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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Mirek v Graysons Automotive Services [2018] UKEAT 0198_18_2211 (22 November 2018) URL: https://www.bailii.org/uk/cases/UKEAT/2018/0198_18_2211.html Cite as: [2018] UKEAT 0198_18_2211, [2018] UKEAT 198_18_2211 |
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At the Tribunal | |
Before
THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)
(SITTING ALONE)
![]() | APPELLANT |
![]() ![]() |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant |
MR MARCIN KOZIK (Representative) KL Law Ltd 3A Canberra House London Road St Albans AL1 1LE |
For the Respondent |
MR JACK FEENY (of Counsel) Instructed by: Cox Cooper Ltd Solicitors Cambrai Court 1235 Stratford Road Hall Green Birmingham B28 9AA |
SUMMARY
RACE DISCRIMINATION - Continuing Act
The Employment Tribunal erred in law in striking out, at a Preliminary Hearing where no evidence was adduced, four of the six allegations of unlawful race discrimination made by the Claimant in circumstances where he contended that they all formed part of a continuing act.
First, while it is not necessary for an Employment Tribunal to set out precisely the approach it proposes to adopt, it is important that the correct approach is adopted. If that is apparent from the language used by an Employment Tribunal then no complaint can be justifiably be made. Here, however, on each occasion on which the Employment Judge dealt with whether a continuing act or a one-off act was involved in this case, the language used was the language of making primary findings of fact. That was an error. The Claimant's case should have been taken at its highest unless directly contradicted by undisputed contemporaneous or other material.
Secondly the reasons given did not meet the Meek test. None of the points made on appeal by the Respondent appear as part of the Employment Tribunal's Reasons. Furthermore, the finding that the conduct of Ian Hateley came to an end on 3 June 2015 did not answer the question whether there was any arguable link between the matters ending on 3 June 2015, and the grievance raised on 30 November 2015, followed by the meeting on 11 March 2016. The Claimant's case depends on there being a continuing discriminatory state of affairs involving conduct on the shop floor followed by a total failure to recognise or address that conduct. The Employment Tribunal failed to consider or address this point altogether. The Reasons do not provide any explanation for why the Claimant's case on this point failed.
Thirdly, to the extent that the Employment Judge can be said to have addressed this issue, the conclusion that there was no possible link between the shop floor conduct ending on 3 June 2015, and the grievance complaint about those matters in November and the March 2016 meeting, is perverse because it is unsupported by any evidence. It is true that the Claimant did not expressly assert ongoing conduct by Mr Hateley after 3 June 2015. His claim however was against the Respondent as a whole. Given the involvement of Ms Morris at the meeting on 3 June 2015, and again on 11 March 2016, and given that the grievance of 13 November 2015 raised complaints about alleged abuse on racial grounds in the meeting on 3 June 2015, albeit directed at Mr Hateley, it is difficult to see what evidential basis there was for reaching that conclusion in circumstances where factual disputes could not be and were not to be resolved by the Employment Tribunal at the Preliminary Hearing.
THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)
The Factual Background
"On 3 June 2015, 1 attended the meeting that Ms Shenton-Smith had scheduled with Mr lan Hateley and Ms Morris. At the meeting Mr. Shaun Hill (Service Manager) was also present. 1 was not permitted to be accompanied to the meeting. At one point during the meeting, Ms Morris told me to 'shut up and listen" and she also said that many people in the room would like to slap me in the face. Mr Hateley continued in the same vein, accusing me of being 'Romanian", "lazy", "negative", "having a crap attitude", and having "a chip" on my shoulder. In Mr Hateley's view "Romanian are lazy and Polish are hardworking". Mr Hateley went on to tell me that, 'I've got London's engineer with lowest opinion of you as a person you could ever wish to want. They don't believe you are technically good enough. I've got one engineer in London that does not want to work with you again". I replied: "But 1 was working alone in London". Mr Hateley continued: "You are Romanian not Polish. You are lazy and needs pushing, difficult and have a chip on shoulder. Everybody in the office believes you are a difficult person to work with. Shaun feels you are one of the most difficult engineers we have got to work with. I think you need to take that big chip of your shoulder. Next four weeks you gonna spend workshop based and be supervised. You are going to be micromanaged. You will be workshop based. I don't really care what your issues are. I am not wasting any more time this morning hearing you trying to justify every single point. You don't even accept there is a problem and that's what worries me the most. You feel you are perfectly in the right and there is nothing wrong". Ms Morris continued: "You have wrong type of personality to be a field service engineer. You are a negative person Lukasz, that's what you are. You are lucky you still have got the job". At the conclusion of the meeting Ms Morris said to me that, "You look very depressed". It is not clear how Ms Morris expected me to look after the appalling manner in which 1 had been treated. The company did not inform me about my right to appeal from the decision. 1 have never received an outcome letter neither minutes from this meeting. I have subsequently raised a grievance in relation to this incident."
"We are sorry you were absent for such a long time due to anxiety and depression, and hope you feel much better now.
Please accept our apologies for the delay. However the grievance was extremely long and we wanted to consider the detail carefully.
This is our written response to the grievance we received on the 1st December 2015. The HR team have had several involvements in LukaszMirek's performance/attendance review meetings. It is important to state that, at no point was Lukasz' pay or status diminished.
The most recent performance review meeting is briefly described below.
Performance Review Meeting on 03/06/2015
The meeting was prompted by Leanne Shenton, Internal Sales Manager, and Ian Hateley, Technical Director.
The meeting convened to discuss to Lukasz' performance issues. It was not a disciplinary hearing. Nevertheless, it is important to state that all present recalled that Lukasz was given the option to have someone sit in on the meeting on his behalf.
Leanne explained that she felt it was hard to plan Lukasz' jobs as he did not co-operate. Leanne also raised a concern that to every job that was allocated to Lukasz, he replied with a negative comment or it had to be re-attended afterwards.
The situation in Elmdon Service Centre was that engineers and administrators believed Lukasz was very inflexible and could choose the jobs he wished to do.
Waldek, Walkowiak, Service Engineer, who was recently promoted to Installations Engineer's position, also later admitted that he has once teased Lukasz as a "lazy Romanian".
We found this puzzling but on further investigation established some Polish people feel Romanians are lazy. Waldek said it was meant as a joke.
Lukasz was offered four options:
1. Resign
2. Retrain
3. To be permanently workshop based
4. To opt for Voluntary redundancy, although this must be pointed out there was no actual redundancy. It was offered as a descent exit from the business for Lukasz."
Under the heading "Grievance meeting" the letter identifies who was present at the meeting on 11 March 2016, and records an exploration of the Claimant's intentions as to what he hoped to achieve from the grievance. The letter states that the Respondent could not accommodate his request for a settlement but could accept his resignation, retraining, offering him a different job or redundancy. Although the letter does not appear, at least expressly, to address or resolve the formal grievance he raised about Mr Hateley's conduct, it does state in terms that it is "our formal response to your grievance."
The appeal
"40. The allegations relate to conduct perpetrated, amongst others, by Mr Ian Hateley to the Claimant and may amount to part of a course of conduct by Mr Hateley in his treatment of the Claimant. Were that treatment by Mr Hateley continuous, I find it ended at the final meeting on the 3 June 2015 not long before the Claimant began a period of continuous sickness on the 26 June 2015. Complaints in relation to any such continuing course of conduct ought to have been presented within time by reference to ACAS on or before the 2 September 2015. They were not and the Tribunal does not have jurisdiction to entertain those complaints unless I consider circumstances were such that is just and equitable to extend time to allow the complaints to be presented out of time.
41. The fourth complaint in relation to race discrimination is that set out at (1A)(iv) in response to the Respondents discriminatory manner of dealing with the Claimant's grievance raised on the 30 November 2015 and in particular the meeting held on the 11 March 2016 [page 26]. In particular the Claimant alleges that at that meeting, the Respondents failed and refused to discuss and deal with the Claimant's grievance. I find that the allegation is in respect of a one-off act or omission on part of the Respondents and to the extent that the allegation is one of direct discrimination because of race, a complaint ought to have properly been raised through early conciliation with ACAS on or before the 10 June 2016 and that the Claimant's complaint is prima facie out of time unless I consider that the circumstances are as such that it is just and equitable to extend time to allow the claim to be accepted."