S Mitev v Mitie Ltd: 2305221/2021 and 2302244/2022
EMPLOYMENT TRIBUNALS
Case No 2305221/2021, 2302244/2022
Between
Svetoslav MitevClaimantMitie LimitedRespondent
Before
Employment Judge RamsdenDate 26 October 2024
JUDGMENT
[1]The Respondent’s application to strike-out the Claimant’s complaint that he was harassed by the Respondent in a manner related to his race by the Respondent’s referring to the UK’s decision to leave the European Union as “Brexit”, including the creation by the Respondent of a “Brexit” email address and a “Brexit” team, reason of race claims of race discrimination, is granted.[2]The Respondent’s application to strike-out the Claimant’s other claims of race discrimination is refused.[3]The Respondent’s application for a deposit order to be made against the Claimant in respect of his claim of indirect race discrimination is granted.[4]The Respondent’s application for one or more deposit orders to be made against the Claimant in respect of his claim of other claims of race discrimination is refused.[5]The Claimant’s remaining claims will proceed to a hearing on starting on 6 February 2024.
REASONS
[6]These written reasons are provided at the request of both parties following oral reasons given earlier today. Case Number 2305221/2021 and 2302244/2022 2 of 11
Background
[7]Mr Mitev worked for the Respondent as a Security Officer from 14 May 2009 until her dismissal on 27 May 2022. He has brought various complaints against the Respondent, presented in two separate claim forms dated 20 October 2021 and 6 July 2022. Those claims are of: a) unfair dismissal; b) automatically unfair dismissal for making one or more protected disclosures; c) detriment at work for making one or more protected disclosures; d) direct race discrimination; e) indirect race discrimination; f) harassment related to race; g) victimisation; and h) unauthorised deduction of wages.[8]The issues to be decided in the substantive hearing to determine the Claimant’s claims were set out in the Case Management Orders of 5 December 2022.[9]The essence of the Claimant’s claims are that the Respondent discriminated against him, and subjected him to detrimental treatment, due to: a) his Bulgarian nationality and status as an EU citizen, and b) the fact that he made various qualifying disclosures about the Respondent’s breaches of Covid regulations and health and safety obligations, including by dismissing him and failing to pay him company sick pay to which he was entitled.[10]More specifically, the Claimant alleges: a) Direct race discrimination (contrary to section 13 of the Equality Act 2010) – that the Respondent treated him less favourably than it treated British citizens who were its employees, or less favourably than the Respondent would have treated another employee in materially the same circumstances of the Claimant (save for their race), by:(i) repeatedly requesting documentation concerning the Claimant’s right to live and work in the UK, and/or(ii) requiring him to complete an unnecessary application process to do with these rights. b) Indirect race discrimination (contrary to section 19 of the Equality Act) – that the Respondent, by requesting documentation from EU employees concerning their right to live and work in the UK, applied a provision, criterion or practice to the Claimant which put him and other EU employees at a particular disadvantage when compared with non-EU employees. The Claimant argues that this provision, criterion or practice was not a proportionate means of achieving a legitimate aim. Case Number 2305221/2021 and 2302244/2022 3 of 11 c) Harassment related to race (contrary to section 26 of the Equality Act) – that the Respondent engaged in unwanted conduct related to the Claimant’s race, which had the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him, by: (i) repeatedly requesting documentation concerning the Claimant’s right to live and work in the UK, (ii) requesting him to complete an unnecessary application process to do with these rights, and/or(iii) referring to the UK’s decision to leave the European Union as “Brexit”, including the creation by the Respondent of a “Brexit” email address and a “Brexit” team. d) Victimisation related to the Claimant’s allegations that the Respondent had breached the Equality Act (contrary to section 27 of the Equality Act) – that, in response to the Claimant’s: (i) complaint in an email of 26 May 2021 and/or an email of 23 June 2021 about the less favourable treatment of EU citizens by the Respondent, and/or (ii) grievance of 21 June 2021, the Respondent engaged with the Claimant by emails and other forms of contact concerning his right to live and work in the UK, and in so doing, subjected him to detriment. These claims are collectively referred to as the Race Discrimination Claims.[11]The Respondent denies these claims, and says that the Claimant was dismissed for misconduct.[12]The preliminary matters to be decided today are whether the Respondent’s applications for: a) An order to strike-out of the Claimant’s Race Discrimination Claims on the basis that they have no reasonable prospects of success under Rule 37(1)(a) of the Employment Tribunals Rules of Procedure 2013 (the ET Rules); or in the alternative b) An order that continuing with the Race Discrimination Claims be subject to the payment of a deposit by the Claimant, pursuant to Rule 39 of the ET Rules, on the basis that the claims have little reasonable prospects of success.
