Dr S Wang v University of Portsmouth and Dr S Prabhu: 1400443/2024 and 1400569/2024
EMPLOYMENT TRIBUNALS
Case No 1400443/2024, 1400569/2024
Between
Dr Shifeng WangClaimantUniversity of Portsmouth (1) and Dr Shanker Prabhu (2)Respondent
Before
Employment Judge Gray
Members
Mr J Ruddick and Mr L WakemanIn person for claimantMr Welch (instructed by Counsel) for respondentDate 11 June 2025
JUDGMENT
The unanimous judgment of the tribunal is that the Claimant’s complaints of race discrimination (harassment and direct) and victimisation all fail and are dismissed. The Claimant’s complaint of unauthorised deductions fails and is dismissed. The Claimant’s complaint of breach of contract fails and is dismissed, save for the complaint concerning notice pay which succeeds because the Respondent has not proven the Claimant was in fundamental breach. Matters of remedy in respect of this successful complaint are still to be determined but appear to be notice pay for the period 4 August 2023 to 16 August 2023 (the date before the Claimant commenced a pre-booked holiday).
REASONS
[1]This is a claim brought by Dr Wang against the two Respondents complaining of race discrimination and breach of contract / unauthorised deductions of wage. The complaints of race discrimination concern harassment, direct discrimination and, following a permitted amendment on the first day of the final hearing, victimisation.[2]The claim was submitted by two claim forms presented on the 11 and 28 August 2023. The claims rely upon ACAS certificates dated 16 August 2023 to 18 August 2023 for the First Respondent and 9 August 2023 to 11 August 2023 for the Second Respondent. This means matters complained about against the First Respondent before the 17 May 2023 and against the Second Respondent before the 10 May 2023 are potentially out of time.[3]There have been three preliminary hearings in this claim before this final hearing. One before Employment Judge Smail on the 7 May 2024, one before Employment Judge Bax on the 29 November 2024 and one before Employment Judge Livesey on the 28 April 2025.[4]The issues in the claim (as set out in Annex A below) were confirmed during those preliminary hearings.[5]At this hearing those agreed issues were amended in two respects in the morning of day 1.[6]Firstly, by agreement, in paragraph 4.1 the words “to senior lecturer” were deleted.[7]Secondly, a complaint of victimisation was added as follows (for the reasons given orally at the time and summarised in Annex B below): “Victimisation (Equality Act 2010 s. 27)
Remedy
[15]Did the Claimant do a protected act by asserting discrimination on the 31 May 2023 (as set out in paragraph 40 of his witness statement)?[16]Did the Respondent do the following thing: 16.1 Dr. Alkadhimi send a critical probation letter of 2 June 2023?[17]By doing so, did the Respondent subject the Claimant to detriment?[18]If so, was it because the Claimant had done the protected act?” 8. For reference at this hearing, we were provided with the following:a. Hearing bundle – 616 pagesb. Claimant’s bundle – 280 pagesc. Table comparing the bundlesd. Witness statement of the Claimante. Witness statements on behalf of the Respondent: i. Khalil Alkadhimi ii. Djamel Ait-Boudaourd iii. David Ndzi iv. Shanker Prabhuf. The Respondent’s chronology and cast list. 9. When confirming the documents the Claimant referred to submitting a 20-to30-minute audio recording as he asserted the transcript in the hearing bundle was not accurate. It was directed that while we took time to read, the Claimant could play the disputed part to Respondent’s Counsel to establish if and what needed amendment in the transcript. 10. When the hearing resumed, it was confirmed that the parties had agreed to agree that the Respondent says the relevant part is inaudible whereas the Claimant says it refers to “poor performance”. The Respondent acknowledged that there are some words said but they cannot hear what the words are, but it may have heard the word “error” after what the Claimant asserts are the words “poor performance”. It was confirmed that this relates to entry 2 of the notes on page 588 of the bundle. 11. When considering the submitted documents the Claimant also expressed concerns that the Respondent had modified his evidence. The Claimant had presented us with his own evidence bundle which he refers to in his witness statement. 12. Time was taken to consider the documents in the Claimant’s bundle compared to copies of the same in the main bundle, for example page 121 of the Claimant’s is page 598 of the main bundle. Page 36 is page 597. It was clear the difference was the page reference and ordering of the documents. 13. The conclusion of that process was it being agreed that we would consider both bundles and the witness statements. The Claimant asked for the following wording to be recorded in our Judgment that … “the Claimant claims the Respondent modified his evidence, and the Employment Judge didn’t accept that as the Claimant had presented his witness statement referring to his own evidence bundle.”. 14. When the Claimant gave his evidence, it was agreed that he could refer to a version of his witness statement that only referred to the page references in his evidence bundle. 15. The Claimant also raised what he considered to be a doctored document, and he submitted that the letter dated 2 June 2023 from Dr Alkadhimi was fraudulent (page 83 of his bundle compared to page 351). It was agreed this was a matter for the Claimant to put to Dr Alkadhimi in cross examination. Despite that clarification the Claimant did not assert to Dr Alkadhimi in cross examination that he had created a fraudulent document. 16. Reference was made by the Claimant to the specific disclosure applications he had made that were refused by Employment Judge Livesey. The Claimant still wanted the probation documents of Dr Okpako disclosed. Although initially objected to by the Respondent, they were disclosed on day 3 of the hearing and added as pages 617 to 634 of the main hearing bundle. 17. The hearing timetable was agreed with the parties which included agreeing that this hearing would be to determine matters of liability, with case management / a further hearing for remedy, if appropriate. Evidence and submissions were concluded in the morning on day 6. The Claimant had confirmed when discussing the format for closing submissions that he would be requesting written reasons. It was therefore determined to be proportionate to reserve our decision. 18. THE FACTS[19]We found the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after considering the factual and legal submissions made by and on behalf of the respective parties.[20]On the 6 June 2022 the Claimant commenced his employment with the First Respondent as a Senior Lecturer, teaching Wind Energy and Sustainable Transport Systems (pages 195 to 203). During oral evidence we were referred to clause 8 of the employment contract, which reads: “8 Duties and Hours of Work You are employed as Senior Lecturer. This appointment is a Full-Time position and its nature is such that you are expected to work hours as are reasonably necessary in order to fulfil your duties and responsibilities. Those duties include teaching and tutorial guidance, research and other forms of scholarly activity, examining, curriculum development, administration and related activities. You are expected to work flexibly and efficiently, and to maintain the highest professional standards in discharging your responsibilities, and in promoting and implementing the corporate policies of the University of Portsmouth. The make-up of your duties will be determined from time to time by your Head of Department in consultation with yourself, and will be reviewed regularly through the staff appraisal system. Guidelines for the determination of the duties of lecturing staff are set out in the Academic Staff Handbook. Any dispute over duties or hours may, if not resolved in the first instance between you and your Head of Department, be referred to the Grievance Procedure. Your formal scheduled teaching responsibilities should not exceed 18 hours in any week or a total of 540 hours in the teaching year. However, this provision will not apply in subject areas where the nature of the curriculum and teaching style makes it inappropriate, such as aspects of Teacher Education, Art, Design, Performing Arts, Music.”[21]As confirmed by page 228 of the bundle, on the 22 August 2022, Dr Prabhu applies for the position of Senior Lecturer. This is supported by the then Head of School Professor Peter Kyberd. From around the end of August 2022, Professor Peter Kyberd leaves the University.[22]As the Claimant tells us in paragraph 18 of his witness statement on the 28 October 2022 he participates in a "Becoming a Reader or Professor Promotion Information" session and says he was encouraged to apply for a Professor or Reader role by Professor Jeremey Howells.[23]On the 1 November 2022 the Claimant’s Interim Probation Report is signed off (pages 240 to 242). The report notes that the Claimant is making progress under all of the assessment headings and it records that the Claimant is settling in well and that he will be teaching two modules that year and is preparing for them. It notes that to date the Claimant’s probationary service has been satisfactory.[24]In November 2022, Dr Alkadhimi is appointed as the Interim Head of School of Electrical and Mechanical Engineering.[25]The Claimant alleges that Dr Alkadhimi gave him incorrect information relating to the procedure for applying for a promotion and that this was unwanted conduct related to his race or less favourable treatment because of his race. The allegation (4.1) is … “on 1 November 2022, having been approached by the Claimant, Dr. Khalil Alkadhimi insisted asking the Claimant to talk to Dean first about the possibility of the Claimant being promoted (to professor or reader), even if the Claimant told him that on 28 October 2022 the Claimant had been told by Professor Jeremy Howells (Deputy Vice- Chancellor) the right procedure is to talk to him first and then Dean. However, Dr. Shanker Prabhu got promotion after Dr. Khalil Alkadhimi became the interim Head of School in November 2022 but he was not suitable/fit for that position. The Claimant was not considered for a professor/reader role. Dr Alkadimi did not give him the any information about applying (such as the standard or criteria) and said the Claimant had to speak to the Dean first, when it should have first been discussed with Dr Alkadhemi. The Claimant had no way to talk to the Dean under the procedure, he needed the support of Dr Alkadhemi first. The Claimant’s application did not progress because of this. The Claimant says he was treated differently to Dr Prabhu.”.[26]The Claimant repeats this allegation in paragraph 18 of his witness statement. The Claimant also refers us to pages 38 to 44 of his evidence bundle which includes a Mid-Career Academic to Reader Cohort Programme Application Form. This is an application to take part in a programme about promotion, rather than to be promoted. As the Claimant notes in the form … “After the end of the programme, I know better about the higher level promotion procedure and can give advices for other colleagues.”.[27]The form is signed by the Claimant and Professor Kyberd, noting as the Line Manager Statement of Support … “I support Dr Wang's application and his keenness to progress. He is new to the University and its specific ways of working. By understanding better the requirements he will be in a good position to move forward.”.[28]Dr Alkadhimi addresses this allegation in paragraphs 12 to 15 of his witness statement. He tells us that he was approached by the Claimant and asked about the possibility of him applying for a promotion to Reader/Professor. He says that he explained to the Claimant that it was too soon for him to apply for a promotion to Reader/Professor given that he had only been with the University for a few months and he did not have a justification to be able to support such an application. He refers us to the Policy on Promotion and Appointment to Reader and Professor and that one of the basis for appointment to such roles is “exceptional performance” (page 164).[29]Dr Alkadhimi also notes that the Claimant was still within his probationary period and that he has never known any Senior Lecturer to be supported for promotion to Reader/Professor during their probationary period.[30]Dr Alkadhimi says he said to the Claimant that he should review the University’s policy on promotions to ensure he understood the promotion process. He says he did not say that the Claimant should speak to the Dean of the Faculty. Although, we note that the Policy on Promotion and Appointment to Reader and Professor does state that those considering making an application must “consult with the Executive Dean of their Faculty” (page 164).[31]As to the Claimant’s comparison with Dr Prabhu, Dr Alkadhimi confirms that Dr Prabhu submitted his application for promotion to Senior Lecturer before he became Interim Head of School. It was the previous Head of School, Professor Peter Kyberd, who was the Head of School when Dr Prabhu submitted his promotion application, and it was Professor Kyberd who mainly supported Dr Prabhu with his promotion. This can be seen from the email at page 228 of the bundle. Despite that Dr Alkadhimi confirms that he did consider it appropriate that Dr Prabhu be promoted to Senior Lecturer given all of his hard work and the support he had provided to the School over the preceding years.[32]What Dr Alkadhimi tells us is consistent with the documents presented so we accept what he says.[33]We would also observe that there are many material differences between the Claimant’s circumstances and those of Dr Prabhu. The applied for roles are different, the Claimant is applying for reader/professor, Dr Prabhu, for senior lecturer. The lengths of service are different, the Claimant still being in his probation period. Dr Prabhu submitted an application for promotion supported by Professor Kyberd, whereas the Claimant submitted an application to enrol on a programme about promotion to Reader. The Claimant has also not proven as he asserts in the allegation that Dr Prabhu was not suitable/fit for the senior lecturer position.[34]The Claimant has therefore not proven this matter as alleged, and we would observe has presented no evidence (apart from a mere allegation) to infer what did happen was related to or because of his race.[35]By a registration form signed by Dr Alkadhimi on the 4 November 2022 the Claimant registers for the University's APEX Program (pages 247 to 248).[36]It is then on the 7 November 2022 the Claimant alleges that Dr Alkadhimi provided him with the wrong information concerning the procedure for completing a relocation expenses form (allegation 4.2) that … “on 7 November 2022, Dr. Khalil Alkadhimi perversely told the Claimant that the finance staff should sign the Claimant’s relocation form first and then him, contrary to the right procedure shown by the relocation form which is also confirmed by HR, the University payment section and the Faculty payment section on the same day. The Claimant expressed his worries to both the University payment section and the Faculty payment section.”.