Employment Judge O’NeillIn person for claimantMr F Mortin (instructed by Counsel) for respondentDate 25 November 2021
JUDGMENT
[1]The claim for unfair dismissal fails and is dismissed[2]The claim for wrongful dismissal fails and is dismissed.[3]The claim of indirect discrimination because of sex fails and is dismissed.
REASONS
[1]Claims The claims before the tribunal were for - Automatically unfair dismissal - carers leave (S99 and S57A Employment Rights Act 1996 - ERA). - Notice Pay - Indirect Discrimination – Sex – (S19 Equality Act 2010 – EQA)[2]Background The Respondent inter alia provides services to the Government. The Claimant was employed by the Respondent as a Border Readiness Operative at a HMRC site checking lorry paperwork. This class of worker was abolished and the Claimant was put on notice that he was at risk of redundancy. At about the same time he suddenly became the sole carer of his infant son. He was unable to attend work because of his carer’s responsibility and was given authorised leave until 21 May 2021. He did not attend work again and was dismissed on 6 July 2021 for being absent without leave, having failed to comply with a number of requests from the respondent to meet and explain his position. The claimant had declined the alternative role offered and the respondent contends that he did not qualify for a redundancy payment because of his short service and as he had unreasonably refused an offer of suitable employment. The claimant says he was indirectly discriminated against in that the arrangements for a medical report and to meet were incompatible with his childcare responsibilities and a woman in those circumstances would have been treated more favourably which the respondents deny. The claimant alleges that the real reason for his dismissal was because he had taken time off under S57A ERA. At the time he had been employed for less than two years. He is therefore not entitled to make a claim for ordinary unfair dismissal because of the continuous service requirement. He makes his claim under sections 99 and 57A ERA, automatic dismissal for having taken dependent carers leave which exempts the service requirement. At a case management Hearing on 18 July 2021 the claimant confirmed that he was not making a claim for direct discrimination. A list of issues was agreed and presented to the Tribunal at the outset of this hearing.[3]Law3.1 S108(3) (b) S99 and 57A ERA 1996. S57A (1) An employee is entitled to be permitted by his employer to take a reasonable amount of time off during the employee’s working hours in order to take action which is necessary – … (d) because of the unexpected disruption or termination of arrangements for the care of a dependent” S57A(2) Subsection (1) does not apply unless the employee— (a) tells his employer the reason for his absence as soon as reasonably practicable, and (b) except where paragraph (a) cannot be complied with until after the employee has returned to work, tells his employer for how long he expects to be absent.3.2 In respect of the burden of proof which falls on the claimant as he has less than two years’ service we have referred to SMITH (appellant) v. THE CHAIRMAN AND OTHER COUNCILLORS OF HAYLE TOWN COUNCIL (respondents) - [1978] IRLR 4133.3 S19 EQA S.19(1) EQA provides a person (A) discriminates against another (B) if A applies to B a provision, criterion or practice (“PCP”) which is discriminatory in relation to a protected characteristic of B's. S.19(2) EQA states a PCP is discriminatory in relation to a relevant protected characteristic of B's if: (a) A applies, or would apply it to persons with whom B does not share the characteristic; (b) it puts or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it; (c) it puts, or would put, B at that disadvantage; and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.3.4 Counsel for the respondent referred the Tribunal to the following authorities in his written submission East London NHS Foundation Trust v O'Connor [2020] IRLR 16, Abernethy v Mott Hay and Anderson [1974] IRLR 213 Beatt v Croydon Health Services NHS Trust [2017] EWCA Civ 401 Kuzel v Roche Products Limited [2008] EWCA Civ 380, Forster v Cartwright Black [2004] IRLR 781, Truelove v Safeway Stores Ltd [2005] ICR 589 Qua v John Ford Morrison [2003] ICR 482, the EAT Ellis v Ratcliff Palfinger Ltd EAT 0438/1 Cortest Ltd v O'Toole, UKEAT/0470/07 [2008] Nottingham City Transport Ltd v Harvey [2013] UKEAT/0032/12, EAT, Ishola v Transport for London [2020] IRLR 368, which sets out at [37]: Essop v Home Office; Naeem v Secretary of State for Justice [2017] UKSC 27, [2017] IRLR 558 at [27]). Naeem v Secretary of State for Justice [2017] UKSC 27, Games v University of Kent [2015] IRLR 202, EAT). MOD v Jeremiah [1979] IRLR 436, [1980] ICR 13, CA). St Helens Metropolitan Borough Council v Derbyshire [2007] UKHL 16. Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 at [35].[4]Issues4.1 The issues were identified at a preliminary hearing on 18 July 2022 and subsequently agreed as follows Unfair Dismissal4.2 Does the Claimant's claim for unfair dismissal fall within the exception to s.108(1) of the Employment Rights Act 1996 (ERA) provided for by s.108(3)(b) of the ERA 1996, namely leave for family reasons pursuant to s.57A(1)(d) ERA? (The Claimant has less than two years continuous service).4.3 What was the reason or the principal reason for the Claimant's dismissal? In particular:4.3.1 Has the Claimant shown there is a real issue as to whether the reason put forward by the Respondent, namely conduct pursuant to s.98(2)(b) ERA, was not the true reason for dismissal? To that end:4.3.1.1 Did the Claimant request a reasonable amount of time off to take care of his son?4.3.1.2 Was the request made in response to an unexpected disruption or termination of arrangements for his son?4.3.1.3 Did the Claimant tell the Respondent about the absence as soon as reasonably practicable?4.3.1.4 Did the Claimant tell the Respondent for how long he expected to be absent?4.3.2 If so, has the Respondent shown that the dismissal was for the potentially fair reason of conduct? To that end:4.3.2.1 Did the Respondent believe the Claimant was guilty of the misconduct complained of, namely being absent without leave?4.3.2.2 Did the Respondent have in its mind reasonable grounds on which to sustain that belief?4.3.2.3 At the time of coming to that conclusion, had the Respondent carried out a reasonable investigation in the circumstances that would enable it to form such a view?4.3.3 If not, has the Respondent disproved that the main or principal reason for dismissal was because the Claimant exercised his right to a reasonable amount of time off during his working hours to take action which was necessary because of the unexpected disruption or termination of arrangements for the care of his son?4.3.4 If not, is the main or principal reason for the dismissal that reason or another reason?4.3.5 If the Tribunal finds that the main or principal reason may be redundancy, then:4.3.5.1 Was there a reduction in the Respondent’s requirements for employees to carry out work of a particular kind?4.3.5.2 Was the dismissal wholly, or mainly, attributable to the dismissal? Remedy4.4 If the dismissal was automatically unfair pursuant to ss.57A(1)(d) and s.99(3)(d) ERA, what financial loss, if any, has the Claimant suffered as a result of any unfair dismissal?4.5 Is the Claimant entitled to a basic award pursuant to s.119 ERA? If so, how much is this?4.6 Is the Claimant entitled to a compensatory award pursuant to s.118 ERA, what amount would be just and equitable in all of the circumstances? In particular:4.6.1 What losses are occasioned as a consequence of the dismissal?4.6.2 Are those losses attributable to the Respondent’s conduct?4.6.3 If so, is it just and equitable to award compensation?4.7 On establishing such losses, what sums have been earned by the Claimant by way of mitigation?4.8 What is the amount of those losses after deducting the sums earned by way of mitigation?4.9 Did the Claimant/Respondent comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures? In particular, did the Claimant fail to appeal the decision to dismiss him contrary to paragraph 26 of the ACAS Code?4.10 If not, was their failure to follow the Code reasonable in all the circumstances? If not, would it be just and equitable for the Tribunal to reduce or increase any award?4.11 If the Claimant suffered financial loss, by what percentage should any basic and/or compensation award be reduced (having regard to those factors set out in s.122 and s.123 ERA)? In particular:4.11.1 To what extent did the Claimant contribute to his own dismissal? In particular:4.11.1.1 Was his conduct culpable and blameworthy?4.11.1.2 If so, would it be just and equitable to reduce and compensation awarded to him?4.11.1.3 If so, by how much?4.11.2 To what extent has the Claimant mitigated his losses? In particular:4.11.2.1 Has the Claimant taken reasonable steps to mitigate his losses?4.11.2.2 If not, by when ought the Claimant to reasonably have mitigated his losses? Indirect Discrimination4.12 Did the Respondent have in place any of the following provisions, criterions or practices (“PCP”):4.12.1 Requiring the Claimant to attend in-person meetings?4.12.2 Requiring the Claimant to attend at a medical appointment to explain why he was not at work when he was caring for his child?4.12.3 Requiring the Claimant to attend meetings at short notice?4.13 Did the PCP apply to persons with whom the Claimant does not share a protected characteristic, namely to those of different genders than male?4.14 Did the PCP put persons with whom the Claimant shared the characteristic i.e. men, at a particular disadvantage when compared with persons with whom he did not share the characteristic?4.15 Did the PCP put persons with whom the Claimant shared the characteristic at a particular disadvantage when compared with persons with whom he did not share the characteristic?4.16 Did the PCP put the Claimant at a particular disadvantage when compared with persons with whom the Claimant does not share a protected characteristic? In particular, the acts relied on are that:4.16.1 On 17 May 2021, Gemma Parmar, Operations Manager (“Ms Parmar”), when emailing the Claimant, invited him to a consultation meeting. The Claimant contends that the Respondent would not have required a woman who had recently become the sole carer for a child or children to attend a face-toface meeting in the circumstances in which the Claimant was required to do so4.16.2 On 18 May 2021, Ms Parmar emailed the Claimant to invite him to a consultation meeting and suggested he could bring his child with him to enable him to attend. The Claimant contends that the Respondent would not have required a woman who had recently become the sole carer for a child or children to attend a face-toface meeting in the circumstances in which the Claimant was required to do so.4.16.3 On 19 May 2021, Ms Parmar emailed the Claimant to inform him that he had not been offered the option of redundancy and instead advised that he could take up an alternative role or resign due to childcare commitments. The Claimant contends that the Respondent treats women with childcare responsibilities better than men and offers more help/support in both flexibility with work, returning to work and are believed more than men when dealing with issues around childcare and as a man he was not advised of any additional support the Respondent could have provided him.4.16.4 On 27 May 2021, Ms Parmar emailed the Claimant stating his current absence was unauthorised and requesting he contact her. The Claimant contends that the Respondent did not take seriously the Claimant's duty of care towards his child as he told the Respondent he could no longer work the same shift pattern due to childcare commitments.4.16.5 On 14 June 2021, the Claimant emailed the Respondent’s HR Inbox and states he did not receive any response. The Claimant contends that the failure to respond showed that the Respondent did not take seriously the Claimant's duty of care towards his child.4.16.6 On 28 June 2021; David Nielsen, Operations Manager (“Mr Nielsen”), invited the Claimant to a disciplinary hearing as he was absent without leave. This resulted in the Claimant sending Mr Nielsen an email on 30 June 20214.16.7 On 6 July 2021, Mr Nielsen summarily dismissed the Claimant.4.17 Did, or would, the PCP put the Claimant at the disadvantages referred to in paragraph 2.5?4.18 Was the PCP a means of achieving a legitimate aim as follows:4.18.1 In respect of the provision of reasonable time off for dependents, providing a reasonable amount of leave to enable an individual to source childcare and then return to work?4.18.2 In respect of the requirement to attend in-person meetings: meeting with employees as part of a consultation process to discuss any issues an individual may have to ensure a consultation process is completed?4.18.3 combating absenteeism and discussing periods of absence to resolve such absenteeism pursuant to the Respondent’s policies?4.18.4 ensuring information was internally communicated with the Respondent’s HR Team?4.19 In respect of each