Mr N Plutowski v Compass Group UK and Ireland Ltd: 3300020/2024
REASONS
[1]The Claimant was employed by the Respondent from 31 January 2005 until 11 November 2023 when he was dismissed, purportedly by reason of conduct. The Claimant, was employed as a domestic assistant by the Respondent. The Respondent is a company which provides services to large institutions including cleaning and domestic services. The Claimant worked under the terms of the Respondent’s agreement with its client, Addenbrooke’s Hospital Trust, and worked as a domestic assistant in the hospital. The Claimant, who was dismissed, pursues claims for unfair dismissal and direct discrimination on the basis of the protected characteristic of sexual orientation. The Claimant is a gay man.[2]We had before us a helpful bundle running to some 200 pages and we heard evidence from the Claimant and for the Respondents from Ms Julie Hillsdon, the Housekeeping Manager, from Alice Zoke, also a Housekeeping Manager and Josephine Berry, Operations Director. The Claimant is not represented and English is not his first language. His claim is therefore home made.[3]His claim was presented on 2 January 2024 and there was a preliminary hearing before my colleague, Employment Judge Quill, on 11 October 2024 which listed this hearing and also clarified the Claimant’s claims and set out a list of issues. Essentially, the Claimant claims unfair dismissal and direct discrimination based on the protected characteristic of sexual orientation. The act of discrimination relied upon is the dismissal. The claims were presented in time and it is accepted by the Respondents that there are no time issues for this Tribunal to consider. This is despite the fact that time is listed in EJ Quill’s summary as an issue to be determined. EJ Quill gave directions for witness statements to be exchanged prior to trial. However, the Claimant did not prepare a written witness statement. We had three witness statements for the Respondents. We consider that the Claimant simply did not understand that he needed to prepare a separate witness statement and was relying upon the contents of his ET1. He also produced a fairly comprehensive appeal letter after he was dismissed, although he subsequently withdrew his appeal. We carefully considered the overriding objective and in the circumstances considered that nothing would be served by making the Claimant write out a statement and valuable hearing time would have been lost. Therefore, it was agreed by the Tribunal, with the consent of both parties, that we should treat the Claimant’s ET1 and his letter of appeal as his statement of evidence before this Tribunal. He did, of course, expand upon that when he gave live evidence in the witness box and was subject to significant cross-examination by Mr Jocey. Findings of fact.[4]The Claimant was working on 26 October 2023 and had worked a shift on level 5 at Addenbrooke’s Hospital which was due to finish at 3.30 pm. On that day, prior to a shift end, Julie Hillsdon was carrying out a general inspection of cleaning standards within the hospital which is part of her role. There is a cupboard on level 1 which is past the Central Sterile supply Department. This is a large cupboard where sterile goods and equipment are generally stored. The cupboard is on level 1 and near one of the hospital exits.[5]While conducting this inspection, Miss Hillsdon found a plastic carrier bag which everyone accepts, belongs to the Claimant. In it were the Claimant’s wallet, keys, cigarettes, lighter and two trays of hospital food and some microfibre cloths together with some loose cash. The food was wrapped up and was still warm. It is Miss Hillsdon’s view that the food which was a pork dish and another which she said she thought was mashed potato, were food trays from the hot food trolley which had been in service during the lunch service, some hours earlier but she said that the food trays were still warm. We accept her explanation and her view. She identified the wallet as the Claimant’s and took the bag to the office where she knew the Claimant would have to attend at the end of his shift to clock out. When the Claimant attended the office Miss Hillsdon, together with the supervisor, held a meeting with the Claimant where she conducted an investigatory meeting. We had the notes of that meeting before us. The Claimant stated that he had his bag of personal items with him during his shift but placed it in the cupboard at about 3.20 pm before walking along the corridor to clock out. The Claimant denied that he had taken the food from the ward trolley during his shift and placed it in his bag. The Respondents have a very strict policy in place concerning theft from their clients, the hospital. That policy specifically states that theft of such items amounts to gross misconduct.[6]The Claimant indicated that someone else must have placed the food in his bag and the cloths but he did not, at that time, suggest who might have done that. Miss Hillsdon suspended the Claimant on full pay and continued to investigate.[7]She then carried out further investigations which included speaking to two of the Claimant’s colleagues who, on occasion, worked with him. They both confirmed that they had never seen the Claimant take any food from the trolleys at all. Miss Hillsdon did not specifically interview the employees who were on the shift with the Claimant on the day in question. There was no CCTV covering the area where the Claimant worked on level 5 that day. Miss Hillsdon considered the matter should go forward to a disciplinary hearing after she completed her investigations. She considered it odd that the Claimant would place his bag in an unlocked cupboard on level 1 when he had had it with him on level 5 and had planned to take it with him to the office when he was due to clock off. She considered that it was odd that he would descend from level 5, drop his bag in a non locked, non secure cupboard then walk 100 yards to clock off, walk back, get his bag and leave by an exit near the cupboard. He also offered to her, no credible explanation as to why the food and cloths were in his bag other than someone must have planted them so she considered that it was likely that he had stolen them. Miss Hillsdon passed her findings to her superior, Gordon Halliwell, who asked Alice Zoke to undertake a disciplinary hearing. The notes of Miss Hillsdon were passed to Miss Zoke as well as statements taken from the Claimant’s colleagues. Miss Hillsdon took no further part in the process.[8]Miss Hillsdon said that she had never considered the Claimant’s sexual orientation at any time during the process and indeed at any time when he worked there and did not know that he was gay.[9]Miss Zoke then conducted a disciplinary hearing with the Claimant. Miss Zoke is experienced in such matters. She satisfied herself that the Claimant had been fully aware of the Respondent’s policy and what the Respondent’s position was with respect to employees who steal food from the client.[10]At that hearing the Claimant did not assert who he thought had put the food and the clothes in his bag but he did deny that he had taken the food and suggested that someone had placed it in the bag. Miss Zoke considered that it was suspicious that the Claimant had placed his bag where he did and went to clock out, planning to return and collect it afterwards and that he had no credible explanation as to why the items were in his bag. He indicated that someone else had put the items there without his knowledge. Miss Zoke considered that it was implausible, particularly as he had not named anyone who might have wanted to such a thing. She considered that the most likely explanation, in the circumstances that were before her, was that he had attempted to steal those items. She took the view that he had taken the food from the ward on level 5, stashed a bag in the cupboard intending to clock out on level 1, return to the cupboard on the same level, retracing his steps from earlier and leave with the bag and the food in it. She considered the statements taken by Miss Hillsdon, which did not really assist her. The fact that the Claimant’s colleagues testified that they had never seen him take food in the past did not mean that he hadn’t taken the food on 26 October. She took into account the Claimant’s length of service and his clean record but on the basis of the strictness of the Respondent’s policy on theft and in all the circumstances before her, she decided to dismiss the Claimant. She paused the meeting before speaking to HR and then reconvened the meeting and dismissed the Claimant. The dismissal was summary. This was on 11 November 2023.[11]The Claimant raised a detailed and very well written appeal letter which he sent on 16 November 2023 but subsequently indicated that he wished to withdraw the appeal. In that letter, for the first time, he alleged that the food must have been planted by Julie Hillsdon or another colleague, Catano. He stated that Catano had belittled him and had been homophobic towards him but had not, in that letter, gone into specific detail.[12]Melissa Brown of HR wrote to the Claimant attempting to persuade him to continue with his appeal but he didn’t. It would appear that, by then, the Claimant had determined to go and through ACAS had determined that he would either come to a Tribunal or seek a financial settlement by way of an alternative.[13]We heard evidence from a Josephine Berry who had became involved when, on 11 November 2023, the Claimant entered the hospital intoxicated and attempted suicide by trying to hang himself outside one of the entrances. He was admitted to hospital and subsequently was discharged. Despite him later submitting an appeal and then withdrawing it, Miss Berry met with the Claimant as she and the Respondents were concerned about his welfare. They talked through his dismissal.