Mrs S Kaur v Greenhalgh’s Craft Bakery Ltd: 2411982/2018
EMPLOYMENT TRIBUNALS
Case No 2411982/2018
Between
Mrs S KaurClaimantGreenhalgh’s Craft Bakery LtdRespondent
Before
Employment Judge FraneyIn person for claimantMs L Quigley (instructed by Counsel) for respondentDate 22 July 2019
JUDGMENT
[1]The claimant has permission to amend her claim so as to introduce the allegations which appear in Annex B to the Case Management Order of 28 September 2018 (“the September CMO”) as paragraphs 1(d) and 1(e). The claimant also has permission to pursue those in the alternative as allegations of direct sex discrimination.[2]By consent the claimant has permission to amend her claim so as to introduce a complaint of unlawful deductions from pay.[3]The claimant is refused permission to amend so as to rely on the second part of paragraph 1(a), 1(b) and 5 of Annex B to the September CMO.[4]The applications by the respondent for an order striking out parts of the claim or in the alternative for a deposit to be paid are refused, save in relation to the complaint of automatically unfair dismissal contrary to section 103A Employment Rights Act 1996, which is struck out because it has no reasonable prospect of success.[5]The allegations in Annex B to the September CMO which can proceed are therefore as follows:• Paragraph 1(a) – first part only.• Paragraph 1(c).• Paragraph 1(d).• Paragraph 1(e).• Paragraph 3 insofar as it is an alternative to harassment in relation to such matters.• Paragraph 6.• Paragraph 8 insofar as it is an alternative to harassment in relation to paragraph 6.• A complaint of unlawful deductions from pay which is addressed in the Case Management order which accompanies this Judgment.
REASONS
Introduction
[1]This was a preliminary hearing convened following the September CMO in order to determine two broad matters.[2]The first was whether the claimant should be granted permission to amend so as to introduce complaints made in her further particulars of 8 August 2018 which were not contained in the original claim form.[3]The second was whether any of the complaints which were already part of the claim, or permitted by way of amendment, should be struck out because they have no reasonable prospect of success, or in the alternative the subject of a requirement to pay a deposit because they have little reasonable prospect of success.[4]Although those two broad areas were conceptually different, there was a degree of overlap because the merits of a proposed new complaint can be relevant to whether the claimant is permitted or refused.[5]Accordingly I dealt with matters in the following way. I read a written submission and heard an oral submission from Ms Quigley on behalf of the respondent on the amendment applications and then the merits issues, and then I heard from the claimant orally in response. In the course of submissions I viewed CCTV footage of certain incidents, and I was also referred to some documents which were in the bundle of documents (approximately 340 pages) which was provided for the purposes of this hearing. Any reference to page numbers in these reasons is a reference to that bundle.[6]It must be emphasised that I made no findings of fact in the course of this exercise.[7]Before addressing each allegation I will summarise the legal framework which applies to applications to amend and to applications to strike out or for a deposit order. Relevant Legal Framework - Amendments[8]It is inherent within the general case management power in rule 29 of the Employment Tribunal Rules of Procedure 2013 that the Tribunal has power to refuse to allow a party to amend a claim which has been lodged. Conversely the Tribunal has power to allow such an amendment. In common with all such powers under the rules, the Tribunal must have in mind the overriding objective in rule 2, which is to deal with the case fairly and justly. That includes, so far as practicable, ensuring that the parties are on an equal footing, dealing with cases in ways which are proportionate to the complexity and important of the issues, avoiding delays, so far as compatible with proper consideration of the issues, and saving expense.[9]The leading case on how this discretion should be exercised remains Selkent Bus Co Limited v Moore [1996] ICR 836, in which the then President of the Employment Appeal Tribunal, Mr Justice Mummery, gave guidance on how Tribunals should approach applications for permission to amend. At page 843 at F, the EAT said: “Whenever the discretion to grant an amendment is invoked, the Tribunal should take account of all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.”[10]The EAT went on to identify some circumstances which would certainly be relevant, although such a list could not be exhaustive. It will be important to identify the nature of the amendment, distinguishing between minor amendments such as the addition of factual details to existing allegations, or major amendments such as the making of entirely new factual allegations which change the basis of the existing claim. A substantial alteration which pleads a new cause of action may have to be treated differently from a minor amendment.[11]It is also essential for the Tribunal to consider whether a new complaint would be out of time as at the date of the application to amend. Consideration of time limits must encompass the applicable statutory provision for extensions.[12]The timing and manner of the application is also relevant. An application should not be refused solely because there has been a delay in making it, but delay is relevant to the exercise of discretion. It is relevant to consider why the application was not made any earlier.[13]The EAT in Selkent concluded that passage with the following: “Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.” Relevant Legal Principles – Striking Out/Deposit[14]The power to strike out arises under what is now rule 37 of the Employment Tribunals Rules of Procedure 2013. Rule 37 so far as material provides as follows: “At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds – (a) that it is scandalous or vexatious or has no reasonable prospect of success…”[15]As far as “no reasonable prospect of success” is concerned, a helpful summary of the proper legal approach to an application to strike-out is found in paragraph 30 of Tayside Public Transport Co Ltd v Reilly [2012] CSIH 46, a decision of the Inner House of the Court of Session: “Counsel are agreed that the power conferred by Rule 18(7)(b) may be exercised only in rare circumstances. It has been described as draconian (Balls v Downham Market High School and College [2011] IRLR 217, at para 4 (EAT)). In almost every case the decision in an unfair dismissal claim is fact-sensitive. Therefore where the central facts are in dispute, a claim should be struck out only in the most exceptional circumstances. Where there is a serious dispute on the crucial facts, it is not for the Tribunal to conduct an impromptu trial of the facts (ED & F Mann Liquid Products Ltd v Patel [2003] CP Rep 51, Potter LJ at para 10). There may be cases where it is instantly demonstrable that the central facts in the claim are untrue; for example, where the alleged facts are conclusively disproved by the productions (ED & F Mann Liquid Products Ltd v Patel, supra; Ezsias v North Glamorgan NHS Trust [[2007] ICR 1126]). But in the normal case where there is a “crucial core of disputed facts,” it is an error of law for the Tribunal to pre-empt the determination of a full hearing by striking out (Ezsias v North Glamorgan NHS Trust, supra, Maurice Kay LJ, at para 29).”[16]There is no blanket ban against there being a strike-out, for instance in particular classes of cases such as discrimination, although in Lockey v East North East Homes Leeds UKEAT/0511/10/DM, a decision of 14 June 2011 before HHJ Richardson sitting alone, the EAT said at paragraph 19: “…In cases of discrimination and whistleblowing there is a particular public interest in examining claims on their merits which should cause a Tribunal to consider with special care whether a claim is truly one where there are no reasonable prospects of success: see Ezsias at paragraph 32, applying Anyanwu v South Bank Student’s Union [2001] IRLR 305. …..The Tribunal is in no position to conduct a mini-trial; issues which depend on disputed facts will not be capable of resolution unless it is clear that there is no real substance in factual assertions made, as it may be if they are contradicted by contemporaneous documents.”