Mr B Russ v Custom Insulation Services Ltd: 2602088/2017

EMPLOYMENT TRIBUNALS

Case No 2602088/2017

Between

Mr B RussClaimant

Custom Insulation Services LtdRespondent

Before

Employment Judge Hutchinson

Date 11 November 2019

JUDGMENT

[1]I am satisfied that I have jurisdiction to hear all the claims of direct race discrimination.

[2]I am not satisfied that the Claimant’s claims of discrimination have no reasonable prospect of success and they should be allowed to proceed subject to the deposit order.

[3]I am satisfied that the allegations referred to in the attached deposit order have little reasonable prospect of success and the Claimant is ordered to pay a deposit in respect of each of those allegations in the sum of £200.

[4]I allow the Claimant to amend his claim to add a claim of unfair dismissal and a claim of victimisation in respect of that dismissal.

REASONS

The Claim

[1]The Claimant presented his claim to the Tribunal on 6 December 2017. At that time, he was still employed by the Respondents as a general operative and had been so employed since 27 January 2014.

[2]He said that he had suffered race discrimination and attached to the claim was a letter dated 4 December 2017 in which he tried to set out his complaints of discrimination which dated back to 6 January 2016. Page 1 of 12

[3]The claim was accepted and served on the Respondent on 22 January 2018. The case was listed at that stage for a hearing on 7, 8 and 9 January 2019 with a case management telephone hearing set for 23 March 2018.

[4]The Claimant was dismissed from his employment for alleged gross misconduct on 11 January 2018. This was referred to in the response filed by the Respondents on 16 February 2018.

[5]Prior to the case management hearing the Claimant provided an agenda in which he said that he wished to apply to amend the claim to add a claim of unfair dismissal.

[6]The hearing on 23 March 2018 could not take place because of a lack of judicial resources and the hearing was rearranged for 11 June 2018.

[7]At that hearing Employment Judge Camp did not have before him the previous agenda. He referred to the dismissal of the Claimant and pointed out to the Claimant that if he wished to pursue a claim of unfair dismissal his claim may be out of time.

[8]He ordered the Claimant to provide further particulars of his claim and listed the matter for a further case management Preliminary Hearing which took place on 3 August 2018.

[9]At that Preliminary Hearing he set the agenda for today’s hearing to deal with the following preliminary issues: -9.1 Given the dates of early conciliation (18 April to 24 May 2017) and the date the claim form was presented (6 December 2017) is the Tribunal prevented by Section 18A of the Employment Tribunals Act 1996 (“Section 18A”) from considering the Claimant’s existing complaints (ie those that are made in the claim form) that concern matters arising after 24 May 2017 and if so should those complaints therefore be dismissed? This is the “early conciliation issue”.

9.2 Were all of the Claimant’s existing complaints presented within the time limit set out in Sections 123(1)(a) and (b) of the Equality Act 2010 (“EQA”)? Dealing with this issue may involve considering subsidiary issues including: -9.2.1 Whether there was conduct extending over a period?

9.2.2 Whether time should be extended on a “just and equitable” basis? This is the “time limits issue”. It may also be relevant to preliminary issues

9.2.3 and

9.2.4 below. Time limits more generally will be relevant to issue

9.2.5 below; 9.2.3 Whether any part of the Claimant’s claim has no reasonable prospects of success and if so whether pursuant to Rule 37, all or any part of the claim should be struck out (“this strike out issue”); Page 2 of 12 9.2.4 Whether any specific allegation or argument forming part of the Claimant’s claim has little reasonable prospect of success and if so whether pursuant to Rule 39, the Claimant should be ordered to pay a deposit (and if so how much) as a condition of continuing to advance any such specific allegation or argument (“deposit issue”); 9.2.5 Whether the Claimant should be permitted to amend his claim to add the following complaints: -9.2.5.1 Unfair dismissal under section 94 Employment Rights Act 1996.

9.2.5.2 An allegation that he was victimised under the EQA by being dismissed, relying on the presentation of his claim as the relevant protected act. This is “the amendment issue”. It is possible that when deciding this issue, the prospects of the Claimant successfully persuading the Tribunal at any hearing that he was dismissed because he presented this claim will be taken into account.

[10]Employment Judge Camp ordered that the Claimant should be accompanied by an interpreter which was provided by the Court at the hearing today. The Hearing Today

[11]At the hearing today, the Claimant was assisted by the Court interpreter. He gave evidence and there was an agreed bundle of documents. Where I refer to page numbers it is from that bundle. Mr Gidney, Counsel for the Respondent had helpfully provided me with submissions prior to the hearing which included a chronology of events.

[12]At the commencement of the hearing Mr Gidney confirmed that he did not wish to pursue the first issue set by Employment Judge Camp regarding whether the Tribunal was prevented by Section 18 of the Employment Tribunal Act 1996 from considering the Claimant’s complaints about matters occurring after 24 May 2017.

[13]At the hearing I was also supplied with the agenda provided by the Claimant in respect of the case management Preliminary Hearing which did not take place on 23 March 2018.

[14]I deal with each of the matters in the order set out in the agenda for the hearing by Employment Judge Camp. Out of Time Issues

[15]Mr Gidney had helpfully provided me with a chronology which itself was the chronology used by Employment Judge Camp in his case management order of 3 August 2018: - Page 3 of 12 Date Event Page 03.17 Race discrimination allegation 1: Claimant given less 15 profitable work by Bob Smith. 18.04.17 Claimant notifies ACAS of a dispute with the Respondent 2 26.04.17 Race discrimination allegation 3: Paul Baker told the 16, Claimant that the Respondent wanted to get rid of him. 76 16.05.17 Race discrimination allegation 4: Paul Baker walked 16, around the warehouse asking people to put a complaint in 76 against the Claimant. 24.05.17 Claimant issued with an ACAS Early Conciliation certificate. 2 06.06.17 Race discrimination allegation 6i: Interview notes of 51, Richard Holden either lost or not taken in the grievance 76 process. 09.06.17 Race discrimination allegation 5: Paul Baker turned up two 17, radiators in an area that the Claimant and another Polish 76 employee were working. Undated Race discrimination allegation 6iii: Grievance witnesses 77 not interviewed. 07.09.17 Earliest date any act of race discrimination can be in 53 time. 29.09.17 Race discrimination allegation 6ii: Grievance process 76 deliberately drawn out. 18.10.17 Race discrimination allegation 6iv: Grievance dismissed. 52 17.11.17 Race discrimination allegation 6v: Grievance appeal 77 dismissed. 06.12.17 Claimant’s Claim Form (relied on as a protected act). 3-35, 11.01.18 Race Victimisation allegation (subject to amendment 96- application): Claimant’s summarily dismissed for gross 97,77 misconduct. Unfair dismissal allegation (subject to amendment application): Claimant’s summarily dismissed for gross misconduct. 10.04.18 Earliest date any act of unfair dismissal or race - victimisation can be in time. 07.01.19 Preliminary Hearing (Claimant’s application to amend his ET1.

[16]The only complaints of race discrimination that were in time were those allegations 6ii, 6iv, and 6v. The other allegations that the Claimant intended to proceed with namely allegations 1, 3, 4, 5 and 6 were all presented out of time.

[17]The relevant legislation is Section 123 of the Equality Act 2010 which provides: “(1) … Proceedings on a complaint within Section 120 may not be brought after the end of: -(a) the period of 3 months starting with the date of the act to which the complaint relates, or

(b) such other period as the Employment Tribunal thinks just and equitable. Page 4 of 12 (3) For the purposes of this section: (a) conduct extending over a period is to be treated as done at the end of the period.”

[18]In his submissions Mr Gidney referred me to the cases of: -• Robertson v Bexley Community Centre

[2003] IRLR 434

• British Coal Corporation v Keeble

[1997] IRLR 336

[19]Mr Gidney accepted that most of the race claims related to the grievance process (numbers Cii, Civ and Cv) and are in time. He acknowledged that whilst claims numbered 6i and 6iii are out of time the allegations related to the same grievance process. I am satisfied that this is part of the same single act of discrimination and that it should be treated as occurring at the end of the grievance process and therefore all the allegations relating to the grievance process are therefore in time.

[20]Allegations 1, 3, 4 and 5, I agree are separate incidents and cannot fairly be described as part of the same single act as the determination of the Claimant’s grievance. As Mr Gidney says they have been raised out of time and are late between a period of 3 months and 6 months.

[21]Mr Gidney says that these can only proceed if I conclude that an extension of time should be allowed on just and equitable grounds. The burden is on the Claimant to satisfy me that it would be just and equitable to extend the time and the exercise of the discretion is the exception rather than the rule.

[22]The factors that I need to take into account are: -22.1 the length and reasons for the delay.

22.2 The extent to which the cogency of evidence is affected.

22.3 The extent to which the Respondent has cooperated with the request for information.

22.4 The promptness of the Claimant once he knew of the facts giving rise to the cause of action.

22.5 The steps taken by the Claimant to obtain appropriate advice when he knew the possibility of taking action.

[23]I accept that the length of delay is substantial for Tribunal hearings. As referred to above it is for a period of between 3 and 6 months. The reason for the delay I am satisfied was that he was going through the company grievance process which took a period of 3 months. Once the grievance process was complete he acted promptly and made his complaint to the Tribunal within a matter of a couple of weeks.

[24]There will be some difficulties with the cogency of the evidence particularly as some of these matters now relate to incidents that took place 2 years ago. Mr Gidney pointed out that Mr Bob Smith against whom the oldest allegation had been made has died and the Respondent will not be able to produce any Page 5 of 12 evidence from him. On the other hand, although the complaints that the Claimant makes are not fresh matters these were raised in his grievance and documentary evidence was obtained at the time in respect of the grievance including witness statements. These are documents that will be available to the Tribunal. From the documents I have seen the claims appear to be investigated thoroughly and so cogency of evidence will not be such a problem as it might be.

[25]There is no evidence that the Respondents have failed to cooperate with requests for information.

[26]I am satisfied that the Claimant was right to go through the internal process including appeal before he submitted his claim to the Tribunal. He remained an employee with the organisation and it was quite understandable for him to try to resolve the matters internally before he made his application.

[27]As I have outlined above the Claimant acted promptly once he knew of the facts giving rise to his cause of action i.e. that his grievance had not been upheld.

[28]In deciding whether it is just and equitable to extend the time I take into account that the Claimant did not have legal advice available to him and could not afford it and that there were also difficulties with him as a Polish citizen understanding the employment laws as they apply to England and Wales.

[29]If I did not grant the “just and equitable” extension of time many of his claims of race discrimination could not be heard and this would cause considerable prejudice to the Claimant.

[30]In all the circumstances weighing up the balance of prejudice I am satisfied that it would be just and equitable to extend the time limit in respect of his original claims of race discrimination and that I do have jurisdiction to hear the claims. The Strike Out Issue

[31]The relevant statutory provision is Rule 37 of the Employment Tribunal Rules of Procedure 2013 which provide: “(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds: -(a) that it is scandalous or vexatious or has no reasonable prospect of success.

(b) that the manner in which the proceedings have been conducted by or on behalf of the Claimant or the Respondent (as the case may be) has been scandalous, unreasonable or vexatious.