The hearing
[13]The Respondent was represented in the hearing by Counsel, Mr Finn, and the Claimant presented his own case.[14]The Respondent served hearing bundle of 142 pages at 19:34 on 3 May – the day before the hearing - and informed the Tribunal and the Claimant that they wished to call a witness, Mrs Xavier Heywood. The Respondent served Mrs Heywood’s two-page witness statement at 07:12 on the morning of the hearing.[15]At 08:33 on the morning of the hearing, the Claimant made an application for postponement on 3 grounds: Case Number 2305221/2021 and 2302244/2022 4 of 11 1. The lateness of the bundle – the Claimant said that he was not given enough time to prepare for the hearing, 2. The bundle did not contain documents and emails which the Claimant considered important, and 3. The lateness of the service of the Respondent’s witness statement.[16]This application was withdrawn in the hearing, when it was agreed that the Claimant’s 14-page witness statement and accompanying 17-page bundle, served at 09:47 on the morning of the hearing, would also be admitted, and on the understanding that the Claimant could refer to the additional documents he served with that statement, which were already in the Respondent and Tribunal’s possession, having previously been circulated by the Claimant for another purpose. The hearing then proceeded.[17]Evidence was given by Mrs Xavier Heywood, Senior Operations Manager of the Respondent on its behalf, and by the Claimant on his behalf.[18]The evidence of Mrs Heywood centred upon the Respondent’s belief that its actions which the Claimant alleges were discriminatory on the ground of his race were motivated by a desire on the part of the Respondent to comply with the law. Mrs Heywood did not provide advice to the Respondent on the legal requirements, but acted as a conduit between the team that did and the Claimant in relation to the matters giving rise to the Race Discrimination Claims.[19]The Claimant’s evidence focused on questioning the truthfulness of the Respondent’s position. He asserts that the Respondent’s actions were not motivated by a desire to comply with the law, but by discrimination on the grounds of nationality. Law Strike-out
Law
[20]Rule 37 of the ET Rules provides: “(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds—(a) that it is scandalous or vexatious or has no reasonable prospect of success;(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;(c) for non-compliance with any of these Rules or with an order of the Tribunal;(d) that it has not been actively pursued; Case Number 2305221/2021 and 2302244/2022 5 of 11(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).”[21]The effect of a strike-out is to terminate the claim or the part of the claim. It is a draconian jurisdiction, and the relevant case authorities underlie its exceptional nature. This is particularly so where the substantive case features allegations of unlawful discrimination, as it is “a matter of high public interest” that such cases are heard (as per Lord Steyn in Anyanwu v South Bank Students’ Union [2001] IRLR 305).[22]The application here is made under Rule 37(1)(a), and Mr Finn clarified that the Respondent’s argument is based on third category in that rule, that each of the Race Discrimination Claims “has no reasonable prospect of success”.[23]Plainly, on the wording of the Rule, the threshold for the Respondent to persuade me that the Race Discrimination Claims have ‘no reasonable prospect of success’ is a high one, and the EAT has cautioned against doing so (in Mbuisa v Cygnet Healthcare Ltd EAT 0119/18) where the Claimant is a litigant in person whose first language is not English, and who is not does not come from a background such that he is accustomed to articulating complex arguments in written form – these features apply to the Claimant here.[24]Furthermore, the cases of Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330 and Tayside Public Transport Co Ltd (t/a Travel Dundee) v Reilly [2012] IRLR 755 indicate that it would be wrong to make a strike-out order where there is a dispute on the facts that needs to be determined at trial.[25]As HHJ Eady put it in Mbuisa at [20]: “Such an exceptional case might arise where it is instantly demonstrable that the central facts in the claim are untrue or there is no real substance in the factual assertions being made, but the ET should take the Claimant's case, as it is set out in the claim, at its highest, unless contradicted by plainly inconsistent documents, see Ukegheson v London Borough of Haringey [2015] ICR 1285 at para 21 per Langstaff J at para 4” (my emphasis).[26]Mitting J summarised the law in Mechkarov v Citibank NA UKEAT/0041/16, [2016] ICR 1121 as follows at [14]: “(1) only in the clearest case should a discrimination claim be struck out; (2) where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence; (3) the Claimant's case must ordinarily be taken at its highest; (4) if the Claimant's case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out; and (5) a Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.”[27]However, taking the claimant’s case its highest does not mean that there is no burden on the claimant at this stage – Lord Justice Underhill in the Court of Appeal case of Ahir v British Airways [2017] EWCA Civ 1392 at [19] observed that “where there is an ostensibly innocent sequence of events leading to the act complained Case Number 2305221/2021 and 2302244/2022 6 of 11 of, there must be some burden on a claimant to say what reason he or she has to suppose that things are not what they seem and to identify what he or she believes was, or at least may have been, the real story, albeit (as I emphasise) that they are not yet in a position to prove it.” Deposit orders[28]Rule 39 of the ET Rules provides: “(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument” (my emphasis).[29]By contrast with a strike-out order, the effect of a deposit order is that the party subject to it is required to pay the deposit value by a specified date in order to continue to pursue their claim or response (or any allegation or argument in their claim or response). Consequently it is a less extreme measure, and (assuming the deposit amount is set appropriately) prompts the party who is the subject of the order to engage with the merits of that claim or response (or part of their claim or response) so as to decide whether to pay the deposit and maintain it, or to see it struck out (Rule 39(4)).[30]Any order to pay a deposit must be one that is capable of being complied with, and so the value of any order (not exceed £1,000) must be such that the party that is the subject of the order is able to pay it, and therefore Rule 39(2) requires the Tribunal to make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to that information when deciding the amount of the deposit.[31]That does not necessarily mean any deposit order should be for a nominal amount - it should also be high enough “to bring home... the limitations of the claim” (O’Keefe v Cardiff and Vale University Local Health Board ET Case No.1602248/15).[32]In addition to the “pause for thought before paying” effect of a deposit order, it has some consequences for the paying party if the deposit is paid and that claim/part of it is then decided against them at the substantive hearing. Rule 39(5) sets those out. “(5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order—(a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76 [When a costs order or a preparation time order may or shall be made], unless the contrary is shown; and Case Number 2305221/2021 and 2302244/2022 7 of 11(b) the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded.”