Mr K Smith v Amadeo Systems Ltd and Mr A Aydan: 2216796/2023

EMPLOYMENT TRIBUNALS

Case No 2216796/2023

Between

Mr K SmithClaimant

Amadeo Systems Ltd and Mr A AydanRespondent

Before

Employment Judge F Spencer

Mr P Wise-Walsh (instructed by counsel) for claimant

Mr D Stephenson (instructed by counsel) for respondent

Date 31 January 2025

JUDGMENT

The Judgment of the Tribunal is that: i. The Claimant’s claims of direct race discrimination, and harassment related to race, do not succeed and are dismissed; ii. The Claimant’s claims that he was dismissed contrary to section 101A and/or section 100 of the Employment Rights Act 1996 do not succeed and are dismissed. iii. The Claimant’s claim for unpaid wages succeeds and the Respondent is ordered to pay the Claimant £2,916.66 in respect thereof. iv. The Claimant’s claim for holiday pay succeeds and the Respondent is ordered to pay the Claimant three days holiday pay amounting to £403.86 (3 x £134.62). v. It is just and equitable to increase the above awards by 25% for failure to comply with the ACAS code on disciplinary and grievance procedures. (£2,916.66 + £403.86) x 25% = £830.13. vi. The Respondent is ordered to pay the Claimant a total of £4,150.65

REASONS

[1]The Claimant, Mr Kashane Smith, was employed by the First Respondent as a Marketing Associate from 27 March 2023 until 30 October 2023. He was dismissed on 23 October 2023. The Claimant is of Afro-Caribbean origin.

[2]By a claim form presented to the Employment Tribunal on 29 November 2023 Claimant claimed;a. automatic unfair dismissal for asserting a statutory right to a rest break (101A of the Employment Rights Act 1996);

b. automatic unfair dismissal for health and safety (s100(1)(c ) of the Employment Rights Act 1996 );

c. direct race discrimination (section 13 of the Equality Act 2010);

d. harassment related to race (section 26 of the Equality Act 2010);

e. unlawful deduction of wages;

f. holiday pay.

[3]The First Respondent provides marketing services. Mr Aydan, the Second Respondent, is the CEO, majority shareholder and sole director of the First Respondent. The First Respondent is part of a wider franchise with Amadeo Systems GmbH which operates in Austria, Spain and Germany. In the UK there are six or seven employees. Across the wider group there are some 47 employees.

[4]The dispute in this case is largely one of fact.

[5]I had a bundle of documents running to 333 pages. I heard evidence from the following: For the Claimanta. the Claimant

b. Ms Wright, the Claimant’s partner

c. Mr Keating, a former employee of the First Respondent

d. Mr Chu, a freelance videographer For the Respondent a. Mr A Aydan, CEO b. Mr J Gill- Sales and Marketing director c. Ms M Paulovich, senior administrator d. Mr G Eviri- Senior IT and Technical Support Specialist

e. Mr Patel, bookkeeper and accountant

f. Mr M Makivic, CEO of Amadeo Systems GmbH

[6]The issues are set out in the Annex to this Judgment. Broadly, however, the Claimant claims that Mr Aydan made a number of overtly racist remarks, which were overheard by Ms Paulovich, Mr Makivich and Mr Gill. Those remarks are all denied by the Respondent’s witnesses. The Claimant also claims that he was dismissed for asserting his statutory right to a rest break after he was asked to work two weekends in a row.

[7]The Respondent accepts that the Claimant was asked to work two weekends in a row, but denies that the Claimant made any statement which could be construed as asserting a statutory right. It is the Respondent’s case that the Claimant was dismissed because he left an important trade exhibition without permission.

[8]The wages claim relates to a claim for the Claimant’s October pay which was withheld by the Respondent on the basis that the Claimant was alleged to have deleted files from the hard drive before returning it to the First Respondent.

[9]For the reasons which emerge from my findings of fact below I have preferred the Respondent’s evidence on the balance of probabilities. Relevant facts

[10]The Claimant began employment with the First Respondent on 27th March 2023 as a marketing associate on a salary of £35,000 per annum which was paid monthly in arrears. His duties were, amongst other things, to assist in various marketing projects and campaigns, to create and distribute marketing literature, to create website designs and to promote content on social networks.

[11]His contract of employment provided for standard working hours of “a minimum of 40 hours per week, from Monday to Friday 8 am to 5 pm” with a 60-minute unpaid lunch break. It also provided that “You may be required to work additional hours outside of these regular hours if considered necessary to fulfil your duties.” “You will not receive compensation for the extra hours.”

[12]The contract also provided for a probationary period of three months and continued “you will be informed of the outcome of your probationary period, and you should not consider your probationary period to have passed until such notification has been received. We reserve the right not to apply full contractual capability and disciplinary procedures during your probation period.” The Claimant was never informed that his probation had ended, nor was he informed that it was extended. However, it must be implied into the contract that a probationary period would have ended if the employer does not notify the employee of an extension within a reasonable period after the initial three months. In this case I conclude that the probation must be taken to have ended.