[17]In Ahir v British Airways plc [2017] EWCA Civ 1392, Underhill LJ put it as follows (paragraph 16): “Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment, and I am not sure that that exercise is assisted by attempting to gloss the well understood language of the rule by reference to other phrases or adjectives or by debating the difference in the abstract between ‘exceptional’ and ‘most exceptional’ circumstances or other such phrases as may be found in the authorities. Nevertheless, it remains the case that the hurdle is high, and specifically that it is higher than the test for the making of a deposit order, which is that there should be ‘little reasonable prospect of success’.”[18]As for a deposit order, rule 39(1) permits the Tribunal to require a party to pay a deposit not exceeding £1,000 as a condition of continuing to advance an allegation or argument in proceedings before the Tribunal where it considers that any such allegation or argument has little reasonable prospect of success. Conclusions on Annex B Allegations[19]In this section of the Reasons I will address each of the allegations in Annex B in turn and explain my decision. Harassment related to sex[20]Paragraph 1 of Annex B contained five allegations of harassment related to sex.[21]Paragraph 1(a) contained two matters relating to Michael Smart. The first was an allegation that he spoke openly about sexual matters in the presence of the claimant. Ms Quigley accepted that this was already part of the complaint and she did not pursue any application for this to be struck out or subject to a deposit. That matter will therefore proceed.[22]The second part of allegation 1(a) was that Mr Smart more or less every single day asked the claimant about how she was dressed. Ms Quigley opposed the application to introduce this made on 8 August 2018, even though that application was within the three month limitation period if it was established that those kind of comments happened right up until the claimant left employment in late June 2018. This allegation had not been mentioned in the claimant's written grievance about Michael Smart (pages 149-150) and nor had it been mentioned in her grievance meetings on 29 May and 6 June. It was not mentioned in her appeal. It formed no part of her claim form. Even though within time, allowing the allegation to be introduced would prejudice the respondent because CCTV records could only be accessed for the previous 28 days. Had the allegation been made in the claim form at the end of June records from late May could immediately have been accessed and preserved, but all records had now been overwritten. Further, on the factory floor the claimant had to wear a uniform so a discussion about how she was dressed was likely to have occurred in a different area where staff got changed, The CCTV from that area had not been retrieved or considered in relation to any of the other allegations. Further, employees had left the business and because this had not been raised previously it had not been addressed in the internal investigation. She submitted that the respondent could not fairly defend its case on this allegation if it were permitted to be pursued.[23]The claimant said that she had mentioned harassment on her claim form. She had written everything she could in the internal procedures. She had told Emma Morris verbally on 29 May that Mr Smart had been behaving in a “very dirty way” and that was in part a reference to this matter.[24]I decided that the balance of prejudice favoured refusing permission to amend. Although this allegation had been raised within the primary time limit, that was not conclusive in favour of the claimant. It introduced a new range of factual allegations about Mr Smart never previously raised. The delay in raising it had deprived the respondent of the opportunity to address it in its internal investigation, and to preserve CCTV footage (which had audio as well as visual images). Even taking into account that the claimant was representing herself, and was under stress when completing her internal complaints and her claim form, there was no good reason for this matter having been omitted from those earlier documents, and her failure to include it meant that the respondent was in a worse position than if it had known about this allegation before 8 August 2018. I therefore declined permission to introduce that matter by way of amendment.[25]Paragraph 1(b) was an allegation about Rami Mohammad talking about sexual matters in the presence of the claimant, and regularly touching the claimant on her hand or arm in the office or when he was giving her a lift to or from work in his car. That too was a matter never previously raised. The claimant had made a complaint about Mr Mohammad in her internal complaints, but not a complaint about behaviour of this kind. It had not been considered in the internal investigation and no CCTV which might have been relevant to this had been preserved.[26]For the same reasons I concluded that the balance or prejudice favoured refusing permission to amend. Although the claim form contained a broad allegation of sexual harassment, these were new factual matters against someone about whom this complaint had not previously been brought. The allegations about Rami Mohammad made in the internal complaints were about his treatment of the claimant following the incident with Eva Falusi (see below). The respondent had been deprived of the opportunity of gathering or preserving evidence about these matters. Had it known about them at the end of June when the claim form was lodged the CCTV evidence in particular could have been preserved. That opportunity had been lost because of the claimant's delay in raising this until 8 August 2018. In those circumstances the balance of prejudice favoured refusing permission to amend.[27]Paragraph 1(c) was already part of the case. Permission to amend was not required. However, Ms Quigley submitted that it was an allegation with no reasonable prospect of success. This related in particular to the allegation that Ms Falusi that made sexual gestures towards the claimant. CCTV footage of that incident was available. I viewed the CCTV footage during the respondent’s submission, and again during the claimant’s submission, and having seen it I am satisfied that this allegation has a reasonable prospect of success. In addition, page 159 in the bundle was a witness statement from a member of staff who confirmed having seen Ms Falusi make a sexual gesture. It is up to the Tribunal that hears the case to decide whether the evidence proves the claimant’s allegation or not. I rejected the application for that part of the allegation to be struck out or subject to a requirement to pay a deposit.[28]Paragraph 1(d) was that David Leigh had swiped a piece of blue cling wrap towards the claimant's back, having previously asked her to sit in his lap. The core of the allegation was the movement with the cling wrap. This was a new matter for which permission to amend was required. Ms Quigley accepted it was within the application to amend made on 8 August 2018 and was within the primary time limit, but said that the application lacked any merit. Alternatively, if permission to amend were granted, the allegation should be struck out as having no reasonable prospect of success. She based this on the CCTV footage which I viewed. It showed Mr Leigh waving a strip of cling film towards the claimant's back. The matter had been reported at the time but the police dismissed it. Ms Quigley submitted that there was no evidence to suggest this was related to sex or was of a sexual nature. A statement from Emma Morris at page 160 in the bundle confirmed that the policers who attended told her that the claimant had initially reported that a male member of staff had “pinched her bum”. Ms Quigley submitted this went towards the credibility of the claimant and therefore meant this was a weak allegation which should not be permitted by way of amendment.