legitimate aim, did the Respondent undertake a proportionate means of achieving that legitimate aim? In particular:4.19.1 Was the PCP an appropriate and reasonably necessary way to achieve those aims?4.19.2 Could something less discriminatory have been done instead?4.19.3 How should the needs of the Claimant and the Respondent be balanced? Remedy4.20 Should the Tribunal make a recommendation that the Respondent take steps to reduce any adverse effect on the Claimant? What should it recommend?4.21 If the discrimination claims succeed, is it just and equitable to make an award?4.22 If so, for how much? In particular:4.22.1 what pecuniary losses has the Claimant suffered?4.22.2 were those losses attributable to the act of discrimination that was upheld?4.22.3 what would have happened had the discrimination not occurred?4.22.4 at what point would the Claimant be likely to find an equivalently remunerated role?4.22.5 has the Claimant reasonably mitigated any losses?4.22.6 What injury to feelings has the discrimination caused the Claimant? What was the effect of the discrimination on the Claimant in particular? How much compensation should be awarded for that?4.22.7 Is there a chance the Claimant’s employment would have ended in any event? Should his compensation be reduced as a result?4.22.8 should any uplift or reduction be made to the compensation awarded pursuant to any unreasonable failure to follow the ACAS Code?4.22.9 Should interest be awarded? How much? Jurisdiction4.23 The Claimant filed an Early Conciliation Notification on 20 June 2021 and the ACAS Early Conciliation Certificate was produced on 28 July 2021. The Claim Form was presented on 7 October 2021.4.24 The particular disadvantages relied on by the Claimant in paragraphs 2.5.1, 2.5.2, 2.5.3 and 2.5.4 are out of time.4.25 Do the allegations that are out of time form part of a continuing course of conduct the last act of which, the summary dismissal on 6 July 2021, is in time? To that end:4.25.1 Are the incidents linked to each other?4.25.2 Are they discriminatory?4.25.3 Is the Respondent responsible for a continuing state of affairs?4.26 If not, is it just and equitable to extend time to hear the complaints? Wrongful Dismissal / Notice Pay4.27 It is agreed that the Claimant was summarily dismissed on 6 July 2021.4.28 Was the Respondent entitled to summarily dismiss the Claimant on grounds of gross misconduct for being absent without leave?4.29 If not, 4 weeks’ notice pay is owed to the Claimant. How much is this?
Remedy
[5]Evidence5.1 The claimant produced a statement which was taken as read and gave evidence in person to the tribunal and was cross-examined.5.2 The following respondent witnesses each produced a statement which was taken as read and gave evidence in person and was crossexamined. The respondent witnesses were Ms Gemma Parmar (operations manager), Mr David Nielsen (senior operations manager and dismissing officer).5.3 There was an agreed bundle of documents paginated and indexed of 405 pages and an agreed chronology, key document index and cast list.[6]Findings[7]Having considered all of the evidence both oral and documentary we make the following findings of fact on the balance of probabilities which are relevant to the issues to be determined. Where we heard or read evidence on matters on which we make no finding or do not make a finding to the same level of detail as the evidence presented that reflects the extent to which we consider that the particular matter assists in determining the issues. Some of our findings are also set out in the conclusions below in an attempt to avoid unnecessary repetition and some of the conclusions are set out in the findings of fact adjacent to those findings.[8]The Respondent inter alia provides services to the Government. The Claimant was employed by the Respondent as a Border Readiness Operative at a HMRC site at Sevington, checking lorry paperwork in the open using a handheld computer and had been so employed since 16 December 2020 on a 4 day on 4 day off rota comprising 2 day shifts and 2 night shifts in each block of 4 working days.[9]The Border Readiness operation was abolished by the HMRC from 10 May 2021 and all 80 or so Border Readiness operator roles were abolished. Most operators had less than two years’ service but some had more than two years. The Claimant and all his colleagues were put on notice that they were at risk of redundancy. The Claimant was informed by email dated 19 April 2021.The same email was sent to all operatives. The email said ‘ Border Readiness checks will remain in place for three weeks until Monday 10th May at Sevington Inland Border Facility. As a result of the news, all Border Readiness Operatives & Supervisors are at risk of redundancy. I wish to stress that Mitie wishes to retain all Border Readiness Operatives & Supervisors within the company and offer you alterative roles within the business. Mitie has a 90-day notice period with our Client HMRC, which will mean all Border Readiness operatives will continue to be paid until the 90-day period has elapsed. Further communications regarding the matter will be shared shortly, including how redundancy consultations work, your redundancy payments, and alternative job opportunities.[10]Notwithstanding the reference in this email to redundancy payments there was no contractual redundancy payment scheme and volunteers were not invited. An operative only qualified for redundancy if he met the statutory criteria. Most operatives did not qualify by reason of service and all were offered alternative positions and no operative was dismissed for redundancy. From this email the claimant formed the mistaken view that a redundancy payment had been offered to him, this was a misreading of the email.[11]On 21 April 2021 Ms Parmar notified all operatives including the claimant by email that alternative roles would be available to everyone. The options were - Operating the Swimlane booths …… - Joining the Traffic Marshal Team …. - Joining the Security Team…… ‘The shift patterns for all the roles is the same as your current pattern, 4 on 4 off and a combination of 2 days, 2 nights. The rate of pay will also continue to be £10.10 per an hour, averaging 42hrs a week. There would be no break in your employment as you be remaining on your current shift pattern and just moving into a different role still within Mitie at Sevington Inland Border Facility. Your Mitie terms & conditions of employment along with your continuous start date would remain unchanged. You will all be having a meeting with your Border Readiness Supervisors to discuss your thoughts on the above & if you are happy to take up one of the alternative roles. Should you wish not to take up any of the above options, please make this known to your supervisor, David Nielsen or myself as soon as possible. ‘ The claimant received the above email and attended an informal meeting with his supervisor at which he asked for a job description which was supplied on 25 May 2021. The Tribunal find that there was no significant difference between the old role and the new role of Booth operator and the respondent was reasonable in asserting it to be suitable alternative employment.The claimant accepted that there were differences of detail but the two posts were essentially the same.