[13]The Claimant says that he was told at interview that this was a job with hybrid working. However both the Claimant’s offer letter and the contract of employment, which the Claimant signed, refer to the job being in-person work. On balance I do not accept that the Claimant was told at interview that his work would be hybrid.

[14]The Claimant’s offer letter refers to a 40 hour minimum working week and tells him that he must be available during the core operating hours of 9 a.m. to 5 p.m. on all working days. The Claimant signed his formal contract on 24th March 2023.

[15]The staff handbook contains a hybrid work policy. This provides that “while working remotely employees maintain the same contractual obligations, such as core working hours, and will make their presence [sic] by logging their hours in the blip app”. (The blip app is an application on an employee’s work phone in which the employee logs when they start and finish work.) Mr Gill says he explained to the Claimant, at his induction, that he would be required to use the blip app, but the Claimant says he was specifically told, both by the senior administrator and Mr Aydan when he joined that, as he was working in the office five days a week, he did not need to use it. I accept the Claimant’s evidence on this as it is in line with the hybrid work policy in the staff handbook and, until 1 September, Mr Aydan did not criticise the Claimant for not using it

[16]For the first few months there appeared to be no problems. The Claimant worked in a small, serviced office with Mr Aydan and a senior administrator. Mr Gill was the Claimant’s immediate manager and generally attended the office on Tuesdays and Wednesdays. The other staff were sales and were generally on the road.

[17]The Claimant says that the senior administrator when he joined the company told him that everyone started work at 9. After the Claimant had been employed for about a month Mr Aydan agreed that he could work from home one day per week, usually on a Tuesday.

[18]The Claimant took 10 days annual leave from 3rd to 14 July 2023. From 19 to 28 July the Claimant’s father was seriously unwell, and the Claimant requested time off. This was granted and he was paid in full for July. Mr Aydan accepted in evidence that the Claimant was not required to take this additional time off as paid holiday.

[19]Ms Paulovich began working for the First Respondent on 28 July 2023 replacing the earlier administrator.

[20]On 1 September 2023 Mr Aydan sent an email to both the Claimant and Ms Paulovich, (136). The email refers to “a series of non-compliances concerning company policies” and announces that a 22-hour deduction would be made from each of their salaries for August on the basis that “despite previous reminders you have not adhered to the stipulated working hours, of 8 am to 5 pm frequently arriving at the office at around 9 a.m. and extending your break periods.” In the email Mr Aydan also complained about frequent personal calls made during working hours, asked them to adhere to a business casual dress code and said that it was imperative “that you use the blip app to log your attendance and breaks daily. Failure to do so will be treated as a day off and will be reflected in salary and employment record accordingly.”

[21]The Claimant responded the same day saying that he would be happy to present in a smarter way, to adhere to the hours stated in the contract and to use the blip app. He said he had been acquainted with flexible work and transitioning over had been tough because he had previously been freelance.

[22]In his email he also said that he had been meaning to speak to Mr Aydan regarding the hours his contract and “our previous conversations on this” and asked whether he could work from home another day and move to a 9 – 6 pm contract. Mr Aydan responded in the negative. However he accepted the staff were allowed to start later than 8 provided they made up the time by taking a shorter lunch break. The reference to “our previous conversations” does suggest that there had been earlier conversation about the Claimant’s hours. I do not accept the Claimant’s evidence that the email of 1 September came wholly out of the blue or his evidence in cross examination that the reference to “our earlier conversations” was because he was confused and was keeping the peace

[23]Thereafter the Claimant and Ms Paulovich were required to, and did, use the blip app. Notwithstanding Mr Aydan’s refusal to allow the Claimant to change his working pattern, the blip records indicate that the Claimant’s working pattern was closer to 9-6 than 8-5, that he arrived at variable times and did not log his lunch break. The Claimant says that the late starts shown in the blip app records were because he often forgot to record his arrival, but that seems unlikely because the app has a reminder facility which reminds employees to log on when they are geographically close to the office and when they leave. The app also has a facility which allows employees to make an amendment to the timings. The blip records do indicate that on occasion the Claimant did not log on till the afternoon.

[24]The blip records also indicate that the Claimant did not work on 13 September 2023 (160).

[25]The Claimant says that he got on well with Mr Gill, they worked well together were highly productive and that he collaborated effectively with the German, Spanish and Austrian teams receiving consistent praise for the quality of his work. Mr Gill supports this.

[26]On 8 September Mr Aydan announced the new and improved website for Amadeo in an email to all staff. In the email Mr Aydan says this “I’d like to extend my heartfelt appreciation to Kash, our talented web designer, whose creativity and attention to detail have been instrumental in bringing this project to fruition.” (There is a further email in the bundle (155) dated 26 September in which Mr Aydan praises the Claimant, referring to his evident competence in website design and marketing, and referring to “the level of commitment and expertise that you consistently bring to your role.”)

[27]It is the Claimant’s case that in the period 30th August to 6 September Mr Aydan, said during a telephone call with Mr Makivich that “Kash is always dirty” and that he repeated the comment several times during that call. He also says that Mr Makivich would disagree with him saying “no don’t say that” whereupon Mr Aydan would reply “everything about Kash is dirty.” He says that Ms Paulovich was present during that call, and he perceived the comment as racist. He goes on to say that Mr Makivich would often disagree with him saying “no don’t say that” whereupon Mr Aydan would reply “everything about Kash is dirty”. By telling the Tribunal that Mr Aydan and Mr Makivich word “would often” say these things the Claimant’s evidence is that that these remarks were made frequently.

[28]It was also the Claimant’s evidence that the comments were made about a week or so apart and he also said during a call “black guys are always lazy.”

[29]The Claimant also says that either on Wednesday, 6 September or Wednesday, 13 September 2023 during a call at the office with Mr Makivich and Mr Gill, Mr Makivich asked if the Claimant was present. Mr Aydan then replied “Kash? Lazy guy” - while looking over at the Claimant. Mr Aydan then said, “black guys are lazy” and repeated a few times “black guys are lazy guys” .

[30]The Claimant’s evidence is that Mr Aydan made this comment during a call to discuss the interview he was conducting for an IT manager to join Amadeo and was referring to Mr Eviri. The Claimant’s evidence was also that he repeated this comment over a period of weeks. Mr Makivich responded “no I didn’t say that” and Mr Aydan then replied, “black guys are good guys but lazy.”. The Claimant then said that John Gill looked over at him, embarrassed and in shock, but Mr Aydan doubled down adding again “ “black guys are good guys, but lazy.”

[31]Mr Aydan strongly denies making these comments. Mr Gill denies ever hearing such comments. Mr Makivich denies ever hearing such comments or making any such response. Ms Paulovich denies hearing any such comments.

[32]Mr Eviri, who is also black, joined the First Respondent in early September 2023, mainly working remotely but attending the office from time to time. Mr Eviri says he had never heard Mr Aydan make any comment about any racial group and that the Claimant had never mentioned to him that he had experienced any racial comments at work.

[33]Mr Keating, gave evidence in support of the Claimant. It was Mr Keating’s evidence that Mr Aydan treated the Claimant and Mr Eviri like dirt and would make comments to both of them based on the colour of their skin and say things “people like you” or “people who come from where you come from Kash wouldn’t understand” he says that Mr Aydan “would make a lot of comments related to [Kash and Gere’s] origin based on their race or the colour of their skin.” Mr Keating also says that the Claimant had called him in early September, while Mr Keating was on holiday in Turkey, and told him that Mr Aydan had said “black people are lazy.”

[34]In cross examination (though this is not in his witness statement) the Claimant said that he confronted Mr Aydan to ask him why he was always saying that black guys are lazy. Mr Aydan had responded that he once had an office in Africa and the guys there were lazy. Mr Aydan denies that he has ever worked in Africa .

[35]For reasons set out below, and on the balance of probabilities I prefer the evidence of the Respondent’s witnesses that those comments were not made.

[36]On 22nd September Mr Aydan emailed all staff informing them about some “essential dates and events”. This included 2 exhibitions taking place on 16th and 17th, and 20th to 22nd October, mandatory training sessions scheduled for October 14, 15th and 18th October, and mandatory “team building dinners” on 16th and 21st October. 14 and 15 October and 21 and 22 October are both weekends so that staff were required to work two weekends in a row. There is no reference in this email to being paid additionally for this time, or to time off in lieu, and I accept that Mr Aydan did not offer this to the Claimant at the time.

[37]The Claimant spoke to Mr Gill about it when Mr Gill was in the office commenting that it was “a lot”. Mr Gill told him that he would be able to get time off in lieu and that this was a very unusual situation. The Claimant’s contract of employment provides that “if you have worked or travelled at the weekend or bank holiday, you will not receive additional compensation for this time, but you will be able to claim TOIL (time of in lieu.)”

[38]Mr Gill’s mother had recently died, and her funeral was scheduled for Friday 20th October. Mr Gill was given the day off and told that he could take as much time as he needed. He was also not expected to attend the exhibition in Telford over the weekend of 21st and 22nd October. Mr Aydan’s evidence is that he told the Claimant that he would need to attend as the sole marketing representative, because Mr Gill could not attend due to a bereavement. The Claimant denies that Mr Aydan told him this. It was the Claimant’s evidence that they didn’t learn of the bereavement until they were travelling up to Telford, but it is plain from the WhatsApp message that the Claimant sent to Mr Gill (190) on 20th September that he was aware that the Claimant’s mother had died, and I find that he was aware that Mr Gill was not due to attend.

[39]On 5 October the Claimant messaged Mr Aydan to 8.25 a.m. to say that he wouldn’t come be coming in and would work from home as his washing machine was being delivered that day. (178) Mr Aydan responded that his decision to work from home without prior approval was unacceptable and that, despite previous warnings about similar conduct, his actions were inconsistent with organisational norms. He said that if such irregularities continued he would have no option but to end his employment. The Claimant responded with an apology, acknowledging that he should have followed the proper channels for requesting time off for remote worker approval and emphasizing his commitment to Amadeo.