[37]The Claimant addresses this allegation in paragraph 19 of his witness statement. A key part of this allegation is that Dr Alkadhimi perversely told the Claimant that information.[38]Dr Alkadhimi addresses the allegation in paragraphs 16 and 17 of his witness statement. Dr Alkadhimi says that when he was asked to sign the form by the Claimant, the Claimant did not have some of the receipts for the expenses with him nor was Dr Alkadhimi clear on whether the expenses the Claimant was claiming for were allowed under the University’s policy. Dr Alkadhimi therefore recommended that the Claimant speak to the finance office accordingly. Dr Alkadhimi explains that on 22 November 2022, he received an email from the Administrator of the School in respect of the Claimant’s relocation expenses (pages 251 to 252). Within the email, the Administrator listed some of the items which the Claimant was claiming for. Dr Alkadhimi responded to ask for confirmation that the Claimant was allowed to claim for these items and if so, he would sign the form (page 251). He also said that we would need receipts for the items (page 251). The Administrator confirmed that the Claimant could claim for the items and that he had provided receipts (page 251), following which Dr Alkadhimi said that he was happy to approve the expenses (page 250).[39]We accept what Dr Alkadhimi tells us which is consistent with the documents we have been presented. The Claimant has therefore not proven this matter as alleged, in particular that Dr Alkadhimi acted perversely. We would observe the Claimant has presented no evidence (apart from a mere allegation) to infer what did happen was related to or because of his race.[40]In January 2023, Dr Prabhu is appointed Course Leader for Renewable Energy courses. Paragraph 4 of Dr Prabhu’s witness statement … “Following the commencement of the academic year 2022/23, in January 2023, the new Interim Head of School, Dr Alkadhimi, asked me if I would be prepared to take on additional responsibilities as the Course Leader for the renewable energy courses. I understood that Dr Roy was stepping down from this role. I also understood that Dr Alkadhimi was asking me to take on this role because I had been part of the original RET team with Dr Roy and had helped grow the team and design the curriculum over the previous two years. As Course Leader, I assist with the design and structure of renewable energy courses and assist with any issues which arise from these courses, including assisting with any concerns raised by students.”.[41]It is alleged (Allegation 4.3) that … “on 2 March 2023, Dr. Khalil Alkadhimi allocated time to Dr. Anton Hettiarachchige Don to start writing the APEX project. On 19 April 2023, the Claimant indicated to start writing on the APEX project but was not allocated time.”.[42]As Dr Alkadhimi tells us in paragraph 24 of his witness statement … “On 2 March 2023, I received an email from Dr Anton Hettiarachchige Don, Lecturer, confirming that he had commenced the APEX project writing period (page 300). I therefore asked Salem Aljareh, Senior Lecturer, to add 160 hours for APEX to Dr Hettiarachchige Don’s workload allocation (page 300). I also asked Dr Wang, Dr Opako and Dr Shamsul Masum, Lecturer, who was part of the Electrical Engineering teaching team, if they were also completing their APEX and whether this was showing on their workload allocation accordingly.”.[43]Then at paragraphs 28 and 29: “28. After the meeting, Dr Wang informed me that he had commenced his APEX writing project (Dr Wang referred to this as the HEA fellowship) (page 302). I therefore contacted Dr Aljareh and asked him to add 160 hours to Dr Wang’s workload allocation accordingly (page 302). Dr Aljareh then confirmed that he had updated the system (page 306). 29. I then informed Dr Wang that the allowance in respect of the hours to complete the project can only be given once (page 306). I informed Dr Wang of this as he did not appear to have much available time to complete the project. Therefore, it may have been better for him to be given the allowance of hours the following academic year to ensure that he had the appropriate time to complete the project at the point he would be undertaking the majority of the work. Dr Wang thanked me for this and said that he may not be able to complete the project by May/June and may therefore need to submit it in September/October (page 305). Dr Wang also asked if the allocation of hours could wait for the time being (page 305). I updated Dr Aljareh accordingly and Dr Aljareh confirmed that he had removed the APEX from Dr Wang’s workload allocation (page 305).”[44]Considering the chain of emails at pages 306 and 305 of the bundle it is correct the hours are added and the Claimant then does ask … “Is it possible to not allocate this time for me at moment until I get the fellowship?”. That time is then unallocated, and the Claimant replies once informed of that … “Thanks a lot. Salem.”.[45]What Dr Alkadhimi tells us is consistent with the documents. It is also contrary to what the Claimant alleges as he was allocated time and then enquired if it could be unallocated. The Claimant has therefore not proven this matter as alleged. We would observe the Claimant has presented no evidence (apart from a mere allegation) to infer what did happen was related to or because of his race.[46]Then chronologically arises allegation 4.10 which is “on 17 March 2023, after the Claimant reported his second paper on 16 March 2023, Dr. Khalil Alkadhimi replied, “Please remember that the Faculty is encouraging all research active staff to publish 4* papers in very well-known journals with high impact.”. However, this requirement is for above Senior Lecturer level and the Claimant is Senior Lecturer.”.[47]The relevant email reads (page 301) …. “Very good. Thank you for this. Please remember that the Faculty is encouraging all research active staff to publish 4* papers in very well-known journals with high impact.”.[48]About this allegation Dr Alkadhimi says (at paragraph 25 of his witness statement) … “On 16 March 2023, I received an email from Dr Wang in which he explained that his second paper had been published (page 301). I responded to thank Dr Wang for letting me know and praised him for this (page 301). I also informed him that the Faculty was encouraging all research staff to publish 4* papers in very well known journals with high impact. This is because such publications would have more impact when applying for research grants. This was an objective across the Faculty and was discussed within Faculty meetings. I made this comment to support Dr Wang achieve the outcomes which would most benefit him.”.[49]We accept what Dr Alkadhimi tells us which is consistent with what the email says. It is also not evident to us how what happened is less favourable or to the Claimant’s detriment as the Claimant was wanting promotion to reader or professor. Even if it were, there is nothing to suggest it was done because of the Claimant’s race to move the burden of proof to the Respondent. A Claimant merely stating it is because of their race is not sufficient to move the burden of proof. They could go on to state it is because of any of the protected characteristics but it doesn’t make it so.[50]On the 19 April 2023 there is a RET team meeting held to discuss covering Dr Roy's work as he is on sick leave (page 303). The Claimant alleges (allegation 4.4) that … “on 19 April 2023, Dr. Khalil Alkadhimi asked the Claimant to help cover Dr. Amitava Roy’s duties. After the Claimant provided details of his current work, Dr. Khalil Alkadhimi immediately said in front of 3 other colleagues that he was disappointed with the Claimant, that he will retire soon, the Claimant had mortgage to pay and child to raise, and that if the Claimant could not do it, the Claimant can leave. Dr. Khalil Alkadhimi’s words made the Claimant very scared and upset.”.[51]Dr Alkadhimi refers to the meeting in paragraphs 26 and 27 of his witness statement. However, it was in his oral evidence that he clarified what he recalls being said by him to the Claimant. He denied saying what the Claimant alleges he said. He referred to the Claimant conflating things he has said at other times, for example reference to him retiring soon and all having mortgages and kids, was in relation to promotion discussions. He denied saying what the Claimant says he said and denied saying the Claimant could leave.[52]It is for the Claimant to prove what he alleges happened did so. He has not done so on the balance of probability.[53]On the 12 May 2023 there is a further RET team meeting held to discuss covering Dr Roy's duties. The Claimant alleges (allegation 4.5) that … “by reason of the behaviour of Dr Khalil Alkadhimi on 19 April 2023 and also because Dr Khalil Alkadhimi is in charge of the Claimant’s probation, on 12 May 2023 the Claimant felt obliged to agree to help he did not have time to do.”.[54]Although Dr Alkadhimi could not recall the Claimant’s offer to help, he acknowledged with reference to an email he sends to the Claimant on the 30 May 2023 timed at 13:40 that the Claimant had mentioned before that he would be able to help. However, the form of that help was not agreed, and no help then appears to have been provided by the Claimant. Agreeing to offer help, but then not providing any, does not support the Claimant being fearful of Dr Alkadhimi as he asserted.[55]We also agree with what is submitted by Respondent’s Counsel about this allegation (paragraph 50.5 of his written closing submissions). What is alleged is a statement by the Claimant and such an offer of help would be consistent with the Claimant’s obligations under his employment contract (clause 8 as referred to above). We also have not found allegation 4.4 proven which this allegation is reliant upon.[56]It is then on the 19 May 2023 that three of the allegations of discrimination are said to have happened (allegations 4.6, 4.7 and 4.8).[57]Allegation 4.6, on 19 May 2023, Dr Shanker Prabhu sent an email to the Claimant and Dr Oghenovo Okpako informing them of the teaching modules they were allocated for the next academic year. As he admitted on 31 May 2023, Dr. Prabhu had discussed this with Dr Okpako and had focused on addressing Dr Okpako’s concerns. Dr Prabhu had not consulted the Claimant and did not care about the Claimant’s concerns.[58]Allegation 4.7, on 19 May 2023, Dr Shanker Prabhu stated in an email to Dr Khalil Alkadhimi that the Claimant did not want to attend the meeting on Monday as he was writing proposals until 4 June, when in fact the Claimant had told Dr Shanker Prabhu that he could not attend the meeting on the specified date.[59]Allegation 4.8, on 19 May 2023, Dr. Khalil Alkadhimi gave the Claimant 1 minute to choose a module to teach whereas Dr Oghenovo Okpako was given more than a week to state his preference. On 3 October 2022, Dr. Shanker Prabhu was allocated one module but he rejected it.[60]This is also asserted as a breach of contract (allegation 11.2) that on … “19 May 2023, the Claimant was suddenly informed to teach the Advanced Battery and Fuel Cell Technologies (M31915) without any consultation with the Claimant.”.[61]Dr Prabhu accepts that he engaged with Dr Okpako first and explains why in his witness statement (paragraphs 10 to 13): “10. In preparation for the academic year 2022/23, during May 2023, Dr Alkadhimi discussed with me the allocation of modules within the RET team. During this discussion, I suggested that the Low Carbon module (level 5) would be more suitable for Dr Okpako and the Advance Battery module (level 7) would be more suitable for Dr Wang. The reason for this was that my understanding was that the Low Carbon module would be similar to the Energy Efficient Building module which Dr Okpako was already teaching. Therefore if Dr Okpako taught both modules, this would assist continuity between the modules and reduce the risk of the same topics being taught on both modules.11. Following my discussion with Dr Alkadhimi, on 17 May 2023, Dr Alkadhimi asked me to discuss the two energy modules with Dr Wang and Dr Okpako and allocate them accordingly (page 313). We did discuss this further and Dr Alkadhimi suggested that one of the two energy modules, Advanced Battery, did not need to run during the next academic year (page 314). This would mean that Dr Wang would only be teaching two modules the following year and Dr Okpako would be teaching three.12. Given that the plan meant that Dr Okpako would be teaching an additional module the following year, whereas Dr Wang would continue to teach only the two modules he taught during the academic year 2022/23, I spoke to Dr Okpako first on 18 May 2023 to see whether he was happy to take on the Low Carbon module. During my discussion with Dr Okpako, we discussed the possibility of him taking on the Low Carbon module. Dr Okpako said that he did not want to take on a third module for the upcoming academic year given that he was already teaching a foundation module which was taking much of his time and there were other Senior Lecturers (who were more senior to him) who were not teaching three modules, such as Dr Wang. Dr Okpako said that he would take on the Low Carbon module if the foundation module could be passed to someone else. I informed Dr Alkadhimi about this on 18 May 2023 (page 315).13. Dr Alkadhimi responded the same day and said the quickest way to solve the situation was for both Dr Okpako and Dr Wang to teach three modules each (page 316). This would mean that the Advance Battery module would run the following year which Dr Wang would teach. Given that the plan was now for both Dr Wang and Dr Okpako to teach three modules each, I informed them of this both at the same time in an email on 19 May 2023 (page 321). I also explained that they should speak to Dr Alkadhimi if they wanted to discuss the allocation further. At this point, the allocation of these modules was still provisional.”.[62]The relevant email chain containing the emails the Claimant complains about is at pages 321 to 326.[63]Dr Prabhu confirms to the Claimant and Dr Okpako that the Claimant will be teaching the Advance Battery module and Dr Okpako the Low Carbon module.[64]Dr Okpako emails saying he wants to teach the Advanced Battery module. It is suggested that a meeting takes place to discuss the allocation. A meeting invite is circulated for Monday 22 May 2023.[65]The Claimant declines the meeting invite for Monday the 22 May 2023.[66]The Claimant is asked by Dr Prabhu by email dated 19 May 2023 timed at 11:45 … “What other time can you do?” (page 323).[67]By email dated 19 May 2023 timed at 11:49 (page 324) the Claimant replies … “I have proposal writing until 4 June 2023. I would like to suggest to invite all the members of the renewable energy team and list all the modules, so everyone has a good picture of the modules and has a good opportunity to discuss it with open mind.”.[68]Dr Prabhu then emails Dr Alkadhimi and copies the Claimant in (19 May 2023 timed at 12:00) (page 324) writing … “I tried to organise a meeting to discuss the remaining module allocations as per your suggestion. But Shifeng does not want to attend the meeting on Monday [22 May 2023] as he is writing proposals until 4 June which is too late for allocations in my opinion. You as HoS can decide what to do next.”.