[12]The claimant says that the stress of the possible job loss put the family under strain and on 1 May 2021 the Claimant was forced to go home from work because of his stress and anxiety. His partner left him on 6 May 2021 and he suddenly became the sole carer of his four year old son and without a partner or friends and family available to support him he was in crisis without child care and was finding it impossible to find private childcare to cover his shift pattern. The claimant emailed Ms Parmar on 2 May 2021 as directed by his supervisor to explain his absence and to express his interest in a redundancy payment or a booth operator position. He also registered his concern that no one had contacted him since meeting his supervisor on 21 April 2021. On 4 May 2021 Ms Parmar replied inviting him to meet her to discuss the situation on Friday 7 May 2021.[13]On 6 May 2021 the claimant sent the following email and a voicemail in similar terms ‘to explain the current situation I am facing. Pressures at home mean that until I can arrange regular child care or come to an agreement with my partner I will be looking after my son full time. I cannot attend work for this reason but I hope I can call you tomorrow when we were going to have our meeting at 1130 to discuss what will happen next’. Such a telephone discussion took place in which the claimant explained his change of circumstances and sudden child care difficulties and asked for two weeks leave which Ms Paramar granted unpaid until 21 May 2021. Ms Parmar accepts that she was aware that the breakdown of his childcare arrangements was the reason the claimant needed the leave. Ms Parmar granted the claimant two weeks leave whereas the MITIE policy documents and guidance to managers suggests two days would be the norm in these circumstances. From this we infer that Ms Parmar recognised the claimant’s child care problems and went beyond what might be usually given. The claimant asserts that Ms Parmar did not take his childcare issues seriously because he was a man. In addition to her decision to grant the leave there are a number of examples in the correspondence which show that she recognised that he had serious childcare issues . The Tribunal has been given no example of a woman being treated more favorably and the claimant accepts that the policies are applicable to both men and women.[14]There was no further communication between them until 16 May 2021 when the claimant emailed to inform Ms Parmar that he had not been able to find suitable childcare and had missed the redundancy consultations that others had had. He also informed her that he wished to take redundancy if a solution could not be found. Ms Parmar replied by return to ask if the claimant was available to discuss matters on site that week. She did not impose a date and we infer that she was willing to fit in with the claimant.[15]The claimant replied by email dated 18 May 2021 in the following terms ‘ ‘1. Now that I am a single parent with a 4-year-old son your proposals for my continued employment by Mitie are contrary to my legal duty of care for him. I have no local family able to provide such care and the Mitie shift pattern of 06:00-18:00 day 1 & 2 and nights 18:00-06:00 day 3 & 4 every 8 days was designed solely for profit maximisation. 2. In these circumstances I claim my contracted redundancy payment. As well as my outstanding annual leave up to the end of my authorised leave of absence. ‘[16]Ms Parmar replied repeating her request to meet and inviting the claimant to bring his son if that would assist. The claimant declined this invitation on the basis that he had already opted for the redundancy option set out in her email of 19 April 2021. The claimant asserts that it was not safe to bring his son on site and that is why he refused to attend. Ms Parmar considered that safe arrangements could be made for the claimant and his son to be escorted to the office. The claimant contends that a woman would not have been asked by Ms Parmar to attend site with a child because of the safety risks. Given that we accept Ms Parmar’s evidence that safe arrangements could be made we find it probable that had a woman been in the same position as the claimant that she would have been invited to bring the child to the office as he was. The claimant has failed to show that this invitation disadvantaged men. The claimant also contends that this invitation was given because Ms Parmar did not believe that he had sole care and no support as he claimed. The Tribunal does not accept that proposition and find that the correspondence and actions taken by Ms Parmar indicate that she did take his childcare issues seriously.[17]The claimant replied on 19 May 2021 by email to say that he would not attend because of childcare and that it was unsafe to bring his son on site and repeated that he wanted redundancy.[18]Ms Parmar replied by email dated 19 May 2021 to explain that the claimant was mistaken in his interpretation of the generic email of 19 April 2021 and that no offer of redundancy had been made to him as he did not qualify for statutory redundancy pay because he had less than two years’ service and the position of booth operator was on offer as a suitable alternative to his current role. We accept the Respondents evidence that there was no contractual redundancy scheme. A job description was supplied on 25 May 2021. The Tribunal find that the claimant was mistaken in his interpretation of the email of 19 April 2021 and he had no statutory or contractual entitlement to a redundancy payment having insufficient service to qualify for statutory redundancy and there being no contractual or voluntary scheme in operation and Ms Parmar’s email of 19 May 2021 was a fair and reasonable response and one which she would have sent to a man or a woman who had clearly misread or misunderstood the position.