Case 2202845/2019 · Employment Tribunal
And v Mr L De Zoysa Rendall & Rittner Ltd Heard by: CVP — 2021
- Case reference
- 2202845/2019
- Decision date
- 17 June 2021
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Nicolle Members
- Panel members
- Ms T Shaah, Ms L Jones
Parties
2 namedClaimant
And
Key findings
Tribunal's reasoningThe Claimant worked as a concierge at Chelsea Harbour from 2013 and had transferred from Harrods under TUPE in 2017. The dispute arose after the Claimant complained about Christmas and Boxing Day 2018 pay and after an incident on 12/13 February 2019 when Ms Spence arrived early at the Belvedere, could not initially access the building, and later raised concerns that the Claimant had been away from the desk, had left the computer unsecured and had not followed logging and handover procedures. The Respondent suspended him, investigated, invited him to a disciplinary hearing and dismissed him on 10 April 2019 for conduct, including alleged time stealing and the derogatory comment he made about Ms Spence.
On the Equality Act claims, the tribunal rejected the allegation of sexual harassment, finding that Ms Spence's attire and the alleged personal-space complaint were not conduct of a sexual nature and did not amount to unwanted harassment. It also found that the Claimant had not done a protected act, because his complaints were about Ms Spence's attire rather than a complaint of sexual harassment, so the victimisation claim failed. The tribunal further rejected direct sex discrimination and direct race discrimination: it found no evidence that sex or race played any part in the dismissal, no adequate basis for the race comparison relied on, and no particulars or evidence supporting a race inference.
The unfair dismissal claim succeeded. The tribunal accepted that the Respondent genuinely believed the Claimant had committed misconduct and that there were reasonable grounds for that belief, but held that the investigation was not reasonable because the Claimant was not shown the relevant CCTV at the investigation stage, the investigation was limited, no proper report was produced, and the disciplinary invitation did not clearly particularise the allegations. It therefore found breaches of the ACAS Code and applied a 25% uplift, but also held that dismissal would probably have followed in any event after a fair process, assessing the Polkey chance at 80%, and reduced compensation by 50% for contributory conduct. The basic award of £2,500 was reduced to £1,250; the compensatory award was not finally quantified and was left for agreement or a further remedy hearing.
The unlawful deduction claim about Christmas and Boxing Day pay was found to be out of time. The tribunal nevertheless said that, had it been brought in time, the Claimant would likely have established an unlawful deduction because a custom and practice of double pay had developed over previous years and the Respondent had not given clear notice of a change.
Claims and outcomes
6 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Harassment | The tribunal rejected the allegation that Ms Spence's early arrival in gym clothing, or any alleged invasion of the Claimant's personal space, amounted to sexual harassment. It found no conduct of a sexual nature and no reasonable basis for the Claimant to treat the incident as harassment. | Dismissed | Sex | — |
| Sex discrimination | The tribunal found no basis to infer that the Claimant's dismissal was because of sex. It held that the dismissal was for conduct-related reasons, not sex discrimination. | Dismissed | Sex | — |
| Victimisation | The tribunal found that the Claimant did not do a protected act, because his complaints about Ms Spence's attire and personal space were not complaints of sexual harassment. In the absence of a protected act, the victimisation claim failed. | Dismissed | Sex | — |
| Race discrimination | The tribunal found no evidence that race played any part in the investigation or dismissal. It noted that the Claimant gave no particulars of race discrimination and that the comparator relied on, Mr Perkins, was not an appropriate comparator. | Dismissed | Race | — |
| Unfair dismissal | The tribunal found that the Respondent genuinely believed the Claimant was guilty of misconduct and had reasonable grounds, but the investigation was not reasonable and the ACAS Code was breached. It applied a 25% uplift to the compensatory award, an 80% Polkey reduction and a 50% reduction for contributory conduct. The basic award was reduced from £2,500 to £1,250; the compensatory award was not quantified in this judgment and was left for further agreement or a remedy hearing. |
Legal tests applied
10 references- s.98(4) ERA 1996
- Burchell test
- Iceland Frozen Foods v Jones
- Sainsbury's Supermarkets Ltd v Hitt
- Polkey reduction
- s.123(6) ERA 1996
- s.122(2) ERA 1996
- s.13 EqA 2010
- s.136 EqA 2010
- Igen/Madarassy burden of proof
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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