Mr F Mutombo-Mpania v Angard Staffing Solutions Ltd: 4100047/2017

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4100047/2017

Venue Glasgow

Hearing 23 November 2018

Between

Mr F Mutombo-MpaniaClaimant

Angard Staffing Solutions LtdRespondent

Before

Employment Judge W A Meiklejohn

Members

Mr I Ashraf

Mr W Muir

Mr Francis Mutombo-Mpania

Dr A Gibson (instructed by Solicitor) for claimant

Date 31 July 2019

JUDGMENT

The unanimous Judgment of the Employment Tribunal is that -(i) the Claimant’s application for a Preparation Time Order is refused,

(ii) the Claimant’s application for a Strike Out Order is refused, and

(iii) the Claimant’s application for a Deposit Order is refused.

REASONS

BACKGROUND

[1]This case came before us for a Preliminary Hearing in Glasgow on 23 November 2018. The Claimant appeared in person. Dr Gibson appeared for the Respondent. Ms V Javelaud acted as interpreter for the Claimant. We E.T. Z4 (WR) had a bundle of productions from the Claimant (provided after the Hearing as the original, sent to the Tribunal office, appears to have gone astray) supplemented by a number of additional productions tabled by the Claimant at the Hearing. We also had a bundle of documents from the Respondent.

[2]The issues to be determined at the Preliminary Hearing were as follows -(i) The Claimant’s application for a Preparation Time Order (“PT O”) made on 13 December 2017.

(ii) The Claimant’s applications to strike out the Respondent’s defence to the claim made on 29 May 2017 and 24 November 2017.

[3]In his first application for strike out submitted to the Tribunal on 29 May 2017 the Claimant included an alternative submission that, if the Tribunal decided not to strike out the Respondent’s response to his claims, it should make a Deposit Order in respect of each of those claims. Tribunal Rules - Preparation Time Order

[4]A Preparation Time Order (“PTO”) is defined in rule 75(2) of the Employment Tribunal (Constitution & Rules of Procedure) Regulations 2013 (the “Regulations") as follows - “A preparation time order is an order that a party (“the paying party") make a payment to another party (“the receiving party’) in respect of the receiving party’s preparation time while not legally represented. “Preparation time” means time spent by the receiving party (including by any employees or advisers) in working on the case, except for any time spent at any final hearing. ”

[5]The Regulations provide for when a PTO may be made in Rule 76 as follows "(1) A Tribunal may make ....a preparation time order, and shall consider whether to do so, where it considers that -(a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or

(b) any claim or response had no reasonable prospect of success. ..."

[6]The Regulations provide for the amount of a PTO in Rule 79 as follows - “(1) The Tribunal shall decide the number of hours in respect of which a preparation time order should be made, on the basis of -(a) Information provided by the receiving party on the time spent falling under rule 75(2) above; and

(b) the Tribunal's own assessment of what it considers to be a reasonable and proportionate amount of time to spend on such preparatory work, with reference to such matters as the complexity of the proceedings, the number of witnesses and documentation required. (2) The hourly rate is £33 and increases on 6 April each year by £1. (3) The amount of a preparation time order shall be the product of the number of hours assessed under paragraph (1) and the rate under paragraph (2)." In the year commencing 6 April 2016 the hourly rate was £36. In the year commencing 6 April 2017 the hourly rate was £37. In the year commencing 6 April 2018 the hourly rate was £38. Tribunal Rules - Strike Out

[7]Rule 37 provides as follows - “(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds -(a) that it is scandalous or vexatious or has no reasonable prospect of success;

(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;

(d) that it has not been actively pursued;

(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out). (2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. (3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in rule 21 above. M Tribunal Rules - Deposit Order

[8]Rule 39 provides as follows - “(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party’) to pay a deposit not exceeding £1000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. (3) The Tribunal’s reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order. (4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. Where a response is struck out, the consequences shall be as if no response had been presented, as set out in rule 21. (5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order -(a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and

(b) the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded. (6) If a deposit has been paid to a party under paragraph 5(b) and a costs or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order. ” Claimant’s position - Preparation Time Order

[9]The Claimant argued that a PTO should be made against the Respondent because they and their representative had acted dishonestly by submitting a falsified document to the Tribunal. The document in question was an email 5 dated 23 December 2016 which had formed part of the bundle of documents (at page 76) at an earlier Preliminary Hearing which took place on 24 April 201 7. In the version of this email produced at that Hearing the first sentence was missing. io 10. The Claimant included both versions of the said email in his bundle of documents - the correct version actually sent on 23 December 2016 at page 8 and the incorrect version with the first sentence omitted at page 9. The first two paragraphs of the correct version of the said email read as follows - 15 ‘7 have acknowledged the termination email from Ayse as she sent it once I agreed to it as due to you failing to follow reporting procedures. You will see from that original email from Ayse that she confirmed your contract of employment with Angard Staffing will be terminated due to failure 20 of reporting non attendance over three occasions. There was no mention of final date whereby you are no longer an employee of Angard Staffing as it takes one week for your P45 to be generated. Plus as per our conversation I was personally looking into the matter for you continue your employment with Angard once I investigated all options for you. "

[11]In his skeleton argument the Claimant also alleged that the Respondent had lied to the Tribunal by falsely denying receipt of an email sent to it by the Claimant on 11 November 2016 at 13.45. We understood this to be a reference to paragraph 9 of the Respondent’s grounds of resistance where 30 the Respondent stated - “The Respondent has no record of a letter the Claimant says he wrote to Sam Clawson on 11 November 2016 telling him he could not work permanent night shifts.” The Claimant provided a copy of his email to Mr Clawson dated 1 1 November 201 6 at page 1 0 of his bundle of documents. However, in his submissions to us the Claimant focussed on the alleged falsified document referred to in the preceding paragraph.

[12]The Claimant referred to paragraphs 19, 20 and 21 of the Judgment in the case of Nicolson Highlandwear Ltd v Nicolson

UKEATS/0058/09

. Paragraph 21 provides as follows - "....an Employment Tribunal can be expected to conclude that there has been unreasonableness on the part of a party where he/she is shown to have been dishonest in relation to his/her claim and then to exercise its discretion so as to make an award of expenses in favour of the other party....”

[13]The Claimant also referred to paragraph 51 of the Judgment in the Employment Tribunal case of Carrasco v Edinburgh Language Academy Limited (Case no S/41 01590/201 6) where the Tribunal stated - “If it had been proven that by defending the claim made against it the Respondent had in any way been dishonest then, following the decision of the EAT in the case of Nicolson Highlandwear Ltd v Nicolson, the Tribunal might have exercised its discretion so as to make an award of expenses in favour of the Claimant.”

[14]The Claimant submitted that the email of 23 December 201 6, in the form that was included ta page 76 in the bundle of documents for the Preliminary Hearing on 24 April 2017, was a false instrument within the meaning of the Forgery and Counterfeiting Act 1981 . He also submitted that recklessness or negligence was sufficient where a false document was used in a civil (as opposed to criminal) context.

[15]The Claimant referred to an email sent by the Respondent’s representative to the Employment Appeal Tribunal on 13 December 2017 which formed pages 23-25 of his bundle of documents. The Claimant submitted that this was an acknowledgement that a false document had been submitted to the Employment Tribunal in April 2017 and that this amounted to dishonesty and an attempt to pervert the course of justice.

[16]The Claimant referred to the case of Sud v London Borough of Hounslow

UKEAT/0156/14

, a case where the claimant had lied about her medical condition and falsified a document. The order of the Employment Tribunal in that case that the claimant should pay costs and that her claim should be struck out was upheld by the Employment Appeal Tribunal.

[17]The Claimant provided the Tribunal with a document detailing the 2000 hours which he claimed had been spent by him undertaking work by way of preparation between December 2016 and November 2018. Claimant’s position - Strike out

[18]The Claimant made submissions firstly with reference to Rule 37(1 )(b) and (e). He argued that the Respondent had acted unreasonably in defending the claim and that it was not possible to have a fair trial. To produce a false document to the Tribunal was dishonest and should be considered as unreasonable behaviour. The Claimant submitted that falsification eroded public respect for the judicial system. He accused Dr Gibson of acting dishonestly.

[19]The Claimant then made submissions with reference to Rule 37(1 )(a) and argued that the Respondent’s contention at paragraphs 14, 17 and 20 of their grounds of resistance that “The Claimant has not been dismissed from his employment with the Respondent” had no reasonable prospect of success. The email of 23 December 2016 in its correct form made this clear. The author of the email had given evidence at the earlier Preliminary Hearing and had acknowledged that the Claimant’s contract had been terminated on 1 December 2016. The Respondent’s solicitor’s email to the Employment Appeal Tribunal of 13 December 2017 also acknowledged this. Claimant’s position - Deposit Orders

[20]The Claimant submitted that if we were not minded to grant his applications for strike out under Rule 37, we should make a Deposit Order under Rule 39 against the Respondent in respect of their responses to each of the claims. He suggested that the amount of the Deposit Orders should be the maximum of £1000 in respect of each response. Respondent’s position 21 . Dr Gibson noted that the Claimant’s applications for a PTO and for strike out under Rule 37(1 )(b) and (e) relied on allegations of scandalous and unreasonable behaviour by the Respondent and their solicitor. Identical allegations had been made by the Claimant to the Scottish Legal Complaints Commission (“SLCC") and had been found to be “totally without merit”. Dr Gibson referred us to the letter to his firm from the SLCC dated 21 August 2018 and the determination within the Eligibility Decision Report which accompanied that letter.

[22]The Claimant had lodged an appeal with the Employment Appeal Tribunal against the decision made following the Preliminary Hearing on 24 April 2017 that he was not a disabled person within the meaning of the Equality Act 2010. Prior to a Rule 3(10) hearing the Claimant had sought to amend his grounds of appeal to include an allegation that the Respondent had acted fraudulently with regard to the version of the email of 23 December 2016 lodged with the Employment Tribunal - the same allegation as he was making in his current applications.

[23]At the Rule 3(10) hearing the Claimant had been represented by Mr Colin Edward, Advocate, who had made an application to withdraw the amendment to the grounds of appeal. This had been granted by the Employment Appeal Tribunal. Dr Gibson invited us to conclude that Mr Edward had not been prepared to pursue an appeal based on the allegation in the amendment.

[24]Dr Gibson submitted that the Claimant’s allegations had no basis in truth. The Claimant viewed the Tribunal as a way to make money. He was a vexatious litigant who had made unfounded allegations of bias against those who had ruled against him in both the Employment Tribunal and the Employment Appeal Tribunal.

[25]Referring to the Claimant’s document which provided the detail of his PTO application, Dr Gibson said that this equated to 48 weeks at 41 hours per week of preparation time including 18 weeks looking at three pieces of legislation. He alleged that the Claimant was driven by greed and dishonesty.

[26]Dr Gibson argued that even if the Claimant was correct in his allegation that the Respondent or their representative had acted fraudulently, there had been no benefit to the Respondent. The Preliminary Hearing on 24 April 2017 had related to disability status. The email of 23 December 2016 was not relevant to that issue. It had been included in the bundle simply to show the timeline of events. It made no reference to disability.

[27]The Respondent had accepted their error in providing Dr Gibson with the version of the email of 23 December 2016 with one line deleted. Dr Gibson had lodged the document in the form it was provided to him and he described it as “grossly insulting” to be accused of fraud. In any event, the sentence in the email following the one which had been omitted acknowledged that there had been a previous email terminating the Claimant’s contract and so the omitted sentence made no difference.

[28]Dr Gibson challenged the Claimant’s argument that the Respondent’s whole defence to the claims was that there had been no dismissal. He referred to paragraphs 16, 19 and 22 of the grounds of resistance where the Respondent’s alternative defence to the claims was set out. 4100047/2017 Page 1 1

[29]Dr Gibson referred to the fact that the Respondent had sent a P45 to the Claimant containing a termination date of 2 May 2017. He argued that this was not inconsistent with the Respondent’s position that as at 10 February 2017, when the grounds of resistance were submitted to the Tribunal, the Claimant had not been dismissed. He acknowledged that the matter was disputed but that would require to be decided at a merits Hearing in due course. Discussion and Disposal

[30]We reminded ourselves of the terms of Rule 76 (relating to a PTO) and Rule

[37](relating to strike out). The language of these is similar. Rule 76(1 ) refers to a party or their representative acting "vexatiously” or “otherwise unreasonably” and to the claim or response having “no reasonable prospect of success”. Rule 37(1 )(a) refers to the claim or response being “scandalous or vexatious" or having “no reasonable prospect of success”. Rule 37(1 )(b) refers to the manner in which the proceedings have been conducted being “scandalous, unreasonable or vexatious”. Rule 37(1 )(e) refers to it no longer being possible to have a “fair hearing”. 31 . The key point which the Claimant was arguing was that the Respondent and/or their solicitor had acted dishonestly by producing a false document to the Tribunal for the Preliminary Hearing on 24 April 2017. To do so had to be regarded as scandalous, unreasonable and vexatious. If the reason for the false document was recklessness or negligence that was sufficient to amount to fraud. 32. The Respondent’s answer to this was the same as had been provided by Dr Gibson’s firm to the SLCC. Quoting from the Eligibility Decision Report - “2.5 Mr Mutombo-Mpania. ...has stated that Mr Gibson presented documents to the Employment Tribunal during the preliminary hearing, on 24 April 2017, and one of the documents was not genuine as it had been altered. Mr Mutombo-Mpania advised that the document which was altered was an email which was sent to him, by a Team Manager, on 23 December 2016 at 16.03. Mr Mutombo-Mpania believes that the original (unaltered) copy of this email was important evidence as it showed that he was dismissed by his employer at the injunction of the Team Manager who sent the email. The email was altered as the first line of the body of the text was removed prior to it being presented to the Employment Tribunal. Mr Mutombo-Mpania has advised that Mr Gibson presented the email as a genuine copy of the original when he submitted it to the Employment Tribunal. ” 2.6 The firm’s position is. ... They have advised that Mr Gibson was provided with a copy of the email which was sent to Mr Mutombo-Mpania, dated 23 December 2016, by his clients and he subsequently lodged it with the Employment Tribunal. In his email to the Employment Appeal Tribunal, dated 13 December 2017, Mr Gibson stated that he denied the accusations made by Mr Mutombo-Mpania. His position is that the firm lodged a copy of the email as received and he was unaware that there was a further line which had not been included in the email he was provided with until Mr Mutombo-Mpania provided the firm with a copy on 24 November 2017. 2. 7 The firm accept that the email which was sent to Mr Mutombo-Mpania included a line which was not present in the copy which was lodged with the Employment Tribunal; however, this was an error on their client’s part and there was no malicious intent. Their client, following their own internal investigation, informed the firm that they believed this had occurred when they had coordinated all relevant correspondence between Mr Mutombo-Mpania and the Team Manager who sent the email (on 23 December 2016). Their understanding is that the member of staff who was responsible for the coordination of the correspondence had cut and pasted the content of some of the emails into a timeline document, and highlighted certain sentences for internal discussions about the claim. The firm were advised by their client that the missing line was one of the highlighted sections and their assumption is that instead of pressing deselect to remove the highlight they have mistakenly selected delete. The document was then sent to the firm without the first line of the body of the text. 2.8 The firm advised that the witness who appeared on behalf of their client (not the member of staff who coordinated the documentation) also stated that their view is that there was no obvious benefit to Mr Mutombo-Mpania’s employer caused by the removal of the line of text. 2.9 Mr Mutombo-Mpania provided the SLCC with a copy of the original email he received from the Team Manager, dated 23 December 2016, and a copy of the email which was lodged with the Employment Tribunal. The original letter included a sentence which stated "/ have acknowledged the termination email from Ms X as she sent it once I agreed to it as due to you failing to follow reporting procedures". The following line in the document confirms that Ms X confirmed Mr Mutombo-Mpania’s contract of employment was terminated due to failure to report non-attendance over three occasions; however, it did not confirm that the Team Manager had agreed to the termination email which was stated in the original email. ... 2.11 If Mr Gibson presented the Employment Tribunal with documentation which was altered and it should have identified this then it may be considered he has not acted honestly. 2.12 The SLCC considers that the firm’s letter to the Employment Tribunal, dated 13 December 2017, provided a reasonable explanation of what happened and due to the relationship of mutual trust and confidence which is present between a solicitor and their client Mr Gibson would not have had any reason to doubt that the copy of the Team Manager’s email to Mr Mutombo- Mpania, which they had received from their client, was inaccurate. The SLCC also note that the firm’s clients have accepted that this was their error. ” 33. While we agreed with Dr Gibson that the email of 23 December 2016 was not relevant to the issue with which the Employment Tribunal was dealing at the Preliminary Hearing on 27 April 2017, it would nevertheless be a serious matter if a false document had been lodged. However, there was in our view a material difference between the Respondent(a) making a mistake in providing a copy of the email of 23 December 2016 which was incomplete - as it was accepted they had done - and

(b) attempting to mislead the Tribunal. 34. We found no basis upon which to come to a different decision about Dr Gibson’s conduct in this matter from that reached by the SLCC. Dr Gibson did not act dishonestly. There was no substance whatever in the Claimant’s assertion that he had done so. He lodged with the Tribunal a document provided by his client having no reason to doubt that it was genuine. He did nothing which could conceivably be described as scandalous, unreasonable or vexatious. 35. That was not the end of the matter because we also had to consider the conduct of the Respondent. It was unfortunate that the version of the email of 23 December 2016 provided by the Respondent to Dr Gibson was incomplete. There was some force in the Claimant’s argument that, if the Respondent had been dishonest in any way, that would be unreasonable conduct in the context of both an application for a PTC and an application to strike out the response. 36. However, we did not believe that the Respondent had been dishonest in providing Dr Gibson with an incomplete version of the email of 23 December 2016. The explanation provided by Dr Gibson’s firm to the SLCC had been found by them to be reasonable and we came to the same view. That explanation was that a mistake had been made. It was not recklessness or negligence. 37. Recklessness involves a state of mind where a person deliberately and unjustifiably pursues a course of action while consciously disregarding any risks flowing from that action. Negligence involves breach of a duty of care which results in loss or injury to the person to whom that duty is owed; it involves doing something which an ordinary, reasonable and prudent person would not do. The action of the employee of the Respondent who was responsible for the omission of a sentence from the version of the email of 23 December 2016 sent to Dr Gibson was neither reckless nor negligent. We found that the Respondent had not acted in a way which could be described as scandalous, unreasonable or vexatious.

[38]It could not in our view be said that the Respondent’s grounds of resistance had no reasonable prospects of success. Dr Gibson was correct to say that even if the Respondent’s primary position that the Claimant had not been dismissed (at the time when the response was submitted to the Tribunal) did not succeed, they had an alternative position as set out in paragraphs 16, 19 and 22 of their grounds of resistance. We found nothing in the submissions which the Claimant made to us to indicate that a fair hearing would not be possible.

[39]Accordingly we decided that the Claimant’s applications for a PTO and to strike out the Respondent’s response to his claims should be refused.