[69]The Claimant replies timed at 12:06 (page 325) … “I think you are using the wrong words "But Shifeng does not want to". To make it clear, I can not attend the meeting on the specified date and time due to that I have been writing proposal.”.[70]By email timed at 12:10 Dr Alkadhimi emails the Claimant and Dr Okpako saying … “I need a reply by the end of next week from both of you to let me know which modules you will be teaching next year. Shanker has organised a meeting on Monday to discuss this. If you can not attend for any reason, please send us an email clearly indicating which modules you will teach. If I do not hear from you, I will decide on which module you will be teaching next year.” (page 326).[71]Dr Alkadhimi then replies at 12:14 to the Claimant’s email timed at 12:06 (page 325) … “You can send me your suggestion by email. It will take 1 minute. If both you and Oghenovo want to teach the same module then I will make the decision.”.[72]As Dr Prabhu explains in paragraphs 14 to 16 of his witness statement: “14. Dr Okpako then responded and explained that it had already been agreed when he had joined the University that he would be teaching the Advanced Battery module (page 321). Dr Alkadhimi responded and said that he did remember this and asked Dr Wang if he would be happy to switch modules (pages 321-322). We continued to discuss the allocation via email following which Dr Alkadhimi and Dr Okpako suggested a meeting be held to discuss the matter (page 322). I then sent a meeting invitation for the discussion to take place. Dr Wang declined the invitation without providing a reason (page 323).15. I therefore sent Dr Wang an email to ask what other time he could meet (page 323). Dr Wang responded and stated that he was writing a proposal until 4 June 2023 (page 324). Given that 4 June was over two weeks away, I took this to mean that he did not want to attend a meeting until after this date, rather than he could not attend the meeting due to unavailability, such as pre-arranged meetings or annual leave. I informed Dr Alkadhimi of this accordingly and copied Dr Wang into the email (page 324). Dr Wang sent a further email and said that it was wrong for me to use the words “Shifeng does not want to”, rather, it was that he could not attend the meeting (page 325).16. Given that Dr Wang was unable to attend a meeting until 4 June 2023, I met with Dr Okpako again to discuss the matter further. Dr Alkadhimi also attended this meeting. We came up with a few possible scenarios regarding the distribution of the six modules which I confirmed in an email to Dr Alkadhimi (page 329). Dr Alkadhimi then gave both Dr Okpako and Dr Wang an opportunity to comment on the scenarios (page 330).”[73]Then at paragraph 34 of Dr Alkadhimi’s witness statement … “Later on 19 May 2023, Dr Prabhu contacted me to explain that he had tried to arrange a meeting to discuss the allocation of modules, however Dr Wang did not want to attend the meeting as he was writing proposals until 4 June 2023 (page 324-325). I therefore asked Dr Wang to send me his suggestion regarding the allocation of modules via email and explained this should only take one minute (page 325). I also said that if Dr Wang and Dr Okpako both wanted to teach the same module, I would make the decision. Dr Wang responded with his request to teach the Advanced Battery module (page 325).”.[74]What Dr Prabhu and Dr Alkadhimi tell us is consistent with the copy emails we have been presented.[75]In respect of allegation 4.6, we do not find as alleged by the Claimant that Dr Prabhu had focused on addressing Dr Okpako’s concerns and had not consulted the Claimant and did not care about the Claimant’s concerns. The Claimant was initially not getting a third module allocated to him so there was no need to consult with him. Then, when he was to be allocated a third module, he is communicated with at the same time and in the same way as Dr Okpako.[76]In respect of allegation 4.7 in reply to the question “what other time can you do” the Claimant says he has proposal writing until 4 June 2023. The Claimant has not told Dr Prabhu that he cannot attend the meeting, he has said he would not be available until after the 4 June 2023. Therefore, what Dr Prabhu writes in his email is an accurate reflection of what the Claimant had communicated in response to the question he asked. It is not, as alleged by the Claimant, factually correct to say that the Claimant had told Dr Prabhu that he could not attend the meeting on the specified date. The Claimant has therefore not proven what he alleges.[77]In respect of allegation 4.8 the Claimant was not given one minute to choose a module, whereas Dr Okpako was given more than a week. The copy emails we have been presented evidence that Dr Alkadhimi wrote to both the Claimant and Dr Okpako on 19 May 2023 at 12:10 and asked for a reply … “by the end of next week from both of you”. Dr Alkadhimi then emailed the Claimant at 12:14 in reply to the Claimant’s email timed at 12:06 saying … “You can send me your suggestion by email. It will only take a minute”. The Claimant therefore had the same week to reply but was told such a reply will only take a minute. The Claimant has therefore not proven what he alleges.[78]As to the allegation of breach of contract this has not been proven as the Claimant alleges. Further, as a breach of contract claim this also does not appear to fall within the jurisdiction of the Tribunal as permitted by the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 SI 1994/1623.[79]Chronologically there is then allegation 4.9 that “on 30 May 2023, Dr Khalil Alkadhimi sent an email to renewable energy team to seek help to cover Dr. Amitava Roy’s duty, that is course work and exams. He asked Dr Shanker Prabhu to explain what help was needed. Dr Prabhu did not do that. Instead, without consulting with the Claimant, Dr Prabhu produced a table showing only the marking load which is only part of the Claimant’s workload. From the table Dr Prabhu implied that the Claimant was the only member of staff with availability to help. Dr Alkadhimi then took the table and asked the Claimant to help based on the table. The Claimant said he could not cover all the course work and exams because he had annual leave for 2 weeks from 12 June 2023. Dr Alkadhimi asserted that the Claimant was refusing to help and threatened the Claimant with being reported to the Dean and the University.”.[80]Dr Prabhu addresses this allegation in paragraphs 17 to 19 of his witness statement: “17. On 30 May 2023, I received an email from Dr Alkadhimi in which he informed the RET team that Dr Roy’s sick leave had been extended until 21 June 2023. Dr Alkadhimi therefore asked the RET team to go ahead and mark the projects which had been allocated due to Dr Roy’s absence (page 332-333). Dr Alkadhimi also asked me to look into the situation regarding coursework and said that we would need to arrange the marking of the exam scripts in respect of Dr Roy’s students.18. Following Dr Alkadhimi’s request, I reviewed each member of the RET team’s marking workload on the University’s workload planner (“WLP”). Members of staff’s marking load is calculated by reference to the number of students and assessments they are responsible for. The information I obtained from the WLP is at page 332 of the bundle. I provided this information to Dr Alkadhimi on 30 May 2023 (page 332). Dr Wang’s marking workload was less than any other member of the RET team. I did state in my email to Dr Alkadhimi that I did not think it was fair to ask those who already had a high marking load to take on more marking. I made this comment in part due to the fact that I already considered it unfair that Dr Wang had previously declined to assist with Dr Roy’s work and it would have been even more unfair if he did not assist with Dr Roy’s marking. For the Tribunal’s information, there were model answers which would have greatly assisted whoever did complete Dr Roy’s marking. Further, the marking of coursework would have been straight forward, especially given that the coursework was in respect of the Energy Conversion and Storage module, which covered the fundamentals of advanced battery technology, which was within Dr Wang’s area of expertise.19. Dr Alkadhimi then copied me into an email to Dr Wang in which he asked Dr Wang to assist with the marking of coursework and exam scripts (page 334). I was not involved further with this issue.”[81]The Claimant challenged Dr Prabhu in cross examination as to how he had calculated the figures set out in the table in the email he sent Dr Alkadhimi (page 332 and page 76 in the Claimant’s bundle). Through that process there were some addition errors identified in that Dr Okpako’s figure should have been 116 not 117 (page 271) and Amit’s figure should have been 43.5 not 44.5 (page 276). These in our view are minor errors that do not challenge the legitimacy of the explanation Dr Prabhu has provided us. Dr Prabhu also explained why he had included the six named individuals in the table he had, matching those invited by Dr Alkadhimi to the meeting about Dr Roy’s absence on the 19 April 2023 (page 303).[82]What Dr Prabhu tells us is supported by the documents we have been presented. The Claimant does have the lowest marking load. However, the information is provided to Dr Alkadhimi to make the decision with Dr Prabhu saying … “You can decide who you want to allocate Amit's marking. On a side note, I don't think it is fair to ask those already marking too much to share any load now as almost all of this load is now filling up calendars.” (page 76 of the Claimant’s documents). There are six individuals named in the table. Dr Prabhu did not imply as the Claimant alleges, that the Clamant was the only member of staff with availability to help.[83]The Claimant asserts that Dr Alkadhimi slandered him at a meeting on the 31 May 2023 (paragraph 39 of the Claimant’s witness statement and breach of contract allegation 11.1). The Claimant alleges Dr Alkadhimi said that the Claimant had the lowest teaching load and the second-lowest overall load in the School. Dr Alkadhimi maintained what he said was correct based on the system data he had been provided (page 263).[84]This is not an allegation of discrimination, and the Tribunal does not have jurisdiction to determine allegations of slander. As a breach of contract claim this also does not appear to fall within the jurisdiction of the Tribunal as permitted by the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 SI 1994/1623. In any event what Dr Alkadhimi says is supported by the documents he relies upon.[85]It is also asserted by the Claimant that at a meeting on the 31 May 2023 he did a protected act. The Claimant claims that the protected act was him asserting discrimination at the meeting. The Claimant describes what he did in paragraph 40 of his witness statement … “… On 31 May 2023, having no way and protecting myself from further harm, I kindly told Dr. Shanker Prabhu that when he allocated modules, he had discussed this with Dr. Oghenovo Okpako and cared about Dr. Okpako’s concerns, and that he had not consulted me and didn’t care about my concerns. This may involve discrimination. Dr. Prabhu admitted this. However, Dr. Khalil Alkadhimi shouted at and threatened me in front of colleagues that “Watch your mouth. It will go to court”. Dr. Alkadhimi then told colleagues that I am very upset.”.[86]Dr Prabhu describes his recollection in paragraph 20 of his witness statement … “On 31 May 2023, I attended the School’s monthly team meeting. During the meeting, Dr Wang stated that I had discriminated against him in respect of the allocation of modules for the following academic year. At first, I did not respond to the allegation. However, Dr Wang repeated this allegation a number of times. I therefore felt it necessary to respond to explain that I had not discriminated against him.”.[87]Dr Alkadhimi in paragraph 41 of his witness statement … “The School meeting then took place. During this meeting, Dr Wang, out of nowhere, stated to Dr Prabhu that he (Dr Prabhu) had discriminated against him (Dr Wang). This comment appeared to be unprompted and Dr Prabhu was clearly surprised by the comment. I did not think that it was appropriate for this issue to be discussed in front of the whole School and I therefore asked Dr Prabhu to not respond to the comment in an attempt to bring the matter to a conclusion. However, Dr Wang continued with his accusation and referred to the allocation of teaching. I then said that this was a serious accusation by Dr Wang and that we needed to move on with the meeting. My intention was to speak to Dr Wang about the issue he had raised when we were able to meet.”.[88]From these accounts we note that what the Claimant says at the meeting does not expressly refer to race discrimination, nor impliedly in our view. We also note that Dr Alkadhimi is concerned with the way the Claimant raised the matter.[89]The emails that follow the meeting between the Claimant and Dr Prabhu (pages 337 to 342) do not refer to race discrimination expressly and in our view do not imply it either. For example, when asked by Dr Prabhu … “It seemed that the statement "You were taking different way for different colleagues for one thing" is again making accusations. What are you talking about here?”. The Claimant replies … “My question is the answer to "You were taking different way for different colleagues for one thing". So if you think it is another prosecution, that is your decision.” (page 339). Then when asked the same question by Dr Prabhu the Claimant replies … “You did not talk to me about these two modules. But you talk to Oghanovo about these two modules. This is what you have already stated in your email.”.[90]Dr Prabhu confirmed in cross examination that the first he became aware he was accused of race discrimination was when this Employment Tribunal claim was served on him.[91]What Dr Prabhu says is consistent with other documents and communications by the Claimant that follow the 31 May 2023 meeting. For example, the Claimant’s email to Professor Ait-Boudaoud dated 5 June 2023 (page 389) makes no reference to race discrimination. The Claimant’s email to HR dated 5 June 2023 (page 355) refers to being treated wrongly by his line manager, Dr Alkadhimi. At his meeting with Professor Ait-Boudaoud on the 26 June 2023 the Claimant confirms that … “I didn’t say I raise discrimination, I said I have issue with my line manager and ask for formal investigation.” (page 415).[92]On the 1 June 2023 Professor Ait-Boudaoud and Dr Alkadhimi discuss the Claimant's pending probation review as detailed in paragraph 44 of the witness statement of Dr Alkadhimi and paragraph 2 of the witness statement of Professor Ait-Boudaoud. Dr Alkadhimi says he had concerns about the Claimant’s attitude and was considering whether he should pass his probationary period.[93]It is then by letter dated 2 June 2023 that the Claimant is invited to attend a probationary review meeting on the 6 June 2023. There are two versions of this letter (pages 349 to 351 and 81 to 83 of the Claimant’s documents). The differences do not appear to be significant. The version in the main bundle has the Respondent’s logo on the first page (349), refers to including a probationary review form and does not include the name of the HR Adviser (page 351). The version in the Claimant’s documents does not include the Respondent’s logo, (page 81) does not refer to enclosing a probationary review form and includes the name of the HR Adviser (page 83). Dr Alkadhimi confirmed that the version in the Claimant’s bundle would be the version he sent the Claimant as he did not include the Respondent’s logo and would not have referred to enclosing a probationary review form as he did not have access to one. The Claimant asserted before evidence that the Respondent had committed fraud. This serious allegation was not put to Dr Alkadhimi by the Claimant. The Claimant has not proven what he alleges.