Employment Judge KenwardIn person for claimantDate 29 July 2024
JUDGMENT
[1]The Claimant’s complaints of race discrimination are not well-founded and are dismissed.[2]The Claimant’s complaints of age discrimination are not well-founded and are dismissed Signed
REASONS
JUDGMENT and oral reasons having been given at the hearing on 29 July 2024, with Judgment having been sent to the parties on 30 July 2024, and written reasons having been requested by the Respondent on 31 July 2024 and by the Claimant on 11 August 2024, written reasons are now provided, as set out below. Judgment[1]The Judgment of the Tribunal was as set out below.(1) The Claimant’s complaints of race discrimination are not well-founded and are dismissed.(2) The Claimant’s complaints of age discrimination are not well-founded and are dismissed.
Introduction
[2]The Claimant was employed by the Respondent from 1 December 2015. His employment ended in July 2024. He was employed as a Warehouse Operative undertaking a role as a reach truck driver. His Claim concerns allegations of race discrimination and age discrimination in 2021 and 2022. For these purposes, his relevant protected characteristics are that he is black and was nearly 60 years of age at the time of the relevant events. The - 1 - complaints concern the extent to which he was given access to opportunities, both in relation to training and job progression. He also alleges that the rejection of his subsequent grievance and grievance appeal amounted to age and race discrimination. The Claim and the proceedings[3]Early conciliation started on 5 October 2022 and ended on 16 November 2022. The ET1 Form of Claim, which brings complaints of discrimination on the grounds of age and race, was presented on 21 February 2023, more than three months after early conciliation had ended. Effectively this meant that any complaint about something which occurred on or before 21 November 2022 would potentially be outside the primary time limit of three months for bringing proceedings. The only complaint in relation to a matter which occurred after this date was a complaint of discrimination through the rejection of the Claimant’s grievance appeal. However, the Claimant’s case is that the complaints made amounted to conduct extending over a period, with this conduct including the rejection of his grievance appeal, so that the conduct extended beyond 21 November 2022.[4]Section 8.2 of the ET1 form of Claim asked the Claimant to provide the details of his or her Claim. The Claimant provided the details set out below. “I was asked to move over to a new facility with promise of training on a brand new system. When I arrived as a permanent member of staff I was told that agency and other staff will be trained whom (sic) of Caucasian background, all those that were given the opportunity to train and attain positions in clerical roles had the same skill sets as m(e), however I was not chosen, I noticed that the staff selected were all under the age of 50, myself being over this age found this discriminative of my age. This occurred in the month of July 2021. In March 2022, I raised this further with my (First Line Manager) Paul Brown and he replied that he will promise that he will ensure I get an opportunity like the rest. However, this opportunity was never given. The operations manager said that the (First Line Manager) has to facilitate the training however this was never an option for me. April 2022 I emailed to Paul Brown and Luke ops manager - in relation to unfair treatments I had received and neglect of providing fair training. Jan 2020 a secondment opportunity (arose) I applied and I was rejected without any feedback and prior (sic) placed someone in place prior to the applications going out. Feb 2022 the shift changed from rotational to fixed nights so I took this opportunity to ask for training again and the promise of up skills was advised should I go on nights so I did, however this opportunity I still have not received. - 2 - I raised an ongoing grievance in relation to this claim however the company have construed the matter have given … an unfair reason as to that I had an opportunity but when and where is what I asked. However the answer was to no avail. Ever since I became a trade union rep the conversation of training completely diminished. The other staff were given opportunity to train as a Clerk over me even though they did not want training. The staff recognised I wanted training and raised this to the (First Line Manager) which was ignored. Vacancies were further advertised externally even though the appetite was at hello what you only need a normal electrical plug socket to plug an extension – yet no other kitchen what brand you are looking at here in one of the Panasonic ones like that the other side possibly LOC for training I have further raised that those given opportunities was given to those that were in the General Managers previous place of work”.[5]The Grounds of Resistance originally filed by the Respondent had sought to strike out the Claim on various grounds, one of which involved an abuse of process argument as the Claimant had previously brought a complaint of race discrimination and victimisation in August 2020 (Case Number 1306164/2020). This had included a large number of separate allegations. The various complaints have been dismissed following a final hearing in December 2022. The Grounds of Resistance were concerned that the Claimant was seeking to re-litigate complaints which had already been determined as part of the earlier proceedings[6]A Preliminary Hearing took place on 25 July 2023 before Employment Judge Maxwell. This resulted in a Case Management Order, paragraph 44 of which (as part of the “Case Summary”) recorded the consideration which had been given to clarifying the complaints being brought by the Claimant, as set out below. “During the hearing today, I spent some time clarifying the Claimant’s claims. Ms Clapham agreed that in light of that clarification, the Respondent could now respond to his claims. Furthermore, given the dates the Claimant had put forward, Ms Clapham accepted it did not appear he was now pursuing matters on which a determination had already been made. She said the claim was vexatious but was unable to point to anything which suggested the Claimant believed his complaints were not well-founded or were pursued with the intention of vexing the Respondent, as opposed to because he believed he was in the right and hoped to obtain judgment. I was not persuaded it was appropriate to list the matter for a preliminary hearing in public to consider strike out on the basis advanced. As for the time point, Ms Clapham agreed - 3 - the Claimant’s complaint about rejection of his grievance appeared to be in time and the existence or otherwise of a continuing act would need to be determined at a final hearing. In the circumstances, she did not pursue a preliminary hearing on time”.[7]As a result of the detailed discussion which had clearly taken place for the purposes of clarifying the complaints being brought by the Claimant, the Case Summary set out a list of issues on the basis that these were the “issues the Tribunal will decide”. This incorporated (paragraph 2.1 of the List of Issues) a list of the complaints of direct discrimination which had been identified as being made by the Claimant.[8]As such the live complaints of age and race discrimination were identified in the List of Issues as set out below. “2.1.1 January 2020, application for secondment to the position of Front Line Manager was rejected and no feedback given; 2.1.2 July 2021, not being given training as a Clerical Worker or in the SAP System, this having been offered if he agreed to move his place of work to a new facility, which he did; 2.1.3 February 2022, not being given training as a Clerical Worker or in the SAP System, this having been promised if he went onto fixed nights, which he did; 2.1.4 March 2022, not being given training as a Clerical Worker or in the SAP System after raising this with Mr Brown; 2.1.5 Vacancies for clerical positions were advertised externally on 17 August 2022; 2.1.6 the Claimant’s grievance was not upheld (on) 25 August 2022 and appeal rejected 16 December 2022”.[9]Paragraph 7 of the Case Management Order of Employment Judge Maxwell was in the terms set out below. “The claims and issues, as discussed at this preliminary hearing, are listed in the Case Summary below. If you think the list is wrong or incomplete, you must write to the Tribunal and the other side by 8 August 2023. If you do not, the list will be treated as final unless the Tribunal decides otherwise”.[10]There was no subsequent communication from either party to suggest that the list of complaints set out in the List of Issues was incorrect. However, at the outset of Final Hearing, it was suggested by the Respondent that the complaint in relation to the rejection of the Claimant’s application for secondment to the position of Front Line Manager (“FLM”) (paragraph 2.1.2 in the List of issues above) must relate to January 2022 rather than January - 4 - 2020. The Claimant did not take issue with this or suggest that it referred to a different application than the one in January 2022. This certainly seemed to make sense given the lack of any significant evidence before the Tribunal regarding any application dating back to January 2020. Indeed, the Statement of Evidence of the Claimant contained no evidence or reference to any application in January 2020. Moreover, It also seemed to be consistent with the fact that the complaint vin relation to January 2020 in the ET1 Form of Claim referred to a secondment opportunity whilst the vacancy for which the Claimant applied in January 2022 was described as “an opportunity for one of the panels team to step up into the role of FLM Green shift on a temporary basis” as a result of the existing FLM taking up “a secondment position for the next six months”. Thus, the vacancy was variously described as “Step Up FLM Development Role” and a “Stand Up First Line Managers role”. Moreover, any complaint about an issue in January 2020 would, of course, have been a matter which was within the timeframe of matters dealt with by the previous proceedings which would have been inconsistent with the fact that Employment Judge Maxwell seemed to have satisfied himself that the new complaints were outside that timeframe. There was substantial evidence before the Tribunal from both parties regarding the application from January 2022. Accordingly, the Tribunal proceeded on the basis that the reference in the ET1 Form of Claim and in the List of Issues to an unsuccessful application in January 2020 should be treated as a complaint about the Claimant’s unsuccessful application in January 2022. Application to strike out Response[11]At the beginning of the Final Hearing, the Claimant made an application for the Respondent’s case to be “thrown out” by the Tribunal. This was treated as an application to strike out the Response. The ground being put forward for striking out the Response was that of non-compliance with the Case Management Orders. The application was not successful. Detailed oral reasons were given for this decision which also dealt with the issues of evidence which had been raised. Those reasons are now confirmed in writing below.