Mr R Afridi v Securitas Security Services (UK) Ltd: 2303046/2022
EMPLOYMENT TRIBUNALS
Case No 2303046/2022
Between
Mr R AfridiClaimantSecuritas Security Services (UK) LtdRespondent
Before
Employment Judge AbbottMr J Gajjar (instructed by counsel) for claimantDate 27 November 2024
JUDGMENT
[1]The complaint of unfair dismissal was not presented within the applicable time limit. It was reasonably practicable to do so. The complaint of unfair dismissal is therefore dismissed.[2]The complaints of direct race discrimination and direct religion discrimination were not presented within the applicable time limit, but it is just and equitable to extend the time limit. These complaints will therefore proceed.[1]The complaint of direct race discrimination is not well founded and is dismissed;[2]The complaint of direct discrimination on the ground of religion is dismissed on withdrawal.
REASONS
[1]These written reasons are our unanimous conclusions Claims and Issues[1]The claimant brings the following complaints: 1.1. Direct discrimination on the grounds of race (Equality Act 2010 section 13); 1.2. Direct discrimination on the grounds of religion (Equality Act 2010 section 13);[2]A complaint of Unfair Dismissal (Employment Rights Act 1996 section 98) was dismissed by judgment dated 12 October 2023 because it had not been presented within the applicable time limit.[3]At the start of the hearing before us the claimant withdrew his complaint of direct discrimination on the ground of religion. That claim is therefore dismissed on withdrawal.[4]The claimant was employed by the respondent as a Security Officer at Exxon Mobil House, Leatherhead. He was summarily dismissed with effect from 17 March 2022. He claims that the disciplinary investigation and subsequent dismissal amounted to less favourable treatment because of his race, as is described in his response to the respondent’s Request for Further and Better Particulars dated 13 February 2023. The respondent defends the claim.[5]The issues to be determined arising from the claim were set out at a case management hearing on 12 October 2023 and were further discussed and agreed at the hearing. They were agreed to be as follows:1.1 Did the respondent do the following things:1.1.1 Conduct a disciplinary investigation regarding the claimant in February-March 2022;1.1.2 Summarily dismiss the claimant with effect from 17 March 2022?1.2 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimant says they were treated worse than a colleague David Stevens.1.3 If so, was it because of the claimant’s race ?
The Hearing
[6]The case was heard over three days. The morning of day 1 was occupied with reading and preliminary matters. We heard substantive evidence and submissions on the afternoon of day 1 and during day 2. We considered our decision and delivered a judgment on the question of liability on day 3.[7]The claimant was represented by Mr Iqbal of counsel and the respondent by Mr Lee, In-house counsel. We are grateful for their assistance with the conduct of the hearing and their concise and helpful submissions.[8]On the day before the start of the hearing the claimant had emailed an application to the tribunal for the use of an Urdu interpreter to assist him and his witnesses. This application was discussed with Mr Iqbal at the start of the hearing. It emerged that the claimant had a good command of English but was concerned that he did not wish to be at a disadvantage while being cross-examined. The tribunal discussed the claimant’s needs and concerns in detail with his counsel Mr Iqbal. We made it clear that cross-examination of the claimant would be monitored to ensure that questions were put in simple terms with simple language and that the claimant could take time to reflect and seek clarifications before answering. After taking instructions Mr Iqbal confirmed that the claimant did not wish pursue the application for an interpreter. In the event the tribunal was satisfied that the claimant was able to take part effectively in the hearing and to give his best evidence. The claimant confirmed at the end of his evidence that he was likewise content that he had been able to do so.[9]We had not received witness statements in advance of the hearing for reasons unknown but not the fault of the parties. We took time to read these before the start of the evidence.[10]We had three witness statements and heard oral testimony from the claimant himself and, in support of his claims, witness statements and testimony from: 10.1. Mr Faheem Hayder : Mr Hayder was a control room supervisor employed by the respondent and worked at the Exxon Mobil site with the claimant at the relevant time. He gave evidence about practices and arrangements at the site and also about Mr Stevens leaving the site early on 25 October 2022. 10.2. Mr Hamad Saeed: Mr Saeed was employed until March 2021 as by the CBRE Group Inc (‘CBRE’) which managed the Exxon Mobil building facilities. He was the Client Services Manager and was stationed at the site. As part of his role he supervised the security officers and personnel from the respondent who were working at the site. While on site they would report directly to him and he would give them instructions. He gave evidence about the instructions given regarding leaving times and gym usage during his tenure. 10.3. Mr Danish Ulla: Mr Ulla was employed by the respondent as a security supervisor at the site. He gave evidence about practices at the site about leaving early and about Mr Stevens doing so on 25 February 2022 which was recorded.[11]A witness statement from a Mr Shaif was also provided, but Mr Shaif was abroad and could not give evidence or be cross-examined. Accordingly we placed no weight on his witness statement.[12]On behalf of the respondent we had witness statements and oral testimony from : 12.1. Darren Hunton: Mr Hunton was a deputy branch manager of the respondent and conducted the investigation which led to the claimant’s disciplinary hearing 12.2. Mr Mohammed Nasir: Mr Nasir was a deputy branch manager who conducted the disciplinary hearing (in the absence of the claimant) and made the decision to dismiss him for gross misconduct; 12.3. Mr Darren Young: Mr Young was a branch manager employed by the respondent. He conducted the appeal against the disciplinary sanction and upheld the decision to dismiss the claimant.[13]We had an agreed bundle of 125 pages, a supplementary bundle of 117 pages and an agreed chronology.[14]It was agreed at the start of the hearing that the tribunal would hear evidence and determine the issue of liability before remedy. Any remedy hearing would follow the liability judgment or be held on a later date.[15]Both parties provided oral submissions. We have taken those fully submissions into account although we refer only to those parts which we considered necessary for the purposes of our decision.
Relevant Law
[16]Mr Lee for the respondent drew our attention to the case of Madrassy v Nomura International plc [2007] EWCA Civ 33 at 54-58.[17]We were not referred to any other authorities, but the law was not really in dispute. The applicable law as we understand it is as follows:[18]Equality Act 2010 s 13 provides that: (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.[19]The claimant must therefore identify an actual or hypothetical comparator whose circumstances are the same, or not materially different from those of the claimant, but without the relevant protected characteristic: EqA s 23(1). That is to say the comparator’s circumstances must be sufficient to enable an effective comparison: Hewage v Grampian Health Board [2012] UKSC 37.[20]In determining whether a claim for direct discrimination succeeds, the Tribunal must ask itself in all cases the reason why the treatment complained of occurred, and whether it was because of the protected characteristic: Shamoon v Royal Ulster Constabulary [2003] UKHL 11. If the decision in question was significantly (that is more than trivially) influenced by the protected characteristic, the treatment will be because of that characteristic.[21]The reason why a person acted as he or she did is a question of fact, but their reasons may be conscious or unconscious: CC of West Yorkshire v Khan [2001] ICR 1065 HL (obiter) at paragraph 39 per Lord Nicholls : R (on the application of E) v the Governing Body of JFS and the Admissions Appeal Panel of JFS and others [2010] IRLR 136 SC per Lord Phillips (p) at paragraph 21.[22]There must be a causal connection between the characteristic and the treatment based on the wrongdoers’ conscious or subconscious reason for doing what they did: Nagarajan v London Regional Transport [1999] IRLR 572.[23]It is usually the state of mind of the person carrying out the act which is determinative of the question, but where that person is acting on information or instructions provided by another person whose actions are due to their conscious or unconscious bias, the thought processes of the supplier of the information or instructions must be considered in relation to their own actions rather than those of the person carrying out the treatment directly : CLFIS v Reynolds [2015] ICR 1010.[24]EqA section 136deals 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.[25]The first step is to determine, on the balance of probabilities, the primary facts proved, including any appropriate inferences which can be drawn from those facts: i.e is there a prima facie case of discrimination. The burden at this stage is on the claimant and a respondent’s explanations are disregarded. If the claimant has proven the facts sufficient to support this conclusion at Stage 1, the burden of proof shifts to the respondent to prove, again on the balance of probabilities, that what happened to the claimant was ‘in no sense whatsoever’ because of the relevant protected characteristics – in this case race.[26]For the purposes of Stage 1: 26.1. it is not sufficient for a claimant merely to prove a difference in protected characteristic and a difference in treatment. Unfair or unreasonable treatment on its own is not enough to shift the burden. Something more is required: Madrassy v Nomura International plc [2007] EWCA Civ 33, although the ‘something more’ does not need to be a great deal: Denman v Commission for Equality and Human Rights [2011] CP Rep 12 CA para 19. 26.2. The mere fact that a claimant believes they have been treated less favourably does not suffice. There must have been, objectively, less favourable treatment: e.g. Burrett v West Birmingham Health Authority 1994 IRLR 7, EAT. 26.3. It is important for the tribunal to stand back from the detail and look at the cumulative picture: Anya v Oxford University [2001] IRLR 377 CA: Ayodele v Citylink Ltd [2017] EWCA Civ 1913. .[27]For the purposes of Stage 2: 27.1. A tribunal should expect cogent evidence for the respondent’s burden to be discharged. But the respondent only has to prove that the reason was not the forbidden reason, it does not need to show that it acted fairly or reasonably: Law Society v Bahl [2004] EWCA Civ 1070; 27.2. Tribunals must be careful to test simplistic defences that a respondent was disorganised, inefficient or generally unfair: Komeng v Sandwell MBC UKEAT/0592/10.[28]However, where a tribunal feels able to and does make an explicit finding as to the reason for the claimant’s treatment, it is not an error of law to do so, and in so doing the application of the above guidelines on the stage 1 and stage 2 reverse burden of proof approach becomes otiose: Fraser v University of Leicester UKEAT/0155/13/DM; Hewage v Grampian Health Board [2012] IRLR 870 SC.
