Mr K Singh v Select Service Partner UK Ltd and Patrik Janak: 2410333/2018

EMPLOYMENT TRIBUNALS

Case No 2410333/2018

Between

Mr K SinghClaimant

Select Service Partner UK Ltd and Patrik JanakRespondent

Before

Employment Judge Slater

Date 28 October 2019

JUDGMENT

[1]The complaints of unfair dismissal, religion and belief discrimination and complaints of failure to pay holiday pay and pay during compassionate leave are dismissed on withdrawal by the claimant.

[2]The remaining complaints of direct race discrimination, harassment related to race and victimisation will proceed to a final hearing.

REASONS

[1]The claimant was employed by the respondent as a team leader at Manchester Airport from June 2010 until his dismissal in December 2017 although he was reinstated from 30 March 2018 and his employment then continued until he resigned with effect from 12 July 2018.

[2]In this claim, early conciliation was commenced on 28 February 2018, the certificate was issued on 28 March 2018 and the Employment Tribunal accepted the claim form on 27 April 2018.

[3]There was a preliminary hearing before Employment Judge Slater on 4 October 2018 and following that hearing she prepared a Judgment dismissing complaints of unfair dismissal, religion and belief discrimination and failure to pay holiday pay on withdrawal by the claimant, leaving the remaining claims to be determined at this final hearing.

[4]Employment Judge Slater as part of the notes from the preliminary hearing set out at Annex A the complaints which were numbered from 1-15, and at Annex B the issues starting with time limits and moving on to victimisation and remedy, etc. Those are the matters before this Tribunal and the ones we shall be dealing with.

[5]The claimant gave evidence on his own behalf. The respondent called evidence from Rebecca Ponsford, Karen Phillips Hitchen, Chloe Knight, Patrick Janak and Ricky Dunning.

[6]In reaching the conclusions that we reach we have considered the evidence that we have heard and that we have seen. We have considered the submissions made by both representatives which we are not going to repeat.

[7]We are going to look first at the complaints and then go on to consider the issues.

[8]The first allegation taken from Annex A is said to be between December 2016 and an unspecified date in 2017, the complaint being: “R2 reducing the amount of overtime the claimant worked as set out in paragraph 6 of the further particulars”. That allegation was of direct race discrimination.

[9]The evidence produced by the claimant did not provide information as to a base amount of overtime from which he says there was a reduction, it did not tell us what the reduction therefore was, it did not tell us when it was, it did not tell us the reason for any changes. We have seen evidence from the respondent’s side that this business is to some extent seasonal and/or that when Monarch Airlines went under there was a reduction in the amount of business. Therefore, on the basis of the evidence before us we are unable to find as a fact that the amount of overtime the claimant worked was reduced and the complaint therefore must be dismissed.

[10]The second complaint is that between September 2016 and December 2017: “R2 being overly and unnecessarily critical of the claimant's work” said to be set out in paragraph 7 of the further particulars, and again an allegation of direct race discrimination.

[11]We were taken to some emails sent to all of the team leaders containing criticisms of the way in which they were undertaking their roles. We were taken to a smaller number of emails sent to the claimant only, but one of them in particular was backed up with photographs setting out confirmation of the matters complained of. The witness Mr Janak, the second respondent, was not asked in particular about allegations that were said to be overly and unnecessarily critical. On the basis of the evidence before us we are unable to find that there was anything overly and unnecessarily critical of the claimant put to him by the second respondent, so we do not find for the claimant in respect of the second allegation.

[12]The third allegation is of Chloe Knight in October 2016 saying to the claimant that he was a “bloody bastard Indian dog” and that the claimant had taken a job away from local people. That is said to be set out at paragraph 8 of the further and better particulars. It is significant in our view that this claim did not appear in the claim form. It was later particularised, and the wording is this: “In October 2016 Chloe Knight, an employee of the first respondent, said to the claimant that he was a ‘bloody bastard Indian dog’ and that the claimant had taken a job away from local people. The comments were extremely upsetting for the claimant as was the fact that it occurred in front of a number of customers. The claimant complained to the second respondent who was the Duty Manager. No action was taken against Chloe Knight. The claimant was told by the second respondent not to take the matter further as Chloe Knight was his partner and he would deal with the matter at home.”

