Case No 4102084/2020Venue GlasgowHearing 30 November 2020
Between
Mr I KhanClaimantFirst Glasgow (No1) LtdRespondent
Before
Employment Judge R McPhersonDate 24 March 2022
JUDGMENT
[1]The claimant’s opposed application for amended paper apart to the ET1, intimated Thursday 3 September 2020, is refused.[2]The claim will proceed to a Final Hearing by way of Hybrid Hearing over a period of 4 days which will be allocated by date listing stencil.
REASONS
[1]Prior to this in chambers hearing I noted from the ET3, although not the ET1, that reference was made to a named trade union. I took the opportunity, via the Tribunal clerks, disclosing to both parties that prior to my appointment as a Fee Paid Judge, and while in a different firm I had acted for that trade union, and sought the views of both parties as to whether either objected to this matter being considered by myself. Both parties confirmed that they did not object and as such I proceeded to consider the case based on the written submissions issued for the claimant and the respondent First Glasgow (No1) Ltd (FG1).[2]As this was a hearing in chambers, no evidence was adduced however it is considered useful to set out areas which are understood not to be in dispute and or agreed or can otherwise be set out from the Tribunal papers.[3]Mr Khan presented his ET1 on Tuesday 7 April 2020 following ACAS Early Conciliation (ACAS certificate identifying receipt of EC notification on Friday 21 February 2020 and issue of the ACAS Certificate on Saturday 7 March 2020) following upon the termination of his employment as a bus driver with the respondent on Friday 29 November 2019. At the time of presentation of the ET1 the current representative was identified as the representative.[4]FG1 presented its ET3 timeously on Monday 18 May 2020.[5]Mr Khan who was employed from Tuesday 30 November 2004 to Friday 29 November 2019 asserts a number of claims including unfair dismissal and direct race discrimination (section 13 of the Equality Act 2010: direct discrimination because of race).[6]The ET1 paper apart records, at para 13, that the claimant seeks “compensation in respect of unfair dismissal and in respect of injury to feelings”.[7]FG1 resist the claims asserted, asserting that that the dismissal was due to conduct and followed a disciplinary process.[8]A case management telephone Preliminary Hearing took place on 28 August 2020 which note was issued to the parties (the August 2020 PH).[9]The claimant’s existing pled case identifies at para 11 of the ET1 paper apart, that the claimant was “aware of two other individuals who were disciplined” for what were said to be similar conduct matters and who were not dismissed, it being intimated that both were white Scottish (the less favourable treatment being not dismissing).[10]While the ET3 made no specific reference to that alleged less favourable treatment, it set out that the claims and facts were denied, “save where 25 expressly stated”. It is noted from the August 2020 PH Note that respondent had asked for details of the identity of the individuals referenced at paragraph 11 of the ET1 paper apart.[11]During the August 2020 PH, the claimants’ representative intimated the names of the two individuals in respect of the alleged less favourable treatment by not dismissing. In addition, the Note of the August PH sets out (at paragraph 5) that the “claimant also wishes to pray in aid” two named comparators, who the August 2020 PH Note identifies, will be argued to have been “dismissed then reinstated”. The August 2020 PH Note sets out that these would illustrate a different act of less favourable treatment “dismissing someone and not reinstating them. This was not, as far as I could see, an act of discrimination which the claimant has yet pleaded”[12]The August 2020 PH Note records that the claimant proposed at the Final Hearing to rely on his own evidence and that the respondent would be calling the Investigating Officer, the Disciplinary Manager, the Appeal Manager and one other employer JG who it is noted “the respondent says may be able to deal with the circumstances of relating to the comparators… The numbers and names of witnesses may need review if there is a successful application to amend the particulars of claim”[13]The August 2020 PH Note set out for the claimant, that it was recognised that the claim “relating to non reinstatement, an event taking place after the relationship of employment of employment had ended, would require pleading.”[14]The August 2020 PH Note identified that the Final Hearing was to be listed for a hybrid hearing from Monday 14 December 2020 to Thursday 17 December 2020. However, the Tribunal confirmed on 25 November 2020 that it could no longer accommodate those dates and proposed that parties either confirm availability for the period January 2021 to March 2021 or a date listing stencil would be issued for that period.[15]Subsequent to the August 2020 PH, the claimant submitted an application to amend with revised proposed paper apart on Thursday 3 September 2020. The proposed amendment to the ET1 paper apart is set out in new penultimate paragraph 12 - with existing paragraph 12 being renumbered as 13 and the final paragraph which was numbered 13, being renumbered paragraph 14.[16]The proposed amendment intimated Thursday 3 September 2020, is set out for ease “The claimant is aware of the a further two individuals who were disciplined for their actions in using a mobile phone to transmit information while driving who were dismissed and were later reinstate. The claimant believes the failure to reinstate him following his dismissal for the lesser action of using the camera function of his phone while driving to be a further act of direct discrimination”[17]The former paragraph 13 of the ET1 paper apart, other than being renumbered as 14 is not proposed to be amended.[18]On Thursday 10 September 2020 for the respondent’s objection was intimated to proposed amended ET1. Written submission[19]For the claimant, written submissions set out that this proposed amendment arises because, upon attending at the Preliminary Hearing in August 2020, it became apparent that should the claimant wish to rely upon all 4 comparators supplied, amendment was necessary. The claimant seeks to argues that the failure to reinstate him was also less favourable treatment because of his race. It is argued that the amendment “provides only slightly more details as to the treatment of” the former colleagues.[20]For the claimant reference is made to the Selkent Bus Co Ltd v Moore [1996] ICR 836/ [1996] IRLR 661 (Selkent) and the Court of Appeal decision in Abercrombie & Others v Aga Rangemasters Ltd [2013] EWCA Civ 1148 / [2013] IRLR 953 (Abercrombie). The claimant references para 50 of Abercrombie which (in summary) refers to relabelling “of the same facts or substantially the same facts as are already in issue” and para 51, further the claimant makes reference to the Limitation Act 1980 section 35(5). Further it argued that it is any event just and equitable to allow the amendment. For the claimant is it argued that he amendment application is made less than 5 months after the ET1, the amendment was promptly sought after the August Preliminary Hearing. It is argued that the claimant has provided the details of a number of colleagues who had been dismissed and reinstated and that the claimant had not been aware that the treatment of these individuals would need to be differentiated from those of the former colleagues who were not dismissed for the same conduct (or misconduct). Further this amendment allows early notice of the full details of the claim to allow the respondent to better formulate defences.[21]On Thursday 10 September 2020 for the respondent’s objection was intimated to proposed amended pleadings, in particular it was set out that the claimant now “seeks to add two additional comparators to the … claim of direct race discrimination. Both individuals were dismissed by the respondent but later reinstated. The claimant’s pleadings …. only made reference to two individuals who were not dismissed by the respondent and to whom the claimant seeks to compare himself for the purposes of his direct discrimination claim.”[22]For the respondent additional to Selkent, the respondent refers to Remploy v Abbott (Abbott) para 82.[23]The respondent further sets out that the claimant was represented from the outset and the ET1 and preliminary hearing agenda for the claimant set out and (I understand it to be argued) gave fair notice of two different comparators both of whom were not dismissed. However, what the claimant is now seeking to do was not only two further comparators but further comparators in respect of whom the treatment was different from the pled case in that they were dismissed but were reinstated. The respondent makes reference to Chandhok v Tirkey UKEAT/194/04[2015] IRLR 195 (Chandhok). The respondent argues that the claimant had sufficient opportunity to formulate his claim “including the number and identity of all comparators identified” Application to amend Time Limit Generally[24]In any such claim such discrimination it would be open to a respondent to argue that a claim set out by the claimant in terms of the EA 2010 was not presented within the time limits set out in Sections 123(1)(a) & (b) of the EA 2010, dealing with this issue may involve consideration of subsidiary issues including whether time should be extended on a "just and equitable" basis; when the treatment complained about occurred; etc.[25]Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before Friday 22 November 2019 is potentially brought out of time, so that the Tribunal may not have jurisdiction to deal with it, the termination of Mr Khan employment is (I understand) agreed to have occurred on Friday 29 November 2019. The three-month time for bringing Tribunal proceedings is paused during Early Conciliation such that the period starting with the day after early conciliation is initiated and ending with the day of the Early Conciliation Certificate does not count (Section 140B (3), EA 2010). If the time limit would have expired during Early Conciliation or within a month of its end, then the time limit is extended so that it expires one month after Early Conciliation ends (Section 140B (4), EA 2010).[26]For claims of discrimination, the Tribunal may consider a claim that is out of time if it considers that it is “just and equitable” for it to do so. Where the compliant is of an equality clause, neither of these possible extensions apply and described that the relevant provisions for such a claim are set out in s129 and s130 of the Equality Act 2010 (EA 2010).[27]Section 123 of EA 2010 provides:(1) Proceedings on a complaint brought within Section 120 may not be brought after the end of (a) The period of 3 months starting with the date of the act to which the complaint relates; or (b) Such other period as the employment tribunal thinks just and equitable.(2) …(3) For the purposes of this section (a) Conduct extending over a period is to be treated as done at the end of the period; (b) Failure to do something is to be treated as occurring when the person in question decided on it.[28]The three-month time for bringing Tribunal proceedings is paused during Early Conciliation such that the period starting with the day after early conciliation is initiated and ending with the day of the Early Conciliation Certificate does not count (Section 140B (3), EA 2010). If the time limit would have expired during Early Conciliation or within a month of its end, then the time limit is extended so that it expires one month after Early Conciliation ends (Section 140B (4), EA 2010). Pleadings Time Limit/Amendment[29]I have reminded myself of the EAT decision in Ladbrokes Racing Ltd v Traynor [2007] 10 WLUK 62 (Traynor). 30. In Traynor the EAT indicated that an application to amend in the course of a hearing, called for a full explanation as to why it had not been made earlier. Mr Traynor had been dismissed after 24 years of service and argued that he has not been given an opportunity to improve his performance. Mr Traynor’s wife (acting as his representative) sought to raise an issue about the fairness of the employers investigatory and disciplinary proceedings. Despite an objection the Tribunal allowed him to amend his claim, to include an allegation of procedural unfairness and to cross-examine witnesses on that issue.[31]The EAT in Traynor indicated that Tribunals should have regard to the following guidance:(a) a tribunal could enquire whether an amendment to a claim form was sought in the light of the line of evidence which a claimant explored;(b) the tribunal should enquire as to the precise terms of the amendment proposed. If it did not do so, it could not begin to consider the principles that needed to be applied when considering an application to amend;(c) it might be advisable to allow the claimant a short adjournment to formulate the wording of the proposed amendment;(d) the respondent could only be expected to respond once the wording of the proposed amendment was known;(e) once the wording of the proposed amendment was known the tribunal should allow both parties to address it before considering its response;(f) the tribunal's response should be that of all members and should take into account the submissions made and the principles of Selkent. The 15 chairman and members might need to retire to consider their decision;(g) the tribunal should give reasons for its decision on an application to amend. The EAT continued that Traynor had not actually made an application to amend, rather he had sought to follow a line of cross-examination which was not foreshadowed in his claim form.[32]Traynor identifies that a Tribunal should have regard to the leading decision on amendment: Selkent. In Selkent, Mummery J sets out the criteria for a Tribunal’s exercise of discretion in relation to amendment commenting that the Tribunal “should take into account all the circumstances and should balance the injustice and hardship of refusing it”.[33]The EAT in Selkent were considering an appeal which arose from an application to amend an existing unfair dismissal claim, where the application had been made a fortnight before the date fixed for the hearing. The amendment sought to introduce a new allegation that the dismissal related to the claimant’s trade union membership or activities and was thus automatically unfair. The Tribunal had allowed the amendment but was overturned on appeal, the EAT commented that that factors which had influenced its decisions were: “(a) The nature of the amendment Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action. (b) The applicability of time limits If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, e.g., in the case of unfair dismissal, s.67 of the 1978 Act. (c) The timing and manner of the application An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Rules for the making of amendments. The amendments may be made at any time – before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.”[34]In Abercrombie, a number of claimants had commenced proceedings in 2009 in the Tribunal in arising out of what was argued to be a temporary change to working days. The claims were expressly identified as being for “unlawful deduction of wages”, i.e. as made under the general jurisdiction in relation to deductions from wages. The “2009 claims” could only determine the claim as regards workless days up to the date that the proceedings were commenced, so the claimants commenced further proceedings to cover the period up to the expiry of what was argued to be an extended agreement (the “2010 claims”). The Tribunal rejected the 2009 claims for guarantee payments, holding amongst other matters that there had been a temporary contractual variation. It dismissed the 2010 claims because, among other matters, it held that they were presented out of time. The EAT dismissed the claimants' appeal ([2013] IRLR 13). The claimants appealed to the Court of Appeal.[35]Para 51 of Abercrombie to which the claimant refers sets out LJ Underhill comments as follows: 51. As to point (c), the judge says that the application to amend 'could have been addressed with much greater expedition'. I have to say that I do not regard that conclusion (which is not amplified anywhere earlier in the reasons) as open to him on the facts. As appears from paragraphs 16–17 above, the amendment only became necessary at all as the result of the respondent's very belated application to amend to take the point under the 2002 Act. That application was first made at the very end of June 2010. The claimants' application in response was adumbrated in Mr Segal's skeleton argument served in October 2010. It was dealt with at the next hearing, though as it turned out that was not until June 2011. That timetable seems to me unexceptionable. In any event the respondent at no point suggested – nor could it realistically have done – that it had suffered any prejudice as a result of the interval of two or three months between the service of Mr Porter's skeleton taking the 2002 Act point and the service of Mr Segal's skeleton intimating an intention to seek permission to amend in response. 52. In summary, I cannot, with respect, agree with Silber J that the refusal of the claimants' application for permission to amend was within the scope of the employment judge's discretion. The respondent had been granted permission to amend, very late, to take a thoroughly technical point on the provisions of the 2002 Act. In my view justice required that the claimants be permitted to amend to plead the best available answer to that point. No new issues of fact were involved and the grant of the application involved no prejudice to the respondent – beyond the obvious but immaterial prejudice that amendment would deprive it of what might otherwise be an answer to the claim” 53. In White v University of Manchester [1976] IRLR 218 EAT (White), J Phillips, considering Further and Better Particulars which could be required to remedy deficiencies as to fair notice comments that “We fully understand, accept and would endorse … that one of the characteristics of Industrial Tribunals is that they should be of an informal nature. It may be that there are many cases, particularly where the parties are unrepresented, or represented otherwise than by solicitor or counsel, and especially where the issues are simple, where particulars may not be necessary. We do not wish to say anything to encourage unnecessary legalism to creep into the proceedings of Industrial Tribunals; but, while that should be avoided, it should not be avoided at the expense of falling into a different error, namely that of doing injustice by a hearing taking place when the party who has to meet the allegations does not know in advance what those allegations are. The moral of all this is that everybody involved, whether it be solicitors, counsel, non-professional representatives, or the parties themselves where not represented, should bring to the problem common sense and goodwill. This involves, or may involve in anything except the simplest cases, giving, when it is asked, 30 reasonable detail about the nature of complaints which are going to be made at the Tribunal…. It is just a matter of straightforward sense. In one way or another the parties need to know the sort of thing which is going to be the subject of the hearing. Industrial Tribunals understand this very well and, for the most part, seek to ensure that it comes about. … by and large it is much better if matters of this kind can be dealt with in advance so as to prevent adjournments taking place which are time-consuming, expensive and inconvenient to all concerned.” 54. As the Employment Appeal Tribunal observed in Khetab v AGA Medical Ltd [2010] 10 WLUK 481 (Khetab) the purpose of the ET1 (and ET3) “…is so that the other party and the Employment Tribunal understand the case being advanced by each party so that his opponent has a proper opportunity to meet it”. Further as Langstaff J Chandhok, which the respondent referred to the parties must set out the essence of their respective cases in the ET1 and in the answer to that (the ET3) and that (to give the slightly fuller quotation) “… an employment tribunal should take very great care not to be diverted into thinking that the essential case is to be found elsewhere than in the pleadings… a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it”. 55. For the respondent, reference was made to para 82 of Abbot. The full paragraph 82 in Abbot is set out for ease: “DISCUSSION AND FINAL CONCLUSIONS: TAKING POINTS NOT IN THE ET1 [82] In my opinion, it is contrary to principle to permit a point to be taken in the Employment Tribunal or on appeal unless it has been pleaded. As a general rule the addition of further Particulars of an existing allegation will require an amendment to be made. If the fresh points can properly be considered to be particularisation of an allegation already pleaded, a more liberal approach may be taken in considering whether to grant permission to amend, than in cases where the point is a “new” point, or will require the parties to produce further evidence or disclosure and prejudice the timetable set for the proceedings or cause further delay. Further as I have already observed, it is not easy to see how the Employment Tribunal could take a point that depends on factual investigation unless the parties have prepared and led some evidentiary material. The question, for example, of whether the Respondent was in breach of its obligations in relation to seeking suitable alternative employment cannot be determined in a factual vacuum. In straightforward cases it may properly be left to the Employment Tribunal to determine for example all the Burchell points or various heads of compensation for unfair dismissal, but in a complex case such as the present case where the parties are legally represented and have pleaded their case with some particularity, any addition to the Particulars will require an amendment, which will have to be applied for and considered in the usual way on conventional grounds. I ask forensically how the Employment Tribunal might have been expected to consider the question of alternative employment if the parties had not raised it. The point could only properly be determined, if the Employment Tribunal were bound to determine the point, if it had been drawn to the attention of the parties, who would then have had to consider what evidence if any might be required and to make appropriate submissions.” 56. The EAT decision in Abbott, followed a hearing before the EAT in 2015 related to a large number of individuals claims arising out of events in 2012 and 2013.The EAT noted that there had been case management in 2014 with witness statements being prepared and a hearing date set for late 2014, when the claimants application to amend was sought and granted regarding allegations regarding redeployment to “other than to other factories”. 57. The respondents in Abbott argued that they were prejudiced including on the basis that managers had been dispersed and documents and email archives were no longer available. The Tribunal had considered that it was bound by the decision in Langston v Cranfield University [1998] IRLR 30 172 (Langston) to investigate in any case of unfair dismissal by reason of redundancy, as implicit in that claim, that the unfairness incorporated unfair selection, lack of consultation and failure to seek alternative employment on the part of the employer, even if not specifically pleaded or raised as issues by the claimants. 58. The EAT in Abbott held that the Tribunal had fallen into error, firstly by allowing amendments that had not been fully formulated or particularised and by considering them together rather than examining each proposed amendment separately. Without properly formulated and particularised draft amendments it was impossible for the Tribunal (or the Respondent) to consider how the amendments would affect the existing case management model and whether or not they could be accommodated by a limited number of lead or test cases, the effect on existing hearing dates, prejudice to the Respondent, for example in identifying necessary witnesses and having access to relevant documentation and information. Further the Tribunal should have considered the reasons for the delay by the Claimants in putting forward the suggested amendments and when they or their legal representatives were first aware of the relevant factual basis for the “new” allegations. It was also necessary to consider the effect on any increase in likely costs to the parties and on expenditure of the resources of the Employment Tribunal. 59. The EAT in Abbott held that the decision in Langston had no blanket application and no application to a case such as the instant case in which the parties were legally represented, had defined in their pleadings the issues they wanted decided by the Tribunal and where there had been extensive and comprehensive case management on the basis of the pleadings. 60. The EAT in Abbott held that permission of the Tribunal was necessary to add new Particulars in any event and it had to consider whether or not to allow amendment on conventional principles as set out for example in Selkent Bus Co Ltd v Moore [1996] IRLR 661. 61. The EAT in Abbott concluded that notwithstanding the reluctance of the Employment Appeal Tribunal to interfere with discretionary case management decisions of Employment Tribunals, the decision in the instant case to grant permission to amend was sufficiently flawed as to require being set aside Issues in relation to Time Limits 62. Section 123 (1) (b) of EA 2010 is set out above. 63. Reference has been made to the Limitation Act 1980, in this regard I have reminded myself of the EAT decision in British Coal Corporation v Keeble [1997] IRLR 336. In that case the EAT suggested that Employment Tribunals would be assisted by considering the factors listed in s.33(3) of the Limitation Act 1980 which in turn consolidated earlier Limitation Acts. Section 33(3) deals with the exercise of discretion in civil courts and personal injury cases in England & Wales and requires the court to consider the prejudice which each party would suffer as a result of granting or refusing an extension, and to have regard to all the other circumstances, in particular: (a) the length of and reasons for the delay; and (b) the extent to which evidence which may adduced for either side is likely to be less cogent than if the action had been brought within the time allowed; and (c) the conduct of the party defending the action after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the party bringing the action for information or inspection for the purpose of ascertaining facts which were or might be relevant to the party bring the action’s cause of action; and (d) the duration of any disability of the party arising after the date of the accrual of the cause of action; and (e) the promptness with which the party bringing the action acted once s/he knew of the facts giving rise to the cause of action; and (f) the steps, if any, taken by the party bringing the action to obtain appropriate professional once s/he knew of the possibility of taking action.64. While I observe that the Limitation Act 1980 to which Keeble refers, does not apply in Scotland, the equivalent legislation being the Prescription and Limitation Scotland Act 1973 (the 1973 Act). However, the 1973 Act does not offer an equivalent codified list of factors to be considered, s19A simply stating: “19A Power of court to override time-limits etc. (1) Where a person would be entitled, but for any of the provisions of section 17, 18, 18A or 18B of this Act, to bring an action, the court may, if it seems to it equitable to do so, allow him to bring the action notwithstanding that provision.”65. Section 123 of EA 2010 does not make reference to either the Limitation Act 1980 or the 1973 Act. It does not seek to define itself by reference to either statutory model.66. It is observed that the onus is on a claimant to establish that it is just and equitable for time to be extended (paragraph 25 of Robertson v Bexley Community Centre (t/a Leisure Link) [2003] IRLR 434, CA)67. As set out in Outokumpu Stainless Ltd v Law UKEAT/01999/07, evidence is required to be placed before the Tribunal in support of an application.68. Further the EAT held in Caterham School v Rose UKEAT/0149/19 (Rose), decision issued 22 August 2019, that when considering, under s123 of the EA 2010, whether discriminatory acts extend over a period of time (to determine if it is just and equitable to extend time to hear a complaint), a tribunal ordinarily should hear evidence. Ms Rose had resigned on 24th August 2017, and put in a claim on 29th December 2017, which, allowing for ACAS conciliation, was out of time. At a Preliminary Hearing, some claims were dismissed, but for discrimination complaints alleged to be acts extending over a period, the tribunal found that it was just and equitable to extend time, having considered only the pleadings. The EAT held that the tribunal made an error of law by deciding it was just and equitable to extend time on that basis, rather than on the basis of evidence. The, EAT observed (at para 59) that there were differences , between consideration of a substantive issue, and consideration of a strike out application, at a Preliminary Hearing, in summary “A strike out application in respect of some part of a claim can (and should) be approached assuming, for that purpose, the facts to be as pleaded by the Claimant. That does not require evidence or actual findings of fact. If a strike out application succeeds, on the basis that, even if all the facts were as pleaded, the complaint would have no reasonable prospect of success (whether because of a time point, or on the merits), that will bring that complaint