Mr K Abayomi v Openreach Ltd: 2203775/2022
| Jurisdiction | England & Wales |
| Judgment Date | 24 July 2023 |
| Date | 24 July 2023 |
| Published date | 14 August 2023 |
| Court | Employment Tribunal |
| Citation | 2203775/2022 |
Case Number: 2203775/2022 - 1 -
EMPLOYMENT TRIBUNALS Claimant Respondent Mr Kunle Abayomi v Openreach Ltd Heard at: London Central On: 6 - 9 June 2023 Before: Employment Judge Hodgson Mr P Madelin
Ms S Aslett
Representation
For the Claimant: in person For the Respondent: Ms S Martin, counsel JUDGMENT
(1) The respondent shall pay the claimant unpaid wages of £225.23
(2) The claim of wrongful dismissal fails and is dismissed.
(3) The claim of failure to pay accrued holiday pay due on termination of employment pursuant to the Working Time Regulations is dismissed.
(4) All claims of direct discrimination fail and are dismissed.
(5) All claims of harassment fail and are dismissed.
(6) The claim of indirect discrimination fails and is dismissed.
Case Number: 2203775/2022 - 2 -
REASONS
Introduction
1.1 On 7 June 2022, the claimant presented a claim.
The Issues
2.1 The issues were discussed at the hearing, and further details of the discussion is given below.
2.2 There are claims of direct discrimination, indirect discrimination, and harassment. For the claim of direct discrimination, the claimant relies on race and age. For harassment, the claimant relies on race. For indirect discrimination, the claimant relies on age. He alleges unlawful deduction from wages, failure to pay accrued holiday pay on dismissal, and wrongful dismissal.
2.3 Both parties accept that the claimant resigned. The claimant alleges that he was constructively dismissed, as he resigned in response to respondent's fundamental breach of contract.
2.4 The allegations of direct discrimination (race) were identified by EJ Smith;
they are set out below as modified where applicable at the hearing:
2.4.1 allegation one: an event having occurred on 3 March 2022 at the Exeter training centre, the respondent chose to wrongly implicate the claimant as being guilty of gross misconduct;
2.4.2 allegation two: by inviting the claimant to a meeting at Croydon on 10 March 2022 without giving him notice about what the meeting was to be about;
2.4.3 allegation three: by suspending the claimant at the 10 March 2022 meeting and the decision being made to carry forward disciplinary proceedings against him;
2.4.4 allegation four: by Jordan Martin following him into the toilet at Croydon on 11 March 2022;
2.4.5 allegation five: in the respondent ignoring and not addressing the claimant’s complaints of intimidation and having been subject to threatening behaviour; and,
2.4.6 allegation six: by dismissing the claimant on 26 May 2022?
2.5 The claimant alleged allegation four was also an act of age discrimination.
2.6 The claimant alleged allegations two and three were harassment related to race.
Case Number: 2203775/2022 - 3 -
2.7 There was difficulty identifying the alleged provision criterion or practice for the claim of indirect discrimination. The provision criterion or practice,
as allowed by amendment,1 was recorded as follows:
A claim of indirect age discrimination based upon a provision, criterion or practice (PCP) applied by the respondent, namely that complaints made by “new starter” employees are treated differently – and specifically, dealt with at a slower pace – than those made by employees who are not “new starters.”
2.8 No disadvantage was identified in the application to amend. At the hearing, the claimant stated the disadvantage was the failure to deal with his grievance until after the termination of his employment.
2.9 The respondent did not accept that it applied that provision criterion or practice.
2.10 As the application to amend was made outside the limitation period for bringing the claim, the tribunal may need to consider whether it is just and equitable to extend time.
2.11 To the extent the claimant particularised his claims for failure to pay accrued holiday pay and wages, the detail is set out in section 4 below.
Evidence
3.1 We received a bundle of documents. Several further documents were disclosed by the claimant and admitted by consent, albeit the relevance was not accepted.
3.2 The claimant filed various additional documents during the hearing and we considered them as necessary.
3.3 The claimant gave evidence.
3.4 For the respondent we heard from three witnesses, Mr Kevin Westall; Mr Jim Prichard; and Mrs Jennifer O’Brien.
3.5 The respondent relied on written submissions.
3.6 Following the hearing, the claimant filed written submissions, which he 3.7 revised further on a number of occasions and we considered all versions.2 Concessions/Applications 4.1 On day one of the hearing, we reviewed the issues in this case. There had been two previous case management discussions. On 12 August 2022, EJ Klimov identified what appeared to be the issues; he noted the 1 Allowed by EJ Smith on 14 December 2022.
2 The final version was number 8.
Case Number: 2203775/2022 - 4 -
claimant may seek to amend, and the issues would be fundamentally affected. He recorded, "The claim is about the claimant's dismissal and his treatment during the disciplinary process, which the claimant claims was discriminatory because of his race." He also noted that there were claims for wrongful dismissal, failure to pay accrued holiday pay, and overtime. The claim for wages and holiday pay was not particularised either in the claim or in the issues. The claimant specifically conceded there was no claim for indirect discrimination. EJ Klimov recorded the complaints.
The Complaints
12. The claimant is making the following complaints:
a. Wrongful dismissal (notice pay);
b. Holiday pay;
c. Unauthorised deduction from wages with respect to overtime d. Direct race discrimination about the following:
i. Dismissal,
ii. Conduct of the disciplinary process.
e. Harassment related to race about the following:
i. On 10 March 2022 being “entrapped” at a meeting at the respondent’s Croydon training centre,
ii. On 10 March 2022 being followed to the toilet by Jordan Martin.
4.2 The claimant alleged that he been constructively dismissed. He failed to set out details of the breach of contract in his claim form.
4.3 In a further case management discussion before EJ Smith, the claimant made an application to amend. The application to amend was identified by EJ Smith as follows:
Claimant’s application to amend 4. The Claimant applied for permission to amend his claim form to include two additional claims:
4.1. A claim of indirect age discrimination based upon a provision,
criterion or practice (PCP) applied by the Respondent, namely that complaints made by “new starter” employees are treated differently – and specifically, dealt with at a slower pace – than those made by employees who are not “new starters”; and,
4.2. A claim of direct age discrimination in relation to the allegation that he was followed to the toilet on 11 March 2022.
4.4 The order was as follows:
Amendment
9. The Claimant’s application to amend the claim form to include complaints of indirect age discrimination and direct age discrimination is allowed.
10. The Respondent has permission to rely upon an amended response to the claims as now clarified. If it wishes to do so, it must send a copy of the amended response to the Tribunal (copying in the Claimant) by 11 January 2023. Any amended response must set out any legitimate aim(s) relied upon by the Respondent in respect of its justification defence to the Claimant’s direct and indirect age discrimination claims.
Case Number: 2203775/2022 - 5 -
4.5 Further allegations of direct discrimination were included. There was no application to amend, albeit a number of the allegations appeared to be fresh. The respondent has not taken issue with their inclusion in the issues and we have adopted the allegations of direct discrimination, and the further allegations of harassment as set out in EJ Smith's order.
4.6 The claimant gave no proper detail as to the claim for accrued holiday pay. EJ Smith recorded the claim for unauthorised deduction of wages "concerns return travel to Bradford on 17 February 2022 and to Exeter on 2 March 2022." The contractual term relied on was not identified.
4.7 At the hearing, we sought to clarify the indirect discrimination claim. The claimant initially stated that it concerned the operation of a written policy,
the new joiners’ procedure, and thereafter stated it concerned the written grievance policy. However, the claimant was unable to identify, in either document, any wording relied on. The claimant was unable to adequately identify what he said was the provision criterion or practice, or confirm whether it had been recorded accurately by EJ Smith. As for the disadvantage, he stated that "his grievance was not investigated."
4.8 The claimant had filed a written application to amend in August 2022, it was not in the bundle. We asked for a copy. We also ordered that the claimant set out, by the following day, the provision criterion or practice relied on. In addition, he should state whether it was communicated in writing, and if so, the document should be identified. If it were communicated orally, he should set out the wording and give details of when he was told and by whom.
4.9 In response, the claimant sent an email which stated the following:
Order Responses & Amendment to claim application 26/08/2022 Fiona Wilson's ( HR) communication ( email attached) which I will note down as you instructed informed me that my grievances all my complaints and grievances up to the 11 of March 2022 could not be investigated at that point as I was under a different and ( in my view) limiting new Joiners procedure as opposed to the general grievances procedure. I found this to be disadvantageous. My complaints at that point and intimidation in Exeter,
and, improperly conduct during meeting in Croydon were basically ignored until I was terminated. However, this could have been investigated as part of the dicinplinary prcess with Kevin Westall and Pritchard. I am mystified why this wasn't.
This is in comparison with other staff who have grievances and complaints...
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