Mrs E Clarke v Interserve FS (UK) Ltd: 3300257/2017
| Judgment Date | 12 June 2019 |
| Published date | 30 January 2019 |
| Court | Employment Tribunal |
| Subject Matter | Race Discrimination |
Case Number: 3300257/2017
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EMPLOYMENT TRIBUNALS
Claimant Respondent
Mrs E Clarke
v
Interserve FS (UK) Limited
Heard at: Watford On: 22 to 29 October 2018
30 October 2018 (In chambers)
Before: Employment Judge Bedeau
Members: Mr I Bone
Ms H Edwards
Appearances
For the Claimant: In person
For the Respondent: Ms A Ahmad, Counsel
RESERVED JUDGMENT
1. The unfair dismissal claim is not well-founded and is dismissed.
2. The claim of harassment related to race is not well-founded and is
dismissed.
3. The claim of direct discrimination because of race is not well-founded and is
dismissed.
4. The claim of victimisation is not well-founded and is dismissed.
5. The accrued unpaid holiday claim is not well-founded and is dismissed.
6. The unauthorised deduction from wages claim is not well-founded and is
dismissed.
7. The wrongful dismissal claim had not been proved and is dismissed.
8. The case is listed for a costs hearing on Friday 15 March 2019 for one day
to start at 10.00am.
Case Number: 3300257/2017
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REASONS
1. By a claim form presented to the tribunal on 21 December 2015, the
claimant made claims of: unfair dismissal; accrued unpaid holiday; arrears
of pay; race discrimination, and other unspecified payments.
2. In the amended response presented to the tribunal on 16 May 2016, the
respondent denied liability.
3. At a preliminary hearing held in private before Employment Judge Heal on 3
January 2018, the claims and issues were identified and are set out below.
The issues
4. Unfair dismissal (claim number 1301392/2017)
4.1 When did the claimant commenced employment with the respondent
and when did it come to an end? The claimant says that she was
employed from July 2014. The respondent contends that the
employment ended on 7 February 2017. The claimant says it ended on
either 7 or 14 February 2017. There is no dispute that the claimant
was dismissed.
4.2 What was the reason for the dismissal? The respondent asserts that it
was a reason related to conduct which is a potentially fair reason for
the purposes of section 98(2) Employment Rights Act 1996. The
misconduct was mainly unauthorised absence. The claimant had been
re-instated and was expected to start work on 22 December 2016. The
respondent says that she failed to attend work at all, failed to comply
with the absence reporting procedure and failed to attend the
disciplinary hearing on 7 February 2017. The respondent regarded this
as gross misconduct. It must prove that it had a genuine belief in the
misconduct and that this was the reason for dismissal. It is not in
dispute that the claimant did not return to work after 22 December
2016.
4.3 The claimant disputes the reason for the dismissal. She says that the
respondent dismissed her because of race.
4.4 Did the respondent hold that belief in the claimant’s misconduct on
reasonable grounds? On the same burden of proof, did the
respondent carry out as much investigation was reasonable in all the
circumstances?
4.5 The burden of proof is neutral here but it helps to know the claimant’s
challenges to the fairness of the dismissal in advance and they are
identified as follows. The claimant says that:
Case Number: 3300257/2017
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4.5.1 On 7 and 12 December 2016, the claimant had a discussion
with Nick Turner, the Regional Manager. On 12 December
2016 she visited him at Radlett and they both agreed that the
false allegation in 2015 that she had been frying chicken
‘before time’, was taken into account in August 2016 and
placed on her file which would have to be removed before she
could return to work. He agreed that he would remove it and
would put that in writing. He did not do so and the claimant
could not come back to work without the “agreement” being
recorded in writing.
4.5.2 The dismissal letter dated 14 February, gave claimant a right
of appeal. When the appeal was fixed, she was unwell and
abroad and had asked Mr. Turner to relist the hearing, but he
did not do so. The respondent says that the appeal hearing
was re-listed.
4.5.3 The procedure for the original dismissal (letter dated 18
August 2016) after which the claimant was re-instated, was not
followed in that the claimant was not told what the allegation
against her was; there was no investigation; no evidence sent
to the claimant; and no hearing. The claimant requested the
name of the informant, the nature of the allegation and the
evidence for 9 months without success. The respondent says
that the events of the earlier dismissal are not relevant.
4.5.4 When a letter was sent on 22 November 2016, the claimant
was told that a more junior staff member who had no
qualifications would now become her supervisor.
4.5.5 On 8 July 2016, the claimant made a report about Ms
McPhillips who was shouting and rude in the way she
addressed the claimant in the kitchen. She told the claimant
that she must mop the kitchen and clean the floor at the end of
the day. The claimant said that she had worked 12 hours and
it would be too much given that she lived in London. The
hearing of the claimant’s grievance was on 8 July and after
that meeting the claimant went back to work and David Marsh
was passing through the kitchen. The claimant asked when he
would get more staff. He said that the respondent could not
get anyone. The claimant offered to go to the Job Centre and
find people to work. He is alleged to have said, ‘We don’t want
people like you’. The claimant understood this to be a racial
comment showing that he did not want a black person in the
kitchen. The relevance of this may be as evidence that the
respondent dismissed the claimant on racial grounds.
4.5.6 The claimant says that she spoke a lot about her entitlements:
about the money she was owed for holidays; about the items
she bought on authorisation for the hospital; the money owed
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