Mr A Koroma v Rendall and Rittner Operations Ltd: 3301571/2023
EMPLOYMENT TRIBUNALS
Case No 3301571/2023
Between
Mr Abubakarr KoromaClaimantRendall and Rittner Operations LtdRespondentDate 7 July 2025
JUDGMENT
Under rule 40(4) of the Employment Tribunal Procedure Rules 2024, the complaint of section 47 of the Employment Rights Act 1996 regarding detriment to the Claimant in his role as an employee representative in respect of a TUPE transfer is struck out.
REASONS
(1) By deposit order dated 13 December 2024 the Claimant was ordered to pay £50 in total in respect of the allegation that the Claimant suffered a detriment because of his role as an employee representative in respect of a TUPE transfer. The Claimant was ordered to pay within 14 days of the date of the order.(2) By 27 December 2024 the Claimant had not made the payment of the deposit.(3) Rule 40(4) of the Employment Tribunal Procedure Rules 2024 requires the Employment Tribunal to strike out complaints where the deposit had not been paid. The Claimant’s complaint which is subject to a deposit is therefore struck out.(4) The Claimant’s remaining claims continue. Approved By: JUDGMENT
Introduction
[1]The Claimant’s complaint of unfair dismissal is not well founded and is[2]The Claimant’s complaint of wrongful dismissal is not well founded and[3]The Claimant’s complaints of direct race discrimination are not well founded and are dismissed.[4]The Claimant’s complaints of direct marital discrimination are not well founded and are dismissed.[5]The Claimant’s complaints of unlawful deductions of wages are not well founded and are dismissed.[6]The Claimant’s complaint of holiday pay is not well founded and is[7]The Claimant having not been successful in respect of any Schedule 5 Employment Act 2002 claims, the complaint of failure to provide written particulars of employment is not well founded and is dismissed.[8]The Claimant is to pay the Respondent costs under a preparation time order of £40.00 within 28 days of receipt of this judgment.[1]Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 26 August 2022 may not have been brought in time.1.2 Are the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?1.2.2 If not, was there conduct extending over a period?1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?1.3 Was the unauthorised deductions and detriment complaints made within the time limit in sections 48 and 23 of the Employment Rights Act 1996? The Tribunal will decide:1.3.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act complained of / date of payment of the wages from which the deduction was made? Detriment1.3.2 If not, was there a series of similar acts or failures and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one? Unauthorised Deductions1.3.3 If not, was there a series of deductions and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one?1.3.4 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?1.3.5 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?[2]Unfair dismissal2.1 What was the reason or principal reason for dismissal? The Respondent says the reason was conduct [or some other substantial reason]. The Tribunal will need to decide whether the Respondent genuinely believed the Claimant had committed misconduct.2.2 If the reason was misconduct, did the Respondent act reasonably or unreasonably in all the circumstances, including the Respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the Claimant? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. It will usually decide, in particular, whether:2.2.1 there were reasonable grounds for that belief;2.2.2 at the time the belief was formed the Respondent had carried out a reasonable investigation;2.2.3 the Respondent otherwise acted in a procedurally fair manner;2.2.4 dismissal was within the range of reasonable responses.[3]Remedy for unfair dismissal3.1 Does the Claimant wish to be reinstated to their previous employment?3.2 Does the Claimant wish to be re-engaged to comparable employment or other suitable employment?3.3 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the Claimant caused or contributed to dismissal, whether it would be just.3.4 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the Claimant caused or contributed to dismissal, whether it would be just.3.5 What should the terms of the re-engagement order be?3.6 If there is a compensatory award, how much should it be? The Tribunal will decide:3.6.1 What financial losses has the dismissal caused the Claimant?3.6.2 Has the Claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?3.6.3 If not, for what period of loss should the Claimant be compensated?3.6.4 Is there a chance that the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?3.6.5 If so, should the Claimant’s compensation be reduced? By how much?3.6.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?3.6.7 Did the Respondent or the Claimant unreasonably fail to comply with it by [specify alleged breach]?3.6.8 If so, is it just and equitable to increase or decrease any award payable to the Claimant? By what proportion, up to 25%?3.6.9 If the Claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct?3.6.10 If so, would it be just and equitable to reduce the Claimant’s compensatory award? By what proportion?3.6.11 Does the statutory cap of fifty-two weeks’ pay or £93,878 apply?3.7 What basic award is payable to the Claimant, if any?3.8 Would it be just and equitable to reduce the basic award because of any conduct of the Claimant before the dismissal? If so, to what extent?[4]Wrongful dismissal / Notice pay4.1 What was the Claimant’s notice period?4.2 Was the Claimant paid for that notice period?4.3 If not, did the Claimant do something so serious that the Respondent was entitled to dismiss without notice?[5]Detriment (Employment Rights Act 1996 section 44)5.1 Did the Respondent do the following things:5.1.1 In February 2020, did Mr Putney conspire against the Claimant to make up complaints to the residents of 2 Quarrion house who in turn complained about the Claimant.5.1.2 In May & August 2021, did Mr Putney conspire against the Claimant to make up complaints to the residents at 5 Quassia House who in turn complained about the Claimant.5.2 By doing so, did it subject the Claimant to detriment?5.3 If so, was it done on the ground that the Claimant took reasonable steps by carry out his basic health hand safety tasks to protect residents from danger?[6]Remedy for detriment6.1 What financial losses has the detrimental treatment caused the Claimant?6.2 Has the Claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?6.3 If not, for what period of loss should the Claimant be compensated?6.4 What injury to feelings has the detrimental treatment caused the Claimant and how much compensation should be awarded for that?6.5 Has the detrimental treatment caused the Claimant personal injury and how much compensation should be awarded for that?6.6 Is it just and equitable to award the Claimant other compensation?6.7 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?6.8 Did the Respondent or the Claimant unreasonably fail to comply with it?6.9 If so, is it just and equitable to increase or decrease any award payable to the Claimant? By what proportion, up to 25%?6.10 Did the Claimant cause or contribute to the detrimental treatment by their own actions and if so, would it be just and equitable to reduce the Claimant’s compensation? By what proportion?6.11 Was the protected disclosure made in good faith?6.12 If not, is it just and equitable to reduce the Claimant’s compensation? By what proportion, up to 25%?[7]Direct martial discrimination (Equality Act 2010 section 13)7.1 The Claimant was married at the relevant time.7.2 Did the Respondent do the following things:7.2.1 Gavin Putney (manager) and Katherine Ortizi (HR) excluded the Claimant and his wife from receiving a Christmas bonus in December 2020; and7.2.2 Delia and the management team failed to include the Claimant and his wife in the all-staff circular acknowledging staff contributions throughout the year, in December 2021.7.3 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 they were treated worse than someone else would have been treated. The Claimant compares himself to the other employees (approximately 14 in number) working at Colindale Gardens.7.4 If so, was it because of the Claimant’s marital status?[8]Direct race discrimination (Equality Act 2010 section 13)8.1 The Claimant identifies as an Israelite.8.2 Did the Respondent do the following things:8.2.1 Gavin Pultney (manager) and Katherine Ortizi (HR) excluded the Claimant and his wife from receiving a Christmas bonus in December 2020; and8.2.2 Delia and the management team failed to include the Claimant and his wife in the all-staff circular acknowledging staff contributions throughout the year, in December 2021.8.3 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 they were treated worse than someone else would have been treated. The Claimant compares himself to the other employees (approximately 14 in number) working at Colindale Gardens.8.4 If so, was it because of the Claimant’s race?[9]Remedy for discrimination9.1 Should the Tribunal make a recommendation that the Respondent take steps to reduce any adverse effect on the Claimant? What should it recommend?9.2 What financial losses has the discrimination caused the Claimant?9.3 Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job?9.4 If not, for what period of loss should the Claimant be compensated?9.5 What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that?9.6 Has the discrimination caused the Claimant personal injury and how much compensation should be awarded for that?9.7 Is there a chance that the Claimant’s employment would have ended in any event? Should their compensation be reduced as a result?9.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?9.9 Did the Respondent or the Claimant unreasonably fail to comply with it by [specify breach]?9.10 If so, is it just and equitable to increase or decrease any award payable to the Claimant?9.11 By what proportion, up to 25%?9.12 Should interest be awarded? How much?[10]Holiday Pay (Working Time Regulations 1998) 10.1 Did the Respondent fail to pay the Claimant for annual leave the Claimant had accrued but not taken when their employment ended?[11]Unauthorised deductions11.1 Did the Respondent make unauthorised deductions from the Claimant’s wages as follows:11.1.1 In failing to pay a bonus of £500 in each of the years ending December 2020 and December 2021?11.1.2 In failing to pay bereavement pay in November 2021 and January 2022?11.1.3 In failing to pay the Claimant’s wages from July 2022 until his dismissal on 17 October 2022;11.2 and if so, how much was deducted.[12]Schedule 5 Employment Act 2002 cases12.1 When these proceedings were begun, was the Respondent in breach of its duty to give the Claimant a written statement of employment particulars?12.2 If the claim succeeds, are there exceptional circumstances that would make it unjust or inequitable to make the minimum award of two weeks’ pay under section 38 of the Employment Act 2002? If not, the Tribunal must award two weeks’ pay and may award four weeks’ pay.12.3 Would it be just and equitable to award four weeks’ pay? The Hearing and Evidence 3. The hearing was in person over a period of 6 days. We heard evidence from the Claimant, Adama Bindi (the Claimant’s wife and former employee of the Respondent) and Mr Florin Muscat for the Claimant. 4. For the Respondent we heard Josie Ofori (former HR manager Employee Relations), Shameel Anis (Operations Manager) who heard the Claimant’s January 2022 grievance in March 2022, Jason Grieve (Divisional Operations Manager) who dealt with the Claimant’s disciplinary in July 2022, Adam Broom (operations manager) dismissal manager, Andrew Morgan (Head of Operations), heard the Claimant’s disciplinary appeal. 5. We received written witness statements for all the witnesses we heard from. The Claimant provided witness statements for Mr Bruce San Juan, Mr Favor Oguchi, Mr Kamran Abbasov, Mr Nuru Deen Esiogbehb and Mr Ramon De Guzman although we did not hear from these witnesses. 6. We were in a receipt of an agreed bundle of approximately 967 pages. Although throughout the proceedings the Claimant referred to documents that he said that he had disclosed to the Respondent that were not included in the bundle. Mr Ridgeway in response insisted that every document that the Claimant disclosed to the Respondent was included in the bundle. The electronic bundle provided had a large number of pages that were not readable. The Respondent was asked to provide the pages that were not readable. However, all the unreadable pages were not covered. In the end, the Respondent provided a new readable electronic bundle. The Employment Tribunal was also provided with a chronology (although labelled neutral was not) and was not agreed by the Claimant and a cast list. 7. However, on day 1 (Wednesday 7 May 2025) the Claimant did not attend. Mr Ridgeway and Ms Lesley McGowan Head of HR of the Respondent did attend. The Claimant had sent a postponement application to the Employment Tribunal on 6 May 2025 stating that he was unwell and had a bug and was unable to attend the Employment Tribunal. Mr Ridgeway wished to make an application for strike out based upon their 22 April 2025 written application. The Employment Tribunal used day 1 for reading and delayed hearing the Claimant’s application for a postponement and the Respondent’s strike out application to day 2. 8. On day 2 (Thursday 8 May 2025) the Claimant attended 35 minutes late. His explanation was that he was not well and should not be there. We heard the Claimant’s postponement application and the Respondent’s strike out application. The Respondent’s strike out application was based upon the Claimant’s unreasonable conduct in respect of allegations against Mr Ridgeway and the Respondent as being dishonest. Both applications were refused and oral reasons were given at the time which will not be repeated here. It is however worth noting that the Claimant did apologise for his allegations against Mr Ridgeway in respect of dishonesty. 9. The Claimant was told on day 2 that his complaint of detriment on the grounds of being a TUPE representative was dismissed as the Claimant had not paid the deposit. The Claimant was told that he should inform the witnesses to attend on Monday 14 May 2025 who would give evidence on matters that did not include his struck out detriment claim as it had been struck out. The Claimant was also told that the start time for the hearing was 09:30 and the Claimant agreed that he had acknowledged the start time. The Employment Tribunal noted that throughout day 2 the Claimant did not make any notes of what was said. 10. On day 3 (Monday 12 May 2025). The Claimant did not attend at 09:30. The Employment Tribunal waited until 09:40 and started the proceedings at 09:42. The Claimant’s witness Mr Muscat was in attendance and so the Employment Tribunal swore Mr Muscat to avoid wasting time until the Claimant arrived. Mr Muscat was asked what time he was asked to attend the hearing by the Claimant. Mr Muscat said that it was 09:30. The clerk reported that the Claimant was in Employment Tribunal 10:20. 11. At approximately 10:20 the Claimant attended the hearing. his explanation for why he was late was that he had to take his autistic child to school. The Claimant said that he had no data on his phone to inform the Employment Tribunal that he was running late. The Claimant was warned his late attendance was unreasonable conduct and that the Employment Tribunal was considering costs. The Claimant was asked his means. The Claimant stated that he had 3 children, he was 2 years late to get another job and within the last 3 months he owed £200. He said that the situation was not good and that he was still on universal credit. 12. The Respondent said the Claimant had wasted the Employment Tribunal time and the Respondent time of nearly an hour.[13]The Employment Tribunal made the decision that the Claimant’s conduct was unreasonable. He knew that he should attend on time. He knew what the time was to attend. The Employment Tribunal could not see how the Claimant could not have informed Employment Tribunal or made appropriate alternative arrangements for someone to take his children to school so that he could attend on time. He had wasted nearly hour of the Respondent’s time. The Employment Tribunal made a preparation time order in favour of the Respondent of £40 which is just under an hour of the 2025 rate.[14]The Claimant was warned that if he were late again that the Employment Tribunal would consider a strike out and or costs.[15]On day 4, the Claimant gave evidence. During cross examination of the Claimant, Mr Ridgeway put to the Claimant “You are not listening to the question, Mr Muscat and you reiterated several times – in his statement paragraph 3, dealing with 5 Quassia House. On page 237 she has sworn at you and used all kinds of profanity, you don’t say there difference between profanity, it makes no reference to racial slur it seems to be thrown in”. The Claimant’s response was yes. Mr Ridgeway was then heard to say to the Claimant, “I just put this to you it is pure fabrication”. The Claimant became agitated in his manner, gesticulating and his voice and face became increasingly angry. He then said, “Anybody in this court that says that one who says that will have serious problem after this case.” Mr Ridgeway then asked the Claimant in an angry manner “is that a threat?”. The Claimant then repeated Mr Ridgeway’s question is that a threat and then repeated his words “Anyone who says that have the … in your hands”. Then shouted, “It is fake?” repeatedly. The setting out of this exchange included listening to the recording and checking the Employment Tribunal panel’s notes and recollection the following morning. The ellipsis represents where the Employment Tribunal could not hear what was being said on the recording.[16]Employment Judge Young asked the Claimant what was he saying? The Claimant did not respond to Employment Judge Young’s question. Employment Judge Young told the parties that she was stopping the proceedings and that we were taking a break for tempers to calm down.[17]The Employment Tribunal took a 20 minute break. However, on return, Mr Ridgeway was asked if the Respondent was ok to continue. Mr Ridgeway said that the Respondent was fine to continue but that the Respondent was concerned that a fair hearing could no longer take place because at the rate the evidence was being heard there was not enough time to hear the evidence. Mr Ridgeway said that the behaviour of the Claimant was strike out behaviour regarding the threats made to the Respondent by the Claimant. At that point, the Claimant laughed. Mr Ridgeway continued that emotions were high and that he appreciated that it was a stressful situation. Mr Ridgeway indicated that he wished to make an application.[18]Mr Ridgeway was told to hold on his application for now as the Employment Tribunal was only asking if the parties were ok to continue. The Claimant was then asked if he was ok to continue and if he had calmed down. The Claimant said that he was always calm. The Employment Tribunal then asked the Claimant if he had reflected on the situation and would like to take back his threats to the Respondent. The Claimant said that he was not taking back anything and that he was doubling down. Employment Judge Young asked the Claimant do you accept that your behaviour was unacceptable and that Mr Ridgeway’s questioning was reasonable? The Claimant said, “what I said was not a threat to him, he was not there”, he said “I was aggressive. After this case it will be hot. I am not in fear to him. If he does that I will answer with the same emphasis. Ask the same question but in a calm way. I am ready to do that Judge. Proper and calm, yesterday he is getting excited. All them there are neutral. I am ready to continue. I am not somebody can push over”. Employment Judge Young asked the Claimant what is very hot? The Claimant repeated “It is very hot” and added “I am not going to leave it, let them think twice.” The Employment Tribunal told the parties that they were postponing the proceedings, to give the Claimant an opportunity to reflect. The Claimant responded he is ready to reflect as long as Mr Ridgeway behaves. The hearing was postponed at 11:30 until the next day.[19]On day 5 (Tuesday 13 May 2025). The hearing started at 10:18. The Claimant was asked by Employment Judge Young whether he had a chance to reflect on the matters. The Claimant was told that he made a threat to everyone in the tribunal room including the tribunal. The Claimant was asked if there was anything you want to tell the Employment Tribunal regarding his behaviour yesterday. The Claimant responded that he could not think what was the misbehaviour, the way he talks, he said he did not want the Employment Tribunal to tamper with, he didn’t want people to tamper with his season, he said that he is a free man, a holy man, a just man, he didn’t want anyone to tamper with my phenotype and race.[20]Employment Judge Young said to the Claimant that he had been told that he was shouting. The Claimant was seen to be shaking his head. It was pointed out to the Claimant that this was not about culture or race, that the Claimant needed to listen to what the Employment Tribunal said. The Claimant was told that everyone has to adjust their behaviour. The Claimant was asked whether he could adjust his behaviour. The Claimant said that you are not listening to what he was saying. The Claimant asked for a chance. He said this is how I talk; I have told my manager. Aggression is a trigger issue. He said when I spoke to Mr Morgan when I spoke to him. I told him that is how I talk. The Claimant said I cannot afford it unless you want to imprison me. It is not about coming to court and misbehaving, I am connected with big men, archbishop. He said “I am not saying that I am the best person in court, this is me. I do not like people entity.”[21]Employment Judge Young told the Claimant you cannot repeat this behaviour. The combination of voice and your behaviour and hands indicated to us it was threat you were making. The Claimant responded that it was not his intention and said that he had noted what the Employment Tribunal had said and added “you have the right to perceive it. Anyone who wants to tell the truth should not be afraid”.[22]The Respondent then made an application to strike out in consideration of the Tribunal’s application. In summary Mr Ridgeway stated that the Claimant had repeatedly taken action that meant a fair trial not possible. Mr Ridgeway acknowledged what the Claimant had said in terms of the reflection of his behaviour. Despite apologising, the Claimant made a direct threat to him and everyone else. It is clear to him that the Claimant will continue to disrupt with his behaviour. The Claimant is not able to modify his behaviour. Mr Ridgeway then went on to say that 2 of the Respondent witnesses work were the Claimant lives. He said they are concerned given what the Claimant said. The case is moving forward not backwards. The test of conduct, proportionality, and fair trial. Blockbuster v James. He acknowledged that strike out is a draconian power. Mr Ridgeway referred to Emuuloko v Cromo Vigilant. Taking into account the Claimant’s unruly behaviour, the test has now been met even if it was not met before.[23]Mr Ridgeway was asked what changed regarding the witnesses now saying that they were concerned about attending work. Mr Ridgeway said that it was not his intention to make the application on this basis of a change. He said that his instructions throughout were that that Respondent felt that time was being wasted and that a fair trial was not possible and that the Claimant’s behaviour has elongated the proceedings.[24]The Claimant responded in summary by apologising and saying that these proceedings should not be struck out. In the meetings with Mr Anis, the Claimant said that he was capable of engaging with the Respondent in a respectful way. Though he acknowledged his pitch can be interpreted as “I don’t how to say it”. The Claimant asked that Mr Ridgeway should show understanding. He said that the 2 witnesses do not work there anymore. He said he almost gave up yesterday. He said “I am solemn promise, the pause you suggest that I take, it will not be an excuse. It is my duty to present my point, to make sure that it does not perturb Mr Ridgeway”. The Claimant said that he was concerned that “Mr Ridgeway vilified him, he made comments that spellings & sentences which were not correct, he vilified him. Two wrongs do not make a right”. The Claimant said that he was not a lawyer. He wasn’t not going to pretend he was one. He would appreciate it if we go ahead. The Employment Tribunal decided not to strike out the Claimant’s claim and gave oral reasons which will not be repeated here. The Employment Tribunal continued with the Claimant’s evidence and the Claimant became more respectful towards Mr Ridgeway.[25]The matter went part heard and was relisted for 30 June-3 July 2025. On 6 day (Monday 30 June 2025) during the evidence of Ms Josie Ofori, the Claimant got into an argument with the witness. Initially the witness did not have the trial bundle but was sent the trial bundle during the lunchtime break. The Claimant began to put matters to the witness that were not factually correct for example that the Claimant had referred to the alleged threat to his person in his appeal against dismissal. The Claimant began arguing with the witnesses’ answer to questions asked. The Employment Tribunal repeatedly told the Claimant he can challenge the evidence by asking questions not by making statements. The Claimant repeatedly asked Josie Ofori a question about the failure to follow the grievance policy that he should have had documents before the meeting. Josie Ofori complained that the Claimant was shouting at her. The Claimant made a remark that the Employment Tribunal did not hear. Josie Ofori repeatedly asked the Claimant what did you say and became visibly upset. The Employment Tribunal stopped the proceedings and took a break at 15:17 and returned at 15:28 to resume the witness’ evidence.[26]There were a number of occasions when the Claimant was cross examining witnesses on day 6 & 7, Mr Ridgeway would interrupt the Claimant’s cross examination and argue with the Claimant that his questioning was not appropriate. Mr Ridgeway was told on a number of occasions to refrain from arguing with the Claimant and that if he had objections to questions of the Claimant he was to direct his objections to the Employment Tribunal. On an occasion on day 6 (Tuesday 1 July 2025), Mr Ridgeway again began to argue with the Claimant and the Employment Tribunal had to warn Mr Ridgeway that if he continued to argue with the Claimant rather than direct his objection to the Employment Tribunal he ran the risk of costs. Mr Ridgeway did not repeat the behaviour after this warning.
Findings of fact
[27]The Employment Tribunal heard evidence on issues that did not form part of the Claimant’s case. Where that is the case, the Tribunal only made findings that are relevant to determine the agreed issues set out above. Where the Tribunal has made findings in respect of the Claimant’s conduct that the Respondent says resulted in the Claimant’s dismissal, these are pursuant to the Claimant’s wrongful dismissal claim and contributory conduct. The following findings of facts are made on a balance of probabilities. The page numbers of the bundle referred to in these reasons are in square brackets and refer to the electronic page number of the bundle. It is worth noting that the physical bundle was at times one page out as compared to the electronic bundle.[28]The Claimant did not refer to any documents in his written witness statement was a chronology. There were some issues as a result that the Claimant did not give evidence on. We noted that part of the Claimant’s complaint involved him taking bereavement leave because his mother had died in December 2021. However, at the case management preliminary hearing on 25 October 2024 [97-109], the Claimant said that he could not provide details of an amendment because he was abroad in Africa and that his mother was in a coma [102]. It was contradictions like these throughout the Claimant’s evidence that contributed to the reason why we considered that the Claimant had no credibility at all regarding most of the evidence that he gave. Regardless of that particular contradiction, the Claimant’s evidence was full of contradictions and attempts made to mislead the Employment Tribunal on multiple occasions and the Claimant was argumentative and evasive in answering some questions. The Claimant did not ask the Employment Tribunal to consider the witness statements of the witnesses he did not call and we did not attach any weight to those statements.[29]In respect of the Claimant’s witnesses, we found Ms Bindi and Mr Muscat to be poor witnesses whose evidence was full of contradictions. Mr Muscat especially admitted that had not told the truth in his witness statement. Ms Bindi was unable to tell the Employment Tribunal the date of when anything happened and most of her evidence was a reiteration of what her husband told her. Although we recognise that most of the events on which both witnesses gave evidence took place some 5-4 years ago.[30]We found the Respondent’s witnesses to be witnesses of truth and credible witnesses for the most part. Josie Ofori particularly was a helpful witness of truth giving evidence in difficult circumstances, where the Claimant made remarks (e.g. that Josie Ofori was ‘beating the chest’ for Shameel Anis) which the witness took exception to.[31]The Claimant was employed as a night concierge from 10 December 2019. The Claimant was already living on the estate, Colindale Gardens and so his job was minutes away from his work. The Claimant was provided with a contract of employment dated 6 December 2019 [118-127]. The Claimant’s shift pattern was 19:00- 07:00 4 nights on 4 nights off. The Claimant was married to Adama Bindi who was a cleaner for the Respondent. We find that the Claimant was provided with his contract of employment contained in the bundle. The Claimant gave no evidence that he did not receive it and on the contrary, in his evidence the Claimant relied upon the probation provisions. February 2020-complaints from Claimant and residents of 2 Quarrion house[32]The Claimant described himself as an Israelite and gave evidence that his employer knew that because he did do anything on a Saturday. We find that the Respondent could not have known that the Claimant was an Israelite just because he didn’t do anything on a Saturday. There was no documentary evidence presented that the Claimant told them of his race as an Israelite and it was not put to any of the Respondent witnesses that they knew. We find that the Respondent did not know that the Claimant was an Israelite.[33]The Claimant’s evidence was that in February 2020 he noted at a resident of 2 Quarrion House had a delivery from Tesco’s that was blocking the gangway. The Claimant considered this a health and safety risk and told the resident so. The Claimant’s evidence was that the resident encouraged a Tesco delivery driver to insult the Claimant’s mother and the resident bragged about his friendship with the manager and said that hence any complaint from the Claimant will come to nothing. The Claimant’s evidence was that the Respondent ignored the health and safety risk and abuse of him completely but was focused on the resident celebrity status and castigating the Claimant to the resident and making up excuses for the resident. We find that the Claimant did complaint about this incident on 15 February 2020 [196]. Although we did not see the actual email of complaint, we were provided with the header and the response to the header from Gavin Putney. We find that Gavin Putney’s responded on 17 February 2020 [196] to the complaint which meant that he did not ignore it. He asked the Claimant’s questions about how the situation arose. We find that he did not castigate the Claimant in that email response. There was nothing to suggest a conspiracy in Gavin Putney’s response and the Claimant accepted in evidence that there was no complaint from the resident. And if there was no complaint there can be no conspiracy of Gavin Putney to make up complaints against the Claimant with any the residents of 2 Quarrion House.[34]The Claimant raised a grievance with 12 complaints. One of the Claimant’s grievances concerned the allegation that he had sent an email to the wrong person with residents’ personal details [299]. The Claimant was concerned that this had not been investigated because the Respondent was investigating whether the Claimant’s actions as a disciplinary issue. The Claimant was invited to attend a grievance hearing before Matthew Meilleur on 2 September 2021. Eduardo Meias confirmed that the information requested by the Claimant was sent to him on 31 August 2021 [300]. December 2020 & 2021 Christmas bonus[35]On 17 December 2020, Kate Cork, Senior Property manager wrote to the Claimant to confirm that he would be paid a £500 bonus for Christmas into his pay for 21 December 2020 and stating that the bonus was discretionary. The Claimant’s evidence was that he did not receive this payment and that his bank statements evidenced this. The Claimant’s evidence did not mention a Katherine Ortizi nor were we referred to any document that referred to Katherine Ortizi. The Claimant’s bank statements were not in the bundle. The Claimant attempted to introduce the bank statements as evidence, which was not permitted. The payslips for December 2020 were not in the bundle. We note that in the Claimant’s appeal against Eduardo Meias’ decision that the Claimant received a Christmas bonus in 2020 which was evidence of the Claimant being appreciated, the Claimant did not mention anything about not being paid that Christmas bonus [313-316].[36]The Claimant’s evidence was that the Respondent spitefully refused him a bonus in December 2021. However, the Claimant admitted in evidence that the bonuses was discretionary and we find that the bonus was discretionary. The Claimant gave no detail whatsoever about what this bonus was and what the evidence was of refusal. The Claimant gave oral evidence that all his ”all friends at concierge department received the bonus”.[37]We heard from Florin Muscat who was the Claimant’s friend in the concierge department in 2021 but he gave no evidence on this point. We do not accept the Claimant’s evidence on this point. There was no mention of others getting a bonus in the Claimant’s witness statement and we find the Claimant’s evidence not to be credible and just made up in the moment. We accept Josie Ofori’s evidence that the issue of an unpaid bonus was never raised with her. All the complaints the Claimant made from December 2020 onwards the Claimant did not complain about not receiving a Christmas bonus, we consider that the Claimant would have complained if he had not received the bonus. We therefore do not consider the Claimant’s version of events credible and find that the Claimant was paid his Christmas bonus in December 2020 and that the Claimant was not refused a bonus in December 2021. May & August 2021, 5 Quassia House[38]On 9 May 2021, the resident at 5 Quassia 4EE wrote by email at 06:10 to Gavin Putney copying the Claimant (when he was on duty) complaining that on 8 May 2021 the Claimant was rude in the process of asking her to remove some shoes outside her home. The resident said that she had already started to remove the shoes when she noted that the Claimant was filming her which escalated the situation further. The resident asked the Claimant to stop filming. The resident asked any film to be deleted [236].[39]Following receipt of the Claimant’s complaint on 9 May 2021, the Claimant wrote to the resident at 5 Quassia 4EE complaining that the resident left 5 pairs of shoes in front of the entrance to their apartment and that when he asked the resident to remove the shoes, the resident swore at the Claimant. The Claimant reminded resident that it was a health and safety issue and that the concierge had an obligation to ensure there were no obstructions [232-233].[40]On 10 May 2021 Gavin Putney wrote back to say that he would investigate [235] but also added that the resident should stop leaving shoes outside the resident’s front door and states “if you didn’t leave your shoes outside the whole episode would never have occurred.” [234] The resident wrote back to Gavin Putney the same day and thanked him for investigating the matter. [234] By email dated 10 May 09:50, Gavin Putney responds to the resident that he will be speaking to the Claimant about his conduct [232]. Following these emails Gavin Putney held a meeting with the Claimant and also took statements from the other night concierge on the day of the incident, Florin Muscat, and the Claimant. Mr Muscat’s witness statement stated that in relation to an incident concerning residents of 5 Kennington House, Gavin Putney decided to raise a false complaint against the Claimant. However, in cross examination Mr Muscat admitted that it was not true but that he had heard a rumour and that the only reason he put it in the witness statement was because of being paid more. We find that the content of Gavin Putney’s email on 10 May to the resident telling the resident off for leaving shoes was inconsistent with the Claimant’s evidence that Gavin Putney was conspiring with the resident to complain about the Claimant. In fact we find that the telling off is compelling evidence that there was no conspiracy at all. We also find that the circumstances surrounding this incident is evidence that Gavin Putney investigated complaints properly when made. We find that the Claimant gave no evidence that there was any complaint from any resident of 5 Quassia House in August 2021 or a conspiracy by Gavin Putney against the Claimant to make up complaints with the residents of 5 Quassia house and we attached no weight to Mr Muscat’s evidence. The Claimant’s grievances[41]By letter dated 11 August 2021 the Claimant was suspended by Gavin Putney for 3 issues, breach of GDPR, failure to carry out health and safety checks, and the incident where the Claimant accused the resident of 23 Kennington of parking in the incorrect parking space and claimed he was a “young big shot with a big car and could treat any one like shit” [260].[42]On 15 August 2021, the Claimant raised a grievance about being suspended [263] and on 23 August 2021 he raised a separate grievance against Gavin Putney about the GDPR matter and the incident with the resident of 23 Kennington regarding parking. The Claimant complained that Gavin Putney did not carry out an investigation before the suspension [268]. The Claimant requested copies of all complaints, breaches and instructional emails from Gavin Putney [261], all complaints against the Claimant, emails of investigations carried out by management[ 262]. The Claimant named witnesses he said in relation to specific complaints.[43]On 16 August 2021, the Respondent had scheduled a disciplinary investigation to take place with the Claimant regarding the matters set out in Gavin Putney’s letter of suspension [269]. However, this disciplinary investigation meeting did not take place because the Claimant raised concerns about Gavin Putney being involved in the investigation and asked him to be removed. By letter dated 26 August 2021 the disciplinary investigation meeting was rescheduled for 2 September 2021 and Naomi Beddow the author of the letter confirmed that Gavin Putney had been removed from the investigation [269]. On 31 August 2021, Naomi Beddow sent the Claimant CCTV footage of the 23 Kennington incident [271].[44]By email dated 1 September 2021 [277] to Eduardo Meias and HR the Claimant requested that the grievance meeting take place before the investigation. By email 1 September 2021 [277], the Claimant wrote to the Respondent and requested evidence of the breach of GDPR, COVID 19 chart, CCTV of 23 Kennington House and all witness statements (Mark Walman, Bruce San Juan, 15 Popular and Eion (Temp Staff).[45]Eduardo Meias responded later the same day confirming that the meeting (which was now moved to 2 September 2021) would only deal with the Claimant’s grievance [278]. The grievance meeting took place on 2 September 2021 [281-294].