[14]The first time, at this point, the Claimant suggested his dismissal was because of sexual orientation and that someone had put the food in his bag to frame him. He said other staff stole food and had not been dismissed. Miss Berry, who wanted to help the Claimant, offered him reinstatement or a placement at one of the Respondent’s other clients, such as a school, that would have been re-engagement. He refused both. The reason he gave, in evidence before this Tribunal was that his reputation was so damaged by his dismissal that it would have been impossible for him to return in any capacity. He said he could not return and said to Miss Berry, “I want money”, a fact that he admitted in cross-examination.[15]The Claimant in his proceedings suggested that Julie Hillsdon planted the food on him. He also, for the first time, at any point in the process, including the disciplinary process, the investigation, the hearing, the subsequent discussions with Miss Berry, his ET1 and, in the hearing before EJ Quill, said in evidence to this Tribunal that two days before his bag was discovered by Miss Hillsdon, she had called him a gay wanker and told him he needed to work more. We asked him about about the homophobic comments he had raised in his appeal letter that he said had been uttered by Catano. He said in evidence before us, that Catano had laughed at him, suggested he should wear a dress and called him a pussy. This is the first time either of these allegations had been raised at any time during this process. The Claimant said that the comments made by Miss Hillsdon had profoundly affected him. We would have expected that if these comments had been made and they had had the effect, as one would have imagined they would, then he would have mentioned them before, either in the disciplinary process or the appeal letter or his ET1 or in the hearing before EJ Quill, when the issues were fleshed out and those issues included a discrimination claim for sexual orientation. They were not and were read for the first time in these proceedings before us and we must therefore say that we treat the evidence that the Claimant gave us as to those incidents with great caution and some scepticism.[16]We had no reason to doubt the evidence we have heard from any of the Respondent’s witnesses who gave their evidence clearly and without waiver or obfuscation. There was some confusion as to the lift which the Claimant used on the day in question on 26 October. In his evidence he said he used the passenger lift to travel from L5 to L1 and there was mention of another lift being a bed lift, which was a bigger lift for patients and beds to fit into. This was somewhat confusing and we asked for a plan to assist us and we are very grateful to the Respondents that they produced a plan. It turns out that there are in fact three lifts. A passenger lift, somewhat further away from the cupboard where the bag was placed by the Claimant and two other lifts closer to the cupboard. One was the bed lift and the other was a service lift. When the Claimant saw the plan he corrected himself and said he was wrong to call the lift he used a passenger lift but it was the service lift that he had used.[17]On this point and on the balance of probability, we accept the Claimant’s evidence that he used the service lift which was nearer the cupboard. Even so, we understand the Respondent’s witness’ surprise that he would put his bag in the cupboard, walk 100 yards to clock off, walk back again to the cupboard, remove the bag and then leave. We find it strange that the Claimant would have valuable items such as his wallet and keys in an unlocked cupboard. However, we do accept that he said he always used that cupboard and it was because there was a lack of lockers on level 5 for staff and were insufficient of them to be used. That may be the case. The Law Unfair dismissalThe Law
[18]Unfair dismissal is governed by section 98 of the Employment Rights Act 1996 and essentially we are concerned with section 98(1), 98(2) and 98(4). Section 98 tells us, in determining for the purposes of this part, whether the dismissal of an employee is fair or unfair, it is for the employer to show:(1) (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection (1) if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention of a statutory enactment. In this case, of course, we are concerned with (b) being the conduct of the employee. (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question of whether the dismissal is then fair or unfair (having regard to the reason shown by the employer) (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case. 19. 98(1) tells us that it is for the employer to show what the reason for the dismissal was. 98(2) tells us that we then have to determine, on a neutral basis, whether there is sufficient evidence for us to determine that the dismissal was for a potentially fair reason and that if we are satisfied that that hurdle has been cleared we must then go to section 98(4) to determine the fairness of the dismissal. Often, cases revolve on section 98(4) and it is there that the difficulties often arise.[19]In assisting us with coming to a conclusion on the 98(4) test, we are directed to a number of authorities. Leading Authorities in respect of conduct cases are British Home Stores v Burchell [1978] IRLR 39379 which is pertinent in conduct cases. That sets out three tests and these are often referred to as the Burchell Tests.