Employment Judge Wynn-EvansIn person for claimantMr D Bansal (instructed by Solicitor) for respondentDate 4 May 2020
JUDGMENT
[1]No order shall be made for a deposit in accordance with rule 39 of the Employment Tribunal Rules of Procedure 2013.[2]The claimant’s claims shall not be struck out on the basis of having no reasonable prospect of success in accordance with rule 39 of the Employment Tribunal Rules of Procedure 2013.[3]The Claimant is permitted, by way of amendment to his claim form, to advance the allegations set out in the further information document sent to the tribunal on 7 September 2018.[4]The Claimant did not present his complaints of unlawful discrimination related to his protected characteristics of race or religion contrary to the Equality Act 2010 within the time limit set out in section 123(1)(a) of the Equality Act 2010 but he presented his complaints within a period which the Tribunal thinks just and equitable under section 123(1)(b) of the Equality Act 2010.[5]The Claimant’s claim is amended such that his claim is both of direct discrimination for the purposes of section 13 of the Equality Act 2010 and of harassment for the 1 ph outcome re case management Nov 2014 version Case Number: 1303155/2018 purposes of section 26 of the Equality Act 2010 because of the protected characteristics of race and religion.
REASONS
[1]In these proceedings the Claimant brings complaints of unlawful discrimination on grounds of race and religion as well as claims for arrears of pay and other payments. An Open Preliminary Hearing was listed to determine, in addition to case management generally, the issues set out in the order of EJ Camp set out in the tribunal’s letter to the parties of 16 August 2018. This hearing was conducted by Employment Judge Wynn-Evans sitting alone on Monday 21 January and Tuesday 12 February 2019 and the tribunal’s decision is as follows.
Introduction
[2]The issues to be determined were:- 2.1. are all of the complaints the Claimant wishes to pursue contained within the claim form and in relation to any which are not should the Claimant be given permission to amend (“the amendment issue”). 2.2. whether any part of the Claimant’s claim has no reasonable prospect of success and if so whether pursuant to rule 37 all or any part of the claim should be struck out (“strike out issue”). 2.3. whether any specific allegation or argument forming part of the Claimant’s claim has little reasonable prospect of success and if so whether, pursuant to rule 39, the Claimant should be ordered to pay a deposit (and if so how much) as a condition of continuing to advance any such specific allegation or argument (“deposit issue”). 2.4 (as part of 2.2 and/or 2.3) but also potentially in its own right) were all of the Claimant’s complaints presented within the relevant time limits (including whether time should be extended on a “just and equitable” and/or “not reasonably practicable” basis (“the time limits issue”).[3]The Claimant, who gave evidence concerning the issues to be determined in this hearing, represented himself and the Respondent was represented by Mr Bansal, solicitor. I had before me an agreed bundle, the Claimant’s statement and the Respondent’s skeleton argument. The one day listing proved to be ambitious, despite the tribunal sitting late, and the hearing was continued into a second day.[4]I remind myself of the relevant statutory provisions which I read into this judgment and with which the parties are familiar from the discussions during the hearing and the respondent’s skeleton argument.[5]With regard to the applicable time limits the relevant provisions are set out in section 123 of the Equality act 2010 and more specifically in its section 123(1) and section 123(3)(a):- (1… proceedings on a complaint within section 120 may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable. (2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.[6]With regard to the strike out issue the relevant provisions are at rule 37 of the Employment Tribunals Rules of Procedure:- Striking out 37.—(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds—(a) that it is scandalous or vexatious or has no reasonable prospect of success;(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;(c) for non-compliance with any of these Rules or with an order of the Tribunal;(d) that it has not been actively pursued;(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out). (2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. (3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in rule 21 above.[7]With regard to the deposit issue the relevant provisions are at rule 39 of the Employment Tribunal Rules of Procedure:- Deposit orders 39.—(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. (3) The Tribunal’s reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order. (4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. Where a response is struck out, the consequences shall be as if no response had been presented, as set out in rule 21. (5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order—(a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and(b) the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded. (6) If a deposit has been paid to a party under paragraph (5)(b) and a costs or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order. Case law guidance[8]In determining the various matters before me and with reference to the principles which were drawn to my attention by the respondent I remind myself of the following case law guidance.[9]In relation to the power to strike a claim out on the basis of no reasonable prospect of success, it is clear that the tribunal must form a view on the merits of the case and conclude that the claim has no reasonable prospect of success if this power is to be exercised. The question is not one of the balance of probabilities – it is of no reasonable prospects of success and the case law guidance is particularly clear in relation to discrimination complaints which are fact sensitive. Anyanwu v South Bank Students Union [2001] ICR 391 makes clear that, where there is an allegation of discrimination and clear dispute on the facts, the power to strike out will only be exercised in exceptional circumstances and emphasises the importance of not striking out discrimination cases save in the most obvious cases as they are generally fact sensitive and require full examination to make a proper determination. Upon initial consideration a tribunal is required to consider the arguability of every claim (Eastman v Tesco Stores Ltd [2012] All ER (D) 264. As was made clear in Balls v Downham Market High School and College [2011] IRLR 217, the tribunal must first consider whether, on a careful consideration of all the available material, the claim has no reasonable prospects of success. The test is not whether the claim is likely to fail or that it is possible that it will not is it one which entails considering whether the respondent’s written and/or oral submissions are likely to be established. It is necessary to take the claimant’s case “at its highest” i.e. to assume that the Claimant will make good his factual allegations.[10]With regard to the making of a deposit order it was clarified in Van Rensburg v Royal Borough of Kingston-upon-Thames that the test of little reasonable prospect of success is plainly not as rigorous as the test as to whether a claim has no reasonable prospect of success but that the tribunal must have a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim or response. The purpose of a deposit order, as was confirmed by the EAT in Hemdan v Ishmail and or [2017] ICR 486 is to identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of cost if the claim failed.[11]With regard to time limits, the power to extend time on a just and equitable basis is the exception rather than the rule as was made clear in Robertson v Bexley CC [2003] IRLR 434. The requirement is that the extension should be just and equitable (Pathan v South London Islamic Centre Limited EAT 0312/13). It is also clear from the case law, including Southwark London Borough Council v Afolabi [2003] ICR 800, which I drew to the attention of the parties, that, whilst the checklist in section 33 of the Limitation Act 1980 provides a useful guide for tribunals, it should not be followed slavishly – it was made clear that there are two factors which are almost always relevant – the length of and reasons for the delay and whether the delay has prejudiced the respondent for example by preventing it or inhibiting it for investigating the matters while fresh. That said, the factors set out in the Limitation Act are, for completeness, the length of and reasons for the delay, the extent to which cogency of evidence is affected by the delay, the extent to which the party sued has cooperated with requests for information, the promptness with which the claimant acted once he knew of the facts giving rise to the cause of action and the steps taken by the claimant to obtain appropriate advice once he knew of the possibility of taking action.[12]I also drew to the parties’ attention the decisions in Wright v Wolverhampton Council EAT 0117/08 - where the EAT held that the discretion to extend time should be granted where incorrect advice received from a trade union official before and after the claimant submitted an out of time discrimination claim - and Hunwicks v Royal Mail Group EAT 003/07 where a union’s incorrect advice did not cause the claim to be lodged late so no extension of time was appropriate. These decisions are not of course binding precedents but demonstrate that advice received from a trade union can be a relevant factor to bear in mind when considering the just and equitable time point.[13]With regard to amendments, in exercising its broad discretion under rule 29 to allow amendments at any stage of the proceedings in accordance with the overriding objective the tribunal must always, as confirmed in Selkent Bus Co Ltd v Moore [1996] ICR 836 carry out a careful balancing exercise of all the relevant factors, having regard to the interests of justice and the relative hardship that would be caused to the parties by granting or refusing the amendments. As Mummery P noted in Selkent applications to amend are of many different kinds ranging on the one hand from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleased to and on the other hand the making of entirely new factual allegations which change the basis of the existing claim. The tribunal has to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action. As HHJ Serota noted in Remploy Ltd v Abbott EAT/0405/14, if fresh points can properly be considered to be particularisation of an allegation already pleaded, a more liberal approach may be taken in considering whether to grant permission to amend than in cases where the point is a “new points” or will require the parties to produce further evidence or disclosure and prejudice the timetable set for the proceedings or cause further delay. Chronology[14]The chronology of events in this case is as follows and to this extent set out below is uncontroversial. The Respondent operates a residential and day school for children with special needs up to the age of 19. The Claimant, who is Sikh, commenced employment with the Respondent as a Weekend Support Worker on 9 August 2017. On 5 October 2017 the Claimant was suspended on full pay pending an investigation into an alleged safeguarding incident involving the Claimant and a pupil (whom the parties have previously agreed would be treated with anonymity, there being no formal order to that effect as yet in these proceedings. On 6 October 2017 the alleged safeguarding incident was reported to the Police who interviewed the Claimant on 2 November 2017. In a letter of 7 December 2017 the Worcestershire County Council Safeguarding Board concluded that there was insufficient evidence to prove or disprove the allegation. On 18 December 2017 the Claimant submitted a formal grievance concerning his suspension ahead of an investigation meeting which the Respondent had convened for 19 December 2017.[15]By letter dated 21 December 2018 the Respondent confirmed that no action was to be taken against the Claimant and lifted his suspension with effect from 31 December 2017. The Claimant has not subsequently returned to work and the only fit notes certifying his medical position which were before the tribunal cover the period from 5 May 2018 onwards. These were submitted to the Respondent on or about 8 June 2018.[16]Following a grievance meeting on 5 January 2018, the Respondent dismissed the Claimant’s grievance confirming this in a letter of 19 January 2018. The Claimant lodged an appeal against that decision by letter dated 25 January 2018. The appeal meeting was held on 15 February 2018 and the decision to dismiss that appeal confirmed to the Claimant in a letter dated 5 March 2018. Whilst an investigation meeting and disciplinary process then ensued – with an investigation meeting scheduled for 18 April 2018 and a formal disciplinary meeting scheduled for 24 April and subsequently rescheduled to 27 April - the detail of that disciplinary process was not before the tribunal.[17]The Claimant commenced early conciliation by contacting Acas on 6 April 2018 and an Early Conciliation Certificate was issued on 20 May 2018. The Claimant presented his claim form to the tribunal on 19 June 2018.[18]On this basis it is uncontroversial that the last alleged act in relation to the Claimant’s discrimination claim as pleaded in his ET1 occurred on 5 October 2017, that therefore the primary time limit for the purposes of section 123(1)(a) EA 2010 expired on 4 January 2018 without the benefit of any extension by virtue of early conciliation having been conducted, and that the Claimant contacted Acas nearly 3 months after the expiry of the primary 3 month time limit and some six months after the last act of discrimination about which he complains in his ET1. The Claimant’s claims[19]In his application to the tribunal the Claimant complains of unlawful race and religion discrimination as well as for arrears of pay and other payments. The Claimant’s claims in respect of pay relate to the claimant’s sick pay entitlement to which I return at the end of this decision.[20]With regard to his discrimination complaints the Claimant does not complain about the decisions of the Respondent with regard to the investigation which the Respondent conducted into the safeguarding incident which led to his suspension, the length of his suspension, the decision as to whether any disciplinary action should be taken, the conduct of or decisions reached in relation to his grievance and grievance appeal or the commencement of an investigation into his unauthorised absence and possible subsequent potential disciplinary action. He has not brought a claim in these proceedings - by way of an amendment to these proceedings or in a separate claim - in respect of the period subsequent to his suspension save in respect of the issue of non-payment of wages to which I return below.[21]In his claim form the Claimant raised six grievances the first of which is not a complaint as such but rather a statement of fact as to his happiness on joining the Respondent and his long-term goals. In his interlocutory order, EJ Camp ordered the Claimant to set out his allegations in detail providing information about every single complaint being made in the proceedings including the number of the allegation, its date, what happened, and the type of complaint the claimant provided these details on 7 September 2018. Taking the claim form and the further information document together, the matters the Claimant complains of can be summarised as follows adopting the paragraph numbering from the Claimant’s further information document:- - Allegation 1- a complaint about certain hand gestures allegedly being made by a colleague which were offensive to Sikhs on 9 August 2017. - Allegation 2 – a complaint about the Deputy Headteacher allegedly undermining the Claimant on 5 September 2017 by saying to the Claimant that he needed QTS – qualified teacher status – for his position. - Allegation 3 – a complaint about disobliging comments made to him by a colleague in early September 2017 about the locality where the Claimant lives which had the effect of humiliating and discriminating against the Claimant on the basis that the populations of the area referred to – West Bromwich - together with its surrounding areas have a high concentration of BME and in particular Turban wearing Sikhs. - Allegation 4 – a complaint about an offensive comment being made on 3 October 2017 by a colleague suggesting that the Claimant works as a male escort in his spare time. The Claimant contended that this comment had racial/religious connotation essentially in light of public debate about alleged Asian grooming gangs. - Allegations 5 and 6 – a complaint about racist remarks being made by a colleague on 5 October 2017 regarding the lack of coloured people in Herefordshire and the claimant being suspended following the safeguarding allegation.[22]In his further information the Claimant included an additional complaint - numbered 7 and which I shall refer to as Allegation 7. This was not included within the Claimant’s claim form. The Respondent objects to this Allegation 7 as an amendment to the Claimant’s claim. The Claimant contends he did not have space to include it in his claim form. This additional complaint had been raised in the Claimant’s grievance complaint to the Respondent and relates to the Respondent’s alleged refusal to allow the Claimant to be accompanied by a union representative to the Respondent’s internal investigation and associated matters. I return to Allegation 7 below. Whistleblowing claim[23]EJ Camp had addressed in his directions the clarification of whether and on what basis the Claimant had brought and was seeking to proceed with a whistleblowing complaint and this is a convenient point at which to discuss that issue.[24]In describing his claims in his claim form and in the boxes ticked indicating the claims he was bringing, the Claimant referred only to discrimination. He did not refer to whistleblowing or being subjected to a detriment as a result of having made a protected disclosure. Indeed at this hearing it was apparent that the Claimant was not aware of the nature of a whistleblowing claim which I proceeded to explain to him.[25]That said, the Claimant included as part of the additional information set out on page 12 of his claim form additional material which is descriptive of the wider context of his complaint and also records the Claimant’s belief that the Respondent school should be investigated and changes made including its closure. The Claimant also refers to a safeguarding concern and a breach by a colleague of a physical intervention policy. However, these matters are not referred to or described in the claim form - or indeed the further information provided in response to EJ Camp’s order - as whistleblowing issues.[26]The Claimant did not comply with EJ Camp’s order to provide as precisely as possible the following information if he is making a claim of protected disclosures/whistleblowing of any kind – when and what circumstances was it made, to whom was it made, was it made orally or in writing; what words were used.[27]In my view, on a proper reading of the Claimant’s claim form, he has not brought a claim based on whistleblowing. Nor has he sought to add such a claim either in his further information or in an application at this hearing to amend his application to the tribunal to add such a claim. It is clear in my judgment that there is no such claim before the tribunal and that this remains the case, not least given the Claimant’s failure to comply with EJ Camp’s order with regard to particularising any whistleblowing claim he was seeking to bring and in the absence of an application by the Claimant to amend his claim to include a whistleblowing claim - either before or at this hearing when the matter was again addressed. Strike out/deposit[28]I will now deal with the issues of whether the Claimant’s claims should be struck out on the grounds of having no reasonable prospect of success or should be the subject of a deposit order on the grounds of their having little reasonable prospect of success. The factual allegations set out in the Claimant’s claim form, as expanded upon in the further information which he has provided, clearly indicate in respect of each of his specific allegations a substantial dispute of fact as to what was said and by who and with what discriminatory connotation. Whilst the alleged comments about the Claimant needing QTS and being a male escort in his spare time neither have ostensible racial or religious connotations, they do form part of a series of allegations the context and connotations of which need to be tested by proper evidence. Having considered the documentation before me and the parties’ submissions, and bearing in mind the judicial guidance provided in the case law as to the approach to be adopted to the making of strike out and/or deposit orders, I do not accept that I could form the view that taken at their highest the allegations would have no or little reasonable prospect of success. There is nothing cogent before me which persuades me that these allegations have no or little reasonable prospect of success when they are, separately and cumulatively, allegations about specific interactions the veracity of which can only properly be tested by oral evidence. No order will therefore be made in respect of the strike out and deposit issues. Time Limits[29]I will now set out my findings in relation to the issue of whether the Claimant’s claim should be allowed to proceed in time limit terms on the just and equitable basis. Other than in respect of his unlawful deductions and other payments claims to which I return below, the matters about which the Claimant complains in his claim form span the period from 9 August 2017 to 5 October 2017. The Claimant raised his grievance on 18 December 2017 but did not contact Acas for the purposes of early conciliation until 6 April 2018 and did not commence proceedings until 19 June 2018. It is therefore clear that his claims as set out in his claim form are significantly out of time as the primary three month time limit expired effectively on 4 January 2018. Early conciliation was commenced therefore just over three months after the primary time limit had expired.[30]In assessing the Claimant’s explanation for this delay in relation to the time limit issue, and his evidence in that regard, the Claimant is an educated, articulate and intelligent individual, although I cannot help but observe that the Claimant on occasion struggled to answer questions succinctly or directly and tended to stray into the wider aspects of the litigation and the current political climate rather than remain focused on the questions being considered by the tribunal in this hearing. That said, I did not have any specific basis on which not to accept his evidence with regard to the advice which he received and the decisions which he took with regard to dealing with his concerns with his employer.[31]In reaching my decision on the time limit point, I bear in mind the following matters which I have derived from my assessment of the evidence I have heard from the Claimant, the documentation before me, and the parties’ submissions.[32]The Respondent contends that the Claimant’s delay is attributable to the Claimant and his advisers and that the Claimant’s union representative who was supporting and advising him should and would have known that time was “ticking”. In my assessment, since the test in a discrimination claim such as this is what is just and equitable rather than what was reasonably practicable, this contention require more detailed assessment since, as is clear from the case law that I have referred to, the fact that union advice was taken and followed can be a relevant factor to place in the balance.[33]Throughout the period from his suspension onwards the Claimant had access to advice and support from his trade union, the NEU. The Claimant was assigned a caseworker, Helen Turner, who assisted him with regard to his employment situation and a legal adviser, Jane Siddons who, as the Claimant stressed, made clear to him that she was only advising the Claimant on the criminal law aspects of the alleged safeguarding issue which had led to the Claimant’s suspension and not on any employment related issues. In the period prior to his grievance appeal being rejected, the Claimant was not receiving formal legal advice from the union on his employment position from a qualified lawyer but was being supported and advised by Ms Turner as a case worker in dealing with his employment position and grievances. Only when the Claimant’s grievance appeal was eventually rejected did the union provide the Claimant with employment law advice from a qualified solicitor when Avril Bailey became involved and handled the steps of contacting Acas in relation to the Early Conciliation process.[34]When he lodged his grievance in December 2018, the Claimant was not contemplating employment tribunal proceedings despite the reference in that grievance to discriminatory conduct. I accept that at that stage he wished to ensure that the situation with his employer was resolved and that he was being guided by his union as to how he should address the concerns which he had with regard to his alleged discriminatory treatment.[35]In his witness statement the Claimant indicated that he had been told by his union representative that he needed to submit a grievance to the school first and foremost to take matters forward and that this would need to be done within 3 months less one day from the date of the incident. The Respondent contended that the Claimant’s recollection was mistaken and that the time limit which the union drew to his attention was the time limit applying in relation to the commencement of tribunal proceedings rather than for lodging an internal grievance. Nonetheless, the Claimant was adamant, and I accept, that the Claimant’s trade union adviser told him, following his suspension, that he had three months less a day following the date of the last incident to submit a grievance to the school. As an intelligent individual, and one who had not sought to research his rights separately from his engagement with his own trade union, I find it inherently unlikely that the Claimant (who was, as he put it, a first time litigant, and was taking the advice of the union as to how best to proceed) would have misunderstood what he was being told by the union adviser whose guidance he had sought and whose advice he was following as to the resolution of his concerns.[36]I accept that the Claimant was advised by his union that the police issues concerning the safeguarding complaint were more of a priority than his grievance. Given the criminal aspects of the matter and the more immediate developments in terms of police interviews and the associated process, it is perhaps understandable that this was the union’s view as a matter of practicality and the seriousness of the consequences of potential criminal issues. However, the union nonetheless remained involved in the grievance process and were advising the Claimant during this time, not least as evidenced by the fact that the union eventually lodged the grievance on the Claimant’s behalf in December 2017. The apparent priority in dealing with the Police matters does not detract from the fact that the Claimant was nonetheless also guided by the union in relation to the handing of his grievances.[37]The Respondent sought to argue that the Claimant only lodged his grievance on 18 December 2017 in order to disrupt or interfere with the investigation process which the Respondent was about to commence in relation to the safeguarding incident. On the basis of what was before me, that allegation is not made out not least as an assessment of that serious contention could only properly be made after full consideration of all the surrounding circumstances and the evidence of the Claimant on the issues of fact to be addressed by the tribunal at a full hearing of this matter. This argument was nothing more than an assertion.[38]I am satisfied that the Claimant was not waiting for the Respondent to complete his grievance and appeal process before deciding whether or not to start a tribunal claim. This was not his thought process. On the Claimant’s evidence, as a “first time” litigant, as he put it, he was guided by his trade union and it was only once the grievance decision had been delivered in January that his union representative indicated a level of concern which led to an appeal and then, when that appeal was also unsuccessful, to discussion about potential employment tribunal proceedings. I accept that the Claimant was guided throughout by his union representative and that he did not take an active decision not to institute proceedings at an earlier stage than he did – he was simply following the guidance given by the union to seek to address his concerns.[39]The Respondent’s principal argument in relation to the prejudice which the Respondent would face if the Claimant’s discrimination claims were allowed to proceed was that a number of the individuals involved in the investigation grievance and appeal in which the Claimant was involved had ceased employment with the Respondent and would be unlikely to attend the hearing voluntarily. With all due respect to that argument, the departure or unavailability of key witnesses is a potential risk for any Respondent or indeed party to litigation regardless of whether the claims in question were lodged in time. In my assessment the departure of witnesses from the Respondent’s employment does not adversely impact its ability to understand, investigate and respond to the Claimant’s claims, not least in light of the fact that the matters raised by the Claimant in his claim were all raised in detail in the Claimant’s grievance and therefore were addressed and considered by the Respondent in the course of the grievance and appeal process and have been pleaded to in detail in the Respondent’s response to the Claimant’s claims.[40]Absent the specific advice which the Claimant received from his union representative, the Respondent would have had a very cogent argument that it would not be just and equitable to allow the claims to proceed since the Claimant, as an intelligent individual, could reasonably have been expected to be aware of or to research the applicable time limits and therefore would likely have had insufficient excuse for the late presentation of his discrimination claim to render it just and equitable to allow that claim to proceed. However, taking all the above matters into account, and whilst acknowledging that an extension of time on a just and equitable basis is not the norm, I have concluded that I should permit the Claimant’s claims to proceed on the just and equitable basis given that he was reliant on his trade union for guidance and acted in accordance with their advice and counsel throughout the relevant period. He should not be precluded from bringing his claim as a result of only doing so after his grievance and appeal concluded when the advice from the union led him to that position. Amendment – Allegation 7[41]The Claimant’s Allegation 7 – relating to his complaint in relation to his not being allowed to be accompanied to the investigatory meeting and associated issues – was raised by the Claimant in his grievance but not in the Claimant’s claim form. The Claimant contends that this omission is because he did not have space to include this complaint in his claim form. I did not find that to be a compelling argument given that page 7 was not completely filled with narrative. In my assessment there is no basis to suggest that this Allegation 7 complaint was included in the original claim form. It was only sought to be introduced by the Claimant in his further information document filed with the tribunal on 7 September 2018 and therefore constitutes an amendment to the Claimant’s claim.[42]Taking into account the case law set out above with regard to amendments, and having regard to the interests of justice and the relative hardship that would be caused to the parties by granting or refusing the amendment, I have concluded that this amendment should be allowed. In his claim form the Claimant does refer to his grievance, which incorporated Allegation 7, and references his suspension. In light of those references and the tribunal’s direction that the Claimant set out his claim in detail in the further information document subsequently produced, I consider Allegation 7 to be an expansion of and clarification of his complaints even though its factual detail was not set out in detail in the Claimant’s claim form. In light of the detailed grievance process which was undertaken by the Respondent and which addressed Allegation 7, to allow this additional allegation to proceed would not require the Respondent to produce further evidence which is not already available to it nor would allowing the amendment cause prejudice to the Respondent as it has already considered and delivered its grievance decision on the complaint in question. That witnesses may have left the Respondent’s employment does not in my view cause prejudice given the substantive response already given in the grievance and appeal process. In relation to the time limit aspect of this amendment, I adopt the reasoning and conclusions set out above in relation to time limit points concerning the other aspects of the Claimant’s claims and do not consider that the late presentation of this complaint should preclude the amendment being granted not least given that this Allegation 7 was raised at the stage where further information was required by the tribunal - before any timetable has been set - and in essence expands upon the Claimant’s complaints about his treatment in the period from the commencement of his employment until the investigation stage. I therefore consider that it is in the interests of justice that this amendment should be permitted. In relation to this Allegation 7, I do not consider that it should be struck out or a deposit order made by reference to its prospects of success for the same reasons as set out above in relation to the other aspects of the Claimant’s claim. Harassment[43]The Claimant refers specifically to harassment in relation to Allegations 1, 3, 4 and 5 but not Allegation 2. In my view the Claimant’s Allegations 1 to 5 should be treated as complaints of direct discrimination and of harassment. Having raised this issue with the parties before reaching my decision and considering their submissions, in my view the Claimant’s claims should be clarified and amended so as to be claims of direct discrimination for the purposes of section of the Equality Act 2010 and of harassment for the purposes of section 26 of the Equality Act 2010 in both cases because of the protected characteristics of race and religion. This amendment in my view constitutes merely a relabelling of the existing pleaded facts as amended in accordance with my decision as above and is therefore an amendment which I can permit without difficulty. Unlawful deductions/other payments[44]It is clear that, on a proper reading of the claim form and on the basis of the discussions conducted at this hearing, the Claimant’s claim in respect of unlawful deductions and arrears of pay relates solely to the non-payment of sick pay in respect of the period from January 2018 onwards until presentation of the ET1 on 19 June 2018. There is therefore no time issue in relation to this series of deductions - in terms of non-payment of sick pay - which was continuing as at the point the Claimant commenced Early Conciliation and these proceedings.[45]The Respondent’s response to the Claimant’s claim had indicated that the reason for non-payment was failure to provide sick notes. It was, however, clear from the bundle that in respect of the period from 5 May 2018 onwards the Claimant had provided fit notes. At the first day of hearing the Respondent, having been given the opportunity to reconsider its position, contended that the reason for non-payment of sick pay was that the Claimant was not actually entitled to sick pay by reference to the relevant earnings qualification requirements. In light of this position being different from its pleaded case, and the lack of direct evidence on the point, the Respondent was requested to reconsider the position in order that the position could be clarified on the second day of the hearing. As the position was not fully clarified by the end of the preliminary hearing the Respondent will need to consider this issue as the matter proceeds.[46]In conclusion my judgment on the issues to be determined at this Preliminary Hearing - No order shall be made for a deposit in accordance with rule 39 of the Employment Tribunal Rules of Procedure 2013. - The claimant’s claims shall not be struck out on the basis of having no reasonable prospect of success in accordance with rule 39 of the Employment Tribunal Rules of Procedure 2013. - The Claimant is permitted, by way of amendment to his claim form, to advance the allegations set out in the further information document sent to the tribunal on 7 September 2018. - The Claimant did not present his complaints of unlawful discrimination related to his protected characteristics of race or religion contrary to the Equality Act 2010 within the time limit set out in section 123(1)(a) of the Equality Act 2010 but he presented his complaints within a period which the Tribunal thinks just and equitable under section 123(1)(b) of the Equality Act 2010. - The Claimant’s claim is amended such that his claim is both of direct discrimination for the purposes of section 13 of the Equality Act 2010 and of harassment for the purposes of section 26 of the Equality Act because of the protected characteristics of race and religion.[1]The claimant’s claims of direct race discrimination (race and/or religion/belief) and harassment related to race and/or religion or belief under section 13 and section 26 Equality Act 2010 fail and are dismissed.[2]Following withdrawal by the claimant on 20 January 2020 the complaint of unauthorised deduction from wages was dismissed by judgment sent to the parties that day. His remaining complaints were of direct race discrimination (race and/or religion/belief) and harassment related to race and/or religion or belief under section 13 and section 26 Equality Act 2010 (‘EqA’).[3]On 20 24 27 and 28 January 2020 the claimant had a McKenzie friend (Mr Rashid) with him during the hearing. The claimant has anxiety and throughout the hearing the tribunal made any reasonable adjustments sought by him.[4]On 21 January 2020 the claimant made an application to amend his claim to add a complaint of victimisation under section 27 EqA. The tribunal refused that application for reasons it gave at the time. In written submissions Mr. Wheaton referred to the defence available to respondents under section109 (4) EqA but conceded during his oral submissions no such defence had been pleaded.[5]Witness statements had not been exchanged until 20 December 2019.On 30 December 2019 the claimant had made application for 11 witness orders including for Mr Coombs (the respondent’s former head teacher) and Helen Turner (the claimant’s trade union representative) .Those applications were determined by Employment Judge Butler on 7 January 2020 and only 3 were granted (for Georgina Martin Dean Spiers and Linda Evans).There was a preliminary hearing before Employment Judge Findlay on 15 January 2020. Paragraph 20 of the order she sent to the parties made it clear the claimant could renew his applications for witness order applications for Mr Coombs and Ms Turner at the commencement of this hearing. He did not do so, nor did he appeal Employment Judge Butler’s decision not to grant any of the witness order applications.[6]We heard evidence from the claimant. Mr Wheaton chose not to cross examine the claimant’s brother and Ms Turner (both of whom had prepared very short witness statements). Their witness statements were admitted in evidence. However, we gave them very little weight because their contents were of little relevance to the factual or legal issues we had to resolve.
Evidence
[7]On behalf of the respondent we heard evidence from Merlin Beedie (the respondent’s training manager) ,Jakob ‘Kuba’ Poturalski (currently the respondent’s Deputy Head of Care) ,Mark Maloney ( a teacher at the respondent) ,Holly Green ( a teaching assistant at the respondent) ,Georgina Martin ( a former teaching assistant at the respondent),Dean Spiers ( a former duty manager at the respondent),Lorraine McLeod (one of the respondent’s duty managers) ,and Lena Graham (a non-executive director at the respondent and formerly its registered manager).[8]Linda Evans (who was subject to a witness order) did not attend on grounds she was unfit for work but provided no medical evidence that she was not fit to attend the hearing. However, the tribunal decided not to postpone the hearing while further efforts were made to secure her attendance for the reasons it gave at the time.[9]There was a bundle of (agreed and disputed ) documents of 389 pages to which was added by agreement the claimant’s QTS certificate dated 1 August 2003 and a suspension letter to the claimant from the respondent dated (wrongly) 5 March 2017 signed by Katie Walker (the respondent’s then head of HR).[10]We have considered only those documents which were referred to us in witness statements or in cross-examination.[11]There have been stark conflicts of evidence in this case about events that are alleged to have taken place. Sometimes such a conflict of evidence is due simply to a mistake, or a memory failure, by one or both parties. Sometimes it may be one witness, or another is not telling the truth. It is the parties’ responsibility to obtain and put before the tribunal the material which they consider will assist the tribunal and promote their case. The claimant apologised in his written submissions if he had missed out information from his witness statement which would have provided more clarity on his complaints but, as we informed him, generally, we make decisions only on the material put before it by the parties. That way each party can look at, assess and criticise the other's evidence. An assertion that something happened is not evidence . 10 However where a party could give or call relevant evidence on an important point without apparent difficulty, a failure to do so may in some circumstances entitle us to draw an inference adverse to that party, sufficient to strengthen evidence adduced by the other party or weaken evidence given by the party so failing. In this case all we were told was that Mr Coombes and Katie Walker are no longer employed by the respondent. 11 Our decision as to what happened is not necessarily the objective truth of the matter or matters in issue. Instead it is the most likely view of what happened, based on the assessment of the witnesses and the other evidential material that the parties have chosen to put before us, taking into account to some extent also what we consider that they should have been able to put before the court but chose not to.[12]We found each of the respondent’s witnesses gave clear and credible evidence. We found the claimant was from time to time reluctant to answer questions inconsistent vague and inclined to make assertions of fabrication and wide-ranging conspiratorial conduct which require but were completely unsupported by any cogent evidence. He was not a credible witness.[13]Finally, although we must take into consideration all the evidence presented and weigh all the arguments made, we are not obliged to deal in our reasons with every single point that is argued, or every piece of evidence put in front of us. The specific findings of fact made are inherently an incomplete statement of the impression which was made us by the primary evidence. Our conclusions must be seen in that light.
Issues
[14]The agreed issues to be determined by the tribunal were as follows: EQA, section 13: direct discrimination because of race and/or religious belief14.1 did the respondent subject the claimant to the treatment complained of as set out in the further information document lodged with the tribunal on 7 September 2018?14.2 was the treatment “less favourable treatment”, i.e. did the respondent treat the claimant as alleged less favourably than it treated or would have treated others (comparators”) in not materially different circumstances? The claimant relies on hypothetical comparators and in relation to allegation 2 on Michael Maloney.14.3 if so, was this because of the claimant’s race and/or religious belief and all because of the protected characteristic of race and/or religious belief? EQA, section 26: harassment related to race and/or religious belief14.4 did the respondent engage in the conduct complained of as set out in the further information document lodged with the tribunal on 7 September 2018?14.5 If so was that conduct unwanted?14.6 if so, did it relate to the protected characteristic of race and/or religious belief?14.7 did the conduct have the purpose or (taking into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct have that effect, the effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?14.8 The diffuse and narrative nature of the individual allegations made by the claimant in the further information document lodged with the tribunal on 7 September 2018 (Allegation 7 having been clarified by the claimant at the request of the tribunal during the hearing on 21 January 2020) prohibit their being set out in full but they have been summarised in bold within the fact finding section below. Fact Finding[15]The respondent is a charity and private limited company operating a residential and day school for children and young persons (YP) up to the age of 19 who have complex special educational needs, including those with autism. It has 107 employees and is regulated by OFSTED. The school is in Worcestershire.15.1 The claimant has had a QTS certificate since 1 August 2003. This means he has Qualified Teacher Status. He lives in West Bromwich. At the time of the events in question he worked during the week as a supply teacher teaching science in the West Midlands conurbation. He was employed by the respondent as a weekend support worker from 7 August 2017 but was suspended on 5 October 2017.He did not work for the respondent after that date.15.2 The respondent has not disputed that the claimant has the relevant protected characteristics. The claimant is the only Sikh employed by the respondent since 2012. The respondent has also employed some Nigerians and white non-British. It has received no previous complaints of race/religion discrimination from employees.15.3 The respondent has an Employee Handbook (prepared by its HR advisers (RBS Mentor) which provides that it can suspend an employee pending further investigation or disciplinary action and that during a period of suspension an employee may not contact anyone connected with the respondent .If the employee needs to contact such a person during suspension they are told to contact their manager and any reasonable request will not be refused. The respondent ran a duty manager system so staff reported to the manager for the shift they were working on at any particular time. There was no named manager in the claimant’s terms and conditions of employment. Sarah Davies (the head of care) was also the registered manager for the school at the time the claimant was suspended.15.4 Employees are entitled to be accompanied to disciplinary hearings by a fellow worker or trade union official, but it is expressly stated there is no right for employees over the age of 18 to be accompanied to investigation meetings.15.5 The Employee Handbook contains a grievance procedure that provides grievance appeals are dealt with by a different manager to the person who dealt with the grievance and the reasons for the appeal must be submitted in writing. It used to provide that grievance appeals would be dealt with by a body independent of the respondent (which would have been someone from RBS Mentor) but this was changed prior to the claimant’s grievance appeal hearing on advice by RBS Mentor. The claimant was aware of the existence of the grievance procedure.15.6 The respondent provides training on Equality and Diversity (which includes an element relating to unconscious bias) in its induction for staff. It places particular emphasis in all its training on the need to treat everyone equally.15.7 At the time of the events in question Chris Coombs (the headteacher and Head of Education) and Sarah Davies (the head of care) were the designated safeguarding officers (‘DSOs’) responsible for reporting safeguarding concerns to the local authority via the Local Authority Designated Officer (‘LADO’). Allegation 1 (a complaint about hand gestures allegedly made by Merlin Beedie on 9 August 2017)15.8 The claimant (with 8 other new employees) underwent a three-day induction process on 7 8 and 9 August 2017 led by the respondent’s training manager Merlin Beedie who ( as well as devising delivering and resourcing training for the respondent )has about 10-years’ experience in inducting and training staff. The induction was followed by 2 days training on MAPA (Managing Actual or Potential Aggression) on 11 and 12 September 2017. That training was designed to help the respondent’s staff develop an understanding of violent and aggressive behaviour and what the response should be when faced with those behaviours including as a last resort physical interventions and restraint.15.9 One of the final sessions of the induction on 9 August 2017 dealt in depth with safeguarding children and a discussion took place about grooming and child sexual exploitation and how the media narrative that the gangs in question comprised Muslim men was not really the case. The claimant said he had received training about fundamentalism as part of his work in schools with a large percentage of BAME pupils. He also mentioned a group of Sikh men of which he had knowledge who sought to prevent the grooming of girls by Muslim men. Mr Beedie drew the conversation to a close and said he would catch up with the claimant after the session. He had a degree of unease about what the claimant had said but the claimant approached him immediately afterwards and they had a discussion in the doorway, initially about the claimant’s knowledge of grooming gangs and then Sikh and Muslim cultures. 15.9 Mr Beedie had gained some knowledge of the practice and history of the Sikh faith through working with a YP, a Sikh whose family had wanted to ensure his faith was maintained while the YP was in school. Mr Beedie referred in his conversation with the claimant to his awareness of the past history of Sikhs being persecuted by Muslims and said that some were executed including by being sawn in half. Mr Beedie tends to illustrate his speech with gestures for emphasis because of his extensive experience of working with children with language difficulties. He also frequently saws wood at home for a woodburning stove. The activity of sawing is therefore one which is familiar to him. The conversation ended without the claimant giving any indication to Mr Beedie that he was upset or discomfited or offended by what had been said.15.10 The claimant included in the bundle some extracts from a Sikh encyclopaedia referring to the execution of a Sikh martyr (Bhai Mati Dhas) in 1675 by two men using a double handed saw, including a small and indistinct picture showing this , each of the men holding their end of the saw in their two hands.15.11 The claimant became visibly distressed when viewing the above picture and a short adjournment was needed. There was no evidence before us (other than his assertion that this was the case) that Sikhs find sawing gestures generally or a specific sawing gesture (whether or not accompanied by discussion about the past history of execution of Sikhs by Muslims using saws) offensive or highly offensive.15.12 The claimant accepts he raised no complaint about Mr Beedie until 18 December 2017 when he presented a grievance in which he complained of race and religious discrimination between 9 August 2017 and 5 October 2017. He complained among other things that Mr Beedie had made reference to Sikhs and used hand gestures to depict the sawing of Sikhs which he found ‘highly offensive derogatory and humiliating’, though he did not explain why.15.13 At the grievance hearing before Michelle Kiesslinger (the respondent’s former Head of Business) on 5 January 2018 the claimant referred to Mr Beedie’s knowledge about Sikhs in general and explained that some of the 10 gurus had been martyred, likening the effect of the hand gesture made by Mr Beedie to ‘bashing nails’ through his hands’ so its offensive’.15.14 At his investigation meeting on 11 January 2018, Mr Beedie said he thought the gesture he was accused of making was the Makaton language sign for bread which is a slicing gesture across the hand. The claimant explained in his evidence to us that was not the gesture of which he accused Mr Beedie. He demonstrated a sawing action using the side of one hand across the opposite forearm. In the investigation meeting Mr Beedie could not recall having consciously used the Makaton sign while talking about Sikhism with the claimant which conversation he volunteered had included the sort of things Muslims used to do to Sikhs including sawing them in half. He asked what the claimant thought it meant and was told he thought it was offensive. He said he did not remember doing it and if he did and caused offence, he apologised. He said the claimant should have said then and let him know why it was offensive perhaps. He said he did not understand how the claimant could have found it offensive in any way.15.15 When on 19 January 2018 Michelle Kiesslinger wrote to the claimant to inform him that his grievance was not upheld as far as the allegation against Mr Beedie was concerned she found ‘Merlin Beedie does use hand gestures whilst talking but the investigation does not lead us to believe the gestures he used during your specific discussion were intended as offensive ,derogatory and humiliating. Merlin was genuinely confused by how his gestures could’ve been interpreted this way.’15.16 We find that Mr Beedie made either a chopping or sawing gesture with his hand during the post training discussion with the claimant on 9 August 2017. However, the claimant has failed to prove on the balance of probabilities that the gesture Mr Beedie made was the very specific gesture which he alleges is offensive to Sikhs. Allegation 2 (a complaint that Katie Walker allegedly told the claimant he had to speak to the headmaster Mr Coombs before applying for a teaching post at the respondent; Mr Coombes allegedly told the claimant he was busy and did not have time to talk when approached and Linda Evans deputy head teacher allegedly undermined the claimant by telling him he had to have QTS for the position)15.17 The claimant has alleged that Mr Maloney (who is white) told him that when he started working as a teacher at the school he did not have the QTS qualification .Mr Coombs had told staff (including Mr Maloney who did not have any teaching qualification at the time) about an earlier vacancy for a teaching assistant and when the advert went up he went to see Mr Coombs to ask for more information about it before putting in his application. He had applied was interviewed by Mr Coombs and was successful. He gained his teaching qualification after appointment.15.18 On 5 September 2017 the claimant saw an internal advert for the job of teaching assistant at the respondent which required QTS or QTSL. The former was a qualification which the claimant already had but he had not provided a copy of his certificate to the respondent before it was included in the bundle during the course of the hearing. The advert had opened on 22 August 2017.He was interested in applying for the post. He asked Katie Walker for a job description (which she provided) and she told him he had to speak to Mr Coombs (who was then the respondent’s head teacher) before applying.15.19 Although the claimant only worked weekends and Mr Coombs worked during the week the claimant worked overtime during the summer holidays and approached Mr Coombs twice. On each occasion Mr Coombs said he was busy and did not have time to talk. The claimant’s evidence was that he was thereby denied the opportunity to discuss the prospects of the post with Mr Coombs and this was done for no reason and that Linda Evans told him that a teacher needed to be fully qualified after he told her he was a teacher and said he had to have QTS for the position and he told her again that he did have that qualification.15.20 The respondent’s HR team wrote to the claimant on 3 October 2017 to thank him for expressing an interest in the internal vacancy and asking him to complete an application form and up to date CV in accordance with OFSTED requirements. He was aware that he could apply for the post and, at that stage, produce his teaching qualification. It is common ground he did not apply for the post. His evidence was that he did not do so because he was told it had removed and was no longer available. The letter of 3 October 2017 was evidently an error because the post had been withdrawn by 26 September 2017 and the 4 external applicants were notified of this. There was no evidence before us to support the claimant’s assertion that there was a deliberate conspiracy to stop him applying for the job. The claimant’s evidence was that his teaching credentials had been undermined in that he was reminded of the need for the qualification ,he was denied the opportunity to apply for the position and the respondent had ‘one criteria (sic) ‘for him and another for others. In the absence of Ms Walker Ms Evans and Mr Coombs we accept that the events as described by the claimant took place. Allegation 3 (a complaint that in early September 2017 when the claimant told him he lived in West Bromwich Dean Spiers allegedly told the claimant ‘What did you do in your previous life to be born in such a shithole?’) Allegation 4 (a complaint that on 3 October 2017 during a training class Lorraine McLeod allegedly said “Jag works as a male escort when he is not here.”15.21 Mr Spiers and Ms McCleod gave clear unequivocal evidence that they did not make the remarks attributed to them by the claimant. These remarks were not raised by the claimant until he referred to them in his grievance of 18 December 2017. They were investigated during the grievance procedure and, in the case of the remark attributed to Ms McCleod, witnesses did not recall it being made (a remark which they considered would have been memorable because of its inappropriateness). The claimant has alleged that he was offended felt humiliated and ‘indirectly discriminated against’ because West Bromwich Smethwick and Handsworth were home to a high concentration of ‘BMES’ in particular turban wearing Sikhs such as the claimant though there was no evidence to corroborate or quantify this. His pleaded case (though not referred to his witness evidence in which he said he was offended and humiliated ) was that he had replied to Mr Spiers that it was not that bad. Mr Spiers’ perception of West Bromwich was that it was run down with areas of poverty but not that it was ethnically diverse. As far as the ‘male escort’ remark was concerned his evidence was that he associated the words used with being accused of being a paedophile. The claimant has failed to prove on the balance of probabilities that such remarks were made. He delayed raising the remarks for some months without any satisfactory explanation for the delay and we have preferred the evidence of Mr Spiers and Ms Mcleod. Further we did not find his evidence under cross examination that he associated the male escort remark with being accused of being a paedophile at all credible. He gave no evidence about this in his witness statement and we reject it. Allegation 5 and 6 (a complaint that on 5 October 2017 Holly Green made allegedly racist remarks towards the claimant regarding the lack of coloured people in Herefordshire. That afternoon Georgina Martin made an allegation against him and he was suspended pending a police investigation- no further action was the outcome of the investigation and the LADO stated it was an unfounded case)15.22 It is accepted that Holly Green (who comes from Herefordshire) used the term ‘coloured people ‘in a discussion with the claimant on 5 October 2017 about the numbers of people of colour in Herefordshire. The claimant alleged she would not have done so had he been white. We accept her evidence that she had been wholly unaware at the time she did so that the phrase had any derogatory connotations. We find she would have used that term in such a conversation with any person. The claimant raised no complaint with her about this remark at the time and evinced no sign of discomfort annoyance or distress. He provided no evidence about any effect of this remark on him in his witness statement other than to record that the remark had been made. He did not raise it until he mentioned in his grievance on 18 December 2017.The claimant under cross examination frankly stated that he admired Holly Green for her honesty about having made the remark and also accepted that this was the only occasion he had worked with her.15.23 The reporting of safeguarding allegations is not an unusual occurrence at the respondent school. In 2018 there were 5 safeguarding allegations made at the respondent which met the threshold for the respondent’s DSO to make a report to the LADO, 2 of which were also reported to the police. We accept the evidence of Mr Beedie that there are robust recording and reporting structures in place and the service is one in which people can raise complaints with the respondent. Indeed it was the claimant’s evidence that on 3 October 2017 he himself had raised what he has described as a safeguarding concern with Lorraine McLeod saying that a chart for the previous week for an autistic YP (who according to the claimant was ‘BME’) (‘the YP’) had not been completed as it should have been .The YP was also the subject of Georgina Martin’s safeguarding allegation against the claimant (see paragraph15.24 below). 15.24 On 5 October 2017 Georgina Martin made a handwritten statement at the request of Sarah Davies setting out her account of what had occurred that day when she and the claimant were working with the YP raising a safeguarding issue about the way the claimant had treated the YP (‘the safeguarding allegation’).On that day Katie Walker suspended the claimant with pay pending investigation into the safeguarding allegation and a letter confirming the suspension was sent to the claimant reminding him he should not contact anyone connected with the allegation unless authorised by Mr Poturalski. The claimant has alleged the safeguarding allegation was raised maliciously and fabricated by Ms Martin in conjunction with Mr Poturalski but there was no evidence whatsoever to support this.15.25 The claimant also alleged in relation to these allegations that white staff members had neglected and used the YP to further their agenda of racism towards him as a BME staff member to sabotage and destroy his career and get the YP section rather than accommodate his needs to effectively ruin two BME lives. He also pointed to alleged lack of MAPA training for an agency worker. He also alleged the YP had been admitted to the school primarily as a source of income and then became a burden and affected profit margins and that he was asked to work with him because he worked better with black people and the staff wanted the YP sectioned when he did not need to be and could be accommodated at the school. As we have already said in paragraph 12 above, we did not find the claimant a credible witness. There was no cogent evidence to support these serious and wide-ranging allegations. Allegation 7 (2) (a complaint that on 6 October 2017 he was told by Mr Poturalski that he could only speak to him and nobody else and more than once he would be subject to potential police investigation;15.26 The LADO was informed about the safeguarding allegation on 6 October 2017 and advised the police should be contacted which was done that same day. The claimant telephoned Mr Poturalski on 6 October 2017 for an update and the gist of their conversation was as subsequently set out in a letter from Katie Walker to the claimant dated 17 October 2017.He was advised in particular to let his employer know he was potentially subject to a police investigation to safeguard him from further allegations . During their conversation he also told the claimant not to have too many sleepless nights which the claimant alleged was done ‘laughingly’. We find Mr Poturalski as the person at the respondent appointed to be his sole point of contact was genuinely trying to provide reassurance to the claimant .Under the respondent’s Employee Handbook the claimant’s manager was to be contacted only if the claimant needed to contact someone connected with the respondent. The claimant asked to speak to sarah Davies the school’s registered manager in order to deal the situation amicably. This request was refused. The claimant alleged that Mr Poturalski was the person used to harass and intimidate and victimise him throughout the safeguarding allegation and police investigation process. He did attend a POT meeting on 27 November 2017 (see paragraph 15.31 below) but there was no evidence whatsoever that he was deployed in such a way by the respondent nor did the claimant provide any detail about anything he was alleged to have said or done which was alleged to amount to such conduct.15.27 On 11 October 2017 a police officer (CID) emailed someone referring to the’ new LADO having asked him to review’ a document said to document a ‘torture/assault crime perpetrated by a member of staff’ at the respondent school.15.28 The police attended the school and interviewed staff on 9 October 2017.15.29 A Position of Trust (‘POT’) meeting took place on 18 October 2017 attended by Chris Coombes and Lena Graham (who was on maternity leave but was able to attend on a Keeping in Touch day to assist Mr Coombes who had not attended such a meeting before). It recorded that initially the police had recommended no further action but upon review the LADO had escalated the matter which the police had agreed to revisit and was now the subject of a live investigation. The claimant was to be informed he was suspended until the POT enquiry was completed.15.30 The police also attended the school and interviewed staff on 19 October 2017. The claimant was interviewed by the police in the presence of his solicitor on 2 November 2017.15.31 There was another POT meeting on 27 November 2017 attended by Chris Coombes and Mr Poturalski. The outcome was that the allegation was ‘unsubstantiated’ because ‘Overall, there is insufficient identifiable evidence to prove or disprove the allegation. The term, therefore, does not imply guilt or innocence. Where there is insufficient evidence to substantiate an allegation the employer should consider what further action. if any should be taken.’15.32 We find the LADO did not state it was an unfounded case as alleged by the claimant and contrary to the claimant’s assertion the respondent played no part in the reactivation of the police investigation. Allegation 7 (1) (a complaint that the respondent allegedly refused to allow the claimant to be accompanied by a trade union representative to the respondent’s internal investigation and (3) Holly Kent suggested Mr Poturalski accompany him to his internal investigation meeting knowing he had been involved in making the safe guarding allegation with Georgina Martin).15.33 On 13 December 2017 the claimant expressed his disappointment in an email that he would not be permitted to be accompanied to the investigation meeting by someone outside the respondent. Although under the respondent’s policy employees over the age of 18 had no right to be accompanied to investigation meetings he had nonetheless been offered a colleague as a companion and said he chose Mr French ( the respondent’s Chief Executive Officer).Holly Kent replied the same day to say he was not available but suggested he ask Mr Poturalski ( as he had been the claimant’s designated contact during suspension ) and offered to contact him on his behalf if he would like him to be approached. There is no evidence that Mr French was in fact available.15.34 The claimant throughout his evidence and cross examination put forward several explanations for his failure to complain before presenting his grievance :his judgment was clouded ,he was already looking for another job and wanted to keep his head down at this early stage of his employment and he had become accustomed to racial slurs since childhood. He denied under cross examination that that he had only raised these matters to deflect attention from his investigation meeting but he had preceded a question to Mr Poturalski with the comment that his case worker (Ms Turner) had advised him he would either have to attend the investigation meeting on his own or put his grievance in at the informal investigation at which point they would have to decide whether to change the meeting to a grievance meeting at which she was entitled to be present. We find the grievance was raised at this juncture as a tactical device to avoid attending an investigation meeting into the safeguarding allegation without his trade union representative.15.35 On 19 December 2017 the claimant failed to attend the internal investigation meeting into the safeguarding allegation.15.36 On 21 December 2018 the claimant was informed the internal investigation into the safeguarding allegation was concluded and it had been decided that no further action be taken against the claimant but that he might benefit from a behaviour support plan and refresher training. He was to return to work on 30 December 2017.15.37 Thereafter Michelle Kiesslinger investigated the claimant’s grievance. She met with 5 employees including Merlin Beedie Katie Walker and Lorraine McLeod. Typed notes were made of the recordings of those meetings.15.38 The claimant wrote a letter setting out his grounds of appeal on 25 January 2018. Among other matters he said the best way the school could support him was to continue paying his wages until he recovered and to address the toxic hostile discriminatory work environment. He said that he was still willing to work with the score and would like a “win-win situation”. He said he would like to remind the school about the “sensitivity (sic)nature of this case. A turban wearing Sikh (science teacher) discriminated against by fellow White employees then made into a suspect against a BME child, all the people making allegations white, teachers, deputy headteacher, headteacher, all senior managers all white. Then a police investigation for a potential assault case which required no further action which has caused this person high levels of stress and anxiety and potentially ruined his future career and the school is not taking responsibility. In fact after the school have conducted their investigation rather than remain impartial they have acted to protect the interests of the organisation and not uphold the grievance. My earnings as a delivery driver are much less than what I was earning previously as a science teacher and the foreseeable loss of earnings. Prior to getting suspended, I was earning between 35,000 to 45,000 per year as a science teacher. Furthermore, I was amidst applying for the teachers for leadership programme. This programme aims to fast track teachers into senior leadership positions. The salaries for these positions can be found online for teachers pay and conditions. In comparison a delivery driver earns between £15,000-£20,000 per year. I can address this at the appeal meeting.”15.39 An appeal hearing was held on 15 February 2018 before Lena Graham. The claimant was asked to agree but declined to have the hearing recorded and typed notes were therefore made. As the appeal hearing concluded the claimant said some’ monetary compensation’ would ‘naturally’ help him. By this time the claimant had been absent from work for some months and Lena Graham raised the subject of a return to work and in particular sought to clarify what the claimant had meant by the win win situation mentioned in his appeal. The notes state he said,‘Win win situation would be of the school addressed the environment,2) informal meeting with staff to talk with them the other one was impact assessment about having BME in exec decision-making roles. And the 9 equalities actually practiced. You’re looking to attract people from diverse backgrounds. You’ve got one right here. I’m a qualified teacher, this is a Toxic hostile working environment. Your (sic) building a new adult centre, you’re going to need teachers. Want to give me a job and I recruit people from diverse backgrounds. I would be able to recover, and you would fill your criteria”. Lena Graham asked him if he was saying he wanted a job in the adult centre as a teacher, but he said he didn’t. She asked him what he wanted, and his trade union representative said, “can you clarify what you want as this is important?”. The claimant’s reply is recorded as “give me an executive decision-making role in our place that’s what I want. That would solve the problem”. When he was asked later what a positive response from the respondent looked like he said he wanted ‘help support emotionally psychologically’ and then said ‘I want the allowance I get here a month, massive compensation for all the things that happened to me here .I don’t know how long this is going to take .Brush everything under carpet’15.40 The notes were sent to the claimant after the appeal hearing and on 1 March 2018, he sent his amendments to the respondent by email in which he said that “I also talked about another option whereby OP could open up another campus with a school -I’m not referring to the adult centre. Another campus whereby I could be recruited and also recruit staff who are from a BME background in executive positions. This would solve the problem of toxic hostile work environment. Also I never said appointing me to an executive role would solve problem-because the toxic hostile work environment would still exist-only by actually changing the current environment on the ground level can the problem be addressed. If you need more clarification on this point let me know.” He was told by email the same day that the respondent would keep both copies on the file for future reference as there were some disparities between his recollection and the notes produced.15.41 On 5 March 2018 Lena Graham wrote to the claimant setting out the outcome of his grievance appeal. It was unsuccessful. She said “We then went on to discuss what you felt would be an appropriate outcome to your grievance appeal. You stated that you wanted your ways to be continue to be paid whilst you were off, and executive decision-making role within Our Place and the toxic hostile working environment to be addressed.” She went on to say that refresher training would be held around communication interactions at work and that the respondent would be happy to facilitate him in a return to work should he decide this was what he would like to do.15.42 We accept Lena Graham’s evidence that the typed notes of the appeal hearing were accurate. We find that in asking for an executive role as an outcome for his grievance the claimant was applying leverage (as he saw it) to fast track his career.[16]For the purposes of the Equality Act 2010 ("EqA"), race and religion or belief are protected characteristics (section 4 Eq A).[17]Under section 13 (2) (a) and (4) EqA 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.[18]Section 23 (1) EqA states that "On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case[19]Under section 26 (1) EqA ‘(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.” Under section 26 (4) EqA ‘ (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a)the perception of B; (b)the other circumstances of the case; (c)whether it is reasonable for the conduct to have that effect. ‘ The relevant protected characteristics include race and religion/belief. ." Under section 39 (2 ) EqA an employer must not discriminate against an employee by subjecting him/her to any detriment. We remind ourselves that ‘detriment’ does not include conduct which amounts to harassment (Section 212 (1) EqA.[20]As the claimant reminded us in his oral submissions Lord Nicholls explained in Nagarajan v London Regional Transport 199I CR 877 ,HL 19 “All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected applicant had nothing to do with the applicant’s race. After careful and thorough investigation of the claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did.” 21The courts in approaching discrimination claims have taken account of the fact that it is difficult for a Claimant to establish discrimination. It is accepted that primary evidence that directly indicates discrimination may often not be available and that it is usually necessary for the Tribunal to draw appropriate inferences from the primary findings of fact they make.[22]Section 136 EqA reverses the burden of proof if there is a prima facie case of discrimination. The courts have provided detailed guidance on the circumstances in which the burden reverses but in most cases the issue is not so finely balanced as to turn on whether the burden of proof has reversed. Also, the case law makes it clear that it is not always necessary to adopt a two stage approach and it is permissible for Employment Tribunals to instead identify the reason why an act or omission occurred. The two-stage test reflects the requirements of the Burden of Proof Directive (97/80/EEC). The first stage places a burden on the claimant to establish a prima facie case of discrimination. That requires the claimant to prove facts from which inferences could be drawn that the employer has treated them less favourably on the prohibited ground. If the claimant proves such facts then the second stage is engaged. At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground. If they fail to establish that, the Tribunal must find that there is discrimination.[23]The explanation for the less favourable treatment does not have to be a reasonable one. In the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation. If the employer fails to provide a non-discriminatory explanation for the unreasonable treatment, then the inference of discrimination must be drawn. The inference is then drawn not from the unreasonable treatment itself - or at least not simply from that fact - but from the failure to provide a non-discriminatory explanation for it. But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, the burden is discharged at the second stage, however unreasonable the treatment.[24]It is not necessary in every case for an Employment Tribunal to go through the two-stage process. In some cases it may be appropriate simply to focus on the reason given by the employer (“the reason why”) and, if the Tribunal is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test. The employee is not prejudiced by that approach, but the employer may be, because the Employment Tribunal is acting on the assumption that the first hurdle has been crossed by the employee.[25]It is incumbent on an Employment Tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are.[26]It is implicit in the concept of discrimination that the claimant is treated differently than the statutory comparator is or would be treated. The determination of the comparator depends upon the reason for the difference in treatment. The question whether the claimant has received less favourable treatment is often inextricably linked with the question why the claimant was treated as he was. However, as the EAT noted (in Ladele) although comparators may be of evidential value in determining the reason why the claimant was treated as he or she was, frequently they cast no useful light on that question at all. In some instances comparators can be misleading because there will be unlawful discrimination where the prohibited ground contributes to an act or decision even though it is not the sole or principal reason for it. If the Employment Tribunal is able to conclude that the respondent would not have treated the comparator more favourably, then it is unnecessary to determine the characteristics of the statutory comparator.[27]If the Employment Tribunal does identify a comparator for the purpose of determining whether there has been less favourable treatment, comparisons between two people must be such that the relevant circumstances are the same or not materially different. The Tribunal must be astute in determining what factors are so relevant to the treatment of the claimant that they must also be present in the real or hypothetical comparator in order that the comparison which is to be made will be a fair and proper comparison. Often, but not always, these will be matters which will have been in the mind of the person doing the treatment when relevant decisions were made. The comparator will often be hypothetical, and that when dealing with a complaint of direct discrimination it can sometimes be more helpful to proceed to considering the reason for the treatment (the “reason why” question).[28]Tribunals are urged to take an over view of the totality of the evidence before making findings in respect of individual allegations made by a Claimant. The necessity of setting out chronological findings of fact should not lead to the assumption that they have been made piecemeal. In looking at this case we looked at the totality of the evidence before reaching our findings of fact as set out above and before reaching the conclusions which follow.[29]Tribunals must take into account any part of the Equality and Human Rights Commission Code of Practice on Employment (2011) (“the Code”) that appears to them relevant to any questions arising in proceedings. As far as harassment is concerned Chapter 7 addresses harassment and says at paragraph 7.7 that “unwanted conduct covers a wide range of behaviour, including spoken or written words or abuse, imagery, graffiti, physical gestures, facial expressions, mimicry, jokes, pranks, acts affecting a person surroundings or other physical behaviour. The word “unwanted” means essentially the same as “unwelcome” or “uninvited”. “Unwanted” does not mean that express objection must be made to the conduct before it is deemed to be unwanted. A serious oneoff incident can also amount to harassment (paragraph 7.8). Paragraph 7.10 says that “Protection from harassment also applies where person is generally abusive to other workers but, in relation to a particular worker, the form of the unwanted conduct is determined by that workers protected characteristic. An example is given as follows “During a training session attended by both male and female workers, a male trainer directs a number of remarks of a sexual nature to the group as a whole. A female worker finds the comments offensive and humiliating to her as a woman. She would be able to make a claim for harassment, even though the remarks were not specifically directed at her.”[30]In Richmond Pharmacology v Dhaliwal 2009 ICR 724 Mr Justice Underhill said “not every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by the things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended.’ The claimant must have actually felt or perceived his or her dignity to have been violated or an offensive environment to have been created. The fact that the claimant is slightly upset or mildly offended by the conduct in question may not be enough to bring about a violation of dignity or an offensive environment. In the case of HM Land Registry v Grant Lord Justice Elias said “when assessing the effect of a remark, the context in which it is given is always highly material. Everyday experience tells us that a humorous remark between friends may have a very different effect than exactly the same words spoken vindictively by a hostile speaker. It is not importing intent into the concept of effect to say that intent will generally be relevant to assessing effect. It will also be relevant to deciding whether the response of the alleged victim is reasonable.”[31]Tribunals were reminded in Chapman v Simon [1994] IRLR 124 CA that the jurisdiction of the employment tribunal is limited to the complaints which have been made to it. It is not for us to find other acts of which complaints have not been made if the act of which complaint is made is not proven. Submissions[32]We heard and considered the oral and written submissions we received from the parties. Conclusions Allegation 1
Conclusions
[33]This was an allegation of harassment related to race or religion. We have found above that the claimant has not proved that the hand gesture which he alleged was made by Mr Beedie was made by him on 9 August 2017.However, if we are wrong about that ,we conclude that talking about and illustrating by a hand gesture a barbaric historic method of execution perpetrated upon members of a religion or race could provoke strong negative feelings of revulsion or distress in the listener if of that same religion or race as the events in question are thereby brought vividly to mind and are therefore capable of amounting to unwanted conduct. However, in this case we conclude that Mr Beedie’s conduct did not have the purpose of either violating the claimant’s dignity or of creating an intimidating hostile degrading humiliating or offensive environment for him. Mr Beedie was engaging in a conversation with the claimant in which he shared with the claimant his knowledge that Sikhs had suffered historical atrocities perpetrated by Muslims. He did not know (and we have not found) that a particular sawing gesture is or sawing gestures generally are offensive to Sikhs. This particular topic emerged as part of a conversation initiated by the claimant. There was nothing done or said by Mr Beedie to indicate animus of any sort towards the claimant. We also conclude that the conduct in question did not have that effect. We do not find that the claimant perceived sawing gestures specifically or generally as offensive to Sikhs. In our judgment the distress displayed by the claimant in tribunal was occasioned by the contemplation of the visual image in the bundle of documents. He did not evince any indication of discomfiture or complain about it at the time of the conversation and did not do so until his grievance some four and a half months later. We conclude he was not at the time nor was he subsequently ‘highly’ offended as he has alleged. Further having regard to the circumstances of the case (that it was said in the context of an amicable discussion with a colleague not targeted towards the claimant and there was no repetition and such a gesture is not (or ,if it is, it is not known to be ) offensive to Sikhs ) it was not reasonable for the conduct to have that effect. Allegation 2[34]This was an allegation of direct discrimination against Katie Walker and Mr Coombes and Ms Evans. We remind ourselves that we are to consider the allegation of discrimination pleaded and not the unpleaded allegations made in evidence. The claimant has alleged the actions of Ms Walker Mr Coobes and Ms Evans collectively or individually amounted to the undermining of his teaching qualification. Even if Ms Walker told the claimant he had to speak to Mr Coombes before applying for the post in question and Mr Coombes said he was too busy to talk to him we are unable to discern how their actions could be said to undermine the claimant’s teaching qualification .The allegation in relation to Ms Evans is that she repeated that the post required QTS .We do not consider that such conduct on its own is capable of amounting to an undermining of the qualification which the claimant knew he had. It placed no barrier in the claimant’s way as far as applying for the job in question was concerned. Further the claimant has not proved any facts from which we could conclude or infer that if by their actions the individuals in question did undermine the claimant’s teaching qualification they did so because of the claimant’s race or religion. Allegation 3 and 4[35]These are allegations of harassment related to race or religion in the form of language used. We have not found that any such remarks were made but, even if they were, we do not consider that any connection between the claimant’s protected characteristics and the conduct in question has been made out. Further they were one off remarks not repeated and not sufficiently serious in nature to amount to harassment nor are we satisfied that the claimant felt or perceived his dignity to have been violated or an offensive environment to have been created having regard to the delay in making any complaint about them and his inconsistency in explaining why he found the remarks were offensive. Allegations 5 and 6[36]The allegation against Holly Green is of harassment related to race or religion. We do not consider that any connection between the claimant’s religion and the conduct in question has been made out. As far as harassment related to race is concerned we conclude the use of such derogatory phrase in the presence of a person of colour is capable of amounting to unwanted conduct but it did not have the purpose of either violating the claimant’s dignity or of creating an intimidating hostile degrading humiliating or offensive environment for him. Holly Green did not know that this was a derogatory remark. She did not direct or target her remark towards the claimant. We also conclude that the conduct in question did not have that effect. He evinced no indication of discomfiture nor did he complain about it at the time of the conversation and did not do so until his grievance some four and a half months later. There is no evidence on which we could conclude that the claimant felt or perceived his or her dignity to have been violated or that an offensive environment had been created, nor having regard to the circumstances of the case ( that this was the first and only time they had worked together ,that it was said in the context of an amicable discussion with a colleague not targeted towards the claimant , there was no repetition) would it have been reasonable for it to have had that effect.[37]The allegation against Georgina Martin is of direct discrimination because of race or religion. We conclude that the claimant raised the matters identified in paragraph 15.25 because he wanted the tribunal to review the safeguarding investigation and in some way clear his hitherto unblemished record while also ventilating concerns he had about the treatment of the YP but our function is confined to determine those factual matters which are relevant to the alleged race /religion discrimination. Even if proven they are not matters from which we could conclude or infer that Ms Martin’s treatment of the claimant was because of his race or religion. In this case we conclude Ms Martin would have made a safeguarding allegation against a hypothetical comparator without the claimant’s protected characteristics if having worked with them she had safeguarding concerns about that person. Further the matter would have been reported to the police by the respondent if it had been advised by LADO to do so. There was no less favourable treatment of the claimant. It is nothing to the point that in due course the allegation was ‘unsubstantiated’ due to lack of enough evidence. Allegations 7 (1) and 7 (3) 37 These allegations are of direct discrimination and harassment related to race or religion.[38]The reason why the claimant was not permitted to be accompanied by his trade union representative at the investigation meeting was because the respondent was applying its policy. A hypothetical comparator without the claimant’s protected characteristics would have been treated in exactly the same way had they made such a request. His trade union representative knew that this was the respondent’s policy. The reason the claimant was not permitted to have Mr French the CEO was because he was not available. A hypothetical comparator without the claimant’s protected characteristics would have been treated in exactly the same way had they made such a request. We have not found that Mr Poturalski was involved in making the safeguarding allegation with Ms Martin. Mr Poturalski may not been a suitable person to attend the investigation meeting with the claimant as an alternative colleague but that is not evidence of race or religious discrimination such as to call for an explanation from the respondent.[39]Furthermore if the conduct was capable of violating the claimant’s dignity or of creating an intimidating hostile degrading humiliating or offensive environment for him the claimant has not proved any facts from which we could conclude or infer that the conduct was in any way related to the claimant’s race or religion. Allegation 7 (2)[40]This allegation is of direct discrimination and harassment related to race or religion.[41]The claimant did not ask Mr Poturalski to speak to Ms Davies in order to ask for permission to speak to someone connected with the respondent during the investigation. He gave Mr Poturalski (who had been appointed his sole point of contact while the investigation was ongoing) no reason to accede to his request. A hypothetical comparator without the claimant’s protected characteristics would have been treated in exactly the same way had they made such a request. Even if we had found that Mr Poturalski repeatedly told the claimant that he could only speak to him and no-one else and /or that he would be subject to a potential police investigation that is not evidence of race or religious discrimination such as to call for an explanation from the respondent.[42]Furthermore if the conduct in question was capable of violating the claimant’s dignity or of creating an intimidating hostile degrading humiliating or offensive environment for him the claimant has not proved any facts from which we could conclude or infer that the conduct was in any way related to the claimant’s race or religion.[43]All of the claimant’s complaints therefore fail and are dismissed.