(d) that it has not been actively pursued.

(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of a claim or response (or the part to be struck out). Page 6 of 12

[32]The contention made by Mr Gidney is that the strike out issue should be considered on: -(i) the time issues and;

(ii) the contention that there are no facts relied on from which the Tribunal could properly conclude that the reason for any unfavourable treatment was the Claimant’s race.

[33]Mr Gidney referred me to the following cases: -• Tayside Public Transport Co Limited (t/a Travel Dundee) v Reilly

[2012] IRLR 755

• North Glamorgan NHS Trust v Ezsias

[2007] IRLR 603

• Ukegheson v London Borough of Haringay

[2015] ICR 1285

• Anyanwu v South Bank Students Union

[2001] IRLR 305

• Jaffrey v Department of Environment Transport and Regions

[2002] IRLR 688

• Chandhok v Tirkey

[2015] IRLR 195

[34]Mr Gidney acknowledges that: -34.1 The power should only be exercised in rare circumstances.

34.2 Cases should not be struck out on this ground when the central facts are in dispute.

34.3 The correct approach is to take the Claimant’s case at its highest, as it is set out in the claim, unless contradicted by plainly inconsistent documents.

34.4 As a general principle discrimination cases should not be struck out except in the very clearest circumstances.

34.5 That said the above guidance is not to be taken as amounting to a fetter on the Tribunal’s discretion.

34.6 Whilst striking out discrimination claims are rare, where there is a time bar to jurisdiction, or where there is no more than an assertion of difference of treatment and a difference of protected characteristic, strike out may well be appropriate.

[35]In this case I am satisfied that: -35.1 The allegations are very serious.

35.2 The central facts of the case are in dispute.

35.3 At its highest the case could amount to less favourable treatment because of the Claimant’s race.

35.4 I am satisfied that there is not in this case a mere assertion.

35.5 It would not be appropriate for me to strike out the case even Page 7 of 12 though I am satisfied that it is a weak case. Deposit Order

[36]The relevant provision is Rule 39 of the Employment Tribunal Rules of Procedure 2013. That states: “(1) Where at a Preliminary Hearing the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. (3) The Tribunal reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order. (4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. Where a response is struck out, the consequences shall be as if no response had been presented as set out in Rule 21. (5) If the Tribunal at any stage following the making of a deposit order decides a specific allegation or argument against the paying party for substantially the same reasons given in the deposit order: -(a) The paying party shall be treated as having acted unreasonably pursuing that specific allegation or argument for the purpose of Rule 76 unless the contrary is shown and;

(b) The deposit shall be paid to the other party or if there is more than one to each other party (or the parties as the Tribunal orders), otherwise the deposit shall be refunded. (6) If a deposit has been paid to a party under paragraph (5)(b) and a costs or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order.”

[37]Mr Gidney referred me to a number of cases and in particular: -• Hemdan v Ishmail

[2017] IRLR 228

• Van Rensburg v Royal Borough of Kingston Upon Thames [2007] UK

EAT/0095/07

• Wright v Nipponkoa Insurance (Europe) Limited [2014] UK

EAT/0113/14

[38]As Mr Gidney described the principles for me to consider are:-38.1 Identify claims with little prospect of success and to discourage their pursuit by requiring a sum to be paid and risk of costs if the claim fails. Page 8 of 12

38.2 I am not restricted to considering purely legal issues but entitled to have regard to the likelihood of the party being able to establish the facts essential to the case. I can reach a provisional view as to the credibility of the assertions being put forward.

38.3 It is important that I engage and understand the basis of the Claimant’s claims before making any such conclusion.

38.4 I must take a proportionate view of the totality of deposit orders made and reach a conclusion that is open to me on the exercise of my discretion. It is important that the order is one that is capable of being complied with and that a party without the means or ability to pay should not be ordered to pay a sum that he or she is unlikely to be able to raise.

[39]The Claimant’s financial circumstances are that he has been in full time employment since 3 December 2018 having spent a period of about 3 months of unemployment prior to that. He now has net earnings of £1,600 per month and has £800 in savings in his bank account. He does not have any other savings. He pays the following outgoings namely: -• Rent £360 per month

• Car insurance £60 per month

• Petrol £200 per month

[40]He is a married man and his wife works and earns £800 per month and they have a daughter who is 8 years old. Childcare costs them £320 per month.

[41]I am satisfied that all his allegations have little prospect of success. In particular: -41.1 That he was given less profitable work by Mr Bob Smith.

41.2 That Paul Baker told him that the Respondent wanted to get rid of him.

41.3 That Paul Baker walked around the warehouse asking people to put a complaint in against him.

41.4 That Paul Baker turned up 2 radiators in an area that the Claimant and another Polish employee were working.

41.5 The manner in which the grievance was dealt with.

41.6 His claim that he was unfairly dismissed.

41.7 That his dismissal amounted to an act of victimisation.

[42]In respect of his complaints of race discrimination he relies on himself being of Polish national origin and/or not of British national origin. It is agreed by the parties that an offensive remark was made to the claimant in January 2016 and that when he made a complaint about it in the form of the grievance it was upheld. He does not make a complaint to the tribunal about that remark although he believes it to be relevant as a matter of background to his claim. Page 9 of 12

[43]Most of the complaints relate directly or indirectly to a manager Paul Baker. He says that the reason for his treatment was his national origin and he relies solely on the fact that there was no good reason for it and that it was unfair. He can’t think of any reason for this to be done other than his national origin. He also alleges that he could see it on people’s faces that he was being mistreated because he’s from Poland. The burden of proof is on the claimant to establish a prima facie case the reason for his treatment was because he was Polish. I am satisfied that for this reason the claims of discrimination are weak and the allegations and arguments have little reasonable prospects of success.

[44]I am also satisfied that his claims of unfair dismissal and victimisation have little reasonable prospect of success. It is said by the Respondents that the Claimant was dismissed for gross misconduct. The Claimant accepts that he had done something wrong along the lines of what he was dismissed for, but he alleges that it was not gross misconduct and that it any event he would not have been dismissed for it at had he not previously brought his tribunal claim. I am satisfied that his allegation that the dismissal was motivated by the tribunal claim is unlikely to succeed. His unfair dismissal claim has similar issues because he accepts having committed some form of misconduct and if the respondent can establish that was the reason for his dismissal the tribunal only has to be satisfied that dismissal fell within the band of reasonable response. That claim also has little reasonable prospect of success.

[45]I am satisfied that the Claimant should make a deposit of £200 in respect of each of these seven allegations listed above making a total of £1,400.

[46]I warned the Claimant that the consequences are that if he is not successful with these claims that the Tribunal will be obliged to consider making an order of costs against him. No doubt the Respondents will inform the Claimant of the likely cost that could be incurred and he could be liable for but they are and will be considerable. I invited him to consider carefully whether he wished to proceed with his claim. Amendment of Claim

[47]This relates only to the claims of unfair dismissal and victimisation. The unfair dismissal claims arose after he had submitted his original claim to the Tribunal. The victimisation claim relates to a protected act namely the filing of the Employment Tribunal claims which he says was a significant factor in his dismissal. He says that his dismissal was unfair in accordance with the provisions of Section 94 of the Employment Rights Act 1996.

[48]Mr Gidney referred me to the cases of: -• Prakash v Wolverhampton City Council [2006] UK

EAT/0140/06

• Selkent Bus Company Limited v Moore

[1996] IRLR 661

[49]As Mr Gidney pointed out to me the principles to be applied are as follows: -49.1 I must take into account all the circumstances and balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.

49.2 I should consider the nature of the amendment application itself and Page 10 of 12 whether it is minor or substantial.

49.3 I must have regard to the relevant time limits, if the new claim is out of time, to consider whether time should be extended under the appropriate statutory provision.

49.4 I must have regard to the timing and manner of the application.

49.5 The paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment.

49.6 Different types of discrimination claims are different claims and amendments to plead new discrimination claims are likely to be refused on the grounds that they seek to introduce entirely new claims.

49.7 In determining a new cause of action the focus is not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of enquiry than the old.

49.8 Where a new claim is permitted by way of amendment it takes effect from the date on which permission to amend was given and does not “relate back” to the date when the original claim was presented.

49.9 One of the factors that may be taken into account when determining amendment is an assessment of the merits of the new claim.

[50]I accept that the claim of unfair dismissal and victimisation relating to that dismissal are entirely new claims and in no way amount to a clarification of previous claims.

[51]I am satisfied that if the Claimant is not able to rely on these matters there will be hardship to him if he is limited to his other claims of race discrimination.

[52]The amendments are substantial and the time limit for presentation of both the claims was 11 April 2018.

[53]I take into account that the Claimant was unrepresented at the time of making his claim and throughout these proceedings. He had indicated in his agenda for the case management Preliminary Hearing on 23 March 2018 that had to be “pulled” because of a lack of judicial resources that he wished to amend his claim to add a claim of unfair dismissal and victimisation. If that hearing had gone ahead I have no doubt that he would have made the application at the hearing and the Employment Judge would have granted the application.

[54]I agree that victimisation is a very different type of claim to race discrimination but I am satisfied that it would be appropriate to allow the Claimant to amend his claim to add these allegations.

[55]I note the contention made by the Respondents that the act of misconduct i.e. refusing a management instruction to work in the spray booth was admitted by the Claimant. I have dealt with this in the issuing of a deposit order because it may be difficult for him to establish that dismissal was not within the band of reasonable responses. That is different from saying that the claim has no reasonable prospects of success and therefore not allowing the claim to go Page 11 of 12 forward. Not all acts of refusal of management instructions amount to gross misconduct. The Tribunal will need to consider the circumstances if the Claimant does decide to proceed with the claim and pay his deposit.

[56]I acknowledge that the claims of unfair dismissal and victimisation are weak but they are not weak enough for me to not allow him to amend his claim and proceed and I am satisfied that it would be appropriate to allow the amendments in the circumstances of this case.

[1]The Respondent is a company based in Burton-upon-Trent that provides insulation services to business. It employed the Claimant as a General Operative from February 2014 until his dismissal on 11 January 2018. He presented his claim form on 6 December 2017 after a period of early conciliation from 18 April 2017 to 24 May 2017.

[2]As it was not clear precisely what claims the Claimant was bringing in his claim form, at a preliminary telephone hearing on 11 June 2018, Employment Judge Camp ordered the Claimant to give further details of his claims to be discussed at an in-person Preliminary Hearing on 3 August 2018. The Claimant confirmed that his complaints were of direct race discrimination relying on him being of Polish national origin and not of British national origin. He also wished to pursue alternative claims of racial harassment.

[3]In summary the Claimant complained of a number of incidents of direct Page 1 of 12 discrimination and/or harassment which are:-3.1 In 2017 to April/May 2017 piece work was taken off him by his then team leader, Bob Smith, and given to a colleague.

3.2 A manager called Paul Baker twice told him in April 2018 that the Respondent wanted to get rid of him.

3.3 On 16 May 2017 Paul Baker walked around the Respondent’s factory trying to persuade people to complain about the Claimant.

3.4 On 8 and 9 June 2017 Paul Baker refused to disconnect radiators close to where the Claimant was working resulting in him having to work in an unsafe, hot environment.

3.5 The Claimant’s grievance raised in May 2017 resulted in him being lied to about a recording of one of the witness interviews being lost, the length of time the investigation took, failure to interview relevant witnesses, the outcome of the grievance that it was not upheld and failure to uphold the grievance on appeal.

[4]At this Preliminary Hearing the Claimant applied to amend his claims to include unfair dismissal and victimisation. The detriment claimed by the Claimant was his dismissal and the protected act relied upon was the submission of his claim to the Tribunal.

[5]There was then a further Preliminary Hearing in person before Employment Judge Hutchinson on 7 January 2019. This hearing was listed to consider the Claimant’s application to amend his claim form and whether any of his claims should be struck out or he should be ordered to pay a deposit as a condition of continuing to pursue them.

[6]Employment Judge Hutchinson allowed the application to amend the claim to include unfair dismissal and victimisation but, in relation to the five alleged incidents of race discrimination, considered they had little prospect of success and ordered the Claimant to pay a deposit of £200 in respect of each individual allegation. Further, he considered the claims of unfair dismissal and victimisation to have little prospect of success and ordered a deposit to be paid by the Claimant in the sum of £200 for each claim. There was thus a total deposit ordered of £1,400 and Employment Judge Hutchinson advised the Claimant that his claims appeared to be weak and there might be costs implications if he pursued them.

[7]The Claimant decided to pay the deposits in respect of the unfair dismissal and victimisation claims but did not pursue the race discrimination/harassment claims. Thus, when the claims came before the Tribunal for this substantive hearing the only claims to be considered were those of unfair dismissal and victimisation. Page 2 of 12

[8]The Respondent defended the claims arguing that the Claimant’s dismissal for gross misconduct had been fair and there had been no victimisation.

The Issues

[9]The issues to be decided by the Tribunal are:-9.1 What was the reason for the Claimant’s dismissal?

9.2 Was it a potentially fair reason for the purposes of Section 98(2) Employment Rights Act 1996 (ERA)?

9.3 Whether the Respondent acted reasonably or unreasonably in treating the reason for the dismissal as a sufficient reason for dismissing the Claimant?

9.4 Whether for the purposes of Section 27 Equality Act 2010 (EQA) the Claimant had done a protected act which the Respondent believed he had done and in so doing whether the Respondent subjected the Claimant to a detriment?

The Law

[10]Section 98(1) ERA provides: “In determining for the purposes of this Part 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 either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it: (a) Relates to the capability or qualifications of the employee performing work of the kind which he was employed by the employer to do; (b) relates to the conduct of the employee;

(d) is 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 employee has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is unfair or unfair (having regard to the reasons shown by the employer): Page 3 of 12 (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 sufficient reason for dismissing the employee, and; (b) shall be determined in accordance with equity and the substantial merits of the case.”

[11]In British Home Stores Limited v Burchell

[1980] ICR 303

, EAT the Court set out a test to the effect that the employer must show:(i) It believed the employee was guilty of misconduct;

(ii) It had in mind reasonable grounds upon which to sustain that belief;

(iii) At the stage at which that belief was formed on those grounds, it had carried out as much investigation into the matter as was reasonable in the circumstances.

[12]That test has been amended in further decisions of the Court of Appeal to include that the decision to dismiss must have fallen within the range of responses of a reasonable employer.

[13]Section 27 EQA provides:(1) A person (A) victimises another person (B) if A subjects B to a detriment because:- (a) B does a protected act, or; (b) A believes that B has done, or may do a protected act.

(2) Each of the following is a protected act: (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made in bad faith.

(4) This section applies only where the person subjected to a detriment is an individual.

(5) The reference to contravening this Act include a reference to Page 4 of 12 committing a breach of an equality clause or rule.

The Evidence

[14]We heard evidence from the Claimant and for the Respondent from Mr Richard Holden, team leader (stores and transport department), Mrs Karen Kirby, the Respondent’s external HR Consultant and Mr Mitchell Tiisler, Technical Manager. There was an agreed bundle of documents running to 389 pages and references to page numbers in this judgment are to page numbers in the bundle. The witnesses produced witness statements, although they do not appear to have been exchanged until the morning of the first day of the hearing, and they gave oral evidence including cross examination.

The Factual Background

[15]Although the issues in this case are relatively narrow, the Claimant wished to refer to incidents which led him to raise two historical grievances and, eventually, his complaint to the Tribunal.

[16]English is the Claimant’s second language. Accordingly, he struggled to explain himself and understand the legal principles involved in his claims. For this reason, an interpreter, Mrs M Johnson, was appointed and attended throughout the hearing. The Tribunal is grateful for her assistance in this matter.

[17]At the commencement of the hearing, the Employment Judge spent around twenty minutes explaining the procedure to be adopted during the hearing and the legal principles involved in determining the Claimant’s claims. The Claimant was asked if he understood what the Employment Judge had said and he confirmed he had.

[18]The Claimant’s view was that the treatment he received from the Respondent and its employees showed a course of conduct towards him that illustrated the Respondent was “out to get him”.

[19]Briefly, the Claimant said that one of the Respondent’s employees, the team leader, Bruce Gordon, said to the Claimant on 6 January 2016 “I have nothing against a foreigner, but fuck off out of my sight”. In the light of this comment, the Claimant submitted a grievance on 12 January 2016 and then alleged that Paul Baker asked him whether he really wanted to proceed with his complaint as nothing would ever be the same again between the Claimant and his colleagues. On 20 May 2016 the Respondent informed the Claimant that his grievance had been upheld.

[20]In March 2017 the Claimant alleges that he was given less profitable piece work by Bob Smith and the more profitable work was given to his colleague, Kevin Damant, who was paid more than the Claimant. Again, in March 2017 the Claimant alleges that Paul Baker told him that if he did not like being taken off well paid jobs by Bob Smith he knew where the door was and they would give the job to someone else.

[21]On 18 April 2017 the Claimant notified ACAS of a dispute with the Respondent. On 27 April 2017 the Claimant alleges that Paul Baker met with the Claimant and told him the Respondent wanted to get rid of him. Page 5 of 12

[22]On 4 May 2017 having been contacted by ACAS, Mr Rick Plews met the Claimant to ask for details of his complaints in order that he could understand and investigate them. On 16 May 2017 the Claimant alleges that Paul Baker walked around the warehouse asking employees to put in a complaint about the Claimant. On 18 May 2017 the Claimant attended a meeting with Mr Plews at which he was informed that seven bullying and harassment complaints had been made against him by other employees.

[23]On 24 May 2017 the Claimant was issued with an ACAS early conciliation certificate. On 30 May 2017 he issued five grievances against individual employees claiming, inter alia, harassment, victimisation, race discrimination and sexual harassment. On 6 June 2017 there was a meeting between the Claimant, Mr Plews and Mr Tiisler setting out how Mr Tiisler would investigate the grievances and an investigatory meeting with Mr Tiisler and the Claimant was held on 15 June 2017. Mr Tiisler then investigated the Claimant’s grievances which were all based on race discrimination, and he interviewed all of the relevant individuals. His investigation report was completed on 18 September 2017 and Mrs Kirby was engaged to review the investigation and was advised by her of the outcome in person on 18 October 2017. Upon learning that his grievance had not been upheld, the Claimant walked out of the meeting without waiting to hear all of Mrs Kirby’s conclusions. The Claimant appealed that outcome on 25 October 2017 to Mr Plews. His appeal was dismissed on 17 November 2017.

[24]Throughout all of the various meetings involving the Claimant he had either covertly or openly recorded those meetings.

[25]The Claimant submitted his claim form alleging direct race discrimination including harassment and a claim for unpaid wages. The unpaid wages claim seems to relate to the Claimant’s allegation that he was paid less than Mr Damant although the analysis of their wages at page 139 shows that allegation to be unfounded.

[26]On 4 January 2018 the Claimant was asked by Rachel Szita to work in the spray booth. He refused but Ms Szita noticed he was recording their conversation. She left the Claimant and went to tell Mr Baker what had happened. Mr Baker instructed her to ask the Claimant again as he was needed in the spray booth to do work he was qualified to do in order to satisfy customer orders. The Claimant again refused and was asked to go to Mr Baker’s office. Once there, Mr Baker again asked him if he would work in the spray booth but the Claimant maintained his refusal. Mr Baker suspended the Claimant.

[27]Statements were taken from Ms Szita and Mr Baker and the Claimant was invited to a disciplinary hearing on 8 January 2018 which was conducted by Mr Tiisler with Mrs Kirby supporting him. Throughout the disciplinary hearing, the Claimant confirmed he had refused work in the spray booth, offered no apology for his conduct and showed no remorse. His argument seems to have been that another colleague told him the day before he was asked to work in the spray booth that he would not have to do that work on the following day and it deprived him of the opportunity of undertaking more lucrative work. Page 6 of 12 Mr Tiisler made the decision to summarily dismiss the Claimant for gross misconduct for refusing to follow a reasonable management instruction. In reaching that decision, he did bear in mind that the Claimant offered no excuse or apology for his refusal. The Claimant’s dismissal was confirmed in writing (page 347) and he was advised of his right of appeal which he elected not to pursue.

[28]On 22 January 2018, the Tribunal sent the Claimant’s claim form to the Respondent (page 32). It was received by the Respondent on 31 January 2018 (page 32).

[29]It was the Claimant’s evidence that he did not refer to his claim form throughout the disciplinary process and had assumed that the Respondent had received it prior to the disciplinary hearing and took it into account in reaching the decision to dismiss him.

The Facts

[30]Many of the facts in relation to this matter, and particularly how the Claimant’s grievances were dealt with and the disciplinary procedure which was followed, are not in dispute. Indeed, in the light of the comprehensive documentation in the bundle, any attempt to discredit those facts would be futile. What is in dispute, however, from the Claimant’s perspective is that the Respondent’s motivation behind everything it did was to force him out of his job because of his ethnic origin. This conspiracy theory permeated the whole of the Claimant’s case.

[31]Throughout the hearing, the Claimant consistently confirmed he had refused to work in the spray booth on 4 January 2018. He was, however, a General Operative which meant he could be instructed to work in any of the Respondent’s production processes for which he had been trained. This included spraying which did not attract a higher rate of pay for the Claimant since it was not piece work. At page 96, the Claimant’s contract of employment states: “2.2 Your duties are set out in the attached job description. In addition to the duties which this job normally entails, you may from time to time be required to undertake additional or alternative tasks or other duties as we may from time to time reasonably require, including but not limited to the commencement of piece rate work and/or the discontinuance of piece rate work as the company may determine from time to time in its sole and absolute discretion. 2.3 You are required at all times to comply with the company’s rules, policies and procedures in force from time to time.”

[32]The Claimant also alleged that he was paid less than Mr Damant which seems to have been part of his justification for refusing to work in the spray booth which was work he says Mr Damant could do thereby allowing the Claimant to undertake more lucrative piece work. He said Mr Damant was paid more than him. The comparison at page 139 shows this not to be the case. Page 7 of 12 We spent some time discussing this comparison in the hearing but the Claimant was seemingly unable to comprehend the concept of the financial year as opposed to the calendar year. Further, he claimed to be better qualified than Mr Damant which, again, proved not to be the case. During an adjournment in the disciplinary hearing, Mr Tiisler investigated these matters and found that the Claimant’s allegations were unsubstantiated.

[33]Throughout the hearing, we made allowances for the fact that the Claimant’s English language skills were limited in comparison to the other witnesses. In this regard, and whilst explaining procedure to the Claimant, the Employment Judge spent some time explaining how cross examinations should be conducted. Despite this explanation, the Claimant continued to use cross examination as a way of giving his evidence and had to be reminded by the Employment Judge on several occasions that cross examination was an opportunity to ask questions and not give evidence.

[34]When the Claimant said he had concluded his cross examination of Mr Tiisler he had not asked any questions at all relating to his dismissal. All he concentrated on was his allegations of race discrimination. He was asked by the Employment Judge if he wanted to ask any questions about his dismissal and he thanked the Employment Judge for reminding him and then only asked one question.

[35]The Claimant seemed to give no credit to the fact that the Respondent had investigated his first grievance against Mr Gordon and, indeed upheld it as a result of which Mr Gordon was disciplined (pages 140 to 141a-g).

[36]The Claimant’s grievances against five of his colleagues on 30 May 2017 (pages 174-178) were investigated thoroughly by Mr Tiisler. He met with the Claimant to explain his terms of reference and the procedure to be adopted. The Claimant raised no objection. A recording of Mr Tiisler’s interview with Mr Holden malfunctioned so there was no recording available and Mr Tiisler’s notes had to be relied upon. The Claimant sees this as deliberate action by the Respondent in attempting to frustrate his grievances. The investigation carried out by Mr Tiisler was very comprehensive (pages 194-200). The Claimant had covertly recorded some meetings and openly recorded others. The Respondent raised no objection to this but we formed the view that the Claimant did this in an attempt to support his allegations. In our view, the recordings added nothing to his case and only evidenced the thorough and reasonable approach to investigating the grievances taken by Mr Tiisler. Further, Mrs Kirby, who runs her own HR company, was engaged by the Respondent and scrutinised Mr Tiisler’s investigation as the Respondent is a relatively small company with no in-house HR capacity.

[37]The Respondent is a relatively small company manufacturing insulation products for its customers. This involves a number of processes including the storage of raw materials, cutting them, pressing and spraying them before they are distributed to customers. The General Operatives engaged by the Respondent are trained to undertake work in many of the Respondent’s departments. There is a management structure involving team leaders and supervisors who were responsible for allocating work. The Claimant, unjustifiably in our view, in January 2018 considered that he was the one who would decide which work he undertook regardless of any other reasonable instructions he was given. Page 8 of 12

[38]For the above reasons, we did not find the Claimant’s evidence to be credible as it could not be substantiated by his evidence, the evidence of the Respondent’s witnesses or the documents in the bundle. The most notable example, which is relevant to the Claimant’s victimisation claim, is his evidence that he simply assumed, without mentioning it himself, that the Respondent had received his claim form before his disciplinary hearing. To base a claim on an assumption like this and to continue with it when documents showing his assumption to be completely unfounded had been produced to him, shows the kind of weakness in the claim which permeates the whole of the Claimant’s case.

[39]In relation to the Respondent’s witnesses, their evidence was given in an open and straightforward way and fully supported by documents in the bundle. Submissions

[40]The Employment Judge explained at the commencement of the hearing to the Claimant the concept and meaning of submissions. His submissions were brief. He compared Mr Gordon’s sanction of a written warning in 2016 for telling him to “fuck off out of my sight” with his own refusal to follow a management instruction for which he was dismissed. He said he was mentally exhausted and could not say more but if the Tribunal believed all of the facts in his witness statement are lies he apologised for that.

[41]For the Respondent, Mr Gidney referred to the final paragraph of the Claimant’s own witness statement which confirmed his refusal to follow management instructions. He said it was clear that the Respondent takes race discrimination complaints seriously and properly investigates them. This was illustrated by ACAS contacting the Respondent in April 2017 with the Claimant’s race complaint as a result of which the Respondent immediately investigated the complaint and assured the Claimant he was not going to be dismissed. In relation to the unfair dismissal he submitted that the requirements of Burchell had been met. In respect of the reason for the dismissal, it was conduct. Further, it could not have been the fact that the Claimant had brought a claim because, at the time of the disciplinary hearing and dismissal, it had not received a claim.

[42]In relation to the £400 deposit paid by the Claimant, Mr Gidney indicated that, in the light of the comments of the Employment Judges at the Preliminary Hearings, the Claimant had continued with his claims at significant cost to the Respondent after having been advised they had little prospect of success. Accordingly, in the event the Claimant succeeded the Respondent now made an application for costs limited to the £400 deposit paid. The Employment Judge explained what this meant to the Claimant and asked for his response or any comments to the application. He had none. Procedural Note

[43]The Claimant was the last witness to give evidence. On the second day of the hearing, the Tribunal adjourned from 1:00 pm to 2:00 pm. At 2:00 pm as we were about to return to the Tribunal room, Mrs Hatcliffe received a call to indicate that her husband was ill and awaiting the arrival of paramedics and was being admitted to hospital. There were as it transpired, only ten minutes of further cross examination of the Claimant by Mr Gidney. Page 9 of 12 The Employment Judge explained what had happened to the parties and asked whether they were happy to continue without Mrs Hatcliffe and they both confirmed in the circumstances they had no objection. The submissions were also very brief and the Employment Judge was able to give Mrs Hatcliffe an opportunity to review his notes before judgment was given. The judgment is a unanimous one and, in the circumstances, both lay members approved it before it was sent to the parties.

Conclusions

[44]We firstly consider the claim of victimisation. The Claimant contends that he suffered the detriment of dismissal after doing the protected act of submitting a claim against the Respondent to the Tribunal. We are entirely satisfied that ,at the time of the disciplinary hearing, the claim form submitted to the Tribunal by the Claimant on 6 December 2017 (page 3) was not sent to the Respondent by the Tribunal until 22 January 2018 (page 32). We accept that the Claimant contacted ACAS in April 2017 and ACAS contacted the Respondent. The Claimant then took no further action, even after the issue of his Early Conciliation Certificate on 24 May 2017 (page 2) until he submitted his claim. There was no evidence before us that between May 2017 and the end of January 2018 anyone at the Respondent was aware that the Claimant intended to or had issued a claim. Given that the misconduct alleged took place on 4 January 2018 and the disciplinary hearing at which he was dismissed took place on 11 January 2018, the Respondent clearly did not know about the claim at the time of dismissal. Accordingly, the Claimant cannot sustain his claim of victimisation by suffering the detriment of dismissal as a result of doing a protected act.

[45]On the evidence, in relation to the Claimant’s dismissal, we find the only reason for that dismissal was misconduct. Since the Claimant at the time, throughout the disciplinary process and throughout this hearing, has consistently confirmed he refused to follow a reasonable management instruction, it is completely obvious to us that the Respondent held a genuine belief on reasonable grounds that the Claimant had committed that act of misconduct. The Respondent’s disciplinary procedure states (page 109) “any breach of the company’s regulations or any misconduct by an employee in the course of employment shall be regarded by the company as a disciplinary matter”. Further, (page 110) a relevant officer may “order the employee to be suspended without pay for such period as he shall think fit”. There is no evidence before us that the Claimant was suspended without pay. The disciplinary procedure also states (page 110) that the relevant officer may “dismiss the employee summarily if he considers the circumstances justify this course of action”.

[46]The Burchell test also provides that the genuine belief in the misconduct alleged must be sustained after a reasonable investigation. Two of the Respondent’s employees, Ms Szita and Mr Baker, asked the Claimant to work in the spray booth on 4 January 2018. In the management hierarchy at the Respondent, both of these people had the authority to instruct the Claimant as to where he should work. The only further investigation that could be carried out was to listen to what the Claimant had to say in the disciplinary hearing. Not only did Mr Tiisler do this but he adjourned to make further enquiries as to the salary comparison between the Claimant and Mr Damant and to look at their “passports” which showed the level of training they had achieved for each of the Respondent’s relevant production processes. Page 10 of 12 In both cases, Mr Tiisler found that the Claimant’s reasons for refusing to work in the spray booth were completely unfounded. Mr Tiisler also noted that the Claimant made no attempt to apologise for his refusal to work in the spray booth. Mr Tiisler’s evidence was that had the Claimant done so and perhaps said he had done it in the heat of the moment for whatever reason, a final written warning might have been appropriate. In the event, however, at no time throughout the disciplinary process did the Claimant attempt to apologise for his refusal or to justify it on grounds he could establish. It is a prominent factor in this case that the Claimant made assumptions as to his treatment compared to that given to Mr Damant without any basis, foundation or information for doing so.

[47]It follows that we find the belief in the Claimant’s misconduct was sustained by the Respondent after a reasonable investigation which included giving the Claimant an opportunity to justify his actions.

[48]This leaves us to decide whether the decision to dismiss fell within the range of responses of a reasonable employer. We find that it did. Mr Tiisler explained comprehensively why he chose to summarily dismiss the Claimant rather than give him a final written warning. There was no argument of inconsistency. He told us that never before had the Respondent been met with a point blank refusal by an employee to undertake work he or she had been requested to do. He was in unknown territory. He explained under what circumstances he would have given a lesser sanction. Those circumstances did not exist in the Claimant’s case. He also explained that this was important to the Respondent since the flexibility of the workforce and the General Operatives in particular was important to the production process.

[49]Accordingly, we find that the principles of Burchell as added to by later decisions being fully satisfied. Costs

[50]We have already noted that Mr Gidney indicated that he was applying for costs limited to £400 in the event that the Claimant was unsuccessful.

[51]Rule 76 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provides:- (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that: (b) any claim or response had no reasonable prospect of success.”

[52]The Claimant was advised in two Preliminary Hearings by two Employment Judges that his claims were weak. In making a deposit order against him, Employment Judge Hutchinson carefully explained to him that he was doing so because his claims of unfair dismissal and victimisation had little prospect of success. He further advised the Claimant that, if he pursued his claims in the light of the deposit order, there was the possibility that the Respondent would apply for a costs order against him. Page 11 of 12

[53]It was apparent to the Tribunal that the Claimant’s claims had, indeed, little prospect of success. The fact that there was no protected act giving rise to the detriment of dismissal was blatantly obvious. The Claimant had confirmed quite specifically that the protected act relied upon was the submission of his claim form to the Tribunal. It has been clearly established by the documents before us that the Respondent was completely unaware of the claim at the time of the Claimant’s dismissal. Thus the claim of victimisation had to fail.

[54]In relation to the unfair dismissal claim, the Claimant consistently confirmed his absolute refusal, on grounds we have found to be completely unfounded, to follow a reasonable instruction of management. It was his job in accordance with his contract of employment to undertake various tasks in a number of the Respondent’s department. This is clearly a case of a conduct dismissal and the Respondent’s reasons for applying the sanction of summary dismissal have been clearly explained and justified.

[55]In the circumstances, we award costs as claimed by the Respondent to be paid by the Claimant in the sum of £400.00 and the deposit paid by the Claimant shall be applied in satisfaction of that costs award.