Mr S Duncan v Langdykes Ltd T/a The Langdykes: 8000103/2023
JUDGMENT
The unanimous Judgment of the Employment Tribunal is(1) that the claimant was subjected to harassment contrary to Section 26 of the Equality Act 2010 on 22 October,18 November, 3 December all 2023 and 23 January 2023 and that the respondent company shall pay the claimant the sum of Ten Thousand pounds (£10,000) with interest of £511 calculated at 8 per centum per annum from the date of the last incident (23 January 2023) until the date of the hearing (12 September 2023 ) a period of 233 days,(2) that the respondent shall pay the ETZ4(WR) claimant the sum of Four Hundred and Eighty Three (£483) being one week’s pay in lieu of notice.REASONS
[1]The claimant in his ET1 claimed that he had been unfairly dismissed and had been subject to discrimination on the grounds of his sexual orientation whilst working as the Assistant Bar Manager with the respondent company. The claimant had applied for Early Conciliation on 24 January 2023 and io raised proceedings following the issue of the ACAS Certificate.[2]The claim for unfair dismissal was subsequently withdrawn. A claim was also made for payment of one week’s notice. The respondent company defended that claim on the basis that the claimant was alleged to have committed an act of gross misconduct discovered after termination of his employment disentitling him to notice.[3]The ET1 that was lodged was not detailed. It alleged that when the claimant had been dismissed he was called a “fat poofy bastard” and that during his employment a number of comments were made by the Bar Manager Mr McPherson that related to his sexuality and that these were often made in the bar where there were members of the public present who could overhear the comments. On one occasion he alleged that a comment was made in the presence of his partner and two other people. He alleged that he had suffered generally degrading behaviour throughout his employment at the hands of the Bar manager.[4]Following a Case Management Hearing the claimant was asked to provide Better and Further Particulars and to detail the incidents to which he referred. He then in those Particulars made reference to incidents which he described had taken place on 22 October 2022, 19 November 2022 and 3 December 2022 and the day he was dismissed which was 22 January 2023.Evidence
[5]The Tribunal heard evidence from the claimant and his partner Nicola Duncan. The respondent company called as a witness Albert (Bert) McPherson, the Retail Bar Manager. They were allowed to put to the claimant allegations contained in an unsigned document purportedly prepared by a Karen McNiven dated 13 July 2023. Ms McNiven did not give evidence.[6]The Tribunal considered the respondent’s List of Documents, it became clear that the claimant had not lodged a separate bundle. Accordingly, the Tribunal allowed the claimant to lodge copies of documents that he had already intimated to the Tribunal and which had been seen by the respondent company (C1-33). The claimant had also in the course of correspondence with the respondent produced 2 pages of his GP’s notes covering the period of his employment. The respondent’s representative wanted to refer to these and they were allowed to do so forming document 10 and 11 of their List.Issues
[7]The Tribunal discussed the issues with the parties. It appeared clear that the principal issues related to incidents of alleged harassment on the grounds of sexual orientation and whether they occurred. The remaining claim was for notice pay of one week and depended on the respondent demonstrating a right to dismiss the claimant summarily. Findings in Fact[8]The ciaimant was experienced and trained in the licensed trade. He had spent most of his working life in the hospitality/bar trade. He had worked for Whitbread PLC for about 6 years and having been trained and developed by them was appointed a Team Leader. He then had a couple of short term posts before joining the respondent on 4 September 2022. He was appointed Assistant Retail Bar Manager. The Bar Manager was Albert (Bert) McPherson who had worked with the respondent company in excess of 36 years.[9]The respondent company have a small business running a public house known as The Langdykes. It has a relatively large L shaped saloon bar. The kitchen is rented out and meals provided by the people who run the kitchen in the evenings. There are about 5 or 6 part time staff and two permanent managers who work on a rota. There is a WhatsApp group that employees are members of to keep in touch with each other, check rotas and to generally find out what is happening in the bar.[10]The claimant worked on average 46 hours per week. His gross weekly take home pay was £483.[11]The claimant worked rotas effectively “back to back” with Mr McPherson There were periods where they overlapped and when they were in the bar together.[12]A couple of weeks after the claimant started Mr McPherson made a remark that the claimant did not find funny. It related to someone’s sexuality. The claimant told Mr McPherson that he did not find such comments amusing and explained that he was in fact bisexual. Mr McPherson initially seemed to take this seriously but thereafter on a number of occasions he made comments about the claimant’s sexuality referring to him as a “poof’ or a “princess”. The claimant was annoyed and upset at this behaviour but did not protest. At this point he and his partner needed to work to meet their financial commitments. 22 October 2022[13]The claimant and his partner were in the bar having a drink. The claimant wasn’t working. A male regular known as “Rossie” had come into the bar with his ex- girlfriend. They had been out together. They were standing near to the claimant and his partner at the bar. Mr McPherson was behind the bar serving. He commented to the claimant that Rossie was looking him up and down and said that he wanted to “shag him”. The claimant was deeply embarrassed. The claimant’s partner heard this remark, became upset and left the bar. 18 November 2022[14]The claimant and his partner were going to travel to Glasgow to see a concert. The claimant came into the bar on Friday morning and left at lunchtime. When he was in the bar that morning 2 police officers entered the premises and spoke to him. They were making enquiries about someone who had been found dead nearby. They did not mention the person’s name but asked if they could view the CCTV. The claimant did not have the password for the CCTV. He telephoned Mr McPherson. He was also on leave that weekend as he was going to a wedding. Mr McPherson was annoyed at being interrupted and ended the telephone call angrily by calling the claimant “I am on fucking holiday. I never get time to myself. Poof!”