[40]The Claimant attended the training sessions over the weekend of 14th and 15th October and was tasked with recording the training sessions. He then worked the following week at the exhibition on 16 and 17 October and a further training session on 18 October.

[41]Mr Keating was unable to attend the team building dinner on 16th October. Mr Keating said he was dismissed because he could not attend the work dinner despite the fact that his absence had been authorised by Mr Gill.

[42]Mr Gill says that, while he was informed by Mr Keating that he would not be able to attend, he did not authorise his absence and told Mr Keating that it was compulsory. Mr Aydan says he was dismissed because he had not made any sales. In any event, whatever the reason, I accept that at the very least, his inability to attend the team building dinner was the trigger for his dismissal and that Mr Keating was treated badly and peremptorily. Mr Keating remains justly aggrieved about his treatment at the Respondent.

[43]On 19 October staff travelled up to Telford and then went to set up the stand for the exhibition which began on 20th October.

[44]It is the Claimant’s case that while setting up the exhibition stand late in the evening of 19th October the Claimant spoke to Mr Aydan and said that he was feeling unwell after working for 12 days without a break and that he wanted to be able to go home “both for my own health and to be with my father who was seriously ill with pneumonia in his lungs.” He said that he wanted to go home on Friday after six pm. It was the Claimant’s evidence that Mr Aydan responded angrily that “black guys are lazy.”

[45]The Claimant also said that he told Mr Aydan that he “was feeling under the weather after working without a day off which would be concurrent weekends” and it was affecting his health, that they hadn’t had a single day off during this entire period and that there had been no communication about compensation. His evidence was that Mr Aydan responded at first “no days off” then doubled back saying that we would get “at most one day off” immediately followed with “lazy guys, black guys are lazy” . The Claimant says that Mr Makivich heard the conversation but pretended not to see or hear and walked by, and that Mr Eviri was also close by but had not noticed the conversation.

[46]Mr Aydan denies this conversation. He says he did not talk to the Claimant in any significant way on 19th October. Mr Makivich and Mr Aydan both said that Mr Makivich had not attended the exhibition stand on 19th October. Mr Eviri’s evidence was that no stage had the Claimant ever mentioned to him any racial comments by Mr Aydan.

[47]At 7.58 am on 20th October Mr Smith sent Mr Aydan a WhatsApp as follows “Ali, can we speak today. Just a heads up that I will need to support my family this weekend and will need to leave after the tradeshow this evening.”

[48]That WhatsApp does not suggest that there had been any prior conversation between the Claimant and Mr Aydan about the Claimant’s need to leave the conference. There is no reference in that WhatsApp to feeling ill, to his father’s illness or to working 12 days in a row. The reference to a heads up suggests that this topic had not been raised before.

[49]I do not accept the Claimant’s evidence as to the conversation on 19th October .

[50]Mr Aydan attended the exhibition at about 10 a.m. on 20th October. It was his evidence that the Claimant then came up to him saying that he wanted to go home that day and that, if he did not, his girlfriend would be very upset. Mr Aydan told the Claimant that his role was crucial, as Mr Gill was not there, and the company had spent a lot of money at the exhibition. Mr Aydan had then left the exhibition at about 1pm.

[51]The Claimant’s evidence was different. He says that following his WhatsApp he went to speak to Mr Aydan in the early afternoon and that Mr Aydan immediately said “I don’t know why you sent me a message I said no”. The Claimant’s evidence is that he then he reiterated the points he had made the previous day and said that his family needed him after having worked 12 days without a break, that his father was very ill suffering from pneumonia and he would need to leave at 6 to be with him. Mr Aydan’s response was to offer to pay for a nurse to care for his father and insisted that the Claimant should not leave. He said that if he did leave he should resign, as he would end the Claimant’s contract.

[52]On balance of probabilities I prefer the evidence of Mr Aydan. The WhatsApp message sent by the Claimant at 7.58 that morning does not indicate that he is ill or that his father is ill. It does not reference having worked 12 days in a row. It does not reference racist remarks. The WhatsApp indicates that the Claimant has made a decision to go home for reasons which he has chosen not to share other than a vague reference to supporting his family.

[53]Mr Eviri gave evidence that the Claimant had spoken to him on Friday 20th saying that he wanted to leave and go home. The Claimant had said nothing to him about racist remarks by Mr Aydan. Mr Eviri said that he had tried to persuade the Claimant to stay. He told the Claimant to persevere, and he was sure that the company would give them time off after the event. Mr Eviri told the Tribunal that did not want to be left alone at the exhibition as he had only just joined the Respondent, and Mr Aydan’s English was not so good.

[54]The Claimant then left the event about 5.30 and was given a lift home by Mr Chu.

[55]Mr Aydan called Mr Gill on Saturday 21st October in the morning asking him to attend the exhibition as the Claimant had left. Mr Gill therefore left his family and travelled to Telford. He tried to call the Claimant but got no reply.

[56]On Saturday evening Mr Gill and Mr Aydan discussed the Claimant’s behaviour. Mr Gill was of the view that leaving the exhibition amounted to gross misconduct.

[57]Mr Gill sent a WhatsApp to the Claimant on Sunday 22nd “what have you done Kash. I note it’s been a tough week but another couple of days and it would have been done. I wish you’d spoken to me before leaving”. The Claimant responded “yeah I wish you with there tbh, I know it would probably went a little different, John. It was difficult in the end but I couldn’t see past arguing the point I started feeling pretty unwell heading up didn’t even know how to speak to him” There is no reference to any alleged comment by Mr Aydan that “black guys are lazy”. There is no reference to his having asserted his right to a rest break.

[58]On Monday 23rd October at 8.42 the Claimant sent a WhatsApp message to Mr Aydan as follows “Ali sorry for the late text. I’m running super late. I’ve been under the weather last few days with a rough headache and intense pain in my gum. I wasn’t sure I could make it in today. I can update the website today and work on all the details. Is it possible to work from home on this? I had some delays and wasn’t sure what today would look like for me. Whether you would want me in or not.” There is no suggestion in that message that Mr Aydan had threatened to terminate his contract nor does the Claimant explain that he had left the exhibition because of the need for a rest break.

[59]Mr Aydan responded that he had decided to terminate his contract. “The decision was made after you left Telford”.

[60]At 13.16 the same day the Claimant sent a Grievance to Mr Aydan. In that grievance the Claimant complained about the recent work schedule. “I had been working tirelessly for 12 days without a single day off and expected to work 20 days straight. I believed it was essential to address this matter. While I understand the demands of our industry can sometimes require extended hours and dedication, the absence of any rest days has started to take a toll on my physical and mental well-being. This extended period without a break not only affects my work life balance but also hampers my ability to perform optimally in my role. I decided not to work this past weekend as a result. I believe that the break was necessary to address the fatigue and stress that has accumulated due to continuous work.” In addition, I'd like to bring to your attention that such continuous work without respite may not only be detrimental to my health but also potentially violates the employment regulations and guidelines set by the United Kingdom. In accordance with UK employment laws, employees are entitled to regular breaks, including rest days, to maintain a healthy work-life balance. I kindly request that you review the current scheduling practices and consider making necessary adjustments to ensure that all employees are provided with reasonable rest periods. This will not only benefit the well-being of the workforce but also enhance our overall productivity and job satisfaction.

[61]It is notable that the Claimant does not say that this had all been said to Mr Aydan on 19th and 20th while in Telford, or even that he had referenced a part of this complaint while at Telford.

[62]The grievance continues: “There have also been a few incidents where you have stated that “black guys are lazy” to which I am now inclined to understand that this has been linked to the issues highlighted in the email and the view of my work abilities.” He then refers to the unjust deduction of pay without warning and says that “This is a written confirmation of the grievances that have been discussed over the course of my employment.” However there was nothing in the Claimant’s witness statement which referred to any grievances which had been discussed previously. (In answer to a question from the Employment Judge the Claimant said he did not recall ever saying that he was complaining or raising a grievance and his reference to the previous grievances was to his having asked Mr Aydan why he kept saying “black guys are lazy” and Mr Aydan’s responding that this was because he’d had an office in Africa.) Fourth

[63]The Claimant was asked to come in to hand over equipment on Tuesday 24th. He responded that he had been legally advised to wait for a formal email before coming in, but would send in his login details for the various web platforms that were being used.

[64]On 24th October the Claimant was sent an email confirming the termination of his employment, effective 30 October 2023. In the meantime he was on gardening leave. He was instructed to come into the office on 25th October to return company property and handover work details, and that failure to do so would result in deduction from his pay The Claimant responded that his lawyer would be in touch.

[65]Mr Gill called the Claimant on 24th October. It was the Claimant’s evidence that during this call he mentioned to Mr Gill Mr Aydan’s comment “black guys are lazy” and that Mr Gill responded “well that doesn’t help”. The Claimant also said that Mr Gill then told the Claimant that both he and Mr Makivich had had a conversation with Mr Aydan after he has first said “black guys are lazy” and had addressed Mr Aydan about how inappropriate the comment was.

[66]Ms Wright gave evidence broadly supporting that account. She says that she could hear the conversation between the Claimant and Mr Gill. She says she heard the Claimant telling Mr Gill that Mr Aydan had said things such as “black guys are lazy” and Mr Gill “confirmed that he had said that and apologised on behalf of Amadeo”.

[67]Mr Gill denies this. He says he did not say any such thing. He denies that the Claimant said to him that Mr Aydan had said “black guys are lazy”. He says he made the call when he was in the office and Mr Aydan was there and in any event, as an experienced manager, he would not have made careless statements when someone had been terminated.

[68]On the balance of probabilities I accept Mr Gill’s evidence.

