Mr J Bishweka v Lifeway Community Care Ltd: 1302101/2019 and 1302291/2020

EMPLOYMENT TRIBUNALS
Case No 1302101/2019, 1302291/2020Venue BirminghamHearing 28 July 2020
Between
Mr J BishwekaClaimantLifeway Community Care LtdRespondent
Before
Employment Judge SelfMr T Gilbart - Counsel for respondentDate 8 September 2021

REASONS

[1]The Claimant lodged his first Claim on 24 April 2019. That matter has come before me three times previously and was listed today for an Open Preliminary Hearing in order to consider whether or not any heads of claim in that Claim had been lodged outside of the statutory time limits and if so whether time should be extended because it would be just and equitable to do so. There was also an application to strike out that claim or for a deposit order to be made.[2]During the Preliminary Hearing in January 2020 it was indicated that the Claimant was to bring a second claim dealing with matters that post-dated the first claim form and that Claim was received on 7 February 2020. No Response had been received to that second claim within the appropriate time limit. At the April Preliminary Hearing the Respondent explained that they did wish to defend the Claim and wished to put in an application for a Response to be considered out of time or to put it another way to have time extended so that their Response could be considered under Rule 18 of the Employment Tribunal (Constitution and Rules of Procedure) 2012.[3]Today, therefore, the matters which I had to consider at the outset was to: a) Finalise a list of issues for the Second Claim. The issues on the first Claim have already been done at a lengthy hearing and most of the issues in the second claim have also been identified. b) Consider whether the Respondent should be permitted to lodge a Response to the Second Claim; c) Consider the jurisdictional issue of whether or not any of the first Claim’s Heads of Claim have been lodged outside the statutory time limit and if so whether it would be just and equitable to permit time to be extended. d) Consider the Respondent’s application for strike out / deposit order. e) Timetable the matter through to a final hearing.[4]These Reasons deal with my decisions in respect of the b) and c) above. It also deals with an application by the Claimant to reconsider an issue that had been determined at an earlier hearing. It does not deal with the application to strike out / for a deposit order as those were ultimately withdrawn by the Respondent.[5]In addition to this Judgment there is a separate order in which I deal with the case management aspects of today’s hearing and in which I set out the final determinative List of Issues to be considered at a final hearing.[6]Response On 7 February 2020, the Claimant brought his second Claim against the Respondent. It was addressed as follows: 144 West Bromwich Coventry West Midlands B70 6JJ.[7]The First Claim had been sent to the Respondent at 144, West Plaza, 144 High Street, West Bromwich, West Midlands B70 6JJ. That was the correct address for the Respondent and was known by the Claimant to be the correct address as it also appears on a witness statement he served for this hearing.[8]I note that the postcode was correct but the address the Second Claim was sent to by the Claimant was incorrect. No explanation was given to me as to why there was such an error.[9]I have seen an email from the Claimant’s representative to the Tribunal and into which the Respondent’s solicitor was copied and the Claim was attached to that document. I am satisfied that the Respondent’s solicitors knew that a Claim had been lodged from 7 February 2020.[10]It is not the case, especially in more recent times, for there to be an immediate response from the Tribunal to a Claim. Whilst it is to be hoped that the Claim can be processed swiftly there is from time to time and depending on the region a delay before the necessary papers are sent out to the Respondent indicating the date by which a response needs to be returned.[11]In this case, as it happens, the delay was not great and on 12 February the following was sent out: a) A letter to the Claimant acknowledging the Claim and indicating that it had been sent on to the Respondent; b) A letter to both parties (using the Respondent’s incorrect address) that EJ Johnson was considering joining both Claims together and asking for written representations on that matter by 19 February 2020; c) A letter notifying the parties that there would be a Preliminary Hearing to discuss the issues on the case on 3 April 2020 (using the Respondent’s incorrect address). This date had already been listed for a PH on Claim 1 and so EJ Johnson was anticipating no objections to joining the cases and indeed the Claimant had rightly alerted the Judge to Claim 1 and the listing date on the Claim Form, which is no doubt where the Judge got the information to do this.[12]All of these letters were contained within the bundle that was produced for the hearing and all of those letters would have been held by the Claimant. It is noteworthy in my view and supportive of the submission by the Respondent that they did not receive these documents that: a) The Respondent did not respond to the request for confirmation the claims could be heard together. b) That the ET2 Form that is sent out to the Respondent alone is not within the bundle.[13]The Respondent in their application for more time explained that they contacted the Tribunal on a number of occasions to ask about the progress of the Claim and whether it had been processed yet. They indicate that they did so on 21 February, 6 March and 31 March and were informed by members of Tribunal staff that there was nothing to indicate that Claim 2 had been processed.[14]I did not hear oral evidence from the solicitor on this point but the information she provided was reasonably detailed and there are clerks by the names she mentioned in the Birmingham Tribunal office. There are no notes on the file regarding these conversations but if the file were thought not to have been processed and not to hand then that would explain this absence.[15]I am satisfied that the Respondent’s solicitors did make these efforts to see what was going on with the Claim. I am also satisfied on the balance of probabilities that the Respondent did not receive the Response and in particular the Form ET2 which would have told them that they had to lodge a response by 11 March 2020.[16]All parties attended the hearing on 3 April 2020 for Claim 1 and I was told that Claim 2 had not been received at that time. At 4.30 pm on that same day the Respondent sent in a holding Response effectively following what had been discussed at the hearing earlier that day and setting out their application for why time should be extended for their Response.[17]On 15 April 2020, the Claimant responded in writing to that application and opposed an extension on the following grounds: a) The Claimant had emailed a copy of the Claim Form to the Respondent’s solicitor on 7 February, so the solicitors knew of the Claim; b) Pointed to various other pieces of correspondence that came from the Tribunal as detailed above; c) That the address was not incorrect as it had the correct number if not the street in which the Respondent was based, and it also had the correct postcode. It was suggested that this would be enough.[18]On 20 July 2020, the Respondent applied to amend their Response by providing a full defence to the matters that had been raised in Claim 2. In essence it was the sort of document that would have been ordered in any event so as to allow the Claimant to understand the nature of the defence to his Claim. This was opposed in the same terms as per the original Response.[19]The relevant Rule of the Employment Tribunal Rules is Rule 18 which reads as follows: 18(1) A response shall be rejected by the Tribunal if it is received out- side the time limit in rule 16 (or any extension of that limit granted within the original limit) unless an application for extension has already been made under rule 20 or the response includes or is accompanied by such an application (in which case the response shall not be rejected pending the outcome of the application).(2) The response shall be returned to the respondent together with a notice of rejection explaining that the response has been presented late. The notice shall explain how the respondent can apply for an extension of time and how to apply for a reconsideration.[20]In this case the Response was lodged out of time by around 23 days. Rule 18 itself provides no guidance as any test that should be applied in considering such applications, but I take the view that my discretion is governed by the overriding objective to deal with cases fairly and justly.[21]In a previous decision Kwik Save Stores v Swain and Others (1997) ICR 49 the EAT indicated that the process of exercising a discretion involved tak- ing into account all the relevant factors, weighing and balancing them against each other and reaching an objectively justified conclusion.[22]I accept the Respondent’s explanation that the ET2 upon which the date for a Response of 11 March was conveyed was not received by them. I note that whilst the address given to the Tribunal for service could have allowed for a delivery to be made with some thought by the Post Office there is sufficient doubt there for me to accept the Respondents contention on this point. That is supported by the lack of an ET2 in the bundle and the lack of a Response to the issue over consolidating the proceedings. I also note the prompt attention given by the Respondent within Claim 1.[23]Whilst I note the Respondent’s solicitors had been served with a copy of the Claim Form that does not amount to adequate service under the Rules as proceedings must be sent to the Respondent themselves (Rule 15). I accept that the Respondent’s solicitors acted reasonably in chasing the Claim up but were not given correct information from the Tribunal office for reasons that I am unable to discern. Hypothesising it may be that the two cases did not get linked as quickly as they ought to have been.[24]There are fully contested proceedings on foot that have had a lengthy gestation period on account of the time it has taken to properly identify the actual individual Heads of Claim. It would be absurd if the Respondent were only able to defend the first Claim when both claims are agreed by the parties as being best heard together. Only limited delay has been caused and the balance of prejudice would weigh heavily against the Respondent in denying them the opportunity of putting forward what is on the papers a comprehensive defence to the claim, especially when arguably had the Claimant put the full correct address on the Form none of these problems would have arisen.[25]Having considered all of these matters I am satisfied that time should be extended for the Response to be lodged and further that permission should be granted to the Respondent to amend their Response so that the Claimant fully understands their position. The 20 July Response shall stand as the Response in this case. Time Limits[26]Once the issue of the Response had been dealt with the Tribunal moved on to deal with the jurisdictional issue of whether or not all claims had been lodged within the statutory time limit and if not whether or not it would be just and equitable for time to be extended. First of all, it confirmed and finalised the List of issues in relation to Claim 2. Some work had been already done on them at the April hearing.[27]The Claimant’s First Claim which was received by the Tribunal on 24 April 2019. Early Conciliation had taken place between 11 February and 25 March 2019. It would appear that acts that would prima facie be in time are those dated on or after 12 November 2018 subject to any issue that may arise of conduct extending over a period.[28]The original Claim Form ran to some eleven pages and the precise issues for determination were by no means clear. On 7 June 2019, the Respondent lodged their response in which they raised a number of issues as to why the Claim lacked merit and also raised some issues in relation to some matters from 2014/2015 being out of time. No application was made by any party nor did the Tribunal of its own motion add to the issues to be determined at this hearing any points on time limits.[29]On 16 September, at the Preliminary Hearing on that day, the Respondent sought to have the time limit issue decided. The Claimant countered by indicating he had had no notice that the same was going to be dealt with and wished to prepare witness evidence in support. The notification requirements at Rule 54 had not been met in that the time limit issue had not been notified as being a specific preliminary issue to be determined at that hearing and so, absent the consent of the Claimant, that matter would need to heard on a future occasion. The Respondent agreed that it made sense to hear all of the preliminary applications together.[30]The Claimant had provided a Scott Schedule for that hearing in which he set out more details of his complaints. It transpired in the course of discussion that the Claimant had more to add and I permitted him time to finalise the list. There was then produced a document headed “Claimant’s Final Particulars of Claim” which identifies the acts complained of, refers back to the Claim Form and provides particulars of them. The Respondent indicated that it wished to have time to consider the document in full and they would then draft a request for further particulars with a view to the issues becoming finally clear.[31]The next Preliminary Hearing was listed for January 2020. There was a request for further and better particulars drafted which were answered all be it not in the track change format that was requested. A schedule of deficiencies was also lodged by the Respondent in relation to the further particulars offered.