[15]The claimant had guessed that the Police were interested in the movements of a regular customer and later in the bar some customers said they had not seen a man called “Kenny” for a few days. On the way to Glasgow the claimant was keeping in touch with developments on the internet and heard confirmation that it was in fact “Kenny” who had died. The claimant sent a WhatsApp message to this effect to the bar staff. 3 December 2022[16]On 3 December 2022 the claimant had been feeling unwell for a few days. He was struggling with his mental health. He had previously suffered from an anxiety/depressive condition for which he had been prescribed Fluoxetine by his G.P. He had discontinued using it when he had felt better. He became suicidal and attended at A&E that day. Later he went in to the bar to speak to Mr McPherson to ask for some time off. He explained that he had suicidal thoughts and was feeling unwell. Mr McPherson initially seemed sympathetic. As the conversation continued Mr McPherson said that he couldn’t understand people who committed suicide as they left all their friends and relatives behind to deal with the situation. He said that he’d never had any condition like this although he had some health difficulties in the past. He agreed that the claimant could get a couple of days off. They had originally discussed these matters privately in the office.[17]As the conversation continued they walked into the bar, which had some customers in it. Mr McPherson continued the conversation. Mr McPherson seemed interested in the claimant’s mental health issues and speculated if these were related to problems with his relationship with his partner. He mentioned Rossie and said that he was always in the bar looking at the claimant and apparently joking implied that they were having a relationship. The claimant was shocked at this. He denied that this was the case. He said he was not in any relationship with that person. Mr McPherson indicated he was only “kidding”. The claimant was upset and annoyed at this being raised with him and at the suggestion being made that one of the background issues to his mental health was his partner’s unhappiness at this supposed relationship. January Incident[18]In January the claimant was on duty. There was a televised football match being shown and the bar was busy. An incident took place between a customer “Douglas” who was with one group and an off duty female police officer called “Colleen”. They were arguing loudly with each other and this came to the attention of the claimant. The customer, Colleen, was with a friend “big Davy”. The claimant intervened to try and calm things down between Douglas and the female customer. However, at some point Douglas became annoyed and left the bar slamming the door and damaging it slightly. The claimant decided to telephone the police.[19]It took some time for the police to arrive and in the interim matters cairned down. Douglas had returned to the bar and had sat quietly with his own group and stopped arguing with Colleen. However she was not satisfied and began trying to reignite the argument The claimant was by now concerned at Colleen’s behaviour. She was drunk and at some point had punched a wall. He told big Davy that the police had been called. Big Davy became upset at this and began arguing with the claimant that there was no need for the Police to be involved. Another customer intervened and told big Davy that the claimant was only doing his job. At that point big Davy became angry and began abusing the claimant calling him a poof.[20]The police arrived and the claimant explained what had happened. They spoke to Douglas and to Big Davy outside. They asked the claimant whether or not he wanted Big Davy charged with making homophobic remarks and he said he did not.[21]The claimant spoke to Mr McPherson that night about the incident. Mr McPherson indicated that he would have handled it differently by not contacting the police. The claimant said that he did not want to serve big Davy until he apologised. Mr McPherson said that if he wanted a quiet life he should simply serve him.[22]The following day big Davy came into the bar and the claimant refused to serve him. The claimant was told by Mr Wightman the owner of the company that they couldn’t stop serving regular customers particularly as it was a quiet time of the year.[23]Mr Wightman and Mr McPherson contacted some of the customers who had been present by telephone and they said that they had not heard big Davy say anything homophobic. No notes were taken of these interactions. Incident 23 January 2023[24]The respondent’s owner was dissatisfied with the claimant. He decided to dismiss him before hearing his side of events. The respondent gave him no warnings or opportunities to improve. When the claimant attended at work on 23 January 2023. He was asked to speak to Mr McPherson. Mr McPherson was accompanied by another employee “Kay”. The claimant was told that he wasn’t a “good fit” for the bar and that he was being “let go”. The claimant was surprised at this. He became annoyed and upset and an argument developed between him and Mr McPherson. The claimant indicated that he would tell the Licensing Board about some of the practices in the premises. There was an argument and voices were raised. The claimant went to leave. As he was leaving Mr McPherson approached him said “Wait till I get you in a dark corner you poofy bastard”.[25]The claimant was intimidated and upset by this remark. When he left the bar he contacted the police about the matter. No charges were ultimately brought against Mr McPherson. When leaving the bar the claimant sent a WhatsApp message to another employee, Nicky, telling her that she wasn’t needed that day. He did so to inconvenience the respondent company. Witnesses[26]We found the claimant a reluctant witness and one who was hesitant. We concluded he was embarrassed about these events. He was at times a poor historian in relation to the sequence of some events but the core events he described struck us as being wholly genuine. In this regard we found him credible and reliable in relation to these acts of harassment.[27]Ms Duncan was a quiet witness who seemed somewhat intimidated by the proceedings. She did however corroborate the incident in the bar on the 22 October and more generally the impact working in the bar had on her partner’s mental health. She was a credible and reliable witness in relation to these matters.[28]We did not form a favourable impression of Mr McPherson’s evidence. He was adamant he could have done nothing wrong but could not explain why the claimant and his partner gave the evidence they did. He would not accept that the claimant was unaware that a meeting had been set up to discuss disciplinary matters nor could he explain why the apparent issue of the claimant overclaiming hours of wages was not the first matter on the agenda if it was so clearcut. Submissions[29]Both parties asked the Tribunal to accept their evidence of events. Mr Wightman pointed to the claimant, getting the date for alleged incident with Mr McPherson wrong but he accepted that there were surrounding events that placed it on the date ultimately used by the claimant. His general position was that the claimant could not be trusted and was not a reliable witness. Discussion and Decision[30]Section 26 of the Equality Act 2010 is in the following terms: “26 Harassment(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii J creating an intimidating, hostile, degrading, humiliating or offensive environment for B. io(2) A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b).(3) A also harasses B if— (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b) the conduct has the purpose or effect referred to in subsection (1)(b), and (c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.(5) The relevant protected characteristics are—• age;• disability;• gender reassignment;• race; ® religion or belief;• sex;• sexual orientation."[31]The comments made to the claimant were wholly denied. We found it improbable that the claimant would invent these incidents covering as they did the relatively short period of his employment. The incidents were all similar in nature. His evidence was to an extent corroborated by his partner Ms Duncan particularly the incident on the 22 October which she witnessed. She was also able to speak to the impact these events had on the claimant. Although there were other aspects of the claimant’s life that impacted on him such as his mental health she spoke about him coming back from work upset or “down” and that he felt he could not resign because they were short of money at the time.[32]The respondent company prepared an alleged Minute of the disciplinary meeting held on 23 January. This appeared to us to be a sham. For example, it indicated that the claimant had been asked to attend at 9 o’clock but didn’t arrive until 10.40. Mr McPherson was adamant about the matter and only eventually conceded that the claimant had not been asked to attend any specific meeting let alone a disciplinary one. He could have been texted, emailed or telephoned and told what was planned but as it was he attended as usual in time for opening up at 11. The Minute recorded (Rp 22) the topics allegedly discussed were the claimant’s dress and appearance whilst on shift, allowing non-members of staff behind the bar and that his claimed working hours did not match the alarm deactivation times. The Minute did not reflect what had actually occurred at the short meeting that had taken place. We accept, the claimant’s evidence that he was simply told he was not a ‘good fit’ and was to be ‘let go’ We accepted that this was much more likely than the respondent’s position in evidence. It was interesting to note that despite being the most serious matter and the apparent reason for withholding his notice the allegation about claiming too many hours was not first on the list of misdemeanours.[33]The respondents say now that they had looked at the alarm system and noticed that on a number of days the claimant deactivated the alarm sometime after his starting time of 9am. The claimant was hourly paid. However, we found that the claimant was involved in banking takings for the respondent company. He would bank the takings a couple of times per week. On these occasions he would do this before he went to the bar to open up. This was accepted procedure. He would also on occasion collect goods from Makro before he started his shift. As importantly we ascertained that the hours that were passed to the respondents’ payroll were prepared and collated by Mr McPherson and not by the claimant. No issue had been raised about his time keeping before. We concluded that we could not accept the evidence of the respondent’s witness that this state of affairs showed clear gross misconduct disentitling the claimant to notice. The claimant’s weekly wage was not disputed. Accordingly, he will be entitled to one week’s pay in lieu of notice amounting to £483.[34]The offensive comments, which we found proven, were deeply insulting and upsetting for the claimant and we have no doubt that both section 1(b) (i) and (ii) were engaged. His workplace had through these comments become an oppressive place for him and the environment degrading. We were particularly concerned at the comments made in front of his partner and the insinuations about the claimant’s alleged relationship with a customer in the circumstances where the claimant had already made clear that he was uncomfortable about such comments they went far beyond what could be described as banter.[35]We considered the question of remedy and what compensation the claimant should receive for injury to feelings. The medical notes disclose that after these events he asked to be put on antidepressant medication and although there may have been other factors such as the manner of his dismissal (he was on this medication for some time previously) the disrespectful manner in which he had been treated during these incidents was an important factor. We concluded that this case did not fall properly into the lowest Vento band. This was not a one off act of discrimination but a series of incidents and we will treat it as such ending with the final incident. It does not merit an award in the highest band so we concluded that as the middle band started at £9900 it should be the sum of ten thousand pounds with interest at 8 per centum per annum from the date of the last incident (23 January 2023) until the date of the hearing (12 September) a period of 233 days (£10,000/365x8%)