[12]This is a case where the Tribunal had ordered that the Respondent to disclose relevant documents by 26 September 2023, provide an agreed Bundle by 7 November 2023 and exchange Statements of Evidence by 28 November 2023. It can be seen that the directions were being frontloaded, rather than working backwards from the hearing date. However, such an approach clearly makes sense given the impact that the passage of time has on evidence. It also made sense because there was a need to schedule a mandatory Dispute Resolution Appointment to take place when the preparation for the Final Hearing had reached the point of Statements of Evidence being exchanged. - 5 -[13]In making his application, the Claimant read from a prepared statement, although the Tribunal had not seen a copy of the document. He started by saying that he had not agreed the Bundle because requested documents had not been supplied or had been omitted. When he was asked further about this, he referred to an e-mail sent by Paul Brown to Carl Hayes on 18 January 2024 which he described as crucial. In the e-mail, Paul Brown sets out his understanding of the position in relation to the previous experience of various potential comparators. This appeared to be an internal e-mail exchange, but it was clearly a document which had been provided or disclosed to the Claimant by the Respondent at some point. The e-mails were generated as a result of the Respondent’s Solicitors seeking further instructions regarding documents and various other enquiries. The e-mail exchange amounted to documentation which post-dated the period of time with which the Claim was concerned. In as far as Paul Brown set out his understanding of the position, Paul Brown was a witness in the case and had set out the assistance that he was saying that he could provide in a Statement of Evidence. Nevertheless, upon taking instructions, Mr Allen for the Respondent did not object to the document being provided to the Tribunal and it was subsequently agreed that it should be added at the end of the Bundle.[14]However, the main thrust of the Claimant’s complaints regarding noncompliance seemed to relate to documents having been very recently produced. One document was a document which was headed “Respondent’s Legal Framework” which seemed to have been provided by the Respondent’s counsel at the end of the week before the hearing. The document did little more than provide a fairly short summary of the relevant law. There was no direction or Order that such a document should be produced. The Respondent’s counsel was essentially seeking to assist the Tribunal and the Claimant by providing, for ease of reference, a document which set out the relevant law as far as the Claim was concerned. Such documents are increasingly produced at the beginning of a Final Hearing where there is no obligation for them to be produced. They are often referred to as Opening Notes or Skeleton Arguments. Often, they will summarise the main planks of a party’s case. The Respondent’s Legal framework did not even go that far. At the end of a hearing both sides get the opportunity to make any points they want to make by way of seeking to persuade the Tribunal to find in their favour. There is no obligation or requirement for any closing points to be committed to writing. All the Respondent’s counsel had done was to provide the starting point for such closing points at the start of the case. Essentially, the Respondent’s counsel had been more helpful and co-operative than he fairly needed to be.[15]The other documents which only seemed to have recently been provided to the Claimant were signed witness statements. These were provided on 15 July 2024. - 6 -[16]The Claimant was saying that the effect of these documents having been provided late was that it impeded him from being able to prepare for the case. He pointed out that he was a litigant in person and worked night shifts so that this had the effect of preventing him from fairly presenting his case. He invited the Tribunal to throw out the Respondent’s case as a consequence.[17]The Tribunal sought an explanation from the Respondent for any purported non-compliance and provided the Claimant with an opportunity to comment upon the explanations provided. The Respondent was essentially saying that both the Bundle and unsigned Statements of Evidence had been provided months ago. In response, the Claimant indicated that he had not been happy with the content of the Bundle and had not had time to cross-reference the signed Statements of Evidence with the unsigned Statements of Evidence.[18]As a result of this application, and the Tribunal’s own concern that the hearing should proceed in a way which was fair, the Tribunal investigated the various steps which have been taken in this case, both by interrogating the Respondent and through a perusal of the Tribunal file.[19]This was a case where the Claimant had named various individuals as potential comparators who had been able to benefit from the training and / or progression which he was saying was denied to him. The List of Issues from the preliminary hearing had effectively asked the Claimant to confirm the names of any comparators. The names of comparators were then provided by the Claimant on 22 August 2023.[20]In October 2023, the Claimant had made a request for various documents and / or information, such as the result of an aptitude test which he undertook (which was now in the Bundle), any training given to him including start dates and durations, details of the training given to comparators including start dates and duration, and also information regarding when any job opportunities were advertised. In part, this seemed to be asking when the jobs to which any comparators had been appointed had been advertised, although this was not entirely clear. However, the Tribunal did not understand the Claimant’s case to be that, at the point in time when each comparator was appointed to a certain role, the Claimant instead should have been appointed to that role, which would effectively have involved looking at the recruitment exercise which followed each such role being advertised. Thus, it seemed to the Tribunal that some of these requests arguably went far wider than the scope of the Claimant’s case. Alternatively, the requests were in relation to issues which were not in dispute, for example that certain comparators had received certain training or previously undertaken clerical roles and / or roles at a higher level.[21]The Tribunal was told that a draft Index to the Bundle was originally sent to the Claimant on 2 October 2023, but he did not reply to the invitation for - 7 - comments. The Respondent had sent its documents to the Claimant on 5 October 2023. The Claimant had then provided his documents on 10 October 2023. The Bundle was ready by 13 November 2023. This was only six days later than the date required in the Case Management Order. The explanation provided by the Respondent was that the delay was as a result of correspondence back and forth with the Claimant regarding the composition of the Bundle. This would seem to be consistent with the Claimant’s position regarding not being happy with the content of the Bundle.[22]Updated versions of the Bundle were later sent to the Claimant on 3 January 2024, 21 February 2024, 28 February 2024 and 1 March 2024. Essentially the Bundle was being updated so as to add documents requested by the Claimant.[23]The delay in agreeing or finalising the Bundle had an impact upon Statements of Evidence from witnesses. As such, the Respondent wrote to the Tribunal on 17 November 2023 making an application for the Case Management Order to be varied so that Statements of Evidence could be exchanged on 29 February 2024. The Claimant opposed the application. However, by letter dated 8 January 2024, the Tribunal agreed to the application.[24]In fact, Statements of Evidence were finally exchanged on 1 March 2024, one day later than the revised deadline agreed by the Tribunal. This was the same date on which the most recent version of the Bundle was produced. The Statements of Evidence provided by the Respondent were unsigned, although they had the name of the witness typed at the bottom of each Statement. Thus, the Claimant had come to rely upon the Respondent not providing signed Statements of Evidence until 15 July 2024 as being one of the grounds for his application. In fact, the Claimant’s own Statement, and that of one of his witnesses, Mohammed Ghani, were also unsigned in that, they too, simply had the typed name of the witness at the bottom of the Statement.[25]The Claimant has not been able to point to any differences between the Statements provided on 1 March 2024 and those provided on or about 15 July 2024. He stated that he had had not had time to compare the two sets of Statements, although all of the Statements were relatively short in that the longest Statement was about 10 pages in length. In fact, where the Respondent had sought to add to its Statements of Evidence, it had been completely open about doing so, in that it had served a Supplemental Statement of Evidence from Sally Astill which was little more than a page in length, was dated 4 June 2024, and was simply for the purpose of producing a spreadsheet showing a description of the ethnic background of First Line Managers and Clerks working in the Respondent’s Logistics Operations Centre (“LOC”) in Solihull, although the period for which this ethnicity data had been provided was not entirely clear. The Claimant was able to produce - 8 - a document dated 6 June 2024 which was described as a response to the Supplemental Statement of Sally Astill. Essentially, it commented upon the significance and relevance of the ethnicity information provided by Sally Astill.[26]The Tribunal noted that there had been some non-compliance with Case Management Orders by the Claimant himself. Thus, on 6 March 2024, he was in the position of writing to the Tribunal to apologise for failing to comply with the directions for the Dispute Resolution Appointment which involved providing a Position Statement and agreeing a Bundle. His explanation was that he was a night shift worker and sometimes finds it difficult to get things done on time.[27]The Tribunal did write to the parties on 5 June 2024 seeking confirmation of there having been compliance with the Case Management Orders so that the Final Hearing would be ready to proceed.[28]On 7 June 2024, the Claimant e-mailed the Tribunal complaining that a hard copy of Bundle had not been provided and that he wanted information as to the start date and duration of SAP clerical training of the comparators, when and where the comparators’ job opportunities were advertised and the Claimant’s own training start dates and duration. The Tribunal noted that these were essentially similar requests to those which had been made in October 2023 as discussed above. The same requests were effectively being dealt with in the exchange of e-mails between 15 January 2024 and 18 January 2024 when the Tribunal notes that the request from the Claimant had been forwarded by the Respondent’s solicitor to Sally Astill who forwarded it to Carl Hayes in an e-mail which recognised that “we’ve already done searches for these things”. Carl Hayes forwarded the request to Paul Brown highlighting the information sought and stressing that “it’s important that we find as much as possible”. The reply of Paul Brown suggests that the only individual whose training dates he could be certain about was Louise Price, but he also provided information, presumably based on his memory or understanding, regarding various other individuals. In so far as this was information within his knowledge, rather than information extracted from documents, then it would be evidence to be dealt with in his Statement of Evidence rather than by way of disclosure of documents.[29]This would seem to have prompted Sally Astill to make further enquiries of Ian Castledine on 18 January 2024 and he responded later that day saying that he had training details for a number of the individuals, with these details being referred to as shown in an attachment, which had now been provided to the Tribunal and seemed to relate to SAP clerical training. Ian Castledine seemed to refer to not having details for three others but suggested that this may be because details had not been updated so that it might be necessary to do some digging. Since this was the last e-mail in the trail, it was not clear what further digging had been done or whether this resulted in any further - 9 - information or documentation being unearthed. However, it had subsequently been confirmed to the Tribunal at the start of the Final Hearing that no other information was located.[30]Taken at face value, the e-mail trail does suggest that the various individuals involved were acting in good faith in attaching an appropriately high level of priority and urgency to identifying if the details could be located and provided.[31]As stated, the Claimant was e-mailing the Tribunal on 7 June 2024 raising or re-raising an issue regarding disclosure of this information. The Tribunal then requested comments from the Respondent by 17 July 2024. On 15 July 2024, the Respondent replied stating that the Respondent had advised the Claimant that the documents in issue did not exist but information in relation to these points had been covered within the Respondent’s Statements of Evidence.[32]This appeared to be a reference to the Statements of Evidence explaining the relevant experience of various potential comparators in terms of explaining how they came to be doing clerical or first-line management roles or have had any training relevant as to this.[33]Clearly, the Respondent could not produce documents if it was saying that those documents did not exist. Its position seemed to be that it had effectively provided such information as it was able to provide in the Statements of Evidence. The Claimant had had these Statements of Evidence since March. Obviously, if the Claimant was arguing that there was information and documentation that one would expect the Respondent to be able to provide, then the Respondent’s witnesses could be challenged on that in the course of their witness evidence and / or it could be a matter for submissions. In certain circumstances, where evidence does not exist that one might have expected to exist, then a Tribunal can be invited to drawn adverse inferences.[34]In deciding whether to strike out a party’s case for non-compliance with an Order under rule 37(1)(c) of the Employment Tribunals Rules of Procedure 2013 (the “Tribunal Rules”), a Tribunal will have regard to the overriding objective (set out in rule 2 of the Tribunal Rules) of seeking to deal with cases fairly and justly. This requires a Tribunal to consider all relevant factors, including:• the magnitude of the non-compliance;• whether the default was the responsibility of the party or his or her representative;• what disruption, unfairness or prejudice has been caused;• whether a fair hearing would still be possible; and• whether striking out or some lesser remedy would be an appropriate response to the disobedience. - 10 -[35]The Tribunal was satisfied that it was clear that the Respondent had sought to comply with the Case Management Orders in terms of providing the documents which it considered to be relevant, seeking to finalise the Bundle and providing Statements of Evidence. Any non-compliance was minimal against a background of what appeared to be extensive communications with the Claimant regarding disagreement over the content of the Bundle. When it appeared that any delays in finalising the Bundle would impact upon Statements of Evidence being exchanged, the Respondent made an application to extend time for exchange of Statements of Evidence until 29 February 2024 with exchange then taking place only a day later than this. Essentially, the Claimant had had the vast bulk of the witness evidence and documentary evidence that was before the Tribunal since the beginning of March. In these circumstances, the Tribunal was not persuaded by his claims that any delays by the Respondent had put him in the position of not being able to prepare properly to present his case.[36]There also appeared to have been correspondence going back to at least October last year in which the Claimant had been seeking more information or documentation regarding potential comparators. The Respondent’s position appeared to be that it had produced the information and documentation which it had been able to locate. Effectively, a lot of the information appeared to be contained within Statements of Evidence without documentation having been produced to confirm that information. It may be that this position was not entirely satisfactory, but this could be explored in evidence and commented upon in submissions. In any event, the real issue in the case was not that of whether certain possible comparators received training which the Claimant did not receive and / or were assigned to clerical or higher roles when the Claimant was not, in that the Respondent did not really dispute the difference in treatment. The issue was whether these individuals were appropriate comparators and whether the difference in treatment had anything to do with race or age (or whether, on the Respondent’s case, there was a reason for any difference in treatment which was not that of race or age).[37]In the light of the discussion set out above as to, in particular, the extent of any non- compliance, and the effect of that non-compliance, the Tribunal was not satisfied that this was a case where it could be said that a fair hearing was no longer possible or that striking out would be an appropriate or proportionate sanction.[38]As such, the application to strike out the Response was dismissed and the Tribunal indicated that the case would proceed. Evidence - 11 -
Evidence
[39]In terms of documentary evidence, the Tribunal was provided with a Bundle of just over two hundred pages. A further 35 pages were added to the Bundle, consisting of documents produced by the Claimant or requested from the Respondent during the hearing.[40]In terms of witness evidence, the Tribunal had a Statement of Evidence from the Claimant who also gave evidence orally. The Claimant also relied upon Statements of Evidence from two former colleagues who still worked for the Respondent, namely Doncho Raev and David Walsh. Both these witnesses also gave oral evidence. He also relied upon a Statement of Evidence from Mohammed Ghani, who was his trade union representative at both the grievance hearing and the grievance appeal hearing. During the hearing, the Tribunal was told that Mohammed Ghani would not be attending to give evidence for medical reasons. At this point in time, we had read his Statement of Evidence and made it clear that we would take its contents into account, but would also take into account, in assessing the weight to be attached to the evidence, the fact that the Statement of Evidence was unsigned (save that his name was typed to the bottom of the document) and that the witness had not been questioned or tested in relation to his evidence.[41]The Respondent relied upon Statements of Evidence from Paul Brown (a First Line Manager who was the Claimant’s former line manager), Luke Jacques (an Operations Manager at the Respondent’s Logistics Operations Centre in Solihull, where the Claimant worked), Matthew Jarvis (a Senior Operations Manager at the LOC in Solihull), Carl Hayes (a Senior Operations Manager who heard the Claimant’s grievance), Dan Wootton (General Manager, who heard the Claimant’s grievance appeal) and Sally Astill (the Lead HR Business Partner who attended the grievance appeal hearing). The Tribunal heard oral evidence from all of the Respondent’s witnesses.[42]The Tribunal did not always find the Claimant a reliable witness. At times, his evidence seemed to be based on the interpretation that he is now seeking to put on events, with this being highlighted at times by inconsistencies between the content of his evidence to the Tribunal, and the content of contemporaneous documents. The Tribunal found it surprising that, although the Claimant had raised a significant number of issues by way of a grievance, it was only at the grievance appeal hearing that the Claimant sought to suggest that his treatment might have amounted to race discrimination. At times, his evidence appeared to be improvised or opportunistic. An example of this was in relation to the document produced by the Respondent in relation to training undertaken by the Claimant and some of the comparators which the Claimant sought to suggest showed that he had done clerical training and so should have been considered for clerical roles on this basis, which was inconsistent with the Claimant’s case that he had been denied the opportunity to do this training. Another example was the Claimant’s insistence that he had - 12 - requested, during the grievance appeal hearing, a hard copy of the aptitude test which he had undertaken, when there was no reference to such a request being made in the minutes of the grievance appeal hearing, and the Claimant had had an opportunity to amend or correct these minutes, without suggesting that an amendment needed to be made to the effect that such a request being made. The same point can be made in relation to the Statement of Evidence of Mohammed Ghani which had also suggested that such a request had been made, even though he had also not raised this when requested to check the accuracy of the minutes.[43]By contrast, the Tribunal found the evidence of the Respondent’s witnesses to be impressive and credible. They appeared to be candid and prepared to make concessions in relation to their evidence. As a result, where there were significant disputes between the evidence of the Claimant and that of the Respondent, the Tribunal generally preferred the evidence of the Respondent.
Findings of fact
[44]The Claimant worked as a Warehouse Operative within the Panels Operations at the Respondent’s Logistics Operations Centre (“LOC”) in Solihull. He had previously undertaken this role at the Respondent’s Midpoint site. The LOC was a new site which had been built to replace three of the Respondent’s sites namely Hams Hill, Midpoint and Tyrefort. The Claimant had moved to the LOC as part of a long-term plan to close these sites and move operations to the LOC.[45]Prior to the transfer, staff were told that they would not need to re-apply for their current roles. It was referred to as a “lift and shift” process, where all terms and conditions of employment would stay the same, apart from the location of the work.[46]Initially the Claimant transferred to the LOC on the basis of a six-month secondment. It is clear from a letter dated 18 June 2021, which confirmed his secondment, that he had put forward an application to be considered for a position at the LOC. He would have been aware that, if he wanted to continue working within the Panels Operations, then he would need to secure a position at the LOC, as the site on which he was working would eventually be closed down.[47]The secondment letter does not specifically refer to the role which the Claimant would be undertaking during any secondment. However, the Claimant would have understood that he was being seconded in his existing role. The secondment letter refers to the arrangements in respect of training which essentially involved an initial period of two weeks when the secondees would all receive the same training which involved training on the SAP system which was in operation at the LOC and was a different system to that which - 13 - had been in operation at Midpoint. After that, there was a period of on-the-job training specific to the role which the individual employee would be undertaking, which would have included undertaking mock shifts, before the operation went ‘live’. The Claimant’s role was as a Warehouse Operative working as a reach truck driver. Some individuals had transferred on the basis that they would be undertaking a clerical role. After the initial two week period, these individuals would have had training which was specific to their clerical role which included additional SAP training.[48]One of the Claimant’s complaints to be considered by the Tribunal is that he was not given training as a clerical worker or on the SAP system. The Claimant was alleging that this had been offered if he agreed to move to the LOC. The evidence being relied upon by the Claimant as having given rise to such an offer was not entirely clear. In his Statement of Evidence, the Claimant does not specifically refer to having been offered clerical training. Instead, he states that he went to the LOC with “the hope for new job role and opportunities with cultural change as promised”. Matthew Jarvis was the Senior Operations Manager based at Midpoint who moved to LOC in June 2021. He was involved in migrating and bringing the Panels team at Midpoint to the new site at the LOC. The Tribunal accepted his evidence that there were no agreements in place for those who were not in clerical roles to have clerical training or SAP training beyond the extent of the SAP training which was undertaken during the initial training period of two weeks. The Claimant transferred as a Warehouse Operative undertaking a driving role and, as such, there would have been no need for him to have undertaken clerical training so as to undertake a clerical role.[49]In his Statement of Evidence, the Claimant refers to Paul Brown having told him during the mock shift period that “they will rotate people for different roles” but “they never did”. In his Statement of Evidence, the Claimant is suggesting that the initial training amounted to training on a clerical role and is complaining that he did not get “an opportunity to get more trained on mock shifts on (a) live environment”. This seems to have been based on a belief that they would “rotate people for different roles” during the mock shift period. The Tribunal concluded that the Claimant had possibly misunderstood the position. The initial training was not training to undertake a clerical role. It was limited training to give all employees a basic knowledge of the new SAP system. Thereafter, the focus of the training needed to be on the specific roles that individuals would be undertaking at the LOC, with this taking place by way of mock shifts, before the operation went live. It would have made no sense during this period to be training individuals to undertake different roles from the roles which they were going to undertake, which, in the Claimant’s case, was his role as a reach truck driver. - 14 -[50]In January 2022, Adam Hewlett (Interim General Manager at the LOC) published a briefing to staff within the site informing them that there was an opportunity for somebody working in Panel Operations (the Claimant’s work area) to be seconded to a role as a First Line Manager (“FLM”). The Claimant expressed an interest in the role and was invited to an interview with Luke Jacques which took place on 26 January 2022. The assessment of Luke Jacques was that the Claimant did not have the experience and skills which were being sought for the FLM role. Luke Jacques was specifically seeking to appoint somebody who had knowledge of the systems used at the LOC, as well as management skills. He assessed the Claimant as not having these skills. The Claimant had been undertaking a City and Guilds functional skills qualification in information and communication technology at Walsall College which he completed in or around March 2022 (the certificate is dated 11 March 2022). However, his knowledge of the SAP system in use at the LOC would have been limited to the training given during the initial training period of two weeks and any permitted time spent on the computer or in the office after that.[51]Luke Jacques interviewed six candidates who had applied for the role, including the Claimant. He also interviewed the successful candidate, who was Martynas Ramanauskas, and who was appointed because he had shown that he had knowledge of the systems used in the area due to his previous role as a Clerk both at the Midpoint Site and at the LOC. He also demonstrated that he had good problem solving skills and was proactive, which were considered to be among the skills that would make a good manager. The Tribunal is satisfied that this individual was selected purely based on his experience and strengths which made him suitable for the role of FLM, which seems to have involved undertaking both clerical and managerial duties. On the face of it, he had more relevant experience than the Claimant. The Tribunal notes that the successful candidate in this case was Polish and not particularly young, being in his late 30s or 40s at the time (according to Luke Jacques).[52]In his evidence to the Tribunal, the Claimant did not really seem to be suggesting that his skills and experience were such that he should have been appointed instead of Martynas Ramanauskas, but rather put forward an argument to the effect that Martynas Ramanauskas should not have been appointed because his wife worked on the same shift and / or was appointed on the basis of favouritism because his wife worked for the Respondent. Based on the analysis of Luke Jacques as to the strengths of Martynas Ramanauskas, the Tribunal did not accept that his appointment amounted to favouritism. The issue in respect of his wife working on the same shift was resolved by the Respondent by ensuring that they no longer worked on the same shift. - 15 -[53]The Claimant has also complained that no feedback was given following his unsuccessful application for this post. In fact, Luke Jacques wrote to the Claimant on 28 January 2022 to inform him that unfortunately he had not been selected for the role. In this letter, he informed the Claimant that he was welcome to contact him if he wanted feedback on his performance at interview. Luke Jacques wrote a similar letter to all unsuccessful candidates and handed the letters to them in person. At the same time, he gave each candidate feedback. In the Claimant’s case, the Claimant had already approached Luke Jacques for feedback, and this was provided in person when Luke Jacques handed the Claimant his letter informing him that he had been unsuccessful at interview. Luke Jacques told the Claimant that he had not been successful, as the successful candidate had more experience than him, and gave him some tips going forward if he wanted to apply for another role in the future. The Claimant told Luke Jacques about the qualifications he was seeking to get at this point. During this conversation Luke Jacques recommended the Claimant use MyTalent World, which was the Respondent’s online training facility, to do some additional training.[54]The suggestion that the Claimant was not given feedback did not really seem to be consistent with his own Statement of Evidence, which was to the effect that, after being unsuccessful “I started verbal engagement with Luke Jacques the operations manager and Paul Brown for FLM online training”. Indeed, in his oral evidence, the Claimant ultimately accepted that feedback had been given.[55]In about February 2022, the Respondent introduced a night shift. A briefing letter from Adam Hewlett, explained the change and suggested that the Respondent would seek to accommodate individual preferences although skills would “provide the basis of the move”. The Claimant put himself forward to be considered for the night shift. He clearly did so based on his own personal and financial considerations, in particular that working the fixed night shifts attracted a shift premium of 33%.[56]The Tribunal was not satisfied that the Claimant was promised training as a clerical worker or on the SAP system if he moved onto night shifts. The night shift was populated based upon the preferences of individuals. The Claimant’s preference was to work on the night shift. This can be seen from a subsequent e-mail exchange between the Claimant and Luke Jacques. This followed on from the feedback which Luke Jacques had previously given following the Claimant’s unsuccessful FLM application FLM. He had e-mailed Luke Jacques asking about the “FLM training course as discussed a few weeks back”. Luke Jacques replied stating that the Claimant should raise this with his line manager, Paul Brown. The Claimant replied to this e-mail two weeks later making a complaint which was stated to be regarding development training, promotion opportunities and selection. - 16 -[57]From the reply of Luke Jacques, it is clear that this e-mail resulted in the points being raised being picked up and discussed with the Claimant by Paul Brown. The e-mail from Luke Jacques suggested that the Claimant should use the training opportunities available through MyTalent World to upskill himself. However, his e-mail went on to remind the Claimant that he had specifically requested a move to the permanent night shift, and this had been fulfilled by the Respondent. The Claimant had moved to the night shift in the knowledge that the night shift involved a limited number of people and just one active working area “so upskilling and cross training on other areas of the business is limited until the LOC grows”.[58]The e-mail from Luke Jacques also made arrangements for the concerns raised by the Claimant to be further discussed between the Claimant and Paul Brown. Luke Jacques also forwarded the Respondent’s latest job opportunities to the Claimant to consider.[59]Paul Brown had already been aware that the Claimant was interested in further training and development opportunities in early 2022. The Claimant had told him that he wanted to be trained as a Clerk. As a result, Paul Brown had arranged to give him some exposure to this by letting him spend time in the office observing the Clerks. In particular, the Claimant was assigned work with the Clerks in Panels Operations where possible, including booking in trailers and deliveries and booking out trailers. He also observed Clerks doing different types of enquiries on the system including looking up stock levels and locations. This was more exposure than other Warehouse Operatives were given. However, there was a limit to the extent to which this was feasible as the Claimant’s primary role was as a Warehouse Operative and this was a busy role in itself. This can be seen from the fact that, in February 2022, a certificate had been awarded to the Claimant as the “Recognising Excellence Winner” which was effectively an employee of the month award. In the Claimant’s case, he had been given this accolade because of his can-do attitude and hard work at a point when it had been extremely busy.[60]When the Claimant first moved to fixed night shifts at the end of February 2022, he worked in a small team of five which meant that it was difficult to allocate training time. There was only one Clerk in the team. Due to the workload requirements of the team at the time and the Claimant’s important role as reach truck driver, it was often not practical to allow him to take time out of his usual role to observe the Clerk. Availability of training always depended on operational requirements. However, when the workload was quiet, Paul Brown continued to let the Claimant sit with the Clerks to observe as he knew that the Claimant was keen to do this.[61]As a result of the complaint e-mailed by the Claimant, Paul Brown spoke to the Claimant during the course of the night shift on the night of 4 April 2022. From then on, Paul Brown tried to give the Claimant more exposure to clerical - 17 - roles where he could. However, work volumes still played a part in whether this was possible.[62]After the conversation on the night of 4 April 2022, Paul Brown also requested the Claimant’s MyTalent World login details which the Claimant would have been given on his induction. It seems from this that a need had been identified to assist the Claimant in accessing the online training that was available to employees using MyTalent World. Although the Claimant would previously have been provided with login details, it appeared that he had not managed to get access to the online training site using these login details. Paul Brown assisted the Claimant in logging on and registering for the first time. The Claimant was then able to use any downtime during his night shift to access training on MyTalent World.[63]The Claimant had also made Paul Brown aware that he was interested in applying for FLM roles at the LOC, so, going forward, Paul Brown made him aware of roles that he saw advertised, although there is only one documented example of this in the Bundle which shows Paul Brown forwarding a link to FLM vacancies to the Claimant on 20 April 2022.[64]The link which was forwarded by Paul Brown included a specific link to a vacancy as a First Line Manager (reference 16263). Luke Jacques e-mailed the same link to the Claimant on the same day. An e-mail in the Bundle shows that, on 22 April 2022, the Claimant e-mailed a covering letter and a CV to Oliver Walker by way of putting himself forward for the post. On 28 April 2022 he received an email from the DHL Resourcing Team to indicate that the outcome of his application was that he had been unsuccessful. The e-mail address given for the DHL Resourcing Team was myjob@dhl.com. However, the e-mail address from which the e-mail had been sent was donotreply@dhl.com. Such an email address would normally indicate that a reply sent directly to the e-mail address would not be read. The Claimant replied to the e-mail on the following day. The wording used in the e-mail was positive about the selection process. The e-mail also stated “can I ask you to share your expert opinion and indicate my weaknesses in the selection process?”. Effectively, this was a request for feedback. However, the Claimant’s e-mail was sent to donotreply@dhl.com. In the circumstances, it is not surprising that there was no reply to the e-mail and the Claimant did not receive feedback.[65]In his Statement of Evidence, the Claimant also refers to applying for another FLM role in April 2022. There is a lack of contemporaneous evidence in the Bundle or in the Respondent’s Statements of Evidence directly in relation to the recruitment to this vacancy. In fairness, from the ET1 Form of Claim and the List of Issues, it would not have been apparent that the Claimant was complaining about an unsuccessful FLM application in April 2022. The Claimant states that he did not receive a reply in relation to this application - 18 - but was aware of colleagues being interviewed for the role. His Statement then goes on to refer to Sean Yorke having subsequently been appointed to a First Line Manager vacancy, but it is not entirely clear from the Statement that this was the same vacancy, particularly since the Claimant appeared to be referring to a single vacancy and his Statement then goes on to state that Louise Price and Amy Buckle also became FLMs. The evidence of Paul Brown is that Sean Yorke had come to the LOC from the Castle Bromwich site where he had already been working as an FLM. As such, the Tribunal finds that it is more likely than not that this would have been the reason for Sean Yorke being appointed to a vacancy for a First Line Manager in preference to the Claimant. Louise Price was a previous team leader / supervisor who had done clerical work at Castle Bromwich where she had had experience of the CMS3 system which being used there (and which was being replaced by the SAP system). The Tribunal accepts the evidence of Paul Brown that Louise Price was chosen for clerical training as she had shown skills that would be beneficial to the business, so that she would have been in a better position than the Claimant, having regard to her skills and experience, if seeking to be appointed to a First Line Manager role. The tribunal also accepted the evidence of Paul Brown that Amy Buckle was appointed as a First Line Manager at LOC having passed the aptitude test and on the basis of being the best candidate who had applied for the role concerned. She had also previously worked as an FLM[66]However, it is to be noted that, when the issue raised by the Claimant regarding having applied for a First Line Manager role in April 2022 and not having received a reply was investigated as part of the grievance appeal hearing, it was established that the recruitment process in relation to this second application had not proceeded, as a result of the role being withdrawn.[67]On 10 August 2022 the Claimant e-mailed a grievance to Adam Hewlett. The grievance seems to have been prompted by the Claimant’s awareness of various clerking positions at the LOC being advertised on other sites, namely the Tyrefort and Midpoint sites. There would have been a reason for this happening, in that the plan was that, as vacancies were created by the LOC expanding, employees would transfer from the Tyrefort and Midpoint sites to fill these vacancies, as these other sites were ultimately going to be closed down, so that the employees still at these sites needed to seek to be relocated to positions at the LOC as they would otherwise be at risk of redundancy. Thus, it seems that a similar notice regarding vacancies at the LOC in around February 2022 had also been displayed at the Tyrefort and Midpoint sites but not at the LOC.[68]Thus, when the Claimant became aware of the roles being advertised at other sites and not at the LOC in August 2022, his grievance was complaining that this involved treating employees at the LOC less favourably “than other sites”. - 19 - He referred to this being to the disadvantage of “a minority group already in work at LOC”, but the context in which the Claimant was referring to “this minority” was not in relation to any minority with particular protected characteristics. He was essentially complaining, as appeared to be demonstrated by the limited publication of the notice advertising the vacancies, that employees at LOC were being denied the opportunity to be considered for these vacancies.[69]The grievance hearing took place on 18 August 2022, in person at the LOC. It was conducted by Carl Hayes. The Claimant was accompanied by his union representative, Mohammed Ghani. Ashley Jones, a First Line Manager at the Tyrefort site, attended as a notetaker.[70]At the start of the meeting, the Claimant was given the opportunity to expand further on the reasons for his grievance. From this discussion, the main points of the Claimant’s grievance were established, as set out below:(1) the Claimant felt that the management team at the LOC were biased in their selection of employees for training and that he had been overlooked for clerical and FLM roles despite having a similar skillset to those chosen.(2) his requests and questions regarding development opportunities were ignored.(3) he referred to an incident involving Paul Brown where he said he was made to feel humiliated in an argument and was asked to wait in the canteen alongside other employees.(4) agency workers were chosen for training over him.(5) he was told that he was unable to work with a friend as he said management believed that they were troublemakers.(6) roles at the LOC were advertised at other DHL sites but not within the LOC.[71]Carl Hayes took steps to investigate the grievance. His grievance decision was provided when the grievance hearing reconvened on 25 August 2022 and was set out in the notes of the grievance hearing with this then being referred to in the grievance decision letter. He did not uphold the Claimant’s grievance. He found that management had helped the Claimant on several occasions with online training and in giving him links to job applications. He explained that it had not been feasible to give the Claimant training as a clerical worker because his role as a reach truck driver “was very much a priority role”. He had spoken to Paul Brown regarding the incident when the Claimant stated that he had been humiliated, and reported that Paul Brown recalled no such argument, but the circumstances did not suggest that the Claimant had been singled out or humiliated if he had been asked to wait in the canteen alongside other Warehouse Operatives. In relation to the suggestion that agency workers had been given preferential treatment, Carl Hayes understood that this related a particular agency worker, Matthew - 20 - Morrel, who had been offered training in a clerical role on the basis of previous clerical experience, so this was a decision based on utilising existing strengths. Carl Hayes found no evidence to suggest that the decision had been made that the Claimant could not work together with another individual as they were regarded as troublemakers.[72]Carl Hayes did accept that the Claimant was correct in identifying that vacancies were being advertised at Tyrefort and Midpoint, but not at LOC. Carl Hayes explained that this had been an oversight and had subsequently been resolved as a result of the mistake being identified. This involved the deadline for applications being extended so that employees at LOC were able to submit an application.[73]During the grievance meeting, the Claimant had raised the issue of the two applications from April 2022, namely that he had not received a reply to one application or a reply to the request for feedback in relation to the other application. The decision which was given at the end of the grievance meeting was to the effect that the Resource Centre would have looked at the Claimant’s CV against the job specification and deemed his skillset at the time to be not what the business was looking for at the time, so that his CV would not have been sent to the hiring manager. It was also stated that the Resource Centre does not provide feedback.[74]The Claimant appealed against the grievance decision. Effectively, he raised seven separate grounds of appeal. These related to the matters set out below:(1) the timeframe which had been looked at in considering the Claimant’s grievance;(2) a promise of SAP training when he moved on to night shifts (which had not been fulfilled);(3) opportunities being given to agency workers;(4) Paul Brown had not arranged for training to be provided after the discussion which had been instigated by Luke Jacques (and had offered training to somebody who did not want it);(5) the vacancies would not have been advertised at LOC had the Claimant not raised the matter, by way of his grievance, as to where vacancies for jobs at LOC were being advertised;(6) not being informed as to the outcome of an application for an FLM position (and whether age was a determining factor in this decision);(7) the absence of documentation in relation to a one-to-one meeting which had taken place.[75]A grievance appeal hearing took place on 17 October 2022. The Claimant was given the opportunity to expand upon his grounds of appeal. In the course of doing so, he referred to the age of people who were getting roles when he was not and stated that “I feel there has been an element of racism and ageism in the invective against me”. He suggested that this was “embedded - 21 - in the management consciousness”. These were not issues that he had raised at the time of his original grievance.[76]The grievance appeal was investigated by Dan Wootton. He did not uphold the grievance appeal. He gave his reasons for doing so in a letter dated 16 December 2022. This set out his findings in relation to the seven grounds of appeal as set out below.(1) In relation to the first ground of appeal, Dan Wootton effectively upheld the grievance decision having now looked at the entire period from the Claimant’s move to the LOC.(2) The Claimant had been provided with the level of SAP training which was applicable to his role as a Warehouse Operative.(3) The clerical staff working nights within Panels Operations were employees rather than agency workers, although there were agency workers on other shifts or in other areas who were working in clerical roles. There was now an aptitude test in place for any team members who wished to be considered for clerical type roles so that they could be evaluated as to their skillsets. However, the Claimant had now undertaken such an aptitude test and had scored below the required pass mark. Age was not a factor or consideration in the recruitment process.(4) There had been a one-to-one discussion with Paul Brown around providing the Claimant with training and this had resulted in facilitating the Claimant’s access to MyTalent World. The Claimant had also been given an overview of SAP from a clerical perspective. Whilst Paul Brown intended to afford him learning opportunities in the future, it would have to be facilitated around his normal responsibilities.(5) The advertising, at other sites, but not at the LOC, of vacancies for clerical staff at the LOC, had been on the basis that those working at the LOC already having secured permanent roles, whereas those working at other sites were at risk of redundancy if they did not secure such a role at the LOC. However, this had subsequently been rectified so that there was the opportunity for those working at the LOC to be considered for clerical roles at the LOC, subject to aptitude testing.(6) In relation to the two FLM roles for which the Claimant had applied, he had been provided with feedback by Luke Jacques having been unsuccessful in relation to the first role. The recruitment process for the second role had not proceeded, as a result of the role being withdrawn, so there was no feedback to share. No evidence was found to suggest that race or age was a factor in any recruitment process. - 22 -(7) The discussion with Paul Brown regarding training opportunities had not been documented, but a system had subsequently been put in place for oneto-one discussions to be documented. Comparators[77]The Claimant has put forward the names of a number of actual comparators on the basis that he believed that these were individuals who had been treated more favourably than him. The position in respect of these cited comparators was as set out below:(1) Louise Price was a previous team leader / supervisor who had done clerical work at Castle Bromwich where she had had experience of the CMS3 system which being used there (and which was being replaced by the SAP system);(2) Lee Caddy had previously had the position of FLM at the Castle Bromwich site;(3) Matt Morell had previous experience covering a clerical role and worked on Red Shift where there was a greater need for a Clerk, as opposed to the Claimant who worked on the fixed night shift;(4) Andrew Welsh had been identified as having skills in the SAP system;(5) Dylan Saidler had previous clerical experience;(6) Zac Jones had previous clerical experience;(7) Lauren Parkins had previous clerical experience;(8) Tomaz Wojcik had previously been a Clerk at Midpoint;(9) Sean Yorke had previously had the position of FLM at the Castle Bromwich site;(10) Amy Buckle had previously worked as an FLM.[78]In so far as these individuals were assigned to clerical roles or provided with clerical training, the Tribunal was satisfied that this took into account of the fact that they already had experience or skills which could be utilised. Relevant legal principles Direct discrimination[79]Equality Act 2010 section 13 provides that a “person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.[80]Thus, direct discrimination takes place where a Claimant is treated less favourably, because of the relevant protected characteristic, than the employer treats or would treat others. This can involve comparing the treatment of a Claimant with that or perceived by an actual comparator, comparing the Claimant’s treatment with that which would have been received by a hypothetical comparator. - 23 -[81]Where the relevant protected characteristic is age, direct discrimination may not be unlawful if the Respondent succeeds with a defence of justification, in respect of which Equality Act 2010 section 13(2) is in the terms set out below. “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”.[82]Section 23(1) of the Equality Act 2010 provides that on a comparison for the purpose of establishing direct discrimination there must be “no material difference between the circumstances relating to each case”. In the case of Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 ICR 337, HL, Lord Scott explained that this means that “the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class”.[83]It is not a requirement that the situations have to be precisely the same. The existence of a different decision maker does not prevent the comparison being a valid one (see Olalekan v Serco Limited [2019] IRLR 314).[84]In JP Morgan Limited v Chweidan [2012] ICR 268, Elias LJ gave the guidance (at paragraph 5) set out below. “In many cases it is not necessary for a tribunal to identify or construct a particular comparator (whether actual or hypothetical) and to ask whether the Claimant would have been treated less favourably than that comparator. The tribunal can short circuit that step by focusing on the reason for the treatment”.[85]In every case the Tribunal has to determine the reason for the Claimant having been treated as he or she was. In Nagarajan v London Regional Transport [1999] IRLR 572, Lord Nicholls observed that “this is the crucial question”. He also observed that in most cases this will call for some consideration of the mental processes (conscious or subconscious) of the alleged discriminator. In Gould v St John’s Downshire Hill [2021] ICR 1, EAT, Linden J made it clear that the Tribunal must consider the reason for the actions of the alleged discriminator, as set out below. “The question whether an alleged discriminator acted “because of” a protected characteristic is a question as to their reasons for acting as they did. It has therefore been coined the “reason why” question and the test is subjective… For the tort of direct discrimination to have been committed, it is sufficient that the protected characteristic had a “significant influence” on the decision to act in the manner complained of. It need not be the sole ground for the decision… (and) the influence of the protected characteristic may be conscious or subconscious”. - 24 -[86]The focus is on the mental processes of the person that took the impugned decisions. In a direct discrimination claim, the Tribunal should consider whether that person was influenced consciously or unconsciously to a significant extent by each Claimant’s ethnicity. The decision makers’ motives are irrelevant.[87]If the 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 (see Nagarajan v London Regional Transport [1999] and Igen v Wong [2005] ICR 931, CA).[88]The Tribunal should have regard to the relevant burden of proof in cases of direct discrimination. Equality Act 2010 section 136 provides for a shifting burden of proof, as set out below. “(2) 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. (3) But subsection (2) does not apply if A shows that A did not contravene the provision”.[89]Guidance on the burden of proof was given by the Court of Appeal in Igen v Wong [2005]. This guidance has subsequently been approved by the Court of Appeal in Madarassy v Nomura International plc [2007] ICR 867, and by the Supreme Court in Hewage v Grampian Health Board [2012] ICR 1054 (at paragraphs 25-32). In Efobi v Royal Mail Group Limited [2021] ICR 1263, at paragraph 26, Lord Leggatt made it clear that Equality Act 2010 section 136 had not made any substantive change to the previous law.[90]The burden of proof starts with the Claimant. It is for the Claimant to prove facts from which the Tribunal could infer, in the absence of any other explanation, that the treatment was at least in part the result of the Claimant’s protected characteristic(s). At the first stage, when considering what inferences can be drawn from the primary facts, the Tribunal must ignore any explanation for those facts given by the Respondent and assume that there is no explanation for them. It can, however, take into account evidence adduced by the Respondent insofar as it is relevant in deciding whether the burden of proof has moved to the Respondent. If such facts are established, then the burden of proof transfers to the Respondent to establish on the balance of probabilities that the protected characteristic formed no part of the reasoning for the impugned decisions or treatment.[91]The mere fact that the Claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy the first stage of the shifting burden of proof. It may be that the employer has treated the Claimant - 25 - unreasonably. That is a frequent occurrence quite irrespective of the race or age or other protected characteristics of the employee and will not, by itself, be enough to shift the burden of proof (see Bahl v The Law Society [2004] IRLR 799, and Zafar v Glasgow City Council [1998] IRLR 36).[92]In Madarassy v Nomura International plc [2007] ICR 867, the Court of Appeal emphasised that there must be something more than simply a difference in protected characteristic and a difference in treatment for the burden of proof to shift to the Respondent. Mummery LJ gave the guidance set out below. “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the Respondent had committed an unlawful act of discrimination”.[93]Madarassy v Nomura International plc [2007] was approved by the Supreme Court in Hewage v Grampian Health Board [2012] ICR 1054, where Lord Hope stated that it was important not to make too much of the role of the burden of proof provisions, as et out below. “They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other” (paragraph 32).[94]In Network Rail Infrastructure v Griffiths-Henry [2006] IRLR 865, Elias J at paragraph 15 said that the mere fact that an unsuccessful candidate was a black woman and successful candidates were white men would be insufficient to be capable of leading to an inference of discrimination in the absence of a satisfactory non-discriminatory explanation. To shift the burden of proof, a Claimant must also prove something more. That is, the Claimant must prove facts from which the Tribunal could infer that there is a connection between the protected characteristics and the detrimental treatment, in the absence of a non-discriminatory explanation.[95]However, it is not necessary in every case for a Tribunal to go through the two-stage procedure. In some cases it may be appropriate for the Tribunal simply to focus on the reason given by the employer and if it 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 shifting burden of proof (see Brown v Croydon LBC [2007] IRLR 259, CA, at paragraphs 28 to 39). Time limits - 26 -[96]In relation to discrimination complaints, section 123(1)(a) of the Equality Act 2010 (“EA 2010”) provides that “a complaint … may not be brought after the end” of … “the period of 3 months starting with the date of the act to which the complaint relates” or “such other period as the employment Tribunal thinks just and equitable”. EA 2010 section 123(3)(a) provides that “conduct extending over a period is to be treated as done at the end of the period” and section 123(3)(b) provides that “failure to do something is to be treated as occurring when the person in question decided on it”.[97]In Commissioner of Police of the Metropolis v Hendricks [2003] ICR 530, CA, the Court of Appeal gave guidance as to considering whether allegations of discrimination amounted to an act extending over a period (so that any time limit would run from the end of that period) set out below. “The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of “an act extending over a period”. I agree with the observation made by Sedley LJ, in his decision on the paper application for permission to appeal, that the appeal tribunal allowed itself to be side-tracked by focusing on whether a “policy” could be discerned. Instead, the focus should be on the substance of the complaint that the commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the service were treated less favourably. The question is whether that is “an act extending over a period” as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed” (Mummery LJ at paragraph 52)[98]In Bexley Community Centre v Robertson [2003] IRLR 434, CA, the Court of Appeal provided the guidance set out below. “It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule” (Auld LJ at paragraph 25).[99]Thus, the burden of proof is on a Claimant to satisfy the Tribunal that any complaint was either made within the applicable time limit for doing so, or that it would be just and equitable to extend time.[100]In Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] ICR 1194, CA, the Court of Appeal dealt with the argument that, in the absence of an explanation from the Claimant as to the reasons for not bringing - 27 - a Claim in time and an evidential basis for that explanation, the Employment Tribunal could not properly conclude that it was just and equitable to extend time. The argument was rejected, as set out below. “I cannot accept that argument. As discussed above, the discretion given by section 123(1) of the Equality Act 2010 to the employment tribunal to decide what it ‘thinks just and equitable’ is clearly intended to be broad and unfettered. There is no justification for reading into the statutory language any requirement that the tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation of the delay from the Claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal ought to have regard” (paragraph 25).[101]In Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23, Underhill LJ indicated concern that Tribunals had tended to use the factors relevant in dealing with any discretion to extend time in personal injury cases, as set out in Limitation Act 1980 section 33 as a checklist and advised that they should not do so. He went on to give the guidance set out below. ''The best approach for a tribunal in considering the exercise of the discretion under section 123(1)(b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular (as Holland J notes) “the length of, and the reasons for, the delay”. If it checks those factors against the list in Keeble, well and good; but I would not recommend taking it as the framework for its thinking. The following is a non-exhaustive list of factors which may prove helpful in assessing individual cases: — the presence or absence of any prejudice to the Respondent if the claim is allowed to proceed (other than the prejudice involved in having to defend proceedings); — the presence or absence of any other remedy for the Claimant if the claim is not allowed to proceed; — the conduct of the Respondent subsequent to the act of which complaint is made, up to the date of the application; — the conduct of the Claimant over the same period; — the length of time by which the application is out of time; — the medical condition of the Claimant, taking into account, in particular, any reason why this should have prevented or inhibited the making of a claim; — the extent to which professional advice on making a claim was sought and, if it was sought, the content of any advice given”. - 28 -[102]The fact that a Claimant has awaited the outcome of his or her employer’s internal procedures before making a Claim is just one matter to be taken into account by an Employment Tribunal in considering whether to extend the time limit for making a Claim (see Apelogun-Gabriels v London Borough of Lambeth [2002] ICR 713, CA).
Conclusions
[103]Based on the Tribunal’s findings of fact in relation to the various actual comparators identified, the Tribunal was not satisfied that the potential comparators identified by the Claimant were appropriate comparators. Their circumstances were materially different from those of the Claimant. They were all individuals with previous experience or skills which the Claimant did not have. The point was that they already had previous relevant experience or knowledge or skills, which could be taken into account in deciding whether it made business sense to utilise such existing experience or knowledge or skills in assigning them to clerical roles or training. The Tribunal was not satisfied that a valid comparison could be made between the Claimant’s treatment and that of the cited comparators for the purposes of establishing a relevant difference in treatment[104]Further, even if the Tribunal had been satisfied that there was a relevant difference in treatment, the Tribunal was not satisfied that there was sufficient material from which it could conclude that the difference in treatment was because of race and or age.[105]The Tribunal noted that one of the Claimant’s witnesses, David Walsh, who shared the Claimant’s protected characteristic of race, was offered clerical training, although this was because he had previous relevant experience. This was consistent with the Respondent’s explanation for any decisions made in relation to identifying individuals for clerical roles or clerical training. This individual had been employed for approximately a decade by the Respondent. In cross-examination he stated that “I have never had a problem with race in all the time I’ve been at DHL”.[106]The Tribunal also noted that the Claimant’s first line manager, Paul Brown, was of the same age as the Claimant. He had been successful in securing an appointment to a post as FLM at 58 years of age.[107]Alternatively, the Tribunal was satisfied as to the explanation for any actual comparator being treated differently which was not that of race or age. This was based on the Tribunal’s findings of fact in relation to the various actual comparators, namely that they had been identified for clerical roles or clerical training based on previous relevant experience or knowledge or skills, so that it made business sense to utilise such existing experience or knowledge or skills in assigning them to clerical roles or training. - 29 -[108]Further or alternatively, the Tribunal was not satisfied that there was evidence from which it could conclude that a hypothetical comparator in the same position in all material respects as the Claimant, other than not having the relevant protected characteristic(s), would have been treated any differently. The Tribunal’s conclusion to this effect applied whether the exercise was considered on the basis of a hypothetical comparator who was of a different race to the Claimant, or on the basis of a hypothetical comparator who was of a different age to the Claimant, or on the basis of a hypothetical comparator who was both of a different age and different race to the Claimant.[109]The Tribunal looked at the individual complaints in chronological order.[110]The first complaint related to not being given training as a clerical worker or in the SAP System, in July 2021, despite this this having allegedly been offered if the Claimant agreed to move his place of work to the LOC, to which he agreed.[111]In the first place, the Tribunal was not satisfied that any such offer or representation was made. The secondment was on the basis that the Claimant would continue working as a Warehouse Operative. None of the evidence indicated that training as a clerical worker or in the SAP system would be given to the Claimant beyond the initial two weeks of training, which included training on the SAP system, which was given to every employee transferring given to the LOC. There was no need to give the Claimant further training on the SAP system or training as a clerical worker, as it was not needed for the role he was doing as a Warehouse Operative driving a reach truck. There was no evidence to indicate that the Claimant’s age or race was a factor in the training given to him in July 2021.[112]The second complaint related to the rejection of the Claimant’s application for secondment to the position of First Line Manager.[113]The Claimant was unsuccessful on the basis of the assessment of Luke Jacques that the individual selected for the role, Martynas Ramanauskas, was the individual whose skills and experience made him the most suitable candidate. No evidence was put before the Tribunal to provide a basis for a finding that this assessment was incorrect or that age or race was a factor in this assessment. The fact that the successful candidate’s wife also worked for the Respondent was not a reason for not appointing him to the post, given that arrangements could be put in place to avoid any conflict of interest arising. On the basis of the Tribunal’s findings of fact, as set out above, the Claimant was given feedback in relation to his unsuccessful application.[114]The third complaint was that, in February 2022, the Claimant was not given training as a clerical worker or on the SAP system, despite this having been promised if he moved on to fixed nights, which he did. - 30 -[115]Again, the tribunal did not accept the factual basis being put forward for the complaint. There was no evidence that the Claimant moved to the night shift on the basis of a promise that he could work or be trained as a clerical worker or on the SAP system. He made a considered decision to move to the night shift on the basis that it suited his personal and financial circumstances, mainly because it was significantly better paid. In doing so, he moved to the night shift with his eyes open to the fact that there were likely to be fewer training opportunities on the night shift. Whilst at work, the Claimant’s priority needed to be that of undertaking his role as a Warehouse Operative. There was no obligation on the Respondent to provide him with training opportunities outside of this role. Any lack of training as a clerical worker or on the SAP system was not because of his age or race.[116]The fourth complaint was that of not being given training as a clerical worker or in the SAP System, in March 2022, after raising this with his line manager, Paul Brown.[117]Paul Brown was aware of the Claimant’s interest in training as a clerical worker and / or undertaking a clerical role. As such, he sought to facilitate providing the Claimant with informal training and development opportunities. This principally took the form of allowing the Claimant to spend time shadowing or observing or working with the Clerk who was on duty. This occurred both before and after March 2022 and before and after the discussion on 4 April 2022 in which the Claimant’s aspirations in terms of training and clerical work were discussed as a result of his e-mail to Luke Jacques. This also resulted in steps being taken to ensure that the Claimant was able to undertake training through the Respondent’s MyTalent World online training resource. The extent to which it was possible to facilitate the Claimant’s interest in clerical work and training was limited by the requirements of the Claimant’s job and the limitations involved in working on the night shift. There was no evidence from which the Tribunal could conclude that the Claimant’s age or race was a factor in the provision of such training or opportunities.[118]The fifth complaint was that of clerical vacancies at the logistics operation centre being advertised externally and not at the Logistics Operation Centre (“LOC”) in August 2022.[119]The Tribunal accepted that these vacancies were initially not advertised at the LOC but were advertised at two of the Respondent’s other sites, namely the Midpoint and Tyrefort sites. There was a reason for this, in that the focus of attention for the Respondent was on identifying vacancies at the LOC to be filled by workers from these two other sites, as they would potentially be at risk of redundancy if vacancies were not identified for them, whereas the Claimant and other workers at the LOC had already had posts at the LOC allocated to them. However, it seems to have been accepted that this was an - 31 - error, and steps were taken to rectify the error, so that the vacancies became available to be applied for by those working at the LOC, and the deadline was extended for these purposes. In so far as the failure to advertise the vacancies at the LOC in the first place amounted to a detriment, it was a detriment which affected everyone working at the LOC. There was no evidence to the effect that any decision or error or oversight in relation to not initially advertising the vacancies at the LOC was because of the Claimant’s age or race.[120]The final complaint related to the rejection of the Claimant’s grievance and appeal.[121]Age and / or race discrimination did not form part of the grievance when it was originally made. The possibility of age discrimination was raised by the Claimant for the first time in his grounds of appeal. The possibility of race discrimination was raised for the first time by the Claimant at the grievance appeal hearing. He did not put forward any basis for complaining of age or race discrimination other than suggesting that training and clerical opportunities were being given to younger individuals and through vague reference to a management culture. Carl Hayes and Dan Wootton sought to investigate the matters raised by the Claimant. Dan Wootton did not find anything to indicate that age or race was a factor in the matters about which the Claimant was complaining. There was no evidence before the Tribunal from which the Tribunal could conclude that the Claimant’s age or race was a factor in rejecting the grievance or grievance appeal.[122]In conclusion, the Tribunal was not satisfied that the Claimant had proved, on the balance of probabilities, facts from which the Employment Tribunal could conclude, in the absence of any other adequate explanation, that an unlawful act of discrimination had been committed, namely that the Claimant was treated less favourably, because of any relevant protected characteristic, than an actual or hypothetical comparator.[123]In any event, the Tribunal was satisfied, on the basis of the evidence before the Tribunal, that any explanation for the treatment of the Claimant was not that of age or race.[124]In any event, for completeness, in view of our findings regarding the various matters complained about, the Tribunal was not satisfied that any complaints about matters which were outside the primary three-month time limit could be said to be in time on the basis of being part of conduct extending over a period. Other than the complaint in respect of the grievance appeal decision, the Claimant’s various complaints were significantly out of time. The Tribunal has concluded that there was no discrimination involved in the treatment of the Claimant with regard to the grievance appeal. As such, there was no conduct extending over a period which had continued to a point of time which was less than three months before the Claimant took the first step of notifying ACAS of - 32 - a prospective Claim. It follows that the Claimant’s other complaints were already significantly out of time by the point in time when the Claimant notified ACAS on 5 October 2022. There was no satisfactory explanation for the delay in commencing proceedings. The Claimant had the benefit of union representation throughout the grievance and grievance appeal process. Although the grievance appeal process only concluded with a reconvened grievance appeal hearing at which the outcome was communicated to the Claimant on 5 December 2022, with this being confirmed in writing on 16 December 2022, the ongoing grievance appeal did not adequately explain any delay in commencing proceedings given that ACAS had been notified of the prospective Claim before the grievance appeal hearing took place. Moreover, although an ACAS certificate was issued on 16 November 2022, the Claimant did not present a Claim to the Tribunal until 21 February 2023. Again, there was no satisfactory explanation for this delay.[125]Any decision as to whether or not it was just and equitable to extend time did not depend upon it being established that there was prejudice caused to the Respondent through any delay. This was simply a factor to be taken into account. However, the Tribunal was satisfied that the delay in bringing proceedings had caused prejudice to the Respondent. This was illustrated by the difficulties in establishing the position in relation to the various comparators. This would have been a more straightforward case for the Respondent to defend if the proceedings had been brought in time. Clearly, any decision to refuse an extension of time would cause prejudice to the Claimant in that it would defeat those complaints which were outside the primary time limit of three months, at this prejudice did not, in itself, give rise to a right to an extension of time. Most of the complaints were significantly out of time. The Claimant had been assisted by a trade union representative throughout the grievance process. Indeed, he had a trade union role himself. He also had had experience of bringing previous Tribunal cases.[126]The case law referred to above makes it plain that it is for the Claimant to satisfy the Tribunal that an extension of time would be just and equitable. The Tribunal was not satisfied that the case for an extension of time had been made out in this way. Postscript[127]After the Judgment had been announced and detailed oral reasons for the Judgment provided, the Tribunal checked if either of the parties wished to raise any matter arising out of the outcome of the case. At this point, the Claimant raised an issue to the effect that the lack of feedback about which he was complaining was not in relation to the application dealt with by Luke Jacques (paragraph 2.1.2 in the List of Issues above, which had subsequently been clarified on the basis that it was related to an application in January 2022) but was in relation to a different application. - 33 -[128]It was explained to the Claimant that the Tribunal had dealt with the case on the basis that it was accepted that the List of Issues set out the complaints which the Claimant was pursuing and which the Tribunal needed to determine. It had not been suggested by the Claimant that the List of Issues was incorrect. The Case Management Order of Employment Judge Maxwell had specifically flagged up the need to do so if the List of Issues was incorrect. Indeed, the List of Issues had been the subject of scrutiny at the outset of the case and the Respondent had subsequently suggested that the first complaint (paragraph 2.1.2) which also included a complaint about a lack of feedback, must relate to the Claimant’s unsuccessful job application in January 2022 (rather than any application in January 2020). The Claimant had not sought to suggest that this correction as to the date was wrong. In any event, if the Tribunal had been dealing with a complaint about a job application which was unsuccessful in January 2020, then the Tribunal had no evidence before it regarding any such matter. If the Tribunal was dealing with another occasion when a job application had been unsuccessful or feedback had not been provided, then this was not one of the complaints identified by the List of Issues as being before the Tribunal, and the Claimant had only raised an issue regarding the list of complaints contained within the List of Issues being incorrect or incomplete after judgment had been given.[129]The Claimant does refer in his Statement of Evidence to having made applications for FLM positions in April 2022 and raises issues in respect of the not receiving a reply to one application or feedback in relation to another. However, the List of Issues does not identify any complaints in relation to any applications or outcomes or lack of feedback from April 2022. It can also be seen that the details of Claim at section 8.2 of the ET1 Form of Claim do not refer to issues in respect of any applications in April 2022. As such, these were not issues that the Respondent was on notice to address directly in its Statements of Evidence. However, the findings of fact made by the Tribunal, based on the evidence in the Bundle, was that the Claimant’s request for feedback following an unsuccessful application in April 2022 was not responded to because the e-mailed request was sent to a do not reply e-mail address, and the grievance appeal process established that the recruitment process in relation to this second application in respect of which the Claimant stated he had not received a reply, had not proceeded, as a result of the role being withdrawn.[130]In any event, the Tribunal’s conclusions on the issues of time limits and the failure of the Claimant to establish a prima facie case of discrimination which would have caused the burden of proof to pass to the Respondent, would apply equally to any complaints in relation to the April 2022 applications. Outcome - 34 -
Outcome
[131]It follows that the conclusion of the Tribunal is that the complaints of direct discrimination on the grounds of age and / or race are dismissed.