A Bello v Gasrec Ltd: 3304159/2022
JUDGMENT
The respondent’s application dated 20 August 2024 for reconsideration of the judgment sent to the parties on 12 August 2024 is refused because there is no reasonable prospect of the original decision being varied or revoked.REASONS
[1]The claimant presented a claim form on 31 March 2022. His claims are for: direct race discrimination contrary to section 13 of the Equality Act 2010, direct religious belief discrimination contrary to section 13 of the Equality Act 2010, harassment related to religious belief contrary to section 26 of the Equality Act 2010, and unauthorised deduction from wages.[2]The case was listed for a full merits hearing from 10 – 12 July. At the start of the hearing, the respondent applied to strike out the claim. The Claimant applied to adjourn the hearing.[3]This application was made on 20 August 2024 and referred to me on 18 December 2024. I considered it as soon as I was able to do so thereafter. The Employment Tribunal Procedure Rules 2024 [the 2024 Rules] came into force on 6 January 2025. Those rules apply to the determination of this application for reconsideration. The application[4]The Respondent relies on the following three matters which it says it did not have a fair opportunity to address during the course of the hearing: a) The Claimant told the Tribunal at the hearing that he could not read or write English, and the Tribunal accepted this evidence without affording the Respondent the opportunity to challenge it. b) The Tribunal did not inform the parties until giving judgment that it was considering whether to make an order of its own motion. The Respondent had no opportunity to make submissions on whether this option was open to the Tribunal as a matter of law. c) The Tribunal did not consider submissions as to whether or not the Claimant’s failure to understand the importance of providing a witness statement was reasonable. The Respondent had no opportunity to challenge the Claimant in cross examination on the reasonableness of his understanding. Law[5]Rule 68 of the 2024 Rules states: “(1) The Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. (2) A judgment under reconsideration may be confirmed, varied or revoked. (3) If the judgment under reconsideration is revoked the Tribunal may take the decision again. In doing so, the Tribunal is not required to come to the same conclusion”[6]Rule 70 of the 2024 Rules states: “(1) The Tribunal must consider any application made under rule 69 (application for reconsideration). (2) If the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application must be refused and the Tribunal must inform the parties of the refusal. (3) If the application has not been refused under paragraph (2), the Tribunal must send a notice to the parties specifying the period by which any written representations in respect of the application must be received by the Tribunal, and seeking the views of the parties on whether the application can be determined without a hearing. The notice may also set out the Tribunal’s provisional views on the application. (4) If the application has not been refused under paragraph (2), the judgment must be reconsidered at a hearing unless the Tribunal considers, having regard to any written representations provided under paragraph (3), that a hearing is not necessary in the interests of justice. (5) If the Tribunal determines the application without a hearing the parties must be given a reasonable opportunity to make further written representations in respect of the application.[7]Rule 3 of the 2024 Rules states:(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.(2) Dealing with a case fairly and justly includes, so far as practicable— (a)ensuring that the parties are on an equal footing, (b)dealing with cases in ways which are proportionate to the complexity and importance of the issues, (c)avoiding unnecessary formality and seeking flexibility in the proceedings, (d)avoiding delay, so far as compatible with proper consideration of the issues, and (e)saving expense.(3) The Tribunal must seek to give effect to the overriding objective when it— (a)exercises any power under these Rules, or (b)interprets any rule or practice direction.”Conclusions
[8]The tribunal has the power in law to consider adjourning a case on its own initiative. This is a well-established principle. In this case, the tribunal heard submissions from both parties on whether or not the case should proceed. It is not a case where there was no prospect of the case being adjourned.[9]In any event, the tribunal did not adjourn the case of its own motion to avoid the requirements of Rule 30A of the Employment Tribunal Rules of Procedure 2013. The tribunal found that striking out the claim was not the appropriate response in this case. It found that an adjournment with an unless order was more proportionate. The tribunal has a discretion to strike out a claim or not. As part of exercising that discretion, the tribunal considered (as it is bound to do) whether a less draconian measure was a more appropriate response.[10]The tribunal heard submissions from both parties. The respondent had the opportunity to request to challenge the evidence of the claimant that he was unable to read or write English. It did not do so. The respondent’s legal representative made submissions on this point. It was said that the claimant had not previously raised his inability to write in English during the proceedings.[11]The respondent’s legal representative submitted that that an earlier Employment Judge had explained what was required of the claimant in layman's terms when preparing a witness statement. There was no request to challenge the claimant’s understanding under cross-examination. The respondent did so by way of submissions.[12]The issue as to how to proceed was fully aired at the hearing in a proportionate manner, taking into account the complexity of the issues before the tribunal. Both parties addressed the tribunal on whether the respondent’s application for a strike out should be granted. In addition, the tribunal ensured the parties were on an equal footing by hearing submissions on the material points from both parties.[13]There has been no procedural unfairness to the respondent that would make it in the interests of justice to reconsider the judgment.[14]The application is refused pursuant to Rule 70(2) of the 2024 Rules. As such, this decision was made without following the procedure in Rules 70(3) - (5).[15]The decision would have been the same if determined pursuant to the 2013 Rules of Procedure. Approved by:Introduction
[1]The claimant is Mr Abass Bello and the respondent is Gasrec Limited. The respondent is a company that supplies renewable fuel to road transport vehicles.[2]Mr Bello issued a claim in the Employment Tribunal. These are the reasons for the judgment reached in this case. Procedure and hearing[3]The case was heard in person at Cambridge Employment Tribunal.[4]The tribunal was referred to a bundle of documents of 326 pages.[5]The tribunal read the witness statements of: Mr Bello Darren Moor, Anthony Robinson, Derek Spencer and Malcolm Aitken.[6]The tribunal heard oral evidence from Mr Bello, Mr Moor, Mr Robinson and Mr Spencer. Mr Aitken was unable to give evidence as he was too unwell to attend the hearing.[7]Mr Bello was supported by a Yoruba interpreter.Issues
[8]The issues were agreed between the parties (see pages 71 to 74 in the bundle) and are summarised below. Time limits[9]Are the allegations out of time? Direct Race Discrimination[10]Did the respondent fail to give the claimant training with regard to the “dead man’s button”? 10.1. If so, was that treatment less favourable treatment? The claimant relies upon the following comparators: Derek, Malcolm, Albert and David. 10.2. If so, was this because of the claimant’s race?[11]Did the respondent fail to make the claimant permanent until November 2021? 11.1. If so, was that treatment less favourable treatment? The claimant relies upon the following comparators: Shawn, Albert and Matthew. 11.2. If so, was this because of the claimant’s race?[12]Did the respondent dismiss the claimant? 12.1. If so, was that treatment less favourable treatment? The claimant relies upon the following comparators: Albert and Dave. 12.2. If so, was this because of the claimant’s race? Direct religious belief discrimination[13]Did the respondent fail to make the claimant permanent until November 2021? 13.1. If so, was that treatment less favourable treatment? The claimant relies upon the following comparators: Shawn, Albert and Matthew. 13.2. If so, was this because of the claimant’s religious belief?[14]Did Derek, Peter, Tony and Trevor (the respondent’s employees or agents) send an email in November 2021 stating that the claimant should not be employed permanently because they were unhappy about him praying? 14.1. If so, was that treatment less favourable treatment? The claimant relies on hypothetical comparators. 14.2. If so, was this because of the claimant’s religious belief? Harassment related to religious belief[15]Did the respondent engage in conduct as follows: 15.1. The claimant alleges that he had just finished praying when Malcolm went past and said “you terrorists that is how you pretend to be so prayerful”. The claimant says that this occurred in November 2021. 15.2. In the same month, the claimant said he was praying when Derek was starting his shift and stepped on the claimant’s prayer mat. When the claimant asked him why he had done it, Derrick said “get out of there”. Unauthorised deductions[16]Did the respondent make unauthorised deductions from the claimant’s wages?Law
[17]Section 13(1) of the Equality Act 2010 states that: “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[18]Section 26 of the Equality Act 2010 states that: “(1)A person(a) (A) harasses another(b) (B) if— (a)A engages in unwanted conduct related to a relevant protected characteristic, and (b)the conduct has the purpose or effect of— (i)violating B's dignity, or (ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B.”[19]Section 26(4) of the Equality Act 2010 states that: “In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a)the perception of B; (b)the other circumstances of the case; (c)whether it is reasonable for the conduct to have that effect.”[20]Section 13 of the Employment Rights Act 1996 states: “(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…. (3)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.”Findings of fact
[21]Mr Bello started working for the respondent on 7 November 2018 as an agency worker. He was employed by the respondent from 1 December 2021 until 25 January 2022. His job title was Station Operator, and his role was to refuel customer gas vehicles and support site operations.[22]Mr Bello identifies as Black Nigerian and as a Muslim.[23]The “dead man’s button” is a safety system on the refueling equipment that Mr Bello used in his work. The evidence of Mr Moor is that the button “is either integrated into the dispenser or, it is a button on the hand grip connected to the dispenser through a cable. It ensures that in an emergency or if the operator becomes incapacitated, the button is released and the fuel immediately stops flowing.”[24]The respondent did not fail to give the claimant training about the “dead man’s button”. There is evidence of the training in the bundle (page 145). During his oral evidence, the claimant denied that he had been trained and denied that it was his signature on the document. However, this was not raised before the hearing (for example in his witness statement) and we do not find this evidence to be credible.[25]The respondent did not offer the claimant a permanent contract until November 2021. That is an agreed fact, evidenced in the bundle.[26]The evidence before us is that Shawn Spencer had electrical qualifications that the claimant did not. It is true that he was offered a permanent contract before the claimant, however this was on the basis of his qualifications.[27]Albert was said by the claimant to be white, but the evidence of the respondent was that this is not the case. The claimant was surprised to hear this but did not challenge the evidence. Albert was, though, given a permanent contract at the same time as the claimant. This is because there were two vacancies at the time.[28]Matthew was not in the same position as the claimant at work. He was responsible for training the claimant, and others, in refueling vehicles.[29]Dave was working under the supervision of the claimant and was accepted to have done what the claimant told him to do. Dave was an agency worker.[30]The claimant was not offered a permanent contract of employment until November 2021, but before that happened, he was given more shifts whilst the respondent calculated its business needs.[31]An anonymous email was sent to Mr Moor in November 2021, but it did not say that the claimant should not be employed permanently because the author was unhappy about him praying. The concerns were about time keeping and the amount of pay, as well as the operation of the button whilst filling trucks. This email is found at page 122 in the bundle.[32]On 15 January 2022, Gasrec’s Remote Operating Monitoring Centre reported that Mr Bello had left two trucks unattended whilst fueling them. He had been seen overriding the “dead man’s button”. This was a breach of important health and safety procedures.[33]Mr Bello’s employment was terminated by the respondent on 25 January 2022 during a meeting between and Mr Bello. Mr Bello was paid one week’s salary in lieu of notice.[34]Mr Bello appealed the decision on 26 January 2022. The appeal was unsuccessful and the decision to terminate his employment was upheld.[35]Mr Bello was on probation and so the disciplinary procedure was not strictly applicable to him. However, the respondent decided to use it and adopted what can best be described as a hybrid approach. This was not entirely satisfactory, for example when Mr Bello was invited to what was the disciplinary meeting with Mr Robinson, Mr Bello was not told as much. The email inviting him was headed “investigatory meeting”. Mr Bellow was not told that somebody could accompany him. Not much turns on this, but the tribunal records that that it is understandable – in our view – that Mr Bello may have felt on the back foot. Facts relating to harassment – the majority view[36]The majority view of the tribunal was that the allegations made by the claimant in respect of his claim for harassment did not occur. The reason for this is that the burden is on the claimant to prove, on the balance of probabilities, that the factual incidents he alleged took place. The majority view was that, although there was not the friendly working relationship between the claimant, Mr Spencer and Mr Aitken, that was claimed by Mr Spencer and Mr Aitken, that the evidence of the claimant was, as a whole, less credible.[37]This is because the claimant said in his evidence that the investigatory meeting notes, appeal meeting notes, and even his signature on the training record were all false. These were allegations raised for the first time in the hearing. They were not set out in his witness statement, which he made having read the documents. It can be seen on page 124 that the claimant had discussed that after the investigation there would be a referral to Mr Robinson because Mr Bello sent an email to Mr Robinson that evening. Mr Bello did not tell us what did happen in the investigatory meeting, which we would have expected if he was adamant the notes were false.[38]In addition, it was not until these proceedings that the claimant made the specific harassment allegations. He did not make a complaint before, during or after the disciplinary procedure.[39]The claimant was unhelpfully defensive in his evidence when interacting with the respondent’s legal representative. He did not accept anything that was put to him, even when supported by documents in the bundle. It is fair to say that the claimant was much more interactive with the tribunal and gave fuller answers to our questions. However, overall, this was sufficient to cast doubt on the overall credibility of the claimant.[40]One of the members of the tribunal did not agree with this determination of the facts. The minority view is set out below for completeness. Harassment – minority view[41]One of the members of the tribunal was satisfied on the balance of probabilities that the allegations made by the claimant did happen. This is to say that Mr Aitken did say to the claimant that “you terrorists that is how you pretend to be so prayerful”, and that Mr Spencer did stand on the claimant’s prayer mat.[42]The reason for this view is that there was clearly some animosity between Mr Spencer, Mr Aitken and the claimant. This is evidenced by the anonymous email (page 122) which Mr Spencer said in the course of his evidence that he sent. He then backtracked on that, but the tribunal as a whole did not find his evidence convincing. In addition, during the investigation meeting notes (see page 125) the claimant thought that he had been requested to attend “because of Malcom”. It therefore seemed to the tribunal member that, more likely than not, Mr Aitken and Mr Spencer were not being truthful about their working relationship with the claimant. For these reasons, the tribunal member determined that the evidence of the claimant was more credible. Unauthorised deductions[43]The claimant gave no clear evidence about when he had worked. At one point he told us that he had worked in February 2022, but then said that he had not.[44]We are satisfied that the claimant did not work in February 2022. He was paid until 31 January 2022. On page 144 in the bundle, we can see that the claimant was paid in February for one week’s notice and one day.[45]The claimant was summarily dismissed on 25 January 2022. One week’s notice would take him to 1 February. This is why he had a pay of 1 day in his February payslip. This is described in the dismissal letter at page 133 in the bundle.[46]Under his contract of employment, the claimant was not entitled to any notice or pay in lieu of notice in the event of being found guilty of gross misconduct. He was not entitled to a month’s pay in lieu of notice whilst on his probation period. Therefore, the fact that he was paid one week’s pay in lieu of notice was an act of discretion by the respondent. There was no entitlement. Time limits[47]Mr Bello contacted ACAS on 10 February 2022 and an Early Conciliation Certificate was issued on 23 March 2022. He presented his claim on 31 March 2022.[48]In his witness statement, Mr Bello says that he tried in every possible way to ask why his contract had been terminated before going to ACAS and the Employment Tribunal.Conclusions
[49]The tribunal is satisfied it is just and equitable to extend the time limits in this case. Although time limits were set out in the list of issues, no questions were asked of Mr Bello in his cross-examination, and we have taken that into account. In all the circumstances of the case – in particular the nature of the claims of discrimination– the tribunal went on to consider the merits of the complaints.[50]The respondent did not fail to give Mr Bello training with regard to the “dead man’s button”. It is clear that he did have the necessary training.[51]The respondent failed to offer Mr Bello a permanent contract until November 2021. However, it was not less favorable treatment. The comparators put forward by the claimant are not materially the same.[52]No email was sent as alleged by Mr Bello, but in any event he was offered a permanent contact in the same month as the email in the bundle. There was no less favourable treatment as a result of the sending of the email.[53]The respondent did dismiss the claimant but this was not because of his race or his religious beliefs. He was dismissed following the outcome of the disciplinary meetings on the basis of the breach of important health and safety procedures. It was decided that Mr Bello’s conduct amounted to gross misconduct.[54]In light of the majority view, the complaint of harassment is not made out because there is no factual basis for it.[55]No payments are outstanding to the claimant and so there have been no unauthorised deductions.[56]The claims are therefore dismissed. Approved by: