Mrs J Quilliam v DWS Realisations Ltd (in voluntary liquidation): 2408559/2020

EMPLOYMENT TRIBUNALS

Case No 2408559/2020

Between

Mrs J QuilliamClaimant

DWS Realisations Ltd (in voluntary liquidation)Respondent

Before

Employment Judge Ross

Mr B Williams (instructed by Solicitor) for claimant

Not represented for respondent

Date 13 September 2021

JUDGMENT

[1]Leave is granted to amend the name of the respondent to DWS Realisations Limited (the respondent has changed its name from Dave Whelan Sports Limited).

[2]The claimant’s claim for unfair dismissal is well founded and succeeds. I award the claimant a basic award of £9,690.24 and a compensatory award of £1,468.60.

[3]The claimant’s claim for wrongful dismissal (notice pay) is well founded and succeeds and I award the claimant twelve weeks pay at £346.08 = £4,152.96.

[4]The claimant’s claim for age discrimination under the Equality Act 2010 is not well founded and does not succeed. Case No. 2408559/20 2

REASONS

[1]The claimant brought claims for “ordinary” unfair dismissal pursuant to s95 and s 98 Employment Rights Act 1996. She also brought claims for wrongful dismissal and for age discrimination. She alleged her dismissal was an act of direct age discrimination pursuant to section 13 Equality act 2010 and brought allegations of Indirect Age Discrimination under s 19 Equality Act 2010 and Age Related Harassment under s26 Equality Act 2010.

[2]The respondent did not attend this hearing and although a brief response was filed disputing the claimant’s claims, a full response was not filed. The respondent, formally known as Dave Whelan Sports Ltd, was in insolvency. The administrators granted permission for the case to proceed, noting that any award made by the tribunal in favour of the claimant would rank as an unsecured claim in the administration of the company. See letter from the administrators dated 26 October 2020.

[3]I had the benefit of a file of documents and a witness statement from the claimant. I heard evidence from her.

[4]The issues in this case were as follows. Case No. 2408559/2020 2

[5]Unfair dismissal. What was the reason for dismissal? The reason relied upon by the respondent in their letter of dismissal dated 5 March 2020 was “inappropriate comments of a xenophobic nature”. Did the respondent have a genuine belief based on reasonable grounds following a reasonable investigation of that conduct? Was dismissal procedurally fair and within the band of reasonable responses of a reasonable employer?

[6]For the wrongful dismissal claim the issue was whether the claimant had committed a repudiatory breach of contract entitling the respondent to dismiss her without payment in lieu of notice.

[7]For the age discrimination the issues are listed below in this judgment but the key issue in the claim was whether the claimant could adduce facts which could suggest that the reason for her dismissal was her age. If yes the burden passed to the respondent to show a non-discriminatory explanation for the treatment.

[8]I now consider the evidence in this case.

[9]There is no dispute that four of the claimant’s colleagues alleged to the employer that the claimant had made offensive remarks of a xenophobic nature. The conversation was alleged to have occurred when the claimant was working on reception at the sports club where she was employed. One of the witnesses said the remark was the claimant: “talking about getting more foreign people as members which she clearly didn’t like because she said we keep getting these foreign people I can’t really even understand what they say”. Another witness suggested the claimant had said “we have too many foreign people in this country and need and to get rid of some” and ”you can never understand what they are saying”.

[10]The claimant agrees that there was a conversation about the spelling of the name of a member of the club. She disputes exactly what was said. At the investigation meeting she is noted as saying “I wouldn’t have said this in a malicious way”p73 and “I understand why this could have been taken wrong but I wasn’t being racist or didn’t mean it in this way.” By the disciplinary hearing she disputed making the remarks and accepted they would be offensive if said.p76-77.

[11]I must now consider whether the respondent had a genuine belief based on reasonable grounds following a reasonable investigation of the claimant’s conduct. I remind myself it is not for me to substitute my own view it is whether a reasonable employer of this size and undertaking had a genuine belief based on reasonable grounds following a reasonable investigation.

[12]It is clear the respondent had statements from four other members of staff who said the claimant had used words that any reasonable employer could have dismissed her for because those remarks are entirely unacceptable and inappropriate in the modern workplace.