[29]It seemed to me that permission to amend should be granted and that this allegation should be neither struck out nor subject to a requirement to pay a deposit. The CCTV confirmed some conduct on the part of Mr Leigh towards the claimant. Whether the claimant can establish that it was related to sex will depend upon the oral evidence about previous exchanges between them. The application to amend was made within the primary time limit. It was essentially further particulars of the allegation of sexual harassment made on the claim form. The points made by the respondent about the lack of merit in the allegation could be pursued at the final hearing, and any alleged inconsistencies in how the matter had been reported could be canvassed in cross examination. I granted permission for the claim form to be amended to include this allegation, and declined to strike it out or order a deposit.[30]Paragraph 1(e) was about an incident on 15 June 2018 when Martin Almond asked the claimant why she was causing so many problems and said that she was “doing sex perception” to a colleague, Daniel, and threatened to tell her husband about it. This was a new matter for which permission to amend would be required. However, it had been mentioned internally in the grounds of appeal (page 228). The application to amend was made within the primary time limit. Ms Quigley’s objection was primarily based upon the merits: that it could not possibly be related to sex or direct discrimination under section 13. I rejected that argument. It seemed to me reasonably arguable on behalf of the claimant that if she establishes the factual basis of the conversation, the Tribunal could conclude that it was “related to sex” because it arose out of a view by Mr Almond that the claimant was behaving inappropriately in her discussions with a male colleague. That could be because he perceived those discussions to be of a sexual nature, or it could be because he was influenced in his negative view by the fact the claimant was a woman. I therefore granted permission for the claimant to rely on this matter and I rejected the application for it to be struck out or for a deposit to be ordered. Direct Sex Discrimination[31]The direct sex discrimination complaint set out in paragraphs 3 and 4 of Annex B was really an alternative to the harassment complaint. Conduct which amounts to harassment cannot also be a detriment by way of sex discrimination, but if for any reason it does not amount to harassment it is possible for it to amount to sex discrimination. It seemed to me arguable that the matters which can proceed as allegations of sexual harassment could also be framed as sex discrimination in the alternative, and therefore I declined to strike any of these out or require the claimant to pay a deposit. Harassment related to race or religious belief[32]Paragraph 5 of Annex B was a new matter making allegations of race or religious belief harassment against Mr Mohammad in three respects:(a) Threatening the claimant with being sacked if she was late or did not work properly, that happening many times every single day;(b) Treating the claimant badly after she complained about Eva Falusi following the incident between the two of them; and(c) Refusing to allow the claimant to take a day off when she requested one for medical reasons.[33]Ms Quigley accepted that the application to amend was made within time in relation to (a) if it continued up until the end of employment (although that was unclear), and in relation to (b). The date of the allegation in (c) was unclear. More importantly, she submitted, this was an entirely new allegation which had never featured before in any of the internal complaints or in the claim form. Complaints had been made about Mr Mohammad internally but they were not complaints of race or religious discrimination. In any event, the thrust of those earlier complaints was that Mr Mohammad had turned against her because of the incident with Eva Falusi. If that was correct that would not amount to race or religious discrimination.[34]In the course of her response on this point the claimant confirmed that she is not in fact a Muslim, as had been understood at the last hearing, but of the Sikh religion. She asserted her belief that Mr Mohammad was treating her badly in part because of that difference in religion. However, she did not adequately explain why her complaints about him during employment were confined to complaints that he treated her badly because of her complaint about Ms Falusi. In the course of her response she also made reference to a covert recording which was made of her meeting with Emma Morris, and she said in the course of that Ms Morris made some admissions about how Mr Mohammad treated women. That did not seem to me to be at all relevant to the merits of the complaint of race or religious discrimination.[35]Putting these matters together I decided to refuse permission to amend. The case that there was race or religious discrimination was directly contrary to the case which the claimant put forward at the relevant time where she identified a reason for Mr Mohammad to treat her badly which had nothing to do with race or religion. It was that she had brought a complaint about Ms Falusi. The balance of prejudice therefore favoured refusing permission since the claimant was not prejudiced by not being able to pursue a complaint which was directly contrary to what she had asserted at the time. In contrast the respondent would be significantly prejudiced if it had to investigate these matters and adduce evidence to rebut the substantive basis of these proposed complaints. I refused permission for this amendment.[36]Paragraph 6 was an allegation about Michael Smart using the phrase “Paki shop” on one occasion in front of the claimant. Permission to amend was not required. Ms Quigley submitted that this allegation lacked merit. The claimant was not Pakistani. The comment could not be related to the claimant's race. I rejected this argument. The comment in question, if it is established that it was made, is plainly related to race. The protected characteristic under section 26 does not have to be a protected characteristic possessed by the claimant. Further, it can create the proscribed environment even if not directed at the claimant personally. It seemed to me this allegation would turn on the facts and therefore should not be the subject of a strike out or deposit. Direct discrimination because of race/religious belief[37]This complaint was an alternative to the harassment allegations. Insofar as it was an alternative to allegation 5, permission to amend was refused for the same reasons. Insofar as it was an alternative to allegation 6, permission to amend was granted because it was a mere re-labelling exercise. For the reasons set out above that allegation had a reasonable prospect of success. Unfair dismissal complaint[38]No permission to amend was required as the whistle-blowing complaint had been raised on the claim form, but Ms Quigley submitted that it lacked merit. She based this on two propositions. The first was that the claimant had failed factually to provide sufficient information about her alleged protected disclosures to mean that the case had any reasonable prospect of success. That was based upon an analysis of the list of protected disclosures provided by the claimant on pages 65 and 66 in her further particulars of 8 August 2018, and on the information she provided in a 23 page response to the amended response form provided shortly before this hearing.[39]The second proposition was that the claimant had no prospect at all of showing any causal link between any such protected disclosures and her dismissal. The dismissing managers, Ms Morris and Ms Ogden, did not know of any protected disclosures about health and safety matters on the factory floor, and they had ample evidence to justify their decision given the 15 written complaints about the claimant which had been received, and given that even on the claimant's own case she was experiencing working relationship difficulties with a number of colleagues.[40]On the first point it seemed to me the claimant did have reasonable prospects of showing that she had provided information to her employer which could form the basis of a protected disclosure. Although she had not provided details of dates and people to whom she spoke on each occasion, it seemed to me reasonable to suppose that she would be able to do so in a way which would establish that she made at least one protected disclosure.[41]However, I agreed that her case was hopeless on causation. There was ample reason for an employee in her probationary period to be dismissed given the numerous written complaints about her that were received, and although I asked her a number of times the claimant could identify no evidence suggesting that Ms Morris or Ms Ogden were aware of the health and safety concerns she raised on which she relied as protected disclosures. The decision of the Court of Appeal in Royal Mail Ltd v Jhuti [2017] EWCA Civ 1632 considered the different scenarios which might arise where an allegation is made that information before the decision maker has been manipulated by someone else who is aware of the protected disclosure. The allegations made by the claimant in this case fell within paragraph 60 of Jhuti, and therefore it was the mental processes of Ms Morris and Ms Ogden alone which fell for consideration. The claimant had no evidence that they were even aware of those matters, let alone that that was the reason or principal reason for their decision. Further, there was a perfectly plausible reason given in the dismissal letter of 27 June 2018 (pages 223-224) and the analysis contained in the preceding note at pages 220-222 supported that view. It followed that the assertion made by the claimant about the reason for dismissal was contradicted by the contemporaneous documents.[42]Despite the public interest in complaints of whistle-blowing automatic unfair dismissal proceeding to a hearing, it seemed to me this is one of those cases where the claimant's case was hopeless. She had no facts available to her which would support the case on causation. I therefore struck out the automatic unfair dismissal complaint.[1]This is a claim brought by Mrs S Kaur. In her claim form (after some case management during which some claims were dismissed and others clarified) she made four allegations of harassment relating to her sex and harassment because of her race (one incident). She further alleged that there had been an unlawful deduction from her wages. The respondent denied all of the allegations and asserted that the claims were out of time.[2]The Tribunal had the benefit of a Punjabi interpreter throughout the proceedings.
The Evidence
[3]We had an agreed bundle of documents amounting to just less than 600 pages. All of the witnesses had made witness statements and some were cross examined, the evidence of others was accepted. The business premises of the respondent were in part covered by CCTV, and the Tribunal found this very helpful, even though it had no sound recording. We applied the standard of proof, the balance of probabilities. The primary burden of proof lay with the claimant in all of the allegations, and in the discrimination allegations we took into account the secondary burden held by the respondent.[4]Overall we found we preferred the evidence of the respondent’s witnesses. The claimant's family gave clear and truthful evidence about the impact of what had happened at work on the claimant. This was entirely reliant, however, on the account given to them by the claimant, with the exception of one meeting witnessed by them at her house. That meeting did not directly impact on any of the agreed issues and did not impact on our view of the evidence overall.[5]The respondent’s witnesses gave clear and reflective evidence. The claimant’s evidence was tainted by inconsistency and apparent shifting emphases. To give an example: David Leigh was accused firstly of pinching her bottom, then at a later date the account was changed to flicking clingfilm with a knot in it at her bottom, so that it felt like a pinch. Yet later of wafting the clingfilm in the direction of her back. The reality seen by the Tribunal on the recorded CCTV was a small amount of limp cling film (with no knot) being wafted gently in the direction of the claimant’s back as she walked past: it was far from clear that it made contact with the claimant at all. Such apparent initial exaggeration did the claimant no favours and led us to conclude that her account was the less reliable. The Issues Harassment related to sex Section 26 Equality Act 2010
The Issues
[6]Are the facts such that the Tribunal could conclude that on any of the following alleged occasions alleged occasions the claimant was subjected to unwanted conduct related to sex which had the purpose or effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her:(a) In Michael Smart speaking openly about sexual matters in the presence of the claimant more or less every day;(b) On 10 May 2018 when Eva Falusi accused the claimant of wanting to have sex with her (Ms Falusi’s) brother and made sexual gestures towards the claimant saying she would beat the claimant(c) On 24 May 2018 when David Leigh swiped a piece of blue clingwrap towards the claimant’s back, having previously asked the claimant to sit in his lap; and later a further allegation that he grabbed his private parts in front of the claimant(d) On 15 June 2018 when Martin Almond asked the claimant why she was causing so many problems and said she was doing ‘sex perception’ to a colleague Daniel and threatened to tell her husband.[7]If so, can the respondent nevertheless show that it did not contravene Section 26? Direct sex discrimination – Section 13 Equality Act 2010[8]In the alternative, if any of the matters in the above paragraphs do not amount to harassment, are the facts such that the Tribunal could conclude that they amounted to less favourable treatment because of sex than a hypothetical male comparator would have received?[9]If so, can the respondent nevertheless show that it did not contravene section 13? Harassment related to race[10]Are the facts such that the Tribunal could conclude that Michael Smart subjected the claimant to unwanted conduct related to race which had the purpose or effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her when he used the phrase “Paki Shop” on one occasion in front of the claimant?[11]If so, can the respondent nevertheless show that there was no contravention of section 26? Direct race discrimination – Section 13 Equality Act 2010[12]In the alternative, if any of the matters in paragraph 5 do not amount to harassment, are the facts such that the Tribunal could conclude that the claimant was treated less favourably because of race than a person in the same circumstances of a different race would be treated?[13]If so, can the respondent nevertheless show there was no contravention of section 13. Time Limits – Section 123 Equality Act 2010[14]Insofar as any of the matters for which the claimant seeks a remedy occurred more than 3 months prior to the presentation of her claim, allowing for the effect of early conciliation, can the claimant show that it formed part of the conduct extending over a period which ended within 3 months of presentation? Reasonable steps defence – Section 109(4) Equality Act 2010[15]If any of the respondent’s employees are found to have contravened the Equality Act 2010 in relation to anything alleged above, can the respondent show that it took all reasonable steps to prevent that employee from doing that thing or anything of that description? Unlawful deductions from pay – Part 11 Employment Rights Act 1996[16]Can the claimant establish that on one or more occasions between 16 February 2018 and 20 April 2018 the respondent paid the claimant less than the amount properly payable under her contract because the claimant had worked more hours than those for which she was paid?[17]Insofar as any such unlawful deductions occurred before 23 March 2019, three months before presentation of the claim ( allowing for the effect of early conciliation) can the claimant show that they formed part of the series of similar deductions ending on or after that date?
Remedy
[18]If any of the above complaints succeed, what is the appropriate remedy.
The Facts
[19]The claimant was employed by the respondent as a bakery operative on 22 January 2018. She worked on a production line with staff from many different backgrounds. She was supervised by team leaders and then a manager. Under the terms of the staff handbook and her contract, she was paid hourly from her clocking on records in 15 minute units. If she clocked out during a unit she could lose pay or may gain, dependent on the exact minute of the clock-out. On one occasion the claimant did not use the clock but when she advised her manager that she had not done so, she was paid those hours promptly. She did not explain her failure to use the clock.[20]The claimant believed that she should be paid to the minute and was seen to stand by the clock until such time as it moved forward to ensure that she was paid to the next 15 minutes. The claimant was suspicious of the clock, although we heard no evidence to suggest it could be wrong beyond her own observations, which culminated in her alleging, in her closing speech (but not before) that the clock had been tampered with.[21]The respondent, when it was raised with them by her, explained over and over again how it worked, but the claimant would not accept it. On one occasion the claimant asked to leave early as she was unwell and was observed to stand by the clock for seven minutes to ensure she was credited with that 15 minute unit.[22]The claimant produced a schedule from which she alleges she is owed over four hours and six minutes in pay. The claimant produced a list of dates when she alleged she was underpaid. When checked against the automated clock her figures do not tally - for example (and the most stark difference) on 30 March 2018 she claims she left at 1.59 when the clock shows her clocking out at 12.59. with no evidence of any malfunction, the Tribunal considered that it could prefer the figures set out in the clock printouts supplied by the respondent.[23]The claimant identifies as a Punjabi speaking Pakistani woman living in England. She gave evidence that Michael Smart, on an unknown date, used the phrase “Paki shop” in front of her, and she was harassed by this.[24]On a later date the claimant raised a grievance about other things. She did not raise this as part of her grievance. Michael Smart gave clear and unequivocal evidence, credible evidence, that he managed a multiracial team (including a team leader from Pakistan) and he would not have said such a thing. The evidence of that team leader, Mr Mohamed (who had worked there for 12 years), and other staff, witnesses who worked with the claimant on the production lines, was that no-one had heard any racist comment at any time from Michael Smart. We found that no such comment was made. It was noted that the claimant did not complain about this at the time, and the complaint came later in the case, but the evidence does not support her account. We do not find that Mr Smart made any racist comment.[25]The claimant accused Michael Smart of discussing sexual matters ‘more or less every day’ in front of her. The claimant was in the habit of recording clock-in times and covertly recording conversations with staff on her phone, but she kept no records of what was said by Mr Smart which we found surprising if these comments were actually made.[26]Emma Morris’ grievance meeting with the claimant was covertly recorded by the claimant, but Mr Smart’s alleged behaviour was not mentioned by her in any detail at all. The claimant said she trusted Emma Morris. We were surprised that she did not complain in detail if that were the case.[27]The other staff who gave evidence all agreed that Mr Smart did not talk about private matters at all. The claimant knew that CCTV was in place when these alleged comments were made but waited until the CCTV had been deleted before listing her potential witnesses and complaining.[28]In any event, the respondent’s witness evidence was that the claimant herself raised matters of sex in conversation with her fellow workers, and we found this credible. For example, on one occasion she came to work and alleged that she was sore after too much sex on holiday.[29]On another occasion, the claimant and Eva Falusi had an argument over the claimant audio recording her fellow workers’ conversations to which she was not party (and then translating them from Hungarian). Ms Falusi accused the claimant of wanting to have sex with her (Ms Falusi’s) brother/cousin who had been an employee. Ms Falusi did not speak Punjabi and her first language was Hungarian. She used an arm gesture to suggest having sex, by way of clarification. The claimant took offence and raised a complaint.[30]The CCTV, which the Tribunal was able to see, showed an argument between the two women. As a fact, no-one else was involved until the claimant moved away and continued to harangue others who were standing nearby. On the CCTV she could be seen waving her arms around and stamping her feet. Two witnesses (Mr Gere and Mr Almond) explained that the claimant had expressed interest in Ms Falusi’s brother/cousin in terms of a relationship. It ill behoved the claimant to take exception to Ms Falusi’s gesture when considered in the context of her own behaviour.[31]The claimant then alleged that David Leigh had invited her to sit on his lap on an unspecified date, and then on another occasion waved clingfilm at her back David Leigh described himself as a joker, ‘messing around and horseplay’. He subsequently received low level counselling and a warning for messing around with the clingfilm referred to above.[32]The whole clingfilm incident was recorded on CCTV which the Tribunal viewed. We considered Mr Leigh’s evidence and the claimant's explanation. Mr Leigh’s explanation matched what we could see on the CCTV. He picked up a piece of clingfilm which was rolled, it was wispy and limp. He wafted it towards the claimant’s back more than once, as she walked passed him, but only on the last occasion did she notice it. There was no knot in the clingfilm although the claimant alleged there was. It looked unlikely that it even made contact with the claimant. It was in the direction of her back, not her bottom.[33]The claimant on that occasion called the police into the bakery (without any reference to her team leader or manager) and complained that Mr Leigh had pinched her bottom. They viewed the video and agreed that there was no evidence of an assault or a sexual assault. The claimant initially asserted she had been pinched on the bottom, and that it then felt as though she had been pinched on the bottom, and finally that she believed that is what had happened. Her account later changed to Mr Leigh waving the cling film in her direction. Her account is fanciful.[34]The claimant further asserted in her evidence that Mr Leigh grabbed his private parts in front of her, an allegation for which we had no context at all and which was denied by a credible witness (who was supposed to be there when it happened). She also alleged that at some point he had invited the claimant to sit on his knee. It was noted that the claimant had failed to mention these incidents when she had called the police, and we find it to be inherently unlikely that either happened.[35]On 15 June 2018 the claimant suggested that Mr Almond asked her why she was causing problems and alleged she was doing “sex perception” to Daniel (the cousin/brother). Daniel had told Mr Almond that the claimant had propositioned him as her husband was away. The Tribunal tested the use of the phrase “sex perception” as it made no sense, and Mr Almond as a native English speaker would not have used it. In her closing remarks the claimant finally admitted that she may have been wrong and that he had said “sex propositioned”, equally incomprehensible to a native English speaker. In time the claimant gave evidence that Mr Mohammed and Natalie heard the conversation. She did not mention this until she gave her evidence in Tribunal. Neither of them supported her account. We found both Mr Almond and Mr Mohammed to give straightforward unwavering accounts upon which we could rely.[36]The claimant went through a grievance process with Emma Morris whom she covertly recorded. We had an agreed transcript. It served the claimant little benefit, and in fact supported the respondent’s account overall. Submissions Claimant's Submissions[37]Unlawful deduction from wages. The claimant asserts that she is owed payments for 4 hours and 6 minutes of work. She considered that it was clear the company made manual changes to the clock – sometimes in her favour. She gave examples of how she said her pay was inaccurate.[38]Sexual harassment – although her written submissions were in English, she did not make any submissions in this regard other than to write one sentence in what the Tribunal assumed was her native Punjabi in direct contravention of the Tribunal’s order that they should be in English[39]Credibility – the respondent has taken statements from a number of staff and when she spoke to them later they said they had no issues with her. She had asked to be allowed to use her covert audio but been refused at case management stage.[40]The CCTV showing the Faluzi incident had been tampered with so the Tribunal could not see the Hungarian men abusing her in their own language.[41]She had deleted her Facebook discussions with Danial, but that did not mean she had romantic talk with him and he did not give evidence at the tribunal.[42]Some of the 15 respondent witnesses whose statements were used in ger grievance, and some at the hearing did not work with her.[43]She was not defensive because she was telling the truth, she has not changed her account, and has told the truth.[44]Many of her recordings were made outside work.[45]Jennifer, who gave evidence, does not have English as her first language, and Ms Morris must have asked her to include the ‘ too much sex’ comment in.[46]The respondent witnesses did not always remember incidents in cross examination and had to be reminded of them. The claimant generally did include dates and times.[47]MS did not agree to any of the ‘dirty’ allegations she made against him[48]Mr Mohamed had worked for MS for 12 years so was unlikely to say anything against him[49]The respondent failed to keep the CCTV. They have relied on word of mouth only except where the claimant presented a grievance.[50]On 29 May she had told Ms Morris that Mr Leigh touched her shoulder and back and hugged her from behind and would say come and sit on my lap. She forgot to mention grabbing his private parts and Emma should have asked her more.[51]Claimant was unaware CCTV was only held for 28 days[52]Employees said in their statements what the respondent wanted them to say to secure their own jobs[53]Eva Falusi humiliated the claimant playing with her honour in front of other employees. It was unwanted conduct. The company as deleted that footage. There was no excuse for making the hand gesture. The claimant did not share her personal life and worked on a different line to some of those commenting.[54]The swiping of the cling film is a vulgar crime, committed to a lady without her permission. It was not horseplay although everyone used the term at work and in the hearing[55]The cling film did have a knot in it.[56]Mr Almond could not remember the incident on 22 June[57]The claimant made a mistake between sex perception and sex proposition[58]Mr Almond was not telling the truth in his evidence[59]The claimant raised the issue with the ‘paki shop’ comment to Emma, who failed to investigate it. Mr Mohamed was brought up in Iran. Respondent’s Submissions[60]Unlawful deduction from wages :- The claimant is relying on her own manual notes of her finishing time to allege that tat she is owed 4 hours and six minutes. The claimant was paid as an hourly employee. The burden of proof lies with the claimant to establish that the respondent has failed to pay her for all work done. The claimant’s manual records do not match the clocking on records of the respondent. There was no evidence of the machine failing to operate properly, and Emma Morris, whom the claimant trusted, gave evidence that the automated machine did not fail. Only in her closing speech did the claimant suddenly, and without evidential foundation suggest that the respondent had selectively tampered with the clock system and it’s records. She could not explain however why this should result in a random loss to her of 4 hours and 6 minutes, nor why the respondent should do so. This example is used by the respondent to suggest the claimant’s lack of credibility throughout. Sexual Harassment.[61]After citing the law (referred to below) The Tribunal was asked to consider the credibility of the various parties. The respondent avers that the claimant both in the internal and Tribunal proceedings had a propensity to lie, misrepresent events and make serious allegations without any evidential basis, and gave seventeen examples. The Tribunal should reject the claimant’s evidence.[62]The issue is whether Mr Smart made sexual remarks on a daily basis or not.[63]The respondent conceded that if true such matters would be of a sexual nature. If it occurred the respondent would say it was not unwanted as the claimant made sexual comments herself (the unchallenged evidence of Jennifer Petrovic about the claimant’s comments on her return from holiday). The claimant gave no dates or specifics about what she alleges was said, or when. In the light of the claimant’s lack of credibility she has not discharged the evidential burden placed upon her Mr Smart is a credible witness, and his evidence was supported by Mr Mohamed, whose evidence had the hallmarks of candour. The claimant suggested that she was embarrassed and precluded by her culture and religion to share such details, to account for her failure to provide any, was undermined by the fact that her grievance meeting was with Emma Morris, a lady whom she liked and trusted. She covertly recorded that meeting and was able to demonstrate the Falusi arm gesture.[64]At the time the claimant did not suggest that there were witnesses to Mr Smart’s behaviour. She listed them once she was aware that the CCTV had been deleted. The claimant was always aware of the existence of the CCTV and never asked for it to be saved.[65]In summary the respondent averred that the claimant’s evidence was wholly unreliable and the Tribunal should reject the claim on the facts. The Eva Falusi allegation[66]The allegation is that Eva Falusi accused the claimant of wanting to have sex with her brother and making sexual gestures towards the claimant saying she would beat her. Ms Falusi accepted that she made the arm gesture and accused the claimant of wanting to have sex with her cousin. If this allegation is true then it does not meet the threshold for harassment. It was not reasonable for it to have the effect. The witnesses confirmed the claimant’s earlier comments about her desire to have sex with the brother/ cousin. It could not be said this was unwanted.[67]The context of Ms Falusi’s actions was that the claimant had been heard to express a romantic interest in Ms Falusi’s brother/ cousin. Ms Gear gave evidence that this was known throughout the factory. Ms Falusi’s first language was Hungarian, she was not a fluent English speaker. Ms Falusi took exception to the claimant recording conversations between the Hungarian workers, and then translating them. The claimant was seen on the CCTV to become angry and upset. Efforts to calm her down failed. The arm gesture was made to compensate for Ms Falusi’s language difficulty.[68]The Tribunal are asked to find that the reason why Ms Falusi made the comment and gesture had nothing to do with the claimant being female, but because she believed the comment to be true and the gesture to express what she was trying to say. Allegation David Leigh[69]The claimant alleges that Mr Leigh swiped a piece of cling film towards her back having previously sked the claimant to sit in his lap. The respondent would say this was not an act of a sexual nature. It was horseplay and messing around. It was clearly directed at her back, with no commentary. An unremarkable exchange which the claimant has grossly exaggerated in the retelling. Mr Leigh was visibly distressed by the suggestion he had sexually harassed the claimant. His evidence had the hallmarks of an honest witness.[70]With regard to the ‘sit in my lap’ comment, the claimant at the Tribunal suggested for the first time that there were witnesses present. It occurred in the break room she said, which was full. However she adduced no further evidence. The claimant deemed the cling film incident to be so dirty and vulgar that she immediately called the police. However she kept quiet about being asked to sit on Mr Leigh’s lap.[71]In her last statement she made the allegation about Mr Leigh grabbing his private parts. She claims it was witnessed. She did not mention it earlier, and had no recollection of the time and date, in stark contrast to the cling film incident. Allegation Mr Almond[72]The claimant alleged that on 15 June Mr Almond asked the claimant why she was causing so many problems and said that she was doing sex perception to Danial and threatened to tell her husband. If true this was not of a sexual nature. Danial and the claimant were friends and flirted. Danial was concerned about her advances and sought Mr Almonds advice. The phrase ‘sex perception’ is not understood and made no sense. In any event the claimant was herself comfortable discussing sex in the workplace. The CCTV was checked and there was no conversation between Mr Almond and the claimant. The claimant changed her evidence and said that Mr Mohamed and Natalie were present. The respondent would ask the Tribunal to prefer the evidence of the respondents because Mr Almond is an English speaker and would not have used the term sex perception Mr Mohamed had a good recollection of the day and was a credible witness. The claimant’s explanation for her failure to complain at the time, saying her family was threatened. This was only suggested after she had left work without gaining permission and so knew her job was at risk. If made this comment did not amount to sexual harassment. The Tribunal is invited to find it was not made. Race discrimination[73]This relates to the single comment alleged against Mr Smart stating he would go to the ‘paki shop’. The respondent accepts that if found to have been said the comment would meet section 26 and be an act of harassment related to race. The Tribunal is invited to find the denial to be the more credible because the claimant could not put a date on this, the fact she improved her evidence to suggest it happened on a production line with witnesses, and that she had earlier said so, when she had not. She did not mention it in her grievance meeting with Ms Morris. Mr Mohamed is a Pakistani man who had worked with Mr Smart for 12 years and never witnesses any racist remarks and Mr Smart was a credible witness. The Law Unlawful deductions from wages Section 13 Employment Rights Act 1996
The Law
[74]S.13(1) s.13(1) An employer shall not make a deduction from the wages of a worker employed by him unless:- the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or the worker has previously signified in writing his agreement or consent to the making of the deduction.[75]Section 26 Equality Act 2010(1) A person (A) harasses another (b) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) The conduct has the purpose or effect of – (i) Violating B’s dignity, or (ii) Creating an intimidating, hostie, degrading, humiliating or offensive environment for B(2) A also harasses B if_ (a) A engages in unwanted conduct of a sexual nature, and (b) The conduct has the purpose or effect referred to in subsection (1) (b)(3) A also harasses B if – (a) A or another person engages in unwanted conduct of a sexual nature or that is related to……..sex, (b) The conduct has the purpose or effect referred to in subsection (1) (b), and (c) Because of B’s rejection or submission to the conduct, A treats B less favourably that A would treat B if B had not rejected or submitted to the conduct.(4) In deciding whether the conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account- (a) The perception of B (b) The other circumstances of the case (c) Whether it was reasonable for the conduct to have that effect. Richmond Pharmacology v Dhaliwal [2009] IRLR 336[76]The Tribunal must determine:(1) Did the respondent engage in unwanted conduct(2) The purpose or effect of the conduct. Did the conduct in question either: (a) Have the purpose or (b) Have the effect of either (i) violating the claimant’s dignity or (ii) creating an adverse environment for her?(3) Was that conduct on the grounds of a protected characteristic or not?[77]When determining issue (2) the Tribunal should have regard to the context of the alleged harassment and whether it was ‘reasonable’ for the conduct to have the effect complained of. Pemberton v Inwood [2018] EWCA Civ 564[78]Per Underhill LJ:- A Tribunal must consider both subsections (1) (a) and (1) (b) of section 26. – whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and whether it was reasonable for the conduct to be regarded as having that effect (the objective question. It must take account of all the other circumstances. Bakkali v Manchester Buses t/a Stagecoach [2018] IRLR 906[79]Per Slade J – conduct can be related to a relevant characteristic even if it is not because of that characteristic.[80]A Tribunal will determine the complaint on the material before it including evidence of the context in which the conduct complained of took place. EHRC Code sets out that conduct of a sexual nature can cover verbal, nonverbal or physical conduct. Direct discrimination Section 13 Equality Act 2010(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. The shifting burden of proof This applies to the claimant’s claims of discrimination and harassment Section 136 Equality Act 2010:(2) If there are facts from which a court could decide, in the absence of any other explanation that a person A had contravened the provision concerned, the court must hold that the contravention occurred. Talbot v Costain Oil, Gas and Process Limited and others 2017 ICR EAT[81]HHG Shanks - when considering inferences:-[82]It is unusual to find direct evidence of discrimination.[83]Normally an Employment Tribunal’s decision will depend on what inference it is proper to draw from all the relevant surrounding circumstances, which will often include conduct by the alleged discriminator before and after the unfavourable treatment in question.[84]It is essential that the Tribunal makes findings about any primary facts that are in issue so that it can take them into account as part of the relevant circumstances.[85]The Tribunal’s assessment of the parties and their witnesses when they give evidence forms an important part of the process of inference.[86]Assessing the evidence of the alleged discriminator when giving an explanation for any treatment involves an assessment not only of credibility but also reliability, and involves testing the evidence by reference to objective facts and documents, possible motives and the overall probabilities.[87]Where there are a number of allegations of discrimination involving one person, conclusions about that person are obviously going to be relevant in relation to all the allegations.[88]The Tribunal must have regard to the totality of the relevant circumstances and give proper consideration to factors which point towards discrimination in deciding what inference to draw in relation to any particular unfavourable treatment.[89]If it is necessary to resort to the burden of proof in this context section 136 Equality Act provides in effect that where it would be proper to draw an inference of discrimination in the absence of any other explanation the burden lies on the alleged discriminator to prove there was no discrimination. British Medical Association v Chaudhary (No 2) 2007 IRLR 800 CA[90]Inferences must be drawn from actual findings of fact not assumed facts. Qureshi v Victoria University of Manchester and Anor 2001 ICR 863 EAT[91]The Tribunal must look at the totality of it’s findings of fact and decide whether they add up to a sufficient basis from which to draw an inference that the respondent has treated the claimant less favourably on the protected grounds.
Conclusions
[92]We do not find on the facts that the claimant suffered sexual harassment or direct sex discrimination. She has not satisfied the Tribunal to the required standard of proof. Looking at the evidence in it’s totality in relation to every one of her four allegations, we do not find that there is sufficient evidence to find a basis from which to draw an inference that the respondent has treated her less favourably on the protected ground of her sex. Nor do we find that the respondent or it’s employees have harassed her on the same protected ground. We rather find that she has deliberately exaggerated and enhanced her evidence to ‘fit’ the case she sought to bring. We had clear evidence of such exaggeration in relation to the cling film allegation. We witnessed the contemporaneous CCTV for ourselves. There was absolutely no suggestion that this was anything other than a small piece of cling film being wafted in the direction of the middle of the claimant’s back as she walked past. She was only aware of 1 occasion, there were four, one after the other. It is not clear that it even made contact at all. She however called the police and alleged she had been pinched on the bottom, before changing her account as time went by. We found other allegations had no foundation in truth, because they were not raised at the time, when others were, and that on one occasion she had to change her case, because her initial case against Mr Smart was not witnessed as she alleged by Mr Mohamed. Her reference to sex perception, later changed to sex proposition was simply incomprehensible and so inherently unlikely to have been said by an individual whose first language was English. We found the claimant to be unreliable as a witness. We preferred the straightforward and consistent evidence of the respondent witnesses, supported on two of the incidents by contemporaneous CCTV. We find therefore that the claimant was not the victim of sexual harassment, nor direct sex discrimination in relation to any of the 4 allegations she raised.[93]We do not find on the facts that the claimant suffered racial harassment or direct race discrimination. Her evidence about one comment of a proposed visit to the ‘paki shop’ was undated and not specific .It was not raised at the time, whenever that was. It was difficult therefore for the respondent to counter. Mr Smart explained that he had always worked with multi-racial teams and would never say something like that. We found that to be credible. We felt able to consider the evidence of Mr Mohamed to be preferable to the claimant’s. He had worked with the company for 12 years and had never heard that, or any other racist comment. He was of Pakistani origin. We took into account our other conclusions in relation to the claimant, that she did not give a reliable account to us. We concluded that on our findings of fact we could not find that this was said, there are no inferences to be drawn and the claim fails.[94]The claimant was paid in accordance with her terms and conditions of employment. There is no credible evidence that there has been any unlawful deduction from wages. The claimant knew she should be paid in accordance with her contract – and was observed to ensure she was credited with additional units, rather than debited. There was no evidence at all that anyone had tampered with the clocking on machine, and no evidence of complaint from any other. Miss Morris confirmed that to be the case The claimant simply wanted to be paid for every minute she worked rather than in 15 minute units, as specified in her agreed contract. This claim has no merit. Her own manual records were not accurate when we compared them with the mechanised clocking out system – on one occasion being an hour out. Her evidence in this regard is not reliable and we do not find her claim to succeed.[95]We heard insufficient evidence about dates of allegations to be able to find that any or all of the incidents were in time, but as we have found all of the claims to lack merit in any event we do not comment further on this.[96]All of the claims are thus dismissed.