[69]The Claimant returned his mobile and external hard drive on 25 October 2023. He began early conciliation with ACAS on 26 October.

[70]Mr Aydan responded shortly to Claimant’s grievance on 1 November 2023 by email. He denied the comments attributed to him and said that they were contractually entitled to make the deductions to his salary because he had not fulfilled his contractual requirement of a minimum 40 hour week compounded by repeated instances of lateness. (223).

[71]On 30th October Mr Eviri emailed Mr Aydan stating that the Claimant had modified files in the various folders shortly before he returned the hard drive on 25 October 2023 and as a result nothing was in those files. He gave evidence to the Tribunal that this meant that files had been deleted shortly before the Claimant returned the hard drive on 25th October.

[72]On the instruction of Mr Aydan Ms Paulovich emailed the Claimant on 30th October asking for an explanation for the deletion of the files from the hard drive.

[73]On 1 November Mr Aydan told the Claimant that ,as yet not provided an explanation for the deletion of files from the hard drive, his pay would be suspended pending further investigation (240). The Claimant responded that he had not intentionally deleted any files from the hard drive and asked for details. The screenshots were then provided to the Claimant who responded that he had no recollection of intentionally deleting any company files.

[74]The Claimant presented a claim to the tribunal on 29 November 2023 following receipt of the early conciliation student on 27th November 2023. The law Dismissal for a prohibited reason

The law

[75]It is accepted that, as the Claimant did not have the requisite two years service, he was not entitled to bring a claim for “ordinary unfair dismissal”. He relies, however, on sections 104 and 100 of the Employment Rights Act 1996 which do not require two years’ service, and which provide that an employee is to be treated as automatically unfairly dismissed if the principal reason for his dismissal is one of the prohibited reasons.

[76]Section 104 provides that(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee – (a) Brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or (b) Alleged that the employer had infringed a right of his which is a relevant statutory right.

(2) It is immaterial for the purposes of subsection (1) – (a) Whether or not the employee has the right, or (b) Whether or not the right has been infringed; But, for that subsection to apply, the claim to the right and that it has been infringed must be made in good faith.

(3) It is sufficient for subsection (1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.

(4) The following are relevant statutory rights for the purposes of this section – … (d)The rights conferred by the Working Time Regulations

[77]Section100 (1) provides, so far as relevant, that an employee will be regarded as having been unfairly dismissed if the principal reason for his dismissal is that: (c) Being an employee at a place where – (i) There was no such representative or safety committee, or (ii) There was such a representative or safety committee, but it was not reasonably practicable for the employee to raise the matter by those means, He brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety; (d) In circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or (e) In circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger. Harassment related to race

[78]Section 40 of the Equality Act 2010 prohibits an employer from harassing its employees. Section 26 defines harassment as follows (1) A person (A) harasses another (B) if— (a)A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (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.

[79]In Richmond Pharmacology v Dhaliwal (2009 ICR 724)the EAT stressed that the Tribunal should identify the three elements that must be satisfied to find an employer liable for harassment:(i) Did the employer engage in unwanted conduct;

(ii) Did the conduct in question have the purpose or effect of violating the employee’s dignity or creating an adverse environment for him/her; and

(iii) was that conduct on the grounds of the employee’s protected characteristic. In this case if the remarks alleged to have been made were made, then they would plainly meet these criteria. Direct race discrimination

[80]Discrimination is prohibited in the employment field by s39 of the Equality Act 2010 which, so far as relevant, states: An employer(a) (A) must not discriminate against an employee of A’s

(b) (B) – (c ) by dismissing B; (d) by subjecting B to any other detriment. A ‘detriment’ arises in the employment law context where, by reason of the act(s) complained of, a reasonable worker would or might take the view that he or she has been disadvantaged in the workplace. Section 13 defines direct discrimination as follows:- “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favorably than A treats or would treat others. Race is a protected characteristic.

[81]Section 13 focuses on “less favourable” treatment. A claimant must compare his or her treatment with that of another actual or hypothetical person who does not share the same protected characteristic.

[82]In comparing whether the employee has been treated less favourably than another section 23 of the Equality Act provides that “on a comparison of cases for the purposes of section 13… there must be no material difference between the circumstances relating to each case.” Is not necessary for all the circumstances to be the same provided that the circumstances are materially similar. In other words for the comparison to be valid like must be compared with like. Burden of proof

[83]Proving and finding discrimination is always difficult because it involves making a finding about a person’s state of mind and why he has acted in a certain way towards another, in circumstances where he may not even be conscious of the underlying reason and will in any event be determined to explain his motives or reasons for what he has done in a way which does not involve discrimination.

[84]It is for this reason that section 136 sets out what is called a shifting burden of proof. It is for the Claimant to prove facts from which the Tribunal could conclude in the absence of any other explanation that the Respondent has contravened the Equality Act. Once the Claimant has shown these primary facts then the burden shifts to the Respondent and discrimination is presumed unless the Respondent can show otherwise . To discharge that it is necessary for the Respondent to prove on the balance of probabilities that his treatment of the Claimant was in no sense whatsoever on the protected ground.

[85]The bare facts of a difference in status and a difference treatment are not, without more sufficient to shift the burden of proof. The question is generally what inferences should be drawn from all the surrounding circumstances.

Conclusion

[86]This is a case that turns on the facts. I have to decide whose version of events is correct. The Claimant initially came across well in evidence but over the course of the cross examination various contradictions have thrown doubt on his credibility. On the balance of probabilities I have concluded that the remarks that the Claimant alleges were made by Mr Aydan were not made.

[87]The Claimant says that Mr Aydan said to Mr Makivich “Kash is always dirty”, that the comment was repeated several times during the call and l Ms Paulovich was present. He says that Mr Makivich would often disagree with him saying “no don’t say that” and Mr Aydan would reply “everything about Kash is dirty.” The Respondent’s witnesses deny making or overhearing such statements.

[88]There is no documentary record support those remarks. At these remarks would be truly shocking yet the Claimant does not complain to Mr Gill or Mr Makivich and there is no reference to this remark in the grievance which he sent immediately after his dismissal. He does not tell Mr Eviri, and there are no contemporaneous WhatsApp messages to Mr Keating, a friend or anyone else reporting what is alleged to have been said. I conclude the remarks were not made.

[89]There is also no documentary evidence to support the Claimant’s evidence as to the remarks which the Claimant alleges were made on a call with Mr Makovich on either 6 or 13 September. The blip records support the Respondent’s case that the Claimant was not at work on 13 September. The Claimant’s evidence that he had confronted Mr Aydan and asked him why he always said such things and Mr Aydan told and that he – once had an office in Africa and the guys there were lazy does not ring true. This rather important allegation is not in the Claimant’s particulars of claim or his witness statement and Mr Aydan denies having worked in Africa.

[90]Mr Keating told the Tribunal that the Claimant had telephoned him to obtain advice on how to deal with it because Mr Keating was a Football Association referee and had to “deal with staff and do a safeguarding course” Mr Keating told him to record the incidents dates and times.

[91]I did not find Mr Keating a reliable witness. He was (justifiably) clearly furious about his treatment by the Respondent. His evidence that Mr Aydan would treat the Claimant and Mr Eviri “like dirt” was refuted by Mr Eviri who told the Tribunal that he works from home, and he had only met Mr Keating once in the office at the training. It is also perhaps surprising that the Claimant chose to phone Mr Keating, a sales manager, who was very rarely in the office rather than speaking either to Mr Gill who was in the office twice a week or to Mr Eviri, who also black.

[92]In cross examination the Claimant also said that Mr Eviri had called him after he had been dismissed, because he (Mr Eviri) was upset about the way Mr Aydan was treating him. The Claimant had told him that Mr Aydan had said “black guys are lazy” and Mr Eviri had responded “I don’t care about that stuff I know you are going to court”. Mr Eviri strongly denied this. He said that the Claimant had not been telling the truth. The Claimant had contacted him on LinkedIn, and he had called him back but denied the conversation alleged by the Claimant.

[93]I have preferred Mr Eviri’s evidence, who also denied that he had heard seen or felt any racism on the part of Mr Aydan

[94]In the WhatsApp exchanges with Mr Gill on 22nd October the Claimant does not reference that Mr Aydan had said to him “”black guys are lazy”. Instead he says that he started feeling unwell “and he “just felt like I couldn’t speak to him”.

[95]In his grievance, sent on the day that he received his letter of termination, the Claimant says that there had been “a few incidents where you have stated black guys are lazy”- – there is no suggestion that this statement had been made on 19th October just a few days previously. Given that the Claimant had just been dismissed it is surprising that the Claimant had not referred in more detail to this allegation or and to the allegation that he had been called “dirty”.

[96]In cross examination the Claimant said he had not challenged Mr Aydan either about his racist remarks or about (untrue) criticisms made in the letter sent to him on 1 September and 5 October because Mr Aydan was a control freak, he was in fear of losing his job and it was a toxic working environment. However in his witness statement the Claimant says that he did ask Mr Aydan about the 5th October email and that Mr Aydan had responded “that he had to send it because it was important that everyone in the company follow directions. He asked if he didn’t how would it look? Ali was never confrontational face-to-face; he was only confrontational by email.” The blip records, showing the Claimant’s working hours after 1 September, do not indicate that the Claimant was living in a climate of fear as his timings continued to be inconsistent. Ms Paulovich accepted the criticisms were true and I find it unlikely that the Claimant would have responded as he did if the criticisms made did not apply to him.

[97]While it is correct that the Respondent’s witnesses may feel obliged to support their employer, I do not accept that all of them have lied. Mr Eviri is black, and was very clear that he would not support racism and could easily find another job.

[98]On the balance of probabilities therefore I find that Mr Aydan did not make the comments alleged. I find he did not refer to the Claimant as dirty and did not repeatedly say that black guys were lazy. The Claimant’s claim for harassment therefore fails on the facts.

[99]There is also a conflict of fact as to what the Claimant has said about needing to go home on Friday 20th October. The Claimant’s evidence about what he said about needing to go home on Friday 20 October is inconsistent with the WhatsApp message he sent at 7:58 a.m. that morning. I therefore do not accept his evidence that he told Mr Aydan on 19th October that he was “feeling under the weather after working without a day off which would be concurrent weekends and that it was affecting my health”. I do not accept that he said he was feeling unwell after working for 12 days without a break and that he wanted to be able to go home for his own health and to be with his father or that he said it wasn’t right that we haven’t had a single day off during the entire period. Those statements inconsistent with his WhatsApp sent early on 20 October. They are also inconsistent with the WhatsApp sent to Mr Gill “I just felt like I couldn’t speak to him…”

[100]I therefore find he did not make any assertion of a statutory right.

[101](For the avoidance of doubt I accept that if the Claimant had said what he alleges he said to Mr Aydan as to the need to go home that would have amounted to the assertion of a statutory right to a rest break.).

[102]It also follows that he was not dismissed because he “brought to his employer’s attention by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety.”

[103]I am satisfied that the Claimant was dismissed because he left the Telford exhibition without permission.

[104]It cannot sensibly be argued that the Claimant left Telford “in circumstances of danger which he reasonably believed to be serious and imminent” such that he was dismissed for a health and safety reason contrary to section 100.

[105]It is also the Claimant’s case that the Claimant was dismissed on the 23 October 2023 based on the racial stereotype that black people were lazy. Had Mr Aydan made the remarks alleged the only inference to be drawn would have been that the Claimant’s dismissal was an act of direct race discrimination, notwithstanding that he had left without permission. However Mr Aydan did not make the remarks alleged, and the Claimant left the Telford exhibition despite direct instruction not to do so. There is no other material before me from which I infer that his dismissal was influenced by the Claimant’s race. The decision was taken by Mr Aydan, but Mr Gill also thought it was an act of direct disobedience. Mr Aydan failed to follow any fair or proper procedure before dismissing the Claimant, but unfairness is not the same as less favourable treatment because of race. Mr Keating, who is white, was treated in a similarly highhanded fashion.

[106]As Mr Stephenson rightly concedes had the Claimant had two years service he would have won, hands down, a claim for ordinary unfair dismissal. However he did not have two years service and was not dismissed for a proscribed reason.

[107]Wages. Although the Respondent withheld the whole of the Claimant’s October salary on the basis that he had deleted files they now concede that he should be paid his October salary less £395.51. It is the Respondent’s case that they are entitled to deduct this amount this from the Claimant salary on the basis that his blip records from 1 September to 20th October show that the Claimant logged 260.5 hours rather than 288 hours.

[108]I do not accept that the Respondent has any right to deduct this amount from the Claimant wages. The Claimant was not an hourly paid employee. His contract specifically provided that he would not be paid for hours worked above his contractual requirement. If the Claimant was not complying with his contracted hours the proper way to deal with it would be through the disciplinary process. Nor do I accept that Claimant’s email of 1 September, in which he said he was “happy to adhere to the hours are stated in the contract and to use the blip”, amounted to acceptance by him that his contract had been varied and that he would be paid in accordance with the hours that he logged on the blip app. Agreeing to adhere to the his contract and to use the blip is not an acceptance or an authorisation that the Respondent could simply deduct a notional hourly rate from his salary if he did not work 40 hours a week.

[109]The Respondent is therefore ordered to pay the Claimant his October salary amounting to £2,917 (331)

[110]Holiday pay. The Claimant was entitled to 28 days holiday per annum including bank holidays. His pro-rata entitlement was therefore 16.69 days He had taken 10 days leave and six public holidays. He had worked one weekend for which he was entitled to time off in lieu. He is therefore owed three days pay for holiday accrued but not taken amounting to £403.86.

[111]Uplift. Section 207A of the Trade Union & Labour Relations (Consolidation) Act 1992 provides that a Tribunal finds that there has been a failure by the employer to comply with a relevant Code of Practice the Tribunal may, if it considers it just and equitable in all circumstances to do so, increase any award it makes to the employee by no more than 25%.

[112]There was a wholesale failure by the Respondent to comply with the ACAS code on Disciplinary & Grievance procedures, which applies to all employees whatever their length of service. The Claimant was not informed of the charge and there was do disciplinary process. The Respondent also failed to deal with his grievance when it was submitted. I considered whether it would be just and equitable to increase the award in circumstances where the Claimant has brought a claim based on untruths. However these deductions ant the failure to comply with proper processes predated the Claimant’s claim and the fact that Mr Aydan had failed to take any employment advice cannot be a justification for these failures. Accordingly, I consider it just and equitable to increase the award made to the Claimant by 25%.

[113]The awards relating to unpaid wages and holiday pay are made gross. If, and to the extent that, the Respondent is required to and makes deductions on account of tax and national insurance, and accounts therefore to the tax authorities the net amount shall be treated as a valid discharge of this Judgment.