[33]Here, the Respondent asks me to consider making a deposit order in respect of each of the Race Discrimination Claims, and so it is appropriate for me to consider not only the propriety of each individual deposit order sought, but also whether the total sum awarded is proportionate (Wright v Nipponkoa Insurance (Europe) Ltd EAT 0113/14).[34]A conclusion that any of the claims has “little reasonable prospects of success” does not mean the requested deposit orders must be granted – it simply means the Tribunal’s discretion to do so is engaged. Caution must still be exercised, particularly given the public interest in having discrimination allegations aired, given the potential for a deposit order to terminate a claim, but this should be considered alongside the need for case management and for the parties to focus on the real issues in the case. The purpose of a deposit order is not to restrict access to justice but to further the overriding objective – in this instance, to deal with this case in a way which is proportionate to the importance of the issues, and to save expense. Indirect discrimination[35]Section 19 of the Equality Act 2010 defines indirect discrimination in the following terms: “(1) A person(a) (A) discriminates against another(b) (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2) For the purposes of subsection (1), a provision, criterion or practice 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.” Application to the Race Discrimination Claims here Strike-out Case Number 2305221/2021 and 2302244/2022 8 of 11[36]The claims that are the subject of the application to strike-out, or in the alternative, an application for a deposit order, are claims of unlawful discrimination, and so strike-out should only be ordered in exceptional circumstances.[37]The binding authorities cited above emphasize that where there are core issues of fact in dispute, they should not be decided without hearing relevant oral evidence. As the allegations of direct race discrimination, indirect race discrimination, victimisation and the first two of the three allegations of harassment, all concern disputed facts – a point underlined by the fact that the Respondent felt the need for witness evidence to be heard in this hearing – I do not consider them suitable for strike-out. A fuller examination of that and all other evidence relevant to those claims should be made at the substantive hearing. This is particularly so given that the Claimant in this case is a litigant-in-person, whose first language is not English, and who is not accustomed to making arguments of complex law in this forum. The application to strike-out those claims is refused.[38]The third allegation of harassment, that described in the Case Management Order of 5 December 2022 as “referring to the UK’s decision to leave the European Union as “Brexit”, including the creation by the Respondent of a “Brexit” email address and a “Brexit” team”, does not involve any disputed facts. It is a claim that I conclude has no reasonable prospect of success for several reasons: a) “Brexit” is a term used in common parlance to refer to the withdrawal of the United Kingdom from the European Union on 31 January 2020. b) I struggle to see, even taking the Claimant’s case at its reasonable highest, how a claim that using the term “Brexit”, or the name of this team or email account, can be taken to reasonably have had the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him has any reasonable prospect of success. The Claimant’s offence seems to flow instead from the approach that team took to his right to work in the UK post-Brexit. c) The naming of the team and email address appears to flow from the Respondent having identified a group of personnel expected to advise on the right to work requirements regarding the c1,300 EU employees it employed at the time of the UK’s exit from the European Union. I do not consider he has shown that that claim has any prospect of success, and strike-out is awarded in respect of it. Deposit orders[39]While the relevant test to make a deposit order requires the Respondent to discharge a lesser burden – that the claims have “little reasonable prospect of success” as opposed to “no reasonable prospect of success” for strike-out - the factual disputes affecting all the Race Discrimination Claims with the exception of the third harassment claim invite caution before making such orders, especially Case Number 2305221/2021 and 2302244/2022 9 of 11 given the public interest in discrimination allegations being fully heard and examined.[40]The Respondent has said that the claims have no reasonable prospect of success, or alternatively, little reasonable prospect of success, because it acted at all times to ensure compliance with the law and guidance surrounding the right of EU nationals to work in the UK post-Brexit, however, the cases on unlawful discrimination emphasise that the proper determination of facts is always vital in our pluralistic society, as in this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest (Lord Steyn in Anyanwu). Furthermore, the Claimant’s case is that it is the repeated requests for documentation, and the insistence on an apparently voluntary process being gone through, that comprise some of the acts complained of, and these warrant examination, as the Respondent’s evidence has, in my view, not discharged the burden to demonstrate that these claims have little reasonable prospect of success.[41]The one claim where I consider a deposit order appropriate is that of indirect discrimination. It is far from clear how the provision, criterion or practice (PCP) of “requesting documentation from EU employees concerning their right to live and work in the UK” is capable of amounting to indirect race discrimination. As cited above, the definition of indirect discrimination is set out in section 19 of the Equality Act 2010, and sub-section (2)(a) of that section requires that the employer applies, or would apply, the PCP to a group which includes both people sharing the Claimant’s protected characteristic and people who do not.[42]The protected characteristic asserted by the Claimant here appears to be his EU nationality, but the Claimant and the Respondent agree the PCP of “requesting documentation from EU employees concerning their right to live and work in the UK” was only applied to EU employees.[43]Consequently, I have serious doubts that this claim works as an indirect discrimination claim, as the PCP appears to be race-based, therefore suggesting direct race discrimination.[44]Furthermore, the Respondent has already articulated an obviously meritorious argument of justification – that it is obliged in law to make enquiries about the right to work in the UK of its employees.[45]These present formidable obstacles to the Claimant’s indirect race discrimination claim.[46]However, with some refinement in the way the Claimant defines his race for these purposes, the claim may have better than little reasonable prospects of success, and therefore I do not consider this claim should be struck-out, but it is suitable for a deposit order.[47]After enquiring of the Claimant’s means, I understand that he is in employment with an irregular income, but that he does have and expect to continue to have Case Number 2305221/2021 and 2302244/2022 10 of 11 until winter fuel bills apply, disposable income in the order of £500-£600. I therefore consider a deposit order of £100 appropriate for the allegation of indirect race discrimination.
