[1]The complaint of unfair dismissal is not well-founded. The claimant was fairly dismissed.[2]The complaint of direct race discrimination is not well-founded and is dismissed.[3]The claim for unlawful deduction from wages was not presented within the applicable time limit. It was reasonably practicable to do so. The claim is therefore dismissed.
REASONS
[1]The respondent provides facilities management services. The claimant was employed as an Area Manager and worked on the contract to provide services to Southwark Council. The respondent took over this contract in October 2022.[2]In brief the claimant says that when the respondent took over the contract, it required him to undertake a number of tasks that had never been part of his duties and that this was done to frustrate him into resigning. He was then unfairly dismissed for matters that were not his responsibility, and this was biased. The respondent states that the claimant was dismissed for gross misconduct for five reasons. It followed a fair procedure in doing so. The claimant states the procedure was not a fair one.[3]On his claim form the claimant had identified three claims, unfair dismissal, deduction from wages and whistleblowing. There was also reference to discrimination. The claim of ‘whistleblowing’ was automatically dismissed upon the claimant not providing the written explanation required by the Order of Employment Judge Abbott sent to the parties on 7 February 2024.[4]At a Case Management hearing on 5 March 2024 the claimant indicated he wished to pursue a more detailed discrimination claim. The claimant was ordered to make any application to amend his claim to include further complaints of race discrimination by not later than 22 March 2024. No such application was received. The Employment Tribunal contacted the parties on 28 May 2024 to confirm that the claimant was not going to make any application to amend his claim to pursue further complaints of discrimination. The complaint of direct race discrimination that had been identified at the case management hearing remained as one of the issues to be determined. The less favourable treatment relied on was the dismissal and the rejection of the appeal.[5]The claims that I must determine are therefore unfair dismissal, unlawful deduction from wages and direct race discrimination. The issues list had previously been agreed at a 5 March hearing and the parties confirmed it was correct and agreed. The issues Unfair dismissal 1. What was the reason for the Claimant’s dismissal? The Respondent says the reason was conduct (in particular, gross misconduct). 2. If the reason was a potentially fair one, did the Respondent act reasonably or unreasonably in the circumstances (including the size and administrative resources of the Respondent’s undertaking) in treating the reason for the Claimant’s dismissal as sufficient reason for dismissing the Claimant (section 98(4) ERA)? 3. In that regard:a. Did the Respondent have reasonable grounds to believe that the Claimant was guilty of gross misconduct?b. Was that belief genuinely held following a reasonable investigation?c. Did the Respondent’s decision to dismiss the Claimant fall within the range of reasonable responses open to a reasonable employer?d. Did the Respondent follow a fair procedure in dismissing the Claimant? Remedy for unfair dismissal 4. What basic award should be awarded to the Claimant? 5. What compensatory award does the Tribunal consider just and equitable in all the circumstances to be awarded to the Claimant having regard to the loss sustained by the Claimant in consequence of his dismissal in so far as that loss is attributable to action taken by the Respondent? 6.Is it just and equitable, in accordance with s.122(2) Employment Rights Act 1996 (ERA), to reduce the Claimant’s basic award? If so, by how much?
The issues
[7]Did the Claimant to any extent cause or contribute to his dismissal? If so, by what proportion does the Tribunal consider it just and equitable to reduce the compensatory award in accordance with section 126(6) ERA?[8]What Polkey deduction should be made to reflect the chance that the Claimant would have been dismissed fairly in any event?[9]Has the Claimant taken reasonable steps to mitigate his losses? Direct race discrimination[10]Was the Claimant treated less favourably than a relevant comparator was or would have been? The less favourable treatment relied upon is:a. Dismissal.b. The rejection of the appeal against dismissal.[11]The Claimant relies upon a hypothetical comparator.[12]Was that treatment because of race? Remedy for direct discrimination[13]What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that having regard to the Vento bands.[14]What financial losses has the discrimination caused the Claimant?[15]Has the Claimant taken reasonable steps to mitigate his losses? Unauthorised deduction from wages[16]Did the Respondent make unauthorised deductions from the Claimant’s wages as follows: a. £100 in around May 2023. Evidence 6. I was provided with a bundle of 419 pages. The claimant’s witness statement attached as an exhibit a further 205 pages. At the beginning of the hearing, we discussed how to proceed so that we could achieve one set of papers that we could all work from. I gave the claimant’s representative time to go through the claimant’s exhibits to identify any that were not in the main bundle and, where they were duplicated, to amend the cross-referencing on the claimant’s witness statement to refer to the page numbers as set out in the main bundle. 7. Once this had been done a number of additional pages were added to the bundle. The numbering now goes up to page 640 but is not consecutive. 8. I heard evidence from the claimant and from Adriano Teles De Oliveria, the disciplinary chair, and from Mark Fowles, the appeal chair, on behalf of the respondent. The findings of fact set out below were reached on a balance of probabilities, having considered all the evidence given by witnesses during the hearing, including the documents referred to by them, and considering the tribunal’s assessment of the witness evidence. I was also assisted by written submissions from both representatives. These were expanded and explained in oral submissions. 9. Only findings of fact relevant to the issues, and those necessary for the tribunal to determine, have been referred to in this judgment. It would not be necessary, and neither would it be proportionate, to determine each and every fact in dispute. If the tribunal has not referred to every document it has read and/or was taken to in the findings below, that does not mean it was not considered if it was referred to in the witness statements/evidence. Finding of facts Credibility 10. During the hearing the claimant brought up a number of new matters that were not in his witness statement. He gave no reasonable explanation as to why this was the case. Further, it is his case that up to 7 people were involved in an orchestrated attempt to remove him from the organisation which included the fabrication of documents, false evidence and deliberately depriving him of the chance to produce his own evidence. 11. He is asserting that a staff member was specifically hired in order to generate a disciplinary case against him, two further staff deliberately deleted information from his phone in order to prevent him defending himself against a later disciplinary claim, during the disciplinary hearing note takers and chairs all fabricated meeting notes, and a witness who provided evidence of attendance on site had not attended. On the balance of probabilities, I do not accept that a complex and multiparty conspiracy was put in place for the sole reason of ending the claimant’s employment. 12. The claimant was also at times evasive in the answers he gave. For example, he changed his mind a number of times but whether he had or had not had a conversation with Ms. Nadi and in answer to a question from me following reexamination gave an answer about this which contradicted his previous oral evidence. 13. Overall, for the reasons set out above I do not find him to be a credible witness. In contrast, both of the respondent’s witnesses provided consistent witness evidence and I find them to be credible witnesses. 14. While the claimant provided a large amount of contemporaneous documentation which I have carefully considered, in general, I preferred the respondent’s evidence over that of the claimant. The claimant’s duties 15. The claimant’s employment had been the subject of a number of TUPE transfers. His relationship with this respondent began in October 2022. He has continuous employment dating back to 2004. Throughout his employment he has been involved in managing Southwark Council cleaning services. 16. During the investigation process the claimant accepted that his job duties included responsibility for the cleaners’ wages, responsibility for the ordering of cleaning materials, responsibility for managing cleaning contracts and for ordering uniform and distribution. He also accepted that he was responsible for ensuring that operatives were trained appropriately and for the distribution of health and safety information on sites, however, he says many of these duties were taken from him in October and December 2022. Removal of duties The claimant’s evidence[17]The claimant, in his notice of claim, had explained that Mr. Maruszczyk had been his direct line manager from 2019 until he became sick at some point in October 2022. At that point Ms. Campbell, the Account Director, deputised in his absence.[18]The claimant explained that Ms. Campbell and others began a discussion about how to reduce the number of cleaners on the contract. In that context she required a list of all existing cleaners with their contractual hours and the number of cleaners per site to be sent to her. Mr. Maruszczyk did this by 7 October. That was at pages 66-69.[19]Following this, it was the claimant’s evidence that Ms. Campbell directed that she would be solely responsible for handling all cleaning staff wages, contrary to the previous practice where wages were managed by the claimant as the Area Manager. This had always been his primary responsibility. It was, therefore, Ms. Campbell who was paying the cleaners’ wages from October 2022 and not the claimant. It follows, therefore, that any over or underpayments from October onwards were her responsibility and not the claimant. He should not be held responsible for Ms. Campbell’s errors.[20]As well as removing this primary duty, the claimant said that Ms. Campbell gave him new tasks to do without any formal training or guidance. This included the instruction to install a Timegate system in all of the council buildings. In oral evidence the claimant was adamant that she had also instructed him that there would be no signing in books and no timesheets. This effectively meant that in the absence of a Timegate record for a cleaner there was no means of verifying the hours that a member of staff or agency staff had worked.[21]The claimant disputed that he remained responsible for providing verifiable information to Ms. Campbell for her to complete the hours records for pay. He explained that if a record did not exist on the electronic system, she would simply make reference to the cleaners’ contracted hours and would pay them that amount.[22]He explained that Ms. Campbell also instructed him to complete a cleaning audit covering all the 55 buildings every month, but he was not given access to the information needed to complete the task. He explained that he was also told by Ms. Campbell that she would be responsible for arranging more comprehensive training covering all areas of health and safety, including COSHH, so that he could focus on the cleaning audits and the Timegate system installations.[23]In the first week of October the supply and ordering of uniforms for cleaners was assigned to Mr. Grocutt. He sent uniforms directly to the cleaners without the claimant’s knowledge or input. Each set of uniforms was intended to last for four months. The claimant said that until he began his holiday on 9 December no cleaner had mentioned requiring additional uniform. He was never given any budget as a manager to purchase uniforms. and no staff member had ever requested an additional uniform from him. It was the claimant’s perspective that as a result, he could not be held responsible for any issues with staff not wearing uniform from October onwards.[24]On his return from holiday his job had effectively been removed from him. Two new employees had joined the team when he returned on 20 December, Mr. Musumen and Ms. Nadi. He was surprised to learn they had been appointed to carry out his work duties. He said that these two individuals did not report to him and that his duties had been split and responsibilities taken from him.[25]The claimant referred to a number of documents in the bundle which he said confirmed the position. For the removal of the responsibility to pay wages he relied on an email sent to Ms. Campbell of 6 October giving her a staff list. I have referred to this above. This does not say that Ms. Campbell is now going to be responsible for payments, but the respondent did not dispute the claimant’s evidence on this point. It is common ground that it was Ms. Campbell who was liaising with payroll and not the claimant.[26]The claimant also disputed that he was still responsible for verifying hours so that Ms. Campbell could instruct payroll to make accurate payments. In this context, I was referred to an email sent by the claimant to Ms. Campbell alerting her to staff issues. On 30 November he sets out some changes to be made to overtime for one employee (Fatoumata) who should not be paid as she is off a particular site temporarily. On 17 January he answers a whole series of questions raised by Ms. Campbell and provides answers about a number of the staff and their hours.[27]I was referred to an email of 1 December 2022 in which Ms. Campbell contacted payroll with some details of hours. The opening sentence is “after reconciliation discussion with (the claimant) the following hours are missing from October 2022 payroll”. I was directed to a further email sent by Ms. Campbell to payroll of 5 January 2023 which she refers to her having doublechecked Timegate and refers to missing overtime hours. She says she needs to confirm these missing hours before she populates.[28]I was also directed to an email sent on 5 December to the claimant which refers to November timesheets. It appears to be sending the claimant the correct timesheet. On 28 December the claimant sent an email in which he states he has not completed cleaners’ wage sheets since 1 October. He says that no one has asked him to do so since the contract started.[29]In further support of the claimant’s position that there was no record keeping beyond Timegate, I was referred by the claimant’s counsel to an email from Ms. Campbell of 17 January stating that there will be signing in sheets for all sites for cleaners to sign in and out and copies were to be printed. On the same day Ms. Campbell is sent an email giving her cleaners’ sign in and out sheets and the email is headed “change control request cleaners sign in and out process”. This was relied on as evidencing that the first time Ms. Campbell ordered signing in books was 17 January 2024.[30]There is evidence in the bundle provided by the claimant of signing in books. He has produced photographs of signing in books from certain sites for dates in 2023 but has not produced anything earlier is because it his case that there were no books before this.[31]In support of his position that Ms. Campbell had taken away his training duties the claimant referred me to an email of 18 October in which she specifies that she needs to schedule BICS training for the cleaners. The respondent’s evidence of the claimant’s duties[32]Ms. Campbell was not present to give evidence. She had not been interviewed during either the disciplinary or appeal process. Neither of the respondents’ witnesses were able to give direct evidence on whether the claimant’s duties had changed as he said. Both relied on the fact that they had asked the claimant for evidence of this during the hearing that they had chaired, and he had said that there was nothing in writing, these were verbal instructions only. Mr. Oliveria gave evidence of some of these points and I was directed to a number of documents in the bundle.[33]It was Mr. Oliveria’s evidence that as the overall account director, while Ms. Campbell might be operating the payroll, she would be relying on information from the Timegate system, or in the absence of that information from the claimant as to who had worked what hours. It therefore remained the claimant’s responsibility to ensure that records of working hours were kept and that these were accurately passed onto Ms. Campbell. Where there were no electronic records, staff hours should be recorded via signing in books or timesheets. Timesheets were to be provided in relation to agency work. Mr. Oliveria explained that these systems are put in place so that the respondent can verify that staff are working hours to which they are paid. Without that control system they have no means of verifying what wages should be paid all whether the invoices submitted by the various agencies are correct.[34]While the claimant states that there were no signing in books before 17 January I was directed to an email sent on 11 January when Mr Musumen asks whether a signing in book can be provided for Peckham library which appears to be a new site. He is suggesting that as there is no phone for Timegate to work a signing in book should be provided for now until they go back to their old place.[35]I find that the correspondence on signing in books of 17 January is simply the respondent substituting books with their own company name on for the documents that were previously there. If, as the claimant says Ms. Campbell had forbidden the use of these books then on the balance of probabilities, I find that she would have recorded this in this email conversation and indicated that she did not want these book used when they were sent to her by what appears to be head office. She does not do so.[36]I have also considered the emails of 30 November, 1 December, 5 December, 5 5January and 17 January to which the claimant referred me. In considering these documents I find that they evidence Ms. Campbell liaising with payroll, but in doing so she is relying on information from the claimant. He is clearly providing that information to her, and she expressly refers to discussions with the claimant to reconcile payment information.