[19]The claimant continued to be absent from work after 21 May 2021 when his authorised leave expired. He had not asked for an extension of that leave and none had been granted. The claimant had not taken up any of the offers to meet which Ms Parmar had made and had made no requests for an alternative meeting by way of skype or zoom or telephone when his continuing childcare problems might also have been discussed. He had not given any indication of how long he might need further leave. His email of 18 May 2021 suggests he is unable to return to work at all because of his childcare obligations. He never again asked for such leave or told the respondents how long he might need it for. The Tribunal finds that the only period of time off for dependents falling under S57 A was from 7 to 21 May 2021. Any absence after that date was not time off for dependents which meets the requirements of S57A.[20]The parties appear to have reached an impasse as at 25 May 2021 and Ms Parmar has been placed in a very difficult position. It appears to the Tribunal that she was trying to assist, but the claimant by refusing to meet her was not helping himself or Ms Parmar. She therefore writes an email no doubt with a view to breaking the impasse and securing a meeting. Having had no reply to her last email of 19 May 2021 she emails on 25 May 2021 in the following terms ‘I have not yet had a response from you in regards to the below email . Please let me know if you have had chance to review all of the below. Can you also please confirm, if and when you will be available to attend a consultation meeting to discuss taking up the reasonable suitable alternative position offered to you, or if due child care issues, you will be resigning from your role. Should you continue to fail to respond to my emails or attend site, I will have no recourse other than to start the Mitie AWOL process with you’. The Tribunal find this to be a fair and reasonable email in the circumstances and not indicative of any bad faith on the part of Ms Parmar. In this email she gives the impression that if the claimant is unable to accept the new position of booth operator that resignation is the other option. However, that was preceded by yet another invitation to meet to discuss matters and the discussion was not closed from her perspective (although we find it was closed from the claimant’s perspective). The Tribunal consider it to be a matter of regret that the Respondent Managers, when they became aware that because of childcare the claimant was unlikely to be able to return on the rotating shift pattern, did not expressly flag up that adjustments to the shift pattern or another role might form part of those discussions. But we find that it was the claimant who was blocking the possibility of a resolution in failing to engage with the respondents in the consultation process. The claimant accepted in cross examination that by 18 May 2021 he had made his decision not to meet to discuss a return. Ms Parmar made it clear that the AWOL process was only to be triggered if the claimant continued to fail to respond and enter into consultation. In inviting the claimant to a meeting Ms Parmar sets no date but enquires as to his availability and we find that no notice was given as to the meeting date, short or otherwise.[21]The claimant replied on 27 May 2021 to the effect that he considered himself to have left the company and wanted no more contact with Ms Parmar but wanted his redundancy payment and such other payments as he was entitled to on termination of contract and intended to take up the matter as a grievance.[22]He did not attend work again and did not take part or agree to take part in any further meetings. The claimant had secured from Ms Parmar agreement to change the face-to-face meeting planned for 7 May 2021 to a telephone meeting. She says and we accept that she would have been prepared to hold other meetings by telephone or video. The claimant accepts that he never asked for alternative meeting arrangements after that. On a number of occasions she asks the claimant to telephone her but he refused to do so. The claimant explained to the Tribunal that he was only prepared to communicate with the respondents by email to ensure a written record which we find to be unreasonable.[23]On 27 May 2021 Ms Parmar issued an AWOL letter, in the letter she gave a telephone number and invited the claimant to contact her by 1 June 2021 to give the reason for his continuing absence and to discuss any difficulties and she highlights the importance of such a discussion. She also refers him to the Employee assistance programme. The Tribunal do not consider the deadline for responding by telephone to be unreasonable.[24]Ms Parmar then passed the matter to Mr Nielsen to deal with. On 17 June 2021 he emailed to the claimant to ask him to attend a meeting at Sevington or at any other suitable location. The tone is friendly and the purpose of the meeting is expressly given as to trying to find a resolution to the claimant’s situation and it was not an invitation to the formal AWOL meeting. We accept the evidence of Mr Nielsen that as a fresh person he hoped to open up discussions and break the deadlock. The claimant did not reply which prompted Mr Nielsen to send a further email enquiring as to whether he had resigned given the claimant’s email of 27 May 2021. Mr Nielsen sent the standard AWOL letter but the claimant did not respond despite the inclusion of his phone number. In the absence of a reply, on 28 June 2021 Mr Nielsen sent an invitation to the claimant to a formal AWOL meeting on 1 July 2021, the claimant was invited to say if he was unable to attend for a reason and seek a new date, send a statement or representative but if he failed to respond a decision might be made in his absence. The Tribunal do not consider the notice to be unreasonable or short and accept Mr Nielsen’s evidence that 48 hours’ notice is the norm under the policy.and longer was given to the claimant.. The claimant had been supplied with the AWOL policy which clearly showed that unauthorised absence was potentially gross misconduct and which had indicated a home visit could be arranged.