[46]By letter dated 27 October 2021, Eduardo Meias provided an outcome to the Claimant’s grievances [298-310]. The Claimant’s grievances were partially upheld on 2 points. Eduardo Meias stated that the Claimant’s complaint that a resident of 5 Maple was aggressive to him made to Gavin Putney was not addressed and the Claimant did not receive an outcome was upheld in so far as Gavin Putney should have given the Claimant an outcome of his investigation with the resident in respect of this issue [303- 304]. The other point upheld was the Claimant’s complaint to Gavin Putney that he did not receive an outcome of his complaint that a resident at 20 Umber House who could not locate a parcel became derogatory about the Claimant’s parents in August 2020. Eduardo Meias held that Gavin Putney did deal with the resident sufficiently but again should have given the Claimant an outcome. [305] All the other grievances including the GDPR were not upheld. Bereavement pay November 2021 & January 2022[47]On 5 November 2021, the Claimant emails Respondent that his mother had passed away and that he needed bereavement leave and asks that the investigation be put on hold until 1 December 2020 [312A]. Naomi Beddow, HR advisor responded asking what the Respondent can do support the Claimant. In fact the Respondent does put the investigation process on hold because a month later on 2 December 2021 Ms Beddow wrote to the Claimant stating “ As we have postponed the investigation in support of your grievance per policy . Also in very sad circumstance of the passing of your mother and at your request we held off the resumption of the investigation till 1 December 2021. We are now ready to continue with the process. I will be sending you an investigation for week commencing 6 December 2021” [318]. The letter also stated that the Claimant would be allowed 5 days compassionate leave paid or unpaid. We find that the Respondent did pause the process for a period in accordance with the Claimant’s wishes.[48]The Claimant took bereavement leave between 15 November- 27 November 2021. The Claimant was on leave 26 January- 7 March 2022 [341]. We note that the Claimant was paid his salary in November 2021[591] and January 2022 [593]. There was no difference in pay in these months to December 2021 [592] or February 2022 [594]. There were no deductions from salary other than normal deductions for tax and NI. We find the Claimant was paid his bereavement leave in November 2021 and January 2022. Alleged failure to acknowledge the Claimant’s contributions throughout the year in December 2021[49]The Claimant’s evidence was that the Respondent did not show any appreciation for the Claimant for the completion of another year service at the end of 2020 because of his marriage to Adama Bini [paragraph 8]. The Claimant did not mention any names of any one in particular. However in evidence the Claimant admitted that he was not saying that he and he wife were never appreciated but that when it came to one year they were left out. However, the Claimant was sent a letter confirming his completion of probation [198]. Ms Bindi’s evidence was that it was a common thing that staff were appreciated when you completed 1 or 2 years. However, Josie Ofori’s evidence was that length of service was not celebrated with the Respondent. However, we were referred by the Claimant to a staff circular email dated 18 December 2020 from the Estate Manager who was Gavin Putney at the time where a member of staff was commended for 2 years’ service as evidence of the appreciation of other staff. We note there was a reference to celebration of 2 years [225] not one year and only one person was commended. We do not accept the Claimant’s evidence, as he is not a credible witness. He provided no documentary evidence of staff being celebrated for 1 year service. We do not accept Ms Bindi’s evidence either as credible. We find that the Claimant’s contributions were celebrated in 2020 as set out in Eduardo Meias’ letter dated 27 October 2021 that the Claimant was thanked on 23 June 2020 regarding a BBQ and on the 25 September 2020 over involvement the TUPE process [310].[50]On 5 December 2021 [313], the Claimant appealed Eduardo Meias’ decision on his grievances. However, by letter dated 9 December 2021 [320] the Claimant was told that the Respondent will not process the Claimant’s appeal request as the appeal was late. We note that the Respondent’s grievance procedure states “10.1. If the employee is not satisfied with the outcome following a formal grievance meeting and response, the employee may appeal in writing within 5 working days clearly stating the reasons for the appeal to the next level of management. The decision at the appeal stage is the final stage of the procedure.” [146][51]The Claimant’s evidence was that by December 2021 he had not been appreciated for his contributions throughout the year. However we find that the Claimant does not mention what contributions he was not appreciated for or give any evidence of the contributions he made. The Claimant gave evidence that the lack of contribution was because he was married. The Claimant said that his wife was not appreciated either. However, in evidence the Claimant admitted that he was not saying that he and his wife were never appreciated but that when it came to one year they were left out. We find that there is no evidence of the Respondent did anything or not in relation to the Claimant status or his wife. There were no documents where the Claimant’s status as married or wife were mentioned.[52]The Claimant then submitted an “additional grievance” against the grievance outcome on 12 January [321]. Another grievance meeting was arranged for 17 January 2022. However, Matthew Meilleur who was to hear the grievance came down with COVID 19 and so the meeting for 17 January 2022 was cancelled [322]. However, the same day the Respondent sent out another grievance invite for a meeting on 19 January 2022 and this time Shameel Anis was to hear the grievance, but the Claimant was also told in the letter that Shameel Anis would hear the disciplinary investigation after the grievance meeting as well. [326][53]On 19 January 2022, the meeting with Shameel Anis did take place [328- 342] but the Claimant objected to Shameel Anis hearing the disciplinary investigation meeting [340]. Shameel Anis’ oral evidence was that as result he did not carry out an investigation into the disciplinary matters.[54]By letter dated 15 March 2022 [343-346],Shameel Anis provided the outcome that the Claimant’s grievances were not upheld. On the same day, the Respondent sent the Claimant a disciplinary investigation invite for 17 March 2022 [350] to be conducted by Jason Grieve. However, the disciplinary investigation meeting did not take place on 17 March 2022 because the Claimant did not attend. By letter dated 23 May 2022, the disciplinary investigation meeting was rescheduled for 14:00 26 May 2022 [356-357]. In that letter the Claimant was told the allegations could amount to gross misconduct and could result in dismissal [357]. The Claimant’s evidence was that this was a threat of dismissal. The Claimant complained that there was intimidation and hacking and email editing and due processes were not followed. We find that the Claimant was complaining about how his grievances were dealt with regarding the processes and procedures not followed. We find that the Respondent did not go ahead with the investigation meeting after the grievance meeting in respect of Shameel Anis.[55]On 25 May 2022, the Claimant wrote to the Respondent objecting to the disciplinary investigation meeting and stated that the Respondent has failed to investigate by providing the Claimant with key witnesses’ statements for Bruce San Juan, Mark Waldman, Jurijs Babinadev and Florin Muscat [359].[56]On 26 May 2022, the Claimant did not attend the disciplinary investigation meeting [360]. The Claimant was invited to attend another disciplinary investigation meeting for 23 June 2022 at 15:00. At approximately 14:52, the Claimant sent an email to Jason Grieve saying that he will attend the meeting but is retitling it as a “clear the air meeting” [363]. Then the Claimant sent Jason Grieve an audio at 14:59, of which the transcript is contained in the bundle [364-366]. In paragraph 36 of the Claimant’s witness statement that Claimant states that “Jason called C1, agreed, rearranged and retitled the so-called disciplinary meeting to a Clear-the-Air meeting”. In the Claimant’s oral evidence when it was put to him that Jason Grieve never agreed that the meeting was a clear the air meeting, the Claimant said that he knew what he agreed to. However, in paragraph 12 of Jason Grieve’s witness statement he states he never agreed to a clear the air meeting and the Claimant never challenged Jason Grieve’s evidence in cross examination on this point. We find that Jason Grieve never agreed to the meeting being a clear the air meeting and the meeting invite stated that it was a disciplinary investigation meeting and we find that it is the disciplinary investigation meeting that the Claimant attended on 23 June 2022. Although Jason Grieve gave evidence that there was a transcript produced of the meeting through Teams, there were not notes of meeting or transcript in the bundle.[57]By letter dated 3 July 2022 [369-374] the Claimant wrote to the Respondent setting out his version of events and asking for £65k as resolution for all his grievances. [374][58]By letter dated 25 July 2022, the Claimant was provided with the outcome to the disciplinary investigation meeting heard by Jason Grieve on 23 June 2022 [376-381]. Only one allegation was upheld and that was the Claimant was in breach of the GDPR. Jason Grieve gave the Claimant a written warning in respect of this allegation and none of the other allegations were upheld. The warning was placed on the Claimant’s file for 12 months [380]. The Claimant suspension was lifted and the Claimant was told that he must return to work by 7pm on 27 July 2022. The Claimant was given the right of appeal within 7 calendar days of the decision.[59]The letter also warned “You are now fully aware of the importance of ensuring that there are no such further incidents in the foreseeable future. If there are any similar or related instances, or indeed any other misconduct occurring in the future then we may have to consider a further disciplinary hearing which may result in further potentially more serious disciplinary action being taken.” [380] Furthermore in that letter the Claimant was told to return to work meeting for 27 July 2022 [380].[60]By letter dated 1 August 2022 [382- 384] the Claimant appealed the disciplinary investigation outcome. The Claimant also added that he “for these reasons I will not be able to return to work as I do not feel safe nor protected at work…” [384] However, we find that none of the reasons that the Claimant refers to in his specify that a person resident or otherwise made a threat of violence to the Claimant and that is why he feels unsafe nor protected for duty. The Claimant does not provide any basis for this statement in the letter.[61]Josie Ofori gave evidence that the Claimant was asked to attend work on 3 August 2022 but he did not attend work. We accept Josie Ofori’s evidence on this point.[62]By letter dated 17 August 2022 the Claimant’s appeal was acknowledged and the Claimant was invited to attend an appeal hearing for 19 August 2022 at 13:00. [388] By letter dated 17 August 2022 sent by email, [390] the Claimant was told that he had failed to return to work and that it was a reasonable management instruction on 3 August 2022 and that he was classified as being on unauthorised absence and as a result the Claimant would not be paid. The Claimant was told that Adam Marshall will be the appeal manager [386]. We find that the Claimant was paid his full salary in July 2022 from the payslip [599]. We find not paid his full salary in August 2022 [600] but was paid for the period 1-17 August 2022. We find that the Claimant was not at work from 3 August 2022 and his absence was unauthorised.[63]The Claimant evidence was that first he said 12 days and then he said he was entitled to be paid 18 days outstanding annual leave by the time of his dismissal. Ms Bindi gave evidence that the Claimant was in Sierra Leone for 3 weeks but said that she was not good with dates. The Claimant agreed that his holiday year was January-December which is contained in his contract of employment [119]. We find that contractually the Claimant was entitled to 24 days if he was in attendance for the whole holiday year. But he was not as he was dismissed on 19 October 2022. However, we do not accept the Claimant’s evidence or Ms Bindi’s evidence. Both the Claimant and Ms Bindi said the point of the time off was for the 40 days anniversary. The Claimant was inconsistent in his evidence he said he was entitled to 12 days and then 18 days. Ms Bindi admitted she was not good with dates. At the hearing on 19 January 2022 with Shameel Anis the told Mr Anis that he would be taken annual leave from 27 January- 7 March 2022 and in oral evidence the Claimant admitted that he was in Sierra Leone from JanuaryApril 2022. We find that amounts to 40 days equivalent of 5.5 weeks and that the Claimant took this as annual leave. We found that the Claimant used up his annual leave entitlement by the time he was dismissed. The Claimant was not paid his salary for September 2022 and so did not receive a payslip or for October 2022 as the Claimant did not return to work in either September or October and his absence was unauthorised, but the Claimant did receive a payslip for October 2022 because he was paid what the Respondent regarded as his outstanding holiday pay in October 2022.