Mr WYC Shing v University of the Arts London: 2202043/2021
| Jurisdiction | England & Wales |
| Judgment Date | 19 September 2023 |
| Date | 19 September 2023 |
| Court | Employment Tribunal |
| Published date | 12 October 2023 |
| Subject Matter | Breach of Contract |
Case Number: 2202043/2021
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EMPLOYMENT TRIBUNALS
BETWEEN
Claimant AND Respondent
Mr WYC Shing University of the Arts London
Heard at: London Central (by video) On: 3, 4, 5, 6 and in chambers
on 7 July 2023
Before: Employment Judge H Stout
Tribunal Member S Pearlman
Tribunal Member S Hearn
Representations
For the claimant: Ms N Mallick (counsel)
For the respondent: Mr A Ohringer (counsel)
RESERVED JUDGMENT
The unanimous judgment of the Tribunal is that:
(1) The respondent did not contravene ss 13 and 39(2)(c) Equality Act 2010
and the claimant’s claim of direct race discrimination is dismissed.
(2) The respondent did not contravene ss 19 and 39(2)(d) Equality Act 2010
and the claimant’s claim of indirect race discrimination is dismissed.
(3) The claimant’s claim of unfair dismissal under Part X of the Employment
Rights Act 1996 is not well-founded and is dismissed.
REASONS
1. Mr Shing (the Claimant) was employed by the University of the Arts London
(the Respondent) from 1 September 2006 until 1 December 2020, latterly as
a Senior Lecturer. He was dismissed summarily for what the Respondent
classified as inappropriate professional behaviour. In these proceedings he
Case Number: 2202043/2021
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claims that his dismissal was unfair contrary to Part X of the Employment
Rights Act 1996 (ERA 1996), that it was direct discrimination on grounds of
nationality and/or ethnic origin contrary to s 13 and s 39(2)(c) of the Equality
Act 2010 (EA 2010) and that the Respondent’s policy on Personal
Relationships indirectly discriminated against those who share his
nationality/ethnic origin contrary to s 19 and s 39(2)(d) of the EA 2010.
The type of hearing
2. This has been a remote electronic hearing by video under Rule 46. The public
was invited to observe via a notice on Courtserve.net. A member of the
public joined. The only significant issue with connectivity was that Mrs Terry
was not able to give evidence at the scheduled time because of an
interruption to her broadband connection, which was resolved and then we
resumed.
3. The participants were told that it is an offence to record the proceedings. The
participants who gave evidence confirmed that when giving evidence they
were not assisted by another party off camera.
The issues
4. The issues to be determined had been agreed by the parties to be as follows:-
Unfair Dismissal
(1) It is accepted that the Claimant was summarily dismissed on 1
December 2020. What was the reason for dismissal? The Respondent
contends that the Claimant was fairly dismissed for gross misconduct.
(2) Is the reason for dismissal a potentially fair reason for dismissal under
section 98(1)(b) or section 98(2)(b) of the Employment Rights Act 1996,
namely misconduct, or in the alternative, some other substantial
reason?
(3) Was the Claimant’s dismissal fair in all the circumstances? The
Claimant alleges that:
a. There was no act of gross misconduct
b. The sanction was excessive
c. The sanction was not consistent with the staff disciplinary code.
d. The sanction was outside of the range of reasonable responses and
unduly harsh
e. Mitigation and his service was not taken into account
f. There were procedural errors, namely
i. Abuse of Process
ii. Failing to obtain or losing evidence
iii. Unreasonable delay
Case Number: 2202043/2021
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(4) If the Tribunal concludes that dismissal was unfair:
a. what adjustment, if any, should be made to any compensatory award
to reflect the possibility that the Claimant would have been dismissed
in time anyway? (Polkey v AE Dayton Services Ltd [1987] UKHL 8)
b. would it be just and equitable to reduce the amount of the Claimant’s
basic award because of any blameworthy or culpable conduct before
the dismissal, pursuant to section 122(2) of the ERA 1996 and if so,
to what extent? Did the Claimant by blameworthy or culpable actions
cause or contribute to his dismissal to any extent and if so, by what
proportion, if at all, would it be just and equitable to reduce the
amount of any compensatory aware pursuant to section 123(6) of the
ERA 1996?
Direct Race Discrimination
(5) Did the Respondent subject the Claimant to less favourable treatment
because he is not white and/or because he is Chinese in the following
respects:
a. The investigation into allegations of sexual harassment and
inappropriate professional behaviour made against the Claimant
from June 2020 onwards.
b. The sanction of summary dismissal imposed on 1 December 2020.
In relation to the dismissal and the investigation, the Claimant relies on the
following actual comparators: G and H (who also had romantic/personal
relationships with students but were subjected to less harsh sanctions)
and/or a hypothetical comparator.
Indirect Discrimination
(6) The alleged provision criterion or practice was the application of the
Personal Relationships UAL Policy and Professional Boundaries
Guidance and/or the requirement that the claimant understand and
adhere to this policy and guidance
(7) It is alleged that this put people of Chinese national origin at a particular
disadvantage compared with others because the way the policy and
guidance was written was not sufficiently clear and unambiguous for
someone who was born and brought up in the Chinese culture and did
not speak English as a first language
(8) It is alleged that this also put the claimant at that disadvantage
(9) If so, can the Respondent prove that it was a proportionate means of
achieving a legitimate aim?
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