Findings of Fact
[29]Having assessed all the evidence, both oral and documentary, and the submissions made by the parties we find on the balance of probabilities the following to be the relevant facts.[30]The claimant’s employment commenced on 8 September 2016. There was no evidence of unsatisfactory conduct reports against the claimant prior to the events in issue. He had an unblemished service record and had received promotions and salary increases since joining the respondent.[31]The respondent operated a disciplinary policy [45] The policy provided so far as relevant: All employees must comply with the company’s rules and guidelines and carry out all reasonable and lawful instructions given to them by a manager or supervisor and in certain circumstances, by clients on whose site they work. Where there is a conflict, you must follow the company rules. Employees are required to comply with certain standards of performance and behaviour when carrying out their work. It is the responsibility of managers and supervisors to see that such standards are maintained by the employees under their control by providing instruction, training advice, and where appropriate instigation of the disciplinary procedure. The basic/minimal requirements of an employee can be summarised as:• Attendance for specified working hours;• Working conscientiously;• Conforming with all Securitas rules and procedures and on agreements applicable to their work, e.g.• Assignment Instructions;• Following reasonable and lawful instructions from authorised personnel;• Failure to meet these requirements will be regarded as a disciplinary issue and will be dealt with in accordance with this Disciplinary Policy. The employee will be advised of the complaint against them and will be given the opportunity to state their case before any disciplinary decision is made.[32]Misconduct and Gross misconduct were defined and non-exhaustive examples given. Examples of Gross misconduct included: Falsification of records – including but not limited to false declarations or omissions in connection with attendance sheets, absence forms Absence from duty without notification or contact, having concluded the ’Absence No Contact’ process Leaving site or an assignment without authorisation including; failure to book on or off duty Conduct that may bring discredit to Securitas, a customer or fellow employee or any act that undermines the contract between Securitas and its customers or brings the company into disrepute Formal Disciplinary Procedure The formal Disciplinary Procedure will be followed either when the informal procedure has failed or when the formal procedure more appropriate. Investigation When a disciplinary matter arises an investigation will take place in order to establish the facts, this may include an investigation meeting with the employee involved. Employees do not have the right to be accompanied or be notified in advance of an investigation meeting. Where an investigation meeting with the employee is not necessary, the investigating manager may refer the matter to a disciplinary hearing from the facts obtained during the investigation.[33]The claimant’s terms and conditions of employment provided: You must arrive in good time (10 minutes before the beginning of the shift) in order to start your shift promptly at the specified time; and finish no earlier than the end shift time. If you do not work in (sic) any particular day or week you will not be entitled to pay, apart from any holiday or sickness pay to which you are entitled for the period. Breaks are allocated locally in line with working patterns and service requirements.[34]The claimant was employed by the respondent as a security officer at Exxon Mobil House in Leatherhead. The respondent had a contract to provide security services at the site. The claimant worked permanently at that site from January 2018.[35]Mr Saeed was formerly an employee of the respondent working at the site as a facilities manager. In 2019 his function was taken in-house by CBRE - who were facilities mangers for Exxon Mobil (the client) – and Mr Saeed TUPE’d to CBRE as CBRE’s client services manager. Mr Saeed reported to Mr Fletcher Brown of CBRE.[36]During his tenure as client services manager for CBRE at the Exxon Mobil site Mr Saeed had given instructions to the respondent’s security staff during the COVID crisis permitting them, in light of the restricted operation of the building and restricted visitor numbers, to leave their shift early if there were no visitors. This instruction was informal in that it was not written down. It was also not specific in terms of time – it did not specify that security staff could leave 10, 15 or 30 minutes early for example.[37]Mr Saeed left CBRE in March 2021. A practice of leaving shifts early persisted after Mr Saeed left in March 2021. There was no clear or formal framework for this arrangement and security staff were in the habit of leaving their shifts earlier than their scheduled shift end if they considered, in the case of reception at least, there were no visitors left in or due to arrive at the site. We find that the claimant had understood that that doing so was permitted because it had been sanctioned by Mr Saeed.[38]However, we accept Mr Young’s evidence, as being inherently likely in the context of the respondent’s contractual obligations to its clients, that although Mr Saeed had authority to give day to day operational instructions to respondent staff, he did not have actual authority from the respondent to vary shift times or to permit staff to work less than their contracted hours.[39]We find that the respondent did not know of this practice of early departures from the site.[40]As a benefit of working at the site security staff were permitted to use the gym facility in their own time. It was clearly understood by the respondent and security staff employed at the site that this was a benefit available to them while they worked at the site.[41]In the period leading up to 22 October 2022 we find that security staff were permitted by Mr Fletcher-Brown of CBRE to use the gym during what Mr Fletcher-Brown assumed were their unpaid breaks. Security staff would arrange times between themselves during the day to use the gym during breaks.