Mr D Kalirai v Hamton Environmental Services Ltd and Aston Martin Lagonda Ltd: 1304912/2020
| Judgment Date | 09 December 2021 |
| Citation | 1304912/2020 |
| Date | 09 December 2021 |
| Published date | 17 December 2021 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
Claim Number: 1304912/2020
Page 1 of 89
EMPLOYMENT TRIBUNALS
Claimant
Respondents
Mr Dharminder Kalirai
v
(1) Hamton Environmental Services Limited
(2) Aston Martin Lagonda Limited
FINAL MERITS HEARING
(CONDUCTED FOR THE MOST PART BY THE CLOUD VIDEO PLATFORM)
Heard at:
Birmingham
On:
6 to 10 & 13 to 15 September 2021 and in
chambers 16, 17 and 20-23 September 2021
Before:
Employment Judge Perry, Ms W Ellis & Mr J Sharma
Appearances
For the Claimant:
Ms Gillian Crew (counsel)
For the first Respondent:
Mr Jeffrey Jupp (counsel)
For the second Respondent:
Mr Martin Palmer (counsel)
JUDGMENT
1 The claimant’s wrongful dismissal/notice pay and unpaid holiday pay complaints are
dismissed on withdrawal.
2 The claimant’s complaints that he was unfairly dismissal due to making a protected
disclosure and/or in the alternative due to raising health and safety concerns are not well
founded and are dismissed.
3 The claimant was not subjected to a detriment(s) on the ground that he made a protected
disclosure and/or in the alternative due to raising health and safety concerns contrary to
Parts IVA and V Employment Rights Act 1996 and those complaints are also dismissed.
4 The claimant was not harassed and/or in the alternative directly discriminated against for
reasons respectively related to and/or because of his race in contravention of Part 5
Equality Act 2010 and those complaints are also dismissed.
REASONS
References below in circular brackets are to the paragraph of these reasons . Those in square brackets to the
page of the bundle or where preceded by a document reference or the initials of a witness, that document or
witness statement. A number after a paragraph mark symbol “¶” refers to the paragraph number of a witness
statement or document. For those witnesses who provided supplementary statements we refer to their
principal statement as [#1¶…] and supplemental as [#2¶…].
BACKGROUND
5 By a claim form presented on 11 March 2020, following a period of early conciliation from
30 December 2019 to 11 February 2020 (against the second respondent - hereafter
“Hamton”) and to 13 February 2020 (against the first respondent – hereafter “ Aston
Martin” although this is sometimes abbreviated by the parties and witnesses to “AML”),
the claimant brought a variety of complaints.
Claim Number: 1304912/2020
Page 2 of 89
6 A claim against a third respondent, Aston Martin Lagonda Global Holdings Limited was
dismissed upon withdrawal on 5 May 2021.
The parties
7 Aston Martin is a designer and manufacturer of luxury sports cars and grand tourers that
operates from a site in Gaydon, Warwickshire ( ‘Gaydon’) but also from a number of other
sites.
8 Hamton describes itself as a multi-service contractor that provides services (including
production workers) to amongst others, the automotive industry.
9 It was not in dispute that Hamton and Aston Martin had a long-standing relationship under
which Hamton provided staff to work on Aston Martin’s Gaydon production lines, together
with waste and janitorial services. That relationship is reflected in a contract titled ‘Heads
of Contractual Agreement for Production Workers’ [123 -124]. That contract ceased in June
2021 and any remaining workers were transferred to the new contract provider.
10 Both Hamton and Aston Martin assert that on 10 January 2018 the claimant entered into
a contract of employment with Hamton [134 -141] and following an induction/training
period started work at Gaydon on 15 January 2018. Both respondents also allege that the
claimant remained an employee of Hamton at all material times. The claimant asserts he
was employed by Aston Martin.
The issues
11 The issues were identified initially at a case management hearing before Employment
Judge Battisby held on 22 July 2020 [80-86] as:
11.1 Automatic unfair dismissal due to making a protected disclosure
11.2 Automatic unfair dismissal due to raising health and safety concerns
11.3 Direct discrimination on the grounds of race
11.4 Harassment on the grounds of race
11.5 Detriment arising from making a protected disclosure
11.6 Detriment as a result of raising concerns regarding health and safety
12 We sought at the outset to identify how two additional issues identified by Employment
Judge Battisby were pursued and also to seek the detail of what was said or done by whom
and when that was complained of given some of the matters argued in the list of issues
originally prepared appeared to rely upon matters undertaken on differing dates and/or
by differing perpetrators.
13 The list of issues that was finally agreed by the representatives is attached as an appendix
hereto. it was confirmed the following complaints were not pursued:-
13.1 Wrongful dismissal/notice pay relating to contractual procedures not
followed
13.2 Unpaid holiday pay
14 In addition some of the issues fell away by virtue of concessions made in oral evidence.
15 As to the race discrimination/harassment claims the Claimant describes himself as “…a
person of non-white, Panjaabi-Sikh ethnicity…” [34 [ET1¶129]].
Claim Number: 1304912/2020
Page 3 of 89
16 At the outset we also sought to clarify the earliest date a complaint (or the last of a series
of complaints that extended over a period) could be in time as it appeared to us that was
1 October 2019. That was agreed by the parties.
17 Prior to the hearing one of the respondents sought a reduction in the time estimate from
15 to 10 days based on the purpose of the hearing having being limited to li ability only
from liability and remedy. That was acceded to but based on counsel’s opening submission
that shortened time estimate appeared to be unrealistic. Given all parties were
represented we asked the representatives to agree a timetable such that the evidence
could be concluded and in which some time was provided for panel deliberations. That
was done and the Tribunal is grateful. It subsequently transpired that a case the chair was
due to commence the following week was vacated and additional deliberations time was
made available. Despite that due to the number of conflicts between the evidence of the
various witnesses and between them and the documents and indeed the introduction of
documents and in one case witness evidence the whole of that time was taken up and this
judgment has taken far longer to write and is far longer than is ideal.
Applications
18 At the start of this hearing applications concerning the preparations for and conduct of the
hearing that were outstanding were made. Two related to disclosure; the absence of
certain documents and the redaction of others. There was also an application for a witness
order.
19 We asked the parties’ representatives to attempt to resolve the issues concerning
disclosure and they were able to do so. Accordingly a considerable number of additional
documents were added to the bundle including :-
19.1 unredacted copies of 7 pages of the bundle [various pages],
19.2 Hamton’s whistleblowing policy, Health and Safety Policy Statement and
Supporting Policies & Risk Assessment Policy [433-455],
19.3 Aston Martin’s Occupational Health, Safety & Wellbeing Policy Statement,
Confidential Reporting and Whistleblowing Policy, Manual Handling and
Ergonomics Policy/Guidance [456-471].
20 During the course of the hearing a chain of email s came to light that Aston Martin told us
had not previously been identified despite their searches because the relevance of two
individuals only latterly became apparent. They too were added by agreement:-
20.1 Emails concerning Mr Fox 7–17 June [472-476] and
20.2 Emails concerning Mr Quinn 20-24 June [477-479].
21 Finally, it came to light before Mr Benjamin started giving evidence that he had kept a work
diary in which some of the events that concerned us were addressed. Arrangements were
made for that to be inspected and the relevant pages, albeit in two tranches, were
identified and added by agreement [480-486].
22 As to the application for a witness order this related to Mr Phil Heap, who the claimant
asserted was a relevant witness, who was unwilling to give evidence given he still worked
for Aston Martin. We were told he would not attend without a witness order being issued.
We were told a statement had been taken from him but not exchanged and so the witness
order was opposed on the basis of the prejudice caused to the respondents. An issue arises
concerning the claimant and all his witnesses referring to Mr Heap as Mr Leap and the
input of Mr Heap into that statement.
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