[13]From the employer’s perspective there were witnesses who suggest that the claimant made those remarks, and the fact that they do not all completely agree with the exact words is not unusual because quite often people do not remember things clearly, and it is actually sometimes rather suspicious if people remember a remark in exactly the same way . Case No. 2408559/2020 3

[14]So did the employer have a genuine based on reasonable grounds following a reasonable investigation? Yes, the respondent was entitled to prefer the witnesses accounts to the claimant’s recollection of what was said.If what they said was true, the remarks were capable of amounting to gross misconduct.

[15]I must consider whether dismissal was within the band of reasonable responses of a reasonable employer. The dismissing officer had clearly found that the claimant had made those remarks, he preferred the witnesses’ account to the claimant's account, but he is not here to explain why he gave the sanction he did. He did not give the claimant a final written warning, for example, as Mr Williams for the claimant suggested, and send the claimant on some sort of training programme in terms of diversity. He could have done that. The claimant had very long service – 20 years is very long service these days. Why did he not do that? I have no explanation for that because the dismissing officer did not attend. He might have had a very good reason but because I have not heard from him I do not know what his thinking was. I therefore find the dismissal unfair for that reason.

[16]I also find the dismissal was unfair for a procedural reason. The respondent did not hold an appeal against the claimant’s dismissal. It never happened, despite the claimant’s request and although there may be a reason for that (such as the pandemic), the Tribunal finds that a reasonable employer, even though the pandemic had hit could have attempted to hold an appeal hearing- the respondent could have done a remote hearing on Microsoft teams or similar platform or held a telephone hearing with the claimant, or even conducted an appeal on the papers via email, before they went into administration.

[17]Those are the reasons why I find the dismissal to be unfair.

[18]Compensation for unfair dismissal.

[19]I award the claimant a basic award of £9,690.24 and a compensatory award of £1,468.60.

[20]In terms of the basic award I accept the calculation prepared by the claimant’s solicitor which properly takes into account her length of service rate of pay and age.

[21]In terms of the compensatory award for the dismissal, I am required to look at the reality of the case, the loss that flows from the dismissal. The claimant was dismissed on 5 March 2020. Not very long after the claimant was dismissed the government ordered the first national lockdown on 23rd of March. The claimant confirms that the respondent’s business which was fitness premises, was shut during that period. I find relying on the claimant’s evidence that it is very likely that the respondent’s employees were probably placed on furlough at that time receiving 80% of their wages under the government’s coronavirus job retention scheme. Therefore, I have awarded the claimant her wages at an 80% rate from the period of the termination of her employment until the business went into administration when I find her employment would have been terminated due to redundancy in any event. I have deducted her notice pay from the compensatory award because I have awarded her payment in lieu of notice separately and the claimant cannot recover both. I have also taken into account benefits for the period.

[22]That is how I arrive at the figure of £1,468.60 for her compensatory award. Case No. 2408559/2020 4

[23]The calculation is £346.08 x 80% = £276.86 for the ten weeks up until the administration; less the ESA of £130 a week for ten weeks (£1,300) less the notice pay in that period.

[24]As I have stated because the business is insolvent it is likely that the claimant will have to recover the basic award and her notice pay from the government’s statutory insolvency fund and she will be an unsecured creditor in relation to the other award meaning the prospects of the claimant recovering that some to be limited. Age Discrimination

[25]The claimant brought a claim for direct age discrimination pursuant to section 13 Equality Act 2010 that she was treated less favourably by the respondent because of her age in the following respects :-

[26]a.the respondent had an agenda for her to leave its business, it wanted to employ someone younger to fit in with this ethos and image as front of house manager and so she was dismissed because of her age

[27]b.it uncharacteristically strictly applied as disciplinary procedure to her in a manner that resulted in her dismissal as it chose not to discipline her younger colleagues at all either regarding the incident in question or for other misconduct and all discriminatory issues

[28]c in dismissing the claimant relied on the inconsistent and unreliable witness statements of the claimant’s younger colleagues

[29]d. It immediately upon confirming dismissal at the disciplinary hearing appointed Anna to the claimant’s role meaning that any appeal ( which remains outstanding) was bound to not be upheld.

[30]The issues in a direct discrimination case are whether the claimant can adduce facts which could suggest that the reason for the unfavourable treatment was her age. If she can the burden shifts to the respondent to give a non-discriminatory explanation for the treatment. There is then a possible dfence for the respondent- was the treatment a proportionate means of achieving a legitimate aim?

[31]The age-group relied upon by the claimant was “over 50.”

[32]The claimant also brought a claim for indirect age discrimination and the provision criterion or practice relied upon by the claimant are set out at paragraph 38 of her claim form. The issue for the tribunal is firstly did the respondent apply to PCPs relied upon by the claimant, did any such PCP put the claimant’s age group at a particular disadvantage in relation to a relevant matter, was as the claimant put at that disadvantage and was any treatment a proportionate means of legitimate aim

[33]The claimant also brought claims for harassment and as set out at paragraph 40 a to g of the claim form. The legal issues are firstly whether the unwanted conduct occurred secondly whether they were related to age and then whether they had the disadvantageous effect on the claimant as set out at paragraph 26 Equality Act 2010

[34]I stepped back and remind myself that in a discrimination case,the initial burden is on the claimant to prove facts that could suggest that the real reason for Case No. 2408559/2020 5 the termination of her employment was her age, and it is not enough to have a “difference in treatment” and “a difference of protected characteristic” so it is not enough to be an older person and to be dismissed – there has got to be “something more” that could shift the burden of proof in this case. I am not satisfied there is “something more” in this case.

[35]I am not satisfied that the fact that the other people who made the allegations were younger is sufficient, and I am not satisfied the fact that it was a younger woman who was taking up the claimant's role when she was dismissed is sufficient. If somebody is dismissed, somebody has got to do the job pending the outcome of the appeal, and if the workforce is predominantly younger it is going to be a younger person.

[36]I am not satisfied either that the suggestion that the claimant had had a warning for lateness and that was around the time she ceased treatment for menopause and she had an eye condition, is sufficient to shift the burden of proof.

[37]Turning to the specific allegations of direct discrimination the first allegation is that the respondent had an agenda for the claimant to leave its business, it wanted to employ someone younger to fit in with this ethos and image as front of house manager and so she was dismissed because of her age.

[38]I am not satisfied that the claimant has adduced evidence to show that the respondent had an agenda. The respondent had statements from three other employees who had clearly stated the claimant had made some offensive xenophobic remarks. There was no suggestion that the respondent would have treated an employee of a different age who made those remarks any differently. I find the burden of proof does not shift and so the allegation does not succeed.

[39]I turned to the next allegation that the respondent “uncharacteristically strictly applied its disciplinary procedure to the claimant in a manner that resulted in her dismissal whereas it chose not to discipline her younger colleagues at all either regarding the incident in question or the other misconduct and/or discriminatory issues.”

[40]Once again I’m not satisfied that there was any evidence firstly that the respondent was particularly strict in applying the disciplinary procedure to the claimant and even if I’m wrong about that I am not satisfied that doing so was age-related and so the allegation fails at this stage.

[41]The next allegation is that “in dismissing the claimant it relied on the inconsistent and unreliable witness statements of the claimant’s younger colleagues”. There was no dispute that the claimant’s colleagues were younger than the claimant. I rely on my previous finding that in fact it is often suspicious if colleagues asked about a particular event have an identical recollection. The gist of the recollection of the claimant’s colleagues was very similar. The respondent was entitled to rely on the recollection of the claimant’s colleagues in relation to offensive remarks which they said the claimant had made. I am not satisfied there is any evidence to shift the burden of proof in relation to this allegation and accordingly fails. Case No. 2408559/2020 6

[42]I turn to allegation d: “It immediately upon confirming dismissal (at the disciplinary hearing) appointed Anna to the claimant’s role meaning that any appeal brackets which remains outstanding was bound not to be upheld”.

[43]I am not satisfied that this is factually correct. The claimant had left the business when dismissed and said in evidence that she was not clear about what was happening in the business when she was no longer there. It is not unusual in a business when an employee has been dismissed to appoint someone to take up the role that the dismissed employee has held. The claimant had no actual knowledge of whether or not that appointment was permanent and no knowledge whether, if her appeal had been held and had been successful whether she could have been reinstated. Furthermore there was no evidence to suggest that appointing Anna to the role the claimant held whether on a temporary or permanent basis was anything to do with the claimant’s age. Accordingly the burden of proof is not shifted and this allegation fails.

[44]I turn to the claimant’s indirect discrimination claim which relies on essentially the same sets of fact.

[45]I am not satisfied in relation to the first allegation the claimant has shown the respondent had (a) a PCP of promoting and having an image and ethos connected to attracting younger members that favoured younger employees to customer/member facing roles and that this puts the claimant and those of her age group (over 50) at a particular disadvantage.

[46]Other than the claimant’s assertion that this was the position I’m not satisfied there was any independent evidence to allow me to conclude that the respondent had such a PCP. The fact that the claimant was over 50 and that her colleagues were younger is not sufficient to show the respondent adopted such a PCP. Accordingly the claim fails at that stage.

[47]I turn to the second allegation (b) the PCP of applying its disciplinary policy punitively and harshly to employees of claimant’s age group. I am not satisfied the claimant, apart from assertion, produced evidence to show that the respondent applied its disciplinary policy punitively and harshly to employees of the claimant’s age group. Accordingly the allegation fails at this stage because I am not satisfied the respondent had adopted such a PCP.

[48]Finally I turn to the claimant’s allegations of age related harassment. Allegation a. “The claimant was offended and humiliated by the respondent’s manner in which the investigating meeting and disciplinary hearings were conducted. These were such that they would not respond to the claimant’s comments and conducted a one-sided hearing. This conduct created a hostile and humiliating environment for the claimant. This related to the claimant’s age as she was subjected to scrutiny which younger employees were never subjected to.”

[49]I am not satisfied that the claimant has shown that the investigatory meeting and disciplinary hearing were conducted in such a way that the respondent conducted a one-sided hearing and would not respond to the claimant’s comments. The minutes of the investigatory hearing and disciplinary hearing show that the claimant was asked about the remarks she was alleged to have made. The respondent provided the claimant with written statements from the other witnesses at Case No. 2408559/2020 7 the disciplinary hearing, so the claimant was able to comment on what had been said. The claimant was asked for her version of events.

[50]The claimant was also previously advised that if she felt victimised she could put in a grievance herself. “you will need to contact HR directly if you feel victimised and want to put in a grievance”. Accordingly I find the claimant’s allegation to be factually incorrect and it fails at that stage

[51]Allegation b. “The claimant felt there was an attempt to coerce her into an admission of guilt despite repeatedly seeking to provide an explanation including denial of saying the alleged comments. The claimant contends this behaviour was due to her age and part of ongoing unwanted conduct”.

[52]I find it is factually incorrect to suggest there was an attempt to coerce the claimant into admission of guilt. At her investigatory meeting the claimant appeared to concede that she may have made the remarks. When asked do you remember saying that “there are too many foreign people here and some need to go back home” p74 the claimant said” if I did say that it wouldn’t have been meant seriously”.

[53]Later when informed in that meeting “ I have 4 different witness statements from 4 staff members “there are too many foreign people here and we need to get rid of some ” .This is what they all say.” The claimant replied “I wouldn’t have said this in a malicious way” p73.

[54]However by the disciplinary hearing the claimant denied making the remarks and said she did not say those words.. The notes of the disciplinary hearing show that the claimant had the opportunity to see the witness statements made against her and was asked for her comments. I am not satisfied that the claimant has shown that there was an attempt to coerce her into an admission of guilt and accordingly this allegation fails.

[55]Allegation c :”The claimant had put to her such as “I don’t think anybody is accusing you of being racist” but during the disciplinary hearing which the claimant felt because of her age there was an assumption or implication that any comments would be of a prejudiced or racist nature. This created a hostile environment for the claimant and there was a perception of the claimant that this would be the case.”

[56]The tribunal finds this allegation also to be factually incorrect. I find that if the claimant had used the remarks she was accused of, they were offensive and discriminatory. I find the dismissing officer stated in the disciplinary hearing” I don’t think anyone is accusing you of being racist but certain things you can’t say in a work environment”. See p78. The respondent had statements from a number of employees of offensive remarks the claimant was alleged to have made. By the time of the disciplinary hearing the claimant agreed that if the remarks had been made , they would be offensive but said she would not have made them. I am not satisfied the claimant has adduced any evidence to suggest that because of the claimant’s age there was an assumption that any comments she had made were prejudiced or racist.

[57]Having found that the allegation is factually incorrect it fails at that stage.

[58]Allegation d “the application of the disciplinary procedure at all material times applied stringently and strictly in respect of the claimant but was not invoked where Case No. 2408559/2020 8 similar or more severe acts of misconduct were committed by younger employees. The claimant felt this was unwanted conduct in using the procedure in this manner and created a hostile environment for the claimant.”

[59]The tribunal is not satisfied the claimant has done any more than suggest a difference of treatment and a difference of protected characteristic. There was no detailed evidence from the claimant to how that a younger employee in the same set of circumstances as the claimant i.e. accused of using inappropriate xenophobic language in the workplace would have been treated any differently. The tribunal is not satisfied there is evidence to suggest the application of the disciplinary procedure was related to her age and the allegation fails at this stage.

[60]Allegation e. “In January 2020 the claimant was asked to consider part-time hours and demotion upon her return from compassionate leave. This left the claimant feeling confused and uncomfortable. This fed into subsequent events and a course of action to remove her from the respondents business because of her age. This was unwanted conduct which was hostile and degrading. The claimant declined the suggestion to movement part-time hours”

[61]The tribunal is not satisfied the claimant has adduced any evidence to suggest that the suggestion to move on to part-time hours was related to her age. A difference in treatment and protected characteristic is not sufficient to shift to shift the burden of proof. Accordingly the allegation fails at this stage.

[62]Allegation f “following the events in January 2020 the claimant was shunned by her younger colleagues which was unwanted conduct based on her age. There was often an element of gossiping in the back office which left the claimant on her own the front desk. This caused the claimant to be left out by the younger employees and felt humiliated and degraded by this. This was mentioned informally to management but no action was taken and the conduct did not change.”

[63]The tribunal is not satisfied that other than the claimant’s perception there is any evidence to suggest that other colleagues who happened to be younger than the claimant gossiping in the back office amounted to unwanted conduct which was related to the claimant’s age. The allegation fails at this stage.

[64]Allegation g “after informing Georgia the claimant was led to believe these issues of gossiping in the back office will be discussed with the team. These concerns were not resolved- the claimant felt uncomfortable about this and felt further humiliated when Helen disclosed to the claimant that Georgia had not discussed any of these concerns with them”

[65]The tribunal is not satisfied that there is evidence to suggest any failure by Georgia to deal with the claimant’s concerns is related to the claimant’s age. Accordingly the allegation fails at this stage. Wrongful dismissal-Notice Pay

[66]The last part of the claimant's claim was difficult from an evidential point of view .The issue is whether I consider the claimant committed a review to a repudiatory breach of contract which entitled the respondent to dismiss her without payment in lieu of notice . Case No. 2408559/2020 9

[67]It requires me to consider what actually happened. On the one hand there is evidence in the signed notes of the investigatory meeting where the claimant appears to concede that she may have made the offensive remarks. On the other hand before me she was adamant that she did not make those remarks and accepts that if she had, they would have been offensive. Do I think the claimant actually made those remarks?

[68]I have to balance what the claimant tells me, with the written statements of the other people at the time which suggest that the claimant did make those offensive remarks.

[69]I find that if she had made the remarks the respondent would have been entitled to dismiss her summarily.

[70]I have taken the claimant at her word that she did not make those remarks and therefore the claimant is entitled to her notice pay , £346.08 x 12 = £4,152.96. Other Matters

[71]I have not allowed an uplift for failure to follow the ACAS code of practice. Although I entirely accept that the respondent breached the ACAS Code in not granting the claimant an appeal, given that the application for appeal was made in the early stages of the Covid 19 pandemic and a national lockdown then occurred causing the respondent’s business to close and the staff to be placed on furlough at the relevant time and the business then went into administration, I am not satisfied in those circumstances it is just and equitable to uplift the compensation.