[64]The Claimant did not attend the meeting on 19 August 2022. The Claimant was asked for his dates of availability by email dated 7 September 2022 [391]. Josie Ofori wrote to the Claimant the same day to say that if she did not hear from the Claimant by 12 September 2022 regarding dates of availability the appeal would be closed [392-393]. The Claimant was sent an invite to the appeal meeting by Adam Marshall [394]. The Claimant responded on 12 September 2022 by email that he would like the hearing to take place on 23 September 2022 but that he is “not privy to good internet service where I am presently”. [395][65]By email dated 21 September 2022, Josie Ofori told the Claimant to attend site at his next available shift. In the letter dated 22 September 2022 attached to the 21 September 2022 email Josie Ofori wrote “As you have failed to follow a reasonable management instruction and not acknowledged or made contact regarding other potential options available to you in relation to your return to work, I am now looking to give you a final option to attend site and request that you report for your shift on Friday 23rd September 2022 at 10am to Diego Palacio, Asst Estate Manager. I must advise you any further continuation of this unauthorised absence from Friday 23rd September, without reasonable explanation, will be addressed as an allegation of gross misconduct, in particular as an alleged failure to follow a reasonable management instruction to attend work and will result in your being invited to a disciplinary hearing to consider that allegation.” [397][66]By letter dated 22 September 2022 sent by email [398],the Claimant was invited to attend an appeal meeting with Adam Marshall for 09:00 26 September 2022 by Teams [399-400]. The Claimant did not attend and on 29 September 2022, the Respondent sent the Claimant another appeal meeting invite by email for 3 October 2022 for 13:00 [406-407] for a Teams meetings. Josie Ofori also put her mobile phone number in the appeal meetings invite. The Claimant received the email as on 2 October 2022 we note that the Claimant sent the email to the concierge with a view to them printing it out [403]. Investigation in to AWOL[67]On 29 September 2022, by email at 10:57, Josie Ofori sent the Claimant another invitation, but this time it is for a disciplinary investigation meeting for 3 October 2022 at 14:30 [404]. The letter of invitation stated that refers to the Claimant having “previously alleged bullying in the workplace, and that adequate protection from residents have not been put in place, however it is our belief at this point that these matters have been responded to and addressed appropriately through your previous grievances.” [408]. The letter also noted that “As an observation, we are surprised by these comments based on the fact that you live on site.” [408]. The Claimant was told that the matter will be addressed as a matter of gross misconduct. The Claimant was sent a Teams link for the meeting at 14:30 [410 &419][68]The Claimant’s evidence was that the meetings set up in September 2022 were “bogus and ghost meetings” which he attended. The Claimant claimed in oral evidence that he did not receive an invitation letter dated 29 September 2022 attend a meeting for 3 October 2022 [408-409]. However, we find that the Claimant never stated at the time to the Respondent that he attended any of these meetings but actually said that his internet was not good. Neither did the Claimant ever mention not receiving the letter dated 29 September 2022 inviting him to an investigation meeting to deal with his failure to follow a reasonable management instruction to return to work [408-409]. We find that the Claimant did not attend any of these meetings and did receive the invitation to the investigation meeting. Disciplinary[69]By email on 29 September 2022, Josie Ofori sent the Claimant guidance on how to attend Teams meetings [411-413]. By email dated 30 September 2022 [416-418] the Claimant stated that he cannot open the email at 13:33 from Mr Marshall. He stated “there are deliberate circumventing tactics deployed by Rendall and Rittner investigation team inorder to influence and sabotage good practice procedures and outcomes” [416]. The Claimant alleges that fictious meetings scheduled and various times for meetings have been supplied to confuse. [417] The Claimant also adds in that email “1. 1 will not return to work without thorough review of grievances, investigations and outcomes of this case. 2. i will not return to work until proper review, recommendations and implementions of staff safety, protection and warnings against staff abuse and bullying are clearly emphasised and visibly displayed at place of work. As I am levied and frankly feeling vulnerable in carrying out my daily basic duties”.[70]We find that the Claimant did not mention specifically the alleged threat from the resident of 23 Kennington as he reason for not returning to work. But we find that his concern appears to relate to previous complaints about verbal insults from residents.[71]Adam Marshall responded to the Claimant’s email 30 September 2022 on 3 October 2022 at 10:01 [422-423], saying that he is keen for the appeal hearing to go ahead and that he was not employing any tactics to avoid the meeting. He repasted the link for the 13:00 meeting in the email and he asks the Claimant to respond to the email to confirm that he could see the instructions. [423][72]The Claimant did not respond to Adam Marshall’s 10:01 email and did not join the meeting at 13:00. At 14:31 on 3 October 2022 the Claimant sent an email to Josie Ofori and Adam Marshall stating that he was going to try and join the meeting but that if he did not join by 14:40 then they should call him and he set out his mobile number [422][73]On 3 October 2022 at 15:04, Josie Ofori wrote to the Claimant to let him know that there were 2 meetings on the 3 October 2022, one at 13:00 and the other at 14:30 and that he did not call her if he had access issues [420]. The Claimant responded on 4 October 2022 [439] to say that informing him after the scheduled time for the meetings that there was an appeal and investigation hearing on the same day was not fair. The Claimant claimed that he logged in at both 13:00 and 14:30 both audio and video and that Jake Burton could confirm that. We find that this is further evidence that the Claimant received the invite to the disciplinary investigation meeting sent for the 3 October 2022, otherwise the Claimant would not have said that he attended both meetings.[74]On 5 October 2022, Josie Ofori emailed the Claimant another disciplinary invite for 7 October 2022 at 12:30 [429]. The information of the details of the hearing is contained in the body of the email. There are 2 attachments to that email. The first attachment is a letter dated 5 October 2022 explaining that the Respondent has tried 3 times to have the appeal meeting but the Claimant had not attended and so they considered the Claimant’s appeal was closed and there was no further recourse for the appeal. [435-436]. The second attachment was the invite to the disciplinary investigation meeting with Adam Broom on 7 October 2022 at 12:30. The allegation in the letter was that the Claimant “fail[ed] to follow a reasonable management instruction and you still continue to be classed as unauthorised absence from the original proposed date of return being 3rd August 2022 and subsequent further instructions asking you to report back on Friday 23rd September, this will be addressed as an allegation of gross misconduct”. Claimant was warned in the letter “You should be aware that should the allegations be proven, this would amount to gross misconduct, thereby justifying your summary dismissal.” [433][75]By email 5 October 2022, Josie Ofori arranges a test call with the Claimant for 7 October 2022 at 10:30 [438]. Josie Ofori also points to the sending of 2 letters one inviting the Claimant to the appeal and the other the disciplinary investigation meeting. The test call invite was sent to the Claimant at 11:41 on 5 October 2022.[449] we accept Josie Ofori evidence that the Claimant attended the test call [paragraph 70 of Josie Ofori witness statement]. The Claimant did not attend the meeting at 12:30 on 7 October 2022. We accept Adam Broom’s evidence that he attended the meeting for 10-15 minutes from 12:30 on 7 October 2022 and the Claimant did not attend.[76]The Respondent then sent a letter dated 10 October 2022 [454-455] to the Claimant giving him another chance at the appeal because at the test call the Claimant explained that he was having trouble accessing the meeting. The meeting was set up for 11 October 2022 at 13:00 [454] and Josie Ofori phone number was included for the Claimant to call her if he could not access the link. The Claimant was warned that if he did not attend there will be no further appeal.[77]However, by email at 09:59, Josie Ofori wrote to the Claimant to inform him that the appeal meeting time was rescheduled to 15:00 [457-458]. The Claimant received the link to the appeal meeting on 11 October 2022 from Adam Marshall at 13:07 on 10 October 2022 [470]. At 11:30 on 11 October 2022, the Claimant sent an email to Adam Marshall saying that he received the link to attend the meeting for 14:30 on 11 October, but the Respondent was deliberately refusing to admit him into the meeting [473]. The Claimant did not attend the appeal on 11 October 2022.[78]By email dated 12 October 2022 16:06 Josie Ofori sent the Claimant another invite to the disciplinary investigation meeting for Friday 14 October 2022 at 14:30 via teams. Josie Ofori explained to the Claimant in the email that Adam Broom would send the Claimant the teams invite [459]. The Claimant received the email with the attachments [472].[79]In the letter attached to the email [463-464, the Respondent states “I must advise you as you have continued to fail to follow a reasonable management instruction and you still continue to be classed as unauthorised absence from the original proposed date of return being 3rd August 2022 and subsequent further instructions asking you to report back on Friday 23rd September, this will be addressed as an allegation of gross misconduct, in particular as an alleged failure to follow a reasonable management instruction to attend work. You should be aware that should the allegations be proven, this would amount to gross misconduct, and could therefore lead to your summary dismissal” [463][80]On the same day, 12 October 2022, Josie Ofori later sent the Claimant an email at 16:44 [465] with a letter attached confirming that the Claimant’s appeal was now closed and there is no recourse to appeal. [466-467][81]On 12 October 2022 at 22:21, the Claimant wrote to Adam Marshall that he logged into the planned meeting for 15:00 on 11 October 2022 but he was again refused entry to the meeting [473]. By email dated 14 October 2022, 12:52 Josie Ofori responded to the Claimant’s email explaining that they did not receive a voicemail of 58 minutes from the Claimant on 11 October 2022 until after the meeting had concluded by that point. [472] Josie Ofori confirmed in the email that the Claimant was due to attend meeting later that day on 14 October 2022 for 14:30 with Adam Broom [468]. Josie Ofori confirmed that she has sent a Teams invite along with Adam Broom’s mobile number by that point [468].[82]By email dated 14 October 2022 at 15:11, Josie Ofori sent the Claimant a final disciplinary meeting invite for a meeting on 17 October 2022 at 15:30. The details of the time were contained in the name of the attachment and the body of the email. The email also contained Adam Broom’s mobile number and joining instructions [474-477].[83]In the disciplinary invite letter it stated that the meeting on 17 October 2022 was a final disciplinary meeting and set out again that if the allegations were proven that it could amount to gross misconduct and could lead to the Claimant’s summary dismissal. And that the failure to attend without reasonable excuse meant that a decision could be taken in the Claimant’s absence. The Claimant was told to call Adam Broom no later than 15:45 on 17 October 2022 if he was having trouble accessing the link [478-479]. The Claimant did not attend the disciplinary meeting. We find that the Claimant did not provide a reasonable excuse for his non-attendance.[84]By letter dated 19 October 2022 sent by email 14:38 [480] the Claimant was dismissed for failing to follow a reasonable management instruction to attend work. The Claimant was given a right of appeal [481-482]. We accept Adam Broom’s evidence that the reason for the Claimant’s dismissal was that it was clear to him that the Claimant had failed to return to work as required and had not reported back to the Respondent on 23 September 2022 as requested to do so. He considered that this was a reasonable management instruction, as was the request to attend disciplinary hearings. He concluded that the Claimant was clearly not willing to discuss the matter and he was slightly surprised he did not attend the second hearing or indicate why. He was not signed off sick, so there was no reason as far as he could find for him not to follow the instructions to attend. The Claimant did not make any attempt to contact Mr Broom despite being given 2 opportunities to state his case.[85]We also accept Adam Broom’s oral evidence that he was only looking at the reasonable instructions allegation and did not have any other information before him. He did not consider the Claimant’s previous written warning or his length of service. But even if he had considered both it would have made no difference. Even though the Claimant did not provided the reason for him not returning to work to him, having heard the Claimant’s evidence that the reason why he did not return to work was the alleged impediment in respect of the resident of 23 Kennington House threat, he said at the hearing was the first time he had heard about it but it would not have changed the outcome. He would have liked to have done some due diligence which would have taken a week at most, but it was the fact that the Claimant had been out of the workplace for a period of time, he had more than a year service but was not engaging in the process and did not seem invested.[86]The Claimant’s oral evidence was that he told the company the reason he was not coming back, he said he knew that he didn’t do anything wrong. The Respondent gave him a slap on the wrist. Call person dumbbell on my face, it is because of this confrontation, they did not do anything. Mr Muscat gave evidence that in September 2021 he was told by the brother of the resident of 23 Kennington House, that he ever met the Claimant in the gym he would punch his face with a dumbbell or any place for that matter. [paragraph 9 amended]. The Claimant’s oral evidence was sketchy at best as to when he was told and what he was told. The Claimant was unable to say a date when he was told or what he was told by Florin about the alleged threat was by the brother of the resident “…told us that if they ever meet Mr Koroma in the gym they will punch his face with a dumb bell or any place for that matter.” The Claimant also said for the first time that he told Gavin Putney in September 2021 about the threat and asked him to speak to the residents of 23 Kennington and Gavin Putney did not come back to him. However, we find not only did the Claimant not mention that he was told about a threat to him in September 2021 in his written witness statement he did not mention that he told Gavin Putney about this threat.[87]The Claimant’s oral evidence was that he told Jason Grieve in June 2022 that he could not return to work because of this threat and the Claimant was worried about his safety. However, in none of the correspondence at this time from the Claimant does he mention this threat as the reason for his concerns for his health and safety and the reason why he would not return to work. In evidence whenever the issue of the threat was raised in cross examination the Claimant changed his story of what it was that the brother threatened to do. On one occasion he said that the brother threatened to “slap him on his face with a dumbbell” on another occasion he said, “person who smashed face with dumbbell”, in the Claimant’s appeal hearing he refers to the resident saying he would “slap him” [531-532]. We do not accept the Claimant’s evidence at all on this point, his explanation of what the threat was wholly inconsistent the Claimant referred to a confrontation in his evidence as the reason for him not returning to work, but the Claimant did not have a confrontation with the brother who it is alleged said he would assault him. The Claimant remained living on site and we consider that if the Claimant had real concerns about his safety he would have concerns about living on site which he never mentioned, he only mentioned he had concerns about going to the gym. We find that it was a reasonable instruction that the Claimant return to work. We find that in so far as we are required to consider whether the Claimant’s was guilty of misconduct in relation to his wrongful dismissal complaint we find the Claimant did not attend work and did not have a reasonable excuse to be absent from work.[88]The Claimant’s oral evidence was that he did not receive the invitation letter dated 14 October 2022 inviting him to the hearing for 17 October 2021, although this was not in his claim form or witness statement. He claimed he received no correspondence between 11 October 2022 until 19 October 2022 when he received the letter of dismissal. We find that the Claimant did receive the letter inviting him to the 14 & 17 October meetings, as he received Josie Ofori’s email dated14 October which warned him about the meeting later that day to deal with his unauthorised absence. [473] There was no logical reason to have received this email and no other emails between 11-19 October 2022. Disciplinary Appeal[89]On 21 October 2022, the Claimant appealed the dismissal [485-487]. The Claimant makes a general complaint about his safety [487] but does not mention the alleged threat resident 23 Kennington and did not provide any explanation as to why he did not attend the meetings. The gist of the appeal is that the process including grievances was flawed and that there was a biased conclusion [485].[90]By email dated 3 November 2022 14:42 [495], the Claimant was invited to attend an appeal against dismissal hearing on 11 November 2022 at 10:00 with Andrew Morgan. This information is contained in the email. However, the email does not go to the Claimant’s usual email address and there is no attachment on the email. We find on a balance of probabilities that the actual letter was not attached to the email and the Claimant did not get the email in time for the meeting to question the information it contained as it was not sent to his normal email address. The Claimant did not attend the meeting, Andrew Morgan attended from 09:57-10:25. [498][91]By email dated 22 November 2022 [499], Josie Ofori wrote to the Claimant that he did not attend the 11 November 2022 appeal against dismissal hearing and so they considered the appeal withdrawn, but the Claimant was offered a paper review and if the Claimant did want that he was to respond by email to Andrew Morgan by 25 November 2022 [500]. By email dated 25 November 2022 [504] attached is a letter to the Claimant dated 25 November 2022, where the Claimant again offered another appeal on 1 December 2022 at 14:30 also offering the option of a paper appeal. a deadline to respond to Andrew Morgan is given of 28 November 2022 [505- 506]. By email on 28 November 2022 the Claimant responds to the Respondent’s 25 November 2022 correspondence [508-510], the Claimant suggests an in person hearing. The Claimant agrees to a meeting on 1 December 2022 at the Colindale office at 14:30 [509].[92]On 28 November 2022 at 19:44 [511-514] the Claimant sent an email to Andrew Morgan containing his additional grounds of appeal. In this letter the Claimant mentioned for the first time that for 17 months a resident vowed to slap him across the face meant that he could not use the sauna, steam room and gym [512]. The Claimant stated “ no initial investigation before notice and no notice before dismissal” [512]. We find that it is unclear what the Claimant is referring to when he says no notice before dismissal.[93]On 30 November 2022 Josie Ofori emailed the Claimant that the appeal against dismissal hearing is now rearranged for 7 December 2022 at 14:00 in person [515]. The new details of the appeal against dismissal hearing are confirmed by letter [518].[94]The Claimant attended the appeal meeting on 7 December 2022 [519-551]. The minutes were taken by a note taker, notes which were accepted by the Claimant as accurate. In the hearing Mr Morgan assures the Claimant that he will deal with the additional grievance he states, “The predominant for this meeting is you understood is about that dismissal appeal but if some of those are related I'm happy to sit here and listen to you.” [520][95]In the appeal meeting, the Claimant referred to not being able to go to the gym because he said that the guy said “..he is going to slap me across my face; his brother not is not him” [531] he says that he brought it to the attention of the company and the company had not done anything until now. He has not been able to use the facilities. The Claimant said that he was not going to put himself in danger. [532]. The Claimant then says “Because I was exposed to harm, I was exposed to risk of being beaten up and I told the company about that, they're telling me "oh we want a return to work" what do you mean you’re treating me like non entity like somebody who is a stone, I can't return to work I'm not safe.” [532] Mr Morgan asks the Claimant whether he has informed the current Estate manager Jake Burton. The Claimant says that he did not tell Jake. We find that if the Claimant were really concerned about his safety he would have told Jake Burton who was in place before the Claimant was dismissed.. During the hearing, the Claimant referred to an audio recording of the meeting with Mr Anis [523], emails ‘failing to carry out reasonable instructions’ [528], videos showing the Claimant was not late joining Andrew Marshall’s meeting [533], evidence showing that the Claimant was subjected to abuse [535], recordings of the meeting with Eduardo Meias [536], evidence in relation to the issue “his parents were abused”, email/letter from Naomi Beddow asking Gavin Putney to investigate [546], emails in relation to house confinement and the Claimant not feeling safe [550] and an audio recording of the appeal meeting held on 7 December 2022 [551]. Andrew Morgan asked the Claimant multiple times in the meeting for evidence of the things the Claimant alleges happened and states if he wants to provide hard copies he can drop them off at the office where the meeting is taking place [550][96]On 21 December 2022 Mr Morgan sent the Claimant the minutes of the meeting [552]. Between the 19 December 2022– 3 January 2023 the Claimant sent Andrew Morgan his evidence. On 19/12/22 the Claimant sent photographs of emails [553-556], on 21/12/22 [559] the Claimant sent a photo which he says is of health and safety breach, on 22/12/22 [561-564] the Claimant sent evidence of his appeal meeting signing in and [568] says that he provides audio and video evidence of 11 October 2022 meeting to prove that Adam Marshall did not admit him to the meeting. Mr Morgan wrote on 22 December 2022 18:11 to say that there was no video or audio attached to his email [566]. The Claimant follows this email with some videos labelled 11 October 2022 appeal meeting [568].[97]On 3 January 2023, the Claimant sent “photo evidence of bereavement leave confirmation and hold on investigation” [571]. On 4 January 2023 Andrew Morgan wrote the Claimant to ask him to confirm that he has sent all his evidence to him [570]. On 5 January 2022, the Claimant confirmed that he has sent Mr Morgan all his evidence [569]. However, we find this is the first time that the Claimant provided any evidence of his reason for not attending a meeting. The Claimant provided a photo of the screen of a Teams meeting which says when the meeting starts you … (the rest of the writing is obscured) and then another photo of his phone saying someone in the meeting should let you in soon. The Claimant claimed that this was evidence that Claimant tried to attend a disciplinary meeting was on 11 October 2022 [563-564]. We find that Andrew Morgan considered the Claimant’s evidence but did not believe the Claimant’s evidence because he emailed Josie Ofori that the evidence provided did not show that the Claimant had attended at the time he said because there no time or date stamp on the screenshots [568], and this is reflected in the appeal decision where he states that the Claimant did not attend pre-arranged meetings. [588][98]By email dated 8 February 2022 [582-582], Mr Morgan provides the appeal outcome and upholds the dismissal. Mr Morgan’s reasons for upholding the dismissal were that he has looked into all the grievances raised by the Claimant historically and finds that they were properly investigated and considered. Mr Morgan considered that the reason for dismissal was warranted and a fair process followed. The letter also sets out that Mr Morgan did not believe that the Claimant did not receive notice of the disciplinary hearing. [585] In evidence Mr Morgan confirmed that the written warning did not play any part in his reason to uphold the dismissal.[99]We accept Mr Morgan’s evidence that he did not believe the Claimant that the threat was serious because if it were the Claimant would have contacted the police and that the Claimant described the threat as something that happened outside of work. Mr Morgan stated that the Claimant did not refer to 23 Kennington as the resident in question and so he did not know any details of the resident, there was confusion about the details. Mr Morgan did not think that the Claimant regarded the allegation as serious as if it were the Claimant would have raised it on multiple occasions and he did not. Mr Morgan stated that his reference to meetings having been set up allowing the Claimant to have the opportunity to respond to the allegations but the Claimant’s failure to attend was his explanation in his decision for the Claimant not explaining why he did not attend work. Mr Morgan’s evidence (which is accepted) was that he concluded that the Claimant did not want to return to work.
