Mr A Thompson v Wheeldon Brothers Ltd: 2416768/2018

CourtEmployment Tribunal
Judgment Date22 January 2020
Publication Date31 January 2020
SubjectUnfair Dismissal
Case No. 2416768/18
Mr A Thompson
Wheeldon Brothers Limited
Heard at:
Manchester Tribunal Hearing
Employment Judge McDonald
Mr S Khan
Mr J Ostrowski
Claimant: Mrs Thompson (wife)
Respondent: Mr F Jaffier (Employment Law Consultant and Advocate)
The unanimous decision of the Tribunal is that:
1. The claimant’s claim that the respondent subjected him to harassment related
to race in breach of s.26 of the Equality Act 2010 succeeds in relation to
incidents 3, 5, 6, 8, 10, 11, 12.
2. The claimant’s claim that the respondent subjected him to harassment related
to race in breach of s.26 of the Equality Act 2010 fails in relation to incidents 1
and 2 (because they were brought out of time) 4, 7, 13 and 14.
3. The claimant’s claim that the respondent directly discriminated against him in
breach of s.13 of the Equality Act 2010 because of race fails
4. The claimant’s claim that the respondent victimised him in breach of s.27 of
the Equality Act fails.
5. The claimant’s claim that he was unfairly dismissed succeeds.
Case No. 2416768/18
6. The claimant’s claim that the respondent made unlawful ded uctions from his
wages in May 2013 fails.
7. Those claims which fail are dismissed
8. The matter will be set down for a one day hearing on remedy in relation to
those claims which succeeded.
1. The claimant worked as a labourer for the respondent. He claimed that he
was subject to discrimination and harassment, in the form of derogatory and
insulting racist remarks and behaviour to him by fellow workers. He claimed
that his managers took no action to prevent the conduct which culminated in a
physical assault upon him and led to his dismissal for gross misconduct on 17
August 2018. The respondent disputed the allegations and maintained that
the claimant was dismissed for a physical altercation with a colleague. The
claimant claimed that dismissal was an unfair dismissal.
2. The claimant also alleged that the respondent repeatedly failed to offer him
promotional and development opportunities offered to white colleagues and
that it made unlawful deductions from his wages in May 2013. The
respondent denied these allegations.
The issues to be decided by the Tribunal
3. The issues to be decided by the Tribunal were clarified at a preliminary
hearing on 23 May 2019 and listed at paragraphs 9 and 10 of the Case
Management Summary sent to the parties on 3 June 2019.
4. During the final hearing, we made three changes to the list of issues identified
at that preliminary hearing.
5. First, Mrs Thompson confirmed that it was the claimant’s case that a number
of the acts of harassment and/or less favourable treatment he complained
about were also acts of victimisation under section 27 of the Equality Act 2010
(“the 2010 Act”). We accepted that this was clear from the Scott schedule
dated 15 April 2019. For the respondent, Mr Jaffier also accepted that that
was so and by consent the claimant was allowed to amend his case to add
the claim of victimisation.
6. Second, Mrs Thompson said the claimant was also making a claim that the
respondent had made an unlawful deduction from the claimant’s wages. The
claimant’s claim was that he was owed three weeks wages for the period 1
May to 23 May 2013 when the claimant’s employment TUPE transferred to
the respondent. The time limit for bringing a claim of unlawful deduction from
wages is three months from the date of the deduction or last deduction in a
Case No. 2416768/18
series. Mr Jaffier said that any claim based on deductions in May 2013 was
out of time. A claim can be brought outside the usual time limit if the claimant
can show it wasn’t reasonably practicable to bring the claim within the time
limit. Mrs Thompson said that she could give evidence to explain why the
claim had not been brought sooner. We decided the best way to deal with this
point was to hear evidence from any relevant witnesses as part of the final
hearing of the claimants other claims. We would then decide whether the
claimant had shown that his claim about unlawful deduction of wages should
be allowed to go ahead despite being made outside the usual three month
time limit.
7. Third, during the second day of the hearing it became apparent from Mr
Jaffier’s approach to cross examining the claimant that the respondent was
relying on the “reasonable steps” defence at section 109 of the 2010 Act.
Paragraph (9)(1) of the Preliminary Hearing Case Management Summary had
suggested it wasn’t relying on that defence. Mr Jaffier confirmed that was no
longer correct. If we decided that the respondent’s employees had racially
harassed, discriminated against or victimised the claimant, the respondent
would say that it was not liable for their actions because it had taken all
reasonably practicable steps to prevent those actions or actions of that kind
taking place.
8. Taking those points into account, the issues we needed to decide were:
(1) Unfair Dismissal
a. Could the respondent prove a potentially fair reason for dismissal on
the balance of probabilities? The respondent stated the reason was
conduct s.98(1) Employment Rights Act 1996 (“ERA”). The claimant
disputed this and stated the reason was discriminatory.
b. If so, was the decision to dismiss fair, applying s.98(4) ERA 1996?
c. If the claimant was unfairly dismissed, did he contribute to his dismissal
to any extent and/or do the ‘Polkey’ principles apply?
(2) Race Discrimination
a. Direct Discrimination/Harassment/victimisation the claimant had
identified a series of acts of harassment or less favourable treatment or
victimisation in the claim form and amended particulars and ‘Scott
schedule’ and had identified white comparators for relevant allegations
in the comparator table.
i. Did each such act occur?
ii. Was it an act of direct discrimination, harassment and/or

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