[42]We accept the evidence of Mr Hunton and Mr Young that security staff were required by the respondent to remain in uniform and on site during the full hours of their shift. The reason for this was that they were paid for their full shift hours and were required to be ‘on duty’ in uniform at all times in case an incident occurred. They did not have scheduled breaks. Staff were expected to organise lunches and breaks to conform to operational requirements on site: there was an expectation that breaks might be interrupted by operational demands. Although there was no handbook before us setting out these operational standards and practices in detail, they are at least consistent with the terms of the disciplinary policy [46] referenced above and we accept them as inherently likely in the context of the respondent’s contractual relationship with its clients as a security services provider. Our conclusion is also consistent with the following email.[43]On 22 October 2021 Mr Fletcher-Brown sent an email to the claimant, Mr Hayder and Mr Ullah, together with two other colleagues of theirs, copying in Mr Young of the respondent [Supp Bundle p 1] , The email stated: Recently I gave the ok for you to use the gym during your breaks, however Securitas have informed me that your breaks should only be taken when operationally viable and worked into the day. This means you did not previously have unpaid breaks, for example a 1 hour lunch break. Therefore I must ask that you only use the gym in your own time – effective Monday 25th October. Apologies for the confusion over this, but I assumed you had unpaid breaks during the day.[44]We find that at least after 22 October 2021 the security staff, including the claimant and the respondent understood that the gym was only to be used after staff’s working hours, and not during the working day (e.g. over lunchtime). This conclusion is consistent with the claimant’s evidence and his contemporaneous answers to questions during his investigation interview.[45]On 14 February 2022 the respondent, Mr Hunton, received an email from David Stevens [58]. The email stated: Hi Arran, I'm doing the report on Riaz Afridi from Exxon Leatherhead site. As I'm not happy with the way he works and his performance as a Securitas security officer. As he is one of the laziest person I ever known as he report in a DOB of load of lies saying he does patrol never did them and when I do the patrol and he claims them as his patrol, never let me write it in as his excuse was due to covid or I'm just a cover. And also he booked on the other officers on shift even know they are not on site they are running late. And the when the site managers are not on site he will turn the gym cctv off so he can use to gym on the working hours on the weekends. And on the weekdays he will wait till the site managers leave site in the afternoon and once they are gone he will go and use the gym on the working hours. And leave me on my own in the control room even him and other officers know I'm not fully trained on site, only known the basic training as where to patrol and what locations of the cctv is. And he even show me when the phone rings to press ignore and once it stop I go to call history and delete all the missed called. And constantly complaining about the managements of securitas saying they are useless and moaning about the pay is the worse. Report on Faheem I can't say much about him as I only worked with him couple times. He also booked other officers on site even know they are not on site and he always late himself and turns up in his own clothes and he will get changed on site. He ignores the calls, and same thing he will go to the gym when the site managers leave site on weekdays and goes to the gym whenever on the weekends during the working hours, and leaving me on my own in the control room. And also have told me the pay is not great and that he had to get a 2nd job as a Uber driver or Uber eat delivery driver. Hope that good enough for you any issues ring me.[46]This email was the subject of particular scrutiny during the hearing. We explored its unusual language and it was the subject of cross examination and questions from the tribunal. We were concerned that the language suggested that Mr Stevens had been asked to, in effect, report to Mr Hunton on the activities of the claimant and Mr Hayder. Mr Hunton’s evidence was that he had been contacted by Mr Stevens on previous occasions when he (Mr Stevens) had made complaints about colleagues’ working practices at other sites. Mr Hunton told us that his practice on those occasions would be to tell Mr Stevens to put it in writing. Mr Young corroborated Mr Hunton’s account that Mr Stevens was a ‘super-relief’ officer who was wellestablished, visited a number of sites across the area and was in the habit of reporting misconduct on the part of colleagues working at those sites (although he was not tasked to do so). Both witnesses told us that written reports would be routinely investigated and we accept that evidence. Aside from the unusual choice of language, there was nothing else in the documents before us from which we could find or infer that there was an inquiry or targeting of the claimant by the respondent which pre-dated the Stevens email.[47]On the balance of probabilities, we accept Mr Hunton’s evidence that he had not procured the report from Mr Stevens of 14 February 2022 in advance. We accept his evidence that on this occasion he took a call from Mr Stevens, asked him to put his report in writing and agreed with him that his name would not be disclosed to the claimant/Mr Hayder.[48]On 16 February 2022 Mr Hunton wrote to the claimant requiring him to attend an investigation meeting. The purpose of the meeting was to allow the claimant to explain: Going to the onsite gym while on duty Falsifying the DOB Booking other member of staff onsite Ignoring the switch board calls Informing the relief team to ignore calls from the switch board and how to delete the switch board In other words the purpose was to investigate the allegations made in the Stevens report.[49]The claimant was also on shift on 17 February 2022 covering the reception desk. His shift ended at 19:00. This is recorded in the Assignment Log of 17 February 2022 [74]. The Log also records movements and activities during the day. The final entry shows ‘handed over to night shift’ at 18:00. We accept Mr Hayder’s evidence that this document was completed by him and not by the claimant.