. a decision, made any stage of proceedings (other than a decision under rule 14 (reconsideration rejection of claim) or 20 (reconsideration of rejection of response)), which finally determines:• a claim, all part of the claim, as regards liability, remedy or costs (including preparation time and wasted costs);• any issue which is capable of finally disposing of any claim, or part of the claim, even if it does not necessarily do so (for example, an issue whether a claim should be struck out or a jurisdictional issue); or• the imposition of a financial penalty order under section 12 A of the employment tribunal’s act 1996.’[19]Therefore, it is clear that only a decision which finally determines a claim or any issue in a claim can constitute a judgement for the purposes of reconsideration under rule 68.[20]For this reason, the claimant’s request for clarification on the statement status and treatment of staff recordings is not a matter which falls to be considered under a reconsideration as a matter of law. It is clear that the claimant is seeking further detail from the tribunal as to how it treated the documents placed before it including recordings. The tribunal declines the claimant’s invitation to do so. It does so on the basis that this is not a request to reconsider its judgment.