[32]The net result of all of the above was that is that there was a proliferation of paperwork in which the Claimant was seeking to enunciate his claim. The primary task at the January PH was to ensure that the issues in respect of the claim that had been lodged already were agreed and fully understood. The methodology for that was to go through a Scott Schedule of the Claimant headed “Claimant’s final Particulars of Claim” dated 16 September 2019 with both parties in order to check that the matters raised therein had been properly raised within the original claim form or was a further particularisation of what had been drafted and if the matters therein were considered to require an amendment to the Claim Form then that application would be dealt with.[33]That task was exceptionally time consuming as there was a need to ensure that the issues in the case (as originally pleaded) were understood and agreed by the parties so that a line could be drawn under them and the matter could progress. That task was achieved, and a List of Issues produced as a result of discussion with the parties and agreement by them in the vast majority of areas. Where required I made decisions in relation to applications to amend, some of which went in favour of the Claimant and some of which went in favour of the Respondent.[34]There was one area of the document that was not clarified at that hearing and that was the matters raised in box 4 of the Scott Schedule which stated that between 2014 and 22.11.18 the Claimant had “inappropriate work assigned and the Respondent failed to provide adequate support to the Claimant, gave him unsatisfactory appraisals, made unjustified criticisms of him and excluded him from projects”. That is reflected at paragraph 9 of the Claimant’s claim form. The Claimant was unable to provide any specific particulars to support what is a very broad allegation both factually and temporally and I determined in January that whether this part of the claim proceeded and if so what the particulars of it were would need to be considered at the April Preliminary Hearing in a similar fashion to what had taken place on that day in January. I expressed the view that both parties should focus upon what their positions were for this part of the Claim.[35]In addition, there was an application to amend by the Claimant so as to include matters that have post-dated the submission of the original Claim Form and I decided that matters would be best served by the Claimant issuing a second claim which could then be joined.[36]The Open Preliminary Hearing in April was converted to a Telephone Hearing on account of the restrictions imposed by the pandemic. That meant that the time limit issue could not be determined on that day. There was still progress that could be made, and I determined that it would still be appropriate for an Open PH to be held in the future and that is today’s hearing.[37]Within the Order from the last hearing is the following extract from the Background section: “From the last hearing a List of Issues had been produced which is set out in that Order. There was one part of that Claim which remained to be considered today which was a suggestion that between 2014 and 22.11.18 the Claimant had certain detriments to which he was subjected and that was reflected at paragraph 9 of the Claimant’s claim form. I raised that matter today and the Claimant’s representative indicated that there were no more issues to identify and that the List of Issues set out in the previous Order could be deemed to be the definitive list for that first claim”.[38]I then went on to determine the vast majority of the issues from the second Claim and relisted for this Open Preliminary Hearing.[39]I have recounted that background in some detail as an issue arose during the time limit application. Dr Ibabakombo, during the course of his submissions, sought to utilise the matters that were the subject of that discussed at paragraph 37 above to try and assist his submissions that there was a continuing course of conduct which meant that all claims could be brought. I pointed out to him the part of my previous order in which I recorded his concession that he did not wish to particularise those claims and that accordingly they were not going to be dealt with on this claim.[40]Dr Ibabakombo denied that he had undertaken that course of action. Counsel for the Respondent reviewed their note and confirmed my recollection of it. I was quite satisfied that the Order which I had drafted adequately reflected what had been said on that last hearing as I had a clear recollection of the same.[41]Dr Ibabakombo asked that I reconsider that position. What is the position that I am being asked to reconsider? It seems to me that the matters under debate were withdrawn by the Claimant at the April hearing as defined in Rule 51. Under Rule 52 I should have dismissed that part of the Claim as neither of the two exceptions apply. I did not do so at the time.[42]The fact that I have not done so to date makes no practical difference because the wording of Rule 51 makes it clear that the part of the Claim withdrawn comes to an end. The Claimant through his representative effectively asked me to revive this part of the Claim. I declined as I did not consider it in the interests of justice to do so nor did I consider that it was in keeping with the overriding objective.[43]This is an old claim, and the Claimant has had numerous opportunities to precisely identify the heads of claim he wishes to rely upon. That has taken much time and many hearings. Indeed, as we started this application we had a full and definitive list of issue from both claims which, assuming that the first occasion when they could have been set out was when the Claim Form was sent in, has taken approximately 16 months and four hearings to do. That List of Issues is a substantial one and covers a wide range of allegations over a substantial period of time.[44]The Claimant did not today have a list of the specific acts that he wished to complain about between 2014 and 2018 identifying the date of each act and also the alleged perpetrator. Indeed, the Claimant’s representative indicated to me that he would not be able to produce such a document.[45]There is a time when, in my view, enough is enough. The Claimant has been extended a substantial amount of latitude and has a claim that should establish quite clearly whether those with whom he works and who manage him are liable for acts of race discrimination. To permit the Claimant to go behind a clear and unequivocal indication to the Tribunal that certain matters were not going to be particularised and not relied upon as acts of discrimination would not be just and equitable or fair on the Respondent and the prejudice and cost for them of having yet another hearing to detail the issues cannot in my view be justified.[46]Whilst a lay representative Dr Ibabakombo has regularly represented Claimants in cases such as these including in front of myself and I am satisfied that he knows how things work and that he made a conscious decision at the previous hearing not to provide the details of those claims requested and that he did so on instruction. Further expense and delay would follow the request to reinstate that which had been withdrawn and I reject the application.[47]Moving on to the issue of time limits in Claim 1 the issues to be determined were as follows. The Claim was lodged on 24 April 2019 and Early Conciliation had taken place between 11 February 2019 and 25 March 2019. It follows that any claim prior to 12 November 2018 would need to be considered in the context of the statutory time limits.[48]Under the Equality Act the issue of time limits is contained within section 123. That provision so far as is relevant is as follows: (1) …. proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the com- plaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.[49]In the January 2020 Order thirty-four separate acts of detriment were identified. Some of those (xviii, xix and xxiv – xxxiv) took place after 12 November 2018 and so have been lodged in time and can be heard on their merits. The issue for me to consider is whether or not I am able to determine that the other matters that predate 12 November constitutes “conduct extending over a period” when considered with those matters that have been lodged in time. There are some cases where that can only be properly determined at the final hearing.[50]Often the consideration of continuing acts is a difficult one, particularly on a Preliminary Hearing. In this case that is not the case because of the very clear differences between early allegations and those later on. Allegations (i) to (ix) inclusive and (xvii) relate to allegations against Mr Mulugeta between April 2014 and December 2015. Allegations (xx) to (xxii) relates to the alleged inadequate conduct of grievances at that time. These allegations are quite clearly selfcontained in respect of allegations of mistreatment and then grievances raised in respect of the same between a time period that ends around three years before claims within the time limit are made. Those claims are historical, and I can see no link with those claims made later on. These claims have been lodged out of time and I will consider whether they should be permitted to proceed in due course on the just and equitable ground.[51]Claims (xv and xvi) are said to have taken place in 2015 according to the Respondent or July 2017 according to the Claimant. Although I have heard no evidence on the point I will err on the Claimant’s dates for the purposes of this hearing. Again, these allegations are over a year before the claims that commence in 2018 and run into the in-time period. I do not consider that they can act as a bridge for the earlier claims or that they can themselves properly be said to be part of an act extending over a period. There are no allegations that otherwise commence until August 2018.[52]So far as the other claims that may be out of time (x) to (xiv) and (xxiii) I see that they are far closer temporally and I am prepared to allow these claims be considered as to whether they are in time or not at the final hearing.[53]I have considered whether it would be just and equitable for time to be extended on the matters deemed out of time at paragraphs 50 and 51 above. In evidence the Claimant asserted that he did not bring a claim because he did not wish to ruin his career. The Claimant was prepared to raise internal grievances about his treatment and indeed asserts that he made a complaint that constituted a protected act back as far as 2014. I do not accept that he did not bring a claim because of concern and that does not provide an explanation. The matters which have been deemed out of time are very old complaints and I am of the view that the Respondent would be unduly prejudiced if they were allowed to be pursued. The Claimant still has a substantial claim against the Respondent and on balance I do not consider that it would be just and equitable for time to be extended and indeed the Claimant has given me little material from which I could conclude that it would be just and equitable for time to be extended.[54]Accordingly, I will redraft the issues removing those matters that have been ruled as being out of time, but I will keep the numbering of claims the same for the sake of consistency.

Findings of Fact

[55]When Mrs York received the letter, she did not treat it as a formal grievance, which was unsurprising given the Claimant’s reference to dealing with the issue “quickly and amicably”. The claimant’s case before us was that this was a formal grievance. That proposition was clearly wrong.[56]On 12 October 2018, Mr Mulugeta told the Claimant that a rota he had submitted required amendment because he had put himself down to work a 17-hour shift [334]. We thought this was very telling because despite the verbal warning, the Claimant was determined to continue working excessive hours, and had no intention of following Mr Mulugeta’s instructions.[57]Mrs York investigated the Claimant’s allegations. She replied on 18 October 2018 [340-342]. She stated that when she met the Claimant on the 5 October, he confirmed that his complaints should be dealt with informally. Her findings were: that Ms Sandhu’s presence at the supervision meeting was not a breach of the respondent’s Supervision Policy; that the Claimant was informed Ms Sandhu would be attending; and that he had agreed that there could be future meetings with notetakers present. She then dealt with a complaint about timeframes not being made clear in the action plan. She said there was a clear and detailed action plan with timescales. She said that despite the warning, the Claimant had continued to work excessive and unsafe hours. Mrs York reiterated that he must not exceed the limit on hours that had been set, otherwise he could face disciplinary action. She said there was no right of appeal against an informal warning under the Respondent’s policy. She went on to say that the Claimant had asked her to attend the next supervision as an observer and that she would do so. She concluded by saying that the Claimant had agreed that his written complaint needed no further action.[58]She went on to discuss what she described as “discrimination and unfair practices against you”. She said, “You raised concerns that your line manager is not treating you in the same way as the other Team Leaders working in the area. I reminded you that you have no evidence to make a claim that you are being treated differently and you do not have access to the other Team Leaders’ supervision notes. The other Team Leaders are not working excess and unsafe hours, however there is clear evidence that you are working unsafe hours and your line manager has and continues to take responsible steps to support you to reduce your hours to keep you and the people you support, safe. We reviewed electronic communications between you and your line manager as well as your supervision records and we could see no evidence of discrimination. You confirmed the conversations you had with your manager which were followed up by an email and that the email was a true reflection of the conversations.” She then said, “I reminded you of the procedure to follow should you still, or in the future, feel discriminated against”. She provided him with a copy of the grievance policy. Mrs York concluded by saying, “I strongly advise that when you make a claim of discrimination, that you present facts to back up your claim. You agreed this was an unfair complaint. We agreed that this complaint needs no further action”.