[50]Mr Stevens was on the night shift on 17 February 2022. He arrived early and was unable to access the site. We accept Mr Hunton’s account that Mr Stevens called Mr Hunton who organised access in some way. Mr Stevens entered the site at approximately 17:44 [75]. We accept Mr Hunton’s evidence that Mr Stevens took pictures on his phone of images of the CCTV screens which showed the claimant and Mr Hayder in the gym. We find that he sent these photos to Mr Hunton.[51]The claimant attended an investigation meeting with Mr Hunton on 24 February 2022 [76]. The claimant endorsed the manuscript notes of this 18- minute meeting as accurate. The allegations put to the claimant at that meeting were those reported by Mr Stevens in his initial email (dated 14 February 2022) but for the first time Mr Hunton specified a date – 17 February 2022 – for when it was alleged that the claimant was using the gym in working hours. In the meeting the claimant confirmed he had understood that after 22 October 2021 he was only authorised to use the gym after working hours, and not during contracted hours. When told there was ‘pictorial proof’ that he was in the gym at 17:45 the claimant said he was not in the gym (and did not say, for example that he was there because he thought he could use it out of working hours and that he thought he was allowed to finish early). He was asked about and denied other allegations relating to ignoring phones and falsely recording patrol times in the DOB.[52]Mr Hunton’s evidence was that the pictorial proof referred to in the interview were the photographs of monitors taken by Mr Stevens on his mobile phone and sent Mr Hunton by WhatsApp. We were not shown those pictures or the WhatsApps. Mr Hunton said they had been deleted because the client had expressed GDPR concerns.[53]On 3 March 2022 [75] Mr Fletcher-Brown emailed Mr Young copying in Mr Hunton. His email begins :” I am not too aware of this investigation; how it was instigated/by whom etc. So just to be clear, this hasn’t been requested by myself or CBRE/EM”.[54]We find this report was requested by Mr Hunton through Mr Young following the report received from Mr Stevens with the intention of confirming the accuracy of the allegations made in the Stevens report.[55]Mr Fletcher-Brown’s email recorded access pass data. We accept the information as accurate. It showed: On 17th February 2022, Faheem Hayder left the control room at 17:31 and entered the gym area at 17:32. His access card was next used at 18:26 to access the main reception area. On 17th February 2022,the claimant left the control room at 17:24 and entered the gym area at 17:30. His access card was next used at 18:32 to access the main reception area. He then left the building to go home at 18:34.[56]He also states that CCTV footage showed the claimant and Mr Hayder were in the gym, not in a working capacity but changed into their own gym clothes and using the gym equipment (this verbal summary of what Mr FletcherBrown observed on the CCTV footage which he had viewed is referred to somewhat oddly by the respondent in correspondence with claimant as the “transcript’). He states that his conclusion is that the Reception (claimant) and Control Room Supervisor (Faheem) positions were abandoned early – Reception should be manned 07:00-19:00 and Control Room from 06:00- 18:00.[57]The next event is that Mr Stevens himself was on duty on 25 February 2022 he left his shift early. He was not subjected to any investigation or disciplinary sanction for doing so. The claimant relies on Mr Stevens as an actual comparator and points to his differential treatment as evidence of less favourable treatment of the claimant.[58]Mr Hunton’s evidence was that Mr Stevens had called him on that day to request to leave early because his wife was having a serious medical emergency and that he had given Mr Stevens permission over the phone to leave early. Mr Iqbal pointed out that there was no documentary evidence of such permission, and that the respondents had refused requests to provide the log of attendance of that day and they were unable to say when Mr Stevens had left. He invited us to disbelieve Mr Hunton’s account.[59]It is not clear why the respondents should have been reluctant to disclose the DOB log for 25 February 2022. No explanation was advanced before us. We acknowledge that the DOB might have inaccurately stated that Mr Stevens was present, when in reality he was absent. It might throw doubt on whether the absence was permitted in advance. However, we were not taken through the correspondence on the point in detail and we consider that the matter was not sufficiently debated before us to enable or justify the making of an adverse inference against the respondent. Mr Stevens’ absence was not disputed and the length of any such absence is not material. Mr Hunton gave specifics of the medical emergency affecting Mr Stevens’ wife and we think it is unlikely that Mr Hunton would readily fabricate an account of such a serious condition. Mr Stevens was referred to by Mr Young as someone who was a long-established employee, had been promoted and regularly and reliably arrived ahead of his shift time. He was also apt to complain about others’ shortcomings. We think it is less likely that he would himself leave early without good reason and likely that if he needed to do so he would seek permission. We find therefore that Mr Stevens sought and was granted permission to be absent on 25 February 2022.[60]Mr Hunton decided to call the claimant to a disciplinary meeting on 15 March 2022 at the respondent’s offices in Woodley, Berkshire [76][61]The letter dated 10 March stated that the hearing has been arranged to discuss allegations of gross misconduct, namely :• Leaving site and an assignment without authorisation; in that on the 17th of February 2022 at Exxon mobile you left your post and went to the gym neglecting your duties and then left site at 18:34 when your shift was not finishing until 19:00.• Falsification of record in that on 17th of February you wrote on the DOB that you left site at 19:00 when you were seen leaving site at 18:34.• Taking, using or misusing, customers’ property, without express written permission, in that on 17th of February 2022 you were seen on CCTV using the client’s gym without permission.• Conduct that brings discredit to Securitas- The customer is well aware of the actions you have done providing myself with the transcript of events on the 17th February showing your abandonment of position to attend the gym facilities of which you are not allowed to use unless you attend out of working hours. Your actions have now brought the companies name into disrepute with a lack of faith from the customer to provide the expected standard of security required. The letter warned the claimant that the conduct was regarded as gross misconduct, attached copies of documents to be relied upon ((Investigation meeting• Original complaint from officer 1• Transcript and complaint from customer• DOB entry dated 17th February 2022. It notified him of his right to be accompanied and stated Failure to attend the disciplinary hearing without a justifiable reason may result in the case being heard in your absence. For this purpose, if you are unable to attend for any reason, you must contact me immediately, and no later than 24 hours before the hearing is due to take place.[62]These were different allegations from those which had initially been put to the claimant. He had not been invited to comment on the new allegations, in particular the allegation of leaving his shift early, at all.[63]On 14 March 2022 at 13.06 the claimant notified Mr Hunton by email that he would not be able to attend the disciplinary hearing ‘due to urgent domestic problems’. Mr Hunton responded at 15:28 (in effect at 15:41 after using an incorrect email) notifying the claimant of a new date of 17 March 2022.[64]The claimant responded by email on 16 March 2022 at 11.40 reiterating that he was having domestic problems and as a consequences would be unable to attend the disciplinary meeting until next month and had been unable to arrange a representative or seek advice at such short notice.[65]At 12:56 Mr Hunton replied referring the claimant to the notice given earlier that if he did not attend without good reason the hearing could take place in his absence and stated that the claimant had not given a good reason. He suggested that for his own benefit the claimant should attend.[66]Mr Hunton was acting in accordance with the strict terms of the respondent’s disciplinary process. But he made no inquiries to clarify the circumstances or to ascertain why or whether the claimant had been or would be unable before 17 March 2022 to arrange a rep or have time to take legal advice. For his part the claimant, faced with a statement that he had not given a good reason did not provide further details to explain his circumstances or justify a further delay.[67]On 16 March at 14.06 the claimant emailed saying that he is not refusing to attend on 17 March but requesting alternative dates because he was suffering from stress.[68]The re-convened meeting went ahead on 17 March 2022. It proceeded in the claimant’s absence [88]. It was a perfunctory exercise. Mr Nasir read out the allegations and recorded his conclusion that the claimant should be dismissed for gross misconduct.[69]The outcome letter dismissing the Claimant for Gross misconduct with effect from 17 March 2022 was sent on 22 March 2022. The allegations found proved were :• Leaving site and an assignment without authorisation; in that on the 17th of February 2022 at Exxon mobile you left your post and went to the gym neglecting your duties and then left site at 18:34 when you shift was not finishing until 19:00.• Falsification of record in that on 17th of February you wrote on the DOB that you left site at 19:00 when you were seen leaving site at 18:34.• Taking, using, or misusing, customers’ property, without express written permission, in that on 17th of February 2022 you were seen on CCTV using the client’s gym without permission.• Conduct that brings discredit to Securitas- The customer is well aware of the actions you have done providing myself with the transcript of events on the 17th of February showing your abandonment of position to attend the gym facilities of which you are not allowed to use unless you attend out of working hours. Your actions have now brought the companies name into disrepute with a lack of faith from the customer to provide the expected standard of security required.[70]The claimant appealed on 27 March 2022 [94]. The appeal was eventually conducted by Mr Young on 28 June 2022 [109]. The record of the meeting was signed by the claimant. The claimant complained that he had not been given time to attend the disciplinary hearing, that he had not seen CCTV of him being in the gym, and that he had been given permission to leave early by Mr Saeed. He said he discriminated against because Mr Stevens had also been absent and not sanctioned.[71]The appeal was rejected by Mr Young, The outcome letter was sent on 3 August 2022 [112] .[72]Mr Hayder was also investigated and dismissed for gross misconduct. Analysis and conclusions - Direct Race discrimination[73]The claimant describes his race as a man of Pakistani origin.[74]Mr Iqbal for the claimant relied on Mr Stevens as an actual comparator. He relied on the differential treatment of the claimant (investigation and dismissal for leaving early and using the gym on one occasion on 17 February 22) and Mr Stevens (no investigation and no sanction for leaving his shift on 25 February 22). We have found on the facts that Mr Stevens was permitted to leave site early on 25 February. Accordingly his circumstances were materially different from those of the claimant such that a meaningful comparison cannot be made. Mr Lee also pointed out that there was no evidence of Mr Stevens’ racial origin such that he can be said to have had a different racial characteristic from the claimant.[75]We have therefore considered the claimant’s claim on the alternative basis that a hypothetical comparator – someone who is white British or does not share the claimant’s race – would not have been treated as unfavourably as the claimant in the same circumstances.[76]Mr Iqbal submitted that:[77]The claimant had an unblemished record of service; 77.1. Of Mr Stevens’ original 5 allegations about the claimant which were the subject of Hunton’s letter of 16 February 2022, none was substantiated. Mr Hunton’s evidence about his investigation was unreliable and inconsistent.[78]Mr Hunton’s evidence that the information about events on 17 February 2022 came to light in the 3 March letter because of a customer complaint about the claimant is inconsistent with the terms of the letter and should not be believed. In fact, the claimant’s concern was with Mr Stevens’ filming the CCTV on his mobile phone. Mr Hunton /the respondent was reading between the lines to create a complaint against the claimant out of nothing. 78.1. That complaint became one of leaving site early, using the gym without permission and falsifying the DOB. None was put to the claimant, because respondents had already made up their mind.[79]Mr Stevens’ report was procured by Mr Hunton (we have found as a fact that it was not);[80]The disciplinary hearing was perfunctory. The claimant was not allowed to defer the hearing, his circumstances were not explored, it proceeded in his absence and Mr Nasir did not consider that the claimant had not had a chance to respond to the allegations then before him.[81]At the appeal stage Mr Young was told that claimant had not written the DOB and about Mr Saeed’s policy of working hours and the authorised use of the gym. None of these were addressed in the appeal letter. They were ignored. Mr Young had already made up his mind.[82]Overall, the evidence shows that the Respondent’s decision makers had already made up their minds, their evidence was vague inconsistent and evasive, and it should be inferred that a conscious reason for their conduct was the claimant’s race.[83]Although Iqbal put the claimant’s case on the basis of conscious discrimination, in the claimant’s favour we also gave consideration to the possibility of unconscious discrimination on the part of the relevant decision makers.[84]For the respondent Mr Lee submitted:[85]General unfairness is irrelevant or insufficient. There has to be a finding that the reason for the conduct was because of race (to which we would add to a more than trivial extent);[86]The claimant’s case falls short of connecting any unfairness with the claimant’s race;[87]He reminded us that the claimant did not at any point change his initial position when questioned that he was not in the gym on 17 February 22. He invited us to accept the respondent’s evidence, although requiring clarification, as honest and credible; 87.1. He referred to the informality of the arrangements relied upon by the claimant concerning leaving early and use of the gym and that those arrangements were neither authorised or known to the respondent; 87.2. Mr Nasir is a man of Pakistani origin. It was submitted that we should conclude that it is inherently unlikely that he would intentionally discriminate against the claimant with whom he shared the same protected characteristic of race (In reaching our conclusion we have not made any such assumption. It is possible for individuals to act, intentionally or otherwise, in a discriminatory way towards another person of the same race. Our focus has been on the inferences to be drawn from the facts proved and documents we have seen).[88]The claimant had not met the Stage one threshold of proving facts from which less favourable treatment on the grounds of race could be inferred. Even if he had, the respondent’s evidence was clear as to the genesis of the complaints against the claimant and that it is obvious that this was not connected with the claimant’s race as a Pakistani man.[89]Drawing the strands together, in our judgment the story of what happened in this case was that Mr Hunton had had drawn to his attention by Mr Stevens information which appeared to him to show general and serious dereliction of duties on the part of staff regularly deployed at the site – falsifying attendance records, performing duties improperly such as deleting phone records and taking time out from duties to use the gym.[90]He chose to believe Mr Stevens’ allegations because Mr Stevens had an established record of pointing out failings amongst permanently deployed staff at sites where he provided relief.[91]Having assumed that there was likely to have been misconduct of the kind alleged, Mr Hunton, we find, developed a mindset that those responsible needed to be dismissed because they could not be trusted to do their work and would expose the respondent to contractual or other risks if there were to be an incident. With that mindset he initiated an investigatory procedure looking for further evidence to substantiate the allegations or of any other possible misconduct on the part of the staff at the site.[92]His investigations in fact did not substantiate the misconduct which had initially been alleged – and we disbelieved his account of his findings about falsified DOB forms and deleted phone records, none of which were supported by documentary evidence, and the evidence that we did see was to the effect that Mr Hayder and not the claimant had signed DOBs.[93]But he had seen photographs of CCTV screens sent by Mr Stevens on 17 February 2022 showing the claimant in the gym, and subsequently requested and later received from Mr Fletcher-Brown detailed evidence that on 17 February 2022 the claimant and Mr Hayder had gone to use the gym during their shifts, and had left their posts earlier than the end of their allocated shifts - a new allegation.[94]Mr Hunton’s closed mind led him to conduct a poor investigation in which the claimant was not given a fair opportunity to explain his actions or understandings or to engage with the actual misconduct which Mr Hunton was now relying on to justify a reference to a disciplinary. He used the evidence to support a course of action on which he was already resolved.[95]The disciplinary hearing before Mr Nasir was perfunctory because the claimant was absent. The claimant did not help himself by failing to explain the domestic circumstances which necessitated him taking more time. But, although strictly compliant with the respondent’s own very demanding timetable and procedure for conducting a disciplinary, Mr Nasir gave the claimant inadequate time to prepare himself or to seek legal advice before the hearing of what was to be a serious disciplinary matter. Mr Nasir’s decision to dismiss proceeded on the (flawed) basis that the allegations were evidenced and unchallenged, but the reason for his decision was, we find, that that conduct on the part of the claimant which he assessed as proven in the absence of any input from the claimant did amount to gross misconduct.