The claim for unfair dismissal is struck out under rule 37 of the Rules contained in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, on the grounds that the claim has no reasonable prospect of success in terms of rule 37(1)(a).
REASONS
Background
[1]The judgment dated 24 September 2024 in this case was promulgated as a result of an administrative error. The judgment has been reconsidered by the Employment Judge and is revoked in terms of rule 72. That judgment referred to the entire claim of the claimant being dismissed. The judgment ought only to have referred to the claimant’s claim of unfair dismissal.[2]It is currently common ground that the claimant lacks the 2 years’ service normally required by section 108(1) of the Employment Rights Act 1996 to qualify for the right to claim unfair dismissal and the claimant does not appear to rely on any of the exceptions to that rule listed in section 108(2) of the same Act. On 3rd September 2024 the Tribunal issued a strike out warning and gave the 3. claimant an opportunity to give written reasons by 17th September 2024 or to request a hearing in order to consider why the claim should not be struck out.[4]The claimant has failed to give an acceptable reason why such a judgment should not be made or to request a hearing. The Tribunal therefore strikes out the claim for unfair dismissal on the grounds that claim has no reasonable prospect of success, in terms of Rule 37(1)(a).[1]The claimant initially presented his claim on 4 April 2024, but that was rejected because of an incorrect Acas Early Conciliation Certificate number. A corrected claim form was accepted upon reconsideration and the claim was treated as having been presented on 27 April 2024.[2]The claimant initially alleged unfair dismissal and discrimination on grounds of race. The claimant’s unfair dismissal has now been dismissed by Order dated 25 September 2024.[3]The claim as originally presented alleged discrimination on grounds of race only in relation to the claimant’s dismissal.[4]It was only at the case management preliminary hearing on 3 September 2024 that the claimant sought permission to amend his claim by adding allegations of intimidation and bullying arising from an alleged incident in August 2023 and of having received a lack of training and development – specifically about having been left out of a PAT training course on 24 May 2023 and a ladder training course on 28 June 2023.[5]At this case management preliminary hearing a further preliminary hearing was fixed in order to determine various matters, the following questions still being relevant to today’s preliminary hearing:a. whether the claimant’s discrimination claim had been brought within the time limit specified by section 123 of the Equality Act 2010.b. whether the claimant should have permission to amend this claim to bring additional allegations of direct race discrimination contrary to section 13 of the Equality Act, in respect of bullying and intimidation and denial of training and development opportunities.[6]At the 3 September 2024 preliminary hearing Employment Judge Whitcombe also ordered that the claimant provide by 17 September 2024 - ‘’the date, approximate date or period of each allegation of intimidation and bullying made against Mr McNamara, stating precisely what happened and the identities of any comparators relied on’’.[7]The claimant did not comply with that order. However, in correspondence to the Tribunal dated 2 October 2024, the claimant then alleged that - ‘’my wages weren’t the same with colleagues of a different race, which I spoke mentioned and discussed with the head of facility Mr Ian Williams’’. He had previously sent an e-mail to the Tribunal on 6 September 2024 in which he provided a copy of an e-mail dated 30 October 2022 that now appears to be relevant to that allegation but had been sent without explanation.[8]On 3 October 2024 the Tribunal wrote to the parties advising that – … the claimant was ordered to set out the details of any allegations of harassment on the ground of race he wished to include by way of amendment to his claim form. The hearing on 18 October is to consider, amongst other matters, the claimant’s opposed application to amend his claim in this and other respects. In order to determine whether the claimant’s application to amend his claim should be accepted, both the Respondent and the Tribunal require to know the exact detail of the proposed amendment. If the claimant has not set out in writing the exact detail of the proposed amendment to his claim to include a claim of harassment, by setting out the dates of any allegations and details of the exact conduct complained of by 4 p.m. on 10 October, then the Tribunal will proceed on the basis that he no longer wishes to pursue that application and the hearing on 18 October will not consider any further such application.[9]By letter dated 10 October 2024, the claimant provided further details in relation to the alleged bullying incident originally raised on 3 September, as follows – “An incident occurred when job card came through to unblock female staff toilet in one of the wings. Upon completing the repair excrement while on the floor of the restroom, I advised one of the custodian officer to have the restroom out of service until it’s bio cleaned by trained personnel but Derek Carmichael bullied me to cleaning toilets. I mentioned to him for health and safety reasons it’s best for trained personnel to clean it but he insisted and I told him I wasn’t biohazard trained. This is also documented. I was bullied and discriminated against in doing this as when my caucasian colleague in my department have such jobs things are different to were biohazard personnel attend. Mr Derek Carmichael was acting as the key man as the head of facilities and technical manager had issues with management and left. Secondly my wages weren’t the same with my colleagues doing same job which I discussed with head of facilities at the time and brought it to the attention of human resources to rectify but it weren’t acted upon. I also reported to management (new head of facilities) that I was being bullied by Derek Carmichael but nothing was done about it other of my colleague Mr Andy McPhail witnessed this happening.”