Conclusions
[48]For all of the above reasons the Respondent’s application succeeds as regards: a) Strike-out of the Claimant’s claim of harassment related to race by the Respondent’s reference to the UK’s decision to leave the European Union as “Brexit”, and its creation of a “Brexit” email address and a “Brexit” team; and b) A deposit order, in the sum of £100, in respect of the Claimant’s indirect race discrimination claim. The Respondent’s application fails in all other respects. Employment Judge Ramsden Date 4 May 2023
Conclusions
[1]The claimant’s complaints are: 1.1. Ordinary unfair dismissal; 1.2. Automatic unfair dismissal on the grounds of protected disclosure; 1.3. Detriment due to protected disclosure; 1.4. Direct race discrimination; 1.5. Harassment related to race; 1.6. Victimisation; 1.7. Unauthorised deductions from wages.[2]The issues for the tribunal are set out in the attached Annex. They were determined at a previous case management hearing, although an indirect discrimination claim and a harassment allegation relating to Brexit were later struck out. Two small amendments (as shown in the list) were agreed at the full merits hearing.
Evidence
[3]The Tribunal had before it an updated bundle of documents of 750 pages, a supplementary bundle of 12 pages, various additional documents provided by the parties at the hearing, a cast list and chronology, and a witness statement bundle of 36 pages.[4]We heard evidence given on affirmation by the Claimant and the Respondent’s witnesses, who were Howard Dicks (Account Manager), Darren Pulman (Head of Assurance and Strategic Accounts), Donna Sturgess (Strategic Account Manager) and Cecil Weintrop (Strategic Account Manager). The Law Unfair Dismissal
The Law
[5]Section 98 of the Employment Rights Act 1996 (ERA) provides, so far as is relevant:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show- (a) the reason (or, if more than one, the principal reason) for the dismissal and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. Case Nos: 2305221/2021 & 2302244/2022(2) A reason falls within this subsection if it- a) ….. b) Relates to the conduct of the employee(3) …(4) whether the dismissal is fair or unfair a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and b) shall be determined in accordance with equity and the substantial merits of the case.[6]British Home Stores Ltd. Burchell [1980] ICR 303 held that “First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in in all the circumstances of the case.”[7]In J Sainsbury plc v. Hitt [2003] ICR 111, the Court of Appeal said that, in applying the test of reasonableness, the tribunal must not substitute its own view for that of the employer. It is only where the employer’s decision is so unreasonable as to fall outside the range of reasonable responses that the tribunal can interfere.[8]The test to be applied in determining reasonableness is whether the employer’s decision to dismiss fell within the range of reasonable responses available to it –(1) Post Office v Foley(2) HSBC Bank plc v Madden [2000] ICR 1283, CA.[9]Under section 103A ERA employees have a right to claim that a dismissal was automatically unfair if it was because of the making of a protected disclosure. The section states: “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.” Protected disclosure detriment Protected disclosures[10]Section 43A ERA provides that a ‘protected disclosure’ means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H. Section 43C deals with disclosures made to an employer. Case Nos: 2305221/2021 & 2302244/2022[11]Section 43B ERA provides: “(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—(a) that a criminal offence has been committed, is being committed or is likely to be committed,(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,(c) …(d) that the health or safety of any individual has been, is being or is likely to be endangered,(e) …(f) … that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.[12]In Williams v Michelle Brown AM UKEAT/0044/19/OO HHJ Auerbach considered the questions that arise in determining whether a qualifying disclosure has been made: “ It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held. Detriment[13]Section 47B ERA provides: (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”[14]The concept of a detriment must be construed widely, and the threshold for establishing a detriment is low (The Edinburgh Mela Ltd v Purnell UKEAT/0041/19).[15]In considering whether the detriment is done on the ground that the worker has made a protected disclosure, the test is whether the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer’s treatment of the whistleblower (NHS Manchester v Fecitt [2012] IRLR 64). Race Discrimination and Victimisation[16]The relevant legislation is contained in the Equality Act 2010 (EqA) Case Nos: 2305221/2021 & 2302244/2022[17]Section 4 EqA – The protected characteristics The following characteristics are protected characteristics: … Race …[18]Section 13 EqA - Direct discrimination (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. There are two parts to consider, namely, whether the employer: - Treated the person less favourably than it treated others, and - Treated the person in that way because of a protected characteristic.[19]Section 23 EqA - Comparison by reference to circumstances - provides: (1) “On a comparison of cases for the purposes of section 13, 14 or 19, there must be no material difference between the circumstances relating to each case.”[20]“All the characteristics of the complainant, which are relevant to the way his case was dealt with must also be found in the comparator”; per Lord Hope in MacDonald v MoD [2003] ICR 937, HL[21]Section 26 EqA – Harassment(1) A person (A) harasses another (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) The conduct has the purpose or effect of – i. Violating B’s dignity, or ii. Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.(2) …(3) …(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account- (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.[22]Section 27 EqA – Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act Case Nos: 2305221/2021 & 2302244/2022(2) Each of the following is a protected act – (a) Bringing proceedings under this Act; (b) Giving evidence or information in connection with proceedings under this Act; (c) Doing any other thing for the purposes of or in connection with this Act; (d) Making an allegation (whether or not express) that A or another person has contravened this Act.[23]Section 13(1) ERA - Unauthorised deduction from wages: “ An employer shall not make a deduction from wages of a worker employed by him unless –(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.”[24]Section 13(3) ERA says: “Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.”
Findings of Fact
[25]The Respondent is a large facilities management and professional services provider. The Claimant worked for the Respondent as a Security Officer from 14 May 2009. He was dismissed for gross misconduct by letter dated 30 May 2022. At all material times he worked at the Shard in London on the Shard Quarter contract. Covid letter[26]In November or December 2020, an undated and unsigned letter (461-462) was sent to the Respondent’s CEO, Phil Bentley, by persons unknown, complaining about Covid health and safety matters. It said that management disregarded Government guidelines, employees did not work in a bubble and were told to work on all shifts and in all positions, and that senior management kept quiet about the sickness on site instead of notifying employees so they could get themselves tested to prevent further spreading.[27]The letter was not written, signed or sent by the Claimant. He did not contribute to writing it, and he was not implicated in it in any way. There was no suggestion that Mr Bentley or anyone else from the Respondent thought the Claimant was involved, and it is entirely unclear from the evidence Case Nos: 2305221/2021 & 2302244/2022 whether the Claimant had anything to do with it at all. This letter is the alleged first protected disclosure (issue 3.1.1.1) Right to work[28]The Claimant is Bulgarian by nationality. Employers are required under section 25 Immigration Act 2016 to check that their employees have the right to work in the UK. As a result of Brexit, European Citizens working in the UK were required to obtain Settled or Pre-Settled Status in order to continue working in the UK with a few exceptions. A grant of indefinite leave to remain (ILR) was an exception to this requirement.[29]The Respondent told the Claimant to apply for the appropriate status under the EU Settlement Scheme, namely, Settled or Pre-Settled Status[30]The Claimant refused, saying he had ILR in the UK, which was granted in May 2008. Therefore, he argued he did not need to apply for Settled or Pre-Settled Status.[31]He emailed the Respondent on 15 April 2021 sending them a copy of a Home Office document showing his ILR status. However, this document did not have the Home Office Crest on it and was stamped “file copy”. The Respondent did not believe it fulfilled the legal requirements. Therefore, the Respondent did not accept it as sufficient proof of ILR.[32]Xavier Ayre (a non-HR manager) was tasked with the job of obtaining the correct documentation from employees to ensure they could legally continue to be employed by the Respondent. Despite the Claimant’s assertions that it was unnecessary, she continued to ask him to apply for Settled or Pre-Settled Status. The Claimant continued to refuse, saying he did not need to because he had ILR. Ms Ayre made the same repeat requests to all EU employees who had not yet completed the application.[33]A number of emails went back and forth between the Claimant and Ms Ayre as she tried to obtain the correct documents to demonstrate the Claimant’s right to work. All emails from the Respondent in this regard were polite, and it was clear from the email chains that they were being sent for a legitimate purpose, namely, to ensure he had the right to work in the UK (see email chains re ILR 353-370). Grievances[34]The Claimant was unhappy with the Respondent continuing to ask him to apply for Settled or Pre-Settled Status. Consequently, he raised a grievance by email on 21 June 2021 against both the Respondent and Ms Ayre regarding the handling of his right to work status. In it he alleged that he was being subjected to discrimination, harassment, bullying and victimisation.[35]Howard Dicks (Contract Manager) was appointed to investigate the grievance. A grievance hearing took place on 13 August 2021 (meeting notes at 403-7).[36]The grievance outcome letter of 7 September 2021 (417-423) found that there had been no discrimination, harassment, bullying or victimisation. It explained Case Nos: 2305221/2021 & 2302244/2022 that the Respondent had simply been trying to meet government requirements and Ms Ayre was only doing her job by trying to ensure that the Claimant had the right to work in the UK.[37]Specifically, it explained (under the heading “My summary of this evidence” at 422) that the Respondent had sent the Claimant’s document to John Craig (HR Manager and subject matter expert on Rights to Work). This was the first time Mr Craig had seen it. Having examined it, he advised that he could accept it as ILR evidence on the basis that the Claimant was employed by the Respondent as an EU national prior to the UK’s exit from the EU. However, he went on to say that the Claimant needed to understand that it was most unlikely that the document would be accepted by another employer, were he to move companies.[38]On the basis of the above, the grievance was not upheld.[39]The Claimant appealed. Peter Rumbold (Head of Operations) was appointed to hear the appeal and an appeal meeting was held on 12 October 2021 (minutes at 465-467).[40]The Claimant made a second grievance, which was interconnected with the first. The investigation meeting for the second grievance was also heard by Peter Rumbold on 12 October 2021 (minutes at 469-470) after the first grievance appeal hearing.[41]The Claimant alleges that he made his second protected disclosure at the 12 October meeting (see issue 3.1.1.2). He said this related to poor working conditions and a lack of Covid safety, including at social events (specifically a boat party).[42]There is nothing of this nature recorded within the minutes of the appeal grievance meeting.[43]The minutes of the second grievance investigation meeting record the Claimant starting with a complaint about not receiving a bonus of £126 and the money being spent on a boat party. He also raised issues about the behaviour of senior Shard management after the boat party and being short staffed on site. The Claimant went on to talk about nepotism at the Shard. The subject of whistleblowing was discussed and Mr Rumbold asked whether the Claimant had raised his concerns with management, to which the Claimant replied there was no point. There is nothing in the minutes about Covid. The minutes of both meetings were sent to the Claimant to review.