Ms T Webb v London Underground Ltd: 3306438/2021
| Jurisdiction | England & Wales |
| Judgment Date | 12 December 2022 |
| Date | 12 December 2022 |
| Published date | 02 February 2023 |
| Court | Employment Tribunal |
| Citation | 3306438/2021 |
| Subject Matter | Sexual Orientation Discrimination/Transexualism |
Case Number: 3306438/2021
EMPLOYMENT TRIBUNALS Claimant
Ms Tracey Webb
Respondent
London Underground Limited
v
Heard at
Bury St Edmunds (CVP)
Before:
Employment Judge R Wood; Ms S Elizabeth; Ms S Blunden
Appearances
For the Claimant:
For the Respondent:
On: 22-26 November 2022
Mr Jones (Counsel)
Miss Thomas (Counsel)
RESERVED JUDGMENT 1. The Claimant was not the subject of discrimination based on race by the respondent.
2. The claimant was unfairly dismissed by the respondent.
3. The claimant was unlawfully deducted three weeks pay in respect of unpaid holiday entitlement by the respondent.
DECISION
Claims and Issues 1.
Page numbering referred to in square brackets in these reasons are to pages in the bundle, unless otherwise stated.
2.
This is a claim which involves allegations of direct race discrimination, unfair dismissal, and non-payment of accrued holiday pay. The respondent is, by agreement between the parties, a public body which has responsibility for the underground train system in London. The claimant had worked for a period of 32 years for the respondent, latterly as a train manager. The claimant argues that she was dismissed from her role for reasons related to her being a white woman. The respondent asserts that she was dismissed on the grounds of misconduct, namely the posting of inappropriate,
offensive and racist messages onto social media sites. These messages 1
Case Number: 3306438/2021 related to the death of George Floyd, and the situation which evolved in the aftermath of that event. It is submitted by the respondent that the posts breached its policies and guidance in relation to the conduct of employees,
particularly in relation to activities on social media. In her claim, Ms Webb states that the posts were factually correct, and were not offensive.
3.
The claimant states that she was treated materially differently from other black employees who had been similarly accused of posting inappropriate material on social media. Ms Webb asserts that had she been black, then the respondent would not have taken the view that the posts amounted to misconduct justifying disciplinary proceedings. Furthermore, that she would not have been dismissed if she had not been white.
4.
In relation to the claim for unfair dismissal, it is argued that the respondents social media policy and/or the way it was applied in the claimant’s case,
amounted to an unjustified interference with the claimant’s rights under the European Convention on Human Rights (“the Convention”) as incorporated into English law by the Human Rights Act 1998, and in particular those rights under Articles 8 and 10 of the Convention, namely the right to a private life and to freedom of expression respectively. It is suggested that there was either no, or insufficient, regard to the claimant’s human rights during the disciplinary procedure. The respondent maintains that the interference was justified by reference to the threat posed to it’s reputation, and the rights of other employees not to be offended.
5.
The claimant also submits that the reason for dismissal was not one prescribed by section 98(2) of the Employment Rights Act 1998, and was not one which was reasonable and fair in the circumstances. Furthermore,
that the process engaged by the respondent was, in any event, unfair. For its part, the respondent states that it genuinely dismissed on the grounds of misconduct associated with the alleged misuse of social media, having carried out a reasonable investigation of the allegations. The respondent asserts that the policy it adopted was fair throughout and that the sanction imposed was proportionate and reasonable set against the circumstances of
the
case.
6.
In relation to her claim for accrued but unpaid holiday entitlement, Ms Webb asserts that she went on a trip abroad during her sick leave which was wrongly assigned by the respondent as annual leave. She believes that it should have been treated as holiday leave. The respondent disagrees and did not make a payment in relation to the period.
Procedure, Documents and Evidence Heard 7.
The Hearing took place on 22 to 26 November 2022. The claim was heard via a remote CVP hearing in Bury St Edmunds. We first of all heard testimony from the claimant, Ms Webb. From the respondent, we heard evidence from Mr Tom Naughton (Train Operations Manager: dealing with
2
Case Number: 3306438/2021 the investigation), Daniel Howarth (Head of Customer Services Modernisation: dealing with the appeal), Mr Olawole Musa (Area Manager in Camden: dealing with the disciplinary hearings (company disciplinary interview (“CDI”)), and Miss K Brades (Depot Manager: also dealing with the CDI). Each of the aforesaid witnesses adopted their witness statements and confirmed that the contents were true. We also had an agreed bundle of documents which comprises 753 pages; and copies of helpful and thorough written submissions from Mr Jones and Miss Thomas.
8.
In coming to our decision, the panel had regard to all of the written and oral evidence submitted, even if a particular aspect of it is not mentioned expressly within the decision itself.
Legal Framework
9.
The relevant legislation in respect of the allegations of direct discrimination is contained in the Equality Act 2010 (“the Act”).
10.
Race is a protected characteristics as defined by section 4 of the Act.
Sections 39 and 40 prohibit unlawful discrimination against employees in the field of work. Section 39(2) provides that:
“An employer (A) must not discriminate against an employee of A's (B) (a) as to B's terms of employment;
(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;
(c) by dismissing B; or (d) by subjecting B to any other detriment.”
11.
Section 136 of the Act provides that:
“If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred”.
This provision reverses the burden of proof if there is a prima facie case of
direct
discrimination.
12.
In summary, the Act provides that a person with a protected characteristic is protected at work from prohibited conduct as defined by Chapter 2 of it.
In addition to the statutory provisions, Employment Tribunals are obliged to take in to account the provisions of the statutory Code of Practice on the Equality Act 2010 produced by the Commission for Equality and Human Rights.
3
Case Number: 3306438/2021 13.
Direct discrimination is defined in section 13(1) of the Act as “A person (A)
discriminates against another (B) if, because of a protected characteristic,
A treats B less favourably than A treats or would treat others”. The application of those principles was summarised by the Employment Appeal Tribunal in London Borough of Islington v Ladele (Liberty intervening)
EAT/0453/08, which has since been upheld:
(a) In every case the Employment Tribunal has to determine the reason why the claimant was treated as he was. In most cases this will call for some consideration of the mental processes (conscious or subconscious) of the alleged discriminator.
(b) If the Employment Tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more
than
trivial.
(c) Direct evidence of discrimination is rare and Employment Tribunals frequently have to infer discrimination from all the material facts. The courts have adopted the two-stage test. The first stage places a burden on the claimant to establish a prima facie case of discrimination. That requires the claimant to prove facts from which inferences could be drawn that the employer has treated them less favourably on the prohibited ground. If the claimant proves such facts then the second stage is engaged. At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground. If they fail to establish that, the Tribunal must find that there is discrimination.
(d) The explanation for the less favourable treatment does not have to be a reasonable one. In the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation. If the employer fails to provide a non-discriminatory explanation for the unreasonable treatment, then the inference of discrimination must be drawn. The inference is then drawn not from the unreasonable treatment itself - or at least not simply from that fact - but from the failure to provide a non-discriminatory explanation for it. But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, the burden is discharged at the second stage,
however
unreasonable
the
treatment.
(e) It is not necessary in every case for an Employment Tribunal to go through the two-stage process. In some cases it may be appropriate simply to focus on the reason given by the employer (“the reason why”) and, if the Tribunal is satisfied that this
4
Case Number: 3306438/2021 discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test.
(f) It is implicit in the concept of discrimination that the claimant is treated differently than the statutory comparator is or would betreated. The determination of the comparator depends upon the reason for the difference in treatment. The question whether the claimant has received less favourable treatment is often inextricably linked with the question why the claimant was treated as...
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