Mr M Jabbary v Splendid Hospitality Group and Others: 3300199/2017
EMPLOYMENT TRIBUNALS
Case No 3300199/2017
Between
Mr M JabbaryClaimantSplendid Hospitality Group and OthersRespondent
Before
Employment Judge BedeauIn person for claimantMs C McCann (instructed by Counsel) for respondentDate 21 February 2018
JUDGMENT
The claimant’s application to amend is refused.
REASONS
[1]This is an application by the claimant to add new matters and new claims to those already identified by Employment Judge Henry at the preliminary hearing held on 5 May 2017, when the learned judge set out, in my view, extensively, the claims and the issues. They cover the national minimum wage; expenses; direct discrimination because of religion/belief; direct race discrimination; indirect race discrimination; harassment; breach of contract; commission drawing/plans; and holiday pay; and issues in respect of remedy.[2]The claimant was ordered to provide further particulars by 15 May 2017, in relation to his indirect race discrimination claim by setting out the provision, criterion or practice he alleged the respondent applied that placed him at a particular disadvantage. The further particulars were received by the tribunal on 19 May 2017, a copy of it was also sent to the respondent’s solicitors and it is at pages 56 to 63 in the bundle of documents before me. It was also in the bundle 1 ph judgment + cm Nov 2014 wip version before Employment Judge Heal at the preliminary hearing held on 23 November 2017, to consider the respondent’s strike out and/or deposit order application as well as an order preventing the claimant from making new claims.[3]In paragraph 4 of EJ Heal’s judgment, the learned judge concluded that, “The claim for race discrimination set out in the claimant’s document dated 19 May 2017 is struck out (so far as may be necessary) insofar as it relates to indirect discrimination. (Insofar as this claim raises new issues of direct discrimination, it must be the subject of an application to amend. This will be decided at the hearing on 10 January 2018.)”[4]The claimant’s case is that the particulars in his 19 May document are not new claims because he has simply expanded the existing claims and referred me to pages 50 to 60 in the bundle. Ms McCann took me through the same document starting from page 57 all the way through to page 63 expressing concerns that the respondent may be required to address entirely new acts and claims.[5]I bear in mind that the claimant was dismissed from his employment on 3 November 2016 and presented his claim form to the tribunal on 31 January 2017. He is a lay person, but upon reading the very detailed further information document, it is apparent to me that he must have spent some time clarifying for himself the distinctions between direct, indirect, harassment, victimisation, breach of contract, all of which are legal terms. The predominant concern on the part of the respondent is the issue of prejudice.[6]This case was listed for a final hearing by EJ Henry on 5 May 2017 for 9 days to start on the 9 to 19 April 2018. In other words, the final hearing of this case was listed nearly a year ahead, and in listing the case for hearing the parties would have identified to the learned judge, the witnesses they would be calling to give evidence and relevant documents, based on their understanding of the claims and of the issues.[7]I am satisfied that in respect of the conversion of those matters from indirect discrimination to direct discrimination, the claimant is putting forward a new basis namely, that the indirect matters, having been rejected by Employment Judge Heal, now properly falls under the claim of direct discrimination. The issue[8]The issue before me is whether the claimant raised new matters of direct discrimination as well as additional matters not previously pleaded?
The law
[9]Under section 123, Equality Act 2010, a complaint must be presented within three months, “(a)….starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable,” 2 ph judgment + cm Nov 2014 wip version and “conduct extending over a period is to be treated as done at the end of the period,” (3)(a).[10]Under the ACAS conciliation provisions in section 140B, EqA 2010, the statutory time can be extended.[11]Time limits are to be applied strictly. The Court of Appeal held that the exercise of discretion on just and equitable grounds is the exception rather than the rule, Robertson v Bexley Community Centre [2003] IRLR 434. The factors a judge may consider in exercising his or her discretion are: the reason for and the extent of the delay; whether the Claimant was professionally advised; whether there were any genuine mistakes based on erroneous information; what prejudice, if any, would be caused by allowing or refusing to allow the claim to proceed; and the merits of the claim. There is no general rule and the matter remains one of fact.[12]I have taken into account the cases of Selkent Bus Co Ltd v Moore [1996] ICR 836, a judgment of the Employment Appeal Tribunal and Ali v office of National Statistics [2005] IRLR 201, Court of Appeal as well as the Presidential Guidance on General Case Management.[13]In considering whether to grant an application to amend a claim form, the tribunal must engage in a balancing exercise taking into account all relevant factors and to have regard to the interests of justice as well as the relative hardship that would be caused to the parties in granting or refusing the application, Selkent. The factors which should be taken into account are: the nature of the amendment; the applicability of time limits; and the timing and manner of the application.
Conclusion
[14]Having regard to the 19 May further information document, in relation to indirect discrimination, in the second paragraph, there is the absence of references to direct race, religion or belief of discrimination, in relation to the claimant’s health and well-being. These would be new claims requiring additional evidence. Likewise, the claim of disability discrimination. In relation to paragraph 1.1, relocating the claimant without notice, there is no reference to race, religion or belief. Under working hours, again there is no reference to race, religion or belief. The same applies to the paragraphs under draft revised contract.[15]With reference to access to cash credit and credit card, as set out, this is a new complaint requiring the respondent at this stage to search for evidence in rebuttal.[16]In relation to attending hospitality group award event, the claimant alleged that this was based on those who had more than 2 years’ service but no reference is made to direct race, religion or belief discrimination.[17]As regards holidays, this is a new claim not previously pleaded and there is no reference to either race, religion or belief. 3 ph judgment + cm Nov 2014 wip version[18]In relation to the claim of harassment by Mr Nadeem Boghani, although the claimant made reference to comments on his physical appearance, out of the 8 bullet points, points 4 and 5 are new matters. Under a separate heading of Bullying by Nadeem, out of the 10 bullet points, points 4,5,6,7 and 10 are new matters.[19]With reference to harassment in the office by Ms Sue Loosely, Ms Shelley Gleeson, and Ms Jean Robinson, this claim and the acts relied upon, were not previously referred to. This is a new claim.[20]A regards victimisation, this is against Ms Loosley, the alleged perpetrator and is considerably out of time.[21]In relation to those matters on pages 57 and 58, under direct discrimination by Mr Nadeem Boghani, out of the 12 bullet points, points 9, 10 and 11 are new matters and the last bullet point, 12, is a new act.[22]The claim of direct discrimination by Mr Shiraz Boghani, it is accepted by the respondent that the claimant can put his case on the alternative basis of either direct discrimination or harassment by relying on the same acts, section 212 EqA 2010.[23]In relation to the sub-heading of direct discrimination by Ms Loosley after complaining to her and to Mr Nadeem Boghani, those matters relied upon are entirely new and Ms Loosley no longer works for the first respondent.[24]I have come to the conclusion that prejudice here is the central factor. The claimant has a number of claims already set down for hearing. Were I to allow what I considered to be new claims as well as additional matters, it would require the respondent to take time out to search for additional evidence both orally as well as in documentary form. It is likely to lead to the hearing in April 2018 being vacated after the tribunal gave the parties nearly a year’s advance notice of it. If the case is to be taken out I can tell the parties that a 10-day hearing or more is likely to be heard towards the end of the year based on the current listing information.[25]As Ms Loosley no longer works for the respondent, it is unclear whether she would be ready, willing and able to be contacted to give evidence in respect of the additional allegations against her.[26]Balancing the prejudice the claimant is likely to suffer were I to refuse his application with the prejudice the respondents are likely to suffer were I to grant the application, I am satisfied the prejudice on the part of the respondents outweighs the prejudice the claimant is likely to suffer.[27]The claimant was dismissed from his employment as a Chauffeur and Executive Administrative after nearly seven months’ service on 3 November 2016. He notified ACAS on 3 January 2017 and a certificate was issued on 20 January 2017. The statutory time limit expired on 2 February 2017. He presented his claim on 31 January 2017. As some of the claims are new, I also consider that the application to amend by virtue of the 19 May 2017 document, is considerably 4 ph judgment + cm Nov 2014 wip version out of time. I do not extend time based on justice and equity as the claimant, in my view, demonstrated in the way he prepared his further information document, that he has knowledge of his employment rights. Applying Robertson v Bexley Community Centre, time limits are to be strictly applied. The claimant has provided no good reason for the delay.[28]The respondents are concerned about being required to constantly address new claims and issues making difficult preparing their case for the final hearing as it would be an ever-ongoing case of “shifting sands”[29]For those reasons I have come to the conclusion that the application to amend is refused. The claimant will be able to rely on those matters clarified by EJ Henry and expanded, albeit to a limited extent, by EJ Heal.[30]I gave judgment orally at the hearing after which the claimant asked for written reasons.[31]I made the following case management orders. ORDERS Made pursuant to the Employment Tribunal Rules 2013 1. Disclosure of documents1.1 The parties shall make disclosure of documents by list together with copies by not later than 4pm 14 February 2018.1.2 The respondent shall prepare and serve the joint bundle of documents by not later than 4pm 7 March 2018.1.3 Witness statements shall be exchanged on or before 26 March 2018. 2. Other matters2.1 Ms McCann told me that Mr Nadeem Boghani and Mr Shiraz Boghani were told on Friday 5 January 2018 that there will be at a family wedding in Calgary, Canada on 13 and 14 April 2018 and there are invited to attend. They both would like to present but it would mean travelling, at the latest, on Thursday 12 April 2018. Ms McCann applied for these individual respondents to give evidence first as it is unlikely that the tribunal will hear the evidence from them before their departure on Thursday should the claimant give evidence first. Video link would not be of benefit to the claimant as he would prefer to cross-examine these two witnesses at an open hearing.2.2 The claimant objected on the basis that he would like to observe and take into account the questions put to him before he cross-examined the respondent’s witnesses. 5 ph judgment + cm Nov 2014 wip version2.3 I bear in mind that the tribunal has power to regulate its own proceedings and do take into account the claimant’s concerns as well as the issues raised by Ms McCann.2.4 A fair trial could still take place if the respondents are allowed to call their evidence first as the claimant will have from now to 9 April 2018 sufficient time to prepare his cross-examination. Should the respondents’ witnesses go first it would mean that Mr Nadeem and Mr Shiraz Boghani would be able to complete their evidence and attend the wedding.2.5 In exercising my case management powers under rules 29 and 41, Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, as amended, I order that the respondents should present their evidence first. CONSEQUENCES OF NON-COMPLIANCE 1. Failure to comply with an order for disclosure may result on summary conviction in a fine of up to £1,000 being imposed upon a person in default under s.7(4) of the Employment Tribunals Act 1996. 2. The tribunal may also make a further order (an “unless order”) providing that unless it is complied with, the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice or hold a preliminary hearing or a hearing. 3. An order may be varied or revoked upon application by a person affected by the order or by a judge on his/her own initiative.
The facts
[32]The claimant agreed to come into the office on the morning of the next day to meet with Shiraz Boghani but he was delayed. Ms Loosely contacted him because he was late as Shiraz Boghani needed to leave, and he eventually attended a little after 3.30pm and spoke to Shiraz Boghani. There were then conversations about the precise amounts to be paid to the claimant. It was agreed that he would be paid £1,900 plus the £400. The claimant insisted that he should be able to see that it had reached his bank account so various phone calls were made and the transfer made. The respondents’ case is that they understood the claimant would leave the car but the claimant either did not understand that or decided not to leave the car.[33]A document was prepared for him to sign. It reads: “Amir Jabbery In final settlement:- 1 month’s pay as agreed £1,900 Loan repayment (Paid) as agreed £400 Total £2,300” It is signed and dated by the claimant.[34]That was the end of the claimant’s employment. Shortly after he left, the claimant received a letter before action from solicitors instructed by the first respondent with respect to the car loan as he had retained the car. Later the claimant brought Employment Tribunals proceedings and the first respondent brought County Court proceedings with respect to the loan. The County Court proceedings were determined on 13 March 2018 and we have seen a transcript and a judgment with respect to that matter.[35]We find that there was no occasion when either Nadeem Boghani or Shiraz Boghani tried to change the claimant’s religion to that of Ismaili Islam. With the exception of a friendly discussion that might have occurred with Shiraz Boghani when he was being driven to a wedding, where wedding customs might have been touched upon, the tribunal finds that religion was not discussed.[36]The claimant has alleged, at different times, as this tribunal case has progressed, that he was harassed because of his nationality/ethnicity and/or religion. This included the allegation just referred to that there was discussion of religion and attempts to change the claimant’s religion.[37]But there were other allegations. In case management orders it was alleged that there were comments made that the claimant was called a “loser” and that Nadeem and Shiraz Boghani talked to each other in their own language about the claimant (Gujerati) and laughed.[38]In his witness statement the claimant, for the first time, alleged that Nadeem Boghani had called him an “Iranian loser” and said “if your religion and leader was good you would not be working for me a slave”. Nadeem Boghani denies making such comments. The late addition of the word “Iranian” is significant as is the alleged use of the word “slave”. It suggests to the tribunal that the claimant has made a late attempt to bolster his case. We find that those words were not used by Nadeem Boghani, particularly in the light of his very polite written communications and the effusive responses by the claimant in writing.[39]It is unlikely, but possible, that occasional words were exchanged in Gujerati but Nadeem Boghani’s first language is English and any such exchanges were insignificant. There was absolutely no evidence that any such exchanges were about the claimant. Facts relevant to the breach of contract complaint (summary issue 1.3)[40]The claimant’s case is that the sum of £1900 received for notice pay is incorrect (summary issue 1.3.1 and issue 13). When we discussed this issue with the claimant, he accepted that four weeks’ net pay amounts to £1,762.56 but believes he is still owed pay for some days for late October and/or early November. The respondents’ case is that the payslip is prepared and payment is made around 25th of the month but that is payment for the whole month. We heard evidence to that effect from Mr Narayana. That is the evidence that we accept. The claimant is therefore owed no further payment for October. The respondent does accept that he is owed for three days in November. It has therefore paid to him, during these proceedings, the sum of £82.88 (£1762.56 + £220.32 for those three days = £1982.88 - £1900 paid). The claimant has therefore received his entitlement to notice pay.[41]The claimant also says that there was an agreement that he be paid a sum for commission on a hotel bookings deal (summary issue 1.3.2 and issue 14). The tribunal heard very little evidence about how the commission was said to have been offered to the claimant. The relevant facts are that the claimant was provided with a mobile phone that had previously been one that a sales person had used. Somebody from another hotel group called that phone and spoke to the claimant to get information about booking rooms with one of the first respondent’s hotels. The claimant passed that message on and we have seen various emails where suggestions were made about prices for hotel rooms and they appear of the bundle.[42]The claimant’s case is that he was told by Nadeem Boghani that he would be paid 1.5% for making this agreement. Nadeem Boghani denies that. The claimant also told us that Mr Bailey, who was CEO, said something to him after this incident about being paid but the comment appears to be a lighthearted offer of Sunday lunch. Quite properly, the claimant was thanked for passing on this information and for the potential business that might have developed. In any event, as we understand it, those bookings never did take place. We find that no such offer was made for the claimant to receive commission for that deal and, even if there had been such an offer, the claimant is not entitled to payment as the bookings did not take place.[43]The claimant claims sums for drawings/plans (summary issue 1.3.3 and issue 15) for proposed office refurbishment at the first respondent’s head office. Mr Narayana gave evidence as that was a project for which he was responsible. It is accepted that the claimant offered to assist and indeed he drew up a relatively detailed proposal, which we saw in the bundle, with respect to how the offices could be re-arranged.[44]The claimant’s case is that he was offered payment by Nadeem Boghani to carry out this work. Again, Nadeem Boghani denied this. The claimant gave several different accounts over the course of these proceedings of what he said was agreed. We are also aware that he gave a different sum in county court correspondence. In these particulars of claim, he suggested a sum of £1,000 was agreed. He has also suggested a figure of £1,100. When he was crossexamining Nadeem Boghani, he said the figure was £1,500. Later in his evidence, he suggested a figure of between £1,000 to £1,500 and that that sum had also been mentioned to Mr Narayana. Mr Narayana denied that it had ever been mentioned to him that Nadeen Boghani had offered to pay the claimant. The claimant’s evidence on this has been remarkably inconsistent. We find that Nadeem Boghani did not offer to pay the claimant anything at all for the work that he carried out. He was already being paid by the first respondent as he was at the office in any event.[45]The claimant claims three expenses claims are unpaid (summary issue 1.3.4). We are satisfied that the claimant signed for two expenses claims made in August and September and he received the sums claimed (pages 558 and 559 of the bundle). The claimant’s case was that his signature was faked but he did not put that to Nadeem Boghani and Ms Loosley denied it. We cannot accept that either of these two individuals would fake the claimant’s signature as there was absolutely no reason to do so.[46]We are not satisfied that the claimant submitted the October expenses claim form which we see at page 560. If he had, and not been paid, he has not explained why he did not follow it up, particularly when his employment terminated on 4 November. In other respects, he was particularly careful about ensuring that he got all that he thought he was entitled to. The claimant cannot show the amount claimed is properly due to him.[47]With respect to holidays (summary issue 13.5 and issue 16), the claimant took three public holidays. Although he said he had taken two when he was giving evidence, he said in his witness statement that he had taken three and that is the respondent’s case. He took two weeks in October. At that point he was working six days a week so that is 12 days (or 13 days if we include 31 October). He therefore took 15 days (or 16 days) over six months of employment. His full year entitlement was 28 and he has therefore taken slightly more than his entitlement. Hours worked by the claimant (summary issue 1.2)[48]The only other findings of fact which we need to make relate to the hours that the claimant worked.[49]We had detailed evidence from Ms Loosley who had gathered information from a variety of sources and set it out in detail in her witness statement. This included the travel schedules as updated, text messages, Whatsapp messages, emails, Nadeem Boghani’s diary and the office signing in sheet. She quite properly amended that evidence when she had seen further evidence that meant the hours that she put in the witness statement was slightly wrong on one or two occasions. We accept her evidence. It is very carefully thought out, supported by documents and it helped us considerably with trying to determine hours the claimant did work.[50]The claimant, conversely, has been very vague in his evidence. His case is that he worked 90 or 95 hours but he has been almost entirely unspecific about when he says he did those hours, what times or on what days he alleges he did those hours. The claimant has provided Uber taxi receipts because for a time he was travelling from his home by Uber. Ms Loosley could not give any evidence on the claimant’s working hours between 23 June and 2 August as she was on sick leave. Some of the Uber receipts may be connected to the claimant’s work with the respondents. However, it also appears to us that some are unconnected because at least one, if not more, of those Uber receipts are inconsistent with other evidence about the claimant’s whereabouts at various times. The suggested travel times certainly did not make any sense to the tribunal with some experience of travel in London. To give just one stark example, when we were discussing various journeys as shown on the travel schedule as compared to Uber receipts, the claimant stated that he travelled from SE1 to Heathrow in about 30 minutes which clearly cannot be right.[51]We have therefore looked at all this evidence and been guided by the schedule that the respondent’s representative provided so that we can assess what hours the claimant worked. There were a few occasions where the claimant has specifically challenged the hours as set out on the schedule and Ms Loosley’s statement.[52]So, for instance, on 25 June the claimant’s case is that he started earlier than the travel schedule shows; that starting time is said to be 18:30. In crossexamination of Nadeem Boghani the claimant said that he had worked all day but there is no other evidence of that and it directly conflicts with his own Whatsapp message at page 146 of the bundle which says: “I started at 6.30 today”. We find that he started at 18.30.[53]On 26 June the travel schedule shows the claimant finishing at 23:00 hours. In cross-examination of Nadeem Boghani, the claimant suggested he finished work first at 00.37 and was then asked to travel to Uxbridge and Hayes for some friends of Nadeem Boghani in the early hours of the morning arriving home again at 07.28 and there is an Uber receipt at page 1121. The claimant’s evidence on this was very unclear and Nadeem Boghani denies that there was ever such request and there are no supporting texts for it. We cannot find that the claimant worked these extra hours.