[96]The appeal before Mr Young, the branch manager responsible for the area was also, we find, approached with a closed mindset that the dismissal decision should be upheld. He did so because there was, in his mind, evidence of leaving early and the use of the client’s gym during the claimant’s and Mr Hayder’s shift and he considered that that merited dismissal because it represented a risk to the respondent – both contractually and in the event of an incident. He did not fairly investigate or simply did not accept or give real consideration to explanations sought to be given by the claimant, nor did he consider any mitigations.[97]The process leading to the claimant’s dismissal was characterised by procedural unfairness and preformed conclusions. The claimant was in these respects treated unfavourably.[98]The decision makers’ failings and their decisions were not, however, in our judgement in any way because of the claimant’s race. In the case of Mr Hunton and Mr Young they arose from concern about risks to the respondent’s business interests (and possibly concerns that they could be blamed personally if staff on sites for which they were responsible were not on duty when an incident occurred). In the case of Mr Nasir, we find that he genuinely considered the conduct alleged (and in his mind proved) amounted to gross misconduct which justified dismissal and a rigid approach to timing. He simply accepted without inquiry that the allegations were proven based on the referral letter from Mr Hunton.[99]However, discrimination claims are concerned with equality, not fairness. The relevance of the fact that the investigatory and disciplinary process was unfair (and on the face of it not compliant with the ACAS code) is that the unfair conduct towards the claimant may be relied as an element of establishing a prima facie case of discrimination at Stage 1. But the mere fact of unfairness to the claimant and a difference in characteristics is not sufficient for the claimant to succeed at stage 1. Something more, which need not be much, is required.[100]We have found that the initial complaint by Mr Stevens against the claimant and Mr Hayder was not solicited in advance and the treatment of Mr Stevens’ absence is not comparable because his absence was permitted.[101]We considered whether the fact Mr Stevens made an unsolicited report about two men of Pakistani origin, and that the only two people sanctioned for their conduct on 17 February 2022 were both men of Pakistani origin, and that those making the decisions to investigate and to uphold the dismissal on appeal were both white was sufficient to amount to ‘something more’. We considered also the fact that in some respects, in particular in relation to their account of the conduct of the investigation, disciplinary and appeal process, the respondent’s witness evidence and oral testimony were, as Mr Iqbal submitted, vague, inconsistent and we would say defensive. For example, it was very difficult to get any of them to be clear about how many investigations, disciplinary or appeal proceedings they had previously conducted, and the reality in each case was somewhat less than the wording of their witness statements suggested. Mr Hunton’s evidence of what steps he took in response to the Stevens report was unconvincing. He asserted for example that he had investigated several weeks of DOB entries for dates when Mr Stevens had been working on the site and found ‘issues with them’, but he had simply chosen not to rely on them. He accepted under cross-examination that he would ask the claimant how exactly phone records were being deleted if the claimant had made that allegation against Mr Stevens, but was ‘unable to give an honest answer’ (while asserting that it was not because of race) as to why he did not therefore ask that same question of Mr Stevens. He was also unable convincingly to explain why the issue of phone records was simply omitted from the investigation meeting. He said it was ‘a mistake’ and ‘nobody’s perfect’. Mr Young’s account of how he considered the points raised by the claimant during the appeal interview was also unconvincing. He struggled to explain what steps he had taken to consider the case and stuck rigidly to points which had not been raised specifically by the claimant. At one point he was reduced to saying that the signed notes were not verbatim.[102]However, we considered that the real reason for the respondent’s witnesses’ evidence being defensive and unconvincing in these areas was because they were aware that they had done a very poor job in conducting the process of the claimant’s investigation and dismissal and were concerned about public and tribunal scrutiny of it. We did not find any basis from which we felt we could infer a connection with the claimant’s race.[103]Standing back from the detail and considering the position in the round, our conclusion is that the claimant failed to establish facts from which a tribunal could reasonably infer on the balance of probabilities that the respondent had committed an unlawful act of discrimination.[104]In any event, even if we are wrong in our application of the Stage 1 test to the facts we have found, we are satisfied that, taking into account, and weighing appropriately all of the evidence we have seen and assessing the mind of the relevant decision makers at each stage, the respondent has proven that reason for their actions was in no way connected with claimant’s race. The reason for the claimant’s treatment and dismissal was because the decision makers had concluded that his suspected and proven conduct in using the gym during working hours, and leaving the site early represented a serious risk to the respondent’s business and reputation.[105]We are satisfied that a hypothetical comparator in materially the same situation as the claimant but who did not share the claimant’s characteristic of race would have been dealt with in the same (procedurally flawed) manner.[106]The claim is therefore dismissed.