Mr S Katirika v Maritime Transport Ltd: 3305318/2022

EMPLOYMENT TRIBUNALS

Case No 3305318/2022

Between

Mr S KatirikaClaimant

Maritime Transport LtdRespondent

Before

Employment Judge K Welch

In person for claimant

Date 26 July 2023

JUDGMENT

[1]The respondents’ application to strike out the claim is refused.

[2]The respondent’s application for a deposit order is refused.

[1]The claimant’s unlawful deduction from wages claim relating to the period 18.08.21 – 10.09.21 was made outside the primary three month time limit. It was reasonably practicable for the claim to be made in time. The Tribunal therefore has no jurisdiction to deal with the claim.

[2]The claimant’s unlawful deduction from wages claims for the periods 07.03.22 - 11.03.22 and 30.08.22 – 11.09.22 were made in time.

[3]The claimant’s unlawful deduction from wages claims for the periods 07.03.22 - 11.03.22 and 30.08.22 – 11.09.22 are not well founded and are dismissed.

[4]The claimant’s race discrimination claim was made in time.

[5]The claimant’s race discrimination claim (made under section 13 Equality Act 2010) is not well founded and is dismissed.

REASONS

[1]By a claim form presented on 3 May 2022, following a period of early conciliation from 11 April to 29 April 2022, the Claimant brought complaints direct race discrimination and unlawful deduction from wages.

[2]The Tribunal gave its judgment and oral reasons on the 7 July 2023. Its Judgment was as follows: i. The Claimant’s unlawful deduction from wages claim relating to the period 18.08.21 – 10.09.21 was made outside the primary three month time limit. It was reasonably practicable for the claim to be made in time. The Tribunal therefore has no jurisdiction to deal with the claim. ii. The Claimant’s unlawful deduction from wages claims for the periods 07.03.22 - 11.03.22 and 30.08.22 – 11.09.22 were made in time. iii. The Claimant’s unlawful deduction from wages claims for the periods 07.03.22 - 11.03.22 and 30.08.22 – 11.09.22 are not well founded and are dismissed. iv. The Claimant’s race discrimination claim was made in time. v. The Claimant’s race discrimination claim (made under section 13 Equality Act 2010) is not well founded and is dismissed.

[3]The Claimant requested written reasons on the 15 August 2023 and I was informed of that request on the 31 August 2023. The Proceedings

[4]There was a case management hearing before Employment Judge Dobbie on the 15 November 2022.

[5]A Preliminary Hearing to determine the Respondent’s applications for strike out or a deposit order was heard by Employment Judge Welch on the 6 March 2023. The strike out application was dismissed and no deposit order was made.

[6]The Claimant gave evidence. He adopted his witness statement as his evidence in chief. As he was unrepresented, I asked him further questions to ensure that he had the opportunity to present his evidence in full to the Tribunal as his witness statement was quite brief. He was cross examined by the Respondent and asked further questions by the Tribunal.

[7]The Tribunal heard evidence from the following witnesses for the Respondent: Stuart White (Distribution Compliance Manager), Ian Sutcliffe (Transport Manager), Peter Deacon (Transport Manager) and Aaron Tatham (National Operations Manager). They adopted their witness statements, were cross examined by the Claimant and asked questions by the Tribunal. The Respondent had also intended to call Rob Brennan (Area Manager) but he was not fit to attend the hearing for medical reasons. The Tribunal accepted that there was good reason for his non-attendance.

[8]Both parties made closing submissions.

[9]Judgment and reasons were given orally on the final day of the hearing. Documents

[10]The Tribunal had before it a bundle of 425 pages and an agreed chronology.

[11]Further documents were admitted by consent during the final hearing. These were a document relating to another driver, the Respondent’s Drivers’ Handbook, Driver Induction Plan signed by the Claimant on 20 October 2019 and ancillary documents.

[12]The Claimant provided written closing submissions dated 6 July 2023.

The issues

[13]A list of issues had been prepared at the case management hearing which is as follows: Time limits13.1 Were all of the Claimant’s complaints presented within the time limits set out in sections 123(1)(a) & (b) of the Equality Act 2010 (“EQA”)/ sections 23(2) to (4), 48(3)(a) & (b) and 111(2)(a) & (b) of the Employment Rights Act 1996 (“ERA")? Dealing with this issue may involve consideration of subsidiary issues including: whether there was an act and/or conduct extending over a period, and/or a series of similar acts or failures; whether it was not reasonably practicable for a complaint to be presented within the primary time limit; whether time should be extended on a “just and equitable” basis; when the treatment complained about occurred; Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 12 January 2022 is potentially out of time, so that the Tribunal may not have jurisdiction to deal with it. Section 13 Equality Act 2010: direct discrimination because of race

13.2 Has the Respondent subjected the Claimant to the following treatment?

a. Giving him more work (longer routes) such that he accrues too many hours too early on in the reference period (used to calculate maximum weekly hours under the Working Time Regulations 1998 and under separate specific driver's legislation) leading to little or no work at the end of the reference period (to reduce the average hours across the reference period so as to comply with working time legislation) leading to financial loss;

b. Refusing to moderate / control the Claimant’s hours and routes to prevent him clocking up too many hours too early on in the reference period, despite him informing management (orally and in writing to the Traffic Controllers and Ian Sutcliffe) during the reference period that he was getting close to clocking up too many hours, thereby leading to further incidents whereby he is allocated less or no work (and receives less or no pay) towards the end of the reference period. The Claimant maintains he raised this issue by text message and email to lan Sutcliffe on 09.08.21, 25.02.22 and 22.07.22 and orally on numerous other occasions to Ian Sutcliffe and the Trafﬁc Controllers;

c. Criticising/punishing the Claimant for how he uses the tachograph, including telling him he is using it incorrectly, investigating him, convening a disciplinary process and issuing him with a disciplinary warning on 06 June 2022;

d. Not providing the Claimant with work or pay in August 2021, September 2021, March 2022 and August to September 2022; and

e. Threatening the Claimant with dismissal.

13.3 Was that treatment “less favourable treatment”, that is did the Respondent treat the Claimant as alleged less favourably than it treated or would have treated others (“comparators”) in not materially different circumstances? The Claimant relies on the day-shift drivers at his depot, all of whom are white.

13.4 If so, was this because of the Claimant’s race? He describes himself as Black African and compares himself to white, non-African, drivers. Unauthorised deductions from wages

13.5 Did the Respondent make unauthorised deductions from the Claimant’s wages by not paying him for periods of time between:

(a) 18.08.21 — 10.09.21

(b) 07.03.22 - 11.03.22

13.6 If so, how much was deducted? Findings of Fact Chronology of Events

Findings of Fact

[14]The Claimant is employed by the Respondent as an HGV driver. His employment began on 20 October 2019. He was initially based at the Leighton Buzzard depot but the Leighton Buzzard depot closed down on the 14 April 2020. Initially the staff were transferred to the Fennylock depot although their routes were allocated via the Milton Keynes depot. On 25 May 2021, the Claimant relocated to Milton Keynes depot.

[15]On 9 August 2021, the Claimant sent a message to Ian Sutcliffe, in which he stated, “I think my working hours need to start to be trimmed, the reference point is near my working hours are above the 48 average can you look into it please, I might be wrong”

[16]On 2 September 2021, the Claimant was sent letter by James Otto, Operations Manager, asking him to attend a performance meeting regarding working time/hours and, in particular, to determine how he had reached his maximum hours prior to the end of the Working Time Regulation (“WTR”) period which was to end on 11 September 2021.

[17]The letter includes the following: “This review is being held following recent incidents whereby the company consider that its procedures have not been followed or actions may have been taken that do not meet with the standard of what is expected of an LGV1 driver”

[18]On 2 September 2021, the Claimant’s review meeting date was changed to 13 September 2021 to avoid the Claimant going over his permitted working time. The change of date was confirmed in a letter sent on the same date. It is in similar terms to the letter of the 2 September 2021.

[19]On 6 September 2021, the Claimant raised a grievance. In an email, he stated that he is raising a formal grievance about his working hours and wages dispute. He stated that he felt that he was being treated unfairly by being overworked, doing 60+ hours per week, as a result of which his working hours finished 3 ½ weeks early for the reference period ending in September 2021. He stated that he had been treated unfairly because he was not getting full pay for that 3 ½ weeks. He said that he does not choose his duties and he was the one who flagged the issue up: he did warn the Respondent that his hours were running low. He stated that he believed that the Respondent was responsible for monitoring his hours to prevent this from happening. He explained that he did not believe that he was responsible for the error and he should therefore receive full pay as soon as possible.

[20]The Claimant’s grievance was acknowledged by the Respondent in a letter dated 10 September 2021.

[21]The Claimant was paid an ex-gratia payment of one week in respect of the period that he was stood down and would not otherwise have received any pay.

[22]On 13 September 2021, the Claimant attended a review meeting with Ian Sutcliffe. There is a transcript of that meeting which runs to 11 pages.

[23]On 13 September 2021, the Claimant was sent a letter informing him that his grievance would be heard on 15 September 2021 by Stuart White.

[24]On 15 September 2021, the grievance hearing was held with Stuart White.

[25]On 28 September 2021, the grievance outcome letter was sent to the Claimant. This includes the following: Point 1 – Prior to the meeting I had compared your 'other work’ hours to the whole of distribution and Milton Keynes Depot and your statistics revealed that you were double the company and depot average for ‘other work’. When I asked you why this was at the meeting you told me that you took the legal breaks as required but will not take any more breaks - your reason for this was that if you took further breaks then this would lead to further work from the depot and you felt that you already doing too many long shifts and did not want to be tired driving. We discussed taking breaks in canteens or waiting areas and you said you were not prepared to do this due to long shifts. Because you are sitting waiting in depots to be loaded or unloaded on 'other work’ instead of putting it on ‘Break’, this is causing your WTD to increase, resulting in a higher than average total time spent in this category. it is clear to me that this is a training issue which needs immediate action — l have spoken to Ian your Driver Administrator who will be in touch with you to organise additional training in this area so you are not in the same position again. Point 2 — Because you are putting all your waiting time to other work and not taking a break when you’re able to, you could be causing yourself unnecessary breaks by putting your mode on other work. This could then potentially lead you to have a further Legal break once you pull out of the depot your tipping in or re loading in to show a legal break — so effectively causing yourself an unnecessary break and leading to a longer day — owing to this, you are partly responsible for making your shift length longer than it needs to be — this will be covered off in the training with Ian. Point 3 - Jobs allocated unfairly by the depot, your course of action is to put all your waiting time on 'other work’ not’ break’ as above — your logic is this then stops the depot giving you further work in the day which will help you reduce your shift length (you do not want the hours and feel you are given the long shifts over other drivers unfairly) — see averages below for comparison. - 4.8hrs Samson - 2.48hrs MK DS Smith (includes Samson) - 2.86 hrs Distribution (all drivers) Point 4 — You feel it’s the company’s issue that this was not picked up prior to you raising it 3.5 weeks before the end of the period. We had missing data for the first 4 weeks of the period due to a glitch in our systems when transferring data across from Fenny lock to MK DS Smith. You had an App and knew you were above the average, you raised it to operations but not your Driver Administrator (DA) or Driver Trainer until it was too late. My view on this is that the driver should always be in control of his/her hours at all times, the company’s job is to monitor and manage the drivers to ensure this happens. You fell under the radar due to the 4 weeks at zero hours and leading to a lower than actual average. You mentioned this to the operators but not the Driver Administrator (DA) or Driver trainer until it was too late. I have explained when you have issues with your hours, this must be reported to your DA in the ﬁrst instance by you, you claimed you were not aware of this and that assumed operations would rectify this, we discussed this and you are now clear on this procedure. In conclusion, taking all this into account, my decision is to not uphold your grievance, you were aware that your hours were above the average and raised the issue too late. You confirmed the App told you this. The Company had missing data so we were unaware of you being over 48hrs, however, you were aware as l have explained above and did not raise it through the appropriate channels at the time or in time. You are using your mode selection incorrectly which has led to a higher than average WTD and refusing to take ‘breaks’ claiming it should be ‘other work’ - this needs immediate training to prevent a further WTD issue (No POA used so all you hours are going down as drive or other work) in respect of the long shifts not being fair, you are causing yourself to have unnecessary breaks as you are putting all time in depots to ‘other work’.

[26]On 5 October 2021, the Claimant appealed against his unsuccessful grievance. He stated that Stuart White was biased against him and the wrong person to deal with the grievance because some of the reasons which led to his decision were irrelevant and did not make sense.

[27]On 20 October 2021, the grievance appeal hearing was held with Rob Brennan. There is a transcript of 20 pages.

[28]On 9 November 2021, the grievance appeal outcome letter was sent to the Claimant. This includes the following: Having checked your workload over the reference period in comparison to other random drivers for a period over the same reference period, I can see that although your workload has been high, I would not deem it to be excessive and I would also not deem it to be unfair when compared to other drivers on the same shift pattern and contract. After examination of your tachograph use, I will conclude that by selecting ‘other duties’ when not actively engaged in the offload of the vehicle or driving, you have inflated your working time to such a point that it has exceeded the WTD maximum over the reference period. This has caused you to be stood down without pay. I will point out that ultimately control of your hours is your responsibility and you have chosen to use ‘other duties’ when you could have used ‘rest’ and have exacerbated the situation by doing so. You have therefore made yourself unavailable for work. In terms of use of the ‘rest’ mode, you have stated that you do not feel that you should be taking additional breaks in the vehicle. Under EU rules, ‘rest’ means any uninterrupted period during which a driver may freely dispose of their time. During this period you must not be under any obligation or instruction. It is accepted and allowed that rest can take place inside the cab. It is also accepted and allowed that a driver whilst waiting can select rest. With regard to safety concerns, the recommended use of ‘rest’ on your tachograph promotes more breaks while on shift and all of these are paid. Maritime Transport since inception and continuously has demonstrated that safety is paramount. We pay all driver breaks to encourage rest breaks and promote not driving/working while tired. Page 34 and 35 of the Driver’s Handbook are devoted to driver welfare and not driving tired. In conclusion, after careful consideration and taking all the information available into account, it is my decision to not uphold your appeal, and that the decision that Stuart White has made on hearing the original grievance is correct. I will reiterate that as a professional driver, control of both your hours in reference to EU Tachograph Law and Working Time Directive is ultimately your responsibility. Going forward, we will work with you to ensure that we are keeping a focus on your workload and hours so that is as balanced as possible, and I would ask that we arrange some further training in use of your tachograph mode switch so that we can assist in managing your working time in order that we do not find our self in a similar position with regard to your WTD hours, so we can both benefit in having you available to work over a complete 26 week reference period and avoid future issues in having to stand you down in order to compensate hours.

[29]On 21 January 2022, the Claimant was provided with tachograph training including about selecting the correct mode for the activity. There is a targeted training report which details this. He was provided with various documents detailed at page 169 of the bundle. The recommendations and targets were to use the correct mode on the tachograph, use breaks when legal and appropriate to do so, to keep a check on his working time and not exceed the 48 hour limit.

[30]On 25 February 2022, the Claimant emailed Ian Sutcliffe to flag up that his working time was running low which needed to be sorted out. On 27 February 2022, Ian Sutcliffe sent an email to the Claimant stating that last time he looked the Claimant was 100% improved so he just needed to keep it up and that he would be speaking to James as some shorter days may well be needed to get the Claimant under the 48 hours average.

[31]On 31 March 2022, the Claimant was sent a letter by Ian Sutcliffe stating that a ‘note for file’ had been placed on his personnel file. It states that the reason for the note was due to their conversation on the same date in which Ian Sutcliffe explained to the Claimant that his current WTD average was 51.29 hours and asked why his tachograph behaviour is causing him to be above the 48 hour WTD average. The letter continues: In the last WTD period you had to have the last week off unpaid in order to be compliant by the end of the period. You said that as we are not managing your hours, and you didn’t get paid for that week, you will continue with your present tacho management. This is not acceptable. I explained the Company expectation on tacho management, and stressed that if you remain consistently over the 48hr average you then you could face disciplinary action. I will monitor your hours going forward. Failure to adhere to these requirements could result in disciplinary action being taken.

[32]The Claimant presented his claim to the Tribunal on 3 May 2022.

[33]On 6 May 2022, the Claimant was asked to attend an investigation meeting on 12 May 2022 following the note placed on his file on 31 March 2022. An investigation meeting was held with Ian Sutcliffe on 12 May 2022. There is a transcript of the meeting which runs to 14 pages

[34]On 18 May 2022, the Claimant was informed that he was required to attend a disciplinary hearing on 24 May 2022 in order to consider disciplinary action relating to exceeding working time hours.

[35]The date of the disciplinary hearing was later changed to 27 May 2022. It was undertaken by Peter Deacon. There is a transcript of the hearing which runs to 23 pages.

[36]On 6 June 2022, the Claimant was informed in writing by Peter Deacon that he was being issued with a written warning (live for 12 months) because of his failure to maintain his 48 hour WTD average during the 26 week reference period and his continued disregard for the working time 48 hour average with no signs of improvement despite notes to file and training. He was informed that additional target training with a driver trainer was to take place and that immediate improvement with regard to tacho management was expected.

[37]On 12 June 2022, the Claimant sent an email to Ian Sutcliffe. He stated that he felt that he was being targeted, not being left alone to do his job and that this was affecting his mental health and sleep and causing him to feel stressed, anxious, down and sad.

[38]On 13 June 2022, the Claimant appealed against the imposition of the written warning. He stated that he did not get to choose his duties; they are allocated to him by the planner. He stated that the law says that it is the employer’s responsibility to organise duties and monitor driver’s data so that the rules are met. The disciplinary procedure was not followed and he was never given a time scale for improvement. He should not have been given a written warning before even reaching half way to the 26 week reference point. He stated that the managers at the depot wanted to get rid of him. He stated that he knows that the Respondent is against discrimination, bullying and harassment which is why he is fighting the unfair treatment.

[39]On 30 June 2022, the Claimant’s appeal hearing was held with Aaron Tatham. There is a transcript of 18 pages.

[40]On 19 July 2022, the appeal outcome letter was sent to the Claimant. The decision to issue a written warning was upheld. Aaron Tatham stated that both the Claimant and the company had a responsibility to manage his driving hours. He had seen no evidence that the company had breached its obligations to the Claimant in relation to allocation of work. The Claimant is choosing to set his tachograph to the ‘other work’ mode rather than ‘rest’ mode and that he was doing this because of the length of his shifts: that he was doing it because it was “the only way I will catch their attention”. There is no time scale for improvement because he appears to be repeatedly failing to abide by management instructions regarding tachograph management. It is therefore not a performance issue but rather a conduct issue. The company has a right under its disciplinary rules and procedures to proceed straight to a written warning or even a final warning and that, in some circumstances, failure to follow a reasonable instruction can amount to gross misconduct. Although he was in the middle of the reference point, it was clear that he was still not following instructions, so it was not necessary to wait until the end of the current reference period. He was sure that it was not the case that his managers wanted to get rid of him. He thought that it was far more likely that the Claimant was sensing the frustration that they felt about the Claimant’s refusal to adhere to the same instructions that other drivers are following. He stated that the Claimant was clearly a hard working, conscientious individual and highly valued member of the team. He urged the Claimant to comply with management instructions to avoid further disciplinary action.

[41]On 22 July 2022, the Claimant emailed Ian Sutcliffe. He stated that his working hours were starting to run low so the planner needed to start monitoring his working time very closely and make adjustments accordingly. He asked whether there was anything else that he could do, apart from the way that he operates his tachograph, to prevent his working time from running out early again.

[42]On 26 July 2022, Ian Sutcliffe emailed the Claimant. He stated that he was disappointed that the Claimant still appeared not to be following management instructions in relation to operation of his tachograph. His continued refusal to set the refusal to do so was artificially inflating his ‘other work’ which impacts upon the driving work that he can be allocated without breaching the WTD. This mean that it would again be necessary to reduce the amount of work that he could be allocated to bring his average down which will have an impact on his wages. It also meant that he renders himself liable to further disciplinary action for continuing to refuse to follow what the company considers to be a reasonable instruction. He would continue to monitor the Claimant’s tachograph entries over the next few days but unless there was a dramatic improvement further disciplinary action could follow.

[43]The Claimant replied: I'm disappointed too, my concerns regarding my safety and the safety of other road users have been ignored. Personally, I take health and safety issues very seriously, the way you want me to operate the tachograph is simply dangerous, if you take into account my concerns. To me, that is not a reasonable instruction. I have said it many times, I operate the tachograph according to the rules, I don't get to choose the duties, so I can't control my hours whether they stay below or above the average of 48hrs, that is the job of the planner. Any disciplinary action against me regarding this issue, will be unfair and unlawful. However, you didn't answer my question, so I'll assume that, apart from the way I operate the tachograph, there's nothing else I can do to prevent my working time from ﬁnishing early. So, if that is the case then, I guess my fate is in the hands of the planner. I hope for better luck this time around.

[44]On 22 September 2022, Peter Deacon wrote to the Claimant to request that he attended an investigation meeting on 28 September 2022. This was because it had been reported that there had been no improvement regarding the Claimant’s tachograph and WTD management following the email sent to him on 26 July 2022. He was informed that this required further investigation and could lead to a disciplinary hearing with disciplinary action being taken.

[45]On 30 September 2022, an investigation meeting was held with Peter Deacon. There is a transcript of the meeting which runs to 66 pages.

[46]On 5 October 2022, Peter Deacon sent the investigation outcome letter to the Claimant. He stated that he was not going to increase the disciplinary sanction but to instead introduce a 3 month performance review. He was informed that if his average was not reduced over that current reference period then further sanctions may be imposed and that his written warning remained live. The performance review action plan comprised: 1) Ian Sutcliffe, Transport Manager and myself will monitor your weekly total shift hours with the view that Maritime will, where possible, try to maintain you average hours to be 12 or under per day. This will need to be flexible and based on mitigating circumstances such as RDC delays, road traffic collisions, and sudden increase in work. 2) With immediate effect I would require an improvement in your working time average resulting in this reference period, ending 12 March 2023, being below the Working Time Directive 48 hour average. We agreed that you are responsible for controlling your own tachograph management but myself and Ian Sutcliffe will monitor this on a fortnightly basis. 3) I will arrange for target training with another trainer for additional guidance and support. 4) Ian Sutcliffe will arrange a fortnightly catch-up meeting with you to discuss your hours and to give you both the opportunity to ask any questions or raise any concerns. I will arrange a monthly catch-up meeting with Ian and yourself to review progress being made. Terms and conditions of employment and related documents

[47]The Claimant was issued with terms and conditions of employment at the start of his employment on the 20 October 2019. There is a section entitled “Hours of Work” which reads as follows: Your basic hours of work are set out in the attached Memorandum of Agreement. Any hours worked, which may be deemed unsociable, have been considered when setting the remuneration for this position. The Company has the right to vary the starting and finishing times and hours worked, in accordance with the Working Time Directive, or other legislation governing hours of work. Overtime, is an inevitable feature of the Company's operation and you may be required to work beyond your normal weekly hours (within the Working Time Directive) to satisfy operational requirements. Continual refusals to work overtime when required, without reasonable excuse may, other than in exceptional circumstances, result in disciplinary action leading to dismissal. Breaks for lunch and rest in compliance with legislative requirements should be taken with the line manager's agreement to ensure compliance with the legislation; proper staffing levels and operational needs are met.

[48]There is also a section entitled “Tachograph Procedures”. This reads: You will be asked to sign the tachograph procedures to confirm that you fully understand the tachograph rules and driver-side regulations in respect of hours of work.

[49]The Memorandum of Agreement is referred to in the terms and conditions of employment as follows: Rates of pay/method of calculation: Your basis wage per completed week will be as stated in the attached Memorandum of Agreement.

[50]The following is stated in the Memorandum of Agreement: Minimum hours. The basis of this agreement is as follows: the company will pay 10 hours pay to those individuals who consistently work or are available for work for a minimum of 10 hours of a 10 hour shift. However, the company reserves the right to pay an employee the amount of actual hours worked when there has been evidence to reflect that the employee has not consistently worked or been available to work for a minimum of 10 hours.

[51]The Memorandum of Agreement then outlines the wages to be paid. It states that there is a guaranteed wage per completed 50 hour week, Monday to Friday, of £565, and a shift allowance payable for full attendance of £35 per week. On Monday to Friday, after 10 hours work per day, the rate of pay increases to £14.25 per hour for all overtime hours. There is a different overtime work rate of £17.50 per hour for weekend working, as well as various other allowances. Tachograph procedures

[52]Prior to the final hearing, the Respondent’s position was that there was a blanket policy on its drivers’ use of tachographs, which meant that the tachograph is set to ‘rest’ mode when waiting for their vehicles to be loaded or unloaded. On the first day of the final hearing the Respondent confirmed that there was no written policy confirming this.

[53]The Tribunal heard much in the way of evidence about the different tachograph modes and their application. The tachograph records driver activity. The information is inputted by the driver. There are four possible choices when the driver selects the type of activity. These are ‘driving’, ‘break/rest’, ‘other work’ and ‘period of availability’. Both parties agree that ‘period of availability’ would rarely be used by drivers working for the Respondent. Regardless of the mode chosen by the driver, the driver is paid for the work. So, in other words whether ‘rest’ or ‘other work’ is chosen the driver is paid the same hourly rate.

[54]It is important to note that at no point has the Respondent said that the Claimant’s tachograph use is unlawful.

[55]Time recorded as ‘driving’ and ‘other work’ count towards the average 48 hour working limit imposed by the WTR. ‘Rest’ does not count towards 48 hour working limit.

[56]The Claimant’s position is that it is his choice as a driver whether he chooses ‘rest’ or ‘other work’ and that this is not a matter that the Respondent has any say over. The Claimant has openly accepted to the Respondent and in these proceedings that he has chosen to record time spent waiting as ‘other work’ in order to reduce the likelihood that he will be given more work at the end of a shift. In other words, as the Claimant said in his grievance meeting, “the more you put break the more there’s room for you to be given more work.”

[57]The Respondent’s position is that it recommends that ‘rest’ is chosen wherever the activity is not ‘driving’ or ‘other work’. The Respondent states that this is so that drivers do not exceed their permitted driving hours within the WT reference period which is 26 weeks. The Respondent states that the Claimant’s use of ‘other work’ mode is excessive and more than two hours more than any other driver. This has a knock on effect in that the Claimant reaches his 48 hours limit more quickly in any given reference period. The Relevant Law Race Discrimination

The Relevant Law

[58]The time limit for a claim under the Equality Act 2010 is specified at section 123 of the Equality Act as follows: “(1) Proceedings on a complaint within section 120 may not be brought after the end of –(a) the period of three months starting with the date of the act to which the complaint relates, or

(b) such other period as the Employment Tribunal thinks just and equitable […] (3) For the purposes of this section – (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it”.

[59]The definition of direct discrimination appears in section 13(1) Equality Act 2010 as follows: “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”.

[60]The concept of treatment being less favourable inherently suggests some form of comparison and in such cases section 23(1) applies: “On a comparison of cases for the purposes of section 13, 14 or 19 there must be no material difference between the circumstances relating to each case.”

[61]The effect of section 23 is to ensure that any comparison made must be between situations which are genuinely comparable. The case law, however, makes it clear that it is not necessary for a claimant to have an actual comparator to succeed. The comparison can be with a hypothetical person of a different race.

[62]As the Employment Appeal Tribunal and appellate courts have emphasised in a number of cases, including Amnesty International v Ahmed

[2009] IRLR 884

, in most cases where the conduct in question is not overtly related to race, the real question is the “reason why” the decision maker acted as he or she did. Answering that question involves consideration of the mental processes (whether conscious or subconscious) of the alleged discriminator to identify whether race had any material influence, and it may be possible for the Tribunal to make a finding as to the reason why a person acted as he or she did without the need to concern itself with constructing a hypothetical comparator.

[63]The Equality Act 2010 provides for a shifting burden of proof. Section 136, so far as material, provides as follows: “(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.”

[64]It is therefore for a claimant to establish facts from which the Tribunal can reasonably conclude that there has been a contravention of the Act. If the claimant establishes those facts, the burden shifts to the respondent to show that there has been no contravention by, for example, identifying a different reason for the treatment.

[65]In Hewage v Grampian Health Board

[2012] IRLR 870

, the Supreme Court approved guidance previously given by the Court of Appeal on how the burden of proof provision should be applied. That guidance appears in Igen Limited v Wong

[2005] ICR 931

and was supplemented in Madarassy v Nomura International PLC

[2007] ICR 867

. Although the concept of the shifting burden of proof involves a two stage process, that analysis should only be conducted once the Tribunal has heard all of the evidence, including any explanation offered by the employer for the treatment in question. However, if, in practice, the Tribunal is able to make a firm finding as to the reason why a decision or action was taken, the burden of proof provision is unlikely to be material. Unauthorised deduction from wages

[66]Section 13 Employment Rights Act 1996 (“the ERA”) includes the following: “(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. (2) 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. (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.”

[67]An unlawful deduction can therefore include a failure to pay any wages at all.

[68]In interpreting the provision in a contract of employment, in the first instance the Tribunal is required to apply the normal every day meaning of the wording. If there is any ambiguity then context and background is an important consideration.

[69]In Adams and ors v British Airways plc

1996 IRLR 574

, CA, the Court of Appeal confirmed that an employment contract should not be interpreted in a vacuum and that, when resolving any ambiguity in its express terms, it is proper to have regard to the factual setting in which the contract was made.

[70]The time limit for a claim under is at section 13 ERA is governed by section 23 of the ERA as follows: […] (2) Subject to subsection (4), an employment tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with— (a)in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or […]. (3) Where a complaint is brought under this section in respect of— (a)a series of deductions or payments […] the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received.[…] (4) Where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.”

[71]As at the date that we gave our judgment and reasons in this case, we were bound by the case of Bear Scotland Ltd and ors v Fulton and ors

2015 ICR 221

, EAT, in which Mr Justice Langstaff, held that a gap of more than three months between any two deductions will break the ‘series’ of deductions.

[72]Since we gave our jJudgement and reasons in this case, the Supreme Court has handed down its decision in Chief Constable of the Police Service of Northern Ireland and another v Agnew and others

[2023] UKSC 33

. The Supreme Court held that whether a claim in respect of two or more deductions constitutes a ‘series’ of deductions is essentially a question of fact and to determine this all relevant circumstances are to be taken in to account, including the similarities and differences between the deductions, their frequency, size and impact, how they came to be applied and how they are linked. The ‘series’ is not necessarily broken by a gap of more than three months. Our Conclusions Unlawful deductions

[73]The first period for which the Claimant asserts that an unauthorised deduction from his wages was made is the 18 August 2021 to 10 September 2021 when he was stood down because he would have exceeded his 48 hour average over the 26 week reference period had he continued to work.

[74]On the basis of the law as it was at the time of our judgment and reasons, that is before the Supreme Court handed down its Judgment in Chief Constable of the Police Service of Northern Ireland and another v Agnew, the Tribunal decided that even if there was an unauthorised deduction it did not form part of a series as it occurred more than three months prior to the next period where it was claimed that an unauthorised deduction was made.

[75]The Claimant lodged his claim with the Tribunal on the 3 May 2022. Taking into account the period of early conciliation, this first period fell outside the primary time limit.

[76]The Tribunal decided that it was reasonably practicable for the Claimant to have lodged his claim within the primary time limit. He gave no clear explanation as to why he did not do so. At the grievance meeting that took place on the 15 September 2021, the Claimant asked why the Respondent was refusing to pay him. He referred to seeing a solicitor if he wanted to take the matter to court. Consequently, the Claimant was aware of the potential for making a claim. We found that there were no hurdles to the Claimant making an in time claim in respect of this particular complaint of unauthorised deductions. He was aware of the position of the company regarding nonpayment of wages, he knew of the possibility of seeking advice and of making a claim.

[77]The complaint was out of time and so the Tribunal had no jurisdiction to deal with it. However, even if the complaint had been made in time and hence fell within the jurisdiction of the Tribunal, we would have dismissed the complaint for the same reasons that we have dismissed the complaints relating to 7 March 2022 to 11 March 2022 and 30 August 2022 to 11 September 2022.

[78]The complaints made in respect of 07 March 2022 to 11 March 2022 and 30 August 2022 to 11 September 2022 were made in time and so fall within the jurisdiction of the Tribunal.

[79]The nub of the issue in this case is whether the Claimant’s wages for the latter two periods were properly payable. This requires that the Tribunal decide how the contractual provisions concerned be interpreted.

[80]The key provision in the Claimant’s terms and conditions reads as follows: The Company has the right to vary the starting and finishing times and hours worked, in accordance with the Working Time Directive, or other legislation governing hours of work.

[81]In the haulage sector, the WTR and other legislation relating to the amount of time that individuals are driving, is an extremely important health and safety provision. It was clear, from the evidence before us, that not breaching the average 48 hour weekly limit as set by the WTR was at the forefront of both the Claimant’s and Respondent’s minds at all times. The Claimant was not permitted to work if to do so would breach the WTR.

[82]It states in the Memorandum of Agreement that there is a guaranteed wage per completed 50 hour week.

[83]The Claimant stated that he was told that the clause permitting the Respondent to vary right hours only applied to start and finish times. His evidence in this respect was not specific. There was no documentary evidence to confirm any such conversation. The Tribunal therefore was not satisfied that the evidence before it showed that there was any verbal agreement to vary the written contractual term concerned. The Tribunal was therefore not satisfied that the Claimant’s contract was varied in any way.

[84]The terms refer not only to start and finish time but also ‘hours worked’. The clause makes express reference to the Working Time Directive and other legislation. On the plain wording of the contract, we found that the provision, referred to at paragraph 80 above, enabled the Respondent to vary the Claimant’s hours. It is clear that that the clause is wider than just start and finish times on any particular day.

[85]We found that the wording of the Memorandum of Agreement required that the Claimant be paid for any ‘completed’ week but there is no provision for pay where a week is not completed. Consequently, the Respondent was not contractually obliged to pay the Claimant for weeks in which he did not work at all.

[86]The Tribunal therefore found that the Claimant’s contract terms permitted the Respondent not to pay the Claimant during any week that he was stood down to prevent him from breaching the WTR. The sums concerned were therefore not properly payable. The Respondent therefore did not make unauthorised deductions from the Claimant’s wages from 7 March 2022 to 11 March 2022 and 30 August 2022 to 11 September 2022. Race Discrimination (section 13 Equality Act 2010)

[87]Whilst some of the acts complained of occurred prior to the 17 January 2021, for the purposes of the direct discrimination claim, we were satisfied that there was a connection between each of the acts complained of. The dispute between the Claimant and Respondent regarding tachograph procedures and the consequent impact upon the Claimant’s hours was a continuing state of affairs as opposed to a succession of isolated or unconnected acts. Consequently, all aspects of the direct discrimination claim were made in time.

[88]The Tribunal was required to decide if the Respondent treated the Claimant less favourably than it treated or would have treated others (“comparators”) in not materially different circumstances?

[89]The Claimant identifies himself as Black African. The comparator he relies upon is all other day shift drivers all of whom are white.

[90]The Claimant’s dispute with the Respondent centres around the way in which he uses his tachograph. The Claimant’s motivation for recording times when he is waiting whilst loading/unloading to ‘other work’ rather than ‘rest’ appeared to be(i) because he considered that ‘rest’ should only be used if that time is entirely unencumbered by any work-related responsibilities, and

(ii) to bring to the attention of those managing him that he considers that he is unfairly allocated work which results in longer shifts than some other drivers.

[91]In respect of (i) the Claimant submits that he does not consider it appropriate to record such time as ‘rest’ because it means that he will not get a proper rest and that this is a safety and welfare issue. However, the complaints before the Tribunal do not include any form of whistleblowing claim. It is therefore not for the Tribunal to determine whether either the Claimant or Respondent is incorrect in the approach being taken to tachograph recording.

[92]We dealt with each complaint as identified in the list of issues in turn.

[93]The Claimant asserts that he is given more work (longer routes) than others such that he accrues too many hours too early on in the reference period leading to little or no work at the end of the reference period which causes him financial loss.

[94]A considerable amount of time was given over at the hearing to the driver hours metric documents at pages 62a -d and 64a-d. The Claimant challenges the reliability of these documents. He says that they are not reliable because of the date stamp on them, in other words when they were printed off, and, in particular, he points to a discrepancy in the respect of one driver’s statistics that is of Artur Steczkiewicz who, at 62c, is recorded as having 80 driver days whereas at 64a 104 days is recorded.

[95]Having taken in to account the Claimant’s submissions, and considered all of the evidence before it in the round, the Tribunal formed the view that the driver hours metrics documents were reliable documents upon which significant weight could be placed.

[96]This was for the following reasons. Stuart White said in evidence that if driver has not downloaded their data from their tachograph card then it will capture the data until it is imputed. Drivers are told to input their data daily but some do not do so and leave it for a matter of weeks. The Tribunal found that this was a credible explanation for the discrepancy. The two reports were printed off around a month apart.

[97]The other challenge to the reliability of the reports was on the basis of the dates that they were printed off and who they were printed off by. However, the Tribunal found no force in that argument because we accepted the evidence of Stuart White that the program used, Vision, is one that is used throughout the industry. Having considered all of the evidence before us in the round we reject the Claimant’s argument that these documents had in some way been falsified. This runs contrary to the weight of evidence before us.

[98]The Claimant’s complains that he is provided more work than other drivers and that his hours are excessive. It can be seen from doc 62a, which runs for the period from 15 March 2021 to 17 August 2021, that the Claimant’s average shift was 12.17 hours during this period. The document also includes the details of other drivers working from the depot. It can be seen that the Claimant is, in terms of his average shift length, at the upper end of the scale, although there are several other drivers with a similar or higher shift averages.

[99]Further, whilst the Claimant challenges the reliability of these documents and the data that they provide, he has not provided his own breakdown of the hours he worked on his various shifts to show either that these documents do not reflect the reality or more generally that his working hours exceeded that of other drivers. He has not provided any quantitative evidence to demonstrate that his hours are other than what is shown in these documents or at 64a-c which is a document specific to the Claimant.

[100]We placed significant weight upon Peter Deacon’s evidence that it makes no business sense to have a driver reaching maximum hours early in the reference period because they would then have a truck with no driver and as they do not use agency drivers a driver with no hours left means that there is a truck that they cannot use.

[101]Taking into account all of these factors, we do not accept that the Claimant was given more work than all other drivers. On the basis of the driver’s hours metrics and the Respondent’s witness evidence we are not satisfied that the Claimant has been treated less favourably than other day shift drivers.

[102]The Claimant complains that the Respondent refused to moderate / control his hours and routes to prevent him clocking up too many hours too early on in the reference period, despite him informing management during the reference period that he was getting close to clocking up too many hours. He complains that this led to periods where he was allocated less or no work and received less or no pay towards the end of the reference period.

[103]The Tribunal accepts that the Claimant raised issues with the Respondent regarding moderating or controlling his hours, orally and in writing, on several occasions.

[104]The Respondent provided the Claimant with training, and asked that he use ‘rest’ rather than ‘other work ‘in appropriate circumstances. The Claimant made the choice to disregard this request despite it having been clearly explained on numerous occasions as can be seen from various transcripts of meetings and other documents.

[105]The Respondent clearly has a duty to assist their drivers in keeping their hours within the WTR, but the Tribunal did not consider it to be an unreasonable instruction for the Respondent to ask that drivers manage their tachographs in such a way that they stay within the bounds of the WTR and in a manner that is efficacious for the business.

[106]We found that there was no failure to act on the part of the Respondent. On the contrary the Respondent expended time and resources to address the issue including arranging two training sessions for the Claimant.

[107]Further, and in any event, the evidence before the Tribunal did not show that the Claimant was treated less favourably than any other driver who was about to breach the WTR. Considering all of the evidence before it in the round, the Tribunal formed the view that the Respondent would have treated any other driver who found themselves in the same position as the Claimant in the same manner.

[108]The Claimant complains that the Respondent criticised and punished him because of how he uses the tachograph, including telling him he is using it incorrectly, investigating him, convening a disciplinary process and issuing him with a disciplinary warning on 06 June 2022 and threatening dismissal.

[109]The Claimant was spoken/written to, investigated and given a written warning because of his tachograph use and the consequent impact upon his average hours.

[110]The Claimant asserts that the fact that the Respondent went straight to a written rather than verbal warning contravened the Respondent’s disciplinary procedure, showng unfair treatment.

[111]In respect of verbal warnings, the disciplinary procedure states that an individual will normally first be given a verbal warning. The use of the word ‘normally’ means that it is not always the case that such an approach will be taken. Prior to being given a written warning the Claimant was spoken to at length. He was informed of the Respondent’s approach to tachograph use and he was given one to one training. He knew that the way in which he was using his tachograph was not in accordance with the Respondent’s approach and that he should improve his performance in connection with WTR management but he continued using his tachograph in that same manner. The Respondent’s case is that it was for those reasons that the Claimant was given a written rather than verbal warning.

[112]The Tribunal formed the view that the Respondent has satisfactorily explained why it acted in the way that it did and there was nothing whatsoever in the evidence before the Tribunal to suggest that the Respondent would have treated any other driver in a different manner in comparable circumstances or that it acted in an unfair manner towards the Claimant.

[113]We do not accept that this was less favourable treatment.. Peter Deacon and Stuart White said that they had not dealt with a similar case but had they done so they would have taken similar steps. We accepted their evidence given under oath. There is no evidence before us to suggest otherwise.

[114]The Claimant complains that he has been subject to less favourable treatment standing him down and not him providing him with work or pay in August 2021, September 2021, March 2022 and August to September 2022.

[115]For reasons that we have provided above, we have found that the Respondent acted within the terms of the Claimant’s contract of employment in not paying him for periods when he was not able to work because to do so would mean that he would breach the WTR. We have also found that the Respondent has not made unlawful deductions from his wages.

[116]On the evidence before us we were also satisfied that the Respondent does stand other drivers down for the same reasons. The Claimant has therefore not been subject to less favourable treatment in this respect.

[117]The Claimant stated that he has been told by other drivers that Ian Sutcliffe had it in for him, that he does not like the Claimant and that the Claimant should watch his back. The Claimant’s evidence in this respect was very vague so the Tribunal placed only very limited weight upon it.

[118]The Claimant was unable to explain, in respect of any of the complaints made, why he considered that any of the treatment that he complains of was in any way done to him because of his race. He stated that all other drivers working days shifts are white and are not treated in the same way that he is. He has not advanced any specific evidence to link anything said or done to him to his race.

[119]However, if all other drivers follow the Respondent’s policy of setting their tachograph to “rest" whilst waiting/loading/unloading, then the Claimant‘s refusal to do so is a material difference and which we found is likely to explain the treatment he complains of.

[120]In reaching its conclusions, the Tribunal also took in to account that, at no point prior to the institution of these proceedings, did the Claimant ever mention that he was being treated unfavourably because of his race nor did he mention race discrimination. This is despite him stating on several occasions to the Respondent in meetings that he was going to take legal advice. The Claimant asserts that when he was telling the Respondent that he was being unfairly treated what he really meant was that he was being discriminated against on the grounds of race. Whilst we accept that, as the Claimant says, it can sometimes be difficult for employees to raise such sensitive issues as discrimination, certainly at the beginning of a dispute, the Tribunal was satisfied, on the evidence before it, that the Claimant is able to advocate for himself and is not afraid to raise matters with his employer that he considers important.

[121]The Claimant had opportunities during several lengthy meetings to state that he considered that he was being discriminated on the grounds of race but made no mention whatsoever of that issue. We have formed the view that had he had a genuine belief that he was being discriminated against on the grounds of race that he would have said so to his employer. We formed the view that he did not say so because the actual nub of his dispute related to tachograph use, being stood down and not paid and the way in which routes are organised and work allocated by the Respondent.

[122]I apologise to the parties for the delay in providing these written reasons. The delay is entirely my responsibility not that of my colleagues.