Mr G Narasimha Sai Chandu Sharma Mahankali v World Shirdi Sai Baba Organisation UK (a charity): 3202407/2020
EMPLOYMENT TRIBUNALS
Case No 3202407/2020
Between
Mr G Narasimha Sai Chandu Sharma MahankaliClaimantWorld Shirdi Sai Baba Organisation UK (a charity)Respondent
Before
Employment Judge ReidNot represented for claimantMs McGhee (instructed by Counsel) for respondentDate 28 July 2022
JUDGMENT
[1]The Respondent’s application under Rule 37(1)(a) of the Tribunal Rules 2013 (no reasonable prospect of success) to strike out the Claimant’s claims for (automatic) unfair dismissal under s104 Employment Rights Act 1996, wrongful dismissal (notice pay), and unlawful deduction from wages under s13 Employment Rights Act 1996 is refused on the basis that it has not shown that the Claimant has no reasonable prospect of success in relation to these claims, save as set out at para 2 below as regards one part of the wages claim.[2]The Claimant’s claim for unpaid wages for 6 days prior to 1st January 2020 is struck out as having no reasonable prospects of success.[3]The Claimant’s claim for indirect discrimination under s19 Equality Act 2010 on the grounds of marital status under s8 Equality Act 2010 is struck out as having no reasonable prospect of success.[4]The Claimant’s claim for a statutory redundancy payment is struck out because it is not his case that he was dismissed for redundancy and he does not have the required two years continuous employment under s155 Employment Rights Act 1996 to bring such a claim.[5]A deposit order of £500 under Rule 39(1) of the Tribunal Rules 2013 is made (see separate Order) in relation to the following allegation: that the reason or principal reason for the Claimant’s dismissal was the assertion of a relevant statutory right. See also separate case management orders.
REASONS
Issues
[1]The Claimant presented a claim on 13th September 2020 claiming(a) unfair dismissal(b) discrimination on the grounds of marital status(c) a statutory redundancy payment(d) notice pay and(e) unpaid wages. He also claimed an additional award for a failure to issue with him with a copy of his written particulars of employment under s1 Employment Rights Act 1996.[2]The Claimant does not claim to have been dismissed by reason of redundancy and did not have the required two years continuous employment to bring such a claim so that claim could not continue in any event. As regards his unfair dismissal claim he claimed that it was an automatic unfair dismissal (assertion of a statutory right) so that he did not need two years continuous employment to bring the unfair dismissal claim (page 108).[3]There is a dispute between the parties as to the start date of his employment the Claimant saying it was 20th December 2019 (page 4) but also saying he came to the UK to start work on 24th December 2020 (page 11); the Respondent says the start date is 1st January 2020 as per his contract.[4]The Respondent also brought a counterclaim against the Claimant claiming £1,918 being the reimbursement of employment costs the Claimant agreed to pay in his contract plus £500 being the Claimant’s own legal fees which the Claimant had agreed to pay himself, but which the Respondent had in fact paid. The total counterclaim is £2,418.[5]The Respondent applied on 10th June 2021 to strike out his claims under Rule 37 (1)(a) of the Tribunal Rules 2013 on the basis that the claims had no reasonable prospects of success (page 126). In the alternative the Respondent applied for a deposit order under Rule 39. The Claimant resisted the applications in an email and attachment dated 19th February 2022 (page 393-397).[6]There was also an outstanding application by the Claimant dated 22nd May 2021 (page 360) to amend his claim form to include a claim for indirect discrimination on the grounds of marital status, having earlier confirmed that he did not proceed with a claim of direct discrimination on the grounds of marital status.[7]The Claimant did not attend this hearing. Only his representative Dr Narayanan attended. The Claimant was said to be in another country (not India) and does not want the Respondent to know where he is. (He intends to attend the final hearing and is obtaining permission from that other country for video evidence – see attached Orders). Because he did not attend I did not hear any evidence from him about the reasons why he delayed in bringing a claim for indirect discrimination or about his ability to pay for the purposes of the deposit order application.[8]I was provided with a 478 page electronic bundle and index and heard oral submissions on the amendment application and on the strike out/deposit order application on both sides. I was also provided with a skeleton argument on behalf of the Respondent. I gave my decision on the amendment application with reasons at the hearing but reserved my decision on the strike out/deposit order application due to lack of time. I made some case management orders at the end of the hearing should all or some of the claims proceed – see attached Orders.[9]The Respondent’s case was that it had received a serious allegation of sexual harassment against the Claimant in May 2020. The name of the individual making that allegation is anonymised and identified in this judgment as S, which approach was agreed with the representatives at this hearing. Amendment application decision – indirect discrimination on grounds of marital status s8 and s19 Equality Act 2010[10]I decided this application at the hearing and gave oral reasons. The Claimant had applied to amend his claim to add a claim of indirect discrimination based on two allegations, firstly a claim that clause 9 of his contract dated 9th December 2010 (page 138) which did not allow any family to join him in the UK until he had completed his probation period of 6 months, was indirectly discriminatory and secondly that clause 9 which required any family joining him to also work for the Respondent (and not be able to obtain their own employment elsewhere) was also indirectly discriminatory. I decided that the second allegation was already in substance in the claim form so that permission to amend was not required and refused permission to amend to include the first allegation. I gave oral reasons. The second allegation therefore fell into consideration as part of the strike out application and the Respondent’s oral submissions included submissions on this claim as well as the others covered in the skeleton argument. Relevant law – strike out[11]Rule 37(1)(a) of the Tribunal Rules 2013 provides that a Tribunal may strike out all or part of a claim or response on the grounds that it has no reasonable prospect of success (the other grounds in Rule 37(1) were not relied on by the Respondent). This is a high threshold.[12]The task of the Tribunal is to consider with care the pleaded case and whether on a fair assessment it or any part of it passed the threshold of presenting a reasonably arguable case, taking it at its highest.[13]Where the central facts are disputed, a claim should not normally be struck out, where witness evidence will be required to decide those disputed facts (Ezias v North Glamorgan NHS Trust [2007] ICR 1126).[14]I considered Cox v Adecco [2021] ICR 1307 including as to taking the Claimant’s claim at its highest. I have considered the parties’ pleaded cases and what Dr Narayan told me at the hearing about the basis on which the Claimant puts his indirect marital discrimination claim. I have taken into account that the Claimant does not have legal representation.[15]Particular care should be taken not to strike out a fact sensitive discrimination claim. Relevant law - deposit orders[16]Rule 39(1) of the Tribunal Rules 2013 provides for a deposit order of up to £1,000 as a condition of a party continuing to advance a particular allegation or a particular argument. If an order is made, Rule 39(2) provides that a tribunal shall make reasonable enquiries into the party’s ability to pay the deposit and have regard to that information when deciding the amount of the deposit.[17]Hemdan v Ishmail [2017] ICR 486 (paras 10-17) sets out the principles to be applied as follows.[18]The purpose of a deposit order is to identify at an early stage claims with little prospect of success and to discourage those claims by requiring a sum to be paid and by creating a risk of costs if the claim fails. The purpose is not to make it difficult to access justice or to do a strike out by the back door. The requirement to consider a party’s means to decide the amount of the deposit order is consistent with that purpose. The cap of £1,000 is also inconsistent with any view that the purpose of a deposit order is to make it difficult for a party to proceed to a final hearing and thus access justice.[19]The test in Rule 39 is that the party has little reasonable prospect of success in relation to a specific allegation, argument or response, which is different to the strike out test which considers whether there is no reasonable prospect of success. The test is therefore less rigorous in that sense but nevertheless there must be a proper basis for doubting the likelihood of a party being able to establish facts essential to the claim or defence. The fact that a tribunal is required to give reasons emphasises the fact that there must be a proper basis.[20]The assessment of the likelihood of a party being able to establish facts essential to his or her case is a summary assessment intended to avoid cost and delay. Having regard to the purpose of a deposit order, namely to avoid the opposing party incurring cost, time and anxiety in dealing with a point on its merits that has little reasonable prospect of success, a mini trial of the facts is to be avoided, just as in a strike out application, because it defeats the object of the exercise. If there is a core factual conflict, it should properly be resolved at a full merits hearing where evidence is heard and tested.[21]Once the Tribunal concludes that a claim or allegation has little reasonable prospect of success, the making of a deposit order is a matter of discretion and does not follow automatically. It is a power to be exercised in accordance with the overriding objective having regard to all the circumstances. That means that regard should be had for example to the need for case management and for parties to focus on the real issues in the case. The extent to which costs are likely to be saved and the case is likely to be allocated a fair share of tribunal resources are also relevant factors. It may also be relevant in a particular case to consider the importance of the case in the context of the wider public interest.[22]An order to pay a deposit must be capable of being complied with. A party without the means or ability to pay should not therefore be ordered to pay an amount he or she is unlikely to be able to raise. The proportionality exercise must be carried out in relation to a single deposit order or where they are imposed, a series of deposit orders. If the amount is set at a level at which the party cannot afford to pay it, the order will operate in a way which impairs access to justice. The Claimant’s claims Unfair dismissal and wrongful dismissal claims– was there a dismissal and if so when was it[23]Both the claim for unfair dismissal and the claim for wrongful dismissal require there to be a dismissal. The Tribunal will then have to decide when that dismissal took effect.[24]The Claimant’s case was that he left for India at the request of the Respondent on 27th June 2020 (page 15) and did not at that stage or any later stage resign. The Claimant’s case was that he was dismissed when he received (when still in India) a termination letter dated 3rd August 2020 (page 226) from the Respondent.[25]The Respondent’s case (page 30) is either(a) that the contract of employment was ‘brought to an end’ (not specified as to legally how or by who, whether dismissal, resignation or some other analysis) when the Claimant ‘absconded’ on 27th June 2020 (any previous discussions about a possible return to India only having been about a possible holiday) or(b) that the Claimant resigned with immediate effect in a Whatsapp message sent to the Respondent on 27th June 2020 (pages 28-29). It denies that the employment was terminated by dismissal when it sent the letter dated 3rd August 2020 (contrary to what the skeleton argument says at para 27). It did not explain if either of those two scenarios applied why a letter was sent to the Claimant on 3rd August 2020 terminating his employment for having left the UK (page 226) while the serious harassment allegations made against the Claimant by S which were still under investigation; if he had resigned the Respondent did not point to when it accepted that resignation and if he had absconded the Respondent did not say why it had taken over a month to send the termination letter. The skeleton argument (para 26) says the Claimant ended the contracted by absconding but if so there was no identified acceptance of a resignation or explanation as to why if that were the case he was later sent a termination letter of 3rd August 2020 and not a letter acknowledging his departure/resignation and saying that the Respondent was treating it as a resignation. The sending of the termination letter on 3rd August 2020 was more in line with matters being somewhat in limbo after the Claimant’s departure (a word the Respondent itself uses on page 226) until a decision was taken as to what to do about terminating his employment; his P45 (page 209) may have stated the leaving date as 30th June 2020 but that is not conclusive of when in fact his employment terminated.[26]There is a factual dispute between the parties as to what happened in discussions between them in the initial days when the Claimant had arrived in India; the Claimant’s case as described at this hearing is that initially discussions with the Respondent were cordial, entirely inconsistent he says with either viewing him as having absconded without permission or viewing him as having resigned. That matters were cordial is however inconsistent with the letter at page 200 referring to a call on 11th July 2020 with Mr Gopal and saying that Mr Gopal was being very rude and speaking very harshly. Witness evidence is therefore required.