Mr R KawilizaClaimantLifeways and OthersRespondent
Before
Employment Judge Johnson
Members
Mrs A BoothMr M StempIn person for claimantMs L Quigley (instructed by counsel) for respondentDate 22 June 2021
JUDGMENT
[1]The claimant was employed at the material time by Living Ambitions Limited, who are the third respondent in these proceedings.[2]The claims against the first and second respondents are therefore dismissed.[3]The claimant was fairly dismissed by reason of conduct and accordingly his complaint of unfair dismissal is unsuccessful.[4]The claimant’s complaints alleging direct discrimination and harassment by reason of his age contrary to sections 5, 13 and 26 of the Equality Act 2010, are not well founded and are dismissed. This means that these complaints are unsuccessful.[5]The complaint of unpaid annual leave entitlement succeeds and the respondent is ordered to pay the claimant the sum of £86.82[6]The complaint of unlawful deduction of wages succeeds and the respondent is ordered to pay the claimant the sum of £318.91.[7]Accordingly, the third respondent is ordered to pay the claimant the total sum of £405.73 in settlement of his successful complaint of unpaid annual leave entitlement and unlawful deduction from wages.[8]As the successful claims did not involve any award in respect of wages following the termination of employment, the recoupment provisions do not apply.
REASONS
[1]This claim arises from the claimant’s employment as a support worker with one of the 3 respondents from 21 February 2016 until his employment was terminated by reason of gross misconduct on 12 March 2019.[2]Proceedings began when the claimant presented a claim form to the Tribunal on 31 July 2019 following a period of early conciliation with ACAS. The claimant brought complaints of unfair dismissal, discrimination by reason of the protected characteristic of age, unlawful deduction from wages and unpaid annual leave entitlement.[3]The respondents were represented by the same solicitor and they presented responses on 16 September 2019 resisting the claim and arguing that the claimant was dismissed by reason of gross misconduct and that this dismissal was not connected with his age.[4]The case was subject to case management before Employment Judge Benson on 13 November 2019 when she listed the case for a final hearing, identified the relevant issues to be considered at that hearing by the Tribunal and made appropriate case management orders.
The issues
[5]The issues identified by Employment Judge Benson remained in place at the final hearing, subject to the inclusion of the claim for unpaid annual leave entitlement, and are as follows: Correct respondent[6]Who was the claimant’s employer at the time of alleged acts of discrimination and date of dismissal? Time limits/limitation issues[7]Were all of the claimant’s complaints of discrimination presented against the respondent(s) within the time limits set out in sections 123(1)(a) & (b) of the Equality Act 2010 (‘EQA’)? Dealing with this issue may involve consideration of subsidiary issues including: a) Whether there was an act and/or conduct extending over a period; and/or, b) A series of similar acts or failures; and, c) Whether time should be extended on a ‘just and equitable’ basis.[8]What was the principle reason for dismissal and was it a potentially fair one in accordance with sections 98(1) and (2) of the Employment Rights Act 1996 (‘ERA’)? The respondent asserts that it was a reason relating to the claimant’s conduct.[9]If so, was the dismissal fair or unfair in accordance with ERA section 98(4), and, in particular, did the respondent in all respects act within the so-called ‘band of reasonable responses’? Remedy for unfair dismissal[10]If the claimant was unfairly dismissed and the remedy is compensation: a) If the dismissal was procedurally unfair, what adjustment, if any, should be made to any compensatory award to reflect the possibility that the claimant should still have been dismissed had a fair and reasonable procedure been followed/have been dismissed in time anyway? b) Would it be just and equitable to reduce the amount of the claimant’s basic award because of any blameworthy or culpable conduct before the dismissal, pursuant to ERA section 122(2); and if so, to what extent? c) Did the claimant, by blameworthy or culpable actions, cause or contribute to dismissal to any extent; and if so, by what proportion, if at all, would it be just and equitable to reduce the amount of any compensatory award, pursuant to ERA section 123(6)? Direct discrimination because of age – section 13 EQA[11]Did the respondent subjected the claimant to the following treatment: a) Dismissing the claimant, (accepted by the respondent). b) The claimant was told by Albert Timberlake and Dean [no surname provided], that he could not use his mobile phone, while others did? The claimant alleges that a photo was taken of him using a phone while he was drinking a pint of beer. While no action was taken against the photographer, the claimant received a written warning. c) Refusing the claimant NVQ3 training for managers, while allowing others to do so? d) Dismissing the claimant because he left service users without supervision? The claimant says that this practice happened in other homes, but those responsible were not dismissed. e) Failing to address the claimant’s grievance which was raised in February 2018? The claimant says it relates to other workers being given time off whereas he was not. He claims that the grievance was made orally to Ian Honeyford and in October 2018, he sent a text to Albert Timberlake concerning this matter.[12]Was the treatment ‘less favourable treatment’, i.e. did the respondent treat the claimant as alleged less favourably than it treated or would have treated others (‘comoparators’) in not materially difference circumstances? The claimant relies on hypothetical comparators and others who were not dismissed by the claimant having also left service users.[13]If so, was this because of the claimant’s age and/or because of the protected characteristic more generally?[14]If so, has the respondent shown that the treatment was a proportionate means of achieving a legitimate aim? Harassment related to age -section 26 EQA[15]Did the respondent engage in conduct as follows: a) The claimant’s colleague Dean incorrectly believed that he had made an ‘entry correction’ and said to the claimant ‘I’ll chop off your head’? b) Ordered the claimant to perform services which were not in accordance with care standards by insisting that he deal with a bedridden service user alone, when two members of staff were required? c) Provided the claimant with a bad reference to Creative Support by telling them that he had been dismissed? d) Refusing the claimant NVQ3 training for managers, while allowing others to do so? e) Requiring the claimant to work 2 or 3 consecutive days without a day off work? The claimant says that he complained to Ian Honeyford in February or March 2018. f) Denying the claimant copies of the disciplinary hearing notes of 31 August 2018 and 12 March 2019? The claimant says that he asked for these documents before his appeal, but did not receive them g) Albert Timberlake made ‘harassing’ telephone calls following his dismissal and continued to do so? h) Not being provided with supervision notes by John Morrison following supervision meetings in relation to meetings which took place in October 2018 and January 2019? i) Failing to address the claimant’s grievance which was raised in February 2018? The claimant says it relates to other workers being given time off whereas he was not. He claims that the grievance was made orally to Ian Honeyford and in October 2018, he sent a text to Albert Timberlake concerning this matter.[16]If so, was that conduct unwanted?[17]Did the conduct have the purpose or (taking into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect), the effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? Unauthorised deductions[18]Did the respondent make unauthorised deductions from the claimant’s wages in accordance with ERA section 13?[19]What was the claimant’s annual leave entitlement and did the respondent fail to pay the claimant the balance of any accrued annual leave entitlement which remained untaken when he was dismissed? Evidence used during the hearing[20]The Tribunal heard from the claimant and he did not call any other witnesses. Due to health issues, it was accepted that he could be supported by his son, who located the relevant pages of evidence from the hearing bundle. He did not assist or prompt the claimant in relation to the oral evidence that he gave. It had been previously agreed by Employment Judge Benson that the claimant could give his evidence after the respondent’s witnesses had given their evidence. The claimant attended the Tribunal on each day of the hearing along with his son.[21]The respondent relied upon four witnesses who were John Morrision (line manager and investigating officer), Albert Timberlake (dismissing officer), Angela Chatsworth (appeal hearing officer) and Nichola Thomas (payroll and HR officer who gave evidence concerning the claims relating to wages). All of these witnesses gave evidence remotely by CVP.[22]Employment Judge Johnson attended the second and third days of the hearing because the claimant was unrepresented and was attending the Tribunal in person. Members continued to sit remotely.[23]There was a large hearing bundle which was provided electronically, although the claimant had access to a paper copy. There was also a cast list, chronology of events and a bundle of witness statements.[24]The claimant sought to introduce additional evidence to the hearing which he had disclosed in April 2021. This was following the completion of disclosure and exchange of witness statements, although he did provide a document required as his final statement as part of this disclosure. Understandably, the respondent objected to this documentation being used as part of the hearing papers. The Tribunal confirmed that the documentation would be accepted, but that the claimant could not rely upon anything which involved a new claim which had not been identified in the claim form or discussed before Employment Judge Benson. In particular, it was noted that the claimant made reference in the recently disclosed documents to sleepover payments which had never formed part of his claim and which could not be accepted at this late stage.[25]An issue arose from the failure of the claimant to actually exchange a witness statement in accordance with the relevant case management order. I accepted that the most proportionate way to deal with this issue was instead to rely upon the particulars provided in the claim form, a document entitled ‘response to resistance’, which effectively was a reply to the response presented by the respondent. This was in accordance with the overriding objective at Rule 2 and took into account the relevant provisions of the Equal Treatment Bench Book dealing with litigants in person. Findings of fact
Introduction
[26]The three respondents are involved in the provision of care to vulnerable adults and supported living.[27]Mr Kawiliza started working as a support worker on 21 February 2016. Although there one of the issues to be determined at this hearing was the identity of the correct respondent as employer, the Tribunal is satisfied that the third respondent was Mr Kawiliza’s employer because his contract of employment identified them as employer and there was no evidence to suggest the name of his employer changed during the course of his employment in this case.[28]At the time of his dismissal, Mr Kawiliza was working in the third respondent’s Trafford Road house. Staff supported 4 adults with varying needs, but all of them required 24-hour support. Each was subject to a Care Plan which described the type of care to be provided and how many staff should be allotted to each designated support task.[29]The third respondent has a Human Resources Code of Conduct which applied to all its employees and which was reviewed on a regular basis. Mr Kawiliza accepted that he had seen this document and indeed mentioned on several occasions that Paul Marriner the third respondent’s CEO, signed off the version of the Code which applied at the time of his dismissal. Of particular relevance in this case was section 11 of the Code of Conduct dealing with ‘Harassment and Bullying’, section 12 insofar as it deals with smoking and the taking of alcohol and drugs, section 14 ‘work related social events’ and the need to drink in moderation. The Tribunal was also referred to the Lifeways Group Smoking Policy, which forbade staff from smoking inside of residences where they worked.[30]Mr Kawiliza was dismissed on 12 March 2019 following a disciplinary hearing before Mr Timberlake by reason of gross misconduct relating to an allegation that he smoked inside the Trafford Road house 27 November 2018 and that he left service users without support when he was working alone on [date] when he went to a nearby off licence. Dismissal[31]The Tribunal heard evidence from the dismissing officer Mr Timberlake and found him to be a credible and reliable witness. The Tribunal accepts that the dismissal was for the potentially fair reason of conduct. Mr Kawiliza was clearly taken through a disciplinary process because of alleged gross misconduct and these allegations were found to be proven by Mr Timberlake at the disciplinary hearing. This decision and the reasons given, were confirmed in his letter which was sent to Mr Kawiliza on 20 March 2019.[32]The disciplinary process arose from allegations which were made on 27 November 2018, when mother of one of the service users who resided at Trafford Road complained that Mr Kawiliza had been smoking indoors contrary to the third respondent’s smoking policy.[33]On 28 November 2018, Mr Morrison called Mr Kawiliza and asked him to attend an investigation meeting on 29 November 2018 and provided him with a letter explaining that it was connected with the allegation that he had been smoking in the Trafford Road property contrary to policy.[34]The meeting took place before Mr Morrison and the handwritten notes which were prepared by the notetaker during the meeting, were signed by Mr Kawiliza. They recorded that when told of the allegation that he had smoked, Mr Kawiliza said ‘it was a lie’. He said that he had used a ‘wooden splinter’ which he had lighted from the kitchen hob and which he used to light a cigarette outside. Mr Kawiliza also confirmed that there were no historic issues between him and the complainant mother which presumably might have suggested that she wanted to get him into trouble.[35]Mr Kawiliza then interviewed Alexander Egbeaba. He was a support worker who was working with Mr Kawiliza at the time of the alleged incident. He was interviewed on 30 November 2018. Mr Egbeaba said he came downstairs and saw Mr Kawiliza with a lit cigarette in his hand and he could smell cigarette smoke. He said that he challenged Mr Kawiliza about his smoking and described him as being defensive.[36]Mr Morrison produced an investigation report which explained the allegations, and which stated that if they were proven, would mean that Mr Kawiliza had breached the Code of Conduct and the Lifeways Group Smoking Policy. He identified who was interviewed and provided a summary of the investigation findings which noted that while Mr Kawiliza denied smoking in the kitchen, both the complainant and Mr Egbeaba asserted that he was smoking and that Mr Kailiza had asked Mr Egbeaba if he could borrow money from him so that he could purchase a lighter. Mr Morrison in preparing the report, said that he felt there was sufficient evidence for the investigation to proceed to disciplinary meeting.[37]Before a disciplinary meeting could take place, further allegations were made concerning Mr Kawiliza. This matter related to a complaint made to Mr Morrison by another staff member that Mr Kawiliza had left the Trafford Road residence when being the only support worker in the building and as a consequence, left 3 service users alone. The Tribunal understood that none of these service users could be 3 left unsupported and indeed at this time, one of them was bed bound. Because the complaint was made to Mr Morrison, the third respondent determined that the investigation was carried out by Rebecca Heap who was another manager not involved with the matter under investigation.[38]Ms Heap invited Mr Kawiliza to a fact-finding meeting on 10 January 2019 and which he attended. A handwritten note of the meeting was taken by a notetaker who attended the meeting and it signed and dated by Mr Kawiliza. The allegation was put to Mr Kawiliza and the note recorded that he admitted that he had left the residents unsupported but replied by saying; ‘it was only for 5 minutes – I have been told I can do it before’. He suggested that an old team leader had told him that he could do this. However, the Tribunal noted from the evidence available that there was no supporting evidence that any manager had permitted him to take this action. Mr Kawiliza said he ‘took advantage’ because one service user was asleep, and he needed to buy beans for their lunch. He acknowledged he might also have bought some ‘cigarette tips’. There was no dispute that Mr Kawiliza smoked regularly. He accepted that at the time of the incident, he did not think about contacting his colleague who was usually based in Trafford House with him, but who out with the other fourth service user on an activity. He also confirmed that he did not think about contacting staff at another nearby property or a manager at the office and request their assistance.[39]Mr Kawiliza was suspended by Ms Heap on 10 January 2019 and a letter sent on same day confirming that he was being investigated for the alleged neglect of vulnerable adults. As she stated in her letter, Ms Heap gave clear evidence that this was a potential safeguarding matter and the Tribunal accepts that it was reasonable to suspend Mr Kawiliza while the disciplinary process was concluded as it related to his ability to work as a support worker.[40]Mr Kawiliza was invited to disciplinary hearing by letter on 10 January 2019. It was sent by Mr Timberlake who confirmed that he would be the officer hearing the matter. It was initially due to take place on 1 March 2019 and the explained that the hearing would consider the issue of his leaving the house. The letter included Ms Heap’s report and documents in support including the staffing rota for Trafford Rd at relevant time and copies of receipts for purchases made for house.[41]The disciplinary hearing date was revised to 7 and then 12 March 2019 because the claimant had not collected the papers which had been sent by recorded delivery, from the post office until some time had passed.[42]Although the letter inviting Mr Kawiliza did not refer him to the earlier smoking disciplinary investigation, it was clear from subsequent email correspondent that Mr Morrison’s and Ms Heap’s investigation ‘pack’ had been sent to Mr Kawiliza and that both investigations would be considered together. The Tribunal finds this was a reasonable step for the third respondent to take, especially as Mr Timberlake explained to the Tribunal that it would not be fair to Mr Kawiliza to have two misconduct hearings held, with one followed shortly by another and where the second one involved particularly serious issues relating to safeguarding. This was a practical and fair measure and did not prejudice the claimant.[43]The disciplinary meeting took place before Mr Timberlake on 12 March 2019. Mr Kawiliza attended with his union representative Matthew Dickenson. Mr Kawiliza argued when giving evidence, that the disciplinary hearing note was not accurate and he had not signed his approval. However, Tribunal is not convinced by this argument and is satisfied that the note reflected what was said during the disciplinary meeting and that Mr Kawiliza clearly signed and dated the foot of each page to confirm that he understood it was a note rather than a verbatim minute. This was a matter which he only raised during the hearing and at no stage prior to this, had he challenged the provenance of this document, despite disclosure having taken place many months ago.[44]When asked about complaint regarding his smoking indoors, he said during the disciplinary meeting that the service user’s mother was lying and that his colleague Mr Egbeaba was lying. He continued to argue that he had lit a wooden splinter rather than a cigarette.[45]When he was asked about leaving vulnerable people when he went to the off-licence, he said ‘I messed up’. He suggested that there was no suitable food in the house kitchen for lunch and that ‘I took a chance, I was by myself’. He admitted that he did not check the cupboards before deciding to leave the house. He accepted that the service users were vulnerable adults who should not be left alone.[46]Mr Timberlake reached his decision during the hearing. He found that the first allegation of smoking was upheld because on ‘balance of probability’ he had lit a cigarette in the kitchen. The second complaint was also upheld because Mr Kawiliza accepted that he had left the house and in doing so, had presented risk to service users. He did give Mr Kawiliza a right of reply and to say anything in his defence. Mr Timberlake then decided that he would have to dismiss him and informed Mr Kawiliza of his right of appeal. A letter confirming the outcome of the disciplinary meeting and the reasons for Mr Kawiliza’s dismissal was sent on 20 March 2019. The Tribunal accepted that Mr Timberlake’s view at the conclusion of the disciplinary meeting was that the most serious matter which he considered was Mr Kawiliza leaving the service users alone and that it was a gross misconduct and moreover, a serious safeguarding issue. He explained that he felt that dismissal was a sanction that was available to him and one which was reasonable for him to impose.[47]Mr Kawiliza exercised his right of appeal by letter dated 26 March 2019. Curiously, when giving his evidence, he disputed that the typed appeal letter within the hearing bundle, had been produced by him. This was despite him never having raised this matter before. Ms Quigley took the Tribunal to the appeal hearing note before Ms Chatsworth and it was clear that she dealt with the issues raised in that letter during the appeal. We are not clear why Mr Kawiliza disputed the provenance of this letter, but find that it was the correct notice of appeal which was completed by him (or on his behalf) and which he submitted to the third respondent.[48]Ms Chatsworth heard the appeal on 9 April 2019. Mr Kawiliza was supported by Matthew Dickensen of Unison and he signed and dated the foot of each page of the handwritten note of the appeal hearing. Mr Kawiliza was provided with additional documentation which had been requested. In point 1 of his appeal he maintained that he lit a wooden splinter and did not smoke in kitchen. In point 2, that he should have contacted someone but he had been left to work on his own. He again admitted that he had made a mistake, but on reflection should not have left service users unsupported and he confirmed left them previously. Although he mentioned that he had been allowed to do this in past, he accepted that nobody had told him that he could do this while working at Trafford Road. Point 3 related to Mr Kawiliza’s belief that the dismissal letter said that he had used house money to buy own things from the off licence. Ms Chatsworth noted that the dismissal letter did not say that Mr Kawiliza had done this and indeed, had this been case, she understandably suggested that he would have been disciplined for financial irregularity. Ms Chatsworth decided that the dismissal was reasonable and the appeal was dismissed. Her letter which was dated 16 April 2019 and which was sent to Mr Kawiliza, confirmed her findings.[49]It was noted by both Mr Timberlake and Ms Chatsworth that mitigation was offered by Mr Kawiliza during the disciplinary process, but Mr Timberlake said that he provided him with no real evidence that he would learn from these incidents and no genuine remorse was shown for either allegation. In deciding to dismiss him, Mr Timberlake concluded that Mr Kawiliza did not recognize the seriousness of the allegations made against him, especially in relation to his leaving vulnerable adults alone. Discriminatory allegations The ‘bending of rules’ by management[50]There was no evidence before the Tribunal to suggest that an earlier disciplinary matter which involved Mr Kawiliza drinking alcohol at a social event with service users earlier during 2018 and was used in the disciplinary process which resulted in his dismissal. Indeed, the Tribunal noted that Mr Timberlake dealt with that particular matter and although he could have treated it more seriously, he recognised that Mr Kawiliza had misunderstood the rules relating to drinking at social events with service users and decided not to discipline him. In this respect, he appears to have been very well treated by management.[51]Where this particular event had some relevance, was in relation to Mr Kawiliza’s argument that a colleague had taken a photograph of him using their mobile phone while he was drinking a pint of beer. He said that the use of this personal mobile phone during working time was done inappropriate. It transpired that this colleague had taken the photograph to show managers that Mr Kawiliza had been drinking on duty. For the purposes of Mr Timberlake’s investigation, the photograph was made available to him in paper form and he assure the Tribunal that management did not retain the photograph as personal data. Ultimately, the Tribunal notes that this all related to a matter which was not connected with the decision to dismiss him and which did not relate to a matter where he had been treated differently than a colleague despite doing the same thing. Additionally, there was no reference to Mr Kawiliza’s age being relevant to what happened on this occasion. Alleged threats towards Mr Kawiliza by management[52]Mr Kawiliza alleged that a former colleague Dean wrongly accused him of making an error and said ‘I’ll chop off your head’. This allegation was all that was available to the Tribunal and no supporting witness evidence or documents were available. Mr Kawiliza acknowledged that he was aware of the third respondent’s grievance procedure, yet he did not raise grievance about the alleged incident and nor did not produce any other evidence during the hearing which might corroborate this allegation. As a consequence, the Tribunal was provided with no evidence upon which it could make any findings. Mr Kawiliza’s allegation that he was ordered to perform services not in accordance with Care Standards[53]This allegation appeared to relate to a service user who became bedridden following an injury. Mr Kawiliza said that he was singled out by his managers and was told that he could look after the service user in question on a one to one basis, despite other staff working in pairs. The Tribunal was taken to the third respondent’s staffing rotas for Trafford Road at relevant time. The Tribunal accepted these documents and noted that they showed that Mr Kawiliza’s colleagues also dealt with this service user on a one to one basis. Moreover, some of his colleagued worked with the service user for longer periods than Mr Kawiliza. Accordingly, the Tribunal was unable to find any evidence of less favourable treatment towards Mr Kawiliza. Provision of bad reference[54]As the disciplinary process progressed, Mr Kawiliza began to look for alternative work. Another care provider was interested in offering him a job and wrote to the third respondent during March 2019, seeking a reference. A basic factual reference was given on 13 March 2019 and which confirmed Mr Kawiliza’s dates of employment, job title and that he had been dismissed pending an appeal. No reasons were given for the dismissal and no evidence was given to suggest that it amounted to a misrepresentation, defamatory or bad reference and there was no evidence that it was connected with Mr Kawiliza’s age. The Tribunal accepts that the reference was given using a standard format that was used for all employees and former employees at the relevant time Training[55]Mr Kawiliza said that he was refused permission to undertake an NVQ3 qualification and that this was something which management would usually offer to staff. Mr Morrision gave convincing evidence which explained that NVQ3 applied to management and was not something that was usually offered to support workers. He acknowledged that occasionally it would be granted to those employees, but only for those with supervisory aspirations. Any request would be referred to senior management. The Tribunal accepts that while Mr Kawiliza had made a request to be permitted to undertake NVQ3 at an earlier appraisal, there was no indication available which indicated that he had ever had management aspirations. There was no suggestion that the refusal was connected with his age and/or a more relevant proximity to a retirement date than his colleagues. There was no evidence that Mr Kawiliza raised a grievance to the third respondent concerning this refusal. Long hours on 2 to 3 consecutive days without a day off[56]The Tribunal were provided with copies of the rotas which applied at the relevant time and heard evidence from Mr Kawiliza and the respondent’s witnesses concerning this matter. The documentary evidence did not support Mr Kawiliza’s argument that he was unduly working long hours and that he did so, in a way which were longer and or more frequently occurring than his colleagues, whether or not they were younger than him. He did volunteer to come into work on days when he would normally not be working, but the Tribunal finds that this was his choice and did not arise from any coercion or other pressure placed upon him by the third respondent. Consistency[57]This allegation was based upon Mr Kawiliza’s argument that he was dismissed because he left service users alone, whereas when other colleagues did this, they were not disciplined. He made this allegation to Mr Timberlake at his disciplinary meeting when he was dismissed. Despite being asked by Mr Timberlake to provide names of those whom he felt had behaved in a similar way, Mr Kawiliza said that he would raise these issues at his appeal. The Tribunal noted that Mr Timberlake said to him, that as he was raising matters of gross misconduct, he should provide these names to management as soon as possible. Despite Mr Timberlake clearly indicating to Mr Kawiliza of the seriousness of the allegations which he was making, the Tribunal was unable to find any evidence that he provided details of these alleged conduct matters by other staff and no names were provided to management. Mr Morrison did acknowledge that it was possible that service users might be left alone in some other care homes, but only if their care plans permitted this action. This was not the case with the service users whom Mr Kawiliza looked after at Trafford Road and there was no evidence to support this claim of a lack of consistency of treatment. Denied copies of disciplinary hearing notes of 31 August 2018 and 12 March 2019[58]Despite Mr Kawiliza asserting that a disciplinary hearing took place on 31 August 2018, this was denied by the third respondent’s witnesses. His allegation appeared to be connected with the social event where he was seen drinking alcohol in the presence of service users. However, the Tribunal accepts the respondent’s evidence that no disciplinary action took place and moreover, the incident relating to his drinking alcohol played no part in the respondent’s decision to dismiss and no disciplinary sanction was imposed or was still ‘live’ at the date of his dismissal.[59]In relation to the disciplinary hearing notes of 12 March 2019, the documentation available in the hearing bundle revealed that Mr Kawiliza had requested copies of these notes from the third respondent and emails were available which confirmed these were provided to him. There was evidence relating to the appeal hearing which confirmed that he had been given these notes and that he was allowed additional time at the beginning of the appeal to read the notes requested.[60]Accordingly, there was no evidence that he was denied copies of those notes which were available when he requested them. Underpayment of wages and holiday pay[61]The Tribunal was unable to ascertain how this particular allegation related to the alleged discrimination on grounds of age. Ms Taylor helpfully provided detailed evidence of how Mr Kawiliza was paid and indeed the respondent accepted that he was due £86.82 in respect of an underpayment of wages for bank holidays and £318.91 in respect unpaid annual leave entitlement. However, in the absence of any further evidence, the Tribunal finds that while Mr Kawiliza was entitled to these payments as part of his claim, the failure to make these payments at the material time were in no way connected with his age. Harassing phone calls[62]Mr Kawiliza did allege that following his dismissal, he was called by Mr Timberlake on a number of occasions. From the available evidence however, it was clear that what actually happened was that Mr Kawiliza was called Mr Timberlake. Accordingly, while calls did take place between these two men following Mr Kawiliza’s dismissal, they did not take place as alleged and cannot be considered something that was being done to him by the third respondent and certainly these incidents did not take place for reasons connected with Mr Kawiliza’s age. Mr Kawiliza was not given his supervision notes by Mr Morrison[63]The Tribunal were able to see appraisals which took place between Mr Kawiliza and Mr Morrison as his line manager during January 2018 and October 2018. There was no evidence that Mr Kawiliza requested supervision or other notes from Mr Morrison and the Tribunal is unable to make a positive finding in respect of this allegation. Mr Kawiliza submitted a grievance but it was not addressed by the third respondent[64]Mr Kawiliza was unable to provide any convincing evidence that he submitted a grievance as alleged and there was certainly no evidence that he provided the third respondent with a written grievance. The Tribunal prefers the respondent’s oral evidence over that of Mr Kawiliza and does not accept that any grievance whether oral or in writing was submitted by him.
The Law
[65]In accordance with section 94 of the Employment Rights Act (“ERA”), an employee has a right not to be unfairly dismissed. A claim for unfair dismissal can only be brought if the employee has been continuously employed for a period of 2 years ending with the effective date of termination in accordance with section 108 ERA.[66]A complaint of unfair dismissal will only be accepted by the Tribunal if in accordance with section 111 ERA, it is presented before the end of the 3 month period beginning with the effective date of termination, or within such other period as determined by the Tribunal where it satisfied that it was not reasonably practicable for the employee to bring a claim within the usual 3 month period.[67]When considering whether a dismissal is fair or unfair, section 98 ERA, provides that it is unfair for the employer to show the reason for the dismissal and to identify whether the principal reason for dismissal was one of those potentially fair reasons contained within this section. Conduct is a potentially fair reason for dismissing an employee.[68]Where the employer can show that it did dismiss the employee for one of the potentially fair reasons provided within section 98 ERA, subsection 98(4) provides that question of whether or not the dismissal was fair or unfair, depends upon whether the employer acted reasonably in deciding to dismiss for the reason identified. When considering the question of reasonableness, the Tribunal will take into account the size and administrative resources of the employer and the equity and substantial merits of the case.[69]When reaching a decision as to whether or not a decision was unfair, the Tribunal must not substitute its own decision with that of the employer and must instead consider the reasonableness of the employer’s decision based upon the responses reasonably available to the employer’s ‘dismissing officer’ at the time of the dismissal.[70]Sections 122 and 123 ERA permit the Tribunal to reduce the basic award and compensatory awards for unfair dismissal respectively, where they find that an employee was unfairly dismissed, but that the conduct of employee as described within sections 122 and 123 justifies a reduction to that award.[71]In an unfair dismissal case, the Tribunal can impose a reduction to any award for future loss to reflect the chance that the employee would have been dismissed fairly in any event. This principle is derived from the case of Polkey v AE Dayton Services Ltd [1987] IRLR 50 (HL). This may take the form of a percentage reduction, or it may take the form of a Tribunal making a finding that the employee would have been dismissed fairly after a further period of employment, (for example following a period in which a fair period could have been completed).[72]Section 207A Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULR(C)A’), provides that an award for compensation can be increased or reduced, by up to 25%, if the employer or employee has unreasonably failed to comply with the ACAS ‘Code of Practice 1: Disciplinary and Grievance Procedures’. The Tribunal jurisdictions to which this provision applies includes discrimination at work under the Equality Act 2010 (‘EQA’) and unfair dismissal under the ERA.[73]Ms Quigley referred to a number of cases relating to the way in which the Tribunal should approach the question of whether or not the third respondent unfairly dismissed the claimant. Abernethy v Mott Hay and Anderson [1974] ICR 323, provided that it was the set of facts or beliefs known to the employer shall support the reason for the dismissal of an employee. In Devis v Atkins [1977] IRLR 314, the principles set out in Abernethy were restated and that the ostensible reason for the dismissal may not be the real reason for the dismissal.[74]Not surprisingly, as this was a conduct case, reference was made to the case of BHS v Burchell and the familiar test which the Tribunal must apply to determine whether a dismissal was fair or not:a. Whether the respondent had a genuine belief the claimant was guilty of misconduct?b. Whether the respondent had reasonable grounds to found that belief on?c. Whether there was a reasonable investigation?[75]J Sainsbury plc v Hitt [2003] ICR 111 was also mentioned and the need for a reasonable investigation to have taken place. Direct age discrimination[76]Section 5 of the Equality Act 2010 (“EQA”) provides that age is a protected characteristic. In relation to this protected characteristic, it can mean a person of a particular age group and persons who are of the same age group, whether it be a particular age or a range of ages.[77]Section 13 EQA provides that a person directly discriminates against another, if because of a protected characteristic, it is less favourable than they would treat others.[78]In the case of direct age discrimination, a person does not discriminate against another, where they can show that this treatment is a proportionate means of achieving a legitimate aim.[79]Ms Quigley referred the Tribunal to the authority of London Borough of Islington v Ladele [2009] IRLR 154, and in particular, the comments of the EAT at paragraph 40 concerning the process to be adopted by the Tribunal when considering a direct discrimination complaint.[80]She also referred to the decisions in the cases of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 (paragraphs 7 to 12) and Law Society v Bahl [2003] IRLR 640 (paragraphs 97 to 116).[81]Reference was also made to the question of motivation as described by Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 572. In particular, that a Tribunal may make findings of primary fact from which an inference may be drawn of subconscious motivation tainted by discriminatory attitudes or prejudices. The case of West Midlands Passenger Transport Executive v Singh [1988] ICR 614 where a higher or lower than normal outcome involving one particular protected characteristic, may give an indication of biases, whether subconscious or otherwise.[82]Zafar v Glasgow City Council [1998] IRLR was referred to by Ms Quigley and the confirmation by the House of Lords in that case, that it is not simply enough for a claimant to have a protected characteristic, when suggesting poor treatment is discriminatory, there has to be something more which links the characteristic to the treatment.[83]Finally, the Tribunal were referred to the case of CLFIS (UK) Limited v Reynolds [2015] EWCA Civ 439 and the need for a Tribunal to determine the reason why a decision maker of alleged discriminator behaved the way that they did. Harassment by reason of age[84]Section 26 EQA, provides that a person discriminates another, if by they engage in unwanted conduct related to their age and the conduct has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the person who is the subject of that unwanted conduct.[85]Ms Quigley referred the Tribunal to the case of Richmond Pharmacology v Dhaliwal [2009] IRLR 336 and the test that should be applied when considering a complaint of harassment, which effectively applied the provisions of section 26 EQA, in a series of appropriate stages of questions. Additionally, the case reminds the Tribunal that it should consider whether it was reasonably apparent, having considered all the relevant circumstances, that the conduct in question was or was not intended to cause offence.[86]The Tribunal was also referred to the case of Pemberton v Inwood [2018] EWCA Civ 564 and the need for a Tribunal to consider the subjective question of whether the victim perceives themselves to have suffered the effect in question measured against the objective question of whether it was reasonable for the conduct to be regarded as having that effect, again taking into account all the relevant circumstances.[87]Bakkali v Greater Manchester Buses (South) t/a Stagecoach was also mentioned by Ms Quigley. Unlawful deduction from wages[88]Section 13 ERA, provides that an employer shall not make a deduction of wages from a worker, except for certain specified circumstances.[89]Section 23 ERA, provides that a worker may present a complaint in respect of an unlawful deduction from wages, providing that it is presented before the end of 3 months beginning with the date the deduction of wages or within such other period as determined by the Tribunal where it satisfied that it was not reasonably practicable for the employee to bring a claim within the usual 3 month period.[90]Section 13 and 13A of the Working Time Regulations 1998 (“WTR”) as amended, provides that a worker is entitled to a minimum of 28 days annual leave.[91]Section 30 WTR, provides that a worker may present a complaint to a Tribunal concerning unpaid annual leave entitlement, providing that the claim is presented before the end of 3 months beginning with the date when the right should have been exercised/payment should have been made, or within such further period as a Tribunal considers reasonable and where it is satisfied that it was not reasonably practicable for the complaint to be presented within the normal 3 month period.
Discussion
[92]The respondent asserts that Mr Kawiliza was dismissed by reason of conduct. Specifically, he was dismissed by reason of gross misconduct following a disciplinary meeting and investigation arising from an allegation of smoking in the Trafford Road house and leaving service users alone when going to the off licence. These were matters relating to conduct and thereby could be a potentially fair reason for dismissing Mr Kawiliza.[93]The smoking allegation involved an allegation by independent witnesses. Mr Kawiliza accepted that he lit a splinter inside of the house and the Mr Timberlake was placed in the position of deciding whom he could reasonably believe.[94]It was understandable that Mr Timberlake preferred the evidence of the two other witnesses and Mr Kawiliza was unable to provide any evidence to support his denial. Instead, he simply accused the complainant, who was a resident’s mother of being a liar. It was reasonable for Mr Timberlake to conclude that Mr Kawiliza was smoking inside the house at the time and this was clearly a conduct issue contrary to the third respondent’s procedures.[95]The allegation that Mr Kawiliza left service users alone was accepted by him and accordingly, it was reasonable for Mr Timberlake to find that there was an act of misconduct which was serious and amounted to a safeguarding risk, given that the service users in question should not be left alone.[96]Mr Timberlake was clear that both of the two allegations were serious and were gross misconduct. However, he acknowledged that the leaving of the residents at Trafford Road was the more serious of the two and involved a serious safeguarding concern. That alone was sufficient to justify his decision to dismiss, but the two acts of conduct together involved matters which were sufficiently serious for dismissal to be within the range of reasonable responses available to a disciplinary hearing officer.[97]The process which led to Mr Kawiliza’s dismissal was an established disciplinary procedure, and which was followed properly by the third respondent. He was informed of the allegations, a proper investigation took place in which he was allowed to participate, he was provided with the investigation report and was allowed to attend the disciplinary meeting with a representative. He was fully allowed to participate in the disciplinary meeting and was properly informed of the reason for the dismissal by Mr Timberlake and was allowed a right of appeal. The Tribunal agrees that it was sensible and reasonable for the two allegations to be heard together at the same disciplinary meeting. In summary, this was a fair and reasonable process and consistent with the ACAS Code of Practice in respect of disciplinary procedures.[98]Insofar as Polkey is concerned, the Tribunal finds that had Mr Kawiliza been the subject of procedural unfairness in relation to his dismissal, he would have been dismissed in any event had a fair process been applied. However, the application of this principle is academic in that the Tribunal finds that Mr Kawiliza was fairly dismissed by reason of conduct, that dismissal was within the range of reasonable responses available to Mr Timberlake, and that this decision arose from the application of a fair disciplinary procedure.[99]In terms of contributory fault, while it is not relevant given the decision reached above by the Tribunal, the seriousness of the allegations against Mr Kawiliza and in particular the safeguarding matter, mean that had there been procedural unfairness in this case, a reduction of 100% would have been appropriate. Age[100]It was not clear with whom, Mr Kawiliza compared himself with in relation to the protected characteristic of age. The Tribunal understood that given he would have been 58 years old at the effective date of termination of employment, what was relative, was his relatively older age at the material time, when compared with work colleagues employed by the third respondent.[101]While this might be the case, what was noticeable during this hearing was that Mr Kawiliza made very little reference to age discrimination within his witness evidence, his cross examination of the third respondent’s witnesses and in his final submissions. The Tribunal took into account his unrepresented status and also the health issues which he experienced in accordance with the Equal Treatment Bench Book and the overriding objective and nonetheless has sought to consider the complaints of age discrimination using the evidence which was available to them. Direct discrimination[102]In terms of the list of issues identified above, the third respondent accepted that it subjected Mr Kawiliza to the treatment of dismissing him, although naturally they disputed that this decision was in any way connected with his age. While Mr Kawiliza asserted during his disciplinary process that he was being treated harshly and that other colleagues in similar circumstances did leave service users alone and were not dismissed, he failed to provide any evidence that this had taken place by naming support workers responsible and when these incidents had happened. In the absence of any evidence to support his contention, the Tribunal accepts that the decision to dismiss was a reasonable one and was not connected with age.[103]In terms of the discussion with Albert Timberlake and Dean regarding the taking of a photograph of him with a mobile phone, the Tribunal noted that this all related to a matter which was not connected with the decision to dismiss him and which did not relate to a matter where he had been treated differently than a colleague despite doing the same thing. More significantly, there was nothing to suggest to the Tribunal, that Mr Kawiliza’s age was relevant to these events. Finally, this event took place outside of the 3- month period under section 123 EQA for presenting a complaint of age discrimination and while no application was made to extend time, the Tribunal does not accept that it would be just and equitable to extend time.[104]While the Tribunal accepted that Mr Kawiliza was refused NVQ3 training for managers, there was no evidence to suggest that the refusal was connected with his age and/or a more relevant proximity to a retirement date than his colleagues. This was simply a situation where an employee has not demonstrated the appropriate business case to his employer for training by failing to give any indication that he wished to progress to a level, where the training would be appropriate or relevant. The failure to raise a grievance suggests that this refusal did not trouble Mr Kawiliza and the Tribunal does not accept that this was a discriminatory act by reason of his age.[105]Mr Kawiliza was given a reference by the third respondent shortly after he was dismissed and it was the usual factual reference that would be given by an employer and in no way represented less favorable treatment and even if it was, it cannot be connected with his age. Similarly, while the third respondent conceded that there were errors in annual leaver entitlement and wages, the Tribunal heard no evidence to support Mr Kawiliza’s argument that they amounted to discriminatory acts.[106]There was no evidence that the alleged threats by management took place, that he was required to work with a service user contrary to care standards or that he was required to work long shifts without a break and the Tribunal cannot accept that this incident took place as alleged, let alone because of Mr Kawiliza’s age. There was no evidence that he raised a grievance or that he was not provided with supervision notes as alleged. Similarly, there was no evidence that he was constantly telephoned by Mr Timberlake following his dismissal and the Tribunal accepts that Mr Kawiliza was the person making these calls.[107]Mr Kawiliza provided little evidence of any treatment taking place as described in the list of issues and where there was some evidence of a form of treatment taking place, there was simply nothing to suggest to the Tribunal that the treatment was less favourable than how his younger colleagues were treated. None of the allegations reached a tipping point where an arguable case of direct discrimination could be identified and there was no need to require the respondent to prove that the treatment which had taken place, was not discriminatory.[108]This case being one involving allegations of direct discrimination, does of course allow an employer to advance a legitimate aim justifying the less favourable treatment by reason of age. However, this is a case where the consideration of the complaint of direct discrimination has a reached a stage where this defence needs to be considered by the Tribunal. Age played no part in the way in which the treatment of Mr Kawizia occurred and the respondent is not placed in a position where it must explain how its treatment arose from a proportionate means of achieving a legitimate aim. Not surprisingly, this element of the process in considering a direct discrimination claim, was something which did not trouble Ms Quigley to any real degree in her submissions.[109]Time limits may have been relevant for some of the issues which were not connected with the decision to dismiss, but given the limited evidence provided by Mr Kawiliza, it is not necessary to carry out a detailed analysis of when the events took place, whether they formed part of a continuing act and if out of time, whether it was just and equitable to extend time. All of the treatment which arose from the smoking incident, arguably formed part of a series of continuing acts which ended with the decision to dismiss, but as none of these were demonstrably connected with Mr Kawiliza’s age, there is no need to spend any more time discussing this particular matter.[110]To conclude, the complaint of direct age discrimination was a wholly misconceived complaint and must fail. Harassment[111]This was a case where the allegations of direct discrimination and harassment overlapped. This is not surprising, but it also means that there is no need to discuss the conduct contained within the list of issues relating to harassment when they have already been considered above in relation to the allegations of treatment. Not surprisingly, there is little need to consider this complaint in any detail given the Tribunal’s conclusions concerning direct discrimination as the allegations were not found to have happened, or where they did, did not happen as alleged and/or were not attributed to Mr Kawiliza’s age.[112]The only conduct that was unwanted related to reasonable management decisions and decisions which were primarily related to matters of conduct. None of them could be reasonably considered as having the effect of violating Mr Kawizila’s dignity or creating an intimidating, hostile, humiliating or offensive environment and the overall background in this case related to an employee who being taken through an established disciplinary process following the identification of understandable concerns.[113]The Tribunal naturally would make the same comments concerning time limits as briefly discussed in the section concerning direct discrimination above and the complaint of harassment for reasons connected with Mr Kawizila’s age is misconceived and must fail. Unlawful deduction from wages[114]The third respondent accepted that it made unauthorised deductions from the claimant’s wages in accordance with ERA section 13 in respect of underpayments of £86.82 concerning bank holidays. Mr Kawizila failed to advance any arguments or concerning this complaint and while reference was made to a significant claim in relation this complaint, the Tribunal accepts that the third respondent’s calculation is reasonable taking into account the reference period within this case.[115]Similarly, the third respondent has also accepted that Mr Kawizila was not paid all of his annual leave entitlement in the sum of £318.91 and in the absence of any evidence or submissions from him to the contrary, the Tribunal accepts that this claim succeeds at the level accepted by the third respondent.
Conclusion
[116]The claimant was employed at the material time by Living Ambition Limited, who are the third respondent in these proceedings.[117]The claims against the first and second respondents are therefore dismissed.[118]The claimant was fairly dismissed by reason of conduct and accordingly his complaint of unfair dismissal is unsuccessful.[119]The claimant’s complaints alleging direct discrimination and harassment by reason of his age contrary to sections 5, 13 and 26 of the Equality Act 2010, are not well founded and are dismissed. This means that these complaints are unsuccessful.[120]The complaint of unpaid annual leave entitlement succeeds and the respondent is ordered to pay the claimant the sum of £318.91[121]The complaint of unlawful deduction of wages succeeds and the respondent is ordered to pay the claimant the sum of £86.82[122]Accordingly, the third respondent is ordered to pay the claimant the total sum of £405.73 in settlement of his successful complaint of unpaid annual leave entitlement and unlawful deduction from wages.