[25]The claimant provided a statement on 30 June 2021 as follows ‘Due to an extreme change in personal circumstances which management has been made fully aware of, no attempt by the company has been made to positively engage with myself. As a single parent the role offered is not suitable this was explained clearly by myself to my site manager before my role as a Border Readiness operative ended. Both parties in this meeting have full access to all email correspondence in relation to and forming the background of this meeting from 19/04/21 onwards. I suggest that these are reviewed by the meeting in their entirety, I refute the claim that I have not engaged with your questions as if you read back through the emails I had previously sent you would already have the answers to these. I regard this meeting as a continuation in your sustained attempt to avoid honoring your contract of employment with me at a time when there is an active ACAS case filled with your company on my behalf.’[26]Mr Nielsen did not immediately take action by way of dismissal but emailed again to ask the claimant contact him to clarify his position in order to move things forward but the claimant did not reply. Mr Nielsen could have been more proactive in pointing out that the discussions could cover adjustments to the shift pattern or other alternatives and that might have elicited a more positive response from the claimant. The Tribunal finds that Mr Nielsen was acting in good faith and was trying a fresh attempt to engage the claimant in discussions which the claimant was refusing to enter into. We have no reason to infer that Mr Nielsen would have acted differently with a woman who appeared not to be willing to engage in discussions.[27]The claimant was dismissed in his absence on 6 July 2021 for being absent without leave and a letter of dismissal was sent giving reasons and notifying the claimant of his right to appeal. He did not appeal. The claimant had been absent without leave since 21 May 2021 and had failed to comply with a number of requests from the respondent to meet and explain his position and enter into consultation about his absence. The AWOL policy and the disciplinary procedure list unauthorised absence as an example of gross misconduct likely to lead to dismissal. Ms Parmar in her emails had warned the claimant that his continuing absence was unauthorised. In the circumstances the Respondent was entitled to summarily dismiss the claimant without notice.[28]Mr Nielsen gives the reason for dismissal as follows - he was absent from work since 1 May 2021 and without authorisation since 21 May 2021 - the absence was not authorized or covered by a fit note - the claimant was refusing to attend meetings or engage in discussions[29]The Tribunal believes Mr Nielsen that these were the real reasons for the dismissal. We note the intransigent position of the claimant taken by 18 May 2021 at an early stage not to engage with the respondents in meaningful discussions and his adherence to the mistaken idea that he had been offered a redundancy payment to which he had a statutory or contractual right which was not the case and his failure to seek an extension to the authorized leave granted by Ms Parmar or to notify her of how long he expected to be absent. The claimant was solely focused on securing a redundancy payment rather than exploring ways in which to resolve the incompatibility between his shift pattern and childcare.[30]The Tribunal recognises that the claimant’s absence since 1 May 2021 had been caused by his childcare crisis and his inability to find affordable and suitable childcare. The claimant was granted 2 weeks’ time off for dependents from 7 May 2021 to 21 May 2021. After that no time off was requested or granted under S57A, the claimant never asked for an extension and never informed the Respondent as to how long any continuing absence after 21 May 2021 might last.[31]We find that the claimant informed the Respondent as required by S 57(2)(a) as to the reason for his absence ie an unexpected disruption in childcare arrangements envisaged by S57A (1) (d). He has failed to inform them as to how long he expects to be absent S57(2)(b). We find that such absence after 21May 2021 falls outside the terms of S57A because of that failure.[32]The claimant had insufficient service to qualify for statutory redundancy pay.[33]The alternative role offered to the claimant included that of booth operator. This was a role on exactly the same terms as his previous role as to pay, shift pattern, hours and team. The only difference was that instead of attending lorries in the open air the operator was provided with a heated and lighted booth and the lorries in future would go to the operator who would stay in the booth. The operator would be issued with a different gadget and there would be some system changes for which there would be training but the differences were negligible and the role essentially the same. If the statutory redundancy was available to the claimant then we conclude that the respondent would probably succeed in the argument that this role was a suitable alternative.[34]The claimant was unable to accept the role as he was the sole carer of a four year old child and the shift pattern was incompatible with childcare. The claimant has no family support and no partner to help with childcare. The Tribunal takes judicial notice that professional night time childminders are very difficult to find and the claimant is unlikely to be able find a childminder who will cover an alternating shift pattern including nights and even if he could he would be unlikely to afford their rates. The Tribunal find that the claimant was not unreasonable in saying that he was unable to undertake the shift pattern on offer in either the existing or the new role. However we find that he was unreasonable in failing to properly discuss his issues and explore other avenues compatible with his childcare needs. We have been referred to a number of Policies all of which the claimant had access to, Sickness, Absence reporting, AWOL, which emphasise the responsibility of the employee to maintain contact. The Respondents policy documents including the Handbook and ‘For you and your family’ acknowledge the right to ask for flexible working The section in the booklet before us puts the onus on the employee under the flexible working policy to seek adjustments and the claimant made no such request. In any event if the claimant failed to accept the respondents repeated requests to meet for the purposes of consultation at which adjustments might have been discussed the Tribunal finds that the claimant only has himself to blame for that. There is no evidence from which we could infer that either Manager would have acted more proactively towards a woman in considering adjustments to the shift pattern. No example of more favourable treatment has been given. CONCLUSIONS Indirect Discrimination
CONCLUSIONS
[35]The claimant contends that he has been indirectly discriminated against because of sex in the arrangements made as to35.1.1 Requiring the Claimant to attend in-person meetings?35.1.2 Requiring the Claimant to attend at a medical appointment to explain why he was not at work when he was caring for his child?35.1.3 Requiring the Claimant to attend meetings at short notice?[36]We find that the respondent did not have these PCPs in place and they were not applied to the claimant.[37]In Person meetings. The respondent did not impose on the claimant a requirement to attend meetings in person. The respondent did expect employees to attend meetings in person but were open to adjustments, and adjustments were made for the claimant, for example Mr Nielsen invited the claimant to elect a suitable venue or change the date, Ms Parmar conducted a meeting by telephone at the request of the claimant and suggested that he bring his son to the office if that would help. The Tribunal accepts Ms Parmar’s evidence that had the claimant requested meetings by zoom or skype she would have accommodated him. We find that Ms Parmar and Mr Nielsen recognised the claimant’s childcare needs and accommodated them. We accept the evidence of the Managers that a woman in his position would not have been treated more favorably and that in this redundancy exercise there were 4 women sole carers in the at risk cohort along with the Claimant and their consultation meetings were all conducted in face to face meetings. The claimant has not shown that there was any group disadvantage to men in being required to attend face to face meetings. The claimant has identified no link between the PCP and the disadvantage identified in the list of issues. We do not accept that the claimant was disadvantaged. We find he was not treated less favorably.[38]Medical appointment: The respondent did not impose on the Claimant the PCP of requiring him to attend at a medical appointment. There is a reference to a fit note in two letters, one dated 27 May 2021 from Ms Parmar and one in identical terms from Mr Nielsen. The Tribunal find the claimant to be disingenuous in respect of the complaint that he was obliged to provide a fit note or attend a medical. He was not required to provide a fit note or attend a medical and we find that the PCP was not applied. The claimant relies on the letters which read as follows ‘ ‘Upon receipt of this letter, please call me on 07788302272 by 1st June 2021 to let me know the reason for your absence. Additionally, if you are experiencing any difficulties then it is important that we discuss these. As your current absence is unauthorised and as such is unpaid, your pay will be suspended with effect from 01/05/2021, unless you are able to provide us with a current fit note (effective from your first day of absence).’ A respondent is entitled to call upon an employee to explain the reasons for an unauthrorised absence and the letter anticipates that in the claimant’s case that he may wish to discuss his difficulties. The claimant’s absence was initially due to a health issue, then followed by 2 weeks authorised leave because of childcare but no further leave had been authorised. The letter explains that the absence will be without pay unless it is for health reasons when a fit note should cover the period if it is to be paid. It does not require the claimant to produce a fit note or attend a medical where the absence is not health related, that is a misreading of the letter.[39]Short Notice: The respondent did not impose a PCP of short notice to meetings. In the absence of a reply, on 28 June 2021 Mr Nielsen sent an invitation to the claimant to a formal AWOL meeting on 1 July 2021, the claimant was invited to say if he was unable to attend for any reason and seek a new date but if he failed to respond a decision might be made in his absence but he did not do so. Given his concession that by 18 May 2021 he had determined not to attend meetings with the company and his history of declining meeting requests and his last email, we find it improbable that the claimant would have attended the meeting whatever the length of notice and was not disadvantaged. We conclude on the balance of probability that a woman would not have been treated differently or better had she been in the same position. Given the norm of 48 hours notice under the company procedures we do not find the notice given by Mr Nielsen to be short nor that the claimant has been disadvantaged. The claimant has not produced evidence of any other meeting called at short notice. The claimant has not shown any group disadvantage. The claimant has not shown any link between this PCP and the disadvantage he relies on.[40]Counsel for the respondent took the claimant through each and every disadvantage relied on and asked the claimant to explain how that disadvantage might be linked to the PCPs identified. The claimant was unable to explain the link. The Tribunal finds no link.[41]Counsel for the respondent took the claimant through each and every PCP and the disadvantage relied on and asked the claimant to explain how men might be more disadvantaged than women. The claimant conceded that the impact on men and women would be the same except where he was invited to bring his son to a meeting.[42]The claimant asserts that it was not safe to bring his son on site and that is why he refused to attend. Ms Parmar considered that safe arrangements could be made for the claimant and his son to be escorted to the office. The claimant contends that a woman would not have been asked by Ms Parmar to attend site with a child because of the risks. Given that we accept Ms Parmar’s evidence that safe arrangements could be made we find it probable that had a woman been in the same position as the claimant that she would have been invited to bring the child to the office as he was. The claimant has failed to show that this invitation disadvantaged men. The claimant also contends that this invitation was given because Ms Parmar did not believe that he had sole care and no support as he claimed. The Tribunal does not accept that proposition and find that the correspondence and actions taken by Ms Parmar indicate that she did take his childcare issues seriously and this offer was made to assist him rather than disadvantage him. In any event this was not the reason for not attending the meeting, by 18 May 2021 the claimant had already resolved not to meet with the respondent.[43]The claim of indirect discrimination fails because the claimant has failed to show that the PCPs he relies on - were in place and imposed on him, - that there was any group disadvantage in that they impacted disproportionately on men to their disadvantage - that he was disadvantaged because of the PCPs Unfair Dismissal[44]The claimant was dismissed in his absence on 6 July 2021 under the AWOL policy and his dismissal was confirmed by letter of the same date. The claimant confirmed to me that this was the date and means by which he was dismissed and he does not contend that he ended the contract by resigning. 45. The claimant has less than two years’ service as required by S S108 ERA. His unfair dismissal claim will fail unless he can show that he falls within the exemption provided by s99 ERA. He has shown that he falls within the exemption from the continuous service requirement as provided by S99ERA and S57A in respect of the time off from 7 to 21 May 2021. In respect of the period after 27 May 2021 he falls outside the exemption provided by S99 and S57A.[46]The Tribunal recognises that the claimant’s absence since 1 May 2021 had been primarily caused by his childcare crisis and his inability to find affordable and suitable childcare. The claimant on 6 May 2021 notified Ms Parmar of his child care difficulties and he requested two weeks’ time off for dependents from 7 May 2021 to 21 May 2021, which Ms Parmar granted. After 21 May 2021 no further time off was requested or granted under S57A. The claimant never asked for an extension and never informed the Respondent as to how long any continuing absence after 21 May 2021 might last.[47]We find that the claimant informed the Respondent as required by S 57(2)(a) as to the reason for his absence ie an unexpected disruption in childcare arrangements envisaged by S57A (1) (d). He did so on 6 May 2021 and in various emails after 21 May 2021 he spelt out his inability to attend work because of child care. The claimant has never informed the respondents since 21 May 2021 as to how long he expected to be absent as required by S57(2)(b). We find that such absence after 21 May 2021 falls outside the terms of S57A because of that failure.[48]To succeed in this unfair dismissal claim the claimant must show that the reason or principal reason for his dismissal was because of the time off taken for his child in the period 7 to 21 May 2021. I explained in some detail the operation of S99 and 57A ERA in order that the claimant, who was not represented, understood the importance of his evidence on this point. The claimant then confirmed that he did not believe that this was the principal reason for his dismissal. On the basis of that concession the unfair dismissal claim must fail.[49]Further and in the alternative the Tribunal find that the reason for dismissal was not because of the time off for his child taken in the period 7 to 21 May 2021 but was the reason given by Mr Nielsen.[50]The dismissal letter clearly states that the relevant period of absence began on 1 May 2021 and such was the period confirmed by Mr Nielsen in his statement adopted at this hearing. That period encompasses the time off for dependents leave granted for the period 7 May to 21 May 2021. If Mr Nielsen dismissed the claimant principally because of the time off he had taken from 7 to 21 May 2021 this would be an automatically unfair dismissal and the claimant would be exempted from the two year service requirement.[51]The letter of dismissal sets out that ‘the reason for your dismissal is that you have not attended work since 1 May 2021 and have failed to follow the Company’s reporting procedures’. In oral evidence Mr Nielsen gave his reasons for dismissal ‘that the claimant was absent from work since 1 May 2021 and without authorisation since 21 May 2021 and the absence was not authorized or covered by a fit note and he was refusing to attend meetings or engage in discussions. We are satisfied that these were the real reasons for dismissal and we find that they amount to a fair reason taking into account the AWOL policy, the many opportunities the respondent gave to the claimant to discuss matters which were not taken up. It is clear from the correspondence and from Mr Nielsen’s evidence that the respondent were in no hurry to dismiss and tried to give the claimant every opportunity to resolve matters and the procedure adopted was fair in the circumstances.[52]We are also satisfied that the absence in the period 7 to 21 May 2021 had relatively little bearing on the decision to dismiss and that the principal reason for dismissal was the unauthorised absence after 21 May 2021 and the claimant’s refusal to engage with the respondent in any live discussions in the redundancy consultation regarding alternatives or under the AWOL policy.[53]We do not accept the claimant’s submission that there was a conspiracy to drag out his absence to manoeuvre him into a position where the AWOL policy applied and he could be dismissed for gross misconduct to avoid paying him a redundancy payment.[54]For the avoidance of doubt we find that the reason for dismissal was not redundancy. Although he had been notified that he was at risk of redundancy no steps were taken to dismiss him for that reason. An offer of suitable employment had been made to him. He was not able to accept it because his child care duties incompatible with his shift pattern but the respondent did not dismiss for that reason but remained open to discuss his reasons and to consider other options.[55]In the circumstances we conclude that the principal reason for the dismissal was not because of the claimant’s authorised absence and therefor he does not benefit from the exemption provided through S99 and S57A.and his claim for unfair dismissal fails. Wrongful Dismissal[56]The claimant was entitled to 4 weeks’ notice under his contract of employment save in circumstances where he had committed gross misconduct .[57]The respondent dismissed him on grounds of gross misconduct for being AWOL and not complying with absence reporting procedures. The claimant accepts that he did not telephone his employer as required under the absence reporting procedures and agrees that his authorised unpaid leave ended on 21 May 2021. The period after 21 May 2021 was unauthorized and the disciplinary policy lists unauthorised absence as a potential act of gross misconduct.[58]Had the claimant been given notice on 6 July 2021 he would not have worked his notice and would not have been paid for that four-week period because it would have continued to be unauthorized leave and under the contract “you will only be paid for the hours that you actually work”.[59]We find that the respondent was entitled to summarily dismiss.In the circumstances the wrongful dismissal claim for notice fails.