Mr A M H Ahmed v Carter Solutions and Services Ltd: 3310760/2023

EMPLOYMENT TRIBUNALS

Case No 3310760/2023

Between

Mr A M H AhmedClaimant

Carter Solutions and Services LtdRespondent

Before

Employment Judge Laidler

Members

Ms J Buck and Ms L Gaywood

Mr Paul Croker (instructed by Solicitor) for respondent

Date 28 January 2025

REASONS

[1]The ET1 Claim Form in this matter was received on 1 September 2023 following a period of ACAS Early Conciliation between 5 July and 2 August 2023.

[2]The issues in the case were defined at a Preliminary Hearing on 25 March 2024 before Employment Judge Graham. It was clarified there was no constructive dismissal claim and that the reference to whistleblowing was intended to refer to a victimisation complaint under the Equality Act 2010.

[3]The Claimant was not pursuing a claim against the third party client.

The Issues

[4]The issues as identified are as set out below.

[5]Direct race discrimination (Equality Act 2010 s.13) 5.1. The Claimant says that he is Indian. Case No:- 3310760/2023. 2 5.2. Did the Respondent do the following things: 5.2.1. On 21 June 2023, refused to allow him to leave his desk during his unpaid one hour break; 5.2.2. On 22 June 2023, accused the Claimant of sleeping in his car; 5.2.3. During the telephone call on 22 June 2023, the Respondent refused to provide evidence or discuss the reasons for terminating the Claimant’s employment; and 5.2.4. Terminated the Claimant’s engagement on 22 June 2023 or failed to give him more shifts thereafter. 5.3. 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 the Claimant was treated worse than someone else would have been treated. The Claimant has not named anyone in particular who they say were treated better than they were. 5.4. If so, was it because of race?

[6]Victimisation (Equality Act 2010 s.27) 6.1. Did the Claimant do a protected act as follows: 6.1.1. The Claimant says that he submitted a Grievance between 22 and 30 June 2023 (date to be confirmed). 6.2. Did the Respondent do the following things: 6.2.1. Fail to deal with the Claimant’s Grievance, including failing to hold a hearing? 6.3. By doing so, did it subject the Claimant to detriment? 6.4. If so, was it because the Claimant did a protected act? 6.5. Was it because the respondent believed the Claimant had done, or might do, a protected act?

[7]Remedy for discrimination or victimisation 7.1. What financial losses has the discrimination caused the Claimant? 7.2. Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job? 7.3. If not, for what period of loss should the Claimant be compensated? Case No:- 3310760/2023. 3 7.4. What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that? 7.5. Has the discrimination caused the Claimant personal injury and how much compensation should be awarded for that? 7.6. Is there a chance that the Claimant’s employment would have ended in any event? Should their compensation be reduced as a result? 7.7. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? 7.8. Did the Respondent or the Claimant unreasonably fail to comply with it? 7.9. If so, is it just and equitable to increase or decrease any award payable to the Claimant? 7.10. By what proportion, up to 25%? 7.11. Should interest be awarded? How much? Witnesses

[8]The tribunal heard from the claimant and from the following on behalf of the respondent: Emily Gilbert, Office Manager Sharon Hirniak, Health and Safety & Environment Manager, for Generation Phoenix Ltd (the client) Nicki (Nick) Anthony Carter, director of the respondent (and wife of Michelle Carter) Michelle Carter, director of the respondent (and husband of Nick Carter) Barrie Hill, Purchasing Manager for Generation Phoenix Ltd. Emma Bass, HR Director of Generation Phoenix Ltd. The tribunal had a bundle of 128 pages and references in brackets are to pages in that bundle.

The Facts

[9]The Claimant was employed by the Respondent as a security guard from 16 June to 22 June 2023. The respondent provides a range of security services including supplying uniformed guards at sites throughout the UK. At the time of these proceedings it had approximately 200 employees. One of the contracts is with Generation Phoenix Limited. This was obtained approximately six years ago to provide a uniformed security service at their sites in Peterborough. Sharon Hirniak is their contact Case No:- 3310760/2023. 4 point at that client. The contract is of significant value to the respondent.

