Mr A Miller v University of Edinburgh: 4105421/2020
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4105421/2020
Between
Mr A MillerClaimantUniversity of EdinburghRespondent
Before
Employment Judge EcclesMrs L Miller – Relative for claimantMr N MacLean (instructed by Solicitor) for respondentDate 26 October 2021
JUDGMENT
The Judgment of the Employment Tribunal is to refuse the application by the respondent for strike out of the claim for victimisation under Rule 37(1)(a) of the Rules of Procedure 2013.
REASONS
Introduction
[1]The claim was presented on 6 October 2020 for unfair dismissal, victimisation, unauthorised deduction from wages (holiday pay), breach of contract, failure to provide a statement of employment particulars and less ETZ4(WR) favourable treatment as a part time worker. At a preliminary hearing held on 21 January 2021, an Employment Judge directed that the claim should be listed for an open preliminary hearing to determine the following issues;(i) whether the presented claim of victimisation enjoys “no reasonable prospect of success” and should accordingly be struck out in terms of Rule 37(1)(a); or alternatively, enjoys “little reasonable prospect of success” and its pursuance be made the subject of a Deposit Order in terms of Rule 39, both of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 Schedule 1 &(ii) whether the claimant has title to present and the Tribunal jurisdiction to consider the claimant’s complaints of unauthorised deduction from wages, insofar as they relate to alleged non-payment of paid annual leave entitlement said to have occurred in June and July 2018 and April 2019 by reason of asserted time bar.[2]Today’s preliminary hearing was listed to consider the above issues. The preliminary hearing was held remotely by Cloud Video Platform (CVP). The claimant was represented by his mother, Mrs L Miller. The respondent was represented by Mr N MacLean, Solicitor.[3]In advance of today’s preliminary hearing agreement was reached in relation to the claim of unauthorised deduction from wages (holiday pay). That part of the claim was withdrawn and dismissed by an Employment Judge on 23 February 2021. For this reason the Tribunal did not consider the second issue identified above concerning time bar.[4]For the purpose of today’s hearing the parties provided the Tribunal with a joint bundle, a statement of agreed facts and position statements. At the start of the preliminary hearing the claimant raised concerns about Production 3.2/98 - a chain of emails between members of the respondent’s HR. The claimant did not seek a postponement to take advice on the above Production. The e mails (P3.2/98) were referred to by the respondent during the preliminary hearing. It was considered appropriate to allow the claimant an opportunity to make written representations on their relevance to the issue before the Tribunal before any decision was made. The claimant provided the Tribunal with written representations on 12 April 2021.[5]At today’s preliminary hearing the claimant read from a statement and was questioned by Mr MacLean for the respondent. Both parties made oral submissions and provided the Tribunal with a written copy of their submissions. THE CLAIM OF VICTIMISATION[6]It is not in dispute that the claimant was employed by the respondent from April 2013 until 30 June 2020. He was employed on a guaranteed hours contract (20 hours since 2015). The claimant undertook clerical work including shredding. The respondent did not offer the claimant any work from 6 April 2019 until 30 June 2020 when he was dismissed. The respondent does not dispute that when dismissing the claimant they failed to follow normal redundancy procedures and a number of their own employment policies. They also do not dispute that they failed to provide the claimant with written reasons for his dismissal when requested, provide the claimant with a right of appeal against dismissal or issue him with a P45.[7]The Tribunal had regard to the available documents in which the claimant has set out his claim. In the paper apart to his ET1, the claimant contends that the respondent stopped offering him work from 5 April 2019, the date on which his mother submitted a grievance to the respondent which included an allegation of sex discrimination. The claimant submits that the reason why he was no longer offered any work (and was consequently dismissed) was his “known supportive relationship with a family member who had claimed sex discrimination”. The claimant provided additional information about his claim of victimisation in an Agenda prepared for the preliminary hearing held on 21 January 2021. He identified the protected act that he had carried as described in Section 27(2) of the Equality Act 2010 as “doing any other thing for the purposes of or in connection with the Act”. In addition to “immediate ceasing of offers of work and subsequent dismissal”, the disadvantage suffered by the claimant as a result of doing the protected act was identified as including loss of pay and the anxiety caused by not being aware of his dismissal until he approached the respondent about a reference. In his Agenda, the claimant stated that; “The persons responsible are not fully known, however it seems likely that at least one member of the senior management team had influence/involvement in the actions that led to dismissal (non-communication of that dismissal, failure to send a P45, contrary/false reasons provided for the dismissal). The dismissing manager would not have had experience nor knowledge of the guaranteed hours contracts so it seems improbable that he could be responsible for the decision to unfairly dismiss”.[8]When asked in the Agenda why he considers that he was subjected to the above disadvantage because he did the protected act, the claimant refers to not being offered any work after his mother’s complaint and that “not unreasonably (he) was assumed by the respondent, as a result of his familial relationship, to be supportive of the complaint of sex discrimination and/or supportive of the primary complainant.” The claimant contends that the withdrawal of any further offers of work and the subsequent unfair dismissal are directly connected to his mother’s complaint of sex discrimination.[9]In additional information provided to the Tribunal in response to Orders issued by an Employment Judge at the preliminary hearing on 21 January 2021, the claimant stated that the respondent’s Director of HR, or those acting on his direct authority, took a decision to transfer the work “belonging” to the claimant in terms of his contract of employment to an external company around June 2019 which resulted in his dismissal in June 2020. The claimant stated that the respondent has not provided an adequate explanation for his dismissal and failure to follow “normal processes”. The claimant alleged that the respondent has made various false claims about his dismissal. The claimant stated that he supported his mother, in part due to the family relationship but in part because he had direct and independent knowledge that at least some of the counter claims made against his mother by the Director of HR were false.[10]The claimant stated that his victimisation by the respondent can be evidenced in several ways including the respondent’s failure to follow “normal practice”; the timing of the respondent’s actions; the conduct of the Director of HR; his knowledge of the relationship between the claimant and his mother and the inaccuracy of the respondent’s position regarding the type and the frequency of work undertaken by the claimant as “department shredder”.[11]In his statement to the Tribunal, the claimant described having a “degree of awareness” of his mother’s grievance. He disputed that the last occasion he worked for the respondent was a “one off piece of work” and that the demand for shredding had reduced to such an extent that he was no longer required to undertake such work. He described his sense of shock on learning that his employment would be terminated at the end of June 2020. He claimed that after his mother raised a grievance, the respondent took steps to affect his dismissal. He referred to his mother having said at the time that” it might simply be incompetence” on the part of the respondent but stated that he has in “absolutely no doubt that (he) was dismissed because (the respondent’s Director of HR) did not want him in the workplace because of his family relationship”. The claimant described the respondent’s Director of HR, and those who reported to him directly, as not wanting him back in the office because they thought that he had supported his mother and that he might have already said or might say things in her support. The claimant stated that in the absence of a reasonable explanation and in the context of numerous false claims made by senior members of HR, victimisation seems the only likely explanation. APPLICATION FOR STRIKE OUT[12]In terms of Rule 37(1)(a) of the Rules of Procedure 2013, at any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim on the grounds “that it is scandalous or vexatious or has no reasonable prospect of success”. It is the respondent’s position that the claim of victimisation has no reasonable prospect of success.[13]The respondent accepts that the threshold for striking out a claim for having no reasonable prospect of success, in particular a claim involving discrimination, is high. The Tribunal was referred to the case of Ezsias v North Glamorgan NHS Trust 2007 EWCA Civ 330 in which the Court of Appeal held that it would only be “very exceptionally” that a case should be struck out without the evidence being tested. The Court of Appeal upheld the EAT’s decision that a Tribunal should not be overzealous in striking out a case as having no reasonable prospect of success, unless the facts as alleged by the claimant disclose no arguable case in law. The Tribunal was also referred to the case of Blockbuster Entertainment Ltd v James 2006 EWCA Civ 684 in which striking out a claim was described as a “draconian power” that should not be exercised lightly.[14]The respondent referred the Tribunal to the case of Mechkarov v Citibank NA [2016] ICR 1121 in which the approach to be taken by the Tribunal when considering whether a claim should be struck out as having no reasonable prospect of success was summarised as follows;• Only in the clearest case should a discrimination claim be struck out.• Where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence.• The claimant's case must ordinarily be taken at its highest.• If the claimant's case is "conclusively disproved by" or is "totally and inexplicably inconsistent" with undisputed contemporaneous documents, it may be struck out.• A Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.[15]While the bar for striking out a claim is high, there are of course exceptions. The respondent referred the Tribunal to the case of Croke v Leeds City Council UKEAT/0512/07 in which the EAT upheld a decision to strike out a claim of victimisation which was “not, in any ordinary sense of the term, fact sensitive” and could therefore be struck out without evidence being formally heard. It is the respondent’s position that the present case, taken at its highest, does not disclose a case of victimisation that has any reasonable prospect of success and should therefore be struck out.[16]The Tribunal also had regard to the case of Anyanwu & anor v South Bank Students’ Union & anor 2001 ICR 391 in which Lord Steyn stated (at paragraph 24); “Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest.” Also, from the case of Anyanwu, the Tribunal had regard to Lord Hope’s speech (at paragraph 37) where he stated: 'I would have been reluctant to strike out these claims, on the view that discrimination issues of the kind which have been raised in this case should as a general rule be decided only after hearing the evidence. The questions of law that have to be determined are often highly fact-sensitive. The risk of injustice is minimised if the answers to these questions are deferred until all the facts are out. The tribunal can then base its decision on its findings of fact rather than on assumptions as to what the claimant may be able to establish if given an opportunity to lead evidence.' DISCUSSION AND DELIBERATIONS[17]Section 27(1) of the Equality Act 2010 provides that a person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because (a) B does a protected act, or (b) A believes that B has done or may do a protected act. In terms of Section 27(2) of the Equality Act 2010, each of the following is a protected act; (a) bringing proceedings under the Equality Act 2010; (b) giving evidence or information in connection with proceedings under the Equality Act 2010,(c) doing any other thing for the purposes of or in connection with the Equality Act 2010 and(d) making an allegation (whether or not express) that A or another person has contravened the Equality Act 2010.[18]It is not in dispute that the claimant’s mother did a protected act in terms of section 27(1)(d) of the Equality Act 2010 by bringing a grievance alleging sex discrimination. The claimant does not seek to show that he did a protected act. He seeks to show that the respondent believed that he did, or may do “any other thing for the purposes of or in connection with this Act” in terms of Section 27(2)(c) of the Equality Act 2010. It is the claimant’s position that the “other thing” the respondent believed he had done or may do, was to support his mother in her grievance alleging sex discrimination.[19]The Tribunal was not persuaded by the respondent’s submission that because the support provided by the claimant was not active in the sense of providing a statement or accompanying his mother to a grievance hearing that it could not be “any other thing” in connection with the Act. This is a wide provision. It does not require the claimant to have taken steps to exercise his own statutory rights. The Tribunal was not persuaded that “any other thing” does not include the act of providing someone who has complained of discrimination with support in a general sense, including moral support provided by one employee to another who has complained of discrimination. The claimant’s case is not that he should be protected against victimisation simply because he is the son of an employee who has complained of sex discrimination. His claim is that he should be protected from victimisation because the respondent believed that he supported or would support his mother in connection with her grievance alleging sex discrimination.[20]As regards causation, the respondent submits that the Tribunal should have regard to the reasons they advance for the claimant not being offered work after April 2019 and the lack of formal procedure in his dismissal. It is the respondent’s position that informal practices in relation to his employment, from which the claimant asks the Tribunal to draw an inference of discrimination, pre- date his mother’s grievance. Similarly, the respondent submits that the claimant’s case regarding the frequency of his work and the termination of his contract is not supported by the available information and documents. The Tribunal was not persuaded that the available information including contemporaneous documents conclusively disprove that the reason for the claimant not being offered any further work and subsequently dismissed was because the respondent believed that he would support his mother in her grievance of sex discrimination. The Tribunal was satisfied that there are factual disputes between the parties that cannot be determined without oral evidence and examination at a full hearing. This will involve the Tribunal undertaking an evaluation of the reason advanced by the respondent for the termination of the claimant’s employment and if appropriate drawing inferences from all the surrounding circumstances.[21]In all the circumstances, the Tribunal was not persuaded that the claim of victimisation should be struck out as having no reasonable prospect of success. There are facts in dispute that are central to the case, not least the reason for the claimant’s dismissal. Explanations advanced by the respondent for actions taken in relation to the claimant’s dismissal are also in dispute and merit examination at a final hearing. The application for strike is therefore refused. APPLICATION FOR A DEPOSIT ORDER[22]If the Tribunal was not persuaded that the claim should be struck out, it is the respondent’s position that the claimant should be required to pay a deposit as a condition of continuing to advance his claim of victimisation. In terms of Rule 39(1) of the Rules of Procedure 2013, the Tribunal may make a deposit order where it considers that any specific allegation or argument in a claim has little reasonable prospect of success.[23]For the reasons given above, the Tribunal was satisfised that the allegation of victimisation on the part of the respondent requires to be heard at a final hearing before a proper assessment can be made as regards its merit or otherwise. While recognising that the bar is lower than that for strike out, the Tribunal has similar concerns about making a deposit order on the grounds that the claim has little prospect of success in particular given that this is a claim involving allegations of discrimination. The claimant should not be required to pay a deposit to pursue his claim where the reason for his dismissal is in dispute and the respondent has advanced explanations for their conduct which the claimant does not accept and require examination by the Tribunal before determination of the claim. The application for a deposit order is therefore refused.[1]The claimant brought various claims against the respondent. By the time of the final hearing, the respondent had conceded some claims and some aspects of the claims had been withdrawn. The respondent had conceded that the claimant had been unfairly dismissed and had paid the claimant a statutory redundancy payment, the respondent’s position being that the claimant had been dismissed ETZ4(WR) by reason of redundancy. The respondent also accepted that the claimant had not been paid the notice pay to which he was entitled and had made arrangements for this payment to be made. In addition, the claimant’s two further claims that 1) the respondent had failed to provide up to date particulars of employment as required by sections 1 and 4 of the Employment Rights Act 1996 (‘ERA’) and 2) the respondent had failed to provide written reasons for termination had been resolved and appropriate payments made. Issues to determine[2]The remaining issues for the Tribunal to determine at the final hearing were set out in a list of issues agreed between the parties (although there was a small amendment made to that by the claimant at the commencement of the proceedings). The remaining claims were that the claimant alleged that:• he had been victimised in terms of section 27 (1) (b) of the Equality Act 2010 (‘EqA’) by the respondent in that he was not given work for a period and was then dismissed. It was accepted that the claimant’s mother had done a protected act, in that she had raised a grievance alleging a contravention of the EqA. However, the Tribunal was required to determine whether the respondent believed that the claimant may do a protected act related to his mother’s grievance when also employed by the respondent and if so was he subjected to victimisation because of that protected act.• the respondent had breached his contract of employment by failing to follow the respondent’s Managerial Guidance on Management of Guaranteed Hours Contracts;• the failure to provide him with a P45 and/or notify him of his dismissal amounted to less favourable treatment in terms of the Part-time workers (Less Favourable Treatment) Regulations 2000 (‘PTWR’); and• he was entitled to compensation by reason of his admitted unfair dismissal.[3]The parties lodged a joint inventory of productions which included an agreed statement of facts. The Tribunal heard evidence from the claimant, his mother (who was also his representative) and two additional witnesses, one of whom had previously worked for the respondent and one of whom continued to work for the respondent. The Tribunal also heard evidence from three witnesses for the respondent, Ms McLaren who had been the claimant’s line manager initially, Mr Spencer who was the Director of HR for the area in which the claimant had worked and Ms Campbell who was involved in the decision to dismiss the claimant.[4]The hearing was conducted entirely remotely on the Cloud Video Platform. At the conclusion of the evidence, the Tribunal heard submissions from both parties, who very helpfully provided written submissions. Findings in fact[5]Having considered the evidence heard, the documents to which reference was made and the submissions of the parties, and in addition to the facts agreed between the parties, the Tribunal found the following facts to have been established.[6]The claimant was employed by the respondent initially for three weeks around April 2013 while he was still at school to carry out shredding in one of the respondent’s Human Resources offices in which the claimant’s mother worked.[7]The claimant continued to work from time to time generally during his holiday periods and was provided with a written ‘Guaranteed hours’ contract on 29 October 2014 which incorrectly noted that the commencement of the claimant’s employment was on that date. The contract provided that the claimant would be offered at least 10 hours work per annum.[8]The claimant’s contract was subsequently updated in 2015 to provide that he would be guaranteed to be offered at least 20 hours work per annum, but no written record of this amendment currently exists on the respondent’s systems.[9]In addition to carrying out shredding duties, the claimant would carry out work for other managers such as keying information into the respondent’s systems as part of a digitisation project, day to day input of addresses, bonus and promotion information and video editing. The additional work was paid at a higher grade than the shredding work for which the claimant had a contract of employment.[10]The claimant mainly worked during the Christmas, Easter and summer holiday periods.[11]The claimant was a student at Strathclyde University from 2014 until 2019.[12]The claimant did not carry out any work for the respondent between the end of September 2018 and 4 April 2019. During part of this period he was abroad as part of his studies. The claimant last worked for the respondent on 4 and 5 April 2019.[13]Around April 2019, the staff in the office in which the claimant worked were relocated to Dalhousie Land. The relocation was part of a centralisation of the HR admin function so that HR staff would be based in the same building. Previously, HR staff were previously based both centrally and in each of the Colleges to which they were assigned.[14]The claimant’s mother lodged a grievance against the respondent’s HR Director on 5 April 2019 which alleged contravention of the EqA.[15]Around April or May 2019, Susan McLaren, who was principally responsible for arranging the working days of the claimant was seconded to another role. Around this time a number of other managers who had allocated work to the claimant either retired, left the respondent’s employment or were seconded to other roles.[16]The claimant worked for Tesco Stores from around 2015 until August 2020.[17]There was no contact between the claimant and the respondent in relation to any work he might carry out from 5 April 2019.[18]Tanya Campbell was recruited by the respondent in September 2019 to cover for Susan McLaren’s role while she was on secondment. Ms Campbell was also allocated additional duties as a result of other staff movements within central HR function.[19]The respondent’s staff started working from home as a result of the national lockdown due to the pandemic from around 15 March 2020.[20]Around the end of June 2020, Tanya Campbell had a discussion with George Shannon a colleague in the central HR department regarding the claimant’s employment. By this time the claimant had not worked for the respondent for nearly 15 months. At this time, Ms Campbell was carrying out a review of staffing numbers in the HR function.[21]Ms Campbell had never met either the claimant or his mother and was not aware that the claimant’s mother had raised a grievance during her employment with the respondent.[22]Following an exchange of emails, the respondent’s system was updated to reflect that the claimant’s employment with the respondent had come to an end and that the claimant had resigned.[23]The decision that the claimant’s employment should be terminated was that of Ms Campbell, although it was approved by Mr Spencer. The claimant had not intimated an intention to resign, nor had any contact been made with him.[24]The claimant, in seeking graduate employment named the respondent in an application form as a reference around May or June 2020.[25]The shredding work the claimant normally carried out was not required between April 2019 and June 2020 partly because of the digitisation of documents already carried out, the new practices adopted after relocation where other HR staff used the services of a contractor, and then the move to remote work. No one else was employed to carry out shredding work during this period.[26]Around July or August 2020, the claimant contacted Susan McLaren by phone as the claimant had become aware that the reference which had been received from the respondent had provided incorrect information in relation to the dates of his employment.[27]Susan McLaren informed the claimant at that time that the system showed that the claimant’s employment had been terminated at the end of June and that it showed the reason for termination as having been his resignation. The claimant’s main concern at this time was the incorrect information which had been provided in the reference.[28]The respondent has a guidance document on managing guaranteed hours contracts, which is the type of contract on which the claimant was employed.[29]The respondent did not follow the guidance in terminating the claimant’s employment. Ms Campbell was not aware of the existence of the guidance at the time she gave the instruction to terminate the claimant’s employment. She was not aware of any procedure to be followed in relation to the termination of a contract in the circumstances of the claimant.[30]The guidance in relation to managing guaranteed hours contracts was not followed consistently by the respondent’s managers. It was not a collective agreement, but was a guidance document setting out best practice for managers in handling contracts of this nature.[31]No one involved in the decision to dismiss the claimant was aware that his mother had lodged a grievance or the subject matter of the grievance she lodged.[32]The claimant was dismissed because he had not worked for the respondent for over 15 months and was not likely to be offered work in the near future. Observations on the evidence[33]The Tribunal found the claimant to be a generally credible and reliable witness. The exception to that view was in relation to his evidence that he was shocked and surprised and very angry when he found out that he had been dismissed. The Tribunal accepted that the claimant was rightly concerned that his application for a graduate role could be impacted by the respondent’s provision of inaccurate information in relation to the claimant’s dates of employment with them. However, it did not accept that it was the dismissal itself which surprised him. The claimant had had no contact with anyone from the respondent in relation to carrying out work for nearly 15 months. He had not contacted the respondent at any time to ask why he was not being provided with work. He knew that Ms McLaren had been seconded to another role. His purpose in contacting the respondent was solely in relation to the provision of a reference for a permanent full time role which would involve him relocating to Bristol. While the Tribunal could understand that the claimant was annoyed at the subsequent contradictory and confusing information with which he was provided by the respondent in relation to the reason for his dismissal, the Tribunal did not accept that it was the dismissal or indeed the failure of the respondent to offer work prior to the dismissal which angered the claimant. At the point at which the claimant contacted the respondent regarding the dates in the reference, the Tribunal formed the view that he had no wish to carry out any further work for them. He had been working almost full time for Tesco from around March 2020 and the Tribunal did not accept that the claimant had any firm expectation of carrying out work for the respondent from April 2019.[34]The claimant’s mother only indicated her intention to give evidence on the morning of the commencement of the final hearing, which came as a surprise to the respondent. While her evidence in relation to the processes and procedures she followed in the College to which she was assigned was credible, her animosity towards the senior members of the respondent’s HR function with whom she had dealings or who were responsible for the claimant’s dismissal was palpable. The Tribunal formed the view that her intention in giving evidence was to seek to paint a picture of the respondent’s HR function as incompetent, unprofessional, unreliable and untrustworthy rather than provide direct evidence in relation to the claims before the Tribunal. It was clear that her evidence was impacted upon by the manner in which her relationship with the respondent had come to an end.[35]The evidence of Ms Binnie and Ms Boyle was credible and reliable and they gave their evidence in a straightforward manner. Their evidence however was of limited assistance as it related only to processes and procedures which the respondent had already conceded had not been followed.[36]The Tribunal found the evidence of Ms McLaren to be balanced and credible. The Tribunal appreciated that she was in a difficult position, being both an employee of the respondent, a family friend of the claimant’s family and having initially been the claimant’s line manager. However, she took care to be accurate and considered in her evidence and gave her evidence in a balanced manner.[37]Mr Spencer was also credible and reliable. He made concessions where appropriate and did his best to assist the Tribunal in understanding the structure and processes of the respondent.[38]The Tribunal also found Ms Campbell to be both credible and reliable. She candidly acknowledged the failings in her actions in relation to the claimant’s dismissal, in that she did not know that someone on the type of contract on which the claimant was employed could be made redundant. It appeared to the Tribunal that Ms Campbell genuinely felt very distressed at her part in the circumstances leading to the claimant’s claim, both in relation to the consequences for the respondent and the claimant. The Tribunal found her apology to the claimant to be genuine. Relevant law Breach of contract
Relevant law
[39]The claimant argues that the document entitled Guidance - Management of Guaranteed Hours Contracts was incorporated into the claimant’s contract of employment. It was said that the document was incorporated by virtue of reference to ‘employment policies’ in the claimant’s statement of terms and conditions. Sections 1- 6 of ERA impose a requirement on employers to provide to employees a written statement of their terms and conditions of employment.[40]A contract of employment can contain terms not in the original contract. Terms which are either explicit, for instance in a collective agreement or amendment to a contract, or which are implied, for instance through custom and practice can also be incorporated into the contract.[41]In Alexander and ors v Standard Telephones and Cables Ltd (No.2) 1991 IRLR 286, QBD, Mr Justice Hobhouse stated that ‘where a document is expressly incorporated by general words it is still necessary to consider, in conjunction with the words of incorporation, whether any particular part of that document is apt to be a term of the contract; if it is inapt, the correct construction of the contract may be that it is not a term of the contract’. PTWR[42]Regulation 5 of the PTWR provides that a part time worker should not be subject to less favourable treatment than a comparable full time worker.[43]Regulation 2(4) sets out the criteria for establishing who is a comparable full-time worker in relation to a particular part-time worker. A part-time worker can compare their position with that of a full-time worker if, at the time when the treatment that is alleged to be less favourable to the part-time worker takes place both workers are employed by the same employer under the same type of contract, both workers are engaged in the same or broadly similar work, having regard, where relevant, to whether they have a similar level of qualification, skills and experience the full-time worker works or is based at the same establishment as the part-time worker.[44]If there is no full-time worker working or based at the same establishment as the part-time worker, such as to satisfy the third condition set out above, Reg 2(4)(b) provides that the part-time worker may compare his or her treatment with that of a full-time worker who works or is based at a different establishment, provided that the full-time worker satisfies the first two conditions. Victimisation[45]Section 27 EqA provides that(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.(4) This section applies only where the person subjected to a detriment is an individual.(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule. Compensation for unfair dismissal[46]Section 123 ERA provides Subject to the provisions of this section and sections 124, 124A and 126, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. Submissions[47]Detailed written submissions were provided on behalf of the claimant. The main points of the submission were as follows:• In relation to the question of victimisation, it was accepted that the claimant had not done a protected act, but alleged that the respondent believed that the claimant may do “any other thing for the purposes of or in connection with this Act” as per section 27 (2) (c) of the Equality Act. It was the Claimant’s position that the “other thing” the Respondent believed that the Claimant had done or would do was to support his parent in her grievance alleging sex discrimination. It was accepted however on behalf of the claimant that there had been no evidence in relation to what the claimant may have done or what the respondent may have thought the claimant would do.• It was said that inferences could be drawn from the manner in which the respondent had handled the termination of the claimant’s employment and the circumstances between the last day the claimant carried out any work for the respondent and the termination of his employment, that such treatment amounted to victimisation. It was submitted that in terms of a two stage test, the claimant had established a prima facie case and that the respondent’s explanation was simply not credible. In particular, the explanations kept changing and were not consistent with what the claimant would have expected would have happened.• In terms of the claimant’s breach of contract claim, it was asserted that the Claimant’s contract of employment and the Conditions of Employment were contractual and that the statement “may relate to elements of your employment which was contained in the statement of terms and conditions was evidence that the Management of Guaranteed Hours document was contractual. It was said that an updated link to policies and procedures would lead to that document.• In terms of the claim under the PTWR, it was recognised that no evidence had been led in relation to a comparator under the regulations. However, the claimant wished to insist on the claim that there had been less favourable treatment of him in that there had been evidence from Ms Campbell that she had kept in touch with a full time employee who was on sick leave and that she had believed that redundancy was not applicable to employees employed under guaranteed hours contract.• In terms of the compensation for unfair dismissal, a schedule of loss had been produced.[48]The respondent also provided detailed written submissions and elaborated on these orally. It was said that there was no suggestion that those involved in the dismissal of the claimant had any knowledge of the protected act of Mrs Millar and that explanations had been provided for what had happened.[49]It was also said that the submissions of the claimant did not reflect the evidence which had been heard or a reasonable interpretation of that evidence. It was recognised that the respondent had not followed appropriate procedures, which was why they had conceded the unfair dismissal claim. However there was no evidence to suggest that the claimant had been victimised. There was nothing to suggest that the respondent had though that the claimant would do something in relation to his mother’s grievance. The grievance itself had been kept very tight and none of the respondent’s witnesses had any knowledge of it prior to their involvement in the employment tribunal.[50]In terms of the breach of contract claim, it was said that the document referred to was guidance and was not a collective agreement. In any event no loss flowed from any breach which might have occurred.[51]Turning to the question of compensation for unfair dismissal, the payments already made to the claimant were highlighted. Further, it was pointed out that only future loss after the termination of employment can be awarded and the claimant has already received 7 weeks’ notice pay. Therefore, it was not just and equitable to make any award of compensation. Discussion and decision Victimisation[52]It was accepted that the claimant’s mother had done a protected act, but that the claimant had not done such an act. Rather it was said that the respondent believed that the claimant might do a protected act. However, there was no evidence before the Tribunal to allow it to conclude that this was the case. None of those involved in the dismissal of the claimant were aware of the protected act of Ms Miller or that she had raised a grievance at all. In any event, while it was said in submissions that the respondent thought that the claimant may make supportive comments of his mother or critical comments of the Director of HR, Mr Saville, against whom the grievance had been lodged, there was no evidence to substantiate this position. Indeed, the position was entirely inconsistent with the evidence which was heard from the claimant, which was that he and his mother agreed at an early stage in his employment that they would keep matters separate and not discuss employment matters. While it is accepted that the claimant was aware that his mother had raised a grievance which alleged discrimination, there was no evidence from him to suggest that he would have said or done anything in support of his mother’s grievance while at work. Further, the claimant’s mother left the employment of the respondent in November 2019 and there was no suggestion that her grievance was ongoing thereafter. It is therefore difficult to understand what protected act it was being suggested that the claimant may have done after his mother’s employment had terminated, where there was no ongoing grievance. In any event, there was simply no evidence to allow the Tribunal to come to a view that the respondent thought that the claimant may do a protected act or what the nature of that protected act might be. It was not in the Tribunal’s view sufficient simply for the claimant to be the son of someone who had done a protected act to demonstrate that he may also do a protected act following on from his mother’s protected act. There had to be some evidence about what it was the respondent thought the claimant might do in order to meet the requirements of the provisions. In the present case, there was simply no evidence at all either about what the claimant might have done or what the respondent thought that the claimant might do.[53]The Tribunal recognised that victimisation may not be a conscious act on the part of an employer. It also recognised that the provisions of the section are widely drawn. However, there needs to be a causal link between the alleged victimisation and the protected act (or the belief that a person might do a protected act). In the present circumstances, the Tribunal concluded that there was simply no evidence whatsoever to establish such a causal link. Therefore even if it could have been said that the respondent believed that the claimant may do a protected act (for instance simply because of the family connection between the claimant and his mother), there was no evidence to establish a causal link between that and the claimant’s dismissal or the respondent’s failure to offer him work between April 2019 and his dismissal.[54]Although it was suggested in submissions for the claimant that decisions were taken in relation to the claimant under the instruction of Mr Saville, this was never put to any of the witnesses. They were never challenged on their evidence about their decision making. In any event, the Tribunal accepted the evidence of Ms Campbell and Mr Spencer that they acted independently for the reasons they gave in relation to the decision to terminate the claimant’s employment.[55]Similarly there was simply no evidence to suggest that anyone had been told not to give the claimant work from 5 April 2019 until the termination of his employment. The Tribunal accepted that the claimant’s main contact with the respondent had gone on secondment to another role and the other principal contacts had either retired, or also been seconded. Further, the office in which the claimant had worked had relocated amid a wider reorganisation and transformation of the HR function. Thereafter of course, the pandemic took hold and all the respondent’s staff were working from home and had to be provided with laptops and other equipment to allow them to work effectively. The Tribunal accepted that the duties in relation to shredding which had been the main focus of the claimant’s work was less likely to be required after the office move, given the process of digitisation which had been underway, the clear desk policy enforced by Mr Spencer and the likelihood that staff would use the contractor in place for shredding which had been used by other parts of the HR function with whom the Central office was now located.[56]Moreover, the Tribunal were of the view that the claimant was likely to have been offered additional tasks only if he was in the office for shredding in the first place. The longer the claimant was away from the office, the less likely he would have been to be on the mind of those who might offer him work. Further, the Tribunal accepted that the only staff with guaranteed hours contracts in the central services of HR were now notetakers, who were engaged on contracts of 100 hours a year. There was no suggestion that the claimant had ever done notetaking when employed by the respondent or that he ought to have been considered for one of these roles.[57]Further, the Tribunal concluded that the claimant had no firm expectation of being offered any work after April 2019. He did not contact anyone at the respondent, including his main contact Ms McLaren, who was a family friend to ask why he wasn’t being offered work or who he should contact about carrying out work.[58]In these circumstances, the Tribunal concluded that the claimant had not established a prima facie case of victimisation. There were simply no facts from which the Tribunal could draw an inference that the reason for the treatment he complained of was that the respondent believed he may do a protected act. Even had the Tribunal been satisfied that the burden of proof in this regard had shifted to the respondent, the Tribunal would have accepted the reasons put forward by the respondent, that there was no work for the claimant to do between April 2019 and June 2020 for the reasons set out above, and that he was dismissed because he had not done any work for 15 months were not related in any way to any belief that the claimant may do a protected act. The claimant’s claim of victimisation therefore fails. Breach of contract[59]The Tribunal considered the terms of the claimant’s contract of employment and the accompanying summary of conditions of employment. The Tribunal also considered the terms of the document called Guidance – Management of Guaranteed Hours contracts. It accepted that the guidance was not a collective agreement, and it was not followed by all managers. It was not the type of guidance which one might expect to be incorporated into a contract of employment. Taking all of these factors into account, the Tribunal had no hesitation in concluding that the document did not and was not intended to confer contractual rights on the claimant.[60]The Tribunal considered the case of Alexander and ors v Standard Telephones and Cables Ltd (No.2) 1991 IRLR 286, QBD in relation to whether the content of the guidance document was apt for incorporation into the claimant’s contract of employment. It concluded that this was not apt for incorporation into an individual’s contract of employment.[61]Rather the document was guidance, which represented best practice for managers to follow when they were dealing with staff on guaranteed hours contracts. While there had been a working group involved in drafting the document which involved one or more of the trades unions, and unions may have been consulted on the documents, there was no intention for it to create contractually binding rights. Had there been an intention to create contractual rights, then the Tribunal would have expected that there would be evidence in relation to one of the trade unions being aggrieved that the guidance was not followed. The document itself did not take the form one might expect of a collective agreement, particularly where it was accepted that a number of trade unions were recognised by the respondent. It was merely as it was entitled ‘guidance’, and no contractual rights flowed from that in respect of the claimant. Part time worker claim[62]In submissions it was acknowledged that the claimant had not identified a full time comparator in relation to his claim that he was not issued with a P45 because he was a part time worker. There was some evidence that Ms Campbell had kept in touch with an employee who was on sick leave, but the Tribunal did not hear any evidence about the specific circumstances of that individual, what type of contract that person was employed under, what sort of work they did or how long they were on sick leave for. In any event, the Tribunal did not consider the circumstances comparable. The claimant’s situation was that he did not work for the respondent for long periods of time. He was not on sick leave during those periods. The Tribunal also heard that the claimant had provided Tesco and the University of Strathclyde with a fit note when he was ill between September 2018 and early 2019. There was no suggestion that he provided the respondent with a fit note at that or any other time.[63]Therefore, the claimant’s claims under PTWR fail at the first hurdle as he failed to identify a comparable full time worker. Unfair dismissal compensation.[64]The respondent had accepted that the claimant had been unfairly dismissed. A statutory redundancy payment had been made and therefore no basic award is due to the claimant. Further, the claimant was paid, albeit belatedly, notice pay of 7 weeks. His employment was terminated on 30 June 2020, so the notice pay covered the period from then until 18 August. The claimant started his new job in Bristol on 4 September 2020. He is recorded as ceasing work for Tesco on 7 August.[65]The Tribunal concluded that even if the claimant had not been dismissed by the respondent on 30 June 2020, he was unlikely to have worked beyond the period for which he worked for Tesco. The Tribunal did not accept that he would have been likely to have either been offered or have wished to carry out any work for the respondent in the weeks leading up to him commencing a new job in Bristol, which required him to relocate. In these circumstances, the Tribunal concluded that the claimant had not suffered any financial losses as a result of his unfair dismissal, and that it was not just and equitable to make any compensatory award.