Mr W Johnson v New Horizons (NW) Ltd: 2405786/2019
| Judgment Date | 08 January 2021 |
| Citation | 2405786/2019 |
| Published date | 02 February 2021 |
| Court | Employment Tribunal |
| Subject Matter | Race Discrimination |
RESERVED
Case No. 2405786/2019
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EMPLOYMENT TRIBUNALS
Claimant:
Mr W Johnson
Respondent:
New Horizons (NW) Ltd
HELD AT:
Liverpool
ON:
15, 16 October 2020 &
10 December 2020 (in
chambers)
BEFORE:
Members:
Employment Judge Shotter
Ms L Heath
Ms P Owen
REPRESENTATION:
Claimant:
Respondent:
In person
Ms A Famutimi, representative.
RESERVED JUDGMENT
The unanimous judgment of the Tribunal is that:
1. The respondent was in breach of contract, the claimant was wrongfully
dismissed and his claim for unpaid notice pay is well-founded. The respondent
is ordered to pay to the claimant notice pay in the sum of £338.40 gross less
lawful deductions of tax and national insurance.
2. The claimant’s claim of automatic unfair dismissal brought under section 103A
of the Employment Rights Act 1996 as amended, received on 21 May 2019 was
not presented before the end of the period of 3 months beginning with 14
January 2019, the effective date of termination of employment. The Tribunal is
satisfied that it was reasonably practicable for a complaint to be presented
before the end of that period of 3 months and the complaint was not presented
within such further period as the Tribunal considers reasonable. The Tribunal
does not have the jurisdiction to consider the complaint, which is dismissed.
RESERVED
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3. The claimant’s claim of race discrimination brought under section 13 of the
Equality Act 2010 was not presented to the Tribunal before the end of the period
of 3 months beginning when the act complained of was done (or is treated as
done) on 14 January 2019. The balance of prejudice was found in favour of the
claimant and in all the circumstances of the case, it considers that it is just and
equitable to extend the time limit to 21 May 2019 and the Tribunal has the
jurisdiction to consider the complaint.
4. The claimant was not unlawfully discriminated against on the grounds of his
race and his claim for direct race discrimination is not well-founded and is
dismissed.
5. The claim for unlawful deduction of wages brought under section 13 of the
Employment Rights Act 1996 as amended, was presented before the end of
the period of 3 months beginning with the operative date from which time starts
to run being the end of 31 January 2019, the date the claimant was last paid.
6. The claimant did not suffer an unlawful deduction of wages and his claim
brought under section 13 of the Employment Rights Act 1996 is not well-
founded and is dismissed.
REASONS
Preamble
1. This has been a remote hearing by video which has been consented to by the
parties. The form of remote hearing was Code V: Kinley CVP video fully remote. A
face to face hearing was not held because it was not practicable and all issues could
be determined in a remote hearing. The documents that the Tribunal was referred to
are set out in the agreed bundle of bundle of 111 pages together with additional
documents that were not numbered, a similar agreed bundle ran to 113 pages, the
claimant’s witness statement, the witness statements of the claimant, Kathryn
Forshaw and Sarah Leahair, a payslip breakdown and agreed amended list of issues
dated 15 October 2020. The contents of the documents have recorded where relevant
below.
2. The respondent was given leave to amend the bundle with a breakdown of the
claimant’s payslips and a rota which showed the claimant did not work 16 to 18
December 2019, which were relevant to the issues before the Tribunal.
3. The Tribunal was also provided with an amended list of issues that has been
recorded below.
The claims
4. In a claim form received on 21 May 2019 following ACAS Early Conciliation
between 24 April and 9 May 2019, the claimant brings two complaints. The first
RESERVED
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complaint is that the respondent had discriminated against him because of his race
contrary to section 13(1) of the Employment Rights Act 1996 (“the ERA”) as follows:
2.1 The respondent failed to relieve/replace him of duty after the incident regarding a
child on the night of 13 January 2019, and
2.2 when he had been dismissed on the 14 January 2019. The claimant alleges that
had he not been a black person the respondent would not have dismissed him at
during the probationary period in all the circumstances.
5. The claimant relies upon the protected characteristics of colour, and on an
unnamed actual comparator and hypothetical comparator; a white employee in the
role of support worker who had allegedly been assaulted by a service user, called the
police and then was allowed to go home for the balance of her shift. The claimant is
not aware of the circumstances and finer detail including the name of the employee,
date of the incident, and whether the alleged incident had occurred at a similar time of
day as the incident with which the claimant was involved. The claimant described
himself as a black. The claimant did not plead that he had asked the respondent to go
home on the 12 January 2019, and gave no evidence at the liability hearing to that
effect.
6. The claimant also brings a complaint of automatic unfair dismissal under
section 103A of the ERA, the protected act being a call he made to the police regarding
a child subject to a depravation of liberty safeguarding order (“DLSO”) on 12 January
2019. The claimant alleged the respondent prefers to avoid the police becoming
involved in matters related to children subject to a DSLO as part of a policy seeking to
avoid the conduct of children being criminalised, and this was not disputed by the
respondent.
7. The claimant alleged the respondent had fabricated the acts of gross
misconduct to justify his dismissal. The claimant does not have sufficient service to
claim unfair dismissal and the burden to establish the reason for the dismissal rests
with the claimant. It is undisputed that the claimant did not make a disclosure to his
employer or anyone connected to his employer and the only disclosure relied upon is
his call to the police.
8. Finally, the claimant complained that the respondent had made unauthorised
deductions from wages contrary to section 13(1) of the Employment Rights Act 1996
as amended (“the ERA”) and that he was owed one week’s notice.
9. The respondent denies the claimant’s claims, maintaining he had been
dismissed having not successfully completed his probation period, on the basis of
misconduct including falling asleep whilst on duty. The respondent indicated they
believed the claimant had less than 4-weeks service and was not entitled to notice
having commenced his employment on the 19 December 2018, in contrast to the
claimant who asserts his employment commenced on the 5 December 2018. In any
event, the respondent will argue the claimant was not entitled to recover his statutory
notice entitlement as he had committed an act of gross misconduct by falling asleep
whilst on duty. This is one of the issues to be resolved by the Tribunal. The respondent
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