[37]On the balance of probabilities, I find it unlikely that Ms. Campbell told the claimant that timesheets and signing books were prohibited. Had she done so, when for example she raises queries with him and the claimant provides answers I would have expected him to say that he would have been able to do this had she allowed him to implement signing in books/timesheets. He did not. Instead, he answers her queries. There being no signing books or timesheets is also inconsistent with the email of 5 December when the claimant was discussing a timesheet and the email of 11 January from Mr. Musumen when he suggests a signing in book as a solution. I find it more likely that Ms. Campbell wished people to move on to the electronic system but where that was not working or not in place she would have required other records to be in place. There is no logical explanation as to why the respondent would not wish to have accurate records. The claimant’s explanation for what he says with their conduct is that this was all part of a conspiracy to ensure that he was dismissed. That seems less likely.[38]I find that the contemporaneous documentation and the evidence of Mr. Oliveria supports the respondent’s position, that is that while Ms. Campbell may have been the lead contact, the claimant was expected to and was providing her with the details of the hours staff actually worked. I found that this remained his role.[39]This was something that had happened under previous iterations of the contract and it seems unlikely that the respondent organisation would not want records to verify that payments are being made appropriately. It would not be responsible for the respondent organisation to charge the client or to pay staff without being able to understand that the hours charged or paid were accurate. I do not accept the claimant’s evidence that this was prohibited by Ms. Campbell. I find, instead, that there was an expectation that these were in place and verifying staff hours remained the claimant’s responsibility.[40]Mr. Oliveria explained that the training that the claimant was expected to provide was effective on the job local training. BICS training was always given by an external trainer because once completed staff were given a license. In his view, this was not Ms. Campbell taking away the claimant’s training obligations, which remained his, but was her getting involved in the provision of external training. This was not challenged.[41]I accept Mr. Oliveria’s evidence on this point and prefer it to the claimant’s account. On the balance of probabilities, it seems unlikely that an account director who had another manager in between her and the claimant would take over training for cleaners when she was responsible for services across the entire account. I find that the claimant remained responsible for on-the-job cleaning, and this is not the same as the BICS training referred to in the correspondence.[42]I was also taken to the notes of the disciplinary investigation meeting in which the claimant confirmed that Frank and Rose (Ms Nadi and Mr Musumen) reported to him. These individuals similarly confirmed that was the relationship with the claimant in their meetings. On the basis of the information the claimant gave at the time I accept that these individuals reported to him.[43]In the context of division of labour between the claimant and the two supervisors I was directed to an email from Ms. Campbell of 9 January which was sent to the claimant and Frank and Rose. I find that this identifies that the two supervisors are to carry out some tasks and to be the cleaners’ first point of contact, but the claimant is the escalation point. This is consistent with the claimant remaining as Area Manager but being given staff to help him.[44]The claimant has accepted that the provision of health and safety information on site remained his responsibility. His dispute here is that he says he had done it, not that it was not his job.[45]On the balance of probabilities I find that the claimant’s job responsibilities were not removed from him. I find that he was provided with additional support in the form of two supervisors. This may well have been a response to his view he had been doing the work of 2 Area Mangers previously. While the claimant says that they took his duties away, I find that he understood they were his direct reports, that they were intended to be his direct reports and that they were put in to assist him with his duties as supervisors not as a replacement area manager.[46]I find that once the respondent took over the contract the claimant remained Area Manager. He was, however, given two further supervisory staff to a system and was tasked with implementation of the Timegate system and audits on the sites. Nonetheless, he remained responsible for health and safety matters, training staff, supervising uniform was being worn properly, although this was distributed by someone else, and more importantly making sure that Ms. Campbell had the information she needed for accurate completion of pay claims.[47]I have preferred the respondent’s documentary evidence and the evidence of Mr. Oliveria over that of the claimant. I have done so partly because contemporaneous documents are generally a more reliable source of information than parties’ recollections many months after the events. I’ve also done so because I have generally found the claimant not to be a credible witness for the reasons set out above. Concerns relating to the contract[48]The respondent wanted to move to a different cost model and not simply rely on the inherited cost of all workers working the same hours as pre-transfer. In considering how to change its cost model the respondent carried out some checks by questioning staff on the ground about who worked where. A number of people were involved in this.[49]On 16 February 2023 Mr. Oliveria visited Canada Water Library and spoke to a colleague, Mr. Curtis. Mr. Curtis told him that only three individuals, including himself, worked on the evening shift and Mr. Curtis confirmed this in writing. However, the spreadsheet of staffing information showed that an agency worker also worked there during this time. Mr. Oliviera said that when the claimant was asked about this, he confirmed that the information on the spreadsheet was correct. In other words, he confirmed the existence of an agency worker on site who, as far as the respondent was concerned, was not present.[50]Ms. Campbell instructed Ms. Nadi to check each building and to see who was working there. Ms. Nadi was given an Excel spreadsheet with the cleaning team contracted schedule and building summary and a payroll of staff payments and hours et cetera and was told to attend each building, to meet with introduce herself to teams and verify their task the contracted work our schedule and report those findings back to Ms. Campbell.[51]From the papers it appears that she sent Ms. Campbell an email on 1 March 2023 which included her findings but was said to highlight a concern about serious threatening behaviour towards her by the claimant.[52]Mr. Gardner, Operations Director Technical Services London, interviewed Ms. Nadi about her findings and the information she provided stating that the claimant had threatened her. The notes of that meeting specify that Ms. Nadi made a statement in her email that the claimant had said to her “don’t ask me anything and stop telling staff anything about me and know even if I lose this job, know that I am still around Southwark area we could take it outside the building”[53]When she was asked about this, Ms. Nadi stated that the claimant made this threat towards her because he did not like her asking questions and checking on the team and many people in the team were scared of him. Ms. Nadi then set out that she knew some specific issues.[54]She referred to Gus who was based at Wolworth library who had told her that the claimant had taken him to work somewhere else and had not paid him. She referred to Ms. Marful who was being paid for working at a site that had closed. The central spreadsheet showed her working at Bermondsey Nursery Centre which closed in 2021. Ms. Nadi said she believed this cleaner was being paid for working at a site that was closed and also being paid for work at another site where she actually worked, which she found very suspicious.[55]She explained that it was finding out about these two things that made her more curious and asked more questions and she discovered many more examples of the same thing. Ms. Nadi also gave an example of Canada Water. She had attended there and met three staff members who confirmed they were the full team, and it had only ever been three people in the team, but the schedule of hours paid that there were four people being paid. This confirmed the information given to Mr. Oliveria that only three colleagues worked at Canada Water Library. Ms. Nadi said that it was when she had raised these issues with the claimant that he had threatened her.[56]Mr. Gardner also met with another supervisor, Mr. Muzumen. The meeting opened with Mr. Gardner asking about an email sent to Ms. Campbell. That email content was set out in the minutes of the meeting and was described by Mr. Muzumen as a shocking conversation with a lady called Fatoumata Camara. She had called about her pay slip and some hours which had not been paid. When he asked why, having not worked or been on holiday, she expected to get paid she ended the conversation quickly. Mr. Muzumen realised that the claimant was behind that because he had told her to come back knowing she was not working. He believed this had occurred without Ms. Campbell knowing and he wanted the issue with Ms. Camara to be investigated.[57]Mr. Muzumen confirmed that the claimant was his line manager but was not talking to him. When he was asked about this, he explained that the claimant was rude to him and he believed this was because he did not know what he was doing and gets very angry when asked anything. He went on to say that some of the cleaners had said they needed the claimant back as they needed more money. They offered Mr. Muzulmen bottles of Courvoisier and offered cash, some saying they would give one hundred pounds a week. This was both temporary and permanent cleaners. He reported that they had been given more hours by the claimant but had to pay him. He had sent his email to Ms. Campbell about Ms. Camara and other matters because he had become aware of this. The claimant had told him to stay out of this when it was raised with him.[58]Mr Muzumen indicated that he believed that Ms. Camara was paying the claimant. He then provided details of locations where the hours people working were wrong and incorrect compared to the schedules and raised a concern that staff were getting overtime payments and not working the hours.[59]He provided a short statement confirming that Ms. Camara had not worked for four months but she then complained about wages she had received because there were some hours missing.[60]Cova Montes, an account director also provided an email confirming that six sites had no health and safety documents to evidence COSHH, risk assessment method statements or site files and colleagues were also working without uniform. While she provided this information on a specific date, she did not specify the dates on which her visits took place.[61]The decision was taken, based on the concerns about the situation with Ms. Marful and Ms. Camara, the lack of uniform, lack of health and safety documentation and the general lack of control over hours worked, together with the allegation by Ms. Nadi that the claimant had threatened her that there should be an investigation into the claimant’s conduct.[62]At this point the respondent had a witness statements from Ms. Nadi and Mr. Muzumen together with notes of investigation meetings with them raising concerns about the claimant and a Timegate diary for Ms. Marful and Ms. Camara evidencing payment of shifts that had not been worked and information from Ms. Montes about lack of uniform and health and safety information on sites. The claimant’s explanation for the action taken against him[63]It is part of the claimant’s case that the investigation into him and the subsequent action were not to do with his conduct, but the respondent had a number of other motives.[64]One of these was that he challenged the conduct of various respondent managers, including Ms. Campbell. In his written witness statement the claimant also referred to the ongoing discussions about reducing the cost of the contract.[65]He referred to an email he was sent on 17 November when he was asked to provide information to identify the staff who would be required to reduce their hours. The claimant told Ms. Campbell that they should go through a proper procedure and contact HR. She was not happy with that suggestion and was instead trying to underpay the cleaners’ contractual hours.[66]In his witness statement the claimant also referred to a meeting he had on 7 December with Ms. Richmond and Ms. Woods. At this meeting the issue of the under costed contract model was raised again and it was suggested that other means should be used to reduce staff and their hours. The claimant stated again that any reduction in the cleaners’ hours should be done legally by the proper HR processes and the respondent was not happy with his opinion.[67]In his witness statement the claimant also referred to Ms. Clare Woods attending the offices and asking for his password and access to his laptop. He said that he began to suspect this was a coordinated effort to terminate his employment possibly due to his refusal to unlawfully reduce cleaners’ contractual hours to match the underpriced contract value.[68]The claimant’s evidence was that Ms. Campbell failed to implement any proper legal procedure. In his claim form the claimant said that all his suggestions in advising that an orthodox approach be adopted through HR and ACAS redundancy procedures were in vain and this was the genesis of his problem with the respondent.[69]The bundle contained an email from Mr. Grocott of 17 November to Ms. Campbell headed reduction to cost model (urgent). That instructed her to go through a copy of the Southwark Council cleaning model in order to reduce the hours. The email instructed Ms. Campbell to identify the staff required to reduce hours/be in the HR process. I find that this instruction evidences the respondent’s intention to use an HR process. I do not accept the claimant’s evidence on this point. I find that the respondent had no reason to act against the claimant because the claimant had challenged Ms. Campbell and others on their intention to act unlawfully. I find that did not happen.[70]The claimant suggests another motive for the action taken against him was his own costs. In his written witness statement, he states that he was clearly dismissed partly to compensate the under costed values that Ms. Campbell had made. He identified that his position, area manager, was not shown on the costing spreadsheet. The inference is that his costs needed to be saved and that was the motive for what happened to him. The claimant explained that Ms. Campbell had sent him the document which he had included in the bundle from pages 373 to 416.[71]This was put to Mr. Oliveria who confirmed this document had been used as part of the tender process. The cost model for the contract was just a standard starting point. He accepted that the claimant’s role was not specifically shown on the cost model but confirmed that this was simply a starting point. They had inherited all the staff and the costs from the previous contract provider under the TUPE regulations. That did not necessarily match their starting cost model, and the respondent added extra resources onto this contract. I have found, for example, that two supervisors reporting to the claimant were added. Mr. Oliveria said there was never any intention to remove the claimant on cost grounds.[72]The claimant’s contention is based on the absence of his role in a document and what he says is an unfair process designed to make sure he was sacked. I prefer Mr. Oliveria’s evidence on this point. I find that there was no question of needing to remove the claimant on cost grounds, although costs in general were being reviewed.[73]The claimant has also suggested action was taken because he raised a grievance. It is his evidence that he was suspended the day after he did so. The claimant also says that his grievance was not dealt with. It appears to be suggested that this is background evidence of the way he was treated differently. The documentation shows that the claimant contacted HR on 14 February 2023 saying that he was concerned about his contract and working conditions and had experienced an uncomfortable situation.[74]On 15 February HR responded stating that HR would not normally deal with grievances directly with an employee and it was recommended that he discussed things with his line manager. On 4 July HR contacted the claimant to confirm that the claimant had not got back to them about the grievance or booked any time to chat it through.[75]The claimant responded on the following day saying that he did mention it to Ms. Campbell as HR had advised and it was verbally agreed they would discuss it on 16 February, but he was then suspended. He understood he had been advised the grievance would be dealt with after the disciplinary process.[76]I find that the claimant did not raise any formal grievance or take matters any further forward. I find that the grievance was not addressed because the claimant had not formally raised one as an HR process, it was a conversation only which in any event was to be addressed after the disciplinary process. He was course dismissed and so this informal conversation did not take place. I do not find that having raised matters in an informal chat with his line manager was the reason that he was suspended and put through the disciplinary process.[77]I find that the decision to move to a disciplinary investigation was based on the information that had been uncovered during conversations with staff and in particular Ms. Nadi’s allegations. There was no other motive behind this action.[78]In all the circumstances in the light of this information I find it was reasonable of the respondent to believe that the matter should be investigated. An allegation by one colleague about another that they have threatened them is in itself a serious accusation and the claimant in cross examination acknowledged that this was the case. The disciplinary investigation[79]Elisa Cardoso was tasked with carrying out the investigation. As a part of this the claimant was invited to attend an investigation meeting. He was told that the purpose of the meeting was to carry out appropriate investigations as part of a fact-finding exercise into allegations relating to the claimant’s conduct, performance and site management. The meeting was to take place on 31 May 2023.[80]The invitation letter advised the claimant that once the investigation was completed a decision would be taken as to whether or not there was a disciplinary case to answer. If he were to be involved in any subsequent disciplinary procedures he would be advised of this separately.[81]The claimant was asked about the message that he had sent to Ms. Nadi. In fact, it appears to have been a conversation based on the investigation with Ms. Nadi, but the notes show the investigator refers to it as a message or a text.[82]Despite this possible misdescription of how the words were delivered, the claimant was able to respond to the point. He explained that Ms. Nadi had been going round the sites telling people he was a thief, and he asked her to stop telling people that was the case. He explained that any reference to “taking it outside” meant that that he was going to report her to the community because she is also Nigerian.[83]The claimant was asked about Timegate and said that he trained staff on how to use it. It was Ms. Campbell who completed the staff monthly wages, and she was the one who looked into Timegate. For those who had not logged in using that, the claimant confirmed that staff would report to him, and he would report to Ms. Campbell when staff did not get paid.[84]He would investigate any missed pay by looking at pay slips and would verify hours worked on the basis that if there was no complaint from a client the cleaning was therefore done. He confirmed that there were no timesheets. He confirmed that he only reported hours issues if staff complained there were short of pay. There was no evidence from signing books to confirm hours of pay. He confirmed again that he in effect verified that hours had been worked because there would have been a client complaint if staff had not done their full hours.[85]The claimant was asked about Bermondsey Nursery and said that he did not report any hours to Ms. Campbell, any issue with Ms. Marfu or Ms. Camara were down to Ms. Campbell. He just reported hours to the agency. The claimant confirmed that cleaners were provided with uniforms. While the claimant’s explanation is now different, saying that Ms. Campbell was responsible for training, in the investigation meeting he accepted that he was responsible for training the staff and said that he did not have time to do it. He accepted that he was responsible for making sure there was health and safety information on site but said that he had done it. He told the investigator that his job had been taken away from him in January therefore anything that happened after that was in effect not his issue.[86]Ms. Cardosa considered the claimant’s explanations and the information that she had been given from Ms. Montez, Ms. Nadi and Mr. Muzumen, together with the Timegate diary for the 22 December to 3 January and 23 February and timesheet record for Bermondsey Nursery for 22 October, 22 November to 2 December and 23 January.[87]She compiled a report of her investigation which set out that she had investigated a number of points. She recommended that the matter proceeded to a disciplinary hearing.[88]The claimant says that the notes of the investigation meeting are incorrect. He was given no opportunity to read or sign them after the meeting. They do not reflect what he said, and he does not accept that he did agree in this meeting that he had spoken to Miss Nadi in the way that she had said. This is not a point that he made in the later disciplinary meeting when the notes of the investigation formed part of the pack he was sent. The claimant suggests that there is a complex conspiracy with deliberate misrepresentation of notes being practised. This is not a point that he made in his witness statement. I do not accept this and accept the respondent was entitled to rely on the notes as reflecting the claimant’s position.[89]I find that these notes contain an admission that the claimant had a conversation with Ms. Nadi which happened because he wanted her to stop making allegations that he was a thief, and he did make a comment that he would report her in some way. It also contains acknowledgement that he did not do timesheets and did not investigate missing hours other than relying on the absence of client complaints. It also confirmed that he knew that he was responsible for training the staff. The disciplinary hearing[90]In light of the disciplinary officer’s investigation report, the claimant was invited to attend a disciplinary hearing on 8 June 2023. I find that it was reasonable of the respondent to take this step based on her findings and review of the evidence that she had been given.[91]The letter of invitation sets out the allegations that were being taken forward and the relevant evidence relied on. The letter included the range of possible sanctions. The claimant was advised of his right to be accompanied by a colleague or trade union representative.[92]The allegations were “Dangerous and threatening behaviour/Intimidation towards a colleague, Alleged fraudulent reporting of hours without any proof they were completed; Poor Site Management and Performance, namely; Breach of H&S rules, Excessive usage of Agency and Neglect of duties”.[93]The relevant evidence was the Investigation Meeting Notes from 31st May 2023, Witness Statement from Rose Nadi, Witness Statement from Frank Muzumen, Southwark Council Site Visit – Statement from Cova Montes, Contract Director, Fatoumata Camara Work Diary December 2022, January 2023 and February 2023 and Agartha Marful Work Diary October 2022, November 2022, December 2022, January 2023. These are all said to be attached to the letter and that was not disputed at the relevant time.[94]The claimant criticized the allegations as being vague. I find they are clearly set out in the letter and the accompanying evidence, and it is clear from the meeting notes that the claimant understood what they were as he was able to answer the questions put to him.[95]At the outset of the hearing the claimant confirmed that he was happy to go ahead without a trade union representative. Mr. Oliveira went through the various allegations with the claimant. He started with the allegation that the claimant had threatened a colleague, Ms. Nadi. The claimant confirmed that he had said to her “we can take it outside the building” but he meant that they could take this outside to the community. This was the second admission by the claimant that he had used this form of wording. I find that Mr. Oliveira reasonably formed the view that the words were intimidating and were intended to stop Ms. Nadi talking about the claimant.[96]The claimant was asked about the site visits done by Ms. Montez, which confirmed that six sites had no health and safety documents and that colleagues were working without uniform. The claimant gave an explanation that everything had been delivered in October 2022 and distributed by him. He was unable to explain why Ms. Montez did not find any evidence of this but simply said that the report was not correct.[97]On the subject of training, the claimant’s explanation was that he did not complete training the operatives because Ms. Campbell had requested this to stop. He had nothing in writing to evidence this. Mr. Oliveira formed the view that the claimant had rejected his responsibilities related to health and safety.[98]On payment issues the claimant’s explanation was that any errors here were down to Ms. Campbell as she was controlling Timegate. He confirmed that he was aware that only 55% of the staff were using this system.[99]Mr. Oliveira formed the view that as Area Manager it was the claimant’s responsibility to get all staff onto the system and to use timesheets when the system was not fully up and running.[100]On the two specific payments made for work not being done, Mr. Oliveira formed the view that it made no sense for this to be down to Ms. Campbell. If, as the claimant said, Ms. Campbell was paying based on Timegate and Ms. Marful wasn’t attending the nursery site because it was closed, then Ms. Marful would not have been paid. For them to be paid Ms. Campbell must have been getting the information from the claimant that the individual was working.[101]The same logic applied to Ms. Camara. If neither colleague was working in the buildings to which they were assigned and there was no signing in and out, then it would be down to the claimant to update Ms. Campbell and the claimant either failed to do so or did this incorrectly. The bundle shows that on 30 November the claimant did let Ms. Campbell know that Ms. Camara was at a different site but that related to November. There is no evidence that he provided any other information on an ongoing basis. It is also evidence that the claimant knew this was his responsibility.[102]Mr. Oliveira considered that the allegations put to the claimant were sufficiently proved. He concluded that the claimant had committed acts which amounted to gross misconduct. He set this out in the outcome letter 13 June 2023. His conclusions were these “Dangerous and threatening behaviour/Intimidation towards a colleague a. You threatened a female colleague by offering to take an issue outside of the building, you claim that you meant to say that you would report her to the Nigerian community to solve the issue. You failed to offer any mitigation for your actions. The company does not condone this type of behaviour, I therefore find you guilty of committing an act of Gross Misconduct. 2. Alleged fraudulent reporting of hours without any proof they were completed a. When asked about this allegation you claim that you were advised not to use Timegate, timesheets or signing in books by your line manager, you didn’t have any written confirmation to confirm what you were saying. You failed to ensure that colleagues were clocking in or out using Timegate instead you were relying on our clients contacting you if there was a missed clean, if you didn’t hear from the client then you made the assumption that the colleagues were on time for work and completed their contractual hours. This is no way to report on hours, how can we bill our clients based on assumptions. You failed to offer any mitigation for your actions. I therefore find you guilty of Gross Misconduct, namely fraudulent reporting of hours. 