[27]I conclude that the Claimant has a reasonable prospect of success of showing that he was dismissed by the Respondent when he was sent the letter dated 3rd August 2020. This is because firstly the ‘absconding’ having brought the contract to an end earlier is not explained as to how that amounted to a termination of employment by the Claimant (as opposed to a ground for termination) in the light of the non-acceptance of any claimed resignation and the inconsistency in then one month later sending a termination letter (not a letter accepting a resignation or referring to any resignation in reality). Secondly the Whatsapp message is sufficiently ambiguous because it refers both to returning to India for personal reasons but also asks to come back to work saying he will definitely be back either within a couple of days or in a month. The context for this message will also require witness evidence and cross-examination because it is disputed as to whether he had permission to go to India. Reason for dismissal – asserting a statutory right[28]The Claimant set out when he said he had asserted statutory rights (page 121). The Respondent does not accept that he made any such assertions until 9th July 2020 (email at page 190), after it says his employment ended (skeleton para 30).[29]I have concluded that the Claimant does have a reasonable prospect of showing that he was dismissed by the letter dated 3rd August 2020 and that it was that date his employment terminated. That being the case, there are therefore two written complaints by the Claimant before the date on which there is a reasonable prospect that he can show he was dismissed (9th July 2020 and 24th July 2020, page 200). Of these the 9th July 2020 email refers to not having been provided with payslips (though the Respondent disputes this so there may be an issue about the Claimant’s good faith in making the assertion, if the Respondent is correct) and the 24th July 2020 letter refers to his pay not being correct and not being provided with payslips. Subject to any arguments about good faith (and I accept that these two documents were sent after a complaint of sexual harassment was made against him) the Claimant therefore has a reasonable prospect of showing at the very least that he asserted a statutory right in one or both of these two documents before the date he has a reasonable prospect of showing that he was dismissed.[30]The Claimant’s claim for automatic unfair dismissal therefore proceeds.[31]However as regards whether that was the reason or principal reason for dismissal I make a deposit order - see below. It does not however meet the higher threshold of no reasonable prospect of success. This is because there is a factual dispute which will need to be resolved by witness evidence as to what was happening in between the end of June 2020 and the beginning of August 2020, including regarding what was the content of various discussions which the Claimant covertly recorded and in relation to which I have made further Orders – see attached – because full transcripts have not yet been provided to the Respondent. A disputed issue is whether the Claimant had permission to leave the UK for at least a period of time and that will require witness evidence from him, Mr Gopal and Mr Periasamy. Whether or not he had permission is relevant to why the employment was terminated. Wrongful dismissal – was the Claimant in serious breach of contract entitling the Respondent to dismiss without notice[32]The Respondent’s case (page 31, para 21) is that it was entitled to dismiss the Claimant in any event because of either(a) having absconded and/or(b) because of the serious allegations made by S. In relation to (a) that again hangs on whether the Claimant had permission to leave the UK or not. In relation to (b) that will involve deciding whether the Claimant had in fact committed the acts he was accused of. Both of these will require witness evidence from the Claimant, Mr Gopal and Mr Periasamy, taking into account the factual dispute that the Claimant says that he was forced to admit the allegations whereas the Respondent says he accepted that the account given by S was right, but said that he did not think that it amounted to sexual harassment.[33]The Claimant’s claim for notice pay therefore proceeds. Unlawful deductions from wages[34]The Respondent says it was entitled to make deductions for various expenses it incurred in employing the Claimant and his relocation to the UK from India, totalling £2,400 (page 226), which it said the Claimant had agreed to in discussions in October 2019 when his employment terms were being discussed. The breakdown is set out in the message on page 90. The Claimant’s case is that of those listed fees he agreed to pay the application processing fee of £700 and his own legal costs of £500 and says that in the end the Respondent did not meet the flight fees of £600 because he paid for the flight himself. He says he did not agree to meet the Respondent’s legal fees of £600. His case is that to extent he agreed to be responsible for certain costs he did not agree that they be deducted from his wages.[35]The Respondent’s case (page 31-32) is that the written contract he entered into (see below) allowed a deduction to be made for £1918 (unfortunately not broken down in the contract) and that in addition the Claimant owed £500 to the Respondent who had paid his solicitors fees for him of £500. This gave a different total of £2,418.[36]There is therefore at the very least a dispute on which witness evidence will be required as to whether the £600 flight cost is repayable at all (given it is said it was not a cost the Respondent ever in practice met) and whether the Claimant agreed to be responsible for the Respondent’s legal costs of £600, taking into account the lack of breakdown in the contract.[37]The Claimant entered into a written contract with the Respondent dated 9th December 2019 (page 138) (said to be governed by both English law and the law of India (page 140) when it is not possible to have both). In that he agreed to pay employment fees cost of £1918 on the termination of his employment (page 140 clause 11) whereas the message in October 2019 had said deductions would be made for the £2,400 as they went along. The contract did not contain an agreement by the Claimant that deductions could be made from his wages for these costs.[38]The Claimant also entered into a second document (page 148) which was a contract of employment which contained many of the particulars required to be contained in a written statement under s1 Employment Rights Act 1996. This contract did not contain an agreement by the Claimant that deductions could be made from his wages.[39]The Claimant therefore has a reasonable prospect of showing that he did not consent to all the deductions being made because firstly the amount actually due is still disputed and will require witness evidence and secondly because it has not been shown that there was the relevant consent/authorisation to the deduction within s13(1) Employment Rights Act 1996.[40]The Claimant’s claim for an additional £350 per month for additional duties from January 2020 (which he does not claim was agreed in writing) will require witness evidence because based on what the Claimant says was agreed orally after the written contracts were entered into.[41]Therefore even putting to one side the separate matter of whether the Claimant was correctly paid in May 2020 and June 2020, the Claimant has a reasonable prospect of showing that although he agreed to meet at least some of the costs, he did not agree to a deduction from his wages as the way to achieve that reimbursement of costs.[42]The Claimant also claims wages for 6 days work before 1st January 2020 (schedule of loss page 356). Given he signed two contracts recording his start date as 1st January 2020 and has not identified what work he did on those 6 days I find that this particular part of his wages claim has no reasonable prospect of success. Just because the contracts were signed before 1st January 2020 does not mean that the Claimant is entitled to be paid in the gap between the contracts being signed and the date agreed that the employment would commence and that he would start work.[43]As regards his wages claim therefore it proceeds save in respect of the claim for 6 days pay prior to 1st January 2020 which is struck out. Indirect discrimination on the basis of marital status (second allegation only)[44]Clause 9 of the contract (page 140) applied to the employee’s ‘family’ and prohibited other employment by them outside the Respondent and required them to ‘focus’ on being a volunteer at the Respondent; it was slightly ambiguous as to whether the clause was requiring volunteering or just saying that if a family member wanted to work at all, that is what they were allowed to do. The term family when it came to working could encompass any adult coming to the UK to join the employee, whether a spouse, an unmarried different sex partner, a same sex partner or civil partner or another relative able to obtain immigration permission to join the employee in the UK and allowed to work.[45]The clause was slightly bizarre as it apparently imposed an indirect obligation on a family member in a contract to which it was not a party, to work for the Respondent for free, if they wanted to work at all. It is not directly contractually enforceable as against the family member or likely to be contractually enforceable against the employee. It also seems to potentially involve a breach of requirements to pay the national minimum wage as it requires any work to be done on a volunteering basis only ie it is predicated on the assumption that if wanting to work at all it must be unpaid, and is not just a volunteering option open to the family member if they are interested in it.[46]I find that the clause does not put a married person at a particular disadvantage because it applied to all family members whether in a relationship or not and whether married (or in a civil partnership) or not. The claim therefore suffers from the major structural problem that the Claimant cannot say that the clause puts the Claimant (and his wife) at a particular disadvantage when compared to someone who is not married (or in a civil partnership) because the clause applies equally to them. Whether married (or in a civil partnership) or not, the employee would be indirectly disadvantaged to the same extent, even if it is accepted that it is the employee who is disadvantaged (rather than the spouse/partner who in reality is the one more substantially disadvantaged).[47]The Claimant’s real issue with this clause is the fact that his predecessor was married and this clause was not applied to him. Whilst he might think that is unfair it does not follow that it meets the very specific test of indirect discrimination.[48]The indirect discrimination claim brought by the Claimant was not fact sensitive, it was about the operation of a particular clause in his contract and in particular whether he could show the particular disadvantage required to be shown under s19(2)(b) Equality Act 2010, taking into account what that clause in fact said. This was not a case of a poorly pleaded (ie drafted) case by a claimant who is not legally represented, but a case with a structural flaw, central to being able to show that the constituent elements of an indirect discrimination claim are present.[49]I therefore conclude that the Claimant has no reasonable prospects of showing that this clause and its application amounted to indirect discrimination on the grounds of marital status. This claim therefore does not proceed and is struck out.[50]Even if I had allowed the amendment application in relation to the first allegation it would also have been struck out for these reasons. Deposit order (see enclosed Order)[51]Taking into account the above findings I make a deposit order as regards the Claimant’s allegation that the reason or principal reason for his dismissal was because of asserting a statutory right. This is because even though the Claimant may be able to show he asserted a statutory right before his employment terminated, there were two other major things going on before his employment terminated: firstly very serious allegations by S which came to the Respondent’s attention at the end of May 2020 and set out in a detailed witness statement from S dated 16th June 2020 (page 187) being investigated by the Respondent; secondly the Claimant had left the UK shortly after the issues were raised with him. This means that even if the Tribunal finds he was unfairly treated in relation to these two matters by the Respondent (and he challenges S’s account at page 223), it is step further to say that one or both of these factors was not the reason or principal reason for dismissal at the time of dismissal. I have taken into account that the burden is on the Claimant to show that the reason given by the Respondent is not the real reason ie it is for the Claimant to show that it was the real reason/principal reason and it is not for the Respondent to show that it was not.[52]The Claimant did not attend to give evidence about his ability to pay a deposit and provided no documents about his current finances. I asked Dr Narayan generally about the Claimant’s current working situation and was informed that he is working in a third country (ie not the UK or India), a new job which he started on 1st June 2022, not having been able to find other work until then. His schedule of loss (page 357, December 2020) said he had been unable at that point to find other work because of the pandemic.[53]There was an absence of evidence of the Claimant’s ability to pay (whether by way of attendance at this hearing to give evidence about his means or by the provision of documents eg bank statements or details of his pay from his new job), despite knowing it was important for the deposit order application from the preliminary hearing on 10th February 2022 (page 389 para 2). I therefore have limited information about the Claimant’s ability to pay a deposit but he has had the opportunity to provide it and has been aware of that since February 2022.[54]I therefore set the deposit at £500 taking into account he is now employed. In practice this means he cannot proceed with his (automatic) unfair dismissal claim unless he pays the deposit; showing the reason/principal reason he claims to be the real reason is the only way he can bring the unfair dismissal claim, given he does not have two years continuous employment for an ordinary unfair dismissal claim.[1]The Claimant’s claim that he was unfairly dismissed for asserting a statutory right fails and is dismissed.[2]The Claimant’s claim for unlawful deduction of wages succeeds. The Claimant’s claim for unpaid notice succeeds.[4]The Respondent is ordered to pay the Claimant the total sum of £6309.03 (calculated on a net basis) in respect of his claims consisting of: Shortfall in May 2020 (including food allowance) £676.00 Non payment in June 2020 (including food allowance) £1226.00 Case Number: 3202407/2020 Non payment for July 2020 (no food allowance) £1076.00 Non payment for 2 weeks in August 2020 (no food allowance) £496.61 One months contractual notice (no food allowance) £1076.00 Subtotal £4550.61 2 weeks pay for failing to provide written particulars £496.61 Subtotal £5047.22 25% ACAS uplift for not addressing grievance £1261.81 Total £6309.03 JUDGMENT having been sent to the parties on 2 August 2022 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013.[1]At the outset of the hearing the Tribunal identified the issues and carefully assessed the matters that Dr Narayanan wished to advance by reference to his email sent to the Tribunal on 22 July 2022. The matters that were within the Tribunal’s jurisdiction to address were clearly specified as follows:1.1 Unfair dismissal for asserting statutory rights pursuant to section 104 of the Employment Rights Act 1996 (ERA) (automatic unfair dismissal claim).1.2 Failure to provide written contract of employment and payslips.1.3 Significant change in Claimant's duties revealed only after arriving in the UK. This involved an assessment of the contractual terms that were alleged to have been changed.1.4 Forced to work excess hours, more than what was mentioned in the contract and certificate of sponsorship.1.5 Failure to pay wages on time and reduction in pay without agreement or consultation. This translated to an unlawful deduction of wages claim. When looking at unauthorised deductions clarified by Dr Narayanan stated that the Claimant was either claiming the sum of 20 hours each week at £8.21 per hour wage, alternatively an additional £350 per month that the Claimant says she was promised in January 2020 having taken up additional duties. Following review of the evidence clear Mr Periasamy conceded that the Claimant had not been paid salary for May or June and that the relevant calculations were referred to in the letter that was sent to the Claimant dated 3 August 2020.1.5.1 The Claimant alleges that there was a failure to pay an additional £350 per week that he was promised in January 2020 for taking on additional duties. It is alleged that this was an ongoing failure that continued until the end of his employment.1.5.2 The Claimant alleges that only £550 was deposited in his bank account for the month of May 2020 even though he was working full time hours.1.5.3 The Claimant alleges that no salary was deposited into his bank account for the month of June 2020.1.6 Failure to conduct proper investigation on unfounded allegations made against the Claimant; failure to follow ACAS code, perverting the course of justice were all matters that may have been relevant had the Claimant had two years continuous employment. However, we made it clear at the start and throughout the hearing that the Tribunal was not able to consider an ordinary unfair dismissal claim and as such the criticisms that Dr Narayanan was eager to make regarding the way the allegations against the Claimant were dealt with were not directly relevant to the matters we had to decide.1.7 Loss of statutory rights and loss of earnings were matters that would be considered, if appropriate, should the Claimant succeed in his automatic unfair dismissal claim.1.8 Failure to address the grievances on unauthorised deductions in pay were matters that could be assessed in compensation for alleged failure to follow the ACAS code on resolving grievance procedures.[2]The Claimant’s following allegations were not matters that the Tribunal had jurisdiction to determine:2.1 That the Respondent failed to implement furlough scheme and made the Claimant work for the respondents during the furlough period; and2.2 That it subjected the Claimant to mental stress causing a severe damage to mental health during the meeting on 23 June 2020.[3]The Claimant’s alleged asserted statutory rights for the automatic unfair dismissal claim were:3.1 On 8 March 2020, he challenged the Respondent’s contention that he had to work for an additional 20 hours each week so as not to be charged for his accommodation. His contention was that he was promised that he would receive accommodation in addition to his agreed salary. The Claimant also stated that he had not been given payslips.3.2 On 27 May 2020 complaining that he had only received 50% of his contractual salary. Following questioning on the factual basis of this allegation the Claimant withdrew this as an allegation of asserting a statutory right and the Tribunal did not consider it.3.3 On 17 June 2020 asking why he had not been provided with a payslip.3.4 On 9 July 2020 complaining that no salary had been paid for June 2020 and that there had been serious discrepancies in relation to previous salary payments.3.5 On 24 July 2020 setting out an eight-page letter of complaint detailing pay discrepancies and threatening to report the Respondent to the Charity Commission. If so, the Claimant will be regarded as unfairly dismissed.[4]The Claimant also claimed that he was entitled to one months’ notice pay following summary dismissal. The Respondent’s primary position was that the Claimant resigned with immediate effect in a WhatsApp message on 27 June 2020. The Tribunal considered that WhatsApp message and had regard to the law, that there must be clear and unequivocal words of resignation in considering the contextual circumstances. It was clear to the Tribunal from an ordinary reading of the Claimant’s 27 June 2020 WhatsApp message that he did not give an unequivocal communication to resign. The text is outlined in full in the findings below. Therefore, the Tribunal did not conclude that this case involved the Claimant’s resignation and we considered the matter as one involving termination by the employer.[5]Alternatively, the Respondent contended that the Claimant was in fundamental breach of contract in absconding without permission, such that if the Respondent subsequently terminated the contract it was entitled to do so forthwith. It asserts that the Claimant absconding was a reason related to his conduct or a substantial reason capable of justifying dismissal. Consequently, the Respondent argues that the Claimant had no entitlement to notice pay.
Evidence
[6]The Claimant gave evidence on his own behalf. He gave evidence and attended remotely, as he was in the USA. Dr Sathya Narayanan, the Claimant’s representative and friend gave evidence on the Claimant’s behalf.[7]The Claimant also wished to call Mr Jagadesh Janarthanan, former priest of the Respondent. However, the Tribunal could not hear from him because he was in India and there was no approval from India to the UK Foreign Office to allow witnesses to give their evidence from abroad. Dr Narayanan expressed concern that the Claimant would be put at a disadvantage by not being able to call Mr Janarthanan. The Tribunal concluded that it was in accordance with the overriding objective to proceed in the absence of Mr Janarthanan. His evidence would have had limited relevance to the matters that the Tribunal were required to determine. However, we read his evidence and gave very limited weight to it be placed on it given that we were unable to hear from him and be subject to cross examination.[8]The Respondent called two of its trustees namely Mr Vinayagan Periasamy and Mr Teagu Vannu Gopal to give evidence.[9]The Tribunal were referred to relevant pages in an agreed hearing bundle consisting of 388 pages and an additional supplementary bundle that was sent by Dr Narayanan on the second day of the hearing consisting of 25 pages.
Facts
[10]The Tribunal has found the following facts from the evidence.[11]The Respondent is a registered charity and religious organisation which runs the London Sai Baba Temple which follows and promotes the teachings and philosophy of Shri Shirdi Sai Baba.[12]The Respondent employs approximately six staff and has approximately 50 volunteers. It employees priests on fixed term contracts who are assisted by religious workers and volunteers.[13]On 24 October 2019 Mr Periasamy met with the Claimant in India with a view to securing the Claimant’s attendance as a priest at the Respondent’s London Temple. The discussions that took place were summarised in a text dated the 24 October 2019 setting out key terms as follows:13.1 The Claimant would be paid a salary of £14,942.20 and tax and National Insurance.13.2 He would get a monthly net pay of £1076.13.3 His working hours would be 35 hours a week on a flexible schedule.13.4 He would be required to pay flight costs of £600, an estimated application processing fee of £700, solicitors costs fee of £600 and his own solicitors costs fee of £500. Therefore, there would be £2400 that the Claimant would have to pay back to the Respondent. It was stated that this sum would be deducted from his salary over a period of two years.[14]At that stage discussions were amicable, and the Claimant was enthused in progressing his application to become a priest for the Respondent in London.[15]On 13 November 2019, the Respondent contacted the UK immigration and visa authority and stated at that the Claimant would be ‘maintained and accommodated’ by the Respondent during his stay in the UK.[16]Further contractual discussions were meant to take place in India on 9 December 2019 and the Claimant travelled significant distance through India for such discussions only to discover that the contract was not ready and that there were still ongoing questions about the financial provisions that would be finally offered. Curiously, the Claimant was informed that he would be given his contract to sign when he arrived in United Kingdom.[17]The Claimant arrived in London on 24 December 2019 and, on the 28 December 2019, he had a meeting with the trustees of the Respondent. He was taken through an agreement letter and a separate appointment letter and he signed both of those and documents.[18]The key terms of the documents specified, as far as the Tribunal is concerned, as follows:18.1 The Claimant was required to work 35 hours a week.18.2 His contract was for a two-year fixed term period.18.3 He would be paid £14,942 annually before tax.18.4 He would be required performing all duties as may be assigned to him from time to time.18.5 He should follow the instructions and the orders of the trustees.18.6 The contract enabled the Respondent to terminate before the expiry of the two year period by giving notice period of one month in writing. The contract could also be terminated earlier if the employee is found guilty of any misconduct bring the organisation into disrepute.18.7 The Claimant was required to pay back employment fees of approximately £1918 at the end of the contract term.[19]The Claimant was taken line by line through the agreements and signed both of them. However, the parties accepted that the Claimant was not sent a copy of the agreements. Mr Periasamy stated that the Claimant had taken a photograph of the agreements for his records. The Claimant denies this. We accept the Claimant’s evidence and find that Mr Periasamy was mistaken in that it was the other priest in attendance, Mr Janarthanan, who took photographs of the contracts. In any event the Claimant was not given as required by section 1 of the Employment Rights Act 1996, copy of his written terms and conditions.[20]The Claimant was provided with a schedule of duties and considered those duties to be tangentially related to being in a priest. What concerned the Claimant were additional duties such as cleaning toilets, clearing bins and other non-priestly duties which he says were not consistent with his role. The Claimant also alleged that there was a contractual change and he was required to work an extra 20 hours a week in lieu of the accommodation provided to him. This meant that he was working 55 hours a week. We accept the Claimant's evidence and there was no contractual basis to expect him to work on a further 20 hours a week, whether on a volunteer basis or otherwise. However, on the facts before us, we find that to the extent that he was working 55 hours a week, this ceased by 18 March 2020 when the Government lockdown took place. The Respondent’s London Temple was closed during lockdown and the Claimant was asked to undertake other duties on a volunteer basis but this was 55 hours a week or not full time.[21]The Claimant's contract also provided him with £150 per month food allowance and this was paid to the Claimant during his tenure.[22]The Claimant was unhappy about the size and status of his accommodation at the Respondent’s Temple. He had a discussion on 8 March 2020 with the Respondent’s trustees and sought to put in place measures to move out of the Temple to get his own accommodation so that his wife could join him from India. The Claimant enquired whether he could get the 20 hours extra he was working in lieu of accommodation to be paid to him as a cash sum. The Respondent’s trustees stated that it could not guarantee that it could pay 20 hours extra work and his earnings would fluctuate. The Claimant expressed concern about how he would be able to pay for alternative accommodation if the 20 extra hours could not be guaranteed. This concern did not engage a statutory right under the Employment Rights Act 1996 as it was a discussion about possible changes to contractual arrangements.[23]However, we find that during March 2020 the Claimant raised concern about not having payslips but we do not find that him raising such concerns was in any way causative to his dismissal.[24]The Claimant also asked for payslips on 17 June 2020 and was duly sent them following request for a clearer copy. We do not find that him raising these concerns was in any way causative to his dismissal.[25]By May 2020 the Respondent was in a very difficult financial situation. In discussions on 27 May 2020 and 3 June 2020 the Trustees invited the Claimant to return to India on holiday and if possible make a financial contribution to the Temple. The Claimant indicated that it was very difficult and expensive to secure a flight to India at that time during Covid lockdown. Sexual harassment allegation against the Claimant[26]A key matter for the Tribunal consideration was the complaint by Mrs S alleging sexual harassment against the Claimant. Having considered the evidence we accept Mr Periasamy’s evidence and the chronology of events that he relayed about the complaint.26.1 On 21 May 2020 Mrs S spoke to Mr Periasamy’s wife and raised allegations of serious sexual harassment against the Claimant.26.2 Mrs Periasamy informed Mr Periasamy about this on 23 May 2020 and this led to a meeting on 6 June 2019 where Mr Periasamy met with Mrs S and her husband to discuss the complaint.26.3 On 6 June 2019 the Tribunal accept that Mrs S and her husband stated to Mr Periasamy that they would take the matter to the police unless the Claimant agreed that sexual harassment took place and apologised to them. They stated to Mr Periasamy that if the Claimant was willing to admit sexual harassment and confirm that it would not be repeated they would not escalate matters with the police.26.4 Mr Periasamy was very concerned about the potential reputational on the Temple if this was publicised and requested Mrs S to put a formal complaint in writing. This was done on 16 June 2020 and a two-page statement in this regard was sent to Mr Periasamy.[27]On 20 June 2020 the government lifted lockdown restrictions and a meeting was held with the Claimant on 23 June 2022 with Mr Gopal and Mr Periasamy. There is dispute about the meeting notes. Generally, we find that Mr Gopal's notes were not verbatim and that there were inaccuracies within them, but that they were made contemporaneously and were not fabricated. We find that Mr Gopal’s notes record the gist of what was said during meetings held. Importantly for the purposes of 23 June 2020 notes we conclude that the handwritten notes are a record of two parts of the conversation, one with two priests present, including the Claimant, and one only with the Claimant. Dr Narayanan states that the transcript of the covert recording that the Claimant made of that meeting was emphatic evidence of what was discussed. However, we conclude that the recording does not provide the full record and this is clear that the end of the transcript which states meeting ends on the basis of the Claimant and Mr Periasamy saying please wait a minute “I will come back” with no further entry.[28]From Mr Gopal’s notes and the transcript of 23 June 2020 meeting we are able to find that both Mr Gopal and Mr Periasamy were very concerned about the nature of the allegations and find that they had formed a clear opinion that the sex harassment allegations were well-founded. During the meeting Mr Gopal and Mr Periasamy were seeking to get the Claimant to accept the sexual harassment allegations so that they could try and manage it internally without the reputational fallout. They made it clear to the Claimant that if he did not accept the allegations the matters would be referred to the police and the police would investigate. They stated that they would not be the appropriate people to investigate and if the police were involved the Respondent would terminate the Claimant’s employment. They expressed this position a number of times and stated that, if the Claimant maintained that he did nothing wrong the police would be involved and he would be terminated immediately.[29]It is obvious that the way in which this meeting was held was not compliant with an ACAS code and good employment practice. It was not compliant with a fair or reasonable procedure. However, we accept that the Respondent did not want the reputational fallout or potential damage of managing this very serious sexual harassment complaint. They made it clear to the Claimant that he should leave the country to avoid a potential police investigation and failing that there would be a police investigation which would inevitably limit the Claimant's options. The pressure that the Claimant was put under in this meeting was undeniable. However, it is also undeniable that the Respondent trustees were trying to manage, in wholly inappropriate way, the concern it had about sexual harassment and sought to try and avoid the matter escalating. Mr Periasamy stated that the allegations were of a serious nature and they posed reputational risk to the Temple. There were prior scandals of involving organised religions and publicised incidents of sexual harassment towards women in India, including sexual harassment and physical groping. There was potentially serious damage to the Temple if matters were publicised. We do not doubt that Mr Periasamy had this in mind and he sought to cauterise any potential problem by giving the Claimant a clear steer to leave the Temple.[30]Perhaps unsurprisingly, the Claimant did leave the Temple. On 27 June 2020 he sent a Whatsapp message stating: “My sincere apologies to inform that I have left the temple and London and came to India without giving prior notice to you as my ticket for the evacuation flight has got confirmed yesterday and I had to rush to airport. There are few reasons that I made me to take this step as per our previous conversations where you asked me to think on return plan for India and I had deep home sick and some of my personal reasons to come back to India. Considering this, I had to take this step. Hope you understand and I regret for any inconvenience caused. I would also request to consider my entry and work back at temple in London. I will definitely come back to temple in couple of days or in a month to serve. Kindly keep my profile for considering to (back at work) in temple I will definitely looking forward to back at work in temple.”[31]We do not construe this WhatsApp message as the Claimant stating that he was permanently resigning his role, as the Respondent contended.[32]The Claimant had a conversation on 1 July 2020 with Mr Gopal. The focus of the conversation was for the Claimant to prove that he was out of the country. Mr Gopal did not believe that the Claimant was out of the country given the previous expressed difficulties and costs of flights to India at the time. We find that the Respondent was seeking to get the Claimant prove that he was out of the country so that they could cancel his visa and end their liability for his continued employment. As far as the Respondent was concerned they wanted the Claimant out of the country to avoid the potential reputational damage of the sexual harassment allegations. Curiously, the Claimant did not provide the documentation to prove that he was out of the country.[33]On 6 July 2020 the Respondent took the step to remove the Claimant from the WhatsApp group for the Temple evidencing its decision that the Claimant was no longer going to be part of the organisation.[34]On 9 July 2020 the Claimant wrote to the Respondent emphatically outlining his concerns about the failure to provide an payslips an failing to pay proper salary, outlining the shortfall in salary.[35]The Respondent replied on 11 July 2020 writing that the Claimant had absconded, was in serious breach and that they had a meeting on the 23 June 2020 regarding the serious sexual allegation and follow up meeting would be held.[36]The Claimant next wrote on 24 July 2020 reiterating his serious concerns about payments and payslips and raised other allegations and regulatory shortfalls. He requested a response within 14 days.[37]The Respondent did not engage with the Claimant’s letter of grievance but wrote to the Claimant on 3 August 2020 terminating the Claimant's employment on the basis that he had absconded and that he was subject to serious sexual allegation. The Claimant received this letter on 11 August 2020.
Law
[38]The Tribunal has considered Employment Rights Act 1996 (ERA) sections 1 (payslip), 8 (itemised payslips), 13 (unlawful deduction of wages) and section 104 (automatic unfair dismissal for asserting a statutory right.[39]Section 104 ERA states: An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee—(a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or (b )alleged that the employer had infringed a right of his which is a relevant statutory right. (2)It is immaterial for the purposes of subsection (1)— (a) whether or not the employee has the right, or(b) whether or not the right has been infringed; but, for that subsection to apply, the claim to the right and that it has been infringed must be made in good faith. (3) It is sufficient for subsection (1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was. (4) The following are relevant statutory rights for the purposes of this section— (a) any right conferred by this Act for which the remedy for its infringement is by way of a complaint or reference to an employment tribunal,
Conclusions
[40]When considering whether there has been the assertion of a statutory right, we conclude that the Claimant asserted a statutory right to payslips in March 2020, on 17 June 2020 and on 9 and 24 July 2020. The Claimant also asserted a statutory right in respect of non-payment of salary of 9 and 24 July 2020.[41]For the Claimant to succeed in his automatic unfair dismissal complaint, the dismissal must be by principal reason of asserting those statutory rights. Dr Narayanan made forceful submissions about the poor way in which the Claimant had been treated. We accept a number of those submissions, how the Claimant was cornered on 23 June 2020 meeting was neither reasonable nor appropriate. It was very poor employment practice to challenge the Claimant in that way. Having said that the nature and strength of opinion expressed by the trustees during the meeting on 23 June 2022 lead the Tribunal to conclude that the key reason for the Claimant’s termination was that sexual harassment allegations. The Respondent simply did not wish to properly engage with them and they wanted the Claimant out of the Temple to avoid the potential reputational issues.[42]The Respondent was not concerned at all by the Claimant’s request for payslips and his requests for this did not feature in the reason for his dismissal. The Claimant’s letters of 9 and 24 July 2020, written whilst he was allegedly out of the country, were sent after he had been asked to leave on 23 June 2020 and after he had been taken off the WhatsApp group on 6 July 2020. Whilst we find that these letters provided the catalyst for the Respondent to confirm dismissal they were not the reason for dismissing the Claimant.[43]By its letter dated 3 August 2020, the Respondent confirmed that the reasons for dismissal were the Claimant absconding and the sexual harassment allegations. On the evidence before us we do not accept that absconding was a valid reason for dismissal given what was said on the 23 June 2020 (that the Claimant should leave) and the Claimant’s Whatsapp message on 27 June 2020 contradicted a conclusion of absconding. However, we conclude that the sexual harassment allegations were the principal reason for dismissal.[44]The Tribunal hypothetically considered what would have happened had the Claimant not made the assertions he did on the 9 and 24 July 2020 and concluded that the Respondent would not have allowed the Claimant to return back to his role in the Temple because of the sexual harassment allegations.[45]We therefore conclude that the Claimant has not established that the reason for his dismissal was the assertion of statutory rights. His claims for automatic unfair dismissal therefore fail and are dismissed. Unpaid salary[46]The Respondent accepts that the Claimant was not paid his salary in full for the period of May and June 2020. The Claimant’s claims in this regard therefore succeed and he is entitled to be paid the unpaid sums.[47]Further the Claimant was not paid salary for July 2020 or for August to 11 August 2020 when he received notice of termination of his employment. The Claimant is entitled to be paid these sums. Unpaid notice[48]Given our findings regarding the investigation the Respondent has not followed any fair process to conclude that the Claimant was guilty of gross misconduct. The Claimant denied such allegations. Before us the Respondent referred to the internal statement of Mrs S to indicate sexual harassment had taken place. However, given the prejudged approach that the trustees took at the time, the Respondent has not established that the Claimant committed gross misconduct to forego his notice entitlement. The Claimant is therefore entitled to be paid one months’ notice taking him to 11 September 2020.[49]We do not conclude that the Claimant has established that he was entitled to pay for the extra 20 hours he worked in lieu of accommodation. There was no contractual entitlement for extra pay. The Claimant has not established how many hours extra he worked each week although we accept there were occasions when he worked 20 hours extra up to 18 March 2020. Whilst the requirement to work additional hours in lieu of accommodation was imposed upon the Claimant this was discussed in March 2020 when the Claimant sought to move out and be paid for extra hours worked in cash so he could rent elsewhere. The Claimant has not established that he was contractually entitled to any sum for extra hours worked.[50]The Claimant has not established that he was entitled to £350 a month for extra work. This allegation contradicted his primary case that he expected to be paid minimum hourly wage for extra hours he worked.[51]The Claimant was not provided with a written statement of terms and conditions of employment. We conclude that a sum of 2 weeks pay is an appropriate award given that he was taken through it line by line at the commencement of his employment.[52]Given our conclusions, the Claimant is entitled to the following sums: Shortfall in May 2020 (including food allowance) £676.00 Non payment in June 2020 (including food allowance) £1226.00 Non payment for July 2020 (no food allowance) £1076.00 Non payment for 2 weeks in August 2020 (no food allowance) £496.61 One months contractual notice (no food allowance) £1076.00 Subtotal £4550.61 2 weeks pay for failing to provide written particulars £496.61 Subtotal £5047.22 25% ACAS uplift for not addressing grievance £1261.81 Total £6309.03[53]The Respondent is therefore ordered to pay the claimant the total sum of £6309.03.