Mr D Cardoso v Bon Appetit Group Ltd (in liquidation): 2301234/2022
JUDGMENT
[1]The respondent harassed the claimant pursuant to section 26 of the Equality Act 2010. The respondent shall pay the sum of £8,000 to the claimant forthwith by way of compensation.[2]All other claims fail and are dismissed.REASONS
FOR THE JUDGMENT GIVEN ORALLY AT THE HEARING AND SENT TO THE PARTIES ON 29 OCTOBER 2024 PROVIDED AT THE REQUEST OF THE CLAIMANT[1]In this matter the claimant complains that during his employment with the respondent he was subjected to direct discrimination and harassment, both on the grounds of his sexuality, and victimisation.[2]The respondent attended and participated in the previous hearing on 21 March 2023, a case management discussion. At that hearing the matter was listed for a three-day final hearing in October 2023 and the issues arising from the claims were identified as follows: Harassment on grounds of sexual orientationa. Did the manager in question engage in unwanted conduct as follows: i) being rude to him ii) sending him to work on the till iii) shouting at him in front of customers iv) pushing him away from the till and telling him to go and make hot drinks as he wasn’t good enough to work on the till v) coming over to the coffee machine and continuing to shout at him vi) shouting at him that he took advantage of the fact that he was gay so that people felt sorry for him.b. Was the conduct related to his sexuality?c. Did it have the purpose or effect of violating Mr Cardoso’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him? Direct discrimination on grounds of sexualityd. Did the company, in: i. ignoring his grievance ii. using him as replacement for other staff from then, and iii. moving his place of work treat him less favourably than it treated or would have treated someone else in the same circumstances apart from his sexuality.e. If any unlawful act is proved, and Mr Cardoso resigned in response, by virtue of section 39(7)(b) of the Equality Act 2010 his resignation is also to be treated as an act of discrimination. Victimisationf. Did Mr Cardoso’s grievance, alternatively any verbal complaint about harassment, involve a complaint about a breach of the Equality Act? This is known as carrying out a “protected act”.g. Alternatively, did the company believe that he had?h. If there was a protected act, did the company carry out any of the treatment mentioned in paragraph 2(d) above as a result?[3]Shortly before the final hearing was due to take place in October 2023 the claimant applied for a postponement due to medical reasons. The Tribunal acknowledged that request for a postponement but warned the claimant that the earliest relisting of the hearing would be from May 2024, reassured the claimant that the Tribunal is used to dealing with claimant acting without representation and asking him to confirm that he still wanted to postpone. The claimant did so confirm and therefore the hearing was postponed and was re-listed for three days commencing 28 October 2024.[4]On 27 September 2024 the Tribunal was advised by the respondent that it had been placed into voluntary liquidation and was no longer in a position to proceed with the hearing. The claim had, however, been properly served and responded to before the respondent entered into liquidation and the parties were advised that the hearing would proceed as listed.[5]Consequently the claimant attended for the hearing but the respondent did not. We heard evidence from the claimant and considered the documents that he had brought with him. There was no evidence supplied by the respondent although we did take into account the contents of the Response. Relevant Law Direct discriminationRelevant Law
[6]Section 13 of the Equality Act 2010 (the 2010 Act) provides that a person discriminates against another if, because of a protected characteristic, he treats that person less favourably than he treats or would treat others. Sexual orientation is a protected characteristic.[7]To answer whether treatment was “because of” the protected characteristic requires the Tribunal to consider the reason why the claimant was treated as he/she was. The Equality and Human Rights Commission Code of Practice states that whilst the protected characteristic needs to be a cause of the less favourable treatment it does not need to be the only or even the main cause.[8]It is a matter for the Tribunal to determine what amounts to less favourable treatment interpreting it in a common sense way and based on what a reasonable person might find to be detrimental. Harassment[9]Section 26 of the 2010 Act provides that A harasses B if A engages in unwanted conduct related to a relevant protected characteristic and that conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. When deciding whether conduct has had that effect we take into account the perception of B, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.[10]Two authorities give helpful guidance in applying these provisions: Richmond Pharmacology Ltd v Dhaliwal (2009) and Land Registry v Grant (2011) where Elias LJ said: “Where harassment results from the effect of the conduct, that effect must actually be achieved. However, the question whether conduct has had that adverse effect is an objective one – it must reasonably be considered to have that effect – although the victim's perception of the effect is a relevant factor for the tribunal to consider. In that regard, when assessing the effect of a remark, the context in which it is given is always highly material. Moreover, tribunals must not cheapen the significance of the words “intimidating, hostile, degrading, humiliating or offensive environment”. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.”` Victimisation:[11]Section 27 of the 2010 Act states:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.[12]Something will amount to a detriment where a reasonable person would or might take the view that the act or omission in question gives rise to some disadvantage.[13]The word ‘because’ in this context does not equate to ‘but for’. Rather, the Tribunal has to determine whether the protected act, consciously or unconsciously, was the motivation for the relevant treatment. The protected act need not be the sole reason for the detriment in question; it is sufficient if it was a significant influence on A’s decision. Burden of Proof[14]In determining these claims, the burden of proof provisions at section 136 of the 2010 Act apply:(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.[15]It is generally recognised that it is unusual for there to be clear evidence of discrimination and that the Tribunal should expect to consider matters in accordance with these provisions and the guidance set out in Igen v Wong and others (2005), confirmed by the Court of Appeal in Madarassy v Nomura International plc (2007). It is important in assessing these matters that the totality of the evidence is considered.Remedy
[16]Pursuant to section 124 of the 2010 Act, when a Tribunal finds a claim of discrimination to be well founded it must first consider if a declaration and/or recommendation is appropriate and then whether to order the respondent to pay compensation to the claimant. Any compensation payable will be calculated by reference to any losses sustained by the claimant due to the discrimination and any injury to feelings.[17]An award for injury to feelings is not automatic in every case. The onus remains on the claimant to establish the nature and extent of such injury and Tribunals have a broad discretion as to the amount of any such award. In Prison Service and ors v Johnson ([997), the EAT summarised the general principles that underlie awards for injury to feelings:a. awards for injury to feelings are designed to compensate the injured party fully but not to punish the guilty party;b. an award should not be inflated by feelings of indignation at the guilty party’s conduct;c. awards should not be so low as to diminish respect for the policy of the discrimination legislation. On the other hand, awards should not be so excessive that they might be regarded as untaxed riches;d. awards should be broadly similar to the range of awards in personal injury cases; ande. Tribunals should bear in mind the value in everyday life of the sum they are contemplating, and the need for public respect for the level of the awards made.[18]In Vento v Chief Constable of West Yorkshire Police (No.2) (2003), the Court of Appeal set down three bands of injury to feelings award, indicating the range that is appropriate depending on the seriousness of the discrimination in question. The Court also described some of the elements that can be compensated under the head of injury to feelings (and noted that medical evidence is not required to support such a claim). According to Lord Justice Mummery, injury to feelings encompasses ‘subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, depression’. They also emphasised that after making an award for injury to feelings the Tribunal must stand back and have regard to the overall compensation figure to ensure that it is proportionate and not subject to double counting.[19]The three broad bands of compensation for injury to feelings (recognising that there is considerable flexibility within each band allowing Tribunals to fix what is fair, reasonable and just in the particular circumstances of the case) are:a. a top band to be applied only in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment. Only in very exceptional cases should an award of compensation for injury to feelings exceed the stated maximum figure;b. a middle band for serious cases that do not merit an award in the highest band; andc. a lower band appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence. In general, awards of less than the minimum should be avoided, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.[20]The amounts in each band are updated each year by Guidance from the Presidents of the Employment Tribunals. The relevant figures for this claim presented on 11 April 2022 are:a. lower band: £990 to £9,900b. middle band: £9,900 to £29,600c. upper band: £29,600 to £49,300Findings of Fact
[21]Having assessed all the evidence, both oral and written, and the claimant’s submissions made by the parties we find on the balance of probabilities the following to be the relevant facts. Note that not all points raised in evidence are dealt with, only those necessary for our conclusions.[22]The claimant, who is gay, commenced employment with the respondent as a site catering manager from 4 January 2022. He was returning to work after a very difficult period in his life following the death of his partner and of course the impact of the pandemic on the catering industry. He described this appointment to the role as a turning point in his life and he was very excited to be back at work.[23]He was to be based at the respondent’s site at Nine Elms in Vauxhall with a view to replacing the site manager already there, Ms Slabu - known as Kelly - who was due to move to another site. His contract of employment states that he was employed as site catering manager and his normal place of work was Nine Elms but that he may be required to work at any other of the respondent’s premises within the UK from time to time and was required to undertake such additional duties as the respondent may reasonably require from time to time.[24]When the claimant first started Ms Slabu was away but he and an area manager, identified at the hearing only as Sandro, managed the site in her absence. They found that it was not run in accordance with the appropriate standards and made the necessary changes.[25]Ms Slabu in due course returned to work and reversed the changes that had been made. Her relationship with the claimant was immediately poor and they clashed on a number of occasions. The claimant believed that Ms Slabu’s behaviour at work was unprofessional and unsafe. There was a particularly angry exchange between them on 18 January following which the claimant left for the day. The claimant says that during that exchange Ms Slabu screamed words to the effect that the claimant took advantage of the fact he was gay so that people felt sorry for him. He left the site and at 09.04 emailed his area manager, Mr Broderick, giving a detailed account of recent incidents with Ms Slabu (which included the matters referred to at paragraph 2(a)(i)-(v) above but made no express reference to the alleged homophobic comment (2(a)(vi)). The email was balanced and apologetic in tone.[26]On 19 January the claimant What’sApp’d Mr Broderick. He repeated his complaints about Ms Slabu’s behaviour and added that: ‘she said very loudly that I take advantage for the fact that I’m gay to make people feel sorry for me, she screamed terrible things on my face again and in the middle of the customers and staff… I’d be more than happy to come back when she is gone but with her there, impossible!’.[27]On the day after the incident Mr Broderick first told the claimant that he should come into the office at Nine Elms for a chat but then changed his mind and said not to and that he would give the claimant a call with ‘a couple of ideas’. The claimant replied ‘Ok mate thanks’.[28]Thereafter Mr Broderick asked the claimant to attend at different sites, predominantly either White City or Victoria, to cover absences. He was very happy being sent to White City as he had a good relationship with the manager there. He was not happy being sent to Victoria as he considered the two women working there to be rude and not operating to the correct standards. He had a panic attack when arriving at Victoria on 28 January and left.[29]On 29 January the claimant What’s App'd Mr Broderick and said: ‘… I’m not mentally stable to work after all what happened to me in Vauxhall… I don’t think I will carry on being on board as I feel that things were not fair for me. I’m very sorry, you are an amazing person and I’m grateful for the opportunity…’[30]Then at 12.55 he emailed Mr Broderick with his resignation. In that email he said: ‘Revisiting the grievance I raised above, I realised that I’d forgotten to mention the most damaging comment from Kelly towards myself. After shouting out loud and telling me to shut up in front of the team and the queue of customers, Kelly also said “you are the type of person who thinks that just because you are gay, everyone should feel sorry for you”. I honestly think that everyone in the kitchen has heard that but for obvious reasons, they will stick with her and I will have to leave with that unfair, homophobic comment on my bag. Something that never happened to me before, so it is sad. However, I prefer to leave, than to have a colleague like her. … I pointed out at least 4 or 5 very serious allegations that I was expecting to be taken seriously, to be investigated, and a disciplinary meeting to take place but all that I heard was apologies from you on behalf of her. And since then, I have just been sent everywhere to help wherever they were short of staff which was very draining for me last week… Sandro, Kevin, and his team and especially you Ed, have been amazing to me! I’m always grateful for that and I hope you can understand what I’m doing and I accept this as my resignation with immediate effect. Thanks very much for everything Ed Kind regards.’[31]Mr Broderick emailed the claimant on 30 January acknowledging the resignation. He acknowledged that ‘the comments were terrible for you’. He said that he had given a warning to Ms Slabu and that the reason he did not need statements was that she had admitted her wrongdoing.[32]Notwithstanding Mr Broderick’s comment about not needing to take statements, there were typed and signed statements before us in the bundle all dated 1 February 2024. Two were from other employees who had been present at Nine Elms on 18 January and had witnessed the argument between the claimant and Ms Slabu. They both confirmed that there had been an argument but said they did not hear any comment about the claimant’s sexuality. There is also a statement from Ms Slabu. She accepted that she may have been ‘blunt’ with the claimant on a couple of occasions and that she may have shouted at him twice due to her bad mood. She said that she was given a verbal warning for shouting at the claimant and leaving early. She emphatically denied that she had made any comment about the claimant’s sexuality.[33]We did not have the benefit of hearing from Ms Slabu or indeed from Mr Broderick as to the actions he took with regard to the claimant’s complaint. Unfortunately the documentation is confused and in some respects contradictory. However taking the claimant’s unchallenged evidence (save for the denial in the Response) and the documentary evidence into account (in particular his What’s App message of 19 January, his resignation letter and Mr Broderick’s acknowledgement that ‘the comments were terrible for you’) , the majority of the Tribunal finds it is more likely than not that Ms Slabu did say words alleged by the claimant, that they were a homophobic insult and the claimant was deeply offended by them. The minority member’s conclusion is that there is insufficient evidence to support that finding.[34]The Tribunal is unanimous in finding that whilst the sequence of events concerning Mr Broderick’s gathering of statements and giving Ms Slabu a warning is unclear, it is clear that he did take some action further to the claimant’s complaint. He had not simply ignored it.Conclusions
[35]In relation to the sexual orientation harassment claim, there are six specific types of conduct relied upon by the claimant. The first five are generic examples of unpleasant behaviour and we find that Ms Slabu did engage in those behaviours, indeed she admitted shouting and being blunt. We do not find however that that conduct was related to the claimant’s sexual orientation. He has not alleged that any accompanying words were said at the time to that effect and he did not say so in his complaints to Mr Broderick. Their poor relationship and the inappropriate behaviour displayed by Ms Slabu to the claimant was more likely to be due to their disagreement about how the site should be run.[36]Having found that Ms Slabu made the homophobic comment, however, we further find that it was harassment related to the claimant’s sexual orientation. It was unwanted conduct that would certainly have the purpose or effect of violating his dignity or creating a humiliating or offensive environment. That part of his claim therefore succeeds.[37]In relation to the claim of direct discrimination because of sexual orientation, the first treatment relied upon is ignoring the claimant’s grievance. We have found that it was not ignored. It was dealt with, maybe not particularly well but it was dealt with and led to the issue of a warning. That claim therefore fails. The other alleged less favourable treatment was that the claimant was used as a replacement for other staff and his place of work was moved. We have found that both happened but this was not because of his sexual orientation. It was because of the poor working relationship between the claimant and Ms Slabu (indeed the claimant himself had said that he could not work with her). Therefore those allegations also fail.[38]We turn to the claim of victimisation. The first requirement of which is that the claimant has done a protected act. The claimant’s email of 18 January did not include a complaint about the homophobic comment but the WhatsApp message sent on the following day did. That message, in the context of the email of 18 January, amounts to a protected act. The next question is did the respondent do any of the detriments complained of because of the protected act. The first alleged detriment is ignoring the grievance. As already stated we find that it was not ignored. The second and third are using the claimant as a replacement for the staff and moving his place of work. Again as above, we find that the respondent did both but the reason was the breakdown in the relationship between the claimant and Ms Slabu (which had happened before the protected act). The claim of victimisation therefore fails at that point. Even if we are wrong however and the protected act did have a significant influence on the decision to move the claimant out of the Nine Elms site, the conduct complained of must still amount to detriments and we find that they did not. They were contractually available to the respondent and it is clear that the claimant was very happy when moved to White City and did not regard that as detrimental. He did regard being moved to Victoria as detrimental but only because of the two women working there that he did not like. The alleged detriment was not therefore inherently detrimental to him.[39]The final claim is as expressed at para 2(e) above, which to succeed requires a finding that the claimant resigned in response to an unlawful act.[40]The one unlawful act that we have found to have taken place was the comment of Ms Slabu that was harassment. In all the circumstances we do not find that Mr Cardoso resigned in response to that act. We find that he resigned in response to the events that followed.Remedy
[41]We find that it is not appropriate to issue a declaration or recommendation in respect of the one successful claim of harassment related to sexual orientation and that no financial losses flowed from that claim.[42]It is appropriate to award compensation in respect of the injury to the claimant’s feelings that the homophobic comment caused.[43]As it was a one off comment it is appropriate to award compensation form the lower Vento band. The claimant referred us to a letter from the South London and Maudsley NHS Foundation Trust to whom he was referred in January 2022 with concerns around low mood. The letter, which is dated 3 January 2022 but we suspect should be 2023, records that the claimant had reported one of the main reasons for his low mood was the incident at work which he described as homophobic discrimination and a lack of support in the follow-up. The author of the letter states: ‘This resulted in him having no regular employment, lack of income and no structure or meaning to his days. I believe that if he had been able to stay at work, he likely would not have ended up in a crisis with suicidal thoughts and plans. It is my view that this incident has worsened his situation drastically, leaving him with large amounts of stress, anxiety and depression.’[44]This together with the claimant’s own evidence, particularly in the last paragraph of his written statement, where he said: ‘… I put my career in the bin after all. I lost my self-confidence completely, my anxiety and depression was controlled and it has just gone through the roof and never came back to normal. Now I live on Limited Capability to Work benefits, never have money, lost the trust in everyone and especially on myself…’ leads us to conclude that the award of compensation should be towards the upper end of the lower band. Consequently we award him £8,000 to be paid forthwith.