[94]The Claimant asserts that what is written in the letter dated 2 June 2023 is an act of discrimination and an act of victimisation.[95]The Claimant alleges as part of allegation 4.16 that he should not have received the letter of 2 June 2023 which was critical of him. Further that sending the “critical probation letter” subjected the Claimant to detriment.[96]The letter dated 2 June 2023 sets out the concerns Dr Alkadhimi has with the Claimant over his willingness to assist with Dr Roy’s work. They are all matters that arise before the asserted protected act on the 31 May 2023. They are also supported by the copy emails we have been presented. Dr Alkadhimi’s view of the Claimant’s lack of willingness to assist with covering Dr Roy’s work is reasonably held in our view.[97]Dr Alkadhimi explains in paragraphs 43 and 47 of his witness statement: “43. I considered it incredibly unfair that Dr Wang was refusing to assist with marking, which meant that his colleagues had to complete this work, despite him having the lowest marking load. I also considered his behaviour during the School meeting and his emails to Dr Prabhu, as well as his refusal to meet me, to be inappropriate. Further, Dr Wang’s actions were creating a negative feeling with his colleagues. Given that Dr Wang was still within his probationary period, I considered that his attitude brought into question whether he should pass his probationary period.” “47. I met Ms Forest on 2 June 2022 to explain my concerns following which we prepared the letter which is at pages 349-351 of the bundle. In this letter, I invited Dr Wang to a 12 month probationary review meeting to take place on 6 June 2023. I raised my concerns about his performance in respect of his refusal to support with Dr Roy’s work and his communications with colleagues, and explained that I wanted to discuss these concerns with him in more detail during the probationary meeting.”[98]When asked by the panel what he meant by “communications with colleagues” Dr Alkadhimi confirmed he meant the emails between the Claimant and Dr Prabhu after the 31 May 2023 meeting. Dr Alkadhimi explained that he did not consider it was the right way to deal with a course leader nor the conduct at the meeting by shouting out the word discrimination.[99]We find that the letter Dr Alkadhimi sends is not because of (or significantly influenced by) the Claimant referring to discrimination. It is Dr Alkadhimi’s concerns about the Claimant’s performance in respect of his refusal to support with Dr Roy’s work (which happened before the meeting on 31 May 2023) and his communications with colleagues (the emails that followed the meeting on 31 May 2023) and including shouting out the word discrimination. It is not because of, or significantly influenced by the Claimant using that word.[100]Chronologically it is then alleged (allegation 4.14) that “on 7 June 2023, the Claimant asked HR (Becki Forrest) to produce the evidence in support of the 2 June 2023 probation letter which was critical of him. He further asked for HR to arrange it such that there was reduced contact between him and Dr Khalil Alkadhimi. HR said that they had not seen the evidence and they had no right to reduce the contact. They should have provided the evidence or said there was no evidence. They should have protected the Claimant from Dr Alkadhimi”.[101]We were referred to the notes of the meeting between the Claimant and Becki Forrest on the 7 June 2023 (pages 386 to 387). These support that HR sought to initially deal with the Claimant’s concerns informally in line with the Respondent’s Anti-Harassment and Anti-Bullying Policy (from page 124 and in particular pages 133 and 134). The Claimant does not assert to the Respondent at this point that he has been subjected to race discrimination. The probation review meeting has not yet happened at which Dr Alkadhimi and the Claimant can explore the work performance issues. We therefore do not find that the Claimant has proven that HR should produce any evidence at that point as alleged, nor that reduced contact with Dr Alkadhimi should be arranged as alleged.[102]It is also alleged (allegation 4.15) that … “on 5 June 2023, the Claimant reported Dr Khalil Alkadhimi’s unacceptable behaviour and Dr. Alkadhimi’s critical probation letter of 2 June 2023 with relevant documents to Dr Djamel Ait-Boudaoud, Dean of Faculty. However, Dr Djamel Ait- Boudaoud has no response for a long time.”.[103]It is on the 5 June 2023 that the Claimant sends details of his concerns to Professor Ait-Boudaoud (page 389). The email the Claimant sends, and the Claimant’s attached evidence, including a response to the probation invitation letter (pages 93 to 121 of the Claimant’s bundle) do not refer to race discrimination.[104]Professor Ait-Boudaoud arranges to meet the Claimant on the 26 June 2023. The meeting is arranged for then because Professor Ait-Boudaoud had been on compassionate leave until the 10 June 2023 and the Claimant was then on leave for 2 weeks from the 12 June 2023 (page 412 and paragraph 6 of Professor Ait-Boudaoud’s witness statement).[105]With that context the timings for what happened are not unreasonable and we do not find that Professor Ait-Boudaoud has failed to respond for a long time as alleged by the Claimant.[106]Connected to allegation 4.15 is allegation 4.16 that “on 26 June 2023, the Claimant held a meeting with Dr Djamel Ait-Boudaoud, Dean of Faculty, to discuss the matter and asked for evidence to support the critical probation letter of 2 June 2023 and to reduce contact between him and Dr Khalil Alkadhimi. The Dean failed to do both when he should have done both. The Claimant should not have received the letter of 2 June 2023 which was critical of him. He should not have had his probation challenged.”.[107]About this allegation we accept as submitted by Respondent’ Counsel in paragraph 50.16 of his written closing submissions that the Claimant has not established any basis for alleging that Professor Ait-Boudaoud should have provided evidence for the concerns expressed by Dr Alkadhimi in his letter of 2 June 2023 or that there was any kind of obligation on him to reduce contact between Dr Alkadhimi and the Claimant. The evidence shows Professor AitBoudaoud considered the Claimants complaint and advised him to follow the University policies (which he had not done) and speak to HR (page 423) which is the correct process. We also note, as recorded in the transcript of the meeting on the 26 June 2023 the Claimant confirms that … “I didn’t say I raise discrimination, I said I have issue with my line manager and ask for formal investigation.” (page 415), the Claimant is not claiming discrimination or specifically race discrimination.[108]There are three further allegations of discrimination (allegations 4.11, 4.12 and 4.13) which are not anchored to any particular date.[109]Allegation 4.11 is that “the Claimant and his colleague Dr Oghenovo Okpako are new staff. Dr. Khalil Alkadhimi had provided a lot of support to Dr Oghenovo Okpako during his probation but Dr. Khalil Alkadhimi did not do the same to the Claimant. Dr. Alkadhimi counted earlier publications published at other universities by Dr. Oghenovo Okpako into probation assessment, but not current papers published by the Claimant at Portsmouth into his probation assessment”.[110]About this allegation we accept what is submitted by Respondent’s Counsel in his written closing submissions (paragraph 50.11). There is no evidence that Dr Alkadhimi provided more support to Dr Okpako than to the Claimant. It appears Dr Alkadhimi did refer to an (undated) publication in Dr Okpako’s 12 month review (page 630). However, Dr Alkadhimi’s evidence was that it was a mistake; he also conceded to making a typo (being ‘Shifeng’ in place of ‘Okpako’) (page 619). We accept, as submitted by Respondent’s Counsel, there is nothing nefarious about that. Further, there is no basis whatever to say Dr Alkadhimi treated Dr Okpako differently or did not take account of the Claimant’s papers because the Claimant did not have that review.[111]Then allegation 4.12 that “during the academic year 2022-2023, the Claimant was responsible for two new core renewable energy modules while Dr Shanker Prabhu, Dr Amitava Roy and Dr Sourav Khanna were responsible for only one. His workload was and/or responsibility was heavier.”.[112]Again, as submitted by Respondent’s Counsel (paragraph 50.12), there is no evidence to support the Claimant’s contention that he had more responsibility or a heavier workload than Dr Prabhu. Dr Prabhu’s evidence, which we accept, was that he was teaching three full modules, which is the typical workload for members of staff, whereas the Claimant was teaching only two modules that year and he had additional time to prepare those modules since his employment started in June 2022; the end of the previous academic year, and did not have to undertake tasks like marking, moderation, or resubmission support. He also had the lowest marking loads in the Team as referred to in paragraph 8 of the witness statement of Dr Prabhu.[113]Then allegation 4.13 that “when developing the new module-Sustainable Transport systems, the Claimant did not receive any help from Dr. Khalil Alkadhimi or Dr Shanker Prabhu, while Dr. Oghenovo Okpako was given time to develop the new module-Advanced Battery and Fuel Cell Technologies.”.[114]Again, as submitted by Respondent’s Counsel (paragraph 50.13), the Claimant has not established that when developing the Sustainable Transport systems module he received no help from Dr Alkadhimi or that Dr Okpako was given time to develop the Advanced Battery and Fuel Cell Technologies module. Dr Alkadhimi’ s evidence was that he did not give additional help to Dr Okpako and any mismatch is time allocation in the workload provision was a result of the system (not Dr Alkadhimi) and the Claimant did not raise this notwithstanding that he had access to it himself.[115]By email dated 3 July 2023 (timed at 09:00) the Claimant resigns (page 440). The Claimant writes … “I will have to resign form my present position as Senior Lecturer in the School of Energy and Electronic Engineering. My last service date for the University of Portsmouth is 31 Aug 2023.”.[116]The Claimant provides no reason for his resignation, nor does he assert he has been racially discriminated against or victimised.[117]By email dated 4 July 2023 Professor Ait-Boudaoud acknowledges the Claimant's resignation (page 444) and then informs Dr Alkadhimi of it (page 446).[118]Dr Alkadhimi then contacts HR and confirms that it is fine for the Claimant to leave on the date requested, 31 August 2023 (page 446).[119]By email dated 5 July 2023 Dr Alkadhimi confirms to the Claimant (page 445) that they have accepted his resignation, and they have no problem with the leaving date of the 31 August 2023 as all his duties regarding Ref/Def marking will be completed. Also, that he does not have any MSc students to supervise. Also, the MSc project the Claimant is moderating will be allocated to other colleagues.[120]As detailed in paragraph 52 of the witness statement of Dr Alkadhimi it was around the 15 July 2023, he was asked to remind all members of staff who were leaving the School over the summer to return their equipment before they left the University. He did this by an email dated 15 July 2023 (page 453). Dr Alkadhimi explains that he was expecting members of staff to return their equipment shortly before they left the University once they had completed all their work.[121]The relevant email at page 453 is sent to the relevant Admin/IT staff and then blind copied to the Claimant (and other leavers). It reads … “Please make sure you get the list of equipments that you have with you from Barrie Miles and hand back these equipments to him, before you leave the university. Please also inform Bruce Sielaff when you have done this and let me know. Please copy me in all emails.”.[122]The email states that the Claimant should return his equipment before he leaves the Respondent which, in the case of the Claimant, would be by the 31 August 2023, the leaving date agreed between the Claimant and the Respondent.[123]The Claimant alleges (allegation 4.17) that “on 15 July 2023, Dr. Khalil Alkadhimi sent an email to other colleagues (secretary and IT) but bcc’ing the Claimant asking for the return of his equipment even though he was still working his notice period. The equipment was returned on 1 August 2023. The Claimant should not be treated like this.”.[124]Based on the content of the email and the context in which it is sent, the Claimant has not proven this allegation, that he should not be treated like that. The Claimant was treated in the same was as all other leavers at that time.[125]It is then on the 1 August 2023 that Professor Ndzi replaces Dr Alkadhimi as Interim Head of School. Professor Ndzi explains in paragraph 3 of his witness statement that the Claimant told him that day that it was his last day and he would be leaving after he dropped off his equipment. The Claimant denies he said this was his last day to Professor Ndzi.[126]It is then allegation 4.18 arises that “on 2 August 2023, Dr. Salem Aljareh cc’d all academic staffs of school into an email to the Claimant asking for the marking forms for the resit of 2 × MSc students. There was no basis for cc’ing it.” The email is at page 433, and it is accepted that all staff were copied into the email.[127]We did not have any witness evidence directly from Dr Aljareh about this matter, but Dr Alkadhimi explains (paragraph 53 of his witness statement) that … “On 2 August 2023, I received an email from Dr Wang to the whole School regarding a conference (page 443). Dr Aljareh then responded to all, and asked Dr Wang to submit his marking (page 443). I had presumed that Dr Aljareh had accidentally responded to all, rather than just Dr Wang. I contacted Dr Aljareh to make him aware of this and he confirmed it was a mistake (page 443).”.[128]The email from Dr Aljareh at page 443 confirms that it was a mistake, and he must have clicked the reply to all. This is a mistake that can happen, and the Claimant acknowledged that he had accidently clicked reply to all. With this evidence there is nothing to prove that what happened was related to race or because of the Claimant’s race.[129]By email dated 3 August 2023 from Professor Ndzi the Claimant’s last day of employment is again confirmed as the 31 August 2023 (page 440).[130]It is then by letter dated 4 August 2023 (page 452) that the Claimant’s employment end date is brought forward to the 3 August 2023. The Claimant is to be paid in lieu of unused annual leave (the Claimant had leave booked from 17 August 2023 to 31 August 2023). The Claimant claims the shortfall in his notice is a breach of contract (allegation 11.3) or an unauthorised deduction from wage (allegation 14).