[10]On 11 October 2024, the Tribunal wrote to the claimant in the following terms: “Employment Judge Jones has directed the Tribunal to write to parties indicating that the issue of whether the claimant has particularised his amendment application sufficiently to allow the Tribunal to consider whether it should be allowed, will be discussed at preliminary hearing on 18 October. It is noted however that the claimant has failed to provide any dates in relation to the issues raised or specification of comparators or in relation to the question of pay, the difference in pay or why it is alleged that related to race.” The preliminary hearing[11]At the hearing the claimant gave evidence in respect of the issues in relation to the determination of the time bar issue. The respondent produced a bundle of papers for the purposes of the preliminary hearing and the claimant referred to documents he produced (without objection by the respondent) during his evidence and submissions.[12]The claimant’s documents included(1) an e-mail he had sent to the respondent on 30 October 2022 alleging he was being paid less than his colleagues on site doing the same job and(2) his dismissal letter dated 13 December 2023, which (it was accepted by Mr James) showed that the alleged incident that had given rise to the claimant’s allegation of bullying had also been, at allegation 6, one of the reasons for his dismissal. Findings in fact in relation to time bar[13]The respondent employed the claimant between 18 October 2022 and 8 December 2023. The claimant began Acas early conciliation on 3 April 2024, concluded on 8 April 2024.[14]Following his dismissal on 8 December 2023 the claimant initially appealed against his dismissal and also made a subject access request. He could not accept the respondent saying he was unqualified for the job given his experience, so he asked them to produce any evidence of prior warnings about his performance.[15]The claimant felt shocked at his dismissal and that he was “put through a ringer” by the respondent because of the time it took them to deal with his subject access request. He told the respondent that he believed the appeal hearing should not take place until he had received that information.[16]Although the claimant remained in correspondence with the respondent about his subject access request until 6 March 2024, he had by 12 February 2024 commenced employment with a new employer, by which time he had also decided that he would not attend an appeal hearing.[17]He decided sometime in March 2024 that he would pursue a claim at the tribunal, having consulted the Gov.UK website and ascertained that he had a right to do so.[18]When he first contacted Acas on 3 April 2024 the claimant was aware of his right to bring a claim to the Tribunal, but he was unaware of the relevant time limit until he found out about this during the case management preliminary hearing on 3 September 2024.[19]The claimant did not take any legal advice at all following his dismissal, and he has taken no legal advice since then. Claimant’s submissions in relation to amendment[20]The claimant submitted that at the time when he presented his ET1 he believed that he had been discriminated on grounds of race in relation to his dismissal, pay and training and that he had also been bullied because of his race. He also believed that his general assertion of discrimination in the ET1 by ticking the relevant box was sufficient to cover all the elements of his claim and he could provide the details of the allegations at a later stage in the procedure. The requirement to do so had ‘’escaped him at the time’’. He accepted he had not taken any advice about whether his belief reflected what was actually required to be set out in his ET1.[21]In relation to the alleged bullying, he now confirmed that the incident had taken place in September 2023 and that he had raised his concern with management at the time when it had happened. Respondent’s submissions[22]On behalf of the respondent, Mr James submitted that the original claim, which alleged that only the dismissal was discriminatory, should be dismissed as being out of time. and that the amendment application should be refused. If the Tribunal accepted the respondent’s argument in relation to time bar, that was effectively the end of the matter because there was no claim to amend.[23]So far as the delay in presenting the claim was concerned the claimant had relied on ignorance of the time limit and also the existence of the ongoing internal procedure. However, it was clear that the claimant had been able to apply for jobs throughout January and February and indeed had been interviewed for and started a new job in February 2024.[24]He had accepted he had been aware of the general concept of having employment rights and of the right to bring a Tribunal claim to enforce those rights, even if he had been unaware of time limits. He had felt shaken and aggrieved by his dismissal. He had become aware in March 2023 of his ability to bring a claim when he had searched on Gov.UK. In those circumstances he could and should have made his claim in time and he should take the consequence of having failed to do so.[25]If the claimant had delayed because he was awaiting the outcome of a subject access report, that was not a basis for extending time. The claimant knew he had been dismissed and he did not discover that fact through a subject access request. He was not lacking any material knowledge. In the circumstances, it was not appropriate to extend time simply to allow him to dig for further evidence on events of which he would have already been aware.[26]In any event, if he was under any misapprehension as to applicable time limits, that misapprehension was not reasonable. There was no suggestion that he was limited in his ability to find information to bring his claim. He started a new job on 12 February 2024, and he was therefore presumably able to look for and apply for jobs and attend interviews prior to this date. He had access to the internet, and he could have carried out basic research. He ought to have done so. If he had done so, he would have been fully apprised of the applicable time limits.[27]In all the circumstances, Mr James submitted that it would not be just and equitable to extend time, and the claim ought to be dismissed as time barred.[28]In respect of the amendment, Mr James submitted that the only allegation of discrimination in the ET1 concerned the claimant’s dismissal. He had only, at the 3 September 2024 case management preliminary hearing, sought to amend his claim to include allegations relating to an alleged bullying incident while cleaning a toilet in 2023 and an alleged lack of training and development in respect of training and development.[29]In the respondent’s submission the claimant had failed to respond adequately to the order made at that preliminary hearing and none of the additional allegations he had sought to add by way of amendment had been sufficiently particularised. There was still inadequate specification of the alleged bullying incident in 2023, despite the clear terms of the order made. So far as pay was concerned, there were no details that provided fair notice of such a claim, no details of comparators, and no basis as to why race was allegedly a relevant factor in relation to pay. The allegations remained largely, if not wholly, unspecified. The claimant had adopted a “scattergun” approach to his claim.[30]Further the proposed amendments sought to introduce significant new areas of factual enquiry involving new witnesses and new allegations relating to events that took place in 2023, prior to his dismissal, and were therefore significantly time barred.[31]If the claim was allowed to proceed, the respondent would be prejudiced by the claimant being allowed to amend the claim. The scope of any final hearing would be widened significantly. It would involve far more factual enquiries and far more witnesses. It was also unclear if the witness Derek Carmichael, named by the claimant in relation to the alleged bullying allegation, was still employed by the respondent.[32]In any event, given the unspecified nature of the proposed amendments, a final hearing still could not be fixed on the terms of the amendments as they stood and therefore, for that reason also, allowing the amendment would not be proportionate or in accordance with the overriding objective.[33]In all the circumstances, an assessment of the relative hardship and injustice favoured the amendments being refused. Discussion and decision Time bar[34]Section 123 (1) of the Equality Act 2010 provides that: “Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of – (a) the period of three 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.”[35]The Tribunal therefore has discretion to accept a claim if it is presented within “such other period as it considers just and equitable”. It is established that this is a wide and unfettered discretion – Bexley Community Centre v Robertson [2003] EWCA Civ 576.[36]Although the Tribunal’s discretion in extending time is wide – British Coal Corporation v Keeble [1997] IRLR 336 and DPP v Marshall [1998] IRLR 494 provide some guidance as to certain relevant factors that may be relevant to the prejudice each party would suffer if an extension were refused. These include: the length of and reasons for the delay; the extent to which cogency of the evidence is likely to be affected by the delay; the extent to which the parties had cooperated with any requests for information; the promptness with which the claimant acted once they knew of the possibility of taking action; and the steps taken by the claimant to obtain appropriate professional advice once they knew of the possibility of taking action.[37]DPP v Marshall [1998] IRLR 494 also makes it plain that the emphasis should be on whether the delay has affected the ability to conduct a fair hearing. ‘’The answer is that in some cases it will be fair to extend time and in others it will not. The industrial tribunal must balance all the factors which are relevant, including, importantly and perhaps crucially, whether it is now possible to have a fair trial of the issues raised by the complaint. Reasonable awareness of the right to sue is but one factor.’’[38]Having been dismissed on 8 December 2023, the claimant ought to have started proceedings by commencing Acas early conciliation no later than 7 March 2024. The claimant was initially in correspondence with the respondent about his appeal and about his subject access request. He only became aware of his right to bring a Tribunal claim sometime in March 2023, albeit he waited until 4 April 2024 to begin early conciliation, at which point he was still unaware about the statutory time limit that applied.[39]Mr James‘ submission was focussed on the claimant having unreasonably waited for the outcome of the internal appeal and subject access request and his alleged unreasonable ignorance of his right to bring a claim and the time limit that applied. It was notable that the respondent was not relying on the unavailability of witnesses or documentation in relation to the claimant’s dismissal. There was therefore no suggestion that the cogency of the respondent’s evidence would be materially affected by that delay or that a fair hearing would not still be possible. It simply relied on the claimant’s alleged unreasonable delay.[40]The Tribunal was therefore able to conclude that the claimant’s delay had not caused any genuine prejudice to the respondent, whereas the claimant would be deprived of the ability to pursue any remedy if his case was dismissed. Further the claimant had presented his complaint within a reasonable time after he acquired the knowledge of his right to bring a discrimination claim. In those circumstances the Tribunal finds that a fair hearing on the amendment would be possible and that it would be just and equitable to extend time. Amendment application[41]When faced with an amendment application, a Tribunal should consider the principles established in the cases of Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650 and Selkent Bus Company Ltd (trading as Stagecoach Selkent) vs Moore [1996] IRLR.[42]In Cocking, the EAT held that regard should be had to all the circumstances of the case and in particular the Tribunal should “consider any injustice or hardship which may be caused to any of the parties… if the proposed amendment were allowed, or as the case may be, refused.”[43]In Selkent, the EAT held that when faced with an application to amend, the Tribunal must carry out a careful balancing exercise of all the relevant circumstances and exercise its discretion in a way that is consistent with the requirements of “relevance, reason, justice and fairness inherent in all judicial discretions”. In that case, the EAT considered that relevant circumstances would include the nature of the amendment, the applicability of time limits and the timing and manner of the application – often now referred to as “the Selkent factors”.[44]At the preliminary hearing on 3 September 2024, the Tribunal ordered that “by no later than 17 September 2024, the claimant must send to the respondent and the Tribunal the date, approximate date or period of each allegation of intimidation and bullying made against Mr Mcnamara, stating precisely what happened and the identity of any comparators relied upon.”[45]Although he did not comply with that order by 17 September he did eventually write to the Tribunal on 10 October 2024 in the following terms: “An incident occurred when job card came through to unblock female staff toilet in one of the wings. Upon completing the repair excrement while on the floor of the restroom, I advised one of the custodian officer to have the restroom out of service until it’s bio cleaned by trained personnel but Derek Carmichael bullied me to cleaning toilets. I mentioned to him for health and safety reasons it’s best for trained personnel to clean it but he insisted and I told him I wasn’t biohazard trained. This is also documented. I was bullied and discriminated against in doing this as when my caucasian colleague in my department have such jobs things are different to were biohazard personnel attend. Mr Derek Carmichael was acting as the key man as the head of facilities and technical manager had issues with management and left. Secondly my wages weren’t the same with my colleagues doing same job which I discussed with head of facilities at the time and brought it to the attention of human resources to rectify but it weren’t acted upon. I also reported to management (new head of facilities) that I was being bullied by Derek Carmichael but nothing was done about it other of my colleague Mr Andy McPhail witnessed this happening.”[46]Taking account of the terms of the claimant’s 10 October 2024 e-mail explaining the alleged different treatment, his confirmation of the relevant date and the respondent’s admission that the incident in question was one of the reasons for his dismissal (in which case it should be relatively straightforward for them to identify and investigate the allegation) the Tribunal was satisfied that the claimant had provided sufficient detail about this allegation to provide fair notice of it.[47]In those circumstances the prejudice to the claimant of refusing the amendment would be far greater than the prejudice to the respondent of allowing it, and therefore the balance of prejudice favours the claimant. His amendment in that respect is therefore allowed.[48]In relation to pay the claimant has failed to provide any details whatsoever about the alleged difference in pay, failed to identify any comparators, and failed to explain why he believes any asserted difference in pay is related to his race.[49]In relation to an alleged lack of training the claimant has provided some details of the training courses in questions but has failed to explain the alleged difference in treatment relative to those courses, failed to identify any comparators, and failed to explain why he believes any asserted difference in his treatment in this regard is related to his race.[50]It is significant that the Employment Judge made plain at the 3 September 2024 preliminary hearing that further information was required in respect of the proposed amendment raised there and that a detailed order was made setting out precisely what was required.[51]The claimant should by then have been left in no doubt about the necessity of setting out the terms of any proposed amendment in the same level of detail. Yet he has failed to do so in respect of his proposed amendments in relation to pay and access to training. As a result, there remains inadequate specification about those allegations about which the claimant would still require to provide further information. It is also relevant that both allegations are entirely new allegations that were not foreshadowed in the ET1 and that both are now significantly out of time.[52]In those circumstances there would be more prejudice and hardship to the respondent in allowing such amendments than would be caused to the claimant in refusing them. His amendment applications related to an alleged difference in pay on grounds of race and an alleged difference in relation to access to training on grounds of race are therefore refused. Further procedure and next hearing[53]The respondent should be allowed a period of 21 days to answer the allowed amendment. After that period has elapsed a further preliminary hearing for case management should be fixed with a view to fixing and making directions for the preparation of a final hearing.[1]The claimant presented complaints of direct race discrimination and unfair dismissal. His complaint of unfair dismissal was struck out on 25 September 2024, as the claimant had insufficient service to pursue that compliant. In a judgment sent to the parties on 9 December 2024, Employment Judge King confirmed that claimant’s application to amend his claim was permitted in one respect, and that it was just and equitable to extend the time limit for presentation of the complaints.[2]The parties lodged a joint bundle of documents for the final hearing, extending to 200 pages. A further document was added during the hearing.[3]The claimant gave evidence on his own behalf. He did not call any further witnesses.[4]The respondent led evidence from: 4.1. Donny Wornin (DW), Soft Services Manager; and 4.2. Derek Charmichael (DC), Deputy Facilities Manager.
Issues to be Determined
[5]The issues to be determined were discussed at a preliminary hearing held on 20 January 2025, and recorded in the note issued by Employment Judge Hoey following that hearing. They are as follows: Direct Discrimination – s13 EqA[6]Did the respondent do the following: 6.1. Dismiss the claimant on 7 December 2023; and/or 6.2. On or around October 2023 DC requested that the claimant carry out biohazard cleaning without adequate training. If so, was that act less favourable treatment?[8]If so, was the treatment because of race? The claimant asserts it was because he is black.
Remedy
[9]What financial losses has the dismissal caused the claimant?[10]Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?[11]If so, did the respondent or the claimant unreasonably fail to comply with it?[12]If so, is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?[13]What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that? What interest should be awarded? Findings in Fact[15]This judgment does not seek to address every point about which the parties have disagreed. It only deals with the points which are relevant to the issues which the Tribunal must consider to decide if the complaints made succeed or fail. If a particular point is not mentioned, it does not mean that it has been overlooked, it simply means that it is not relevant to the issues. The relevant facts, which the Tribunal found to be admitted or proven, are set out below.[16]The respondent is a provider of outsourced facilities management services. The respondent provides custodial and rehabilitative services and operates seven prisons across the UK, on behalf of its client, the Scottish Prison Service.[17]Following a period of study, the claimant secured a Level 3 Diploma in Plumbing Studies (6035-03), in 2015. He then worked in a series of different roles before commencing employment with the respondent on 18 October 2022, as a Maintenance Plumber. He was based at HMP Addiewell. The job description for the role stated that individuals must have obtained the relevant plumbing trade qualification and be able to perform tasks alone, or in a team, to a high standard without constant supervision. He entered into a contract of employment with the respondent which stated that his salary was £31,000. As part of his role, he often required to work alone, including undertaking oncall work, on a rota system.[18]In October 2023, whilst the claimant was on call over the weekend, he was asked to address a faulty staff toilet. This required removal of the back stack of the toilet, which resulted in excrement spilling onto the floor. Having completed the job, the claimant informed a prison officer that a biohazard clean would be required, and put a sign on the toilet door, stating it was out of order. He did not however inform the Duty Manager that a biohazard clean was required. Only the Duty Manager would arrange the biohazard clean. As a consequence, it was not done.[19]DC was acting up as Deputy Head of Facilities at that time. When he attended work on the following Monday, he received complaints about the condition the toilet had been left in. He noted that excrement had been left on the floor of the toilet. He asked the claimant to meet him at the toilet to discuss the situation with him. He suggested steps that the claimant could have taken, during the repair, to mitigate the amount of waste spilling onto the floor and asked the claimant if he would have left a private customer’s toilet in the same condition. The claimant indicated that he would not. DC asked the claimant if he had informed the Duty Manager that a biohazard clean was required, so that this could be arranged. The claimant indicated that he had not. DC informed the claimant that he would arrange this, and went back to the office to make the calls to do so. While he was there the claimant came and said he had attempted to clean the toilet area. DC stated that he had not asked him to do that and, as it would still need to be biohazard cleaned in any event, there was no need for him to have done so. A biohazard clean was then conducted.[20]Around the same time, the respondent identified that the claimant may not have the qualifications required to enable him to undertake his role with the respondent, as a Maintenance Plumber. This, coupled with a number of concerns regarding the standard of his work, led them to schedule and hold a formal investigation meeting with the claimant. This took place on 30 October 2023. DW conducted this meeting and a notetaker was also present. Each of the concerns in relation to the claimant’s work were discussed with him. The respondent’s concerns regarding the claimant’s qualifications were also discussed. DW stated that it appeared the claimant was qualified to undertake the role of plumber’s mate, rather than a plumber. The claimant stated that he understood that he was fully qualified as a plumber. He was asked to provide evidence of this, but could not do so to the respondent’s satisfaction. At the conclusion of the meeting, DW indicated that, due to the issue regarding the claimant’s qualifications, and the potential risks (to the claimant and others) of him potentially performing tasks as a lone worker which he was not qualified to undertake, he was suspended on full pay, pending further investigation. The claimant subsequently received a letter confirming this.[21]By letter dated 28 November 2023, entitled ‘Invite to Formal Meeting – SOSR’, the claimant was invited to a formal meeting to be held on 7 December 2023. He was informed that the meeting was to discuss his ‘qualifications and credentials to perform the duties required as a qualified plumber’, as well as a number of stated concerns in relation to his performance. The letter highlighted that ‘the outcome of this meeting may be termination of your employment for it some other substantial reason, due to your unsuitability to work in regulated activity.’ Enclosed with the letter was a pack of information to be used at the hearing. This included 2 print outs in relation to the qualification which the claimant holds, namely City & Guilds Level 3 Diploma in Plumbing Studies (6035-03). The first document, entitled ‘Introduction’ stated ‘Who is the qualification for?’ and provided the following response ‘For candidates who want to work as plumbers in the building services engineering sector. This qualification does not make candidates fully qualified plumbers or plumbing and heating engineers (see Appendix 2).’ Appendix 2 was also enclosed. Appendix 2 is a template ‘Disclaimer’. It states that the document must be completed by the candidate and the tutor as part of the qualification induction, and contains a section at the end for the signature of the candidate and tutor. The text of the disclaimer is as follows: ‘You have been enrolled on the Level 3 Diploma in Plumbing Studies (6035-03). This is a qualification that tests both practical and knowledge based skills in a realistic working environment. When you have successfully completed this qualification you will be at Improver/Plumbers Mate level. In order to fully qualify as a Plumber you will need to fully meet the performance criteria as laid down in the national occupation standards put together by Summit Skills, the Sector Skills Council. This is covered in the City and Guilds 6189 Level 2 and 3 NVQ Diploma in Plumbing and Heating. Your tutor/assessor will be able to explain how you make progress on to the City and Guilds 6189 Level 2 and 3 NVQ Diploma in Plumbing and Heating. However, you should be aware that relevant performance units will need to be carried out in industry. Completion of the 6189 will enable you to apply to join a competent person’s scheme. I can confirm that as part of my induction the above statement has been explained and I understand that completing the City and Guild Level 3 Diploma in Plumbing Studies (6035-03) qualification will not make me a fully qualified Plumber.’[22]The claimant attended the meeting on 7 December 2023. DW conducted this and a note taker was present. At the meeting the concerns regarding the claimant’s performance were discussed. In relation to his qualification to undertake the role, the claimant confirmed that his qualification was a Level 3 Diploma in Plumbing Studies (6035-03), and that he did not have the City and Guilds 6189 Level 2 NVQ Diploma in Plumbing and Heating, or the City and Guilds 6189 Level 3 NVQ Diploma in Plumbing and Heating. At the conclusion of the meeting DW adjourned to take further advice from the respondent’s HR team. DW determined, having done so, that the claimant’s employment would require to be terminated, as the claimant did not have the appropriate qualifications to undertake his role. While there was no suggestion that the claimant had misrepresented his qualifications when he applied for his role, and DW appreciated that the matter ought to have been picked up by the respondent at the recruitment stage, he concluded that the claimant did not have the qualifications which he ought to have to undertake the role of Maintenance Plumber. The health and safety risks that this created meant that the claimant could not continue in his role. Had it not been for that issue, the claimant’s employment would have continued, and the performance issues identified managed via a performance improvement process.[23]Following the adjournment, DW indicated to the claimant that his employment would be terminated, with 4 weeks’ notice, on the grounds of some other substantial reason, because he was not qualified to undertake the role he had been employed to do, namely Maintenance Plumber. The claimant’s employment terminated on 8 December 2023, and he was paid 4 weeks’ salary in lieu of notice.[24]The claimant submitted a letter, dated 21 December 2023, appealing against the decision to terminate his employment. The claimant did not assert race discrimination in his letter. He was invited to an appeal hearing. The appeal hearing was rescheduled, at the claimant’s request. The claimant did not attend the rescheduled appeal hearing, as he had secured alternative employment by that point. He was informed, by letter dated 15 April 2024, that his appeal had been considered on the papers, but was not upheld.[25]The claimant commenced alternative employment on 12 February 2024, earning substantially the same as he did while working for the respondent. Respondent’s submissions[26]Ms Stobart, for the respondent, in summary, submitted that: 26.1. The respondent’s evidence should be preferred to that of the claimant. 26.2. The claimant has not demonstrated that he was treated less favourably. Any employee in the same situation would have been treated in the same way. 26.3. There is no evidence to suggest that the respondent’s actions were because of race. Claimant’s submissions[27]The claimant, in summary, submitted that: 27.1. His evidence should be preferred to that of the respondent. 27.2. He has worked in a number of other organisations, with the same qualifications. 27.3. He has suffered injury to feelings as a result of the respondent’s actions. Relevant Law Direct Discrimination
Relevant Law
[28]Section 13(1) of the Equality Act 2010 (EqA) 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.’[29]The basic question in a direct discrimination case is: what are the grounds or reasons for treatment complained of? In Amnesty International v Ahmed [2009] IRLR 884 the EAT recognised two different approaches from two House of Lords authorities -(i) in James v Eastleigh Borough Council [1990] IRLR 288 and(ii) in Nagaragan v London Regional Transport [1999] IRLR 572. In some cases, such as James, the grounds or reason for the treatment complained of is inherent in the act itself. In other cases, such as Nagaragan, the act complained of is not inherently discriminatory but is rendered so by discriminatory motivation, being the mental processes (whether conscious or unconscious), which led the alleged discriminator to act in the way that he or she did.[30]It is unusual to have direct evidence as to the reason for the treatment (discrimination may not be intentional and may be the product of unconscious bias or discriminatory assumptions) (Nagarajan). The Tribunal should draw appropriate inferences as to the reason for the treatment from the primary facts with the assistance, where necessary, of the burden of proof provisions, as explained in the Court of Appeal case of Anya v University of Oxford [2001] IRLR 377. “Most cases turn on the accumulation of multiple findings of primary fact, from which the court or tribunal is invited to draw an inference of a discriminatory explanation of those facts” (Madarassy v Nomura International Plc [2007] IRLR 246).[31]When considering an appropriate hypothetical comparator, there must be no material difference between the circumstances relating to each case (s23(1) EqA), that ‘what matters is that the circumstances which are relevant to the treatment of the worker are the same or nearly the same for the worker and the comparator’ (paragraph 3.23, EHRC Code of Practice on Employment (2011)). ‘The circumstances’ relevant for a comparison include those that the alleged discriminator takes into account when deciding to treat the claimant as it did (Shamoon v Chief Constable of the RUC [2003] IRLR 285).[32]For direct discrimination to occur, the relevant protected characteristic needs to be a cause of the less favourable treatment ‘but does not need to be the only or even the main cause’ (paragraph 3.11, EHRC: Code of Practice on Employment (2011)). The protected characteristic does however require to have a ‘significant influence on the outcome’ (Nagarajan). Significant in this context means more than trivial (JP Morgan Europe Limited v Chweidan [2011] IRLR 673) Burden of proof[33]Section 136 EqA states that: ‘If there are facts from which the tribunal could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned the tribunal must hold that the contravention occurred. But this provision does not apply if A shows that A did not contravene the provision.’[34]There is a two-stage process in applying the burden of proof provisions in discrimination cases, explained in the authorities of Igen v Wong [2005] IRLR 258, and Madarassy v Nomura International Plc [2007] IRLR 246, both from the Court of Appeal. The claimant must first establish the first stage or a prima facie case of discrimination or harassment by reference to the facts made out. If the claimant does so, the burden of proof shifts to the respondent at the second stage to prove that they did not commit those unlawful acts. If the second stage is reached the Tribunal is obliged to uphold the claim unless the respondent can show that it did not discriminate.[35]In Madarassy, it was held that the burden of proof does not shift to the employer simply by a claimant establishing that they have a protected characteristic and that there was a difference in treatment. Those facts only indicate the possibility of discrimination. They are not, of themselves, sufficient material on which the Tribunal “could conclude” that on a balance of probabilities the respondent had committed an unlawful act of discrimination. Something more is required, but that need not be a great deal (Deman v Commission for Equality and Human Rights and ors 2010 EWCA Civ 1279, CA). The Tribunal has, at the first stage, no regard to evidence as to the respondent’s explanation for its conduct, but the Tribunal must have regard to all other evidence relevant to the question of whether the alleged unlawful act occurred, it being immaterial whether the evidence is adduced by the claimant or the respondent, or whether it supports or contradicts the claimant’s case, as explained in Laing v Manchester City Council [2006] IRLR 748, an EAT authority approved by the Court of Appeal in Madarassy. Observations on Evidence[36]There was a dispute between the parties as to whether the claimant was instructed by DC to personally carry out biohazard cleaning, without adequate training.[37]The claimant asserted that he was instructed by DC to personally carry out biohazard cleaning of the toilet area, following the repair he had conducted over the previous weekend. The claimant indicated that he had protested, stating that he was not trained to do so, nor vaccinated. He stated that DC continued to insist that the claimant personally undertake the biohazard clean, despite his protestations, and the claimant subsequently did so.[38]DC stated that he did not instruct the claimant to do so, and would not do so, for a number of reasons: 38.1.While staff had previously conducted biohazard cleaning (and DC was previously trained to conduct biohazard cleaning), staff no longer did so. Prisoners had been trained to undertake this task and were paid to do so (at a rate significantly reduced from the sum which staff had previously been paid for the task); 38.2.Biohazard cleaning is a two-man job. The claimant could not have undertaken this himself; 38.3.He was aware that the claimant was not trained in biohazard cleaning, and no job would be instructed or undertaken unless the respondent’s 3 checks for safety (correct training, correct equipment and a safe environment) were satisfied; and 38.4.As an ex-union representative, he would never ask someone to undertake a task they were not trained to do.[39]On balance, DC’s evidence was preferred. The Tribunal accepted that, for the reasons he stated, DC would not have issued this instruction to the claimant. It was also noted that DC was trying to arrange a biohazard clean when the claimant later approached him to say that he had cleaned the area. DC would not have been making those arrangements if he had instructed the claimant to undertake the task, and would not have responded stating that the claimant was not instructed to do so, and a full biohazard clean would still be required in any event, if he had in fact instructed the claimant to undertake this task. A full biohazard clean was then undertaken by prisoners, not the claimant.[40]While there was detailed evidence in relation to the performance concerns identified, given the evidence in relation to the reason for the termination of the claimant’s employment, and how those concerns would have been addressed had there not been an issue regarding the claimant’s qualifications, the Tribunal concluded that these were not in fact relevant to the claimant’s dismissal, so there was no reason to address these, in detail, in this judgment. Discussion & Decision Direct Discrimination[41]The Tribunal considered each asserted act of direct discrimination, considering whether the alleged treatment occurred, whether it amounted to less favourable treatment and, if so, what the reason for that treatment was: was it because of race. DC requesting that the claimant carry out biohazard cleaning without adequate training.[42]The Tribunal’s findings in fact in relation to this are set out in paragraph 19. The reasons the Tribunal reached those findings are explained in paragraphs 36-39. As the Tribunal concluded that the asserted conduct did not occur, the claimant’s complaint in relation to this does not succeed and is dismissed. Dismissing the Claimant[43]It was not disputed that the claimant was dismissed. The Tribunal considered whether that conduct amounted to less favourable treatment. The claimant relied on hypothetical, rather than actual, comparators.[44]The Tribunal concluded that any Maintenance Plumber (or indeed any other employee) employed by the respondent, who the respondent believed was not in fact qualified to undertake the role they were employed to do, would have been dismissed by the respondent. A hypothetical comparator in these circumstances would accordingly have been treated in exactly the same way as the claimant was treated.[45]Given these findings, the Tribunal concluded that the claimant did not establish that he was treated less favourably than someone would be treated by the respondent in the same, or not materially different, circumstances. As he did not establish a prima facie case, the burden of proof did not shift to the respondent.[46]Even if the burden of proof had shifted to the respondent however, the Tribunal would have reached the conclusion that the claimant’s race did not influence the respondent’s actions, and there was no basis upon which it could be inferred that the respondent’s treatment of the claimant, in dismissing him, was because of race. The Tribunal was satisfied that the respondent genuinely held concerns that the claimant’s qualifications entitled him to work as a plumber’s mate only, and that he was not a fully qualified plumber. His continued employment accordingly presented a health and safety risk. Those concerns, alone, were the reason the claimant was dismissed. Their decision to do so was not influenced, in any way, by the claimant’s race[47]For these reasons, the claimant’s complaint of direct race discrimination, in relation to his dismissal, does not succeed.