[59]In summary, and despite the arguments made on behalf of the Claimant during the hearing before us, it was clear that Mrs York did not deal with a formal grievance, and the Claimant did not ask for his concern to be dealt with formally. The issues were resolved at the time and the Claimant agreed his complaints should not be taken further. He specifically chose not to pursue a discrimination claim about unequal treatment by comparison to other Team Leaders.[60]There was a supervision meeting on 21 November 2018 which was attended by Mrs York, as requested by the Claimant. That meeting was referred to in some of the allegations we had to determine.[61]There was an allegation that notes were typed, rather than being handwritten using the pad referred to above. Mr Mulugeta explained that in advance of the meeting he had prepared a typed agenda which he filled in by typing the matters that were discussed under each item. Mrs York confirmed that evidence. The Claimant appeared to suggest that the meeting did not take place in the way described in the minutes, but we did not accept that and preferred the evidence of Mr Mulugeta, Mrs York and the typed record [344A-C].[62]The first point discussed was that the Claimant had not addressed the communication issue and was not using the respondent’s email system to forward information to his team. He said he would respond the next day if an email was sent to him using that email account. Next, Mr Mulugeta raised concerns about rota management and the Claimant’s shift patterns, pointing out that he had set a limit of 12 hours for a shift, and that the total working week should not be in excess of 48 hours. The Claimant disputed that and said it should be a 60-hour week. Mrs York said that the cap was being put on the Claimant’s overtime because he had not complied with what had been set up for him by Mr Mulugeta in the last meeting. The Claimant asked why this only applied to him, and Mr Mulugeta replied that this was because his shift patterns were not safe. He also said that because the Claimant was a Team Leader, he should not work night shifts Monday to Friday and should instead work on day shifts. There was then a discussion around various issues involving one of the properties the Claimant worked at (it was not material for these purposes). Towards the end of the meeting the Claimant said he felt that he had not been treated fairly and asked what was being done about his complaint. Mrs York responded by saying she had looked into the complaint and could not find any evidence, so there would be no further action. It was recorded in the minutes that the Claimant then said, “I really can’t cope with all this stress, I think I need to step down”. Mr Mulugeta replied that he accepted the Claimant’s verbal resignation, but that he seemed to be emotional and needed to go home and reflect on the discussions that had been had that day”. When the Claimant returned home and told his wife what had happened during the meeting, she urged him to withdraw his verbal resignation/stepping down.[63]One dispute we had to determine was whether the Claimant verbally resigned from employment altogether, or stepped down from being a Team Leader. We concluded that the latter was more likely because of the use of “step down” in the minutes. Either way, ultimately, he was never required to return to the position of Support Worker and remained a Team Leader. Also, following further investigation (see below) it was decided that the claimant’s verbal reaction in the meeting should not have been accepted at the time because it happened during the heat of the moment. This was a point which both Mr Mulugeta and Mrs York acknowledged when they gave evidence to us. It is, of course, good employment practice, to allow an employee time to properly consider their position.[64]The matters described above were the subject of a formal grievance which was investigated by Mrs Heath – the “February grievance”. We shall interpose part of that investigation because it sheds light on Mrs York’s perspective as an observer of the meeting. In a note made by Mrs Heath during her investigation meeting with Mrs York, Mrs York confirmed she was made aware that the Claimant was working excessive hours by Mr Mulugeta, and that she had reinforced the need to adhere to Mr Mulugeta’s instructions when she spoke to the Claimant. She was asked about what had taken place during the supervision meeting. She replied that the Claimant seemed annoyed from the beginning and that Mr Mulugeta did not respond to that (we took this to mean that his behaviour did not escalate the situation). Mrs York said the Claimant was shouting at times, and that she had asked him to be quieter because they were in the home of a service user. She said the Claimant was very defensive. She said that the Claimant had alleged Mr Mulugeta was racist and Mr Mulugeta had asked him to explain, but that the Claimant did not do so. She then asked him to explain, but he did not. She said that he sat quietly for a time and then said he wanted to “step down” [460-461].[65]We shall now return to the aftermath of the meeting. Mr Mulugeta sent an email to the Claimant that day (21 November 2018) saying he accepted the verbal resignation to step down from the position as Team Leader. He said that as from 1 December 2018, the Claimant would be working as a Team Leader based at a different address and reporting to Mr A. Chikosi.[66]One of the allegations refers to Mr Chikosi. We shall find facts about it at this point, although it interrupts the chain of correspondence. We record the following facts. Firstly, Mr Chikosi was not a Team Leader, he was a Support Worker at the address Mr Mulugeta said the Claimant should transfer to as a Support Worker. Secondly, Mr Chikosi was not asked to act up as a Team Leader - he was a member of staff who Mr Mulugeta had asked to be a point of contact during that period of time because there was no Team Leader due to the Claimant’s stepping down (as he saw it). Thirdly, Mr Mulugeta had accepted the Claimant’s statement about stepping down, which caused him to send the email referred to in paragraph 65. Finally, Mr Chikosi was about ten years younger than the Claimant. There was a claim of direct age discrimination in relation to the suggestion that the Claimant should report to Mr Chikosi. We had some difficulty understanding the age discrimination complaint. In his evidence, the Claimant said he believed in Mr Mulugeta was suggesting that at his age he was not able to do the role of Team Leader whereas Mr Chikosi (who was younger) could. As we have already noted, Mr Chikosi was not a Team Leader and ultimately the Claimant was not required to work as a Support Worker or demoted to that position.[67]We shall now return to the correspondence which followed the supervision meeting. The Claimant replied to Mr Mulugeta (see paragraph 59) saying that Mrs York had given him a week to think about his decision [345]. On the 22 November, Mrs York became involved in the email chain, saying that she had not mentioned anything about being given a week to think about stepping down, but had asked him to think about the discussions that had taken place. She stated, “Your verbal request to step down was accepted during this meeting by Mr Mulugeta” [346].[68]The Claimant sent a letter to Mrs York on 26 November 2018 stating that the reason he told them that he was thinking of resigning during the meeting, because he was not getting management support and/or that she was failing to stop Mr Mulugeta’s abuse. He stated that he wanted to formally retract his verbal intention to resign. He also said he had been approached by Mr Mulugeta to ask him to transfer to being a Support Worker. He stated that he wanted to formally retract his verbal intention to resign [347].[69]The Claimant then made reference to a contravention of his rights under Section 13 of the Equality Act 2010. He said that if he received formal confirmation that she would not be able to provide management assistance, he would seek legal advice. He referred to being bullied, harassed, and unfairly treated by Mr Mulugeta throughout his employment. He said he had been racially discriminated against on grounds of his National/Ethnic origin which he described as “Rundian”. He referred to other sections of the Equality Act [347].[70]Mrs York replied the same day, saying that the verbal resignation had been accepted and confirmed in an email by Mr Mulugeta, and that the retraction was not accepted. She attached a copy of the grievance policy saying that if the Claimant wanted to make claims that Mr Mulugeta was abusive and racist or that he was being bullied and harassed, he would need to raise a formal grievance [348].[71]Also on the 26 November 2018, the Claimant wrote to Mrs York accusing her of victimising him by refusing to allow him to retract his resignation. He alleged that she was not prepared to provide management support to stop what he described as, “Mr Mulugeta’s racial abuse on the grounds of [the Claimant’s] national origin” [349].[72]At that point, Mrs York decided she could have no further involvement in the matter because it appeared that there was a grievance against her.[73]On 27 November 2018 the Claimant wrote to what he described as “the Lifeways Area Manager” saying that he wanted to lodge a formal grievance under the Grievance Policy. He raised numerous issues. Firstly, he requested an explanation about why the words he said in the supervision meeting had been interpreted as a resignation. His account (in the letter) was that he had “said [he] was thinking of resigning from employment if he did not get management support from Mrs York and/or or she failed or refused to stop Mr Mulugeta racially abusing [him] because of [his] national origin”. Secondly, he asked for the reason why the retraction was refused, alleging that Mrs York and Mr Mulugeta had pushed him to resign from the business; and that Mrs York had not taken reasonable steps to provide management support, or stop racial abuse of him. Thirdly, he asked why Mrs York had not considered the content of his letter of 18 September 2018 (which he now described as a grievance letter). Fourthly, he alleged that he had not been given a grievance outcome. Finally, he stated that he wanted to continue as a Team Leader. So, at this point, it was completely clear that there was now a grievance against Mrs York as well as Mr Mulugeta. This became the “February grievance” [349]. For the reasons set out in the preceding paragraphs, we did not accept the Claimant’s account of the meeting, or his description of the letter dated 18 September 2018 as a “formal grievance”, were accurate.[74]We shall now turn to a discrete point in the chronology, because it was the subject of some allegations. On 1 February 2019, Mr Mulugeta was informed by a member of staff in the Claimant’s team, that there was a safeguarding issue in connection with a service user (referred to in these reasons as “X”) who had lost quite a substantial amount of weight over a short period of time. His evidence was that he immediately went to the property to investigate this. He inspected the relevant weight chart and recorded a weight for X that day [371E]. He emailed the Claimant (copied to Mrs York), stating that the Claimant had visited X on 28 January and checked their weight on the monitoring chart and that it was recorded to be 58 kg. He said the weight on 1 February was 53.9 kg and that, “Either the record is not right, or X has dropped nearly 5 kg over four days. The bottom line is his support plan states that [X] should be supported to consume highly nutritious foods” [371B]. The weight chart showed X’s weight on 1 February 2019 as being 53.9 kg which, by reference to the chart, was a loss of about 5 kg. The chart had signatures against the weights, some of which were those of the Claimant and the Support Workers in the house where X lived. The signature for the weight on 1 February was that of Mr Mulugeta. This issue resulted in an investigation (see below).[75]During cross-examination, the Claimant’s representative highlighted the first two entries on the chart dated 26 September and 9 October 2018. Mr Mulugeta was asked who was responsible for the fact that there was almost a two-week gap in the records. Mr Mulugeta explained that that it was the Claimant’s responsibility as Team Leader to check that the weights were being monitored more regularly than that, and that he only became involved when a concern was brought to his attention. It was not clear how this line of questioning assisted the Claimant’s case.[76]Mr Mulugeta said he had no choice but to report the issue because it was a potential safeguarding concern, but that he had no further dealings with it. The investigation was carried out by Miss Victoria Everett (a manager). She invited the Claimant to an investigatory meeting, but he refused to do attend in person. The Claimant was suspended on full pay until the investigation was concluded. The Claimant made written representations to Miss Everett [380-381]. He alleged that he was being unfairly and unreasonably treated for raising grievances of race discrimination, and that this was what had led to his suspension. He put forward various points about the difficulties in weighing X. He said that as a committed Christian with a disabled wife, that he would not neglect a vulnerable person. He took issue with the description of his refusal to attend the investigation meeting being described in the suspension letter as insubordination, and stated that he knew the difference between a reasonable management request and an unreasonable management request. After concluding her investigation into X’s weight loss, Miss Everett concluded that the Claimant had no case to answer.[77]The Claimant was informed of the outcome, He was told the suspension was lifted and that he could return to work, but he did not do so then, or at all.[78]One of the allegations before us was that Mr Mulugeta had caused the investigation to happen. We concluded that it was evident that this was not the case. He behaved as expected, given the safeguarding concern. This was a point which the Claimant appeared to accept when being crossexamined. However, the allegation was not withdrawn.[79]We shall now return to the grievance referred to in paragraph 73 (“the November grievance”). As already stated, it was by letter sent 28 November 2018 [354]. It was acknowledged by Mrs York on 28 November [354A]. She said an independent panel would deal with it. On 6 December, Miss Mountford informed the Claimant that Ms Michelle Smith (Area Manager) would be investigating it, but was on annual leave [355]. On 27 December 2018, Ms Smith wrote inviting the Claimant to a grievance hearing on 3 January 2019 ]356]. He was informed that he could bring a Trade Union (“TU”) representative or work colleague [356]. He replied to say that he had been unable to arrange for a representative. He confirmed that he wanted a representative to be present. He later proposed 19 January 2019, but this was not convenient for Ms Smith or Ms Mountford. A date of 6 February 2019 was agreed [358-9], Ms Smith wrote on 10 January 2019, inviting the Claimant to a meeting on the agreed date of 6 February 2019 [357].[80]Present at the meeting on 6 February 2019 were: The Claimant; his TU representative; Miss Mountfield (who in fact chaired the meeting); and Ms Smith who took notes. The Claimant wanted to introduce allegations dating back to 2014/15, but Miss Mountford said that she was only dealing with the present grievance because historical allegations should have been raised at the time, not five years later. The Claimant did not accept that Mrs York had dealt with his complaint informally, or had informed him of the informal outcome. Most of the discussion was taken up with the Claimant seeking to raise historical issues, and Miss Mountford confirming that she was responsible for hearing the November 2018 grievance. The notes (signed by the Claimant) record that he raised his voice several times. The meeting lasted for about 90 minutes, but the November grievance was not actually discussed because the Claimant would not accept that earlier matters could not be introduced. Miss Mountford adjourned the meeting so that the Claimant could meet his TU representative separately. She informed the Claimant he had seven days to confirm how he wished to proceed, and that this would be confirmed in writing [See minutes at 361-366]. In her evidence, Miss Mountford said it was quite frustrating that she could not convince the Claimant he should focus on the content of the letter.[81]The request to confirm how he wished to proceed was confirmed in writing by Miss Mountford by email that day [366A]. The Claimant responded by letter dated 8 February 2019. There were two versions of the letter. We were told the correct version was at pages 367 to 369. In summary, he “invited” Miss Mountford to be “independent and impartial”; disputed the events pertaining to the November grievance; and claimed there was a cover up of race discrimination dating back to 2014/15. Miss Mountford replied on 12 February, summarising the points raised by the Claimant, and asking him to confirm how he wished to proceed with the November grievance by 13 February [370]. The Claimant replied by letter dated 19 February, alleging that Mrs York had racially discriminated against him by not giving him an outcome letter, and choosing to deal with him complaint informally [372]. He said he did not agree with the outcome, and asked for a stage 1 (formal) meeting to discuss the complaints he made to Mrs York in September 2018 [372-3]. He asked for quite a lot of evidence in respect of Mrs York’s investigation (i.e. evidence he thought should have been generated), such as CCTV footage. Miss Mountford replied on 21 February 2019 at 07.47, confirming there was no right of appeal against Mrs York’s outcome letter, because it was dealt with informally. She stated that the Claimant still had not clarified his intentions regarding the November grievance, and gave him until “the end of play today” to reply. [376-7]. In the hearing before us, the Claimant produced a letter allegedly sent to Miss Mountford the day before (19 February), stating that the November grievance should be addressed using the respondent’s grievance policy [375]. Her evidence was that she did not receive it. We concluded that the letter was not a genuine, contemporaneous document.[82]On 20 February 2020, the Claimant lodged a formal grievance about Miss Mountford by letter addressed to “the HR department”. He alleged that her handling of his complaints was a continuing act of race discrimination and victimisation, and that she was, “protecting acts of race discrimination by Mrs York”, all of which concerned the September 2018 complaint and informal outcome, which he now stated should have been dealt with formally [378-9].[83]In short, having complained about Mrs York and Mr Mulugeta a by bringing a formal grievance (“the November grievance”), the Claimant now brought a formal grievance about Miss Mountford (the “February grievance”), which meant that she could not be involved in progressing the November grievance. This pattern, together with characterising actions by everyone who dealt with his complaints and grievances as direct race discrimination, harassment, and victimisation, continued going forward.[84]At this point, we thought it useful to summarise the timeline of events other than the grievances. As noted above, in March 2019 Ms Everett concluded her internal investigation [397A to E]. Efforts were then made to arrange the Claimant to return to work, but the Claimant would not attend a Return to Work meeting, instead he applied for a career break by letter dated 18 April 2019 [423-4]. He never returned to work, and further findings over the career break issue are set out below at convenient points.[85]On 21 March 2019, Ms Julie Nightingale (Head of Employee Relations) invited the Claimant and his Trade Union Representative to a meeting on 11 April to discuss the February grievance. She said that Mrs Heath would chair the meeting and she would be the note taker. The letter contained a summary of the grievance which was as follows:(1) Bullying and harassment on grounds of race;(2) a systematic campaign of harassment by Mr Mulugeta;(3) failure by previous and the current Area Manager to prevent this;(4) race discrimination in respect of the way grievances were managed; and (5), Mrs York had not taken reasonable steps to provide management support and stop Mr Mulugeta’s racial abuse on grounds of national origin. The issue over the Team Leader position was summarised as follows: (1) a disagreement over whether the Claimant had resigned from that position; (2) acceptance of the resignation; (3); refusal to allow retraction; and (4), being pushed by Mrs York and Mr Mulugeta to resign from employment. The letter also raised further issues. These were: (1) being instructed not to work more than twelve hours per day; and (2), a number of complaints about supervision meetings; (2)(a) a third party in attendance; (2)(b) not being given timescales to improve; and (2)(c), not being given an opportunity to explain his position). The letter also summarised the grievance process from the October grievance being raised to the meeting on 6 February 2019 [398-400].[86]The grievance meeting took place on 11 April 2019. The notes recorded that the Claimant was happy with the way his grievance was summarised in the invitation letter. The Claimant raised issues dating back to 2015 and named members of staff at that time who he said would support his account of Mr Mulugeta’s alleged behaviour. The notes were lengthy, and were later sent to the Claimant [406-412]. The Claimant sent additional information about two people he had said were witnesses to the historical allegations referred to during the meeting on 16 April 2019 [413].[87]The first Claim Form was presented on the 24 April 2019.[88]We shall now return to the career break. Part of the reason the Claimant gave for applying for a year long career break was that he wanted to focus on his Employment Tribunal proceedings. He later raised personal circumstances. His case before us was that as a result of the investigation into the concern about service user X, his wife asked him to leave the family home where they lived with their seven children in case the police came round to carry out an investigation.[89]Mrs Heath dealt with the career break issue as well as the grievance. She wrote to the Claimant setting out the principles applied by the Respondent.[90]There are a number of points to make about the career break. Firstly, the decision is at the Respondent’s discretion and is dictated by operational needs. Secondly, Mrs Heath said the Claimant’s request was a very unusual - it was the first that she dealt with during her career with the respondent. Thirdly, a year was much longer than expected and would create operational difficulties.[91]Initially the career break was refused and the Claimant then sought to appeal although there was no right to appeal because it was a discretionary decision. Mrs Heath took into account his further representations and eventually agreed he could take a year. She made it clear that there was no right to return to work in the same place and that if the Claimant did not return to work at the end of the career break, he would be deemed to have resigned [the policy is at 279-280]. The Claimant told us that during the career break he took out a loan to study a Master’s degree, which was a two-year course. We shall return to what happened about the career break when it was due to end, at the relevant point in the fact finding.[92]We shall now return to the grievance. As already noted, Mrs Heath allowed the Claimant to provide information about the allegations dating back to 2014/15. She did her best to investigate them. This is why, although they are not allegations we had to determine, they became part of the evidence presented to us. We shall record the historical allegations and the steps taken by Mrs Heath in respect of them next.[93]The Claimant alleged that on 31 July 2014, when he had been asked to go and cover another service, but said he was unable to, Mr Mulugeta shouted at him which caused him to leave the office in tears. He told Mrs Heath he spoke about it to a staff member called Christother (sic) Jena, and also reported it to the Area Manager, Ms Sue Salis. The Claimant also alleged that around that time there was an issue about transport over the Christmas period for staff. He alleged he was not told by Mr Mulugeta that the Respondent would pay for staff to use taxis. He also alleged that he complained to Ms Kaur about Mr Mulugeta (the email exchange about this has already been referred to). The Claimant alleged he was not happy with the outcome and continued to feel harassed working with Mr Mulugeta. The Claimant also alleged that he was suspended because of an error over medication. The Claimant told Mrs Heath about the alleged Timbuctoo comment and said Mr Mulugeta thought French-speaking African people were arrogant. He alleged he complained about that those comments to Ms Salis and received an apology from Mr Mulugeta. He told Mrs Heath that a member of staff called Mr Edmar Bango was present when the Claimant was being bullied by Mr Mulugeta. Mrs Heath later contacted staff named by the Claimant in relation to the 2014/15 allegations who were still employed by the Respondent. As described below, she conducted telephone interviews with them but did not find anyone who corroborated the allegations of race discrimination or harassment. Some of the people she spoke to told her that the Claimant did not have a good working relationship with Mr Mulugeta.[94]There was another grievance meeting on the 22 May [251-257]. Mrs Heath asked for a list of people to be included in the investigation. The Claimant identified the following people as having witnessed Mr Mulugeta bullying him and/or making racist remarks: Mr Christopher/Christother (sic) Jena; Mr Edmar Bango; Mr Ennie Runganga, Mr Toshwa Denis; Mr/Ms Farai Bako; Ms Gift Moffat: Ms Pauline Chigoma; Ms Corneille Tosingila; Mr Pierre Gwavala; and Ms Freweni Zerai [451].[95]Mrs Heath then asked the Claimant about the parts of his grievance relating to the Team Leader position/alleged resignation; being instructed to only work twelve-hour shifts; and the issues around supervision meetings and timescales to improve. There was also a discussion about communication i.e. whether the Claimant could access the Respondent’s email system on his mobile phone. He said that he could not, and characterised Mr Mulugeta’s action in sending work emails to his personal email address as harassment. The Claimant said he was not prepared to use his own laptop for work emails because his family had access to it. There was then a discussion about the September grievance, which was dealt with at an informal level by Mrs York. The Claimant was also asked when he had seen the outcome letter, and said this was not until the meeting on 6 February 2019 (which we did not accept). The Claimant was asked how many grievances he had made, and he replied “two”. This reply was significant in relation to the disputed documents.[96]The Claimant also raised the investigation about service user X. Mrs Heath said there was a statutory obligation to investigate, which the Claimant appeared to accept. He said the suspension letter was intimidating and had led to his wife becoming upset and a breakup of their family.[97]Mrs Heath agreed to review the documentation and carry out interviews. The meeting was lengthy [451-457].[98]Mrs Heath started the investigation immediately. She had a meeting with Ms Sandhu during which Ms Sandhu said that at the supervision meeting she attended on 12 September 2018, the Claimant raised his voice but Mr Mulugeta remained calm, and that she felt her presence was necessary to prevent escalation [458-9]. On 24 May 2019, Mrs Heath held a meeting with Mrs York. Her account was as already described [460-461]. Mrs Heath did not interview Mr Mulugeta straight away because he was on annual leave, but later held a meeting with him during which he denied the allegations of bullying, racism and harassment, and denied making the Timbuctoo comment or saying French-speaking Africans were arrogant. Mrs Heath interviewed Miss Mountford on 10 June 2019. Miss Mountford said the Claimant was difficult and aggressive and only wanted to discuss the 2014/15 allegations. She also said that the Claimant had been aggressive to his TU representative. She observed that there was nothing in the November grievance letter relating to the historical allegations [462-463].[99]As regards the 2014/15 allegations, Mrs Heath spoke to staff who were still employed. She had telephone discussions with Mr Ennie Runganga and Mr Edmar Bango, neither of whom made reference to the “Timbuctoo” comment or the “French speaking African people being arrogant” comment. Mr Edmar Bango did say the Claimant and Mr Mulugeta argued a lot. Mrs Heath spoke to Mr Christantus Nith on 21 June 2019 [499C]. He was asked about being a witness to an alleged incident between the Claimant and Mr Mulugeta. He said his only recollection was when Mr Mulugeta had visited the house and asked the Claimant if he completed an assignment. The Claimant said he had, but it later transpired that he had not. This led to a telephone call (which was in speaker phone) from Mr Mulugeta to the house. Mr Nith was asked if Mr Mulugeta was rude or aggressive. He replied that Mr Mulugeta was not happy that the Claimant had not completed the task, but was not rude. Mr Nith said the call was “uncomfortable”. He also said that Mr Mulugeta was responsible for ensuring the paperwork relating to the assignment the Claimant was tasked with, was complete [499C].[100]Mrs Heath was unable to contact Ms Salis, Ms Kaur and the other people mentioned in paragraph 94, because they were no longer employed by the Respondent.[101]Mrs Heath checked the Claimant’s personnel file for evidence of any allegations made regarding 2014/15. There was none. She was the third person to check.[102]Having completed the investigation, Mrs Heath sent an outcome letter on 16 July 2019 [500-512]. To summarise, she set out all of the documents reviewed in respect of each group of allegations. This included the personnel file; various supervision records; email correspondence; and correspondence about the two grievances. Mrs Heath stated that the instruction to work 12 hour shifts was because of unsafe working hours and the responsibility to ensure time was managed appropriately and legally. She concluded there was no evidence the Claimant was singled out, and the request was reasonable in light of the hours the Claimant was working [465-466]. She upheld the part of the grievance about using the Claimant’s personal email address and said he had now been provided with the facility to access the Respondent’s email system. She added that when the Claimant returned to work, there would be a discussion about how to use his off-rota time to the best effect [466-467]. She did not uphold the Claimant’s allegations about the grievance processes in September and November 2019 and February 2019 [466-469]. Mrs Heath recommended that when the Claimant returned to work, he should meet Mrs York because it was inappropriate for Mr Mulugeta to continue to be his line manager due to an irreconcilable breakdown in their working relationship. She also stated that the Claimant had behaved inappropriately and had failed to act reasonably and professionally to colleagues, and that this would be further discussed on his return. The Claimant was told there was a right to appeal, and that any appeal should be within seven days of receipt of the letter, and sent to Ms Caroline Forty, Head of HR Operations [470].[103]The Claimant lodged an appeal on 2 September 2019 [475-484]. In summary, the appeal was a complaint about how Ms Heath had not properly investigated his allegations, the tenor of which was that he was appealing against any findings that were not in his favour, and that her actions were a cover up of race discrimination. We shall deal briefly with various arguments made on behalf of the Claimant. Essentially, he tried to demonstrate that the investigation by Mrs Heath was not sufficiently thorough. The Claimant’s case was that she should have interviewed more staff regarding the 2014/15 allegations. We rejected that proposition – she interviewed those staff who were still employed by the respondent, which was more than reasonable given that the Claimant did not allege race discrimination at the relevant time. It was also argued that conducting some interviews by telephone rather than holding a meeting was flawed. We did not accept that. In short, we concluded that Mrs Heath’s investigation was thorough, fair, and balanced.[104]Before returning the grievance appeal against Mrs Heath’s decision, we shall touch on the career break issue. As noted above, at the point of lodging the appeal, the career break had not been approved. The Claimant refused to return to work after the suspension was lifted. He was not disciplined for that. He remained a Team Leader although absent from work without permission. On 12 November 2019, the Claimant asked Michelle Heath to reconsider her decision on the career break but also said she was not impartial [529]. A career break for a year was eventually approved and the Claimant was notified on 21 November 2019. On 28 April 2020, Mrs Heath wrote to the Claimant asking him what he was going to do in relation to his career break which was due to come to an end on the 11 May 2020 [5534]. The Claimant replied saying that he was not living in Birmingham because of the breakup of his family; and that the respondent’s actions had caused him mental health issues and loss of income. He asked to extend the career break until 20 November 2020 [554A]. This was eventually agreed. The consequence was that the Claimant was still absent from work when the grievance appeal was concluded. We shall return to the career break later.[105]The grievance appeal was conducted by Mrs Wendy Salt, a Regional Director from a different region. The intention was to hold a meeting on 7 November 2019, but in fact this did not take place because the Claimant requested the appeal should be conducted using his written appeal letter. Mrs Salt reviewed the documentation and asked questions of the Claimant and other people by email. As noted above, her evidence was not really challenged, so we shall cover the appeal stage briefly.[106]The outcome was sent to the Claimant on 3 January 2020 [531-549]. In a lengthy written letter, Mrs Salt set out what documents she had reviewed, and her conclusions on the points raised by the Claimant. The appeal was not upheld. The second Claim Form was presented on 7 February 2020.[107]On 6 November 2020, a letter was sent by Mrs Heath reminding the Claimant his career break was due to come to an end on the 20 November 2020 [558]. She asked him to contact her by the 10 November to confirm whether he intended to return to work [558]. On 9 November 2020, the Claimant said he planned to return to work around the 21 November 2020 [559] . He did not do so. He was offered a number of potential Team Leader vacancies, but did not accept them. By way of example, one alternative Team Leader position was rejected as being not possible unless he received a significant pay increase because otherwise it was too inconvenient to travel to work [564]. Mrs Heath replied that there were no other vacancies at that point. She said that because of fixed terms and conditions in relation to pay and holiday entitlement, it would be unfair to other Team Leaders if his terms were more favourable. She said that there were Support Worker vacancies nearer his home [565]. The Claimant still did not agree to return to work. He said that the reason for the career break was that he was not being supported against victimisation, discrimination, harassment and unfair treatment. He alleged that because he had brought Employment Tribunal claims, the offers that were being made about his return to work were actually intended to be barriers to it. He asked to extend the career break again, from that date (3 December 2020) until a Team Leader post was available in the area where he had worked for the last ten years [567].[108]On 8 December 2020, Mrs Heath informed the Claimant that a Team Leader position had become available in the area where he had previously worked, and that it was 2.8 miles away from his home and accessible by public transport. We have already commented on the fact that the Claimant was wholly unable to accept that the majority of the working population would not regard that as a lengthy commute by public transport. Instead, the Claimant rejected the offer, saying he would have to waste more time on public transport and spend money because of having to buy a bus ticket. He said it would impact on his family life and his children’s schooling, and on his attendance at work, which would give the Respondent an opportunity to discipline him. He went on to say that this offer indicated in fact that he was being victimised because of his Employment Tribunal claims. He queried why he could not return to his previous position which was 600 metres from his home. He asked to extend his career break again until a Team Leader role suitable to him was available i.e. in a location where he could walk to work [571].[109]On the 14 December 2020, Mrs Heath wrote to express surprise at the rejection of the latest offer. She pointed out that the Claimant had now rejected two Team Leader offers and that the Respondent could not accommodate a further career break or an extension to the existing one [573-4]. The Claimant’s response was an email dated 16 December 2020, alleging that the career break had been caused by Mr Mulugeta and the various managers covering up for him; that barriers were being put in place to prevent his return to work; and (again) asking to extend the career break. On 20 December 2020, Mrs Heath wrote to say that the career break would not be extended further; that the Claimant had been given a number of options; that he was still free to return to work in the last vacancy identified; but that if he did not confirm that he would do so by the 23 December, the post would have to be filled. She said, that if he did not want to return to work, it was his prerogative and he would be processed as a leaver, but the Respondent would be happy to consider him for a post in the future if he applied. She went on to say that it wasn’t really appropriate for her to discuss the matters now being dealt with by the Employment Tribunal [578- 9]. The Claimant responded saying he would accept to return to work, but only if various items of disclosure relevant to these proceedings were made [580]. It was apparent to us that the Claimant did not intend to return to work, except on his terms. Whether this was because of the two-year degree course, the ongoing proceedings, or his family circumstances (all of which he mentioned in his evidence), or a combination of those factors, falls into the realm of speculation.[110]The Claimant was processed as a leaver and brought the third claim (unfair dismissal) on 31 March 2021. Submissions[111]We shall now set out briefly key points made in the written and oral submissions.[112]The Respondent’s submissions were quite lengthy and we have already quoted from various parts of them in connection with the disputed documents. The Respondent’s case is that the Claimant’s allegations were entirely without merit and were no more than mere assertions of discrimination, victimisation and harassment without any evidential basis. The Respondent submitted that the Claimant had utterly failed to make a prima facie case of discrimination, harassment or victimisation. There were time points made about some of the allegations. The respondent also made submissions about credibility. The Respondent’s representative dealt with each allegation in turn, setting out the Respondent’s position on them. The respondent’s position on the unfair dismissal claim was that the Claimant’s employment ended because he did not return to work – he was not dismissed.[113]In the Claimant’s written submissions, his representative set out the lengthy litigation history of the three claims. It was contended that the 2014/15 allegations were admissible as background information. In respect of the allegations which Judge Self allowed to proceed, it was argued that there was a continuing course of discriminatory conduct and therefore the claims were presented in time. There were some submissions about why Mr Adognan’s complaints and case were relevant despite the binding COT3. The Claimant’s case was that he had the protected characteristics of being from Rwanda and a French-speaking African. One assumes (although the submissions did not say so) that he was relying on the protected characteristic of age as well. The victimisation claims were founded on the basis of the discrimination complaints and Employment Tribunal claims, being protected acts. The unfair dismissal claim continued to be pursued. The Law The framework of the Equality Act 2010

The Law

[114]The relevant legislation in respect of the allegations of direct discrimination is contained in the Equality Act 2010 “The EA10”. The legislative intention behind the EA10 was to harmonise the previous legislation and modernise the language used. Therefore, and in general terms, the intention was not to change how the law operated unless the harmonisation involved codifying case law or providing additional protection in respect of a particular protected characteristic (see above, for example). Because of that, much of the case law applicable under the predecessor legislation is relevant, as has been confirmed by the higher courts on many occasions.[115]Race and age are protected characteristics. as defined by section 4 of the EA10. Race includes ethnic or national origins (section 9(c) EA10). Age is defined by reference to being a person of a particular age group (Section 5(1) EA10)[116]Sections 39 and 40 of the EA10 prohibit unlawful discrimination against employees in the field of work. Section 39(2) provides that: “An employer(a) (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.”[117]Section 39(4) provides the same protection in respect of victimisation and section 40 concerns unlawful harassment in the field of work. Section 120 EA10 confers jurisdiction on an Employment Tribunal to determine complaints relating to the field of work. Section 136 of the EA10 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 or victimisation.[118]The courts have provided detailed guidance on the circumstances in which the burden reverses1 but in most cases the issue is not so finely balanced as to turn on whether the burden of proof has reversed. Also, the case law makes it clear that it is not always necessary to adopt a two-stage approach and it is permissible for Employment Tribunals to instead identify the reason why an act or omission occurred (see discussion below).[119]In summary, the EA10 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 into account the provisions of the statutory Code of Practice on the Equality Act 2010 produced by the Commission for Equality and Human Rights if it is relevant. Direct discrimination[120]Direct discrimination is defined in section 13 (1) of the EA10 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”. 1 Barton v Investec [2003] IRLR 332 EAT as approved and modified by the Court of Appeal in Igen v Wong [2005] IRLR 258 CA[121]In the predecessor legislation, the words “grounds of” were used instead of “because of”. However, subsequent case law has confirmed that the change in wording was not intended to change the legal test. This means that the legal principles in respect of direct discrimination remain the same.[122]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 was upheld by the Court of Appeal 2. Summary:(a) In every case the Employment Tribunal has to determine the reason why the claimant was treated as he was.3 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.4(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 which reflects the requirements of the Burden of Proof Directive (97/80/EEC). 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.5 The wording in s136 of The EA10 has not changed the way the burden of proof operates – the claimant still has to show a prima facie case of discrimination.6(d) The explanation for the less favourable treatment does not have to be a reasonable one.7 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. 8 If the 2 London Borough of Islington v Ladele [2009] EWCA Civ 135 3 By reference to Nagarajan v London Regional Transport [1999] IRLR 572 HL 4 By reference to Nagarajan and also Igen v Wong [2005] IRLR 258 CA 5 By reference to Igen 6 By reference to Efobi v Royal Mail Group Ltd [2019] EWCA Civ 18 7 By reference to Zafar v Glasgow City Council [1998] IRLR 36 HL 8 By reference to Bahl v Law Society [2004] IRLR 799 CA 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 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. The employee is not prejudiced by that approach, but the employer may be, because the Employment Tribunal is acting on the assumption that the first hurdle has been crossed by the employee.9(f) It is incumbent on an Employment Tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are.10(g) It is implicit in the concept of discrimination that the claimant is treated differently than the statutory comparator is or would be treated. 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 he was.11 However, as the EAT noted (in Ladele) although comparators may be of evidential value in determining the reason why the claimant was treated as he or she was, frequently they cast no useful light on that question at all. In some instances, comparators can be misleading because there will be unlawful discrimination where the prohibited ground contributes to an act or decision even though it is not the sole or principal reason for it. If the Employment Tribunal is able to conclude that the respondent would not have treated the comparator more favourably, then it is unnecessary to determine the characteristics of the statutory comparator.12 9 By reference to Brown v London Borough of Croydon [2007] IRLR 259 CA 10 By reference to Anya v University of Oxford [2001] IRLR 377 CA 11 By reference to Shamoon 12 By reference to Watt (formerly Carter) v Ahsan [2008] ICR 82 EAT[123]If the Employment Tribunal does identify a comparator for the purpose of determining whether there has been less favourable treatment, comparisons between the two people must be such that the relevant circumstances are the same or not materially different. The Tribunal must be astute in determining what factors are so relevant to the treatment of the claimant that they must also be present in the real or hypothetical comparator in order that the comparison which is to be made will be a fair and proper comparison. Often, but not always, these will be matters which will have been in the mind of the person doing the treatment when relevant decisions were made. The comparator will often be hypothetical, and that when dealing with a complaint of direct discrimination it can sometimes be more helpful to proceed to considering the reason for the treatment (the “reason why” question).13[124]It should be noted that Section 13(2) EA10 provides that “If the protected characteristic is age, A does not discriminate against B if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim”. Although this provision may appear to be akin to the concept of justification in an indirect discrimination claim, case law has made it clear that the threshold for establishing justification of what would otherwise be direct age discrimination, is higher. It is for the respondent (A) to show justification. Victimisation[125]Section 27 of the EA 2010 defines victimisation as follows: “A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because B does a protected act, or A believes that B has done, or may do, a protected act.”[126]The definition is substantially the same as under the previous legislation, save that reference was made to “less favourable treatment” rather than “subjecting to detriment”. The former definition technically required a comparator, although there was a real question as to whether a comparator was necessary.14[127]The starting point is that there must be a protected act. That was not in dispute in this case, although when it took place was. If there has been a protected act, the Employment Tribunal must then consider whether the claimant was subjected to detriment and, if so, whether that was because of it. Harassment[128]Harassment is defined in Section 26 of the Equality Act 2010 as follows: “(1) A person(a) (A) harasses another(b) (B) if – 13 See for example Shamoon and Nagarajan v London Regional Transport [1999] IRLR 572 HL 14 St Helens MBC v Derbyshire [2007] IRLR 540 UKHL (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) The conduct has the purpose or effect of – (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account- (a) the perception of B; (b) the other circumstance of the case;(c) whether it is reasonable for the conduct to have that effect.[129]It is relevant to note that Section 212 EA10, which deals with general interpretation, provides at section 212(1) that “ ‘detriment’ does not, subject to subsection 5, include conduct which amounts to harassment.” (Subsection 5 is not relevant because it applies where the act does not prohibit harassment in respect of a particular characteristic, such as pregnancy or maternity).[130]Consequently, where detrimental treatment amounting to harassment is alleged, that allegation should be considered before considering whether the act complained of amounted to direct discrimination, because it cannot be both. That does not, of course, prevent a Claimant from pleading in the alternative, and it would usually be prudent to do so.[131]The wording of section 26 makes it clear that a distinction is to be drawn between conduct with “the purpose of… which will amount to harassment as a matter of law, and conduct with “the effect of… ” In the latter case the test is partly subjective (“the effect on B” and, arguably, “the other circumstances of the case”) and partly objective (“whether it is reasonable for the conduct to have that effect”). Statutory Defence[132]In this case the Respondent did not seek to rely upon the statutory defence contained in Section 109(4) of the EA10. Time limits[133]Section 123(1) provides that a complaint must be brought within the period of three months from the date of the act complained of, or such other period as the employment tribunal considers just and equitable. If acts extend over a period i.e. form part of a continuing course of conduct, limitation is judged by reference to the last act. The test is broad but C must show a link (see Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96 EWCA). If an act is out of time, there is a wide discretion to extend time, but the Claimant must show time should be extended on a just and equitable basis (see Robertson v Bexley Community Centre [2003] IRLR 434 EWCA). However, that is essentially a question of fact for the Employment Tribunal (see Lowri Beck v Brophy [2019] EWCA Civ 2490). Unfair dismissal[134]The relevant statutory provisions are contained in section 98 of the Employment Rights Act 1996 (“The 1996 Act”): 98 General(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either for a reason falling within sub-section (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this section if it – (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without a contravention (either or his part or that of the employer) of a duty or restriction imposed by or under an enactment.(3) ………. (not relevant)(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.[135]The respondent must then satisfy the tribunal as to the reason, or principal reason for dismissal, and that the reason is one listed in section 98(2) of the 1996 Act, or is some other substantial reason. If the respondent establishes a potentially fair reason for dismissal, the tribunal then has to consider the question of fairness, which must be done in accordance with the provisions of section 98(4) of the 1996 Act.[136]It is not necessary to summarise the legal principles, because in this case the Respondent contended that the Claimant was not dismissed. We did not understand the unfair dismissal claim to be one of constructive unfair dismissal. We were not really addressed about the unfair dismissal claim or the wrongful dismissal claim by the Claimant’s representative, and it is difficult to understand how a case could be made for either of those claims. Wrongful dismissal[137]This is a breach of contract claim for notice pay. In summary, the respondent should pay notice pay unless the Claimant’s actions amount to a repudiatory breach of contract, which the respondent accepts by summarily dismissing them. We do not need to cover this in more detail because the Respondent contended that the Claimant was not dismissed. Applying the Law to the Facts as Found[138]When we gave oral reasons, we briefly summarised the above principles, and made it clear that we would set them out in full in our written reasons.[139]In many respects the facts as found speak for themselves. We have extracted the allegations from the Order of Judge Self [T1 & R1 at 224-229]. We shall start with the allegations of harassment referred to in the Order as harassment (H), direct race/age discrimination (D), and victimisation (V). In the Order, the allegations are numbered quite oddly because they are by reference to various roman numerals used in the Claim Forms and/or the schedules of allegations. We shall deal with them chronologically and number them accordingly, but will add the numbers used in the Order in square brackets. We should also clarify that the Order defined the protected acts as:(a) A verbal complaint to Ms Sue Salis in 2014 that Mr Mulugeta was making racist comments; and(b) An oral disclosure to Mrs York on 20 November 2018.(c) For the purposes of the second claim, the allegations made in the first claim. As already stated, we did not accept that a protected disclosure was made in 2014 for the reasons set out above. We found that the Claimant and Mr Mulugeta were friendly until Mr Mulugeta became his line manager, after which their working relationship was poor. We did accept that the Claimant made a protected disclosure to Mrs York on 20 November 2018, although it appears the date is wrong, and that he made the allegation in a meeting on 15 October 2018, before retracting it. It follows that any victimisation allegations pre-dating 15 October 2018 cannot proceed because there was no protected act. Clearly, the bringing of the first claim was a protected act. Claim Form 1[140]We shall start with the allegations arising from the first Claim Form. The first allegations which Judge Self allowed to proceed started with the supervision meeting between the Claimant and Mr Mulugeta on 10 August 2018. He did note that some of the allegations could be out of time, but rightly left that issue for the substantive hearing.[141]Allegation (1) [T1 at 225 para 4(x)]. The first allegation was that Mr Mulugeta failed to provide a timescale for improvements at the supervision meeting on 10 August 2018. This allegation failed on the facts. There were timescales in the action plan. Furthermore, we did not accept that setting timescales amounted to harassment, direct race discrimination, and/or victimisation. In addition, the victimisation allegation failed for the reasons set out in paragraph 136. Finally, this allegation (however it was put) was out of time because it did not form part of a course of discriminatory conduct.[142]Allegation (2) [T1 at 225 para 4(xi)]. The second allegation was that Mr Mulugeta breached the Respondent’s confidentiality policy by inviting Ms Sandhu to attend the supervision meeting on the 10 August 2018. This allegation also failed on the facts. There was no breach of confidentiality – it was an internal meeting and Ms Sandhu was a manager. The Claimant was given notice that she would be present. Although he queried the reason for her attendance, he attended the meeting and participated in it. In addition, the Claimant did not actually identify a matter that could constitute a breach of confidentiality. Also, it was clear that other managers do sometimes attend supervision meetings, for example on one occasion Mrs York attended the Claimant’s supervision meeting with Mr Mulugeta at his request. In conclusion, we did not accept that asking Ms Sandhu to attend amounted to harassment, direct race discrimination, and/or victimisation. In addition, the victimisation allegation failed for the reasons set out in paragraph 136. Finally, this allegation (however it was put) was out of time because it did not form part of a course of discriminatory conduct.[143]Allegation (3) [T1 at 225 para 4(xii)]. The second allegation was that Mr Mulugeta issued a written warning “for dissatisfaction with the improvement required and progress made” on 14 September 2018. In fact the warning was verbal, and was then confirmed in writing. It is factually correct to say that this occurred. However, we did not accept that issuing the warning amounted to harassment, direct race discrimination, and/or victimisation. In addition, the victimisation allegation failed for the reasons set out in paragraph 136. Finally, this allegation (however it was put) was out of time because it did not form part of a course of discriminatory conduct.[144]Allegation (4) [T1 at 225 para 4(xiii)]. This allegation was that between the 10 August and 14 September 2018, Mr Mulugeta failed to permit or allow the Claimant to explain what he had done to meet challenges in relation to the identified areas of improvement. This was not the case as can be seen from the minutes of the meetings. We did not accept that attempting to monitor performance and identifying areas requiring improvement (which was actually what happened) amounted to harassment, direct race discrimination, and/or victimisation. In addition, the victimisation allegation failed for the reasons set out in paragraph 136. Finally, this allegation (however it was put) was out of time because it did not form part of a course of discriminatory conduct.[145]Allegation (5) [T1 at 225 para 4(xiii)]. This allegation was that in August 2018, the Claimant was singled out by Mr Mulugeta by being told not to work over 12-hour shifts. That was factually correct. If the practice was widespread, and the Claimant was the only Team Leader to be told not to do it, that could amount to being singled out. However, the Claimant produced no evidence whatsoever to establish that proposition. Instead, what was very clear, was that Mr Mulugeta had evidence to show the Claimant was causing a potential health and safety risk to himself and service users by working very long hours. Clearly this had to be addressed. It does the Claimant little credit that he continued to prepare rotas which included him working unsafe hours after being instructed not to. His evidence on this point was totally contradictory – he appeared to accept that working long hours could present a health and safety risk, and would not be acceptable to the CQC, yet he maintained it was discriminatory not to allow him to do so. We did not accept that attempting to implement safe working practices, amounted to harassment, direct race discrimination, and/or victimisation. In addition, the victimisation allegation failed for the reasons set out in paragraph 136. Finally, this allegation (however it was put) was out of time.[146]Allegation (6) [T1 at 225 para 4(xxiii)]. This allegation was that on 15 October 2018, Mrs York handled the Claimant’s grievance unsatisfactorily in that there was a lack of proper investigation and that she failed to provide investigation documents. As will be clear from our findings of fact, we concluded that Mrs York dealt with the Claimant’s complaint informally, and it was resolved. The Claimant agreed with the outcome. We did not accept there was any investigation documentation except for her record of their meeting. Nor did we accept that the Claimant did not receive the outcome letter at the time. This allegation was put as direct race discrimination and/or victimisation. We did not accept that the Claimant had established a prima facie case of direct race discrimination or of victimisation. Finally, this allegation (however it was put) was out of time.[147]Allegation (7) [T1 at 225 para 4(xviii)]. This allegation was that in the supervision meeting on 21 November 2018, Mr Mulugeta and Mrs York believed the Claimant was resigning when he stated he was thinking of resigning. Clearly there was a factual dispute about whether the Claimant used the word “resign” or said he was “stepping down”. We concluded that Mr Mulugeta and Mrs York did think the Claimant was “stepping down” as a Team Leader. We also thought they must have concluded his statement was unequivocal because steps were initially taken by Mr Mulugeta to transfer the Claimant to a Team Leader position. Of course, as they acknowledged, they should have given the Claimant time to reconsider, given that he spoke in the heat of the moment. We thought it was unclear how their belief, if genuine, which we accepted that it was, could unlawful treatment. Consequently, we concluded the allegation was not well-founded and there was no harassment, direct race discrimination, and/or victimisation.[148]Allegation (8) [T1 at 225 para 4(xix)] was that Mr Mulugeta approached the Claimant and asked him to transfer from being Team Leader to a Support Worker. We found as a fact that Mr Mulugeta told the Claimant where to report to work having accepted what he believed to be a decision to step down. For the same reasons as set out in relation to Allegation 6 (see paragraph 143), we did not accept Mr Mulugeta’s instruction amounted to harassment, direct race discrimination, and/or victimisation. As set out in our finding of fact, the Claimant was never actually demoted from the position of Team Leader.[149]Allegation (9) [T1 at 228 para 5]. This is the only allegation of direct age discrimination and we have covered it here because it happened at the same time as Allegation 8. In fact, and despite the chronology, it was not identified as an allegation in the first Claim Form, and not raised as part of the grievance process covered by that claim. The Claimant alleges he was asked to transfer his Role to that of Support Worker reporting to Mr Chikosi. Judge Self recorded that the Claimant specified his age group as being in his fiftieth year whereas Mr Chikosi was between 35 and 38. As can be seen from our findings of fact, Mr Chikosi was not a Team Leader, and he was not aged 35 to 38. This allegation was difficult to follow, as we have already observed. In any event it failed on the facts. There was no direct age discrimination.[150]Allegation (10) [T1 at 225 para 4(xxiv)]. This allegation was that on 21 October 2018, Mrs York stated she had accepted the Claimant’s resignation from Team Leader. It was factually correct. For the same reasons as set out in relation to Allegation 6 (see paragraph 143), we did not accept Mrs York’s view of what had occurred amounted to direct race discrimination, and/or victimisation.[151]Allegation (11) [T1 at 225 para 4(xxv)]. This allegation was that between 21 November 2018 and 5 December 2018, Mrs York failed to investigate and address the issues raised by the Claimant in his letter of 21 November 2018. Factually that was correct. At this point there was a grievance against Mrs York, so she was not able to be further involved. In addition, she had dealt with the September complaint informally, and given an outcome. There was no right of appeal. For those reasons, we did not accept Mrs York’s failure to carry out more investigation amounted to direct race discrimination, and/or victimisation.[152]The next item (T1 at 226 para 4(xxvi) was a repetition of the previous complaint about failing to investigate (Allegation 11).[153]Allegation (12) [T1 at 226 para 4(xxvii)]. This allegation was that Miss York refused or rejected the Claimant’s retraction of his resignation with no supporting reason. This was factually correct. Mrs York confirmed that the Claimant had (as she saw it) stated he wanted to stand down as a Team Leader. For the same reasons as set out in relation to Allegation 6 (see paragraph 143) and Allegation 10 (see paragraph 147), we did not accept Mrs York’s view of what had occurred amounted to direct race discrimination, and/or victimisation.[154]Allegation (13) [T1 at 226 para 4(xxviii)]. This allegation was that on 6 February 2019, Miss Mountfield refused to discuss the Claimant’s grievances (allegedly) raised in 2014/15. This was factually correct. It was also, in our judgement, completely understandable and wholly reasonable. The Claimant did not bring a formal grievance and/or allege harassment, direct race discrimination etc. at that time, and was seeking to introduce allegations five years later which were stale due to the passage of time, and therefore could not fully investigated. It was clear that he chose to do so, rather than providing evidence about the September and February grievances, which was what she wanted to focus on. This was an allegation of direct race discrimination and victimisation. It was manifestly ill-founded.[155]Allegation (14) [T1 at 226 para 4(xxvii)]. This allegation was that Miss Mountfield handled the Claimant’s grievance improperly in that there was a lack of proper investigation and/or she failed to provide investigation documents. This was an allegation of direct race discrimination and/or victimisation. As can be seen from our findings of fact, Miss Mountfield did her best to investigate the recent grievances, but was hampered by the Claimant’s refusal to focus on them. She did send all the documents generated by the stalled investigation to him. We fully accepted that she found his stance very frustrating. This was an allegation of direct race discrimination and victimisation and was ill-founded for the reasons set out in relation to Allegation 13 at paragraph 151.[156]Allegation (15) [T1 at 226 para 4(xxix)]. The Claimant alleged that on 11 April and 20 April 2019, Miss Mountford, Mrs Heath and Ms Everett handled the Claimant’s grievance unsatisfactorily and failed to investigate properly and failed to provide investigation documents. This allegation requires some unpicking: at this point Miss Mountfield had no involvement apart from to give an account to the investigation because the Claimant had brought a grievance involving her; Ms Everett was responsible for dealing with the investigation into the concerns over service user X and not the Claimant’s grievance; and Mrs Heath was responsible for the Claimant’s grievance. Consequently, Ms Everett and Miss Mountfield had no responsibility for the subject matter of the allegation because they were not dealing with the grievance or the paperwork. Mrs Heath, for the reasons already stated, investigated very thoroughly indeed and did her best to investigate the 2014/15 issues, despite the limitations caused by the passage of time i.e. staff leaving and imperfect recall of events from those who could be asked. This was an allegation of direct race discrimination and/or victimisation. It failed on the facts. The allegation was totally without foundation. It does, however, demonstrate the scattergun approach that the Claimant and/or his representative have taken in these proceedings, which has involved very substantial case management and judicial time.[157]Allegation (16) [T1 at 226 para 4(xxxi). This allegation was that on 1 March 2019, the Claimant was suspended by Ms. Raj Sandhu. It is factually incorrect - he was suspended by Miss Everett because he would not turn up to meetings to discuss the concerns about service user X. This was an allegation of victimisation.[158]We shall also deal with Allegations 17 and 18 at this point.[159]Allegation 17 [T1 at 226 para 4(xxxii)This allegation was that from 4 March 2019, Miss Everett handled the Claimant’s concerns raised in his letter of 18 April. This was an allegation of victimisation.[160]Allegation (18) [T1 at 226 para 4(xxxiii). This allegation was that from 18 April 2019, Miss Everett handled the Claimant’s concerns in his letter dated 18 April 2-18 unsatisfactorily in that there was a lack of proper investigation and/or that she failed to provide investigation documents. This was an allegation of direct race discrimination and/or victimisation.[161]Our conclusions on allegations 16 to 18 are that they are factually incorrect. The Claimant failed to make out a prima facie case of direct race discrimination or (in the case of allegation 18) victimisation. As can be seen from our findings of fact: Ms Sandhu did not suspend the Claimant; he was suspended pending investigation; he did not turn up to an investigation meeting; his written submissions (insofar as they related to service user X) were taken into account; Miss Everett finished the investigation; she did not recommend any disciplinary action over the concern about X; the Claimant’s suspension was lifted; and he was provided with relevant documentation in respect of that investigation. It is possible, but unlikely, that the Claimant conflated the grievance process with the entirely separate investigation into weight loss by service user X, which he accepted had to take place when the concern was raised. The respondent’s representative made the point that it was difficult to understand why the Claimant pursued these allegations, given that the investigation by Miss Everett effectively exonerated him. We would not go so far. That is because he thought the investigation was initiated by Mr Mulugeta (which was not the case, he simply relayed the concern, as he was obliged to do); and he blamed the suspension for the marital breakdown. That said, these allegations about the investigation into concerns about X, are quite evidently without foundation.[162]Allegation (19) [T1 at 226 para 4(xxxiv). This allegation was that Mrs Heath failed to provide the Claimant with the notes of the grievance hearing within 7 days. This is factually correct. However, the notes are very lengthy so that is hardly surprising. This was an allegation of direct race discrimination and/or victimisation. We did not accept that the Claimant had made out a prima facie case of either. It sadly falls under the conduct we have described in the final sentence of paragraph 153. Second Claim Form[163]These allegations were also set out in T1. As with the previous allegations, we have dealt with them chronologically but have also included details of where they are found in T1 at paragraphs 4 and 5. Judge Self recorded that the direct race discrimination allegations were based on national origin – Rwandan. He recorded that the allegations were of direct race discrimination and victimisation i.e. not harassment. Judge Self also recorded that the protected acts relied on for victimisation allegation were as set out in relation to Claim Form 1 plus the bringing of the first Employment Tribunal claim.[164]Allegation 20 [T1 at 226 para 4 (a)]. The allegation was that on 10 May 2019, Mrs Heath rejected the Claimant’s request for a career break with no good supporting reasons. Factually, the allegation is not correct. The supporting reasons were provided, and essentially came down to operational need. This was in line with the Respondent’s policy which is described in our findings of fact, and the decision was wholly discretionary. The allegations of direct race discrimination and victimisation have no foundation evidentially and are without merit.[165]Allegation 21 [T1 at 226 para 4 (b). The Claimant alleged that on 19 July 2019, Mrs Heath rejected the Claimant’s grievances with no good supporting reasons. It is factually correct to say that the grievance was not upheld. It is completely incorrect to say there were no good supporting reasons. We found that her investigation was very thorough, particularly given the problems investigating the 2014/15 allegations. The Claimant was supplied with the report, and was invited to view his personnel file It is hard to imagine that she could have done more. The allegations of direct race discrimination and/or victimisation have no foundation evidentially and are without merit.[166]Allegation 22 [T1 at 227 para 4 (c)]. The Claimant alleged that Mrs Heath failed to provide a signed copy of the grievance documents and investigation report with no good supporting reason when asked to do so on 25 July and 12 August 2019. We fail to understand the basis of this allegation, let alone why the Claimant contends there was a requirement to do so. If the allegation related to conducting telephone interviews rather than holding meetings, which is not how it reads, there were valid reasons for doing so. If the allegation was that she fabricated the evidence of witnesses, which is not how it was put in writing but appeared to be what was argued before us, then we reject that proposition entirely. The fact that the Claimant chose to fabricate documents in support of his case (see our findings on the disputed documents), does not mean that anyone else did. We took great care to reach our findings about the Respondent’s case on the disputed documents, as we have explained. Such findings are very serious and Employment Tribunals are very cautious about making them. Merely asserting something to be true, does not make it so, which is a point that the Claimant and his representative failed to appreciate.[167]Allegation 23 [T1 at 227 para 4 (d)]. This allegation was that Mrs Heath failed to carry out a proper/full investigation within the time permitted by the Respondent’s policy about grievances of race discrimination, with no good supporting reason. We have covered this extensively in our finding of fact. She did the best she could given the scope of the grievance (which now encompassed 2014/15; there were logistical issues over availability of witnesses, the Claimant and his representative; and the timescales are based on single issue or simple grievances, not multiple allegations which expand exponentially with the involvement of other managers trying to resolve the problem. We shall set out our conclusions on the allegations about her investigation and report after setting out what the remaining allegations are.[168]Allegation 24 [T1 at 227 para 4 (e)]. This allegation was that Mrs Heath failed to give any reason why, where there was a conflict of evidence, she accepted what other witnesses said rather than the Claimant. That is not correct. She gave reasons.[169]Allegation 25 [T1 at 227 para 4 (f)]. This allegation was that Mrs Heath failed to investigate Mrs York’s failure to comply with the grievance and disciplinary policy, and gave no good supporting reason for this. Mrs York was not involved in the alleged disciplinary procedure i.e. the investigation into the concern about service user X. Mrs York, on our findings, did comply with the procedure for what was (at that point) identified to be an informal complaint. Mrs Heath found that to be the case when she investigated.[170]Allegation 26 [T1 at 227 para 4 (g)]. This allegation was that Mrs Heath failed to take any steps that would allow for the Claimant’s appeal letter of the 18 October to be dealt with in accordance with the appropriate company policy. This relates to the finding that there should have been a right to appeal Mrs York’s decision at the informal stage. Firstly, there was no right of appeal under the Respondent’s policy; and secondly, instead of accepting this, by sheer persistence, the Claimant secured an investigation of this during the grievance dealt with by Mrs Heath.[171]Allegation 27 [T1 at 227 para 4 (h)]. This allegation has sub-paragraphs. The overall allegation was that Mrs Heath failed to deal with the Claimant’s complaints related to 6 February 2019 meeting and provided no good supporting reason for this failure. The sub-paragraph allegations are set out below). To make a general point, the proposition that a person cannot possibly have dealt with complaints properly because the complainant does not agree with the outcome, is flawed. In this instance, Mrs Heath investigated and did not (apart from on the points set out in the findings of fact) uphold the grievance. It simply does not follow that she did not properly investigate, or give proper thought to her conclusions.[172]Allegation 28 [T1 at 227 para 4 (g) (i)]. The Claimant alleged Mrs Heath concluded her investigation into his grievance without considering his evidence. We did not accept that proposition.[173]We shall now set out our overall conclusions on Mrs Heath’s investigation, which need to be read in conjunction with our findings on the disputed documents; our findings of fact; and the matters already set out in this section of our conclusions on the allegations. Without repeating those, we shall record that none of these allegations had any merit. Mrs Heath’s investigation was conducted thoroughly. The Claimant could point to no evidence whatsoever of discrimination or victimisation, although these were labels he made the choice to attach.[174]The remaining allegations in the second Claim Form concern the grievance appeal which was heard by Mrs Salt. As stated previously, her evidence was not challenged. However, since we heard the evidence, we shall record our conclusions below.[175]Allegation 29 [T1 at 227 para 4 (j)]. The Claimant alleged Mrs Salt delayed in concluding the appeal meeting with no supporting reasons. There was no unreasonable delay; the Claimant did not want a meeting, he asked for the appeal to be dealt on the papers; and she kept him informed of progress.[176]Allegation 30 [T1 at 227 para 4 (k)]. The allegation was that Mrs Salt rejected the appeal with no good supporting reasons with the express intention of covering up acts of race discrimination and/or protecting perpetrators of race discrimination and/or to protect the interests of the Respondent. Quite apart from the fact that the allegation wasn’t really properly put to Mrs Salt, the fact is she dealt with the appeal perfectly competently and that is doubtless why Dr. Ibakakombo could find little, if anything to challenge in her evidence.[177]Allegation 31 [T1 at 227 para 4 (l)]. The Claimant alleged that Mrs Salt failed to investigate material evidence contained in the appeal letter. We have already covered this – she clearly did. Her remit was to review the process and that is what she did. She upheld Mrs Heath’s findings.[178]Allegation 32 [T1 at 227 para 4 (m)]. This allegation was that Mrs Salt failed to find that, when asked to do so on 29 July and 12 August 2019, Mrs Heath had not provided a signed copy of the grievance investigation document. As already noted, there was no requirement to do so. We would refer the reader to our conclusions at paragraph 163.[179]Allegation 33 [T1 at 227 para 4 (n]. This allegation was that Mrs Salt failed to give any reason why, where there was a conflict of evidence, she accepted what the other witnesses said, rather than the Claimant. This is a misunderstanding of her role. She was not evaluating the witness evidence given to Mrs Heath. She was reviewing how Mrs Heath had evaluated the witness evidence and whether she had explained properly why she had made the decisions she did. Mrs Salt concluded that she had.[180]Allegation 34 [T1 at 227 para 4 (o)]. This as an allegation that Mrs Salt failed to investigate Mrs York’s failure to comply with a grievance and disciplinary procedure. This was a misunderstanding of Mrs Salt’s role and, in any event, Mrs Salt upheld the conclusion that Mrs York had not failed to comply with the grievance procedure. The reference to the disciplinary procedure was irrelevant.[181]Allegation 35 [T1 at 227 para 4 (p)]. This allegation as that Mrs Salt ignored the Claimant’s appeal letter dated 19 February 2019. Clearly this was not the case.[182]To summarise, we concluded that Mrs Salt dealt with the appeal thoroughly and competently. The Claimant failed to establish a prima facie case of direct race discrimination or victimisation by her.[183]The next allegation (which we shall not number because it is not an allegation about the Claimant [T1 at 227 para 4 (q)]), was that the Respondent had failed to provide the Claimant with a number of documents relating to Mr Adognon’s claim. This was a disclosure point, if anything; and Mr Adognon’s case was the subject of a COT3 Agreement.[184]Allegation 36 [T1 at 228 para 4 (r)]. This allegation was that Mrs Silwood lied about not seeing the alleged document sent to her previously until the 9 December 2019 – see our finding on disputed documents. We concluded that she had not seen it until disclosure because it was a fabricated document. Therefore, this allegation of direct race discrimination and/or victimisation was totally without merit.[185]Finally, the Claimant made the direct age discrimination claim in the second Claim Form [T1 at 227 para 5. We already covered this – see Allegation 9 at paragraph 146. Third Claim Form[186]Finally, the third Claim Form alleged unfair dismissal and wrongful dismissal. The Claimant also alleged that the fact that his employment came to an end was victimisation. The main premise was that the Respondent was putting up barriers to the Claimant returning to work from his career break. We can deal with this quite briefly. Mrs Heath acted in accordance with the Respondent’s policy, save for allowing the Claimant a de facto appeal and/or taking his further representations into account, which led to his application being allowed. The Claimant’s career break was extended beyond the length envisaged by the policy. He was given multiple opportunities to return to work but chose not to. He was warned (more than once) that if he did not come back, he would be classed as having left voluntarily. Finally, he was informed that the Respondent would be happy to consider employing him again if he applied in the future. The Respondent was evidently actively encouraging the Claimant to continue in its employment. It is fair to say that when we read the papers for this case, we were surprised by the extensive attempts the respondent made to get the Claimant to return to work. It only became apparent when Mrs Heath gave evidence as to why that was - the Respondent valued the Claimant as an employee and thought he had a really good skill set. The proposition that barriers were being erected to prevent his return, was wholly fanciful, as was the idea that the Respondent no longer wanted to employ the Claimant because he had made a claim to the Employment Tribunal.[187]We concluded that the Respondent did not dismiss the Claimant – he chose not to return to work. The Respondent did not wrongfully breach the contract of employment – the policy was discretionary and the Claimant was given every opportunity to preserve the employment relationship. He did not do so. The Respondent did not victimise the Claimant.

Conclusion

[188]In conclusion, the majority of the allegations failed on the facts. The Claimant was wholly unable to establish a prima facie case that there was a causal link between his race or his age and the allegations concerned (i.e. harassment or direct discrimination), nor did he establish that any alleged mistreatment was because of a protected act (i.e. victimisation). The proposition that Mr Mulugeta was a discriminatory bully was without foundation. The proposition that the remaining people named in the allegations were part of a cover up/conspiracy was equally flawed and could best be characterised as an attempt to challenge any decision they made that the Claimant did not agree with. We have dismissed all of the allegations because they were not well-founded. In our judgment (Appendix A), we said that the matter would be listed for a costs hearing because the Respondent requested this. We have not yet listed it, but will do so and make appropriate directions once these Reasons have been promulgated. Mrs Heath[189]We should note for the record that Mrs Heath was a named individual Respondent to the third Claim, but as a matter of law the only claim which could be against her was victimisation. We invited the Claimant to remove her as a named individual Respondent because the Respondent employer did not rely on the statutory defence. The Claimant did not agree to do so. For the sake of completeness, the victimisation allegations against her were without merit and failed. The judgment at Appendix A dismissed the claim against her as well as the claims against the Respondent employer. Employment Judge Hughes Date 2 August 2023 Appendix A
ClaimantEMPLOYMENT TRIBUNALS BETWEENRespondent
Mr J BishwekaJUDGMENT MADE AT A LIABILITY HEARING AND(1) Lifeway Community Care Ltd (2) Mrs M Heath
HELD ATBirminghamON 11-13,16-20 August 2021 & 3 September (Chambers) & 7 September (Reasons)
EMPLOYMENT JUDGE HughesMEMBERS Mr RS Virdee Mr MZ Khan
[189]Representation For the Claimant: Dr R Ibakakombo, Lay Representative For the Respondent: Ms L Amartey, Counsel