3. Poor Site Management and Performance, namely; o Breach of H&S rules ▪ As an Area Manager with 20 years’ experience there is absolutely no excuse for failing to ensure that the correct site H&S rules are followed, there were no training records on site no COSHH files, no RAM there were colleagues working without uniforms. o Excessive usage of Agency ▪ When asked about the excessive us of agency personnel you claimed that your manager had forbidden you to recruit but you couldn’t provide any evidence to confirm this. You are fully aware by your 20 years’ experience that recruitment is part of an Area Managers’ remit. o Neglect of duties ▪ When asked about training records and the training of Operatives and Supervisors you confirmed that you hadn’t trained any of them as you were asked by your manager not to do this, again you failed to show any evidence of this alleged instruction from your manager. With 20 years’ experience you will be fully aware of the importance of ensuring that your Operatives and Colleagues are fully trained to comply with H&S regulations.”[103]The claimant was dismissed without notice on 13 June 2023. The claimant appealed against his dismissal.[104]While the claimant states that the notes of a disciplinary hearing are inaccurate and he did not accept that he had the conversation with Ms. Nadi in the way the notes confirm, I accept that the notes are accurate. I found the claimant is not generally a credible witness. There is simply no reason why so many individuals would conspire to falsify notes. I therefore accept their accuracy and conclude that Mr. Oliveria was entitled to rely on them.[105]I find that the decision maker had a genuine belief that the claimant had done the things that he was accused of based on the investigation material that he had seen and the admissions the claimant made in the disciplinary hearing. I find that he formed this belief on a reasonable basis following a proper investigation.[106]I find that it was reasonable for the decision-maker to conclude that the claimant had said to his direct report that he would take it to the community and that even if he lost his job, he would still know what was going on. I find it reasonable for the decision-maker to conclude that he was threatening his direct report to stop questioning him.[107]I find that it was reasonable for the decision-maker to rely on the evidence that he was given as part of the disciplinary hearing, in particular from Ms. Montez. He was entitled to rely on his understanding of an area manager’s role and his understanding of the claimant’s responsibilities.[108]The decision-maker was entitled to reach the view that the claimant had admitted at least two of the allegations put to him. He had admitted speaking to his colleague. He admitted that he had not provided accurate verifiable information to the respondent to confirm that the wages paid were appropriate. He had also accepted that he was responsible for putting up health and safety information.[109]In those circumstances I find that the allegations were properly investigated and were proved on the balance of probabilities and therefore to a reasonable standard.[110]Each of the allegations is serious. In particular I find it was within the reasonable range of responses for an employer to terminate employment for dangerous and threatening behaviour/intimidation of a colleague, breaching health and safety rules, failing to train staff and keep training records and not providing information about hours which will allow verification of payments made to them. The Appeal Process[111]The grounds of appeal were set out in a letter from the claimant of 20 June 2023. He was then invited to attend an appeal meeting on 5 July 2023. That meeting was chaired by Mr. Fowles, Regional Operations Director, Soft Services for the respondent.[112]Mr. Fowles characterised the appeal as being about three issues. The claimant had threatened a colleague, it appeared that he was using excessive agency staff and the respondent suspected that something was going on as he was not filling in timesheets which were relied on in good faith, and he was a supervisor but was not keeping health and safety up-to-date.[113]As the notes of the appeal meeting indicate Mr. Fowles asked the claimant about the comment made. He asked the claimant if he thought the comment was threatening and felt that the claimant could remember his exact words and started backtracking when he was pushed at this point.[114]On the use of agency staff and timesheets the claimant said there weren’t any, it was done from memory. He said that Ms. Campbell didn’t have a process so he can you do what he thought was right. He was unable to provide any information about processes or permissions.[115]In relation to the health and safety issues, the claimant produced some pictures showing health and safety posters on the wall on site. These were the same photographs he had produced at the disciplinary meeting. He also said he had not been shown what to do and didn’t understand what was expected of him, he had not been given the tools to do his job and was not trained. As far as training others were concerned, he produced two training forms, but this was felt by Mr. Fowles to be inadequate.[116]Mr. Fowles concluded that the claimant had not produced any new information to the appeal. It simply repeated the responses the claimant had already given during the disciplinary process. Mr. Fowles had already looked through the evidence and those documents before the hearing. He therefore did not uphold the appeal. In particular he felt that these threats made were threatening and abusive behaviour. He also supported the finding that it was the claimant who reviewed and confirmed agency spends to Ms. Campbell who approved the spend based on good faith.[117]The claimant was sent an appeal outcome letter 13 July 2023. This upheld the original dismissal.[118]Again, I find that the appeal chair was entitled to form the view that the claimant had made threatening comments to Ms. Nadi. The claimant had accepted the conversation took place in the disciplinary hearing. It was reasonable for the appeal chair to conclude that no additional information had been provided by the claimant which challenged the previous position. He was effectively repeating what had already been said and this did not take matters any further. Mr. Fowles had a genuine belief in the claimant’s guilt and had no concerns about the decision and I find that he acted reasonably. Procedural/Fairness challenges raised by the claimant[119]As part of these proceedings the claimant has raised a number of procedural challenges and lack of appropriate evidence which he did not raise either during disciplinary hearing or during the appeal hearing. They were not therefore matters that the disciplinary or appeal chair could address. I have, however, considered whether a reasonable investigation should have taken steps to further investigate and to obtain this information.[120]The claimant said that as he was accused of fraud, he should have been given more evidence, for example, which staff had spoken to Mr. Muzumen and said he accepted payments. This allegation was not relied on by the respondent. The decision letter and the questioning in the hearing only addressed the specific cases of Ms. Camara and Ms. Marful, and details were provided of these. I do not find this to be a flaw in the investigational procedure.[121]The claimant also now says there should have been statements from Ms. Campbell and his line manager. While I accept that a statement from Ms. Campbell could have dealt with the claimant’s main allegation that it was no longer him who was responsible for various tasks, I find that Mr. Oliveria did address the point by asking for any documentation to support that. On the balance of probabilities, I find it unlikely that such a significant change in job duties as the claimant described would not have been put in writing. I’ve also found it highly unlikely that an account manager would be told to stop the manual gathering of time information when an electronic system was not yet in place. I conclude that it is not a flawed investigation not to have verified this with Ms. Campbell, but it was reasonable for the decision-maker to rely on his own knowledge of the organisation.[122]While that could have addressed the claimant’s point that he was no longer responsible for pay issues it would not, in any event, have addressed the very serious allegation of his comment to his direct report or the lack of training records (as at the time he was not disputing this was his responsibility) or the lack of health and safety information on site.[123]The claimant also now says that he had proof on his phone beyond the photographs that he was able to provide but these were deliberately removed from his telephone when he was forced to hand over his work mobile during his period of holiday in December. Again, he did not say this at the time. The respondent cannot be criticized for not investigating this.[124]The claimant challenged the evidence of Ms Montez. He now says that Ms. Montez didn’t visit any sites at all. In support of this the claimant produced copies of signing in books for the premises that she had visited. These were not produced by him at the time. They were not referred to in his witness statement. There was no reason given as to why he could not produce this information during the disciplinary hearing, but he did not do that.[125]The claimant challenged the evidence of Mr. Curtis as untrue. He said that Mr. Curtis did not work the hours of 8 PM till 10 PM as he said in his statement. In support of this he relied on a schedule showing who worked at Canada Water library which showed Mr. Curtis working different shifts but that there was a vacancy for the hours of 8 until 10. It was the respondent’s case that the schedule showed a vacancy to be covered by a member of the respondent staff as the column showed the initials AS, which was said to stand for the respondent’s name at the time which was Atalian Servest .[126]The claimant maintained that the initials AS stand for agency staff. I find that AS stands for the name of the respondent and not for agency staff as that is the context in which it is used in an email of 17 January 2023 by Ms. Campbell that the claimant referred to. I find that it was reasonable of the decision-maker to rely on the evidence provided to him by two staff members without forensically checking schedules when the point was not raised to him by the claimant at the relevant time. This is not a flaw in the process.[127]Reference is made to the claimant being denied the opportunity at the disciplinary hearing to put forward written representations or to confirm the accuracy of draft minutes taken at a meeting. He was given the disciplinary investigation notes as part of the disciplinary hearing and did not raise any question as to accuracy. He was given a chance to comment on the notes from the appeal and did make some amendments. He was not given the disciplinary hearing notes to comment on. It is not a mandatory step in a fair procedure that this occurs and in the absence of the claimant challenging the investigation notes at the disciplinary hearing, I find it was reasonable for this step not to be taken. There is no evidence that this was done deliberately, or the claimant was treated differently from anybody else.[128]It was also submitted that the disciplinary chair questioned the claimant in an intimidating manner and asked leading questions. This was not put to the relevant witness. There is no evidence from the notes that this was the case. I do not accept that this happened. It does not amount to any procedural flaw in the process.[129]I find it was reasonable of the decision-maker to rely on what the claimant said at the time and not to undertake any further investigations. The claimant could have made the additional points he now makes and did not. There was no obligation on the respondent to go and doublecheck what one of its staff had said in the absence of any challenge from the claimant. Discrimination[130]The claimant relies on discrimination as a motive for his dismissal and the failure to uphold his appeal. In his claim form he stated that he observed that the make-up of the disciplinary board was not racially balanced, and he was the only black man in the room. Similarly for the appeal procedure the chief decision-makers were from the same racial background and in the same managerial environment and so the decision was bound to be biased.[131]In his witness statement in the final paragraph the claimant says that he was discriminated against in an attempt to get rid of him. He gives no other written evidence on this point.[132]Mr. Oliveira was asked about this, and it was put to him that the reason that the claimant was investigated and dismissed was because of his race. Mr. Oliveira denied this and stated that he dismissed the claimant for the reasons set out in his decision outcome letter. It was because he felt that the allegations were sufficiently proved.[133]The claimant has also described a general conspiracy between at least seven people. When he was asked about this, he said that the person who had orchestrated it was Mr. Oliveria. In answer to cross-examination, he made further points that were not put to Mr. Oliveria and were not in his witness statement. He stated that he believed that the motivation for his treatment and this conspiracy was his race because of the way that Mr. Oliveria acted in the disciplinary meeting. He referred to him pushing his chair back and telling the claimant not to point at him and appearing to be angry.[134]In written submissions the claimant’s representative set out a list of 10 matters she said amounted to less favourable treatment which were background to explain the discriminatory nature of his subsequent dismissal and the failure of the appeal. The original list included one further matter, but she accepted that that was not part of the relevant background.[135]To the extent that these have not been addressed so far, I will do so now. The first four matters which are said to be unfavourable treatment which are background evidencing discrimination are that the completion and submission of cleaners’ wages to payroll was taken away, the claimant was instructed to install the time gate system with no formal training, he was instructed to place seven health and safety posters and COSHH files on the noticeboard of all 55 buildings and he was also instructed to complete cleaning audits over 55 sites monthly.[136]There is no evidence provided as to why this is less favourable treatment or how anyone else would have been treated differently. I have found that the claimant’s role did not change. He remained Area Manager with the same overall responsibility although he was given two supervisors to work with him. While he may have been asked to do these tasks, I cannot find that they are unfavourable in themselves. They are things that happened at work that the claimant does not like.[137]The claimant also complains that his work phone, password and laptop were taken away from him prior to starting holiday and he states that no other employee was treated in the same way. There is reference in the bundle to the reason that his telephone was given in while on holiday. That is because staff used it to contact him. I find it reasonable of the respondent to ask for the claimant’s work equipment to remain at work when he was away given that it was used by staff to contact him and the respondent needed to be able to reply to staff. I found that there is no unfavourable treatment here. Unlawful deductions from wages claim[138]The claimant states that during his period of suspension £100 was unlawful deduction from his wages in March 2023. When he asked for an explanation of this deduction, he was told by Ms. Campbell that was for a traffic offence fine. The claimant said that upon further investigation the Metropolitan police confirmed that no fine had been paid by the respondent to the police and as he had completed a training course the respondent waived the fine without further action. This money is still outstanding.[139]The claimant set out in his witness statement that he would have reported this issue to the employment tribunal sooner but as he was still under suspension, he believed that Ms. Campbell would resolve this if his appeal was ultimately successful. It was common ground that the deduction was made from the claimant’s pay on 31 March 2023. Early conciliation was started on 3 August 2023, certificate was issued on 7 September 2023 and the ET 1% of 29 September 2023. On its face the claimant did not bring his claim within three months’ time limit.[140]The claimant has not given any information beyond the fact that he thought the matter would get resolved in time, as to why he could not have brought this claim earlier. There were no barriers to his doing so he was able to bring a claim in which he relied. He clearly understood that a claim could be brought to the employment tribunal. He was able to do this once the appeal process is finished. There were no issues of health that prevented him from doing so or any lack of understanding of his rights and ability to bring a claim. Relevant law/submissions Unfair Dismissal s 98(1) ERA[141]Once the employer has established a potentially fair reason for the dismissal under section 98(1) of ERA 1996 the tribunal must then decide if the employer acted reasonably in dismissing the employee for that reason.[142]Section 98(4) of ERA 1996 provides that, where an employer can show a potentially fair reason for dismissal: "... the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -(a) depends on whether in the circumsances (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.[143]Where misconduct is said to be the reason for dismissal then, as set out in British Home Stores Ltd v Burchell 1980 ICR 303 EAT, the respondent must show that it believed the claimant guilty of misconduct, it had in mind reasonable grounds upon which to sustain that belief, and at the stage at which the belief was formed on those grounds, it carried out as much investigation into the matter was reasonable in the circumstances.[144]It is not enough that the employer has a reason that is capable of justifying dismissal. The tribunal must also be satisfied that, in all the circumstances, the employer was actually justified in dismissing for that reason. It must consider whether in all the circumstances it was reasonable for the employer to treat that reason as sufficient reason to dismiss. In this regard, there is no burden of proof on either party and the issue of whether the dismissal was reasonable is a neutral one for the tribunal to decide.[145]When assessing whether the respondent adopted a reasonable procedure and was reasonable in treating the reason as sufficient to dismiss, the tribunal must use the range of reasonable responses test.[146]By the case of Sainsbury's Supermarkets Ltd v Hitt 2003 IRLR 23 tribunals were reminded that throughout their consideration in relation to the procedure adopted and the substantive fairness of the dismissal, the test is whether the respondent’s actions were within the band of reasonable responses of a reasonable employer.[147]In this case the Court of Appeal decided that the subjective standards of a reasonable employer must be applied to all aspects of the question whether an employee was fairly and reasonably dismissed. The tribunal is not required to carry out any further investigations and must be careful not to substitute its own standards of what was an adequate investigation to the standard that could be objectively expected of a reasonable employer. Direct Discrimination[148]The issues include a claim of direct discrimination. S13 of the Equality Act (“EqA”) provides “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”.[149]S.13 EqA focuses on whether an individual has been treated ‘less favourably’ because of a protected characteristic, the question that follows is, treated less favourably than whom? The words ‘would treat others’ makes it clear that it is possible to construct a purely hypothetical comparison.[150]Whether the comparator is actual or hypothetical, the comparison must help to shed light on the reason for the treatment. I considered Shamoon v the Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11. The comparator required for the purposes of the statutory definition of discrimination must be a comparator in the same position in all material respects as the victim so that he, or she, is not a member of the protected class. There must be ‘no material difference between the circumstances relating to each case’ when determining whether the claimant has been treated less favourably than a comparator.[151]The unfavourable treatment must be “because of” the protected characteristic. The protected characteristic needs to be a cause of the less favourable treatment but does not need to be the only or even the main cause. Further it is not enough for the claimant to show that he was treated differently; he or she must demonstrate that such differential treatment was unfavourable, (Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065).[152]A complaint of direct discrimination will only succeed where the tribunal finds that the protected characteristic was the reason for the claimant’s less favourable treatment, (Royal Mail Group Limited v Efobi (2019) EWCA Civ 18.I was referred to Alam v London Probation Trust UKEAT/0199/14/L, Discrimination does not have to be the sole cause of the Respondent’s treatment of the claimant but it can be the effective cause of the treatment. Consequently, it can be inferred by the treatment of the Claimant[153]I was also directed to Barh v Law Society (2004)IRLR 799 .It will often be far more difficult for the employer to explain blatantly unreasonable treatment of a worker, and it might be inferred from the absence of an adequate explanation that discrimination occurred. Burden of proof[154]In Igen v Wong ltd [2005] EWCA Civ 142, [2005] ICR 931, CA. remains the leading case in this area. There, the Court of Appeal established that the correct approach for an employment tribunal to take to the burden of proof entails a two-stage analysis. At the first stage the claimant has to prove facts from which the tribunal could infer that discrimination has taken place. Only if such facts have been made out to the tribunal’s satisfaction (i.e. on the balance of probabilities) is the second stage engaged, whereby the burden then ‘shifts’ to the respondent to prove — again on the balance of probabilities — that the treatment in question was ‘in no sense whatsoever’ on the protected ground.[155]The Court of Appeal explicitly endorsed guidelines previously set down by the EAT in Barton v Investec Henderson Crosthwaite Securities Ltd 2003 ICR 1205, EAT, albeit with some adjustments, and confirmed that they apply across all strands of discrimination.[156]The bare facts of a difference in treatment and a difference in status only indicate a possibility of discrimination, they are not 'without more' sufficient material from which a Tribunal can conclude that there has been discrimination, Madarassy v Nomura International [2007] IRLR246 CA para 54-57. Likewise, that the employer's behaviour calls for an explanation is insufficient to get to the second stage: there still has to be reason to believe that the explanation could be that the behaviour was "attributable (at least to a significant extent)" to the prohibited ground. Therefore 'something more' than a difference of treatment is required. Unlawful deductions from wages[157]The statutory prohibitions on deductions from wages are contained in Part II of the Employment Rights Act 1996 (ERA). The general prohibition on deductions is set out in s.13. A right arises where monies have not been paid which are “properly payable”. There must be an actual failure to pay, and it must relate to money that is due to the individual. If an individual enters into a written agreement and consents to making the deduction, then the money is not due.[158]An employment tribunal shall not consider a complaint about a deduction from wages unless it is presented before the end of the period of three months beginning with— “2(a)in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or 2(b)in the case of a complaint relating to a payment received by the employer, the date when the payment was received. (3) Where a complaint is brought under this section in respect of— (a)a series of deductions or payments, or (b)a number of payments falling within subsection (1)(d) and made in pursuance of demands for payment subject to the same limit under section 21(1) but received by the employer on different dates, the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received. (3A) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2). (4) Where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.”
Conclusion
[159]Having made the findings of fact as set out above, I have applied the relevant law as I have also set out and reached these conclusions on the issues I was asked to determine.[160]Starting with the unlawful deduction from wages claim, in closing submissions counsel for the claimant accepted that the claim was out of time. She accepted that it was reasonably practicable for the claimant to have made this claim within the three-month time limit.[161]I have also found that there were no practical barriers to the claimant bringing this claim within the three months’ time limit. I conclude that it was reasonably practicable for him to have brought the claim in time as Counsel has agreed. On that basis the tribunal has no jurisdiction to hear this claim, and it is accordingly dismissed. Unfair dismissal[162]I remind myself that I must not substitute my decision for that of the respondent decision maker. I conclude that the claimant was dismissed for conduct. I have found that the decision-maker believed the claimant was guilty of misconduct and when Mr. Oliveria reached this conclusion, he had in mind reasonable grounds upon which to sustain that belief. At the stage at which he formed that belief he had carried out as much investigation into the matter as was reasonable in the circumstances.[163]I have found that the procedure adopted was a reasonable one. The claimant was given notice of meetings, informed of his rights, provided with the evidence in advance and given an opportunity to raise any points he wished.[164]I’ve also concluded that dismissal was within the reasonable range of responses given the severity of the issues both singly and together.[165]I find therefore that the claimant was fairly dismissed. Direct discrimination[166]The question I have to decide is was the claimant treated less favourably than the relevant comparator by being dismissed and his appeal against dismissal being rejected. The claimant relies upon a hypothetical comparator being a white male with similar qualifications and service record.[167]I note that the claimant himself has suggested other motivations for his dismissal and in submissions his representative confirmed that he believed his race was one of three reasons.[168]While I accept that if race played any part in the decision the dismissal would be discriminatory, I have concluded that the respondent reached a reasonable conclusion that the claimant was guilty of several acts of serious misconduct. I find that the reason that he was dismissed and the reason that his appeal was not successful was because the respondent had reached this reasonable conclusion. The reason for his dismissal and the reason the appeal was not successful was the claimant’s own conduct, which had been properly investigated.[169]I conclude that a hypothetical comparator, being a white male with similar qualifications and service record, would have been treated in the same way. There is therefore no difference in treatment. I am satisfied that the claimant’s race played no part whatsoever in any of the decisions by the respondent. The claim of discrimination on grounds of race does not succeed.[170]For these reasons none of the claimant’s claims succeed.