Mr C Shancar v British Telecommunications plc: 3400855/2016
EMPLOYMENT TRIBUNALS
Case No 3400855/2016
Between
Mr C ShancarClaimantBritish Telecommunications plcRespondent
Before
Employment Judge G P SigsworthMr T Oxton (instructed by Counsel) for claimantMr S Proffitt (instructed by Counsel) for respondentDate 28 April 2017
JUDGMENT
[1]The Judgment of the Tribunal is that:(1) The claims of race discrimination and associative disability discrimination arising prior to the Claimant’s dismissal are struck out, as they are brought out of time and the Tribunal has no jurisdiction to hear and determine them.(2) The claims of unfair and discriminatory dismissal will proceed to be determined at a Hearing. No deposit order is made.
REASONS
[1]This preliminary hearing was listed to determine the following issues:(i) Whether the Claimant’s claims for race discrimination/associative disability discrimination are single or continuing acts;(ii) Whether some or all of such claims are therefore out of time;(iii) Whether it would be just and equitable to extend time;(iv) Whether some or all of such claims ought to be the subject of a deposit order on the grounds that they have little reasonable prospect of success.[2]The Tribunal heard oral evidence from the Claimant. There was a bundle of documents of some 200 pages which the Tribunal was referred to. The parties’ representatives provided written submissions and made oral submissions. There being insufficient time at the end of the hearing day for the Tribunal to reach a determination in the case and deliver a Judgment, the decision was reserved. CONTINUING ACT[3]The pleaded claim appears in the claim form of 17th August 2016 and in the further and better particulars of claim of 3rd October 2016. The associative discrimination claim is based on the Claimant having caring responsibility for his disabled daughter, in the context of the claims relating to working hours and working patterns. The Claimant alleges that he suffered direct race discrimination because of his colour, in the following respects:(i) He was not allowed to work from home from October 2015 until the termination of his employment.(ii) He was forced to make early starts on a full time basis, which started in December 2015 and continued until the termination of his employment.(iii) He was the subject of unjustified criticism of his written skills – report writing, emails etc – relating to his grammar, vocabulary and style.(iv) His employer omitted to increase his pay incrementally in June 2009 through to June 2015, or pay him a bonus in each year.(v) Ms Janet Knox, the Claimant’s manager, refused to prosecute his complaints regarding bullying that he says he suffered during the period April 2014 to February 2016, whereas she did prosecute complaints made by white colleagues.[4]The Claimant last attended for work on 4 February 2016, before he was imprisoned (see below) then suspended by the Respondent on 16 February. On 14 April 2016 he was summarily dismissed for alleged gross misconduct. He started ACAS conciliation on 1 July, which ended on 1 August 2016. The claim form/ET1 was presented to the Tribunal on 17 August. It is common ground that, as stand-alone complaints, all the allegations of discrimination (save for the dismissal itself) are brought out of time. They are only brought into time if they are part of ‘conduct extending over a period’, that period ending with the dismissal. The claims of unfair and discriminatory dismissal are brought in time.[5]The Claimant gave evidence in accordance with his witness statement about the pleaded allegations of discrimination and other matters prior to his dismissal. Prima facie out of time complaints relate to his performance at work and are capability matters. The managers allegedly involved in these complaints were David Ayton, Robert Grant, Josh Jones and Janet Knox. On 16th February 2016, the Respondent held an initial investigation meeting with the Claimant, at which he confirmed that; he had been arrested in July 2015; he had been in court on 5th February 2016 and had been convicted of the offence of harassment without violence; he had been sentenced to 6 weeks imprisonment; he had been in prison between 5th and 12th February 2016, and he had not informed anyone at the Respondent of this situation although his lawyer had advised him to do so; his sentence had been reduced to one week and he was appealing the verdict. The Claimant was then suspended pending a disciplinary hearing, in accordance with the Respondent’s disciplinary policy. He then faced a number of disciplinary allegations, including dishonesty, failing to comply with company procedures in respect of informing the Respondent that he had been charged with a criminal offence, providing false statements leaving out information as to his whereabouts, absence without authorisation, and failing to comply with absence reporting procedure. The disciplinary process then followed in accordance with the Respondent’s procedure, and ultimately the Claimant was dismissed. His appeal against dismissal was not upheld. The managers involved in the dismissal hearing and the appeal, Martin Green and Jim Dempsey, are both senior managers of the Respondent. The dismissal on the face of it was conduct related, and had nothing to do with the Claimant’s capability and performance. The Respondent argues that the Claimant must establish some clear connection between the allegedly discriminatory of acts of Ms Knox and others before February 2016 in respect of performance and work arrangements, and the actions of Mr Green and Mr Dempsey. There is on the face of it no or little connection between Mr Green and Mr Dempsey with Ms Knox or any of the others, save that Mr Dempsey takes overall management responsibility at a very senior level for everybody in Ms Knox’s team. He is based in Glasgow, and had never met the Claimant until the appeal hearing. Similarly, Mr Green had not met the Claimant before becoming involved in his disciplinary process at the dismissal hearing. The Claimant’s team, including Ms Knox, moved over to the line management of a Mr Andy White (whose line manager is Mr Dempsey) from December 2015. Before that time, Mr Dempsey and Mr Green had not had any connection with Ms Knox or the Claimant. Mr Green has never had any line management responsibility for Ms Knox or the Claimant. He has never met Ms Knox. The Claimant alleges that he requested Mr Dempsey at his appeal to consider his grievance of February 2016 which was raised in respect of the discrimination that he now alleges. The Claimant says that Mr Dempsey was under the misapprehension that his last grievance was presented in 2010, when this was not the case, and Mr Dempsey did not investigate his recent grievance. His written grievances are in the bundle of documents, and date from 18th January 2016 and 15th February 2016.[6]Section 123 of Equality Act 2010 provides that proceedings on a complaint to the Employment Tribunal must not be brought after the end of,(a) the period of 3 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. Section 123(3) provides that, 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. I was referred to a number of authorities. In Hendricks v Commissioner of the Metropolitan Police [2003] IRLR 96, CA, it was held that in determining whether there was “an act extending over a period”, as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed, the focus should be on the substance of the complaints that the employer is responsible for an ongoing situation or a continuing state of affairs. The Claimant has the burden of establishing such a continuing act or state of affairs. In Aziz v FDA [2010] EWCA CIV 304, CA, it was said that another way of formulating the test to be applied at a PHR is that the Claimant must have a reasonably arguable basis for the contention that the various complaints are so linked as to be continuing acts or to constitute an ongoing state of affairs. In Moseka v Sheffield Teaching NHS Foundation Trust, UKEAT/057/13, it was said that to the extent that the complainant complained of a particular line manager’s treatment of her from 2009 to 2010, there might be an argument that that period in time saw a continuing course of conduct or an ongoing discriminatory situation (assuming the Claimant’s allegations were true), but once it had come to an end the subsequent handling of a grievance into that period did not, without more, become part of the conduct. In CLFIS (UK) Ltd v Reynolds [2015] EWCA CIV 439, CA, Underhill LJ said that a composite approach to discriminatory motivation was unacceptable in principle. The Judge was referring to a situation where one manager’s discriminatory motivation could be treated as the ground or part of the ground for the Claimant’s dismissal, albeit that the actual decision maker was another manager. Lord Justice Underhill said that it was fundamental to the scheme of the legislation that liability can only attach to an employer where an individual employee for whose act he is responsible has done an act which satisfies the definition of discrimination. That means that the individual employee who did the act complained of must himself have been motivated by the protected characteristic. The judge saw no basis on which his act could be said to be discriminatory on the basis of someone else’s motivation. If it were otherwise very unfair consequences would follow. In Owusu v London Fire and Civil Defence Authority [1995] IRLR 574, EAT, it was held that in alleging a failure by the employer over a number of years to re-grade him and a failure to give him an opportunity to act up when such opportunities arose, the Claimant was alleging a continuing act in the form of maintaining a practice which resulted in consistent discriminatory decisions. In Barclays Bank plc v Kapur [1991] ICR 208, HL, a relevant factor was whether the Respondent tolerated alleged racist comments/direct disability discrimination, which would be consistent with the existence of a discriminatory regime, practice or principle.[7]Having considered the facts identified and the pleaded case, and the law applicable to these, I conclude that there is no continuing act by reference to the acts of discrimination arising before February 2016 and the dismissal. Prima facie out of time matters relate to performance and capability. The dismissal was for alleged gross misconduct, and concerned a matter of a totally different nature to the performance/capability issues that had arisen earlier. Personnel involved in the alleged earlier discrimination were not the same as those involved in the dismissal and the appeal, and really there is no connection between them except by reference to the overall management chain of this big organisation. The reality was that there was no regular or day to day contact between the disciplinary hearing and appeal managers and the others. Mr Dempsey may have met Ms Knox but only as her ultimate line manager and only after December 2015. Mr Green had never met Ms Knox. If Mr Green and Mr Dempsey were aware, or should have been aware, of the performance issues and the grievances of the Claimant, their failure to look into these or consider or deal with them was clearly not part of any continuing act – see Moseka. Further, they clearly had entirely independent reasons and separate justification for taking disciplinary action, in the context of the Claimant’s criminal proceedings and his failure to tell them about these proceedings. The case of Reynolds holds that the discriminatory conduct of one manager cannot be imputed to another without more. There is simply no or an insufficient link between the actions of Ms Knott and her colleagues and Messrs Green and Dempsey. The nondismissal allegations of discrimination are therefore not part of ‘conduct extending over a period’ (in the Hendricks sense) capable of linking them forward to the dismissal. JUST AND EQUITABLE EXTENSION[8]I look at each of the discrimination claims in turn. The claim of failure to increase pay or pay bonus occurred in June 2015, and in the years before that, and therefore that claim is way out of time. Other claims are between two months and six months out of time. The reasons given by the Claimant for his delay in bringing proceedings were that the alleged failings in past performance management of him by Mr Ayton caused him stress, anxiety and mental health issues, and that was a reason why he was not able to bring the claims earlier. He also suffered bullying and harassment, he says, which caused him mental health. He had been off sick from time to time with work related stress from 2013 onwards. There was a delay in the dismissal appeal and a failure to investigate the grievance from February 2016. The Claimant said that he consulted employment solicitors just before he put his claim in to the Tribunal on 17th August 2016, following his receipt of the appeal decision from Mr Dempsey on 16th August. He had already contacted ACAS on 1st July and time had stopped at that point. He had looked at the Employment Tribunal website on 1st July and seen that he could bring claims for disability discrimination and race discrimination, and that was the first time he says that he was aware that he could make such claims. He also became aware of the time limits for bringing such claims. There is a long letter from his GP, summarising the medical position. The Claimant had time off for work related stress in 2013, and then again in mid to late 2014. There was some time off in 2015, but this was related to family matters, and not work related. In November 2015, the Claimant returned to work and had no further time off.[9]In Robertson v Bexley Community Centre [2003] IRLR 434, CA, it was held that there is no presumption that a Tribunal should exercise it’s discretion unless they can justify failure to exercise it. Quite the reverse. The Tribunal cannot hear a complaint unless the Claimant convinces it that it is just and equitable to extend time, so that the exercise of the discretion is the exception rather than the rule. The onus is therefore on the Claimant to convince the Tribunal that it is just and equitable to extend the time limit. In Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327, CA, it was held that when considering whether the Tribunal was entitled to find it just and equitable to extend time, the question that must be asked is whether there was material on which the Tribunal could probably exercise it’s discretion. In British Coal Corporation v Keeble [1997] IRLR 336, EAT, it was suggested that tribunals would be assisted by considering the factors listed in section 33 of Limitation Act 1980. That section requires the court to consider the prejudice which each party would suffer as a result of the decision reached, and to have regard to all the circumstances of the case; in particular, the length of, and reasons for the delay; the extent that which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued has co-operated with any requests for information; the promptness with which the Claimant acted once he knew the facts giving rise to the cause of action; and the steps taken by the Claimant to obtain appropriate advice once he knew the possibility of taking action. Ignorance of rights will only save the Claimant where the Claimant’s ignorance is reasonable. The fact that the Claimant has waited for the outcome of an internal grievance procedure before making a complaint is just one matter to be taken into account by a Tribunal considering the late presentation of a discrimination claim.[10]I conclude that, generally, the Claimant has not provided cogent evidence for the reasons for the delay in presenting his non dismissal discrimination claims. He was not so ill at any given time as not to be able to consider his position with the Respondent, as he was blaming them for his stress and anxiety. There were long periods of time when he was not ill at all, and in particular there was no absence from work because of illness from November 2015. So far as his complaint of ignorance of rights is concerned, the fact is that he was able to research his position on the internet in July 2016, and there is no reason why he could not have done this before that date. He was able to instruct a criminal lawyer, and therefore there seems to be no reason why he could not also have instructed an employment lawyer. There is prejudice to the Respondent and to the evidence because of the delay, as the complaints on the pleaded case go back to April 2014 and it is understood that some relevant personnel have left the business. There is no or little evidence of the Respondent trying to manage the Claimant out of the business over a long period of time. There is, of course, prejudice to the Claimant if the historic discrimination complaints are struck out, but much less so than otherwise, because the main part of his case is the alleged discriminatory and unfair dismissal which is in time. The other complaints are somewhat added on, and only brought because the Claimant was dismissed. It is very doubtful that they would have been brought to the Tribunal if there had been no dismissal.[11]I therefore strike out the complaints of discrimination (save for the discriminatory dismissal) as being out of time. I have not been persuaded by the Claimant, and the onus is on him, that it would be just and equitable to extend time.[12]I am asked to make a deposit order in respect of the discriminatory dismissal case. I decline to do so. Until the evidence is heard, it is not possible to make any decision on what was the reason for the dismissal, and it is for the Respondent to establish this (for the unfair dismissal claim). On the face of it, the dismissal was for the conduct in the context of the criminal proceedings against the Claimant. However, it will be for the tribunal to determine on the evidence whether there is any taint of discrimination here. It is likely that the Claimant will seek to rely on the historic allegations as background when presenting his claim for unfair and discriminatory dismissal at the Hearing.[1]The ET1 in this matter was received on 17 August 2016. In its ET3 the respondent asserted it had dismissed the claimant fairly by reason of his conduct. The claimant provided further and better particulars seen in the bundle at page 32. There have been two preliminary hearings, one before Employment Judge Postle on 8 December 2016 and one before Employment Judge Sigsworth on 20 February 2017. At that hearing the claims of race discrimination and associative disability discrimination during employment were held to be out of time and struck out. The only claims that proceeded were that of ordinary unfair dismissal and discriminatory dismissal. It was clarified at the outset of this hearing that that discriminatory dismissal was associative discrimination on the basis of the claimant’s disabled child. That allegation was however withdrawn on the second day of this hearing and the claimant did not pursue an application for leave to amend to assert that in fact his dismissal was because of his own disability. The case therefore proceeded as that of ordinary unfair dismissal only.[2]The tribunal heard from Andrew White, Martin Green and Jim Dempsey on behalf of the respondent. It also heard from the claimant who had a witness statement from his trade union representative, Dr Aylett, with a new statement served on the final morning of the hearing. As this gave no evidence that went to the unfairness of the dismissal it was not challenged.[3]The claimant commenced employment on 30 September 1996. He started as a systems engineer and by the time of the events with which this tribunal is concerned had managerial status in problem management and service improvement. In any written reasons extracts from the following policies will be included: page 42, dealing with employees accused of criminal offences; page 44A, standards of behaviour policy: this lists as an example of misconduct the failure to tell a manager about a criminal offence even if it is not related to BT, it also included a non-exhaustive list of the acts amounting to gross misconduct which included committing fraud or deliberately falsifying or changing records incorrectly. There was also a policy about paid special leave.[4]On 23 July 2015 the police came to the claimant’s home and he was taken to the police station at approximately 6am. In evidence the claimant accepted that he telephoned his manager from the police station, did not tell her where he was and that should have been a work day. He said he needed leave for a domestic emergency. That was given to him as paid leave. The tribunal saw emails at page 145 where his manager asked that he put the request in writing. The claimant did and he stated he had to stand in for his sick wife. That was not true as most of the working day he was at the police station. He accepted that in evidence.[5]The tribunal also saw there was a long period of sickness absence between 21 September and 6 November for 47 days and that at a return to work interview the claimant was reminded of the employee assistance programme. On 19 November 2015 the claimant was charged. He accepted throughout his evidence when being cross-examined that he should have told his manager he had been charged. It was an error on his part he said due to the stress he was under and the advice from his lawyer.[6]His criminal trial took place on 5 February 2016. The claimant accepted he knew that date well in advance but did not inform his employer. He applied for annual leave to attend. He accepted in evidence it was an error on his part in keeping this from BT but he had been informed by his lawyer that there was no evidence against him, that he would not be found guilty and would be released the same day.[7]In the policy dealing with offences that do not involve BT it can be seen on page 43 that the point of informing the manager is so BT can support the employee by having a manager present at trial to take a note of the key issues, the verdict and sentence and in the words of the policy: “It is important that we obtain a proper impartial understanding of the case so that informed decisions can be made regarding impact on employment.” The respondent was denied that opportunity.[8]In paragraph 48 of his witness statement the claimant states his lawyer was so confident that he would not be convicted he told the claimant’s wife to go home. Contrary to that advice the claimant was not only convicted but immediately sentenced to six weeks imprisonment and taken to the cells. He then saw his lawyer. He stated he contacted his lawyer to tell his wife, BT of his whereabouts and to appeal. In his timeline, however, to the factfinding which is attached to the investigation report the claimant states that on the 9th when he saw his lawyer, his lawyer did not advise him to tell anybody and that there was no need to contact his employer. The tribunal finds it hard to accept the claimant’s wife did not know where he was when she herself had been at court that day. The tribunal has, however, not heard from the wife.[9]The claimant in his witness statement at paragraph 51, saw his lawyer again on 9th to discuss his appeal. On page 135 Janet Knox set out her attempts to contact the claimant and gives a note of the contact from the claimant’s wife. This stated that: “Mrs Shancar asked me to let you know his father is seriously ill and he won’t be able to come to work”. That was the message left by the claimant’s wife. The claimant provided as stated a timeline to Mr White, seen at appendix 8 to the investigation report. On page 162 the claimant states: “On Monday evening when my wife found out what had happened to me my wife was very shocked and she did not know what to do and how she was going to cope with it all”. That is completely contrary to the claimant’s evidence to this tribunal that his wife did not know all week.[10]The claimant appealed initially the sentence and was released on the Friday, returning home late that afternoon. On page 177 is seen a quotation from the text message that he sent to his employer, this includes the words “we didn’t take the phone with us”. This was disingenuous as “we” were not anywhere. It suggested that the claimant was with his wife which was not true. The respondent acted reasonably in taking this message as supporting a message left by the wife on the Monday that the absence was due to the claimant’s ill father. The claimant gave no indication at that point after his release of where he had actually been.[11]On Monday 15 February the claimant returned to work. He did not contact any manager to discuss where he had been the previous week. Mr White contacted him later that afternoon to arrange to meet to discuss his absence. This was because on 12 February HR had been contacted by an ex-employee advising the claimant had been convicted. HR made further enquiries. They found out from the court twitter feed and a court record, pages 154 and 155, as to what had occurred. This was not, as suggested, investigating behind the claimant’s back but checking out matters of public record.[12]On 16 February there was a fact-finding meeting with Mr White. The claimant had Dr Aylett with him, an experienced trade union representative. He admitted he had been in court on 5 February and now stated his lawyer had told him not to tell anybody. He made amendments to the hand-written notes and signed the typed version. Mr White recommended there was a case to answer but he did not make the decision. He lists his concerns at page 149 and these will be set out in any written reasons.[13]By letter of 8 March the disciplinary charges were put to the claimant and it was clearly stated that if proven these would amount to gross misconduct for which dismissal was a possible outcome. On page 165 the seriousness of the matters were set out as were options to be considered.[14]The claimant attended the disciplinary hearing with Dr Aylett again. There were set out at page 167B further enquiries Mr Green made of Ms Knox where she confirmed that the claimant’s use of the words in his text to her when he was released from prison “led me to believe he had been away with is family caring for his father”. At page 171 can be seen the rationale for dismissal. It was clear from this and from Mr Green’s evidence the claimant was not dismissed for the conviction itself but because of his dishonesty towards his employer.[15]The claimant’s appeal was heard by Mr Dempsey on 21 June and again the claimant was accompanied by Dr Aylett. The decision to dismiss was upheld. Mr Dempsey’s evidence was clear that the claimant talked about grievances he raised. When Mr Dempsey looked into these he discovered that some were in fact appeals against performance matters. He found no evidence of grievance cases from 2010. There were no outstanding grievances when the claimant was dismissed. None had been lodged. The claimant disputes that stating that one had been filed. That is not Mr Dempsey’s evidence.
The relevant law
[16]The claim is now only one of ordinary unfair dismissal. The respondent relies on conduct, a potentially fair reason falling within s.98 of the Employment Rights Act 1996. The tribunal must therefore have regard to the guidance laid down in British Home Stores v Birchall [1978] IRLR 379. This involves three elements. First, there must be established by the employer the fact of the belief, namely that the employer did believe it; secondly, it must be shown that the employer had in its mind reasonable grounds upon which to sustain that belief and at the stage at which he formed that belief on those grounds, the employer must have carried out as much investigation in to the matter as was reasonable in all of the circumstances. It is not necessary for the tribunal to share the same view in those circumstances, nor should the tribunal examine the quality of the material which the employer had before it, for example to see whether it was the sort of material which objectively considered would lead to a certain conclusion on the balance of probabilities or beyond all reasonable doubt. If the employer satisfies the tribunal it had a potentially fair reason, the tribunal must consider whether in all of the circumstances it acted fairly within the meaning of s.98(4).[17]In determining whether the decision was the appropriate sanction in all the circumstances it is not for this tribunal to substitute its view for that of the employer but to decide whether the decision was within the band of reasonable responses. The tribunal’s conclusions[18]The respondent relies on conduct. Applying the three-fold test in Birchall, the tribunal is satisfied the respondent had a genuine belief in the claimant’s misconduct formed after a thorough investigation. They had evidence that when in the police station in July the claimant applied for paid special leave to assist with a domestic emergency knowing he was not at home to deal with such, if one existed. He was at the police station from 6am and accepted he was there most of the working day.[19]The employer had further evidence and when asked by his manager to put in an email that request he confirmed the need for domestic emergency leave. He never told his employer he had been at the police station. He never informed the respondent that he had been charged with an offence or that he was to be in court. He failed to advise his whereabouts the week after his trial and neither did he on the Friday of that week on his release or the Monday on his return to work. When he did text his employer on the Friday he used words that led the employer to reasonably believe he had been with his wife caring for his sick father. The respondent had reasonable grounds for believing in his dishonesty and failure to follow their procedures.[20]The tribunal then must consider if the respondent acted fairly in treating this as a reason for dismissal. There has been no suggestion of any procedural shortcomings and this tribunal has not identified any. The claimant attended a fact-finding interview, a disciplinary hearing and an appeal with an experienced trade union representative. He has accepted he had every opportunity at those hearings to state his position and can be seen to have done so. At no time did he or his trade union representative suggest they did not understand the charges and all his answers are recorded as giving a coherent account of his position which indeed he gave to this tribunal. At the first meeting of fact-finding he even made amendments to and signed the notes.[21]The respondent acted reasonably in treating all these matters a cumulatively amounting to gross misconduct, justifying summary dismissal. It had found dishonesty and a breach of trust. Dismissal was therefore clearly not only within its policy but within the band of reasonable responses. It is a misunderstanding of the respondent’s reasons to state, as has been alleged, that he was dismissed for a criminal conviction and as that has been overturned the respondent in fact had no reason to dismiss.[22]The claimant was not dismissed for having a criminal conviction but for his dishonesty to his employers. It follows from the tribunal’s conclusions that the dismissal was fair and that the claim is therefore dismissed.