[40]Finally we dealt with the Claimant’s application for Deposit Order. We considered whether any specific allegation or argument advanced by the Respondent could be said to have little reasonable prospect of success. We considered that the question of whether or not the Claimant had been dismissed from his employment at the relevant time could only be decided after evidence has been led at a Final Hearing. Similarly, if it is found that the Claimant was dismissed at the relevant time, the Respondent’s alternative argument (that his dismissal was due to his persistent failure to attend for shifts he had accepted without notifying the Respondent that he was not fit to attend) could only be decided after evidence has been led at a Final Hearing. 41 . It could not in our view be said that the allegations and arguments set out by the Respondent in their grounds of resistance had little reasonable prospect of success. We therefore decided that it would not be appropriate to make a Deposit Order under Rule 39 and the Claimant’s application that we should 5 do so is refused. Employment Judge: W Meiklejohn Date of Judgment: 20 December 2018 Entered in register: 20 December 2018 and copied to parties EMPLOYMENT TRIBUNALS (SCOTLAND) Case Number: 4100047/2017 Held in Glasgow on 8, 9 & 10 April 2019 & 26 June 2019 Employment Judge Frances Eccles Tribunal Member Peter O’Hagan Claimant In Person Mr F Mutombo-Mpania Respondent Represented by Dr A Gibson Solicitor Angard Staffing Solutions Ltd

BACKGROUND

[44]The claimant provided the Tribunal with a Schedule of Loss to June 2019. The claimant submitted that he was entitled to a basic award of £676.80; compensation of £781 ,140 (£624,912 with a statutory uplift of 25%); injury to feelings of £30,000; £25,000 for breach of contract and £564.65 (£451 .72 with a statutory uplift of 25%) for wrongful dismissal. RESPONDENT’S SUBMISSIONS

[45]Dr Gibson for the respondent made oral submissions. What follows is a summary of the above. Dr Gibson submitted that the Tribunal must begin by determining whether the claimant was in fact dismissed on 1 5 December 201 6 in terms of Section 95 of ERA. Only if the Tribunal finds that the claimant was dismissed, submitted Dr Gibson, must it ask itself whether the respondent was liable to pay the claimant one week’s notice.

[46]Dr Gibson submitted that the respondent does not dispute that the claimant was sent an e-mail on 15 December 2016 (C15/59) to inform him that Royal Mail had contacted them and no longer wished him to be offered engagements. Dr Gibson rejected any suggestion by the claimant therefore that he did not have evidence of the manner in which the respondent was informed by Royal Mail of their concerns about his reliability. The respondent also accepts, submitted Dr Gibson, that the claimant was sent Arran Gautry’s email of 23 December 2016 (C16/60). Dr Gibson submitted that the claimant was not dismissed on 1 5 December 2016. He referred to the claimant having been paid statutory sick pay by the respondent on the days he was unable to work and which he accepted for the period 19 December 2016 to 3 January 201 7. The claimant submitted sick lines submitted Dr Gibson in order to claim statutory sick pay and was advised on several occasions that he would “get another opportunity” . The contract of employment between the parties submitted Dr Gibson was terminated on 2 May 2017 following a request by S/41 00047/201 7 Page 27 the claimant for his P45. There were numerous texts, submitted Dr Gibson, sent to the claimant offering him placements in other Royal Mail sites in the West of Scotland. The e-mail dated 23 December 201 6 (C60) from Arran Gautry makes it clear that notwithstanding the e-mail of 15 December 2016 5 (C59) the claimant would continue to be offered shifts and remain in the respondent's employment. Dr Gibson submitted that these circumstances could not amount to termination of employment on 15 December 2016 in terms of section 95 of ERA. The claimant continued to receive remuneration by way of statutory sick pay for engagements he did not fulfil. Why if the io employment relationship had ended, submitted Dr Gibson, would the claimant submit a sick note covering him to mid-January 2017? These are the claimant’s own actions which support the respondent’s position that the contract of employment remained in place, submitted Dr Gibson; the claimant cannot have it both ways. 15 47. In any event submitted Dr Gibson, even if the claimant was dismissed on December 201 6 the respondent does not accept they were required to give him notice. The claimant requested his P45 on 27 April 2017 and the respondent proceeded on the basis that he was dismissed on 2 May 2017. The claimant effectively resigned on 27 April 201 7, submitted Dr Gibson. The 20 claimant was on a zero hours contract. He was not therefore entitled to one week’s pay, submitted Dr Gibson. There was no evidence of him having been offered work that he could have accepted during that period. It was unclear, submitted Dr Gibson, the basis on which the claimant is claiming notice pay for the week following 1 5 December 201 6 given that he was being paid, albeit 25 statutory sick pay.

[48]As regards the contract claim, Dr Gibson noted that the respondent refers to two express terms in his contract of employment namely clause 25.3 and 25.5 which are to be read in conjunction with 25.1 and 25.3.1. It is the claimant’s position in his ET1, submitted Dr Gibson, that by dismissing him with 30 immediate effect for not attending work due to ill health, the claimant has exercised a contractual right in terms of which the respondent has breached the above clause. Dr Gibson submitted that in fact clause 25.3.1 is a S/41 00047/201 7 Page 28 statement of what is expected of the claimant during an engagement. The argument that it would be wrong to dismiss the claimant with immediate effect because he is prevented from attending work due to ill health is without merit, submitted Dr Gibson. Firstly, the claimant was not dismissed and secondly, nothing was expected of the claimant while on an engagement as he did not attend work. Clause 25.3.1 places an obligation on the claimant, submitted Dr Gibson. The clause does not create a contractual right. It is an obligation on the claimant during an engagement. The obligation to attend work is effectively removed if he is unwell. The situation here, submitted Dr Gibson, is that the claimant did not inform anyone that he was unable to attend work.

[49]Royal Mail asked that the claimant should not be allocated further shifts because he failed to attend work, submitted Dr Gibson. The claimant’s failure to notify them of his inability to attend work caused the respondent concerns, submitted Dr Gibson. They were denied the opportunity to get a replacement. There are reputation issues for the respondent. Had the claimant followed the notification process, submitted Dr Gibson, Royal Mail may not have been as worried by the claimant's failure to attend shifts. If the claimant was dismissed, submitted Dr Gibson, it was not because he did not attend work due to ill health. If he was dismissed, which was denied, it was because he did not follow the correct notification procedure resulting in Royal Mail no longer wanting him to be allocated shifts at their Glasgow Mail Centre. The claimant, submitted Dr Gibson, does not appear to deny this. The claimant refers to his email from November 2016 submitted Dr Gibson (C21/65). These do not meet the notification procedure, submitted Dr Gibson. The claimant accepted a block of night shifts. Had he not agreed to accept them, they would not have been allocated to him, submitted Dr Gibson.

[50]Regarding Clause 25.5 of the contract of employment, it is the claimant’s position submitted Dr Gibson that the respondent was in breach of contract by dismissing him without following their disciplinary procedure. This claim is also without merit submitted Dr Gibson. The clause states that breach of the contract "may lead to disciplinary action”. There is a discretion submitted Dr Gibson. To claim the employer is in breach of contract in these circumstances S/41 00047/201 7 Page 29 submitted Dr Gibson is misconceived. The respondent accepts they had concerns when Royal Mail told them that the claimant had not complied with the absence notification procedure. The respondent’s response to this however was to give the claimant another chance as recorded in their email 5 of 23 December 2016 (R31/196), not to dismiss him. 51 . As regards the claim of automatically unfair dismissal for a health and safety reason, Dr Gibson submitted that the claimant did not attend work due to ill health. It is the respondent’s position that if he was dismissed it was because he did not follow the notification procedure. In terms of the claim under section io 100(1)(e) of ERA, the respondent fails, submitted Dr Gibson to understand how on any view not attending work due to ill health could ever amount to circumstances of danger which the employee was reasonably entitled to believe would be serious or imminent. Where the claimant’s case so obviously fails, submitted Dr Gibson, is that there have to be circumstances 15 of danger which are serious and imminent. This cannot be the case for the claimant’, submitted Dr Gibson, as he was not in the workplace. The claimant could not have reasonably believed that to attend work would place him in a state of danger. The right not to be dismissed for health and safety reasons is there to protect people who act in circumstances of danger which are 20 serious and imminent, submitted Dr Gibson. The claimant, submitted Dr Gibson, was at home unable to work due to high blood pressure. This situation, submitted Dr Gibson, does not meet the requirements of section 100(1)(e) of ERA.

[52]In relation to section 104(1)(b) of ERA Dr Gibson submitted that he was 25 unable to identify any evidence from the claimant of having alleged the respondent infringed a statutory right. In any event, submitted Dr Gibson, it is clear that the obligation must arise at work. The claimant was not at work, submitted Dr Gibson. He was off sick. There was no evidence, submitted Dr Gibson, of the claimant being denied the right to adequate sick leave 30 entitlement, which in any event is not a statutory right submitted Dr Gibson. . If it is a statutory right which the claimant sought to enforce, submitted Dr Gibson, there was no evidence of the claimant alleging an infringement. S/41 00047/201 7 Page 30

[53]Similar observations applied to the claim under section 7 of HSE submitted Dr Gibson. Again, this is a statutory obligation placed on an employer not a statutory right of an employee. It only applies when the employee is at work. The claimant was not at work. If the claimant had been forced to work while sick, submitted Dr Gibson, this could have amounted to a health and safety issue. There was no evidence however that the claimant was attending work in such circumstances, submitted Dr Gibson.

[54]As regards the race discrimination claim, Dr Gibson submitted there is simply no evidence from the claimant to suggest that anything done by the respondent was because of the claimant’s race. The claimant, submitted Dr Gibson, has led no evidence to support this claim. The burden of proof is on the claimant submitted Dr Gibson to set out a prima facie case. Taking the claimant’s claim at its highest, submitted Dr Gibson, if there is an absence of any explanation, the claimant does not state that Ayse McKenna, Arran Gautry or anyone at Royal Mail had any discriminatory intention towards him. There is no evidence, submitted Dr Gibson, of inappropriate action submitted Dr Gibson. The absence of an explanation does not overcome the lack of a prima facie case, submitted Dr Gibson. The respondent has in any event set out clearly how they treated the claimant in the way they did, submitted Dr Gibson; it had nothing to do with race.

[55]Dr Gibson challenged the accuracy of the figures in the schedule of loss provided by the claimant. He described the sums claimed by the claimant to be grossly inflated and evidence of the claimant’s approach to the proceedings. There was no evidence of mitigation of loss submitted Dr Gibson.

ISSUES

[56]The issues before the Tribunal were as follows: 1. Was the claimant dismissed on 1 5 December 201 6? S/41 00047/201 7 Page 31 2. If so, was the reason, or if more than one the principal reason, for the claimant’s dismissal;(i) because of his race;

(ii) for a health and safety reason or

(iii) because he sought to enforce a statutory right 3. If the claimant was dismissed, was the respondent in breach of contract by failing to follow their disciplinary procedure and/or by not giving the claimant notice? io 4. If the claimant was dismissed, did the respondent act less favourably towards the claimant because of his race by dismissing him; failing to follow their disciplinary procedure and/or by not giving him notice? 5. What remedy, if appropriate, should be awarded to the claimant? NOTES ON EVIDENCE 15 57. Central to this case was whether the claimant’s contract of employment with the respondent terminated on 1 5 December 201 6. According to the claimant, the principal reason for his dismissal was unlawful either because it related to his race; health and safety or because he sought to enforce a statutory right The claimant gave evidence that he had been informed by Ayse McKenna on 20 15 December 2015 that his contract had been terminated. The Tribunal accepted the claimant’s evidence in this respect. It was consistent with Ayse McKenna’s subsequent e mail to him later that day in which she apologised "about having to remove you from the Glasgow tracker as we need someone who is going to be reliable at this busy time”. It was also consistent with the e 25 mail from Arran Gautry (R31/1 96) in which he confirmed; 7 have acknowledged the termination e-mail from Ayse as she sent it once I agreed to it as due to you failing to follow reporting procedures” and S/41 00047/201 7 Page 32 “You will see from that original e-mail from Ayse that she confirmed your contract of employment with Angard Staffing will be terminated due to failure of reporting non-attendance over three occasions". The Tribunal did not hear from either Ayse McKenna or Arran Gautry. The respondent did not dispute that they wrote to the claimant in the above terms.

[58]The respondent relied on the claimant’s subsequent conduct to show that the contract of employment had not been terminated. In particular they relied on the claimant applying for and receiving statutory sick pay after 15 December 2016. The Tribunal was not however persuaded that the claimant’s conduct was inconsistent with him having been dismissed on 15 December 2016. On 16 December 2016 he applied for statutory sick pay for absences on 4, and 14 December 2016, all dates that preceded the date of dismissal. The subsequent claims for statutory sick pay were submitted after Sam Slatter had contacted the claimant to confirm that he was “happy to give you another opportunity". The respondent submitted that this was evidence of continuous employment. In all the circumstances however, the Tribunal was persuaded that the claimant was entitled to conclude that his employment had been terminated on 15 December 2016. While the respondent may have paid the claimant statutory sick pay and offered him further engagements following Sam Slatter’s intervention on 23 December 2016, the Tribunal was not persuaded that this amounted to continuity of the claimant’s contract of employment (C6) following its termination by Ayse McKenna on 15 December 2016.

[59]The claimant challenged the respondent’s evidence that Royal Mail requested that he should no longer be offered work at their Glasgow Mail Centre. The claimant had for some time sought evidence from the respondent of an e-mail they claimed to have received from the Royal Mail in which they received the above request. Neither the respondent or Royal Mail were able to produce the e mail in question. Royal Mail failed to comply with an Order issued by the Tribunal on 9 April 2019 for disclosure of the e mail. The claimant relied on this to challenge the respondent’s evidence about the S/41 00047/201 7 Page 33 reason for his dismissal. The Tribunal heard from Lorna Walton who gave evidence about the procedure that Royal Mail would follow if they sought to contact the respondent about concerns with flexible workers. Lorna Walton’s evidence was clear and persuasive that the procedure followed by Royal Mail was to send an e-mail to the respondent requesting that a flexible worker was no longer assigned to their Glasgow Mail Centre. Lorna Walton was able to identify the Royal Mail employee who would probably have sent an e mail in the claimant’s case when concerns were raised about his failure to attend shifts. The claimant did not challenge her evidence in this respect. On balance the Tribunal was satisfied that the respondent had been contacted by Royal Mail with a request that because of his failure to attend work the claimant was offered no further engagements at their Glasgow Mail Centre. It was consistent with the e mail from Ayse McKenna informing the claimant that his failure to attend work had "now resulted into me having to remove you from the Glasgow call list at the request of the Royal mail manager”. It was consistent with the claimant’s own e mail about the call from Ayse McKenna of 1 5 December "letting me know that I am removed from the Glasgow Mail Centre list and I cannot get any more work, that because I did not attend work last night shift”.

[60]The claimant submitted that the Tribunal should draw an adverse inference from failure on the part of Royal Mail and the respondent to produce a copy of the e-mail in which Royal Mail were said to have requested that he was no longer offered work at the Glasgow Mail Centre. For the reasons given above however, the Tribunal was not persuaded from the evidence before it that the respondent had not received a request from Royal Mail to no longer offer the claimant engagements on account of his failure to attend work. Lorna Walton was clear in her evidence that this was the situation in the claimant’s case. While the e-mail that was said to have contained the request could not be produced, the Tribunal was unable to conclude that in all the circumstances no such request had been made by Royal Mail. Similarly, the Tribunal was not persuaded that it should draw an adverse inference from the failure on S/41 00047/201 7 Page 34 the part of the respondent to produce the e mail in question when considering the reason for the claimant’s dismissal. 61 . Concerns were also raised by the claimant about the respondent’s disclosure at an earlier stage in the proceedings of Arran Gautry’s email of 23 December 2016 (C17/61) from which the opening sentence had been deleted. The missing sentence read as follows; / have acknowledged the termination e-mail from Ayse as she sent it once I agreed to it as due to you failing to follow reporting procedures. The claimant submitted that the respondent had deliberately deleted the above sentence to avoid any suggestion that his contract had been terminated. The claimant called Chris Moylan to give evidence. Chris Moylan accepted responsibility for deleting the sentence. He explained what he thought had happened - he accidently deleted the sentence when collating and highlighting passages in e mails between the respondent and the claimant. He was honest about the confusion on his part about how this had happened, much of which was due to the passage of time. The claimant submitted that the Tribunal should draw an adverse inference from the explanation provided by the respondent in relation to this matter. While the explanation provided for deletion of the sentence was somewhat convoluted, on balance the Tribunal accepted Chris Moylan’s evidence that he had not deleted the sentence deliberately or with any intention to mislead either the claimant or the Tribunal. The e mail was sent to the claimant. It was in his possession. The version of the e mail originally disclosed by the respondent (C1 7/61) contained the sentence; “You will see from that original e-mail from Ayse that she confirmed your contract of employment with Angard Staffing will be terminated due to failure of reporting non-attendance over three occasions". Had Chris Moylan sought to falsify the e mail to hide the fact that the claimant was dismissed, as submitted by the claimant, it seems improbable that he would not have also deleted the above sentence which refers to Ayse McKenna’s e mail and identifies the respondent’s reason for terminating the contract of employment. S/41 00047/201 7 Page 35

[62]The claimant also submitted that the Tribunal should reject the respondent’s evidence given their failure to acknowledge receipt of his e mail of 11 November 2016 (C19/63) in their original response to his claim. In the e mail the claimant raised concerns about how his health condition did not allow him to work regular night shifts. It was not in dispute that the e mail did not amount to notification from the claimant about his inability to work specific night shifts. Sam Clawson responded positively to the extent that for a limited period the claimant was offered late shifts. The Tribunal was not persuaded that it should draw an adverse inference from the respondent stating in its response to the claim that it had no record of the e mail of 11 November 2016 (C19/63) or of the claimant reporting anything that might amount to a health and safety issue. The respondent subsequently accepted that the e mail had been sent and received. The respondent’s failure to acknowledge receipt of the claimant’s e mail of 11 or for that matter 17 November 2016 (C19/63 &C21/65) in their response to the claim, did not lead the Tribunal to conclude that the claimant’s dismissal in any way related to his colour as opposed to his failure to attend work because of ill health. The evidence before the Tribunal did not support such a finding.

[63]Sam Slatter was cross-examined by the claimant at length. The Tribunal found him to be a credible witness with a detailed understanding of the respondent’s procedures. He was also aware of the respondent having been contacted by Royal Mail with concerns that the claimant had failed to attend work as a result of which they did not want him to be offered any further engagements at their Glasgow Mail Centre. The Tribunal accepted his evidence. The claimant attached much weight to the fact that Sam Slatter had stated at an earlier hearing before the Tribunal on 24 April 2018 that he was dismissed on 1 5 December 201 6. Sam Slatter could not recall giving this evidence but for the above reasons the Tribunal was in any event persuaded that the claimant’s contract had been terminated on 15 December 2016. The respondent sought to show that the claimant’s contract of employment (C6) had continued after 15 December 2016. While the Tribunal did not accept S/41 00047/201 7 Page 36 their position, it did not conclude that this was sufficient to draw an adverse inference of discrimination. In his correspondence with the claimant (R31/195 &196), Arran Gautry was responding to concerns over treatment he claimed to have received relating to his health. He was responding to demands from the claimant for notice pay. The Tribunal did not find that in these circumstances his response to give the claimant “another opportunity” and continue to offer him engagements in any way related to the claimant’s colour. DISCUSSION & DELIBERATIONS DISMISSAL

[64]The Tribunal began by considering whether the claimant was dismissed by the respondent on 15 December 2016. This was less favourable treatment about which the claimant complained in relation to his claim of race discrimination and the basis in which he sought damages for breach of contract. In terms of section 95(1) (a) of the Employment Rights Act 1996 (“ERA”) an employee is dismissed by his employer if the contract under which he was employed was terminated by the employer (whether with or without notice). It was not in dispute that on 15 December 2016 the claimant was informed by Ayse Wilson that he would not be offered any further work at Royal Mail’s Glasgow Mail Centre. This was followed by an e mail (C59) in which Ayse Wilson informed the claimant that he had been "removed from the Glasgow tracked as the respondent needed “someone who is going to be reliable at this busy time". Arran Gautry subsequently confirmed the position in his email to the claimant of 23 December 2016 (R31/196) in which he referred to the “termination email" from Ayse McKenna and advised the claimant that “she “confirmed your contract of employment with Angard Staffing will be terminated due to failure of reporting non-attendance over three occasions”

[65]The Tribunal was satisfied that in all the circumstances the claimant was entitled to conclude that his contract of employment had been terminated on 15 December 2016. It was why he contacted Sam Clawson a few hours after S/41 00047/201 7 Page 37 his call with Ayse McKenna (C13/58) requesting his “intervention”. The Tribunal was not persuaded that because the claimant subsequently requested and received statutory sick pay and did not request his P45 until some months later that his contract of employment (C6) was not terminated on 15 December 2016. DISMISSAL - RACE DISCRIMINATION

[66]The claimant advanced a number of alternative reasons for his dismissal. The Tribunal began by considering whether the reason for the claimant’s dismissal was because of his colour. In terms of section 13(1) of the Equality Act 2010 (EA 2010); “a person(a) (A) discriminates against another

[67]It is the claimant’s position that by dismissing him the respondent treated him less favourably than they would have treated an employee who is white. In terms of Section 23(1) of EA 2010, for comparison purposes there must be “no material difference between the circumstances relating to each case". The claimant identified Sam Slatter as his comparator. Sam Slatter is white and has not been dismissed by the respondent. Sam Slatter however is not a flexible employee. He is a manager. There was no evidence that he had failed to attend a shift with Royal Mail without giving the respondent notice. There was no evidence that Royal Mail had requested that he was not offered any further work at their Glasgow Mail Centre. In these circumstances the Tribunal was not persuaded that Sam Slatter was an appropriate comparator. His circumstances and those of the claimant are materially different. In any event, the Tribunal was satisfied from the evidence before it that on balance a flexible employee who is white would have been treated in the same way as the claimant had they failed to attend shifts with Royal Mail without giving notice and as a result of which Royal Mail had requested that they were not offered any further work. The Tribunal was not persuaded that in all the circumstances S/41 00047/201 7 Page 38 the claimant’s dismissal amounted to less favourable treatment within the meaning of section 13(1) of EA 2010. There was no evidence before the Tribunal to show that a hypothetical comparator would have been treated differently by the respondent. In all the circumstances the Tribunal was not persuaded that the claimant’s dismissal was less favourable treatment because of his race. DISMISSAL - AUTOMATICALLY UNFAIR

[68]The Tribunal went on to consider the alternative reasons for dismissal advanced by the claimant. The claimant claimed that he was automatically unfairly dismissed in terms of section 1 00(1 )(e) of ERA. Section 100(1)(e) of ERA provides that an employee shall be regarded as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that “in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from that danger". The claimant identified the circumstances of danger which he reasonably believed to be serious and imminent as having to work night shifts given the adverse effect such work had on his health condition of essential hypertension.

[69]The Tribunal was not persuaded from the evidence before it that there were circumstances of danger which the claimant could reasonably have believed were serious and imminent The claimant had concerns that working night shifts would adversely affect his health. He was not obliged to accept night shifts or attend work if unable to do so due to ill health. He was however obliged to notify the respondent “as soon as possible" that he was unable to attend work. It was his failure to give notice of his inability to attend work on 30 November and 4, 12 & 14 December 2016 that resulted in his dismissal. While the claimant had requested that he be returned to late shifts, there was no evidence that either Royal Mail or the respondent would have insisted that the claimant complete a night shift on any of the above dates had he notified them in advance that he was too unwell to attend work. The Tribunal was S/41 00047/201 7 Page 39 unable to conclude in these circumstances that the claimant could reasonably have believed that he was in a situation of serious and imminent danger. In any event, the Tribunal was not persuaded that the appropriate step for the claimant to have taken, if he believed that attending work would place him in 5 serious and imminent danger, was to fail to attend work without giving notice. The appropriate step was to give the respondent notice of his inability to attend work. There was no evidence of the claimant being taken suddenly unwell. It was the claimant’s evidence that he has had essential hypertension for some time. He had the condition when he accepted the night shifts. There io was no persuasive evidence before the Tribunal as to why the claimant was unable to take the step of notifying the respondent in advance that he was unable to attend the specific night shifts he had accepted and which he failed to attend. In all of the circumstances, the Tribunal was not persuaded that the reason for the claimant’s dismissal was automatically unfairly dismissed in 15 terms of section 100(1)(e) of ERA.

[70]The claimant also claimed that he was automatically unfairly dismissed by the respondent for asserting a statutory right under Section 104 of ERA. In terms of Section 1 04(1)(b) of ERA, an employee’s dismissal is automatically unfair 20 if the reason or principal reason for the dismissal is that the employee alleged that the employer had infringed a relevant statutory right. The claim to the right must have been made in good faith in terms of section 104(2) of ERA. The employee must make it reasonably clear to the employer what right he claims is being infringed although in terms of section 104(3) of ERA there is 25 no requirement to actually specify the right. Section 104 of ERA however relates to relevant statutory rights. These are identified in section 104(4)(a) of ERA as "any right conferred by (ERA) for which the remedy for its infringement is by way of a complaint or reference to an employment Tribunal". Section 104(4)(b) to ( e) of ERA identifies relevant statutory rights in various other acts 30 and statutory regulations. The claimant based his claim under section 104 of ERA on having asserted an infringement by the respondent of the “natural and statutory right” to "time off work due to ill health condition or taking "statutory sick /eave””. He claimed to have asserted an infringement of the S/41 00047/2017 Page 40 above right by informing the respondent that his health condition prevented him from regularly working on night shifts and requesting that he was moved back to late shifts. 71 . The Tribunal was not persuaded that the claim of unfair dismissal for asserting a statutory right was well-founded. Firstly, the Tribunal was not persuaded that the right relied upon by the claimant amounted to a relevant statutory right for the purposes of a claim under section 1 04 of ERA. The claimant described the right to take sick leave as a "universal natural right and implied statutory right'. He did not seek to show that it is one of the statutory rights contained in Section 104(4)(a) to (e) of ERA. The Tribunal had regard to Part VI of ERA which is concerned with statutory rights to time off work. The Tribunal could not find a right in Part VI of ERA to “time off work due to ill health” or “statutory sick leave”. Similarly, the Tribunal was unable to identify such a right in the Working Time Regulations 1 998 or the Health & Safety Act 1974. The Tribunal was therefore unable to find that the claimant had alleged that the respondent had infringed a relevant statutory right.

[72]If the Tribunal is wrong about this and the right to “time off work due to ill health condition or "statutory sick leave"" is a statutory right contained in Section 104(4) (a) to (e) of ERA, the Tribunal was not persuaded that the claimant alleged an infringement by the respondent of the above right before his dismissal on 1 5 December 201 6. It could not therefore follow that this was the reason for his dismissal. It was not in dispute that the claimant raised concerns with the respondent about working night shifts due to his health and requested that he was moved back to the late shift. Even taking into account that the claimant did not have to specify what the right claimed to have been infringed was, the Tribunal was not persuaded that by raising concerns about working night as opposed to late shifts, he had made it reasonably clear to the respondent before his dismissal that they were infringing his right to “time off work due to ill health condition” or “statutory sick leave””. S/41 00047/201 7 Page 41

[73]It was also the claimant’s position that he was dismissed by the respondent on the grounds that they breached the general duty of employers to their employees under section 2 of HSE. Section 2 of HSE is not included in the list of relevant statutory rights of the claimant under section 1 04(4) of ERA for 5 the purposes of proving automatically unfair dismissal. The claimant submitted that the respondent dismissed him by breaching their duty to take reasonable care of his health and safety at work. He submitted that the respondent had breached this statutory duty by forcing him to work night shifts. The claimant also submitted that there was a breach by the respondent io of section 7 of HSE. Section 7 of HSE is concerned with the general duty of employees at work. It is not concerned with a statutory right that an employee can rely on to show automatically unfair dismissal under section 104 of ERA. As referred to above, the Tribunal did not find that the respondent had forced the claimant to work night shifts. He was under no obligation to accept night is shifts. The claimant was dismissed because he did not give notice that he would not be attending work on various dates in November and December 2016. It was not argued by the claimant that he resigned in response to a breach of health and safety obligations by the respondent. In all the circumstances the Tribunal was not persuaded that the claimant had 20 established that the reason for his dismissal related to health and safety under either sections 100 or 104 of ERA. BREACH OF CONTRACT

[74]The claimant submitted that the respondent was in breach of contract by failing to comply with clauses 3.1.2; 13.1; 25.3.1 & 25.5 of his contract of 25 employment (C6). Clause 3.1.2 required the respondent to give the claimant one week’s notice of the termination of his employment. It was not in dispute that the respondent did not give the claimant notice of the termination of his employment. The Tribunal was satisfied that the claimant had a contractual right to one week’s notice of termination of his employment. The Tribunal was 30 satisfied that by failing to give the claimant notice, the respondent was in breach of contract. In terms of section 91(5) of ERA, if an employer fails to give the statutory notice required, the rights conferred by sections 87 to 90 of S/4 100047/201 7 Page 42 ERA are to be taken into account when assessing liability for breach of contract. The claimant did not have normal working hours. Section 89(1 ) of ERA provides that in these circumstances the employer “is liable to pay the employee for each week of the period of notice a sum not less than a week’s pay". The claimant was incapable of work because of sickness and accordingly the requirement under section 89(2) of ERA to be “ready and willing to do work of a reasonable nature and amount to earn a week’s pa/ did not apply to the claimant. In terms of section 89(3) of ERA the Tribunal must take into account any payment received by the claimant when considering what is due to the claimant as notice pay. From the evidence before it, the Tribunal found that the claimant’s net week’s pay for the purposes of this calculation was £351 .72 and the amount he was paid during the week following his dismissal on 15 December 2016 was £229.47 net. In these circumstances, the Tribunal calculated that the claimant was entitled to payment of £122.25 plus £9.90 towards his pension payment totalling £1 32.1 as damages for the respondent’s breach of contract. The claimant sought an uplift of 25% on the above award under section 207A of TULCRA 1992. The respondent did not seek to show that they had complied with the ACAS Code of Practice on “Disicplinary & Grievance Procedures” 2015. It was the respondent’s position that the claimant had not been dismissed; there had been no wrongful dismissal. The Tribunal was not persuaded that in all the circumstances however that the respondent’s failure to inform the claimant of “the appropriate period of notice” in accordance with the Code of Practice was reasonable. Ayse McKenna informed the claimant on 15 December 2016 that his employment was to be terminated. There was no evidence of the claimant being informed of his contractual right to notice of a week. The Tribunal considered it just and equitable to increase the award by 25% which amounts to £33. The total award to the claimant for breach of contract is therefore £165.15 (£132.15+ £33).

[75]Clause 13.1 of the claimant’s contract of employment (C6) is concerned with the statutory obligation on the respondent to take reasonable care of the claimant’s health and safety while at work under HSE. It does not confer a S/41 00047/201 7 Page 43 contractual right on the claimant in respect of which the tribunal has jurisdiction. For the avoidance of doubt however and for the reasons given above, the Tribunal was not persuaded that the respondent required the claimant to attend work when unwell being the alleged act relied upon by the 5 claimant to establish breach of the respondent’s health & safety obligations.

[76]Clause 25.3.1 of the claimant’s contract of employment (C6) provides that during an engagement the employee shall “unless prevented by ill-health or other unavoidable cause devote the whole of (your) working time, attention io and abilities to carrying out (your) duties hereunder and will work such hours as may reasonably be required for the proper performance of (your) duties”. The claimant submitted that the above clause gave him the right not to perform his contractual duties and obligations if “prevented by ill-health or other unavoidable cause”. This was not in dispute. Clause 25.3.1 however is 15 concerned with the duties of the claimant as opposed to the respondent under the contract of employment. It was not the respondent’s position that they could require the claimant to undertake engagements while unfit to work and the Tribunal did not find that the claimant was required by the respondent to work while unwell. The claimant was dismissed because he failed to give the 20 respondent notice that he was unable to attend work to fulfil engagements due to ill health. The Tribunal was unable to conclude that in all the circumstances there was a breach of clause 25.3.1 by the respondent.

[77]Clause 25.5 of the claimant’s contract of employment (C6) provides that 25 breach by the employee of any of their duties under clause 25.3 & 25.4 “may lead to disciplinary action including in appropriate cases summary dismissal”. It was the claimant’s position that by failing to take disciplinary action against him the respondent was in breach of contract. The Tribunal was not persuaded that the above clause gave the claimant a contractual right to 30 disciplinary action short of dismissal. The Tribunal accepted that the claimant had been summarily dismissed. There was no evidence that the respondent’s disciplinary policy and procedure formed part of the claimant’s contract of employment. In any event, clause 25.5 provides that an employee's breach S/4 100047/201 7 Page 44 of the duties contained in clause 25.3 & 25.4 “may” lead to disciplinary action. It was not, as described by the claimant, mandatory. The respondent was not contractually obliged to discipline the claimant by for example requiring him to attend a disciplinary hearing before his dismissal. In all the circumstances therefore, the Tribunal was unable to conclude that the respondent was in breach of clause 25.5 of the claimant’s contract of employment (C6). BREACH OF CONTRACT - RACE DISCRIMINATION

[78]The claimant claimed that the respondent's failure to give him notice and apply their disciplinary procedure amounted to less favourable treatment because of his race. For the reasons given above, the Tribunal found that the respondent was in breach of contract by failing to give the claimant notice of his dismissal. It was not in dispute that the respondent did not follow its disciplinary procedure before the claimant’s dismissal. The Tribunal did not find however that the respondent’s failure to pay notice or follow their disciplinary policy amounted to less favourable treatment because of the claimant’s race. The Tribunal was not persuaded that the claimant had identified a valid comparator to establish a prima facie case of discrimination in terms of section 136(2) of ERA 1996. His comparator Sam Slatter had not failed to give notice to the respondent that he was unable to attend work with Royal Mail. Royal Mail had not contacted the respondent to request that Sam Slatter was offered no further work at their Glasgow Mail Centre. In these circumstances, the Tribunal was not persuaded that it was because of the claimant’s colour that he was treated less favourably than Sam Slatter by not being given notice and not being the subject of disciplinary action.

[79]It was the claimant’s position that the only fact that could explain the respondent’s behaviour towards him was because he is black. The claimant referred to the respondent’s failure to give him notice or follow their disciplinary policy as deliberate and intended to punish him as a black employee. The Tribunal had regard to section 136 of ERA and the burden of proof applicable to claims of direct race discrimination. From the evidence before it, the Tribunal was unable to make findings in fact from which it could Employment Judge: Frances Eccles Date of Judgment: 31 July 2019 Entered in register: 06 August 2019 and copied to parties S/41 00047/201 7 Page 45 conclude that the respondent had contravened section 13 of ERA. The Tribunal found that the respondent's actions were in response to the claimant’s failure to notify them that he was unable to fulfil engagements with Royal Mail. This caused Royal Mail to request that the claimant was not offered any further work at their Glasgow Mail Centre and to the claimant’s dismissal for failure to notify the respondent of his inability to attend work to fulfil engagements. The respondent’s actions were not because the claimant was black. In all the circumstances, the Tribunal must therefore conclude that the claim of direct race discrimination fails.

CONCLUSION

[80]For the above reasons the Tribunal concluded that(i) the claimant had not been discriminated against by the respondent because of his race in terms of section 13 of the Equality Act 2010;

(ii) the claimant had not been unfairly dismissed by the respondent either in terms of section 100 of ERA for health & safety reason or section 104 of ERA for assertion of a statutory right and that

(iii) the respondent had breached the contract of employment (C6) by failing to give the claimant notice of his dismissal. The Tribunal calculated that the claimant was entitled to damages for £165.15 (£132.15 plus £25% uplift) and accordingly, an award has been made for the above sum. EMPLOYMENT TRIBUNALS (SCOTLAND) Case Number: 4100047/2017 Held in Glasgow on 8, 9 & 10 April 2019 & 26 June 2019 Employment Judge Frances Eccles Tribunal Member Peter O’Hagan Claimant In Person Mr F Mutombo-Mpania Respondent Represented by Dr A Gibson Solicitor Angard Staffing Solutions Ltd

[1]Was the claimant dismissed on 1 5 December 201 6? S/41 00047/201 7 Page 31

[2]If so, was the reason, or if more than one the principal reason, for the claimant’s dismissal;(i) because of his race;

(ii) for a health and safety reason or

(iii) because he sought to enforce a statutory right

[3]If the claimant was dismissed, was the respondent in breach of contract by failing to follow their disciplinary procedure and/or by not giving the claimant notice? io 4. If the claimant was dismissed, did the respondent act less favourably towards the claimant because of his race by dismissing him; failing to follow their disciplinary procedure and/or by not giving him notice?

[5]What remedy, if appropriate, should be awarded to the claimant? NOTES ON EVIDENCE 15 57. Central to this case was whether the claimant’s contract of employment with the respondent terminated on 1 5 December 201 6. According to the claimant, the principal reason for his dismissal was unlawful either because it related to his race; health and safety or because he sought to enforce a statutory right The claimant gave evidence that he had been informed by Ayse McKenna on 20 15 December 2015 that his contract had been terminated. The Tribunal accepted the claimant’s evidence in this respect. It was consistent with Ayse McKenna’s subsequent e mail to him later that day in which she apologised "about having to remove you from the Glasgow tracker as we need someone who is going to be reliable at this busy time”. It was also consistent with the e 25 mail from Arran Gautry (R31/1 96) in which he confirmed; 7 have acknowledged the termination e-mail from Ayse as she sent it once I agreed to it as due to you failing to follow reporting procedures” and S/41 00047/201 7 Page 32 “You will see from that original e-mail from Ayse that she confirmed your contract of employment with Angard Staffing will be terminated due to failure of reporting non-attendance over three occasions". The Tribunal did not hear from either Ayse McKenna or Arran Gautry. The respondent did not dispute that they wrote to the claimant in the above terms. 58. The respondent relied on the claimant’s subsequent conduct to show that the contract of employment had not been terminated. In particular they relied on the claimant applying for and receiving statutory sick pay after 15 December 2016. The Tribunal was not however persuaded that the claimant’s conduct was inconsistent with him having been dismissed on 15 December 2016. On 16 December 2016 he applied for statutory sick pay for absences on 4, and 14 December 2016, all dates that preceded the date of dismissal. The subsequent claims for statutory sick pay were submitted after Sam Slatter had contacted the claimant to confirm that he was “happy to give you another opportunity". The respondent submitted that this was evidence of continuous employment. In all the circumstances however, the Tribunal was persuaded that the claimant was entitled to conclude that his employment had been terminated on 15 December 2016. While the respondent may have paid the claimant statutory sick pay and offered him further engagements following Sam Slatter’s intervention on 23 December 2016, the Tribunal was not persuaded that this amounted to continuity of the claimant’s contract of employment (C6) following its termination by Ayse McKenna on 15 December 2016. 59. The claimant challenged the respondent’s evidence that Royal Mail requested that he should no longer be offered work at their Glasgow Mail Centre. The claimant had for some time sought evidence from the respondent of an e-mail they claimed to have received from the Royal Mail in which they received the above request. Neither the respondent or Royal Mail were able to produce the e mail in question. Royal Mail failed to comply with an Order issued by the Tribunal on 9 April 2019 for disclosure of the e mail. The claimant relied on this to challenge the respondent’s evidence about the S/41 00047/201 7 Page 33 reason for his dismissal. The Tribunal heard from Lorna Walton who gave evidence about the procedure that Royal Mail would follow if they sought to contact the respondent about concerns with flexible workers. Lorna Walton’s evidence was clear and persuasive that the procedure followed by Royal Mail was to send an e-mail to the respondent requesting that a flexible worker was no longer assigned to their Glasgow Mail Centre. Lorna Walton was able to identify the Royal Mail employee who would probably have sent an e mail in the claimant’s case when concerns were raised about his failure to attend shifts. The claimant did not challenge her evidence in this respect. On balance the Tribunal was satisfied that the respondent had been contacted by Royal Mail with a request that because of his failure to attend work the claimant was offered no further engagements at their Glasgow Mail Centre. It was consistent with the e mail from Ayse McKenna informing the claimant that his failure to attend work had "now resulted into me having to remove you from the Glasgow call list at the request of the Royal mail manager”. It was consistent with the claimant’s own e mail about the call from Ayse McKenna of 1 5 December "letting me know that I am removed from the Glasgow Mail Centre list and I cannot get any more work, that because I did not attend work last night shift”. 60. The claimant submitted that the Tribunal should draw an adverse inference from failure on the part of Royal Mail and the respondent to produce a copy of the e-mail in which Royal Mail were said to have requested that he was no longer offered work at the Glasgow Mail Centre. For the reasons given above however, the Tribunal was not persuaded from the evidence before it that the respondent had not received a request from Royal Mail to no longer offer the claimant engagements on account of his failure to attend work. Lorna Walton was clear in her evidence that this was the situation in the claimant’s case. While the e-mail that was said to have contained the request could not be produced, the Tribunal was unable to conclude that in all the circumstances no such request had been made by Royal Mail. Similarly, the Tribunal was not persuaded that it should draw an adverse inference from the failure on S/41 00047/201 7 Page 34 the part of the respondent to produce the e mail in question when considering the reason for the claimant’s dismissal. 61 . Concerns were also raised by the claimant about the respondent’s disclosure at an earlier stage in the proceedings of Arran Gautry’s email of 23 December 2016 (C17/61) from which the opening sentence had been deleted. The missing sentence read as follows; / have acknowledged the termination e-mail from Ayse as she sent it once I agreed to it as due to you failing to follow reporting procedures. The claimant submitted that the respondent had deliberately deleted the above sentence to avoid any suggestion that his contract had been terminated. The claimant called Chris Moylan to give evidence. Chris Moylan accepted responsibility for deleting the sentence. He explained what he thought had happened - he accidently deleted the sentence when collating and highlighting passages in e mails between the respondent and the claimant. He was honest about the confusion on his part about how this had happened, much of which was due to the passage of time. The claimant submitted that the Tribunal should draw an adverse inference from the explanation provided by the respondent in relation to this matter. While the explanation provided for deletion of the sentence was somewhat convoluted, on balance the Tribunal accepted Chris Moylan’s evidence that he had not deleted the sentence deliberately or with any intention to mislead either the claimant or the Tribunal. The e mail was sent to the claimant. It was in his possession. The version of the e mail originally disclosed by the respondent (C1 7/61) contained the sentence; “You will see from that original e-mail from Ayse that she confirmed your contract of employment with Angard Staffing will be terminated due to failure of reporting non-attendance over three occasions". Had Chris Moylan sought to falsify the e mail to hide the fact that the claimant was dismissed, as submitted by the claimant, it seems improbable that he would not have also deleted the above sentence which refers to Ayse McKenna’s e mail and identifies the respondent’s reason for terminating the contract of employment. S/41 00047/201 7 Page 35 62. The claimant also submitted that the Tribunal should reject the respondent’s evidence given their failure to acknowledge receipt of his e mail of 11 November 2016 (C19/63) in their original response to his claim. In the e mail the claimant raised concerns about how his health condition did not allow him to work regular night shifts. It was not in dispute that the e mail did not amount to notification from the claimant about his inability to work specific night shifts. Sam Clawson responded positively to the extent that for a limited period the claimant was offered late shifts. The Tribunal was not persuaded that it should draw an adverse inference from the respondent stating in its response to the claim that it had no record of the e mail of 11 November 2016 (C19/63) or of the claimant reporting anything that might amount to a health and safety issue. The respondent subsequently accepted that the e mail had been sent and received. The respondent’s failure to acknowledge receipt of the claimant’s e mail of 11 or for that matter 17 November 2016 (C19/63 &C21/65) in their response to the claim, did not lead the Tribunal to conclude that the claimant’s dismissal in any way related to his colour as opposed to his failure to attend work because of ill health. The evidence before the Tribunal did not support such a finding. 63. Sam Slatter was cross-examined by the claimant at length. The Tribunal found him to be a credible witness with a detailed understanding of the respondent’s procedures. He was also aware of the respondent having been contacted by Royal Mail with concerns that the claimant had failed to attend work as a result of which they did not want him to be offered any further engagements at their Glasgow Mail Centre. The Tribunal accepted his evidence. The claimant attached much weight to the fact that Sam Slatter had stated at an earlier hearing before the Tribunal on 24 April 2018 that he was dismissed on 1 5 December 201 6. Sam Slatter could not recall giving this evidence but for the above reasons the Tribunal was in any event persuaded that the claimant’s contract had been terminated on 15 December 2016. The respondent sought to show that the claimant’s contract of employment (C6) had continued after 15 December 2016. While the Tribunal did not accept S/41 00047/201 7 Page 36 their position, it did not conclude that this was sufficient to draw an adverse inference of discrimination. In his correspondence with the claimant (R31/195 &196), Arran Gautry was responding to concerns over treatment he claimed to have received relating to his health. He was responding to demands from the claimant for notice pay. The Tribunal did not find that in these circumstances his response to give the claimant “another opportunity” and continue to offer him engagements in any way related to the claimant’s colour. DISCUSSION & DELIBERATIONS DISMISSAL 64. The Tribunal began by considering whether the claimant was dismissed by the respondent on 15 December 2016. This was less favourable treatment about which the claimant complained in relation to his claim of race discrimination and the basis in which he sought damages for breach of contract. In terms of section 95(1)(a) of the Employment Rights Act 1996 (“ERA”) an employee is dismissed by his employer if the contract under which he was employed was terminated by the employer (whether with or without notice). It was not in dispute that on 15 December 2016 the claimant was informed by Ayse Wilson that he would not be offered any further work at Royal Mail’s Glasgow Mail Centre. This was followed by an e mail (C59) in which Ayse Wilson informed the claimant that he had been "removed from the Glasgow tracked as the respondent needed “someone who is going to be reliable at this busy time". Arran Gautry subsequently confirmed the position in his email to the claimant of 23 December 2016 (R31/196) in which he referred to the “termination email" from Ayse McKenna and advised the claimant that “she “confirmed your contract of employment with Angard Staffing will be terminated due to failure of reporting non-attendance over three occasions” 65. The Tribunal was satisfied that in all the circumstances the claimant was entitled to conclude that his contract of employment had been terminated on 15 December 2016. It was why he contacted Sam Clawson a few hours after S/41 00047/201 7 Page 37 his call with Ayse McKenna (C13/58) requesting his “intervention”. The Tribunal was not persuaded that because the claimant subsequently requested and received statutory sick pay and did not request his P45 until some months later that his contract of employment (C6) was not terminated on 15 December 2016. DISMISSAL - RACE DISCRIMINATION 66. The claimant advanced a number of alternative reasons for his dismissal. The Tribunal began by considering whether the reason for the claimant’s dismissal was because of his colour. In terms of section 13(1) of the Equality Act 2010 (EA 2010); “a person (A) discriminates against another

(b) (B) if, because of a protected characteristic, (A) treats (B) less favourably than A treats or would treat others”. Race is a protected characteristic in terms of section 4 of EA 2010. Section 9(1 )(b) of EA 2010 provides that colour is included within the meaning of race. 67. It is the claimant’s position that by dismissing him the respondent treated him less favourably than they would have treated an employee who is white. In terms of Section 23(1) of EA 2010, for comparison purposes there must be “no material difference between the circumstances relating to each case". The claimant identified Sam Slatter as his comparator. Sam Slatter is white and has not been dismissed by the respondent. Sam Slatter however is not a flexible employee. He is a manager. There was no evidence that he had failed to attend a shift with Royal Mail without giving the respondent notice. There was no evidence that Royal Mail had requested that he was not offered any further work at their Glasgow Mail Centre. In these circumstances the Tribunal was not persuaded that Sam Slatter was an appropriate comparator. His circumstances and those of the claimant are materially different. In any event, the Tribunal was satisfied from the evidence before it that on balance a flexible employee who is white would have been treated in the same way as the claimant had they failed to attend shifts with Royal Mail without giving notice and as a result of which Royal Mail had requested that they were not offered any further work. The Tribunal was not persuaded that in all the circumstances S/41 00047/201 7 Page 38 the claimant’s dismissal amounted to less favourable treatment within the meaning of section 13(1) of EA 2010. There was no evidence before the Tribunal to show that a hypothetical comparator would have been treated differently by the respondent. In all the circumstances the Tribunal was not persuaded that the claimant’s dismissal was less favourable treatment because of his race. DISMISSAL - AUTOMATICALLY UNFAIR 68. The Tribunal went on to consider the alternative reasons for dismissal advanced by the claimant. The claimant claimed that he was automatically unfairly dismissed in terms of section 1 00(1 )(e) of ERA. Section 100(1)(e) of ERA provides that an employee shall be regarded as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that “in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from that danger". The claimant identified the circumstances of danger which he reasonably believed to be serious and imminent as having to work night shifts given the adverse effect such work had on his health condition of essential hypertension. 69. The Tribunal was not persuaded from the evidence before it that there were circumstances of danger which the claimant could reasonably have believed were serious and imminent The claimant had concerns that working night shifts would adversely affect his health. He was not obliged to accept night shifts or attend work if unable to do so due to ill health. He was however obliged to notify the respondent “as soon as possible" that he was unable to attend work. It was his failure to give notice of his inability to attend work on 30 November and 4, 12 & 14 December 2016 that resulted in his dismissal. While the claimant had requested that he be returned to late shifts, there was no evidence that either Royal Mail or the respondent would have insisted that the claimant complete a night shift on any of the above dates had he notified them in advance that he was too unwell to attend work. The Tribunal was S/41 00047/201 7 Page 39 unable to conclude in these circumstances that the claimant could reasonably have believed that he was in a situation of serious and imminent danger. In any event, the Tribunal was not persuaded that the appropriate step for the claimant to have taken, if he believed that attending work would place him in 5 serious and imminent danger, was to fail to attend work without giving notice. The appropriate step was to give the respondent notice of his inability to attend work. There was no evidence of the claimant being taken suddenly unwell. It was the claimant’s evidence that he has had essential hypertension for some time. He had the condition when he accepted the night shifts. There io was no persuasive evidence before the Tribunal as to why the claimant was unable to take the step of notifying the respondent in advance that he was unable to attend the specific night shifts he had accepted and which he failed to attend. In all of the circumstances, the Tribunal was not persuaded that the reason for the claimant’s dismissal was automatically unfairly dismissed in 15 terms of section 100(1)(e) of ERA. 70. The claimant also claimed that he was automatically unfairly dismissed by the respondent for asserting a statutory right under Section 104 of ERA. In terms of Section 1 04(1)(b) of ERA, an employee’s dismissal is automatically unfair 20 if the reason or principal reason for the dismissal is that the employee alleged that the employer had infringed a relevant statutory right. The claim to the right must have been made in good faith in terms of section 104(2) of ERA. The employee must make it reasonably clear to the employer what right he claims is being infringed although in terms of section 104(3) of ERA there is 25 no requirement to actually specify the right. Section 104 of ERA however relates to relevant statutory rights. These are identified in section 104(4)(a) of ERA as "any right conferred by (ERA) for which the remedy for its infringement is by way of a complaint or reference to an employment Tribunal". Section 104(4)(b) to ( e) of ERA identifies relevant statutory rights in various other acts 30 and statutory regulations. The claimant based his claim under section 104 of ERA on having asserted an infringement by the respondent of the “natural and statutory right” to "time off work due to ill health condition or taking "statutory sick /eave””. He claimed to have asserted an infringement of the S/41 00047/2017 Page 40 above right by informing the respondent that his health condition prevented him from regularly working on night shifts and requesting that he was moved back to late shifts. 71 . The Tribunal was not persuaded that the claim of unfair dismissal for asserting a statutory right was well-founded. Firstly, the Tribunal was not persuaded that the right relied upon by the claimant amounted to a relevant statutory right for the purposes of a claim under section 1 04 of ERA. The claimant described the right to take sick leave as a "universal natural right and implied statutory right'. He did not seek to show that it is one of the statutory rights contained in Section 104(4)(a) to (e) of ERA. The Tribunal had regard to Part VI of ERA which is concerned with statutory rights to time off work. The Tribunal could not find a right in Part VI of ERA to “time off work due to ill health” or “statutory sick leave”. Similarly, the Tribunal was unable to identify such a right in the Working Time Regulations 1 998 or the Health & Safety Act 1974. The Tribunal was therefore unable to find that the claimant had alleged that the respondent had infringed a relevant statutory right. 72. If the Tribunal is wrong about this and the right to “time off work due to ill health condition or "statutory sick leave"" is a statutory right contained in Section 104(4) (a) to (e) of ERA, the Tribunal was not persuaded that the claimant alleged an infringement by the respondent of the above right before his dismissal on 1 5 December 201 6. It could not therefore follow that this was the reason for his dismissal. It was not in dispute that the claimant raised concerns with the respondent about working night shifts due to his health and requested that he was moved back to the late shift. Even taking into account that the claimant did not have to specify what the right claimed to have been infringed was, the Tribunal was not persuaded that by raising concerns about working night as opposed to late shifts, he had made it reasonably clear to the respondent before his dismissal that they were infringing his right to “time off work due to ill health condition” or “statutory sick leave””. S/41 00047/201 7 Page 41 73. It was also the claimant’s position that he was dismissed by the respondent on the grounds that they breached the general duty of employers to their employees under section 2 of HSE. Section 2 of HSE is not included in the list of relevant statutory rights of the claimant under section 1 04(4) of ERA for 5 the purposes of proving automatically unfair dismissal. The claimant submitted that the respondent dismissed him by breaching their duty to take reasonable care of his health and safety at work. He submitted that the respondent had breached this statutory duty by forcing him to work night shifts. The claimant also submitted that there was a breach by the respondent io of section 7 of HSE. Section 7 of HSE is concerned with the general duty of employees at work. It is not concerned with a statutory right that an employee can rely on to show automatically unfair dismissal under section 104 of ERA. As referred to above, the Tribunal did not find that the respondent had forced the claimant to work night shifts. He was under no obligation to accept night is shifts. The claimant was dismissed because he did not give notice that he would not be attending work on various dates in November and December 2016. It was not argued by the claimant that he resigned in response to a breach of health and safety obligations by the respondent. In all the circumstances the Tribunal was not persuaded that the claimant had 20 established that the reason for his dismissal related to health and safety under either sections 100 or 104 of ERA. BREACH OF CONTRACT 74. The claimant submitted that the respondent was in breach of contract by failing to comply with clauses 3.1.2; 13.1; 25.3.1 & 25.5 of his contract of 25 employment (C6). Clause 3.1.2 required the respondent to give the claimant one week’s notice of the termination of his employment. It was not in dispute that the respondent did not give the claimant notice of the termination of his employment. The Tribunal was satisfied that the claimant had a contractual right to one week’s notice of termination of his employment. The Tribunal was 30 satisfied that by failing to give the claimant notice, the respondent was in breach of contract. In terms of section 91(5) of ERA, if an employer fails to give the statutory notice required, the rights conferred by sections 87 to 90 of S/4 100047/201 7 Page 42 ERA are to be taken into account when assessing liability for breach of contract. The claimant did not have normal working hours. Section 89(1 ) of ERA provides that in these circumstances the employer “is liable to pay the employee for each week of the period of notice a sum not less than a week’s pay". The claimant was incapable of work because of sickness and accordingly the requirement under section 89(2) of ERA to be “ready and willing to do work of a reasonable nature and amount to earn a week’s pa/ did not apply to the claimant. In terms of section 89(3) of ERA the Tribunal must take into account any payment received by the claimant when considering what is due to the claimant as notice pay. From the evidence before it, the Tribunal found that the claimant’s net week’s pay for the purposes of this calculation was £351 .72 and the amount he was paid during the week following his dismissal on 15 December 2016 was £229.47 net. In these circumstances, the Tribunal calculated that the claimant was entitled to payment of £122.25 plus £9.90 towards his pension payment totalling £1 32.1 as damages for the respondent’s breach of contract. The claimant sought an uplift of 25% on the above award under section 207A of TULCRA 1992. The respondent did not seek to show that they had complied with the ACAS Code of Practice on “Disicplinary & Grievance Procedures” 2015. It was the respondent’s position that the claimant had not been dismissed; there had been no wrongful dismissal. The Tribunal was not persuaded that in all the circumstances however that the respondent’s failure to inform the claimant of “the appropriate period of notice” in accordance with the Code of Practice was reasonable. Ayse McKenna informed the claimant on 15 December 2016 that his employment was to be terminated. There was no evidence of the claimant being informed of his contractual right to notice of a week. The Tribunal considered it just and equitable to increase the award by 25% which amounts to £33. The total award to the claimant for breach of contract is therefore £165.15 (£132.15+ £33). 75. Clause 13.1 of the claimant’s contract of employment (C6) is concerned with the statutory obligation on the respondent to take reasonable care of the claimant’s health and safety while at work under HSE. It does not confer a S/41 00047/201 7 Page 43 contractual right on the claimant in respect of which the tribunal has jurisdiction. For the avoidance of doubt however and for the reasons given above, the Tribunal was not persuaded that the respondent required the claimant to attend work when unwell being the alleged act relied upon by the 5 claimant to establish breach of the respondent’s health & safety obligations. 76. Clause 25.3.1 of the claimant’s contract of employment (C6) provides that during an engagement the employee shall “unless prevented by ill-health or other unavoidable cause devote the whole of (your) working time, attention io and abilities to carrying out (your) duties hereunder and will work such hours as may reasonably be required for the proper performance of (your) duties”. The claimant submitted that the above clause gave him the right not to perform his contractual duties and obligations if “prevented by ill-health or other unavoidable cause”. This was not in dispute. Clause 25.3.1 however is 15 concerned with the duties of the claimant as opposed to the respondent under the contract of employment. It was not the respondent’s position that they could require the claimant to undertake engagements while unfit to work and the Tribunal did not find that the claimant was required by the respondent to work while unwell. The claimant was dismissed because he failed to give the 20 respondent notice that he was unable to attend work to fulfil engagements due to ill health. The Tribunal was unable to conclude that in all the circumstances there was a breach of clause 25.3.1 by the respondent. 77. Clause 25.5 of the claimant’s contract of employment (C6) provides that 25 breach by the employee of any of their duties under clause 25.3 & 25.4 “may lead to disciplinary action including in appropriate cases summary dismissal”. It was the claimant’s position that by failing to take disciplinary action against him the respondent was in breach of contract. The Tribunal was not persuaded that the above clause gave the claimant a contractual right to 30 disciplinary action short of dismissal. The Tribunal accepted that the claimant had been summarily dismissed. There was no evidence that the respondent’s disciplinary policy and procedure formed part of the claimant’s contract of employment. In any event, clause 25.5 provides that an employee's breach S/4 100047/201 7 Page 44 of the duties contained in clause 25.3 & 25.4 “may” lead to disciplinary action. It was not, as described by the claimant, mandatory. The respondent was not contractually obliged to discipline the claimant by for example requiring him to attend a disciplinary hearing before his dismissal. In all the circumstances therefore, the Tribunal was unable to conclude that the respondent was in breach of clause 25.5 of the claimant’s contract of employment (C6). BREACH OF CONTRACT - RACE DISCRIMINATION 78. The claimant claimed that the respondent's failure to give him notice and apply their disciplinary procedure amounted to less favourable treatment because of his race. For the reasons given above, the Tribunal found that the respondent was in breach of contract by failing to give the claimant notice of his dismissal. It was not in dispute that the respondent did not follow its disciplinary procedure before the claimant’s dismissal. The Tribunal did not find however that the respondent’s failure to pay notice or follow their disciplinary policy amounted to less favourable treatment because of the claimant’s race. The Tribunal was not persuaded that the claimant had identified a valid comparator to establish a prima facie case of discrimination in terms of section 136(2) of ERA 1996. His comparator Sam Slatter had not failed to give notice to the respondent that he was unable to attend work with Royal Mail. Royal Mail had not contacted the respondent to request that Sam Slatter was offered no further work at their Glasgow Mail Centre. In these circumstances, the Tribunal was not persuaded that it was because of the claimant’s colour that he was treated less favourably than Sam Slatter by not being given notice and not being the subject of disciplinary action. 79. It was the claimant’s position that the only fact that could explain the respondent’s behaviour towards him was because he is black. The claimant referred to the respondent’s failure to give him notice or follow their disciplinary policy as deliberate and intended to punish him as a black employee. The Tribunal had regard to section 136 of ERA and the burden of proof applicable to claims of direct race discrimination. From the evidence before it, the Tribunal was unable to make findings in fact from which it could Employment Judge: Frances Eccles Date of Judgment: 31 July 2019 Entered in register: 06 August 2019 and copied to parties S/41 00047/201 7 Page 45 conclude that the respondent had contravened section 13 of ERA. The Tribunal found that the respondent's actions were in response to the claimant’s failure to notify them that he was unable to fulfil engagements with Royal Mail. This caused Royal Mail to request that the claimant was not offered any further work at their Glasgow Mail Centre and to the claimant’s dismissal for failure to notify the respondent of his inability to attend work to fulfil engagements. The respondent’s actions were not because the claimant was black. In all the circumstances, the Tribunal must therefore conclude that the claim of direct race discrimination fails. CONCLUSION 80. For the above reasons the Tribunal concluded that (i) the claimant had not been discriminated against by the respondent because of his race in terms of section 13 of the Equality Act 2010; (ii) the claimant had not been unfairly dismissed by the respondent either in terms of section 100 of ERA for health & safety reason or section 104 of ERA for assertion of a statutory right and that (iii) the respondent had breached the contract of employment (C6) by failing to give the claimant notice of his dismissal. The Tribunal calculated that the claimant was entitled to damages for £165.15 (£132.15 plus £25% uplift) and accordingly, an award has been made for the above sum. I5 EMPLOYMENT TRIBUNALS (SCOTLAND) Case Number: 4100047/2017 Held in Glasgow on 8, 9 & 10 April 2019 & 26 June 2019 Employment Judge Frances Eccles Tribunal Member Peter O’Hagan Claimant In Person Mr F Mutombo-Mpania Respondent Represented by Dr A Gibson Solicitor Angard Staffing Solutions Ltd

[6]The claimant did not have normal working hours. Clause 9.1 of the claimant’s terms and conditions (C6) provides as follows;

[9]Hours of Work 9. 1 You have no normal hours of work, and your hours will vary according to the needs of Angard and the availability of work during an Engagement. Angard is under no obligation to provide you with work, or to provide you with a minimum number of hours work each day or week and you are not obliged to accept any work that is offered. For the avoidance of doubt, this may result in there being days during your employment or during an Engagement where there will be no work for you to perform. However, Angard will endeavour to allocate suitable work to you when it is available. 7. Clause 10 of the claimant’s terms and conditions (C6) provides as follows;

[10]Sick Absence10.1 If during an Engagement you are absent through sickness or injury you must notify Angard by telephone as soon as possible that you are unable to work, and of the likely duration of your absence. Ideally this should be before the start of duty and must be no later than the first day of absence. All absences must be covered by appropriate certification.

10.2 In all cases of absence due to sickness or injury once you have accepted an Engagement, a self-certification form, which is available from Angard, must be completed and supplied to Angard. For any such period which lasts for seven consecutive days or more, a doctor's certificate stating the reason for absence must be obtained at your own cost and supplied to Angard. Further certificates must be obtained if the absence continues for longer than the period of the original certificate. S/41 00047/201 7 Page 5

10.3 If you have accepted an Engagement but are unable to work some or all of the hours agreed due to sickness or injury you shall be entitled to receive Statutory Sick Pay (SSP) provided that you satisfy the relevant requirements. 8. From November 2015 to November 2016 the claimant regularly accepted engagements with the respondent. He worked at Royal Mail’s Glasgow Mail Centre. The claimant regularly accepted engagements for shifts that finished at 10pm - known as late shifts. In the run up to Christmas 2016, Royal Mail informed the respondent that they required temporary workers to cover night shifts (10pm to 6am) at their Glasgow Mail Centre. The respondent offered their flexible employees, including the claimant, night shifts as required by Royal Mail. On or about 11 November 2016 the claimant accepted an engagement of night shifts for the period 21 November to 13 January 2017. 9. The claimant has essential hypertension. He was concerned about the effect that working night shifts would have on his health. On 11 November 2016 the claimant contacted the respondent's Sam Clawson by e-mail (C19/63) requesting late as opposed to nightshifts. He informed Sam Clawson as follows:- *7am writing to let you know of an issue. I have always been on the late shift list at Glasgow Mail Centre working shift finishing at 10pm. However, in the last 2 weeks, it is look like that my name is the night shift list. I am writing to advise you that my health condition does not allow me to work regular night shifts. So can you remove my name from the night shift list and take it back in the late shift as usual. 10. The claimant received a response from Sam Clawson later that day (C19/63). Sam Clawson offered him "late shifts instead". The claimant agreed to this and on 14 November 2016 received an e mail (C20/64) confirming that his engagement for the week commencing 14 November 2016 had been changed to late shifts. S/41 00047/201 7 Page 6

[11]The claimant continued to accept engagements to work night shifts over the Christmas period. He contacted Sam Clawson on 17 November 2016 by e mail (C21/65) as follows; "I am writing to request clarification about my Christmas shifts. In fact, I was already booked to work Christmas night shifts 10:00pm to 6.00am starting on Monday the 21 st November till the 13 th January 2017. The problem was that my health condition does not allow me to work regular nightshifts, that is why I asked if you can change my nights shifts booking into dayshifts (any one finishing at 10pm). You have sent me an e-mail confirming that you have changed my night shifts to late shifts 5.30pm until 10pm only for this week ending 18 November. You have told me nothing about my Christmas night shifts booking. Can you clarify me about my Christmas night shifts as I was already booked for night shifts 10pm until 6am whereas I asked you to change this to late shifts as my health condition does notallow me to do regular night shifts please. I look forward to hearing from you very shortly. ”

[12]The claimant was not offered late shifts for the engagements between 21 November to 13 January 2017. He failed to attend work on 30 November, 4 December, 12 December & 14 December 2016. He had also failed to attend work to cover a late shift on 31 October 201 6. On each occasion the claimant did not telephone the respondent in advance to notify them of his inability to attend work. On 15 December 2016 Royal Mail contacted the respondent to report their concerns about the number of occasions on which the claimant had failed to attend work. Royal Mail requested that because of his failure to attend work, the claimant should not be offered any further engagements at their Glasgow Mail Centre. Ayse McKenna, an employment consultant with the respondent, contacted the claimant later that day. She informed the claimant that because he had not followed “reporting procedures” for his S/41 00047/201 7 Page 7 absences from work that he would not be offered any further shifts at the Glasgow Mail Centre. The claimant e-mailed Sam Clawson on 1 5 December 2016 (R25/186) as follows: - “/ am writing regarding a cail I got today letting me know that I am removed from the Glasgow Mail Centre list and I cannot get any more work, that because I did not attend work last night shift. The first thing I would like to say is sorry for not attending last night shift. That was because of my health condition that I did not attend. Remember that I told you my health condition cannot allow me to work permanent night shift and I have asked to be re-transferred back from night shift to day shift as before, but you did not. I remember I asked before to be transferred from day shift to night shift, you did that unilaterally without my consent. Now because I am working more night shift, sometimes my health condition does not follow the rhythm, you are removing me from the job. I think that is not fair because I told you in advance that permanent night shift will affect sometimes my health condition and that the best time for me to work is day shift. So I would like to ask for your intervention. If you think I am not helpful for night shifts just send me back to day shift as I told you in advance that night shift is not good for me. Removing someone from the job for the consequence of somethings he told you in advance is not fair, and I think as well that it is against my employment agreement. Because there is an emergency, I look forward to hearing from you shortly. ”

[13]Ayse McKenna followed up her telephone conversation with the claimant by e mail (C15/59) as follows; uMy name is Ayse I am the consultant from Glasgow, I spoke with yourself earlier about the 3 no shows we have had from you. S/41 00047/201 7 Page 8 I do apologise about having to remove you from the Glasgow tracker as we need someone who is going to be reliable at this busy time. I was not aware that you had told Sam you could not work nights, however you could of told me you would not be showing up to your shifts and I could of give you an evening shift 1700-2200. When I spoke with yourself you had agreed to work the night shift and failed to attend, this has now resulted into me having to remove you from the Glasgow call list at the request of the Royal mail manager. This is also the Angard policy for everybody. Once I again I do apologise”.

[14]The claimant wrote to Ayse McKenna by e mail on 15 December 2016 (C26/187) as follows; "Thank you for your email. However, I would like to put in your attention the following things: I am an angard flexible resourcing employee with a contract of employment signed on the 17 November 2016. In the point 2.3 of my contract of employment, it said that you have to give one week notice of termination of employment because I worked more than 4 continuous weeks and less than 2 yours. By terminating my employment without giving me one week notice, you are breaching this contract of engagement; You can not blame me when there is lack of coordination between you and your order colleges, including Sam. I told Sam that my health condition does not allow me to work permanent night shifts. This means I can only work occasional night shifts. I asked to be transferred back to the day shifts where I worked the full year without any problem. You can ask JOSH who was dealing with us before you to came in the last 2 months of the year. S/41 00047/201 7 Page 9 You cannot ask me to kill my self because you need someone to go to work. I told angard in advance that permanent night shift is not good for my health condition and asked to be retransferred back to day shifts. But you did not do so. It is important to remember you that, when you replace JOSH since the last 2 month of the years, it is you I think who transferred me from day shifts to permanent nights without my consent. You can not obligate me to do somethings which is bad for my health condition. That is against my contract of engagement. For me, if you still confirm that I can not work any more, in breaching my contract of employment, you are giving no choice from today to take the case to the employment court and believe me, I going to do that without any hesitation from tomorrow. I regret that sometimes, acting by you, angard staffing is looking only for its own interest without taking care of its employees health condition. May be the employment court will deal with the case properly.” 1 5. The claimant wrote to Ayse McKenna again on 1 6 December 201 6 (C27/1 88) to advise her that in terms of 10.3 of his contract of employment he wished to apply for statutory sick pay for the days he had been unable to work due to sickness. He wrote to as follows; 7 would like to let know that by removing me to work because I have not attend my shift due to health condition or sickness, you have breached the point10.1 and

10.2 of my contract of employment signed on 17 November 2015 between Angard Staffing Solutions Limited and I. These terms give me the right to not attend in case of sickness. The only thing to do is to notify Angard of that idealy before the start of my duty and no later than the first day of my absence. Nowhere in my employment contract it said I have to be removed to work if I did not attend due to sickness. Moreover, thepoint

10.3 recommend S/41 00047/201 7 Page 10 you to pay me Statutory Sick Pay and by this email I am applying to get paid SP for the 3 days I have not attend due to sickness. I would like to remember you as well that I am AWR qualified. That gives me the same basic working and employment conditions of a comparable permanent Royal Mail employees. Or, never permanent Royal Mail employees are removed from work if they don’t attend work due to sickness. By removing me from work because I did not attend work due to sickness whereas I have the same basic working and employment conditions of permanent Royal Mail workers, you are violating the agency workers regulations. ”

[16]The claimant’s e mails (R25/186; R26/187 & R27/188) were passed to the respondent’s team manager, Arran Gautry who attempted to contact the claimant by telephone from 19 to 23 December 2016 without success. Meanwhile the claimant provided the respondent with a statement of fitness to work dated 19 December 2016 (R28/189) confirming that he was unfit to work from 19 December 2 January 2017 because of work related stress. At the respondent’s request, the claimant completed a respondent’s statutory sick pay claim form (R30/191) confirming that he was absent from work due to “sickness severe high blood pressure" on 14 December 2016 and expected to return to work on 3 January 2017. The claimant submitted the statutory sick pay claim form (R30/191) to the respondent on 21 December 201 6. The claimant received statutory sick pay from the respondent for the above period.

[17]Arran Gautry wrote to the claimant on 23 December 2016 (R31/195) as follows;- “As you are avoiding my calls I have forwarded this the below to our account Management team. I have advised you on numerous occasions of the process regarding non-attendance however you are avoiding any responsibility for this, our process is to remove any employee who have failed to not attend JO S/41 00047/201 7 Page 1 1 work without notifying us accordingly over three occasions, your most recent instance was your third occasion! I have looked into this matter over the last week for you where by I have tried to call you to update you on a solution however you have avoided all calls from myself delaying the resolution. As your contract is a zero hour contract there are no legal obligation to offer you regular work and therefore there is no loss of earning owed to you as the cancellation of shifts is due to you failing to notify us of you Non attendance. Angard staffing have the right to cancel any confirmed shifts within a two hour window from when the shift is expected to start. As your contract is not a guaranteed hours the below calculation is an assumption. Please see below details from your contract which you have signed: Hours of Work.... Sick Absence You have also failed to disclose any medical matters on your application form which I am more than happy to send to you as evidence, plus you are failing to inform us of your medical concern/disability which will allow us to support you and make reasonable adjustments. As per the terms of your contract you are completely correct that we will give you one weeks 1 notice of termination, however what that does not mean that we hold the rights to not cancel any shifts if we have lack of confidence regarding your commitment as we must provide our client, Royal Mail the up most accurate service at all times to avoid risks of not supplying enough employees to cover work load demands and as you S/41 00047/201 7 Page 12 failed to attend work on three occasions since you employment commencement date we have not been left with any other option. To reiterate we have not breached our employment contract and the decision to not terminate your employment was a decision I made as a good will gesture, allowing you another opportunity to continue working for us however as per my previous communications to you failure to attend a confirmed booking without sufficient notification may result in your contract being terminated. I would like to confirm that we have received your Sick note from your GP and I am truly sorry for the effect that this matter has caused however this whole situation would of easily been avoided if you replied to the numerous voice mails, followed the correct process in the first place and accepted you did not adhere to the reporting of non attendance of a shift. I must also make you aware that you are employed by Angard Staffing and not Royal Mail and therefore any concerns/complaints you have need to be addressed for the attention of Angard staffing and not Royal Mail. Please can you confirm to me what shifts are best for you and if you would like to discuss further please call me directly." 1 8. The claimant replied to Arran Gautry (R31/1 92) later that day as follows; "Thank you for your email. I am consoled to read you finally. Firstly, I would like to let you know that I spent all my time by trying to contact you by phone 5 times on the 21st December 2016 and I was not able to reach you being told all time that you were in meeting until when I called the last time at 19:22 to be told you went home. However, I would like to put in your attention for clarification the following things: S/41 00047/201 7 Page 13 On the 15th December 2016, / was notified by phone and email at 1:16 PM exactly by Ayse McKenna that I have been removed from work at Glasgow Mail Centre with immediate effect because I did not attend my night shift the day before. I have attached a copy of Ayse McKenna’s email for your information. The problem is there. The breach of my contract of employment has arisen at that time. The direct work consequence of this decision was that I was not authorised to attend work at Glasgow Mail Centre the rest of the week whereas I was booked the full week. That is the problem It is by that decision and its direct work consequence that my contract of employment has been breached in its point 3.1.2. In fact the right procedure should be to give me one week notice of termination as set in my contract of employment instead to remove me directly from work. Therefore you have breached without discussion my contract of employment by that decision on the 15th December 2016. I you have changed your mind after that I told you that you have breached my contract of employment is another things. The breach of contract was already established by the notification to me of that decision and by the interdiction to attend any more shifts I was already booked for. The wrongful dismissal, the discrimination dismissal and the unfair dismissal are the consequence of your decision of 15 December 2016 at 1:16 pm. If you have changed your mind 5 days after I told you that you were in fault by taking your decision of the 15th December 2016 that does not correct what you have done 5 days before. By the simple fact that you have not given me one week notice before your decision of the 15th December 2016 or in this decision S/41 00047/201 7 Page 14 by allowing to go to work for one week as notice and then after terminate my contract, you have to pay me for loss of earnings due to your breach of my contract of employment. The loss is evaluated at £802.28 that I am expecting to be paid for by Friday the 30 December 2016.• About the disability, I would like to let you know that life is dynamic but not static. You cannot have any disability today and get that after 2 weeks' time. No one has control of that except god. If you have checked my application which is old of at least one year, you can understand that after one year lot of things can happen.

• However, the wrongful dismissal, the discrimination and the automatic unfair dismissal have nothing to do with my disability but with the way you have decided to end my contract of employment by breaching my contract of employment, the agency worker regulation as already explained in my precedent letters, the Royal Mall and Angard Staffing attendance policy, all that by your decision notified of 15 December 2016.

• If you have decide to rehabilitate me to work, it is one thing I was asking for correction. However, I am still applying to my other demands as explained in precedent letters.

• Finally, I would like to let you know that your decision of December 2016 has aggravated seriously my health condition so much so that my GP has declared I am not fit to work for a certain period of time. So I must claim damages payment for that according to the law. For the rest, I am reconducting all my demand as set in my precedent letters. ” S/41 00047/201 7 Page 1

[19]Arran Gautry replied to the claimant on 23 December 2016 (R31/196) as follows; 7 have acknowledged the termination e-mail from Ayse as she sent it once I agreed to it as due to you failing to follow reporting procedures. You will see from that original e-mail from Ayse that she confirmed your contract of employment with Angard Staffing will be terminated due to failure of reporting non-attendance over three occasions. There was no mention of final date whereby you are no longer an employee of Angard Staffing as it takes one week for your P45 to be generated. Plus as per our conversation I will personally look into the matter for you to continue employment with Angard once I investigate all options for you. I have gone over the numerous emails and there is nothing indicating any breach of our contract, in fact it is yourself who has breached your contract by not reporting your absence correctly however I have confirmed with you on several occasions that I am happy to give you another opportunity which you have failed to acknowledge. The compensation you require is an assumption as you are not guaranteed any hours and unfortunately we will not be considering any compensation for shifts which you have not worked. The best I can do and truly feel I am being extremely fair is to allow your flexible contract with us to continue, If this is not satisfactory then I truly apologise however I would like to now formally confirm that this matter is closed and resolved”.

[20]The claimant provided the respondent with statements of fitness to work dated 28 December 2016 (R29/190) and 31 January 201 7 (R34/200) confirming that S/4100047/201 7 Page 16 he was unfit to work from 28 December to 21 February 201 7 because of work related stress. 21 . Clause 3 of the claimant’s terms and conditions (C6) provides as follows; 3. Termination of Employment 3. 1 Your employment under this statement shall commence on the Commencement Date and shall continue, subject to the remaining terms of this statement, until it automatically terminates without the need for further notice if:(a) it is more than 90 days since the Commencement Date and you have not worked on an Engagement; or

(b) it is more than 28 days since the end of your last Engagement and you have not worked on another Engagement; 3.1.2 by Angard giving you one week's notice if you have four or more week’s continuous service but less than two years’ continuous service or one day’s notice if you have less than four weeks’ continuous service; or 3.1.3 if you have at least two years’ continuous service one week’s notice per year of continuous employment up to a maximum of twelve weeks’ notice after twelve years’ continuous employment; 3.1.4 by you giving Angard one week’s notice Save that nothing in the above clause shall preclude Angard from terminating your employment without notice or payment of lieu in notice in appropriate circumstances. The respondent did not give the claimant notice of termination of his employment on 15 December 2018. S/41 00047/201 7 Page 17

[22]Clause 13 of the claimant’s terms and conditions (C6) provides as follows; 13. Health & Safety 13. 1 During an Engagement, you will be required to comply with the rules made to prevent physical injury to yourself or to others 5 arising out of your actions or omissions in the course of an Engagement. The Health and Safety at Work etc. Act 1974 imposes a statutory duty on Angard and you to take reasonable care for the health and safety of yourself and other persons (including members of the public) who may be io affected by acts or omission at work. It also obliges you to co operate as necessary in any steps that Angard must take to discharge its responsibilities under the Act. It is an offence intentionally or recklessly to interfere with or misuse anything that Angard is required to provide under the Act in the interests 15 of health, safety or welfare.

[23]Clause 25.3. of the claimant’s terms and conditions (C6) provides as follows; unless prevented by ill-health or other unavoidable cause devote the whole of your working time, attention and abilities to carrying out your duties hereunder and will work such hours 20 as may reasonably be required for the proper performance of your duties.

[24]Clause 25.5 of the claimant’s terms and conditions (C6) provides as follows; Breach of any of the provisions in clauses 25. 1-25.4 may lead to disciplinary action including in appropriate cases summary 25 dismissal.

[25]The respondent contacted the claimant by text message about engagements for work outside Glasgow (PR37/21 8) between 1 6 February 201 7 and 1 2 April 2017. The claimant did not accept any further engagements from the respondent. S/4100047/201 7 Page 18

[26]On 27 April 201 7 (R36/21 1 ) the claimant wrote to the respondent requesting his P45. He informed the respondent that K/n fact, I stopped to work for Angard Staffing Solutions Ltd since 15 December 2016. Need my P45 to allow to deal with all matter and necessities of my P45. There is emergency”. The respondent replied that the claimant would receive his P45 within 4 weeks. The claimant was informed that if he had any holidays outstanding that they would be paid to him within two weeks (R36/21 2). The claimant was issued with his P45 on 5 May 2017 (R37/213). The claimant questioned the dates of employment on his P45 - the leaving date was recorded as 2 May 2017. The respondent replied by e-mail dated 23 May 2017 (R39/215) confirming that they were unable to amend the date of leaving recorded on the P45 as it "reflects the day that the P45 was requested on our system and not the last day of work”. The respondent apologised for any inconvenience this may cause.

[27]The claimant has applied for alternative employment since 14 March 2017 (C40/1 05-283). To date his applications have been unsuccessful. SUBMISSIONS CLAIMANT’S SUBMISSIONS

[28]The claimant provided the Tribunal with written submissions which he supplemented with oral submissions at the hearing. He also referred the Tribunal to his skeleton argument. What follows is a summary of the above. The claimant submitted that from 28 October 201 6 he was forced by the respondent to work regular night shifts at Royal Mail Glasgow Mail Centre. He claimed that his name was unilaterally removed from the list of late shift employees and that before then he had worked late shifts because of his health condition and concerns about working night shifts with essential hypertension.

[29]The claimant accepted that he did not attend work on 30 November 201 6; 4, 1 2 and 1 4 December 201 6. The claimant submitted however that in terms of S/41 00047/201 7 Page 19 sections 100 of the Employment Rights Act 1996 (“ERA”) and 2(7) (a) of the Health & Safety at Work Act 1974 (“HSE”) and in accordance with clauses 13.1 and 25.3.1 of his contract of employment he had the right to time off work due to ill health. The claimant submitted that on 15 December 2016 the 5 respondent terminated his contract of employment in breach of Clauses 3.1 .2, 13.1, 25.3.1 and 25.5. In addition, submitted the claimant, the respondent failed to follow their disciplinary procedure before dismissing him. His contract of employment having been terminated on 15 December 2016, submitted the claimant, there was no new contract of employment signed between the io parties to reinstate their relationship and he did not consent to any reinstatement of his contract of employment.

[30]The claimant submitted that he was notified by Ayse McKenna of his dismissal by telephone and subsequent e-mail on 15 December 2016. The claimant referred to Sam Slatter’s evidence at the preliminary hearing on 24 April 201 7 15 during which he acknowledged that Ayse McKenna informed him that his contract of employment had been terminated. It has never been denied by the respondent, submitted the claimant, that an e-mail was sent to him on December 2016 by Ayse McKenna confirming that his employment had been terminated. The claimant challenged the evidence of Sam Slatter at the final 20 hearing to the extent that he sought to argue that Arran Gautry and Ayse McKenna were not entitled to dismiss him on 15 December 2016. The claimant submitted that the respondent is vicariously liable for the actions of Arran Gautry and Ayse McKenna. They were acting in the course of their employment when they terminated his contract of employment. The claimant 25 submitted that in terms of Section 95(1) (a) of ERA he was dismissed on December 2016 by the respondent. The claimant submitted that the facts of the case support his analysis. 31 . In relation to his claim of direct race discrimination, the claimant submitted that he was treated less favourably by the respondent because of his colour. 30 The claimant identified the less favourable treatment as dismissal, failure by the respondent to follow their disciplinary procedure before dismissal and dismissal without notice. The claimant identified Sam Slatter as his S/41 00047/201 7 Page 20 comparator. He did so on the basis that Sam Slatter is white and at the time of the alleged less favourable treatment was employed by the respondent as a manager. The claimant referred to the evidence of Sam Slatter regarding his entitlement to sick leave if sick; that he was not dismissed by the respondent for taking sick leave and that he would not be dismissed by the respondent before they had completed their disciplinary procedure and without notice. The claimant compared his treatment to that of Sam Slatter. The claimant submitted that he was dismissed on 15 December 2016 because he took sick leave and was dismissed without any disciplinary procedure and notice. The claimant submitted that it is clear his treatment was less favourable than that of Sam Slatter in the same circumstances. He submitted that the treatment was deliberate and intended to punish him as a black employee. Any reason for the difference of treatment between himself and Sam Slatter, submitted the claimant, is that he is black, and Sam Slatter is white. The claimant submitted that it is permissible to conclude that racial discrimination occurred on 1 5 December 201 6 or in other words it is clear that he has been racially discriminated against by the respondent’s actions and decision to dismiss him on 15 December 2016. The claimant submitted that as a consequence of the respondent’s acts of race discrimination on December 2016, he has suffered and continues to suffer serious injury to feelings which he described as being characterised by stress and unstable blood pressure.

[32]In relation to his claim of automatically unfair dismissal the claimant referred to Sam Slatter’s evidence that the claimant was entitled to sick leave when unwell and could not be dismissed for asserting his “universal natural right and implied statutory right'. The claimant submitted that despite this, he was dismissed on 15 December 2016 by exercising his statutory right to time off work due to illness or sick leave. The claimant submitted that in these circumstances his dismissal was automatically unfair.

[33]Similarly, submitted the claimant his dismissal was automatically unfair as the respondent breached its statutory duty in terms of section 2(1) of HSE. Notwithstanding its statutory duty to care for the health and safety at work of S/41 00047/201 7 Page 21 its employees, submitted the claimant, the respondent without any reason failed in this respect by not making further enquiries to ascertain information and gain an understanding of his health condition and its impact on his ability to work night shifts. In support of the above submission the claimant referred 5 to passages from earlier decisions of the Tribunal and EAT. The respondent, submitted the claimant, dismissed him by breaching its statutory duty of care in terms of section 2(1) of HSE. The respondent, submitted the claimant, forced him to work night shift in circumstances where they had been informed that this was putting him at a serious health risk by adversely affecting his io health condition. The fact the he did not attend work because he was sick was evidence, submitted the claimant of how night shifts negatively affected his health condition. His dismissal in these circumstances, submitted the claimant, was automatically unfair.

[34]The claimant also submitted that he was automatically unfairly dismissed for 15 asserting a statutory right in terms section 7 of HSE. He submitted that working night shifts was putting his health at serious risk and adversely affecting his health condition. To protect himself against this danger, submitted the claimant, he asserted his statutory duty in terms of section 7 of HSE by taking care of his health and safety. Taking action to care for his own 20 health and safety, submitted the claimant, resulted in him avoiding attendance at work on night shifts. The respondent automatically unfairly dismissed him, submitted the claimant, because he had asserted his duty to take care of his health and safety.

[35]The claimant also submitted that he was automatically unfairly dismissed by 25 the respondent for asserting a statutory right in terms of section 100(1 )(e) of ERA. The claimant submitted that having to work night shifts was dangerous given the adverse effect such work had on his health. The claimant submitted that the work at Royal Mail’s Glasgow Mail Centre was very demanding and physical. The claimant submitted that working night shifts in these conditions 30 adversely affected his health condition of essential hypertension. The claimant submitted that he took appropriate steps to protect himself given the impact that working night shifts had on his health and which he reasonably S/41 00047/201 7 Page 22 believed to be serious and imminent. This, submitted the claimant, led him to take action which resulted in him avoiding attendance on night shifts. The claimant referred the Tribunal to the case Mr K Oudahar v Esporta Group Ltd

UKEAT/0566/10

in support of his submission that it is irrelevant that the employer disagrees with the employee about the existence of the danger or the appropriateness of the steps taken by the employee. It is sufficient, submitted the claimant, if the employee’s belief and the danger is genuine and the steps taken were in fact appropriate. The claimant submitted that he was summarily dismissed by the respondent in response to the assertion of his statutory right to protect himself against the danger he reasonably believed to be serious and imminent. His dismissal, submitted the claimant, was therefore automatically unfair.

[36]In addition, submitted the claimant, he was dismissed under section 1 04(1) (b) of ERA for asserting his statutory right in terms of section 1 00 of ERA; section 7 of HSE and his “natural and statutory right to “time off work due to ill-health condition (statutory sick leave)". The claimant submitted that in response to the assertion of his statutory rights, the respondent dismissed him. The claimant described the “allegation of the infringement” as having occurred after “the infringement" took place on 15 December 2016 when he was informed by Ayse McKenna that his contract of employment had been terminated. The claimant submitted that in in response to Ayse McKenna’s telephone call, he had alleged that by dismissing him the respondent had infringed his statutory rights. The respondent, submitted the claimant, ignored his allegation and confirmed the termination of his contract in Ayse McKenna's subsequent e mail. His dismissal in these circumstances, submitted the claimant, was automatically unfair.

[37]The claimant submitted that the respondent also wrongfully dismissed him on the grounds that clause 3.1 .2 of the contract of employment imposed on them the obligation to give him one week’s notice of dismissal. The claimant submitted that he had more than 4 weeks’ continuous employment but less than 2 years' continuous service when dismissed. The respondent was therefore obliged to compensate the claimant for their breach of contract. The S/4100047/201 7 Page 23 respondent submitted the claimant should compensate him by the amount equal to what he would have earned had he worked the notice period including all benefits such as holiday and pension. Since he did not have normal working hours under the contract of employment, submitted the 5 claimant, the respondent is liable to pay him the equivalent of a week’s pay. The claimant referred the Tribunal to section 89(1) of ERA. The claimant submitted that the amount of a week’s pay should be calculated in accordance with section 224(2) (a) of ERA because he did not have normal working hours.

[38]The claimant further submitted that the respondent breached clauses 25.3.1 io and 25.5 of his contract of employment. The claimant submitted that clause 25.3.1 of his contract of employment gave him the contractual right not to perform his duties and obligations if prevented by ill health or other unavoidable cause. In conjunction with clauses 25.1 and 25.3.1, submitted the claimant, clause 25.5 of his contract of employment obliges the 15 respondent to take disciplinary action against him and to impose disciplinary action if the claimant breaches any provisions in clauses 25.1 to 25.4 as opposed to summarily dismissing him without any disciplinary procedure. The claimant described the obligation to apply the disciplinary procedure as mandatory. This included, submitted the claimant, circumstances in which the 20 respondent believed that the claimant had breached clause 25.3.1 of the contract of employment by not working when he was sick. The claimant submitted that by dismissing him on 1 5 December 201 6 the respondent totally ignored the above clauses. Had they followed the clauses, the claimant submitted that he would not have been dismissed for at least 2 years or 104 25 weeks. His loss of earnings therefore, submitted the claimant, was equivalent to 104 weeks, exceeding the maximum compensation for breach of contract of £25,000.

[39]The claimant submitted that throughout the proceedings, the respondent has been totally dishonest and that their evidence should therefore be 30 disregarded, and a finding made that they have acted unreasonably. The claimant submitted that at stages in the proceedings the respondent has engaged in fraud by falsifying and forging documents that they presented as S/41 00047/201 7 Page 24 genuine evidence in particular at the preliminary hearing on 24 April 201 7. The claimant submitted that Arran Gautry’s e-mail (C16/60) is an important piece of evidence because it shows that he was dismissed by Ayse McKenna in conjunction with the team manager on 15 December 2016. It is the claimant’s position that the respondent fraudulently altered and forged the above e-mail (C16/60) by removing the first line. The respondent’s position that the deletion was in error, submitted the claimant, is why he requested a witness order to call the respondent’s employee, Chris Moylan, who was responsible for the deletion.

[40]The claimant submitted that the respondent has also deliberately lied to the Tribunal about their receipt of another important e-mail that he sent to Sam Clawson on 11 November 2016 (C19/63) in which he requested that he be removed from the night shift list and transferred to the late shift. The respondent deliberately lied to the Tribunal by denying receipt of the e-mail (C19/63) in their grounds of resistance, submitted the claimant; this was notwithstanding Sam Clawson having acknowledged receipt. The respondent’s witnesses confirmed at the preliminary hearing on 24 April 201 7, submitted the claimant, that they had received his e-mail of 11 November (C19/63) and 17 November 2016 (C21/65). The respondent also lied to the Tribunal in its grounds of resistance, submitted the claimant, by denying that he was dismissed. He referred to the evidence of Sam Slatter before the Tribunal on 24 April 201 7 during which he acknowledged in cross-examination that he had been informed by Ayse McKenna that his contract of employment was terminated, a fact which was confirmed by the respondent’s representative on 13 December 2017 by e-mail to the EAT (C1/1). In the same e-mail (C1/1), submitted the claimant, the respondent’s representative confirms that they have never at any stage denied an e-mail was sent to the claimant on 15 December 2016 by Ayse McKenna confirming that his employment was terminated. The claimant also referred to the e-mail sent to him by Arran Gautry on 23 December 2016 in which, he submitted, Arran Gautry acknowledged that he had instructed Ayse McKenna to notify him that his contract of employment had been terminated. The first line in the original version of that e-mail is evidence of this, submitted the claimant. S/4 100047/201 7 Page 25 41 . In conclusion, the claimant submitted that he suspects the respondent lied to this Tribunal by asserting that it was a manager from Royal Mail’s Glasgow Mail Centre who instructed them to dismiss him. The claimant referred to the respondent’s inability to disclose evidence to support this assertion. It is also 5 the position, submitted the claimant, that Royal Mail have been unable to disclose an e-mail sent to the respondent on 15 December 2016 confirming that they did not wish him to be allocated any further shifts. This is notwithstanding the Tribunal’s Order for disclosure of any such e-mail, submitted the claimant. io42. The claimant described the respondent as having acted totally dishonestly in defending the claim. He referred to the heart of the respondent’s defence as a deliberate and cynical falsehood that “Royal Mail has asked the respondent on 15 December 2016 to dismiss the claimant from working at Royal Mail Glasgow Mail Centre” The claimant submitted that the respondent knew it 15 was a falsehood and was why he had asked them to provide him with a copy of the email sent by Royal Mail on 1 5 December 201 6 asking them to dismiss him from working at their Glasgow Mail Centre. The claimant submitted that is not surprising that they have been unable to disclose a copy of that email in response to the order made by the Tribunal on 9 April 201 9. 20

43. The claimant submitted that the respondent’s behaviour in relation to the purported email from Royal Mail is evidence that it was acting dishonestly in defending the claim and that their evidence is not credible. The claimant referred to his various requests for disclosure of the e mail. It was not until the final hearing on 9 April 2019 that the respondent’s representative 25 acknowledged that he did not have the e-mail submitted the claimant. The e mail, submitted the claimant, has never existed and the respondent was simply lying to the Tribunal and “totally dishonest”. The claimant submitted that the respondent’s falsehood in relation to their receipt of an email is sufficiently serious to undermine the truth and merit of their entire defence on 30 the basis that a “party’s falsehood or other fraud in the preparation and presentation of his case is receivable against him as an indication of his consciousness that his case is an unfounded one”. The claimant submitted S/41 00047/201 7 Page 26 that the Tribunal should infer from this that the defence lacks truth and merit in relation to all of the alleged facts constituting the defence. The Tribunal, submitted the claimant, should dismiss the entire defence advanced by the respondent for lack of truth and merit.

