Mr M Morrison and Mr W Headley v Bath Spa University Ltd: 1400186/2022 and 1401756/2022

EMPLOYMENT TRIBUNALS

Case No 1400186/2022, 1401756/2022

Between

Mr M Morrison and Mr W HeadleyClaimant

Bath Spa University LtdRespondent

Before

Employment Judge Ferguson

Members

Mr H Launder

Ms J Keene

In person for claimant

Mr K Sonaike (instructed by counsel) for respondent

Date 26 April 2024

JUDGMENT

It is the unanimous judgment of the Tribunal that:

[1]The complaints of unfair dismissal are well-founded. Both Claimants were unfairly dismissed.

[2]The complaints of direct race discrimination, harassment and victimisation are not well-founded and are dismissed.

[3]A remedy hearing will take place on 27 June 2024. Case management orders relating to that hearing are contained in a separate document.

REASONS

[1]These two claims were heard together because both Claimants were security officers at the Respondent who resigned for similar reasons relating to alleged failures by the Respondent to deal with complaints of racism.

[2]Mr Morrison’s claim was presented on 19 January 2022 (following a period of early conciliation between 11 November and 20 December 2021). Mr Headley’s claim was presented on 26 May 2022 (following a period of early conciliation between 17 March and 27 April 2022). Both claimed constructive unfair dismissal and race discrimination. Following a number of preliminary hearings and the provision of further information, the complaints and issues in respect of Mr Morrison’s claim were agreed and finalised at a preliminary hearing on 9 June 2023. Both Claimants had been legally represented prior to this, but by the time of this hearing both were acting in person. Following a similar process, the complaints and issues in respect of Mr Headley’s claim were agreed and finalised at a preliminary hearing on 14 August 2023.

[3]Pursuant to a further case management order made at a “catch-up” hearing on 6 February 2024 the Respondent produced a composite final list of issues.

[4]At the start of the eight-day final hearing the list of issues was discussed and some clarifications and alterations were agreed: 4.1. It was agreed that paragraph 1.4 in Mr Morrison’s list of issues, relating to comments made during a meeting on 11 August 2021, would be re-labelled as an allegation of victimisation and the wording changed. It was not alleged that Mr Williams “announced that C had raised a grievance”, but that he had asked “Who is racist?” and thereby made the Claimant reveal that he had submitted a grievance. 4.2. It was agreed that paragraph 4.6 in Mr Headley’s list of issues, relating to the Respondent’s alleged failure to address complaints of discrimination made by other team members, was not pursued as an allegation of direct race discrimination but was still relied upon for the constructive unfair dismissal complaint. 4.3. It was agreed that the list of issues should include all of the legal issues that were set out in the original lists of issues in the case management orders referred to above.

[5]At the start of the second day of the final hearing Mr Morrison, speaking on behalf of Mr Headley, applied to add to the list of issues in Mr Headley’s case a further allegation that Mr Pozsonyi said in March 2022 that Mr Headley was not allowed to park in the parking bays at the site where he was working. He sought to include this as a further allegation of victimisation. We refused the application. At the start of the third day of the final hearing Mr Morrison applied for reconsideration of that decision. We reconsidered the decision in light of further documents Mr Morrison relied upon and again refused the application. Oral reasons were given at the time and are summarised here.

[6]We noted that the complaint had not been included in Mr Headley’s claim form so it required permission to amend. It was first raised in a list of allegations sent to the Tribunal on 5 June 2023. That document was treated as an application to amend and was considered at the preliminary hearing on 14 August 2023. The parking allegation was not included in the list of issues agreed at that hearing. The case management order states that the list of issues had been agreed, and on the basis of what was agreed the Respondent accepted that permission to amend was not required. It appeared, therefore, that Mr Headley had agreed the list of issues would not include the parking allegation. We could not go behind what was said in the case management order and summary of hearing unless there was a very good reason to do so, which had not been established. We noted that the complaint, when first raised in June 2023, was substantially out of time. We took into account the fact that Mr Headley was a litigant in person, but noted he was effectively seeking to re-open an issue that had already been dealt with on 14 August 2023. There would be considerable prejudice to the Respondent in allowing the complaint to proceed. In all the circumstances it was not in the interests of justice to allow a new complaint of victimisation to be added to the claim at this stage.

[7]The issues for us to determine were therefore as follows: Mr Morrison

[1]Direct race discrimination (Equality Act 2010 section 13)1.1 HR only interviewed 1 witness (Mr Headley) C requested in relation to his grievance dated 29 July 2021. C had requested 7 witnesses be interviewed. Comparator: hypothetical.

1.2 On 18 August 2021 HR arranged an interview with Mr Mohammed as part of C’s grievance investigation dated 29 July 2021, but HR failed to attend. HR later told Mr Mohammed the interview had been cancelled and he was never interviewed, despite C specifically requesting he be interviewed. Comparator: hypothetical

1.3 On 25 August 2021 the grievance outcome was not upheld on aspects of unequal treatment relating to race. Comparator: hypothetical. If so, was that less favourable treatment because of race?

1.4 In August 2021, whilst C’s grievance dated 29 July 2021 was still being investigated, there was a meeting with all security guards where Andy Williams asked C “Who is racist” and thereby made C disclose he had submitted a grievance. [It is not in dispute that C’s grievance was a protected act.] Did R thereby subject C to a detriment because he had done a protected act?

[2]Harassment related to race (Equality Act 2010 s.26)2.1 HR only interviewed 1 witness (Mr Headley) C requested in relation to his grievance dated 29 July 2021. C had requested 7 witnesses be interviewed.

2.2 On 18 August 2021 HR arranged an interview with Mr Mohammed as part of C’s grievance investigation dated 29 July 2021, but HR failed to attend. HR later told Mr Mohammed the interview had been cancelled and he was never interviewed, despite C specifically requesting he be interviewed.

2.3 On 25 August 2021 the grievance outcome was not upheld on aspects of unequal treatment relating to race. If so, was that unwanted conduct? Did it relate to race? Did the conduct have the purpose or effect of violating C’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for C?

[3]Constructive unfair dismissal C claims that R acted in fundamental breach of contract in respect of the implied term of the contract relating to mutual trust and confidence. The breach(es) was / were as follows:3.1 The matters alleged as harassment, direct discrimination and victimisation as set out above.

3.2 Mr Morrison says that he learnt from Mr Headley in July 2021 that Mr Williams had made a statement that he was not aware of racism within the organisation. Mr Morrison later came by information in August 2021 that there had been other complaints of racism made to the organisation, which Mr Williams knew about. This led Mr Morrison to conclude that Mr Williams’ statement was a misrepresentation, which contributed to him losing trust and confidence in the Respondent. Did R behave in a way that was calculated or likely to destroy or seriously damage the trust and confidence between C and R, without reasonable and proper cause for doing so? Did C resign because of the breach? Did C delay before resigning and affirm the contract? In the event that there was a constructive dismissal, was it otherwise fair within the meaning of s. 98 (4) of the Employment Rights Act 1996? Mr Headley

[4]Direct race discrimination (Equality Act 2010 section 13)4.1 Between September and November 2021 unfairly allocate the Claimant weekend shifts – which are half the hours of week dayshifts. Specifically the Claimant was given 14 continuous 6 hour weekend shifts. Comparators: Rahda Pillay, Andrew Cadman, Aaron James

4.2 Fail to amend the Claimant’s November 2021 shift pattern following his complaint in October 2021. Comparator: hypothetical

4.3 HR told the Claimant that they could not contact Mr Pozsonyi (to change the Claimant’s shift pattern) in November 2021 because (they said) he was on holiday, but that was a lie and they had in fact spoken to him. Comparator: hypothetical

4.4 On 3 November 2021 HR informed the Claimant that Mark Munro was responsible for allocation of shifts for November 2021, which was untrue. Comparator: hypothetical

4.5 Fail to deal with the Claimant’s 24 October 2021 complaint as a complaint of race discrimination. Comparator: hypothetical

4.6 Fail to address complaints of discrimination made by other team members, specifically [MF], Mr M Muhammed and Mr M Morrison (the other Claimant in this case). Comparator: hypothetical. [Pursued in relation to constructive unfair dismissal only; see paragraph 7.2] If so, was that less favourable treatment because of race?

[5]Harassment related to race (Equality Act 2010 s. 26)5.1 Between September and November 2021 unfairly allocate the Claimant weekend shifts – which are half the hours of week dayshifts. Specifically the Claimant was given 14 continuous 6 hour weekend shifts.

5.2 Fail to amend the Claimant’s November 2021 shift pattern following his complaint in October 2021.

5.3 On 3 November 2021 HR informed the Claimant that Mark Munro was responsible for allocation of shifts for November 2021, which was untrue. If so, was that unwanted conduct? Did it relate to race? Did the conduct have the purpose or effect of violating C’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for C?

[6]Victimisation (Equality Act 2010 s. 27)6.1 It is not in dispute that C did protected acts as follows:

• The 24 October 2021 complaint, which the Claimant says was a complaint of race discrimination;

• The 24 December 2021 grievance.

6.2 Did the Respondent continue to allocate C weekend shifts despite a change to a 4 on 4 off rota (from a 3 on 3 off rota) in November 2021? Did that amount to a detriment, and was C subjected to the detriment because he had done a protected act?

[7]Constructive unfair dismissal C claims that R acted in fundamental breach of contract in respect of the implied term of the contract relating to mutual trust and confidence. The breach(es) was / were as follows:7.1 The matters relied upon as discrimination, harassment and victimisation;

7.2 R repeatedly failed to deal with allegations and complaints regarding racism within the workplace, specifically the Claimants complaint of 24 October 2021, the Claimant’s grievance of 24 December 2021 and the complaints / grievances referred to at issue [4.6] above Did R behave in a way that was calculated or likely to destroy or seriously damage the trust and confidence between C and R, without reasonable and proper cause for doing so? Did C resign because of the breach? Did C delay before resigning and affirm the contract? In the event that there was a constructive dismissal, was it otherwise fair within the meaning of s. 98 (4) of the Employment Rights Act 1996?

[8]We heard evidence from the Claimants and, on their behalf, from Rathakrishnan Pillay, Fabian Dener, Adele Milton-Meakin and Mahamed Ahmed Mahamed. On behalf of the Respondent we heard from Gabriel Pozsonyi, Andrew Williams, Amanda Strange, Sarah Priston and Charles Wiffen.

[9]We had an agreed bundle of 684 pages, to which a number of documents were added by agreement during the course of the hearing.

FACTS

[10]A number of the Claimants’ colleagues were discussed during the hearing and are therefore mentioned in these written reasons. Except for those who attended as witnesses for the Claimant they are all referred to by initials only because they have not had any opportunity to comment upon what is said about them, and given that these reasons will be published online there is a risk of unfair assumptions being made about them if their full names are disclosed. The use of initials does not affect the meaning of these reasons.

[11]Mr Morrison began working as a security officer at Bath Spa University in July 2009 and Mr Headley joined in the same role in October 2017. They are both black men. They were originally employed by a company called SSGC which was contracted to provide security services to the University. During 2020 the University decided to bring the security function in-house. The employment of security officers at SSGC working at the University, including the Claimants, transferred to the Respondent on 21 October 2020.

[12]The Claimants’ supervisor before and after the transfer was Mark Munro, until his employment with the Respondent ended on 10 September 2021.

[13]After the transfer the security department was managed by Gabriel Pozsonyi, Security Manager, who had previously acted as the point of contact for the SSGC contract. He reported to Andrew Williams, Head of Facilities and Services.

[14]In early 2020, before the transfer, Rathakrishnan Pillay, another security guard employed by SSGC, informed Mr Munro that a colleague, AC, had thrown a prayer mat belonging to another colleague, MF, onto the roof in the rain, and that AC and another guard were laughing about it. The issue was discussed at a meeting between Mr Pillay and Mr Munro in April 2020. Mr Pozsonyi also attended the meeting as an observer. Mr Pozsonyi’s evidence was that he left the matter with Mr Munro to deal with. Mr Pillay’s evidence was that no action was taken against AC in relation to the incident.

[15]During a security team meeting on 23 April 2021 Mr Morrison said there had been a racist incident that month and asked Mr Pozsonyi why he had not brought it up. Mr Pozsonyi answered “Because I don’t know about it”. Mr Morrison went on to say that one of the security guards had “used the N-word”. Mr Pozsonyi said that was the first he had heard of it. Mr Morrison then alleged there was a toxic environment and said that good guards had left because of it. Mr Morrison clarified that the incident involved someone else on a different site to the one where he worked. Mr Headley, who was also in the meeting, said there had been an email in February about it. Mr Morrison said the staff needed a number that guards could call to report such incidents. Mr Pozsonyi said if there were issues in the department staff could go to him, and if they felt he had not dealt with it they could go above his head. Mr Morrison asked what happened with the individual concerned and Mr Pozsonyi said “I didn’t look at that individual one”. Mr Headley said it was an agency guard. Mr Morrison asked if he was still working and Mr Pozsonyi noted that Mr Munro, who was also in the meeting, was saying no. The Claimants allege that the agency guard concerned did work at the University on various occasions after this.

[16]On 1 May 2021 an altercation took place between a white security guard, PC, and a black security guard, AS. An agency security guard who witnessed the incident reported to management that PC had called AS “you black cunt” and said something along the lines that AS was not meant to be in the country. Other security guards, including the Claimants, heard about the incident.

[17]Sometime later in May 2021 AS was dismissed for an unrelated incident that occurred before the 1 May incident. It is not in dispute that PC was not suspended following the 1 May incident. He worked two shifts on 12-13 May before commencing a period of sick leave on 18 May. He then returned to work on 18 July. A disciplinary hearing took place on 22 July and he was dismissed on 23 July.

[18]On 3 June 2021 Adele Milton-Meakin, a receptionist at one of the Respondent’s sites, sent an email to Mr Williams saying that she had some concerns about AC, who had been working at the same site over the last few weeks. She said that he seemed to have issues with colleagues and his complaints were quite conspicuous, presenting a negative image. She also said: “Additionally, while nothing overtly racist has been said about his colleagues in my presence, there appears to be a pattern in the colleagues he takes issue with. This, along with a general comment about race, and reports from black security guards of racism they are experiencing at work, worries me. At a time when the university is investing necessary time and effort into antiracism and allyship, the racial resentment that seems to be building in this team threatens our progress. I hope this information can prove useful in addressing the current issues within the security team and in dismantling racism in the university.”

[19]Mr Pozsonyi’s evidence was that Mr Williams raised the email with him and that he spoke to Ms Milton-Meakin about it. She said she only wanted AC spoken to, and Mr Pozsonyi did speak to him. We did not hear any evidence about what was said to AC.

[20]A security guard colleague of the Claimants’, MF, who is also black, resigned on 19 June 2021. He had undergone a disciplinary process in May 2021 following a report by AC, who alleged MF was sleeping on his shift. On 17 May 2021 MF was notified that there was insufficient evidence that he was sleeping so the allegation was not upheld. During MF’s disciplinary hearing, which was conducted by Mr Williams, MF alleged that this was not the first time AC had wanted him to leave his job. He also mentioned an incident where AC had made a racist comment to another colleague, Mr Pillay. In MF’s resignation letter he alleged that AC had been “reporting me unnecessarily for the past one year because he never like me”. He also alleged that Mr Pozsonyi had “appointed special staff to spy on us which I believe it violate my human right and I cannot work under such manager”.

[21]On 21 June 2021 Nicky Brothwell from the Respondent’s HR department emailed MF acknowledging his resignation letter. She also asked him if he wanted to discuss any of the points he raised in his letter. An email in November 2023 from Fran Hancock, Deputy Director of HR, states that they received no response from MF.

[22]A security team meeting took place on 29 June 2021. During the meeting Mr Headley alleged that the University security department was institutionally racist. He mentioned the N-word incident and AS’s dismissal, saying “isn’t he fired to protect someone or the promote the ideology of some staff who have white supremacy in them?” Mr Pozsonyi said AS’s case was a private case that he could not discuss. Mr Headley said that there was nothing to show that racist behaviour was not tolerated by the Respondent. Mr Pozsonyi said “I will use this forum now since everybody is here, this department does not tolerate and does not accept and will not accept any racism towards any member of staff or anybody else outside the security staff.”

[23]On 20 July 2021, Mr Williams emailed Mr Headley as follows: “Dear Wayne I hope you are well? I am writing to you in regards to comments I have been hearing from various quarters in that you have been rather vocal on your views about racialism and more specifically, the University being "institutionally racist"! I believe this is far from the truth and therefore I am deeply concerned that I have not been made unaware (sic) of your specific reasons or incidents, particularly as you have also not raised a formal grievance (as advised by the security manager - copied in) to address these important issues. Alternatively, if you did not wish to follow a formal route, I am more than happy to have an open conversation with you and address your general concerns. Please let me know how you would like to proceed and I will ensure that I make myself available.”

[24]Mr Headley replied saying that this was affecting all black security officers. He said some “were sack or could no longer work under such hostile and toxic environment”. He referred to the disciplinary proceedings against MF and said that MF had “also raised his concern about the kind of things he being facing in the workplace from some security officers, if that not enough evidence to trigger some kind of intervention then i don’t know what can and what will”. He concluded: “If you are willing to sit down with all the black staff for a constructive discussion I am willing to myself, as I already state it is not about me, it is about all black security staff.”

[25]Following this exchange Mr Williams arranged a meeting for all security staff with himself and HR, to take place in early August.

[26]On 29 July 2021 Mr Morrison submitted a grievance by email to Mr Williams. Mr Morrison wrote: “Official Grievance against bath spa university L.T.D security management Mr Gabriel Pozsonyi and Mr Mark Munro. For the following reason The unequal treatment of employees based on race. On April 2021 there was an incident involving a security guard using the n word while talking negatively about black security guards. The incident was witness by bath spa university students and was posted on whatsapp. (Whatsapp what wrong with bath Spa University). I found out about the incident after receiving an email from bath spa security management asking if any person had witnessed the incident. At the end of each month there is a group meeting over the internet, held by bath spa security management, hosted by Mr Pozsonyi At the end of May 2021 meeting, I asked Mr Gabriel Pozsonyi why he did not talk about the racist incident that had happened in the previous month April 2021 I expected him to talk about the incident telling us the outcome of the investigation then after reassuring us the black members of Bath spa university security team, saying something like (this kind of behaver is not acceptable and will not tolerated) I also told Mr Pozsonyi at this meeting (May 2021) that the security department has become a toxic environment and there is a lot of anti-Muslim hate going on. I asked Mr Pozsonyi to put a contacted phone number in the security office i.e., HR for security guards. Mr Pozsonyi denied any knowledge about the (N W£ORD) incident. Shortly after his statement two security guards at the meeting spoke up confirming that there was an email sent about (N WORD) incident and said that it was Mr Pozsonyi who sent it. Mr Pozsonyi finally admitted there was an email after I asked him what happen to the racist guard. I recorded that meeting using my phone (May 2021) Before the next meeting which was held at the end of June 2021 there was yet another racist incident involving a white security guard security [PC] frittering a black security guard [AS] and call him (A BLACK C) AND TELLING HIM TO GET OUT THIS CUNTRY Again, nothing was said about incident at next following meeting, at the end of June 2021, what is more amazing is that no disciplinary or warning was giving to [PC]. [AS] was sack shortly afterwards. [AS] was called in for a disciplinary hearing for an incident that happen more than three months before. [AS] disciplinary hearing his name was removed from the shift pattern. This shows Mr Pozsonyi intent I was working on day shift when I saw [AS] on sit. He told me that he had been call in for a disciplinary hearing and he did not know what it was about. I said to [AS] that I would accompany as a witness because of all the racist things that were happening [AS] agree. [AS] told Mr Pozsonyi that me M Morrison would siting in at the disciplinary as a witness for him. While me and [AS] were waiting to be called in for the disciplinary Mr Pozsonyi came and spoke to us and said there was no longer a disciplinary, he was just having a talk was [AS]. The next day [AS] shifts were reinstated. A week later another disciplinary was held when I was not there, and [AS] was sacked. [AS] was disciplined for an incident that happen two months before the incident was witness by [CE] he was not called to make a statement. I believe [AS] was shack to protected [PC] The security department of bath spa university was previously contracted out to an agency called SSGC, since 2020 October Bath Spa university have taking over and brought the security in house. Mr Pozsonyi became the manager at the same time. There has been a long history of racism incidents among the security team, The racist started after the security manager retired Mr Tom Bradbury over five (5) years ago. I and other black security staff have put in written completes about incidents of racist many times Mr Mark Munro oversaw security at those time under SSGC. Under the management of Mr Gabriel Pozsonyi and Mr Mark Munro the bath spa university security team racism has got worse where I thought it would get better because the policies the bath spa has got in place. Mr Gabriel Pozsonyi is deliberately targeting the black members of security staff with an aim to remove us from bath spa security (ETHNIC CLEANSING). Mr Mark Munro is not following up rascal complaint sent to by guards Mr Gabriel Pozsonyi is an ex-police officer and Mr Mark Munro was in the South African army under apartheid. Bath Spa University has policy in place to protect staff from being abused and personal bias. I would like a full investigation of my complaint done by unison and bath Spa University including interview with following security members (named below), who are suffering unequal and bias treatment. [CE] who witness the incident that [AS] was sack for. Mr M Mohammed has told me himself that he has suffered unequal and bias treatment from Mr Pozsonyi and has recorded some of it on his phone as evidence [JJ] has told me the treatment by security staff is the reason he left bath spa security after complaining to Mr Munro and nothing was done about it. He has email of complete as evidence. Mr M Mohammed. [MF]. [MM] [AS]. Mr W Headley… I attach audio recorded of meet on May 2021 and Email of completes send to management of above named complaining about racist team by Since I Made this complaint to you [MF] has left bath spa security after being falsely accused disciplined. At that disciplinary hearing, [MF] said that [AC] the accuser, does not like him … because his race and religion. [MF] told the disciplinary hearing about a racist incident in which [AC] throw a prayer mat he was using on top of the security loge roof.”

[27]Mr Williams held a meeting with Mr Morrison on 5 August 2021 to discuss his grievance. Mr Morrison alleged in the meeting that Mr Pozsonyi had said he wanted to get rid of both Muslims and black people, and that he was bullying a colleague, Mr Mahamed, in order to push him out. He mentioned an incident on 12 June when Mr Pozsonyi was aggressive to Mr Mahamed. Mr Williams said he would be speaking to Mr Mahamed as part of his investigation and would cover the issue. Mr Morrison also raised the issue about AS and PC and said PC had threatened AS but nothing happened to PC. Mr Williams informed Mr Morrison that PC had been dismissed. The notes of the meeting state: “AW further stated that the reasons for any dismissal of staff members were confidential and that he was therefore unable to discuss the specifics of the case. However for clarity AW provided MM with some facts stating that [AS] was dismissed following three offenses and was under a final written warning, AW went on to state [PC] was unwell which made the disciplinary process elongated, however as soon as he returned the process was implemented which resulted in dismissal.”

[28]Mr Morrison said that PC should have been suspended as he was a risk to other officers. He said that Mr Pozsonyi was protecting these people.

[29]Mr Morrison also alleged that guards were leaving because of issues with racism. He referred to the prayer mat incident involving AC. Mr Williams said that AC “had been spoken to regarding this”.

[30]Mr Morrison also referred to the N-word incident and said that Mr Pozsonyi had said he knew nothing about it, but then said he had got rid of the guard. Mr Williams said he believed the report was anonymous and it was therefore difficult to deal with, but he “understood that there was something that could have been done to highlight the matter”. He said he would discuss this with Mr Pozsonyi as part of the process.

[31]Mr Morrison also referred to another complaint of racism made to Mr Munro while they were employed by SSGC which he said Mr Munro did not follow up.

[32]Mr Williams said he would interview Mr Pozsonyi and Mr Mahamed, but he could not interview those who had left the Respondent because this was not in his remit. Mr Morrison pointed out that two of the guards mentioned in his grievance were still there – Mr Headley and one other, CE.

[33]On 6 August 2021 Mr Williams wrote to Mr Mahamed to invite him to a meeting on 11 August to discuss the issues raised in Mr Morrison’s grievance. On the morning of the meeting Mr Mahamed emailed Mr Williams asking to reschedule the meeting “because I am coughing to much and can’t talk too long, and i want talk allot of things”. The meeting was rescheduled to take place at 12.30pm on 18 August.

[34]On 11 August 2021 the meeting took place that Mr Williams had arranged as a result of his email exchange with Mr Headley. As well as the HR business partner, the “equality and projects officer” from HR also attended. Mr Williams introduced the meeting by saying: “So the reason for the meeting or the discussion this morning is simply I've had or heard, I've been privy, to a number of comments, concerns around inequality, racialism, institutional racialism. There's a lot of things been banding around, and what I'd like to do this morning is set the record straight for a start on the university's stance on equality diversity, and hence the reason Blaze and Nikki are here, but also to listen to any concerns that any of you might have about your working environment, about how you're treated or any concerns you have around inequality.”

[35]The meeting largely then consisted of Mr Williams and the HR staff informing the team about the equality policy and the process for reporting issues.

[36]Mr Morrison asked what the purpose of the meeting was and alleged that the University had not been acting on these issues. He mentioned an issue with the cleaning team. HR asked him to contact them outside the meeting about it. The discussion then continued: “Morrison: See, this is my point. See what you just done there? That's perfectly reasonable. This meeting does not make no sense. So people are complaining about their racism within the university, and so you put black people in front of the people that are racist, expect them to speak? Where's the logic in that? Williams: Who's racist? Morrison: I've already put the grievance in. Williams: You have, so I'm not discussing-, Morrison: So what is the purpose of this meeting? What are you supposed to achieve? Because nobody who's going through the stuff is going to say anything in the meeting. This is the kind of crap stuff that they do for child support when you put a kid, I know, you put the kid in front of your parents and say, 'Do you want to stay with them?' Yes, I've had that, and they still do that now because a guy called Fab told me they still do it. This is not the way to do it. You don't deal with it like this. Wayne actually sent you an email and asked you to speak to the security guards, black guys, to interview him to see what their problems are. What have you done here? You've put them in front of all the people and expect them to speak.”

[37]Mr Headley, who joined the meeting late, repeated the allegation that the security department was institutionally racist, and said “people are continually being racist, but they just don't care because nothing is happening. Nothing at all is happening.”

[38]Mr Williams responded, saying, “I’ve taken all this onboard. I have interviews with certain members of you, and I will discuss your concerns at those interviews. And I will investigate the major concerns that we've got here. And, you know, if I'm honest with you, it's the first time I’ve understood the gravity of the concerns that you guys have, okay. So, now I understand it, I will investigate it and I will deal with it, that is my word.”

[39]On 12 August 2021 Mr Williams interviewed Mr Headley in relation to the issues raised in Mr Morrison’s grievance. Mr Headley said he agreed that there had been many incidents since he started working there in 2017 and when they are reported nothing happens. He believed that this was still the case under the Respondent. He said an agency guard had said a manager asked him to spy on people and let him know who he could get rid of, and that there were only black people on the list. The HR business partner attending the meeting said that management wanted to put a stop to these incidents happening and asked Mr Headley what he thought they could do to address the situation. Mr Headley said: “I think you need to go through everyone privately in a closed environment. AW needs to sit down with us privately. There are people who will never say anything.”

[40]Mr Williams responded: “I will take this on board. I will commit to sitting down with you all and have a frank and open discussion. I need to sort Michael Morrison’s grievances out first in a certain time frame. Please give me time to deal with this.”

[41]Mr Headley also raised the N-word incident and said that when it was raised with Mr Pozsonyi he “disowned it”. Mr Headley said he had worked with the person in question two weeks ago.

[42]Mr Williams interviewed Mr Munro on 13 August. Regarding the prayer mat incident, which occurred while SSGC had the security contract, Mr Munro said “We never got to the bottom of this as no complaint was raised”. As for the Nword incident, he said he did not recall it at all. He denied the allegation that he and Mr Pozsonyi were protecting racists, and denied there was a list of black and Muslim guards management wanted to get rid of.

[43]Mr Williams also interviewed Mr Pozsonyi on or around 13 August. We did not have any notes of the meeting, but the interview was summarised in Mr Williams’s investigation report. According to that report Mr Pozsonyi was asked about the N-word incident. He said: “This was sent to me and consisted of a conversation and an anonymous post where a guard allegedly used the “N” word”. “As this was an anonymous posting, it was sent to all staff to see if they could shed some light on this as there was nobody named on it”. No response was received from any member of staff. GP stated that there is a lot going on during his day and if he hadn’t received a response there was not much that could be done to find the culprit, so it was probably pushed to one side. “He stated that he was horrified and a little gobsmacked when told of the incident and may have come across as a bit confused although he does recollect stating that he would not stand for any racism or racist abuse and that it would be investigated if it was brought to his attention. When asked if he had denied any knowledge of the incident or investigated it, he stated that he likely did not have the evidence to pursue the issue and it may have looked like he hadn’t done anything but he had. He recollects being totally taken aback, and knowing his own dislike of this sort of language he is absolutely sure he would investigate anything at all whatever. Therefore if anyone had provided even a shred of evidence it would have been pursued. Unfortunately nobody stepped forward with anything I could have worked with.”

[44]On 18 August 2021 the interview with Mr Mahamed was due to take place. Mr Mahamed sent Mr Morrison a WhatsApp message at 2.09pm with a photo of his ipad screen saying no-one had attended. Mr Mahamed accepted in his oral evidence that he may have got the time wrong and missed the meeting, which was scheduled for 12.30pm. We accept the Respondent’s evidence that Mr Mahamed did not attend at 12.30pm.

[45]On 20 August 2021 Mr Williams emailed Mr Mahamed: “Dear Mahamed Apologies for the confusion around meetings, however, as discussed to save time and rescheduling another meeting I would be grateful if you could provide me a response to the undermentioned questions that I have posed below in regards to the grievance raised by Mr Morrison: 1. The phrase “institutional Racism” has been used which I now know refers to racism within the Security Team Question: Could you please tell me whether you have experienced this and where possible provide examples? 2. In Mr Morrison’s grievance he has stated that racism started over five (5) years ago and has not improved. Question: Is this your perception and if so why? 3. Mr Morrison also stated that Gabriel Poszonyi is deliberately targeting the black members of security staff with an aim to remove them from Bath Spa Security. Question: Do you agree and if so why? 4. We have a comprehensive complaints procedure in place for you to raise issues which are then investigated Question: Do you understand how to make a complaint and have you raised any issues in the past to anyone in BSU and if so what was the outcome? Thank you for assistance with this and I will be in touch next week to organise a face to face meeting as agreed.”

[46]The Claimants argue that the fact Mr Williams apologised is strong evidence that it was the Respondent who did not attend the meeting on 18 August. We consider the evidence of the WhatsApp message is more reliable, and that Mr Williams’s apology was likely to have been intended as a polite way of referring to the fact that the meeting had not gone ahead without assigning blame.

[47]Mr Mahamed did not respond to Mr Williams’s email. In his oral evidence he did not give any reason for not responding, but said “I have a right to decline”.

[48]CE, another black security guard, was invited to an interview with Mr Williams on 20 August. That morning he asked to reschedule to 23 August. Mr Williams replied saying he was on annual leave that day, but would try to arrange another date. Shortly afterwards, also on 20 August, Mr Williams emailed CE saying he was having difficulties finding another date, and asked him to provide responses to questions in writing. He asked the same questions as those asked of Mr Mahamed. CE did not respond.

[49]On 26 August Mr Williams produced an investigation report relating to Mr Morrison’s grievance. In the “facts established” section he noted there had been a consistent failing to acknowledge and deal with complaints both under SSGC and more recently the Respondent to the satisfaction of those concerned. He said he believed the failings in part can be attributed to the forthright management style of Mr Pozsonyi and the lack of team leaders. He wrote: “Following my conversations with both GP and Mark Munroe I do not believe that the incident involving the use of the “N” word was dealt with appropriately and the response from GP lacked the gravity expected by the complainants and the University, and whilst I do not believe this was a deliberate attempt to dismiss the matter, failure to respond appropriately and communicate with the team correctly has resulted in a lack of trust from concerned employees towards both Line Managers. As a small department with a multi-cultural contingent and as an organisation, I believe we have failed to create trust and consistency with the aim of being inclusive, challenging those behaviours that do not support an anti-racist workplace. As a Manager, being an ally to staff from ethnic minority backgrounds, is paramount in creating a culture free from microaggressions, which are subtle comments and behaviours that indicate to someone that the person speaking thinks they don't belong, (such as asking someone who has an ethnic minority background and who has lived in the UK all of their life where they are really from). The role of the manager is to notice when microaggressions take place and address them, he/she should listen, acknowledge and take action if someone comes to you as the victim, this has clearly not happened in the security department and over time has resulted in a level of frustration amongst the officers from Black, Asian or Ethnic minority heritage or backgrounds as no one seems to listen causing them to perceive or experience a level of discrimination. … MM’s perception that [AS] was dismissed to protect [PC] is unfounded as [AS] was dismissed for an unrelated matter (Gross Misconduct). Furthermore MM’s insistence that [PC] should have been suspended pending an investigation and that the disciplinary process took too long was due to [PC’s] illness and HR have confirmed that due process was followed in this matter.”

[50]Mr Morrison was notified of the outcome of the grievance by letter dated 26 August 2021. The letter is set out in full here: “Dear Michael Grievance outcome Following the meeting that was held with you on 05 August 2021 to discuss your grievance, I am now writing to you to confirm the outcome. After listening carefully to everything that you said, I have reached the following conclusions: Whilst I could find no clear evidence to support the claim of unequal treatment based on race, by either Mark Munro or Gabriel Pozsonyi, it is clear from my investigations that there is a level of frustration felt by you and other officers from Black, Asian or Ethnic minority heritage or backgrounds who do not feel fully included within the department and feel they are discriminated against by certain colleagues. However, I do not agree with your perception that as Gabriel Pozsonyi is an ex Policeman and Mark Munro is South African that they are therefore racist and treat staff unequally. Following the transfer of staff from SSGC Gabriel Pozsonyi has had to focus on operational matters and in doing so may have missed some important signals from employees which has unfortunately allowed some old habits and practices to continue within the department unchecked. There is no doubt in my mind that there has been a consistent failure to acknowledge and deal with complaints both under SSGC and more recently BSU Ltd, to the satisfaction of those concerned. Whilst I cannot answer for SSGC, from BSU’s perspective, I believe the failings in part, may be attributed to Gabriel Pozsonyi’s management style and the current organisational structure which lacks team leaders and therefore offers no intermediate management intervention. With regard to the incident involving the use of the “N” word, I do not believe that was dealt with appropriately. The response from Gabriel Pozsonyi lacked the gravity expected by the complainants, and the University, and whilst I do not believe this was a deliberate attempt to dismiss the matter, failure to respond appropriately and communicate with the team in an effective and timely manner will almost certainly result in a lack of trust from concerned employees towards both Line Managers. Following insourcing, employees appear to be unsure as to how to raise a complaint or how the escalation process works. Furthermore, I believe that more needs to be done to build trust and consistency within this small department, with the aim of being more inclusive and ensuring that any behaviours that do not support an anti-racist workplace are challenged and investigated appropriately. As a result of these findings, I do not propose to take any formal disciplinary action, but propose to take the following steps: 1. I will arrange for a 1:1 session led by me, the Head of Facilities and Services, specifically for all Black, Asian or Ethnic minority heritage or backgrounds to discuss and understand any current concerns, exploring ways to eradicate any discrimination, and improve the workplace environment. 2. I aim to implement Team Leaders roles as a matter of urgency who will act as the first point of escalation for any issues and complaints. 3. Update the BSU Ltd website with up to date and relevant policies and ensure that all staff have access to these. 4. Ensure that all team members are aware of the escalation process and how to make a complaint. Publish details for ease of reference. 5. Improve communication within the department, including taking minutes of monthly meetings to be published and distributed, implementing one to one meetings with all staff and ensuring that the message is clear that racism will not be tolerated in any form. 6. Further education for all team members on Equality and Diversity. I hope that this resolves the matter that you have raised. However, if you wish to appeal, you may do so by setting out your grounds of appeal to me in writing by 07th September 2021. Should you wish to appeal, a further meeting will be held with Richard Jordan Director of Estates and Services who will hear any appeal.”

[51]Mr Williams accepted in his evidence that the proposed meeting for BAME staff did not take place. He also accepted that he had promised Mr Headley in their meeting on 12 August that he would sit down with every black security guard but he did not do so. He said “everyone resigned before I got to it”. In fact the only black security guards who resigned after 12 August were Mr Mahamed (on 29 August 2021) and Mr Morrison (on 27 September 2021). Mr Headley, Mr Pillay and CE remained employed until 2022. Mr Headley resigned on 19 April 2022 and the other two remain employed by the Respondent. Mr Williams said he could not answer why he did not sit down with the staff who were there in August 2021 and afterwards. Mr Headley asked him, “Can you see as a black person I lost trust in you”. Mr Williams responded, “Yes, I don’t disagree.”

[52]On 29 August 2021 Mr Mahamed resigned. In his resignation letter he said that the reason for his resignation was “the unequal treatment and racism at the hands of Mr Gabriel Pozsonyi”. He alleged Mr Pozsonyi had asked two agency guards to spy on him and his black colleagues.

[53]Mr Mahamed attended an exit interview with Mr Williams on 9 September 2021. According to an email from Mr Williams in March 2022 summarising his notes of the meeting, Mr Mahamed repeated the allegation of spying by agency guards and also raised “discrimination and equality issues”. Mr Mahamed’s evidence is that he had sent four emails to HR during his employment complaining about Mr Pozsonyi’s treatment of him and that none of them were opened.

[54]On 27 September 2021 Mr Morrison resigned. His resignation email states: “The reason for my resignation is because of the systemic racism within Bath Spa University management structure(1) The HR team have failed to protect Bath Spa University black employee from bullying / harassment/ racist abuse.

(2) HR failure to act/ not answer or even open (4) four emails sent by M Mohammed making complaint of bullying/ harassment against Gabriel Pozsonyi, the ﬁrst was sent (November 2020). Complaint against Gabriel subject of the email This was eight months before I put a Grievance against the security management Gabriel Pozsonyi and Mark Munro about their unequal treatment of black employees based on race.

(3) HR failure to protect/ resulting in M Mohammed resignation from bath Spa University date 29/08/ 2021 because work place racial abuse, at the hands of Mr Gabriel Pozsony. (3) HR covering up racist behaviour / [MF] racial abuse, at the hands [AC]. [AC] made a complaint against [MF], Ref (sleeping at work). At a disciplinary hearing held on 17th May 2021. [MF] stated, the complaint made by [AC] was racially motivated, and stated many incidents of [AC] racist acts. Only one of which was recorded on the notes at the meeting. I M Morrison was never interviewed about the incident. If they had of interviewed me, I would have conﬁrmed that I spoke to [MF] in the welfare ofﬁce, ﬁve minutes before [AC] came into the security ofﬁce to pick up keys. I also would have said to check the camera in the ofﬁce, which would show [MF] awake all night on the radio. [MF] was Fasting, meaning abstinence from food or drink and sleep. [MF] stated at the hearing that [AC] preciously thrown a prayer mat on the old security lodge roof. Which show anti-muslin beliefs. (This statement was omitted from the notes of the hearing). No disciplinary hearing has ever been given to [AC] about his racist acts.

(4) HR covering up racist behaviour; At aGrievance meeting 5 Aug 2021. I put against security management G Pozsonyi and M Munro. Ref; The unequal treatment of employees based on race. Many things I stated was left out of the notes I was given. I now realise why this was done by HR It was to covering up the racist behaviour by G Pozsonyi. (I have a recording of this meeting). for example; At the Grievance meeting I asked Andrew William Head of Facilities and Services, about an agency security guard that was heard by students using the N word, while criticizing black security guards in April 2021. I said to A William that, G Pozsonyi has previously stated at a meeting held May 2021, (That the agency security guard had been removed and is no longer working on bath spa university sites) A William replied saying, they did not know the name of the guard that said the N word, so they could not remove him. After the Grievance meeting held on 5 Aug, while I was working at Newton Park, I found out the name of agency security guard that said the N word. His is [BB]. The security ofﬁcers who told me his name, stated that [BB] was removed then brought back because their short staff. I then realised why [BB] was treating me with so much animosity, and calling me the C word behind my back, I was told this by security guards. l was talking about [BB] and his uses of the N word in the security office. Two days later [BB] was removed from site. I found out weeks later, that there is a microphone in the security office. which was conﬁrmed M Munro. It appears to me the microphone has been installed only to protected racist, sexist and homophobic because of thing I have heard said in there.

(5) covering up racist behaviour; The grievance I put in Aug 2021. The unequal treatment of employees based on race. Was not upheld (5a) None of my points of contention have been investigated which can clearly be seen of the grievance outcome letter. (5b) M Mohammed was not interview during the grievance investigation, which force him to resign. (5c) in my grievance letter I wrote ethnic cleansing and anti- Muslim hate was happening at bath spa university. Which has now been proven because all the Muslim have been force out.

(6) Nazi behaviour meaning; Bath Spa University management structure are using their position of authority to victimise and marginalize people, because of personal racial bias.

(7) I Fear retaliation; from Bath Spa University H.R, management structure and also persons working at bath spa university who are openly racist, that now believe they are protected. A Security officer job puts officers in many confrontational situations or position I fear that one of you may use the opportunity to frame me.

(8) hostile behaviour since I put in this Grievance person working at bath spa university have been hostile towards me. I have a recording of every meeting”

[55]On 21 October 2021 Mr Headley’s union representative Tim Davis wrote to HR on his behalf to raise a concern about shift patterns. He wrote: “Fran, Amanda, I have been contacted today by our member Wayne Headley, security guard, he told me that he is repeatedly being put on weekend shift patterns when other guards are not. We (UNISON) interpret this as another act of attempted intimidation by the line manager which follows the pattern and behaviour previously shown to other black guards. We request that this is looked into and rectified to ensure shifts are allocated fairly, and unsociable shifts (in this instance weekend shifts) are not landed on one or two teams members only. Using shift patterns to seemingly punish, or destabilise team members has happened very recently here before, notably with Rhada, another BAME team member, and that was resolved only after HR intervention, we would ask that you intervene again. Tim”

[56]Amanda Strange, one of the recipients of the email, spoke to Mr Pozsonyi about the issue. He provided data showing the number of weekend shifts allocated to Mr Headley from August 2021 to January 2022. He noted that up to and including October 2021 the pattern was 3 on 3 off. This changed at the request of the majority of the team to 4 on 4 off, from 1 November 2021. He also said that up to August 2021 the rota was managed by Mr Munro “who did not religiously apply a stringent rotating shift pattern”. Mr Munro had left the Respondent’s employment on 10 September 2021. Mr Pozsonyi said he now applied a continual rotating shift pattern which was the same for all staff.

[57]It is not in dispute that Mr Headley had worked one weekend shift in September (on 11 September) and six weekend shifts in October (over the first four weekends, with the last weekend in the month free). The shift allocations for November were sent to the staff in early October and Mr Headley was allocated seven weekend shifts falling on all four weekends in the month. Of the three other guards working at similar sites, a white guard (AC) was allocated the same weekend shifts in November. Taking October and November together, Mr Headley had 13 weekend shifts compared to 8, 6 and 2 for the others. Mr Headley accepts that the November shifts were allocated pursuant to the new 4 on 4 off rota, and that over the whole cycle of the rota everyone would work the same number of weekend shifts, but he objected to the fact that he was allocated the shift pattern that included weekends in the first month because he had just worked on four weekends in October. Weekend shifts were less convenient to him because he had further to travel than other guards and they were shorter shifts. He also says that he preferred not to work on weekends because his wife was very unwell. He says that Mr Pozsonyi was aware that his wife was unwell, but he accepts that he did not ask to be excused from weekend working for that reason.

[58]Mr Pozsonyi’s evidence to the Tribunal was that he allocated the November shifts according to the new 4 on 4 off pattern, and he was not even aware of which guards would be working weekends.

[59]Fran Hancock, Deputy Director of HR, responded to Mr Davis on 22 October 2021. She wrote: “Dear Tim We have investigated the concerns you raised yesterday and can confirm the following: The shift pattern ALL staff are subject to is a 4 on and 4 off pattern which came into effect on the 01/11/21. Prior to this it was a 3 on and 3 off pattern. So it may be the perception of some staff that they are always working weekends however this is not the case. Residential sites do 4 days, 4 off, 4 nights 4 off Academic sites work 4 days on 4 days off regardless of weekends. The team keep copies of current and previous monthly shifts which demonstrate this. I hope this helps clarify the issue. Fran”

[60]On 24 October 2021 Mr Headley wrote to Mr Davis, copying in Ms Hancock, as follows: “Hi Tim I would like to follow up on this Dipropionate investigation that was hasely pushed through to shut down my experience or to silence me like so many of my colleagues who have miscarrage of justice from HR and some members of UNISON also. … I would appreciate it if every one approached every subject raised by Black minority security officers with morality and integrity. Wayne Headley has had so much unfairness when it comes to shift allocation over the years that I had to challenge at times and sometimes I just go along with it, but because of the present hostile and toxic environment that have pushed out most of the Black and Minitory security ofﬁcers i decided that. no longer will I be sililience and if those who are in charge. continue with the cover up and denial culture that is very much a part of BATH SPA UNI SECURITY LTD. I will use outside advice to expose and bring everyone into disrepute. In AUGUST Shift Schedule : All security ofﬁcers worked Monday to Friday on Academic sites. With the exception, R Pillay, covers one Saturday shift. Armasec: Officers as and when needed. [Details of shift schedules] Conclusion For one staff member of the security team to be allocated (13) consecutive weekend shifts over (2) months period, speak volume. I would also like to question the morality and ethicality of those who investigate and escalate fairness in the workplace on behalf of Black & Minitory staff. No wonder all of my colleagues who leave the security team in the past (3) - (4) months all say the same thing, they can no longer work for an Institution that is Systematically Racist. The outcome of your investigation is nothing short of a shambolic, baseless, disgrace that continues to shield and protect those that make decisions that have a chilling effect on staff like myself and other minitory backgrounds. Unhappy Security Staff Wayne Headley”

Conclusion

[61]Ms Hancock responded on 25 October 2021 saying that they would be investigating the matter thoroughly now that they had this additional detail, but that they would need to speak to Mr Pozsonyi who was on leave. She said they would follow this up as soon as he returned and come back to him with a full response.

[62]Ms Strange provided a response on 3 November 2021. She wrote: “Dear Wayne Thank you for your email that you sent on 24 October 2021 and the additional detail you have provided about the concerns that you have raised with regards the weekend working patterns of members of the security team. Following Fran's email of 25 October, where she advised you that we will be investigating this matter thoroughly, I am now in a position to be able to fully respond to you. You will know from Fran's response to Tim Davies (UNISON rep) who raised the concerns initially on your behalf, that Fran explained that the shift pattern that all staff are working to, is subject to a 4 on and 4 off pattern which came into effect on 1 November 2021. Prior to this, it was a 3 on and 3 off pattern. This means that with a rotating shift pattern which covers seven days a week, if you view a shapshot in time (e.g. individual months), and compare the different shifts that various officers are working, it will always appear that there are some officers who are doing more weekend shifts than others. However, this evens out over the course of the shift rotational cycle. It takes 8 weeks to complete the full cycle of the rotational shift pattern and every 8 weeks, each officer has the following:• 3 x full weekends worked

• 3 x full weekends off

• 2 x partial weekends off (either a Saturday or a Sunday) Please bear in mind that there may have to be some exceptional changes to the shift pattern. With any rota there will always need to be manual adjustments which take into account sickness, holidays, additional hours worked and adjustments made for individual circumstances (e.g. for health or religious reasons). I am sure you will understand that where sickness and adjustments are made for individuals, then confidentiality applies, and we are not able to discuss individual circumstances with you. We understand that the former Security Team Supervisor (Mark Munro) managed the rota arrangements, which historically was managed more on an ad hoc basis. You will be aware that Mark has left BSU Ltd so we are not able to discuss this further with him. However, it had already been recognised that the way shifts were allocated was not ideal, and so the rota system was introduced to ensure that there was better structure and formality to allocating shifts. From our investigation we have found that the rotational shift pattern is operating as it is designed to, and shifts are allocated in line with the rota, taking into account the manual adjustments that need to be made. To determine fairness, the shift allocation needs to be viewed on a full cycle of 40 weeks, rather than a snapshot of individual months. We would like to reassure you that BSU Ltd is fully committed to providing equality of opportunity for all its staff. The University will not tolerate unfair or unalwful discrimination of any of the protected characteristics outlined in the Equality Act, or any distinction which is not relevant to the employee/employer relationship. In conclusion we can confirm that our investigation has not found any discriminatory practices in the operation of the shift rota that has been implemented. Finally, we would like to thank you for sharing your concerns with us, and providing us with the opportunity to respond. The Security Manager is very happy to sit down with you and go through the rota system to explain it in more detail with you, so as to address your concerns further. Please let us know if you would like us to arrange this for you.”

[63]On 1 December 2021 Ms Strange emailed the security team inviting them to attend a Focus Group on 9 December led by a representative from the Employers Network for Equality & Inclusion (“ENEI”).

[64]On 11 December 2021 Mr Headley emailed Ms Strange asking why she had said that Mark Munro was responsible for the allocation of the November rota, which was not true.

[65]Ms Strange responded on 15 December clarifying what she had said about Mr Munro managing the rota: “When I said this, my meaning was that when Mark Munro was employed, he was managing the shift rota, which previously had been more on an ad hoc basis, rather than a regular shift pattern. We had recognised that this was not ideal, and initially a 3 on 3 off regular shift pattern was introduced, and then from 1 November 2021 a 4 on 4 off pattern. My response meant that because Mark had left our employment we were not able to talk to him about anything that had happened whilst he was employed and managing the rota. My response was not meant to mean that Mark had managed the November 2021 rota as this was after he had left.”

[66]On 24 December 2021 Mr Headley submitted a formal grievance. He wrote: “Complaint about unfair shifts allocation. At the time I informed HR about this I had already worked one months of weekend shifts. The weekend shifts are 6 hours, not the normal 12 hours as in the weekdays. (This means for the past two months my monthly pay has been down. The other security guards who work on the academy sites as myself, all live within the bath area where as I live outside of bath and have to travel excess MILEAGES They were given weekday shifts which are 12 hours shifts. The reason for this grievance against HR as follows 1 After my complaint DATE 24 October 2021 l was given weekend shifts the following month 05 November 2021 by Mr Gabriel Pozsonyi. 2 H.R could have contacted Mr Pozsonyi. And raised my concerns about my shifts, so Mr Pozsonyi. could’ve amended November’s shift pattern (which was a completely new pattern changing from 3 on and 3 off, to 4 on and 4 off.) He could have made sure my shifts did not fall on the weekends. 3 HR said in an email to me DATE 03 November 2021 they could not contact Mr Pozsonyi because he was on holiday. H.R could have sent him an email, why didn't they? 4 HR said in an email DATE 03 November 2021 that Mark Munro was responsible for the allocation of shifts in November 2021. This is not true-a lie The Security Manager Gabriel has conﬁrmed to me, in front of all my coworker’s, at the last security meeting that he was responsible for the allocation of shifts in November 2021. Why didn't HR Investigation also ﬁnd this injustice? Mark Munro has also conﬁrmed that he was not responsible for November shift 2021. 5 I believe if HR spent time in solving my complaint, instead of blaming Mark Munro this issue would have been easily resolved. 6 an email sent by HR Date 15 December 2021 which says on point 2 Which refers to Mr Rhada Pillay/ health or religious reasons / sickness and holidays. This statement has no bearing on the issues which is unfair shifts allocation. It is part of the Bath Spa University policy, that all staff must be treated equally (in the same manner or to the same extent). I have been treated unfairly as a doormat given the shift no one wanted. I believe this is racially motivated I believe I was targeted by the security manager Gabriel Pozsonyi because I was speaking out against racial discrimination in the work place that has led to four Black and Muslim guards loosing their job In BSU Newton Park Security U LTD. I believe I have been taking advantage of I believe it was a planned physiological abuse that meant to frustrate me so I would walk away like some of my colleagues did. That why I was given (14 continuous 6 hours weekend shifts) that comes with (Finical Apartheid) My mental health has been affected because of this unfairness. My conﬁdence at work has been affected. My trust has been eroded and it is having an adverse effect on how I conduct myself at work. H.R input has not been helpful when I asked for their intervention, l was expecting HR meditation to be of fairness without bias but they have failed to protect my welfare in the workplace. All because of a carefully planned coordinated and structured system design to force black and Muslim guards out of Bath Spa University Security U LTD. As [AS], [MF], M.Muhammad and Michael Morrison. all found out that Bath Spa University is a hostile and toxic environment and not very welcome to people from Black and Muslim backgrounds.”

[67]Sarah Priston, Head of Research Support at the University, was appointed to investigate the grievance. She held a meeting with Mr Headley on 12 January 2022. She asked him to talk through his grievance and Mr Headley responded: “My emails explain everything. Why did HR let me continue doing weekend shifts? Why did HR lie to me about investigating my concerns?”

[68]Ms Priston’s evidence was that she interpreted the grievance as being solely about shift allocations. She did not investigate the allegations relating to race discrimination because she did not believe that was her job. She said that as part of her investigation she spoke to Mr Pozsonyi and Ms Strange. She did not ask Mr Pozsonyi about the allegation of race discrimination because she was satisfied the shifts had not been allocated unfairly. She said she did not have any ethnicity data relating to the security guards. She also said she was provided with a copy of the minutes from Mr Headley’s interview with Mr Williams on 12 August regarding Mr Morrison’s grievance, so that she had an understanding of the background.

[69]Ms Priston notified Mr Headley of the outcome of the grievance on 3 March 2022. She wrote, so far as relevant: “After listening carefully to everything that you said, I have reached the conclusion that your grievance be partially upheld on the grounds set out below: I have found that the allocations of weekends given to you for the period September - November 2021 were in excess of the allocations that would normally be expected for an individual member of staff. However, I have not found any evidence that these allocations were influenced by the racial characteristics of individuals, but were a result of the changes to shift patterns that were implemented across this period, in order to address concerns made by the security team, and in preparation for the move to regularised contracts. In order to explain the decision that I have made, I set out below a detailed response to the allegations made in your grievance complaint dated 24.12.2021: … 4. ‘H.R could have contacted Mr Pozsonyi and raised my concerns about my shifts, so Mr Pozsonyi. could’ve amended November’s shift pattern (which was a completely new pattern changing from 3 on and 3 off, to 4 on and 4 off.) He could have made sure my shifts did not fall on the weekends.’ - HR contacted GP on 21.10.21 as soon as they received the email from the union, and got a response that day, which was sent to Unison 22.10.21. I agree that there would have been an opportunity at this stage to have reviewed your shift patterns for November 2021. … 9. ‘I believe this is racially motivated I believe I was targeted by the security manager Gabriel Pozsonyi because I was speaking out against racial discrimination in the work place that has led to four Black and Muslim guards loosing their job In BSU Newton Park Security U LTD. I believe I have been taking advantage of I believe it was a planned physiological abuse that meant to frustrate me so I would walk away like some of my colleagues did.’ - I have found no evidence that you were treated more unfairly than other staff - 3 other members of the team were also adversely affected over this period of time (28% of total staff). I do believe that this was a consequence of the move to the new shift pattern, and also due to the fact that no analysis of the effect that this transition would have on the weekend working shift allocations of staff across this period was undertaken. This was an oversight, rather than being done with malicious intent. … 12. ‘All because of a carefully planned coordinated and structured system design to force black and Muslim guards out of Bath Spa University Security U LTD. As [AS], [MF], M.Muhammad and Michael Morrison. All found out that Bath Spa University is a hostile and toxic environment and not very welcome to people from Black and Muslim backgrounds.’ - I have undertaken an analysis of all shift patterns for the period January - December 2021, and have shared my analysis with HR. - Of the staff that you mention, three members of staff worked higher than the average number of weekends across the period January to July, and one was lower than average. However, 9 other staff also worked for higher than the average number of weekends over that period, so the data does not indicate an unequal bias as you suggest. - For the period August-September, 6 other staff also worked more weekends than the pattern set out in point 8 above. - From my analysis of the data, I have therefore not been able to find evidence to substantiate claims of inequality in relation to the allocation of weekend shift patterns. - My analysis of shift patterns from November 2021 onwards shows that the shift patterns are now allocated on a much more regular pattern, and adhere to the new 4 on-4 off pattern. This will be strengthened by the implementation of an electronic shift pattern system shortly. As a result of these findings, I propose to take the following action: - I have recommended that HR look at ways to collate equality data for the staff of BSU Ltd, and that the Security team management work with HR to undertake an Equality Impact Assessment of Bath Spa Security Ltd staff on any future changes to contracts or modes of working on staff from protected groups, and that these are reviewed in advance. This should be a transparent process and shared with all staff. - I would like to offer you the opportunity to speak to Andy Williams, Head of Facilities and Services about how the new 4 on 4 off rota is working, and allow an opportunity to raise any considerations for future adjustments to this. Please come back to me and Liz Pridmore to let us know if this is something that you would be interested in exploring in more detail. - I hope that this will start towards building trust between yourself and the Security Management Team. I hope that this resolves the matter that you have raised. However, if you wish to appeal, you may do so by setting out your grounds of appeal to me in writing within 7 working days of this letter.”

[70]In the meantime, in February 2022, ENEI had provided feedback on the Focus Group session and produced an “Action Plan”, which included proposed workshops and training on equality issues.

[71]Mr Headley submitted an appeal against the grievance outcome on 10 March 2022. He was off sick with work-related stress from around 1 April 2022. On 19 April 2022 Mr Headley resigned. He wrote: “Dear HR Contact, I cannot work under this condition. I am writing this letter in order to let you know that | am resigning from my job as a Security officer. with immediate effect 20 April 2022 Is impossible for me to return to work at Bath Spa University, the mental pressure and stress I am suffering just thinking about it are causing me too many tremors, and the fact I have no trust or confidence in Bath Spa Authority because of how I was treated. likewise some black and Muslim security staff before me. The Issues that I couldn't resolve myself and HR didn’t help led me to think that the only way is for me to resign. I have been a victim of unfair treatment for.m a Manager and despite the fact that I have contacted HR, nothing has been done to resolve the problems for me. it is with great regret that the memory of Bath Spa University that | am taking with me is that of discrimination and unfair treatment against black and minority staff when it could've been of so many less negative things.”

[72]Mr Headley’s evidence in his witness statement was: “Bath Spa University fundamentally breached my contract of employment by failing to adequately deal with a series of racist incidents involving myself and other black and BME colleagues. I raised some of those issues in a grievance 24/12/2021 and the response made it clear they would not be willing or able to ensure a safe working environment for me. I resigned losing all trust and confidence in Bath Spa University as my employer.”

[73]His evidence that that was the reason for his resignation was not challenged.

[74]A grievance appeal meeting took place after Mr Headley’s resignation. The appeal was dismissed on 16 June 2022.

THE LAW

[75]The Equality Act 2010 provides, so far as relevant: 13 Direct discrimination(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. … 26 Harassment (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. … (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. 27 Victimisation (1) A person (A) victimises another person (B) if A subjects B to a detriment because-- (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act-- (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act. 136 Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[76]Section 95(1)(c) of the Employment Rights Act 1996 provides: 95 Circumstances in which an employee is dismissed (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) . . ., only if)— … (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct. Dismissals pursuant to section 95(1)(c) are known as constructive dismissals.

[77]Four conditions must be met in order for an employee to establish that he or she has been constructively dismissed: 77.1. There must be a breach of contract by the employer. This may be either an actual or anticipatory breach. 77.2. The breach must be repudiatory, i.e. a fundamental breach of the contract which entitles the employee to treat the contract as terminated. 77.3. The employee must leave in response to the breach. 77.4. The employee must not delay too long before resigning, otherwise he or she may be deemed to have affirmed the contract. (Western Excavating (ECC) Ltd v Sharp

[1978] ICR 221

; WE Cox Toner (International) Ltd v Crook

[1981] ICR 823

)

[78]An employer owes an implied duty of trust and confidence to its employees. The terms of the duty were set out by the House of Lords in Mahmud v Bank of Credit and Commerce International SA

[1997] ICR 606

and clarified in subsequent case-law as follows: “The employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.”

[79]Any breach of this term is necessarily fundamental and entitles an employee to resign in response to it (Morrow v Safeway Stores Ltd

[2002] IRLR 9

). CONCLUSIONS Mr Morrison Direct race discrimination/ Harassment1.1 HR only interviewed 1 witness (Mr Headley) C requested in relation to his grievance dated 19 July 2021. C had requested 7 witnesses be interviewed.

CONCLUSIONS

[80]We address these complaints together because the complaint about Mr Mahamed is effectively part of the more general complaint of failure to interview witnesses.

[81]Mr Morrison accepts that four of the members of staff he mentioned in his grievance (AS, JJ, MF and MM) had already left, and he has not pursued the argument that the Respondent should have interviewed them. We consider that argument would not have been sustainable in any event. His case is that both Mr Mahamed and CE should have been interviewed, rather than being sent written questions. He relied on the fact that Mr Mahamed was at work throughout August 2021 and Mr Williams, who worked at the same site, could have gone to speak to him at any time. He noted that Mr Mahamed had said in his evidence that he saw Mr Williams twice during this period. The same applied to CE, whom Mr Williams could have gone and spoken to instead of sending written questions. Mr Morrison alleges that the failure to interview both witnesses demonstrates that the Respondent did not take his complaint, or complaints of race discrimination in general, seriously. He seeks to rely on a hypothetical comparator of a person who made a different type of complaint, such as an allegation of sexual harassment. He says the Respondent would have treated such a complaint more seriously than it treated complaints of racism, and would have ensured all relevant witnesses were interviewed, and therefore its failure to interview the two witnesses in his case amounted to direct race discrimination.

[82]The first point is that we do not accept that the Respondent’s approach to these two witnesses demonstrated a failure to take the matter seriously. Two attempts were made to interview Mr Mahamed. Mr Williams clearly intended to interview him. When Mr Mahamed did not attend the rescheduled meeting Mr Williams sent written questions instead. It is clear from the email that at that stage he also intended to speak to Mr Mahamed as well in due course, but Mr Mahamed did not respond to the email. The point about Mr Mahamed working at the same site as Mr Williams goes both ways. If Mr Mahamed had wanted to provide the information in person rather than in writing he could have spoken to Mr Williams, or indeed replied to the email saying so.

[83]Similar points apply to CE. A meeting was scheduled, which shows that Mr Williams did intend to interview him. Of course Mr Williams could have made more effort to schedule another meeting, but it is clear from the minutes of the meeting with Mr Headley that he also considered it important to send an outcome to Mr Morrison within a reasonable time. It was not so unreasonable to send a list of questions by email that we ought to conclude he was not taking the matter seriously.

[84]Secondly, the comparison made by Mr Morrison is not the correct comparison on a complaint of direct race discrimination. We agree with Mr Sonaike for the Respondent that the correct hypothetical comparator would be a white person who made an equivalent type of complaint. Mr Sonaike argues it would have to be a complaint of, for example, unfair treatment or bullying, not because of race or any other protected characteristic. Constructing the correct circumstances for comparison is a difficult exercise in this case, but we do not need to go that far because there is simply no basis on which we could conclude that the Respondent would have acted differently in respect of any type of complaint brought by a white employee or indeed any employee. Mr Morrison has not established facts from which we could conclude there was less favourable treatment, whichever comparison is used.

[85]As for harassment, we do not consider the failure to interview Mr Mahamed and CE can properly be described as “unwanted conduct”. Nor could it, on any view, reach the threshold of conduct that has the purpose or effect of violating Mr Morrison’s dignity or creating an intimidating, hostile, etc. environment for him. The question of whether it could be said to be “related to race” is more difficult because it is a broader test than “because of” race for direct discrimination. We conclude, however, that the fact that the subject-matter of the grievance was race discrimination is not sufficient for Mr Williams’s approach to interviewing witnesses to be “related to race”. In the absence of any evidence that his conduct had anything to do with Mr Morrisons’s or anyone else’s race we find it was not related to race for the purposes of section 26.

[86]These complaints of direct discrimination or harassment are therefore dismissed. 1.3 On 25 August 2021 the grievance outcome was not upheld on aspects of unequal treatment relating to race

[87]It is not in dispute that there was no finding of unequal treatment relating to race in the grievance outcome.

[88]Mr Morrison’s grievance had raised a number of issues, but the overarching allegation was that Mr Pozsonyi and Mr Munro failed to respond appropriately to complaints of racist incidents, and that their failures were themselves motivated by race. He referred in particular to four issues: 88.1. The incident involving the N-word; 88.2. The response to the incident involving PC and AS; 88.3. Mr Pozsonyi’s treatment of Mr Mahamed; 88.4. The treatment of MF, including the prayer mat incident.

[89]As regards the N-word incident, Mr Williams said in the grievance outcome: “With regard to the incident involving the use of the “N” word, I do not believe that was dealt with appropriately. The response from Gabriel Pozsonyi lacked the gravity expected by the complainants, and the University, and whilst I do not believe this was a deliberate attempt to dismiss the matter, failure to respond appropriately and communicate with the team in an effective and timely manner will almost certainly result in a lack of trust from concerned employees towards both Line Managers.”

[90]It is not clear whether that was intended to refer only to Mr Pozsonyi’s response when the matter was raised in the meeting in April 2021, or whether it also indicated a failure to investigate the incident. Mr Williams cannot, however, have reached an informed opinion as to whether Mr Pozsonyi dealt with the matter properly when it was first reported or, therefore, whether he was motivated to any extent by racial prejudice, conscious or unconscious. Apart from Mr Pozsonyi’s account, which appears to have been very brief and lacked detail, Mr Williams appears to have had no information about the initial reporting of the incident at all. He did not, for example, ask anyone to provide the email that was sent to staff asking for information. It was apparent from the way in which the matter was brought up at the meeting in April 2021 that the identity of the person alleged to have used the word was known to Mr Munro and/or Mr Pozsonyi. Mr Williams did not make any enquiries as to whether that person was interviewed, whether the agency was spoken to about the incident and, given it was an agency worker whom the Respondent had no obligation to use, whether the Respondent made any decision about whether he could work for them again.

[91]The nature of the allegation was such that black staff were bound to be extremely concerned and nervous about having to work alongside, or otherwise encounter, a person who had used such racist language. Further, Mr Headley had expressly said that the person concerned was still working for the Respondent. It was therefore a live issue and it was extremely important that it was fully dealt with. In our view Mr Williams’s response was flawed in two respects: 91.1. He did not conduct a sufficient investigation to form a view as to whether there was any failure to investigate by Mr Pozsonyi or Mr Munro at the time of the original allegation, and therefore he did not address Mr Morrison’s overarching complaint that the two managers were themselves motivated by racial prejudice. 91.2. He did not consider whether it was necessary to instigate or re-open an investigation into the matter, given that it appeared the person concerned was still working for the Respondent.

[92]As regards the complaint about PC, this was addressed to some extent in Mr Morrison’s grievance meeting in that Mr Williams informed him that PC had been dismissed. That did not address the whole of Mr Morrison’s concern, however. Mr Morrison made it clear during the meeting that he believed PC should have been suspended, and that Mr Pozsonyi was trying to protect him. It is clear from the investigation report, and indeed from Mr Williams’s evidence to us, that the decision about whether to suspend was in fact his responsibility, in conjunction with HR. The suggestion in the investigation report that the reason PC was not suspended was because he was on sick leave cannot have been wholly accurate because the Respondent accepts that PC’s sick leave did not commence until 18 May 2021, some 17 days after the incident, and he worked at least two shifts in the meantime. He also worked at least one shift after he returned from sick leave in July before his dismissal. Mr Williams simply did not address the question, in the grievance meeting or the investigation report, why PC was not suspended. The outcome letter was entirely silent on the issue. We accept the Respondent may reasonably have considered there were confidentiality issues that prevented it from disclosing any information about PC’s disciplinary process, but Mr Williams had already disclosed some information about it in the grievance meeting. At the very least the outcome letter could and should have explained that it was Mr Williams’s decision, not Mr Pozsonyi’s, whether to suspend, and either explained the reasoning or said that it could not be shared with Mr Morrison for confidentiality reasons. It was reasonable for Mr Morrison to describe this as an issue that affected the safety of black staff, and he was not given any response at all to his concern that PC was allowed to work despite a serious allegation of racist and aggressive behaviour towards a black colleague.

[93]As for the complaint that Mr Mahamed was being harassed by Mr Pozsonyi, we accept that Mr Williams was unable to investigate this matter without hearing from Mr Mahamed what the allegations were. We have accepted that he made reasonable efforts to speak to Mr Mahamed. There was a limit to how far he had to go to ensure he had evidence from Mr Mahamed. The third question in Mr Williams’s email to Mr Mahamed was broad enough to encompass any complaints of harassment Mr Mahamed wished to raise (“Mr Morrison also stated that Gabriel Poszonyi is deliberately targeting the black members of security staff with an aim to remove them from Bath Spa Security. Question: Do you agree and if so why?”). Mr Mahamed never provided that information. Mr Williams should, however, have explained in the outcome letter why he had been unable to investigate that part of Mr Morrison’s grievance. The failure to do so gave the impression it had been overlooked or Mr Williams decided not to address it.

[94]As for the allegation relating to MF, there is no dispute that Mr Williams was unable to interview him because he had resigned in June. It appears that Mr Williams did not look into the matter at all, for example by considering the notes of MF’s disciplinary hearing. We note that even if he had, MF did not expressly say, as suggested by Mr Morrison, that AC reporting him for sleeping on duty amounted to race discrimination. He said he had been targeted by AC and he referred to AC having made a racist comment to a colleague. MF did not make any complaint about the prayer mat issue. Given that it was not appropriate for Mr Williams to seek to interview MF after he had left, there was no clear evidence that MF had complained of racial harassment by AC, and the prayer mat incident occurred while the team was employed by SSGC, we accept it was reasonable for Mr Williams not to address this issue in the grievance outcome. That conclusion is not altered by the fact that Mr Williams had separately received the email from Ms Milton-Meakin about AC in June 2021. It is true to say there had been a number of concerns raised about AC’s behaviour, such that managers should have been alert to the issue and keeping an eye on him, but there had not been any specific complaint made that the Respondent was obliged to investigate.

[95]In summary, therefore, our view is that the complaint as to the grievance outcome is well-founded on the facts, in that it was flawed in the ways we have identified. It did not address the substantive of the complaint about the N-word incident and it was silent as to the incident involving PC and the allegation that Mr Mahamed was being harassed by Mr Pozsonyi. There was, therefore, an insufficient basis for Mr Williams’s conclusion that there had been no unequal treatment based on race by Mr Munro or Mr Pozsonyi.

[96]We must therefore consider whether those flaws constituted less favourable treatment because of race. The same issues arise as to the correct comparator. Mr Morrison’s argument is that if this had been a different type of complaint, not one of race discrimination, it would have been dealt with more fully and taken more seriously. There is no evidence to support that, and in any event we do not accept that is the correct comparison. There is no basis on which we could find that a white person making an equivalent type of complaint would have been treated more favourably.

[97]As for harassment, similar points arise to those we addressed under issues 1.1 and 1.2. Mr Williams’s approach to the grievance cannot properly be described as “unwanted conduct”. The outcome was, of course, not what Mr Morrison wanted but that is a different concept. As for whether the conduct had the proscribed purpose or effect, it is arguable that it had the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for Mr Morrison, but we could not properly find that the conduct was “related to” race. As noted above, the fact that the subject-matter of the complaint was race discrimination is not sufficient. It is Mr Williams’s conduct that would need to be related to race and there is no evidence that it was. 1.4 On 11 August 2021, whilst C’s grievance dated 29 July 2021 was still being investigated, there was a meeting with all security guards where Andy Williams asked Mr Morrison “Who is racist?” and thereby made C reveal that he had submitted a grievance.

[98]It is not in dispute that Mr Morrison’s grievance of 29 July 2021 constituted a protected act.

[99]It is also not in dispute that Mr Williams asked Mr Morrison “Who is racist?” in the meeting. The Respondent disputes that this had the effect of making Mr Morrison reveal he had submitted a grievance, arguing that he could have answered the question in a different way and did not need to mention his grievance. Even if that is correct, we do find it was detrimental to Mr Morrison to ask him to say who he believed was racist in a meeting of the whole security department and in circumstances where Mr Williams knew that Mr Morrison had alleged some of those present (including AC) were racist. Having said that, we do not accept that Mr Williams asked that question because Mr Morrison had submitted his grievance. There is no basis on which we could find it was an attempt to penalise or embarrass Mr Morrison for having raised the grievance. We accept that Mr Williams convened the meeting in a genuine attempt to address the concerns raised by black guards, seeking to reassure them that the Respondent took equality and diversity issues seriously. We do consider, however, that it was not properly thought through. The meeting arose out of Mr Williams’s exchange with Mr Headley, in which Mr Headley had requested a meeting for the black staff only to air their concerns. It is not clear why Mr Williams and/or HR decided instead to hold a meeting with the whole team, but it seems that this caused some confusion as to whether it was an appropriate forum for black staff to raise specific concerns. We find that Mr Williams asking this question was inept, but was not motivated by the fact Mr Morrison had done a protected act. Constructive unfair dismissal

[100]We address first the reason for Mr Morrison’s resignation. We accept that his reasons are accurately reflected in the resignation email. It is clear from that email that he strongly believed that the Respondent had failed to protect black staff and covered up racist behaviour. A significant reason for that belief was the outcome of the grievance. He asserted that none of his points had been investigated.

[101]We have found there was no unreasonableness in the failure to interview Mr Mahamed or CE, so those matters could not constitute or contribute to a breach of the implied term, but we have found the outcome was seriously flawed in other respects. The failure to uphold the grievance “on aspects of unequal treatment relating to race” was not, we have found, direct race discrimination or harassment, but Mr Morrison relies on the same allegation as a breach of the implied term.

[102]We must consider whether the flaws we have found constituted conduct that was calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee, for which there was no reasonable and proper cause.

[103]It is important to consider the context in which the grievance was being investigated. The Respondent had inherited a team of security guards in which there were known racial tensions. By the time of Mr Morrison’s grievance, Mr Williams was aware of allegations of racist conduct and comments made by white staff both before and after the transfer. He had also received Ms MiltonMeakin’s email which suggested it was widely known the black security guards felt they were experiencing racism at work. Mr Headley had alleged “institutional racism” and MF had resigned, having referred to a racist incident in his disciplinary hearing. PC had very recently been dismissed for racist abuse of a black colleague. Mr Williams was aware, or should have been, that there was a serious problem in the department.

[104]It was absolutely vital in those circumstances to restore the trust of the black members of staff, and that required Mr Morrison’s grievance to be addressed thoroughly and comprehensively. We have found that it was not. We accept it is possible that Mr Williams was trying to address the issue by providing reassurance and ensuring that incidents were dealt with more effectively in the future. We therefore do not find that his approach was calculated to damage trust and confidence. We do find, however, that it was naïve and unrealistic to consider that that would be sufficient. Confidence and trust could only be restored by demonstrating the assertion that the Respondent took such issues extremely seriously. The grievance outcome failed to do that, for the reasons we have given. It was bound to leave Mr Morrison with the impression that these issues were still not being taken sufficiently seriously. We therefore find it was likely to destroy or seriously damage the relationship of confidence and trust between Mr Morrison and the Respondent, and there was no reasonable and proper cause for it.

[105]Mr Morrison resigned largely because of that breach of the implied term. The Respondent has not argued that he delayed in resigning or otherwise affirmed the contract.

[106]For the avoidance of doubt, we do not accept that the issue at paragraph 3.2 of the list of issues constituted or contributed to a breach of the implied term. The email was not addressed to Mr Morrison and in any event it did not deny, contrary to Mr Morrison’s interpretation, any awareness of complaints of racism.

[107]We therefore find that Mr Morrison was constructively dismissed. The Respondent does not suggest that, if he was dismissed, it was a fair dismissal under s.98(4). We find it was not, and the complaint of unfair dismissal therefore succeeds. Mr Headley Direct race discrimination/ Harassment4.1 Between September and November 2021 unfairly allocate the Claimant weekend shifts – which are half the hours of week dayshifts. Specifically the Claimant was given 14 continuous 6 hour weekend shifts. Comparators: Rahda Pillay, Andrew Cadman, Aaron James

4.2 Fail to amend the Claimant’s November 2021 shift pattern following his complaint in October 2021. Comparator: hypothetical

[108]Mr Headley does not complain about the normal operation of the shift pattern. His complaint is that when the pattern changed on 1 November 2021 Mr Pozsonyi had a choice as to which guard(s) would be allocated the shift pattern that involved weekends first. He believes Mr Pozsonyi deliberately gave that shift pattern to him and that that was at least partly because Mr Headley is black.

[109]It is not in dispute that Mr Pozsonyi allocated the shifts for November 2021 and that he did so in early October 2021. We accept Mr Pozsonyi’s evidence that when he first did the shift allocation for November he was not even aware of which guards had been allocated weekends, and therefore would not have been aware of how the new pattern related to the previous shift patterns of any individual. There is no evidence that he allocated the shifts on anything other than a random basis.

[110]We are prepared to accept it was a detriment to Mr Headley to be assigned so many weekend shifts across October and November, but he has not established facts from which we could conclude that that had anything to do with his race.

[111]We also find that the Respondent’s position, once Mr Headley had raised the issue, was that provided the new shift pattern had been applied accurately, the number of weekends worked would even out across the whole cycle and therefore there was no justification for changing the allocation unless there were personal circumstances such as health or religious reasons that affected weekend working. We note that in order to change Mr Headley’s pattern it would have been necessary for the Respondent to change the shifts of at least one other guard, with at most 10 days’ notice before the start of November. We therefore consider the Respondent’s stance was not unreasonable, given that Mr Headley had not asked to be excused from the normal pattern of weekend working, and there was nothing to suggest that the November allocation had been done unfairly. There is certainly no evidence that the failure to change the shift pattern once the issue was raised had anything to do with Mr Headley’s race. The treatment was not because of race or related to race. These allegations are not therefore well-founded. 4.3 HR told the Claimant that they could not contact Mr Pozsonyi (to change the Claimant’s shift pattern) in November 2021 because (they said) he was on holiday, but that was a lie and they had in fact spoken to him. Comparator: hypothetical

[112]This complaint was effectively withdrawn by Mr Headley in his oral evidence. He accepted that Mr Pozsonyi had been contacted following the initial complaint by Mr Davis on 21 October 2021, and that by the time of Mr Headley’s further email of 24 October 2021 Mr Pozsonyi was on annual leave. He withdrew the allegation that HR saying he was on holiday was a lie.

[113]Making closing submissions on Mr Headley’s behalf, Mr Morrison continued to assert that the Respondent should have addressed the issue before Mr Pozsonyi went on holiday. That complaint is difficult to understand because(a) HR did contact Mr Pozsonyi before he went on holiday, and he produced a written document explaining how the shift allocation worked and

(b) HR agreed to look at the matter again after Mr Headley’s further email, but by that time Mr Pozsonyi was on leave, and

[114]This complaint was either withdrawn or is not made out on the facts and is therefore dismissed. 4.4 On 3 November 2021 HR informed the Claimant that Mark Munro was responsible for allocation of shifts for November 2021, which was untrue. Comparator: hypothetical

[115]We do not accept this allegation on the facts. Ms Strange’s email of 3 November did not say or even suggest that Mr Munro was responsible for the November shift allocation. He had left on 10 September 2021 so it would be very odd for her to seek to suggest that he had been involved in the November shift patterns. The only fair reading of the paragraph in question is that Ms Strange was saying: to the extent Mr Headley had had unfair weekend allocations before 1 November, that may have been partly because of the way Mr Munro did the rotas. Mr Headley has consistently refused to accept that that was the meaning of the paragraph. We find there was no reasonable basis for him to conclude that anything she said was untrue.

[116]It appeared during closing submissions that Mr Headley’s real complaint here may have been not about the meaning of the paragraph, but that Ms Strange was seeking to blame Mr Munro, and that she thereby avoided dealing with the real issue, namely why he had been given the shift allocation in November that resulted in him working weekends first. We accept that could be a valid criticism of the email. However, that is not how Mr Headley’s case has been put and in any event there would be no basis for us to conclude that her approach had anything to do with Mr Headley’s race or that it was related to race. This complaint therefore fails. 4.5 Fail to deal with the Claimant’s 24 October 2021 complaint as a complaint of race discrimination. Comparator: hypothetical;

[117]There is no dispute that Mr Headley’s complaint of 24 October 2021 was a complaint of race discrimination. We note that the original complaint by Mr Davis said: “We (UNISON) interpret this as another act of attempted intimidation by the line manager which follows the pattern and behaviour previously shown to other black guards.”

[118]That specific complaint was not repeated in the 24 October 2021 email, but reading the email as a whole it is clear that Mr Headley believed he had been given an unfair shift allocation and that that was connected to his race. He wrote under the heading “Conclusion”: “For one staff member of the security team to be allocated (13) consecutive weekend shifts over (2) months period, speak volume. I would also like to question the morality and ethicality of those who investigate and escalate fairness in the workplace on behalf of Black & Minitory staff. No wonder all of my colleagues who leave the security team in the past (3) - (4) months all say the same thing, they can no longer work for an Institution that is Systematically Racist.”

[119]Ms Strange’s email on 3 November 2021 clearly recognised that Mr Headley had complained of race discrimination as regards the shift allocation and she addressed that complaint by saying her investigation had not found any discriminatory practices in the operation of the shift rota. To the extent that Mr Headley complains that Ms Strange failed to address the wider allegations that other staff had left because of racism, it seems clear that she did not investigate or address such concerns. However, her evidence was that she believed the complaint was about the shift allocation and therefore that was what she considered. The wider complaint was, on any view, vague and it was clear that the main issue was the shift allocation. Noting also that the email was sent to the union representative, and HR were simply copied in, it was not at all clear that Mr Headley was bringing a wider complaint of race discrimination at this stage that he expected or hoped to be investigated. In those circumstances, there is no basis on which we could find that Ms Strange’s approach had anything to do with Mr Headley’s race or was related to race. 6.2 Continue to allocate the Claimant weekend shifts despite a change to a 4 on 4 off rota (from a 3 on 3 off rota) in November 2021

[120]It is not in dispute that the complaint of 24 October 2021 and the grievance of 24 December 2021 were both protected acts. The latter is not relevant because it occurred after the alleged detriment.

[121]It is also not in dispute that the November shift allocation was done in early October, so it cannot have been motivated by the complaint of 24 October 2021.

[122]The allegation that the failure to change the allocation was because of the 24 October complaint is misconceived. The question of changing the allocation only arose because of Mr Headley’s complaint. The failure to change it cannot therefore have been because of the complaint. There is no evidence that HR or anyone else was hostile to Mr Headley’s complaint such that they would subject him to a detriment because of it. Mr Headley has not established facts from which we could conclude that the failure to change the shift pattern had anything to do with the fact he had complained about the shift pattern. Constructive unfair dismissal

[123]As with Mr Morrison’s case, we consider the reasons for Mr Headley’s resignation first. His evidence on this issue was not disputed. We accept that he genuinely believed that the Respondent “failed to adequately deal with a series of racist incidents involving himself and other black and BME colleagues”. He believed he had raised some of those issues in his 24 December 2021 grievance and that the response made it clear the Respondent “would not be willing or able to ensure a safe working environment for me”. He resigned on the basis he had lost trust and confidence in the Respondent as his employer. We accept that Mr Headley’s perception that the Respondent failed to deal with a serious of racist incidents adequately was the main reason for his resignation.

[124]We must therefore consider whether that alleged conduct is made out on the facts, and whether it constituted a breach of the implied term of trust and confidence.

[125]We have not found any failings in the Respondent’s conduct in the matters alleged as direct discrimination, harassment or victimisation. Those matters therefore cannot have constituted or contributed to a breach of the implied term.

[126]We must consider whether the matters set out in paragraph 7.2 of the list of issues, which we find properly reflect the main reason for Mr Headley’s resignation, occurred, and whether they amounted to a breach of the implied term.

[127]We have already found that Mr Williams’s approach to the problem identified above as regards racial tensions in the security department was inadequate. It was flawed to the extent that it breached the implied term of trust and confidence between the Respondent and Mr Morrison. Our analysis was focused on the outcome of Mr Morrison’s grievance, but we consider Mr Williams’s flawed approach was evident in other ways.

[128]During Mr Headley’s interview in relation to Mr Morrison’s grievance Mr Williams promised to hold meetings with the black staff so that they could raise their concerns. Mr Headley first suggested this in his response to Mr Williams’s email on 20 July 2021 and he repeated it in the interview. Mr Williams said, “I will take this on board. I will commit to sitting down with you all and have a frank and open discussion.” Fulfilling that promise was vital to restoring the trust of the black members of staff. It was all the more important after Mr Morrison resigned on the basis that he had lost trust in the Respondent. Such meetings never happened. In his evidence Mr Williams could give no explanation for that. He said that people resigned before he got round to it, but he accepted Mr Mahamed remained employed until the end of August, and it did not explain why he did not fulfil his promise for the three remaining non-white staff in the department. Mr Williams accepted in cross-examination that that would have caused Mr Headley to lose trust in the Respondent.

[129]We do not consider the ENEI meeting in December was sufficient to restore trust and confidence. As already noted, this was focused on ensuring proper processes were in place in the future. It did not help to address the failure to deal with previous complaints, including as regards Mr Headley the failure to deal with the N-word incident despite his assertion that he had recently worked with the agency guard in question.

[130]We have accepted that the broader race complaints were somewhat vague in the 24 October 2021 email, but we do consider that it should have been clear from the 24 December 2021 grievance that Mr Headley was still concerned about the Respondent’s failure to address the various concerns that had been raised as part of Mr Morrison’s grievance, and wanted the Respondent to deal with the issue. He said: “I believe I was targeted by the security manager Gabriel Pozsonyi because I was speaking out against racial discrimination in the work place that has led to four Black and Muslim guards loosing their job In BSU Newton Park Security U LTD.”

[131]He also alleged there was “a carefully planned coordinated and structured system design to force black and Muslim guards out of Bath Spa University Security U LTD” and he referred to AS, MF, Mr Mahamed and Mr Morrison.

[132]Ms Priston candidly accepted in her evidence that with hindsight her decision to focus only on the shift issue raised by Mr Headley may have been flawed. We agree that, given the context identified above, it was necessary to address the broader issues raised by Mr Headley, but we do not consider the fault lay solely or even mainly with Ms Priston. She had very limited knowledge of the background and we consider it was not fair on her for HR to provide her with the notes of Mr Headley’s interview on 12 August and expect her somehow to factor that into her investigation without more information or assistance. It was incumbent on Mr Williams and HR, these issues having been raised again, and it being clear that the problems were not resolved, to ensure that they were now addressed properly. At the very least they should have fulfilled their promise, made earlier in the year, to hold the meetings with black members of security staff.

[133]Instead Mr Headley was given a grievance outcome that notionally addressed the race discrimination allegation, but it was clear that nothing further had been done since Mr Morrison’s grievance on that front. Point 12 of the outcome refers to the complaints by other black staff, but somewhat confusingly considers whether those people had a fair shift allocation. That was never part of Mr Headley’s complaint.

[134]We consider that the Respondent’s approach to the grievance and the outcome letter contributed to Mr Headley’s belief that the Respondent was not taking complaints of racism seriously and he could not be satisfied it was a safe place to work. We consider that was likely to destroy or seriously damage the relationship of confidence and trust between Mr Headley and the Respondent, and there was no reasonable and proper cause for it.

[135]We therefore find that Mr Headley was constructively dismissed.

[136]The Respondent has not argued that Mr Headley delayed before resigning or otherwise affirmed the contract. We do not consider that any such argument would have merit in any event, given that he appealed against the grievance outcome and he was off sick for three weeks before resigning.

[137]Further, the Respondent does not suggest that if Mr Headley was dismissed the dismissed was fair.

[138]The complaint of unfair dismissal succeeds.