to an end. But if a strike out application fails, the point is not decided in the Claimant’s favour. The Respondent, as well as the Claimant, lives to fight another day, at the Full Hearing, on the time point and/or whatever point it may be.”69. In O’Neill v Jaeger Retail Ltd [2019] UKEAT/0026/19 (O’Neill), an issue had arisen as to why the claimant in that case had not taken earlier steps, the claimant had relied upon the state of her mental health as relevant, and in particular, on a GP's letter of June 2018. The Tribunal accepted that various personal circumstances, including bereavements, had had a significant impact, but did not consider that the GP's letter showed that her mental health had had a material impact beyond mid-January 2018 at the latest. The EAT observed that it would be important for the Tribunal, at the re-hearing, to have the benefit of sight of all the relevant contemporaneous medical evidence that might be available, whatever it might or might not show, in particular, the GP's records, and not just a single letter.70. Factors which are almost always relevant to an exercise of the discretion are the length of and the reasons for the delay, and whether the delay has prejudiced the respondent (Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] ICR 1194 at paragraph 19).71. However: “There is no … requirement that the tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation of the delay from the claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal ought to have regard (Abertawe at para 25)”. Thus, it is not necessary for a Tribunal to consider the checklist of factors set out in Section 33 of the Limitation Act 1980, given that that Section is worded differently from Section 123 of the Equality Act 2010, so long as it does not leave a significant factor out of account.72. In Robertson v. Bexley Community Centre t/a Leisure Link [2003] IRLR 434 the Court of Appeal identified that for Tribunals considering the exercise of this discretion “there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A Tribunal cannot hear a claim unless the claimant convinces it that it is just and equitable to extend time. So the exercise of discretion is the exception rather than the rule.” Discussion and Decision73. I note that prior to consideration of this application to amend, the Tribunal had required to notify the parties that the Final Hearing which was to be listed for a hybrid hearing from Monday 14 December 2020 to Thursday 17 December 2020 could, as of 25 November 2020 no longer be accommodated for those dates and the Final Hearing will not be allocated for dates in the period January 2021 to March 2021. The issue of proximity to the Final Hearing is thus less significant.74. However, and while consider Selkent and other authorities as set out above on amendment and operation of time limits, I note that the Claimants’ application does not give fair notice in that it does not identify the proposed individual comparators at all. Nor indeed does it identify on what basis those proposed individuals could be comparators in relation to a claim of direct discrimination. It does not set out, unlike at para 11 of the ET1 that such new proposed comparators are for instance white and Scottish. That is not something which can be simply read into the pleadings particularly absent any other specification including identification by name. While the Tribunal notes that existing “dismissed” comparators are also unidentified in the pled case, it would appear from the Note of the August 2020 PH the respondent does not to take issue those comparators not being named and is only (to quote Chandhok) “to be found elsewhere than in the pleadings”. That being said the issue before the Tribunal today is in relation to a proposed amendment.75. The respondents, were the present amendment allowed, would face a claim where there is no fair notice of the identity of the alleged comparators or indeed when the alleged comparator treatment occurred. It is not clear on what basis the claimant considers that an employer could carry out investigation of such a position “in order to better formulate defences”. The comparators may be those individuals referenced in the Tribunal note of the August 2020 or they may be other individuals. It is not clear what the relevance of the two other alleged individuals would be, it is not offered to be pled that either were white Scottish, nor indeed the approximate period in which the alleged comparator treatment is alleged to have occurred. The respondent is entitled to fair notice of the claim which it expected to meet.76. Further and unlike the position in Abercrombie it cannot be said that no new issues of fact were involved and the grant of the application would involve no prejudice to the respondent. The respondent would be expected to answer an allegation where no specification is given of the alleged comparators- by name or date of when the alleged comparator events took place.77. The respondent cannot reasonably be expected to respond and or prepare for a Final Hearing in respect of such matters which may potentially be found elsewhere than in the pleadings. Conclusion78. In all the circumstances the amendment, as formulated and intimated Thursday 3 September 2020 is refused.79. A tribunal is required to receive the submissions of the parties before it. It is required to form a judgment as to the submissions which have persuasive force in coming to a conclusion. It is not required to set out extensively the submissions of the parties in every case. It is required to explain the basis upon which it reaches its conclusion. Sometimes that requires it to set out submissions in summary and on other occasions more fully.80. In coming to this view the Tribunal has applied the relevant case law. R McPherson Employment Judge 30 November 2020 Date of Judgment Date sent to parties 30 January 2021 EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4102084/2020 (V) Held on 26 May 2021 (By Cloud Video Platform) Employment Judge: P O’Donnell Claimant Represented by: Ms Neil - Solicitor Respondent Represented by: Ms Reid - Solicitor Mr I Khan First Glasgow (No 1) Limited
Introduction
[36]It was submitted that the Claimant could lead evidence about inconsistent treatment with other employees in his unfair dismissal claim in the context of the band of reasonable responses test.[37]Ms Neil highlighted that, in assessing the discrimination claim, the Tribunal will have to enquire into the Respondent’s mental processes. She did not accept that Remploy or Madarassy (below) required the claim to be set out in the way in which the Respondent suggested nor why this was a barrier to amendment. These were matters for the final hearing.[38]In relation to time limits, Ms Neil repeated the submission that this was a new point and not a new claim.[39]Reference was made to the case of TGWU v Safeway (below) as authority for the proposition that time limits are not decisive in relation to amendments although they are a relevant fact. Reference was also made to the case of Cocking (below).[40]It was accepted that there was a delay in making the second application caused by the Claimant’s illness. It was also accepted that the second application was a response to the decision on the first application; it was considered that the flexibility with the comparators was not considered. 41 . Ms Neil submitted that given the size and resources of the Respondent adding comparators would not prejudice them but the Claimant would be prejudiced if he was not able to seek to prove what he knows to be true regarding the treatment of him and others.[42]In rebuttal to submissions made on behalf of the Respondent at the hearing, Ms Neil commented as follows:-a. The reason for the delay is set out in the written submissions. S/41 02084/2020 (V) Page 9b. The comparators for the claim set out in the ET 1 as originally pled were not specified initially and it was never said that this claim was not properly formulated.c. The reason for the present application is to provide details of the claim.d. It was not appropriate to appeal the previous judgment in light of the reasons why the first application was rejected; it could not be seen how this would be remedied on appeal. Respondent’s submissions[43]The Respondent’s agent adopted the written submissions accompanying the objection to the application to amend and then made oral submissions dealing with matters raised in the oral submissions made by the Claimant's agent.[44]The written submissions, similar to those for the Claimant, begin by setting out some of the history of the case relating to the first application to amend. They go on to submit that the second application is made on largely the same grounds. They also indicate that they have provided a version of the proposed application which shows the changes between the original ET1 and the proposed amendment. The two elements of the application are then highlighted.[45]Reference is made to the case of Selkent and the submissions turn to the factors identified in that case.[46]First, in relation to the nature of the amendment, it is submitted that the current amendment is very similar to the previous amendment which had been refused and highlights the differences.[47]In contrast to what is submitted by the Claimant, the Respondent submits that the Claimant is seeking to add fresh claims; it is noted that the existing claim relies on two comparators who are not dismissed whereas the Claimant now seeks to rely on comparators who were reinstated. It was submitted that this amounts to two new claims of discrimination. S/41 02084/2020 (V) Page 10[48]Reference is made to the Remploy case and specifically paragraph 82 where a distinction is drawn between amendments which particularise a matter which is already pled and amendments which raise a new point or will require parties to produce further evidence. It is submitted that the current application falls into the latter category and this will require substantial examination of the circumstances of each comparator in evidence and to the reasons for any difference in treatment. It is said that this will lead to additional time and expense.[49]It is submitted that the present formulation of the amendment is lacking in specification as it does not set out any causal link between the difference in treatment and the Claimant’s race. Reference is made to the case of Madarassy v Nomura International pic [2007] IRLR 246 for the need for there to be “something more” for a discrimination claim to succeed. The Remploy case is also relied upon regarding the particularisation of the amendment.[50]In relation to the issue of time limits, it is submitted that these are applicable if the Respondent is correct that this is a new cause of action. 51 . The written submissions go on to set out the chronology of the case and assert that any new claim is out of time. The point is made that the Claimant has been represented during this time.[52]In response to the written submissions on behalf of the Claimant regarding any just and equitable extension of time, the Respondent draws attention to the wording of the original ET1 and the Claimant’s case management agenda which identify that there were two comparators and not four. The two who were dismissed and re-engaged had never been part of the Claimant’s pled case.[53]It is, therefore, submitted that either the Claimant failed to communicate the existence of these comparators to his representative when they took instructions in order to prepare the ET1 and the agenda or that he did so but S/41 02084/2020 (V) Page 1 1 they were not included. Further, these comparators were known about at the hearing in August 2020 but they were not named in the first application.[54]This last point was repeated in the written submissions in the context of the timing and manner of the application. It is then pointed out that there has already been one attempt to amend the claim in similar terms and it is submitted that the Claimant is seeking to make essentially the same amendment relying on essentially the same submissions.[55]In relation to the issue of prejudice, it was submitted that the Respondent had already spent significant time and expense in preparing its defence to the claim. It was explained that witness statements had been prepared and work had been done on a draft statement of agreed facts. The submissions set out attempts by the Respondent’s agent to contact the Claimant’s agent and the response that the Claimant had been unwell and so unable to provide instructions.[56]It was noted that date listing stencils had been issued for a final hearing in May, June and July 2021 so a hearing could be imminent.[57]If the amendment were allowed then the Respondent would have to revisit all of the preparatory work already undertaken at additional expense.[58]For all these reasons, the Respondent submits that the application should be refused.[59]In response to what was said at the hearing by the Claimant’s agent, Ms Reid made the following submissions.[60]There were new facts being pled regarding comparators which required substantial examination of the circumstances of those comparators. To the extent that they may form part of the unfair dismissal claim, it was submitted that this is not in the pleadings and would require amendment. S/41 02084/2020 (V) Page 12 61 . The Claimant needs to show a prima facie case before the burden shifts to the Respondent and he has not done so. The application must, therefore, be rejected.[62]The application has been made a year after the expiry of the applicable time limit and it was irrelevant that the Claimant did not have knowledge of the comparators. It was unclear if he had knowledge at the outset but certainly knew of them in August 2020.[63]In terms of extending the time limit, it was for the Claimant to establish this (Robertson v Bexley [2003] IRLR 434). No reason had been given for the delay of a year in making the amendment.[64]It was submitted that this was the Claimant’s third “bite of the cherry” having had the opportunity to include this matter in the original ET1 and the first application.[65]If the Claimant had disagreed with the decision of EJ R McPherson then he should have appealed the decision.[66]Delay is a factor in Selkent and there has been no explanation for this.[67]Ms Reid repeated the points regarding the prejudice to the Respondent set out in the written submissions.[68]She also sought to distinguish the Famy case relied on by the Claimant on the basis that it was not authority for a broad principle that the comparator could change at any time but, rather, dealt with a situation where the Tribunal rejected the actual comparator relied on but found that a hypothetical comparator would have been treated differently. It was submitted that this case was different. S/41 02084/2020 (V) Page 1 3[69]Finally, she clarified the point that the comparators relied on now did not feature in the ET1 in any form.
Relevant Law
[70]The Tribunal has a general power to make case management orders which includes the power to allow amendments to a claim or response in terms of Rule 29. 71 . The case of Selkent Bus Co Ltd v Moore [1 996] ICR 836 confirms the Tribunal’s power to amend is a matter of judicial discretion taking into account all relevant factors and balancing the injustice and hardship to both parties in either allowing or refusing the amendment. The case identifies three particular factors that the Tribunal should bear in mind when exercising this discretion; the nature of the amendment; the applicability of any time limits; the timing and manner of the amendment.[72]In relation to time limits, the case of Transport and General Workers Union v Safeway Stores Ltd UKEAT/0092/07 confirms that this is a relevant factor in the Tribunal’s discretion and can be the determining factor. However, time bar does not apply, in the context of an application to amend an existing claim, to automatically bar a new cause of action in the same way as it would if the new cause of action was being presented by way of a fresh ET1 .[73]The case of Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650 addresses the procedure to be adopted by the Tribunal in dealing with an amendment In that case, it was held that the claim as originally presented and as amended was the same, that is, that the claimant had been unfairly dismissed by his employer. Given that that complaint had been lodged timeously then the Tribunal had the discretion to allow an amendment that was necessary to hear that claim. In exercising such discretion, the Tribunal should proceed as follows (per Sir John Donaldson at pp656 & 657):- S/41 02084/2020 (V) Page 14 1. They should ask themselves whether the unamended originating application complied with [rule 8(1) of Schedule 1 to the 2013 Regulations]: see, in relation to home-made forms of complaint, Smith v Automobile Pty Ltd [1973] 2 All ER 1105, [1973] ICR 306. 2. If it did not, there is no power to amend and a new originating application must be presented. 3. If it did, the tribunal should ask themselves whether the unamended originating application was presented to the [tribunal] within the time limit appropriate to the type of claim being put forward in the amended application. 4. If it was not the tribunal have no power to allow the proposed amendment. 5. If it was the tribunal have a discretion whether or not to allow the amendment. 6. In deciding whether or not to exercise their discretion to allow an amendment which will add or substitute a new party, the tribunal should only do so if they are satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause reasonable doubt as to the identity of the person intending to claim or, as the case may be, to be claimed against. 7. In deciding whether or not to exercise their discretion to allow an amendment, the tribunal should in every case have regard to all the circumstances of the case. In particular they should consider any injustice or hardship which may be caused to any of the parties, including those proposed to be added, if the proposed amendment were allowed or, as the case may be, refused.[74]In relation to the first element of the application, there being no objection from the Respondent, the Tribunal allows this amendment on the basis that it does no more than provide further specification of an existing claim and is of assistance to the parties and the Tribunal in dealing with that claim. S/41 02084/2020 (V) Page 15[75]In relation to the second element of the application, the Tribunal considers that it is appropriate to address each of the specific factors highlighted in Selkent, consider any other relevant factors and then take all of those into account in balancing the injustice and hardship to all sides.[76]First, there is the nature of the amendment being proposed. The Tribunal considers that the starting point in relation to this is to be clear as to the nature of the claim pled in the ET1 as originally lodged.[77]The fundamental nature of the existing claim is that the Claimant alleges that his dismissal by the Respondent is unlawful either because it breaches the right not to be unfairly dismissed under s94 of the Employment Rights Act 1 996 or because it amounts to direct race discrimination under ss13 and 39(2) (c) of the Equality Act 2010.[78]In assessing the lawfulness of any dismissal, the Employment Tribunal potentially has to take into account the whole process relating to the termination of employment. It is certainly the case that, in the context of an unfair dismissal claim, matters arising from any pre-d ismissal investigation, the dismissal process and the appeal can be relevant to the question of whether the dismissal is unfair or not.[79]The same can be true in a discrimination claim and a claimant may seek to argue that the whole dismissal process, or particular elements of the process, amount to unlawful discrimination.[80]However, in order to determine what case a claimant is offering to prove in any particular discrimination claim, the Tribunal has to consider what is pled in the ET1. 81 . In this case, the ET 1 sets out a narrative of the events leading to the Claimant’s dismissal including the dismissal and appeal processes. In relation to the race discrimination claim, the ET1 makes reference to two white employees who S/41 02084/2020 (V) Page 1 6 were not dismissed for the same conduct for which the Claimant was dismissed and alleges that the decision to dismiss amounted to an act of race discrimination.[82]The amendment seeks to say that the appeal decision also amounts to an act of race discrimination. However, other than the identities of the comparators relied on for this matter, the amendment does not seek to plead new or additional facts.[83]In these circumstances, the Tribunal does consider the nature of the amendment is one that seeks to add a new cause of action; the ET1 as originally pled restricts the act of discrimination to the decision to dismiss (as opposed to the dismissal, or the dismissal process, as a whole) and the allegation that the appeal decision also amounts to unlawful discrimination is a new allegation.[84]However, the Tribunal considers that this is a new claim arising from the existing facts averred by the Claimant. The amendment does not seek to plead new facts beyond the identities of the relevant comparators and the ET1 already included factual averments relating to the appeal. This is not, therefore, a claim arising from wholly new facts which had not been pled to date.[85]Second, there is the issue of the applicability of time limits. Given the T ribunal’s finding that the amendment is seeking to add a new claim (albeit one arising from fundamentally the same facts) then time limits are applicable and there is no question that if the claim being raised by the amendment was being lodged now by way of a fresh ET 1 then it would be out of time.[86]The Tribunal does bear in mind that the issue of time limits is not conclusive in determining an amendment application although it can be an important factor. S/41 02084/2020 (V) Page 17[87]In terms of the question of Tribunal’s discretion to hear a discrimination claim out of time if it is just and equitable to do so, the Tribunal has to consider the reason for any delay. The issue of delay is also relevant to the third “Selkenf' factor (timing) and the Tribunal will set out the matters it has taken account of in relation to the issues of timing and delay when addressing that factor below. For the sake of brevity, the Tribunal will not repeat those at this point but can confirm that it has taken account of those considerations and is of the view that there is an explanation for any delay and this is not a case where the Claimant has simply sat on his hands or otherwise failed to act.[88]Similarly, the assessment of the relative prejudice to both sides in relation to the “just and equitable” discretion overlaps significantly with the assessment of the prejudice to both sides in the exercise of the discretion in relation to the amendment. The Tribunal will set out below the matters which it has taken into account in assessing the relative prejudice to both parties and will not repeat these here for the sake of brevity. However, for the avoidance of doubt, the matters set out below have been taken into account by the Tribunal in coming to a view on the “just and equitable” discretion.[89]There is one issue relating to prejudice that is specific to the issue of time limits in this case which the Tribunal will address now rather than below.[90]That issue is the question of whether the fact that the claim being added by way amendment is out of time (as opposed to just the fact of the amendment on its own) causes any prejudice to the Respondent. In this regard, the Tribunal notes that the Respondent has not suggested that the passage of time would cause it any difficulty in defending the additional claim. 91 . Taking account of that factor and those set out below in relation to prejudice, the Tribunal considers that if the additional claim which is being proposed had come before it by way of a fresh ET1 then it would exercise its discretion to hear that claim out of time on the basis that it would be just and equitable to do so. S/41 02084/2020 (V) Page 1 8[92]In these circumstances, the fact that a claim lodged now would be out of time is not fatal to the application to amend given that it is not a conclusive factor and the Tribunal’s view that this is a case where it would have exercised the “just and equitable” discretion to hear the proposed claim out of time.[93]Third, there is the factor as to the timing and manner of the application.[94]The Respondent is correct that, if matters are considered solely on the basis of the passage of time, the application comes over a year after the claim was lodged.[95]However, that passage of time has to be considered in the context of the events that occurred in the history of the case. In particular, the Tribunal notes the following:-a. The claim was lodged around the time when the country went into the first Covid pandemic lockdown. At this time, all hearings in person were postponed and converted to closed preliminary hearings to discuss how they should be progressed. Steps were being taken by the Tribunal (and all courts across the UK) to find ways to conduct all types of hearing in a safe manner. This inevitably resulted in delays to claims and, in this case, the first preliminary hearing was not heard until 28 August 2020 which is much later than would have been the case in normal times.b. It was at that preliminary hearing that the issue of amendment arose from the comments made by EJ O’Dempsey about the comparators.c. The first amendment application was made within less than a week from that hearing, that is, on 3 September 2020.d. The judgment rejecting that amendment was not issued until 31 January 2021 . S/41 02084/2020 (V) Page 1 9e. The Claimant was unfit to provide instructions at that time due to health[96]Taking account of these matters, it cannot be said that this is a case where the Claimant has rested on his laurels and that the delay was caused by him simply failing to act timeously. It is clear that swift action was taken once the need for amendment was identified and any delay from January to April 2021 is explained by the Claimant’s health issues.[97]It was not suggested by the Respondent that the Claimant should have done something further in the period from the start of September 2020 when the first application was made to the end of January 2021 when the judgment determining that application was sent to parties. In any event, it is difficult to see what the Claimant could have done; he was awaiting the judgment (as was the Respondent) and it would have put all parties to potentially unnecessary expense for the Claimant to have issued the present application before the first was determined.[98]The Tribunal was not provided with any information about when the Claimant was aware of the comparators and when he was aware of the distinction between those who were not dismissed and those who were dismissed and reinstated. He was clearly aware that there were comparators at the point the ET1 was lodged but it was not clear whether he knew the identities of these individuals at time or had an understanding that there was a distinction in how they were treated.[99]He certainly knew about the identity of the comparators and the distinction in treatment by August 2020. What the Tribunal cannot determine is whether the Claimant knew of these matters at a significantly earlier point in time and so whether the application could have been made earlier. S/41 02084/2020 (V) Page 20[100]All that can be determined is that the issue of the additional claim arose relatively early in the history of the claim and was not being raised shortly before the final hearing.[101]At present, no final hearing has been listed although the Tribunal does note that date listing stencils had been provided for May, June and July.[102]Having addressed the specific factors identified in Selkent, the Tribunal considered whether there were any other relevant factors.[103]The Tribunal notes the comments from the Respondent about the amendment failing to demonstrate a causal link between the difference in treatment and the Claimant’s race. Pausing to note that this submission does not reflect the test for direct discrimination (any less favourable treatment has to be on the “grounds of’ the relevant protected characteristic and that is broader than just the Claimant’s race), the Tribunal considers that the Respondent is conflating matters of evidence with those of pleadings.[104]It is correct that the Tribunal has to find “something more” than just a different in treatment and a difference in race to properly conclude that there has been direct race discrimination (Madarassy). However, that is an issue for determination once the Tribunal has heard all the evidence, made its primary findings in fact and drawn any inferences from those findings. A claimant does not need to prove their case in their pleadings or plead evidence, they simply need to give fair notice of the case which the respondent has to answer.[105]In this case, the Tribunal considers that the amendment in its present form, when read in the context of the pleadings as a whole, does give fair notice of the case the Respondent has to answer if the amendment is allowed. The Claimant offers to prove that the appeal decision amounted to an act of direct race discrimination based on the difference in treatment between him and white employees whom he says were in the same or similar circumstances when viewed in the context of all of the facts of the case. S/41 02084/2020 (V) Page 21[106]It did seem to the Tribunal that the Respondent’s submission on this point was based on a restrictive approach of only looking at the amendment on its own rather than reading it in the context of the pleadings as a whole.[107]In any event, the Tribunal was not being asked to assess the prospects of success at this hearing and did not consider that the merits of the case was a factor which should feature heavily in its consideration given that the issues between the parties can only be determined once all the evidence has been heard.[108]The Tribunal does note that this is the second application seeking to add effectively the same claim. However, the basis on which the first application was rejected (that is, the lack of specification) did not wholly dispose of the issue to the extent that issues of estoppel would arise or give rise to an argument that the second application was an abuse of process. It is significant that neither of these issues has been raised by the Respondent in their objections.[109]It was quite clear that EJ R McPherson was rejecting the application in the terms in which it was drafted and so it would be apparent to any reasonable observer that a revised application may well follow.[110]The Tribunal also notes the Respondent’s comments about the correct route for the Claimant being an appeal. However, it agrees with the submissions made by Ms Neil that an appeal would not be capable of curing a defect in the wording of the application. Only a revised wording would be capable of doing so.[111]In any event, an appeal may have caused even greater delay; the Claimant would have had 42 days to lodge his appeal and it would then have had to have gone through the “sift” at the Employment Appeal Tribunal before S/4 102084/2020 (V) Page 22 potentially proceeding to a hearing. Whilst this was going on the Employment Tribunal proceedings would have been sisted and no progress could be made.[112]Turning to the balance of prejudice, injustice and hardship between the parties, the Tribunal considered that there would be a significant prejudice to the Claimant in refusing the application as this would prevent him from advancing a potentially valid claim. The Tribunal does bear in mind that the Claimant is not precluded from advancing his existing unfair dismissal and race discrimination claims if the application is refused.[113]The Tribunal does note that, if the amendment were refused, the Claimant would not be precluded from leading evidence about the two comparators who were reinstated in the context of this being evidence from which the Tribunal could draw adverse inferences of the “something more” required or evidence from which the Tribunal could draw the inference of how a hypothetical comparator would have been treated. 1 1 4. However, a rejection of the application would mean that the Claimant could not seek a finding that the appeal decision was an act of discrimination. There is always a potential that this could be the act of discrimination in circumstances where the decision to dismiss was not and so the Claimant would be unable to seek a remedy for any such act of discrimination.[115]The Tribunal does accept that the proposed Respondent may consider that there is a hardship in that they now have to deal with a claim that they did not previously.[116]However, the Tribunal does consider that this is a limited prejudice; the Respondent has the opportunity to defend the claim and there was no suggestion that they are somehow prevented from doing so or that their ability to do so was prejudiced by the fact that the claim is being added now. S/41 02084/2020 (V) Page 23[117]Further, the additional claim does not significantly increase the Respondent’s potential liability. The losses which flow from any discrimination in the appeal decision are the same as those which flow from any discrimination in the decision to dismiss, that is, the loss of wages flowing from the termination of the Claimant’s employment.[118]The Tribunal does accept that the Respondent would face some additional expense in preparing to meet this additional claim. However, it does not accept the submission that the Respondent would have to “revisit” all of the work done to date. To the extent that this seeks to suggest that the Respondent would have to start from scratch, the Tribunal considers that this is an exaggeration. The Respondent will certainly have to carry out additional work in relation to the new comparators and the appeal decision but it will not have to revisit its preparations in relation to the earlier parts of the dismissal process which are not relevant to the additional claim.[119]In particular, unlike the Remploy case on which it relies, the Respondent has not suggested that it will have any difficulties in undertaking any additional preparation. They do not, for example, seek to say that relevant witnesses are no longer with the business or cannot be traced (indeed, they do not suggest that any additional witnesses are required at all) nor do they say that relevant documents are not available.[120]The Tribunal considers that, although there may be some prejudice to the Respondent in allowing the amendment, this does not outweigh the prejudice to the Claimant in refusing it. There is no suggestion that the Respondent has been prejudiced in their ability to defend the additional claim as a result of either its nature, the application of time limits, the timing of the application, its terms or the fact that it is a second application. The prejudice to the Respondent is the fact that there will be some additional work for them to prepare to meet the claim (although not to the degree suggested by the Respondent) . On the other hand, the Claimant would be prejudiced in not being able to advance a potentially valid claim. S/41 02084/2020 (V) Page 24[121]In these circumstances, taking account of all the matters set out above, the Tribunal allows the second element of the application.[122]Given the Tribunal’s finding on the application, it considers that it would be appropriate to allow the Respondent the opportunity to revise its ET3 to address the additional claim. The Tribunal, therefore, directs that the Respondent should, within 21 days of the date on which this Judgment is sent to parties, set out any adjustment to their ET3 which they are so advised to make.[123]The Tribunal also notes that there was a timetable for preparation for the final hearing which has been affected by both this application and the Claimant’s ill health. Agents are encouraged to agree a revised timetable for compliance with any of the matters outstanding from EJ O’Dempsey’s case management orders and to make a joint motion to the Tribunal for an Order setting that timetable. Employment Judge: Peter O'Donnell Date of Judgment: 01 June 2021 Entered in register: 03 June 2021 and copied to parties ETZ4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4102084/2020 Held in Glasgow on 14,15 and 16 March 2022 Employment Judge M Robison Mr I Khan Claimant Represented by Ms E Matheson Solicitor First Glasgow Respondent Represented by Ms R Smith Solicitor JUDGMENT OF THE EMPLOYMENT TRIBUNAL The judgment of the Employment Tribunal is that the claims of unfair dismissal and 20 race discrimination are not well-founded. These claims are therefore dismissed.
Introduction
[1]The claimant lodged a claim with the Employment Tribunal on 7 April 2020 claiming unfair dismissal and race discrimination. The respondent entered a defence 25 resisting both claims.[2]At the hearing, witnesses gave evidence by way of witness statement. The parties had agreed a significant number of facts, set out in an agreed statement of facts. While this was helpful in some important respects, it should be noted that we found that a good number of those agreed facts were irrelevant to the issues to be 30 determined by the Tribunal.[3]These issues were broadly as follows:a. Given it is accepted that the claimant was dismissed for a potentially fair reason, namely conduct, did the respondent have reasonable grounds for believing the claimant was guilty of gross misconduct?b. Did the respondent act reasonably treating that reason as a sufficient reason in all the circumstances including equity and substantial merits of 5 the case?c. Was the sanction of dismissal within the range of reasonable responses open to the respondent?d. By dismissing and not reinstating the claimant, was he subjected to less favourable treatment than named comparators because of his race?[4]Although the respondent was prepared to show CCTV at the hearing which the respondent relied on, we decided that was not necessary, especially since there was no sound but particularly because the relevant clips had been agreed in the statement of agreed facts.[5]The Tribunal heard evidence first from the claimant. The claimant’s sister, Ms 15 Shamas Ui Nissa Yusuf, submitted a witness statement. However, as the respondent’s representative Ms Smith did not have any questions for Ms Yusuf, she did not attend to give evidence and it was agreed that her evidence, as set out in the witness statement, would be accepted unchallenged.[6]For the respondent, the Tribunal heard from Mr Mark Robertson, staff manager and 20 investigator; Mr Edward McLaughlin, staff manager and dismissing officer; Mr Anthony O’Connor, depot operations manager and appeal officer; and Mr Duncan Cameron, managing director.[7]The Tribunal was referred by the parties to a joint file of productions (referred to in this judgment by page number). Claimant’s application to amend[8]Prior to the commencement of the hearing, Ms Matheson sought to introduce additional material to the final agreed bundle, as well as a supplementary statement of the claimant. Ms Smith argued that so far as these related to an additional comparator, the final amended pleadings made no reference to that fifth 5 comparator. Ms Matheson then made an application to amend. Following adjournment, that application was refused for the following reasons.[9]Having regard to the Selkent principles, we accepted that the application was not to add a new claim, but rather to expand the claimant’s direct race discrimination claim. This meant that the issue of time limits did not require to be considered.[10]However, we did require to consider the timing and manner of the application. This application came very late in the day, at the outset of the final hearing in regard to a claim lodged almost two years ago. There had been two previous applications to amend in this case, both relating to comparators, one of which had been refused and one of which had been allowed.[11]Although Ms Matheson argued that allowing the amendment would not require the hearing to be adjourned, we did not accept that argument. While Ms Smith candidly, but appropriately, advised that Mr Robertson who was giving evidence that morning had also dealt with this individual’s dismissal, we were of the view that the respondent had not been given fair notice of the claimant’s intended reliance 20 on a fifth comparator. We decided that fairness to the respondent would mean that the final hearing would require to be adjourned to allow them to investigate the specifics of the comparator’s circumstances and to lodge any appropriate documentation in return. In such circumstances, we concluded that it was too late to allow such an amendment given the disproportionate implication for expenses.[12]This meant that a passage in the evidence in the claimant’s supplementary witness statement would require to be deleted, but the other paragraphs were accepted as relevant evidence. We also allowed the accompanying documents to be lodged, subject to any objections that Ms Smith might have during the hearing. Findings in Fact[13]On the basis of the evidence heard and the productions lodged, the Tribunal finds the following relevant facts admitted or proved.[14]The respondent is a passenger bus service company operating in Glasgow. It is part of FirstGroup plc, a UK-wide bus operator.[15]The claimant commenced employment with the respondent as a bus driver on 30 November 2004 and continued in that role until he was dismissed for gross misconduct on 29 November 2019, following an incident which took place on 20 November 2019.[16]The claimant is of Kashmiri ethnicity and is black. 10 Respondent’s policies[17]The respondent’s policy entitled “Health and Safety Mobile Comms SOP” states (pages 772 -79): “Mobile Phones or Hand-Held Devices must not be used whilst driving, nor whilst at the side of the road with the engine running” (paragraph 1 (b)); “Use of mobile phones or Hand-Held Devices in buses and company vehicles is restricted to when the vehicle is stationary with the hand brake on and the engine switched off (Note engine switched off and not just stopped as part of any eco stop- start function the vehicle may be fitted with)” (paragraph 1(c)); and “In PCV vehicles, absolutely no mobile phone or hand-held devices are to be used 20 whilst in charge of the vehicle.” (paragraph 1(e)).[18]The respondent’s policy entitled “What To Do In The Event Of A Collision Or Passenger Injury” states (page 80): “In the event that you are involved in a collision you must call 0800 0xx x0xx within 6 hours to report the collision”; “The disposable camera is to be used to supplement information provided in part 2 of the At The Scene Sheet. Photos should be taken of the areas of damage, both of the bus (including fleet number) and 3rd party vehicle (including reg number)/property.” “Photos should be taken regardless of who is to blame” and “The disposable camera and the At The Scene Sheet (collision) or Passenger Incident form (passenger injury) should be handed to Operations Supervisor.”[19]The respondent issued a notice on 9 April 2018 regarding the use of mobile phones (page 70) which stated: “First is committed to the safety and well being of staff, passengers and other road 10 users. With this in mind an employee reported for using a mobile phone, or similar communication devices, as noted above, whilst driving a company vehicle will be deemed as having committed gross misconduct resulting in summary dismissal. Driving includes being in the cab with the engine running. Engines must be switched off”.[20]Unite the Union also issued a notice to drivers highlighting the respondent’s policy on the use of mobile phones (page 71), quoting the policy and stating “It is an offence to use a mobile phone when driving”.[21]The respondent’s driver handbook states: “Although the first priority at any accident is to ensure that danger to life is 20 minimised, once this has been done you should obtain information to enable an incident report to be completed”(paragraph 1.10 – page 44); “If you are involved in a Road Traffic Accident please also take note of the following: relative positions of all vehicles involved; type and registration number of any other vehicles involved; name and address of insurers of other vehicles; 25 description of damage to other vehicle” (paragraph 1.10 – page 44); “The general rule is at NO point should you use a mobile telephone whilst at work. For full details please refer to the Safety, Health and Environmental Manual held in your depot office” (paragraph 4.3 - page 53); and “Examples of offences regarded as gross misconduct…failure to comply with Company Health and Safety and Environmental Policy” (paragraph 4.11 - page 5 57).[22]The respondent’s disciplinary policy and procedure states: “An employee may be subject to summary dismissal i.e. dismissal without notice or pay in lieu of notice in cases of gross misconduct…Examples of gross misconduct may include…failure to comply with Company Health and Safety and 10 Environmental Policy” (paragraph 23 – page 66).[23]The claimant was aware of the respondent’s policy regarding the use of mobile phones in company vehicles.[24]Clause 13 of the claimant’s contract of employment states: “The Company will give no notice, or payment in lieu of notice, if your employment is terminated on grounds 15 of your material breach of contract or gross misconduct” (page 37).[25]Clause 16 of the claimant’s contract of employment states: “It is a condition of your employment that you work safely, having regard to yourself and those around you. You must also comply with all Company procedure and practices from time to time relating to health and safety matters. Any failure to do so may result in disciplinary 20 action being taken against you, which in serious cases may include dismissal without notice” (page 37). Events of 20 November 2019[26]On 20 November 2019 the claimant was driving the respondent’s bus at Anniesland Cross on Great Western Road in Glasgow. The driver of another vehicle alleged 25 that the claimant had hit his vehicle during the manoeuvre. The claimant did not believe he had hit the other driver. The claimant was required to gather photographic evidence of what had happened, if it is possible to do so safely.[27]The CCTV captured of the relevant time period shows the following:a. The claimant spoke with the other driver through the window of his bus (at 12:53:40 GMT, 12:54:52 GMT, 13:06:23 GMT and 13:07:18 GMT). The 5 driver is very animated and can be seen through the cab window pointing and gesturing (at 12:54:52 GMT, 13:06:42 GMT and 13:07:18 GMT).b. The claimant removed his phone from his pocket whilst sitting behind the wheel of his bus. He took a photo of the other vehicle through the window of his bus (at 12:56:10 GMT).c. The claimant drove the bus along to a bus stop and exited his bus (at 13:03:49 GMT and at 13:07 44 GMT). The other driver did the same.d. The claimant took another photo of the other driver’s car whilst behind the wheel of the bus. The engine was running. He stood up in his seat to take the photo through the window (at 13:09:40 GMT). When he sat back down, 15 he took the bus’s handbrake off and then took another photo on his phone (at 13:09:58 GMT).e. The claimant drove his bus with one hand on the steering wheel and one hand holding his mobile phone and pressing or otherwise interacting with the screen. The claimant was looking between the phone and the road as 20 he was driving (at 13:10:01 GMT to 13:12:31 GMT).[28]The claimant filled in an incident report about the incident to give to his manager (page 147). Investigation and disciplinary hearing[29]By letter dated 22 November 2020, the claimant was suspended from duty on full 25 pay pending an investigation (page 151). The letter did not make reference to use of a mobile phone while driving but put the claimant on notice that the outcome of this investigation may be that disciplinary action up to and including dismissal is taken.[30]The claimant attended an investigatory meeting on 26 November 2019. It was held by Mark Robertson. The claimant was accompanied by a union representative, Henry Hanlon.[31]The CCTV from the claimant’s bus on 20 November 2019 was viewed at the meeting. Because of some difficulty in viewing the CCTV, those present did not view the latter part of the extract.[32]The claimant was then invited to attend a disciplinary hearing by letter dated 26 November 2019 (page 154) and advised that the outcome may be that disciplinary 10 action up to and including dismissal is taken. A copy of the respondent’s policy relating to the use of mobile phones was enclosed.[33]The disciplinary hearing took place on 28 November 2019. It was chaired by Eddie McLaughlin. The claimant was accompanied by a trade union representative, Henry Hanlon. There was also a notetaker present. The claimant described what 15 happened on 20 November 2019. He advised that he had felt threatened. He was asked if he had contacted the police or the respondent’s control room. The CCTV of the incident was also viewed.[34]Mr McLaughlin decided that the claimant’s employment should be terminated with immediate effect due to his breach of the respondent’s policy on the use of mobile 20 phones. He wrote to the claimant confirming his decision by letter dated 29 November 2019 (page 160).[35]The letter stated: “At your disciplinary hearing by your own admission you stated that you did have the phone in your hand but insisted this was only when the vehicle was stationary and in response to feeling threatened by another road user. 25 However subsequent viewing of CCTV evidence from your vehicle confirms to the contrary and in fact showed you driving your vehicle some distance with the phone in your hand with clearly no threat to you present at that time, thus placing the safety of yourself, your customers, other road users and pedestrians in jeopardy.” Appeal[36]The claimant appealed against the decision to summarily dismiss him by letter dated 30 November 2019 (page 161). His grounds of appeal can be summarised 5 as follows: he was using the communication device as a camera as he had not been supplied with one by the company; the other road user was aggressive and abusive making him very nervous; the bus was moving very slowly when he took the pictures; he was very shaken and more concerned about a false claim against the company; he was “very aware that I done wrong” but because other drivers 10 have used their phone to make a telephone call and have not being dismissed and he felt his case was dealt with harshly; he was being honest reporting a near miss; losing his job had a detrimental effect on his family and home life and he really valued his job.[37]The claimant attended an appeal hearing on 10 December 2019. The appeal was 15 heard by Tony O’Connor and the claimant was accompanied by two trade union representatives, Mick Dowds and Eugine Liddle. A notetaker was also present.[38]Mr O’Connor did not uphold the claimant’s appeal. He wrote to the claimant on 12 December 2019 to confirm his decision (page 164) and confirmed: “Taking everything into account it is my view the decision to terminate your employment 20 was proportionate to the offence committed, therefore, I am upholding the decision to dismiss you due to your clear breach of the Firstgroup Mobile Devices and Driving Policy and UK law. I know you will be disappointed with my decision, but your actions constitute gross misconduct on your part as discussed at your hearing, I will also be reporting this matter to the Traffic Commissioner of Scotland.”[39]The claimant had exhausted the respondent’s internal process and had no further right of appeal. Report to Traffic Commissioner[40]The respondent wrote to the Traffic Commissioner on 17 December 2019 to notify them of an offence committed by the claimant (page 165). The claimant was subsequently advised on 3 January 2020 (page 166- 167) of the requirement to attend a hearing, to give evidence and make any representations to demonstrate 5 he should retain his PCV driving entitlement.[41]When making assessments about whether a driver’s licence should be revoked or otherwise based on their conduct, the Traffic Commissioner relies on guidance setting out how traffic commissioners should interpret the law in relation to vocational driver conduct. The guidance refers to factors which the Traffic 10 Commissioner will take into account, and includes examples of aggravating and mitigating features for various offences, including including mobile phones and tablets (page 122).[42]The guidance does not impose any obligations on a vocational driver’s employer regarding how they should approach conduct issues, or what sanctions they are 15 advised or required to impose in respect of any conduct issued involving their driver. The respondent did however take this guidance into account when drawing up their policies, including that relating to mobile phones.[43]By letter dated 4 February 2020, the Traffic Commissioner wrote to the claimant advising that after his attendance at the hearing on 3 February 2020, the Traffic 20 Commissioner “is satisfied that, as regards to your conduct, you are fit to hold PCV driving entitlement. As a result, the Traffic Commissioner has decided not to take any further action against your entitlement. However, the Traffic Commissioner wishes to remind you that the standards expected of vocational drivers are much higher than those for other drivers. This letter serves as a warning that any 25 notifications of further endorsements or offences against you (including convictions for overloading, drivers hours and record offences) may lead to the revocation (taking away) of this entitlement and disqualification from holding the entitlement for a period of time or indefinitely”.[44]On 10 February 2020, the claimant’s solicitor wrote to the respondent requesting reinstatement (page 170). The respondent’s Head of HR responded to confirm that the respondent would not be reinstating the claimant (pages 172-173). It was also noted in the letter that the claimant had been treated consistently in line with similar cases and that any “penalties issued by the Traffic Commissioner sit outside the 5 employment relationship and relate to the PCV licence holder only. The penalty issued by the Traffic Commissioner in this case does not alter the fact that the managers involved in the disciplinary process (supported by clear CCTV evidence) have found your client to clearly be in contravention of our company policy in relation to mobile phones”. Comparators[45]The personnel records of James Reid, an employee of the respondent who is white and Scottish, indicate that he was dismissed on 10 October 2009 for “using a mobile phone whilst driving a bus” but later reinstated on appeal with “the award of first and final warning and six days suspension” (page 174). The respondent has 15 been unable to locate any other paperwork relating to this matter and the manager who dealt with the proceedings is no longer employed by the respondent.[46]Frank Holmes, an employee of the respondent who is white and Scottish, was disciplined after he answered his mobile phone whilst behind the wheel of his bus. Mr Holmes was dismissed but later reinstated following an appeal. The manager 20 who dealt with the proceedings is no longer employed by the respondent. The respondent believes that the incident occurred around 2009. The respondent has been unable to locate any paperwork relating to this matter and Mr Holmes’ disciplinary record is blank (pages 184-186). The reason those pages are blank is an error when data was transposed during a standardisation process across the 25 group in 2009.[47]When Mr Cameron became aware that the claimant was relying on Mr Holmes as a comparator, he spoke to his now line manager and ascertained that the bus was not moving at the time of the incident.[48]The personnel records of Jake McGregor, an employee of the respondent who is white and Scottish, indicate that he was given a warning in 2007 for using a mobile phone (page 187). The respondent has been unable to locate any other paperwork relating to this matter or establish which manager dealt with it.[49]The personnel records of Roger Sweeney, an employee of the respondent who is 5 white and Scottish, contain no record of him having been disciplined for the use of a mobile phone (pages 188-192). More recent dismissals for mobile phone use[50]The respondent relies on the treatment of six anonymous employees dismissed more recently. The information produced indicates as follows: 10• Employee 1 “was dismissed on 1 December 2017 for gross misconduct (using a mobile phone whilst driving a company vehicle on 20 November 2017)” (page 175).• Employee 2 whose dismissal was upheld on appeal on 2 May 2018, had breached the mobile phone policy and it was noted from CCTV that “on one of 15 the two occasions [he] breached the policy the vehicle was still in motion and had not even come to a complete stop when [he] had the phone in [his] hand” (page 176).• Employee 3, whose dismissal was upheld on appeal, had breached the mobile phone policy. It was noted from CCTV that “on one of the two occasions [he] 20 breached the policy the vehicle was in motion and [he] had just not long moved off from a bus stop when [he] had the phone in [his] hand and viewing it” (page 177).• Employee 4 was dismissed for gross misconduct on 31 January 2019 following consideration of CCTV, “due to …using a mobile phone whilst in the cab with 25 the engine idling and driving… (page 178 and 179). That decision was upheld on appeal (page 180).• Employee 5, whose dismissal was upheld on appeal on 29 April 2020, had breached the mobile phone policy. It was noted from CCTV that “the bus was in motion whilst [his] mobile phone was leaning against the ticket machine displaying some video footage. [He] also admitted to the staff manager [he had] been using the phone whilst the engine was running” (page 182). 5• Employee 6 was dismissed on 25 May 2020 for using his mobile phone in the cab immediately prior to a collision, with the vehicle was stationary and the engine running within Scotstoun depot. He was then seen on CCTV to put his phone away and move off whilst interacting with his Ticketer machine and collide with the stationary bus whilst distratcted. That decision was upheld on 10 appeal (page 183).[51]In total, twenty seven employees have been dismissed in the last five years across the respondent’s business in Scotland for using a mobile phone. The respondent has been able to establish the race of only fifteen of these employees, and fourteen of those were white and Scottish, and one was black and Caribbean (page 193). 15 The document summarising this contains no information surrounding the circumstances leading to the misconduct of these employees.[52]Between 2018-2020, one employee, ethnicity and colour unconfirmed, who was dismissed for a breach of the mobile phone policy, was reinstated on appeal by Mr Cameron. This was because at the time of the mobile phone use the vehicle was 20 not in motion and the handbrake was secure. The engine was running but there was no threat to safety of passengers or other road users.[53]The claimant attended at his general practitioner on 12th February 2020. The claimant was diagnosed with anxiety and his doctor declared him unfit for work. The claimant was signed off as unfit to work from 12th February 2020 until 13 April 25 2020, from 19 June 2020 to 24 July 2020 and from 24 August 2020 to 22nd June 2021. The claimant has now secured employment with Uber.
Relevant law
[54]The law in relation to unfair dismissal is contained in the Employment Rights Act 1996. Section 98(1) of this Act provides that, in determining whether the dismissal of an employee is fair or unfair, it is for the employer to show the reason for dismissal and, if more than one, the principal one, and that it is a reason falling 5 within Section 98(2) of the 1996 Act or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. Conduct is one of these potentially fair reasons for dismissal.[55]Section 98(4) provides that where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or 10 unfair, having regard to the reason shown by the employer, depends on whether, in the circumstances, including the size and administrative resources of the employer’s undertaking, the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissal and this is to be determined in accordance with equity and the substantial merits of the case.[56]In a dismissal for misconduct, in British Homes Stores Ltd v Burchell [1980] ICR 303 the EAT held that the employer must show that: he believed the employee was guilty of miscondcut; he had in his mind reasonable grounds upon which to sustain that belief, and at the stage at which he formed that belief on those grounds, he had carried out as much investigation into the matter as was reasonable in the 20 circumstances.[57]Subsequent decisions of the EAT, following the amendment to the burden of proof in the Employment Act 1980, make it clear that the burden of proof is on the employer in respect of the first limb only and that the burden is neutral in respect of the remaining two limbs, these going to “reasonableness” under section 98(4) 25 (Boys and Girls –v- McDonald [1996] IRLR 129, Crabtree –v- Sheffield Health and Social Care NHS Trust EAT 0331/09).[58]In considering the reasonableness or unreasonableness of the dismissal the Tribunal must consider whether the procedure followed as well as the penalty of dismissal were within the band of reasonable responses (Iceland Frozen Foods Ltd –v- Jones [1982] IRLR 439). The Court of Appeal has held that the range of reasonable responses test applies in a conduct case both to the decision to dismiss and to the procedure by which that decision was reached (Sainsbury v Hitt 2003 IRLR 23). The relevant question is whether the investigation falls within the range 5 of reasonable responses that a reasonable employer might have adopted.[59]A lack of consistency may give rise to a finding of unfair dismissal (Post Office v Fennell 1981 IRLR 221 CA). Hadjioannou v Coral Casinos Ltd 1981 IRLR 352 EAT established that a complaint of inconsistency of treatment would only be relevant in limited circumstances and that is: i) Where employees have been led by an 10 employer to believe that certain conduct will not lead to dismissal; ii) Where evidence of other cases being dealt with more leniently supports a complaint that the reason stated for dismissal by the employer was not the real reason, and iii) where decisions made by an employer in truly parallel circumstances indicate that it was not reasonable for the employer to dismiss.[60]The Tribunal must be careful not to assume that merely because it would have acted in a different way to the employer that the employer therefore has acted unreasonably. One reasonable employer may react in one way whilst another reasonable employer may have a different response. The Tribunal’s task is to determine whether the respondent’s decision to dismiss, including any procedure 20 adopted leading up to dismissal, falls within that band of reasonable responses. If so, the dismissal is fair. If not, the dismissal is unfair.[61]Section 13 of the Equality Act 2010 states that “a person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.[62]Section 23 of the Equality Act 2010 states that for the purposes of the comparison in section 13, there must be no material difference between the circumstances relating to each case. Whether the comparison is sufficiently similar is a question of fact and degree (Hewage v Grampian Health Board 2012 IRLR 870).[63]Section 136 of the Equality Act 2010 states that, “if there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravented the provision concerned, the court must hold that the contravention occurred”. This is a two-stage test. The first stage requires the claimant to prove facts from which discrimination could be inferred (often referred to as the need to 5 show a “prima facie case of discrimination”). If so, the burden of proof will “shift” and the respondent will be required to prove that the treatement in question was “in no sense whatsoever” on the grounds of race (Igen v Wong 2005 ICR 931).[64]A prima facie case will not be established merely by showing a difference of race and less favourable treatment: there has to be “something more”, although that 10 need not be much more (Madarassy v Nomura International plc 2007 IRLR 246 CA). Claimant’s submissions[65]In oral submissions, Ms Matheson dealt first with the direct discrimination claim.[66]She referenced sections 13 and 136 as well as Hewage and Madarassy. She 15 referenced the types of circumstances from which it would be legitimate to draw an inference of discrimination; submitted that the “something more” need not be a great deal; and submitted that the Tribunal could “cast its net wide” to look for facts which were consistent with discrimination to establish a prima facie case.[67]Ms Matheson argued that inferences should be drawn from the following: 20 i) incomplete disclosure: She relied on McCrory v McKeith 2016 NICA 47, where the NICA upheld the decision of the ET which it found had taken relevant factors into account; specifically that there was reluctant, piecemeal and incomplete discovery; and evasive and unconvincing evidence. She submitted that this was the case here: that in regard to 25 their request for disclosure about comparators, that it was piecemeal, patchy and incomplete, the respondent having failed to produce historical policies, failed to produce complete information about the comparators; and failed to produce historical records. ii) Evasive witnesses: the respondent’s witnesses were evasive and most failed to give straight answers: they failed to explain why comparators were treated differently; it was not sufficient without more to say that 5 relates to the passage of time because the witnesses agreed that the rules had been consistent over time. iii) Workforce is predominantly white: and all the managers who disciplined the claimant were white; the fact that there were none or very few people of an ethnic minority background who were managers. 10 iv) Gaps in their equalities data, admitted by Mr Cameron, which suggests that the respondent was failing in its legal obligations. v) Failure to make training in equal opportunities mandatory.[68]She also asked us to draw inference from the fact of their incomplete record keeping that they had missed out a reference to Mr Sweeney having been 15 disciplined for mobile phone offences as the claimant asserted.[69]With regard to comparators; she submitted that the comparators relied on were in the same or similar circumstances to the claimant. Ms Matheson referenced three who were reinstated, the third being the one referred to by Mr Cameron in his evidence. She asked us to infer that they were all white, although Mr Cameron was 20 not able to confirm the colour/ethnicity of the employee he had reinstated. Given less favourable treatment, a difference in race, and the above facts, then an inference should be drawn that the claimant had established a prima facie case of discrimination sufficient to shift the burden of proof.[70]Ms Matheson then submitted that the respondent had failed to provide a sufficient 25 explanation about why the comparators were treated differently. She submitted that the witnesses had “dodged” the question of why the comparators were in a different position. Whether conscious or not, the only difference between the claimant and the comparators was his race.[71]With regard to the anonymous employees whom the respondent sought to rely on to establish that the claimant had not been treated consistently, there was again an absence of detail (similar to the named comparators). Yet the offences of these 5 anonymous employees appear more serious, for example one was watching a video and another had been involve in a collision, so these circumstances should not be equated with those of the claimant who had glanced down quickly to check his phone.[72]In such circumstances the claimant argued that the respondent had failed to show 10 that there was no underlying discrimination whatsoever given the lack of evidence as to the seriousness of the cases relied on.[73]With regard to the claim for unfair dismissal, Ms Matheson submitted that the attaching of the label of gross misconduct was not decisive; and was a mixed question of fact and law. Here there was no deliberate wrongdoing or gross 15 negligence.[74]Ms Matheson submitted that the respondent had taken a blinkered approach, the trigger being the use of the mobile phone, and the evidence of the respondent’s witnesses was that they always dismiss for use of the phone. She argued that they had failed to take proper account of mitigating factors, and while they had 20 considered his length of service and his good record, they had “boxed themselves in” by failing to take proper account, if at all, of the fact that he was under severe stress due to the behaviour of the other driver.[75]She relied in particular on the evidence of Mr McLaughlin and Mr O’Connor that they would not leave the cab if they were feeling threatened; but Mr Khan’s position 25 was that he felt particularly threatened only after he got out of the bus cab and touched the third party’s car. She argued that there had also been a failure to take account of the fact that the claimant had shown remorse for his actions. She argued that it could not be said that the respondent had applied its mind to other sanctions. As such, the sanction of dismissal fell outwith the range of reasonable responses.[76]With regard to procedural failings, Ms Matheson argued that she believed the claimant’s position was prejudiced by the fact that the managers who gave evidence would always dismiss in these circumstances.[77]Ms Matheson also made submissions on remedy, by reference to the schedule of loss. Respondent’s submissions[78]Ms Smith made observations on the evidence. She submitted that Mr Khan’s evidence was confused and inaccurate in places. She denied that the respondent’s 10 witnesses were evasive or inconsistent so invited the Tribunal to prefer the witnesses of the respondents.[79]Dealing first with unfair dismissal, she argued that the decision to dismiss for misconduct was reasonable in all the circumstances, and that all branches of the Burchell test had been met. She argued that there was no need to investigate the 15 question whether there had been a collision because the claimant was not disciplined for that. Mr Khan’s actions were a serious breach of the policies and of the law and the sanction must be viewed in the context of their need to uphold safety standards in compliance with their operator’s licence.[80]Mr Khan relied on the fact that he did not make a call or transmit information and 20 that he had not been issued with a disposable camera. However, this use of a handheld device in an unsafe manner was contrary to the policy and it is irrelevant that it was not used to make a phone call. Mr Khan’s evidence that he kept his eyes on the road was not credible; and indeed Mr O’Connor said that this could be seen as more severe than taking a call when the drivers eyes could be on the road.[81]The policy with regard to the taking of photos was that these should be taken only if it is possible to do so in a safe manner. The evidence of the respondent’s witnesses was that there were cameras available but not all drivers wished to have them.[82]With regard to the claimant feeling threatened, she submitted that this was considered in detail in the investigation and hearing and in evidence before the Tribunal. In particular Mr McLaughlin had said that he had considered that but that 5 it was the third incident which crossed the line when he thought that there was no longer a threat to the claimant.[83]She submitted that all relevant mitigating factors were taken on board by the respondent’s witnesses; that their approach was not blinkered but, in the circumstances, the only possible outcome was dismissal.[84]With regard to the claimant’s submission that they had not taken account of the remorse he showed, the evidence suggested that what he showed was regret rather than remorse. But in any event whether he was remorseful or not, this was not what drove their decision.[85]She pointed out that different employers are entitled to take different approaches, 15 but here the finding of gross misconduct was reasonable because a disregard for the law and safety goes to the heart of the role of a driver, and so dismissal was within the range of reasonable responses.[86]She submitted that the respondent’s decisions had been consistent relying on Hajiouannou and MBNA Limited v Jones 2015 9 WLUK 7. The latter, at [22], 20 indicates that if a respondent is unduly lenient to another employee that is neither here nor there. Even if it could be said they were unduly lenient, here the examples of inconsistent treatment all took place 12 to 13 years ago.[87]Mr Kahn relies on four comparators, yet the more contemporaneous examples of similar conduct, where there is more detail and the witnesses who gave evidence 25 had been involved, suggest that the claimant’s treatment was the same. She submitted that the comparators relied on were not in truly parallel circumstances and that the more contemporaneous examples show the current approach taken.[88]While she accepted that the rule about using phones had not changed over time, she relied on Mr Cameron’s evidence that they had changed the way that this was commuicated and enforced over time.[89]With regard to the claimant’s race claim, this matter was not raised at the disciplinary hearing or on appeal. With regard to the test from Shamoon, she 5 argued that comparators do not have to be identical but in the same position in all material respects. She suggests here that there is insufficient evidence before the Tribunal to confirm that the four chosen are appropriate comparators. Mr Khan had no concrete evidence about the comparators because his information came from word of mouth. The respondent had made every effort to find out what had 10 happened to the comparators in preparing their response as illustrated by Mr Cameron’s evidence. She invited the Tribunal to prefer his evidence on the situation of Mr Holmes and to find that the circumstances were different.[90]With regard to the criticism about the lack of records, it is not uncommon that records would be incomplete given the passage of time. She asked the Tribunal to 15 accept the explanations given by Mr Robertson and Mr Camerson about why the evidence was incomplete and accept there is nothing sinister about it as suggested by Mr Kahn.[91]She argued that the criticism that the respondent’s witnesses were evasive was unwarranted when they were not involved in these situations.[92]Her position was that there are material differences between the claimant and his comparators such that it could not be said that the claimant had suffered less favourable treatment.[93]However, if the Tribunal is not with her on that, but accepts that there was less favourable treatment, she argued that there is no evidence to support the claim 25 that their decision was influenced by race, which the witnesses denied. With regard to the suggestion that the claimant had made a false allegation, she accepted that Mr Khan may genuinely believe that he had been treated differently because of his race but there are no facts to draw the inference that he was. While because it was an agreed fact that there was a different outcome, and that his comparators were white and Scottish but that is not sufficient, especially where the majority of the workforce is white, so that it is likely that those who are dismissed, and those who are reinstated, will also be white.[94]If the Tribunal finds that the burden has shifted, the evidence does not support the 5 finding that it was because of his race because the reason for the dismissal has been clearly outlined and he has been treated consistently with colleagues closer in time to those who were dismissed.[95]Ms Smith made submissions on remedy, including mitigation. Tribunal’s deliberations and decision 10 Observations on the evidence and the witnesses[96]In this case, there is little dispute on the key facts.[97]We accepted the evidence of the respondent’s witnesses as credible and reliable. To the extent that Ms Matheson argued that they were dishonest or their answers were evasive, we did not accept that. The fact that they could not answer questions 15 relating to events they were not involved in does not equate to dishonestly or even evasiveness. Indeed we thought that the respondent’s witnesses were candid and did their best to be helpful when anwering questions put to them in cross examination.[98]We noted that Mr Khan was nervous when giving evidence. We considered that 20 this is one of the disadvantages of witness statements: Mr Khan’s evidence commenced with cross examination and he had no opportunity to settle into giving evidence before then. We thought that he was confused about some of the circumstances, but we were prepared to put that down to nerves.[99]However, where there was any conflicting evidence we preferred the evidence of 25 the respondent’s witnesses.[100]We appreciated too from his point of view that the claimant might genuinely believe that his dismissal (or failure to reinstate) was something to do with his race, given he found the decision difficult to accept, but we did not accept that his race had anything to do with the respondent’s decision, as explained in the following paragraphs. 5[101]We turned then to consider the substantive claims. Although a discriminatory dismissal is unlikely to be fair, given different legal tests, it is possible, so we considered the discrimination claim first. Race discrimination[102]The claimant makes a claim of direct discrimination contrary to section 13. Although 10 section 13 appears simple on its face, its interpretation and implementation has generated a great deal of case law, focussing on comparators and the burden of proof.[103]Section 13 requires a claimant to show that there has been less favourable treatment because of race. While the reason for a claimant’s treatment might be 15 obviously or intrinsically discriminatory, this is not one of those cases. Consideration therefore has to be given to whether the claimant has established less favourable treatment and whether that was because of race.[104]Although it will not always be the case, this case focusses on actual comparators who are named. In Hewage, the House of Lords confirmed that whether a 20 comparison is sufficiently similar is a matter of fact and degree, and thus it is a question for the Employment Tribunal to determine.[105]The respondent argued that the claimant has not established less favourable treatment in this case because the comparators are not in the same or similar situations. In particular, the respondent relies on the fact that there is limited 25 evidence about the specific circumstances of these comparators.[106]One of the reasons that there is limited information is because of the passage of time and also because there was a transition from paper to online in or around 2015; but we also heard from Mr Cameron about a restructuring in 2009 when data was transposed from one system to another throughout the group.[107]Further these comparators relate to disciplinaries in 2007 to 2009. It essentially goes without saying that the distance in time calls into question the appropriateness of them as comparators. This is not least because use of mobile phones has 5 revolutionised since that time. Ms Matheson questioned each witness about the extent to which the mobile phone policy itself had changed over time, and it is true to say that in essence all witnesses agreed that it had not changed. Mr Cameron’s evidence was more nuanced and he confirmed that although the core of the policy had not changed, there was now more consistency across the group regarding how 10 it was enforced, and the policy had been repeatedly communicated to staff.[108]For these reasons, we accepted that the particular comparators identifed were not appropriate comparators because it could not be said that there was no material difference in their circumstances.[109]While the claimant sought to add another, more recent comparator, as discussed 15 above her application to amend to include him was refused. Nonetheless, in response to questioning of Mr Cameron, he referenced an appeal which he had (unusually) heard relating to the mobile phone usage. He explained however that he had decided to reinstate the individual because of the particular circumstances, namely that the vehicle was stationary, the handbrake was on, and there was no 20 threat to the safety of passengers and other road users. Actually Mr Cameron could not remember the race or ethnicity of this individual which we found surprising, but it might be assumed that he was likely to be white since the workforce is predominantly white.[110]The proving of less favourable treatment is a necessary prerequisite before 25 considerations are given to the shifting of the burden of proof. Here, as a minimum we know that this comparator was a) dismissed for breach of the mobile phone policy; b) reinstated and c) probably white. We know that the other evidential comparators who were reinstated were white. However even if we give the claimant the benefit of the doubt, and accept that the comparators who were reinstated were in a sufficiently similar position to establish less favourable treatment, we know in any event from case law that this is not sufficient to establish a prima facie case. There has to be “something more”. This principle derives from the decision of the Court of Appeal in Madarassy and often the “something more” is often referred to 5 as “Madarassy factors”.[111]So we decided to give consideration to whether the claimant has done enough to establish a primary facie case, that is we considered whether we can draw inferences from primary facts to establish a prima facie case of discrimination, such that the burden of proof would shift to the respondent.[112]As we understood it, the claimant relied on the following factors to establish an inference of discrimination: i) Incomplete disclosure: we did not however accept Ms Matheson’s submission that there was incomplete or piecemeal disclosure. We concluded that the respondent had lodged all of the documents which 15 they were able to access; that they had valid and plausible reasons why records from more than 10 years ago were incomplete; we did not accept that the fact that they could not locate policies in force from 10 years was suspicious; we noted that efforts had been made to ingather information requested. Mr Cameron gave evidence that he had sought 20 assistance from his director of HR in whom he had a lot of faith. He said that he himself had spoken to one of the comparator’s line managers to try to inform himself about the circumstances. ii) Evasive witnesses: as noted above, we did not accept that the respondent’s witnesses were evasive. These witnesses were not 25 involved in these cases, so the fact that they did not know the details could not be described as evasive or dishonest. Mr Camerson gave evidence his recollection about how he dealt with others in answer to a question: as noted above this individual was not referenced as a comparator in the claimant’s written case. iii) Predominantly white workforce and management: we heard that the workforce was predominantly while, although one witness said he thought that the workforce was diverse. Still even a diverse workforce in 5 Scotland which is representative of the population would have a predominantly white workforce. Mr Cameron’s position was that with a predominantly white workforce, then it would be expected that the majority of those dismissed and indeed reinstated would be white and the majority of supervisors and managers would be white. He did point 10 out in response to one of Ms Matheson’s questions that he thought that their positive action efforts to ensure a more diverse workforce were working because there were more women supervisors at least. iv) Gaps in their equalities data, which suggests that the respondent was failing in its legal oblications: We did not accept this submission but 15 accepted Mr Cameron’s evidence that many in the workforce had been employed for a long time before such statistics were collected. We were aware too that it would not be compulsory to answer such questions. v) Lack of compulsory training in equal opportunities: there was a lack of clarity about whether the equal opportunities training was compulsory 20 and while that would be best practice, we also noted that all of the witnesses said that they had undertaken equalities training, for example in their own time through First “Univeristy”.[113]As discussed during submissions, Ms Matheson asked us to draw inferences about the facts which we were to find to allow us to make inferences of discrimination. 25 We did not accept however that it was appropriate for us to draw an inference, or indeed speculate without more apart from incomplete records, for example that the fact there was no reference to Mr Sweeney being discipoined for using a mobile phone meant that we should infer that he had. In any event we had no detail about the circumstances of these comparators; only the claimant’s evidence that this is what he heard in “the bothy” meeting place of colleagues.[114]Talking all of this into account, we could not say therefore that the facts were sufficient to allow us to draw an inference of prima facie discrimination such that the burden of proof would “reverse”.[115]On the contrary, we thought that this was one of those cases where there was in fact no need to resort to the burden of proof at all, because we were in a position to make clear positive findings that the respondent’s actions were motivated by non-discriminatory considerations.[116]Put another way, even if we had accepted that the burden of proof had shifted, we 10 accepted that the respondent had proved the reason why they treated the claimant the way they treated him, and that had nothing to do with his race.[117]In particular, the facts of this case were clear and indeed, the crucial facts relating to the claimant’s conduct were agreed, by reference to the CCTV footage. The claimant’s position was that he needed to take photographs essentialy to protect 15 the company from a false claim; it was an altruistic not selfish act on his part; that he had not been issued with a disposable camera so required to use his own device; that he was using the phone as a camera not a phone.[118]There was however a reference to three uses of the phone to take photographs, one while sitting in traffic; a second while at a bus stop from behind the wheel of 20 the bus while the engine was running and while the handbrake was off; and a third while he was driving with one hand on the steering wheel and another on his phone and pressing or otherwise interacting with the screen and looking between his phone and driving. The claimant’s position was that he was checking that he had a copy of the number plate.[119]Whatever the reason for his actions, however agitated he was with his encounter with the third party, these do not detract from the fact that these instances are clear breaches of the mobile phone policy. The respondent’s reason for dismissing and not reinstating taking account of mitigating factors was because he had used his mobile phone while his vehicle was in motion, which compromised safety.[120]Significantly the claimant made no reference to the disposable camera during the investigation or dismissal hearing. We heard evidence that the claimant could have taken a disposable camera if he had asked for one, but the fact that he did not have 5 one was neither here nor there in any event. Nor did he make any reference to any suspicion that he race had influenced the decision at the appeal.[121]The claimant’s claim for race discrimination is therefore dismissed. Unfair dismissal[122]Although we have found that the claim of race discrimination does not succeed, we 10 turned to consider whether it could be said that his dismissal was nevertheless unfair. Although we understood the claimant’s main argument to be inconsistency of treatment relative to colleagues, the test to establish discrimination is different from the test is respect of inconsistent treatment which might render a dismissal unfair.[123]The first limb of the Burchell test requires the employer to show that they believed that the employee was guilty of misconduct. As we understood it, Ms Matheson accepted that the reason for dismissal was misconduct. It was accepted that the claimant was dismissed for misconduct and that is a potentially fair reason for dismissal. 20 Reasonableness of decision to dismiss[124]The key question for the Tribunal is of course whether the respondent acted reasonably in dismissing the claimant for misconduct. The question is whether it was reasonable in all the circumstances for the respondent to dismiss the claimant for misconduct, and not whether this Tribunal would have dismissed the claimant 25 in these circumstances. Reasonable grounds for belief[125]In considering whether or not dismissal was reasonable in all the circumstances, we considered the second limb of the Burchell test, that is whether or not the respondent had in mind reasonable grounds upon which to sustain the belief that the claimant was guilty of misconduct.[126]I did not understand Ms Matheson to submit that the respondent did not have in mind reasonable grounds upon which to sustain their belief.[127]We were referred to the mobile phone policy, and specifically that phones should only be used when the vehicle is stationary with the handbrake on and the engine switched off. We understood Mr Khan to accept that he had breached that policy, 10 and in any event it is clear that the policy was breached given the CCTV and the agreed facts relating to what that CCTV showed.[128]There was sufficient evidence in this case indicating that the claimant had used his mobile phone in breach of the policy, thus we accepted that the evidence supported the respondent’s position that they had in mind reasonable grounds to sustain their 15 belief in the misconduct.[129]In the circumstances, we concluded that there were reasonable grounds for the belief that the claimant was guilty of the conduct in question and that such conduct was capable of amounting to gross misconduct.[130]The respondent must have formed that belief having carried out as much 20 investigation into the matter as was reasonable in the circumstances. This is the third limb of the Burchell test. We were satisfied in this case, given the investigation undertaken by Mr Robertson, and the reliance of Mr McLaughlin on the CCTV evidence, that the extent of investigation was reasonable, and not least because the claimant did not apparently deny that he had done what he was reported to 25 have done. Reasonableness of the sanction of dismissal[131]We then turned to consider whether the sanction of dismissal was reasonable in all the circumstances, having regard to equity and the merits of the case. As we understood it, this was the focus of dispute in this case.[132]As we understood Ms Matheson to submit, the conclusion that there was gross 5 misconduct does not automatically mean that dismissal in the circumstances will be fair. Rather the test from the Employment Rights Act must be applied, and consideration given to whether dismissal was reasonable in the circumstances.[133]Ms Matheson argued that the respondent had failed to take account of the background circumstances, and in particular they had failed to consider at all or 10 sufficiently a number of mitigating factors. We understood when she argued that the respondent had “boxed themselves in”; that is she sought to argue that while they had considered length of service and his disciplinary record, that was to the exclusion of other mitigation. In particular she argued that the respondent had failed to take account of the stress that the claimant was under at the time given that he 15 was feeling threatened.[134]We did not accept that submission. We agreed with Ms Smith that the Respondent’s witnesses had considered this matter. In particular, we noted from the minutes of the disciplinary hearing and the outcome letter that Mr McLaughlin had taken that into account; and we noted that in evidence his particular concern 20 was the third use of the phone when he was of the view that there was no obvious threat.[135]The claimant’s main concern however when it comes to reasonableness of sanction was on the respondent’s lack of consistency. The primary focus of the claimant’s argument was that others - who had been dismissed in truly parallel 25 circumstances – were reinstated. We have discussed above why we considered these comparators to be in materially different circumstances from the claimant for the purposes of section 23 of the Equality Act , and for the same reasons we conclue that that these colleagues were not “in truly parallel circumstances”. In summary, that related to the fact that these incidents took place more than ten years ago; and the lack of detail about the precise circumstances of their cases. We did not know for example, whether the bus was moving, whether the handbrake was on, whether the safety of others was compromised.[136]As discussed above, we accepted Mr Cameron’s evidence that although the core 5 of the mobile policy had not changed in that time, its enforcement had tightened up, given developments with mobile phones, and that the decisions across the group were now more consistent.[137]With regard to the fifth case mentioned in Mr Cameron’s evidence, he explained that the reason why he had reinstated that employee was because the vehicle was 10 not in motion and the handbrake was secure and although the engine was running, there was no threat to the safety of passengers or other road users.[138]Although we had no further details or documentary evidence relating to this individual, we accept that this distinguishes the circumstances of the claimant from the circumstances of that individual.[139]We noted too that although Ms Matheson sought to argue that managers would automatically dismiss for a breach of the mobile phone policy without more, that in fact was not supported by the evidence.[140]Contrary to Ms Matheson’s submission that the respondent’s witnesses were somehow “prejudiced” resulting in them always dismissing for mobile phone use, 20 we noted that Mr Cameron had reinstated in a mobile phone use case. Further, although Mr O’Connor said that he had always dismissed (or upheld dismissals on appeal) in mobile phone use cases, we did note that in evidence he said that had he been considering only the first and second usage he might, hypothetically, have reinstated the claimant on appeal. It was the third usage that was the most 25 egregious.[141]That is the crux of this case: the vehicle was moving when the claimant was looking at his phone on the third occasion. Not only is that against the law, something which the respondent did not focus on, but it compromised the safety of the driver, the passengers and other road users. We did not accept Ms Matheson’s submission that he had a “quick glance” at his phone. The agreed facts regarding the CCTV suggest otherwise; and the claimant’s evidence was that he was looking at the photos to check that he had the other vehicle’s registration number.[142]What we know of the most recent case is that the vehicle was not moving and no passenger or other road user was at risk. We did not accept Ms Matheson’s submissions that the circumstances of the others who were dismissed were more severe than the claimant. Mr O’Connor said that arguably looking down at your phone rather than talking on the phone had more serious safety implications. Mr 10 Cameron’s evidence was that they were similar in severity to that of the claimant.[143]We accept therefore that the sanction of dismissal in these circumstances fell within the range of reasonable responses. Procedural fairness[144]Although Ms Matheson argued in submissions that there was procedural 15 unfairness to the extent that the respondent’s managers were prejudiced because of a tendency to assume that where there is a breach of the mobile phone policy that will inevitably lead to dismissal. However, we considered that to relate to the substance and not procedure, as discussed above.[145]We did not understand otherwise that there was any challenge to procedure. To 20 the extent that Ms Smith queried whether there was a challenge in regard to the failure to watch the whole of the CCTV during the investigation, Ms Matheson confirmed that she was not.[146]We understood therefore that there was no challenge to the specifics of the procedure adopted, and we conclude that the procedure adopted also fell within 25 the range of reasonable responses.
Conclusion
[147]In conclusion we have a good deal of sympathy for the claimant who clearly has suffered due to a momentary lapse of judgment. Despite her tenacity, Ms Matheson was not able to persuade us that race had anything to do with the decision or indeed that dismissal was anything but fair in the circumstances, and when 5 compared with how others were treated.[148]We therefore concluded, in all the circumstances, that dismissal for gross misconduct was within range of reasonable responses open to the respondent, and therefore that the dismissal was not unfair. The claimant’s claim of race discrimination is not well-founded. The claim is therefore dismissed.