Miss Sahra AbdiClaimantCurrie Motors UK LimitedRespondent
Before
Employment Judge E FowellDate 28 February 2025
JUDGMENT
The unanimous decision of the Tribunal is as follows:[1]The complaint of constructive dismissal is upheld.[2]The complaint of harassment on grounds of race is upheld.[3]The complaint of discrimination on grounds of race is dismissed.[4]The complaint of victimisation on grounds of race is dismissed.[5]There was no unlawful deduction from wages.[6]The claimant is awarded compensation for unfair dismissal of £18,521, comprising:(a) a basic award of £2,320(b) a compensatory award of £16,201 Page 1 of 23[7]The Employment Protection (Recoupment of Benefits) Regulations 1996 apply as follows(a) The total monetary award (i.e. the compensatory award plus basic award) payable to the claimant for unfair dismissal is £18,521.(b) The prescribed element is £15,701. (This does not include the basic award or loss of statutory rights)(c) The period of the prescribed element is from 1 November 2022 to 6 July 2023.(d) The difference between (a) and (b) is £5,140.[8]The claimant is also awarded damages for injury to feelings in respect of harassment in the sum of £2,000 plus interest of £320, amounting to £2,320.[9]The overall amount awarded therefore is £20,841.
REASONS
[1]These written reasons are provided at the request of Miss Abdi. For some reason there was a delay in issuing the original judgment, which was sent out on 13 February 2025. Written reasons were then requested on 26 February and the request came to me today.[2]By way of background, Miss Abdi worked for the company as an administrator until her resignation on 1 November 2022. She says that there was a history of events which lead to that decision but the immediate cause was that she had a car accident in a company vehicle, in fact two accidents in the space of a few months, for which she was given a final written warning. She felt that the incident was treated too harshly and resigned with immediate effect.[3]There had also been some earlier events, going back to 2019, which she relies on as examples of unfair treatment or of harassment or discrimination as a black woman, or of victimisation for complaining about these matters. Lastly, she brings a claim for unlawful deduction from wages.[4]The issues to be decided were set out in the case management orders made at the preliminary hearing on 1 December 2023 and we will work through them in due course. Page 2 of 23 Procedure and evidence[5]We heard evidence from Miss Abdi, and on behalf of the company from:(a) Mrs Hannah Bicknell, HR Director;(b) Mrs Kate Davy, now the Group Financial Accountant, who was Miss Abdi's line manager;(c) Mr Vince Ellis, General Manager at one of the branches, who is alleged to have shouted at Miss Abdi over the phone; and(d) Mr Lee Ferguson, Finance Director, to whom Miss Abdi complained about Mr Ellis.[6]A short statement was also provided Ms Maria Rowe, the Payroll Manager, who did not attend to give evidence. She had taken the notes of the disciplinary hearing which led to the final written warning and her evidence was to the effect that the hearing was conducted fairly and that the sanction was not unusual. The conduct of the hearing was not disputed and we had documentary evidence of the outcomes in similar cases so we did not need to place any particular weight on this statement.[7]The documents were set out in a bundle in two parts, totalling 371 pages. Having considered that evidence and the submissions on each side we make the following findings of fact. Not every point is dealt with, only those necessary to deal with the issues and to support our conclusions. Where other members of staff are mentioned, those who are not witnesses or closely involved in the case, we will generally just give their first names, unless there is some particular reason to identify them by name. Findings of Fact
Background
[8]Currie Motors UK Limited is a family-owned Toyota & Lexus dealer. It has four dealerships - three for Toyota in Kingston, Twickenham and Brentford and one for Lexus, also based in Twickenham, their Head Office. They employ about 200 people.[9]Miss Abdi joined them in February 2018 as an administrator, working in Brentford. That work involved raising the financial and other paperwork for each sale and sending it on to Head Office, who would then make sure that the car was properly registered with DVLA.[10]In early 2019 she moved to the Head Office and her job title changed to Sales Administrator. She was then involved in checking the paperwork that came in from Page 3 of 23 the branches and dealing directly with DVLA. Following some negotiation, her salary was increased by Mrs Bicknell from £20,000 to £24,000, £1,000 more than originally offered. She was also given a company car.[11]As a car dealership the company obviously has many vehicles at its disposal. Some are used as demonstrators as part of the sales process, and staff are allowed to make use of them and take them home. Eventually these cars are sold on. In the meantime, the company makes sure that any repairs and maintenance are carried out in its own workshop or body shop. In that way they can make sure that the car is properly maintained and can keep the repair work in house.[12]Because they have this facility, they have a very high insurance excess. Only if the damage exceeds £5,000 do they need to refer it on to their insurance company. The down-side of that is that whenever a member of staff has an accident it can be costly for the company, even allowing for the fact that the work is done internally.[13]They have another type of scheme whereby cars can be provided for use by a family member, known as CBS or Car Benefit Scheme. Under this arrangement, the employee reaches an agreement with CBS, who are a third party, and the company deducts the monthly rental payments from their wages. Miss Abdi had a demonstrator, a Toyota Yaris, and another car through CBS – firstly a Toyota Aygo, which she had for six months from March 2022, and then a Toyota C-HR.[14]In her new role at Head Office, the Sales Admin team consisted of the Sales Admin Manager (Mrs Kate Davy), a Supervisor (Michelle), Miss Abdi herself, and two apprentices. Mrs Davy reported in turn to Mr Lee Ferguson, as Finance Director. Mrs Bicknell, as HR Director, was at the same level as Mr Ferguson. Hers was a smaller team however, comprising an HR Co-ordinator (Carla) and the Payroll Manager, Ms Rowe.[15]The accidents which Miss Abdi had in her car took place in June and October 2022, over three years after her move to Head Office. Miss Abdi has raised a number of incidents covering that period but they are widely spaced. There is little complaint about events in 2020, which was seriously disrupted by Covid, and no complaint at all about events in 2021. And none of these earlier events were mentioned in her resignation letter. We will therefore deal quite briefly with them. The Row with Usman[16]Usman was a Business Manager at Brentford where Miss Abdi had been working. They did not get on particularly well. In March 2019 they had an email spat about a car which had been sold before the paperwork had been completed to register it with DVLA. He blamed her and she felt, with some justification, that this was not her responsibility. (We heard from Mr Ellis that this was for the branch to sort out.) Page 4 of 23 Whatever the rights and wrongs of the matter, their exchanges became hostile. She wrote to him on 28 March to say: “I do not appreciate your tone, Let’s get something clear here, I was in NO rush to register this vehicle. I did not force you to sign a taxing confirmation and set up insurance YOU did that, but somehow it is all my fault and the customer is upset. I let it go yesterday when you were implying that I’m incompetent, but you really need to change your tone when dealing with me. I have NOT invoice this vehicle because I do not trust that you will not do the handover”[17]There was more in the same vein and Usman forwarded it to Mrs Bicknell as an example of unprofessional behaviour, emphasising the words about a lack of trust. Mrs Bicknell then had Miss Abdi in for a meeting and told her that this was not acceptable. She did not exclude Usman from her criticisms but they were mainly directed at Miss Abdi, and they were both told to move on and work together professionally [87].[18]There is no record of any allegation of sexist behaviour by Usman in all this. If there had been, we see no reason why Mrs Bicknell would have shied away from mentioning it. She was happy to deal head-on with a similar allegation later on. So, we do not accept that this was raised by her at the time, or that any such concern was ignored.[19]As a general point, there is no written record of any complaint or concern from Miss Abdi during her employment, which of course makes it very difficult to know with any confidence what was said so long ago. The first and only statement of that sort is her resignation letter. Sexual harassment by Nathan[20]The next incident, chronologically, is an allegation of sexual harassment against another manager, Nathan. In her claim form, and in the case management order, she said that this began in December 2020 but on reflection she said it must have been December 2019, because it began at the Christmas party and there was no such party in 2020 because of Covid.[21]It is difficult to know what to make of this allegation, since Miss Abdi withdrew her claim of sexual harassment at the preliminary hearing on 1 December 2023. Nevertheless, it remains in the list of issues as one of the events leading to her resignation.[22]We know that it was never raised at work, and only came to the attention of the company in detail at that preliminary hearing. Mrs Bicknell then interviewed Nathan on 5 December 2023 about it, about four years later. Page 5 of 23[23]The allegations were mainly about sending images or messages and Miss Abdi says that it did not continue after a certain point, which she puts in her claim form at April 2022. That was about six months before she left. He said, when interviewed, that it had been mutual and that she had encouraged him to send things to her. Whatever the truth of the matter, we are satisfied that it played no part in her decision to resign and so it is not something we need to resolve as part of her claim. Phone call with Vince Ellis[24]The next allegation concerns a telephone conversation on 31 January 2020 with Mr Ellis, when it is said that he shouted at Miss Abdi and was abusive to her over the course of a phone call lasting 11 and a half minutes. She is confident of this because she took a picture of the call details on her phone and went to see Mr Ferguson about it, the Finance Director. We do not have that photograph now. There was no written complaint about it and it did not generate any email traffic. Neither Mr Ferguson nor Mr Ellis could recall it in their evidence. We put some weight on that because Mr Ellis was supportive of her when she had her final written warning, and his view was that although they had various conversations when they were at loggerheads, as with the dispute with Usman, it was never abusive and she would have spoken up if she felt he was overstepping the mark. We also heard that Miss Abdi generally went to Mr Ferguson with any work issues (over the head of Mrs Davy) and so they too continued to have a good working relationship. Overall, we cannot be satisfied at this distance in time that there was anything untoward on that occasion. Pay issue[25]At around the beginning of July 2020 Miss Abdi saw an advert on a recruitment website (Indeed) for a Sales Support Administrator at the company. One year’s experience was required. The salary was £22,000 to £24,000, depending on experience. Miss Abdi, who was on £24,000 a year, shared this with a colleague, Ana, who worked at the Great West Road branch. She was on £20,000. Ana then applied for a pay rise, and was awarded an extra £2,000. She was the only one in the company to get a pay rise that year, which was affected by the pandemic. The letter from Mrs Bicknell awarding the raise [96] referred to it as recognition of the extra responsibilities she was undertaking.[26]Miss Abdi also felt put out. This was a role in branch, whereas she worked across several branches and had more experience. She spoke to Mr Ferguson, who said he would speak to HR, but nothing came of it in her case. The following year, 2021, she had a pay rise to £26,000 and then a further rise in 2022 to £26,813. Alleged racist comment Page 6 of 23[27]On 8 October 2020 there was an incident involving Miss Abdi and her manager Mrs Davy. Mrs Davy had been having difficulty with a manager at another branch, Michael, who is black. She felt that he ignored her and was resentful of any instruction from her. She tried to get him on the phone but, as previously, he did not or would not pick up. So, she went outside to the area where Miss Abdi and Michelle worked, and asked Miss Abdi if she could call him instead, on the basis that he would generally co-operate with requests from her. According to Miss Abdi, she said words to the effect, “you people understand each other”.[28]In her witness statement, Mrs Davy accepts that she said words to the effect, “can you ask him, he seems to have a problem with me, I don’t think he approves of white women in senior positions.” The reference to white women, not just women, makes clear that there was a racial context to the remark.[29]Mrs Davy account goes on to say that both Miss Abdi and Michelle came into her office afterwards and Miss Abdi said that she did not appreciate being asked to contact Michael in that way and that they both felt she had been racist. Mrs Davy became upset and apologised immediately.[30]Miss Abdi did not let it go. She went to see Mrs Bicknell about it, the HR Director, and so we have some further record of the discussion. Mrs Bicknell arranged to speak to Mrs Davy and made some notes in advance [108]. Those notes record that Miss Abdi complained about the comment being racist, that she was asked to call him because she was black and that Mrs Davy had done so because she felt there was ‘some sort of code’ between them. The notes record that Mrs Davy, when spoken to, said that she had apologised at the time, that she did not mean to offend Miss Abdi and that she would go and apologise to her again.[31]That was how things were left. The company was about to go into another lockdown and Mrs Bicknell did not have time to follow things up as she normally would. Miss Abdi did not raise or refer to the matter again, and they carried on working together after that with no real difficulty. Holiday issue[32]Shortly afterwards, Mrs Davy had to let Miss Abdi know that she needed to take her holiday before year end and could not roll it over into next year. During Covid, staff on furlough were encouraged to take their holiday rather than save it up. Miss Abdi would have preferred to roll it over but her position was no different from many others. This was in late 2020. Nothing then happened over the whole of 2021 that caused Miss Abdi any concern, save, arguably, for ongoing contact from Nathan from time to time. Flexible working request[33]On 22 February 2022 Miss Abdi made a request to go down to three days a week. Page 7 of 23 She wanted this to be a temporary change, for three months, because of increased demands in her family life. Mrs Bicknell replied the next day and they had a meeting on 28 February. Mrs Bicknell felt that going down to three days was too much and she sent an outcome letter on 2 March 2022 [116] refusing the request but offering instead a reduction to four days. Miss Abdi took a couple of weeks to respond but came back with a proposal to work three days a week in the office and one day from home, which was then accepted. It was agreed in principle on 23 March and confirmed by letter the following week. Her salary was adjusted accordingly.[34]As so often, this was a mixed blessing. No particular steps were taken to reduce her workload and she was kept very busy. Those demands were compounded by the introduction of a new computer system that summer, which involved a day’s training for her and the other members of staff. She and others found it difficult to operate at first, so all in all it was a very busy period for her. First car accident[35]On 29 June 2022 Miss Abdi had an accident in her Toyota Yaris. She did it while she was parking and reversed into a bollard. That meant completing one of the company’s standard accident forms (222) and the car went into the body shop for repairs. She heard no more about it.[36]The process in such cases is that the body shop makes a report to Mrs Bicknell or her HR team about such accidents and they take such action as they think appropriate. On this occasion the body shop manager, Raj, estimated the cost of repairs as over £2,500 including VAT. Second accident[37]Then, on 11 October 2022, Miss Abdi had a further accident. This time it was in the car park at work and she damaged a car belonging to Carla, one of the HR team. One of Miss Abdi’s wing mirrors was badly damaged. This time the overall bill was over £3,000 and when it came to the attention of Mrs Bicknell, she decided that it warranted disciplinary action. She wrote to Miss Abdi on 17 October [127] to invite her to a disciplinary hearing. The letter stated: “The purpose of the meeting will be to discuss the allegation of gross careless / negligent conduct whilst driving a company vehicle, resulting in 2 own fault accidents in less than 4 months. The cost of repair amounting to £3270.15. … This conduct, we believe to be wholly unsatisfactory when viewed in the light of our policies, rules and standards. This matter is considered very serious and can carry a sanction up to and including summary dismissal.” Page 8 of 23[38]She also quoted from the employee handbook, to the effect that they reserved the right to hold employees liable for repair costs or to withdraw their use of the company demonstrator. Disciplinary hearing[39]The meeting was just two days later, on 19 October 2022. Ms Rowe was there as the notetaker but Miss Abdi was not accompanied. Miss Abdi argued about the cost of the repairs, which she thought could have been done for much less somewhere else, and said that some damage to the car door had been done in the body shop, relying on photos she had taken at the time. Mrs Bicknell went off to investigate this but having done so she was unable to say where the extra damage had been caused. It was worth £701 and she did not feel it made any difference to the outcome, which was to give Miss Abdi a final written warning, valid for 12 months, and to impose what amounts to a fine of £300 - £150 for each accident.[40]This was, strictly, a deduction in respect of the company’s losses, given that they incurred the repair costs, and was justified on the basis of a document signed by Miss Abdi when she started in 2018 [79]. That allowed for: “The deduction of any losses associated with employment and any misconduct proceedings.”[41]The final written warning letter [135] stated that she had been guilty of gross carelessness / negligence and could have been dismissed. It ended: “You have the right, if you wish, to appeal against the decision to give you a final written warning. If you wish to appeal, you should do so in writing within five working days of the date of this letter to Maria Rowe. Your written notice should state the grounds for your appeal.”[42]That caused some confusion since Maria Rowe was the notetaker at the hearing and clearly junior to Mrs Bicknell. The intention was that she would co-ordinate the appeal, not hear it herself. That is what the disciplinary policy provides. Miss Abdi rang Ms Rowe to clarify, but somehow came away with the understanding that Ms Rowe was indeed the “appeal officer”. Ms Rowe, like Mrs Bicknell, had been with the company for many years, and knew how the process worked, so there is no reason why she would have said or thought that she would actually be hearing the appeal. However, that was Miss Abdi’s understanding, and so she felt that there was no point in appealing: Ms Rowe was not in a position to overturn a decision by Mrs Bicknell. Afterwards[43]Two days later, Mr Ellis called Miss Abdi and asked her if it was true that she had Page 9 of 23 received a final written warning. According to her witness statement he was scathing about the decision and expressed himself forcefully about it. He also told her not to let it stress her.[44]Somewhat remarkably, Mrs Davy, Miss Abdi’s line manager, was unaware of all this. Nor was her manager, Mr Ferguson. Mrs Davy only found out when Miss Abdi told her, on 31 October. That was after the call from Mr Ellis. Before then, Miss Abdi had kept it to herself and was in fact annoyed that Mr Ellis had been able to find out. However, in a firm of that size, and given that it involved an accident to two cars in the firm’s car park, it does not seem surprising that this leaked out.[45]When Mrs Davy came to know about it, she asked Miss Abdi what she was going to do. Miss Abdi said that she felt she had no choice but to resign. There might have been a degree of pride involved in that statement. She had not definitely decided to go but she may have felt that there was no harm in Mrs Davy thinking that she might. However, Mrs Davy took that as a declaration that she was resigning. She went off to speak to Mrs Bicknell about it. When she came back she went straight back into her room, saying nothing. Later on, when she saw Miss Abdi at the photocopier, she came over and, instead of asking for a quiet word or suggesting she reconsider or submit an appeal, she just asked what she was going to do about the car – meaning that she would need to return the car if she was leaving. That lack of a more concerned response from her manager is relied on as the final straw here, and the next day Miss Abdi submitted her resignation. It is at page 136: “To whom it may concern; I would like to notify you of my decision to resign. I feel the pressure of the job along with the hostile environment created daily by some senior management director has left me with no choice, but to resign. It is one thing to cope with every day stresses from sales but another to be subjected to constant bullying from some managers that are allowed to exercise their “power” with impunity. I feel Hannah Bicknell has a personal dislike for me, if I have a genuine concern she is dismissive but if any one regardless of title, so much as mentions me and an issue in the same breath I am summoned by her. I have had some many unfair demands and remarks from Hannah. Anna Bicknell is not just an employee of Currie Motors but the HR director, this isn’t someone I can go and report to someone more senior and the unjust ‘final written warning’ issued is the main reason for this decision, creating job insecurity for an accident as the company has pushed me out of this job. Page 10 of 23 Since the 19th of October I feel like my level of anxiety increased as a direct result from the disciplinary because of the unfairness in both, the process and outcome. My wellbeing is paramount. It enables me to have a balance and stable quality of life which this has impact detrimentally. I cannot work my notice because of the effects this has had on my mental health. I have struggled immensely. Self preservation is my only choice today. I will return my demo today, as for the CBS I cannot return it until Friday as it is not in my possession and unable to do so. I’m deeply saddened by the overall chain of events that got me to this point, however I’m grateful for meeting so many incredible individuals during my time at Currie Motors.”[46]Before concluding our findings of fact, we had evidence in the form of a table about other members of staff who had been disciplined for driving matters. It is confined to those disciplined from the start of Miss Abdi’s employment and includes some from 2023. There were 11 other cases in that period. In each case the process involved a disciplinary hearing with Mrs Bicknell rather than someone in the line management chain. Indeed, the standard practice was that the line manager was not even informed.[47]The table also records the fines or deductions imposed. This sanction was introduced in October 2020, although it does not appear that it was announced or made known to company car users. Mrs Bicknell explained that her approach was always to impose a fine where the accident was their fault and it was usually £150. There was only one other fine of £300, where the damage had been particularly severe – costing over £5,000 to repair.[48]The table shows that three members of staff were actually dismissed, two in late 2020 and one in 2018. Mrs Bicknell explained that she did not fine them because dismissal was punishment enough, something which underlines the punitive nature of the deduction. There was one further exception, a director called James, who was not on the list and who avoided a fine. In his case, the justification was that one accident was not his fault and in the other case it involved a collision with a more junior colleague and he decided to take responsibility to shield the more junior person. We struggled with that rationale, but we accept that directors of the business cannot simply be fined or dismissed by a fellow director in the same way. Constructive dismissal[49]Turning to the applicable law, we will deal first with the claim of constructive dismissal. Constructive dismissal is not in fact a term used in the Employment Rights Act 1996, but section 95(1) gives the legal definition of a dismissal, and it includes where: Page 11 of 23 (c) … the employee terminates the contract under which [she] is employed (with or without notice) in circumstances in which [she] is entitled to terminate it without notice by reason of the employer’s conduct.[50]So there have to be circumstances justifying the employee in downing tools and walking out. In legal terms, there has to be a fundamental breach of contract by the employer. In cases of constructive dismissal that usually means a breach of what is known as the implied duty of trust and confidence. According to the House of Lords in the case of Malik v BCCI [1997] UKHL 23 that happens where an employer conducts itself: “… without reasonable and proper cause, in a manner calculated or likely to destroy or seriously to damage the relationship of trust and confidence”.[51]Or as Wilkinson J. put it in Woods v WM Cars (Peterborough) Ltd [1981] ICR 666, whether “the employer’s conduct as a whole … is such that its effect, judged reasonable and sensibly, is such that the employee cannot be expected to put up with it.”[52]Often, as here, there is a final straw that causes the employee to resign. A person may put up with difficulties for a while until there comes a point when they are not willing to do so any more. The fact that they have put up with it so far is not a defence. This was the main lesson to be drawn from the Court of Appeal decision in Kaur v Leeds Teaching Hospitals NHS Trust [2019] ICR. Underhill LJ held that the questions were:(a) what was the most recent act (or omission) on the part of the respondent which the claimant says caused, or triggered, her resignation?(b) has she affirmed the contract of employment since that act (or omission)?(c) if not, was that act (or omission) by itself a repudiatory breach of contract?(d) if not, was it nevertheless a part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of the implied term of trust and confidence? (If it was, there is no need for any separate consideration of a possible previous affirmation.)(e) did she resign in response (or partly in response) to that breach?[53]Then, in the well-known words of Lord Denning MR in Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 CA: “The employee must make up [her] mind soon after the conduct of which [she] complains: or if [she] continues for any length of time without leaving, [she] will lose her right to be treat [herself] as discharged.” Page 12 of 23
Conclusions
[54]We have looked at the resignation letter, which focusses on the final written warning, and we have looked at the earlier events. As we have already noted, many of them were much earlier, and of a very different kind. In some cases, as in the dispute with Usman, or the decision that she could not roll over her holiday, or the handling of her flexible working request (which she suggested was unduly formal and delayed) we can see no cause for complaint. The same applies to her request for a pay rise. In other cases, such as the allegation that she complained about sexist behaviour by Usman, or that Mr Ellis shouted at her, we are not satisfied on balance that it occurred at all. The allegation of sexual harassment by Nathan was hardly explored at this hearing, and on any account was over some time before the disciplinary action, so we cannot see its relevance to the claim of constructive dismissal. We certainly do not accept that Miss Abdi was reluctant to raise it at work because of a lack of confidence, and her complaints about racial harassment had been addressed, albeit informally. The complaint about the comment made by Mrs Davy is an outlier, in that there is clear and contemporaneous evidence that it occurred, and also that it was raised and dealt with. There is no suggestion that it poisoned relations between the two of them, or even had a lasting effect. Again, it was two years before Miss Abdi resigned.[55]In those circumstances, and given the terms of the resignation letter, we approach this case on the basis that the final straw was the reaction of Mrs Davy on 31 October and that the potential fundamental breach was the final written warning (and fine). On that basis, it was accepted by the respondent that Miss Abdi resigned promptly. Nor was there any real suggestion of another reason for her resignation.[56]The main question then is whether the final written warning was a fundamental breach of contract. Having looked carefully at the circumstances, and in particular at the company’s disciplinary policy, we conclude that it was. The policy is at page 69. It gives examples of misconduct and these are then contrasted with examples of gross misconduct. The first example of misconduct is “carelessness or negligence in carrying out duties”. It goes on to list similar issues like persistent lateness, unauthorised absence, or even failure to meet targets. (That last item is particularly surprising as they have a separate performance policy.)[57]Then, in the section headed Gross Misconduct, it states: GROSS MISCONDUCT Gross misconduct is misconduct of such a serious and fundamental nature that it breaches the contractual relationship between the employee and the Company. In the event that an employee commits an act of gross misconduct, the Company will be entitled to terminate summarily the employee’s contract of employment without notice or pay in lieu of notice. Page 13 of 23 Matters that the Company views as amounting to gross misconduct include (but are not limited to): …[58]It then lists various offences including theft, dishonesty, falsification of records, fighting, extreme rudeness, sexual misconduct at work and other serious offences. The item which is relied on by the company in this case is: 7. Gross negligence or carelessness resulting in damage to the companies or customers vehicles or property which could result in death or injury or serious financial loss.[59]We can only interpret the opening words to mean “gross negligence or gross carelessness”, otherwise any carelessness could be described as gross misconduct. Mere carelessness is cited an example of ‘ordinary’ misconduct, although few people would in fact equate the two, in the absence of some other or aggravating feature. So, we can see no basis for these accidents being regarded as either gross carelessness or gross negligence, and that was never explored in the disciplinary hearing. All that was established was that Miss Abdi was the one at fault, having reversed into a bollard and then scraping against another car trying to get out of a tight space in the company car park.[60]In making sense of this wording, and judging how seriously to treat a particular incident, it is also important to look at the other examples given. Is it on a par with fighting or theft or fraud, in which case it is fair to judge it as gross misconduct, or is it on a par with lateness, or unauthorised absence? In this case, that comparison strongly indicates that these two accidents ought not, applying the company’s stated policy fairly, to have been regarded as gross misconduct at all.[61]That view is reinforced by the opening words in the second section that gross misconduct is of such a serious and fundamental nature that it breaches the contract.[62]Clause 7 goes on to refer to carelessness causing damage or loss to the company’s vehicles, but it does not follow that any such accident in a company vehicle is gross misconduct. Those words are qualified, and heavily qualified, by the ones which follow, “which could result in death or injury or serious financial loss”. A very literal interpretation might be that repair costs of this size amount to serious financial loss, but those words suggests to us a very serious accident. That is consistent with our interpretation of the opening words, that gross or serious negligence has to be shown.[63]We take the view therefore that it was wrong, and not in accordance with the policy, to have treated this as potential gross misconduct. Miss Abdi should not have been sent a letter raising the prospect of summary dismissal, and she should not have had such a serious sanction imposed. That is not us imposing our view on the company of how seriously to take such incidents, it is our view of a fair Page 14 of 23 reading of the company’s own policy.[64]In considering whether this was a fundamental breach, one has to consider the effect on Miss Abdi. Firstly, she was not aware that others had been given warnings or even dismissed in similar circumstances. As far as she knew, this was totally unexpected. Suddenly, her job was on the line. Another bash in the car park and she would be out of a job. Then there was the brisk nature of the exercise, and the fact that it was conducted without even the knowledge of her manager. That left her in a very isolated position. People expect a degree of recognition and appreciation for their work. We accept that she worked hard and took pride in her work. She was not employed as a driver. The underlying message given by this sanction was that the company did not care about any of that. However hard she might have been working, however good an administrator, she would be discarded if there was another accident. That is not just demoralising, it strikes at the root of the employment relationship. In our view, applying the Malik test, it was likely to destroy or seriously to damage the relationship of trust and confidence and there was no reasonable or proper cause for it.[65]She did not resign immediately, but we accept that she would have been in a state of uncertainty for some days afterwards, and in any event her resignation came two weeks after the warning letter. That is not an excessive period, even without any final straw. It is well established that the final straw itself need not involve any breach of contract, but it must add something to the existing state of affairs. It seems understandable in our view that a lack of concern from her manager, even after finding out about the situation in which she had been left, would have increased her sense of isolation and of not being wanted. Accordingly, the claim of constructive dismissal is upheld. Harassment[66]Turning to the claim of harassment, this is confined to the remark made by Mrs Davy in October 2020. The test under section 26 Equality Act is 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.[67]The first question therefore is whether the conduct in question was unwanted, then Page 15 of 23 whether it related to a protected characteristic – in this case, race – and then whether it met the threshold for violating Miss Abdi’s dignity or creating an intimidating et cetera environment for her.[68]Whereas direct discrimination must be because of a protected characteristic, harassment need only be related to a protected characteristic.[69]Although it is difficult to know with any confidence what exactly was said so long ago, since the comments in question were not written down, it is clear that some comment was made in the context of race, and specifically in the context that Michael was more likely to respond to a call from a black woman on the basis that there was some sort of code (the words used in Mrs Bicknell’s note) or shared understanding.[70]That was therefore unwanted conduct and related to race. Given that Miss Abdi and Michelle both went back into Mrs Davy’s office afterwards to say that they felt it was a racist remark, and that Mrs Davy immediately apologised, we accept that it caused offence, and met the threshold of creating an offensive working environment. That is reinforced by the fact that despite this apology, Miss Abdi took the matter to HR. All of the elements of a complaint of harassment are therefore made out. For the avoidance of doubt, we conclude that this was an isolated incident, and played no part in the decision to resign. Direct discrimination[71]The first claim of direct discrimination is in relation to the pay rise issue, which Ana (a white colleague) obtained but which Miss Abdi did not. The test under section 13 Equality Act is as follows: (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.[72]So, the question is whether the company treated her less favourably than it treated or would have treated someone else in the same circumstances apart from her race.[73]When comparing cases, it is important to compare like with like. Section 23 of the Equality Act provides that: (1) On a comparison of cases for the purposes of section 13 [direct discrimination], … there must be no material difference between the circumstances relating to each case.[74]We know that Ana had a pay rise but we have to ask whether she would have had a pay rise had she been in the same role as Miss Abdi, working at head office, having fairly recently had her salary increased to £24,000 and having also been Page 16 of 23 given a company car. We also know that this request by Miss Abdi was made during Covid, when no one else in the company was receiving a pay rise.[75]The obvious answer, in our view, is that she would not. The job advert was for a role similar to Ana’s and on more money, which gave her the ammunition she needed to press for a pay rise. It was not for a higher salary than Miss Abdi’s and so the same considerations did not apply. In any event, we know nothing of how Ana went about making her request, but in Miss Abdi’s case it was simply a verbal request to Mr Ferguson, which he said he would look into. In the circumstances it is unsurprising that nothing came of it.[76]It is also said that the final written warning, the fine and the resulting constructive dismissal were acts of race discrimination. That needs to be approached with more care. As with all allegations of discrimination, the key question is the reason why the employer acted as it did. Was it because of Miss Abdi’s race?[77]That does not have to be the only reason, or even the main reason, it just needs to have been a significant influence. That influence can even be the result of subconscious bias. Having made our findings of fact, we now have to decide whether the proper inference to draw is that there was such bias at work; in other words, whether it was tainted by discrimination.[78]The Equality Act gives us a structure to follow in carrying out that exercise. Section 136 deals with the burden of proof. It provides that: (2) If there are facts from which the [tribunal] could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the [tribunal] must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.[79]So we first have to decide from all the evidence whether there might have been discrimination involved. If so, it is then for the respondent to satisfy us that there was not. If that happens, cogent evidence is required to show that the treatment in question was ‘in no sense whatsoever’ tainted by discrimination.[80]A mere difference in treatment is not enough by itself: something more is required. That may be some other feature of the case – the timing of the decision perhaps, or that it was out of the ordinary for some other reason.[81]Here, we have clear evidence from the respondent about the treatment of the other recent cases involving car accidents, even if some of them are from 2023, and we have to say that although we think the whole approach to such cases was wrong, and that they ought not to have been regarded as serious disciplinary matters, the outcomes are consistent. Miss Abdi has not been singled out in any way. There Page 17 of 23 is a general tariff of £150 per accident, unless it is particularly low or high value. The guiding principle appears firmly to be the value of the claim. Where it is less than £1,000, a verbal warning is given. There are three such examples. On three occasions the person was dismissed, although the main feature there appears to be that each of them only had about a year’s service. Otherwise, the sanction is a written warning or final written warning.[82]We did not explore the circumstances of each case in great detail so it is not possible to make minute comparisons, but that is the overall impression and it is consistent with Mrs Bicknell’s evidence that the value of the damage was the main consideration, together with the fact that the accident was the person’s fault, rather than someone else’s. It also corresponds with the evidence from Ms Rowe in her written statement. One exception, we noted, was a driver called Charles, who was not fined at all, but we heard evidence that he is a black member of staff so that is no support to a claim of less favourable treatment. The other exception, already noted, was the director, James, whose circumstances were also different.[83]On the basis of those facts, we can see no difference in treatment between Miss Abdi and the normal run of such cases. If we are wrong about that, we could see nothing to suggest that race was a factor, and Miss Abdi did not take us to anything specific. We have already dealt with the pay rise issue, which was not an act of race discrimination, and the incident with Mrs Davy was unconnected; it was two years earlier and Mrs Davy was not even aware of the disciplinary action. Consequently, the claim of direct discrimination is dismissed. Victimisation[84]These same issues – the final written warning, the fine and the constructive dismissal – are also raised as acts of victimisation. The test under section 27 Equality Act is as follows: (1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.[85]The protected act here is the verbal complaint to Mrs Bicknell about the racial comment, and it is not disputed that it was a protected act. The remaining question is whether the company disciplined Miss Abdi for that reason.[86]It is not necessary to go back over the burden of proof provisions again. Suffice to say that although the disciplinary action and the fine was a detriment, there is nothing to indicate that it was at all out of the ordinary, let alone that it related to an incident two years earlier. The fact that there had been no other such issue in Page 18 of 23 that period means that there is no basis to draw an inference that the company was looking to victimise Miss Abdi for raising that complaint about discrimination. Miss Abdi did not suggest to any of the witnesses that it was involved and nor, in fact, did she suggest to Mrs Bicknell that her decisions were in any way to do with her race. Accordingly, this claim too must be dismissed. Unlawful deduction from wages under section 13 Employment Rights Act;[87]The final claim is for unlawful deduction from wages in connection with a payment of £219 in connection with a monthly payment for Miss Abdi’s car – the Toyota CHR – which she was leasing under the CBS scheme. This was taken from her final pay statement in November 2022, after she resigned and after she had returned the car.[88]However, having analysed the various deductions, it is clear that monthly deductions were made in arrears, that she had a car through this scheme for a total of 8 months and that 8 monthly payments were made. The payments were approved under the terms of the agreement with CBS and so there was no unlawful deduction. Time Limits[89]The final issue concerns time limits. The claim of constructive dismissal was presented in time but the allegations of discrimination go back much further. Such claims should be brought within three months of the act in question, plus any time spent in early conciliation. Here, the relevant dates are as follows:(a) The dismissal took place on 1 November 2022(b) Early conciliation began on 11 January 2023(c) Early conciliation ended on 22 February 2023(d) The claim was submitted on 1 March 2023[90]Since ACAS was first contacted on 11 January 2023, any acts or failures which took place before 12 October 2022 are potentially out of time.[91]To pursue any earlier acts of discrimination, Miss Abdi must either prove that:(a) the discrimination was in fact conduct extending over a period of time and ending after that date, or(b) it would be just and equitable to extend the normal time limit.[92]This issue becomes relevant because we have found, in respect of the claim of harassment (the remark by Mrs Davy) that in other respects the claim is made out. Page 19 of 23[93]There is no question of a continuing act here. It is a single allegation and it relates to October 2020. But is it just and equitable to extend time?[94]We heard evidence from Miss Abdi that she was unaware that she could bring such a claim while she was still employed, an understanding which is still surprisingly common. All too often, when an employment comes to an end, the employee will then raise matters going back years. That does not mean that it is just and equitable to consider them.[95]However, employment tribunals have a wide discretion to extend time on these grounds. In Abertawe Bro Morgannwg University Local Health Board v Morgan 2018 ICR 1194, CA Lord Justice Leggatt said that ‘factors which are almost always relevant to consider when exercising any discretion whether to extend time are(a) the length of, and reasons for, the delay and(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).[96]These points were also emphasized more recently by the Court of Appeal in Adedeji v University Hospitals Birmingham NHS Foundation Trust 2021 EWCA Civ 23.[97]In looking at the reason for the delay, it is also necessary to bear in mind that the incident was resolved at the time. It might have been better to have formalised the outcome in some way, but Miss Abdi had raised the concern and it had been acknowledged and addressed. That goes some way to explain why it was not pursued earlier.[98]The length of the delay is of course considerable, but it is not clear to us that it has caused any prejudice to the respondent, and that is the main consideration. Mrs Davy was here to give her evidence. She was very frank about what happened and admitted that what she had said had been wrong and so she apologised. The fact that she accepted this is the most telling factor and makes this an unusual case when considering time limits. There were few documentary records at the time, but we have what little there was. It is hard to see what more we could have had if the claim had been issued in 2020. In those circumstances, having found ourselves in a position to make clear findings on the basis of largely admitted facts, it does not seem to us just and equitable to exclude this claim on time-limit grounds alone.[99]Accordingly, and in summary, we find in Miss Abdi’s favour in respect of that single complaint of harassment and on her claim of constructive dismissal. It follows that she is entitled to compensation for the financial loss that resulted from that dismissal, or other remedy, and for some damages for injury to feelings in respect Page 20 of 23 of the harassment. That now has to be assessed. Compensation Constructive dismissal
Compensation
[100]There was limited evidence from Miss Abdi about the effect on her of losing her job but we accept her evidence that was signed off sick for a while with poor mental health and undertook a course of cognitive behavioural therapy. From 6 July 2023 she became a carer for her mother and was in receipt of carers allowance. That involves quite an onerous undertaking and she was not making applications for other work from then on.[101]There is, however, a duty to mitigate one’s loss. It may not be reasonable to look for work while your mental health is badly affected but there has to come a point where the responsibility of the employer comes to an end. There were understandable reasons here for Miss Abdi to make the decision to act as a carer rather than return to the workplace and that seems to us a reasonable endpoint for the company’s liability.[102]We will make our calculation of loss ignoring pence. At the time of her resignation, Miss Abdi’s annual salary was £26,813, or £2,234 a month. That corresponds to a net payment of £1855 a month.[103]The employer’s pension contribution, at 3%, added a further £16 net a week, or £68 a month.[104]As to the value of the company car, the only figure we have which is supported by any evidence is the £219 which Miss Abdi was paying for the lease car through CBS. We have adopted that as a reasonable estimate of the value of loss of the demonstrator although we accept they are different vehicles and different arrangements.[105]So, on the basis of those calculations, the net monthly pay salary package was as follows: Pay in former employment Per year Per month Per week Net pay after tax and NI £22,257£1,855£428 Company car £2,628£219£51 Employer's Pension contribution £816£68£16 Total net package £23,073£1,923£444[106]The period of loss is from 1 November 2022 to 6 July 2023, when carer’s allowance Page 21 of 23 began. That is 8 months and five days and at that net rate of loss that amount is £15,701.[107]We award compensation for loss of statutory rights in the sum of £500 which brings the compensatory award to £16,201.[108]Adding the basic award, in the agreed sum of £2,320, brings the total award for unfair dismissal to £18,521. Harassment[109]We also had to make some assessment of the injury to feelings suffered on this one occasion.[110]The general guidelines that apply to compensation in discrimination claims were set out by the Court of Appeal in Vento v Chief Constable of West Yorkshire Police 2003 ICR 318, CA. These guidelines provide for three broad bands:(a) a top band applicable to the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment;(b) a middle band applicable to serious cases that do not merit an award in the higher band; and(c) a lower band applicable to less serious cases, such as where the act of discrimination is an isolated incident or one-off occurrence.[111]The President of the Employment Tribunals has issued periodic guidance on the appropriate award in each Vento band, and the most recent applies to for claims submitted after 6 April 2022. This provides that:(a) awards in the lower band should fall between £990 to £9,900;(b) awards in the middle band should fall between £9,900 to £29,600; and(c) awards in the upper band should fall between £29,600 to £49,300, with the most exceptional cases capable of exceeding that upper limit.[112]This was a one-off incident, very much at the lower end of the lower band. There was an immediate apology and it was never referred to again. Relations went on with Mrs Davy as before. Mr Tunley put forward the figure of £2000 and that seems to us to be a perfectly fair figure in circumstances and that is the sum that we adopt.[113]There is interest to be accumulated on that from 1 November 2022 at 8%, covering 730 days to the date of this hearing, and amounting to a further £320. Page 22 of 23[114]So in summary the following sums are awarded:(a) for constructive dismissal £18,521(b) for harassment £2,320[115]The overall total is therefore £20,841.