[10]The Claimant had been assigned shifts at other sites prior to GenPhoenix and no evidence was heard of any issues with his performance at those sites. He was then asked by Kelly Wilding, the Account Manager with the Respondent for GenPhoenix Limited, to go to that site for 21 – 24 June 2023, seen in the copies of the App. entries at page 50 of the bundle. Emily Gilbert gave evidence, which was not challenged, that the Claimant would have been inducted into the client site by Pawel Lesniowski, another security guard working at that site. She was very clear that this would have included that security guards were to remain on site during their break. For that client this meant in the reception area where there were facilities for the guards to use during their break.

[11]Barrie Hill, the Purchasing Manager for that client, was told by someone around June 2023 that the security guard was in his car. He went to see if the guard was okay and found him, who he later realised to be the Claimant, asleep. His chair was reclined back and his eyes shut. He tapped on the window and explained that they required the guard to remain in the reception area when taking their break.

[12]In an email dated 21 June 2023 (page 68) Barrie Hill wrote to Kelly Wilding complaining about finding the Claimant asleep in his car. He stated ‘I have just been down to his car and he was fast asleep, when I woke him up he informed me that he was on his 1 hour break!!’ Nick Carter replied to confirming the matter was being investigated. The Tribunal has no criticism of him being concerned about the client as it was a large contract.

[13]The client was advised this was being investigated and In his reply Nick Carter asked Emily to ‘suspend active duties from said guard until I authorise reinstatement’. She, however, only saw this email the next day by which time the Claimant was already on site so he was not in fact suspended.

[14]On 22 June 2023 (page 71) Emily Gilbert wrote to Barrie Hill setting out the Claimant’s times of clocking on and off as 16:30 and 17:29. This email also confirmed that the Claimant had prior to his shift been trained on site with Pawel.

[15]In reply, Barrie Hill confirmed that was when he found the Claimant asleep and had to wake him up. Emily Gilbert gave evidence that she then rang the Claimant. The Tribunal accepts that it was her that called and not Kelly and that the Claimant had confused the names. He accepted in cross examination that was a possibility.

[16]Having had the discussion with the Claimant and stressed to him he must remain on site during his break and by that she meant reception, having confirmed with Pawel that he had also told the Claimant that, she put it down to a misunderstanding.

[17]The second day of the Claimant’s shift was 22 June 2023. It is clear from an email Emma Bass (who is employed by the client) sent to Sharon on 23 June 2023, the next day page 127) that whilst outside on a cigarette break on 22 June 2023 she saw the security guard go and get into his car. Case No:- 3310760/2023. 5 Walking back she saw he was still there in his car. She stated, “I walked across the car park to speak to him because we’d had the same situation the day before.”

[18]This is when the Claimant said to her that he had spoken to Kelly at the office who said he did not need to be in the building during his unpaid break. She told him that was not what normally happened and the Claimant said that he was okay to be in the building and started to walk back with her.

[19]The Claimant alleges at paragraph 11 of his witness statement that on 22 June 2023 Barrie Hill made a comment to a female colleague in reception referring to the Claimant as, “the brown guy who was snoozing”.

[20]Mr Hill denies ever saying that at that time, or at any other time. Insofar as it is suggested it was Emma Bass he was talking to, she also denies that such happened or that such comments were made to her. The Tribunal accepts Mr Hill’s evidence that his office is on the third floor and when speaking to Emma Bass, it would have been in his office and not in the reception. The Tribunal accepts their evidence and that there was no such conversation in reception during which those words were used.

[21]On 22 June 2023 (page 73), the Claimant wrote to Kelly about the break only and that if he was to be in reception it should be paid. There was no mention of the alleged racist comment which is supposed to have occurred that day and in the email the Claimant is very emphatic about what he considers to be his rights. If such comment had been made the tribunal believes the claimant would have raised it in this email when he was being very clear of his rights in relation to other matters.

[22]In an email sent on the 22 June at 6:29pm (page 120) Nick Carter wrote to Sharon Hirniak at GenPhoenix Limited, copying in his own office, stating that he would be dismissing the Claimant at 7pm. He confirmed he had deployed a Manager to cover the Claimant’s remaining shifts. He said, “I have no choice to dismiss this guard. I have zero tolerance for noncompliance and cannot risk yet another failure tomorrow.”

[23]When Nick Carter rang the Claimant he had No Caller ID activated on his mobile telephone. The Claimant takes issue with this, but the Tribunal found Mr Carter’s explanation that he never gave out details of his personal mobile to employees credible. The tribunal cannot draw any adverse inferences from the practice of having No Caller ID activated.

[24]The Claimant cross refers in his witness statement to his email to Kelly (page 74), sent on 22 June 2023 at 9:51pm. Paragraph 2 of states, “At the end of my shift today, I got a call from a No Caller ID which I do not normally receive. However, I got 2 consecutive calls so received the call and was greeted very abruptly to someone calling my name. After asking who it was, I had a very rude and disrespectful Nick Carter on the Case No:- 3310760/2023. 6 phone who said that he has received complaints of me ‘sleeping’ on shift and that he doesn’t need to give his phone number to people like me. When I tried to explain to him that I was on my break and was not ‘sleeping’, I was very rudely shut down by him saying he doesn’t need any explanation from ‘people like me’ and when I asked him for proof that I was sleeping, he replied ‘he doesn’t need to give any evidence to a brown person’. I even told him that CCTV on the premises will clearly show today’s events of me going to my car for a break and leaving before the woman got to my car and that if other employees can leave the office for a cigarette break, then surely I am also legally entitled to have some fresh air outside of the office, especially if my break is unpaid. He then very abruptly said ‘the services of a brown guy are not required and if you want to any further explanation come to the office tomorrow’. I am absolutely disgusted by his behaviour and these derogatory comments made by the owner of the company’.

[25]The Tribunal finds it unlikely that both Mr Hill and Mr Carter who work in separate entities would have both used the same wording, “brown man / guy” and in different contexts as alleged by the Claimant.

[26]The Claimant’s case is that he did not know he had been dismissed and just thought he was being removed from that client’s site. Having heard from Mr Carter, the Tribunal is satisfied that he would have made it abundantly clear that the Claimant’s employment had ended. The claimant’s own email states that he was told his services were ‘not required’. It has been suggested at this Hearing that the Claimant only thought his shift at that particular client had been ended and not others already offered to him. The Tribunal has heard no evidence however that the Claimant turned up for those shifts, which would have been consistent with the evidence now given.

[27]The Claimant wrote to the Respondent on 26 June 2023, (page 75), stating that ‘a grievance needs to be carried out for this serious matter ‘and he would not let it be ignored. He headed this “Race Discrimination”.

[28]On 26 June 2023, the Claimant received a reply from Nick Carter stating that all parties involved denied the Claimant’s statement of racial discrimination. This may not be a detailed investigation that the Claimant sought, but it is not the case that Mr Carter failed to respond or ignored the Claimant’s letter raising a grievance. It is in this email that Nick Carter said the call had been recorded, when in fact he has explained to this Tribunal it had not. His explanation for saying that was at paragraph 14 of his witness statement, that he believed it would make the Claimant think and in cross examination, he said, he hoped that suggestion would put an end to further lies.

[29]The Claimant wrote again to Nick Carter (page 77) raising the fact the call had been recorded and demanding an investigation. He also wrote again on 30 June 2023 stating he was awaiting a response to his grievance and this time only a few days after his dismissal, confirmed that, Case No:- 3310760/2023. 7 “Nick Carter dismissed me over the phone”. This is further evidence that he did know he had been dismissed.

[30]On 3 July 2023, he wrote again saying he had constructively dismissed himself. But he then said he had been rudely dismissed on the telephone, again acknowledging he had been dismissed but stating he had not received formal notice.

Relevant Law

[31]Equality Act 2010 13 Direct discrimination(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. … 23. Comparison by reference to circumstances (1) On a comparison of cases for the purposes of section 13, 14, [19 or 19A] there must be no material difference between the circumstances relating to each case. … 27 Victimisation (1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act. … Case No:- 3310760/2023. 8 136 Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

Lord Justice Mummery in Madarassy v Nomura International plc 2007 ICR 867, CA, stated:

[32]‘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.’

[33]In Igen Ltd v Wong

[2005] EWCA Civ 142

the following guidance was given in an Annex:(1) … it is for the claimant who complains of … discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful ….

(2) If the claimant does not prove such facts he or she will fail… (4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. (5) It is important to note the word “could” .. . At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them… (9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of [the protected characteristic], then the burden of proof moves to the respondent. (10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act. (11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the [prohibited grounds] .

[34]In Chief Constable of West Yorkshire v Khan

2001 ICR 1065

HL, the court made clear that in a victimisation claim it is not a ‘but for test’ but that the tribunal must identify the real reason, for the treatment complained of. Case No:- 3310760/2023. 9

Conclusions

[35]The first issue was that the Respondent refused to allow the Claimant to leave his desk. In cross examination the Claimant accepted that this was not what happened, but that he was told not to leave reception.

[36]The second allegation is that on 22 June 2023, he was accused of sleeping in his car. It is the case that Nick Carter believed when dismissing the Claimant that he had been found asleep in his car a second time and that is clear at paragraph 10 of his witness statement. However, the findings are that he was probably not asleep on that second occasion, though he was found in his car again during his break. What Nick Carter, however, believed when dismissing the Claimant was that he had been found asleep on both occasions.

[37]The Claimant seeks to rely on alleged racist comments of Mr Carter and Mr Hill. The Tribunal has accepted the evidence of the Respondent’s witnesses that those comments were not made.

[38]The burden of proof is on the Claimant to establish facts from which the Tribunal could conclude that he was treated less favourably on the grounds of race. He has not satisfied that burden.

[39]Having found the racist comments were not made, there is nothing the Tribunal can draw an inference from. The burden does not pass to the Respondent. However, had it done so, the Respondent has shown that the Claimant was dismissed for being in his car during his break and not being in the reception area as required by the client. The Tribunal is satisfied that a hypothetical security guard who was not Indian, but found in the same circumstances would also have been dismissed.

[40]The suggestion was made in closing by the Claimant’s representative that it seems that he was given conflicting instructions to put him in this, “victimising position due to race”.

[41]Mrs Aziz said she could only put this down to Emily Gilbert as she was the person who gave the Claimant clarification. The Tribunal finds this submission was made without any foundation.

[42]The Claimant also brings a victimisation complaint. The Respondent argues that s.27(3) of the Equality Act 2010 is satisfied on the facts of this case. It must follow from the Tribunal’s findings that the alleged racist comments were not made, that there has been a false allegation made in bad faith within the meaning of that section.

[43]There is, therefore, no protected act to rely upon to bring a victimisation

claim.

[44]If the Tribunal were wrong in that conclusion and the Claimant in raising the alleged discrimination had made a protected act, the alleged detriment in the List of Issues was the failure to deal with the Claimant’s Grievance.

[45]The Tribunal is satisfied he was not subject to any detriment as the Case No:- 3310760/2023. 10 Respondent did answer his Grievance, albeit in a short email.

[46]As the Tribunal has stated throughout this Hearing, the Claimant has not served the requisite two years’ service to be able to bring an unfair dismissal claim. A number of the matters he raises go to the reasonableness of the dismissal which this Tribunal is not concerned with. Approved by: