Mr C O Perez VargasClaimantThe Wild Pot LimitedRespondent
Before
Employment Judge Gumbiti-Zimuto
Members
Mrs E Gibson and Mrs F TankardIn person for claimantMr F Rockcliff for respondentDate 6 March 2025
JUDGMENT
[1]The claimant was dismissed.[2]The claimant was unfairly dismissed.[3]The claimant’s complaints of direct race and sexual orientation discrimination are not well founded and are dismissed.[4]The claimant’s complaints of harassment related to race and harassment related to sexual orientation are well founded and succeed.[5]The respondent is ordered to pay to the claimant the sum of £20,444.24 comprising of Unfair dismissal Basic award: £1142 Compensatory award: Loss of statutory rights £500 Loss of earnings post notice period of 4 weeks £2073.28 Breach of contract[6]Weeks notice pay £3109.92 Holiday pay Accrued holiday not taken £663.32 Unpaid wages March 2020 £303.04 1-7 August 2022£518.32Equality Act 2010 Injury to feelings £11000 Interest on injury to feelings £1134.36 Total award: £20,444.24 Case Number: 3313538/2022 (J) Page 2 of 2 Approved by:
REASONS
[1]In a claim form that was presented on 14 November 2022, the claimant made complaints about unfair dismissal; direct discrimination on the grounds of race and sexual orientation; and harassment related to race and sexual orientation. He also made complaints about notice pay and other money claims. The claimant’s case is denied by the respondent.[2]The respondent in this case is the Wild Pot Limited. That company has as its Directors, Mr Rockcliff and Mrs Robinson. They ran a business known as the “Pot Kiln” which was a restaurant business, and the claimant was employed as a Chef. His employment began on 1 November 2019 and came to an end on 8 August 2022 following his resignation.[3]This case is about whether the claimant was constructively dismissed and also whether the incident immediately preceding his resignation was an act of direct discriminaiton or, alternatively, an act of harassment related to protected characteristics of sexual orientation and/or race.[4]The claimant gave evidence in support of his own case. He also relied on the evidence of his husband, Mr Saravana Kumar Gurusamy. There was evidence Case Number: 3313538/2022 2 provided also by Patrick Hauft, and also evidence from Alexander George, and Matthew McLaughlin.[5]The respondent relied on the evidence of Mr Rockcliff. We were also provided with a witness statement which was prepared by Mrs Robinson, his fellow Director, but she did not give evidence to the Tribunal but we have had regard to the contents of her statement in coming to our conclusions because we considered the statement without it being supported by evidence we have attached such weight as we considered appropriate in the circumstances.[6]We were provided with two bundles of documents; a bundle from the claimant of some 291 pages; and a bundle from the respondent containing some 185 pages of documents.
Findings of fact
[7]Our findings of fact are as follows.[8]The claimant’s employment with the respondent began on or around November 2019. His employment in the kitchens was a success. He was promoted to joint Head Chef and was even in discussions with Mr Rockcliff and Mrs Robinson about the possibility of partnership in relation to the business.[9]The claimant’s fellow joint Chef was known as “Wolf.” He left the respondent’s employment after resignation in about April 2022. The effect of that, and with other staff leaving, was that the kitchen at the Pot Kiln went from 4 chefs to just two. This meant that there was an extra burden placed on the staff that were remaining. As a result, there were discussions that took place between the claimant, Mr Rockcliff and Mrs Robinson and, as a matter of practicality, it was decided that there would be some reduction in the number of covers that were carried out in the business during the week and at weekends. The covers in the week were reduced from 50 to 30 covers for lunch and dinner and, at the weekend, covers were reduced to 45 from 60.[10]The restaurant also had some further turnover of staff in the period after Wolf resigned. There is some dispute between the claimant and the respondent about how staff were utilised in the business. The claimant suggests that there were problems with staffing which added to extra pressure; the respondent suggests that there was a pool of staff available who were called in as and when needed and that, whilst a joint head chef was not appointed, there was sufficient staff to carry out the work in the restaurant. The claimant says that in the three month period after Wolf resigned he was under constant pressure with inexperienced staff.[11]The claimant says things came to a head for him on 7 August. On that occasion, which was a Sunday, the service was nearly complete, and the claimant contends that he ended up serving around 60 customers. That is disputed by the respondent, but it is not disputed that the number of covers on that day was greater than the 45 that was agreed for a Sunday. The respondent says that, although there were more than 45 covers, this is misleading because some of those covers would have been people being served outside the restaurant and Case Number: 3313538/2022 3 so the number of covers would in fact have been in accordance with the agreed 45.[12]Whatever the correct position in relation to that, it is clear that there were more than 45 covers on that day and also that this caused the claimant to feel that he was being imposed upon and given an unreasonable workload. What he says is that he could not bear the pressure anymore, so he approached Mr Rockcliff and Mrs Robinson to discuss with them the reason why he had been serving so many people. He states that they denied it and asked him to carry on working, and saying that the numbers were fine. The claimant says he knew that they were not, and so his reaction was to walk out.[13]Mr Rockcliff followed the claimant out of the restaurant, got in his car, and drove a short distance to where the claimant was and spoke with him. There is some dispute between the claimant and Mr Rockcliff as to what was said when this confrontation took place. The claimant accepts that he was upset. the claimant also says that the demeanour of Mr Rockcliff left him feeling shocked, threatened, insecure and that his body was shaking. He also stated in his witness statement that he was in fear of violence because of Mr Rockcliff’s threats. We are satisfied that there were no threats of violence towards the claimant by Mr Rockcliff.[14]There is a dispute between the claimant and Mr Rockcliff as to what was said. The claimant says that Mr Rockcliff said to him:- “I knew that you Mexicans were not reliable people. I will call the Home Office and make sure that they send you back to the country that you belong. I will also tell them that you have been sexually harassing all the male staff.” The claimant says that he also said, “I will make sure that no one will give you a job anymore.” Mr Rockcliff denies making those comments.[15]In his evidence to the Tribunal Mr Rockcliff accepts that he behaved in a way which was fuelled by his emotions at that time. We think that he recognises that he may well have behaved in a way that was ill-advised. In questioning Mr Rockcliff put to the claimant that what happened was that he said to the claimant something along the lines of “If the claimant was so unhappy, which was something that I did not understand, why didn’t he go back to Mexico.” He also accepted that he did say something along the lines that he had heard that the claimant had been sexually harassing staff. He says that at the time that he said that he was upset, and he felt “pretty hurt” about what the claimant had done in walking out.[16]It is accepted that the claimant was asked by Mr Rockcliff to come back to work at the restaurant. The claimant refused to do so and said something along the lines of Mr Rockcliff’s behaviour was not encouraging him to go back. Mr Rockcliff insists that he would not have made a racist remark to the claimant but accepts that his behaviour was fuelled by the fact that he, himself, felt offended by the claimant’s behaviour and which to some extent was itself offensive.[17]Mr Rockcliff left the claimant and went back to the restaurant, completed the final service which was almost complete at that point in the day, did his work in the Case Number: 3313538/2022 4 restaurant which included cleaning up, and then later in the day went to the claimant’s home.[18]The purpose of that was to collect keys for the restaurant. There was more than one set of keys for the restaurant, but Mr Rockcliff went to collect the claimant’s keys from him. Whilst he was at the claimant’s home, he knocked on the door, this was described as “bashing the door,” but we are satisfied that it was an appropriate attempt to gain the notice of the people in the house that he was a caller at the door. Not immediately receiving an answer, Mr Rockcliff went to the back of the property where there was an open window, and he made himself known by sticking his head through the window.[19]The claimant’s husband opened the door and spoke with Mr Rockcliff. It is agreed that Mr Rockcliff asked for the keys and that the keys were provided to Mr Rockcliff.[20]The claimant was in the property but did not come to the door. He states that he had been in the shower and remained inside the property. Mr Rockcliff did not go into the property. It is alleged by Mr Gurusamy that Mr Rockcliff screamed in front of the neighbours, referring to the claimant and said “He doesn’t belong here. I will report to the Home Office and make sure he’ll be deported back to his country.” Mr Rockcliff denies making any such comment.[21]The following day, the claimant went to see his GP. He was signed off work with stress and he wrote a letter of resignation of his employment with the respondent.[22]The claimant’s witness, Mr McLaughlin, refers to a text message which was received on 10 August. This text message included the comment from Mr Rockcliff saying that “I’m changing the kitchen culture. I finally lost all the dinosaurs/old brigade chefs to my great relief.” He went on to say that” there would be a low prep smaller menu.” In that text message Mr Rockcliff also stated that “He was not sure that Eastern Europeans or Latin Americans have an innate understanding of English regional cookery and/or Mediterranean classic cuisine.”[23]The dispute between the claimant and the respondent is set out in a list of issues which was prepared by Employment Judge Alliott on 21 July 2023. The first issue to be determined is that of constructive unfair dismissal. George Alliott pointed out that the claimant relies on the implied term of trust and confidence and the matters that are relied upon by the claimant are that there was a contractual agreement that the claimant would cook for up to 30 customers per service and 45 customers on Sundays, and further that the claimant relies on that matter as amounting to a breach of fundamental terms of the contract of employment. He also relied on the suggestion that the respondent caused the kitchen to be short-staffed and/or employed with inexperienced staff. Additionally, he relied on the events of the 7 August which I have summarised.[24]The conclusion of the Tribunal is that there was a breach of the implied term of trust and confidence when one considers the cumulative effect of the conduct of Mr Rockcliff on 7 August. It is important to consider that conduct, not in the context of the bust up that occurred towards the end of the service on 7 August, but in the light of the three months or so that had passed since Wolf had left in Case Number: 3313538/2022 5 April. In that time, rightly or wrongly, the claimant felt that he was taking on an extra burden; he felt that the staff were not being properly supported and felt that they were understaffed; that they were essentially overworked; and that the agreement that had been made to reduce the number of covers was being systematically breached by the management. Matters came to a head on 7 August when the claimant spoke to Mrs Robinson and Mr Rockcliff but his concerns were ignored, this caused him to walkout and the encounter on the street occurred, followed by the encounter at the claimant’s home.[25]We are satisfied that neither the claimant nor Mr Rockcliff is likely to be a reliable narrator of the events which occurred on the afternoon of 7 August because they both accept that they were emotional. Mr Rockcliff accepted that he felt offended and accepts that he may have been offensive. Mr Rockcliff denies that he was racist. He denies that he is a racist and that is something that the Tribunal is quite happy to accept.[26]However, we are also satisfied, bearing in mind that we have to make a decision which is based on the balance of probabilities where there are two competing versions of events which are unsupported by any other versions of events, that something occurred between the claimant and Mr Rockcliff which caused the claimant to perceive himself as being attacked based on his racial background and sexual orientation. We are satisfied that something along the lines of the things that the claimant complains about occurred.[27]The reason that we are satisfied that they occurred is because of the evidence which was given by Mr Rockcliff. Whilst Mr Rockcliff did not accept making the comments that are reported as being made by him, he made concessions to making comments about the claimant which made specific reference to his Mexican nationality, and he agreed making comments which suggested that the claimant had been guilty of sexually harassing male members of staff. When we put those admissions into the context of an emotive and heated exchange taking place between the claimant and Mr Rockcliff, when Mr Rockcliff accepts that he was angry with the claimant for having left the service on 7 August, we are satisfied that it is more likely than not that something along the lines of what the claimant complains about took place.[28]We are therefore satisfied that Mr Rockcliff would have said something that the claimant understood to be a comment that “Mexicans were not reliable people.” That the claimant understood Mr Rockcliff to say to him something that indicated that he intended to report him to the Home Office and that the claimant did not belong in the country. We also accept that Mr Rockcliff said that he would tell the Home Office that the claimant had been sexually harassing male staff. We are satisfied that it is more likely than not that Mr Rockcliff did say something along the lines of “I’ll make sure that no one will give you a job anymore” and we are also satisfied that when Mr Rockcliff went to the claimant’s home later that day, that he did say something along the lines of “I’ll make sure that he’ll be deported back to his country.”[29]We also note that there are the things that happened after the incident on 7 August which again we consider tend to support a conclusion that more likely Case Number: 3313538/2022 6 than not what the claimant complains about is correct. In a message Mr Rockcliff sent to staff on 10 August, there is reference made to Eastern Europeans and Latin Americans, and English standards and mediterranean cuisine. We also note comments made by Mr Rockcliff during the course of his evidence. Mr Rockcliff was emphatic in stating that he is not racist, and noting that he makes specific reference to his own national and cultural heritage, which is diverse, that he also spoke about his experiences at school when he was the butt of unpleasant comments directed at him because of his national/racial origins. We are satisfied that all those experiences are likely to mean that he is, as he says, somebody who “simply is not a racist” and we accept that.[30]However, we also noted that Mr Rockcliff is a person who had a tendency to talk about people in stereotypical terms. He made a number of references during the course of his evidence which attached stereotypical positions in relation to people based on their national origins. We think those matters mean it is more likely than not that Mr Rockcliff, in a moment of passionate indiscretion, may have used language that he would not use in a moment of clam, and whilst not intending to be racist or racially offensive, he did use language that could, and did, have the effect of causing Mr Vargas to feel that he was being attacked because of his racial background.[31]We also note that on 12 August, Mr Rockcliff contacted the claimant’s estate agents and gave information, which was almost correct, namely that the claimant had lost his employment, but that he went further and indicated that there had been “serious breaches” which would be subject to the law in some way. It was put to Mr Rockcliff that this was a vindictive act during the course of the hearing. Mr Rockcliff reflected on that and conceded that perhaps it might be viewed as a vindictive act.[32]We finally also take into account the social media post that was made by Mr Rockcliff which refers to Michelin trained chefs, “people with sautéed egos who have lost their mojo for the love of cooking and who have overcooked their wallets for fame over food.” In relation to that matter, Mr Rockcliff stated that was not being directed at the claimant. It may be that it was not being only directed at the claimant, but we are quite satisfied that in making those comments, the claimant and anybody who was aware of the circumstances surrounding the claimant’s employment and end of his employment, may well have considered that that is exactly who they were referring to.[33]So, taking into account all those matters, we think that it is more likely than not that the behaviour complained of by the claimant occurred in the way that he says it did and we prefer his version of events to that of Mr Rockcliff.[34]We are satisfied that this amounts to a constructive dismissal and, in coming to that conclusion, we have had regard to section 95 of the Employment Rights Act which provides:- “(1) For the purposes of this Part an employee is dismissed by his employer if … … Case Number: 3313538/2022 7 (c) the employee terminates the contract under which he is employed … in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”[35]We have also had regard to the guidance of Lord Denning in the case of Western Excavation v Sharp in which Lord Denning stated that: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains; for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.”[36]We are satisfied that the circumstances of this case are captured in that extract. We have also reminded ourselves that it is an implied term of any contract of employment that the employer shall not, without a reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or serious damage the relationship of confidence and trust between the employer and employee. And that a breach of the implied term of trust and confidence will amount to a repudiation of the contract.[37]We note that the test of whether there has been a breach of the implied term of trust and confidence is objective and the conduct relied on as constituting the breach must impinge on the relationship in that sense and, looked at objectively, is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer.[38]Having concluded that the clamant was dismissed, we are required by section 98 of the Employment Rights Act 1996 to consider what the reason for the dismissal was.[39]In a case of constructive dismissal, the reason for the dismissal is to be found in the reason for the breach and, in this case, the alleged breach arises because of the claimant walking out, so it could be said that this was a case involving conduct.[40]However, we are satisfied that, in this case, dismissal was not a matter that was within the range of responses of a reasonable employer. There would have been no justification in terminating the claimant’s employment in the circumstances where he had been raising concerns about the breach of the agreement by the respondent in respect of the number of covers being catered for by him.[41]In those circumstances we have therefore come to the conclusion that the Case Number: 3313538/2022 8 claimant was unfairly dismissed within the meaning of sections 94 and 98 of the Employment Rights Act 1996.[42]The claimant also goes on to complain of direct race discrimination and direct discrimination on the grounds of sexual orientation. We reminded ourselves that section 13 of the Equality Act provides that an employer must not discriminate against an employee by dismissing him or subjecting him to any other detriment and that an employer discriminates against an employee if, because of his race, he treats the employee less favourably than he treats or would treat others. We can impose sexual orientation in place of race. The same would apply. Race includes colour, nationality and ethnic or national origins.[43]We also remind ourselves that, where the employee seeks to compare his treatment with that of another employee, there must be no material difference between the circumstances relating to each case. In this case there isn’t any direct comparator so we have to consider what would happen to the hypothetical comparator.[44]If there are facts from which the employment tribunal could decide in the absence of any other explanation that the employer contravened the provision concerned, the employment tribunal must hold the contravention occurred. However, this does not apply if the employer shows that it did not contravene the provisions. In this case, the significant feature, from our point of view, is to consider what would have happened to a real or hypothetical comparator in exactly the same circumstances as the claimant. Would they have been treated more favourably than the claimant was?[45]We are quite satisfied that the reaction that Mr Rockcliff had to the events on 7 August was a sort of reaction that he would have had with anybody regardless of their race or sexual orientation. It was, in our view, a natural response on the part of Mr Rockcliff to be offended by the fact that an employee had walked out on the service. Regrettably, the way that he expressed himself, in our view, was offensive and therefore problematic. We are quite satisfied however that there was no direct race discriminaiton by Mr Rockcliff to the claimant. We are quite satisfied that there was no direct discrimination on the grounds of sexual orientation by Mr Rockcliff towards the claimant whose sexual orientation and his race had nothing whatsoever to do with the way that Mr Rockcliff reacted. It is what he did that caused Mr Rockcliff to react the way that he did, and what he did was walk out on the service.[46]Section 26 of the Equality Act deal with harassment. What that Act provides is that:- “26 Harassment (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— Case Number: 3313538/2022 9 (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.”[47]In deciding whether conduct has that effect we have to have regard to the perception of the claimant, the other circumstances of the case, and whether it is reasonable for the conduct to have that effect. We are satisfied here that what we find has been conduct of Mr Rockcliff on 7 August when he approaches the claimant on his way home, and when he approaches the claimant again at his home, was conduct which was unwanted. It was conduct which had the effect of violating the claimant’s dignity and creating an intimidating, hostile, degrading or humiliating and offensive environment for the claimant and, because those comments were clearly related to his race, we are satisfied that it related to the protected characteristic of race. And because the comments made reference to the claimant’s sexually harassing all male staff, that it also made reference to his sexual orientation and therefore, in our view, was related to sexual orientation.[48]We have therefore concluded that the claimant is entitled to succeed in respect of his complaint about harassment related to race and related to sexual orientation.[49]There are a number of other claims that the claimant makes. He complains about wrongful dismissal. The claimant is entitled to notice pay if it was not paid to him. The claimant would be entitled to two weeks’ notice on the basis of his employment having been for two complete years of employment. He would be entitled to longer period of notice if his contract provided for it. The parties are to discuss with the Tribunal whether or not there are any other financial sums due to the claimant arising from the termination of his employment. Approved by: