Mr D Sookur v Highland Coaches Ltd and N M Maran: 8000921/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8000921/2024
Between
Mr D SookurClaimantHighland Coaches Ltd and N M MaranRespondent
Before
Employment Judge MurphyMs L Halsall (instructed by Counsel) for respondentDate 9 December 2025
JUDGMENT
ON REMEDY The unanimous judgment of the Tribunal is that:[1]The Tribunal, having found that the first respondent has made an unauthorised deduction from the claimant’s wages in respect of its failure to make a payment in lieu of 5 days accrued, untaken holiday orders respondent 1 to pay the claimant the sum of NINE HUNDRED AND SIXTY ONE POUNDS AND FIFTY FOUR PENCE (£961.54) (gross).[2]The sum awarded in item 1 is expressed gross of tax and national insurance. It is for the respondent to make any deductions lawfully required to account to HMRC for any tax and national insurance due on the sums, if applicable.
REASONS
Introduction
[1]A judgment on liability was sent to parties on 9 December 2025 which included a declaration that the first respondent had made an unauthorised deduction from the claimant’s wages in respect of its failure to make a payment in lieu of 5 days accrued untaken holiday.[2]A Case Management Order was issued of even date seeking representations from parties on the Tribunal’s provisional calculation of the sum owed in the amount of £961.54. The parties were ordered to provide comments within 14 days (by 23 December 2025).[3]On 10 December 2025, the first respondent’s representative wrote to the Tribunal agreeing with the arithmetical calculation. The claimant also sent email correspondence to the Tribunal on 12 and 16 December 2025 but provided no substantive comments on the arithmetical calculation the Tribunal had used to calculate a day’s pay and the consequent computation of 5 days as invited to do. Neither party made any representation that a further hearing was necessary to decide remedy in this case.[4]The time limit for providing representations having now expired, the Tribunal considers the most expedient approach on accordance with the overriding objective is to issue a judgment on remedy forthwith and without further procedure.[6]The claimant’s complaint of ‘ordinary’ unfair dismissal pursuant to sections 94-98 of ERA is not well founded and is dismissed.[7]The claimant’s complaints of breach of contract and unauthorised deduction of wages against R1 in respect of an asserted reduction of his salary of 20% in the period between 20 March 2020 and April 2021, having been withdrawn by the claimant during the hearing on 27 October 2025, are dismissed under Rule 51 of the Employment Tribunal Procedure Rules 2024.[8]The Tribunal lacks jurisdiction to hear the claimant’s complaint of breach of contract against R1 in respect of non-payment of £750 per month rent contribution in the period between April 2020 and May 2021 pursuant to Articles 4(b) and 5(b) of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 (“the 1994 Order”). This breach of contract complaint is, therefore, dismissed.[9]The Tribunal lacks jurisdiction to hear the complaint that R1 made an unauthorised deduction from the claimant’s wages in respect of non-payment of £750 per month rent contribution in the period between April 2020 and May 2021 pursuant to section 23(4A) of ERA. This complaint is, therefore, 10. the following further complaints of unauthorised deductions from wages are not well founded and are dismissed:a. the complaint that R1 omitted to pay the claimant an annual bonus payment for calendar year 2023;b. the complaint that R1 omitted to pay the claimant a bonus payment for the first quarter of calendar year 2024.[11]The following complaints of breach of contract are not well founded and are dismissed:a. the complaint that R1 omitted to pay the claimant an annual bonus payment for calendar year 2021;b. the complaint that R1 omitted to pay the claimant a bonus payment for the first quarter of calendar year 2024;c. the complaint that R1 omitted to pay the claimant in lieu of 23 days’ annual leave on the termination of his employment.[12]The Tribunal declares that R1 has made an unauthorised deduction contrary to section 13 of ERA from the claimant’s final wage by failing to pay him in lieu of 5 days’ accrued untaken holiday successively carried forward from each Leave Year since Leave Year 2020. Case Management Orders are made below regarding remedy for this complaint.[1]This final hearing took place by videoconferencing at the Glasgow Tribunal. The claimant (C) gave evidence on his own behalf and led evidence from Teresa Kalista, Anil David and Jessielyn Gayo. The Respondents (R1 and R2) led evidence from Hope Ajuwa, Dr Michael Lewis and Philippe Belhay. Evidence in chief was taken from the witnesses orally. A joint bundle of productions running to 458 pages was referred to be the witnesses. C and the Rs added further documents on 24, 27 and 29 October, without objection. Though he had reviewed it recently in preparation for the hearing, ML unfortunately could not, for technical reasons, access a copy of the bundle while giving his evidence via video link. However, this situation was managed adequately well by Ms Halsall and C explaining the document to which they referred when questioning ML and reading out in full those passages to which they wished to take him.[2]This table sets out abbreviations used in relation to individuals referred to in this judgment and their job roles. AD Anil David, Hotel Manager of the Bendoran Hotel, Scotland AC Augustin Cortes, Vice President (UK) AG Ashish Gosain, an Area General Manager with a portfolio of 4 hotels in Portugal. AM Arun Manohorrun, Cluster General Manager UK CF Christine Fox, Consultant who undertook work for R1 around March FS Fausto Sedano, Managing Director of R1 HA Hope Ajuwa, HR Officer JG Jessielyn Gipit Gayo, Restaurant Operations Manager, Bendoran Hotel, Scotland JM Jorge Madrazo, Global Human Resources Manager KM Kevin Maran, Managing Director ML Dr Michael Lewis, Cluster General Manager UK NM (aka R2) Nesamani Muthu Maran, Chairman PB Philippe Belhay, Vice President (Operations) UK RS Rahul Singh, HR Manager SG Sumir Gupta, Corporate General Manager TK Teresa Kalista, Rooms Division Manager for Hotels in Oban
Issues to be determined
[3]Remedy was hived off to be determined at a subsequent hearing in the event C were to succeed in some or all of his complaints. The parties had prepared a draft List of Issues. However, this was not agreed. There were discussions and clarifications about the issues and claims during the preliminaries on 24 October 2025. On 27 October 2025, C withdrew his complaint of breach of contract and / or unauthorised deductions from wages for 20% of his salary in the period from Mach 2020 until April 2021 (said to total approximately £10,833 across the period) while he was on furlough. The extant issues, as agreed at the hearing, are listed below. Race Discrimination time bar[4]Given the date the claim form was presented and the dates of early conciliation, a complaint about anything that happened before 17 January 2024 may not have been brought in time.[5]Were the discrimination complaints about the acts listed in paragraph [7(a) to (c)] made within the time limit in section 123 of EA? The Tribunal will decide:a. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?b. If not, was there conduct extending over a period?c. If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?d. If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: i. Why were the complaints not made to the Tribunal in time? ii. In any event is it just and equitable in all the circumstances to extend time? Direct race discrimination (section 13 of EA)[6]All of the direct race discrimination complaints are brought against R1 and all but one are also brought against R2. C is a national of Mauritius of Indian race and ethnicity.[7]Did R1 do the following things:a. From November 2022, did R1 exclude C from operational management decisions at certain hotels and did R1 devolve certain duties of C to others?b. In August 2023, did PB instruct C’s team to contact PB directly if there was any ‘monkey business’, referring to C’s conduct;c. In or around November 2023, was C not offered any opportunity to apply for the role of Cluster General Manager (CGM)?d. Between January and 1 March 2024, did R1 fail to pool C’s role and the CGM role together during the redundancy process? Was this notwithstanding an alleged acknowledgement by R1 that these roles involved doing the same job?e. It is admitted that R1 dismissed C on 4 April 2024;f. Did R1 predetermine the outcome of C’s appeal against dismissal dated 7 March 2024?[8]In each case, was that less favourable treatment because of C’s race?[9]In each case, did R2 instruct R1 to do these things? C alleges that R2 instructed R1 to do all of these things listed except paragraph [7(b)]. ‘Automatic’ Unfair Dismissal (section 104 of ERA)[10]This complaint proceeds against R1 only. There is no time bar issue. R1 admits that it dismissed C on 4 April 2024.[11]Was the reason or principal reason for the dismissal that C alleged that R1 had infringed a right of his that was a relevant statutory right?a. The statutory right C says he asserted had been infringed is the right to take annual leave in accordance with Regulation 13 of the Working Time Regulations 1998 (WTR).b. C says he alleged R1 had infringed this right in an email dated 30 December 2023 to Dr M Lewis and Hope Ajuwa. Victimisation (section 27 of the Equality Act 2010 (EA))[12]This complaint proceeds against both R1 and R2. There is no time bar issue.[13]Did C do protected acts as follows:a. on 21 August 2023, C says he wrote to R2 to inform him that PB had notified C’s team to contact PB directly if there was any ‘monkey business’, referring to C’s conduct; and / orb. on 30 December 2023, C says he highlighted a disparity in treatment between staff from the Philippines and ex-patriates and other members of R1’s personnel.[14]Did R1 do the following things:a. select C for redundancy in January 2024?b. R1 accepts it dismissed C on 4 April 2024.c. pre-determine the outcome of C’s appeal dated 7 March 2024 against his dismissal which outcome was confirmed on 20 March 2024?[15]By doing so, did R1 subject C to detriment?[16]If so, did R1 do the things in paragraph 12 above because C did a protected act or acts?[17]Did R2 instruct R1 to do all or any of the things in paragraph [14]?[18]If R2 instructed R1 to do all or any of the things in paragraph [14], did R2 instruct R1 to do these things because C did a protected act or acts? ‘Ordinary’ Unfair Dismissal (sections 94-98 of the Employment Rights Act 1996 (ERA)[19]This complaint proceeds against R1 only. There is no time bar issue. R1 admits that it dismissed C on 4 April 2024. What was the reason or principal reason for dismissal? R1 says the reason was redundancy or some other substantial reason ‘SOSR’.[20]If the reason was redundancy or SOSR, did R1 act reasonably in all the circumstances in treating that as a sufficient reason to dismiss C? The Tribunal will usually decide whether:a. R1 adequately warned and consulted C;b. R1 adopted a reasonable selection decision including its approach to the selection pool;c. R1 took reasonable steps to find C suitable alternative employment;d. Dismissal was within the range of reasonable responses. Unauthorised deductions from wages (section 13 of ERA)[21]These complaints proceed against R1 only. Were the unauthorised deductions complaints made within the time limit in section 23 of ERA? The Tribunal will decide:a. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the date of payment of wages from which the deduction was made?b. If not, was there a series of deductions and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one?c. If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?d. If it was not reasonably practicable for the claim to be made to the Tribunal within this time limit, was it made within a reasonable period?[22]Did R1 do the following:a. Did R1 fail to pay C £750 per month as a rent contribution from April 2020 to May 2021, a 14 month period?b. Did R1 omit to pay C an annual bonus payment for calendar year 2023?c. Did R1 omit to pay C a bonus payment for Q1 of calendar year 2024 (January to March 2024)?d. Did R1 omit to pay C a payment in lieu of his full entitlement to accrued but untaken annual leave as at the date of his termination? C says R1 omitted to pay C in lieu of 23 days’ annual leave on the termination of his employment which he claims he carried over from Leave Year 2020. i. The parties agree that C’s Leave year ran from 1 January to 31 December. ii. The parties agree that when C’s employment ended on 4 April 2024, just over a quarter of the leave year had passed (3 months and 4 days). iii. The parties agree that, during leave year 2024, C had taken 15 days’ paid annual leave between 8 January to 26 January 2024. iv. The parties agree that in Leave Year 2024, C had accrued 7.3 days’ annual leave. v. The parties agree that R1 paid C in lieu of 7.3 days’ annual leave on 5 April 2024. vi. C says that, in addition to his annual leave accrued in Leave Year 2024, he carried forward 23 days’ annual leave entitlement from Leave Year 2020. R1 disputes this. Did C carry forward 23 days’ annual leave, originally accrued in 2020, into Leave Year 2024 pursuant to the WTR? vii. How many days remain unpaid?[23]In each case, was there some legal or other entitlement to the sum? Breach of contract (The Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 “the 1994 Order”)[24]Did R1 do the following:a. fail to pay C £750 per month as a rent contribution from April 2020 to May 2021, a 14 month period?b. omit to pay C an annual bonus payment for calendar year 2023?c. omit to pay C a bonus payment for Q1 of calendar year 2024 (January to March 2024)?d. omit to pay C a payment in lieu of his full entitlement to accrued but untaken annual leave as at the date of his termination? C says R1 omitted to pay C in lieu of 23 days’ annual leave on the termination of his employment which he claims he carried over from Leave Year 2020.[25]Does the Tribunal have jurisdiction to decide the damages claim set out in paragraph [24(a)]? Is the contractual term said to have been breached a term imposing an obligation on the employer in connection with the provision of living accommodation?[26]In relation to each complaint listed in paragraph [24], did that breach a term of C’s contract of employment?[27]In each case, did the complaint arise or was it outstanding on the termination of C’s employment?[28]In each case, what damages flowed from the breach? Findings in fact[29]The following facts, and any further facts set out in the ‘Discussion and Decision’ section, are found to be proved on the balance of probabilities or were agreed by the parties. The facts found are those relevant and necessary to our determination of the issues. They are not intended to be a full chronology of events.[30]R1 is a limited company which operates a chain of hotels and sits within a global group. R2 is the Chairman of R1. C was employed by R1 from 30 August 2018 until |R1 terminated his employment on 4 April 2024, purportedly or redundancy. C was initially employed in 2018 as a Hotel General Manager of the Alexandra Hotel on a salary of £40,000 per annum.[31]C signed a statement of particulars of employment on 15 October 2018 which was stated in the document to form his contract of employment, along with the employee handbook. The Contract ‘[took] the place of all previous agreements and arrangements’.[32]So far as relevant, the Contract included the following clauses: Accommodation You will be provided with a suitable accommodation with free food within the hotel premises where you are posted. Hours of Work The hours of work required will vary according to the season and demands of the business.. Your normal working hours in a week are variable, in accordance with business needs, Monday to Sunday. The hours and days that you are required to work will be organised according to business needs and the Company will notify you of on the weekly Rota [sic]. You will be required to work in the evenings and at the weekends and on public holidays as part of your normal working week. ... 48 hour opt-out It is anticipated that your average weekly hours of work excluding meals and rest breaks may exceed 48 hours. Your signature on the attached document signifies your agreement to work more than 48 hours when required. You may revoke this agreement by giving three months written notice. Annual leave You're entitled to 28 days holiday inclusive of bank holidays per annum. The holiday year runs from 1st January to 31st of December each year. … In the event of termination of employment, you will be entitled to holiday pay calculated on a pro rata basis in respect of all annual holiday already accrued but not taken at the date of termination of employment. ... You must use all of your holiday entitlement by the last day of each holiday year and unless there are exceptional circumstances or, unless approved in writing in advance by your line manager, you may not carry your holiday entitlement forward into the next holiday year. Holiday entitlement not used by the correct date will usually be lost and under no circumstances will payment in lieu be made for holiday entitlement that is lost through not being exercised by the correct date.[33]In 2018, C initially lived in the Alexandra Hotel. At some point before March 2020, he moved out of the hotel and into a rented 3-bedroom home with his family. R1 agreed to pay him a contribution towards his rent of £750 per month in lieu of providing him with living accommodation in the hotel.[34]C was placed on furlough from 26 March 2020 until around May 2021. During this period, C received furlough pay but continued to work full time hours for R1. During the furlough period, the Alexandra Hotel remained open and emergency workers for the NHS were staying in C’s hotel. C and two housekeepers continued to work throughout the period from March 20 to May 21, but other staff did not. Although the occupancy was low, C and the housekeepers had to carry out intensive cleaning procedures when turning over rooms because of Covid. C believed that, during the furlough period, employees who were refusing to work were made redundant.[35]In around March 2020, C was told that he and all other team members were being offered accommodation within R1’s hotels. C was offered to return with his family to the Alexandra Hotel or to stay in the nearby Queens Hotel. C declined on the basis he felt the accommodation unsuitable for himself and his wife and infant (and all their belongings). RS, the HR manager at the time, told C that if he was unwilling / unable to move in to the hotels then R1 would not longer assist him with monthly rent contributions. Between April 2020 and May 2021 (14 months) R1 made no monthly contribution to C’s rent. C did not protest but continued to work under the Contract throughout this period. C did not raise any grievance or Tribunal claim or initiate Early Conciliation through ACAS regarding the matter throughout the period to May ’21 or within 3 months of its end.[36]C did not take any annual leave in the calendar year 2020. He had conversations with AM (CGM at the time) and RS in the summer of 2020, and it was agreed he and other staff affected would be able to carry holiday forward. There was no discussion about how long C would be allowed to carry the leave forward (i.e. whether into Leave Year 2021 only, or beyond).[37]On 11 January 2021, AM sent an email to a number of recipients, including C, which included text as follows: “Please be advised that pending holidays for all personnel for the calendar year 2019/20 must be cleared by March 2021. No holidays will be carried forward any further.”[38]C did not take holiday in the period between January and March 2021. He felt unable to because of the volume of work he had and did not request to take the holiday. Other than the email of 11 January 2021, R1 did not contact C about the use of his carried forward holiday or give him any encouragement to take the carried forward leave. Though C took holiday from his 2021 entitlement in the remainder of Leave Year 2021, he did not take any ‘carried forward’ leave from 2020 during the rest of 2021. He didn’t try to do so, again because he felt his volume of work was too high. C had no conversation with R1 at the end of March 2021 or at the end of December 2021 about whether the untaken leave from 2020 would carry forward into 2022. Again in 2022 and 2023, C did not try to take ‘carried forward’ annual leave accrued in 2020 because he perceived his volume of work was such that he could not do so. In Leave Years 2022 and 2023, R1 did not contact C about the use of any carried forward holiday accrued originally in Leave Year 2020. At no time did R1 contact C to give him any encouragement to take any untaken leave accrued in 2020.[39]C was promoted to Area General Manager (AGM) in around April or May 2021. On 11 May 2021, C sent an email to R2 as follows: “I would like to thank you for the opportunity offered to me and following our conversation regarding my salary package after my promotion to Area General Manager. I would like to confirm that we have agreed for my basic salary to be increased to £50,000 per annum plus my rent of £750 per month and a bonus scheme of up to £10,000 (to be devised). …[40]R2 replied, “Mr Devan, All the best. Wishing you to grow more and achieve more with the organization.” There was no further discussion regarding the terms of C’s bonus throughout his employment either with R2 or any manager of R1. In November 2021, R1 paid C a bonus payment of £10,000 (gross).[41]In 2022, R1 did not pay C a bonus. In that year, another company within the global group of companies paid C the sum of 8,000 euros. C had done a few days’ consultancy for that company in Mauritius. In C’s mind, this payment was in discharge of what he regarded as a bonus entitlement from R1 arising from his discussions with R2 in May 2021. Nobody told C that this was the nature of the 8,000 euros payment.[42]C had a call with Fausto Sedano (FS), who was, at the time, Managing Director of R1, on 11 November 2022, during which FS advised a couple of hotels were being removed from C’s remit as part of a restructuring process. This which prompted C to send an email of complaint about the matters to R2 and FS the following day (12 November 2022). On 12 November 2022, C sent an email to R2, copying in FS. It recorded that, following a call the previous day with FS, instructions had been given to remove the Queens Hotel and the Fort William Hotel from C’s area. C recorded that he had previously been managing the hotels with the collaboration of AC when the communication between C and R2 “was completely lost after VP joined”. He expressed concern that, with layers of management added above him, he had an impression that R2 had been receiving distorted feedback about the operations in his remit. C’s email contained several paragraphs detailing matters relating to the work he had been undertaking and the performance of hotels in his area as well as additional work beyond the hotels in his remit. He expressed that he felt he was ready to take on a broader role in the organisations. He asked R2 for the opportunity to meet to discuss any future plans with regard to the organisation’s growth and his role.[43]C did not receive a response from R2.[44]In around June 2023, Philippe Belhay (PB) joined the company as Vice President (Operations). Mr Belhay is a Tunisian national of North African ethnicity. On 21 August 2023, C sent an email to R2 which included the following text, so far as relevant: It is with great disappointment that I am having to highlight these matters to you... Unfortunately, I cannot have Mr Philippe insinuate untrue and unnecessary negativity amongst my team by telling to all the COS staff to call him directly if there is any “abuse” and “monkey business” (his words) towards them. My team members were taken aback by such statements and came straight to me with this as they have always been treated very responsibly and fairly from my side. The second meeting I had with him, it was made it clear to me if the gear is not changed, we will have to leave or he will “make my life hell”. I am 49 years of age and I believe that I have earned the respect of a professional person should have and to be spoken to using mediocre language from a VPCO is unacceptable. I feel that I am being treated like someone who is lazy and not doing enough to accomplish my role... I have been told several times by Mr Phillipe that I need to make sure that I perform to make him look good in front of his chairman. I believe that if someone performs with transparency and integrity, their work reflects to those characteristics and their result. …[45]In calendar year 2023, R1 did not pay C any money by way of a bonus payment.[46]Following a recruitment process which began around August 2023, ML was appointed to the role of Cluster General Manager (UK) (CGM). The vacancy was publicly advertised on Indeed and Caterer.com. The respondents did not specifically draw this vacancy to C’s attention or invite C to apply. Nor did they conceal the existence of this vacancy from C. C was unaware of the vacancy at the time and did not apply. ML applied on 25 September 2023. He was interviewed twice and was offered the role following his second interview which took part in October 2023.[47]ML started in post on 13 December 2023. As part of his brief, ML was charged with reviewing the UK business and taking such actions as he deemed necessary to stabilise the financial future of the UK operation in a challenging period for the sector. When he started, ML prioritised liaising with R1s finance and sales teams to be furnished with figures so he could assess the performance of the business and its financial sustainability. As well as having substantial experience in the hotel industry, ML had a Master’s in Business Administration and a PHD in Mathematics. He was very much ‘figures first’, and he concentrated initially on this review of the accounting information, as opposed to consultations with his direct reports (C included) about their business areas.[48]On 22 and 24 December 2023, ML held meetings with PB to discuss the UK operation. ML took handwritten notes. ML voiced significant concerns about the business. He had reviewed, in particular, the figures for the last quarter of calendar year 2023 and the projections for the first quarter of calendar year 2024. A £60,000 loss was predicted in the next quarter and ML identified that under the current trajectory, the UK operation would become insolvent by winter 2024. His discussion with PB was aimed at avoiding such an outcome and identifying actions to secure the viability of the business.[49]One issue which was contributing to cash problems was that a third-party company which had a long-term contract for the occupation of one of the hotels in C’s remit had ended its occupation without paying its debts. At the time in December 2023, ML’s understanding was that this debtor owed R1 approximately £400,000. During their Christmas Eve meeting, ML and PB discussed four hotels whose financial positions were of particular concern in terms of their financial position. Two of these were in Scotland and two in England. They discussed savings which might be achieved through procurement and supplier changes.[50]ML had also undertaken a comprehensive staffing review, and they discussed savings that could be made through staffing changes at the meetings. ML’s focus was on reducing headcount/ wage bills where possible / necessary without undermine the operation’s delivery. Among other things, He and PB agreed to pursue an immediate practice of reducing or eliminating hours given to zero hours workers. They agreed to terminate the services of a Hotel General Manager who was engaged on an agency basis in England, which ML did on 26 December 2023. Where sponsorship of overseas employee was up for renewal, they decided they would opt not to renew the sponsorship to realise cost savings.[51]ML also identified that C’s AGM position was a tier of management which could be removed from the structure. He proposed putting in place instead lower paid Hotel Manager roles to have responsibility and control of the zero hours employees at the respective hotels. He postulated that these staffing adjustments combined, including the proposed deletion of C’s post, could yield costs savings of between £220,000 and £240,000. It was decided that ML would commence a redundancy consultation process with respect to the proposed deletion of C’s post from the structure as soon as practicable.[52]Between Christmas and New Year, ML prepared a typewritten document which covered all the changes in the action plan and the rationale for these, including with respect to C’s role. In his document, he erroneously recorded the salary associated with C’s role as £55,000 (when it should have been £50,000). He correctly recorded C’s ‘accommodation allowance’ as £9,000 (£750 per month). ML further prepared a typewritten Redundancy Business Case around the same time.[53]C was not involved in any of these discussions. PB as Vice President (Operations) and ML as Cluster Group Manager (UK) were both in tiers of management above C and had responsibilities which extended to the whole UK operation. The documents ML prepared (headed ‘UK Group Hotel Performance and Strategic discussion’ and ‘Redundancy Business Case’) were not shared with C at the time or during the redundancy consultation process which later followed.[54]ML did not identify a pool of employees from which to select for redundancy. C’s AGM role was unique in Scotland. ML did not consider pooling his own CGM post alongside C’s role because the two roles had significantly different remits and responsibilities. ML’s post was responsible for all day-to-day operations, business performance and improvements in the efficiency and profitability of all R1’s UK hotels. C’s responsibilities and remit were limited to the six hotels assigned to him. R2 did not instruct ML in relation to the proposals devised by ML generally or with respect to C specifically. After ML and PB agreed the proposals, ML informed corporate head office including R2 who acknowledged the actions ML proposed to take. R2 did not intervene but was merely informed of the measures.[55]On 30 December 2023, C sent an email to HA and copied it to ML and PB. This followed an email he had sent on 28 December 2023 to PB in which he had requested 15 days’ annual leave. He had been asked to complete an updated holiday request form and the number of days requested and remaining balance had been queried. At 7.40 pm on 30 December 2023, C responded as follows: “Before I resend the form, I would like to highlight to you that I have a 48 hour contract and have always been working a minimum of 60 hours a week. My first years of work I was only able to take maximum of three weeks off again due to business requirements. It so happens that the Philippines staff and expats are getting any extra hours off. I also have 28 pending annual leave from COVID period that I have not been able to avail due to business requirements. And so much extra paperwork for five extra days of leave. Please do let me know if this will still be deducted from my leave which I am taking due to very important work to be done in my home country including attending to my old and not well parents… “[56]C, as a senior manager, had a contract which required him to work variable hours in accordance with business needs. His contract conferred no entitlement to TOIL. In his capacity as Area General Manager (and previously as Hotel General Manager), he was aware that more junior staff were employed under a variety of contractual arrangements, including arrangements which differed from his own. He was aware that some employees were employed on zero hours contracts and that some had contracts under which they were entitled to TOIL for overtime worked. HA replied on 30 December. She requested approvals from management regarding extra days off worked to be used towards his holiday and approval for holiday carry over to the following year. AH also said: “As you are aware any extra day off work that would be used towards holiday needs to be approved and in the case of the COS employees the hotel's / general managers of each hotel approves for this. As the manager, you're responsible for managing your own time and days and any extra hours / days worked is unpaid. If payable this must be authorised by management.”[57]C subsequently sought approval from R2 to take the leave and was notified that the holiday was approved on 3 January 2024. C went on annual leave from 8 to 26 January 2024 (15 days’ annual leave), during which period he returned to Mauritius. R1 did not contact C about the proposed redundancy consultation during C’s holiday.[58]On his return, C was invited on 30 January 2024 to a meeting the following day (31 January) which he attended. The meeting was chaired by ML, who also took notes. In the meeting, ML summarised that the current position was that C’s role oversaw six hotels of which four (at that point) were closed. ML was aware that certain closures were temporary and happened annually. He noted one of the hotels was contracted out for the use of asylum seekers and was not being managed by R1. ML said that, with no plans to reopen the Dalmally and the Royal hotels at that time, C’s position was not viable. He explained that C’s role was at risk of redundancy due to the financial and business needs of the business. C was told that if the final decision was that his role would be made redundant, he would have the right to apply for positions available. ML told him that he did not yet know what positions would be available. M told C that no firm decision had been taken.[59]On 1 February 2024, HA wrote to C in the following terms so far as relevant: “At the meeting you were advised of the reasons for the potential redundancy situation and these are summarised as follows: The work available for you to complete has substantially diminished. This is as a result of 2 of the properties which fall under your remit being closed, with a further 1 property being leased to the Home Office, 1 currently managed by a hotel manager and a further property being under renovation. This leaves only 1 hotel currently under your jurisdiction, which does not justify the continuation of the area general manager position. Further, and with regret, you were advised that your job is therefore at risk and you may, subject to completion of full and proper consultation, be dismissed by reason of redundancy as a result. At the meeting I invited you to consider any counter proposals you have and submit them at our next meeting. ... The meeting represents the beginning of a formal period of individual consultation. We will consider all ideas, suggestions and representations you wish to make to us during this period..[60]C was invited to a further redundancy consultation meeting which took place on 15 February 2024. The meeting was again chaired by ML. C attended and HA was present as note taker. C explained some background. He pointed out that he was promoted to AGM when the Dalmally and Royal Hotels were closed. He said that closed hotels still need to be looked after and explained they were looked after by him and his team. He pointed out he had made requests to grow within the organisation and that these had been ignored. He said at the same time, a new CGM (i.e. ML) had been recruited. He said his performance had been reviewed externally and that he was eligible and due for growth within the company. He said he had been flexible with the company and that during Covid he had worked full time and had ‘never made any kind of comment’. He said he hadn’t been paid rent during furlough and didn’t feel he should be the one to be put in the position of being made redundant.[61]C raised concerns that he had been ‘pushed out’ of certain responsibilities and that some of his subordinates had been told to report direct to Kevin Marran (MD).[62]C asked his was the only position being made redundant and ML told him it was, at that time. ML also said, “There would be other positions that would be made available, they would be operations manager, hotel managers and so on”. He said the reason the position was potentially going to be made redundant was because of the change in structure, there would be a small cost saving to the company. He explained the hotels would operate under a hotel manager with all hotel managers reporting directly to him as CGM. C reiterated that he had previously requested growth and mentioned that he was not aware that he CGM position had become available. C raised the fact he was unhappy about PB threatening him that if he didn’t perform, he (PB) would make C’s life hell. Towards the end of the meeting, HA asked C if there were any other questions he had and C referred to a previous question about how he had been selected form redundancy. HA said, “I think you asked what other position would be available” and C replied, “before we go to other positions I would like to see if we can clear the fact about my position and my growth, about the new recruit when we are struggling financially”. ML and HA understood that C did not wish to hear about alternative vacancies at that time. ML understood that C was reiterating his interest was in ‘growth’ meaning, in effect, promotion, and that C was querying R1’s decision to recruit a CGM.[63]C was invited to a further consultation meeting, described in the invite as a ‘final’ consultation meeting. It took place on 1 March 2024. ML chaired the meeting, which was also attended by HA. The invite recorded the process was an opportunity for C to make any final suggestions for ways of avoiding his redundancy and to explore suitable alternative employment and other internal vacancies that may exist.[64]ML advised that since the last meeting, they had been unable to find any alternatives to redundancy. He explained that at the time of C’s promotion to AGM it had been hoped that the Dalmally and Queens Hotels would open up but that that was no longer the case. He said they appreciated that C had worked during Covid but that there was a significant possibility that R1 would be selling some of the properties. He explained that the fact that other employees had been hired in the last two years did not detract from the situation at that time. He explained that C’s position had now been selected for redundancy.[65]HA provided figures regarding C’s financial entitlements. There was some discussion about these figures in the course of which C mentioned his view that his Covid holidays were still pending. There was no discussion about alternative vacancies. C did not ask about these. It was ML’s understanding from his previous discussion with C on 15 February that C was not interested in alternative vacancies at a lower level of seniority (and pay) than his AGM post. C was told his employment would terminate on 4 April 2024. ML told C that, separately to his role within R1, he personally operated his own talent company which specialised in the hotel industry. He explained he had many contacts in the industry and gave C his business card. He invited C to contact him if he wished ML to seek to identify potential job opportunities for him, using his industry contacts. C did not take ML up on this offer.[66]On 1 March, ML sent a follow up letter confirming C’s redundancy and that his notice period would expire on 4 April 2024. The letter set out a right of appeal to Jorge Madrazo (JM) (Global HR).[67]On 7 March 2024, C lodged an appeal against his dismissal. He set out his grounds which in summary were that: he was a dedicated employee; that other roles such as the recently recruited CGM had not been subjected to redundancy; that the redundancy had been decided on before his meetings; that he had been excluded from operations in hotels in his remit after raising concerns about actions towards ex pat team members; that the redundancy process had begun immediately after his return from annual leave when he had highlighted untaken leave pending from furlough time; that his request for promotion had been ignored; and that he had never had an uninterrupted day off or day of annual leave.[68]On 15 March 2024, an appeal meeting took place between C and JM. JM went through the points in C’s letter. He explained that C’s performance was not in question and that C had done a good job. He said that the CGM role was not a role which was similar to C’s AGM role. He explained the main difference that the CGM had to oversee the operation of all hotels in the UK. He explained it better suited the objectives of R1 to have hotel managers instead of an AGM because otherwise there was a duplication of management levels. He said that they were complying with labour law requirements, and he believed they had followed principles of fairness in informing C of the situation and trying to get his feedback.[69]JM went on to say that he understood C had gone through a big emotional stress and that they could not take back the redundancy decision because “if we were stepping back from this decision, this actually might put us in a situation of causing you a workplace harassment because we have been telling you we’re going to get rid of you, we’re going to eliminate your position … and then we back up , we feel that we have just been harassing you. And this is not our intention … We are just doing purely a business reorganisation in the management structure … This is nothing against Mr Deven”[70]C raised that there was a position open for cluster operations manager. C clarified he was referring to an advert which ML had placed on his LinkedIn. JM explained this had nothing to do with R1 and that ML was also working as a consultant for some companies in a private capacity (of which C was already aware).[71]Separately, C complained again that he had not been made aware of the position of CGM when it was recruited (i.e. ML’s role). When JM initially asked if C had applied for that role, C said, “I applied offering the position”. When the question was repeated, C again said, “I applied for it. I applied for growth in the company…” JM then speculated that probably at the time the position was created, management had probably considered C’s application. He qualified this, saying, “I cannot tell because I wasn’t part of it of the decision making but I understand that they did consider your candidature…” C then said, “Yeah, but I did not apply for that position in particular.”[72]JM went on to say, “…I’m not saying that you did specifically apply for that position. I’m saying you expressed to Mr Maran, I guess, your desire to grow within the company. As you well know, any position that is created within this company has to be approved by Mr Maran.”[73]C complained he felt it was inconsiderate that he hadn’t had the opportunity to present himself as a candidate for the CGM post and to get proper feedback if he was unsuccessful. JM agreed that some things could have been done better but ultimately pointed out that regardless of C’s suitability or otherwise for the CGM role or the recruitment process for that position, they were there to talk about the AGM position and way the company was making that position redundant. C then raised Kevin Maran’s interventions and him being pushed out of operational duties at some hotels. JM said that two different things were being raised. He said one was C’s opposition to his redundancy, and another was C feeling left out in his functions as an AGM. JM explained that because they were removing C’s AGM position, it was not possible to take steps to address C’s concerns about feeling left out of part of his responsibilities.[74]Later in the meeting, JM informed C that he could offer him Hotel General Manager positions in Cuba, Kenya or, in Scotland, of the Alexandra Hotel or Bendoran Hotel. JM acknowledged this would entail a change in contractual status and salary. C’s response was that he was looking for growth and didn’t see himself going back to doing a job like General Manager.[75]On 20 March 2024, JM emailed C confirming his refusal of C’s appeal against redundancy. Among other matters, JM confirmed an offer to C of the four Hotel General Manager positions. The gross salary offered for either of the Scottish positions was £33,000 per annum. JM asked C to respond by 22 March to confirm whether C wished to accept any of the positions. In his letter, JM repeated that C’s dismissal was not based on his performance and repeated at some length the reason for selecting C’s role for redundancy. He repeated the differences between C’ role and the CGM role.[76]On 21 March, C emailed JM to decline the alternative positions offered.[77]Around March 2024, ML was keen to reopen the Regent Hotel. To this end, he asked Ashish Gosain, an Area General Manager based in Portugal to come to Scotland on a temporary basis to help undertake the work required to get the Regent Hotel ready for opening. AG was not deployed on a permanent basis to Scotland and was not appointed to C’s old AGM post in Scotland or to either of the more junior Hotel General Manager posts which were vacant.[78]In March ’24, ML contacted a consultant named Christine Fox who provided services through a limited company. ML knew Ms Fox was experienced in the process for securing AA accreditation which he was keen to obtain for the Regent Hotel. ML also required someone to assist with the management of the Alexandra and Bendoran Hotels pending the appointment of individuals to the vacant Hotel General Manager roles. He engaged Ms Fox to fulfil these duties on a temporary consultancy basis. C Fox was not deployed on a permanent basis to Scotland and was not appointed to C’s old AGM post in Scotland or to either of the more junior Hotel General Manager posts which were vacant at the time. Her services were provided on an interim basis.[79]On 28 March 2024, C emailed ML. The subject heading was: “Cristine Fox’s involvement in Alexandra hotels operations.” So far as relevant, his email said: “I would really appreciate it if the above can be clarified to me as I have been asked to hand over to Cristine and she is already looking into the operations at the Alexandra hotel. During the handover yesterday she confirmed that she has been recruited to help with the reopening of Muthu Oban Hotel. ... I can now confidently confirm that she's acting as the Cluster Operations Manager position advertised on Michael's profile as a replacement for my position…”[80]ML replied the same day. He confirmed C Fox was acting as a consultant on a temporary basis and that as C had declined the General Manager position at the Alexandra, she was overseeing it pending the vacancy being filled. He also clarified that the Cluster Operations Manager role advertised on his profile was for a different business.[81]C was not paid any monies by way of a bonus for calendar year 2023 or 2034 on the termination of his employment or at all.[82]On the termination of his employment, C was paid in lieu of 7.3 days’ holiday (£1,403.84).[83]On 16 April 2024, C initiated Early Conciliation (EC) with ACAS. An EC Certificate was issued on 28 May 2024, and C presented a claim to the Tribunal on 26 June 2024. C’s reason for not initiating EC or presenting a claim at any earlier time was that he held a fear that he might lose his job if he did so. Observations on the evidence[84]Both C and ML struck us as credible and largely reliable witnesses though, as might be expected, given the passage of time since some of the events, both showed occasional lapses of recollection. C’s other witnesses gave evidence which often wandered away from the relevant events to their own views and dissatisfactions with R1. In this case, there is relatively little dispute about the primary facts. Instead – as is common with claims of this sort – the conflict between the parties lies in the inferences which are properly to be drawn from the primary facts regarding the influence and motivations with underpinned the decisions taken by R1.[85]One conflict related to the email produced by R1 from AM dated 11 February 2021. C challenged the validity of this email and appeared to suggest it may have been falsified by R1. We did not accept that was the case. We accepted that the email was retrieved and produced in the manner described by HA from R1’s systems. The only evidence which C put forward in support of his challenge to the authenticity of the email was that he did not recall receiving it and that some of the names among the recipients were of individuals who were not employed at that time. HA provided a logical and convincing explanation that the generic email addresses in the recipient list (for example, cgm@muthuhotelsmgm.com) defaulted to display the name of the existing or most recent post holder associated with that address at the time the email was retrieved and printed. That accounted, for example, for why Michael Lewis’s name appeared notwithstanding that he was not employed at the time in January ‘21. On cross checking with other emails in the bundle, we were able to see a similar phenomenon. On the balance of probabilities, we accepted that the email was authentic, and that C had simply forgotten having received, given the passage of some considerable time since receipt of the message.[86]Further observations on the evidence are made in the ‘Discussion and Decision’ section, when discussing the evidence for certain assertions put forward in the case and the secondary inferences to be drawn from the primary facts. Relevant Law Direct race discrimination
Relevant Law
[87]Section 13 of the EA is concerned with direct discrimination and provides as follows: “13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[88]Section 9 provides: “9 Race Race includes(a) colour(b) nationality;(c) ethnic or national origins.”[89]According to section 23 EA, “on a comparison for the purposes of section 13, … there must be no material difference between the circumstances relating to each case”. The relevant “circumstances” are those factors which the respondent has taken into account in deciding to treat the claimant as it did, with the exception of the element of race (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11). A person can be an appropriate comparator even if the situations compared are not precisely the same (Hewage v Grampian Health Board [2012] UKSC 37). The claimant does not need to point to an actual comparator at all and may rely only on a hypothetical comparison.[90]Very little direct discrimination today is overt, and it can be necessary to look for indicators from a time before or after a particular decision which may demonstrate that an ostensibly fair-minded decision was, or equally was not, affected by racial bias (Anya v University of Oxford [2001] IRLT 377, CA). Sometimes evidence is led of so-called ‘evidential comparators’. These are actual comparators but whose material circumstances in some way differ from those of the claimant. Their evidential value is variable and is inevitably weakened by differences in material circumstances from the claimant’s (Shamoon).[91]For a direct race discrimination complaint to succeed, it must be found that any less favourable treatment was because of the claimant’s race, though the discriminatory reason need not be the sole or even the principal reason for the respondent’s treatment. In JP Morgan Europe Ltd v Chweidan [2011] IRLR 673, CA, LJ Elias summarised the position as follows: “This means that a reason for the less favourable treatment – not necessarily the only reason but one which is significant in the sense of more than trivial - must be the claimant’s disability. …”[92]Section 39(2) of EA provides among other matters that an employer must not discriminate against an employee as to the terms on which employment is offered or the way in which he affords access to training or other benefits, or by dismissing him or subjecting him to ‘any other detriment’. There is, therefore, a requirement for an element of detriment in any discrimination claim (which does not concern terms of employment, access to benefits or dismissal). ‘Detriment’ is not defined in the legislation, save that it is said to exclude conduct amounting to harassment (s.212). A claimant seeking to establish a 'detriment' needs to show that a reasonable employee would or might take the view that they had been disadvantaged in the circumstances in which they had to work (Shamoon v Chief Constable of the Royal Ulster Constabulary (Northern Ireland) [2003] UKHL 11. The dicta of Peter Gibson LJ in Jiad v Byford [2003] IRLR 232), CA is that ‘detriment’ is to be given a wide meaning and it means no more than to put under a disadvantage. Although a trivial disadvantage would not suffice, it is not necessary to find some physical or economic consequence. Burden of Proof (EA claims)[93]Section 136 of EA deals with the burden of proof. It provides, so far as material, as follows: “136 Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision. … (6) A reference to the court includes a reference to— (a) an employment tribunal; …”[94]The effect of section 136 is that, if the claimant makes out a prima facie case of discrimination (or victimisation), it will be for the respondent to show a nondiscriminatory explanation.[95]There are two stages. Under Stage 1, the claimant must show facts from which the Tribunal could decide there was discrimination (victimisation). This means a ‘reasonable tribunal could properly conclude’ on the balance of probabilities that there was discrimination or harassment (Madarassy v Nomura International plc [2007] IRLR 246, CA). The Tribunal should take into account all facts and evidence available to it at Stage 1, not only those which the claimant has adduced or proved. If there are disputed facts, the burden of proof is on the claimant to prove those facts. The respondent’s explanation is to be left out of account in applying Stage 1. However, merely showing a protected characteristic plus less favourable treatment (or a protected act plus a detriment) is not generally sufficient to shift the burden and progress to Stage 2. Those bare facts only indicate a possibility of discrimination or victimisation. They are not, without more, sufficient material from which a tribunal could conclude that, on the balance of probabilities, the respondent had committed un unlawful act of prohibited conduct. ‘Something more’ is required (Madarassy).[96]Although, at Stage 1, a tribunal must exclude the substance of the employer’s explanation, it is not excluded from drawing inferences from the fact that there are inconsistencies in an employer’s explanation (Veolia Environmental Services UK v Gumbs EAT/0487/12/BA). If the claimant shows facts from which the Tribunal could decide a discriminatory or other prohibited act has occurred, then, under Stage 2, the respondent must prove on the balance of probabilities that the treatment was ‘in no sense whatsoever’ because of the protected characteristic or protected act (Igen v Wong [2005] IRLR 258).[97]There are cases where it is unnecessary to apply the burden of proof provisions. These provisions will require careful attention where there is room for doubt as to the facts necessary to prove discrimination or other prohibited conduct but they have nothing to offer where the Tribunal is in a position to make positive findings one way or the other (Hewage). Time Limits (discrimination claim)[98]Section 123 of the EA deals with time limits for bringing discrimination claims and provides: “s.123 Time limits (1) subject to section 140A and 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… (3) for the purposes of this section - (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.”[99]S.140B of the EA provides for an extension to the three-month time limit in certain circumstances. In effect, s140B(3) of ERA ‘stops the clock’ during the period in which the parties are undertaking early conciliation and extends the time limit by the number of days between ‘Day A’ and ‘Day B’ as defined in the legislation. This ‘stop the clock’ provision only has effect if the early conciliation process is commenced before the expiry of the statutory time limit. Where a limitation period has already expired before the conciliation commences, there is no extension (Pearce v Bank of America Merrill Lynch UKEAT/0067/19).[100]Where a complaint is submitted out of time, the burden of proof in showing that it is just and equitable to allow it to be received is on the claimant (Roberson v Bexley Community Centre [2003] IRLR 434). Parliament has chosen to give the Tribunal wide discretion in determining whether it is just and equitable to extend time, having regard to the language of the provisions (Adeji v University Hospitals Birmingham NHS Foundation [2021] EWCA Civ 23.)[101]In Miller and Ors v The Ministry of Justice [2016] UKEAT/003/15, the EAT cited five points relevant to the test for extending time in discrimination claims which were relevant to the appeal in that case, as follows:a. The discretion to extend time is a wide one: Robertson v Bexley Community Centre …b. Time limits are to be observed strictly in ETs. There is no presumption that time will be extended unless it cannot be justified; quite the reverse. The exercise of that discretion is the exception rather than the rule ...c. If an ET directs itself correctly in law, the EAT can only interfere if the decision is, in the technical sense, “perverse”, that is, if no reasonable ET properly directing itself in law could have reached it, or the ET failed to take into account relevant factors, or took into account irrelevant factors, or made a decision which was not based on the evidence…d. What factors are relevant to the exercise of the discretion, and how they should be balanced, are for the ET …e. The ET may find the checklist of factors in s 33 of the Limitation Act 1980 (“the 1980 Act”) helpful (British Coal Corporation v Keeble [1997] IRLR 336 …) … This is not a requirement, however, and an ET will only err in law if it omits something significant.[102]In the Keeble case, the EAT referred to the list of factors which appear in the Limitation Act 1980 s.33 which provides for the Courts’ discretion to exclude the time limit in England and Wales in actions in respect of personal injuries or death. The Court of Appeal (“CA”) has made clear that the Tribunal is not required to go through such a list. With that said, the CA has also observed that factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and the reasons for, the delay and(b) whether the delay has prejudiced the respondent (for example, by preventing or prohibiting it from investigating the claim while matters were fresh) (Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] IRLR 1050).[103]Time generally begins to run from the act of discrimination complained of. However, there is an exception to this where there is a ‘conduct extending over a period’ (s.123(3)(a). Here, the prohibited conduct shall be treated as done at the end of that period. The distinction between ‘conduct extending over a period’ and a ‘one-off’ decision to do something or not to do something is an important one. Where a series of acts or failures are alleged to amount discrimination, a finding that the later ‘timely’ acts were not prohibited conduct will mean that the earlier allegations cannot be considered to be part of ‘conduct extending over a period’ done at the end of the period (i.e. the date of the latest ‘timely’ allegation). In South Western Ambulance NHS Foundation Trust v King [2020] IRLR 168, EAT, the claimant alleged her grievance was a protected act and that the investigation of it, its dismissal and the rejection of her appeal were acts extending over a period. The first was found to be prohibited conduct but the later acts were not. As only the final act (dismissal of the appeal) occurred within the limitation period, the complaint of victimisation was out of time. Victimisation (section 27 of EA)[104]Section 27 of EA is concerned with victimisation and provides, so far as material, as follows: “27 Victimisation(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— … (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. …[105]The detriment must be 'because' of the protected act. The protected act must be 'the reason' for the treatment. The meaning of detriment is discussed at paragraph [92] above and the burden of proof in victimisation claims is discussed at paragraphs [93-97]. Automatic Unfair Dismissal under section 104 of ERA[106]Employees may claim a dismissal is automatically unfair if the reason or principal reason for the dismissal is that the employee alleged that the employer had infringed a right of his which is a relevant statutory right.[107]The relevant provisions are as follows: 104 Assertion of statutory right.(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee— (a) … or (b) alleged that the employer had infringed a right of his which is a relevant statutory right.(2) It is immaterial for the purposes of subsection (1)— (a) whether or not the employee has the right, or (b) whether or not the right has been infringed; but, for that subsection to apply, the claim to the right and that it has been infringed must be made in good faith.(3) It is sufficient for subsection (1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.(4) The following are relevant statutory rights for the purposes of this section— … (d) the rights conferred by the Working Time Regulations 1998…[108]The allegation must be that the employer has infringed the right (at the time the employee makes the allegation) and not that it risks doing so or has threatened to do so in future (Spaceman v ISS Mediclean Ltd [2018] UKEAT/0142/18).[109]Where the employee has more than two years’ service, the burden of proving the reason or principal reason for the dismissal sits with the employer (Smith v. the Chairman and other Councillors of Hayle Town Council [1978] IRLR 413). ‘Ordinary’ Unfair Dismissal[110]Section 94 of ERA provides that an employee has the right not to be unfairly dismissed. It is for the employer to show the reason or the principal reason (if more than one) for the dismissal (s98(1)(a) ERA). That the employee was redundant is one of the permissible reasons for a fair dismissal (s98(2)(c) ERA). Another is ‘some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held’ (SOSR) (s.98(1)(b)).[111]Section 139(1) defines a redundancy situation: 139 Redundancy (1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to— (a) the fact that his employer has ceased or intends to cease— (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or (b) the fact that the requirements of that business— (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.[112]For the purposes of sub paragraph (1)(b), the question of whether the requirements of a business for employees to carry out work of a particular kind have ceased or diminished in a reorganisation context will turn on the facts of the individual case. In Robinson v British Island Airways Ltd [1977] IRLR 477, the EAT said: 'In truth a reorganisation may or may not end in redundancy; it all depends on the nature and effect of the reorganisation.'[113]In Sutton v Revlon Overseas Corpn Ltd [1973] IRLR 173, NIRC, a chief accountant was dismissed and his work re-allocated amongst three former colleagues. The firm had no diminution in the amount of accounting work generally, but they no longer took the view that it was necessary to have a chief accountant post. The NIRC accepted this was a redundancy situation. The need for an employee to undertake the particular work of a chief accountant had ceased. The court approved the submission that: 'the requirements of a business for employees to carry out work of a particular kind can diminish in two different ways. The work itself may cease or diminish […] Alternatively, a re-organisation or mechanisation may enable the same work to be performed with fewer employees'.[114]It is a question of fact for the tribunal to determine what the 'work of a particular kind' carried out by the employee is and whether the employer’s requirement for that work had, or was expected to, cease or diminish at the material time. In Hall v Farrington Data Processing Ltd (1969) 4 ITR 230, Div Ct), for example, the work of a 'salesman with managerial functions' was found to be 'work of a particular kind' different from that of a pure salesman.[115]A dismissal arising from a business reorganisation might not meet the statutory test for a redundancy situation but might yet be a dismissal for SOSR. The courts have held that there is a need for a sound, good business reason for the reorganisation (Hollister v National Farmers' Union [1979] IRLR 238, Bowater Containers Ltd v McCormack [1980] IRLR 50, Genower v Ealing Hammersmith and Hounslow Area Health Authority [1980 [IRLR] 297). The Tribunal should be satisfied that there is some discernible advantage to the business (Kerry Foods Ltd v Lynch [2005] IRLR 680, EAT).[116]In general, it is not open to an employee to argue that their dismissal was unfair because their employer should not have reorganised its business in the way that it did or should not have decided to make employees redundant following that reorganisation (Moon v Homeworthy Furniture [1976] IRLR 298).[117]If satisfied of the reason for the dismissal, it is for the Tribunal then to determine (applying a neutral burden of proof) whether in all the circumstances, having regard to the size and the administrative resources of the employer, and in accordance with equity and the substantial merits of the case, the employer acted reasonably or unreasonably in treating the reason as a sufficient reason to dismiss the employee (s98(4) ERA). In applying s98(4) ERA, the Tribunal must not substitute its own view of the matter for that of the employer but must apply an objective test of whether dismissal was in the circumstances within the range of reasonable responses open to a reasonable employer.[118]In Polkey v AE Dayton Services Ltd 1988 ICR 142, the House of Lords held that: “in the case of redundancy, the employer will not normally have acted reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimize redundancy by redeployment within its own organisation.”[119]It will be a question of fact and degree for the Tribunal to consider whether consultation with the individual and/or his union was so inadequate as to render the dismissal unfair. A lack of consultation in any particular respect will not automatically lead to that result. The overall picture must be viewed by the Tribunal up to the date of termination to ascertain whether the employer has or has not acted reasonably in dismissing the employee on the grounds of redundancy (Mugford v Midland Bank [1997] IRLR 208).[120]In order to effect a fair dismissal in a redundancy situation, an employer must look for alternative work and satisfy itself that it is not available before dismissing for redundancy. The duty on the employer is to take reasonable steps; not to take every conceivable step to find the employee alternative employment (Quinton Hazel Ltd v Earl [1976] IRLR 296). Breach of contract[121]The Employment Tribunal has jurisdiction to consider claims for recovery of damages for breach of contract pursuant to the Employment Tribunal Extension of Jurisdiction (Scotland) Order 1994, SI 1994/1624. There are limits on the Tribunal’s jurisdiction. The claim must arise or be outstanding on termination of the employment and the damages available are capped at £25,000.[122]The Order includes the following articles, so far as relevant: Extension of jurisdiction 3. Proceedings may be brought before an employment tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if— … (b) the claim is not one to which article 5 applies; and (c) the claim arises or is outstanding on the termination of the employee’s employment. … 5. This article applies to a claim for breach of a contractual term of any of the following descriptions—(a) a term requiring the employer to provide living accommodation for the employee;(b) a term imposing an obligation on the employer or the employee in connection with the provision of living accommodation; … Unauthorised deductions from wages[123]Under the section 13 of ERA, a worker has the right not to suffer unauthorised deductions from his wages. 13 Right not to suffer unauthorised deductions. (1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction. … 124. ‘Wages’ are defined in section 27 which provides, so far as relevant: 27 Meaning of “wages” etc. (1) In this Part “wages”, in relation to a worker, means any sums payable to the worker in connection with his employment, including— (a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise, …[125]Under section 23 of ERA, a worker may complain to an employment tribunal that an employer has made a deduction from his wages in contravention of section 13. Where a tribunal finds such a complaint well founded, it shall make a declaration to that effect and order the employer to pay the amount of the deduction (section 24 ERA). Time limits in unauthorised deductions from wages complaints[126]The law relating to time limits in respect of unauthorised deductions from wages is set out in the Employment Rights Act 1996 (“ERA”), Section 23, which, so far as relevant, provides as follows: (2) Subject to subsection (4), an employment tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with—(a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or(b) …. (3) Where a complaint is brought under this section in respect of— (a) a series of deductions or payments, or (b) …, the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received. (3A) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2). (4) Where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable. (4A) An employment tribunal is not (despite subsections (3) and (4)) to consider so much of a complaint brought under this section as relates to a deduction where the date of payment of the wages from which the deduction was made was before the period of two years ending with the date of presentation of the complaint. Holiday pay and unauthorised deductions[127]It is possible to claim a payment in lieu of accrued untaken holiday as an unauthorised deduction from wages on the termination of the employment where there is an entitlement to such a payment. The entitlement may derive from a term of the employee’s contract of employment or may arise under the Working Time Regulations 1998 (WTR).[128]Under the WTR, workers are entitled to 5.6 weeks’ annual leave. The right is made up of:a. a basic entitlement a minimum of four weeks’ annual leave each year, implementing the right to annual leave under the parent Working Time Directive (referred to in this judgment as the ‘Basic Leave’; andb. an additional entitlement to 1.6 weeks’ annual leave each year, which is a right under UK domestic legislation only (‘Additional Leave’).[129]The difference in the provenance of the entitlements means that the two types of leave have been required to be treated differently in certain circumstances. Basic Leave and Additional Leave are governed by different Rules within the WTR (Rules 13 and 13A respectively). An important respect in which the rules differ in relation to each is in relation to the circumstances and extent to which untaken leave can carry forward into subsequent leave year(s).[130]Under the WTR, employees are entitled to accrued untaken holiday outstanding at the date of termination, subject to the provisions of the rules (reproduced below). There are restrictions on contracting out of the rights regarding annual leave under the WTR. Any agreement is void in so far as it purports to exclude or limit the operation of the respective legislation unless specified stringent conditions are satisfied (Reg 35).[131]Regulation 2 defines a ‘relevant agreement’ in relation to a worker, as ‘a workforce agreement which applies to him, any provision of a collective agreement which forms part of a contract between him and his employer, or any other agreement in writing which is legally enforceable as between the worker and his employer’.[132]Relevant excerpts of Regulations 13, 13A and 14 of the WTR are reproduced.[133]Reg 13 deals with Basic Leave: 13 Entitlement to annual leave 13 (A1) This regulation applies to—(a) a worker in respect of any leave years beginning before 1st April 2024, and(b) a worker to whom regulation 15B does not apply in respect of any leave years beginning on or after 1st April 2024. [Reg 15B doesn’t apply in the present case] (1) Subject to paragraph (5), a worker is entitled to four weeks' annual leave in each leave year. . . . (3) A worker’s leave year, for the purposes of this regulation, begins— (a) on such date during the calendar year as may be provided for in a relevant agreement; or … (9) Leave to which a worker is entitled under this regulation may be taken in instalments, but— (a) subject to the exceptions in paragraphs (14), (15) and (17) , it may only be taken in the leave year in respect of which it is due, and (b) it may not be replaced by a payment in lieu except where the worker’s employment is terminated. … (16) Paragraph (17) applies where, in any leave year, an employer fails to— (a) recognise a worker’s right to annual leave under this regulation or to payment for that leave in accordance with regulation 16; (b) give the worker a reasonable opportunity to take the leave to which the worker is entitled under this regulation or encourage them to do so; or(c) inform the worker that any leave not taken by the end of the leave year, which cannot be carried forward, will be lost. (17) Where this paragraph applies and subject to paragraph (18), the worker is entitled to carry forward any leave to which the worker is entitled under this regulation which is untaken in that leave year or has been taken but not paid in accordance with regulation 16. (18) Annual leave that has been carried forward pursuant to paragraph (17) cannot be carried forward beyond the end of the first full leave year in which paragraph (17) does not apply.[134]Regulation 13A deals with Additional Leave: 13A Entitlement to additional annual leave 13A.— (A1) This regulation applies to—(a) a worker in respect of any leave years beginning before 1st April 2024, and(b) a worker to whom regulation 15B does not apply in respect of any leave years beginning on or after 1st April 2024. (1) Subject to regulation 26A and paragraphs (3) and (5), a worker is entitled in each leave year to a period of additional leave determined in accordance with paragraph (2). [Reg 26A is not applicable in the present case] (2) The period of additional leave to which a worker is entitled under paragraph (1) is— … (e) in any leave year beginning on or after 1st April 2009, 1.6 weeks. (3) The aggregate entitlement provided for in paragraph (2) and regulation 13(1) is subject to a maximum of 28 days. (4) A worker’s leave year begins for the purposes of this regulation on the same date as the worker’s leave year begins for the purposes of regulation 13. (5) … (6) Leave to which a worker is entitled under this regulation may be taken in instalments, but it may not be replaced by a payment in lieu except where— (a) the worker’s employment is terminated; or … (7) A relevant agreement may provide for any leave to which a worker is entitled under this regulation to be carried forward into the leave year immediately following the leave year in respect of which it is due. (7A) Where, as a result of taking a period of statutory leave in any leave year, a worker is unable to take some or all of the annual leave to which the worker is entitled in that leave year under this regulation, the worker is entitled to carry forward such untaken leave into the following leave year.[135]Regulation 14 deals with annual leave-related compensation: 14.—(1) Paragraphs (1) to (4) of this regulation apply where— (a) a worker’s employment is terminated during the course of his leave year, and (b) on the date on which the termination takes effect (“the termination date"), the proportion he has taken of the leave to which he is entitled in the leave year under regulations 13(1) and 13A(1) differs from the proportion of the leave year which has expired.(2) Where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3).(3) The payment due under paragraph (2) shall be— (a) such sum as may be provided for for the purposes of this regulation in a relevant agreement, or (b) where there are no provisions of a relevant agreement which apply, a sum equal to the amount that would be due to the worker under regulation 16 in respect of a period of leave determined according to the formula— (A x B) -C where— A is the period of leave to which the worker is entitled under regulation 13 and regulation 13A; B is the proportion of the worker’s leave year which expired before the termination date, and C is the period of leave taken by the worker between the start of the leave year and the termination date. … (6) Where a worker’s employment is terminated and on the termination date the worker remains entitled to leave in respect of any previous leave year which carried forward under paragraph (14), (15) or (17) of regulation 13 or paragraph (7) or (7A) of regulation 13A, the employer shall make the worker a payment in lieu of leave equal to the sum due under regulation 16 for the period of untaken leave.[136]Emergency regulations were introduced on 26 March 2020 which relaxed the restriction on carrying over annual leave during the COVID-19 pandemic. However, these rules were repealed on 1 January 2024 subject to a transitional period whereby workers had until 31 March 2024 to use up any accrued holiday carried over under those rules (ER Regulations 2023, Regs 4 and 6). Submissions[137]Both the claimant and Ms Halsall gave oral submissions. The entire content of both submissions has been carefully considered and taken into account in making the decision in this judgment. Failure to mention any part of these submissions in the judgment does not reflect a lack of consideration. The submissions are addressed in the ‘Discussion and Decision’ section below, in which we set out where the submissions were accepted, where they are not, and the reasons for this. Discussion and Decision Direct race discrimination[138]We begin by considering those complaints of race discrimination which have been brought within the ‘normal’ three-month (plus EC tension) time limit in s.123(1)(a) of EA. These are(i) that R1 declined to pool C along with the role of Cluster General Manager;(ii) that R1 dismissed C; and(iii) and that R1 predetermined C’s appeal against his dismissal (‘the acts’).[139]It is not disputed by the respondents that C’s role was not pooled with the CGM post or that he was dismissed. It is not disputed that C was unsuccessful in his appeal though the respondents dispute that this was predetermined.[140]The reason given by ML in evidence for the dismissal was that C was selected for redundancy as part of a package of measures proposed in December 2023 to stabilise the financial future of the business in the face of revenue challenges and costs pressures. He said he did not pool C’s role with his own because the roles were different. We didn’t hear evidence from JM but the notes of the appeal meeting and appeal outcome letter set out the reasons he gave at the time for his decision.[141]We are in a position to make positive findings in this case about R1’s reasons for coming to the pooling decision it did, for dismissing C, and for declining to uphold C’s appeal. We accept, on the balance of probabilities, that ML dismissed because he required to make rapid costs savings to secure the business’s long-term sustainability and because he concluded that C’s role (uniquely in Scotland) could be removed from the structure without risking a significant negative impact on R1’s operations. We accept too, on the balance of probabilities, that JM declined to uphold C’s appeal for essentially the same reasons, and because he identified no process defects or acceptable alternatives to the dismissal.[142]We come to this conclusion, having considered all the evidence, and having accepted, on balance, ML’s account of the matter. We accepted, on the balance of probabilities, his evidence that it was he who devised the redundancy proposal (in line with his job remit when he was recruited) and that he discussed these with PB and later informed R2 of the plan. We accept ML’s evidence that R2 did not instruct him in relation to the proposals or otherwise intervene, apart from acknowledging the plan ML devised. As, discussed later below, there was no credible evidence that R2 involved himself.[143]C said there was no genuine redundancy and that the business case was unsupported with facts. We are not persuaded by this submission. We accepted ML’s compelling evidence that the reason was that it was genuinely considered by ML that C’s role could be removed from the operational structure and his duties could be devolved to less senior Hotel General Managers on lower pay without a negative impact on operations in the six affected hotels. We accept ML decided this against the backdrop of a widerreaching drive to reduce and save costs in circumstances of a bleak financial forecast and where some hotels in C’s portfolio were either closed or being earmarked for permanent closure. No material facts put forward by ML were challenged to any relevant extent by C in relation to R1’s financial predicament, including its debtor issues and the status of the hotels in C’s remit. There was an error with respect to the statement of C’s salary in one document which didn’t materially undermine the overall tenor of ML’s review and proposals. We found ML’s evidence of his thought process and motivations forceful and credible. We gave weight also to the consistent contemporaneous evidence in the form of ML’s handwritten notes, his typewritten notes and the typewritten business case which he prepared at the material time. We accepted ML’s account, on balance, and his denial that C’s race played any part in his decision-making either in the identification of C’s role for redundancy, or in the decision not to pool it with his own or any other post.[144]We further accept on the evidence before us that JM declined to uphold C’s appeal for the reasons JM set out in his appeal outcome letter of 20 March 2024 and conclude, on the balance of probabilities, that R2 did not instruct JM to come to determine C’s appeal against him. We find, on the balance of probabilities, that race played no part in the appeal decision and that this decision was made for the reasons JM gave C at the time.[145]Given our positive conclusions on R’s reasons for dismissing C, it is not necessary to apply the burden of proof provisions in this case (Hewage).[146]Nevertheless, we record that, based on all of the facts and circumstances of the case, we concluded that had it been necessary, C would not in any event have discharged the stage 1 hurdle to shift the burden to the Rs to prove a non-discriminatory reason for the decisions about which he complains. The evidence before us would not allow us to properly infer that either ML’s decision or JM’s decision was influenced by C’s race or Mauritian nationality.[147]In so finding, we took into account the totality of the evidence (leaving out of account R1’s explanation for the decisions) and considered whether any inference of race discrimination could be drawn from that totality, including, from the matters C relied upon in his submissions and evidence. In the paragraphs that follow, we discuss the matters relied upon by C in turn. However, we emphasise that, when reaching our decision on whether Stage 1 was surmounted, we considered holistically the cumulative effect of all these matters and all the primary facts (barring R1’s explanation). We recognise the danger of approaching the matter in a fragmented manner which carries the possibility of missing the ‘eloquence of the whole’.[148]As we understand his case, C argues that an inference of race discrimination can be drawn in relation to the acts from a number of matters to which he referred in his submission and when giving evidence. We summarise these as follows:a. A preference that senior management roles be filled by native born Indians: C said that, until ML, all occupants of the CGM role had been Indian ‘natives’ (which we understood to mean nationals of India born in India). He accepted that ML (CGM UK) was White British. As far as other senior manager were concerned, we heard that PB (Vice President Operations) was Tunisian, ML (CGM UK) was White British and that JM (Global HR Manager) was Portuguese or Spanish. C’s position was: “I’d say the majority were from India”.b. C said he was not consulted with by ML about the business or C’s background. We understand C complains that ML should not have devised the plans he did in December in the absence of having sat down with C to discuss C’s thoughts about the business in his portfolio of hotels.c. C was not provided with copies of ML’s notes and business case at the time in December 23 / Jan 24. C says he did not see these documents until R disclosed them during the Tribunal litigation process.d. C alleges all instructions regarding his selection, pooling dismissal and failed appeal emanated from R2. We understand R2 is of Indian ethnicity and we infer he may be an Indian national though no evidence was led on this. We understand C’s case is that R2 held a preference for Indian nationals in senior management. As to R2’s involvement, C relied on remarks by JM during the appeal which C says point to all decisions ‘coming from above’. The notes of the appeal meeting record JM saying, in effect, that R2 had to approve an position created in the company and the final approval of candidates sat with R2.e. Christine Fox and A Gosain: C said that, after the decision to terminate, there was evidence that these individuals were performing his role.[149]With respect to C’s suggestion of a preference at the top of the global group that senior management positions be filled by Indian employees born in India, we do not find the existence of such a preference to be established on the evidence. The extent of the evidence was C’s perception that this was the native background of the majority of senior managers, or the majority of CGM in the UK. It was clear from the evidence he gave that his perception had not been arrived at following any data collection or empirical analysis but was merely an impression. We were provided with no ethnic or nationality data for managerial employees of R1 (or of any other group companies). Such evidence as we heard with respect to managers above C with whom he had interactions indicated a diversity of races and native backgrounds. A preponderance of native Indian born individuals in senior manager posts has not been established, much less an inference that such a demographic trend is by design. The alleged detriments which have been complained about timeously relate to decisions regarding the dismissal of C, not a failure to promote him to higher management. C’s unhappiness seems to derive from the decision to appoint ML, not C, to the senior role of CGM UK. ML is white British. On the evidence before us, there is no inference available that R1 was influenced in its recruitment decisions in favour of hiring Indian nationals, much less that an Indian national in the same circumstances as C would have been treated any differently with respect to redundancy selection.[150]It is undisputed that ML did not sit down with C to discuss the business of the hotels in C’s remit before coming up with his strategic plan. We accept that the financial circumstances were such that there was an imperative to take immediate action to stabilise the business. There was a limited period of time between ML starting employment on 13 December and C going off on annual leave on 8 January 2024, when account is taken of the festive period. The cost saving measures in scope for R1’s consideration were, in many cases, company-wide practices with regard to procurement, suppliers and energy usage. C’s portfolio was a relatively limited part of the overall picture. In all the circumstances which prevailed at the time, we are not satisfied that any nefarious motive can be inferred from ML’s failure to meet with C before identifying his package of emergency proposals, much less that C’s nationality featured as a factor.[151]C was not provided with the handwritten notes of the Christmas Eve meeting between ML and PB, or ML’s ‘Financial Discussion’ document or the Redundancy Business Case document. These were strategic level documents between ML and PB (the Vice President). C was given information during the first redundancy meeting on 31 January and in the follow up letter of 1 February about the reasons for the potential redundancy situation. It was explained this was due to R1’s financial and business needs and there was discussion specifically about the absence of any plans on R1’s part to reopen the Royal and Dalmally Hotels which fell within C’s remit. At each of the redundancy meetings, C was given the opportunity to put forward ideas for avoiding the redundancy. We are not satisfied we can draw any adverse inference from ML’s omission to share these particular documents with C at the time or at all. There was no suggestion that the documents were bogus and we were satisfied on the balance of probabilities that they were authentic and were prepared between Christmas and New Year ‘23. Nor in all the circumstances did the omission to share them suggest an intention to conceal salient information from C. C was given such information which related to his particular situation, albeit in a different format, on return from his holiday.[152]The only evidence adduced by C to support the contention that all decisions regarding his selection for redundancy and dismissal / appeal were instructed by R2 was a passage in the notes of his appeal meeting with JM. C had raised the issue of the CGM role to which ML was appointed. It was a peculiar exchange in which C was initially less than straightforward with JM when asked whether he had applied for the CGM role. JM asked him twice and C gave equivocal answers. In response, JM then speculated that probably PB did consider C’s candidature though he acknowledged he couldn’t tell because he wasn’t part of the decision making. JM went on to say that any position created in the company had to be approved by R2 and that the candidates presented for a post also had to be approved by R2.[153]An acknowledgement that R2, as the chairman of R1, has final approval of any new post created in the company is not the same as an acknowledgement that R2 instructs all recruitment decisions, or – more pertinently for C’s case - that R2 instructs all decisions to delete posts within the structure. There was no other evidence from which we could infer R2 was active in the redundancy related decisions about which C complains. C himself, during cross examination, C said: “I’m not sure if ML spoke to Mr Maran who worked with me before to come to a conclusion about making me redundant.” His allegation that R2 instructed the redundancy selection appears to be little more than a hunch in which C himself displayed little confidence. There is no evidential basis on which to infer that R2 was ‘pulling the strings’ to bring about C’s exit, much less that he was influenced by C’s race or nationality in doing so.[154]C also relies on R1’s decision to bring in C Fox and A Gosain in around March 2024 to carry out duties and responsibilities of C. We understand the argument to be that this gives scope for an adverse inference to be drawn that C’s selection for redundancy was unnecessary or perhaps even that he was targeted for nefarious reasons. We have found as a matter of fact that neither individual was recruited or appointed to C’s post. Both were brought in to provide temporary support in February / March 2024. It is not disputed by C that R1 had permanent vacancies pending for Hotel General Managers in the Alexandra and Bendoran Hotels at the material time, which he had declined. We do not find any support in events involving CF and AG for an inference that C’s AGM post was still needed under the new proposed structure or that it was targeted for deletion because of C’s race. As it happens, no evidence was led about the racial backgrounds of Ms Fox or Mr Gosain. In any case, neither of these individuals was in materially the same circumstances as C. The differences are substantial, rendering any comparison extremely weak. Their temporary work for R1 does not sustain an inference that C’s race played a part in the decision to delete his post or refuse his appeal.[155]When it came to the decision not to pool C’s position together with ML’s CGM role, we noted that the roles were quite separate and carried different remits. No evidence was led from which we could properly infer that ML was influenced by C’s race in taking this approach. Objectively, it was plain that the roles were distinct. The CGM role was more senior and strategic and carried a remit for the whole UK portfolio while C’s remit was limited to the 6 Scottish hotels. There was nothing curious or eyebrow raising about the decision that they should not be pooled together such as would permit an inference that C’s race was a factor at play.[156]Thus, reviewing the evidence holistically (with the exception of R’s explanations for the acts under consideration), we find that C would not have surmounted the Stage 1 hurdle. It is, therefore, strictly unnecessary to proceed to Stage 2. However, as explained above, we are in any event satisfied, on the balance of probabilities, based on the evidence, that R1 did not subject C to the following ‘treatment’ because of his race:(i) declining to pool C along with the role of CGM;(ii) dismissing C; and(iii) and predetermining C’s appeal. We are also satisfied on the evidence that R2 did not instruct R1 in relation to any of these acts. Time limits in relation to the potentially time barred direct race discrimination allegations[157]None of the ‘in time’ allegations (i.e. those said to occur on or after 17 January 2024 which comply with the s.123(1)(a) limit) have been established to be acts of race discrimination. Likewise, for the reasons set out at paragraphs [169-179] below, the ‘in time’ allegations of victimisation do not succeed. It follows that the earlier acts and omissions which C complains of as race discrimination cannot be ‘knitted together’ with later allegations of prohibited conduct to form a course of prohibited conduct extending over a period (since the later allegations have not been found unlawful) (South Western Ambulance NHS Foundation Trust v King).[158]The Tribunal must therefore decide whether the earlier direct race discrimination allegations were brought within a period which we think is just and equitable. The complaints are:a. that from November 2022, R1 excluded C from operational management decisions at certain hotels and devolved certain of C’s duties to others. These matters are claimed to have occurred in a call between C and FS on 11 November 2022. The ‘normal’ time limit expired on 10 February 2023 in relation to the matters. The claim was presented on 26 June 2024, approximately 16 months later.b. that in August 2023, PB instructed C’s team to contact PB directly if there was any ‘monkey business’ with reference to C’s conduct. C sent an email complaining about this on 21 August 2023 so the alleged conduct had occurred before then. The ‘normal’ time limit expired on 20 November 2023 at the latest, and the claim was not presented until approximately 7 months later.c. that C was not offered any opportunity to apply for the CGM role. ML was appointed following his second interview in October 2023. On a generous construction for limitation purposes, the latest point at which R1 could be claimed not to have alerted C to the opportunity was therefore in October 2023. The ‘normal’ time limit, therefore, expired at the end of January 2024 at the latest, with the claim being presented around 5 months later.[159]The reason C put forward in evidence for his omission to bring complaints in relation to any of these matters within the ‘normal’ three-month time limit was fear of losing his job. We accepted that C believed that, during the furlough period, employees who were refusing to work were made redundant. C did not lead any detailed evidence about particular individuals who lost their jobs or the particular circumstances. We accept that C, like many claimants or ‘would-be claimants’ in a continuing employment relationship, held concerns about his job security if he raised Tribunal complaints about his employer. However, it is not established on the evidence before us that C had objectively sound grounds for the belief that he would be at risk of being dismissed if he did so. With respect to November 2022, we note that C did feel empowered to raise some concerns about the removal of hotels from his remit in an email to R2. C did not achieve any resolution to his complaints by doing so but nor was his job put under threat following his raising the matter. Likewise, in August 2023, C felt able to raise with R2 concerns about PB’s conduct. Again, he did not receive the substantive response he no doubt hoped for but nor did he suffer any reprisals.[160]We considered all relevant factors to determine whether it would be just and equitable to extend time for presenting all complaints to 26 June 2024. (As C had not stopped the clock by initiating EC before the normal time limits expired for these complaints, the subsequent EC, begun in April 2024, did not operate to extend time in relation to these complaints (Pearce)).[161]Factors which weighed in favour of extending time to that date included:a. that the disadvantage to C if the extension is refused is substantial in that C will be deprived of the opportunity to litigate the ‘late’ complaints and to have these judicially determined;b. that C held a genuine fear that his job security would be jeopardised if he made complaints to the Employment Tribunal about his employer;[162]However, the following factors ultimately weighed more heavily in our deliberations:a. that the disadvantage to R of permitting the extension is also significant in that an extension means the complaints relating to acts or omissions before 17 January 2024 will be judicially determined;b. that time limits are designed to ensure compliance with the principle of legal certainty and departures from these time limits should be the exception;c. we noted that the period of delay was variable in relation to different complaints but in relation to the earliest complaints, it was quite substantial, exceeding a year;d. that although we accept C had a genuinely held fear that his job could be at risk if he made Tribunal complaints, there was not compelling evidence before us to on which to base a finding that C had objective grounds for such a fear. It is also the case that section 27 of the EA offers special protections to employees in the event of reprisals for raising claims;e. that C did not act promptly to lodge a claim even after he was informed that his role was at risk of redundancy at the end of January 2024 at which stage he knew his job situation was not, in any event, secure whether or not he raised a Tribunal claim;f. that the delay carried real implications in relation to the availability of witnesses, documents and the cogency of the evidence. PB, for example, made himself available to give evidence though he had ceased to be employed by R’s group over a year before the hearing. However, his recollection of events was weak. No doubt to some degree or other, the delay has also affected the recall of other witnesses as memories are apt to fade and sometimes distort with the passage of time.[163]Balancing all relevant factors, we conclude that, in the circumstances of this case, it would not be just and equitable to extend the time for receiving of the claimant’s complaints relating to acts before 17 January 2024 to 24 June 2024. These direct race discrimination complaints are accordingly time barred and, since, the Tribunal lacks jurisdiction to decide them, they are dismissed. Automatically unfair dismissal (assertion of a statutory right)[164]We must first decide whether C alleged that R1 had infringed a right of his. C relies on his email of 30 December 2023 and says his assertion concerned the right to take annual leave under the WTR (para 30(a) of the Particulars of Claim). So far as relevant, his email says as follows: “My first years of work I was only able to take maximum of three weeks off again due to business requirements. It so happens that the Philippines staff and expats are getting extra hours off. I also have 28 pending annual leave from COVID. That I have not been able to avail due to business requirements.”[165]We recognise that it is not necessary for C to specify the right as long as he has made it sufficiently clear to R1 in his email what the right claimed to have been infringed was.[166]C does not specify a right or refer to the WTR or specify more broadly that he has been able to take less holiday than that to which he believed himself entitled. He does not assert that any right of his has been breached as a result of his asserted inability to take days that remain pending from the Covid period. As we understand the legislation, for the purposes of this complaint, we require to assess not whether the facts asserted (if true) would or might infringe a right under the WTR, but whether C has alleged in his email that R1 infringed a right (of some sort). Though C doesn’t have to have specified the specific right, it is necessary, we believe that there he has made some allegation that R1 has in a broad sense acted contrary to law or in a way that has not complied with a right of C’s. We acknowledge it may not be necessary for the allegation to use the language of ‘statutes’ or ‘legislation’ or even of ‘laws’ or ‘rights’. However, we conclude that something in the wording should point up a breach or infringement. It might be enough, for example, to say something like, “I haven’t been able to take the holidays I should have been”.[167]We are not satisfied that the words used by C in his email carry implication that he is going beyond expressing disgruntlement about the amount of holidays he has taken to assert that R1 has infringed some right of his in this regard. On that basis, we find that the requirements of section 104(1) are not met in this case and C’s complaint of automatically unfair dismissal is not, therefore, well founded and is dismissed.[168]If we are wrong in that, however, we record that we would have found in any event that the reason or principal reason R1 dismissed C was because of the cost saving and restructuring imperatives identified by ML in his evidence and not because of the content of his email of 30 December 23. We adopt the reasoning set out in paragraphs [140-144] in relation to this conclusion. Victimisation[169]We begin by considering whether C did a protected act or acts within the meaning of section 27 of EA.[170]He asserts two protected acts. The first is his email of 21 August 2023 to R2. He relies upon the allegation in that email that PB had notified C’s team to contact PB directly if there was any ‘monkey business’, referring to C’s conduct. C’s words were: “I cannot have Mr Philippe insinuate untrue and unnecessary negativity by telling … all the …staff to call him directly if there was any “abuse” and “monkey business” (his words) towards them. My team … were taken aback … as they have always been treated very responsibly and fairly from my side.”[171]Subsections (a) and (b) of section 27(2) have no relevance in the present case. We consider whether C was making an allegation (whether or not express) that PB had contravened the EA by discriminating against him or harassing him (or otherwise). We understand C’s case to be that such an allegation might be inferred from the statement that PB had used the phrase “monkey business”.[172]The context is that PB is a Tunisian National of North African descent while C is a Mauritian National of Indian descent. PB’s role as Vice President (operations) required him to oversee the operations of UK hotels. As framed, C’s email suggested(1) that C was unhappy that PB spoke to his staff directly outside of his presence about him, and(2) that, C was unhappy that, by inviting contact from them if they had concerns about C’s behaviour, PB insinuated that C might treat his staff in an unfair or irresponsible way, which insinuation C felt was wholly unfair. There is no doubt the email complains about those matters. We accept C believed the allegation about PB’s intervention to be true that he made it in good faith as he felt aggrieved by the report about the matter he had heard from his staff.[173]We are not convinced, however, that the email made an implied allegation that PB had contravened the EA. It certainly did not make an express allegation to that effect. There was nothing in the email to indicate that C was asserting a racial element either to PB’s decision to approach the staff directly or in his choice of language. ‘Monkey business’ is an idiomatic phrase. While there may be contexts and circumstances where that phrase is used with a racial connotation or as a racial slur, we are not persuaded it inevitably and inherently holds such a connotation in every usage. There was nothing in the context provided in the email, or the wider context of C’s communication, that suggested that C was making an allegation that PB intended a racial element in his language choice or indeed that C himself had inferred such a racial dimension. We find that the email does not fall within s.27(2)(d).[174]Section 27(2)(c) (doing any other thing for the purposes or in connection with the EA) is a widely framed category. However, we do not accept that the contents of C’s email of 21 August is caught by this category. The email makes no allusion to prohibited treatment related to race or any other protected characteristic prescribed by the Act. We do not find that a connection with the EA is inferable from the email contents viewed in context or that C’s intent at the time he sent the email was with the EA in mind. Ther was no evidence to that effect. We find that the email does not fall within s.27(2)(c) either. Therefore, the sending of the email of 21 August 2023 did not amount to a protected act.[175]The other protected act C asserts is the sending of his email of 30 December 2023. That email was sent to HA, ML and PB. In it, C asserts that he has been working 60 hours a week and that in in his first years of work he had taken only 3 weeks’ holiday due to business requirements. The email carries on: “It so happens that the Philippines staff and expats are getting any extra hours off”.[176]We considered whether, for the purposes of s.27(2)(d), C was making an allegation (whether or not express) that R1 was contravening the EA by treating certain employees less favourably because of their race. We concluded that no such allegation could be implied from the words of the email nor when it was viewed within the surrounding context in which it was written. When C referred to “expats”, in the email, we understand based on the context, that he does not mean Britons living abroad as the term is commonly used in the UK. From the context it is tolerably clear that C is referring to foreign (non-British) nationals who have come from overseas to work in R1’s Scottish hotels. The allegation in his email therefore is that Filipino and other foreign nationals are getting extra hours worked as holidays often known as ‘time off in lieu’ or TOIL.[177]Relevant context is that, C as a senior manager, had a contract which, commensurate with his seniority, conferred no entitlement to TOIL. In his managerial capacity, he was aware of varying other contractual arrangements in place for groups of staff. We are not satisfied that his email connotes an implied allegation that less favourable treatment was being meted out because of race. It made no express allegation to such effect. The allegation in the email is a bald statement that certain groups of staff identified by reference to nationality (Filipino employees and other foreign nationals) are getting substantial time off in lieu from working extra hours. The implication, if any, is that C is disgruntled because he, on the other hand, has not felt able to take holiday. However, when viewed in the context of his role, his seniority and contractual arrangements and his knowledge of the different contractual entitlements in place for others, it is not implied that he is asserting the difference in treatment is because of race or ‘expat’ status as opposed to because of their particular contractual arrangements with R1. C himself was an expat. We find that the email does not fall within s.27(2)(d).[178]Nor are we persuaded that this email falls within the category described in section 27(2)(c) of EA. There was no evidence to sustain a finding that C had an intent at the time of writing the email that it was for some purpose related to the EA or that it was sent ‘in connection’ with the EA. Therefore the sending of the email of 30 December 2023 did not amount to a protected act.[179]C’s complaint of victimisation under section 27 of EA is not, therefore, well founded and does not succeed. Even if we are wrong in our conclusion that neither of the emails was a protected act, we record that we would, in any event, have found that R1 did not select C for redundancy or dismiss him or reject his appeal because C sent the emails of 21 August and 30 December 2023. We adopt our findings regarding the reasons for ML’s and JM’s decisions in these respects as set out in paragraphs [140 – 144]. ML selected C for redundancy before C sent the email of 30 December 2023 and with no prior knowledge of the email of 21 August 2023 which pre-dated his arrival at the organisation. We would have been in a position to make positive conclusions and would not have required to resort to the burden of proof provisions. Ordinary unfair dismissal[180]We turn now to C’s ‘ordinary’ unfair dismissal complaint. R1 admits it dismissed C. We have already made our findings about the reason for the dismissal. These are set out at paragraphs [140-144]. C has alleged that R1 decided to dismiss him for other nefarious reasons, namely his race and / or that he alleged a contravention of a statutory right and / or that he had done a protected act. As set out above, we have not found it to be established that such nefarious factors featured in ML’s reasons for dismissing C.[181]We considered whether the established reason for the dismissal falls within the definition of redundancy in section 139 of ERA.[182]We conclude that the test in subsection 39(1)(b)(i) is satisfied on the facts of this case. The requirements of R1’s business to carry out work of the kind carried out by C - that is the work of an Area General Manager - had ceased or diminished or was expected to do so. We acknowledge that, postrestructuring, R1 still had some requirement for some of the work C had carried out but its requirements for employees to carry out work of a particular kind (i.e. the kind previously performed by the AGM) were ceasing / diminishing. A decision had been taken not to reopen two of the hotels which diminished R1’s requirements for employees to carry out work of the particular kind C had carried out had reduced. Irrespective of those long-term closures, the restructuring and redistribution of such of C’s duties as remained meant that R1s requirements for employees to carry out the work of the particular kind formerly carried out by C as AGM was ceasing. Under the restructuring, some of the former AGM duties would be ‘farmed down’ to more junior individual Hotel Managers while others would be ‘farmed up’ to the CGM. Notwithstanding the absorption of the extant AGM duties by these tiers of manager, neither tier would, after the restructure, be carrying out work of the particular kind previously carried out by the AGM. In each case, there would be some degree of overlap with that work, but the work of a Hotel Manager or of the CGM would not be of the same ‘particular kind’ as C’s had been. The particular kind of work required of a Hotel Manager would have a narrower, more operational focus than the AGM’s work, limited to a single hotel. The particular kind of work of the CGM would include a broader UK-wide remit and a greater strategic emphasis than the work formerly done by the AGM. The requirements of R1’s business for employees to carry out the work of the particular kind previously carried out by an AGM had, therefore, ceased under the restructure which stripped out this management tier .[183]If we are wrong to hold that that R1’s reason for dismissing meets the technical requirements of section 139 of ERA, we would, have found that the reason found amounted to ‘some other substantial reason of a kind to justify the dismissal’. There was compelling evidence from ML that there was a sound, good business reason and discernible business benefits in terms of costs savings in a challenging financial period and a simplified, flatter structure.[184]Having so found, we go on to consider whether R1 acted reasonably in all the circumstances in treating its reason as a sufficient reason to dismiss C for the purposes of section 98(4).[185]R1 provided C with warning of the proposal and consulted C at meetings held on 31 January, 15 February and 1 March 2024. During each of these meetings, ML was clear about the proposal and the reasons for it and C was given the opportunity to put forward any comments or representations he might have, including with respect to how his redundancy might be avoided.[186]We were satisfied that the decision-making was reasonable with respect to the omission to pool C along with other individuals. Nobody else held the same or an equivalent post to C’s AGM role in Scotland. C suggested that the more senior CGM UK role should have been pooled alongside C’s. We don’t accept R1 acted unreasonably or unfairly in declining to do so. We have found that the CGM role was distinct and not comparable as discussed above in paragraph [155].[187]We consider next to whether R1 took reasonable steps to find C suitable alternative employment. We note that no specific alternative employment vacancies were outlined to C before he was served with notice of his redundancy at the meeting on 1 March 2024. However, it is the case that ML did, at the meeting on 15 February 2024 tell C that there would be other positions that would be made available and that these would be operations managers, hotel managers ‘and so on’. When HA raised the question of alternative vacancies at the end of the meeting, C effectively closed down that topic as his main focus was on his concerns about R1’s decision to appoint ML to the CGM position without having invited C to apply for that role at a time when the company faced financial pressure.[188]ML and HA did not provide details of the subordinate positions available within the company at the meeting on 1 March 2024 when the dismissal was confirmed and notice was served. We accept that there was genuinely an impression on the part of ML and HA that C was not interested in lower grade roles (which as it turned out was correct). We also note that the invite to the final meeting on 1 March specifically set out that the process was an opportunity for C to explore suitable alternative employment and other internal vacancies and that C did not make any enquiry on that front during the meeting.[189]Nevertheless, we found R1’s omission to set out the specific details of the internal vacancies to C at that stage troubling. Despite C’s apparent lack of interest in vacancies of lower status and salary, we identified the lack of information about these as weakening R1’s process. C’s livelihood was at stake and whatever signals he may have given out at earlier stages that he was indisposed to considering less senior roles, he could not reasonably be expected to crystallise his views on the matter without the benefit of the specific details of the available vacancies. We may have found that R1’s omission nudged the dismissal outside the range of reasonable responses if that had been the end of the story. However, a full appeal process was initiated and concluded prior to the dismissal taking effect, during which the omission was comprehensively rectified. Full details were provided to C of four vacancies both at the meeting on 15 March and in the letter of 20 March ’24. C was given the opportunity to consider these prior to the dismissal taking effect.[190]The weakness in the earlier process was ‘cured’ by the action taken by R1 during the prompt appeal procedure and C experienced no prejudice as a result of it. We considered the process holistically and, taking the whole circumstances into account including the pre-dismissal appeal, we were satisfied that the earlier ‘slip’ did not render the process unfair on the particular facts of this case.[191]C made some separate complaints about the appeal process. His pleaded case is that the outcome was pre-determined. He also said in submissions that JM relied on HR documents and did not investigate his concerns.[192]With respect to the allegation that the appeal outcome was pre-determined, we did not find this allegation to be established on the evidence. The only evidence on which we understood C relied for this proposition was:a. JM’s statement at the appeal meeting that any position created in the company had to be approved by R2; andb. JM’s remarks during the appeal meeting to the effect that by stepping back from the decision to make C redundant, they may cause C ‘a workplace harassment’.[193]With respect to point (i), we have found that it is not established on the evidence that R2 involved himself in the decision-making, much less that he intervened to instruct JM to determine the appeal against C.[194]With respect to point (ii), we accept that JM’s remarks about the scope for a reversal of the decision being potentially viewed as harassment were indeed curious. However, there is relevant context which cannot be ignored. C had set out his appeal grounds in writing and JM had reviewed and considered these in advance of the meeting. JM made the comments about ‘harassment’ following an explanation by him of the rationale for the redundancy (i.e. that it better suited the objectives of R1 to have hotel managers instead of an AGM because otherwise there was a duplication of management levels). JM had also asserted his view that having regard to the circumstances he had set out, they were complying with labour law requirements, and he believed they had followed principles of fairness in informing C of the situation and trying to get his feedback. It was following this defence of the process in answer to C’s appeal grounds that JM made the comment. He acknowledged the emotional stress it had entailed for C that he went on to comment that to the effect that if the company changed its position, it might be regarded as harassment. This was expressed clumsily and had the scope to confuse, though we note that JM was conducting the meeting in English as a non-native speaker. On reading the notes in the round, however, we are satisfied that his words are not indicative of a predetermined mindset, or of an unwillingness to engage properly with the appeal or C’s points. JM responded to these insofar as they related to the redundancy decision albeit that C was dissatisfied because he wished to focus on certain historical grievances which JM did not accept bore upon the redundancy decision.[195]Taking everything into account, including the reasons for the dismissal and the process followed, we conclude that dismissal was within the range of reasonable responses open to R1 in all of the circumstances of the case. Accordingly, the complaint of ‘ordinary’ unfair dismissal does not succeed and is dismissed. Monetary claims (breach of contract / unauthorised deductions from wages)[196]Rent monies: The Tribunal lacks jurisdiction to decide C’s complaint of breach of contract in respect of the allegation that R1 failed to pay C a monthly contribution of £750 to C’s rent for his personal living accommodation in the period from April 2020 to May 2021. A complaint concerning an alleged breach of a term imposing an obligation on an employer in connection with the provision of living accommodation is excluded from the jurisdiction of this Tribunal by Articles 3(b) and 5(b) of the 1994 Order. C’s breach of contract complaint is concerned with precisely such a term.[197]The Tribunal also lacks jurisdiction to decide C’s complaint of unauthorised deductions from wages in respect of the allegation that R1 failed to pay C a monthly rent contribution during the furlough period. C presented his claim on 26 June 2024. Pursuant to section 23(4A) of ERA, this Tribunal lacks jurisdiction to consider so much of an unauthorised deductions complaint as relates to deductions where the date of payment of the wages from which the deductions were made was before the period of two years ending with the date of presentation of the complaint. The alleged deductions are said to have been made over a period ending in May 2021. This date falls well over wo years before the 26 June 2024 when C presented his claim. Both the unauthorised deductions and the breach of contract complaints relating to rent monies are, therefore, dismissed.[198]Bonus: C claims he was entitled to a bonus of £10,000 for calendar year 2023 and of a quarter of that sum for the first quarter of calendar year 2024. He said it was a term of his contract of his employment that he had such an entitlement which he said formed part of his remuneration package. He relied on a conversation he had with R2 around May 2021 and a follow up email he sent on 11 May 2021 which said “I would like to confirm that we have agreed for my basic salary to be increased to £50,000 per annum plus my rent of £750 per month and a bonus scheme of up to £10,000 (to be devised).”[199]R1 disputes there was any contractual entitlement to bonus. C accepts that there was no further discussion following his email of 11 May 2021 about the conditions under which bonus would be payable or how the amount would be calculated. He accepts there was no discussion about when it would be paid for the bonus year. At one stage he suggested it would be due to be paid around November in the calendar year to which the bonus was referable. At another, he said it might be due in the January of the following year. As we understood it, C relies upon his receipt of £10,000 in November 2021 and of 8,000 euros from a different company at some point in 2022 as evidence to support the existence of a contractual right to bonus payments.[200]It is, of course, possible for parties to agree binding oral terms of a contract as well as written ones. It is a matter of evidence whether the existence of the term is sufficiently proved (on the balance of probabilities). On the evidence before us, it is not established that such an agreement was made between C and R2 (acting on behalf of R1) in around May 2021 or at all. We didn’t her evidence about the conversation from R2 but C’s own evidence was not to the effect that an absolute and unconditional obligation to pay a £10,000 annual entitlement was agreed Mr Maran. His email of 11 May 2021 shows C did not believe, at the time, that such an unconditional obligation had been undertaken. The email made clear that £10,000 was a maximum figure, which inevitably entails the scope that a lesser sum, or potentially no sum, may be payable in a given year. C’s email also records that it was intended that the parties would devise further terms of a bonus scheme and it is undisputed that this never took place.[201]In the absence of such discussions, the May 2021 conversation did not create a binding contractual obligation on R1 at the time to pay annual bonus at a particular level. Nor did a contractual entitlement subsequently crystallise by implication over time through the actings of the parties. We reject the suggestion, if such is made, that the fact of payment of the sum of £10,000 in calendar year 2021 establishes or tends to establish an implied entitlement to the same sum (or to any sum) in subsequent years. That payment is explicable as no more and no less than an example of payment of a discretionary bonus at the maximum level in a particular bonus year. Its lack of repetition in subsequent years also supports that analysis of the nature of the agreement with respect to bonus. In summary, there is no evidence for an express term, oral or written, which entitled C to a £10,000 bonus in each calendar year or indeed to a bonus of any particular level. There is no basis either on which such a term can be implied on the facts. The implication of such a term is not a business necessity to explain the parties’ actings.[202]As it is not established that C had any contractual or other legal entitlement to a bonus payment referable to 2023 or to the first quarter of 2024, it follows that neither his breach of contract complaint nor his unauthorised deductions complaint in respect of the non-payment of bonus succeeds. They are both[203]Holiday Pay: C’s claim is that he carried forward 28 days’ annual leave from Leave Year 2020 into the subsequent Leave Years and eventually into Leave Year 2024. He alleges that he was permitted to take 5 days of that entitlement in 2025 with R2’s approval, but that 23 days of that carried forward leave remained outstanding and untaken when his employment terminated on 4 April 2024. He alleges he had a legal entitlement at that time to be paid in lieu of the 23 days he asserts were outstanding.[204]In Leave Year 2024, C accrued 7.3 days’ annual leave during the period of just over three months that he remained in his employment. He was paid in lieu of those 7.3 days following the termination of his employment. He also took 15 days’ annual leave in January 2024. Therefore, if – as he would have it – 28 days had been carried forward into Leave Year 2024, then only 8 of those days would be outstanding and untaken on 4 April 2024. The maximum value of his holiday pay complaint is therefore 8 days and not 23 days as asserted.[205]We consider whether(i) C had a contractual entitlement to carry forward the relevant days from Leave Year 2020 and to be paid in lieu of any untaken days on termination in 2024; or, if not(ii) whether C had an entitlement pursuant to the WTR to carry forward the relevant days from Leave Year 2020 and to be paid in lieu of any which remained outstanding on termination.[206]C’s contract stated: “You must use all of your holiday entitlements by the last day of each holiday year and unless there are exceptional circumstances or unless approved in writing in advance by your line manager you may not carry your holiday entitlement forward into the next holiday year. Holiday entitlement not used by the correct date will usually be lost and under no circumstances will payment in lieu be made for holiday entitlement that is lost through and not exercised by the correct date.”[207]C did not take any annual holiday in Leave Year 2020. Carry forward into ‘21 was permitted by AM (CGM) and RS (HR) in the summer of ’21. AM was C’s line manager. It was not approved in writing, as the Contract envisaged, but orally. Nevertheless, 11 January 2021, AM sent an email which said that all pending holidays for the calendar year 2019/2020 must be cleared by March 2021. The email was unequivocal. It said that “no holidays will be carried forward any further”. There was no evidence that C tried to take the carried forward leave before March 2021. There was no evidence that he requested to do so before this date (or at all) and was refused.[208]We are not satisfied on the balance of probabilities that C had any contractual entitlement to carry forward his annual leave from Leave Year 2020 beyond March 2021, much less into subsequent leave years. His line manager did not approve such a carry forward in writing as the Contract envisaged. It was clear from AM’s of January ’21 email that, on the contrary, AM was not exercising his discretion to permit C to carry the leave forward further than had already been permitted (to the end of March ’21). We considered whether carry forward was permitted on the alternative basis of ‘exceptional circumstances’ envisaged by the Contract. Neither party addressed us on this aspect of the contractual provision and its meaning. ‘Exceptional circumstances’ is not further defined in the Contract, and we heard no evidence about how this exception had been operated in practice, if at all. We accept it is highly arguable that there were ‘exceptional circumstances’ in 2020 (i.e. the Covid pandemic) which could be said to permit a carryover of holidays under the Contract to 2021. However, on the evidence before us, it is not established that anything that might be described as ‘exceptional circumstances’ applied in each of the subsequent leave years so as to permit future carry overs in the years up to and including 2024 within the terms of the Contract. We, therefore conclude that insofar as it proceeds as a breach of contract claim, C’s claim for a payment in lieu of accrued un taken holiday is not well founded and is[209]We turn next to whether, in the alternative, C had an entitlement pursuant to the WTR to carry forward his statutory leave from Leave Year 2020 into Leave Year 2024 and to be paid in lieu of any such leave as remained untaken on termination. We acknowledge that C cannot avail himself of the extended rights brought in by the emergency Covid Regulations introduced in March 2020 but now revoked. Workers had until 31 March 2024 to use any holiday which they may have carried forward under those special rules and C’s case is that he did not use all such carried forward leave by that date.[210]As discussed in the ‘Relevant Law’ section, annual leave rights conferred by the WTR is split between Basic Leave (20 days) and Additional Leave (8 days). Different Rules govern each with respect to the scope to carry over leave into future leave years. There is no scope to do so in respect of the Additional Leave component save where there is a relevant agreement providing for this or where the worker is prevented from taking the leave as a result of being on a period of statutory leave during the leave year in question. Neither of these apply in the present case.[211]We consider next whether C had a right to carry forward his untaken Basic Leave entitlement (20 days per annum) pursuant to Regulations 13(16)- 13(18) of the WTR. In order to establish that such an entitlement remained at the point of termination, one of following requirements would require to be met not only in Leave Year 2020, but in each successive Leave Year (’21, ’22 and ’23): that R1 failed toa. that R1 failed to recognise his right to annual leave under the WTR or to payment therefor; orb. that R1 failed to give C a reasonable opportunity to take the Basic Leave entitlement of 20 days or encourage him to do so; orc. that R1 failed to inform C that any leave not taken by the end of the leave year, which cannot be carried forward, will be lost.[212]The facts found do not sustain a failure on R1’s part to recognise C’s rights to annual leave under the WTR or his right to payment for that leave. It is clear from the terms of his Contract and from the email correspondence by R1 of May 2021 that R1 did recognise these rights.[213]Nor is this a case where R1 failed to inform C that the leave would be lost. C was informed of this in AM’s email of 11 January 2021, and in the Contract.[214]It, therefore, only remains to decide whether R1 failed to give C a reasonable opportunity to take his Basic Leave entitlement or failed to encourage him to do so. We find that, whether or not C had a reasonable opportunity to take the leave (which is disputed between the parties), there was no evidence at all that R1 encouraged C to take the carried forward leave in Leave Year ’21, ’22, or ‘23 (or at all). R1 never discussed the matter with C beyond AM’s email of January 2021, and the issue of the ’Covid leave’ did not come up until C raised it in December 2023.[215]By operation of Rule 13(16)(b) and Rule 13(17) of WTR, we find that C was entitled to carry forward his untaken Basic Leave accrued in 2020 into ’21 and subsequently to carry that leave forward into ’22 then ’23 then ’24.[216]Having decided the ‘carry forward’ point in C’s favour to the limited extent described, we must now calculate how much annual leave remained accrued and untaken by the time of C’s dismissal on 4 April 2024? C claims it was 23 days. He calculates this as 28 days carried forward from Leave Year 2020 less 5 days from that total which he says was taken in January 2024. This analysis is based, so far as we can tell, from erroneous correspondence between C and HA in December 2024 which suggested that the Leave Year ran from April to March and suggested wrongly that C had a balance of 10 days. C’s reasoning is that he had carried forward 28 days from 2020 and used 5 of these days in January 2024 leaving a balance of 23 days of carried forward leave which he hadn’t taken.[217]That analysis cannot be correct in accordance with the WTR. It is clear from the Contract that the Leave Year ran from January to December and there was no evidence of any other relevant agreement to alter that position. Neither party disputed at the hearing that the leave years began on 1 January. We heard no evidence about holiday owing to C other than the leave he claimed carried forward from 2020. The focus of C’s case was entirely on his entitlement deriving from carry forward from the ‘furlough’ period during which he was actually working. We have decided his claim on the basis it was put, namely whether he had accrued untaken leave carried forward from Leave Year 2020 and, if so, how much.[218]We accept C’s unchallenged evidence that he took none of his 28 days’ annual leave entitlement in Leave Year 2020. We find that 20 days of that entitlement carried forward each year including into 2024 (i.e. the Basic component). The Additional Leave component of his composite entitlement (8 days) did not carry forward because the distinct rules on carrying forward in reg 13A were not satisfied.[219]On 1 January 2024, C therefore had accrued untaken leave of 20 days. In the period from 1 January to 4 April 2024, he was also accruing annual leave from his 2024 entitlement (to both Basic and Additional Leave) at the rate of about 2.33 days per month. C was paid in lieu of 7.3 days annual leave he accrued in Leave Year 2024 in May 2024 so there is no claim in respect of that accrual.[220]C applied to use leave in January 2024 and was granted 15 days’ annual leave. He, therefore, had an unused carried forward entitlement of 5 days’ leave on the termination of his employment on 4 April. He received no payment in lieu of that untaken statutory entitlement under the WTR, as the legislation requires (Reg 14). R1 has made an unauthorised deduction of a payment in lieu of 5 days’ wages from C’s final pay in respect of accrued untaken statutory holiday. Remedy (Unauthorised deductions from wages – Annual Leave under the WTR)[221]It was agreed at the outset of the hearing that remedy would be hived off. However, in light of the Tribunal’s findings on liability it appears unnecessary and disproportionate to hold a hearing on remedy in relation to C’s holiday pay complaint (the only complaint which has been found to be established to the extent described).[222]It is agreed that C’s salary at the material time was £50,000 per annum gross. The Tribunal puts forward the following provisional calculation of the sums R1 may be ordered to pay C as a result of the Tribunal’s findings on liability with respect to his unauthorised deductions complaint about holiday pay: 5 days (1 week’s) pay = £50,000 / 52 = £961.54 (gross)[223]Parties have been ordered at the beginning of this document to provide written submissions on whether they agree with this provisional calculation and ancillary matters concerning the disposal of the issue of remedy. 09 December 2025