[20]The first is whether the employer held a genuine belief in the employees guilt, secondly, whether there was a fair and reasonable investigation pursued by the employer in all the circumstances, and thirdly, whether, therefore, that belief in the employees guilt was reasonably held. In circumstances where the Burchell test is passed, we then have to consider general issues on unfair dismissal and the authorities that we are referred to are Iceland Frozen Foods v Jones [1983] ICR and various other cases. That is the leading case and the one that is usually cited.[21]Employers have at their disposal, a range of reasonable responses to matters such as the conduct or incapability of an employee which may span from summary dismissal down to an informal warning. It is inevitable that different employers will choose different options. In recognition of this fact and in order to provide a standard reasonableness, the Tribunals can apply what is called, the band of reasonable responses approach. This requires Tribunals to ask whether the employer’s actions fell within the band or range of reasonable responses open to an employer. The approach was first put forward in the case of British Leyland (UK) Ltd v Swift [1981] where Lord Denning said the correct test is, was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him then the dismissal was unfair but if a reasonable employer might have dismissed him then the dismissal was fair. It must be remembered that in all cases there is a band of reasonableness within which one employer might reasonably take one view and another, quite reasonably, might take a different view. This test was then reapplied in the case I have already mentioned, Iceland Frozen Food v Jones, where a Tribunal had phrased its finding of unfair dismissal in such a way as to prompt Mr Justice Brown-Wilkinson to summarise the law concisely as the approach the Tribunals need to take. He said as follows: “We consider that the authorities established that in law the correct approach for the Tribunal to adopt in answering the question posed by section 19(8)(iv) is as follows: 1. The starting point should always be the words of section 98 for themselves. 2. In applying the section the Tribunal must consider the reasonableness of the employers conduct, not simply whether they, the Members of the Tribunal, consider the dismissal to be fair. In judging the reasonableness of the Employer’s conduct the Tribunal must not substitute its decision as to what the right course of action would be to adopt for that of the employer. In many, although not all cases, there is a band of reasonable responses that the employer’s conduct within one employer might reasonably take one view and another might reasonably take another. The function of the Tribunal as an industrial jury is to determine whether, in the particular circumstances of each case, the decision to dismiss the employees fell within the band of reasonable responses which a reasonable employer might have adopted in those circumstances. If the dismissal falls within that band then the dismissal is fair. If it falls outside that band then it is not fair. We are very mindful of these authorities and very cognisant of the fact that it is not our place to re-hear the disciplinary process and it is not for us to consider matters afresh. We are not here to substitute our view as to what we would have done in the circumstances but to judge whether what the Respondents did, fell within that band of reasonable responses. It is worth mentioning that in a conduct case, that really means that all the employer has to show is what the reason for the dismissal was, that it was a potentially fair reason and that they passed the Burchell Test and that they had a reasonably held belief in the Claimant’s guilt and that they dismissed as a result. They do not have to be right about their belief, they could be entirely wrong in this case and it could be the case that the Claimant didn’t take the food and that someone did plant it in his bag but if the approach of the Respondents is such that having conducted a reasonable investigation in the circumstances, they arrive at a conclusion which is genuinely and, in the circumstances, reasonably held, then that is sufficient. The law on direct discrimination under Section 13 of the Equality Act 2010.[22]Section 13 tells us that direct discrimination occurs when a person A discriminates against another B if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[23]So in those circumstances there has to be a comparator. It can be a hypothetical comparator or it can be an actual comparator but there has to be a comparator and the Tribunal then has to compare the treatment of the Employee with that of the comparator and determine whether or not there was less favourable treatment. That less favourable treatment then has to be because of the protected characteristic. So, if less favourable treatment is established then they move on to determining whether that less favourable treatment was because of the protected characteristic.[24]In this case, the protected characteristic is sexual orientation, and we were referred by Mr Joicey the case of Mandarsay v Nomura and this tells us that, even in circumstances where there is evidence of different treatment and there a protected characteristic, that does not automatically mean that the two are connected. There has to be evidence before the Tribunal which connects the two. There has to be an X factor which shows that the treatment was because of the protected.[25]Tribunals are entitled to draw inferences from evidence before them to determine whether or not, under the section that deals with the burden of proof, a prima facie case exists. That is section 136 of the Equality Act. If that is determined then the burden of proof switches to the Respondents and the Respondents have to adduce evidence to show the Tribunal that discrimination didn’t occur but it is for the Claimant initially to show that there is sufficient evidence to suggest that there was a prima facie case that there was less favourable treatment and it was because of the protected characteristic. Our conclusions in this case. Unfair dismissal[26]It is perhaps helpful and useful to turn to the issues set out in EJ Quill’s Case Management Summary and I do so at page 182 and page 183.[27]Dealing initially with the unfair dismissal claim, Judge Quill lists six items that the Claimant says points to the dismissal being unfair. The first, he says, that he did not put the items in his bag and someone else did, and he volunteers Julie Hillsdon as the most likely candidate but that is only the case after he had issued proceedings. We do not consider that there is a scintilla of credible evidence to suggest that Julie Hillsdon put the food in the Claimant’s bag and thereby ‘framed’ the Claimant. The Claimant’s assertion in this respect is nothing more than that, it is a bare assertion. Even if there was anything else to suggest this is a possibility, it seems to us highly unlikely that it would have been feasible or even possible for Miss Hillsdon or anyone else to do this in light of the timings involved. She, or another person, would have less than 10 minutes from when the Claimant put his bag in the cupboard, walked 100 yards to clock out and returned to the bag intending to take it home. That window occurred between 3.20 and 3.30. If Miss Hillsdon did it she would have to have seen the Claimant put his bag in the cupboard and have had two trays of food prepared, which presumably she had purloined from the lunch service some hours earlier, to then immediately plant in the bag.[28]The second is that the decision to dismiss was predetermined. There is simply nothing to support this assertion. We have heard no evidence to support that there was a predetermined decision. Miss Hillsdon conducted the investigation and recommended disciplinary action. She found the stolen items in the bag, she had no part in the disciplinary hearing or the decision to dismiss. Miss Zoke made that decision and was not involved in the proceedings up to that point. There would have had to have been a conspiracy between Miss Hillsdon and Miss Zoke and there is simply no evidence at all before us to support that fanciful notion. Such evidence was not even tested or put to the witnesses.[29]The third is that testimonials of three colleagues that they had never seen the Claimant take food previously, were ignored. In fact, only two colleagues were interviewed and both confirmed that they had not seen the Claimant take food when they worked with him. That, however, is of very little relevance to these proceedings. It doesn’t mean that the Claimant didn’t take the food when they didn’t see him or that he didn’t take the food in question. In any event, those testimonials, we do agree, were considered but had very little bearing on the events of 26 October.[30]The fourth is that there was an apparent comment that Miss Zoke made in the disciplinary hearing that she would dismiss the Claimant even if she knew that food had been planted. Here we accept the evidence of Miss Zoke that she didn’t say this. We have seen the notes. The Claimant appears to have interpreted the meaning of what she had said in the disciplinary hearing somewhat incorrectly. What she did say was that she accepted that it would be possible for someone to plant food and that it might lead to a dismissal but she queried whether anyone had actually done so.[31]Moving on to five, six and seven, which are essentially the three comparators, these are included in the unfair dismissal issues as evidence of the dismissal being unfair. We regard two of those comparators as not reasonable or fair comparators or viable. The first is Merid who was apparently caught in the bus station having stolen sandwiches and was not dismissed. We have so little information about this as to be unable to draw any conclusion from this. What is clear is that it took place some years before and we accept the evidence of Miss Hillsdon and Miss Zoke that it was a long time before they were involved, they had never heard of it, had no involvement in it and had no knowledge of it. There was simply insufficient information before us for us for us able to assess whether this is an appropriate comparator. We would have to have further information about the particular circumstances of that case and therefore we cannot accept that as a fair comparator.[32]The second is even more vague and refers to an unidentified individual some three years ago who had apparently taken jam from the kitchen and was not dismissed. Once again, we had so little information about this that we cannot possibly determine whether this is a fair comparator or not and therefore it is not valid.[33]The third comparator being an individual called Alasam, an employee who was dismissed because he was found to have eaten a yogurt that belonged to the Respondent or its client. Its actually in the favour of the Respondents in this case. We have evidence before us that in fact he was dismissed, pursued an appeal and that appeal failed and the dismissal was left in place so it looks as if the Claimant is wrong about the outcome there and in many ways, that just illustrates how seriously the Respondents take theft of property from their client and how strictly they enforce the disciplinary policy.[34]What must be stressed is that the law in this area is clear. The Respondents do not have to be right about their belief that the Claimant stole the items. They can form a view that is actually wrong. All the Respondents have to demonstrate is that they held a belief of guilt that was, in the circumstances, reasonable after a proper investigation in the circumstances.[35]This is a very sad case. It is very unfortunate that the Claimant, who has a clean record for 18 years has lost his job, no one doubts that the Claimant loved his job, was popular and that the dismissal has had a profound effect on him. However, Miss Zoke was faced with the fact that the food which was stolen was found in the Claimant’s bag and there was no plausible explanation as to how it got there, other than that the Claimant had taken it. She also was faced with the unlikely suggestion that the Claimant would place his bag in the cupboard, walk to clock out, retrace his steps to take the bag before leaving. We accept that the Claimant may have done this on a number of previous occasions and we accept his evidence that he had used that cupboard for a number of years. However, Miss Zoke was faced with the fact that the food was in the bag and that it was stolen food and that the bag was the Claimants. She was entitled to draw the conclusion that the Claimant was the most likely person to have taken it. The Claimant didn’t, at any stage, suggest who he thought might have planted it only after he had been dismissed. In the circumstances, however, even if he had suggested it, it was simply not credible that this had happened.[36]As for the investigation Miss Hillsdon conducted, we do consider that this, in all the circumstances, was reasonable. She could, in an ideal world, have interviewed those with whom the Claimant worked on the day in question but whatever they said would not have altered the fact that the food was found in the Claimant’s bag with no plausible explanation as to how it got there other than by his hand.[37]We therefore find that the Respondents had a genuine belief in the Claimant’s guilt, that they conducted a reasonable investigation in all the circumstances, investigations are not a counsel of perfection but we do consider that in the circumstances a reasonable investigation was conducted and we therefore find that the genuinely held belief was a reasonably held belief in the Claimant’s guilt and that the Burchell tests were satisfied.[38]Turning to section 98, therefore, we consider that the Respondents had demonstrated to us what the reason was for the dismissal and that it was conduct, we accept that. Conduct is a potentially fair reason under section 98(2) and turning to section 98(4) in light of the authorities and the virtual test, we do consider that the decision to dismiss fell within a band of reasonable responses open to the employer. They were entitled to dismiss for the reasons that they did and therefore the dismissal was fair and the Claimant’s claim for unfair dismissal must fail and it does.[39]Dealing with the discrimination claim on the grounds of sexual orientation, the Claimant complains that the dismissal was an act of direct discrimination under section 13 because he is a gay man. The three comparators are not helpful to the Claimant. The comparators cited suggest that the Respondents treated Alasam in precisely the same way as the Claimant was treated. The other two comparators are not valid comparators for the reasons we have stipulated. Therefore, there is simply no evidence before us of less favourable treatment and the direct discrimination claim does not even get off the ground for those reasons.[40]Even if we had found less favourable treatment there is simply no evidence whatsoever that the dismissal was, in any way, tainted by the Claimant’s sexual orientation. This was not even put to the witnesses by the Claimant in these proceedings.[41]The Claimant’s claim in direct discrimination fails and is dismissed. Approved by: