Mr Z Mohammed v Raja’s Indian Cuisine Birchington Ltd: 2500250/2018
EMPLOYMENT TRIBUNALS
Case No 2500250/2018
Between
Mr Z MohammedClaimantRaja’s Indian Cuisine Birchington LtdRespondent
Before
Employment Judge KnowlesMs A Rumble (instructed by Counsel) for claimantMr D Carmichael (instructed by Counsel) for respondentDate 11 September 2018
JUDGMENT
[1]The respondent’s application for an extension of time to file a response is refused.[2]The correct title of the respondent is Raja’s Indian Cuisine Birchington Ltd.[3]Under the provisions of Rule 21 of the Employment Tribunals Rules the claimant’s claims for:-(a) unfair dismissal under Section 98 of the Employment Rights Act 1996(b) unfair dismissal under Section 103A of the Employment Rights Act 1996; and(c) harassment on ground of race under Section 26 of the Equality Act 2010; are well founded and succeed. 3. A remedies hearing is listed at Teesside Justice Centre, Teesside Magistrates Court, Victoria Square, Middlesbrough, Cleveland, TS1 2AS on 21 May 2018 commencing at 10:00am with an estimated length of hearing of 3 hours. Case No: 2500250/2018
REASONS
On behalf of the Respondent in relation to the Respondent’s application for an extension of time to file a response I heard evidence from Mr Arsalan Suleman, Managing Director, and Mr Amir Suleman, an employee of the Respondent. They did not produce a bundle of documents. The Respondent’s application for an extension of time to present a response
Evidence
[1]I considered the evidence and the representation from both parties. The Claimant’s claim was sent to the Respondent 16 February 2018 and the Respondent accepts that they received the claim forms. The Respondent’s looked for a solicitor, and on 2 March 2018 spoke to Mr Ayaz Siddique at Kingston Law, emailed to him all of the papers, including a claim form and blank ET3 form. Mr Siddique confirmed receipt a few days later and there has been email contact between then and 11 April 2018 between the Respondent and Mr Siddique during which he confirmed that everything was fine and they had arranged representation for the Preliminary Hearing today. Then on 11 April 2018 Mr Siddique contacted Mr Arsalan Suleman and said they needed to fill in the response form immediately and send it to the tribunal. They did so. They posted it on 11 April 2018. It arrived by post at North Shields on 12 April 2018. The response was 3 weeks 6 days late. The application for an extension of time is only made today. The response contained no cover letter from the Respondent or Kingston Law. There has been no explanation from Kingston Law as to why they did not file a response, when they were instructed, or indeed any specific detail about their involvement in the case. They submitted a case management agenda form on 11 April 2018 to the tribunal but had not requested to go on record as acting. I take into account the reason given for the failure to enter a response within the time limit, namely that the Respondent had trusted that their solicitor was taking care of everything. The Respondent appears to have provided instructions to their solicitor in good time. The delay is quite substantial, almost 4 weeks. Whilst I have an explanation why the Respondent failed to respond earlier, I have no explanation why the Respondent’s solicitors did not file a response between 2 March 2018 and 10 March 2018, or apply for an extension of time and seek to file one earlier than 11 April 2018. I find that remarkable in an application for an extension of time. More so that the Respondent’s solicitors telephoned the Respondent to tell them to complete the form themselves and post it on the day they were completing a case management agenda which they sent to the tribunal by a faster means, email. I have no reason to question the Respondent’s witness evidence on the failure by their trusted solicitor. I consider the explanation of the reasons for the solicitor’s delay between 2 March 2018 and 12 April 2018 unexplained which is unsatisfactory. Serious allegations are made about the Respondent which they wished to respond to. This weighs on the balance of prejudice in the sense that the Respondent’s may have a remedy against their solicitors if they are unable to gain an extension in time. The merits of the response are difficult to comment upon because the response is very brief and there is a dispute as to whether the Claimant resigned or was dismissed. The response does not however engage with the four core claims which relate to the Claimant asserting health and safety issues in relation to the meat he was required to cook. Taking all of these matters into account and in all the circumstances the application for an extension in time to file a response is refused. Liability findings[2]The Claimant confirmed that he only wished to pursue a claim against his employer, the Respondent. He stated that he did not wish the tribunal to bring any claim against Mr Mohammed Suleman on a personal basis.[3]The Claimant confirmed that he does not bring any complaint under Section 47B of the Employment Rights Act 1996. He suffered no detriment other than being dismissed which is, effectively, his Section 103A claim.[4]In my conclusion the Claimant has brought clear claims of unfair dismissal under Section 98 and 103A, and a complaint of racial harassment under Section 26 of the Equality Act 2010.[5]No application for an extension of time is outstanding for the purposes of Rule 21(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations, Schedule 1.[6]On the information available to me and in the absence of an accepted response from the Respondent, I concluded that judgment should be entered on the Claimant’s claims under Rule 21.[1]I heard evidence from the Claimant as to his losses. The Claimant produced a bundle of documents, C1, 35 pages.[2]The Respondent attended and was permitted to fully participate in the remedies hearing. They produced no evidence but made submissions.
Issues
[3]The sole issue for determination today is remedy. The Respondent was found liable fora. unfair dismissal under Section 98 of the Employment Rights Actb. unfair dismissal under Section 103A of the Employment Rights Act 1996; andc. harassment on ground of race under Section 26 of the Equality Act in a judgment made by me dated 13 April 2018.[4]At the beginning of the hearing the Respondent made an application to adjourn the matter pending the outcome of their appeal on liability. I declined to make an order to adjourn the hearing because the Respondent had recently made an identical application which had been considered by me and rejected, with reasons having been given to the Respondent in writing previously.
Findings of fact
[5]I made the following findings of fact on the balance of probabilities.[6]The Claimant was employed by the Respondent as a tandoori chef and has continuous service with the Respondent which began on 1 January 2014.[7]His employment terminated on 8 October 2017 when it was summarily terminated by the Respondent. The Claimant had raised an objection to Mr Mohammed Suleman, the father of the Managing Director of the Respondent to whom the Claimant reported on a day to day basis, to cooking meat which he considered was unfit for preparation. The Respondent is a family operated business. Mr Arselan Suleman is Managing Director, Mr Aamir Suleman is the Manager and Mr Mohammed Suleman is their father. Mr Mohammed Suleman was present at the workplace and acted as the Claimant’s line manager for all practical purposes and the Claimant ant was required to follow Mr M Suleman’s instructions at work. The Claimant had noticed that the chicken which he was asked to prepare had a strong odour and had a green tinge to its colour. Mr M Suleman dismissed the Claimant.[8]The Claimant was 51 years of age at the effective date of termination of employment and had three years of continuous employment.[9]During the conversation Mr M Suleman advised the Claimant, in a heated manner “If you’re not going to listen to me – get out… I’ve got powers, I’ll get you kicked out of the Country and if you go back home [meaning Pakistan] I’ll get you done there… I’ve got powers.” The Appellant became concerned and began recording the conversation. A certified translation of the conversation is contained in the bundle of documents at pages 25-27. Mr Suleman was shouting and swearing at the claimant. He made comments to the Claimant such as “I’ll vanish you from the world”, “get out of here, I’ll kick you out of here”, “he will be beaten”, and “he is worse than a dog”. The Claimant attempted to pick up his clothes to change out of his chef’s whites to leave but Mr Suleman prevented him and threw the Claimant’s clothes in the bin. The Claimant left the premises and went home in his chef’s whites.[10]The Claimant stated that since he left his employment he has not been sleeping or eating properly. He states he fears for his safety because Mr Mohammed Suleman and his family have been making threats through mutual acquaintances trying to make him drop his employment tribunal claim and attending his local mosque which they never used to do. The Claimant states that Mr M Suleman also owns a taxi business and has been regularly driving past the Claimant’s home. The Claimant states that he believes that the purpose of driving past his home is to intimidate him.[11]The Claimant states that he attended his GP’s surgery on 24 October 22017 to discuss his symptoms. He states he was diagnosed as having anxiety and prescribed Propranolol (10mg tablets 3 times a day), then Citalopram (10mg once a day). He states that he was advised to go to counselling and has attended two sessions at Middlesbrough and Stockton Mind. The Claimant’s bundle of documents contains a GP’s report from a Nurse Practitioner at The Erimus Practice in Middlesbrough dated 15 May 2018. This confirms the Claimant’s evidence concerning his diagnosis and treatment and states that medication was ceased 16 April 2018.[12]The Respondent has not challenged the Claimant’s evidence on any of the above matters.[13]The claimant’s earnings at the time of his dismissal were £9,360 gross, £9,213 net. This is £180 gross and £177 net per week. His employment was part time, 24 hours per week. Wage slips are contained in the bundle of documents at pages 20-22.[14]The Claimant was able to find temporary employment at Shurvori restaurant for 3 weeks from 11 December 2017. In this employment he earned £540 in total, and was paid cash in hand.[15]On 2 May 2018 the claimant secured employment at Adil’s Pizza in Middlesbrough. He has since left that employment to work for Saffron Indian Cuisine in Bishop Auckland. He has fully mitigated his losses since 2 May 2018. His earnings and hours of work are the same as those when working for the Respondent, statutory living wage for 24 hours per week. Wage slips for the Claimant’s new employment are at page 28 in the bundle of documents.[16]The Claimant stated that he has not received any benefits during his periods of unemployment.[17]The Claimant has put his case quite plainly and his evidence has not been challenged by the Respondent. The Appellant produces a transcript of his conversation with Mr M Suleman and has documentary evidence which is completely supportive of his evidence. There are matters which are not independently supported by evidence, such as the intimidation the Claimant claims to have suffered. Considering the Claimant’s evidence in the round and in the absence of any challenge to the Claimant’s evidence, I concluded that the Claimant is a credible witness and that his account of his dismissal and the circumstances which followed his dismissal are, on the balance of probabilities, true. Submissions[18]The Appellant submitted a schedule of loss, pages 30-34 in which a total claim for compensation is made in the sum of £16,622.78 plus interest to be determined.[19]The Respondent submitted that their company is not profitable and if they were found liable to pay that amount of money they would just liquidate the company.
The Law
[20]The Employment Rights Act 1996 sets out remedies for unfair dismissal. It states: 118 General(1) Where a tribunal makes an award of compensation for unfair dismissal under section 112(4) or 117(3)(a) the award shall consist of— (a) a basic award (calculated in accordance with sections 119 to 122 and 126), and (b) a compensatory award (calculated in accordance with sections 123, 124, [124A and 126]). 119 Basic award (1) Subject to the provisions of this section, sections 120 to 122 and section 126, the amount of the basic award shall be calculated by— (a) determining the period, ending with the effective date of termination, during which the employee has been continuously employed, (b) reckoning backwards from the end of that period the number of years of employment falling within that period, and (c) allowing the appropriate amount for each of those years of employment.(2) In subsection (1)(c) “the appropriate amount” means— (a) one and a half weeks’ pay for a year of employment in which the employee was not below the age of forty-one, (b) one week’s pay for a year of employment (not within paragraph (a)) in which he was not below the age of twenty- two, and (c) half a week’s pay for a year of employment not within paragraph (a) or (b). 123 Compensatory award ...the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.[21]The Equality Act 2010 sets out remedies for unlawful discrimination and provides: 124 Remedies: general(1) This section applies if an employment tribunal finds that there has been a contravention of a provision referred to in section 120(1).(2) The tribunal may— … (b) order the respondent to pay compensation to the complainant; … (6) The amount of compensation which may be awarded under subsection (2)(b) corresponds to the amount which could be awarded by [the county court] or the sheriff under section 119.[22]In Prison Service and ors v Johnson 1997 ICR 275, EAT the EAT summarised the general principles that underlie awards for injury to feelings:a. awards for injury to feelings are designed to compensate the injured party fully but not to punish the guilty partyb. an award should not be inflated by feelings of indignation at the guilty party’s conductc. awards should not be so low as to diminish respect for the policy of the discrimination legislation. On the other hand, awards should not be so excessive that they might be regarded as untaxed richesd. awards should be broadly similar to the range of awards in personal injury casese. tribunals should bear in mind the value in everyday life of the sum they are contemplating, andf. tribunals should bear in mind the need for public respect for the level of the awards made.[23]In Vento v Chief Constable of West Yorkshire Police (No.2) 2003 ICR 318, CA, Lord Justice Mummery described some of the elements that can be compensated under the head of injury to feelings as ‘subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, depression’.[24]Lord Justice Mummery’s gave helpful guidance upon the level of damages for injury to feelings developing three bands of compensation:a. a top band of between £15,000-25,000: to be applied only in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment. Only in very exceptional cases should an award of compensation for injury to feelings exceed £25,000b. a middle band of between £5,000-15,000: for serious cases that do not merit an award in the highest band, andc. a lower band of between £500-5,000: appropriate for less serious cases, such as where the act of discrimination is an isolated or oneoff occurrence. The Court said that, in general, awards of less than £500 should be avoided, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.[25]In case law since Vento there have been increases to the amount of damages which were given in the guidance, cumulating in 2018 in the case of De Souza v Vinci Construction (UK) Ltd 2018 ICR 433, CA. The impact of the development of the case law is that the guideline amounts are now:a. top band £19,800–33,000b. middle band £6,600–19,800, andc. lower band £660–6,600.[26]This case preceded the application of Presidential Guidance in which the levels were further uprated.[27]In HM Prison Service v Salmon 2001 IRLR 425, the EAT gave guidance on award of injury to feelings and the need to ensure that through an additional award for personal injuries there is no double recovery. It stated that although the two awards are distinct in principle, they are not easily separable in practice because it is not always possible to identify when the distress and humiliation suffered as a result of unlawful discrimination becomes a recognised psychiatric illness. The concept of ‘injury to feelings’ is wide enough to cover anything from minor upset caused by one-off incidents at the lower end of the scale to serious and prolonged feelings of humiliation and depression at the upper end. The EAT saw nothing wrong in practice with tribunals treating the personal injury as having been compensated for under the heading of injury to feelings, as long as the tribunal identifies those aspects of the victim’s medical condition that the injury to feelings award is also intended to cover.[28]Regulation 6(1)(a) of the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 SI 1996/2803 states that for injury to feelings awards the award of interest starts on the date of the act of discrimination complained of and ends on the day on which the employment tribunal calculates the amount of interest which is the ‘day of calculation’.[29]For all other awards, interest is awarded for the period beginning on the ‘mid-point date’ and ending on the day of calculation under Regulation 6(1)(b). The ‘mid-point date’ is the date halfway through the period beginning on the date of the act of unlawful discrimination and ending on the day of calculation under Regulation 4(2). No award of interest can be made in relation to losses which will arise after the day of calculation under Regulation 5.[30]Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 provides that (2) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that—(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,(b) the employer has failed to comply with that Code in relation to that matter, and(c) that failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%.[31]The ACAS Code of Practice on Disciplinary and Grievance matters is a relevant Code of Practice and this contains provisions for informing employees of the problem before they attend a meeting to discuss poor performance, allowing employees to be accompanied at and formal disciplinary or grievance meeting, and allowing an employee to appeal again Conclusions and findings on remedy[32]The Claimant has in this claim presented a straightforward claim for a basic award, losses from the date of dismissal 8 October 2017 to 2 May 2018 when he mitigated his losses plus an award for loss of statutory rights. He adds to this an award for failure to follow the ACAS Code of Practice on Disciplinary and Grievance matters under Section 207A of the 1992 Act.[33]The Respondent did not comply with the ACAS Code, the Claimant was not invited to a meeting, offered representation or given a right to appeal. The Respondent’s failure was unreasonable. In all the circumstances of the dismissal, I conclude that an uplift of 20% is just and equitable.[34]The Claimant did not, on the evidence presented to me, raise a grievance concerning discrimination.[35]The Claimant has included in his schedule of loss a claim for damages for breach of contract, notice pay, however no such claim has been instituted nor has any application to amend the claim been made. Judgment on liability for breach of contract has not been entered.[36]The calculation of compensation for unfair dismissal includes all of the Claimant’s financial losses and it would not be appropriate to make a second award in relation to the finding of unlawful harassment. The dismissal was in any event not alleged to be discriminatory, the reach of the Claimant’s discrimination claim concerns only comments made by Mr M Suleman during the dismissal discussion about the aftermath where he made comments concerning the Claimant’s right to live in the UK which are routed in the Appellant’s national origin and race. Compensation for unlawful racial harassment has therefore been limited to injury to feelings. The Claimant has claimed the sum of £6,000 which I consider to be appropriate total award for the stress and depression suffered following the comments. This is at the upper end of the lower band under Vento principles. The comments were a one-off event and the Claimant’s injured feelings would not, I find, have been the entire cause of the Claimant’s illness. There were other threats and the Claimant has raised that he has been intimidated after his dismissal. However the Claimant has not asserted that the other comments were racial discrimination or that the intimidation was racial discrimination. The award is in the lower band reflecting the isolated nature of the threat albeit a serious one at the time it was made and one I acknowledge will have contributed to the Claimant’s illness.[37]The Claimant’s schedule of loss includes a separate claim for aggravated damages however the additional award of £1,000 which has been submitted to be payable as a result of the manner of behavior and failing to take the matter seriously and investigating his claim. However the Claimant has not submitted independent evidence of additional stress and depression caused by the manner in which his claim was handled by the Respondent and an award of aggravated damages is nonetheless the part of the overall claim for injury to feelings. I acknowledge that the Respondent, through Mr M Suleman, acted in a high handed manner in threatening the Claimant but the threat is the totality of his claim of racial harassment. In all the circumstances I consider that it is not appropriate on the facts of this case to make a separate, additional, award for aggravated damages.[38]I do not consider that a separate award for personal injuries is necessary in this case because the Claimant’s illness is at its height depression which he appears to have largely recovered from. I have no evidence of continuing illness or any longer term prognosis before me in evidence. Injury and consequential illness in the form of depression is what the award for injured feelings above covers and I do not consider it appropriate to make an additional award for personal injuries. I calculate remedy in this case as follows:
The Law
[1]Basic Award Sub total Total 4.5 weeks X £180 per week £810£810[2]Compensatory Award for Unfair Dismissal Losses from 8.10.17 to 2.5.2018 £5133 29 weeks X £177 Less income from temporary (£540) employment £540 Loss of statutory rights £300£4,893 S207A uplift £978.60£4,893 X 20%[4]Compensation for unlawful £6,000£6,000 harassment[5]Interest on the award of £444£444 compensation for unlawful harassment 338 days / 365 days X 8% X £6,000 GRAND TOTAL £13,125.60