Mr T John v G4S Care and Justice Services (UK) Ltd and Others: 3315477/2022
JUDGMENT
[1]All claims against the First Respondent were dismissed on withdrawal on 22 August 2024. Second Respondent[2]The claim against the Second Respondent is dismissed. Third Respondent[3]Both claims against the Third Respondent are dismissed.REASONS
[1]The claimant was employed by the First Respondent and then by the Third Respondent to work in two different prisons. In neither case was he employed by the Second Respondent, although day to day he would have dealings with the Second Respondent’s employees. Neither period of employment was lengthy. That with the Third Respondent lasted a little over a month and ended as had the employment with the First Respondent when the claimant resigned, this time on 15 December 2022.[2]The claimant brought various claims against each of the respondents on 30 December 2022 after a period of early conciliation. The claims against the First Respondent were dismissed on withdrawal on 22 August 2024. After two preliminary hearings the claims against the Second and Third Respondents were clarified to be as follows: Second Respondent:2.1 It is said that this respondent directly discriminated against the claimant by failing to investigate a complaint that he made in writing on 15 December 2022. Third Respondent:2.2 That respondent is also said to have failed to investigate that complaint made on 15 December 2022 and again this is said to be an act of direct discrimination.2.3 The claimant says that he was refused permission to take an early break on that same day, again said to be an act of direct discrimination.2.4 A claim for unpaid holiday pay.[3]The Second Respondent has taken part in these proceedings. It called two witnesses and relied upon the witness statement of another who is on maternity leave. The claimant did not cross examine either live witness. The Third Respondent has taken no part in these proceedings save to write to say that it cannot understand the case brought against it.[4]The claimant gave evidence. Neither in his witness statement nor in his schedule of loss did he set out any basis for a claim for unpaid holiday pay and it is nowhere quantified. Furthermore, it is clear from contemporaneous documents that the claimant was periodically absent from work, sometimes having informed the Third Respondent that he would be absent, and sometimes not. Hence, the tribunal has no evidence before it to enable it to consider and, if appropriate, quantify any claim for unpaid holiday pay and that claim is dismissed.[5]The claimant’s resignation and complaint are said to arise out of failure by the Third Respondent to pay his correct hourly rate of pay. He contacted the Third Respondent on 13 December, but the Payroll Department was closed, and it was agreed that he would call them at 10am on 14 December 2022. He forgot to do so. He remembered this when taking his lunch break, but did not have his phone with him. He borrowed a phone but could not get through to the right person. He went back to work but asked to have time out to ring the Payroll Department again.[6]His role at the prison was to escort contractors, in this case from Vinci, who were working on site. No manager from the Second Respondent was present nor was any manager from the Third Respondent or from OCS who managed the Third Respondent’s employees on site. The claimant asked a Vinci manager for permission to take his lunch break or to call payroll. The manager refused although he did allow someone who had not had any break to take one.[7]The claimant asserts that the manager from Vinci refused to give him this break because he was black and that the Second and Third Respondents did not investigate the events of 14 December because he was black. Asked to explain why he made that assertion he repeated that he was black and obviously so and that that must be the reason. He said that these persons would have acted differently if he was someone of a different race.[8]The claimant did not challenge the evidence of the Second Respondent to the effect that the Second Respondent had intended to conduct some investigation into the events of 14 Decemebr but that changes in personnel meant that this did not happen. It is clear that the Second Respondent has investigated what happened with regard to that investigation and that the detailed picture which the witness statements present (unchallenged by any cross examination) show that the lack of progress with the investigation was unrelated to the claimant’s race.[9]There is no evidence before us to suggest that the Third Respondent did investigate the events of 14 December. We consider that the claimant did send his resignation letter to the Third Respondent, and it certainly did complain about the incident on 14 December involving a Vinci Construction site manager. Whilst it made sweeping allegations of poor treatment in very general terms, it gave no details at all and concluded by thanking the Third Respondent for the opportunity to work for it saying that he would cherish the relationships formed and wished it every success. That resignation letter did not ask for any investigation. When asked to clarify what went wrong on 14 December the claimant said in evidence that it was all to do with the Vinci manager.[10]We have reminded ourselves of the provisions of section 136 of the Equality Act 2010. We have to ask ourselves whether there are facts from which in the absence of any other explanation we could decide that the claimant was discriminated against by either the Second or Third Respondent in the ways alleged.[11]We have also reminded ourselves of the provision of section 109 of the 2010 Act and the liability of employers for acts of their employees even if done without knowledge or authority and of principles for their agents.[12]Against that legal background and taking into account the findings of fact, we deal first with the claim against the Second Respondent:12.1 There is nothing here to discharge the limited burden of proof which rests on the claimant. Merely to assert that he has a protected characteristic is not enough even if that assertion is itself obviously correct.12.2 In any event, we are satisfied that the failure to investigate was not because of the claimant’s race but because of the failings of the Second Respondent’s employees to realise that the two employees who were to investigate the matter had departed from their roles, and (in one case) from the Second Respondent’s employment altogether, before concluding any investigation.[13]We next turn to the failure to investigate the incident by the Third Respondent. It was not investigated, but the claimant had not asked that it should be, and the person said to have behaved badly was neither an employee nor an agent of the Third Respondent. The resignation letter contained a suggestion of poor behaviour by others towards the claimant, but no details were given, and we note that none were given in the claimant’s evidence, all of which suggested that the complaint was against the particular Vinci manager. Pressed on that point the claimant suggested that it must be because he was black that the Third Respondent did not investigate. Again, we think that insufficient in the circumstances to discharge the burden on the claimant. The relevant circumstances are that no investigation by the Third Respondent was requested, the resignation letter does not suggest that he required an investigation and the complaint of poor behavior is against a manager from another company. Hence, that claim cannot succeed.[14]We turn finally to the allegation that the claimant was denied an early break. In fact, the allegation appears to us not to be that he was denied an early break, but that having already taken his break he was not allowed a further break to try to contact the Third Respondent’s Payroll Department. It may be that he had hoped also to eat his lunch, the previous break having been taken up by his attempts to make the call, his evidence on this was unclear. That refusal was by a Vinci manager not by anyone employed by the Third Respondent or for whose actions that respondent would be vicariously liable. Hence, the Third Respondent cannot be liable for the acts of the Vinci manager and that claim must also fail.[15]For those reasons all of the claims brought against the Second and Third Respondent are dismissed.[16]This hearing was conducted via CVP with the claimant located in Nigeria. During the course of the reasoned judgment being delivered, contact was lost with the claimant. His image froze (as it had done earlier) but on this occasion his image then disappeared completely from the screen after a few moments. The tribunal, the respondent’s counsel and other representatives waited for several minutes but neither did the claimant reappear and nor did he communicate with the tribunal to indicate that he was having difficulties. The giving of the reasoned judgment then resumed. In the circumstances he had heard only part of the judgment. Therefore the tribunal decided to treat this as if it was a reserved judgment and the judgment with reasons will be transcribed and sent to the parties in due course. In due course, after the judgment and reasons had been delivered and the remaining party (and the Tribunal) had left, the claimant reestablished contact and was told of the above decision as to the promulgation of the judgment and reasons. Approved by: