Mr S Kahsay and others v Greggs plc: 2501544/2021 and others

EMPLOYMENT TRIBUNALS

Case No 2501544/2021, 2501567/2021, 2501557/2021

Between

Mr S Kahsay and othersClaimant

Greggs plcRespondent

Before

Employment Judge AEPitt

In person for claimant

Date 15 February 2024

JUDGMENT

[1]The claimants’ claims for Unfair Dismissal are well founded and succeed

[2]Claimant 1 claim for Harassment related to race is well founded and succeeds.

[3]The claimants’ claims for Direct Race Discrimination is not made out and is dismissed.

[4]Claimants 1 and 3 claims for Victimisation because of race is not made out and is dismissed. JUDGMENT having been sent to the parties on 6th February 2023 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]This is a claim by three former employees of the respondent. They were all employed as Production Operatives in the Hygiene Department. The claimants make claims for race discrimination and unfair dismissal. The respondent is a retail bakery operating throughout the UK.

[2]The Tribunal had before it a bundle of documents which included various policy documents; documents relating to disciplinary hearings in relation to other employees; screenshots taken from videos.

[3]The claimants are all from Eritrea and although have some English they were assisted by interpreters throughout the hearing.

[4]The tribunal read witness statement heard from the following witnesses: Simon Long, Head of manufacturing; Craig Dixon Production Manager; John Murphy, Site Manufacturing Manager; Keith Carreer, Site Services Team Leader; in addition, all the claimants had prepared short witness statements. They all gave evidence and confirmed that the additional information they had provided to the Tribunal, in the bundle for: Claimant 1 at pages 51-53, 57-60, 61-64, 71-75; for claimant 2 at pages 112-113, 127- 128; for claimant 3, at pages 176,180-183.

[5]The claimants had in addition produced witness statements from a number of others who were or had been employed by the respondent at the Balliol site. The claimants wished to have the witness statements of these people admitted as evidence, the respondents objected. Having heard submissions from both parties and reviewed the witness statements the tribunal concluded that because of the generic nature of the contents of the statements and specifically the lack of detail in relation to the issues before it this application was refused. Save for one statement by Mr Emmanuel Miller, usually known as Koffi who was present at some of the events which were under in dispute.

[6]The following persons are referred to in the reasons Tony Jones, Team Leader Balliol 1; Keith Carreer, Team Leader Balliol 2; Joanne Howe, Site Service Supervisor; Craig Dixon, Production Manager, Investigation Manager; John Murphy, Disciplinary Manager and Dismissing Officer; Stuart Nicholson Supply Chain Operators Manager, Appeal 1; Simon Long, Head of Manufacturing, Appeal 2; Pauline Blacklin People Supply Assistant; Emma Bass, Site Services Manager Andrea walker; Clare Stewart, People Manager People Manager; Edwina Lugg Occupational Health Advisor.

Facts

[7]In reaching our conclusions on the facts, the Tribunal took account of the witness statements referred to above, the evidence of each witness and the documents to which we were referred. We have applied the balance of probabilities test where necessary to determine any disputed facts.

[8]The respondent is a specialist retail bakery with outlets across the UK. The claimants worked at its manufacturing plant in Balliol as Production Operatives in the hygiene department. The claimants are all from Eritrea. They all have some English, but their first language is Tigrinya. Their role was to clean the manufacturing plant when it was not operational, usually at the weekend.

[9]In order to do this, they are required to wear PPE which includes boots, overalls, hat. This clothing must be put on before entering the production area and removed whenever an employee leaves the production area. Locker rooms are available to store personal items. An employee is not allowed to take anything into the manufacturing area. Social distancing was being practiced at this time. The respondent had in place a one-way system for entry and exit to the premises. In addition, the locker room had been split and lockers moved to ensure social distancing was maintained.

[10]The respondent operates an electronic system for employees to use to record the hours worked. Each employee is given an electronic card which they must use to clock their arrival at work each day. Employees must clock out if going on a break and at the end of each day.

[11]In order to use the lavatory and employee must leave the production area disrobe, use the facility, return to the locker room and put on their PPE before returning to the production floor. The respondent does not have any policy in relation to the use of the lavatory whilst at work, that is to say there is no time limit, nor are the employees limited as to the number of times they may use the facilities during the day. They are not required to clock in and out when using the lavatory. In the evidence we heard the respondent accepted that it could take an employee some time for such a break. In one case, the respondent accepted that it took take up to 20 minutes for this process. Employees are not required to clock off before using the facilities.

[12]The respondent has a comprehensive employee handbook which indicates that gross misconduct may include, leaving your place of work without permission; not clocking off when required and leaving your place of work; falsification of records including attendance records. It should be noted here, that where the claimants are accused of falsifying their working hours, which was part of the stated reason for their dismissal, the respondent’s case is not that they had physically adjusted any computers or electronic system, rather that by leaving the production area for an extended period, which was not for a legitimate purpose the claimants had in effect falsified their working hours.

[13]The Disciplinary Policy as a first step for an initial or minor breach would normally be dealt with informally through Counselling. If this occurs a Counselling Form should be completed to record the discussions. requires an investigation before any disciplinary action can be taken (237). This might include discussions, interviews with the individual or witnesses to the incident.

[14]During an investigation the individual being questioned has a right to be accompanied. If an employee is dismissed, they have a right to two appeals. The first is full hearing the second is dealt with on paper.

[15]In April 2019 claimants 1 and 3 along with other employees brought a collective grievance in relation to race discrimination. This is the protected act upon which claimant 1 relies. The respondent accepts that is a protected act for the purposes of this claim.

[16]Although in the pleadings there is reference to ongoing victimisation and harassment, claimant 1 does not pursue those as claims and says these are referred to as background only.

[17]The Balliol site is in fact two separate buildings. At the time of these events, June 2021, although cameras had been installed outside the buildings the necessary software had not been activated so in effect these were ‘dummy’ cameras. There was a substantial delay in the activation of the cameras because of the Covid pandemic. The claimants did raise the question of these cameras at their hearings but were not informed of this position. They were simply told that the respondent was not suggesting that the claimants had gone out to their car.

[18]On 9th September 2019 claimant 1 was suspended for using aggressive behaviour. A disciplinary procedure was followed in relation to two separate dates. As a result, claimant 1 was issued with a Written Warning by Michael Robson. The warning was valid for 6 months.

[19]Claimant 1 was also subjected to disciplinary action for failure to follow the procedure for washing hands. The investigation was carried out by Craig Dixon. On 2nd June 202 claimant 1 was issued with a Final Written Warning for this misconduct. Claimant 1 appealed this decision. The appeal was dismissed. Following this claimant 1 raised an issue concerning Craig Dixon’s investigation with Claire Stewart, of the People Department, who agreed that Mr Dixon would not be involved in any other matter investigating claimant 1. Claimant 1 raised this prior to the investigation in this case, this was confirmed by Ms Blacklin at the commencement of his investigation meeting however she stated that Mr Dixon was still able to conduct the investigation because he was independent of his last investigation and he is not the disciplining manager.

[20]On 12th February 2021 claimant 1 was issued with a warning for unsatisfactory attendance. At this meeting claimant 1 specifically raised the issue of victimisation and that he was stressed as a result.

[21]On 18th April 2021 claimants 2 and 3 were discovered in the locker area using their phones. According to the electronic system the two were ‘clocked in” and therefore should have been on the production floor working. They were discovered by Keith Carreer who told them to go back to work. It does not appear they were confronted about their behaviour.

[22]Around this time and because of the behaviour of claimants 2 and 3, Joanne Howe convened a ‘huddle’, briefing on the shop floor. There was some confusion as to the date of the ‘huddle’ from the respondents witnesses but the Tribunal concluded having viewed an email of 19th April 2021 that it was 18th April 2021. Mr Dixon appeared to believe at the time of the investigation that the ‘huddle’ was 4 or 5 weeks ago but later he states it was only 2 weeks previous to the 5th of June. In the email Ms Howe states that she told the employees that the behaviour was unacceptable, and it will treated as gross misconduct and cameras will be checked. Claimant 1 was not present for this briefing as he was absent from work. Despite the wording of the email the Tribunal is not satisfied that she said gross misconduct, but words to the effect that disciplinary action would be taken.

[23]No disciplinary action was taken against claimant 2 or 3. This was as a result of an email Ms Stewart from People Services stating: ‘How sure are you that these are the only two people in the team that have been having extra breaks in the changing room? I would be very concerned about the consistency of this, and action taken. The ones we have formally investigated and actioned have been very clear whereby someone is having been having extra cigarette breaks.’

[24]All three claimants appear to be friends, they regularly take breaks together. They are entitled to 90 minutes for breaks across a shift on Saturday and Sunday. It is alleged by the respondent that claimant 1 took two breaks on 5th June 2021 totaling 85 minutes; authorised breaks between 11:36 - 1152 and 13:37 – 14:46. He was also absent between 17:27 – 17:38 from the production floor although he was clocked in.

[25]On the same day Employee F, one of the comparators, left the production floor at 16:52 returned at 17:12 for a toilet break.

[26]On 6th June 2021 all three claimants had a break between 11:17 and 12:03 . They left the site together and went to nearby Greggs outlet for some food and returned together. Having dressed in their PPE they all clock on and are seen on CCTV to leave the Production floor. Claimant 1 returns at 12:35, Claimant 2 at 12:36, claimant 3 at 12:39. Later in the day all three took a further break when they clocked out.

[27]Whilst they were absent, following their break, Ms Howe looked for them to carry out a specific task in the de-tinning room. When she was unable to locate them, she enlisted Tony Jones to assist in searching for them. The Tribunal concluded that it is unlikely Tony Jones properly checked the toilets as this would require him to remove his own PPE, and therefore it is more likely he made at most a cursory check from the door. Despite Ms Howes evidence that Mr Jones had told her that he walked through the tribunal does not accept that. They both searched around the locker rooms. We have the screenshot of the video showing the time the claimants clocked in and then arrived back in the production area. It is clear that Ms Howe was waiting for all three to return, she did not confront them but made a note of the times and commenced an investigation. This involved her emailing People Services requesting the CCTV footage be checked.

[28]The claimants had a further authorised break and being unbale to find Ms Howe, they told Mr Miller they were leaving the site. Whilst compiling a report a fire alarm sounded and the premises had to be evacuated, there was a conversation between Ms Howe and the claimants.

[29]As a result of the claimants working pattern they were not informed that they may be subject to disciplinary action until 11th June 2021, the letter of invite to an investigation meeting simply set out that they had taken unscheduled breaks, and falsified their time and attendance and that they had left their place of work without permission. It was clear to the Tribunal that the claimants did not understand the nature of the second allegation concerning falsification of records.

[30]Ms Howe sent two emails which are relevant. On June 12th she emailed Emma Bass. In the first email she set out the events of June 6th indicating that Mr Jones had checked ‘the clock’ to see if they claimants were on supposed to be on the Production Floor, why this was necessary is unclear. After this the two went to check the production floor to assign a task in the de-tinning room. Not finding them, further checks were carried out to see if they were in the locker rooms and or other areas inside the building. Being unable to find them. She then waited for them to come back and assigned the task. She did not confront them about where they had been. In the second email Ms Howe stated it was her belief that the claimants had gone out and sat in the car, but she had no proof of this. The email was ‘just in case they say they were all at the toilet as Aman, (Comparator F) had been querying how long they get for toilet breaks.

[31]On 19th June 2021 at 7am an Investigation meeting was held with claimant 1, Mr Miller was present as a supporter. Mr Dixon was the investigating manager and Miss Blacklin from People Services was also present. During the meeting the claimant asked what an unauthorised break was. Mr Dixon refers to a statement he has in relation to a briefing given about unauthorised breaks. It was put to the claimant that the T& A system indicated that the claimant had taken 85 minutes in breaks and the CCTV showed he had had another 11 minutes break. At this time the claimant is not shown the footage or screenshot nor is he given any further detail about when it is alleged he took the unauthorised break.

[32]Mr Dixon moves onto discuss 6th June. He does give the timings on this occasion. The claimant indicates he wants the CCTV checked and an investigation into whether the T&A has been changed. He is shown CCTV footage of him returning to the floor. The claimant indicates he clocked on and then went to the toilet. Following this it is implied to the claimant that it is unusual for someone to go for a break, clock back in and then go for a toilet break. The claimant raises the issue of having bowel syndrome. Mr Dixon moves on to the allegation of leaving site without permission, The claimant raises the issue of different treatment for people from different backgrounds. Having confirmed it was race that was the difference, Mr Dixon indicates that if is the case this will need to be investigated.

[33]At 9am there was an Investigation meeting with claimant 3. The same people were present. The claimant accepted he had been at the briefing with Ms Howe. In relation to the allegation of being away from the floor for 33 minutes, he said he had gone to the toilet, he added that he may have been constipated. He was shown the footage of him returning to the T &A machine. Mr Dixon then moves on to the allegation of leaving the site. The claimant tells Mr Dixon they had informed Koffi.

[34]Claimant 2 was interviewed the same day at 10am. Mr Miller did not accompany this claimant to this investigation meeting. The respondent asserted that this was because Mr Miller did not want to represent any more colleagues that day. Having heard from Mr Miller and Mr Murphy, Mr Dixon and Mr Carreer, the Tribunal rejected this assertion. We are satisfied that Mr Miller had indicated to all three claimants, at the commencement of the shift, he would be present for the investigatory meetings. Following Claimant 3’s meeting which ended at 9:48 am, Mr Miller left the office and returned to the production floor. He was not called to attend a further meeting. Although the claimant did not object to Mr Newton who was asked to represent him the tribunal is concerned that the respondent denied the claimant his person of choice who was available. There was clear evidence that later claimant 2 confronted Mr Miller on the production floor and he, the claimant, was very upset.

[35]Also interviewed that day at 11:15 am was Comparator F. Mr Edwards was present for his interview. The allegation of an unauthorised break was put to him and he said he had been constipated that day. The time it took was also because of having take off and put on his PPE. At the end of the notes there is a comment that he will be sent a disciplinary invite. In evidence Mr Dixon told us this was an error. The Tribunal do not accept that Mr Dixon made the decision not to go to discipline straightaway, rather he made the decision later. Mr Dixon made further enquiry as to whether this employee could work on the production floor whilst constipated.

[36]Jumping to September, as a result of the claimants’ comments to Simon Long, about others not being dismissed. Mr Dixon was asked for his rationale for not taking Comparator F to discipline. Mr Dixon replied that Fs absence was not an extension of a break period, and he believed it was a genuine need to use the facilities. The absence was not excessive considering he had to get disrobed in the changing room on the opposite side of the corridor; his absence was an isolated incident and did not appear to be a trend.

[37]Mr Dixon had informed all three claimants he would consider the interviews and let them know when the investigation was concluded.

[38]On 27th June Mr Dixon emailed Ms Howe at 6:44am. It appears he was aware prior to this that the claimants were unhappy about how he was managing the investigation. He asked Ms Howe to speak to all the claimants regarding their allegations of race discrimination as he had heard nothing further from them. She was told to speak to them 1-2-1 and ask if they wanted to report the matter formally. She was specifically told not to take statements or get into conversation but to tell the guys they can report through her.

[39]Ms Howe did speak to the claimants, and Comparator F on 27th June 2021; the claimants indicated they wished to proceed, Comparator F did not. They were all concerned that they had not heard about the disciplinary.

[40]It is clear that there were some communications between Mr Dixon and Ms Howe following the initial email. At 9:35am Ms Howe emailed Mr Dixon to inform him that there was an issue with all 3 claimants regarding the disciplinary. She told him they were not happy with the way in which he was managing the investigation and their allegations of racial abuse ‘they have all agreed to go ahead with the allegation [of race discrimination]’

[41]As a result of that email Mr Dixon, who was not on shift, went to the site. The tribunal is satisfied that for Mr Dixon to do that he was probably at least frustrated by the comments and most likely angry for having to lose his free time to deal with it.

[42]Having arrived at the site he bumped into Mr Carreer in the corridor making tea in the kitchen, he asked him to accompany him. The Tribunal does not accept that he spoke to the claimants first and they requested Mr Carreer be present.

[43]Having seen the demeanor of Mr Dixon in the witness box, the inconsistencies noted above, and despite the evidence of Mr Carreer, we do not accept Mr Dixons account of the meeting that followed. Having decided to come onto the site on his day to resolve an issue which involved him personally we do not accept that he was as calm as he tried to portray before us. The Tribunal concluded that he was extremely unhappy and upon entering the office he threw his face mask on the desk and spoke to the claimants in an aggressive and intimidating manner pointing his finger saying, ‘if you take this further you will be in big trouble’.

[44]The following day Mr Dixon sent an email outlining his account of the previous day’s meeting to Mr Carreer copying in Ms Blacklin, a Mr Walker and Mr Murphy and asked Mr Career to confirm the contents were accurate. The tribunal query why Mr Dixon felt the need for that to happen if there was nothing untoward in the meeting. Also, a more appropriate way to do this would be to ask Mr Career for his own account. The tribunal accordingly doubted the events as recounted by Dixon and Career.

[45]The investigation into the Falsification of T&A consisted of Mr Dixon looking at the relevant part CCTV footage, considering the emails of Ms Howe on 6th June,. He did not speak to Mr Jones, nor did he commence an investigation into allegations of race discrimination. Specifically, he did not ask Ms Howe to take formal statements from the claimants about this but that they could report any issues to her formally.

[46]All three claimants were invited to separate disciplinary hearings on 3rd July by letter 29th June 2021. Claimant 2’s hearing was rescheduled and heard on 6th July 2021. Present at the hearings were Mr Murphy, the Disciplinary Hearing Manager, Ms Blacklin from People Services; Chris Edwards was a companion for claimant 1; Mr Gebrekristos was a companion/translator for claimant 3. Mr Emias was a translator for claimant 2, he also had a representative from Unite present the conclusion of each hearing Mr Murphy adjourned and then announced his decision. They were all given a right of appeal.

[47]At his disciplinary Claimant 1 raised the fact that he has ‘bowel syndrome’ and this could be confirmed by his GP. Mr Murphy indicated that that evidence should have been produced. In addition, he said he has been suffering from stress for the past two years. Mr Murphy, clearly, did not believe the claimant stating, ‘I don’t believe you, there were three of you that all did the same thing at the same time and people have said you weren’t there.’

[48]Claimant 3 told the hearing he did not know where he was for the time he was absent from the production floor. The claimant was also questioned about the previous incident where he had been found in the locker room with claimant 3.

[49]Claimant 2 was asked about the three allegations. In relation to the unauthorised absence, he said there was a misinterpretation of the word ‘pee’ and it should have been ‘poo’ which is why he was absent for 33 minutes. The question of a translator was raised formally by Mr Cuggy. Mr Murphy stated ‘why I have doubts is that you and your two colleagues, who go on break together, all had your break together, came back together and went off the floor together for the same length of time. Mr Cuggy also raised the fact that he hadn’t seen the witness statement which Mr Murphy was referring to, i.e. the disciplinary notes of the other claimants. Mr Murphy said he is not using their statements and later on ‘ I have three disciplinaries all saying the same thing for the same time’.

[50]The decision to dismiss was confirmed by letter to the claimants, Claimant 1 on 6th July. It was lacking in detail simply confirming that the decision was to summarily dismiss gross misconduct for taking unscheduled breaks and falsifying time and attendance records. Claimant 2’s letter was dated 8th July and was very similar in that it confirmed the summary dismissal for gross misconduct for taking unscheduled breaks. The Tribunal notes that throughout the investigation hearings and appeal, the respondent repeatedly uses breaks in the plural when claimants 2 and 3 were only ever alleged to have taken one unscheduled break. The letter to claimant 3 dated 7th July 2021, which again is in similar terms confirming the summary dismissal for taking unscheduled breaks and falsifying your own time and attendance records.

[51]All three claimants appealed. Claimant 1 set out 12 grounds which included: Craig Dixon being involved when he had been assured, he would not be; issues surrounding the actual allegation; ‘The big issues I want to discuss with you is treatment and different treatment and different judgment between different background people. He had bowel syndrome.

[52]Claimant 2 on 26th July set out nine issues. This included victimisation and discrimination because of the colour of his skin; being bullied, targeted and treated differently. He also raised the issue of being sat in the car.

[53]Claimant 3 on 19th July 2021. He also raises the issue of race and that it is a conspiracy against him. He also raised that his case had been dealt with collectively and not individually.

[54]Each claimant was offered a separate hearing. All Appeals were heard by Mr S Nicholson.

[55]Claimant 1 was heard on 16th August 2221. At this hearing the claimant gave Mr Nicholson a letter from his GP which indicated that the claimant had been diagnosed with IBS in 2014. In the past he has been diagnosed with PTSD. It indicated that the claimant had recent a history of stress exacerbating the condition requiring the claimant to need use a lavatory for extended periods. The claimant raised race as an issue.

[56]Mr Nicholson discussed the grounds of appeal but found no merit in them and dismissed the appeal.

[57]In an outcome letter dated 20th August 2021 he set out his reasons for his decision. In relation to Mr Dixons appointment he noted that no issue had been raised by the claimant about this. In relation to being sat in the car, the response was there was no conclusive evidence he was sitting in the car. With regard to race, Mr Nicholson stated he ‘was comfortable that they have been dealt with consistently and fairly’. In relation to the GP letter, Mr Nicholson dismissed it stating, ‘It is my belief this is not a doctor’s diagnosis it is a summary of what you have told him I the past.’

[58]The second claimants hearing was on 17th August 2021, he was represented by Nr Usher from Unite. His outcome letter is dated 20th August 2021, Mr Nicholson stated he believed a fair and through investigation had been carried out. In relation to discrimination he said, ‘I am comfortable that they [the incident] have been dealt with consistently and fairly and the correct sanction were delivered based on the factual information. He accepted there was no conclusive evidence as to where the claimant was during the 32 minutes.

[59]Claimant 3 was invited to an appeal hearing on 19th August 2021

[60]All three claimants raised a second appeal. At the hearing the points of appeal were discussed. The claimant raised inaccuracies with the notes, which he had raised with Ms Blacklin but had not been forwarded to Mr Nicholson. The claimant specifically raises that john Murphy’s’ attitude towards black people is not positive’. The decision to dismiss was upheld.

[61]In an outcome letter sent on 23rd August 2021 having set out the grounds of appeal Nr Nicholson summarised his findings, unlike the previous claimants as follows,’ It is my belief that a full and through investigation has been undertaken into your appeal. After careful consideration of the available video and the discussion points you have raised during our meeting, I confirm that my decision is to uphold the decision to summary dismiss you.’

[62]All three claimants elected to go to a second level appeal. These were all dealt with by Mr Long. The respondent policy is that this stage appeal is a paper hearing. The Comparators

[63]The claimants rely on the following comparators: 63.1. Employee A : this was a white male Team Leader who was issued with a Final Written Warning for falsifying his T&A,. The facts which were accepted by the disciplining manager Mr Murphy were; there were a number of issues in production including some meat going out of date; corned beef was delayed. He was panicking. He went outside to speak to Mr Dixon using his mobile phone as there was no one on site to ask. He went to the ‘smoking shelter’ had a cigarette and text Mr Dixon. He accepted he should have clocked off but because of his panic he forgot, it was an honest mistake. 63.2. Employee B, a white male who was alleged to have falsified his T&A on two occasions. He was issued with a Final Written Warning. The facts as accepted by the disciplining Manager Mr Murphy’s were he had taken two unauthorised breaks which Mr Murphy believed were cigarette breaks, B accepted he was wrong to do so. It was accepted that he was suffering from anxiety and there was lots of stuff going outside of work for B. He had 10 years unblemished with fantastic work ethic. In addition to the Final Written Warning he agreed to speak to the Occupational Health Advisor for support and to contact UNUM to see if there was any counselling support available. service, (pg 501). 63.3. Employee C a white male who was issued with a Final Written Warning because he was unable to carry out his normal duties due to being under the influence of alcohol. The disciplinary manager was Mr Murphy. Again, the facts accepted by the respondent were that C had accepted he was in the wrong; C had taken pain medication on top of alcohol. C had since received support from his GP. In addition to the Final Written Warning C was given an action plan to aid him in his recovery and his return to work. If he did not do so he may have his employment terminated. It was accepted by C that he this had happened Alcohol, sleeping on shift. 63.4. Employee D a white male, who was dismissed for taking unauthorised breaks, 19th,20th,21st August, smoking breaks, He was Dismissed Oct 2020, by Mr Murphy. 63.5. Employee E Didn’t swipe when went for a drink of water to take medication, 25/2/20. 63.6. Employee F, is referred to above Amam Haille 63.7. The final two comparators were white female, who are sisters. They were not disciplined. At the time of the claimants’ disciplinary they were being investigated. The facts as found by the respondent were they were tasked with cleaning the smoking shelter and they took advantage of the fact and had cigarettes whilst there.

The Issues

[64]The issues were identified by employment Judge Morris at a case management hearing on 26 May 2022. Time limits 64.1. were the discrimination and victimisation complaints made within the primary time-limit in section 123 Equality Act 2010? The tribunal will decide in respect of each of the three claims:64.1.1 was the claim of the particular claimant made to the tribunal within three months (plus any early conciliation extension) of the act to which the complaint relates?

64.1.2 If not if not was their conduct extending over a period?

64.1.3 If not was the claim made within a further period that the tribunal thinks is just and equitable?

64.1.4 The tribunal will decide. why were the complaints not made the tribunal time?

64.1.5 In any event is it just and equitable in all the circumstances to extend time?

[65]It is agreed that each of the three claimants was dismissed. 65.1. what was the reason all the principal reason their respective dismissal? The respondents say the reason was conduct specifically as follows: 65.1.1. taking unscheduled breaks on Saturday, 5 June 2021 and Sunday, 6 June 2021. 65.1.2. falsification of their own T&A on Saturday, 5 June 2021 and Sunday, 6 June 2021; 65.1.3. leaving their place of work without permission on Sunday, 6 June 2021. 65.2Did the respondent genuinely believe that the claimant had committed misconduct? 65.3If the reason was misconduct, did the respondent at reasonably in all the circumstances (including its size and administrative resources) in treating that as a sufficient reason to dismiss the claimant? The tribunal will usually decide, in particular, whether65.3.1 where were reasonable grounds for that belief

65.3.2 at the time the belief was formed the respondent had carried out a reasonable investigation;

65.3.3 the respondent otherwise acted in a procedurally fair manner;

65.3.4 dismissal was within the range of reasonable responses. Direct Race Discrimination (Equality Act 2010 Sections 13 And 39)

[66]Each of the claimants relies upon his dismissal (on, respectively, 3 July 2021 6 July 2021 and 3 July 2021) as the less favourable treatment. 66.1. In this connection, Mr Kahsay confirmed that contrary to the intimation paragraph 3.2 of the orders arising from the preliminary hearing held on 31 January 2022 he was not additionally relying upon less favourable treatment by way of the warning given to him in for every 2020 is that issue related to a complaint of race discrimination (case number 2502311/2020), which he acknowledged had been struck out in a judgement of the employment tribunal dated 30 April 2021. 66.2. The tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and those of the particular claimant. Each of the claimant says he was treated worse in the following employees of the respondent: Mr Trevor Soons Mr Steven Curran and Mr Michael (last name unknown who was said to work in blue shift production hygiene Ms Gillian Robinson Ms Diane Thompson 66.3. In respect of the above, the claimants allege that Mr Soons and Mr Curran went smoking many times but were only given warnings; Michael Strunk work was only given a warning; Ms Robinson and Ms Thompson regularly went for a smoke, but no action was taken against them. 66.4. If any of the claimants was treated less favourably, was that because of race or can the respondent show a nondiscriminatory reason for the treatment. Harassment Related To Race (Equality Act 2010 Section 26) Mr Kahsay only

[67]Did the respondent do the following things:67.1 On or around 27 June 2021 (Mr Kahsay had initially thought it was 19 June 2021), having been called to a meeting with Mr Craig Dixon and at that meeting Mr Kahsay having said that he (Mr Dixon) was treating black people and white people differently), Mr Dixon responded by pointing his finger and shouting words to the effect, “are you going to take this case to an upper level?”. When Mr Kahsay had replied that they were Mr Dixon said words to the effect, “if you take this case to the upper level, you being trouble yourself.” When saying the above Mr Dixon removed his Covid facemask and threw it on a table. The other two claimants were present time.

67.2 Mr Kahsay explained that the context for this was that in 2021 he and others were not given a copy of an investigation report and they put in a grievance in June 2021.

67.3 If so is that unwanted conduct?

67.4 Did it relate to race?

67.5 Did the conduct out the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. Victimisation (Equality Act 2010 Section 27) Mr Kahsay and Mr Araya only

[68]Did either of these complaints do protected act as follows:-68.1 Along with others, bring a collective grievance relating to pay in or around November 2019?

68.2 The respondent accept that it dismissed Mr Kahsay and Mr Araya on 3 July 2021 and that such dismissals are capable of amounting to a detriment.

68.3 Were either of these claimants dismissed because they had done the above protected act

68.4 In this connection Mr Kahsay confirmed that contrary to the intimation paragraph 5.2 of the orders arising from the preliminary hearing held on 31 January 2022 he was not additionally relying upon detriment in the form of the warning given to him every 2020 is that issue related to a complaint race discrimination which he acknowledged been struck out in a judgement of the employment tribunal dated 30 April 2021.

68.5 although Mr Kahsay maintained that the above collective grievance constituted the protected act he confirmed that he was not relying upon the subject matter that collective grievance as a discrete claim, as such, as that had been the subject of previous claim in the tribunal, which had been resolved under the auspices of ACAS in December 2019.

The LAW

[69]Section 98 Employment Rights Act 1996 sets out the law in relation to unfair dismissal as follows:-(1) In determining…whether the dismissal of an employee is fair or unfair, it is for the employer to show. (a) the reason (or if more than one the principal reason) for the dismissal and (b) that it is a reason falling within subsection (2) or some other substantial reason

(2) A reason falls within this subsection if it – (a) Relates to the capability or qualifications of the employee for performing work of the kind which he is employed to do (b) Relates to the conduct of the employee. (c) Is that the employee is redundant. (d) That the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment, (4) Where the employer has fulfilled requirements of subsection (1), the determination of the question of whether the dismissal is fair or unfair (having regard to the reason shown by the employer)- (a) Depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a s sufficient reason for the employee, and (b) Shall be determined in accordance with the equity and substantial merits in the case.

69.1 It is for the employer to establish the reason falls within section 98(2) and therefore is capable of justifying the dismissal. In Gilham v Kent County Council (No2)

1985 ICR 233

CA Griffiths LJ commented that ‘this hurdle… is designed to deter employers from dismissing for some trivial or unworthy reason’.

69.2 The Tribunal is required to look at the mental processes of the person or persons authroised to and did in take fac make the decision Orr v Milton Keynes Council

2011 ICR 704

CA.

69.3 Once the reason has been determined the Tribunal must go on to consider whether the decision to dismiss in accordance with subsection (4). At this stage the burden of proof is neutral. The question of reasonableness is a question of fact. In Union of Construction, Allied Trades and Technicians v Brain

1981 ICR 542

CA Donaldson LJ said:; ‘ It [the tribunal] has to look at the question in the round and without regard to a lawyers technicalities. It has to look at in an employment and industrial realties context and not in the context of the Temple and Chancery Lane.

69.4 Guidance on how to apply section 98(4) in cases relating to conduct may be found in BHS v Burrchell

1978 IRLR 379

. The employer must show; that it believed the employee guilty of misconduct; it had in mind reasonable grounds upon which to sustain that belief; at the stage at which the belief was formed it had carried out as much investigation as was reasonable in the circumstances.

69.5 In looking at he investigation the Tribunal must apply the range of reasonable response test, J Sainsbury plc v Hitt

2003 ICR 111

. In relation to an investigation the Tribunal had regard to Linfood Cash & Carry Ltd-v-Thomson and the guidance concerning ‘absent witnesses.’ The case concerned a situation in which witnesses refused to be identified which is not the case here. The guidance applicable to any situation in which a “live” witness will not be present includes: 2. The following are important in taking statements: (a) Date, time and place of each .. incident. .. (d) Whether the informant has suffered at the hand of the accused or has any other reason to fabricate. 3. Further investigation can then take place either to confirm or undermine the information given. Corroboration is clearly desirable. 6. it is desirable at each stage the member of management responsible for the hearing should himself interview the informant and satisfy himself that weight is to be given to the information. 9. It is particularly important that full and careful notes should be taken.

69.6 A tribunal must not substitute its own view of the employers decision to dismiss Foley v Post Office, HSBC Bank plc (formerly Midland Bank plc) v Madden 2000 ICR. A tribunal must consider the reasonable employer and whether ‘no reasonable employer’ would have dismissed, as established in Iceland Frozen Foods v Jones

[1982] IRLR 439

, ‘the range of reasonable responses test’.

69.7 The Tribunal also had regard to the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015 and the guidance which accompanies it, in particular paragraph 4; issues should be raised promptly, employers… should act consistently, employers should carry out necessary investigation, employers should inform employees of the basis of the problem and give them an opportunity to put their case 69.7.1 At paragraph 46 the code states ‘Where an employee raises a grievance during a disciplinary process the disciplinary process may be suspended temporarily in order to deal with the grievance’

69.8 The Tribunal bore in mind that in determining the question of whether the dismissal reasonable or unreasonable the tribunal must have regard to the words of the statute in section 98(4) ‘ Whether in all the circumstances of the case including the size and administrative resources of the employer, shall be determined in accordance with equity and the substantial merits of the case.’ My emphasis. Direct Race Discrimination:

70.1 Section 13 Equality Act 2010 states that a person A discriminates against another B, if because of a protected characteristic A treats B less favourably than it treats or would treat others.

70.2 Section 23(1) Equality Act 2010 sets out comparison by reference to a comparator as follows: ‘ On a comparison of cases for the purpose of section13. 14. And 19 there must be no material difference between the circumstances relating to each case

70.3 This was clarified in Shamoon v Chief Constable of Royal Ulster Constabulary

2003 ICR 337

HL. The comparator must be in the same position in all material aspects as the victim save only that he, or she is not a member of the protected class. 70.4The relevant circumstances need not be identical ‘what matters is that the circumstances relevant to the treatment are the same or nearly the same for the claimant and the comparator EHRC Employment Code para 3.23. Macdonald v Ministry of Defence; Pearce v Governing Body of Mayfield Secondary School

2003 ICR 937

HL ‘all the characteristics of the complainant which are relevant to the way his case was dealt with must be found also in the comparator, Harassment

71.1 Section 26 Equality Act 2010 sets out what amounts to harassment as follows: 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 Bs dignity, or (ii) creates an intimidating, hostile, degrading humiliating or offensice environment for B

71.2 Chapter 7 EHCR Code of practice on Employment sets out guidance on harassment including what unwanted conduct may be. Unwanted conduct may extend to graffiti as well as verbal comments, gestures jokes and pranks.The phrase ‘related to the protected characteristic’ has a broad definition . Victimisation

72.1 The employer must not subject the employee to a detriment because they have done a protected act

72.2 A detriment is anything which an individual might reasonably consider changed their position of the employee for the worst or putting them at a disadvantage,

72.3 the employer must either knows that the employee has done a protected act or believes that the employee has done a protected act. The following are protected acts: bringing proceedings under the Act; given evidence or information in connection with proceedings under the Act; done any other thing for the purpose or in connection with the act ; made an allegation that a person has contravened the Act

72.4 Conduct will be a detriment if a reasonable worker might take the view in all the circumstance that the conduct was to the workers detriment the test is satisfied Chief Constable of West Yorkshire Police v Khan

2001 ICR 1065

HL. Burden of Proof

73.1 For all claims brought under the Equality Act the tribunal must apply the burden of proof found in Section 139 of the Act (2) If there are facts from which the court could decide in the absence of any other explanation, that a person A contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection 2 does not apply if A shows that A did not contravene the provision.

73.2 Although the ‘shifting burden of proof’ is a two-stage test, Tribunals in a series of cases in the EAT are advised not to slavishly or mechanistically follow it. Rather that the focus must at all times be the question whether or not they can properly infer… discrimination’ Per Elias J Laing v Manchester City Council and another

2006 ICR 1519

EAT Submissions 74.1The Tribunal received written submission by all parties which are not rehearsed here. 74.2Claimant 1makes a number of complaints about the procedure. He was treated differently to other white persons. 74.3 Claimant 2 states that the organisation is racist and that his dismissal was pre planned. 74.4Claimant 3 the investigation was not carried out properly at any stage and that Mr Murphy had made his decision before the hearing. Other people who did the same thing were not sacked. They are white. 74.5 Respondent’s case is that it carried out a fair procedure and on the facts it was reasonable for Mr Murphy to dismiss. In so far as race is concerned, it had no bearing on the evidential matters that Mr Murphy had to decide. 74.6 The respondent relies primarily on the issue of comparators in relation to the race discrimination. That is that the comparators used were materially different to the to the claimants. Discussion and Conclusions

75.1 In coming to our conclusions the Tribunal bears in mind the size of the respondent company and the resources available to it. The respondent is a large company and had the facility of human resources and occupational health/medical available to the Bailiiol site. It has a comprehensive handbook setting out its policies and procedures. The Tribunal was therefore surprised at the manner in which its managers deal with a number of issues.

75.2 The issue of time limits was not pursued as Claimant 1 was not making any claims in relation to, historic matters but simply relying upon them as background.

76.1 Genuine Belief The Tribunal concluded Mr Murphy had a genuinely belief in the claimants misconduct on the basis that all three had returned from their break together, then all three had left the production floor for excessive amount of time and then taking an further break he considered that they had falsified their TA. Reasonable

76.2 However the Tribunal went on to look at whether or not that belief was reasonable based on a number of factors. The Tribunal concluded that Mr Murphy had gone into the disciplinary with a closed mind, he gave a clear indication that he believed what he had been told from Ms Howe and Mr Jones i.e that all three were absent together was true. Having considered the disciplinary hearing there was no probing of the events as set out by Joanne Howe and Tony Jones. Mr Murphy clearly did not doubt the quality of the investigation, of which more below. He did not submit the evidence he had to a critical assessment which may have led him to cause further enquiry to be made. In relation to Claimants 2 and 3 reference is made throughout to taking unscheduled breaks although reference in hearings was only made to one. If in fact the respondent’s case is that these two claimants took additional time because they then had a further break in the afternoon this is not made clear.

76.3 In so far as race was raised during the process Mr Murphy does not address this at all. In particular the suggestion from the third claimant that Tony Jones was a racist and ‘treats us differently’ is of particular importance when the explanation proffered was that they were in the toilets. The evidence that they were not comes in a very indirect way from Mr Jones.

76.4 In relation to the first Claimants assertion of a bowel syndrome, this was not followed up by Mr Murphy despite the fact that there was Occupational Health available on site. Although in relation to comparator F, Mr Dixon had consulted with Occupational Health as to a health issue.

76.5 The Tribunal concluded that the manner in which Mr Murphy dealt with the hearings was not in accordance with good industrial practice. The respondents’ case was that all three men were together for the period of the absence, despite Mr Murphy’s assertions that he dealt with them as individuals he clearly did not. He refers to having statements from others saying they were in the toilet at the time. In concluding this the Tribunal noted the email from Ms Walker to Mr Long, which the Tribunal concluded sets out the respondents view of this atter. ‘On face value the difference between the three dismissal is that we believed they lied because there were 3 of them. If they did it one at a time then one would assume that no further action would have been taken’

76.6 He dismissed Claimant 1 before he had heard from claimant 2 or 3 which is indicative of his mindset. In particular it is clear that the first claimant was not present at the briefing with Joanne Howe. Investigation 77.1The Tribunal identified the following issues with the investigation, that is to say the steps a reasonable employer would have taken in this case; i. Failure to challenge on return to shop floor; This meant the claimants were not asked about it until the following weekend. This is important where the respondent relies on inconsistencies in deciding to dismiss. Contrast this with Ms Howe who could not remember the date of the briefing, although there was an email with the relevant date. ii. The Tribunal concluded that Ms Howe was targeting claimants 2 and 3. This is on the basis that they had previously been found together on a phone and the fact that she clearly was waiting for them to return to the shop floor. iii. Failure to formally interview Howe and Jones. The fact statements were not taken or shown to the claimants were unable to probe their accounts as the Linford Food case envisages. iv. If Ms Howe thought they were I the car why didn’t she just go and check v. IBS (bowel syndrome) was not followed up vi. SN says JM spoke to TJ about how he checked the loo, statement, note, not put to Cs vii. Other Conversations with JH and TJ not noted supplied not recorded and not provided to Cs The Issue of Race

78.1 This was raised by all the claimants and at the time of the disciplinary hearing it was clear that all three wished to lodge a grievance. Mr Dixon, having asked Ms Howe to ascertain the views of all claimants, told her not to engage with them about it. The email was copied to Mr Murphy. The email concludes with the words ‘If this is the case could you please reply all so we can start the investigation process’. No investigation commenced. Mr Murphy seemed to think it was up to the claimants to pursue it, but the clear indication from the email is that Mr Dixon would start investigating, but he did not.

78.2 The Tribunal asked itself what is the impact of this upon the reasonableness of the investigation and the decision by Mr Murphy to dismiss. The ACAS Code gives guidance on the matter and it is good industrial practice that where a grievance may be linked to disciplinary, an employer at the very least must consider what course of action to take. That is to say, should the disciplinary proceed of be put on hold, or should the two be combined. Where the two are interlinked, as suggested by these claimants, it may be prudent to put the disciplinary on hold until the race allegation is dealt with, and the Tribunal concluded that that is what a reasonable employer would do. This respondent did not address its mind to this at any stage including the two appeals.

78.3 In this case no investigation was conducted either before, during or after the disciplinary hearings and the dismissals.

78.4 In the disciplinary meetings Mr Murphy does not turn his mind to the issue of race even though he was aware it was being raised.

78.5 In the meeting Mr Murphy did not even explore the possibility that Mr Jones may have been biased against the claimants for another reason entirely. The Appeals 79.1The Tribunal went on to consider if the appeals remedied any of the above matters. At each stage the respondent, i.e. the decision maker should their mind to the issues. Not of the issues raised above were properly addressed at the appeals. Of particular importance is the issue of the grievance and what action should be taken about it. 79.2 The Tribunal concluded that Mr Nicholson was not 100% sure T Jones had walked through the toilets. He felt it necessary to have a conversation with Mr Murphy about this but he did not go back to and speak to Jones directly. 79.3 He was dismissive in relation to Medical from claimant 1. The respondent had access to an onsite occupational health professional but Mr Nicholson did not avail himself of their expertise. 79.4He also dealt with all three claimants’ cases together. 79.5The Tribunal concluded that the dismissals were procedurally unfair. Direct Race Discrimination

80.1 At face value it would appear that there is a difference in treatment between the claimants and the comparators, however the Tribunal has to examine each comparator to establish if there is no material difference between the circumstances of each case and the claimants.

80.2 The claimants rely upon five comparators in relation to their claim of race discrimination. Of the comparators relied on the Tribunal immediately dismissed C and D from its consideration. Comparator C was discovered to be asleep, and although this may be considered as falsifying his clock, it is clear that there were genuine reasons for his behaviour. Comparator D was dismissed for falsifying his clock so there is no difference in the treatment. Comparator 4 was also dismissed. 80.2 Turning to the other Comparators. They all seem to have one factor in common, they have taken advantage of a situation. That is to say A was smoking whilst seeking advice on a work matter; It was accepted that B had issues on going out of work and that he needed support. Ms Robinson and Ms Thompson took advantage of the fact that they were tasked to clean the smoking shelter. In addition, all of them made admissions to wrongdoing, apologised and indicated it would not happen.

80.3 The Tribunal concluded that there was a material difference in the circumstances of all the comparators referred to and the circumstances of each of the claimants. 80.4On the evidence we heard Mr Murphy placed great reliance on the fact that the comparators who were not dismissed did make admissions and apologised. 80.5 If however, the Tribunal is wrong about that the comparators. It is satisfied having considered all the evidence including the flaws in the procedure that the dismissals were not because of the claimants’ race. Harassment

81.1 Mr Dixon went onto site because he was aware the claimants were unhappy. The Tribunal concluded he went in following email at 9:35, By the time he arrived at site he was fired up because he had had to attend work on his down day.

81.2 As the Tribunal accepted the claimants account in relation to the events of 27th June, The tribunal asked itself three questions, first was it ‘unwanted conduct’ second was it related to the protected characteristic of race did it create an intimidating, hostile, degrading humiliating or offensive environment. Having accepted the claimants’ account. The tribunal went on to consider if this was related to race. 81.2 The Tribunal concluded that the behaviour of Mr Dixon on that day was unacceptable, to raise his voice to a junior employee is undesirable to then throw his mask onto the desk was reprehensible. This is not only unwanted conduct but would create an intimidating, hostile, degrading humiliating or offensive environment for the first claimant.

81.3 That is not the end of the matter, the Tribunal must consider why Mr Dixon did this. The Tribunal considered words used by Mr Dixon were significant, ‘If you want to take this higher you will be in big trouble’. He was aware that the claimant wanted to pursue race allegations and was clearly ‘fired up’. The Tribunal concluded that the actions and words are linked together and were because of the claimants wishing to pursue their race claim. Therefore they was subjected to harassment related to their race. Victimisation

82.1 This applies to claimant 1 and 3. The grievance in 2019 is accepted by the respondent as a protected act. Dismissal is a detriment for the purpose of section 27 Equality Act 2010. The question the Tribunal must ask itself is, did the respondent dismiss the claimants because of the previous grievance.

82.2 The Tribunal concluded it did not. A number of years had passed since the grievance and the respondent had had opportunity to dismiss the first claimant on at least one occasion for his threatening behaviour in 2019 and did not do so. This was much closer in time to the protected act. The tribunal concluded d that the reason for the dismissal was not because of the protected act and since that date the claimant has faced disciplinary hearings for other matters, which may have lead to his dismissal and did not.

82.3 Similarly in relation to the third claimant, he could have been disciplined for earlier when found in the locker room but was not. In addition there is the passage of time which makes it difficult to draw a causative link between the protected act and dismissal. Conclusions 84. All three claimants were unfairly dismissed because of procedurally failings in the investigation including the reasonableness of the belief of the decision maker. 85. None of the claimants were subjected to Race discrimination. 86 Neither claimant 1 nor 3 were subjected to acts of victimisation. 87. Claimant 1 was the subject of harassment related to his race.

Conclusions

[1]This is a remedy hearing for each of the above claimants following a finding of unfair dismissal in relation to each and a finding of harassment on the grounds of race in relation to Claimant 1.

[2]The Tribunal had before it a small bundle of documents relating to each claimant and their situations since they were dismissed from Greggs. We read witness statements from each and heard evidence from them. We also heard evidence from Greggs about the possibility of the claimants being re-employed.

[3]The claimants seek reemployment or reinstatement or a financial remedy. In relation to the financial remedy the claimants seek loss of earnings, loss of benefits including colleague share scheme and The Evidence From The Respondent

[4]The Tribunal heard evidence from Claire Murray Senior Supplies People Manager for the respondent. She gave evidence on several topics including the availability of employment within the respondent and the availability of comparable work within the Newcastle/Gateshead area.

[5]At the time Ms Murray prepared her statement the respondent had roles available for four engineers and an engineering supervisor. The maintenance engineer role required a number of skills as set out in paragraphs 3 (a) and (b) of her statement, such as a requirement to be electrically biased and trained at a minimum to apprentice level. The Supervisor role required mechanical and Electrical skills and experience in Computerised Maintenace Management Systems. It has not been suggested that any of the claimants are able to undertake such roles.

[6]Following the claimant's dismissal, the roles they were employed in, Production Operatives, Hygiene Department were not immediately filled by the respondent. New persons were employed on the same contract and shift pattern as Claimants 1 and 2 in January 2022 and the same contract as Claimant 1 in November 2022. There are currently no requirements or recruitment ongoing for Production Operatives in the Hygiene department.

[7]At the time of writing the statement, it was likely that the respondent was likely to recruit Production Operatives into the manufacturing department. The shift system is different to that worked by the claimants, it will operate a shift rotation as follows dayshift 6 am – 2 pm; backshift 2 pm – 10 pm, nightshift 10 pm 6 am. The rota requires approximately 7 Sundays per year. The salary is £25,850 increasing following successful completion of probation. The respondent will not offer Saturday and Sunday only working in these roles.

[8]In addition, if the claimants were reemployed or reinstated, there is a likelihood that there would be that they would come into contact with Craig Dixon, John Murphy and Simon Long, the employees who dealt with the disciplinary procedure. Whilst it is not unusual that such a situation occurs frequently in the workplace, the Tribunal recognises that Mr Dixon has been found to have used racist language and behaviour toward Claimant. Ms Murray expresses concern as to how the relationships would work and her opinion is that it would be irresponsible to put the claimant into a situation where any contact would occur.

[9]The respondent operates and offers several different benefits to its employees. First, is a staff discount policy. This is set at two rates 50% for standard products, such as sausage rolls and 25% for nonstandard products, for example celebration cakes. The discount was subject to a maximum of £25 per week. Claimant 1 is claiming £3 per week, which Ms Murray is prepared to accept. However, Claimants 2 and 3 both claim for the full £25 per week. Although Ms Murray is unable to provide details of actual usage the claimants have not adduced any evidence of it. She states that the policy is offered on the assumption that staff use about 75% of the maximum per week which is £18.75.

[10]There are two share plans operated by the respondent which are open to its employees. The Share Save Scheme, also known as Sharesave or SAYE. As the name suggests is a savings plan, this scheme allows employees to save a fixed sum per month for three years, at the end of the period the employee may request the total sum be returned or buy shares in the company. The price for the shares is fixed at the commencement of the agreement. Claimant 1 did not participate in the scheme. Claimant two was paying into two schemes, one from 2020 and saving £35 per month until his dismissal, the second from 2021 again a monthly sum of £35. The sums paid in have been refunded to claimant two.

[11]Claimant three joined the 2021 scheme and was paying £35, there is still a balance of £105 to be returned to the claimant.

[12]The respondent also operates a Share Incentive Plan, SIP. An employee is given the opportunity to buy shares from the respondent. The benefit is that the sum invested is deducted before the employee's tax and National Insurance are paid. The operation of the SIP scheme is dependent upon the respondent's profit or loss in any one year. There was no SIP offered in 2021. If an employee leaves the shares are removed from the Scheme and, depending on how long the employee has had them invested may be subject to tax and national insurance. All three claimants had invested in SIP Claimant 1 and Claimant 2 have been reimbursed the value of their shares. Due to an apparent error, Claimant 2 shares are still held in the scheme and need to be reimbursed.

[13]Finally, the respondent operates a Profit Share Scheme under which it distributes 10% of its profit amongst its employees. The exact sum is dependent upon the number of years of service and the actual earnings of an employee. There was no profit in 2021. The claimant received the following sums in March 2020. Claimant 1 £902.09; Claimant 2 £206.29; claimant three £617.40.

[14]Miss Murray speaks at length about the disciplinary procedure, some of which is her opinion, for example in paragraph 12 ‘It is my belief that the findings of Mr Murphys show that on the balance of probabilities the claimants did commit gross misconduct’ she goes on ‘It is also my belief that notwithstanding any issues identified with the process followed for each of the three claimant, any failings would not have made any difference to the overall outcome, as they would have been dismissed in any event. In this regard she points to, the seriousness of the offence itself, and the past briefing, which she states was only a week before the events, plus Mr Kahsay, was already subject to action short of dismissal.

[15]Finally, Ms Murray gave evidence in her statement in paragraphs 64- 67 about the job market, including searches made for similar positions which are in the bundle, she produced a report compiled by The Best Connection recruitment agency, pages 92-96 of the bundle. The report concludes ‘the number of job vacancies in July to September 2021 was a record high of 1,102,00 an increase of 31,8000 from prepandemic (January 2020-March 2020) level…All industry sectors were above or equal to the January to March 2020 pre-pandemic levels in July to September 2021 with accommodation and food service activities increasing the most by nearly 59%.

[16]At the date of the report, October 2021, there were 705 Warehouse operative adverts currently posted online, an increase of 496% since January 2021. The average pay for a Warehouse Operative was £10.37 in the local area. Although the range was from £9.90 to £11.50

[17]She also produced correspondence from Talent 84 a recruitment agency which confirmed the ‘abundance’ of work available for Warehouse Operatives from July 2021 – December 2022. It concludes ‘Any experienced worker should not have an issue finding employment’. The Tribunal notes that Claimant 1 submits in his statement we should not rely upon this evidence because this company failed to pay his holiday pay when he was placed at Greggs by them. Other than the assertion there is no evidence to support this argument and nothing else has been raised which would cast doubt upon the reliability of the information. Claimant One Solomon Kahsay

[18]Claimant 1 was born on 10th September 1970 and at the effective date of termination he was 36 years of age, He had been employed by the respondent from 7th June 2015 until 3rd July 2021. He had 6 years of continuous service. His gross annual salary was £28,232, equating to a gross weekly salary of £543, and a net salary of £444. There have been 117 weeks since his dismissal. The claimant seeks reinstatement as a primary remedy.

[19]Previously in his employment, the claimant had been disciplined and dismissed as a result. However, he appealed that decision, and he was reinstated. As a result, the claimant was hopeful he would succeed in his appeal on this occasion and be reinstated again. He therefore did not start applying for any jobs until after the appeal had been heard and the outcome communicated to him on 29th September 2021.

[20]His appeal having been unsuccessful, the claimant states in his witness statement that ‘he made strenuous efforts to secure alternative employment’ but he does not give further details. Although the claimant states he did use agencies such as Blue Arro, Hy and Central Jobs, he has produced no evidence of that fact. He believes that he was unable to secure a job because of his age, being dismissed and the economic climate following dismissal.

[21]During evidence, the claimant stated he had not claimed state benefits because he had savings of £6,000.

[22]On 1st October 2021 he applied for a position with a delivery company named Stuart. He commenced employment with Stuart as a food delivery driver on 3rd November 2021. The Tribunal has seen pay slips for the period November 2021 – January 2023 plus accountants and tax returns. The position was advertised on Facebook.

[23]The claimant’s evidence was that he had to book available working hours every Wednesday, if he could not book slots, he was unable to work. The documents show that the claimant never booked any slots and only ever worked ‘on demand’. The Tribunal does not accept that the claimant throughout the period was unable to secure any working slots. The Tribunal concluded that the claimant did not attempt to secure the slots and was content to work ‘on demand’ only.

[24]The sums he earned varied from £40.97 up to £2253 over 16 months. Which is an average of £971 per month. To work for Stuart the claimant had a number of expenses for car repairs and buying a new car; car Insurance fuel and tyres. Plus, he had to supply his delivery bag. His ‘profit’ was £6377.

[25]In January 2023 the claimant made an application to become a taxi driver but was unsuccessful because he was not medically fit for the role. He continued with his role at Stuart.

[26]In relation to the impact of the harassment upon him, the claimant states he was depressed and his IBS became worse. His life was completely damaged. He goes on to say that his relationship with his wife broke down and they were divorced. The Tribunal does not accept this as during the liability hearing the claimant gave evidence that he was stressed because of problems at home. The breakdown of the marriage cannot be attributed solely, if at all, to dismissal or harassment.

[27]The claimant also stated he travelled to Ethiopia for cultural treatment for his stress and depression. He first did this in 2021 following a disciplinary hearing. He also went in February 2022 for 4 weeks and seeks reimbursement of £1850. He also went to Ethiopia in February or March 2023. Other than going for a holiday, which may well help with depression or stress there is no evidence of the cultural treatment the claimant received. Indeed, the Tribunal see a pattern that the claimant travels to Ethiopia at the same time every year. The Tribunal concluded that this was nothing more than an annual holiday.

[28]Having reviewed the medical evidence which has been provided information the Tribunal concluded that neither the claimant's stress nor his IBS became worse following his dismissal and the harassment. There is a brief statement about work-related stress in July 2021 but no treatment was given.

[29]The claimant gave evidence about going back to work for Greggs. His view is that there are vacancies and that anyone in his role should be moved to accommodate him. In addition, the claimant has not accepted the Tribunal’s decision that the dismissal was not because of his race. Indeed, he said ‘they’ the managers should be sacked. He doesn’t trust Ms Howe or Mr Jones, in fact, Mr Jones would need to move. He does not want to work for the respondent unless it can be guaranteed that Mr Murphy will not manage him. Although he does not trust Mr Career he can still work with him. Claimant 2 Yonas Tesfamariam

[30]Claimant Two was employed between 8th October 2018 and 6th July 2021. At the effective date of termination, he was 29 years of age and had two years of continuous service. His annual gross salary was £16,822 giving a gross weekly wage of £324 and a net of £291. He worked 20 hours per week.

[31]Whilst he was employed, he also claimed Universal Credit with his partner, before his dismissal this was £550 per month, this rose after his dismissal to over £1000 per month. The Tribunal has seen the refund of the SIP monies owed by the respondent of £1460.99.

[32]Claimant 2 has requested that the Tribunal consider reinstatement, ‘I want to return to the old job I did.’ He told the Tribunal that he still thought there was discrimination in the workplace but accepted that the Tribunal had concluded that the dismissal was not because of his race. Even though the alleged perpetrators all work for the respondent, claimant 2 hopes they have all learnt their lesson and they can work together.

[33]The claimant gave evidence that his wife has health problems which means he can only work on Saturdays and Sundays, this was clarified that the problems occurred after the birth of his first child. Whilst the Tribunal can empathise with his wife’s poor health, the claimant did not produce any evidence that it prevented him from working during the week. Indeed, he failed to explain how he could work on Saturdays and Sundays. The Tribunal noted that he was only prepared to work Saturdays and Sundays if he returned to the respondent’s employment although he did go on to say he would have to consider all the facts including the shifts in any employment.

[34]In relation to seeking new employment, he told the Tribunal he contacted many agencies such as MTrec, Talent 84, Central Employment and some takeaways and restaurants. The evidence was he did this in person so there is no documentary evidence. He asserted at the job centre they always asked him about the jobs he applied for but again he has adduced no evidence of this.

[35]The Tribunal's attention was drawn to emails between the claimant and the respondent’s solicitors concerning evidence such as bank statements, evidence of benefits received which has not been supplied. We draw an adverse inference from the failure to provide all the relevant evidence requested.

[36]The claimant decided in April 2022 to commence self employment as a taxi driver, he states his income was £5,600 until February 2023, after all his expenses but before tax. Although he has produced his tax return, he has not produced any evidence of the income he received or the expenses he incurred. Whilst giving evidence he conceded that he did not work as much on weekdays, and he worked more on weekends. Claimant 3 Robeil Araya

[37]Claimant Three was employed between 25th June 2015 and 20th September 2021. At the effective date of termination, he was 32 years of age and had 5 years of complete service. His gross annual salary was £16,822 which gave a gross weekly pay of £324 and a net of £291. He worked 20 hours per week. He has requested reinstatement. He also believes his dismissal was because of his race but assured the Tribunal he could go back and work with them again. He told the Tribunal ‘they have to learn from their wrongdoing’. He cited the issue of the grievance about pay following which he was able to continue working alongside the managers.

[38]The claimant already worked as a self employed taxi driver whilst also working for the Respondent. His tax return for the year ending 2022 shows his income from the respondent. It also shows his turnover, as a taxi driver, for that year as £14,000 with a net profit of £7404.

[39]He did not start looking for a job to replace the job at the respondents because he had a lot of stress from the dismissal. He actually did less work as a taxi driver. He did not produce any medical evidence about this, but he told the Tribunal he found it stressful, but he was not saying he could not work because of the proceedings.

[40]In June 2022 he had to stop his work as a taxi driver because of an injury to his left hand; he has lost part of a finger. He is right handed so whilst he cannot work as a taxi driver he can return to work at the respondents. He is currently signed off ‘sick’ but he is hopeful he will improve and be able to return to work. The Law.

[41]Under Rule 29 Employment Tribunals Rules of Procedure an application to amend may be made at any time. The Tribunal was assisted by the guidance in Selkent Bus Co Ltd v Moore ICR 836 EAT to take account of all the relevant factors, whilst balancing the injustice and hardship of allowing or refusing the amendment.

[42]Section 112 Employment Rights Act 1996 sets out the remedies available if a complaint of Unfair Dismissal is well founded. The Tribunal shall explain to the claimant what orders may be made under Section 113 of the Act and in what circumstances they may be made and ask if the claimant wishes the Tribunal to make such an order. If the claimant expresses a wish for an order under section 113 the Tribunal May make such an order. If the Tribunal does not make such an order, it SHALL make an award of compensation.

[43]Section 113 Employment Rights Act 1996 provides for a claimant to be reinstated or reengaged. An order for reinstatement ‘is an order that the employer shall treat the complainant in all respects as if he had not been dismissed, section 114 of the Act. An order for re-engagement is ‘an order, on such terms as the tribunal may decide that the complainant be engaged by the employer….in employment comparable to that from which he was dismissed or other suitable employment.’ Section 115 of the Act.

[44]If the claimant has expressed a wish for one of the above orders the respondent is obliged to adduce evidence about the availability of the job from which the claimant was dismissed or of comparable or suitable employment .

[45]If a Tribunal orders reinstatement, it shall be on the same terms and conditions as the claimant had before they were dismissed. This shall include any benefit the claimant might reasonably have expected to have received between the date of dismissal and his reinstatement, for example back pay. In addition, the claimant is entitled to benefit from any improvement in their terms and conditions they would have had, for example, a pay rise.

[46]Re-engagement is an order for comparable employment. The terms of the order must be specified with a degree of precision Lincolnshire County Council v Lupton UKEA0328/15.

[47]In determining whether to make either of the above orders the Tribunal shall take into account whether the claimant wishes to be reinstated, whether it is practicable for the employer to comply with an order for reinstatement, where the claimant caused or contributed to some extent his dismissal whether it would be just to order his reinstatement or engagement section 116(1) & (2) Employment Rights Act 1996.

[48]Practicable means more than merely possible, Coleman v Magnet Joinery 1975ICR 46CA. ‘capable of being carried into effect with success. An employer is not required to make employees redundant in order to give effect to an order for reinstatement nor should it be required to be overstaffed. Freemans plc v Flynn

1984 ICR 874

EAT.

[49]One relevant factor is the personal relationships in the workplace. This includes a loss of trust and confidence between the parties. Oasis Community Learning v Wolff EAT 0364/12. This may be particularly so where there was a genuine belief by the dismissing officer in the guilt of the employee. Wood Group Heavy Industrial Turbines Ltd v Crossan

[1988] IRLR 680

EAT.

[50]It is only after the Tribunal has rejected the above orders that it should consider compensation. Under section 118(1)(a) &(b) Employment Rights Act 1996 the Tribunal has the power to order a Basic Award and a compensatory award. The Basic Award is calculated by determining the number of complete years of continuous service and multiplying it by one week's pay section 119(1).

[51]The Basic Award may be reduced ‘where the Tribunal considers that any conduct of the complainant before the dismissal was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent. Section 122(2).

[52]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 his dismissal in so far as that loss is attributable to action taken by the employer.’ Section 123(1). Section 123(4) the Tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales.

[53]Care must be taken when dealing with the issue of mitigation. The Tribunal should start with the assumption that the claimant has mitigated their loss. The burden is then on the employer as the wrongdoer to establish that the claimant has not guidance given by the EAT in Gardiner-Hill v Roland Berger Technics Ltd

1982 IRLR 498

(i)what steps were reasonable for the claimant to have to take to mitigate his or her loss;(ii)whether the claimant did take reasonable steps to mitigate loss; and (iii) to what extent, if any, the claimant would have mitigated his or her loss if he or she had taken those steps. Singh v Glass Express Midlands Ltd 2018 ICR D15, EAT.

[54]If the Tribunal is satisfied that the claimant has failed to mitigate their losses it should attempt to identify a time when the claimant would have got a suitable job and reduce the compensation accordingly. In determining the issue of mitigation, the Tribunal must look at the claimant's circumstances, the question to be posed is whether this claimant has taken reasonable steps to minimise his losses. In Austin v Leeds Teaching Hospitals NHS Trust ET Case No.1801339/17 it was suggested that the question to be asked ‘Was it unreasonable for the claimant to make the choices he or she did in his or her particular circumstances’

[55]Section 123 Employment Rights Act 1996 states that 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 attributed to the action taken by the employer.

[56]The Tribunal may consider the circumstances of the dismissals, in particular the procedure which was followed. One of the main aspects of this is the ‘Polkey’ reduction. Polkey v AE Dayton Services Ltd

1988 ICR142

HL. Where the issue is raised by a respondent a Tribunal must consider, as part of a remedy hearing, whether there should be a reduction in the compensatory award because the lack of a fair procedure would not have altered the outcome, i.e. if a fair procedure had been followed the claimant would still have been dismissed.

[57]Section 123(6) permits the reduction of an award ‘where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.’. This is a distinct reduction from the Polkey reduction. Hollier v Plysu Ltd

1983 IRLR 260

EAT suggested the following scale for reductions. Employee wholly to blame 100%; employee largely to blame 75% employer and employee equally to blame 50% slightly to blame 25%.

[58]Section 124 Employment Rights Act 1996 limits the amount of any compensatory award to either 52 weeks multiplied by a week's pay or £105,707.

[59]Under section 207A Trade Union and Labour Relations (Consolidation) Act 1992 a Tribunal may, where the ACAS code of Conduct applies and an employer has failed to comply with the Code and that failure is unreasonable increase the amount of an award by up to 25%.

[60]In Lawless v Print Plus EAT 0333/09, Underhill J observed that whilst there is a broad discretion the circumstances should in some way relate to the failure to comply with the statutory procedures, which were then in force. The Tribunal equates this to mean that the failure should relate to a breach of the ACAS Code of Conduct.

[61]Monetary Compensatory awards are subject to recoupment of benefits by the DWP Regulation 3(1)(b) Employment Protection (Recoupment of Benefits) Regulations 1996 Remedy for harassment based on Race

[62]Section 124 Equality Act 2010 sets out the remedies for a breach of the provisions of the Act. The Tribunal may make a declaration as to the rights of the complainant in relation to the matter to which the proceedings relate, order the respondent to pay compensation; make an appropriate recommendation.

[63]In relation to compensation the Tribunal, there are several heads of claim including loss of earnings and injury to feelings and personal injury but the aim is to put the employee in the same position ‘as best as money can do it….before the unlawful conduct’ Greig v Initial Security Ltd 0036/05.

[64]The purpose of an award of compensation for injury to feelings was set out in Prison Service & others v Johnson 1997ICR. They are designed to compensate the injured party but not punish the guilty party. An award should not be increased as a result of displeasure at the guilty party’s conduct. However, nor should it be so low as to diminish respect for the public policy on discrimination. Neither should they be excessive as they might be seen as untaxed enrichment. An award should be broadly similar to awards in personal injury cases and tribunals should bear in mind the need for public respect for the level of award.

[65]The leading authority on the level of awards is to be found in Vento v Chief Constable of West Yorkshire Police

2003 ICR 318

CA Mummery LJ identified three bands for injury to feelings. The top band is to be applied in the most serious of cases, for example, a lengthy campaign of harassment; A middle band for serious cases that do not merit an award in the top band; and the lower band for less serious cases for example an isolated one-off incident. The monetary value of the awards is regularly adjusted for inflation and currently stands at a lower band of £900-£9000; a middle band of £9,100 - £27,400, an upper band of £27,400- £45,00 exceptional cases may exceed £45,600.

[66]The Tribunal was also guided by the quantum to be found in Harvey on Industrial Relations and Employment in paragraph 995 ff. Submissions

[67]All parties submitted written submissions following the conclusion of the hearing. Respondent

[68]The respondent contends that none of the claimants should be reinstated. First, there are no positions available at their grade at present. It also relies on the breakdown in trust and confidence between the management and employees. that all loss of earnings should be confined to 12 weeks as there is ample evidence that all three claimants would have been able to obtain a similar position in that time. It also relies on the Polkey principle and argues that the claimants would have been dismissed even if the flaws identified had been rectified. Further, it argues that the claimants contributed to their dismissals and that any award should be further reduced to reflect that.

[69]In relation to the ACAS uplift sought by Claimant 1, the respondent argues that he has failed to identify which parts of the Code are alleged to have been breached and therefore there should be no uplift. Finally, in relation to any claims relating to the Share Scheme, the respondent states that any such award would be too speculative to calculate. Indeed, the claimants could have made a loss.

[70]The respondent has not asked that any basic award be reduce under section 122(2).

[71]Seeks reinstatement with the respondent. He argues that he could work with the management team. As a result of the harassment and dismissal he has been caused stress and his health has been damaged. He considers an award for the Discrimination should be in excess of £40,000.

[72]He also seeks reinstatement. One of his primary arguments is that he can only work weekends because he needs to help his wife with their 2 year old daughter. He also cites the impact of the dismissal on his mental health, his dignity and his pride. In his submissions but not in his Schedule of Loss he claims a breach of the ACAS Code. Claimant Two denies there is any contributory fault and asks the Tribunal to consider not reducing because of Polkey.

[73]Seeks to get his old position back. He denies he contributed to his sacking in any way. He also cites that he was caused humiliation and as a result, he has been scarred. In his submissions, he also claims for a failure to follow the ACAS Code. In addition, he wishes to claim interest. Conclusions The Application to Amend/Adjourn

[74]In so far as Claimants 1 and 3 have made applications to amend their claims to include a free standing claim for holiday pay, such applications are refused. The Tribunal considered the timing of the applications to be very late. These claims were commenced by Claimant 1 on 30th September 2021 and by Claimants 2 and 3 on 30th October 2021. The case was Case Managed in two case management hearings conducted by experienced Judges which included orders for further information and an amended response and to join the cases together. The first time holiday pay is raised is when the schedules of loss were provided.

[75]There was no proper explanation for the lateness of the claims, it appears to be ‘tagged on’ as part of the remedy for the unfair dismissal claim. This is not the proper way to deal with freestanding claims. Documentary Evidence should be disclosed and then evidence heard and tested at a Tribunal. This has not happened here. It is not appropriate to adjourn this remedy hearing and list the holiday pay claim at another time, that will incur more costs and is contrary to the Overriding Objective in the Rules of Procedure.

[76]The Tribunal bore in mind that all three claimants speak English as a second language with a varying degree of competence, for example, Claimant 1 has a good understanding of English whereas Claimant 3 understanding is more limited. All three were assisted at every hearing by an appropriate interpreter. However, the Tribunal also noted that all three claimants were competent in their questioning of the respondent’s witnesses and where appropriate their written submissions.

[77]The Tribunal did hear some brief evidence from the claimants about the holiday pay claims. The evidence was poor and of little value, for example, Claimant 1 said ‘I can’t remember taking any holiday’. The Tribunal observes that the burden of proving such a claim lies with the claimant. From the evidence the Tribunal heard it appeared there was little chance of them reaching the required standard of proof in doing that.

[78]The Tribunal considered the issue of hardship and prejudice. The respondent has been taken unawares by this application coming as it did after a lengthy substantive hearing on the dismissal and race discrimination claim. The hardship to the respondent is that it has not had a proper opportunity to examine the claims and check its records, as noted above, incurring further costs for them to do so manifestly unjust to them.

[79]Whilst the Tribunal noted that in not allowing such an application the claimants may lose their entitlement to claim monies owing to them, it concluded that the balance of hardship was such that the application would be refused. The claimants have had a substantial period of time to ensure that all their claims were before the Tribunal; they have, with some hitches, on the whole, presented their claims, including obtaining witness statements from others, competently. There has been no valid explanation as to why the claims were not advanced earlier. General Points

[80]The Tribunal has no power to award interest on an award for unfair dismissal.

[81]The Tribunal has no power to make an award for stress, problems with mental health, humiliation or injury to feelings in ascertaining compensation for unfair dismissal. It may only be an award for economic loss.

[82]In relation to any claims for compensation from the Share Scheme. The Tribunal accepts the respondent’s argument that any compensation is far too speculative to be considered. As a Public Company, the share fluctuates greatly, and it will be impossible to assess with any accuracy how they have performed since the claimant's dismissal.

[83]For the reasons stated below under each claimant, the Tribunal has accepted many of the arguments in relation to how the compensatory award for unfair dismissal should be calculated.

[84]In particular, although the Tribunal found the dismissals unfair because of procedural flaws. The respondent did carry out a procedure, unlike some employers. The failure was in the way the investigation and hearings were conducted. To that extent, the respondents complied with the Code. The Tribunal did not consider it just and equitable to impose an increase under section 207A TULR(C)A.

[85]Each of the claimants’ awards is subject to the statutory cap; claimant 1 of £28,232; claimant 2 £16,822; claimant 3 £16,822. The claims made by each individual exceed the cap.

[86]The Tribunal has not taken into account any benefits received when calculating any figures. As claimant 2 and 3 claimed benefits their awards are subject to recoupment from by the DWP. However, as no monetary award has been made the Regulations do not apply. Claimant 1: Soloman Kahsay Reinstatement/ re-engagement

[87]In considering the issue of practicability the Tribunal having heard the evidence of Ms Murray, in particular in relation to the working relationship between this claimant and the managers and how this may be managed. This is of particular concern because this claimant not only was subject to harassment because of his race but he has not accepted the Tribunal’s decision that the dismissal, although unfair, was not because of his race. Indeed, he went so far as to say that the managers should be sacked. Despite his assertions that he will have very little to do with the relevant people, having heard from Ms Murray there is a substantial chance that they will come into contact. The Tribunal considered the impact upon both this claimant and the relevant managers and the rest of the workforce. If this claimant maintains his stance, the Tribunal concluded that it would be impossible for this claimant to work in his previous role. There is a potential for conflict, and it is not appropriate for a tribunal to place an employee into a position where he might be subject to further discrimination.

[88]It is not lawful for this Tribunal to order someone to be dismissed, nor should this Tribunal order that other employees be moved or disciplined to accommodate a reinstatement order.

[89]Although the Tribunal disapproves of the behaviour of Mr Dixon it is also dismayed that despite the respondent's wrongdoing the breakdown in the relationship can prevent the claimant from being reinstated. The Tribunal was forced to the conclusion that allowing this claimant back into this workplace is not practicable. It will place both the claimant and his managers into a potential conflict which in turn may lead to harassment from either one or other behaviour which should not be permitted.

[90]This claimant does not want to be considered for any other position.

[91]The claimant did not start looking for new employment until after his appeal had been dealt with. The claimant was dismissed on 3rd July 2021, with formal notification being sent on 6th July 2021. The appeal process was concluded on 29th September 2021, and he was informed of the outcome on 20th August 2021. Although this was seven weeks the Tribunal considered such a course of action was not unreasonable. In considering this we looked at the delay at every stage of the appeal. Following receipt of the outcome, the claimant appealed the decision on 13th July 2021 and a hearing was set for 21st July 2021. The claimant was unable to attend that hearing because he was unwell so the hearing was re-scheduled to take place on 4th August 2021. This hearing was also rescheduled because of his health. The hearing took place on 16th August. Mr Nicholson did not make an immediate decision but took time to consider the appeal. An outcome letter was sent on 20th August 2021. The respondents offered a second appeal and the claimant availed himself of that opportunity, he appealed on 25th August 2021, and this was received by the respondent on 1st September 2021. This second stage of appeal is dealt with in writing. Mr Long, who dealt with this appeal notified the claimant of his decision on 29th September 2021.

[92]The Tribunal does not consider there was any deliberate delay by either party, especially in relation to the two adjourned hearings as the respondent accepted at the time the claimant was not fit enough to attend. The time taken at the second stage complies with the respondent’s policy of issuing a response within a month.

[93]That leaves the question of the claimant’s belief that he would be reinstated. The claimant had previously appealed a dismissal decision and been successful. It was reasonable for him to hold the belief that he may succeed on this occasion and therefore wait until he sought new employment.

[94]The claimant thereafter sought new employment. Although he gave evidence as to the efforts, he made to secure employment such as contacting agencies there is no evidence of this within the bundle. It is the tribunal’s experience that when joining agencies there is some form of communication to confirm you have been accepted, whether this is by email or confirmation on an ‘App’. None of these have been supplied. The tribunal doubts whether they exist. It is unclear at what stage the claimant was accepted by Stuart as a driver, but it must have been before 3rd November which was his start date. Again, no evidence was produced about this.

[95]The Tribunal considered the evidence from the claimant about the availability of work with Stuart with care. The evidence from the pay slips is that the claimant only ever completed ‘on demand’ deliveries. He never booked slots when he was available to work. The Tribunal does not accept that the claimant was unable to secure ‘delivery slots’. The Tribunal concluded that the claimant did not attempt to book ‘slots’ but rather relied on the ‘on demand’ aspect of the work. The highest sums he earned were in December and January 2021.

[96]Having seen the net figure the claimant earned, which does not provide for sickness or holidays, the claimant’s income was substantially below that he earned at Greggs. Indeed, he was not even earning the Minimum Wage. Using the hours, he worked for the respondent on the minimum wage the claimant could expect to receive £8.36 per hour during 2021-2022. There was an increase the following year to £9.18. Having looked at the hours the claimant worked for the respondent and using the lowest figure contained in the Report, the claimant would have an income of £10,296. Using the highest he would earn £11,960.

[97]If the claimant worked a 40 hour week, he would be able to earn a salary commensurate with that of the respondent.

[98]Having seen the evidence produced by the respondents, in particular the job adverts, this particular sector appears to have been buoyant at this time, possibly because it was improving following the COVID-19 pandemic. The Best Connection report is also positive in terms of wage increases in the sector.

[99]The Tribunal concluded that the claimant was unreasonable in the steps he had taken to secure an income commensurate with the salary paid by the respondent. It would be clear to the claimant from December 2021, especially if he was unable to secure ‘slots’ for a second month in a row that his earning capacity with Stuart was severely limited.

[100]The Tribunal concluded that the claimant wanted to have a position which offered the same working hours, shifts and salary as that offered by the respondent. This is unrealistic and unreasonable. The terms offered by the respondent appeared to this Tribunal to be very good.

[101]Reasonable steps would have included signing on with the relevant agencies; and producing a C.V. to send out to possible employers such as Cooplands and Lowering his expectations on salary and working hours.

[102]The Tribunal is unable to conclude on the balance of probabilities if the claimant chose this course of action to minimise his income for the divorce proceedings or to maximise any award from the Tribunal proceedings or because he was confident, he would return to work following the Tribunal proceedings. However, the Tribunal is satisfied that as a result, he acted unreasonably in mitigating his loss.

[103]The Tribunal concluded that the claimant would have been able to secure a position with a commensurate rate, albeit working a 40 hour week in 12 weeks of the outcome of the appeal process. It has assessed his losses to the end of December 2021 because at this stage the claimant would be aware of his inability to earn an commensurate income with Stuart.

[104]The Tribunal concluded that claimant 1 was in a different position to claimants 2 and 3. His was the first hearing held and he was the first person dismissed. However, on the evidence we heard there was a potential reason or explanation for this claimant’s lengthy absence from the shop floor. The explanation put forward was that this claimant had a bowel condition which sometimes necessitates a lengthy lavatory break. This was not investigated by the respondent. We noted that during the substantive hearing, evidence was given that there was an occupational health facility at the site and it was the failure to engage with this that was part of the procedural irregularity. The Tribunal considered the likelihood of this claimant being dismissed if this option had been followed and whilst we note the comments from the respondent as to the medical evidence that it did receive; the evidence was that the GP had been told by the claimant he had an issue; it may be that further investigation would have clarified the position.

[105]The Tribunal went on to consider the impact if this claimant had been dealt with separately to the others. The respondent relied heavily on inconsistent statements by and between the three employees. This claimant’s explanation was consistent throughout.

[106]The Tribunal concluded that these two factors may have led to a different outcome for this claimant, if his hearing had been dealt with in isolation it may have led to a different outcome. The Tribunal concluded therefore that it is not just and equitable to reduce the compensatory award under this heading.

[107]In considering this claimant’s position, the Tribunal noted that he had not been present at the briefing in relation to leaving the shop floor given by Ms Howe, nor had he previously acted in the manner alleged. To this Tribunal it is the fact that he was an associate of claimants 2 and 3 and the misconduct alleged against him was in close proximity in time to the others that led to his dismissal. Unlike claimants 2 and 3, as discussed below, the Tribunal did not conclude that this claimant was not using the lavatory. It maybe he was. His dismissal was because the respondent failed to follow through on medical evidence and in assessing his conduct alongside claimants 2 and 3. The Tribunal having examined the evidence did not conclude that there was any culpable behaviour on behalf of this claimant which led to his dismissal. Remedy for Harassment

[108]The Tribunal, in looking at the claim for injury feelings note a marked contrast, even a conflict between the claimant’s attitude between his return to working for the respondent and his claim for injury to feelings.

[109]That is to say, the Tribunal concluded that if the claimant was gravely affected by the incident with Mr Dixon, as he appears to state in his claim for injury to feelings it is unlikely, he would want to return to work for the respondent at all as his evidence is that he was not protected from racism by it for a substantial period of time.

[110]The Tribunal looked at the medical evidence produced, and this does not support such a shattering impact as the claimant would have us believe. The Tribunal concluded that the truth lay somewhere in the middle.

[111]The claimant seeks an award in the Highest Vento band, citing a lengthy campaign of harassment against him. The Tribunal is unable to compensate the claimant for any such campaign, even if it does exist. The Tribunal can only compensate the claimant for the allegation it found proven.

[112]This was a single incident which although the Tribunal concluded was unpleasant, would only justify an award in the lowest Vento band. The Tribunal bears in mind the purpose of the award is not to punish the respondent rather it is to compensate the claimant. The Tribunal concluded that any award would fall in the upper half of the band and concluded that a sum of £7000 was commensurate with the injury sustained. Re-employment/reinstatement

[113]The Tribunal concluded that the view of this claimant that his dismissal was because of his race, places him in a similar position to claiamnt1. He is not so entrenched in his view but again there is potential for conflict.

[114]However, when looking at the issue of contribution the Tribunal concluded that this claimant did contribute to his dismissal, see discussion below. The Tribunal concluded there was a 100% contribution and in such circumstances, it is not just to order reemployment or re-engagement.

[115]Whilst the Tribunal has sympathy for the position that this claimant finds himself in in relation to his wife’s health. It did not accept his evidence on this point. He was reluctant to discuss it, whilst that is understandable, he raised the matter and the Tribunal must be satisfied that it prevented him from seeking employment. In particular, the Tribunal concluded that this claimant only wanted to work weekends as he had for the respondent and had no intention of seeking any employment which did not offer him weekend work. The Tribunal concluded he was relying on his wife’s health as an excuse for this. In particular, it seems odd to this Tribunal that the claimant was probably working weekend shifts of some length immediately following the birth of his daughter. She was 2 and half years old at the date of the remedy hearing. There was a lack of any medical evidence, or evidence from his wife or other members of the community to support his assertion.

[116]The claimant produced no evidence that he made any efforts to obtain employment save for his assertions. In fact, during his evidence, he stated he only wanted to work weekends. This appears to be a lifestyle choice rather than an economic decision. He did not decide to try employment as a taxi driver until April 2022.

[117]It would be reasonable to allow the claimant sometime to find new employment. He should have considered after a reasonable period of time lowering his sights in terms of the type of contract and hours he would accept. He could have considered the option of becoming a taxi driver earlier, especially with the flexibility this has given him. He should have signed on with agencies, rather than simply trying to find work by visiting restaurants.

[118]The question therefore is what period is reasonable. Having considered the evidence produced by the respondent the Tribunal concluded that this claimant should have been able to obtain new employment within 12 weeks of his dismissal. The Tribunal considered it just and equitable to award loss of earnings for a period of 12 weeks following his dismissal.

[119]A particular flaw was the failure to take a statement or speak to Tony Jones who was the person who was said to checked the lavatory but also stood accused of not liking the claimants and being a racist. It was his account to the manager that the claimants were not in the lavatory which appears to have clinched the matter. It had been raised that Mr Jones did not like the claimants and was a racist. If this had been investigated it may have made a difference.

[120]In addition, this claimant had already been involved in an incident where he was found in the locker room when he should have been on the production floor. This incident led to the briefing where the employees were told that such behaviour could be a disciplinary matter.

[121]The Tribunal noted the inconsistencies of the claimant’s accounts during the disciplinary hearing and concluded that if these inconsistencies and the inconsistencies of claimant three had been put to him during the process he may have struggled to explain his actions.

[122]The Tribunal concluded that there was a possibility that he may have been dismissed if the procedural irregularities were corrected.

[123]The Tribunal then considered whether it is just and equitable to reduce the award because of this and if so by how much. The tribunal concluded that it would be just and equitable, because whilst the respondent is liable to pay a financial sum to the claimant, we give credit to them for the fact that is a serious disciplinary offence, if the procedure had been conducted correctly it would not have had a finding against it. The Tribunal does consider that such an offence would lead to dismissal, if the claimants had been honest it may be that they would have received a sanction short of dismissal, however, the chances of this are small. We assess the possibility of a fair dismissal as 80%. The compensatory award shall be reduced accordingly.

[124]The Tribunal did not accept the account given by claimant two, it was entirely satisfied that he was not using the lavatory at the time he was meant to be in the production area. We based this partly on his previous conduct but also on the inconsistencies in his account during the disciplinary hearing. Similar to the respondent’s witnesses we do not know where he was, he may have been outside the premises.

[125]We also take account of the fact that he had been warned that such behaviour may amount to disciplinary offence. His behaviour was the direct cause of his dismissal. There is a clear link between his behaviour and his dismissal. His behaviour was the direct cause of his dismissal and therefore he contributed to it.

[126]The Tribunal is therefore obliged to consider reducing the compensatory award. The Tribunal considered Hollier and considered that this claimant was wholly to blame for his dismissal and therefore there should be a 100% reduction in his compensatory award. Re-employment/re-engagement

[127]The Tribunal concluded that the view of this claimant that his dismissal was because of his race, places him in a similar position to claimants 1 and 2. He does not accept the Tribunal's findings. Whilst his views are not so strong as those of claimant 1 it is still of concern and a matter to consider. There is the potential for conflict with managers and it would not be practicable to order any type of reinstatement or reemployment.

[128]However, as for claimant 2, when looking at the issue of contribution the Tribunal concluded that this claimant did contribute to his dismissal, see discussion below. The Tribunal concluded there was a 100% contribution, and, in such circumstances, it is not just to order re-employment or re-engagement.

[129]This claimant told the Tribunal he did not look for another job following his dismissal, he did less work as a taxi driver because of the stress of the dismissal. He has not produced any evidence of this. There are no medical notes or evidence of counselling. He did not even produce evidence from family members to support him. Whilst not as compelling as medical evidence it would have given the Tribunal some evidence to consider.

[130]The Tribunal is unable to conclude on the evidence available to it that the claimant was unable to work because of any health conditions immediately following his dismissal especially where he already had the opportunity to increase his income from his taxi driving business. Whilst the Tribunal has heard of the circumstances which led him now to be unable to work, for which he did produce medical evidence, this injury occurred in June 2022.

[131]The evidence from the respondent is that there was a substantial number of positions for which this claimant was qualified. In particular, there was a position as a Part time cleaner at Nuffield Health offering a salary of £22, 755 per annum plus numerous positions for Production Operatives.

[132]The Tribunal therefore concluded that this claimant has not acted reasonably in mitigating his losses. He should have signed up with agencies, he could have sent a C.V. to other companies such as Cooplands. He could have increased his hours as a taxi driver.

[133]This claimant is in the same position as the claimant two. The Tribunal has taken care to ensure we reviewed the evidence separately to ensure we did not fall into the same error as the respondent. However, we have had the benefit of seeing the evidence against both and seeing the claimant’s person before we decide on either of them.

[134]We concluded that claimant three had also been involved in a similar incident not long before the incident which led to his dismissal. He was present at the briefing and so was aware of the seriousness of the misconduct. Again, he was inconsistent in his account. Although the Tribunal cannot be certain he would have been dismissed there was a high probability he would have been. We assessed that probability as 80% and will reduce the compensatory award accordingly.

[135]The Tribunal did not accept the account given by claimant two, it was entirely satisfied that he was not using the lavatory at the time he was meant to be in the production area. We based this partly on his previous conduct but also on the inconsistencies in his account during the disciplinary hearing. Similar to the respondent’s witnesses we do not know where he was, he may have been outside the premises.

[136]We also take account of the fact that he had been warned that such behaviour may amount to disciplinary offence. His behaviour was the direct cause of his dismissal. There is a clear link between his behaviour and his dismissal. His behaviour was the direct cause of his dismissal and therefore he contributed to it.

[137]The Tribunal is therefore obliged to consider reducing the compensatory award. The Tribunal considered Hollier and considered that this claimant was wholly to blame for his dismissal and therefore there should be a 100% reduction in his compensatory award. Awards Claiamnt One Soloman Kahsay Harassment Injury to Feelings 7000 Interest 1268.02 Unfair Dismissal Basic Award 3,258 Compensatory Award Loss of Earnings to Date of Hearing 117 x 440 51,480 Loss of Earnings to December 31st 2021 £440 x 25 11,000 Minus Earnings 2,532 Pension £21.72 x 25 543 Staff Discount 18.75 x 25 weeks 318.75 Loss of Statutory Rights 500 Compensatory Award 9,828.75 Total Award for Unfair Dismissal 13086.75 TOTAL AWARD 21354.75 Claimant two Basic Award 648 Compensatory Award Potential Loss of earnings to date of hearing117 x 324 37,908 Loss Confined to 12 weeks For Failure to Mitigate 3,888 Loss of Pension 12 x £12.96 155.52 Loss of Staff Discount 12 x 18.75 350 Loss of Statutory Rights 500 Total 4893.52 ADJUSTMENTS Polkey Reduction minus 80% (3914.81) 978.71 Contribution Reduction 100% (978.71) Total Compensatory Award 0 TOTAL AWARD 648 Basic Award 1620 Compensatory Award Loss of earnings to date of hearing 117 x 291 34,047 Loss Confined To 12 Weeks for Failure to Mitigate 3492 Loss of Pension 12 x 12.96 155.52 Loss of Staff Discount 12 x 18.75 350 Loss of Statutory Rights 500 Subtotal 4,949.22 ADJUSTMENTS Polkey Reduction minus 80% (3,597.77) 1351.45 Contribution Reduction 100% (1351.45) Compensatory Award Total 0 TOTAL AWARD 1620

[1]This is an application by claimant 2 Mr Y Tesfamariam under Rules 70 and 71 of the Employment Tribunal Rules, it is being considered by me under Rule 72(1) of the Rules to determine if there is a ‘reasonable prospect of success of the original decision being varied or revoked.’

[2]The claimant’s application for reconsideration was received 7th March 2024. It did not specify any grounds for a reconsideration.

[3]I directed an email to be sent to the claimant requesting the reasons for a reconsideration. He replied on 14th March with his reasons but requested further time to respond fully. The respondent was copied into that correspondence and objects to the application and request for further time being granted.

[4]The request for further time is refused, the time limits in the Employment Tribunal are applied strictly and there must be a very good reason for extending them. The claimant has set out no reasons why he could not comply with the time limits.

[5]The claimant set out a number of grounds for his application. After all the last couple of years my partner is in good health. Regards the finding job is I have been registered in agencies and I always searching a job. Still am looking for a job. Polkey; 120. Never found in the locker room as Keith career claimed standing watching someone's mobile. As you watch their exchange emails they could warned me or dismissed me but never found any evidence he just accused me in addition to support the dismissal. They were prepared their files and not a single day I were called and had no any issues in any circumstance, Contribution :124. The tribunal should consider at the time I was in the toilet no one checked as Tony Jones in his statement from Joanne Howe stated he only checked the locker rooms, If I were outside there was CCTV and there was a standing reception person they could find out from him if were outside. If Tony Jones would check 100% found me there.

125. I have not had such behaviour and did follow all the company orders. As I said in court I believe that one day Joanne Howe gathered us and told us we don't have to stay outside of work on top of the I already knew the rule. As a Keith Career appeared in the court as a respondent witness he twisted a lot of story on dismissal of my case. This is the same person he claimed that he found me in locker room with another person he did not found if he was found me I would be dismissed or warned for this behaviour as it was a gross misconduct. They just added to my dismissal as supporting document for the dismissal. # The tribunal should consider that Craig Dixon did towards us in our working days and said " if you want to take this higher you will be in big trouble " # Most of the comparators were found many times as outside work as it was gross misconduct but they got warned and back to their work. # The respondent accepted that 20 minutes were okay to take but in the other hand they claimed accused me and dismissed me for taking 32 minutes. Would be that fair. # The two sisters were part of the weekend hygiene team they had to be in the production not outside to clean shelters as there is one person to do that job but they used to make us fired. No one is allowed to work anywhere before we do our weekend plan.

[6]The grounds as set out are simply an attempt to relitigate the hearing. Further some of the grounds, such as that pertaining to Craig Dixon were not argued at the remedy hearing and refer back to the liability hearing. The incident involving Mr Dixon was pursued by Mr Kahsay, claimant 1 as a freestanding complaint, but no such claim was made by this claimant about this incident and he not did he raise or the matters about comparators at the remedy hearing.

[7]In Stevenson v Golden Wonder Ltd

1977 IRLR 474

, EAT, Lord McDonald said of the old review provisions that they were ‘not intended to provide parties with the opportunity of a rehearing at which the same evidence can be rehearsed with different emphasis, or further evidence adduced which was available before’.

[8]In order to pursue a reconsideration a party must set out why ‘it is necessary in the interests of justice to do so.’ The claimant has not identified any information or grounds which have not previously been argued. Nor has the claimant identified any ground which would amount to the ‘interest of justice’ e.g. new evidence has become.

[9]Having considered the grounds, the application is refused as having no reasonable prospects of success.