ISSUES

(ii) for a health and safety reason or

CONCLUSION

[80]For the above reasons the Tribunal concluded that(i) the claimant had not been discriminated against by the respondent because of his race in terms of section 13 of the Equality Act 2010;

(ii) the claimant had not been unfairly dismissed by the respondent either in terms of section 100 of ERA for health & safety reason or section 104 of ERA for assertion of a statutory right and that

(iii) the respondent had breached the contract of employment (C6) by failing to give the claimant notice of his dismissal. The Tribunal calculated that the claimant was entitled to damages for £165.15 (£132.15 plus £25% uplift) and accordingly, an award has been made for the above sum. Employment Judge: Frances Eccles Date of Judgment: 31 July 2019 Entered in register: 06 August 2019 and copied to parties EMPLOYMENT TRIBUNALS (SCOTLAND) Case Number: 4100047/2017 Held in Glasgow on 20 September 2019 Employment Judge: Frances Eccles Member: Peter O’Hagan Claimant In Person Mr F Mutombo-Mpania Angard Staffing Solutions Ltd Respondent Represented by: Dr A Gibson - Solicitor

[1]The claim was presented on 12 January 2017. The claimant complained of automatically unfair dismissal, disability discrimination, race discrimination and breach of contract. He sought an award of compensation against the respondent of £572,967.50. The claim was resisted. The claimant sought strike out of the response. The application was refused at a preliminary hearing held on 16 March 2017. The issue of whether the claimant has a disability was considered at a preliminary hearing held on 24 April 2017. By judgment dated 8 May 2017 Employment Judge Wiseman found that the claimant is not a disabled person within the meaning of the Equality Act 201 0. The claimant applied for reconsideration of the above judgment. The claimant appealed to the EAT against the above judgment. The claimant’s application for reconsideration was refused by judgment dated 30 June 201 7. The EAT notified the claimant on 26 September 2017 that Her Honour Judge Eady was of the opinion that his notice of appeal disclosed no reasonable grounds for bringing the appeal. The claimant sought a hearing under Rule 3(10) of the EAT Rules. The claimant sought removal from the case of Employment Judge Wiseman. He alleged bias.

[2]The claimant made a further application for strike out of the response on 24 November 201 7. He alleged fraud on the part of the respondent’s solicitor. He alleged that the respondent and/or their solicitor had relied on a forged email dated 23 December 201 6 at the preliminary hearing held on 24 April 201 7 and that by doing so had sought to pervert the course of justice. The claimant sought a preparation time order of no less than £100,000 for the proceedings to date.

[3]At a Rule 3(1 0) hearing held on 1 0 January 201 8, the Honourable Lady Wise sitting in the EAT ordered that the claimant’s appeal should be set down for a full hearing. The Tribunal claim was sisted pending the outcome of the claimant’s appeal to the EAT. The hearing before the EAT was held on 17 July 2018. The claimant objected to the claim being sisted beyond 6 September 2018 on the grounds that the Honourable Lady Wise was S/41 00047/201 7 Page 3 deliberately refusing to deliver her judgment to favour the respondent. The claimant alleged bias on the part of the Honourable Lady Wise on the grounds that she had worked at the same law firm as the respondent’s solicitor. The claimant also objected to the claim remaining sisted on the grounds that there should be no further delay in consideration of his application for a preparation cost order and strike out of the response.

[4]By judgment dated 13 September 2018 the claimant’s appeal to the EAT against the Tribunal’s judgment dated 8 May 2017 (finding that he was not a disabled person) was dismissed. By judgment dated 26 September 2018 an application by the claimant for a costs order against the respondent was refused by the EAT.

[5]A preliminary hearing was arranged to consider the claimant’s application for a preparation cost order and strike out of the response. At the claimant’s request, the applications were considered by a full Tribunal. Following a preliminary hearing held on 23 November 2018, the Tribunal issued a unanimous judgment dated 20 December 2018 refusing the applications by the claimant for a preparation time order, strike out order and deposit order. The Tribunal found no dishonesty on the part of the respondent and accepted the explanation provided by the respondent’s solicitor that a mistake had been made in relation to the e mail of 23 December 2016 which was neither reckless or negligent. The claimant applied for reconsideration of the above judgment. He appealed to the EAT. The application for reconsideration was refused on 9 January 2019 on the grounds that Employment Judge Meiklejohn considered that there was no reasonable prospect of the original decision being varied or revoked.

BACKGROUND

[6]In correspondence to the Tribunal dated 9 January 2019 the claimant requested a final hearing to allow him to "go away quickly from the Glasgow Employment Tribunal where injustice is a rule of procedure. Very sad". (claimant’s emphasis). The claimant notified the Tribunal in correspondence dated 1 8 January 201 9 that he did not intend to appeal against the decision to refuse his application for reconsideration because he understood that "this S/41 00047/201 7 Page 4 Employment Judge was determined to do his best to favourite the respondent, Therefore, to make an Appeal before that Judge was a waste of time because he is going to make courageously another perverse decision, what he is an expert to do”, (claimant’s emphasis). The claimant requested that Employment Judge Mieklejohn be barred from hearing his case.

[7]The EAT notified the claimant on 20 February 2019 that in the opinion of Her Honour Judge Eady his notice of appeal against the judgment dated December 2018 (refusing applications for a preparation time order, strike out and deposit order) disclosed no reasonable grounds for bringing the appeal. The claimant sought a hearing under Rule 3(10) of the EAT Rules.

[8]The claim was listed for a final hearing. The claimant applied for witness orders for Lorna Walton of Royal Mail and Chris Moylan of the respondent. The claimant’s application for Witness Orders was granted by the Tribunal. The respondent was subsequently contacted by Lorna Walton who identified Linda Anderson as the person at Royal Mail who may know about the claimant’s case. The respondent’s solicitor informed the Tribunal by e mail dated 7 March 2019 that they had spoken to Linda Anderson who had confirmed that she did have some limited knowledge of the case “having emailed the Respondent to inform them that Royal Mail no longer wished the Claimant to be allocated shifts within the Glasgow Mail Centre”. The respondent’s solicitor suggested that the claimant may wish to amend his witness order accordingly. The claimant confirmed by e mail later that day that he had “nothing to do with Linda Anderson” and would not be amending his witness order. The claimant asked that Linda Anderson provide a copy of the e mail by which she contacted the respondent to ask them to dismiss him. The respondent’s solicitor replied by e mail of 11 March 2019 to advise that they had made enquiries of the respondent who were seeking to locate the e mail in question. The respondent’s solicitor wrote; “Given the time past this may not be possible but we are looking in to if.

[9]During the final hearing the claimant sought disclosure of the e mail said to have been sent by Linda Anderson to the respondent on 1 5 December 201 6. S/41 00047/201 7 Page 5 On 9 April 2019 the Tribunal issued a Documents Order for disclosure by Royal Mail of “all emails sent by Linda Anderson of Royal Mail on 15th December 2016 to Angard Staffing Solutions Ltd about Mr F Mutombo- Mpania". In response to the above Order, the Tribunal was informed by Lorna Walton of Royal Mail that; “Linda Anderson has gained access to her emails but has been unable to locate any emails in December 2016 at all. Linda has contacted our IT department but to date, and she has checked with IT this morning they have so far not been able to locate emails to this period of time". Neither Royal Mail or the respondent have disclosed an e mail dated December 2016. 9 Following the final hearing on various dates in April and June 2019 the Tribunal issued a judgment dated 31 July 2019 that; 1) the claimant was not discriminated against by the respondent because of his race in terms of Section 13 of the Equality Act; 2) the claimant was not unfairly dismissed by the respondent in terms of Section 100 of the Employment Rights Act 1996 (health and safety); 3) the claimant was not unfairly dismissed by the respondent in terms of Section 104 of the Employment Rights Act 1996 (assertion of a statutory right); 4) the respondent was in breach of contract by failing to give the claimant notice of his dismissal & 5) the respondent shall pay to the claimant damages of £165.15 (£132.15 plus 25% uplift) for breach of contract.

[10]The claimant made an application for a preparation time order for the period 1 2 January 201 7 to 6 May 201 9 in the sum of £76,000. The clai mant withdrew his appeal to the EAT against the judgment dated 20 December 2018 S/41 00047/201 7 Page 6 (refusing his first application for a preparation time order, strike out and deposit order). The appeal, having been withdrawn, was dismissed by the EAT on 3 July 2019. 1 1 The claimant applied for reconsideration of the Tribunal's judgment dated 31 July 201 9. The claimant alleged bias on the part of Employment Judge Eccles and identified seven alleged errors of law. The application for reconsideration was refused by the employment judge on initial consideration as the she not satisfied that it identified grounds to justify reconsideration of the Tribunal’s original judgment. The claimant made a second application for reconsideration of the judgment dated 31 July 2019 on the grounds that the employment judge had not provided reasons for refusing the first application. He alleged that the employment judge is “now hiding her motivation to favourite the respondent or (who) is now acting as the respondent solicitor'. The second application for reconsideration was refused by the employment judge on initial consideration as it did not contain any new grounds and, as with the first application, it identified a number of alleged errors of law as opposed to matters that might justify reconsideration of the Tribunal’s original judgment.

[12]The respondent informed the claimant on 7 August 2019 that in their opinion there was no basis on which an application for a preparation time order could be granted based on the allegation of dishonesty on their part given the findings of the Tribunal in its judgment dated 31 July 2019. The claimant was put on notice that if he insisted on making his application that the respondent would make a counter application for expenses for the period 1 9 August 2019 to 20 September 2019.

[13]The claim was listed to consider the claimant’s second application for a preparation time order on 20 September 2019. At the hearing the claimant appeared in person. The respondent was represented by Dr A Gibson, solicitor. The Tribunal provided an interpreter, Ms Isabelle Capoulade. S/41 00047/201 7 Page 7 SUBMISSIONS

[14]In addition to the claimant’s oral and written submissions, the Tribunal also considered the claimant’s application for a preparation time order contained in his written submission for the final hearing in April 201 9; additional written submission dated 6 May 2019 (paragraphs 16 to 20); schedule of preparation time and breakdown of work for the period from 12 January 2017 to 6 May 2019 and two additional documents lodged by the claimant as follows;(1) An e-mail from the respondent’s solicitor to the claimant dated 7 March 2019 (C1) &

(2) An e-mail from the claimant to the Tribunal dated 23 March 2017 (C2).

[15]The claimant was anxious that the Tribunal record in full his final written submission supporting his application for a preparation time order. While recognising the need for proportionality, the Tribunal considered that it was appropriate and in accordance with the overriding objective to record the claimant’s written submission in full. The Tribunal considered the claimant’s final written submission along with his oral submissions and the submissions and documents identified above before reaching its decision. The Tribunal considered the authorities to which it was referred by the claimant. The claimant’s final written submissions are produced below. The highlights are those of the claimant. CLAIMANT’S WRITTEN SUBMISSIONS 'Note of evidence When the claimant had made a witness order application to call Lorna Walton as a witness in this case, the respondent opposed vigorously this application on the ground that Lorna Waiton knew nothing about this case and the respondent proposed to the claimant to amend his witness order to call Linda Anderson instead, as if it was the claimant who bears the burden of proof S/41 00047/201 7 Page 8 showing that Royal Mail Centre sent an email to the respondent on December 201 6. By its email of 07 March 2019 at 11:45, the respondent informed the Employment Tribunal about Lorna Walton’s position regarding this case following an email sent to the respondent by Lorna Walton on 04 March 2019. In that email of 04 March 2019, Lorna Walton said as follow: “Gents, Thank you for your emails. I have just returned from Annual Leave and have a citation waiting for me. I have no problem with attending; however I have absolutely no knowledge or had any dealings with this Gentleman or indeed Angard. This was all dealt with by Linda Anderson, who was covering the Production Supply Manager role at the time. The Production Supply Manager deals with all Angard staffing arrangements and any enquiries regarding Staffing/Attendance of Angard Staff. The Production Control Manager has no daily dealings with Angard in terms of Staffing or Casual attendance information. I will not be able to provide any information regarding his attendance with us or not as the case I believe is concerned. Linda Anderson dealt with this Gentleman’s enquiries at the time. Lorna” That was the same evidence given by Lorna Walton before the Employment Tribunal at the final hearing of 09 April 2019. Lorna Walton had identified the person who was covering the Production Supplier Manager role at the time as being Linda Anderson. She said that it was the Production Supplier Manager who dealt with all Angard staffing arrangements and any enquiries regarding Staffing/Attendance of Angard staff. S/41 00047/201 7 Page 9 However, Lorna Walton did not say that she was Linda Anderson's spokesperson or if she said that by mistake, she did not disclose to the Employment Tribunal any document showing that Linda Anderson has given her any permission to speak or to give evidence before the Employment Tribunal on behalf her about what happened on 15 December 2016 regarding the alleged email sent to the respondent regarding the claimant. Lorna Walton claimed herself that she had absolutely no knowledge or had any dealings with the claimant or indeed Anqard and she would not be able to provide any information regarding the claimant's attendance with Royal Mail Glasgow Mall Centre or not as the case she believed was concerned. Therefore, it is clear that the only person who should has given evidence before the Employment Tribunal about what happened on 15 December 2016 was Linda Anderson. She was not called however as a witness by the respondent who bears the burden of proof or by the Employment Judge Frances Eccles who has showed extreme sympathy for that the respondent wins the case. It was in consequence wrong, as was done by the Employment Judge Frances Eccles in her judgement of 31 July 2019, to say that at the final hearing of 09 April 2019 Lorna Walton, who claimed herself knowing nothing about the claimant’s case, has given clear evidence about the alleged request made by Royal Mail Glasgow Mail Centre by email on 15 December 2016 regarding the claimant. Moreover, Lorna Walton was not that person at Glasgow Mail Centre who should have given that evidence. It was only Linda Anderson who should have done so and Lorna Walton did not say that she was Linda Anderson's spokesperson. Therefore it is correct to say that no one at Glasgow Mail Centre has given evidence before the Employment Tribunal on 09 April 2019 S/41 00047/201 7 Page 10 regarding the existence of the alleged email sent by Royal Mail to Angard on 15 December 2016 with any request regarding the claimant. 2. Note of authorities It is well established that the burden of proof as to any particular fact or allegation lies on that party who wishes the court to believe in its existence. In this case, the burden of proof was on the respondent which wished the Employment Tribunal to believe in the existence of the fact that "it has received by email on 15 December 2016 injunction from Royal Mail to don’t book the claimant for any shifts at Glasgow Mail centre". It was legally obligated to the respondent to discharge the burden of proof showing that that injunction was received on 15 December 2016 via an email as alleged. In the case Re B

[2008] UKHL 35

at paragraph 2, Lord Hoffman said as follow regarding the burden of proof: “If a legal rule requires a fact to be proved, a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. That fact either happened or it did not. If the Tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carried the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If it does discharge it, a value of 1 is returned and the fact is treated as having happened". In the case Daieside Nursing Home Ltd v Mrs C Mathew

UKEAT/0519/08/RN

, The Honourable Justice Wilkie has observed that it would be perverse of a Tribunal to fail to conclude that the making of a false allegation at a hearing before it did not constitute a person acting unreasonably (paragraph 20). S/41 00047/201 7 Page 11 In the case Dunedin Canmore Housing Association Limited v Mrs Margaret Donaidson

UKEATS/0014/09

/B1 , The Honourabie Lady Smith has concluded that a claimant had acted unreasonably in respect that her approach to her case was tainted by dishonesty. A Tribunal had found that the claimant had not been telling the truth in evidence, she had lied on oath regarding a matter which was central to her case. In the case Nicolson Highlandwear Ltd v Gordon Nicolson

UKEATS/0058/09

/B1, The Honourable Lady Smith has judged that an Employment Tribunal can be expected to conclude that there has been unreasonableness on the part of the party where he/she is shown to have been dishonest to his/her claim and then to exercise its discretion so as to make an award of expenses in favour of the other party (paragraph 21). In the case Mr Daniel Munoz Carrasco v Edinburgh Language Academy Limited Case No: S/41 04590/201 6, The Employment Judge Mr C Lucas has judged that if it had been proved that by defending the claim made against it the Respondent had in any way been dishonest then, following the decision of the EAT in the case of Nicolson Highlandwear Limited v Nicolson, the Tribunal might have exercised its discretion so as to make an award of expenses in favour of the claimant. 3.Question to be answered by the respondent and the Employment Judge Frances Eccles On its ground of resistance to the claimant’s claim formulated in its response form, the respondent had referred to the false allegation that “it has received injunction by email on 15 December 201 6 to don’t book the claimant any more at Glasgow Mail Centre” three times: in paragraphs 4, 26 and 27 of its grounds of resistance. The claimant is asking the following question to the respondent and the Employment Judge Frances Eccles: 1 When the respondent representative was writing its grounds of resistance to the claimant’s claim on around 10 February 2017, S/41 00047/201 7 Page 12 did it have in front of it the copy of the email alleged sent by Linda Anderson on 15 December 2016? 2 If the answer to this question is “Yes” why the copy of that email was not disclosed to the claimant following the claimant request of disclosure of that evidence made in his letter of 16 February 201 7, his application of disclosure order email of 23 March 2017 at 13:25 and at the Preliminary Hearing of 24 April 2017 where the respondent repeated this falsehood and misled the Employment Judge Lucy Wiseman who has referred to this falsehood in her judgement of 10 May 2017 at paragraph 21? 3 If the answer to the first question is “No”, why then the respondent representative has referred to an allegation whom it did not have any evidence before it to prove the veracity of that allegation? 4 If the answer to the first question is “No”, how the respondent representative can explain that it did not have a copy of an email allegedly sent to the respondent on 15 December 2016 whereas it wrote its grounds of resistance to the claimants claims on around 10 February 2017, 1 month and 26 days only after that famous email was allegedly sent to the respondent? 5 As the respondent said that it was contacted by email on December 2016, what could have been the relevant to prove that that allegation was true ? If the answer to that question is the copy of that alleged email what must be the consequence of failure to disclose the copy of that email without any reasonable reason? 4. Discussion on the claimant’s application for preparation time order The claimant confirms without hesitation that as the respondent said it was contacted by email on 15 December 2016, the only evidence to show that that allegation was not false was the disclosure of the copy of that email S/41 00047/201 7 Page 13 Or, if the respondent was unable to disclose the copy of that email as it was the case, it should has given adequate reason explaining why it was not in a position to disclose the copy of that email as requested by the claimant since the 16 February 201 7. 5 In her judgement of 31 July 2019 at paragraph 59, the Employment Judge Frances Eccles has recognised that the respondent was unable to disclose the copy of the alleged email of 15 December 2019. Yes, the respondent was unable to disclose the copy of that email without giving any adequate reason why it was not able to do so. io The consequence of this was that the respondent has failed to discharge the burden of proof showing that that email was sent to it on 15 December 2016. Therefore, following the words of Lord Hoffman in the case Re B

[2008] UKHL 35

at paragraph 2, If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having 15 happened. The allegation being simply a false allegation Moreover. In the same judgement of 31 July 2019, the Employment Judge Frances Eccles confirmed that Royal Mail Glasgow Mail Centre was unable as well as to disclose the copy of that alleged email. What the Employment Judge has not said was that Linda Anderson and the

[20]IT department of the Glasgow Mail Centre spent 10 days to search that copy of email without success, following the 2 documents order made by the Employment Judge Frances Eccles on 09 April 2019 and varied on 10 April 2019. The unique conclusion which could be made to this fact was that that email never existed and was never sent. Therefore the 25 allegation that that email was sent was simply a false allegation made before the Employment Tribunal. That is why the Employment Tribunal should conclude that the respondent has acted unreasonably in this case by making a false allegation before it and that a preparation time order should be made in favour of the claimant, in S/41 00047/201 7 Page 14 accordance with the words of the Honourable LadySmith in paragraphs 19, 20 and 21 of her judgement in the case Nicolson Highlandwear Ltd v Gordon Nicolson

UKEATS/0058/09/BI

and paragraphs 24 and 25 of her judgement in the case Dunedin Canmore Housing Association Limited v Mrs Margaret Donaldson

UKEATS/0014/09/BI

, in accordance also with the words of the Honourable Justice Wilkie in paragraph 20 of his judgement in the case Daleside Nursing Home Ltd v Mrs C Mathew

UKEAT/0519/08/RN

, in accordance with the words of the Employment Judge Mr C Lucas in paragraph 51 of his judgement in the case Mr Daniel Munoz Carrasco v Edinburgh Language Academy Limited Case No: S/41 04590/201 6. The claimant invites the Employment Tribunal to consider his Scheduie of preparation time order and the detailed breakdown of the 2,000 hours claimed by him and already submitted to the Employment Tribunal on 09 April 2019. The claimant also invites the Employment Tribunal to consider the submission he made before the same Employment Tribunal in his additional final submissions at the final hearing of 09 April 2019 and the submissions made in his application for preparation time order submitted to the Employment Tribunal at the final hearing of 09 April 2019. " CLAIMANT’S ORAL SUBMISSIONS 16 In his oral submissions, the claimant submitted that he knew which way the Tribunal would decide the application and that given his experience of proceedings in Scotland, he would be seeking a transfer of his claim to Manchester or London for an appeal. He demanded that the respondent or Employment Judge answer the five questions identified at Section 3 of his written submission. He demanded an answer to his questions and referred to his written request (C2) for disclosure of “any evidences ie email or letter by Royal Mail to confirm that it was not wishing my services at their site.” S/41 00047/201 7 Page 15 17 The claimant submitted that the Employment Judge could not be for "one of the parties”. It was not enough, submitted the claimant, for the Tribunal to find that the respondent was probably advised by e-mail from Royal Mail that his services were no longer required. The claimant confirmed that it was his position that there had in fact been no contact between Royal Mail and the respondent. 18 The claimant questioned why the respondent had not called Linda Anderson to give evidence in particular in circumstances where Lorna Watson had explained to them that she did not know anything about the case. The claimant submitted that either the respondent or the Employment Judge should have called Linda Anderson to give evidence. He submitted that Lorna Watson was not a spokesperson for Linda Anderson as she did not have the right to speak on her behalf. 19 The claimant informed the Tribunal that he had sent a copy of its judgment to a friend in America, who after reading it had declared that he was of the impression that Scotland was “like a village”. The claimant informed the Tribunal that he had also obtained advice that if an e-mail is deleted in error, it stays within the computer and that a computing engineer can find it very easily on the computer’s hard drive. The claimant submitted that he did not understand how Linda Anderson and the Royal Mail’s computer department had been unable to recover the e mail. He suggested that the Tribunal call an expert, at the cost of the respondent, to examine Royal Mail’s computer hard drive. If the e-mail was not found by a computing engineer, submitted the claimant, then it does not exist. 20 The claimant submitted that his application is based on the unreasonable conduct of the respondent. The claimant submitted that the respondent’s solicitor has made false assertions to the Tribunal. The claimant submitted that the onus was on the respondent to prove that they were contacted by email and that the Employment Judge had invented a reason to say that they had been contacted. The claimant demanded to know what evidence the Employment Judge had to reach such a conclusion. The existence of a S/41 00047/201 7 Page 16 procedure was not sufficient, submitted the claimant, to prove that contact had been made. The claimant accused the Employment Judge of "hiding behind proof. The claimant submitted that the Employment Judge did not have anything upon which to make the finding in fact and that “this was not justice". The claimant called upon the Employment Judge “to speak to her conscience" and dispense justice. The claimant submitted that he had been left with the impression that Glasgow is a “friends’ club”. He submitted that in Scotland judges are friends with solicitors and “some people got justice and some not as a consequence".

[21]The claimant submitted that because there was no “concrete proof of the email existing that the respondent had failed in their defence. The claimant emphasised the words of Lord Hoffman in the case of Re B (supra).

[22]The claimant referred to the respondent’s solicitor as being “taken offguard" and having lied to the Employment Tribunal. He submitted that he knew the respondent was lying about being contacted by Royal Mail. He knew that they would not be able to prove it He knew that they could not produce the e-mail and that they must be lying. He referred to the respondent’s solicitor as “knowing the truth" and having failed in his duties as a solicitor. The claimant referred to the judgment of the Honourable Justice Wilkie in the case of Daleside Nursing Home Ltd (supra). .

[23]The claimant submitted that his first application for a preparation time order concerned unreasonable conduct on the part of the respondent in relation to falsifying an e-mail. The present application, submitted the claimant, concerned the respondent and their solicitor having lied to him and the Tribunal since 10 February 2017 about having received an email from Royal Mail on 1 5 December 201 6 requesting that he no longer work at their Glasgow Mail Centre. RESPONDENT’S SUBMISSIONS

[24]Dr Gibson has represented the respondent throughout the proceedings. He is the respondent’s solicitor. Dr Gibson submitted that there was no basis for the S/41 00047/201 7 Page 17 claimant’s application. There has been no dishonesty by the respondent or their representatives at any stage in the proceedings. There has been no unreasonable conduct by the respondent or their representative to justify a preparation time order under Rule 76 of the Rules of Procedure 2013.

[25]Dr Gibson referred the Tribunal to its judgment of 6 August 201 9, in particular paragraphs 59 and 60, where the Tribunal addressed the issue of contact between Royal Mail and the respondent. Dr Gibson questioned how an application for a preparation time order based on dishonesty in the present case had any prospect of success. The Tribunal was satisfied that the respondent was contacted by Royal Mail with a request that the claimant no longer work at their Glasgow Mail Centre. Dr Gibson questioned how such a finding could justify a preparation time order based on dishonesty by the respondent regarding the existence of an e-mail. The application, submitted Dr Gibson, was not only misconceived but also vexatious and brought to further harass and inconvenience the respondent. It was misconceived, submitted Dr Gibson, given that the claimant had sought to show that he was dismissed by the respondent. Even if the Tribunal reversed their decision and drew an adverse inference from non-disclosure of the e-mail and found that the respondent had acted dishonestly by referring to the e-mail, it would make no difference to the claimant submitted Dr Gibson as the Tribunal has already found that he was dismissed. The claimant, submitted Dr Gibson, has not been prejudiced by non-disclosure of the e-mail. In any event, submitted Dr Gibson, even if the Tribunal was to draw an adverse influence and find that the respondent acted dishonestly by referring to the e-mail, it was unclear how this would justify a preparation time order given that the vast majority of the case was lost by the claimant.

[26]The existence of the e-mail is of no relevance, submitted Dr Gibson, to whether there was race discrimination or an automatically unfair dismissal. The respondent had denied that the claimant was dismissed. There was clearly a matter of dispute over the facts, submitted Dr Gibson. It did not follow that the respondent acted unreasonably by arguing that the claimant had not been dismissed, in particular given that he was paid to January 2017 following S/41 00047/201 7 Page 18 receipt by the respondent of sick notes. It was entirely reasonable, submitted Dr Gibson, for the respondent to run their defence to the claim of unfair dismissal. It was a question of interpretation of the facts. The claimant’s limited success did not justify a preparation time order for any period of the

claim.

[27]Dr Gibson answered the questions put to him in the claimant’s submissions. He explained that he did not have an e-mail when he prepared the ET3. He had evidence before him regarding contact between Royal Mail and the respondent. He spoke to the individuals concerned who told him about the contact. He had the contemporaneous e-mails which were also before the Tribunal from 16 December to 23 December 2016 which referred to contact between Royal Mail and the respondent. He explained that the manner of contact was not explored in any detail at the time of submitting the ET3. He explained that there was no reason whatsoever for him to doubt the instructions he received from the respondent in relation to contact being made by Royal Mail. There was plenty of evidence submitted Dr Gibson for the respondent to show that they were contacted by Royal Mail.

[28]The claimant responded to Dr Gibson’s submissions by questioning whether he had acted in bad faith or ignorance and accused Dr Gibson of not knowing how to do his job.

[29]In relation to the respondent’s application for expenses against the claimant, Dr Gibson confirmed that the application was limited to costs for today’s hearing. It was made on the basis that the claimant, in making the application, was acting vexatiously, abusively or otherwise unreasonably. Dr Gibson explained that the respondent had had enough of being harassed by the claimant and having to answer hopeless applications. Dr Gibson submitted that the claimant did not have to be legally qualified to understand that the application is without merit. The claimant could have reconsidered whether he intended to insist upon the application. His approach in making the application, submitted Dr Gibson, amounts to an abuse of process. It is S/4 100047/201 7 Page 19 vexatious. The claimant submitted Dr Gibson continues to harass the respondent and act unreasonably.

[30]Dr Gibson acknowledged that there is a high threshold for such applications. He submitted that this is a case in which the high test is met. He submitted that the claimant is abusing the privileges given to members of the public to raise claims before the employment Tribunal. Dr Gibson sought the cost of preparing and appearing at today’s hearing which he calculated to be 5 hours’ work at £1 14 per hour (£95 + VAT). CLAIMANTS RESPONSE

[31]In response to the application made by the respondent, the claimant referred to Dr Gibson being "amongst friends' and that he wished to have his appeal heard in England. He questioned how Dr Gibson as a qualified lawyer could say things before a Tribunal that are untrue, "talk rubbish" and be unable to prove what he said. He referred to a "real lawyer as someone who takes instructions from his clients and asks them to provide the evidence. He referred to his "fundamental right to doubf what the respondent was saying and to require the respondent to prove what they are saying is true.

[32]The claimant referred to the respondent’s application as vexatious. He referred to their inability to prove that they received an e-mail from Royal Mail. He referred to the authorities in his written submissions. He disputed the suggestion that an unsuccessful party to proceedings cannot seek expenses against a party that has acted unreasonably, for example if they have made a false allegation. He submitted that he had a fundamental right to proceed with his application, referring to paragraph 59 of the Tribunal’s judgment, and in particular that the respondent could not produce the copy e-mail. This was sufficient, submitted the claimant, for the Tribunal to make a preparation cost order. The claimant was asked about his current employment status. He confirmed that he is working under a zero hours contract with an income of £8.25 per hour. His hours of work are irregular. He has been employed in the above post since January 2019. The claimant described his outlays as home, debts, food, transport and sending money to his family in the S/4 100047/201 7 Page 20 Democratic Republic of Congo. The claimant informed the Tribunal that he is in receipt of Universal Credit. DISCUSSION & DELIBERATIONS APPLICATION BY THE CLAIMANT

[33]In terms of Rule 75(2) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (“the Rules of Procedure 2013”), a preparation time order is; io “an order that a party (“the paying party") make a payment to another party (“the receiving party”) in respect of the receiving party’s preparation time while not legally represented. “Preparation time" means time spent by the receiving party (including by any employees or advisers) in working on the case, except for any time spent at any final hearing". 15 34 Rule 76(1) (a) of the Rules of Procedure 2013 provides that a Tribunal may make a preparation time order, and shall consider whether to do so, where it considers that; “a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the 20 proceedings (or part) or the way that the proceedings (or part) have been conducted”

[35]The amount of a preparation time order and hourly rate is regulated by Rule 79 of the Rules of Procedure 2013. The number of hours in respect of which a preparation time order is made is calculated on the basis of information 25 provided by the receiving party and the Tribunal's own assessment of what it considers to be a reasonable and proportionate amount of time to spend on preparatory work with reference to such matters as a complexity of the proceedings, the number of witnesses and documentation required.

[36]It is the claimant’s position that by failing to produce a copy of an e-mail sent 30 to them by Royal Mail on 1 5 December 201 6 confirming that he should not be S/41 00047/201 7 Page 21 offered further shifts at the Glasgow Mail Centre, the respondent acted vexatiously, abusively, disruptively or otherwise unreasonably in the way that they conducted the proceedings, entitling him to a preparation cost order in the sum of £76,000. The Tribunal considered the conduct of the respondent 5 and their representative in relation to the e mail of 15 December 2016 and during the course of proceedings generally. In the paper apart to their ET3 (at paragraph 4), the respondent stated; “On 15 December 2016 the Respondent informed the Claimant that the Glasgow Mail Centre no longer wished his services at their site due to his persistent non-attendance at shifts he had io accepted". On 23 March 2017, the claimant sought disclosure of any “evidence ie email or letter'1 sent by Royal Mail to the respondent confirming that they did not wish his services at the Glasgow Mail Centre. The respondent did not disclose any e mails or letters in response to the above request. 15 37 At the preliminary hearing held on 24 April 2017 to determine whether the claimant is a disabled person, the Tribunal heard evidence that the Glasgow Mail Centre contacted the respondent to inform them that they did not wish the claimant to return to work for them (paragraph 21 of the Tribunal’s judgment of 8 May 2017). As referred to above, on 7 March 2019 the 20 respondent’s solicitor informed the Tribunal by e mail that they had spoken to Linda Anderson who had confirmed that she had some limited knowledge of the case “having emailed the Respondent to inform them that Royal Mail no longer wished the Claimant to be allocated shifts within the Glasgow Mail Centre". The respondent’s solicitor suggested that the claimant may wish to 25 consider calling Linda Anderson as a witness. In response, the claimant asked that Linda Anderson provide a copy of the e mail by which she contacted the respondent to ask them to dismiss him. The respondent’s solicitor replied by e mail of 11 March 2019 to advise that they had made enquiries of the respondent who was seeking to locate the e mail in question. The 30 respondent’s solicitor wrote; “Given the time past this may not be possible but we are looking in to if. The e mail was not produced by the respondent. S/41 00047/201 7 Page 22

[38]The claimant questioned Lorna Walton about the email of 1 5 December 201 6 at the final hearing. Lorna Walton explained to the claimant that she did not have a copy of the e mail as she had not been asked to look for it. She explained her understanding of Royal Mail's procedure of contacting the respondent by email about not offering employees any further shifts. She explained that she could not access e mails sent by Linda Anderson and who was on maternity leave. The respondent’s solicitor confirmed that the respondent had been unable to trace the e mail which Lorna Anderson had told him was sent to the respondent on 15 December 2016. As referred to above, on 9 April 2019 the Tribunal issued a Documents Order for disclosure by Royal Mail of “a// emails sent by Linda Anderson of Royal Mail on 15th December 2016 to Angard Staffing Solutions Ltd about Mr F Mutombo- Mpania". Royal Mail were unable to produce any e mails sent by Linda Anderson to the respondent on 15 December 2016.

[39]The claimant submitted that failure to produce a copy of the e mail sent to them by Royal Mail on 15 December 2016 was evidence of dishonesty on the part of the respondent. The Tribunal did not agree with the claimant in this respect. The Tribunal was satisfied from the evidence before it that on December 201 6 Royal Mail contacted the respondent to report their concerns about the number of occasions on which the claimant had failed to attend work and requested that because of his failure to attend work the claimant should not be offered any further engagements at their Glasgow Mail Centre. The Tribunal accepted the evidence of the claimant’s witness, Lorna Walton, that Royal Mail had probably contacted the respondent by e mail on December 2016 in accordance with their procedures. The Tribunal was not persuaded that it should draw an adverse inference from failure on the part of Royal Mail and the respondent to produce a copy of the e mail.

[40]The respondent had sought to show that on 15 December 2016 they were informed by Royal Mail that the claimant should no longer be offered shifts at their Glasgow Mail Centre due to his persistent non-attendance. This was the respondent’s position in response to the claim. From the evidence before it the Tribunal accepted the respondent’s position. The Tribunal did not consider 311 S/41 00047/201 7 Page 23 that failure to disclose a copy of the e mail by which Royal Mail were said to have contacted the respondent was either material to determining the issues before it or something from which it should draw an adverse inference.

[41]The Tribunal was not persuaded that there was any evidence of dishonesty on the part of the respondent or their representative in relation to an e mail of 1 5 December 2016 or otherwise. The respondent and their solicitor sought to assist the claimant where possible to locate a copy of the e mail or at least to identify the person at Royal Mail who was said to have sent it. In all the circumstances, the Tribunal was not persuaded that the respondent and/or their solicitor acted vexatiously, abusively, disruptively or otherwise unreasonably in the way that they conducted the proceedings. The application for a preparation cost award in this case is misconceived and must therefore be refused. APPLICATION BY THE RESPONDENT

[42]As referred to above, the respondent made an application for expenses against the claimant. Costs are defined in Rule 74(1) of the Rules of Procedure 2013 as meaning fees, charges, disbursements or expenses incurred by or on behalf of the receiving party. The respondent sought to recover the expense of resisting the claimant’s application for a preparation time order. As with a preparation time order, Rule 76(1 )(a) of the Rules of Procedure 2013 provides that a Tribunal may make an expenses order and shall consider whether to do so, where it considers that; “a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted”

[43]For the most part the claimant has been unsuccessful in his claim against the respondent. At regular intervals during the proceedings he has made disparaging remarks against the respondent, the respondent’s solicitor and the Tribunal. He has alleged bias and wrongdoing by all of the above. The S/4100047/201 7 Page 24 basis on which the claimant could reasonably have considered that the Tribunal would award him up to £76,000 in the circumstances of this case, the claimant having failed to satisfy the Tribunal that he is a disabled person; failed to establish that he was racially discriminated against and failed to show that he was automatically unfairly dismissed is unclear. It is also unclear the basis on which he reasonably considered that the Tribunal would make a preparation time order in circumstances where an application in similar terms, based on alleged dishonesty by the respondent and their solicitor covering most of the same period, has already been refused. The Tribunal was satisfied that in all the circumstances, the claimant’s conduct in insisting on making his application for a preparation time order is unreasonable.

[44]When deciding whether to grant the respondent’s application, the Tribunal had regard to the principle that an award of expenses is the exception in Tribunal proceedings. The claimant has been unrepresented throughout the proceedings. In terms of Rule 84 of the Rules of Procedure 201 3, the Tribunal is allowed to have regard to the paying party's ability to pay. The claimant informed the Tribunal of his financial circumstances. The claimant was asked about his current employment status. As referred to above, he is working under a zero hours contract with an income of £8.25 per hour. His hours of work are irregular. He has been employed in the above post since January 201 9. The claimant described his outlays as home, debts, food, transport and sending money to his family. The claimant informed the Tribunal that he is in receipt of Universal Credit. In these circumstances, the Tribunal decided that it would not make an order of expenses against the claimant given the strong possibility that to do so would cause the claimant an unacceptable level of hardship. The respondent’s application for an order of expenses is therefore refused.