[13]The respondents in a consolidated response to the various particulars supplied by the claimant stated: “It is denied that Chloe Knight used those words against the claimant or that she had said he had taken a job away from local people.”

[14]We have the claimant's witness statement on this subject where he deals with it at paragraph 13, in this way: “In October 2016 I was leading a shift and it was quite a busy day. I assigned the staff duties in my capacity as a shift leader and all staff were happy with the duties assigned to them except for Ms Knight. She was not very happy with the duties that I had assigned her as she always wanted to work on the till behind the bar. I would also like to submit that I used to rotate the staff on different duties however Ms Knight always complained and moaned and did not follow the deployment sheet and always wanted to work behind the bar on the till. The other staff’s morale was down as they were not happy because they all did not get to work behind the bar and had to perform other duties and this affected my shifts as I was shorthanded and could not handle the situation as Ms Knight was treated differently and more favourably than other staff members. She was also taking advantage of the situation. Although I cannot remember, but it was in October 2016 during a shift, Ms Knight said to me that I am ‘bloody bastard Indian dog’ and that I had taken job away from local people. These comments were extremely upsetting. Furthermore, this occurred in the presence of customers. I felt extremely embarrassed and low. I decided to go into the office and I literally started crying there. I asked the second respondent who also came into the office and I informed him of the incident involving me and Ms Knight. He forced me not to bring this into higher management’s knowledge by sending an email or not to write down in the daily log in shift planner book. I felt helpless and my morale was down and demotivated. After that I would go to work but was not happy. I felt I was bullied but no action was taken against Ms Knight as she was the partner of my line manager.”

[15]So just looking at that paragraph in the claimant's witness statement it is significant that there is no date given more specific than the month of October 2016 and there is not a description of anything in particular that happened between the claimant and Ms Knight that might have caused her to use the offensive words allegedly said by her.

[16]Ms Knight deals with matters in her statement and in simple terms she denies the allegation. She does confirm that Mr Janak was and is her boyfriend. They were already going out when he became the Assistant Manager of the Cabin Bar in July 2016. In relation to the incident she said: “I did not say that or anything like that. My father is from Bangladesh. I find it absolutely horrible and hurtful that Kuldeep would say something like that about me.”

[17]Mr Janak deals with the matter in his supplementary statement saying: “Kuldeep never told me that Chloe called him a ‘bloody bastard Indian dog’. Chloe hates any racist comments and her father is from Bangladesh so I do not believe she would say something like this and I would also not forget someone saying something like this to me. I understand Kuldeep previously stated that he raised this to Karen not me. I did not ever tell Kuldeep that he should not raise a complaint about Chloe. Chloe and I are in a relationship but I never let this interfere with work. I would never tell someone not to write a complaint about Chloe because I would not bring my personal life into work.”

[18]The claimant did not put this in the original document (his claim), he put it in further particulars. In his witness statement he provided information without a date or a reason for the statement. His evidence on this point, in our judgment, has not been clear. If those most hurtful remarks were actually said to him, we conclude that he would and should have had the date very much in his mind and the circumstances in which they were stated. The cross examination of the claimant has led to reference to one or two matters that it might have been, but it has never been pinned down. There is nothing to corroborate the claimant's evidence. The evidence of Ms Knight and Mr Janak clearly are to the contrary. All evidence has been tested by cross examination. We are not able to find as a matter of fact that it is more likely than not that the words were said by Ms Knight.

[19]The fourth allegation relates to shift changes. That allegation can be marked as withdrawn by the claimant.

[20]The fifth allegation is dated February 2017 and described as: “R2 bringing the claimant up for investigation into shift planners when other team leaders doing the same were not investigated” set out at paragraph 12 of the further particulars, being an allegation of direct race discrimination and/or victimisation.

[21]The claimant was investigated. The claimant was invited to attend a disciplinary hearing. There is more to it than allegations concerning the shift planner.

[22]On 8 March 2017 the claimant was told he was being invited to a disciplinary hearing. There were three allegations: complaints made against him by Jamie Tyler who was the person who had investigated matters against the claimant, as follows: “(1) On December 31, January 4, 6, 7 and 8 2016 you changed the vulnerable stock morning count figures within the daily planner however you were not present in the morning to do so. (2) On 31 December you did not carry out a direct instruction from your Multi-Unit Manager, Ricky Dunning, to ensure the front of house areas were cleared of debris, crockery and glassware. (3) You acted in an inappropriate manner as a team leader which resulted in a formal complaint being made by a member of staff.”

[23]I should say here that the member of staff who made a complaint against the claimant was Chloe Knight.

[24]The claimant was provided with two sets of investigation notes, copies of the daily planner including the vulnerable stock counts, and a copy of the formal complaint.

[25]We have been provided with notes of the disciplinary hearing that the claimant attended on 3 May 2017 at Olympic House. During the course of that disciplinary process the claimant accepted that he changed the closing stock: somebody changed the opening stock and wrote over his handwriting. The claimant admits his mistake. He wrote down some of the wrong things. He got opening and closing mixed up, so clearly the claimant as a part of that meeting does accept that he had not completed the forms properly.

[26]The claimant suggests that other team leaders were not investigated or put up for disciplinary in relation to shift planners. On the evidence we have had it would appear from Mr Janak that the other people involved were not in exactly the same position as the claimant and were therefore not appropriate comparators on the basis that they were trainee team leaders rather than an experienced team leader like the claimant was, and it would appear that they were not investigated for the other two matters that the claimant was.

[27]We therefore do not find that there were other team leaders in exactly the same position as the claimant, however it would appear that when they were looked at a decision was made by Mr Janak to give them further training, just as he gave the claimant some further training in respect of shift planners. So in simple terms we are not satisfied that the claimant has proved the complaint at number 5.

[28]The sixth allegation is of moving the claimant from running shifts and working as a team leader to working as a host. This was around July and August 2017 and is said to amount to direct race discrimination and/or victimisation. The claimant again provided particulars of this, stating that: “In July/August 2017 the second respondent moved the claimant from running shifts and working in his role as a team leader instead making him work as a host. A role that other staff members did not want to do. The claimant was required to do this full shift for weeks. The claimant was the only team leader who was made to do the role. The claimant is unaware of any other team leader ever having to work as a host. The claimant spoke to the second respondent to explain his unhappiness at the role and suggested that if somebody needed to do the role that the team leaders could take it in turn. That suggestion was rejected by the second respondent who required the claimant alone to undertake the role. None of the other team leaders were Indian. The claimant was extremely upset by the way he was treated.”

[29]The evidence of Mr Janak is to the effect that the claimant being moved to work as a host was done with the claimant's agreement, and it does not seem to be disputed that working as a host did not reduce the claimant's basic pay i.e. he was still paid at the team leader rate rather than the team member rate.

[30]We were taken to an email from the claimant dated 11 May 2017 saying that he was complaining about his hours, and the response (an email from Patrik Janak on Friday 12 May 2017) says this: “Your contracted hours are 24 hours and I know I’m scheduling you on more than your contracted hours. The reason why we created a role of host for you for the same rate of pay was to take you out of the stress as we both know, and I think we will agree, last months you were under pressure which we could see outcome on the team and unit. On our meeting where Ricky sat with us and led this meeting we agreed on your hours that you can start later than 8.00am and we together find start 9.00am to be the best for you. We did you a favour and set your day off so you can plan ahead with your family.”

[31]We have considered the position there. We have noted Mr Janak’s evidence that the claimant was the first person asked and so no other team leaders had had the opportunity to refuse. He also gave evidence that within the business as a whole other team leaders did carry out the host role from time to time.

[32]The claimant was asked to work as a team leader. We will go on later to consider that matter in terms of is it or is it not a question of discrimination.

[33]The next allegation (number 7) is August 2017 said to be “transferring the claimant from Terminal 2 to Terminal 3”, and the particulars of that are that: “In August 2017 the claimant was transferred from Terminal 2 where he was based to work at Terminal 3 away from his team. The claimant explained to the second respondent that as his speciality was in bar work that there were others who were more suited to the role at Terminal 3 which was in a coffee shop. Although all the team leaders stated they did not wish to be sent across to Terminal 3 it was the claimant that was forced to go.”

[34]We were taken at the start of the claimant's cross examination to the claimant's contractual documentation in which the first respondent reserves the right to (within reason) move its staff around within the various departments or businesses that they operate within all of the terminals at Manchester Airport.

[35]The evidence of Mr Janak is to the effect that the claimant was moved from Terminal 2 to Terminal 3 to give him experience of a different type of unit working in a coffee shop and not a bar, and there is evidence that when the claimant indicated he did not like working in the coffee shop he was allowed to return to the earlier role in the bar. So the claimant was transferred from T2 to T3 for the reasons outlined.

[36]The eighth allegation in August or September 2017, is of the second respondent saying to the claimant words to the effect that as he had come from India to work in the UK he could easily move from Terminal 2 to work at Terminal 3 and was informing the claimant that as he was Indian he had no choice but to move. The claimant in his witness statement says: “The second respondent’s unfair treatment towards me continued and he moved me from Terminal 2 cabin bar to Terminal 3 coffee shop initially for two shifts and then he informed me over the telephone I needed not to return to my original unit and continue working in the coffee shop. I tried to explain that my speciality was in bar work and not in cafeteria. I also tried to explain that I was more suited to the role at Terminal 3 cafeteria however he forced me to stay there. The second respondent said the words to the effect that as I have come from India to work in the UK I could easily move from Terminal 2 to work at Terminal 3. He also said to me that I was Indian therefore I had no choice but to move. I felt this comment racial abuse as I was the only supervisor from India and none of the other supervisors were transferred from T2 to T3, from cabin bar to coffee shop.”

[37]Mr Janak deals with this allegation in his evidence, saying: “I understand that Kuldeep alleges that I told him as he had come from India he could easily move from T2 to T3 and that as he was Indian he had no choice but to move. This did not happen. I myself am from Slovakia and so know what it is like to come to the UK to work from somewhere else. I would never make such a remark. I note that although Kuldeep wrote emails about everything he was unhappy about as far as I am aware he never mentioned any racist comments in his emails.”

[38]Taking the evidence of the claimant and the evidence of Mr Janak, given the lack of anything documented or any corroboration, we are unable to be satisfied that the alleged words were said.

[39]We then move on to a number of allegations concerning the claimant's annual appraisal in 2017. The first allegation is in relation to delay (allegation 9): “April to October 2017 delay in carrying out the claimant’s PDP”, and the further particulars of that are: “The claimant’s annual personal development plan meeting should have been undertaken in April 2017. Despite repeated requests by the claimant for this to take place the meeting did not take place until October 2017. By not undertaking until October 2017 the second respondent delayed the claimant's career development. In order for the meeting to take place the second respondent required the claimant to attend on his day off. The claimant was kept waiting outside of the building in the cold, not having access to the building where the second respondent arranged for the meeting to take place.”

[40]That paragraph of particulars deals with a number of the allegations concerning the PDP.

[41]We have looked in the document bundle and it would appear that the claimant had an appraisal on 5 August 2015 (page 197). At page 229 is an appraisal dated 15 October 2016 which the claimant questions, and then there was the further appraisal meeting on 29 October 2017 (page 318). The allegation is that the PDP should have been undertaken in April 2017, and we are given to understand that the PDP is an annual event and so if the claimant is complaining a delay from April 2017 we would have expected to have found an appraisal from 2016 but there was none in the bundle, certainly none that we were taken to.

[42]So on that basis we find that if an appraisal was carried out in 2016 it was in October, and thus for there to be an appraisal on 29 October 2017 one year and two weeks from the previous one on 15 October 2016 is not a matter of delay: it was done reasonably on schedule.

[43]The claimant says he was required to attend on his day off. There is very little evidence on this point and the position with Mr Janak is that the claimant agreed to attend the meeting on the day in question. We know from the claimant's evidence that if he does not like something he is willing to complain about it, such as his move from T2 to T3 etc. We are unable to find that the claimant was required to attend a PDP on his day off. We find that this was done by agreement.

[44]As to the next allegation (number 11) of keeping the claimant waiting for his PDP meeting outside the building and in the cold, this again is one of those areas where in factual terms Mr Janak is of the view that the claimant did not have to wait outside the building. He could have gone in because in his view the key fob or pass that the claimant had should have given him access to the office building in which the meeting was being held, but as to keeping the claimant waiting we have no evidence from the claimant as to what time the meeting was to be, what time the claimant arrived, what time Mr Janak arrived, so for a lack of detail we are unable to make any factual findings to the effect that the claimant was kept waiting outside the building for his PDP.

[45]Allegation 12 is particularised at page 35 (item 17). Again this allegation appears for the first time, and it is that during the PDP meeting the second respondent told the claimant that as an Indian and as an outsider he should be happy with the team leader position. This is an allegation of direct race discrimination.

[46]We have the evidence of the claimant and Mr Janak. Mr Janak for a similar reason i.e. his own origins and his own thoughts on discrimination states that he would not say such a thing. There is a direct conflict of evidence on this point. We take the view that the claimant has not satisfied us that the words were said.

[47]Allegation 13 is on the schedule said to be from 29 November to December 2017, but it seems to us that it must be 29 October because it relates to the PDP, alleging that during the PDP meeting the second respondent put the claimant's completed PDP in the bin. The claimant in his witness statement says: “On my way out I saw my performance appraisal was in the bin and I picked it up and took it with me. I felt my trust had been breached. Mr Janak did not even put this appraisal on the system. I was shocked and disheartened.”

[48]Mr Janak says of the PDP form: “The 2017 appraisal form does not have comments about the scores and is not complete. I can’t remember what happened here. The only explanation I can think is that I sent Kuldeep away with the form and we were going to meet again to complete the form and this did not happen because he went away to India at the beginning of November. I note that while there is no overall score marked on this form the individual scores are better than the previous year. Kuldeep’s performance had improved since October 2016, in particular he had changed his attitude towards people which was a key start. I know I did not throw any appraisal form in the waste bin.”

[49]There is a denial and there is also an alternative explanation, that the claimant was going to take the form away to complete it. It seems to us plausible that this was the explanation of what happened, particularly because the scores given to the claimant were good scores, they were 3s, 4s and one or more 5s, which is the top mark. It seems to us that if Mr Janak was intending to do the claimant down then he would not have given him such high scores and he would not have effectively destroyed the PDP form for 2017.

[50]We then move to the last two allegations, 14 and 15. Allegation 14 is said to be from 29 November to December 2017, taking disciplinary action against the claimant, and allegation 15 relates to 7 December 2017 when the claimant was dismissed.

[51]We know that the person who decided to start the disciplinary process against the claimant was Craig Pinion, the Kitchen Manager, and this was done when Mr Janak was on leave. The claimant was in India at the relevant time, and we shall look at the factual matrix taken from the chronology helpfully prepared by counsel for the respondent.

[52]The logical thing is to go back to 29 October 2017 which was the appraisal, then the sad news for the claimant that on 31 October 2017 his father in India suffered a stroke. On 1 November the claimant spoke to Mr Janak about his father’s circumstances, saying he was unable to work and he needed to sort out his passport to enable him to travel to India. The passport we think was with the Home Office in connection with an application the claimant was then making. Mr Janak asked the claimant to keep him updated. He then approved two weeks’ annual leave which would be dated from the date the claimant flew to India. The claimant flew on 3 November 2017 to India and for his benefit ordinary leave was processed until 17 November. Sadly, by 14 November the claimant called the respondent to say that his father had died. On 15 November he spoke to Mr Janak. On 17 November they spoke again and also on 19 November. On 21 November 2017 the claimant messaged Mr Janak to request further leave and according to Mr Janak the instruction to the claimant was that compassionate leave was authorised with a return to work date of 29 November 2017. The claimant's case is that compassionate leave was open-ended i.e. until the claimant was in a situation to return; I say that because following the death of his father the claimant was helping his mother in India.

[53]On 29 November 2017 when Mr Janak was not there the claimant did not return to work. The claimant tried to contact Mr Janak via WhatsApp but the evidence of Mr Janak is that he turned off his WhatsApp when he was not at work because that was the only reason he used it. So whatever message the claimant sent to Mr Janak was not received. Craig Pinion, the Kitchen Manager, emailed the claimant about his absence, inviting the claimant to contact him by 4 December 2017. On 5 December an invitation to the claimant to attend a disciplinary hearing was sent to him by email. The hearing was on 7 December. On 7 December the claimant did not attend the hearing. It went on in his absence before Rebecca Ponsford, and the claimant was dismissed. He again tried to message Mr Janak via WhatsApp.

[54]To complete matters a letter of dismissal was sent to the claimant by email on 13 December. He returned to the UK on 15 December and started his appeal on 18 December.

[55]The unfortunate thing is that the messaging between the claimant and Mr Janak does not seem to have been received. The invitations to the claimant to contact the employer and to attend a disciplinary meeting were not received by the claimant as he was at the time in India with a different email address, so there seems to have been much missed communication in relation to the events surrounding the dismissal.

[56]We have been taken to a set of notes in the bundle, notes maintained by the HR department in respect of the claimant's absence from work, and on page 328 these are notes from 1 November before the claimant left this country: “Employee called to find out if he phones in sick is it ok if he phoned in once and confirms how long he will be off for. Answer: Advised company policy states he must phone his line manager every day to report absence Employee asked if this applies even if you are out of the country. Confirmed: yes. Employee asked if he can get doctor to write letter to explain absence instead. Answer: Advised we would accept a sick note but until such time as this comes in he needs to be phoning every day. Employee asked if he can email in. Answer: Advised policy states he should phone. Employee said he has emailed Ops Manager so this should be fine. Answer: Re-confirm that the policy states he needs to phone each day he is absent. Employee asked what if he is absent for a long period of time. Answer: Advised he needs to provide a sick note from his eighth day onwards in line with absence policy if his absence last this long.” Then some notes appear about communication between the claimant and Mr Janak.

[57]It seems to us that the claimant was fully aware before he left of the obligations the company expected him to carry out whilst he was away in terms of keeping in touch in respect of his absence.

[58]The dismissing officer, Miss Ponsford, told us that she followed the process. The decision she made was based on the facts and the absence of the claimant and that she would have treated anyone else the same. She did not treat the claimant as she did by reason of his race. We have not heard from Mr Pinion but it is apparent that he expected the claimant back on 29 November 2017 and when the claimant did not attend he started the disciplinary process. The claimant has pointed us towards the disciplinary process of another employee of the respondent who was dismissed for being absent without leave. The circumstances appear slightly different as in that case they have gone from the date when that employee was initially absent without leave: in this case they have left a much shorter gap because the claimant's absence was known about and approved until 29 November. It does not seem to us that the two cases are necessarily strictly comparable. But in terms of the schedule of allegations, there is no doubt that disciplinary action was taken against the claimant and that he was dismissed.

[59]We now move on to look at the issues set out in Annex B and that starts by asking: were all of the claimant's complaints presented within the time limit set out in sections 123(1)(a) and (b) of the Equality Act 2010? Dealing with issue may involve consideration of subsidiary issues including whether there was an act and/or conduct extending over a period and/or a series of similar acts or failures and whether time should be extended on a just and equitable basis.

[60]Section 123 says that: “(1) Proceedings on a complaint within section 120 may not be brought after the end of –(a) The period of three months starting with the date of the act to which the complaint relates; or

(b) Such other period as the Employment Tribunal thinks just and equitable. (3) For the purposes of this section – (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the period in question decided on it.”

[61]That is the law in terms of time limits under section 123 for claims under the Equality Act 2010, but it is not as simple as that because we have got to relate it to the various times things happened and the early conciliation provisions that extend those times.

[62]The last complaint was of dismissal on 7 December 2017. The normal time limit for such a claim might be 6 March: it might be argued it should be slightly later looking at the date when the claimant found out that he was dismissed but for the purpose of the schedule I will go from 7 December 2017. The early conciliation was commenced on 28 February i.e. within three months of 7 December. The early conciliation certificate was issued on 28 March 2018 and the ET1 was accepted on 27 April 2018, thus making the events of 7 December or shortly afterwards in time.

[63]In our judgment the matters from 29 December are so closely related to the events of the dismissal they were the precursors to the dismissal that they amount to conduct extending over a period, and so we find that the 29 November matter is within the time limits as conduct extending over a period. However, all of the other matters are no later than 29 December 2017 with the earliest allegation being September 2016 (allegation number 2). We do not find that they relate to a series of acts or conduct extending over a period. The acts do not seem to relate to anything in particular in terms of a pattern or a scheme of doing particular things, so really the question for us now is: is it just and equitable to extend time?

[64]The claimant has given no evidence whatsoever as to the reasons for the delay in commencing these proceedings in relation to the earlier allegations. We know from the evidence we have heard the background relating to the claimant's position with his family from November 2017, but we have had no reasons why the other matters were not pursued when they happened or within the time limits thereafter.

[65]In terms of submissions, Miss Hashmi has directed us to medical records which are in the bundle although which were not mentioned during the course of the proceedings until the very end after the evidence had been given. She took us in particular to one entry on page 503 of the bundle, and it is a GP record showing on 3 April 2018 “anxiety with depression”. That is the only matter the claimant refers us to in respect of the whole period from 2016 up to the time the proceedings were commenced, and that date of “anxiety and depression” as a problem is dated 3 April 2018, which is in the period when the claimant had the benefit of the ACAS early conciliation certificate.

[66]No other matters are put forward by Miss Hashmi as to why time should be extended. The Tribunal time limits are strict and case law suggests that a claimant should not automatically be entitled to an extension. Miss Hashmi has not put forward any other matters as to why we should extend the period on a just and equitable basis so we do not find it just or equitable to extend the time limits, but that leaves us with the two allegations from November and December 2017.

[67]In respect of those, in our judgment the claimant's treatment was because of his absence from work and not because of his race. We are satisfied that any other person absent for the same time and in the same circumstances with the lack of notification to the employer would have been dismissed, and that Miss Ponsford having been asked the question was not motivated by race when reaching her conclusion to terminate the claimant's employment.

[68]We are not aware of the state of mind of Mr Pinion because he no longer works for the company, we were told, and has not been called to give evidence, but it would appear that in the absence of Mr Janak on holiday Mr Pinion, the Kitchen Manager, was expecting the claimant to arrive for work on 29 November and when he did not attend he started the AWOL process which the company has and which was known to the claimant and that led to the dismissal.

[69]So for all of those reasons we do not find that there are any claims in time other than two, and in respect of those two claims we do not find that the respondent discriminated against the claimant.

[70]There is a victimisation allegation included on the List of Issues to the effect that the claimant did a protected act by complaining to someone called Karen Hambleton about the remarks allegedly made by Chloe Knight. The evidence of the claimant to the Tribunal was not to the effect that he had complained to Karen Hambleton about Chloe Knight, so we do not find that there had been the alleged protected act.

[71]All of the claimant’s claims are therefore dismissed.