[54]Another example is at 27 June. There the travel schedule shows, and it was Nadeem Boghani’s evidence, that the claimant picked him up from a conference hotel at St Paul’s around 15:30 and took him home. Nadeem Boghani’s evidence is there were no other duties. The claimant suggested in cross examination of Nadeem Boghani that he did not drive him home until 21.00 but during his own evidence, he stated that he finished at 19.30. He then gave inconsistent accounts of having got home and then gone elsewhere but he was unable to explain what it was he had done and again there are no supporting text messages for that. The tribunal finds that he finished at 17.00 as shown on the schedule.[55]There is a similar difficulty with 28 June which the claimant also takes issue with. The travel schedule shows that he worked between 13:25 and 17:30 The claimant cross-examined Nadeem Boghani on this and suggested that he had been asked to travel again to take friends from very close to Heathrow to Heathrow. Again, the claimant’s evidence on this is deeply inconsistent. He was very vague about the address of the friends or the need for this journey which on the Uber receipts appears to have happened around 4.30 in the morning. There is then further evidence of further activity but that seems to be inconsistent with the claimant signing in at the office at 2pm. We accept the hours as set out in the schedule.[56]The claimant took issues with two dates in July. For similar reasons, we do not accept his evidence that he did more work than shows on the travel schedule. The same applies to issues that he took on 9 and 10 August. The claimant’s evidence was often inconsistent and without any supporting evidence.[57]Finally, the claimant took issue with the working hours as set out in the schedule and summarised by the respondents for the period 1 September to 4 September. The travel schedule for 1 September shows the claimant working from 10:55 to 21:00 hours. This is the day he picked up visitors from Kings Cross and took them to one of the respondents’ flats in Kensington. The claimant’s case is that he stayed later than 21:00 hours because he was doing shopping for these visitors. The Boghanis deny that this happened. Firstly, they said that they would make sure that the flat was properly stocked but there is no other evidence to the effect that the claimant stayed. In any event, he drove to Hounslow Civic Centre for Mr Nadeem Boghani to attend a planning meeting and therefore could not have been at the flat in Kensington at that time.[58]On 2 September the travel schedule shows the claimant not working at all. The claimant’s case now appears to be that this is the day that he was asked to go to the Kensington flat by Shiraz Boghani because there was a serious plumbing problem. This is denied. Mr Boghani’s evidence, which we prefer, is that the claimant was asked to go to the Kensington flat on 3 September and that was a day the claimant was working anyway with his hours being recorded as 09.00 to 16.00. We have seen a number of photographs of the plumbing problem, text messages and so on. The claimant’s own message where he said “everything is done” showed that that matter had been dealt with by 4 o’clock on 3 September. The claimant’s evidence was that he returned to the Kensington flat on 4 September but we are not satisfied that he did as there is very little evidence to that effect. In any event, even if he did, his hours of work are recorded as being between 9.45 and 16:30. We prefer the respondent’s evidence with respect to this and can find no extra hours to attribute it to the claimant for those dates.[59]The claimant’s case appears to be that there are some matters where he was asked to work by other means, that is not in documented evidence. He says that for instance he was often phoned or spoken to orally and asked to do other tasks. Of course, it is possible that this happened but given that the claimant has been unable to give us any specific evidence with respect to this, we are not able to find that this happened often enough so as to warrant a significant change to the working hours as calculated.[60]In summary, the claimant has not satisfied us that he did any more hours than those that have been calculated by Ms Loosley in her witness statement and set out in the schedule prepared by the respondent’s representative.[61]One difference between the respondent’s calculation and that which we carried out relates to what breaks the claimant might have taken. The schedule allows for breaks of 30 minutes or, on longer days, 60 minutes. The claimant denied that he was taking those breaks. It is difficult to tell because there are clear gaps in the times that he was working for the respondent and we cannot say for sure how long he might have taken a break. When we have done the calculation, therefore, we have added back those times deducted for assumed breaks. Findings on hourly rate paid (issues 7.4 and 7.5)[62]In June, on our calculations, the claimant was paid between £12.98 per hour (if he took breaks) and £11.97 per hour for a total of 167 hours (if he took no breaks).[63]In July, he was paid between £13.48 per hour (if he took breaks) and £12.68 per hour for a total of 184 hours (if he took no breaks).[64]In August he was paid between £13.48 per hour (if he took breaks) and £12.56 per hour for 206 hours (if he took no breaks).[65]In September he was paid between £10.92 per hour (if he took breaks) and £10.23 per hour for 254 hours (if he took no breaks).[66]In October he was paid between £11.87 per hour (if he took breaks) and £11.50 per hour for 226 hours (if he took no breaks).[67]In November the claimant worked for 3 days and was paid his entitlement for that time (see findings above on notice pay).[68]As will be seen from these calculations, the lowest hourly rate of pay the claimant received over the course of his employment with the respondent was £10.23 and the highest was £13.48. We cannot therefore find that the claimant was paid less than the National Minimum Wage of £7.20 per hour at any time over the course of his employment. The law and submissions[69]The claimant’s complaints of race and religious discrimination fall to be determined under Equality Act 2010 (EQA). The following sections are those that apply to these complaints:- 13 Direct discrimination (1)A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. (2)If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim. 26 Harassment (1)A person (A) harasses another (B) if— (a)A engages in unwanted conduct related to a relevant protected characteristic, and (b)the conduct has the purpose or effect of— (i)violating B's dignity, or (ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (2)A also harasses B if— (a)A engages in unwanted conduct of a sexual nature, and (b)the conduct has the purpose or effect referred to in subsection (1)(b). (3)A also harasses B if— (a)A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b)the conduct has the purpose or effect referred to in subsection (1)(b), and (c)because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct. (4)In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a)the perception of B; (b)the other circumstances of the case; (c)whether it is reasonable for the conduct to have that effect. (5)The relevant protected characteristics are— race; religion or belief; 123 Time limits (1)Proceedings on a complaint within section 120 may not be brought after the end of— (a)the period of 3 months starting with the date of the act to which the complaint relates, or (b)such other period as the employment tribunal thinks just and equitable. (2)Proceedings may not be brought in reliance on section 121(1) after the end of— (a)the period of 6 months starting with the date of the act to which the proceedings relate, or (b)such other period as the employment tribunal thinks just and equitable. (3)For the purposes of this section— (a)conduct extending over a period is to be treated as done at the end of the period; (b)failure to do something is to be treated as occurring when the person in question decided on it. (4)In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a)when P does an act inconsistent with doing it, or (b)if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. 136 Burden of proof (1)This section applies to any proceedings relating to a contravention of this Act. (2)If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3)But subsection (2) does not apply if A shows that A did not contravene the provision. (4)The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule. (5)This section does not apply to proceedings for an offence under this Act. (6)A reference to the court includes a reference to— (a)an employment tribunal;[70]In essence, for all claims the tribunal must make findings of fact and then apply the correct tests. For the direct discrimination complaint, namely less favourable treatment contrary to section 13 EQA, the tribunal is mindful that it is unusual for there to be clear, overt evidence of direct discrimination and that it should consider matters in accordance with section 136 EQA. The tribunal accepts the guidance of the Court of Appeal in Igen V Wong [2005] IRLR 258 which confirms that given by the EAT in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332, concerning when and how the burden of proof may shift to the respondent, as modified and clarified in other recent cases. When making findings of fact, we may determine whether those show less favourable treatment and a difference in race (or nationality) or religion. The test is: are we satisfied, on the balance of probabilities and with the burden of proof resting on the claimant, that this respondent treated this claimant less favourably than they treated or would have treated the comparators (or an employee from some other nationality or religion).[71]We are guided by the decision of Madarassy v Nomura International plc 2007 IRLR 246 reminding us that unfair treatment and a difference in race (or nationality) does not, on its own, necessarily show discriminatory treatment. If we are satisfied that the primary facts prove a difference in race or religion and less favourable treatment, we proceed to the second stage. If the answer here is that we could so conclude, the burden shifts to the employer. At the next stage, we look to the employer for a credible, non-discriminatory explanation or reason for such less favourable treatment as has been proved. In the absence of such an explanation, proved to the tribunal’s satisfaction on the balance of probabilities, the tribunal will conclude that the less favourable treatment occurred on the grounds of race (or nationality) or religion.[72]The claimant also complains of harassment. The tests are as set out in section 26 with the burden of proof resting on the claimant to show unwanted conduct related to race (or nationality) or religion. He also has to show that the unwanted conduct had the purpose or effect of violating his dignity or creating an intimidating etc environment. The tribunal must also consider whether it was reasonable for the conduct to have that effect taking into account the claimant’s perception and other circumstances. Although the list of issues sets out the tests for determining whether the claims were presented in time, this is not a matter which needed consideration in this case.[73]The complaint that he was not paid the national minimum wage is brought under Part 11 Employment Rights Act 1996 (ERA). Section 13 ERA makes it unlawful for an employer to make an unauthorised deduction of wages. The National Minimum Wage Regulations 2015 (NMW) provide for minimum rates for workers of different ages. There is no dispute here that the claimant was entitled to be paid at least £7.20 per hour over the reference period as set out in those regulations. The tribunal needs to determine the hours he worked to ascertain whether the NMW rate has been paid.[74]The claimant also brings several money claims as damages for breach of contract. The tribunal has to determine whether the claimant was entitled to sums he has claimed. This means we must decide, on the oral and documentary evidence before us, whether there was a contractual term and, if there was, whether it has been broken. If the contractual term has been broken, we may have to decide what is the correct level of damages.[75]One procedural legal issue which arises in this case is whether the principle of issue estoppel applies. This is because the County Court has already determined the first respondent’s claim for re-payment of the loan for the car. The claimant raised in those proceedings the issue of the alleged condition of the loan that he change his religion. The principle means where one court has made a finding of fact that was a “necessary ingredient” in the case before it, that matter cannot be re-opened (Arnold v National Westminster Bank plc [1991] 2 AC 93). We were referred by the respondents’ representative to several cases giving guidance on this issue. However, this need not concern us greatly as our findings of fact are, in any event, entirely in accord with those found in the County Court case.[76]We received submissions from both parties. They were detailed and in writing and very helpful to us. Both the respondents’ representative and the claimant added to those written submissions on the last day. We were referred to caselaw, some of which is referred to above, and some of which was not necessary for us to consider as our findings rendered any guidance unnecessary.
Conclusions
[77]This is a case where most of our conclusions will be clear from our findings of fact. The claimant has not succeeded in any of his complaints.[78]As for the Equality Act complaints, these are our conclusions. In the simplest and plainest of terms, the claimant has not proved any facts which show harassment related to or less favourable treatment because of his nationality/ethnicity or his religion.[79]The claimant’s credibility has been seriously called into question by his inconsistent statements; by changes to his version of events and adding to his many complaints as he has proceeded through this employment tribunal case. He made no mention of the alleged requirement to change his religion until well after his employment had ended. All the contemporaneous written evidence, particularly that from the claimant himself, is to the contrary. It indicates a good working relationship with the claimant being grateful and thanking the respondents for their attitude towards him. It is highly unlikely that anyone would write the kinds of texts if they had in fact been asked (or as alleged “forced”) to change their religion There was no such condition or encouragement or indeed reference at all on the facts as we have found. Just because the Boghanis were followers of a different part of the Islamic faith, does not indicate any sort of either less favourable treatment or harassment. The claimant’s claims with respect to those matters under the Equality Act must fail.[80]For completeness, we give our answers in line with the original (and amended) list of issues starting at paragraph 7.[81]Issues 7.1 to 7.3 are agreed. Issues 7.4 and 7.5 (the alleged failure to pay the national minimum wage) are answered above at paragraph 68. There was no such failure.[82]Issues 8.1 to 8.3 (expenses) are answered at paragraphs 45 and 46. No expenses are due.[83]Issue 9.2 (direct discrimination because of religion or belief) is answered at paragraphs 24, 26, 30 and 35 in that we have found no requirement for the claimant to change his religion or any such condition of the new contract and there was no dismissal. The tribunal does not need to decided issue 9.3 and we have heard no evidence in relation to the named comparators at issue 9.4[84]Issue 10.2 (direct discrimination because of race or nationality) is also answered at paragraph 30. There was no dismissal. Issues 10.3 and 10.4 do not need to be answered.[85]Issue12.1 (harassment) is answered at various points in our findings of facts. The claimant has not shown that these events occurred. Similarly issue12.2 is answered at various points and the claimant has failed to show those matters occurred. None of the facts as found related to the claimant’s religion or ethnic origins and we therefore need not answer issues 12.4 to 12.7.[86]Issue 13 (notice pay) is answered at paragraph 40. The claimant received his entitlement to notice pay.[87]Issue 14 (commission) is answered at paragraph 42. No such agreement was made and no payment is due.[88]Issue 15 (drawings/plans) is answered at paragraph 44. No such agreement was made and no payment is due.[89]Issue 16 (holiday pay) is answered at paragraph 47. The claimant had more than used his holiday entitlement and no payment is due.[90]Issues 17 and 18 do not need to be addressed.[91]We have made it clear that as far as the unlawful deduction of wages complaint is concerned, the claimant was always paid in excess and sometimes well in excess of the National Minimum Wage.[92]He has also received all notice pay due to him.[93]The claimant’s claims must all fail and are dismissed. Costs[94]After we gave oral judgment the respondent made an application for costs under Rule 76 employment Tribunal rules of Procedure 2013. The application was made under Rule 76(1)(a) and (b). It was submitted that the claims had no reasonable prospect of success, that the claimant must have known that as they were based on untruths and that he had acted unreasonably by pursuing the allegations which were false and untruthful.[95]The respondent’s representative handed in a schedule of costs, a chronology, copies of a letter and email from the respondent’s solicitors to the claimant as well as written submissions. She then addressed us going through the written submissions. She referred us to several cases. She reminded us of the twostage test as set out in Rule 76 which included a provision for the tribunal to consider whether making a costs order is “appropriate”. (Robinson v Hall Gregory Recruitment Limited [2014] IRLR 761. She also reminded us that rule 84 provides that the tribunal “may have regard to the paying party’s ability to pay”. She particularly drew our attention to the fact that the claimant had been offered the chance to withdraw, in which case there would be no costs application. The costs application was limited to £20,000 although the schedule showed costs of over £47,000. Barnsley Metropolitan Borough Council v Yerraklava [2012] IRLR 78 also reminds the tribunal to look at the whole picture and identify what conduct was unreasonable and what effects that conduct has had. Two cases, in particular, deal with circumstances where there have been findings by the tribunal of dishonesty on the part of the paying party (see Daleside Nursing Homes Ltd v Matthew [UKEAT/0519/08 and Arrowsmith v Nottingham Trent University [2012] ICR 159.[96]The claimant was given time to consider his response to the costs application and made submissions after the lunch break. He raised the question of what had happened in the County Court saying that the matter of discrimination was for the Employment Tribunal to decide. He referred to concerns that the respondents had raised about him using the word “slave” and said that this had only been repeated by him having been a word used by Mr Boghani. The claimant reminded us that he is not legally trained and felt that he did not lie and that we had not properly understood his evidence. He told us that he had paid the County Court judgment of a little over £5,400 within 14 days by selling the car for £2,100 and that he had had to borrow more to pay the rest. He says he has no criminal record and he believed that he was right to continue his claim before the tribunal because he was preserving his rights. He asked us not to make any order for costs.[97]The employment judge asked him for information about his ability to pay any costs order we might make. He said that he had no more assets because he had borrowed money. His only income was as a student loan which he said was about £9,000 per year. He is in the first year of a health care degree. He is living in rented accommodation paying rent of £430 per month. He also has some other debts, around £3,000 on credit cards and a previous student loan of £35- 36,000 as well as pay day loans of around £4,000. He mentioned the stress that the tribunal has caused him and the effects on his health. He is hopeful that after the end of his three year course, this being his first year, he will move into employment.[98]In reply the respondents’ representative reminded of the case of Arrowsmith (above) and submitted that we are not confined to the amount the claimant can afford, particularly when there is a dishonesty issue. The claimant repeated that he had not been dishonest.[99]The tribunal gave this due consideration. There are number of matters which point towards an order for costs. The first is that there were untruths on the part of the claimant; the second is that the claimant had warnings from a County Court Judge and Employment Tribunal Judges at preliminary hearings about the perceived weaknesses of his claims. He had been ordered to pay a deposit for the notice pay claim. The tribunal also takes into account that there had been offers by the respondents that they would not pursue an application for costs if he withdrew.[100]The claimant brought relatively serious allegations, particularly those of religion and race discrimination and failure to pay the national minimum wage against not just a corporate respondent but, in the case of the discrimination complaints, against two named individuals. These are serious allegations which may impact on someone’s reputation. The breach of contract claims were less serious but also, as our findings of fact make clear, had very little prospect of success. Unfortunately, the claimant’s case has been built on a series of untruths and lack of evidence, particularly in relation to what hours he says he actually worked and the allegation that he was made to change his religion.[101]The tribunal have come to the view, which it does rarely, that this claim was vexatious. The claimant never had any reasonable prospect of success on any of his claims given that they relied upon a version of events which he has given which has not been accepted by us. It was unreasonable for him to start these proceedings and pursue them, particularly after preliminary hearings where he had been ordered to pay a deposit and heard the what difficulties there were with his arguments. The tribunal takes the view that it was particularly unreasonable for him to pursue this matter after a County Court hearing which went very much against him. Similarly, after the very careful letter which was sent to him on 20 March by the respondents’ representatives which set out in detail the difficulties he was likely to have with his case and gave him the opportunity to withdraw at that point. He also had a later opportunity which he decided not to take up. This case has led to the respondents spending a significant amount on legal costs. It was clearly unreasonable conduct and many of the claims were misconceived.[102]We have decided to make an award of costs for legal costs incurred after the letter of 20 March. We note that those costs amount to a little over £26,000. In our view the claimant’s behaviour was particularly unreasonable after this point and we have therefore decided, taking into account his ability to pay, that we will order him to pay a contribution towards the costs which were accrued after that date. That proportion is £7,500 and it is ordered that the claimant pay that to the respondent.