Law
[100]This is a case that involves both unfair and wrongful dismissal claims. I am therefore mindful of the distinction between the two claims. This distinction was explained (in the specific context of constructive dismissal) in the case of Rawson v Robert Norman Associates Ltd UKEAT/0199/13, [2014] All ER (D) 154 (Apr) as follows: ''There is a vital distinction between the facts which underlie a claim for unfair dismissal, in particular where that dismissal is for conduct reasons, where the dismissal itself is admitted, and the Tribunal's approach where it is considering questions of contributory conduct or whether the employee is himself in breach of his contract. Unfair dismissal requires an Employment Tribunal to evaluate the employer's conduct. In a conduct dismissal it examines the employer's view of the employee's behaviour. It is not concerned with whether that behaviour actually occurred, only whether, on the facts, the employer reasonably might conclude after a reasonable investigation that it did. When it comes to look at questions of whether the claimant has been guilty of contributory conduct, in a claim in which the claimant succeeds, it is not concerned any more with what the employer thinks the employee did. It is concerned with what he actually did. The same is true if there is any question of wrongful dismissal which involves looking at whether the employee himself was in breach of contract. Many claims for wrongful dismissal or constructive dismissal involve an assertion that it was the employee and not the employer who, in the circumstances, was in breach of contract. In such a case, what is relevant is not what the employer thought had happened, however reasonable that might be. It is what actually happened. A Tribunal needs to know, and say why it takes the view that it does, that the conduct happened as alleged or did not.'' Unfair dismissal[101]The reason for dismissal is “a set of facts known to the employer, or it may be beliefs held by him, which cause him to dismiss the employee.” (Abernethy v Mott Hay and Anderson [1974] ICR 323, CA.)[102]Under s98(4) ERA 1996 “… the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) 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 shall be determined in accordance with equity and the substantial merits of the case.”[103]Tribunals must consider the reasonableness of the dismissal in accordance with s98(4) ERA 1996. However, Tribunals have been given guidance by the EAT in British Home Stores v Burchell [1978] IRLR 379, EAT as to how to deal with misconduct dismissals. There are three stages:(1) did the Respondent genuinely believe the Claimant was guilty of the alleged misconduct?(2) Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief(3) did they carry out a proper and adequate investigation?[104]Tribunals must bear in mind that whereas the burden of proving the reason for dismissal lies on the Respondent, the second and third stages of Burchell are neutral as to burden of proof and the onus is not on the Respondent (Boys and Girls Welfare Society v McDonald [1996] IRLR 129, [1997] ICR 693).[105]Finally, tribunals must decide whether it was reasonable for the Respondent to dismiss the Claimant for that reason.[106]It is well rehearsed law that the Tribunal must not substitute its own decision as to whether the decision of the employer to dismiss the employee was fair but must decide whether the actions of the employer in dismissing the employee were within the range of reasonable responses of a reasonable employer.[107]In the seminal authority of Iceland Frozen Foods Ltd v Jones ]1983] ICR 17, EAT, the EAT set out the position as this: “(1) the starting point should always be the words of [S.98(4)] themselves; (2) in applying the section [a] tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the… tribunal) consider the dismissal to be fair; (3) in judging the reasonableness of the employer’s conduct [a] tribunal must not substitute its decision as to what was the right course to adopt for that of the employer; (4) in many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another; (5)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 employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.”[108]The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason. The objective standards of the reasonable employer must be applied to all aspects of the question whether an employee was fairly and reasonably dismissed. (Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23, CA)[109]Included in applying the reasonable responses test, the Tribunals must also take into account the ACAS Code on Disciplinary and Grievance Procedures (“Code”). By virtue of section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992, the Code is admissible in evidence and if any provision of the Code appears to the tribunal to be relevant to any question arising in the proceedings, it shall be taken into account in determining that question.[110]Failure by any person to follow a provision of the Code does not however in itself render him liable to any proceedings. However, the Code is also relevant to compensation. Under section 207A, if the claim concerns a matter to which the Code applies and there is unreasonable failure by either the employer or the employee to comply with the Code, there can be an increase or reduction in compensation (respectively) according to what is just and equitable of up to 25%.[111]Under s122(2) ERA 1996, the Tribunal shall reduce the basic award where it considers that any conduct of the Claimant before dismissal was such that it would be just and equitable to do so.[112]Under s123(6) ERA 1996, where the Tribunal finds the dismissal was to any extent caused or contributed to by any action of the Claimant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable.[113]Where the dismissal is unfair on procedural grounds, the Tribunal must also consider whether, by virtue of Polkey v AE Dayton Services [1987] IRLR 503 HL, there should be any reduction in compensation to reflect the chance that the Claimant would still have been dismissed had fair procedures been followed. Wrongful Dismissal[114]To determine the question of whether the dismissal was wrongful, that is in breach of the employee’s contract, the Tribunal should not be concerned with the reasonableness of the employer’s decision to dismiss but with the factual question: Was the employee guilty of conduct so serious as to amount to a repudiatory breach of the contract of employment entitling the employer to summarily terminate the contract? (Enable Care and Home Support Ltd v Pearson, EAT 0366/09). Holiday pay[115]The Working Time Regulations 1998 (‘WTR’) set out the provisions applicable to workers giving them a minimum entitlement to paid holiday. The minimum entitlement is to 20 days (4 weeks) paid holiday each year, plus an additional 8 days (1.6 weeks) per year, which can include bank holidays (regulations 13 and 13A WTR). Pay for holiday is calculated in accordance with sections 221 to 224 of the Employment Rights Act 1996.[116]On termination of employment, a worker is entitled to receive pay in lieu of any unused annual leave (regulation 14 WTR). Discrimination Burden of Proof in Discrimination[117]Proving and finding discrimination is always difficult because it involves making a finding about a person’s state of mind and why he has acted in a certain way towards another, in circumstances where he may not even be conscious of the underlying reason and will in any event be determined to explain his motives or reasons for what he has done in a way which does not involve discrimination.[118]The burden of proof is set out at Section 136 Equality Act 2010 (“EQA 2010”). Section 136 EQA 2010 says: - “(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.”[119]In discrimination cases, there is a two stage burden of proof (see Igen Ltd (formerly Leeds Careers Guidance and others v Wong [2005] ICR 931 and Barton v Investec Henderson Crosthwaite Securities Ltd [2003] ICR 1205 the test recognises that the fact that discrimination is often covert and rarely admitted to.[120]In Igen v Wong the Court of Appeal endorsed guidelines set down by the EAT in Barton v Investec. In the first stage of the test, the Claimant has to prove facts from which the Tribunal could decide, in the absence of an adequate explanation by the Respondent, that discrimination has taken place. If the Claimant fails this stage, the claim cannot succeed. If the Claimant overcomes this hurdle, then the second stage of the burden of proof comes into play and the burden shifts and the Respondent must prove, on the balance of probabilities, that there was a non-discriminatory reason for the treatment. All relevant material, other than the employer’s explanation relied upon at the hearing, must be considered.[121]This two stage burden applies to all of the types of discrimination complaints made by the Claimant. In Ayodele v Citylink Limited and anor [2017] EWCA Civ. 1913 the Court of Appeal held that “there is nothing unfair about requiring that a claimant should bear the burden of proof at the first stage. If he or she can discharge that burden (which is one only of showing that there is a prima facie case that the reason for the respondent’s act was a discriminatory one) then the claim will succeed unless the respondent can discharge the burden placed on it at the second stage.”[122]The Supreme Court has more recently confirmed, in Royal Mail Group Ltd v Efobi [2021] ICR 1263, that a Claimant is required to establish a prima facie case of discrimination in order to satisfy stage one of the burden of proof provisions in section 136 of the Equality Act. So, a Claimant must prove, on the balance of probabilities, facts from which, in the absence of any other explanation, the Employment Tribunal could infer an unlawful act of discrimination.[123]It is for the Claimant to prove the primary facts from which a reasonable Tribunal could properly conclude from all the evidence before it, in the absence of an adequate explanation, that there has been a contravention of the Equality Act. If a Claimant does not prove such facts he will fail – a mere feeling that there has been unlawful discrimination or harassment is not enough.[124]Once the Claimant has shown these primary facts then the burden shifts to the Respondent and discrimination is presumed unless the Respondent can show otherwise. Could conclude means “a reasonable Tribunal could properly conclude from all the evidence”.[125]As set out above at the first stage the Claimant must prove “a prima facie case”. “However, the bare facts of a difference in status and a difference in treatment only indicates a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal could conclude that there has been discrimination. Each case is fact specific, and it is necessary to have regard to the totality of the evidence when drawing inferences. Once the burden of proof has shifted it is for the Respondent to show that the relevant protected characteristic played no part whatsoever in its motivation for doing the act complained of.[126]It is, however, not necessary in every case for the Tribunal to specifically identify a two-stage process. There is nothing wrong in principle in the Tribunal focusing on the issue of the reason why. As the Employment Appeal Tribunal (“EAT”) pointed out in Laing v Manchester City Council [2006] IRLR 748 “If the tribunal acts on the principle that the burden of proof may have shifted and has considered the explanation put forward by the employer, then there is no prejudice to the employee whatsoever”.[127]This approach to the burden of proof has been confirmed by the Court of Appeal in Ayodele v City Link and another 2017 EWCA Civ 1913. Direct Discrimination[128]Section 13 EQA 2010 sets out the statutory position in respect of claims for direct discrimination because of a protected characteristic. “(1) 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.”[129]Section 8 (1) EQA 2010 refers to the protected characteristic of marriage as “A person has the protected characteristic of marriage and civil partnership if the person is married or is a civil partner.”[130]Section 9(1) EQA 2010 refers to the protected characteristic of race as “(1) Race includes—(a) colour;(b) nationality;(c) ethnic or national origins. (2) In relation to the protected characteristic of race— (a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular racial group; (b) a reference to persons who share a protected characteristic is a reference to persons of the same racial group. (3) A racial group is a group of persons defined by reference to race; and a reference to a person's racial group is a reference to a racial group into which the person falls.”[131]Section 23 EQA 2010 deals with comparators and states that: “there must be no material difference between the circumstances relating to each case.”[132]Section 41 (1) (d) EQA 2010 states “(1) A principal must not discriminate against a contract worker by [….] (d) subjecting the worker to any other detriment”[133]In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 the House of Lords held that the relevant circumstances must not be materially different between the Claimant and the comparators, so the comparator must be in the same position as the Claimant save in relation to the protected characteristic.[134]Lord Hope’s judgment in Shamoon clarifies that a sense of grievance which is not justified will not be sufficient to constitute a detriment.[135]When determining questions of direct discrimination there are, in essence, three questions that a Tribunal must consider:a. Was there less favourable treatment?b. The comparator question; andc. Was the treatment ‘because of ‘a protected characteristic?[136]The comments of the Court of Appeal in Madarassy v Nomura International plc [2007] EWCA 33, albeit a sex discrimination case under the pre Equality Act 2010, Sex Discrimination Act 1975, are still very much applicable to direct discrimination claims. Mummery LJ giving judgment says at paragraph 56, “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”[137]It can be appropriate for a Tribunal to consider in a direct discrimination case, first, whether the Claimant received less favourable treatment than the appropriate comparator and then, secondly, whether the less favourable treatment was because of race. However, in some cases, for example where there is only a hypothetical comparator, these questions cannot be answered without first considering the ‘reason why’ the Claimant was treated as he was.[138]In Deman v Commission for Equality and Human Rights and others [2010] EWCA Civ 1276, Lord Justice Sedley adopted the approach set out in Madarassy v Nomura that ‘something more’ than a mere finding of less favourable treatment is required before the burden of proof shifts from the Claimant to the Respondent. He made clear, however that the ‘something more’ that is needed to shift the burden need not be a great deal.[139]In Glasgow City Council v Zafar [1998] ICR 120, a pre-2010 race discrimination case, Lord Browne-Wilkinson recognised that “discriminators do not in general advertise their prejudices: indeed, they may not even be aware of them”. It is unusual to find direct evidence of discrimination. The Tribunal has the power to draw inferences of discrimination where appropriate. Inferences must be based on clear findings of fact and can be drawn not just from the details of the Claimant’s evidence but also from the full factual background to the case.[140]A Tribunal is not required to infer from evidence that an employer has behaved unreasonably, that there has been less favourable treatment because of race. It was established in the House of Lord authority of Glasgow City Council v Zafar, that it cannot be inferred, nor presumed, from the fact an employer has acted unreasonably towards one employee, that he would have acted reasonably if he had been dealing with another in the same circumstances.[141]Unreasonable behaviour is not, in itself, evidence of discrimination (Bahl v The Law Society [2004] IRLR 799) although, in the absence of an alternative explanation, could support an inference of discrimination (Anya v University of Oxford & anor [2001] ICR 847). If the burden shifts to the alleged discriminator, then it must prove, on the balance of probabilities, that race was not a ground for the less favourable treatment. Deduction from wages[142]The general prohibition on deductions from wages is set out at section 13 ERA which provides, as far as is relevant: “(1) An employer shall not make a deduction from wages of a worker employed by him unless –(a) The deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or(b) The worker has previously signified in writing his agreement or consent to the making of the deduction. (1) In this section “relevant provision” in relation to a worker’s contract, means a provision of the contract comprised – (a) In one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) In one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion. (2) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.”[143]Under section 27 ERA, ‘wages’ means any sums payable to the worker in connection with his employment and covers any fee, bonus, commission, holiday pay or other emolument referable to the employment.[144]For a payment to fall within the definition of wages properly payable, there must be some legal entitlement to the sum in question (New Century Cleaning Company Limited v Church [2000] IRLR 27, CA). To determine whether any sum is properly payable to an employee as part of an unlawful deduction from wages claim, the Tribunal can resolve any dispute as to the meaning of the contract relied on (Agarwal v Cardiff University and anor [2018] EWCA Civ 2084). Detriment[145]Section 44. ERA sets out where an employee has been subjected to a detriment as a result of raising health and safety issues in specified circumstances: “(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that— ….. (c) being an employee at a place where—(i) there was no such representative or safety committee, or(ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety.” (1A) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his or her employer done on the ground that—…… or (b) in circumstances of danger which the worker reasonably believed to be serious and imminent, he or she took (or proposed to take) appropriate steps to protect himself or herself or other persons from the danger.” Submissions[146]We heard oral submissions from both parties of approximately 15 minutes each. The Respondent provided written submissions. When the Claimant was about to start the proceedings, the Employment Tribunal noticed that a Mr Cullingford an observer who was a friend of the Claimant was using his mobile phone. The Employment Tribunal asked Mr Cullingford if he was recording the proceedings. Mr Cullingford denied that he was recording the proceedings he said that he was writing notes.[147]The Claimant’s submissions were in summary that there were no complaints about the Claimant from 2019-May 2021 and that the Claimant’s behaviour was exemplary. The Claimant said that there were several vendettas against him and that Gavin Putney tried to target him. The Respondent deployed tricks with their lawyers, (HR were any extension of the legal team) rather than investigating his grievances. The Claimant said that he loved the company. The Respondent waited until all his witnesses had left the Respondent. That none of his witnesses were contacted, the Respondent never wanted to do an appeal, Shameel Anis fabricated documents, The Respondent opted to threaten him in absentia, the Respondent never came back to the Claimant until May 2022, there was no premise upon the need of the Respondent to go to a disciplinary. In addition the Claimant added after hearing the Respondent’s response to his submissions that since 2020 his concerns were not investigated. The Respondent had not paid him since May2022. It was the tactics of termination by the back door. On the wrongful dismissal they turned changed it from misconduct to gross misconduct. The Employment Tribunal considered both parties submissions in the consideration of our decision. Analysis/ Conclusions[148]It was notable in cross examination that the Claimant failed to refer to any documents in the bundle until the final witnesses. The Claimant claimed throughout that he has his own bundle but did not provide a copy of this bundle for the Employment Tribunal or the Respondent. The Claimant was told that if he was to rely on any documentation that it had to be in the bundle. It was also pointed out to the Claimant that he had been told at the case management hearing by Employment Judge Anderson that if he wanted to provide his own supplementary bundle [55], that he could do so as long as he provide copies to the Respondent.[149]The Claimant put his case on the basis of all the grievances he submitted were not investigated. The Claimant’s case was not that this was the basis of the direct race discrimination and the unfair dismissal complaints. It is unclear to us the relevance of the lack of investigation into the Claimant complaints as none of those complaints form the basis of the Claimant’s direct race discrimination complaints. At no point in the Claimant’s oral evidence on his written witness statement did the Claimant state that the lack of investigation was an act of discrimination or that we could infer from the lack of investigation that it was an act of direct race discrimination or martial discrimination. The Claimant set out his race as an Israelite but provided no evidence that the Respondent’s knew that was his race. In any event we conclude that there was nothing about the failure to interview witnesses to the events that formed the basis of grievances from which we infer that there was any direct race discrimination or marital discrimination. Unfair dismissal[150]The Claimant’s case was put that the Respondent’s failed to investigate his grievances and that they did not follow their own policies however, the Claimant never gave evidence nor provide any submission that it was these failures that were the why reason his dismissal was unfair. The Claimant was asked directly by the Employment Tribunal on a number of occasions what the lack of process and investigation had to do with his claims. The Claimant did not say it was to do with his unfair dismissal complaint.[151]The Respondent relied on the reason for dismissal as misconduct and we conclude that the reason for dismissal was solely because the Claimant failed to follow a reasonable instruction to return to work on the occasions as set out in the invite letters and that amounts to misconduct.[152]We consider that there was a reasonable investigation into the Claimant failure to follow a reasonable instruction as the Claimant was given every opportunity to attend the disciplinary hearing but did not do so through choice to explain himself. Furthermore at the appeal meeting, the Claimant admitted in the meeting that he did not attend work [532]. The Claimant did not raise the safety issue until the appeal, in so far as it related to the alleged threat from the resident of 23 Kennington and that was the only reason he put forward for why he felt unsafe. We conclude that it was reasonable that Andrew Morgan did not do any further investigation because the way that the Claimant had explain the threat was on the basis of resident to resident not in the context of work.[153]Andrew Morgan asked the Claimant about the safety issue and the Claimant admitted that he had not told his line manager Jake Burton. We accepted Andrew Morgan’s evidence that he formed the view that the Claimant did not take the alleged threat seriously otherwise he would have called the police and the Claimant did not say he had. He did not believe the Claimant wanted to return to work. The Claimant did not provide this information as part of the disciplinary when he had an opportunity to.[154]The Respondent had a genuine belief that the Claimant had failed to follow a reasonable management instruction. The Claimant did not attend work when told to.[155]We conclude that dismissal was in the range of reasonable responses because the Claimant did not attend work, which was never in dispute. The Claimant did not provide the reason for why he was not attending work to Mr Broom but even if he had, Mr Broom would have still dismissed. Mr Morgan did know about the issue and upheld the dismissal. We do not consider that no reasonable employer would have dismissed the Claimant considering the Claimant’s failure to explain his absence and provide any details as for his reason for not returning to work and when he did his reason did not hold up. The Claimant was not unfairly dismissed.[156]Even if we are wrong about the dismissal we conclude that the Claimant would have been dismissed within the 2 days that it would have taken Mr Broom to look into the safety matters and the Claimant would have been dismissed by 19 October 2022 in any event. Furthermore the Claimant contributed 100% to his dismissal by not attending the disciplinary meetings.[157]The Claimant’s complaint of unfair dismissal is not well founded and is Wrongful dismissal[158]We found that the Respondent’s request for the Claimant to return to work was a reasonable instruction. We considered that the Claimant’s explanation for not returning to work regarding the alleged threat was not credible. In those circumstances the conduct alleged as gross misconduct and the Claimant was guilty of the misconduct. The Claimant’s complaint is not well founded and is dismissed. Detriment – section 44 Employment Rights Act 1996 Issue 5.1.1[159]We found that there was not complaint from the resident of 2 Quarrion House and no conspiracy by Gavin Putney. We conclude that if there was not complaint or conspiracy there can be no detriment in respect of any complaints from residents of 2 Quarrion House in February 2020. We therefore conclude that the complaint is not well founded and is dismissed. Issue 5.1.2[160]We found that there was compelling evidence in the form of an email to the resident of 5 Quassia House from Gavin Putney that he was telling off the resident. There was no conspiracy by Gavin Putney. We therefore conclude that if there was no conspiracy then there was no detriment and so the complaint is not well founded and is dismissed.[161]We found that the Claimant gave no evidence that there was any complaint from any resident of 5 Quassia House in August 2021 or a conspiracy by Gavin Putney against the Claimant to make up complaints with the residents of 5 Quassia house. The claim is not well founded and dismissed. Marital Direct Discrimination Issue 7.2.1[162]The Claimant did receive his Christmas bonus in 2020. In those circumstances there was no less favourable treatment. The Claimant’s the complaint is not well founded and is dismissed. Issue 7.2.2[163]We found that the Claimant did not give any evidence of the contributions that he made throughout the year to December 2021. The Respondent did not refer to the Claimant’s marriage status in any documents or in relation to anything. The Claimant admitted he was appreciated. We conclude that there was no less favourable treatment. Considering a hypothetical comparator who was not married would have been treated the same as the Claimant as in the staff circular no one else was appreciated for 1 years’ service. The Claimant’s complaint is not well founded and is dismissed. Direct Race Discrimination Issue 8.2.1[164]The Claimant did receive his Christmas bonus in 2020. In those circumstances there was no less favourable treatment. The Claimant’s the complaint is not well founded and is dismissed. Issue 8.2.2[165]We found that the Claimant did not give any evidence of the contributions that he made throughout the year to December 2021. We founded that the Respondent did not know that the Claimant’s race was Israelite and no treatment of the Claimant could be because of his race as an Israelite. The Claimant admitted he was appreciated. We conclude that there was no less favourable treatment. The Claimant’s the complaint is not well founded and Holiday Pay[166]The Claimant was contractually entitled to 24 days if he was in attendance for the whole holiday year. But he was not as he was dismissed on 19 October 2022. We found that the Claimant took 5.5 weeks annual leave and so we conclude that the Claimant was not entitled to any annual leave outstanding on dismissal he had used up his entitlement. The Claimant’s complaint is not well founded and is dismissed. Unlawful deductions of wages Issue 11.1.1[167]We found that the Claimant was paid his bonus in December 2020 and was not refused payment of a bonus in December 2021. The bonus was discretionary and so there was no contractual entitlement for the Claimant to be paid a bonus in December 2021, in those circumstances there has been no deduction at all. The Claimant’s complaint is not well founded and Issue 11.1.2[168]We found that the Claimant received his salary in November 2021 and January 2022 and so we conclude that the Respondent did not make an unlawful deduction from the Claimant’s salary in those months. In the circumstances, the Claimant’s complaint is not well founded and is Issue 11.3[169]We found that the Claimant was paid his full salary in July 2022 from the payslip [599]. He was not his full salary in August 2022 [600] but was paid for the period 1-17 August 2022. We found that found that the Claimant was not in attendance for the whole and did not fulfil his contract. There was not entitled to be paid salary. The Claimant’s complaint is not well founded and is dismissed. Schedule 5 Employment Act 2002[170]As the Claimant has not been successful in any of his claims, there can be no award in respect of written statement of particulars. Time[171]Furthermore if the Claimant were successful we would have found all the Claimant’s complaints other than unfair dismissal and holiday pay out of time. The Employment Tribunal did not exercise its discretion to extend time on a just and equitable basis as the Claimant provided no evidence excusing why he delayed in bringing his claims and there was no practicable reason presented to us as to why the Claimant could not bring his claims in time. Approved by: