Mr W Davies and others v Veolia ES Merseyside & Halton Ltd: 2423794/2017 and others
| Judgment Date | 04 February 2019 |
| Citation | 2423794/2017 and others |
| Published date | 14 February 2019 |
| Court | Employment Tribunal |
| Subject Matter | Race Discrimination |
RESERVED JUDGMENT
Case Nos. 2423794/2017,
2400003/2018, 2400005/2018
2403287/2018, 2403288/2018,
2403289/2018
1
EMPLOYMENT TRIBUNALS
Claimants:
Mr W Davies
Mrs S Pye
Ms A McCarthy
Respondent:
Veolia ES Merseyside & Halton Limited
Heard at:
Liverpool
On:
8-12 October 2018
22, 23 January 2019
(in Chambers)
Before:
Employment Judge Horne
Mr M Gelling
Mrs J E Williams
REPRESENTATION:
Claimants:
Respondent:
In person
Mr J Feeney, Counsel
RESERVED JUDGMENT
The judgment of the Tribunal is that:
1. The claimants were not unfairly dismissed.
2. The respondent did not discriminate against the claimants because of race.
3. The respondent did not victimise Mr Davies.
4. The respondent did not discriminate against Mr Davies because of disability.
5. The respondent did not discriminate against Mr Davies arising from disability.
6. The Tribunal has no jurisdiction to consider whether or not the respondent
failed to make adjustments for Mr Davies. The claim was presented after the expiry
RESERVED JUDGMENT
Case Nos. 2423794/2017,
2400003/2018, 2400005/2018
2403287/2018, 2403288/2018,
2403289/2018
2
of the statutory time limit and it is not just and equitable for the time limit to be
extended.
7. The Tribunal has no jurisdiction to consider Mr Davies’ complaint of unlawful
deduction from wages. The claim was presented after the expiry of the statutory
time limit and it was reasonably practicable for the claimant to have presented his
claim before the time limit expired.
8. In any event the respondent did not make an unlawful deduction from Mr
Davies’ wages.
9. The respondent did not make unlawful deductions from the wages of Ms
McCarthy.
10. The Tribunal has no jurisdiction to consider whether or not the respondent
made unlawful deductions from the wages of Mrs Pye during the period when she
was acting up as foreman. Her claim was presented after the expiry of the statutory
time limit and it was reasonably practicable for her to have presented her claim
before time limit expired.
11. The respondent did not make unlawful deductions from the wages of Mrs Pye
during the period when she was employed as a recycling assistant.
REASONS
Delay
1. The tribunal apologises to the parties for the delay in sending this judgment to the
parties. Our panel was unable to reconvene to deliberate until January this year
owing to the pressure of hearing other cases. The parties were informed of the
delay at the conclusion of the hearing.
Complaints and Issues
The claim forms
2. By a claim form presented on 16 November 2017, Mr Davies raised the following
complaints:
2.1. Unfair dismissal contrary to sections 94 and 98 of the Employment Rights Act
1996 (“ERA”);
2.2. Direct discrimination because of race, contrary to sections 13 and 39 of the
Equality Act 2010 (“EqA”);
2.3. Direct discrimination because of disability, contrary to the same provisions of
EqA;
RESERVED JUDGMENT
Case Nos. 2423794/2017,
2400003/2018, 2400005/2018
2403287/2018, 2403288/2018,
2403289/2018
3
2.4. Discrimination arising from disability, contrary to sections 15 and 39 EqA;
2.5. Failure to make adjustments contrary to sections 20, 21 and 39 EqA; and
2.6. Victimisation contrary to sections 27 and 39 EqA.
3. In claim forms presented on 1 January 2018, Mrs Pye and Mc McCarthy raised
the following complaints:
3.1. Unfair dismissal contrary to the same provisions as above; and
3.2. Direct discrimination because of race contrary to the same provisions as
above.
4. All three claimants presented a further claim form to the Tribunal on 23 January
2018. This form contained a single complaint of unlawful deduction from wages,
contrary to section 13 ERA.
5. At the start of the final hearing we spent some time clarifying the issues.
Unfair dismissal issues
6. We start with the complaint of unfair dismissal. The issues were:
6.1. Could the respondent prove the sole of principal reason for the dismissal of
each claimant?
6.2. If so, was that reason one which related to that claimant's conduct?
6.3. If so, did the respondent act reasonably or unreasonably in treating that
reason as sufficient to dismiss the claimant?
7. Had the dismissal of any of the claimants been found to have been unfair, further
issues would have arisen in relation to remedy.
8. Before moving on to the remainder of the claim, it is important to note that the
complaint of unfair dismissal did not require us to determine whether or not any of
the claimants had actually committed the misconduct of which they had been
accused during the disciplinary process. The claimants expressly confirmed that
they were not bringing a claim for damages for their notice pay. We quite
consciously avoided making any finding about the claimants’ guilt or innocence of
the alleged misconduct.
Race discrimination issues
9. All three claimants complained of direct race discrimination.
10. Mr Davies is of dual British and Irish nationality. Mrs Pye has Irish nationality.
11. Ms McCarthy relies on two links to Ireland which she says are relevant to her
protected characteristic of race. The first is that her ex-husband, though born in
Britain, has Irish parents. The second is that she has kept his surname, which is
commonly associated with Ireland. Her self-description gives rise to an issue
particular to her: do her connections with Ireland amount to a protected
characteristic of race? (Different considerations might arise if the respondent had
mistakenly thought that Ms McCarthy was of Irish national origin or nationality,
but Ms McCarthy never suggested that the respondent had made such a
mistake.)
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