[44]However, in Mr Rumbold’s witness statement (at paragraphs 5.2 and 5.4) he acknowledged that the Claimant briefly mentioned the matters set out in his second alleged protected disclosure (as per issue 3.1.1.2) at the 12 October meeting. We find that the Claimant raised these issues.[45]On 21 October 2021, the Claimant sent an email to Mr Rumbold (473) with a cut and paste email chain that included concerns raised about Covid testing, and social events. This forms the third alleged protected disclosure (issue 3.1.1.3). Case Nos: 2305221/2021 & 2302244/2022[46]Due to work capacity issues, the second grievance was passed from Mr Rumbold to Darren Pulman (Head of Assurance for Strategic Accounts) to complete. Mr Pulman investigated all remaining issues and sent the Claimant a detailed outcome letter on 17 December 2021, dismissing his grievance (683-693).[47]On 26 December 2021 the Claimant emailed Mr Pulman setting out the details of his grievances (letter submitted as additional document at the hearing). This is the fourth alleged protected disclosure (issue 3.1.1.4). (See paragraph 55 below for further details).[48]With respect to the first grievance appeal, Mr Rumbold sent the Claimant the grievance appeal outcome letter dated 5 January 2022 (704-9) dismissing the appeal. He explained the Respondent’s obligations in ensuring its employees had the right to work and that, in the Claimant’s case, a concession had been made in accepting his ILR status. He nonetheless pointed out that there remained a risk of his permit not being accepted under the right to work legislation should he change employer. He explained that the Respondent had reached out in exactly the same way to over 10,000 EU staff (707). Disciplinary Security incident[49]The Shard is designated as “Critical National Infrastructure” and at risk of terrorist attack. For that reason security measures are particularly tight.[50]On 28 October 2021 there was an incident whereby the Claimant opened the security gates to the building, let the bollards (Hostile Vehicle Mitigation) down, and walked away from the gate area with nobody in attendance. No vehicle entered or exited during this time. This is not denied, although there are conflicting accounts about how long the gate was left open.[51]The Respondent has Standard Operating Procedures (SOPs) which include precise instructions on how the gate and the lowering of the bollards is to be done (742). It is not disputed that the Claimant breached the relevant SOP. The Claimant had received a copy of the SOP and had signed to confirm that he was fully conversant with it, understood it, and agreed to fully uphold the procedures within it (750).[52]The Claimant’s evidence was that the SOP was unworkable and was not followed. However, he never raised any problems about the SOP with management.[53]As a result of the incident, the Claimant was invited to an investigation meeting, chaired by Russell Ali (Back of House Manager), which took place on 22 November 2021 (minutes at 677). During the meeting the Claimant viewed CCTV footage of the incident (679). He explained that he was in a long conversation with a colleague and must have forgotten that the gate was open (679). It was put to him that the gate was left open for approximately 60 seconds with no one in attendance, and that the SOP stated that the gate should only be opened when a vehicle is entering or exiting. Case Nos: 2305221/2021 & 2302244/2022[54]On 7 December 2021 Jack Plaice (Duty Manager) emailed the Claimant inviting him to a disciplinary meeting on 14 December 2021. He also sent him the investigation documents consisting of the meeting invite letter, witness statements, investigatory minutes, and disciplinary procedure (503). The Claimant was told that the CCTV footage and the Back of House SOP would be available to him during the meeting. This meeting did not take place as scheduled. Letter to client[55]On 26 December 2021 at 16:40:07 the Claimant emailed Darren Pulman (email submitted at the hearing as an additional document). This is the correspondence mentioned at paragraph 47 above. In it, he complained about Lorraine Mansfield being appointed to hear his grievance appeal, and indicated he would make comments in writing, as appealing would not make any difference. With that, he set out all his grievances and commented on each one. The comments were very critical of the Respondent and certain members of its staff, including managers.[56]At 16.40.18 the Claimant received an automatic reply from Mr Pulman saying he was on annual leave and giving alternative contact details for urgent matters (email submitted at the hearing as an additional document).[57]The same day at 17:00:07 the Claimant emailed the Respondent’s Client directly telling them that there were problems with the Respondent’s senior management and copying all the grievances he had sent to Mr Pulman 20 minutes beforehand (508-513).[58]This came to the Respondent's attention and the Claimant was verbally suspended on full pay on 29 December 2021 (reference to this in investigatory minutes 528).[59]Martin Howes (Senior Business Partner) was appointed to investigate and tried to arrange an investigatory meeting with the Claimant. However, due to the Claimant’s sickness absence (see below) the meeting did not take place until 11 February 2022. The Claimant did not agree the minutes and sent an amended version to the Respondent on 14 April 2022 (email 527).[60]It is not disputed that, at the meeting, the contents of the letter were discussed and the Claimant was given an opportunity to explain his various grievances set out in it. Certain quotes from the letter were put to the Claimant for comment. These included: “Mitie is the worst company of all ...inability to service the contract…”; “…management disregarded the guidelines for Covid-19…”; “This corrupted practice to endanger employees’ lives was repeated…”; “…endangering people’s life is a criminal offence” (minutes 528-532).[61]At the end of the hearing, Mr Howes informed the Claimant that the matter would be moved on to a disciplinary hearing and that he would remain suspended (532).[62]Donna Sturgess was appointed disciplinary officer and on 11 May 2022 she invited the Claimant to a disciplinary hearing (invite letter 710). The invite letter covered both the security matter and the letter to the client. It enclosed Case Nos: 2305221/2021 & 2302244/2022 the relevant documentation, apart from the Back of House SOP and CCTV footage, which was made available at the hearing. The hearing took place on 19 May 2022 (minutes at 541-551).[63]With regards the security allegation, the Claimant admitted that he did not conduct the process as per the SOP. He said he saw a vehicle, which he thought was departing, and lowered the blockers and opened the gate. He said he went outside to make sure it was clear, as vehicles sometimes park outside the loading bay. He got into an argument with a colleague about a parked vehicle and tried to ensure that the colleague followed correct procedures.[64]When Ms Sturgess suggested to the Claimant that he failed to follow procedures he said that nobody got into the building and he did not leave the gates open intentionally. He nonetheless admitted leaving them open with the bollards down and with nobody in attendance.[65]Turning to the letter to the client, Ms Sturgess asked why the Claimant had sent his grievance to the client. He replied that there had been a delay in receiving the outcome, and he had made it known that his deadline for a response was 22 December. He also felt the Respondent would not address his concerns, and he was not satisfied with Lorraine Mansfield (Strategic Account Director) being the person to whom he was to appeal (547-8).[66]Following this hearing, Ms Sturgess wrote to the Claimant on 30 May 2022 summarily dismissing him for gross misconduct, although it is recorded that his last day of employment was 27 May 2022. The reasons set out in the letter were for bringing the Respondent into disrepute, resulting in a loss of trust and confidence in the Claimant, and for breach of security and negligence of duties by leaving the loading bay gates open for about 4.5 minutes (534-6). The letter confirmed that, in reaching this decision, the Respondent took account of the Claimant’s length of service and whether any alternative sanction was possible. However, given the seriousness of the misconduct, the correct decision was summary dismissal.[67]The Claimant appealed on 3 June (552-555) He said it was not him that brought the Respondent into disrepute, but the Respondent itself. He said he had exhausted the internal process and there was no improvement. He set out again some of his grievances. With respect to the security breach, he repeated some of what he said at the disciplinary hearing and stated that the SOP sometimes did not reflect the way staff operated. He argued that the timing of 4.5 minutes included the time taken by his colleague in opening the other gate whilst trying to park a vehicle. He also said the gates were being operated manually that night.[68]The appeal was heard by Cecil Weintrop (Strategic Account Manager) on 26 July 2022 (minutes at 562-76).[69]With respect to the letter and the grievance matters, Mr Weintrop explained to the Claimant why the Respondent was not breaching any health and safety guidelines with respect to Covid. Mr Weintrop referred to the Respondent’s handbook given to all employees, which contained details of the process for whistleblowing and the helpline “Speakup”(567). Case Nos: 2305221/2021 & 2302244/2022[70]As for the security breach, the Claimant said the bollards were sometimes down for hours and that staff did not work to the SOP (572). He said the gates were open on this occasion for 60 seconds.[71]Mr Weintrop upheld the dismissal by letter of 28 July 2022 (735). Sick Pay[72]On 30 December 2021 the Claimant tested positive for Covid and was notified of this on 31 December (516). He went on sick leave from 31 December, although he was also under suspension at this time. He was off sick until 11 February 2022[73]He complained on 21 January 2022 about not getting paid for his sick leave (524). The Claimant was already being paid his full salary whilst on suspension. However, following his complaint, he was also paid Statutory Sick Pay. The pay slip of 18 February 2022 shows both his salary and sick pay being paid (SB 11 – SSP & Occ. Absence).[74]When the Respondent realised that the Claimant had been paid twice in error, the sick pay was deducted from his salary. Discussion and Conclusions Unfair dismissal
Discussion and Conclusions
[75]The Claimant does not deny that he did the acts.[76]With respect to the gates/bollards, the SOP needed to be strictly followed because of the status of the Shard and the risk of attack. Regardless of whether the gates were open for 4.5 minutes or 60 seconds, with the bollards down and nobody in attendance, this was a breach of security procedure and a risk.[77]If the Claimant seriously believed the SOP was unworkable, he should have raised this with management. He never did, despite raising several other issues he was concerned about. It was only when going through his disciplinary that he sought to mention it in defence.[78]With respect to the 26 December letter to the client, this was sent only 20 minutes after sending the same grievances to Darren Pulman. The Claimant had received the automatic response from Mr Pulman within seconds, saying he was on holiday. Therefore he knew that Mr Pulman could not immediately respond. He gave Mr Pulman no opportunity to answer his concerns before complaining about the Respondent to the client in a highly critical way (see paragraph 60 above).[79]Furthermore, the Claimant did not follow whistleblowing procedure and did not use the Respondent’s Speakup helpline, which was available to him to voice such concerns.[80]The Claimant did not exhaust the Respondent’s grievance procedures. Instead, he sent very damning allegations to the Respondent’s client, which Case Nos: 2305221/2021 & 2302244/2022 had the potential to bring the Respondent into disrepute and to damage the relationship with the client.[81]There has been no suggestion that the disciplinary procedure was unfair and we do not find any unfairness in this regard.[82]In summary, the Claimant admitted to two serious allegations of misconduct without any significant mitigating circumstances. The Respondent genuinely believed that the Claimant had done these acts and this was the reason for dismissing him for gross misconduct. We conclude that, for the reasons we have given, this dismissal was within the range of reasonable responses. Automatic unfair dismissal on the grounds of protected disclosure[83]The Claimant was not dismissed because of any protected disclosure. He was dismissed for gross misconduct for the reasons given above. Protected disclosures Alleged first protected disclosure (issue 3.1.1.1)[84]This is a letter that was not written, signed or sent by the Claimant. There is no evidence that he had any involvement in it and he is not implicated in it in any way.[85]We conclude that the letter had nothing to do with the Claimant and he did not make this disclosure. It is not a protected disclosure that he can rely upon. Alleged second protected disclosure (issue 3.1.1.2)[86]The Claimant raised issues regarding a lack of Covid Safety and poor working conditions during the 12 October 2021 meeting.[87]This is information, which the Claimant raised with his employer. We find he made it in the public interest, reasonably believing that it tended to show non-compliance with a legal obligation, and the likely endangering of staff health and safety.[88]Consequently, we find it was a protected disclosure. Alleged third protected disclosure (issue 3.1.1.3)[89]The email to Peter Rumbold of 21 October 2021 contained similar information to that raised at the 12 October meeting.[90]This is information, which the Claimant raised with his employer. We find he made it in the public interest, reasonably believing that it tended to show non-compliance with a legal obligation, and the likely endangering of staff health and safety.[91]Consequently, we find it was a protected disclosure. Alleged fourth protected disclosure (issue 3.1.1.4) Case Nos: 2305221/2021 & 2302244/2022[92]The email to Darren Pulman of 26 December 2021 contained matters similar to the 21 October 2021 e-mail.[93]This is information, which the Claimant raised with his employer. We find he made it in the public interest, reasonably believing that it tended to show non-compliance with a legal obligation, and the likely endangering of staff health and safety.[94]Consequently, we find it was a protected disclosure. Was there detriment due to any of the above protected disclosures?[95]The Claimant claims that he was suspended from work, disciplined and not paid company sick pay because of making protected disclosures.[96]We find that none of these allegations have been proved. The Claimant was suspended and disciplined because of his misconduct and he was not paid sick pay because he was already receiving full pay whilst on suspension.[97]Consequently, he was not put to any detriment because of his protected disclosures. Direct race discrimination[98]As a result of Brexit, European Citizens working in the UK were required to obtain Settled or Pre-Settled Status in order to continue working in the UK with a few exceptions.[99]The Respondent required all employees, who were in the same position as the Claimant, namely EU nationals working for the Respondent, to complete the voluntary application for Settled or Pre-Settled Status.[100]Xavier Ayre was tasked with the job of obtaining the correct documentation from EU employees to ensure they could legally continue to be employed by the Respondent. She made repeat requests to all employees who had not yet completed the form.[101]The fact that the Respondent eventually accepted a copy of the Claimant’s ILR document is of no consequence. This was a concession, which the Respondent explained, would be unlikely to be repeated if the Claimant moved companies.[102]Therefore, the Claimant was not treated less favourably than other employees who were EU citizens. British citizens did not fall under the same immigration legislation or government requirements with respect to Brexit, and therefore, they are not suitable comparators. Harassment related to race[103]Whilst repeat requests to complete the application for Settled or Pre-Settled Status may have been conduct the Claimant did not want, it was done for legal reasons and not with any purpose of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Case Nos: 2305221/2021 & 2302244/2022[104]If it had that effect, it was unreasonable for it to have done so. The Claimant knew that the Respondent was under a legal duty to properly ensure that all EU citizens, of which the Claimant was one, had the right to work in the UK. The Respondent was being a responsible employer by doing this. Victimisation[105]The list of issues lists three alleged protected acts. We were not taken to any evidence of these acts during the hearing. In any event, they do not assist the Claimant.[106]The Respondent engaged with the Claimant over his right to work in the UK because of government requirements resulting from Brexit. There is no other reason for this engagement and it was not because of any protected acts. Unauthorised deductions from wages[107]The Claimant was erroneously paid twice during his period of sickness. He was already being paid his full salary whilst on suspension and was not entitled to sick pay in addition.[108]The Respondent was therefore entitled to deduct the overpayment of sick pay. Consequently, there was no unauthorized deduction from wages.