Mr A Artyunov v Staffline Recruitment Ltd: 3205150/2021

EMPLOYMENT TRIBUNALS

Case No 3205150/2021

Between

Mr A ArtyunovClaimant

Staffline Recruitment LtdRespondent

Before

Tribunal Judge D Brannan, acting as an Employment

Mr A Francis (instructed by counsel) for respondent

Date 25 May 2023

JUDGMENT

The Claimant’s claim for unpaid wages from 17 April 2021 to 9 July 2021 is struck out. The Claimant’s claims for unfair dismissal and direct race discrimination shall proceed to a substantive hearing.

REASONS

[1]On 17 January 2022 there was a prehearing for case management before Employment Judge Jones. She gave Case Management Orders dated 9 February 2022 (the “CMO”). These included a case summary which identified the Claimant’s complaints and issues to be determined by the Tribunal. The parties were directed to write to the Tribunal and other side by 7 March 2022 if they thought the listed claims and issues were wrong or incomplete. Neither party did so.

[2]The complaints are consequently as stated in the CMO, namely:(a) Constructive unfair dismissal;

(b) Direct race discrimination about the following: (i) Dismissal; (ii) The Respondent’s failure to adhere to Health & Safety in April 2021;

[3]The Claimant was also directed in the CMO to provide the following information by 7 March 2022:(a) The date on which the Claimant says he resigned from the Respondent’s employment, if he says that he resigned verbally then details of who he spoke to, where and on what date;

(b) The date of the email sent to confirm his resignation;

(c) The details of the breaches of Health & Safety that he says contributed to the fundamental breach of contract allowed him to resign;

(d) Details of the wages he believes that he is owed, showing how this is calculated.

[4]Dr Sivek sent emails to the Respondent and Tribunal on 6 March 2022 and 7 March 2022. In these it was not explicitly stated when the Claimant resigned or how.

[5]The health and safety breaches were specified in the email of 6 March 2022.

[6]The wages are explained in the email of 7 March 2022 as being from 17 April 2021 to 9 July 2021 and amounting to 7 ½ weeks at a rate of £440 per week totalling £3300.

[7]On 4 April 2022 the Respondent applied for a preliminary hearing to consider whether the Claimant’s claim or parts of it should be struck out or subject to a deposit order in accordance with rule 37 and rule 39 of the Employment Tribunal Procedure Rules 2013 (as amended). The Respondent identified the claims of “unfair dismissal”, “wages” and “race discrimination” as the claims which it was seeking to strike out and gave different reasons for each.

[8]Employment Judge Jones directed that a prehearing be listed for this purpose. That hearing was originally listed for 28 October 2022 but was postponed due to no judge being available. It was relisted before me for 30 November 2022.

[9]I was told at the hearing before me that the parties had decided (not necessarily in concert) not to exchange witness statements on 1 August 2022 as directed in the CMO, pending the outcome of this hearing.

[10]The final hearing is listed for 12 to 14 April 2023.

Law

[11]The Employment Tribunal Procedure Rules say, as relevant: 37.—(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 … has no reasonable prospect of success; … (2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. …

[12]The Respondent rightly accepts that the threshold for striking out a claim for no reasonable prospects of success is a high one. It would only be in an exceptional case that an application to an Employment Tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute (Eszias v North Glamorgan NHS Trust

[2007] EWCA Civ 330

[13]On the other hand, in Ahir v British Airways PLC

[2017] EWCA Civ 1392

, Lord Justice Underhill said at paragraph 16: Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment, and I am not sure that that exercise is assisted by attempting to gloss the well-understood language of the rule by reference to other phrases or adjectives or by debating the difference in the abstract between 'exceptional' and 'most exceptional' circumstances or other such phrases as may be found in the authorities. Nevertheless, it remains the case that the hurdle is high, and specifically that it is higher than the test for the making of a deposit order, which is that there should be 'little reasonable prospect of success'.

[14]Having established the legal framework I will now look at each application in turn. Unfair Dismissal

[15]Mr Francis provided a skeleton argument at the hearing of seven pages and 25 paragraphs. Paragraphs 14 to 21, covering almost three pages, explain why the Respondent thinks the unfair dismissal claim should be struck out or subject to a deposit order.

[16]I note that Mr Siwek initially objected to this document being provided at the hearing, particularly given the amount of law contained therein, on which Mr Siwek, while claiming to having expertise in Scots law, said he was inexpert. I explained that the law was an issue for me – if I was misled by the Respondent or got it wrong for any other reason in my decision he would be able to appeal against my decision. The key points I needed to hear from him concerned the facts. I consequently gave him time to read the skeleton argument before we discussed the issues in detail. It was certainly not in the interests of justice to postpone the hearing.

[17]The nub of the issue is that the Respondent’s position is that the Claimant has not resigned at all. In the ET3 the Respondent said at box 4.2 that employment was continuing. The Claimant was ordered to provide details about his resignation in the CMO. He failed to comply. At the hearing before me I asked Mr Sivek to tell me when the resignation took place. He said it was in a telephone call by him to the Respondent on 9 July 2021. He said he could not remember the name of the specific person he had spoken to. This was the first time within the proceedings that the circumstances of the claimed resignation had been identified.

[18]Mr Francis submitted that even if this now provides a dispute of fact regarding dismissal which needs to be determined, the fact that Mr Sivek delayed so long in disclosing this and still cannot identify who he spoke to means that the claim is not credible and has either no or little reasonable prospect of success.

[19]I have not heard the evidence on this point, simply Mr Sivek’s submission on the Claimant’s behalf. Mr Sivek has made himself the primary witness to the resignation. It is therefore surprising that he was unable to provide the details which Judge Jones ordered in the CMO earlier. Nevertheless, now there are facts to be tried, I think it inappropriate to make a strike out order. This is particularly important given the race discrimination claim relates to the resignation as well. Wages

[20]The basis for the Respondent’s strike out application in relation to wages is that the Claimant did not perform any work for the Respondent between 17 April 2021 and 9 July 2021. That is not disputed. I asked Dr Sivek the basis for the wages claim for a period when no work was performed. Dr Sivek could not explain it.

[21]I note that this is normally a question of contractual terms. There appears to be a dispute about what contract the Claimant worked under. The Respondent relies on a contract in the bundle. Dr Sivek says that this was not agreed to. He also mentioned that the Respondent also tried to impose another contract, which was not in the bundle but which he had the front page of at the hearing. Dr Sivek says that in any case the contract was under the “common law”. What has not happened is Dr Sivek or the Claimant identifying any reason why he should have been paid when he did not perform any work. The claim for unpaid wages from 17 April to 27 May 2021 (as identified in the CMO) or 9 July 2021 (as now relied on by the Claimant) consequently has no reasonable prospects of success and is struck out. Race Discrimination

[22]The Respondent’s argument in its original application on 4 April 2022 relating to race discrimination is that there is insufficient material from which the Tribunal could conclude that the Respondent had committed an act of unlawful discrimination. Mr Francis added in his skeleton argument that the claim appears to have been manufactured to embarrass and put pressure on the Respondent, having not been mentioned in the Claimant’s grievance.

[23]I note that this application was made after the CMO in which Judge Jones summarised the basis for the race discrimination claim and did not decide it was necessary to direct the Claimant to provide additional information prior to the exchange of documents or witness statements. I cannot see how that same information now has no reasonable prospects of success. Indeed Judge Jones has identified in the CMO the issues for determination which arise from that element of the claim.

[24]The application to strike out the race discrimination claim as having no reasonable prospects of success is consequently refused. Tribunal Judge D Brannan, acting as an

[25]There was one bundle of documents. We were also provided with a witness statement signed jointly by the claimant and his mother, Ms S Siwek and a witness statement from Dr Siwek. The Tribunal decided, with the parties agreement (see above), that it would rely upon the witness statement, the ET1, Further Information and the List of Issues as the claimant’s evidence in chief. We had witness statements from Mr Gill, Regional Accounts Manager; Mr Pascal, Planner and Ms Radziszewksa, Employee Relations Specialist, for the respondent. We read the witness statements and the documents we were referred to and we heard oral evidence from the claimant, Ms Siwek, Dr Siwek, Mr Pascal and Ms Radziszewksa.

[26]Mr Gill did not attend the Hearing. We were told that he was on a pre-arranged holiday. We accept that. The fact that a statement has not been given under oath, or tested at a Hearing, are considerations that can inform this Tribunal’s assessment of its reliability or credibility, or otherwise of what weight to attach to it. In fact much of Mr Gill’s witness statement evidence is corroborated by documentary evidence (see below). Had he been present, we do not think he would have added anything much to our findings of fact.

[27]We have taken the evidence into account in reaching our decision and refer in our reasons to the evidence which is relevant to our specific findings. We also took into account the parties’ submissions. References to page numbers [x] are to pages in the bundle. Not all the matters that we were told about are recorded in our findings of fact. That is because we have tried to limit them to points that are relevant to the legal issues we have to determine. Having considered all the evidence, we find the following facts on a balance of probabilities.

[28]It transpired that the claimant had not seen or read the ET1, the Further Information, the records of the Preliminary Hearings or the joint witness statement he and his mother submitted, nor the Bundle of documents before the hearing. He was asked to read them before Day 2 when he gave his evidence. Dr Siwek drafted the documents on behalf of the claimant.

[29]The claimant began his employment with the respondent, a recruitment business, in May 2019. The respondent has approximately 1600 clients and 40,000 workers (with about 1 million on the books). The claimant was assigned to work at Tesco, one of the respondent’s clients, between May 2019 and 1 April 2021, when he began a period of sickness absence. This was the claimant’s first job. His contract of employment is at [71- 87]. The claimant signed the contract electronically. The claimant was entitled to be paid between assignments, as long as he informed the respondent of his availability for work. The claimant had 5 days of training when he started, including manual handling training.

[30]The claimant’s workplace whilst on assignment was the Tesco Distribution Centre at Dagenham. There were approximately 50 Staffline workers per shift at the Tesco branch. He worked the nightshift from 10pm – 6am. The claimant would indicate which shifts he was available for and check on a Sunday or Monday whether he had been allocated shifts for the week. The clamant was a “picker”. In that role, he was required to pick different products from locations in a warehouse and process them as required by Tesco. For example, to collect grocery products for sending out to a particular Tesco store. Mr Pascal did not work with the claimant on the nightshift. Mr Pascal is responsible for allocating shifts to ‘pickers’. Sometimes shifts would be cancelled. The claimant usually worked 5 days per week but he accepted that sometimes there might not always be a shift available. The claimant was line managed by Ms Chaudhary, Account Manager. Mr Pascal had previously worked with Ms Siwek on the day shift.

[31]Each picker gets their shift assignments from a small handheld computer device that they carry with them in the warehouse. This device gives them all the information they need to complete including the location of the pallet, type of product and number of products they are required to ‘pick’. The pickers use this device to scan the products out of the site and into the cage to be sent to store. The warehouse is a fast paced environment. Workers are expected to achieve a certain output which is monitored using data generated by each individual’s handheld scanner. It is hard work. Both Tesco and the respondent see the data collected for each picker. It is automatically uploaded to the system from the handheld device controlled by Tesco. Mr Pascal’s evidence was that the data cannot be manipulated by the respondent – we accept that.

[32]The claimant hurt his back lifting a pallet in 2020. He reported the injury to the shift supervisor, and he was permitted to go home about 40 minutes after completing the pallet he was working on. He returned to work on his next shift. He was provided with manual handling training when he began his employment with the respondent. He did not make any complaint to the respondent about the incident at the time or later (he did not raise the matter with Mr Gill as part of his grievance) and there is no medical evidence documenting an injury.

[33]Unrelated to the above, the claimant was off work sick from 1 April 2021 [196]. Mr Pascal had spoken to the claimant previously about his sick leave and had suggested that he should contact his GP if he had health issues. On 10 April 2021 the claimant sent the respondent an employee statement of sickness form that his GP had given him to complete. The claimant completed the form himself and sent it by email to Mr Pascal so that he could be paid for his period of absence [196-197]. The form sent by the claimant was dated 10 April 2021; it stated that the claimant’s ill-health began on 1 April 2021 but it did not state an end date for the claimant’s ill-health. Mr Pascal’s understanding was that an end date had to be included in order for the respondent to process a claim for Statutory Sick Pay (SSP). He was aware of another employee not receiving SSP because an end date had not been provided. Mr Pascal wanted to make sure that this did not happen to the claimant and so he telephoned the claimant on 10 April 2021 to speak to him about his form. Mr Pascal initially had a productive conversation with the claimant. He advised the claimant that he could not accept the form as it had no end date for the period of ill-health [197]. The claimant accepted during cross examination that Mr Pascal had telephoned to help him and that the reason Mr Pascal had not accepted the note was done to assist the claimant to ensure that he would be paid for his period of ill-health. During cross examination, the claimant was asked whether Mr Pascal had been ‘racist’ towards him and he said that Mr Pascal had been rude and disrespectful but not racist. He then accepted that Mr Pascal had not been rude or disrespectful towards him but maintained that Mr Pascal had been rude and disrespectful but not racist towards Ms Siwek (below).

[34]After a short while, the claimant’s mother took the phone from the claimant. The phone was on speaker. Mr Pascal was not immediately aware that he was speaking to Ms Siwek (he knew he was speaking to the claimant’s mother). That the claimant’s mother was Ms Siwek became clear during the call. Ms Siwek raised her voice during the call. That is perhaps understandable as she was protective of the claimant as he was sick. When Mr Pascal asked to speak to the claimant again, Ms Siwek refused to let him do so. The claimant accepts that by now Ms Siwek was shouting at Mr Pascal because Mr Pascal suggested that she was not an employee of the respondent (we accept Mr Pascal wrongly thought that she had left the respondent by then). Ms Siwek accepted that she was angry. She raised belongings left in her locker with Mr Pascal. Mr Pascal did not speak to Ms Siwek in a racist manner during the call. The claimant’s evidence during cross examination was that Mr Pascal had then said to Ms Siwek that she ‘was unwell and needed to see a doctor’. Ms Siwek’s evidence was that Mr Pascal said that she had ‘issues with her head’ and should see a doctor. Mr Pascal was not asked about that allegation, made for the first time during cross examination of the claimant and Ms Siwek. Mr Pascal ended the call soon after it began, as Ms Siwek would not let him speak to the claimant again.

[35]We accept that Mr Pascal telephoned the claimant to advise the claimant that in order to be paid, the form required an end date. He did not refuse to accept the form. Rather, he advised that the form should first be amended to ensure that the claimant would be paid his sick pay. He did not speak to the claimant or Ms Siwek in a racist manner and did not shout at the claimant or Ms Siwek. Ms Siwek did raise her voice. She was upset.

[36]The claimant subsequently spoke to his GP following the phone call and the GP completed a Fit Note dated 16 April 2021, which gave an end date for the claimant’s illhealth as 17 April 2021 [93]. The claimant was subsequently paid for his period of sickness.

[37]Mr Pascal’s evidence was that he did not allocate shifts to the claimant following the end of the claimant’s period of sickness because the volume of available work at Tesco had fallen as a result of the lockdown. Tesco required, he said, approximately half the staff it had previously required for each shift. We found that odd because until the claimant was sick on 1 April, the claimant had been working 5 days per week on a regular basis [137]. There was no documentary evidence that Tesco required half the number of workers it had previously required (lockdown restrictions were diminishing by April 2021) but we accepted Mr Pascal’s candid oral evidence that he chose to prioritise workers with better attendance records for the shift work that was now available. The respondent’s approach to preferring workers with better attendance records is questionable and one that might fall foul of the Equality Act’s disability provisions, but that is not an issue before us (there is no disability discrimination complaint). The claimant’s contract did not guarantee that he would be provided with shifts but it does provide for pay between assignments if the claimant has notified the respondent of his availability. The claimant did not notify the respondent of his availability for work when his period of sickness ended [114]. He was not contacted by the respondent until 13 May [114] (see below).

[38]On 21/23 April 2021, Dr Siwek emailed the respondent raising the concerns that he had about the way that the claimant had been treated [94-95/96-97]. Ms Siwek was copied into the email but the claimant was not. Dr Siwek wrote: ‘grossly aberrant behaviour that has been meted out to him by in particular …[Mr] pascal….Artur has been the subject of harassment and feels he has constantly been undermined by the podium staff…. Not only this but his work percentages have been tampered with and manipulated in what appears to be a cynical attempt to portray him as an unsatisfactory employee. Additionally Artur had a nasty viremia at the beginning of the month complicated by a bacterial infection. He received a course of strong antibiotics….His doctor furnished him with the statutory sick notes which Artur submitted. For some reason these have been rejected by Pascal and Artur has been denied any sick pay or note regarding his shift recommencement. Ms Siwek tried to reason with Pascal on the phone but was treated with total disrespect ….’ The claimant told us that he had not told Dr Siwek what to say in the email and did not see the email before it was sent.

[39]The People team emailed the claimant on 26 April 2021 to advise him that Mr Aaron Rymill-Quinn, the respondent’s Regional Account Manager, would like to meet with him and Ms Siwek to discuss the complaint that had been made by Dr Siwek [107-109].

[40]Shortly after the above meeting on 7 May 2021, Mr Rymill-Quinn sent an email to Ms Radziszewska stating that Ms Siwek would be ‘trying to get the [claimant] back to work soon’. He noted that the claimant and Ms Siwek had issues with the site and that in his view “its (sic) difficult because it is a really fast paced hard working environment and if workers pick rates are too slow we don't keep them (driven by the client)” [102-103]. As to an allegation that the claimant’s pick rate was lower because the system had been tampered with, Mr Rymill-Quinn noted that this data was set in Tesco’s system and could not therefore be ‘manipulated’ [102]. That accords with Mr Pascal’s evidence.

[41]On 13 May 2021 Ms Chaudhary (Account Manager) sent the claimant a message asking that he confirm his plan for returning to work [114]. The claimant sent a response later that day [116] which was prepared for him by Dr Siwek [113]. A further email from the claimant followed on 14 May 2021 [119] which again was prepared by Dr Siwek [117]. Those responses raised various further complaints in relation to holiday pay and the alleged mismanagement of the claimant’s return from sickness absence. The claimant did not confirm a plan for returning to work, nor state when he would be available for work, despite the request that he do so. The claimant was wating, he said, to be provided with a reason for not offering him shifts. Ms Chaudhary subsequently placed the claimant on the ‘no contact list’, following contact from the claimant’s mother to say he would not be returning to work, as he was bringing a claim. This was a list of people who should not be contacted to be offered work due to a range of reasons. There is, as far as we are aware, no check as to why someone is placed on the list and we did not see any policy document. The Tribunal did not consider this to be good industrial relations practice more generally.

[42]On 17 May 2021 Dr Siwek sent an email to the respondent’s HR team making accusations that they had been “grossly incompetent and negligent”. He indicated that he might pursue ACAS/court assistance [118]. The claimant did not see/review the email before it was sent. He had however discussed the possibility of a Tribunal claim with Dr Siwek. On 25 May 2021, Dr Siwek emailed the respondent again stating that he had contacted ACAS in respect of claims made by the claimant and his mother [134].

[43]The claimant was invited to and attended a grievance meeting, which eventually took place on 27 May 2021 [121 & 141-146]. Mr Gill conducted the meeting. There had been some confusion about the nature of the claimant’s contract as to whether the grievance procedure applied (the respondent ultimately accepted that it did; Ms Radziszewska accepted that she had initially made an error) and whether Ms Siwek could accompany him to the meeting (the respondent ultimately accepted that she could). Mr Gill had made an initial error and assumed that Ms Siwek was not one of the respondent’s workers, so she could not accompany the claimant, as she was not, he thought (wrongly) a colleague or trade union representative [132-3]. The claimant and Ms Siwek attended the meeting with Mr Gill [142-146]. The meeting was conducted remotely on Teams as Mr Gill was not on site that day – he was at Tesco Didcot [139]. In evidence, the claimant said that he does not make any complaint about the conduct of the meeting. His grievance was that Mr Pascal had been rude to him on the phone (he thought the date was 3 or 4 April), that Mr Pascal had ‘put him on holiday’, that Ms Chaudhary had said if she did not hear from him she would remove him from the work allocation system, that a Tesco supervisor had been rude to him, that his performance had gone down at around the end of March. The claimant did not allege that the respondent had breached Health & Safety rules in 2020. At the end of the meeting Mr Gill said that he would investigate the claimant’s complaints.

[44]Dr Siwek sent two emails to Mr Gill on 27 May alleging that Mr Pascal had followed the claimant and Ms Siwek into the building on 27 May and followed them out again and that they felt threatened and that he understood that the meeting had been conducted remotely [147-8]. We accept Mr Pascal’s evidence that he simply passed the claimant and Ms Siwek in the car park.

[45]Mr Gill sent an email to Ms Chaudhary and Mr Aaron Rymill-Quinn on 27 May, attaching the meeting notes and Dr Siwek’s emails. Mr Gill asked that Mr Pascal be asked for his account and that Ms Chaudhary advise him whether Mr Pascal saw the claimant and his mother on and off site and what Mr Pascal’s attitude was with them. He asked that screenshots of messages between Mr Pascal / Ms Chaudhary and the claimant be sent to him, that the claimant’s performance indicators for March be looked into, that an investigation be conducted into what conversations Mr Pascal had with the claimant about his SSP and why the claimant was paid for 5 days holiday, when he did not request it, and that someone contact the claimant to offer some shifts moving forwards [149]. A statement was taken from Mr Pascal [154]. At the end of the investigation, the claimant’s grievance was not upheld for the reasons set out in an outcome email sent to him on 9 June 2021 [155/160]. The claimant was advised of a right of appeal. The claimant was told that he would be contacted about booking further shifts. The claimant accepted in evidence that there was therefore an investigation into the concerns raised in Dr Siwek’s email of 21 April in which his complaints were addressed [155].

[46]On 9 July 2021 the respondent received an email from Dr Siwek stating that the claimant and his mother were making claims in the Employment Tribunal and that he (Dr Siwek) would be representing them [162]. The claimant’s ET1 was received by the Tribunal on 18 July 2021 [2]. On 13 January 2022, Dr Siwek wrote to the Tribunal in response to a request for further information from the respondent [27]. In that email Dr Siwek states that the claimant resigned on 27 May 2021 by ‘verbal followed by letter’ [29]. Dr Siwek said in evidence that date was stated in error. Following the 17 January 2022 PH, EJ Jones ordered the claimant to write to the Tribunal and the respondent by 7 March 2022 providing further information [31-42]: 1. The date on which the claimant says he resigned from the respondent’s employment, if he says he resigned verbally the details of who he spoke to, where and on what date; 2. The date of the email he sent to confirm his resignation…. Dr Siwek responded on 7 March 2022 [46-47] . He stated that ‘…following receipt of an early conciliation certificate from ACAS, Dr Siwek, on the instruction of [the claimant] sent by way of email at 13.12 hours on [9 July 2021] stating that gross breach of trust, confidence and egregious dealings of Staffline made it mandatory to RAISE the appropriate claims within the jurisdiction of the [Tribunal]. The email was sent to PEOPLETEAM@STAFFLINE.CO.UK. Not only this but Dr Siwek made telephone class to the aforementioned manager. I trust that this further specification satisfies the spirit of ORDER 7.1 and, 7.2….’ The email sent by Dr Siwek on 9 July in fact stated [162]: WITHOUT PREJUDICE Be advised that the above is now proceeding to ETs. As you may be aware I am representing the said Ms Siwek and [the claimant].

[47]On 30 November 2022 at a second Preliminary Hearing [65-69], Dr Siwek told EJ Brannan that the claimant resigned in a telephone call by him (Dr Siwek) to the respondent on 9 July. He told the Judge that he could not remember the name of the person he spoke to. EJ Brannan considered that ‘the claim that the claimant resigned on 9 July in a telephone call by Dr Sivek (sic) ha[d] little reasonable prospects of success.’ Dr Siwek’s evidence to this Tribunal was that he spoke to the receptionist who transferred his call and that he told someone at the respondent along the lines of ‘disappointed that things had deteriorated …can’t go to work – breakdown trust – be advised no longer employee’ and that the person he spoke to simply said ‘thanks’. Ms Radziszewksa can find no record of Dr Siwek telephoning the respondent on 9 July to resign on the claimant’s behalf. We accept that and we accept her evidence that if Dr Siwek had called and resigned on the claimant’s behalf that it would have been followed up formally with the claimant. It was not followed up with the claimant.

[48]The claimant said very clearly in evidence that he had not resigned. Dr Siwek accepted that to be so – he asked to recall the claimant on Day 3 to re-examine him on the issue. We were sure that the claimant understood the question he was asked by counsel because he said in response in evidence that it was his understanding at the time that if he left the respondent’s employment, he would be unable to bring court proceedings. The claimant also said that he did not ask Dr Siwek to resign on his behalf. The claimant can still access the respondent’s online portal and indicate his availability for work. He has not, however, worked for the respondent since he was sick in April 2021. He has secured a new job.

[49]Dr Siwek’s evidence was that he resigned on the claimant’s behalf on 9 July in a telephone call to a person unknown. He said that the initial reference to 27 May 2021 [29] was an error. There is no record of a telephone call on 9 July. We accept the respondent’s evidence that if Dr Siwek had telephoned the respondent to resign on the claimant’s behalf that they would have followed it up with the claimant. There is evidence that the respondent followed up written correspondence and we accept Ms Radziszewska’s evidence that a telephone call would have been followed up too [162]. We find as a fact that Dr Siwek did not telephone the respondent on 9 July 2021. Submissions

[50]Both parties had the opportunity, which they took, to make oral submissions to the Tribunal at the end of the evidence. The respondent also provided written submissions. We had regard to those submissions in reaching our decision. We do not repeat them here. Discussion and Decision

[51]The Tribunal took into account its findings of fact and the relevant law before reaching its decision.

[52]We start with our conclusion as to whether the claimant resigned. We unanimously and unhesitatingly conclude that he did not. The claimant says that he did not resign; nor did he ask Dr Siwek to resign on his behalf. It was his understanding that, if he resigned, he would not be able to bring a claim. Dr Siwek initially stated in January 2022 that the claimant resigned on 27 May 2021 both by verbal and written communication [29]. He later stated, during the November PH, that he (Dr Siwek) resigned on the claimant’s behalf on 9 July in a telephone call to a person unknown. The ET1 does not assert that the claimant resigned. There is no record of a telephone call on 9 July. We accept the respondent’s evidence that if Dr Siwek had telephoned the respondent to resign on the claimant’s behalf that they would have followed it up with the claimant. There is evidence that the respondent followed up written correspondence and we accept Ms Radziszewska’s evidence that a telephone call would have been followed up too [162]. All in all, we conclude that Dr Siwek did not telephone the respondent on 9 July 2021. If he had done so, we think he would have said so in the ET1 and/or in January 2022 and/or followed the telephone call up with an email. If we had found as a fact that Dr Siwek telephoned on 9 July, we would have concluded that the claimant had not given Dr Siwek authority to resign on his behalf.

[53]Given our conclusion that the claimant did not resign, that is the end of the claimant’s unfair constructive dismissal complaint and it is dismissed. But, for completeness, we will also express our brief conclusion as to whether the respondent committed a fundamental breach of contract. We remind ourselves that the test to be applied is one of objectivity. We therefore needed to consider matters not through the eyes of the claimant, but through an objective person approach – from the viewpoint of a reasonable person in the position of the claimant. In essence, we must look at the Respondent’s conduct and determine whether it is such that its effect, judged sensibly and reasonably, is such that the Claimant could not be expected to put up with it. The question is whether, objectively speaking, the Respondent has conducted itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between the Respondent and the Claimant. We consider each act in turn below.

[54]For the reasons below we are not satisfied that there has been a fundamental breach of contract in this case.

[55]Taking each allegation in turn: 54.1 Did the Respondent do the following things and, if so, did the respondent breach the implied duty of trust and confidence? 1. Breach its health and safety obligations by: During a nightshift in 2020 at approximately 1am upon lifting a pallet of potatoes, within the provisions of the respondent’s performance criteria (computerized system regarding speed of delivery of producing pallets to Tesco), the claimant suffered acute lower back pain. The claimant reported the matter to the night shift supervisor. There was no examination or first aid provided. The claimant had to finish the shift (6am). We accept that the claimant hurt his back lifting a pallet, that he reported it to the shift supervisor, that he was permitted to go home about 40 minutes after completing the pallet he was working on (as opposed to the shift referred to by Dr Siwek [50]) and that he returned to work on his next shift . He was provided with manual handling training when he began his employment with the respondent. He did not make any complaint about the incident to the respondent at the time or later (he did not raise the matter with Mr Gill as part of his grievance) and there is no medical evidence documenting an injury. We conclude that the facts do not get close to establishing that there was a breach of contract, far less a fundamental breach, on the respondent’s part. There is no conduct on the part of the respondent identified that can be said to amount to a breach of the implied duty of trust and confidence (or the implied term that the employer should take reasonable care for the safety of their employees). There must be identified some conduct by the respondent which, in the circumstances, is repudiatory conduct, which creates or amounts to a fundamental breach of the health and safety term or a breach, unjustified by proper and reasonable cause, of the term as to trust and confidence. There is no evidence that the respondent failed to take steps which it should have taken or took steps which it ought reasonably not to have taken, which led, in either case, to the harm in question, and which conduct amounted to a repudiatory breach of the contract of employment. There was, we conclude, no breach of the implied duty of trust and confidence. 2. Fail to accept the SSP form from the Claimant, submitted to the Respondent on 10 April 2021. The respondent did not fail to accept the form from the claimant on 10 April for no reason. Quite the opposite. Mr Pascal telephoned the claimant to ask him to amend the form to provide an end date because he knew that the claimant would not receive SSP without an end date. The implied duty of trust and confidence has been defined as a duty that the ‘employer shall not, without reasonable and proper cause, conduct itself in a manner calculated and/or likely to destroy or seriously damage the relationship of confidence and trust between an employer and employee’. Mr Pascal was trying to ensure that the claimant was paid his sick pay. Following the telephone conversation, the claimant contacted his GP, and the fit note was completed with an end date and the claimant was paid his sick pay. There was no breach of the implied duty of trust and confidence. 3. Fail to offer the claimant new assignments after his period of sickness. Whilst we were surprised that the respondent did not produce documentary evidence of the reduction in work available in April 2021, we accepted Mr Pascal’s evidence that the reason the claimant was not offered shifts between April 17th - May 13th was because he had a higher sickness absence rate than others who were offered work. Whilst we do not condone that approach, we accept it was the reason. The claimant was subsequently placed on a no contact list, following Ms Siwek’s communication to the respondent that he would not be attending work because he was taking the respondent to court. There was no breach of the implied duty of trust and confidence. The reason the claimant was not offered work was because he had a higher sickness absence rate. Whilst we do not consider that to be the best industrial practice, we do not find that the conduct was such to conclude that the Respondent, without reasonable and proper cause, had acted in such a manner intended or likely to seriously damage or destroy the relationship of trust and confidence. The claimant’s contract did not guarantee him shifts – although it did provide that he would be paid between shifts if he notified the respondent of his availability for work. The claimant did not so notify the respondent. 4. Fail to address the Claimant’s concerns raised in Dr Siwek’s email dated 21 April 2021. The claimant’s concerns were investigated and reasoned conclusions reached by Mr Gill, an outcome letter sent and a right of appeal provided. If the claimant was unhappy with the outcome, he could have appealed. He did not. There was, in our conclusion, no breach of the implied duty of trust and confidence. 5. On 10 April 2021, Mr Pascal spoke to the Claimant and his mother, Ms Svetlana Siwek, in a racist, rude and disrespectful manner. Mr Pascal did not speak to the claimant in a ‘racist, rude or disrespectful’ manner towards the claimant on 10 April. Ms Siwek was upset during the call and as a result she raised her voice towards Mr Pascal. Mr Pascal did not speak in a racist manner towards Ms Siwek. If Mr Pascal was impolite/disrespectful towards Ms Siwek (suggested to Ms Siwek that she should see a doctor as she was unwell), we would not regard what had happened during the brief conversation between Ms Siwek and Mr Pascal as amounting to a breach of the implied term of trust and confidence existing between the claimant and the respondent. The respondent did not, in our conclusion, conduct itself in a manner calculated or likely to destroy trust and confidence between an employer and employee.

[56]In conclusion we would have decided that there was no breach of the implied term of trust and confidence either individually or cumulatively.

[57]For completeness, had the claimant not withdrawn the race discrimination claim, we would have concluded, on the basis of the evidence that we did hear from the respondent (we did not, of course, hear the race complaint), that the respondent had discharged the burden of proving that its actions had nothing whatsoever to do with the claimant’s race (nationality) (the reason why question).

[58]We end with an observation. The claim was drafted by Dr Siwek, the claimant did not see or read the ET1 before Day 1 of this Hearing, he did not attend either Preliminary Hearing, did not see or read the List of Issues, nor read his joint witness statement before Day 1 of the Hearing. Dr Siwek wrote most of the emails sent to the respondent. The claim was, in all but name, Dr Siwek’s claim. The claimant did not have any meaningful input into this claim until the Final Merits Hearing. We do not doubt that Dr Siwek’s intention was to assist the claimant but, in the end, a key reason that the claimant’s claim has failed is because it was not the claimant’s claim. The claimant’s oral evidence was clear and honest. The allegation that the claimant resigned was denied by the claimant; he did not ask Dr Siwek to resign on his behalf, and the complaint that the treatment meted out to the claimant during the relevant period was because of race/nationality was denied by the claimant. Employment Judge Scott Dated: 25 May 2023 Appendix 1: Day 1 List of Issues 1 Unfair dismissal1.1 Was the Claimant dismissed?1.1.1 Did the Respondent do the following things:1.1.1.1 Breach its health and safety obligations by: During a nightshift in 2020 at approximately 1am upon lifting a pallet of potatoes, within the provisions of the respondent’s performance criteria (computerized system regarding speed of delivery of producing pallets to Tesco), the claimant suffered acute lower back pain. The claimant reported the matter to the night shift supervisor. There was no examination or first aid provided. The claimant had to finish the shift (6am).

1.1.1.2 Fail to accept the SSP form from the Claimant’s GP, submitted to the Respondent on 10 April 2021;

1.1.1.3 Fail to offer the claimant new assignments after his period of sickness;

1.1.1.4 Fail to address the Claimant’s concerns raised in Dr Siwek’s email dated 21 April 2021.

1.1.1.5 On 10 April 2021, Mr Pascal spoke to the claimant and his mother, Ms Svetlana Siwek in a racist, rude and disrespectful manner.

1.1.2 Did the above breach the implied term of trust and confidence?

1.1.3 The Tribunal will need to decide:1.1.3.1 whether the Respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent; and

1.1.3.2 whether it had reasonable and proper cause for doing so.

1.1.4 was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the claimant was entitled to treat the contract as being at an end.

1.1.5 Did the Claimant resign on 9 July 2021. Dr Siwek says that he telephoned the respondent on 9 July to advise that the claimant was resigning.

1.1.6 If so, did the Claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the Claimant’s resignation.

1.1.7 Did the Claimant affirm the contract before resigning? The Tribunal will need to decide whether the Claimant’s words or actions showed that they chose to keep the contract alive even after the breach.

1.2 If the claimant was dismissed, was there a potentially fair reason for dismissal? The respondent does not seek to rely upon a potentially fair reason. Its position is that the claimant was not dismissed.

1.3 If the claimant was dismissed, is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed?

1.4 If the claimant was dismissed, did he cause or contribute to the dismissal by blameworthy conduct (contributory conduct)?

1.5 If so, is it just and equitable to reduce the basic and/or compensatory award? By what proportion? [2. Remedy issues to be decided, if relevant, after a decision is on liability]. 3. Direct race discrimination (Equality Act 2010 section 13)

3.1 The Claimant’s ethnicity is Armenian. He compares himself with the Respondent’s other employees who were on assignment at the Tesco Distribution Centre, Dagenham who were not Armenian. It is the Claimant’s case that he and his mother were the only persons of Armenian ethnicity employed at that site.

3.2 Did the Respondent do the following things:3.2.1 Before he went off sick, the Claimant alleges that Mr Pascal discriminated against him at work by manipulating his work percentage, undermined and disrespected him;

3.2.2 Fail to accept the Claimant’s fit notes, which he sent on 10 and 19 April, and which confirmed that he was well enough to return to work;

3.2.3 Mr Pascal disrespected the Claimant and his mother in a telephone conversation on or around 20 April;

3.2.4 Failed to properly address the matters raised in the Claimant’s grievance dated 21 April 2021, either on receipt or in the grievance process; Did each of the above acts amount to a detriment (s39(2)(d) EqA 2010)?

3.2.5 Constructively dismiss the claimant (s39(2)(c)EqA 2010)?

3.3 Was that less favourable treatment? The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether he was treated worse than someone else would have been treated. The Claimant has not named anyone in particular who he says was treated better than he was, and he relies on a hypothetical comparator.

3.4 Has the Claimant proved primary facts from which the Tribunal could conclude that the difference in treatment was because of the protected characteristic of race (nationality)?

3.5 If so, what is the Respondent’s explanation? Has the Respondent proved that the Claimant’s race had nothing whatsoever to do with the less favourable treatment? [4. Remedy issues to be decided, if relevant, after a decision on liability] [5. The Holiday Pay claim to be decided, if relevant, after a decision is made on liability. Holiday pay due upon termination depends upon there having been a dismissal].