[131]There is no dispute that the Claimant’s employment was ended on the 3 August 2023. The Respondent has dismissed the Claimant before the agreed leaving date of the 31 August 2023. With the termination date being the 3 August 2023, there is no further pay due to the Claimant other than accrued holiday, unless he was dismissed in breach of contract. On that basis there cannot be an unauthorised deduction of wages as such wages would not be properly payable to the Claimant after the 3 August 2023 (save for accrued but untaken holiday). As the Respondent has terminated the Claimant’s employment without full notice it is for the Respondent to prove that the Claimant was in fundamental breach.[132]The letter terminating the Claimant’s employment acknowledges that the Claimant had completed the tasks he was required to do. Professor Ndzi did not identify any other tasks that were outstanding from the Claimant at this point.[133]The termination letter records … “Please note that being absent from work without authorised leave is a disciplinary matter and could impact any future engagement with the University. I will however honour this and take 3rd August as your last day of work and pay you up to that date.”.[134]The Respondent has not proven that the Claimant was absent from work without authorised leave. The Claimant did complete the tasks he was asked to do and it was acknowledged by HR that the handing back of his university equipment when he did may be because the Claimant has confused the facts (page 453). This was never put to test as a disciplinary matter.[135]THE LAW[136]Discrimination[137]The Claimant is alleging discrimination on the grounds of a protected characteristic under the provisions of the Equality Act 2010 (“the EqA”).[138]The Claimant complains that the Respondent has contravened a provision of part 5 (work) of the EqA. The Claimant alleges direct discrimination and harassment related to race. The legal tests for the two different heads of claim are slightly different and, notably, if treatment is found to be harassment under s26 EqA it cannot also be found to be direct discrimination because the two claims are mutually exclusive (due to the application of s212(1) EqA and its definition of “detriment”). The Claimant also claims victimisation.[139]The protected characteristic relied upon is race as set out in sections 4 and 9 of the EqA.[140]Direct discrimination – section 13 Equality Act 2010[141]For a claim for direct discrimination, under section 13(1) of the EqA a person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[142]Direct discrimination claims require a comparison as between the treatment of different individuals i.e., individuals who do not share the protected characteristic in issue. In doing so there must be no material difference between the circumstances relating to each individual (section 23 EqA). The Tribunal therefore must compare 'like with like'.[143]The provisions relating to the burden of proof are to be found in section 136 of the EqA, which provides that if there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. However, this does not apply if A shows that A did not contravene the provision. A reference to the court includes a reference to an employment tribunal.[144]In respect of the burden of proof, there is a two-stage process for analysing the complaint. At the first stage, the Claimant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondent had committed an unlawful act of discrimination against the Claimant. At the second stage, if the Claimant is able to raise a prima facie case of discrimination following an assessment of all the evidence, the burden shifts to the Respondent to show the reasons for the alleged discriminatory treatment and to satisfy the tribunal that the protected characteristic played no part in those reasons (Igen -v- Wong [2005] EWCA Civ 142 as affirmed in Ayodele -v- CityLink Ltd [2018] ICR 748).[145]We also note the recent decision of Efobi v Royal Mail Group Ltd (2021) ICR 1263 which confirmed that the reverse burden of proof remains good law under the EqA.[146]Also, considering Madarassy v Nomura International Plc [2007] ICR 867, Mummery LJ stated: “The Court in Igen v Wong expressly rejected the argument that it was sufficient for the claimant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an act of discrimination”.[147]The burden of proof does not shift to the Respondent simply on the Claimant establishing a difference in status and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that the Respondent had committed an unlawful act of discrimination (Madarassy). “Could conclude” must mean that “a reasonable Tribunal could properly conclude” from all the evidence before it. This would include evidence adduced by the Claimant in support of the allegations of discrimination. It would also include evidence adduced by the Respondent contesting the complaint.[148]In Igen the Court of Appeal cautioned tribunals ‘against too readily inferring unlawful discrimination on a prohibited ground merely from unreasonable conduct where there is no evidence of other discriminatory behaviour on such ground’ but made it clear that a finding of ‘unexplained unreasonable conduct’ is a primary fact from which an inference can properly be drawn to shift the burden.[149]As we are reminded by Respondent’s Counsel inferences can only be drawn from established facts. They cannot be drawn speculatively or on the basis of a gut reaction or “mere intuitive hunch” (Chapman v Simon [1994] IRLR 124). Further, discrimination cannot be inferred from unfair or unreasonable conduct alone (Glasgow City Council v Zafar [1998] ICR 120).[150]In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 Lord Nicholls held (paragraphs 11 to 12) that to avoid being unnecessarily burdened by the task of construing a hypothetical character, tribunals should focus first on the ‘reason why’ question: “Was the treatment because of the protected characteristics?” If the reason for the impugned treatment is a reason other than race, the claim fails (see also Stockton on Tees Borough Council v Aylott [2010] I.C.R. 1278 and Cordell v Foreign and Commonwealth Office [2012] I.C.R. 280).[151]A direct discrimination complaint about treatment by an employer will require that the claimant establish a ‘detriment’ (s.39(2)(d) EqA). That means an “unjustified sense of grievance” (Shamoon, or some kind of “disadvantage” (Williams v The Trustees of Swansea University Pension & Assurance Scheme and another [2018] UKSC 65).[152]The correct test in determining allegations of discrimination by reference to s.13 and EqA is to ask whether the alleged less favourable treatment is “because of” the protected characteristic (Indigo design Build & Management Limited & Anor v Martinez [2014] UKEAT/0020/14/0007). That requires a tribunal to enquire whether the protected characteristic “operated on the discriminator’s mind…a subconscious motivation, if proved, will suffice” (Onu v Akwiwu [2014] I.C.R. 571).[153]Harassment – section 26 Equality Act 2010[154]Section 26 provides: (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.[155]The Claimant needs to establish, under section 26 EqA, unwanted conduct relating to race ((1)(a)), which had the effect of violating his dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him ((1)(b)).[156]In deciding whether the conduct had the effect set out in (1)(b), the Tribunal must take into account the Claimant’s perception, other circumstances, and whether it was reasonable for the conduct to have that effect ((4)). The section (1)(b) test, as a result of section (4), has an objective element.[157]As we are reminded by Respondent’s Counsel, unwanted conduct is usually to be approached based on the subjective view of the individual (Windsor Clive Primary School Governing Body v Forsbrook [2024] EAT 183). In that context, ‘unwanted’ is synonymous with “uninvited” (EHRC Employment Code).[158]Further, ‘Related to’ requires a finding that the motivation of the individual concerned was related to the characteristic in question (Unite the Union v Nailard [2019] I.C.R. 28).[159]Victimisation – section 27 Equality Act 2010[160]Victimisation occurs where one person subjects another to a detriment because that person has done a protected act or the former believes that that person has done, or may do, a protected act: s.27(1) EqA.[161]The following are protected acts under EqA:(1) bringing proceedings under EqA;(2) giving evidence or information in connection with proceedings under EqA, regardless of who brought these proceedings;(3) doing any other thing for the purposes of or in connection with EqA; and(4) alleging, whether expressly or otherwise, that the respondent or another person has contravened EqA: s.27(2) EqA.[162]As we are reminded by Respondent’s Counsel, an allegation which either does not contain facts capable of amounting in law to an act of discrimination (Waters v Commissioner of Police of the Metropolis[1997] I.C.R. 1073) or asserts there has been ‘discrimination’ but does not say that the allegation is in relation to a protected characteristic (Durrani v London Borough of Ealing UKEAT/0454/2012), will not amount to a protected act.[163]In Durrani the claimant used the word ‘discrimination’ in making an allegation but did not attribute any treatment to a protected characteristic and his complaint was objectively one of general detrimental treatment and not discrimination per se. In upholding the tribunal finding that there was no protected act Langstaff P held that … “I would accept that it is not necessary that the complaint referred to race using that very word. But there must be something sufficient about the complaint to show that it is a complaint to which at least potentially the Act applies… the claimant did not attribute any treatment to the fact that he was British of Pakistani origin” (paragraph 22)[164]In Chief Constable of Greater Manchester v Bailey [2017] EWCA Civ 425 the Court of Appeal said by reference to s.27 EqA: “It is also well- established that an act will be done “because of” a protected characteristic, or “because” the claimant has done a protected act, as long as that had a significant influence on the outcome…”.[165]Further, there is a line of authority which says that it will not be an act of victimisation if the detriment is done because of the manner in which a protected act is carried out rather than the protected act per se (Martin v Devonshires Solicitors [2011] ICR 352; Re York Truck Equipment [1989] Lexis Citation 1541; Ibimidun v HM Prison Service [2008] IRLR 940; Woods v Pasab ltd ta Jhoots Pharmacy [2013] IRLR 305).[166]In Devonshires Solicitors the EAT held that “there would in principle be cases where an employer had dismissed an employee in response to a protected act but could say that the reason for dismissal was not the act but some feature of it which could properly be treated as separable” (Underhill P paragraph 22).[167]For example, in Re York Truck Equipment it was the disruptive way in which the claimant made allegations not the allegations themselves which led to her dismissal (paragraph 32). In Ibimidun the dismissal of the employee related not to his complaint of race discrimination but to the way in which he pursued it (paragraph 42 to 44).[168]Similarly in Woods it was the manner in which the allegation of race discrimination was made and not the protected act. In that case Hallett LJ made clear that tribunals need to identify “the real reason, the core reason, the causa causans, the motive, for the treatment complained of that must be identified.” (paragraph 29).[169]Time Limits[170]Section 120 of the EqA confers jurisdiction on claims to employment tribunals, and section 123(1) of the EqA provides that the proceedings on a complaint within section 120 may not be brought after the end of –(a) the period of three months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable.[171]Under section 123(3)(a) of the EqA conduct extending over a period is to be treated as done at the end of that period.[172]Section 123(3)(b) of the EqA, failure to do something, is to be treated as occurring when the person in question decided upon it. Where there is no evidence to the contrary, s.123(4) of the EqA 2010 provides a default means by which the date of the ‘decision’ can be identified, either when there is an inconsistent act or alternatively the expiry of the period in which the employer might reasonably have been expected to do it.[173]An ongoing situation or continuing state of affairs amounting to discrimination was considered in Hendricks v Metropolitan Police Commissioner [2003] IRLR 96. It is not sufficient to rely on an alleged overarching or floating discriminatory state of affairs without that state of affairs being anchored by discrete acts of discrimination.[174]We note the principals from the cases of British Coal v Keeble [1997] IRLR 336 EAT; Robertson v Bexley Community Service [2003] IRLR 434 CA; and London Borough of Southwark v Afolabi [2003] IRLR 220 CA;[175]We note the factors from section 33 of the Limitation Act 1980 which are referred to in the Keeble decision:[176]The length of and the reasons for the delay.[177]The extent to which the cogency of the evidence is likely to be affected by the delay.[178]The extent to which the parties co-operated with any request for information.[179]The promptness with which the claimant acted once he knew the facts giving rise to the cause of action.[180]The steps taken by the claimant to obtain appropriate professional advice.[181]We note that the Court of Appeal in the Afolabi decision confirmed that, while the checklist in section 33 of the Limitation Act provides a useful guide for tribunals, it need not be adhered to slavishly. The checklist in section 33 should not be elevated into a legal requirement but should be used as a guide. The Court suggested that there are two factors which are almost always relevant when considering the exercise of any discretion whether to extend time and they are: the length of, and reasons for, the delay; and whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).[182]It is also clear from the comments of Auld LJ in Robertson that there is no presumption that a tribunal should exercise its discretion to extend time, and the onus is on the claimant in this regard … "It is also important to note that time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse, a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time, so the exercise of discretion is the exception rather than the rule".[183]As we are reminded by Respondent’s Counsel, the burden of persuading the tribunal to exercise its discretion to extend time is on the claimant (Polystar Plastics Ltd v Liepa [2023] EAT 100; Caston v Chief Constable of Lincolnshire Police [2010] IRLR 327). A failure to advance any or any good reason is not decisive of an application to extend time (Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640; Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23; Concentrix CVG Intelligent Contact v Obi [2023] IRLR 35; Owen v Network Rail Infrastructure Ltd [2023] EAT 106). However, it is clear the reason (or lack thereof) will be relevant (Morgan; Adedeji) and the authors of Harvey suggest the absence of a reason or good reason is likely to weigh heavily in the balance and a refusal to extend time “will often be the conclusion drawn” (Harvey paragraph 281.05).[184]The merits (or lack thereof) of an out-of-time complaint may be one relevant factor amongst others to be taken into account when determining whether it is just and equitable to extend time (Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] EAT 132).[185]Breach of contract[186]The contractual jurisdiction of employment tribunals is governed by section 3 of the Employment Tribunals Act 1996 (ETA), together with the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 SI 1994/1623 (‘the Order’). A contractual claim can only be heard by a tribunal under these provisions where the claim arises or is outstanding on the termination of the employee’s employment and relates to any of the following:(i) a claim for damages for breach of the contract of employment or other contract connected with employment;(ii) a claim for a sum due under such a contract; or(iii) a claim for the recovery of a sum in pursuance of any enactment relating to the terms or performance of such a contract — Article 3 of the Order and S.3(2) ETA.[187]Claims for wrongful dismissal arise on termination and therefore generally fall within the scope of the Order. However, it only confers jurisdiction on employment tribunals to hear breach of contract claims ‘for the recovery of damages or any other sum’ — Article 3. As a result, an employment tribunal has no power to grant an injunction enforcing the terms of an employment contract, and claims for such remedies must be pursued in the civil courts. Furthermore, claims for damages, or for a sum due, in respect of personal injuries are excluded from the scope of the Order — Article 3.[188]Unauthorised deductions of wages[189]The Claimant also claims in respect of deductions from wages which he alleges were not authorised and were therefore unlawful deductions from his wages contrary to section 13 of the Employment Rights Act 1996.[190]Under section 24(2) of the Employment Rights Act, where a Tribunal makes a declaration that there has been an unlawful deduction from wages it may order the employer to pay such amount as a Tribunal considers appropriate in all the circumstances to compensate the worker for any financial loss sustained by him which is attributable to the matter complained of.[191]THE DECISION[192]The Claimant is Chinese and complains of harassment related to race and if not that then direct race discrimination. He also complains of victimisation.[193]There are 18 allegations of harassment and if not that then direct race discrimination.[194]The matters alleged by the Claimant are in dispute, with only the eighteenth allegation being agreed as happening as the Claimant alleges, although it is denied it is related to race or because of race.[195]Considering each allegation in turn: 196. 4.1 On 1 November 2022, having been approached by the Claimant, Dr. Khalil Alkadhimi insisted asking the Claimant to talk to Dean first about the possibility of the Claimant being promoted (to professor or reader), even if the Claimant told him that on 28 October 2022 the Claimant had been told by Professor Jeremy Howells (Deputy Vice- Chancellor) the right procedure is to talk to him first and then Dean. However, Dr. Shanker Prabhu got promotion after Dr. Khalil Alkadhimi became the interim Head of School in November 2022 but he was not suitable/fit for that position. The Claimant was not considered for a professor/reader role. Dr Alkadimi did not give him the any information about applying (such as the standard or criteria) and said the Claimant had to speak to the Dean first, when it should have first been discussed with Dr Alkadhemi. The Claimant had no way to talk to the Dean under the procedure, he needed the support of Dr Alkadhemi first. The Claimant’s application did not progress because of this. The Claimant says he was treated differently to Dr[197]We accept what Dr Alkadhimi tells us about this matter which is consistent with the documents presented. We would also observe that there are many material differences between the Claimant’s circumstances and those of Dr Prabhu. The applied for roles are different, the Claimant is applying for reader/professor, Dr Prabhu, for senior lecturer. The lengths of service are different, the Claimant still being in his probation period. Dr Prabhu submitted an application for promotion supported by Professor Kyberd, whereas the Claimant submitted an application to enrol on a programme about promotion to Reader. The Claimant has also not proven as he asserts in the allegation that Dr Prabhu was not suitable/fit for the senior lecturer position. The Claimant has therefore not proven this matter as alleged, and we would observe has presented no evidence (apart from a mere allegation) to infer what did happen was related to or because of his race. 198. 4.2 On 7 November 2022, Dr. Khalil Alkadhimi perversely told the Claimant that the finance staff should sign the Claimant’s relocation form first and then him, contrary to the right procedure shown by the relocation form which is also confirmed by HR, the University payment section and the Faculty payment section on the same day. The Claimant expressed his worries to both the University payment section and the Faculty payment section.[199]We accept what Dr Alkadhimi tells us which is consistent with the documents we have been presented. The Claimant has therefore not proven this matter as alleged, in particular that Dr Alkadhimi acted perversely. We would observe the Claimant has presented no evidence (apart from a mere allegation) to infer what did happen was related to or because of his race. 200. 4.3 On 2 March 2023, Dr. Khalil Alkadhimi allocated time to Dr. Anton Hettiarachchige Don to start writing the APEX project. On 19 April 2023, the Claimant indicated to start writing on the APEX project but was not allocated time.[201]What Dr Alkadhimi tells us is consistent with the documents. It is also contrary to what the Claimant alleges as he was allocated time and then enquired if it could be unallocated. The Claimant has therefore not proven this matter as alleged. We would observe the Claimant has presented no evidence (apart from a mere allegation) to infer what did happen was related to or because of his race. 202. 4.4 On 19 April 2023, Dr. Khalil Alkadhimi asked the Claimant to help cover Dr. Amitava Roy’s duties. After the Claimant provided details of his current work, Dr. Khalil Alkadhimi immediately said in front of 3 other colleagues that he was disappointed with the Claimant, that he will retire soon, the Claimant had mortgage to pay and child to raise, and that if the Claimant could not do it, the Claimant can leave. Dr. Khalil Alkadhimi’s words made the Claimant very scared and upset.[203]It is for the Claimant to prove what he alleges happened did so. He has not done so on the balance of probability. 204. 4.5 By reason of the behaviour of Dr Khalil Alkadhimi on 19 April 2023 and also because Dr Khalil Alkadhimi is in charge of the Claimant’s probation, on 12 May 2023 the Claimant felt obliged to agree to help he did not have time to do.[205]Although Dr Alkadhimi could not recall the Claimant’s offer to help, he acknowledged with reference to an email he sends to the Claimant on the 30 May 2023 timed at 13:40 that the Claimant had mentioned before that he would be able to help. However, the form of that help was not agreed, and no help then appears to have been provided by the Claimant. Agreeing to offer help, but then not providing any, does not support the Claimant being fearful of Dr Alkadhimi as he asserted. We also agree with what is submitted by Respondent’s Counsel about this allegation (paragraph 50.5 of his written closing submissions). What is alleged is a statement by the Claimant and such an offer of help would be consistent with the Claimant’s obligations under his employment contract (clause 8 as referred to above). We also have not found allegation 4.4 proven which this allegation is reliant upon. 206. 4.6 On 19 May 2023, Dr Shanker Prabhu sent an email to the Claimant and Dr Oghenovo Okpako informing them of the teaching modules they were allocated for the next academic year. As he admitted on 31 May 2023, Dr. Prabhu had discussed this with Dr Okpako and had focused on addressing Dr Okpako’s concerns. Dr Prabhu had not consulted the Claimant and did not care about the Claimant’s concerns.[207]We do not find as alleged by the Claimant that Dr Prabhu had focused on addressing Dr Okpako’s concerns and had not consulted the Claimant and did not care about the Claimant’s concerns. The Claimant was initially not getting a third module allocated to him so there was no need to consult with him. Then, when he was to be allocated a third module, he is communicated with at the same time and in the same way as Dr Okpako. 208. 4.7 On 19 May 2023, Dr Shanker Prabhu stated in an email to Dr Khalil Alkadhimi that the Claimant did not want to attend the meeting on Monday as he was writing proposals until 4 June, when in fact the Claimant had told Dr Shanker Prabhu that he could not attend the meeting on the specified date.[209]In reply to the question “what other time can you do” the Claimant says he has proposal writing until 4 June 2023. The Claimant has not told Dr Prabhu that he cannot attend the meeting, he has said he would not be available until after the 4 June 2023. Therefore, what Dr Prabhu writes in his email is an accurate reflection of what the Claimant had communicated in response to the question he asked. It is not, as alleged by the Claimant, factually correct to say that the Claimant had told Dr Prabhu that he could not attend the meeting on the specified date. The Claimant has therefore not proven what he alleges. 210. 4.8 On 19 May 2023, Dr. Khalil Alkadhimi gave the Claimant 1 minute to choose a module to teach whereas Dr Oghenovo Okpako was given more than a week to state his preference. On 3 October 2022, Dr. Shanker Prabhu was allocated one module but he rejected it.[211]The Claimant was not given one minute to choose a module, whereas Dr Okpako was given more than a week. The copy emails we have been presented evidence that Dr Alkadhimi wrote to both the Claimant and Dr Okpako on 19 May 2023 at 12:10 and asked for a reply … “by the end of next week from both of you”. Dr Alkadhimi then emailed the Claimant at 12:14 in reply to the Claimant’s email timed at 12:06 saying … “You can send me your suggestion by email. It will only take a minute”. The Claimant therefore had the same week to reply but was told such a reply will only take a minute. The Claimant has therefore not proven what he alleges. 212. 4.9 On 30 May 2023, Dr Khalil Alkadhimi sent an email to renewable energy team to seek help to cover Dr. Amitava Roy’s duty, that is course work and exams. He asked Dr Shanker Prabhu to explain what help was needed. Dr Prabhu did not do that. Instead, without consulting with the Claimant, Dr Prabhu produced a table showing only the marking load which is only part of the Claimant’s workload. From the table Dr Prabhu implied that the Claimant was the only member of staff with availability to help. Dr Alkadhimi then took the table and asked the Claimant to help based on the table. The Claimant said he could not cover all the course work and exams because he had annual leave for 2 weeks from 12 June 2023. Dr Alkadhimi asserted that the Claimant was refusing to help and threatened the Claimant with being reported to the Dean and the University.[213]What Dr Prabhu tells us is supported by the documents we have been presented. The Claimant does have the lowest marking load. However, the information is provided to Dr Alkadhimi to make the decision with Dr Prabhu saying … “You can decide who you want to allocate Amit's marking. On a side note, I don't think it is fair to ask those already marking too much to share any load now as almost all of this load is now filling up calendars.” (page 76 of the Claimant’s documents). There are six individuals named in the table. Dr Prabhu did not imply as the Claimant alleges, that the Clamant was the only member of staff with availability to help. 214. 4.10 On 17 March 2023, after the Claimant reported his second paper on 16 March 2023, Dr. Khalil Alkadhimi replied, “Please remember that the Faculty is encouraging all research active staff to publish 4* papers in very wellknown journals with high impact.”. However, this requirement is for above Senior Lecturer level and the Claimant is Senior Lecturer.[215]We accept what Dr Alkadhimi tells us which is consistent with what the email says. It is also not evident to us how what happened is less favourable or to the Claimant’s detriment as the Claimant was wanting promotion to reader or professor. Even if it were, there is nothing to suggest it was done because of the Claimant’s race to move the burden of proof to the Respondent. A Claimant merely stating it is because of their race is not sufficient to move the burden of proof. They could go on to state it is because of any of the protected characteristics but it doesn’t make it so. 216. 4.11 The Claimant and his colleague Dr Oghenovo Okpako are new staff. Dr. Khalil Alkadhimi had provided a lot of support to Dr Oghenovo Okpako during his probation but Dr. Khalil Alkadhimi did not do the same to the Claimant. Dr. Alkadhimi counted earlier publications published at other universities by Dr. Oghenovo Okpako into probation assessment, but not current papers published by the Claimant at Portsmouth into his probation assessment.[217]About this allegation we accept what is submitted by Respondent’s Counsel in his written closing submissions (paragraph 50.11). There is no evidence that Dr Alkadhimi provided more support to Dr Okpako than to the Claimant. It appears Dr Alkadhimi did refer to an (undated) publication in Dr Okpako’s 12 month review (page 630). However, Dr Alkadhimi’s evidence was that it was a mistake; he also conceded to making a typo (being ‘Shifeng’ in place of ‘Okpako’) (page 619). We accept, as submitted by Respondent’s Counsel, there is nothing nefarious about that. Further, there is no basis whatever to say Dr Alkadhimi treated Dr Okpako differently or did not take account of the Claimant’s papers because the Claimant did not have that review. 218. 4.12 During the academic year 2022-2023, the Claimant was responsible for two new core renewable energy modules while Dr Shanker Prabhu, Dr Amitava Roy and Dr Sourav Khanna were responsible for only one. His workload was and/or responsibility was heavier.[219]Again, as submitted by Respondent’s Counsel (paragraph 50.12), there is no evidence to support the Claimant’s contention that he had more responsibility or a heavier workload than Dr Prabhu. Dr Prabhu’s evidence, which we accept, was that he was teaching three full modules, which is the typical workload for members of staff, whereas the Claimant was teaching only two modules that year and he had additional time to prepare those modules since his employment started in June 2022; the end of the previous academic year, and did not have to undertake tasks like marking, moderation, or resubmission support. He also had the lowest marking loads in the Team as referred to in paragraph 8 of the witness statement of Dr Prabhu. 220. 4.13 When developing the new module-Sustainable Transport systems, the Claimant did not receive any help from Dr. Khalil Alkadhimi or Dr Shanker Prabhu, while Dr. Oghenovo Okpako was given time to develop the new module-Advanced Battery and Fuel Cell Technologies.[221]Again, as submitted by Respondent’s Counsel (paragraph 50.13), the Claimant has not established that when developing the Sustainable Transport systems module he received no help from Dr Alkadhimi or that Dr Okpako was given time to develop the Advanced Battery and Fuel Cell Technologies module. Dr Alkadhimi’ s evidence was that he did not give additional help to Dr Okpako and any mismatch is time allocation in the workload provision was a result of the system (not Dr Alkadhimi) and the Claimant did not raise this notwithstanding that he had access to it himself. 222. 4.14 On 7 June 2023, the Claimant asked HR (Becki Forrest) to produce the evidence in support of the 2 June 2023 probation letter which was critical of him. He further asked for HR to arrange it such that there was reduced contact between him and Dr. Khalil Alkadhimi. HR said that they had not seen the evidence and they had no right to reduce the contact. They should have provided the evidence or said there was no evidence. They should have protected the Claimant from Dr. Alkadhimi.[223]We were referred to the notes of the meeting between the Claimant and Becki Forrest on the 7 June 2023 (pages 386 to 387). These support that HR sought to initially deal with the Claimant’s concerns informally in line with the Respondent’s Anti-Harassment and Anti-Bullying Policy (from page 124 and in particular pages 133 and 134). The Claimant does not assert to the Respondent at this point that he has been subjected to race discrimination. The probation review meeting has not yet happened at which Dr Alkadhimi and the Claimant can explore the work performance issues. We therefore do not find that the Claimant has proven that HR should produce any evidence at that point as alleged, nor that reduced contact with Dr Alkadhimi should be arranged as alleged. 224. 4.15 On 5 June 2023, the Claimant reported Dr Khalil Alkadhimi’s unacceptable behaviour and Dr. Alkadhimi’s critical probation letter of 2 June 2023 with relevant documents to Dr Djamel Ait-Boudaoud, Dean of Faculty. However, Dr Djamel Ait- Boudaoud has no response for a long time.[225]It is on the 5 June 2023 that the Claimant sends details of his concerns to Professor Ait-Boudaoud (page 389). The email the Claimant sends, and the Claimant’s attached evidence, including a response to the probation invitation letter (pages 93 to 121 of the Claimant’s bundle) do not refer to race discrimination. Professor Ait-Boudaoud arranges to meet the Claimant on the 26 June 2023. The meeting is arranged for then because Professor AitBoudaoud had been on compassionate leave until the 10 June 2023 and the Claimant was then on leave for 2 weeks from the 12 June 2023 (page 412 and paragraph 6 of Professor Ait-Boudaoud’s witness statement). With that context the timings for what happened are not unreasonable and we do not find that Professor Ait-Boudaoud has failed to respond for a long time as alleged by the Claimant. 226. 4.16 On 26 June 2023, the Claimant held a meeting with Dr Djamel AitBoudaoud, Dean of Faculty, to discuss the matter and asked for evidence to support the critical probation letter of 2 June 2023 and to reduce contact between him and Dr Khalil Alkadhimi. The Dean failed to do both when he should have done both. The Claimant should not have received the letter of 2 June 2023 which was critical of him. He should not have had his probation challenged.[227]About this allegation we accept as submitted by Respondent’ Counsel in paragraph 50.16 of his written closing submissions that the Claimant has not established any basis for alleging that Professor Ait-Boudaoud should have provided evidence for the concerns expressed by Dr Alkadhimi in his letter of 2 June 2023 or that there was any kind of obligation on him to reduce contact between Dr Alkadhimi and the Claimant. The evidence shows Professor AitBoudaoud considered the Claimants complaint and advised him to follow the University policies (which he had not done) and speak to HR (page 423) which is the correct process. We also note, as recorded in the transcript of the meeting on the 26 June 2023 the Claimant confirms that … “I didn’t say I raise discrimination, I said I have issue with my line manager and ask for formal investigation.” (page 415), the Claimant is not claiming discrimination or specifically race discrimination. 228. 4.17 On 15 July 2023, Dr. Khalil Alkadhimi sent an email to other colleagues (secretary and IT) but bcc’ing the Claimant asking for the return of his equipment even though he was still working his notice period. The equipment was return on 1 August 2023. The Claimant should not be treated like this.[229]The email states that the Claimant should return his equipment before he leaves the Respondent which, in the case of the Claimant, would be by the 31 August 2023, the leaving date agreed between the Claimant and the Respondent. Based on the content of the email and the context in which it is sent, the Claimant has not proven this allegation, that he should not be treated like that. The Claimant was treated in the same was as all other leavers at that time. 230. 4.18 On 2 August 2023, Dr. Salem Aljareh cc’d all academic staffs of school into an email to the Claimant asking for the marking forms for the resit of 2 × MSc students. There was no basis for cc’ing it.[231]The email from Dr Aljareh at page 443 confirms that it was a mistake, and he must have clicked the reply to all. This is a mistake that can happen, and the Claimant acknowledged that he had accidently clicked reply to all. With this evidence there is nothing to prove that what happened was related to race or because of the Claimant’s race.[232]With the findings we have made we do not find that the Claimant has proven matters as he alleges and where he has done so he has not discharged the necessary burden of proof that the things found to have happened related to race or were because of race. In any event we accept the reasons presented by the Respondent. Therefore, the complaints of harassment related to race and direct race discrimination all fail and are dismissed.[233]As to the complaint of victimisation.[234]We do not find that the Claimant has proven a protected act (considering in particular the case authority of Durrani).[235]What the Claimant says at the meeting on the 31 May 2023 does not expressly refer to race discrimination, nor impliedly in our view. We also note that Dr Alkadhimi is concerned with the way the Claimant raised the matter.[236]The emails that follow the meeting between the Claimant and Dr Prabhu (pages 337 to 342) do not refer to race discrimination expressly and in our view do not imply it either. For example, when asked by Dr Prabhu … “It seemed that the statement "You were taking different way for different colleagues for one thing" is again making accusations. What are you talking about here?”. The Claimant replies … “My question is the answer to "You were taking different way for different colleagues for one thing". So if you think it is another prosecution, that is your decision.” (page 339). Then when asked the same question by Dr Prabhu the Claimant replies … “You did not talk to me about these two modules. But you talk to Oghanovo about these two modules. This is what you have already stated in your email.”.[237]Dr Prabhu confirmed in cross examination that the first he became aware he was accused of race discrimination was when this Employment Tribunal claim was served on him.[238]Even if we are wrong and what the Claimant has proven does amount to a protected act, we find that the letter Dr Alkadhimi sends is not because of (or significantly influenced by) the Claimant referring to discrimination. It is Dr Alkadhimi’s concerns about the Claimant’s performance in respect of his refusal to support with Dr Roy’s work (which happened before the meeting on 31 May 2023) and his communications with colleagues (the emails that followed the meeting on 31 May 2023) and including shouting out the word discrimination. It is not because of, or significantly influenced by the Claimant using that word.[239]For these reasons the complaint of victimisation fails and is dismissed.[240]With these findings we do not need to consider the time limit jurisdictional questions.[241]Considering then the complaints of breach of contract: 242. 11.1 When the Claimant was offered the job in March 2022, the Head of School, Professor Peter Kyberd, had agreement with the Claimant which asked the Claimant to develop and deliver two new modules. The Claimant had already developed and delivered these two new modules, and had already received positive feedback from students. However, Dr. Khalil Alkadhimi slandered the Claimant regarding this on 31 May 2023 and 2 June 2023, respectively.[243]This is not an allegation of discrimination, and the Tribunal does not have jurisdiction to determine allegations of slander. As a breach of contract claim this also does not appear to fall within the jurisdiction of the Tribunal as permitted by the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 SI 1994/1623. In any event what Dr Alkadhimi says is supported by the documents he relies upon. 244. 11.2 On 19 May 2023, the Claimant was suddenly informed to teach the Advanced Battery and Fuel Cell Technologies (M31915) without any consultation with the Claimant.[245]What is alleged has not been proven. Further, as a breach of contract claim this also does not appear to fall within the jurisdiction of the Tribunal as permitted by the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 SI 1994/1623. 246. 11.3 On 4 August 2023, Dr David Ndzi suddenly sent an official letter to the Claimant to bring forward the end date of employment from 31 August 2023 to 3 August 2023, without good reason.[247]We also consider this matter in relation to the complaint of unauthorised deductions of wage.[248]There is no dispute that the Claimant’s employment was ended on the 3 August 2023. The Respondent has dismissed the Claimant before the agreed leaving date of the 31 August 2023. With the termination date being the 3 August 2023, there is no further pay due to the Claimant other than accrued holiday, unless he was dismissed in breach of contract. On that basis there cannot be an unauthorised deduction of wages as such wages would not be properly payable to the Claimant after the 3 August 2023 (save for accrued but untaken holiday) which was paid to the Claimant.[249]The Claimant’s complaint of unauthorised deductions therefore fails and is dismissed.[250]As the Respondent has terminated the Claimant’s employment without full notice it is for the Respondent to prove that the Claimant was in fundamental breach.[251]The letter terminating the Claimant’s employment acknowledges that the Claimant had completed the tasks he was required to do. Professor Ndzi did not identify any other tasks that were outstanding from the Claimant at this point.[252]The termination letter records … “Please note that being absent from work without authorised leave is a disciplinary matter and could impact any future engagement with the University. I will however honour this and take 3rd August as your last day of work and pay you up to that date.”.[253]The Respondent has not proven that the Claimant was absent from work without authorised leave. The Claimant did complete the tasks he was asked to do, and it was acknowledged by HR that the handing back of his university equipment when he did may be because the Claimant has confused the facts (page 453). This was never put to test as a disciplinary matter.[254]For all these reasons the Claimant’s complaint of breach of contract fails and is dismissed, save for the complaint concerning notice pay which succeeds because the Respondent has not proven the Claimant was in fundamental breach.[255]Matters of remedy in respect of this successful complaint are still to be determined but appear to be notice pay for the period 4 August 2023 to 16 August 2023 (the date before the Claimant commenced a pre-booked holiday). Approved by: Employment Judge Gray Dated 11 June 2025 Judgment sent to Parties on 23 June 2025 By Mr J McCormick ANNEX A – THE ISSUES Jurisdiction – time limits
Remedy
[1]Has the Claimant brought his claims within the time limit set by Section 123(1) of the Equality Act 2010? This gives rise to the following sub-issues:1.1 What was the date of the act to which the complaint relates?1.2 Was the act to which the complaint relates an element of conduct extending over a period? If so, when did that period end?1.3 Insofar as the complaint relates to a failure to do something, when did the Respondents decide on it?[2]If the Claimant has not brought his claims within the relevant time limit, is it just and equitable for the Employment Tribunal to extend time for the presentation of the complaint pursuant to section 123(1)(b) of the Equality Act 2010? Race Discrimination/Harassment related to race[3]The Claimant is Chinese. Acts of Discrimination/harassment These will be considered first as to whether they amount to harassment. If not harassment, they will then be considered as to whether they amount to direct discrimination[4]Did the Respondents do the following alleged acts or omissions?4.1 On 1 November 2022, having been approached by the Claimant, Dr. Khalil Alkadhimi insisted asking the Claimant to talk to Dean first about the possibility of the Claimant being promoted (to professor or reader), even if the Claimant told him that on 28 October 2022 the Claimant had been told by Professor Jeremy Howells (Deputy Vice- Chancellor) the right procedure is to talk to him first and then Dean. However, Dr. Shanker Prabhu got promotion to senior lecturer after Dr. Khalil Alkadhimi became the interim Head of School in November 2022 but he was not suitable/fit for that position. The Claimant was not considered for a professor/reader role. Dr Alkadimi did not give him the any information about applying (such as the standard or criteria) and said the Claimant had to speak to the Dean first, when it should have first been discussed with Dr Alkadhemi. The Claimant had no way to talk to the Dean under the procedure, he needed the support of Dr Alkadhemi first. The Claimant’s application did not progress because of this. The Claimant says he was treated differently to Dr4.2 On 7 November 2022, Dr. Khalil Alkadhimi perversely told the Claimant that the finance staff should sign the Claimant’s relocation form first and then him, contrary to the right procedure shown by the relocation form which is also confirmed by HR, the University payment section and the Faculty payment section on the same day. The Claimant expressed his worries to both the University payment section and the Faculty payment section.4.3 On 2 March 2023, Dr. Khalil Alkadhimi allocated time to Dr. Anton Hettiarachchige Don to start writing the APEX project. On 19 April 2023, the Claimant indicated to start writing on the APEX project but was not allocated time.4.4 On 19 April 2023, Dr. Khalil Alkadhimi asked the Claimant to help cover Dr. Amitava Roy’s duties. After the Claimant provided details of his current work, Dr. Khalil Alkadhimi immediately said in front of 3 other colleagues that he was disappointed with the Claimant, that he will retire soon, the Claimant had mortgage to pay and child to raise, and that if the Claimant could not do it, the Claimant can leave. Dr. Khalil Alkadhimi’s words made the Claimant very scared and upset.4.5 By reason of the behaviour of Dr Khalil Alkadhimi on 19 April 2023 and also because Dr Khalil Alkadhimi is in charge of the Claimant’s probation, on 12 May 2023 the Claimant felt obliged to agree to help he did not have time to do.4.6 On 19 May 2023, Dr Shanker Prabhu sent an email to the Claimant and Dr Oghenovo Okpako informing them of the teaching modules they were allocated for the next academic year. As he admitted on 31 May 2023, Dr. Prabhu had discussed this with Dr Okpako and had focused on addressing Dr Okpako’s concerns. Dr Prabhu had not consulted the Claimant and did not care about the Claimant’s concerns.4.7 On 19 May 2023, Dr Shanker Prabhu stated in an email to Dr Khalil Alkadhimi that the Claimant did not want to attend the meeting on Monday as he was writing proposals until 4 June, when in fact the Claimant had told Dr Shanker Prabhu that he could not attend the meeting on the specified date.4.8 On 19 May 2023, Dr. Khalil Alkadhimi gave the Claimant 1 minute to choose a module to teach whereas Dr Oghenovo Okpako was given more than a week to state his preference. On 3 October 2022, Dr. Shanker Prabhu was allocated one module but he rejected it.4.9 On 30 May 2023, Dr Khalil Alkadhimi sent an email to renewable energy team to seek help to cover Dr. Amitava Roy’s duty, that is course work and exams. He asked Dr Shanker Prabhu to explain what help was needed. Dr Prabhu did not do that. Instead, without consulting with the Claimant, Dr Prabhu produced a table showing only the marking load which is only part of the Claimant’s workload. From the table Dr Prabhu implied that the Claimant was the only member of staff with availability to help. Dr Alkadhimi then took the table and asked the Claimant to help based on the table. The Claimant said he could not cover all the course work and exams because he had annual leave for 2 weeks from 12 June 2023. Dr Alkadhimi asserted that the Claimant was refusing to help and threatened the Claimant with being reported to the Dean and the University.4.10 On 17 March 2023, after the Claimant reported his second paper on 16 March 2023, Dr. Khalil Alkadhimi replied, “Please remember that the Faculty is encouraging all research active staff to publish 4* papers in very well-known journals with high impact.”. However, this requirement is for above Senior Lecturer level and the Claimant is Senior Lecturer.4.11 The Claimant and his colleague Dr Oghenovo Okpako are new staffs. Dr. Khalil Alkadhimi had provided a lot of support to Dr Oghenovo Okpako during his probation but Dr. Khalil Alkadhimi did not do the same to the Claimant. Dr. Alkadhimi counted earlier publications published at other universities by Dr. Oghenovo Okpako into probation assessment, but not current papers published by the Claimant at Portsmouth into his probation assessment.4.12 During the academic year 2022-2023, the Claimant was responsible for two new core renewable energy modules while Dr Shanker Prabhu, Dr Amitava Roy and Dr Sourav Khanna were responsible for only one. His workload was and/or responsibility was heavier.4.13 When developing the new module-Sustainable Transport systems, the Claimant did not receive any help from Dr. Khalil Alkadhimi or Dr Shanker Prabhu, while Dr. Oghenovo Okpako was given time to develop the new module-Advanced Battery and Fuel Cell Technologies.4.14 On 7 June 2023, the Claimant asked HR (Bechi Forrest) to produce the evidence in support of the 2 June 2023 probation letter which was critical of him. He further asked for HR to arrange it such that there was reduced contact between him and Dr. Khalil Alkadhimi. HR said that they had not seen the evidence and they had no right to reduce the contact. They should have provided the evidence or said there was no evidence. They should have protected the Claimant from Dr. Alkadhimi.4.15 On 5 June 2023, the Claimant reported Dr Khalil Alkadhimi’s unacceptable behaviour and Dr. Alkadhimi’s critical probation letter of 2 June 2023 with relevant documents to Dr Djamel Ait-Boudaoud, Dean of Faculty. However, Dr Djamel AitBoudaoud has no response for a long time.4.16 On 26 June 2023, the Claimant held a meeting with Dr Djamel Ait-Boudaoud, Dean of Faculty, to discuss the matter and asked for evidence to support the critical probation letter of 2 June 2023 and to reduce contact between him and Dr Khalil Alkadhimi. The Dean failed to do both when he should have done both. The Claimant should not have received the letter of 2 June 2023 which was critical of him. He should not have had his probation challenged.4.17 On 15 July 2023, Dr. Khalil Alkadhimi sent an email to other colleagues (secretary and IT) but bcc’ing the Claimant asking for the return of his equipment even though he was still working his notice period. The equipment was return on 1 August 2023. The Claimant should not be treated like this.4.18 On 2 August 2023, Dr. Salem Aljareh cc’d all academic staffs of school into an email to the Claimant asking for the marking forms for the resit of 2 × MSc students. There was no basis for cc’ing it. Harassment – s.26 Equality Act 2010[5]Did any of the above alleged treatment amount to the Respondents engaging in unwanted conduct?[6]If so, did any such unwanted conduct relate to the Claimant's race?[7]If so, did such conduct have the purpose or effect of violating the Claimant's dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? In determining this, the Tribunal must take into account the perception of the Claimant, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Direct Discrimination – s.13 Equality Act 2010[8]If so, did any of the above alleged conduct constitute the Respondents treating the Claimant less favourably than they treated others whose circumstances are not materially different to those of the Claimant? Where there is no named comparator, the Claimant relies upon a hypothetical comparator.[9]If so, was such treatment because of the Claimant's race? Breach of contract (Extension of Jurisdiction Order 1994)[10]Did this claim arise or was it outstanding when the Claimant’s employment ended?[11]Did the Respondent do the following:11.1 When the Claimant was offered the job in March 2022, the Head of School, Professor Peter Kyberd, had agreement with the Claimant which asked the Claimant to develop and deliver two new modules. The Claimant had already developed and delivered these two new modules, and had already received positive feedback from students. However, Dr. Khalil Alkadhimi slandered the Claimant regarding this on 31 May 2023 and 2 June 2023, respectively.11.2 On 19 May 2023, the Claimant was suddenly informed to teach the Advanced Battery and Fuel Cell Technologies (M31915) without any consultation with the Claimant.11.3 On 4 August 2023, Dr David Ndzi suddenly sent an official letter to the Claimant to bring forward the end date of employment from 31 August 2023 to 3 August 2023, without good reason.[12]Was that a breach of contract?[13]How much should the Claimant be awarded as damages? Unlawful Deduction from Wages[14]On 4 August 2023, Dr David Ndzi suddenly sent an official letter to the Claimant to bring forward the end date of employment from 31 August 2023 to 3 August 2023, without good reason. This led to the illegal deduction in pay to the Claimant. Was this an unlawful deduction from wages within the meaning of s.13 of the Employment Rights Act 1996? Remedy Discrimination(a) Should the Tribunal make a recommendation that the Respondent take steps to reduce any adverse effect on the Claimant? What should it recommend?(b) What financial losses has the discrimination caused the Claimant?(c) Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job?(d) If not, for what period of loss should the Claimant be compensated for?(e) What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that?(f) Has the discrimination caused the Claimant personal injury and how much compensation should be awarded for that?(g) Is there a chance that the Claimant’s employment would have ended in any event? Should their compensation be reduced as a result?(h) Should interest be awarded? How much? ANNEX B – THE AMENDMENT APPLICATION 1. The Claimant applied on the first day of final hearing to add a complaint of victimisation asserting that he did a protected act on 31 May 2023 (paragraph 40 of his witness statement). The “protected act” matter is also referred to in paragraph 41 of the witness statement of Dr Alkadhimi and paragraph 20 of Dr 2. The Claimant submitted that he complains about the critical probation letter dated 2 June 2023 that Dr Alkadhimi sent without evidence as a consequence of the Claimant raising discrimination against Dr Prabhu on 31 May 2023. He submitted that the list of issues should be amended as it is in the interests of justice. 3. The Claimant was asked to clarify if he refers to relevant matters in his claim forms. The Claimant referred us to both grounds of claim, in the first, paragraph 8 (page 22) and in the second paragraphs 41, 44 and 45 (page 43) although on further scrutiny confirmed paragraph 45 was not related. 4. The Claimant was asked why he was applying to amend now and not before. He confirmed that he checked procedure after his hearing that took place in front of Employment Judge Livesey and became aware of the Court of Appeal decision of Mervyn -v- BW Controls Limited EWCA Civ 303. From that he understood that the Employment Tribunal can amend a list of issues when dealing with a litigant in person to reflect the Claimant’s claim as submitted. 5. The Respondent submitted it had two objections and that the application should be refused:a. First as to the timing and manner of the application (Selkent Bus Company Ltd v Moore [1996] ICR 836 EAT), and that it was extraordinary that the Claimant is now applying to add a new head of claim. The Claimant has not made a victimisation claim in his pleading, it is not in the list of issues. The Claimant could have made this application at the first, second or third preliminary hearing but chose not to. Or, before or after those hearings but chose not to. Employment Judge Livesey is clear that the list of issues is agreed and final. No victimisation claim is found in that document at all. If this is not an example, don’t know what is, this is to the detriment of the Respondent.b. Second, there are real practical consequences (Vaughan v Modality Partnership UKEAT/0147/20/BA(V)). Whatever the Claimant points to now the Respondent’s witnesses have not answered a claim of victimisation. The nature of this allegation is very different because the Claimant asserts he was treated determinately because of race and related to race, but now wants to say it is because he complained about a colleague. The Respondent would have to amend witness statements, there would be work to be done. 6. Our decision: 7. There is no express provision under the Employment Tribunal Procedure Rules 2024 dealing with amendments. An amendment application seeking to add facts or claims is treated as a case management order under Rule 30. 8. Whether to grant the application is a matter of judicial discretion. In exercising discretion, tribunals must have regard to all the circumstances, in particular any injustice or hardship which would result from the amendment, or a refusal to make it (Selkent Bus Company Ltd v Moore [1996] ICR 836 EAT). 9. Relevant factors include: a. The nature of the proposed amendment; b. The applicability of time limits; andc. The timing and manner of the application. 10. As to the nature of the amendment there are three types to consider: a. amendments which are merely designed to alter the basis of an existing claim, but without attempting to raise a new distinct head of complaint; b. amendments which add or substitute a new cause of action but one which is linked to, or arises out of the same facts as, the original claim (often called “relabelling”); and c. amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all. 11. Any mislabelling of the relief sought is not usually fatal to a claim. Where the effect of the proposed amendment is simply to put a different legal label on facts that are already pleaded, permission will normally be granted. 12. We consider it to be a relabelling of facts already asserted within the claims forms as referred to by the Claimant. 13. As we consider it to be a relabelling the applicability of time limits does not apply (Foxtons Ltd v Ruwiel UKEAT/0056/08). 14. The Claimant has explained that the reason he makes the application now is he only recently became aware of a Court of Appeal decision (Mervyn -v- BW Controls Limited EWCA Civ 303) that said a list of issues could be amended if it did not reflect the claim made by a litigant in person.[15]Considering the balance of prejudice. A balancing exercise always requires express consideration of both sides of the ledger, both quantitatively and qualitatively. It is not merely a question of the number of factors, but of their relative and cumulative significance in the overall balance of justice (Vaughan v Modality Partnership UKEAT/0147/20/BA(V)). Having considered the witness statements these are matters already addressed. Dr Alkadhimi says in his witness statement why he writes what he does in the letter dated 2 June 2023. We do not consider there is real prejudice demonstrated. We therefore permit the application.[17]It is acknowledged that Respondent’s Counsel is permitted to ask supplemental questions of the Respondent’s witnesses if required. RECONSIDERATION JUDGMENT The application for reconsideration is refused.[1]The Claimant has by email dated 4 July 2025 applied for a reconsideration of the reserved Judgment dated 11 June 2025 which was sent to the parties on the 23 June 2025.[2]The grounds of reconsideration are set out in a 32-page document attached to the Claimant’s email, which sets out 10 pages of submissions and then attaches 5 further documents to make up the 32 pages. The Claimant then submitted a further copy document (dated 3 April 2025) by email dated 6 July 2025.[3]Considering the Employment Tribunal Procedure Rules 2024 (“the Rules”).[4]Under Rule 69 an application for reconsideration must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The Claimant’s application has been submitted within the relevant time frame.[5]The grounds for reconsideration are only those set out in Rule 68(1), namely that it is necessary in the interests of justice to do so.[6]Pursuant to Rule 70(2) if the Tribunal considers that there is no reasonable prospect of the original decision being varied or revoked that application shall be refused and the parties informed of that refusal.[7]The Tribunal consider that there is no reasonable prospect of the original Case Numbers: 1400443/2024 and 1400569/2024 decision being varied or revoked so refuse the application. Within the Claimant’s submissions he expresses that he disagrees with the decision reached. However, all the points raised by the Claimant were raised at the hearing or could have been. All witness evidence presented to the Tribunal was sworn in as true by the relevant witness. The Claimant failed to discharge the relevant burden of proof.[8]The application for reconsideration is therefore refused. Approved by: