Ms O Akinleye and Mr A Olumade v Basingstoke and Deane Borough Council and others: 1402852/2018 and others
EMPLOYMENT TRIBUNALS
Case No 1402852/2018Venue CHAMBERS AT SOUTHAMPTONHearing 16 September 2019
Between
Ms O Akinleye and Mr A OlumadeClaimantBasingstoke and Deane Borough Council and othersRespondent
Before
Employment Judge GrayDate 31 March 2022
JUDGMENT
ON APPLICATION FOR RECONSIDERATION The judgment of the tribunal is that the Claimants’ application for reconsideration is refused because there is no reasonable prospect of the decision being varied or revoked.
REASONS
Introduction
[1]The Claimants have applied for a reconsideration of the judgment dated 20 August 2019 which was sent to the parties on 28 August 2019 (“the Judgment”). There are three attachments to their email to the Tribunal dated 10 September 2019, although it is the Preliminary Judgment Reconsideration document (consisting of 5 pages including a cover sheet) that appears to contain the Claimants’ reasons for applying for the reconsideration.[2]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”). Under Rule 71 an application for reconsideration under Rule 70 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 application was therefore received within the relevant time limit.[3]The grounds for reconsideration are only those set out in Rule 70, namely that it is necessary in the interests of justice to do so.[4]The grounds relied upon by the Claimants appear to be in broad terms:a. That the Claimants should have been allowed to cross examine Mr Draper and Mrs Tatum at the preliminary hearing.b. That certain findings of fact as to continuing acts and the knowledge of the Claimants were wrongly made.[5]On reviewing the grounds of reconsideration and the documents submitted by the Claimants, they appear to be adducing the same evidence, with supplemental submissions. However, they do not in my view disturb the findings of fact that I have already made, which were key to the decision I reached. Further, the complaints the Claimants have with Mr Draper and Mrs Tatum have been permitted to proceed to final hearing, so they will have opportunity to challenge their evidence at that stage.[6]The earlier case law suggests that the interests of justice ground should be construed restrictively. The Employment Appeal Tribunal (“the EAT”) in Trimble v Supertravel Ltd [1982] ICR 440 decided that if a matter has been ventilated and argued then any error of law falls to be corrected on appeal and not by review. In addition, in Fforde v Black EAT 68/80 (where the applicant was seeking a review in the interests of justice under the former Rules which is analogous to a reconsideration under the current Rules) the EAT decided that the interests of justice ground of review does not mean “that in every case where a litigant is unsuccessful he is automatically entitled to have the tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order”.[7]More recent case law suggests that the "interests of justice" ground should not be construed as restrictively as it was prior to the introduction of the "overriding objective" (which is now set out in Rule 2). This requires the tribunal to give effect to the overriding objective to deal with cases fairly and justly. As confirmed in Williams v Ferrosan Ltd [2004] IRLR 607 EAT, it is no longer the case that the "interests of justice" ground was only appropriate in exceptional circumstances. However, in Newcastle Upon Tyne City Council v Marsden [2010] IRLR 743, the EAT confirmed that it is incorrect to assert that the interests of justice ground need not necessarily be construed so restrictively, since the overriding objective to deal with cases justly required the application of recognised principles. These include that there should be finality in litigation, which is in the interest of both parties.[8]I have also noted Lindsay v Ironsides Ray & Vials [1994] ICR 384, where Mummery J held that the failure of a party’s representative to draw attention to a particular argument will not generally justify granting a review.[9]In my judgment, these principles are particularly relevant here.[10]Accordingly, I refuse the application for reconsideration pursuant to Rule 72(1) because there is no reasonable prospect of the Judgment being varied or revoked.
BACKGROUND
[11]At the start of the hearing I was provided with the following to read until the 2pm start time of oral evidence and submissions:a. Witness statements for the Claimants and for Mrs Tatum and Mr Draper for the Respondent.b. First and second Skeleton arguments from the Claimants and the Respondents.c. A copy of the bundle from 20 May 2019 hearing running to 217 pages.d. A supplemental bundle of documents since 20 May 2019 running from 217 to 323 pages.e. A bundle of documents labelled for the 12 July 2019 hearing, when this hearing was originally due to take place, running to 217 pages.[12]On confirming that I had all I should and discussing the issues to be considered at this hearing it became apparent that I had the up to date statement for Ms Akinleye but not for Mr Olumade. This was provided and considered before Mr Olumade then gave his evidence.[13]I checked with the Claimants that the witness statements they had presented for this hearing contained all the facts that they wanted to refer to in this Case Management Preliminary Hearing. They confirmed that they did. However, after Mr Olumade’s evidence including his cross examination, it was apparent that some of the factual details relevant to the preliminary issues were included in the Claimants’ continuing acts documents which were within the supplemental bundle. After representations from the Claimants and the Respondent’s Counsel it was agreed that Mr Olumade would be invited to provide the facts contained in his continuing acts document as an additional statement and he was sworn in again to do this and the Respondent permitted an opportunity to cross-examine on the content of that statement.[14]On the second day of the hearing when Ms Akinleye gave her evidence she submitted both her witness statement and the facts from her continuing acts document as her evidence in chief.[15]At the conclusion of the Claimants’ evidence it was expressly confirmed by them that they had presented all the evidence they wanted to do so on the preliminary issues.[16]Counsel for the Respondent confirmed that he had reflected on the relevance of calling Mrs Tatum and Mr Draper to give evidence on the preliminary issues to be determined at this hearing. Their evidence related to the “Mr Draper allegations”. It was therefore noted by the parties and myself that it should be avoided for this to become a trial within a trial of the most recent discrimination allegations, when if there is jurisdiction to hear them, they should be considered by a full panel. Respondent’s Counsel confirmed that he would not be submitting the statements of Mrs Tatum and Mr Draper.[17]All parties had named a number of case authorities in their skeleton arguments and submissions documents that were submitted at the start of this hearing. Before the parties made their final submissions, they were asked to consider the observations of the Court of Appeal in Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96 CA, when considering continuing acts. The parties were reminded that the Tribunal should look at the substance of the complaints in question, as opposed to the existence of a policy or regime, and determine whether they can be said to be part of one continuing act by the employer. They were also reminded of the general principals in Aziz v FDA 2010 EWCA Civ 304, CA where the Court noted that in considering whether separate incidents form part of an act extending over a period, ‘one relevant but not conclusive factor is whether the same or different individuals were involved in those incidents’. The parties were also asked to consider the case of Hale -v- Brighton and Sussex University Hospitals NHS Trust, which appeared relevant to the matters in this hearing.[18]There was then a short adjournment before the Respondent’s Counsel presented his submissions on all the preliminary issues and then the Claimants presented theirs, having heard what was being argued by the Respondent’s Counsel.
FACTS
[19]I found the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to the factual and legal submissions made by and on behalf of the respective parties.[20]Mr Olumade’s witness statement for this hearing, consisting of 10 pages (including a cover sheet), provides a chronology through the documents in the bundle of documents labelled for the 12 July 2019 hearing. This witness statement does not present evidence that the numerous alleged incidents of discrimination are linked to one another, nor does it present evidence of a discriminatory state of affairs.[21]There are some factual details as to continuing acts and reasons why it may be just and equitable to extend time in Mr Olumade’s continuing acts document at pages 268 to 280 of the supplemental bundle. I have noted the following facts that appear relevant to the issues for this preliminary hearing (paragraphs 7 to 12 of the continuing acts document):a. In 2006 when he first applied for a Private Hire Drivers licence (PHD) it was granted.b. In October 2009 he reapplied for the PHD and he says he then had to scale “unlawful requirements”. Then, because he challenged the requirements he says he became a target for discrimination.c. Mr Olumade then says that the Respondent has been responsible for an ongoing situation or a continuing state of affairs.d. He makes reference that up until May 2013 Africans were not being licenced as Hackney Carriage Drivers (HCD), and he had to ask for his test paper to be marked again. While his remarking was going on Ms Akinleye was admitted as the first black African HCD (in May 2013).e. Mr Olumade then says that ever since the licencing of Africans as HCDs, the Respondent has failed to promote equality and diversity, and he says that it has in fact created a hostile environment for African HCDs by its acts of favouring white taxi drivers over African, acceding to requests of white taxi drivers to investigate and have a word with or speak to the African drivers.[22]These assertions made by Mr Olumade suggest that the potential complaints of racial discrimination can only arise for both of them from 2013. Mr Olumade provides no evidence to suggest he was at any point from 2006 without a licence and suffered loss. I have also noted that based on Mr Olumade’s own evidence Ms Akinleye was licensed in 2013 to become the first back African HCD. This does not support that the Respondent was not granting HCD licences to black Africans, when the Claimants are considered together, both identifying as black African.[23]During the Claimants’ oral evidence, the allegation of their immigration status being checked was raised. Mr Olumade referred to receiving a letter (allegation 38) asking for him to prove his immigration status. The Respondent says these letters were sent to all of its drivers on the back of a statutory update to complete right to work checks. Ms Akinleye said that she was aware of some drivers not getting such letters, including herself. Again, as the Claimants both identify as black African the fact that Mr Olumade says he suffered a detriment on the grounds of his race by getting such a letter, this is not supported by Ms Akinleye not getting the same letter. There does not appear to be a difference on racial grounds based on the Claimants’ own evidence.[24]Ms Akinleye in her witness statement, consisting of 7 pages (including a cover sheet), deals predominantly with the “Mr Draper allegations” – so from 22 December 2017 onwards (4 pages out of the 6 pages that include factual evidence). It refers to the alleged hijacking of the Subject Access Request by Mr Draper, the alleged challenges at the formal interview on the 22 December 2017, conducted by Mr Draper and the alleged failings in relation to the PACE interviews, within the control of Mr Draper. The start of those complaints is the interview on the 22 December 2017. This is consistent with the way the matter is referred to in Mr Olumade’s witness statement at paragraph 24 where he refers to the detrimental things he states happened to him at that interview.[25]The last two pages of Ms Akinleye’s statement then refers to “Other Incidents- Vehicles” and “Other Issues” and refers to matters from 2011 to October 2018. As with Mr Olumade’s statement it does not present evidence that these other incidents or issues are linked to one another, nor does it present evidence of a discriminatory state of affairs. I have noted two key factual assertions though. Firstly, that in relation to Ms Akinleye’s claim of sex discrimination the only facts that appear to be directly referred to as to an alleged detriment on the grounds of her sex are where she says that between the 25 July 2016 to 17 January 2018 she was referred to derogatorily and inappropriately as “Olumade’s wife”, “her” and “wife”. There is no factual assertion that this has continued beyond the 17 January 2018. Secondly, that the only apparent detriment in October 2018 to her (which is subject to the Claimants’ amendment application) is that she received a letter from the Respondent requesting a DBS disclosure, that was not due at that time.[26]Ms Akinleye’s continuing act document (at pages 246 to 250 of the supplemental bundle) repeats broadly the same factual points that Mr Olumade says in his continuing acts document (see paragraphs 2 and 3 of Ms Akinleye’s document).[27]As was highlighted by the answers given to the Respondent’s cross examination of the Claimants and in the Respondent’s submissions, the conduct about which the Claimants complain extends in the case of Mr Olumade over a period of nine years and in the case of Ms Akinleye over a period of seven years. It is alleged to have involved at least eight employees of the Respondent as well as numerous third parties (including licensed hackney carriage drivers, employees of Reading Borough Council, members of the public, and employees of Ashwood Academy) for whom the Respondent is not vicariously liable.[28]Further, as was confirmed by the Claimants during their cross examination there are also very lengthy gaps which occurred between the relevant events.[29]In the case of Mr Olumade there is a period of more than three years between complaints numbered 3 and 4, a further 11 months elapsed between complaints numbered 5 and 6, more than eighteen months elapsed between complaints number 6 and 7, a period of three months elapsed between complaints numbered 19 and 20 and a further period of four months elapsed between complaints numbered 32 and 33.[30]For Ms Akinleye there is a period of approximately eighteen months between complaints numbered 1 and 2, almost three years elapsed between complaints numbered 3 and 4, a further three months elapsed between complaints numbered 7 and 8, and a period of eight and a half months elapsed between complaints numbered 11 and 12.[31]The Claimants are both currently licensed, however they say that the investigations started against them (including the PACE interviews) with the interview on the 22 December 2017 are ongoing and this causes them to fear the loss of their licences, if they are found to not be a fit and proper person, at the conclusion of the process.[32]This does appear to factually connect what the Respondent started with the interview on the 22 December 2017 to date, but not connect what the Claimants assert happened before that. They are saying they fear the loss of their licence, not that it took more time to get it, or it was never granted, or that they are subject to taxi licence conditions which are unfair, all of which the Claimants acknowledge they would have sought remedy for through the Magistrates appeal process.[33]It is also of significance that based on the Claimants’ case and evidence as to the key alleged perpetrator of the recent alleged complaints (Mr Draper) he only started for the Respondent in November 2017.[34]As to facts in relation to the question of just and equitable, Mr Olumade refers to this at paragraph 30 of his continuing acts document (page 275), saying these issues were all revealed to him in his Subject Access Request on the 2 April 2018. This does seem to be the material reason factually why Mr Olumade argues his complaints were not submitted to the Tribunal until they were on the 30 July 2018 (having started the ACAS process on the 16 June 2018). As to the illness of himself and his son this relates to a focused period of 8 April 2018 to 29 June 2018 (page 276).[35]Ms Akinleye makes the same factual assertions in her continuing acts document (pages 248 and 249) save that she says the issues were revealed to her in her Subject Access Request on the 5 June 2018.[36]I have noted as fact that the periods of illness referred to by both Claimants are not continuous but broken into 7 periods. It is also of note that the Claimants were both able to commence the ACAS process in that time window, and neither present facts as to why the illness prevented them from lodging a claim earlier. I have also noted that a fit note for the relevant period for Mr Olumade (page 215 of the bundle labelled for the 12 July hearing) does not support he was too ill to submit his complaints. The fit note records that as of the 31 May 2018 Mr Olumade is fit for work except that he is unable to push a wheelchair.[37]It therefore appears to me that the material issue is the question of knowledge and I need to make findings of fact as to what the Claimants knew and when.[38]My findings of fact are important here and I have found from reviewing documents contemporaneous to the complaints the Claimants make and their responses to them in their oral evidence, that the Claimants do appear to have had knowledge of a right of complaint and the acts they could complain about, before their subject access request outcomes. They are as follows (as referred to from the 12 July labelled bundle):a. At page 5 of the bundle there is a note of a conversation that a Licencing Officer had with Mr Olumade in 2009. It is noted that Mr Olumade seemed to get agitated when the officer tried to leave and “then suddenly said he knew for a fact that this council did not give licences to black people”. Mr Olumade when questioned in crossexamination said that he did not say that, however this is a consistent comment that he repeats in his own witness statement and there is no reason I have seen evidentially to suggest that the writer of this report made it up.b. Mr Olumade was at the interview on the 17 February 2016 (pages 13 to 16).c. Mr Olumade received the letter at pages 19 and 20 around 9 March 2016 giving the outcome of the interview on the 17 February 2016.d. Mr Olumade now complains about the interview on the 17 February 2016, saying he complains now because he didn’t see the notes of the meeting until they were provided as part of his subject access request. However, he was at the interview and he did have the letter of outcome (pages 19 and 20 of the bundle dated 9 March 2016), which goes through all of the allegations. Clearly therefore, if Mr Olumade had issue with any of them, he would have known he had issue with them in March 2016.e. It is noted at page 23 in an email dated 28 June 2016 that Mr Olumade sent to the Licencing Team, where he is referring to a complaint about Thomas Cliff, at the conclusion of his last paragraph he says, “I told him that he was harassing me”. Again, this expresses an awareness by the Claimant as to what was going on or what he believed was happening at that time.f. At page 24, there is a further email dated 28 June 2016 from Mr Olumade, where he concludes in the penultimate paragraph “I am considering taking legal action against the perpetrators and might call Mr Andrew Wake as a witness”.g. Then at page 39 of the bundle there is a letter to Mr Olumade dated 16 September 2016 from Mrs L. Cannon in which in the middle of it says “any allegations that relate to criminal matters such as race, violence or harassment should be reported to the police. Thank you for your cooperation” and then this is expanded upon by a subsequent letter, again I believe from Mrs Cannon, but it’s not clear, at pages 40 and 41 of the bundle dated 28 September 2016 and it quotes from a previous letter saying, “I trust you have taken the letter, envelope and CCTV footage to the police and asked them to investigate as they relate to alleged harassment as opposed to licencing related matters”.h. Page 69 of the bundle was referred to in oral evidence and Mr Olumade says that this revealed to him that he had been subjected to discrimination. However, it’s unclear how such a document does reveal that. What it says when it’s read in its entirety is that Reading Borough Council believed it had good grounds to investigate why Mr Olumade was parked in a licenced vehicle in the Reading Borough Council taxi area.i. At pages 83 to 85 there is an important document. It is a corporate complaint submitted by Mr Olumade on the 23 January 2018 to the Respondent. It is a significant act to submit a corporate complaint and within that document (at page 84) he notes that it’s not good practice and it forms part of the issue at stake within taxi licencing department “- Institutional Racism”. Then on page 85 he says, “can the Licencing Department confirm whether they have liaised with the Race and Equality Department to discuss racial issues within the Licencing Department and amongst the Taxi Drivers.”j. At page 91 there is the outcome of that corporate complaint which was sent to Mr Olumade on the 2 March 2018. The fourth from last paragraph says “Having reviewed the evidence and the actions undertaken by the council, I cannot find any basis for your treatment or the investigations being racially biased. If you have further evidence, then we would welcome the opportunity to consider it”.k. At page 93 Mr Olumade has written an email to Councilor Laura James (dated 13 March 2018) and it makes reference to the Equality Act within that email. During cross-examination Mr Olumade confirmed that he was aware at that point of his rights to pursue complaints to the Employment Tribunal under the Equality Act.l. I have also noted (as raised in the Respondent’s skeleton submissions) that Mr Olumade did raise issues concerning DBS checks in May 2017 and this can be seen at pages 47 and 48.m. It is also of note that Mr Olumade was present at the interviews where the alleged “insensitive to faith” comment was made.[39]I have also noted that during the oral evidence from Ms Akinleye, she referred me to a document at page 29 which she says was one disclosed to her as part of her subject access request. Ms Akinleye says this shows the Respondent were storing complaints against her. However, on reading this document in its entirety, it is clear that the handwritten notes, which were confirmed as being of the Licencing Officer, note that Ms Akinleye has done nothing wrong, nothing has been proved or investigated.[40]I have also noted that there is clear overlap between the claims of Mr Olumade and Ms Akinleye. Their joint awareness of all these matters is clear and they appear to have been involved in writing each other’s documents and assisting each other with such writing. By way of example in the continuing acts document of Mr Olumade, at paragraph 11 of that at page 270 of the supplemental bundle, he refers to himself as the “first black African female” and repeats that again at paragraph 28 on page 272. This is important because their cases are intertwined and they appear to have full knowledge of each other’s claims.[41]The dates of the Claimants’ knowledge about the issues they complain all arise before the period of illness as noted above. Further, the extent of illness and how it impacts on the Claimants’ ability to put in a claim, is not clear. As already noted the fit-note at page 215 notes Mr Olumade is fit for work with an adjustment of not pushing wheelchairs.[42]It is also of note that the contemporaneous documents I have referred to, as well as suggesting the Claimants were aware of their rights and potential issues, do not appear to suggest a connected conduct. The 2009 document focuses on getting the licence. The interview in 2016 is with different individuals (Linda Cannon and Sheila Stevens) to those at the end of 2017 onwards. The 2016 complaints are against another driver (Thomas Cliff).[43]I have also noted that the Claimants’ oral submissions focused primarily, if not entirely, upon the allegations that they have in respect of Mr Draper, Mrs Tatum and Mr Wake in respect of matters which arose as a consequence of the investigation on the 22 December 2017 and the unconcluded PACE interviews. Both Mr Olumade and Ms Akinleye state this process is a challenge to their fit and proper persons status, which could put their licences at risk. This appears to be what they are aggrieved about and why they wish to pursue the matter to the Tribunal.[44]I have not been presented any evidence by the Claimants to support their assertions that it is just and equitable to extend time because they were misled by the Respondent; or were wrongly advised by the Respondent; or that the Respondent would not be at a significant disadvantage when seeking to defend all the complaints, which extend over a number of years, with significant gaps between them, and refer to a wide array of people, not all of which are employed by the Respondent or were employed at the relevant times.
LAW
[45]I have been referred to number of case authorities by name and general principals within the various written submissions and skeleton arguments of the parties. I was not provided with any copies of the authorities. I have therefore considered them, but refer in the summary of the law below to those authorities that are relevant to the issues to be determined in this preliminary hearing. I also noted that the authority highlighted by the Claimants in their oral submissions was Anyanwu v South Bank Students’ Union [2001] IRLR 305. CONDUCT EXTENDING OVER A PERIOD[46]Section 120 of the Equality Act 2010 confers jurisdiction on claims to employment tribunals, and section 123(1) of the Equality Act 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. Under section 123(3)(a) of the Equality Act conduct extending over a period is to be treated as done at the end of that period.[47]In Hendricks-v-Metropolitan Police Commissioner [2002] EWCA Civ 1686, the Court of Appeal established that the correct test was whether the acts complained of were linked such that there was evidence of a continuing discriminatory state of affairs. It is noted that “the burden is on [the claimant] to prove, either by direct evidence or by inference from primary facts, that the numerous alleged incidents of discrimination are linked to one another and that they are evidence of a discriminatory state of affairs”.[48]Conduct extending over a period is to be treated as done at the end of the period, however it is not sufficient for a claimant merely to assert that there is a continuing act or an ongoing state of affairs. There must be an arguable basis for contending that the complaints are so linked as to be continuing acts or to constitute an ongoing state of affairs Ma -v- Merck Sharp & Dohme Ltd [2008] EWCA Civ 1426.[49]One relevant feature (although not conclusive) is whether or not the acts were said to have been perpetrated by the same person (Aziz-v-FDA [2010] EWCA Civ 304).[50]The Court of Appeal’s decision in Aziz v FDA 2010 EWCA Civ 304, also dealt with the issue of on what basis should employment tribunals approach the question whether a claim is time-barred at a preliminary hearing under the Tribunal Rules 2013. The Court approved the approach laid down in Lyfar v Brighton and Sussex University Hospitals Trust that the test to be applied at the preliminary hearing was to consider whether the claimant had established a prima facie case, or, to put it another way, ‘the claimant must have a reasonably arguable basis for the contention that the various complaints are so linked as to be continuing acts or to constitute an ongoing state of affairs’.[51]In Lyfar the employment tribunal, exercising its case management powers, allowed only five of the complaints to be heard, dismissing the others as being out of time and deciding that it was not just and equitable to hear them. The Court of Appeal and the Employment Appeals Tribunal held that that the tribunal had applied the correct legal test, which was consistent with the language of Hendricks. The Employment Appeals Tribunal had been entitled to dismiss the appeal, having found that the tribunal had made a firm finding of fact that satisfied that test.[52]A similar approach was followed in Greco v General Physics UK Ltd EAT 0114/16. In that case the Appeal Tribunal held that, while six of the seven acts of sex discrimination about which G complained concerned her manager in some way, the manager’s involvement was not a conclusive factor and the employment tribunal had been entirely justified in finding that the seven quite specific allegations concerned different incidents that ought to be treated as individual matters. Accordingly, they were not to be considered as part of a continuing act and, in consequence, some were out of time. The tribunal had not erred in its approach to deciding that it was not just and equitable to extend the time limit for the allegations that had been presented out of time.[53]In Hale v Brighton and Sussex University Hospitals NHS Trust EAT 0342/16 an employment tribunal found that the decision to commence a disciplinary investigation against H was an act of discrimination, but it was a ‘one-off’ act and was therefore out of time. H appealed, arguing that the tribunal had been wrong to treat the decision to instigate the disciplinary procedure as a one-off act of discrimination rather than as part of an act extending over a period ultimately leading to his dismissal. Referring to Hendricks, the Employment Appeals Tribunal (EAT) observed that the tribunal had lost sight of the substance of H’s complaint. This was that he had been subjected to disciplinary procedures and was ultimately dismissed – suggesting that the complaint was of a continuing act commencing with a decision to instigate the process and ending with a dismissal. In the EAT’s view, by taking the decision to instigate disciplinary procedures, the Trust had created a state of affairs that would continue until the conclusion of the disciplinary process. This was not merely a one-off act with continuing consequences. Once the process was initiated, the Trust would subject H to further steps under it from time to time. The EAT said that if an employee is not permitted to rely on an ongoing state of affairs in situations such as this, then time would begin to run as soon as each step is taken under the procedure. In order to avoid losing the right to claim in respect of an act of discrimination at an earlier stage of a lengthy procedure, an employee would have to lodge a claim after each stage unless he or she could be confident that time would be extended on just and equitable grounds. However, this would impose an unnecessary burden on claimants when they could rely upon the provision covering an act extending over a period. The EAT therefore concluded that this part of H’s claim was in time. EXTENSION OF TIME[54]For this issue it is necessary to consider the factors in section 33 of the Limitation Act 1980 which are referred to in the British Coal v Keeble [1997] IRLR 336 EAT decision, namely:a. The length of and the reasons for the delay. The delay could be said to be about 9 years for Mr Olumade and 7 years for Ms Akinleye when they say matters started, although as asserted by the Claimants in their evidence, it could be looked at from 2013, which would put it as 5 years. Or, if taken from a clear date of awareness point, the corporate complaint on the 23 January 2018, it is four months.b. The extent to which the cogency of the evidence is likely to be affected by the delay.c. The extent to which the parties co-operated with any request for information.d. The promptness with which the Claimants acted once they knew the facts giving rise to the cause of action.e. The steps taken by the Claimants to obtain appropriate professional advice.[55]It is clear from the following comments of Auld LJ in Robertson v Bexley Community Service [2003] IRLR 434 CA 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".[56]The tribunal must consider the balance of prejudice and, in so doing, have regard to the potential merits of the claims (Rathakrishman v Pizza Express (Restaurants) Ltd [2016] IRLR 278). APPLICATION TO AMEND[57]The Claimants are seeking leave to amend their claims which are currently before the Tribunal, and the Respondent opposes that application.[58]The Claimants accept that the complaints they seek to include now are not in their original claim forms. These additional complaints are listed in the Supplemental Bundle at pages 250 for Ms Akinleye and pages 279 and 280 for Mr Olumade.[59]Ms Akinleye lists five amendments (new complaints) 2 pre-dating her claim form and 3 being in October 2018.[60]Mr Olumade lists eight amendments (new complaints) 6 pre-dating his claim form and 2 being in October 2018. One of the new complaints that Mr Olumade makes is for discrimination on the grounds of religion where in interviews with him on the 22 December 2017 and 23 March 2018 references are made to “an act of God” in relation to the vehicle damage complaint being raised against Mr Olumade.[61]Clearly as the Claimants are adding new complaints (and not relabelling those they have already made) the question of time limits also needs to be considered.[62]In Cocking v Sandhurst (Stationers) Ltd and anor [1974] ICR 650 NIRC Sir John Donaldson laid down a general procedure for Tribunals to follow when deciding whether to allow amendments to claim forms involving changing the basis of the claim, or adding or substituting respondents. The key principle was that in exercising their 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. This test was approved in subsequent cases and restated by the EAT in Selkent Bus Company Ltd v Moore [1996] ICR 836 EAT, which approach was also endorsed by the Court of Appeal in Ali v Office of National Statistics [2005] IRLR 201 CA.[63]The EAT held in Selkent Bus Company Ltd v Moore [1996] ICR 836 EAT: In determining whether to grant an application to amend, the Employment Tribunal must always carry out a careful balancing exercise of all the relevant factors, having regard to the interests of justice and to the relative hardship that would be caused to the parties by granting or refusing the amendment. Mummery J as he then was explained that relevant factors include:[64]The nature of the proposed amendment – The Claimants in this case accept that they are making entirely new factual allegations which change the basis of the existing claim by pleading new causes of action; and[65]The applicability of time limits – As a new claim or cause of action is proposed to be added by way of amendment, it is essential for the Tribunal to consider whether that claim or cause of action is out of time and, if so, whether the time limit should be extended; and[66]The timing and manner of the application - an application should not be refused solely because there has been a delay in making it as amendments may be made at any stage of the proceedings. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery.[67]The merits of the claim. It may be appropriate to consider whether the claim, as amended, has reasonable prospects of success. STRIKE OUT AND DEPOSIT ORDERS[68]The Respondent applies to strike out the Claimants’ claims on the basis of them having no reasonable prospects. This application is linked to the jurisdictional issues that arise from the question of time limits and also the argument that it is outside of the Tribunal’s jurisdiction due to section 120(7) of the Equality Act 2010.[69]Section 120(7) of the Equality Act 2010 reads “Subsection (1)(a) [as to Tribunal Jurisdiction] does not apply to a contravention of section 53 in so far as the act complained of may, by virtue of an enactment, be subject to an appeal or proceedings in the nature of appeal.[70]It is accepted by all parties in this case that issues as to the granting or revocation of a taxi licence are appealable to the Magistrates Court. It is also accepted by all parties in this case that complaints in relation to data protection are appealable to the Information Commissioner. The issue to consider therefore is whether the detriments I find to be in time, are outside the Tribunals jurisdiction as a consequence of section 120(7) and/or do not have reasonable prospects of success.[71]The Employment Tribunal Rules of Procedure 2013 are in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. Rule 37(1) provides that at any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on the grounds that it is scandalous, or vexatious, or has no reasonable prospect of success. Rule 39 provides that where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party ("the paying party") to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. Under Rule 39(2) the Tribunal shall make reasonable enquiries into the paying party's ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.[72]As a general principle, discrimination cases should not be struck out except in the clearest circumstances. In Anyanwu v South Bank Students’ Union [2001] IRLR 305 HL, Lord Steyn stated at para 24: “For my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plain cases. Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest”. Nonetheless Anyanwu confirms that in a case where the core of facts is undisputed, or in a “plain and obvious case”, the Tribunal may properly strike out a claim.[73]The finding of facts in this preliminary hearing are relevant to all the different preliminary issues I am to consider.[74]I have found that the Claimants evidence and submissions appear to draw a connection between the detriments they allege at and from the interview on the 22 December 2017.[75]I refer again to Mr Olumade’s continuing acts document where he states that white drivers are being preferred in investigations. From that the detrimental aspects of what Mr Olumade asserts seem to relate to him and Ms Akinleye being in an investigation process, since the interview on the 22 December 2017 (and the connected treatment), which if they were white taxi drivers they would not be in.[76]This causes them to fear they will lose their licences. This has not happened so it is of note that at this stage the Claimants have not suffered any financial loss. Plus, if they did lose their licences the Claimants acknowledge they would have a right of appeal to the Magistrates and it would be a matter outside of this Tribunals jurisdiction.[77]It is because of the way the Claimants have asserted their detriments as linked to the investigation hearing on 22 December 2017 that it appears to bring these within the Tribunals jurisdiction. It is the fear of losing their licences if they are found to not be fit and proper persons. The Claimants have not yet had the outcome to their PACE interviews, so remain in fear that the outcome may lead to the loss of their licences. This is therefore similar to the position in the case of Hale v Brighton and Sussex University Hospitals NHS Trust EAT 0342/16.[78]What happens before that though does not appear to be connected detriments. The conduct about which the Claimants complain extends in the case of Mr Olumade over a period of nine years and in the case of Miss Akinleye over a period of seven years. It is alleged to have involved at least eight employees of the Respondent as well as numerous third parties (including licensed hackney carriage drivers, employees of Reading Borough Council, members of the public, and employees of Ashwood Academy) for whom the Respondent is not vicariously liable.[79]It is also of note that the contemporaneous documents I reviewed as to the state of knowledge of the Claimants do not appear to suggest a connection. The 2009 document focuses on getting the licence. The interview in 2016 is with different individuals (Linda Cannon and Sheila Stevens) to those at the end of 2017 and onwards. The 2016 complaints are against another driver (Thomas Cliff).[80]It is also of note that Mr Draper did not start with the Respondent until November 2017.[81]It is also noted that there are significant time gaps between the various allegations (see paragraphs 29 and 30 above).[82]There needs to be some factual substance to the continuing act complaints and if there are multiple parties involved and there are significant time lapses between allegations, then the burden of proof is not discharged by the Claimants simply asserting there has been a continuing act.[83]A continuing state of affairs is to be distinguished from a succession of unconnected or isolated specific acts (Hendricks) “the burden is on [the claimant] to prove, either by direct evidence or by inference from primary facts, that the numerous alleged incidents of discrimination are linked to one another and that they are evidence of a discriminatory state of affairs”.[84]There are many different individuals with suggested involvement, over a period of many years where the time lapse between complaints is significant. The greater the time period and the gaps between the complaints the harder it will be, even for a connected alleged perpetrator, to recall evidential matters.[85]I therefore agree with the Respondents submissions that from the facts found there is no basis for inferring any coordination or collusion across such a disparate group of individuals and over such a significant period of time. Furthermore, any attempt to read into these unconnected incidents a continuing act or state of affairs is severely undermined by the very lengthy gaps which occurred between the events.[86]For these reasons I have not found facts that establish a prima facia case or, to put it another way, that the Claimants have a reasonably arguable basis for the contention, that the various complaints are so linked as to be continuing acts or to constitute an ongoing state of affairs, before the interview on the 22 December 2017. However, for those from the 22 December 2017 I will accept they are in time on the basis the Claimants do appear to have a reasonably arguable basis for the contention, that the various complaints from the 22 December 2017 (which are linked to Mr Draper as well) are so linked as to be continuing acts or to constitute an ongoing state of affairs.[87]The grounds relied upon by the Claimants for suggesting that it would be just and equitable to extend the time limit are:a. Date of knowledge – that the allegations were revealed by the Claimants’ subject access requests.b. The integrity of the Respondent’s evidence has been preserved in its IT system and is still accessible.c. That the foundation members of the Respondent’s licensing team have been in employment with the Respondent since 2006 (Mr Wake, Ms Hill, Ms Stevens).d. Being given misleading and deliberately false information by the Respondent.e. The Respondent never informed the Claimants of their right to go to an Employment Tribunal.f. The health of Mr Olumade and their son.[88]The Claimants also refer to the Respondents failure to give a PACE decision and Mr Draper’s interference in the Claimant’s Subject Access Requests, but these would appear relevant to the complaints from 22 December 2017 onwards, which I have already found are in time.[89]I have not found facts that support the Claimant’s assertion that the complaints they now make were revealed to them by the results of their subject access request. From my consideration of the contemporaneous documents I am satisfied that the Claimants knew of their concerns at the time they occurred and could have acted then.[90]I have not been presented evidence to support the Claimants’ assertion that the integrity of the Respondent’s evidence has been preserved. The time period and number of individuals included in the complaints is significant with a number being outside of the Respondents control (such as individual third parties and Reading Borough Council). This in my view places the Respondent at a significant disadvantage when seeking to defend all the complaints, causing it significant prejudice.[91]I have not been presented any evidence to support the Claimants’ assertion that they were deliberately supplied false and misleading information by the Respondent.[92]I do not accept that it is for the Respondent to advise the Claimants on their rights under the Equality Act. The Respondent should not mislead as to the Claimants’ rights (of which there is no evidence in any event), but they do not need to advise them about them.[93]Although I have been given evidence of the illness of Mr Olumade and his son which was broken into 7 discrete periods (between 8 April 2018 to 29 June 2018), I have not been given evidence to say why it precluded the Claimants from submitting their claims before they did. The Claimants both submitted their ACAS early conciliation applications during the period and the fit note for Mr Olumade for May/June 2018 says he is fit for work apart for pushing wheelchairs.[94]Considering the Keeble points:a. The length of and the reasons for the delay. Based on the findings of fact I have made there is a significant delay from the potential complaints the Claimants appear to have been aware of and the lodging of the claims.b. The extent to which the cogency of the evidence is likely to be affected by the delay. This is significant in my view in that it will be adversely affected due to the time period and the number of individuals included in the complaints where a number of them are outside of the Respondents control (such as individual third parties and persons at Reading Borough Council). This would cause the Respondent significant prejudice.c. The extent to which the parties co-operated with any request for information. Based on the findings of fact I have made it does not appear that the Subject Access Requests are the first source of relevant information for the Claimants to have relied on, them having been aware of relevant matters and their rights long before that.d. The promptness with which the Claimants acted once they knew the facts giving rise to the cause of action. I have not found that the Claimants have acted promptly and I have not been provided with evidence to properly explain the delay.e. The steps taken by the Claimants to obtain appropriate professional advice. This does not appear to be a relevant factor in this case as the Claimants have not raised it as an issue. They have submitted lengthy submissions in support of their claims and have not suggested they did not know of their rights or how to pursue them, but rather they were unaware of their complaints until they received the disclosure from their Subject Access Requests.[95]I would add that those complaints that pre-date the 22 December 2017 that relate to the taxi licences of the Claimants (being granted or the conditions that apply to them) are matters for the Magistrates appeal process, so even if I am wrong in relation to the pre 22 December 2017 complaints they would appear to be outside the Tribunal’s jurisdiction due to the effect of section 120(7) of the Equality Act 2010.[96]Considering the Claimants amendment application, I find as follows:a. I have been required to consider the question of time limits as one of the preliminary issues at this hearing. My findings in that regard would apply equally to the new claims that pre-date the 22 December 2017, so they would be out of time. This leaves the new claims that are in October 2018, and the religious discrimination claim of Mr Olumade.b. Based on the findings I have already made I do not accept that there is sufficient reason to justify the delay in lodging the claims that predate the claim form. This would therefore preclude Mr Olumade’s religious discrimination claim. This therefore leaves the new claims that are in October 2018.c. When considering the merits of the new claims from matters in October 2018, then apart from the specific allegation made by Ms Akinleye (that she received a letter from the Respondent requesting a DBS disclosure, that was not due at that time), the others appear to be general references to policy decisions by the Respondent and are not stated as being of specific detriment to the Claimants. For this reason, they do not appear to have merit to be added to this claim.[97]Considering the Respondent’s application for strike out and/or deposit orders. In this case core facts are disputed. The Claimants highlighted in their submissions that they would expect to cross examine Mr Draper and Mrs Tatum to challenge their evidence. This does appear to have been anticipated by Respondent’s Counsel and not wanting to create a trial within a trial. The Claimants have asserted through their evidence and their submissions that there are factual differences between the Claimants’ and Respondent’s positions and these would need to be properly and fully considered at a final hearing before a full panel. I acknowledge the guidance in the case of Anyanwu and that this does not appear to be a case where the core of facts is undisputed, or it is a “plain and obvious case”. Further, as the Claimants do focus on the fear of losing their licences and the process at and since the 22 December 2017 this does not appear to be a complaint or complaints that would full outside of the Tribunal’s jurisdiction because of section 120(7) of the Equality Act.[98]My reasons for refusing the Respondent’s Strike Out application, and that the Respondent does still have to submit a full and final response to the complaints before the Tribunal, lead me to conclude that it is not appropriate to make Deposit Orders at this stage for the complaints that proceed. EMPLOYMENT TRIBUNALS Claimant: Ms O Akinleye (C1) Mr A Olumade (C2) Respondent: Basingstoke and Deane Borough Council RECORD OF A PRELIMINARY HEARING Heard at: Bristol On: 24th / 25th / 26th November 2021 Before: Employment Judge Cadney Appearances For the Claimants: In Person For the Respondent: Mr S Harding (Counsel) Preliminary Hearing Judgment The judgment of the tribunal is that: i) The claimant C1’s application to amend dated 6th November 2018 is granted in respect of allegation a) (See paras 19-22 below); ii) The claimant C1’s application to amend dated 8th February 2019 is granted in respect of allegation a) (See paras 23 - 26 below); iii) The claimant C2s application to amend dated 6th November 2018 is granted in respect of allegations b) c) d) f) g) (see paras 28-32 below); iv) The claimant C2s application to amend dated 8th February 2019 is dismissed (see paras 28-32 below); v) The claimants’ application to strike out the responses (tranche 1)is dismissed; vi) R’s application to amend its response is granted; vii) R’s application to strike out some or all of the claims is granted to the extent set out at paragraph 41 below) – C1 allegations 12 and 13 (as set in the Schedules supplied by the claimants during the hearing) are dismissed on the basis that the tribunal has no jurisdiction to hear them. 1 of 12 viii) R’s application that some or all of the claimant’s claims should be the subject of deposit orders is dismissed.
Introduction
[99]Following the meeting Mrs Stevens wrote to the claimant on 29 September 2009. She noted that Mr Olumade had confirmed that he had lived in Nigeria, and she said they had no evidence of a document submitted by him of good conduct whilst he was living in Nigeria. This document was required by any person submitting a new application for a private hire drivers’ vehicle who was born or had lived outside the UK for any period of time. She noted that the requirement for such a certificate had not been in place when he applied in 2006. Mr Olumade therefore obtained the certificate of good conduct after having to travel to Nigeria to obtain one.[100]A note was made on file that the claimant had made a new contact; that his previous licence had been issued in a different name; and that he changed his name in 2007; that he has two passports, one Nigerian and that he is now a British citizen.[101]On 29 October 2009 Sheila Stevens wrote to the immigration section of the Portsmouth Home Office department in respect of Mr Olumade .[102]She stated that the authority had received an application for a private hire driver licence. She said that Mr Olumade had changed his name and is now a British citizen and she noted that he did hold a Nigerian passport and then says Mr Olumade did not declare on his application form that he had resided in another country but when questioned about his place of birth on his current licence offered that he moved to the UK in 1998. She stated I enclose a copy of the UK licence and his DVLA licence would you please let me know if you have any concerns over this applicant.[103]The claimant complains that by sending his documents to the Home Office with a query would you please let me know if you have any concerns over this applicant, Sheila Stevens discriminated against him. This happened in 2009. Mr Olumade became aware of it when he received disclosure of his file following his Freedom of Information requests, sometime after 2018.[104]In its grounds of resistance the respondent says the respondent admits that Mr Olumarde’s documents had been sent to the Home Office and states that the reason for this was that on the form he filled in, it was indicated that he was not a British national.[105]Mrs. Cannon was the licensing manager at when Mr. Olumade first applied for his licence, and remained in post until late June 2017 when she left the respondent employment. She referred in her evidence to a blank copy of the form that an applicant for a private hire vehicle or a Hackney carriage vehicle licence is required to fill in. We find that there is no box on the form for the claimant to tick in respect of his nationality. It was not therefore indicated on the form that he was not a British national and we reject the respondents pleaded case on this point.[106]Mrs. Cannon referred to question 10, which required an applicant to tick a box about where they lived and whether they had lived overseas at any time for more than six months. She agreed that this is not about their nationality.[107]Mrs. Cannon told us that if an applicant had ever lived outside of the UK for a period of more than six months, the licensing of authority would require evidence from the individual, regardless of nationality, that they had not committed any criminal conduct whilst living overseas. She told us that the licensing authority would ask the applicant to obtain evidence from the appropriate department in the relevant country, which would usually be a certificate of good conduct. That certificate would show that no criminal activity had been committed in that country. We accept and find that this was the standard practice and that Mr Olumade was asked to do this and that he did it.[108]If a person neglected to tick the box or to answer the question about whether or not they had lived outside the UK for six months, she said the authority would go back to them and ask them to confirm what they should have put in the relevant box.[109]We have not been referred to any document setting out what the standard procedure was, but Mrs. Cannon gave evidence about her understanding of the process.[110]We find that the standard process of seeking a certificate of good conduct which have been applied to anybody regardless of race. We also accept that there was a legitimate aim of ensuring that taxi drivers who are licenced are not people who have a past criminal record. Someone who is a British national resident in the UK would also be subject to the same requirement but the process of checking the record would be different.[111]Mrs. Cannon agreed that in 2006 Mr Olumade had been granted a licence for a private hire vehicle, and that he had applied with a Nigerian passport.[112]There is a note on the file which states that the claimant’s immigration was checked on the 12 November 2009 and that a phone call had been received that Mr Olumade had been checked and is OK.[113]At the time there were no legal or other requirements on a licencing authority to carry out immigration investigations in respect of applicants for a taxi licence. The respondent does not suggest that there were.[114]Mrs. Stevens has not given evidence to the employment tribunal although we have received a written witness statement with an electronic signature from her.[115]In that statement she says that she does not recall the action, but that it was in line with procedures at the time. She says that the Home Office had previously provided training, including advice on the licencing team being vigilant on checking identification documents. She says it was prudent and in accordance with standard procedure for this applicant’s details to be verified with the Home Office.[116]Mrs. Stevens does not say why it was prudent for this applicant, or why she contacted the Home Office.[117]The claimant points to the wording of the e-mail from Sheila Stevens at page 93 which states if you have any concerns. He asks why at that point she was asking the question about any concerns?[118]We find that since the respondents knew that Mr Olumade had a previous Nigerian passport because of his previous licence, they would also have known that he had lived abroad and that he had previously provided a certificate of good conduct in respect of that period of time.[119]Mr Olumade did not renew his private hire vehicle licence when it ran out in 2007 and when he reapplied in 2009, he had applied for and been granted British nationality and he had a British passport which he provided with his application. We find that at the point of application Mrs Stevens, must have known that he was a British National.[120]The only potential issue raised by the application form was that Mr Olumade was alleged to have failed to provide information confirming that he had lived overseas for a period of six months. This is what the respondent witnesses told us at this hearing.[121]We find that if Mr Olumade had failed to fill in this section of the form the accepted process was to ask him to provide the details and if, as in this case he had lived overseas for more than six months then to ask him to provide the certificate of good conduct. He was not asked. He was treated differently to the way any application could be expected to be treated. Had he been asked the question, he would have been able to provide both the information of having lived overseas, but would also have been able to refer back to the certificate already provided, and already accepted by the Authority when it licenced him previously.[122]Mrs Cannon was asked why, in those circumstances his passport and other documents were sent to the Home Office immigration department by Sheila Stevens, and why they were asked whether they had any issues with the applicant. She said that the authority was permitted to ask for any relevant information, under section 57 of the Local Government (Miscellaneous Provisions) Act 1976 and said that they were aware that Mr Olumade had lived outside the country. She stated that she understood that Mrs Stevens had thought that he had not declared on the form that he had lived in another country. She could not explain why, if he had filled the form in incorrectly, he was not asked to provide the relevant information in line usual procedure.[123]Mr Draper, who started work for the authority in 2017, also gave some evidence about why he thought the documents had been sent to the Home Office at that point.[124]It was suggested to the employment tribunal that the claimant had not filled in the form correctly, and the claimant had asked for disclosure of his application form, but it has not been made available to him and was not available to the[125]Mrs Cannon also told us that where there were any concerns about an individual’s right to work, the local authority could contact the Home Office to ask if that person had a right to work. She said that because there had been some changes, it was pertinent to ask whether he had the right to work and said that the words used by Mrs Stevens would be about whether there were any concerns about his right to be here or to see if there was a right to work because there was no other reason to send the documents to the Home Office.[126]She said that the Home Office visited the licensing authority a couple of times a year at least to provide advice on right to work issues. She also said that the Home Office came in to give training on how to check for passports on how to check that they were not fake. She was referred to the guidance issued in respect of immigration checks for employees and accepted that there was no guidance or any legal requirement in place at that time in respect of licensing taxi drivers.[127]Mrs Cannon was asked why training on checking on passports being fake or not was relevant to this matter. She stated that it was only that they were able to ask for information which was relevant to an application and that she thought it would have been relevant to check the immigration status and that's what they did.[128]She said that she knew that such checks had been carried out for other drivers of other nationalities and gave the example of students with student documents where the right to work might be limited.[129]Mrs Cannon agreed that Mr Olumade was not a student and had a full British passport and therefore had a right to work in the UK but said that she assumed that Mrs Stevens decided to carry out a check because the claimant’s first passport was the Nigerian passport the second one was a British one. She accepted that she did not know the reason and was making an assumption.[130]We do not accept the suggestion that something about the form, or Mr Olumade’s answers at the time, raised any concerns, and find that the usual practice, if there was any query on the form, was to call someone back and ask for clarification. Mr Olumade had been interviewed by Mrs Stevens, and if she had had any queries on the form, she would have asked him at the time. There is no evidence that any other person with a British passport was referred to the home office, and asked if there were any issues, and we find that the treatment of the claimant in this respect was different treatment. Whilst it did not in fact cause any issues or delay, Mr Olumade considers that it was a detriment, and we agree.[131]Mrs Cannon denied that the reason why Mr Olumade’s documents were sent out was because he was a black African man and that this was an act of[132]There was no reason that we can see to send his papers to the immigration office unless there was some suspicion about either the genuineness of his passport or his immigration status or his right to work. Given that he had provided a British passport, and in the absence of any clear explanation we infer that the fact that Mr Olumade is a black African man who had previously had a Nigerian passport were relevant factors that influenced Mrs Sheila Stevens in her decision to send the claim of the documents to the Home Office immigration section in Portsmouth. We find that the different treatment of the claimant, the focus on his race and his nationality and the varying explanations we have been given, and the circumstances in which the referral was made, coupled with findings we set out below about the attitude of Mrs Stevens and Mrs Cannon in particular to Mr Olumade, are facts from which we could conclude in the absence of an explanation That Mrs Stevens discriminated against the claimant because of race. we have no explanation from her, and we do not find the explanations given by other officers convincing and we reject them. In the absence of an explanation, we also conclude that the real reason was something to do with Mr Olumade being black and African, and having previously held a Nigerian passport. Mrs Stevens made the referral we conclude, because she was suspicious of him, and the only reason for that was his race, colour and nationality. We conclude that this was an act of direct[133]This was a decision connected with the arrangements made by the respondent for deciding upon whom to confer a relevant qualification, within the meaning of section 53(1) a, or was a term on which, it was prepared to confer the relevant qualification within the meaning of section 53(1)b, Equality Act 2010, being a requirement, that Mr Olumade was approved by the Home office. This is an act of direct discrimination and the BDBC are liable for it.[134]When Mrs Cannon gave her evidence, she refused to acknowledge that there was anything problematic about sending the claimant’s papers to the Home Office immigration without any obvious cause. She was the senior individual and she had clearly known about this at the time but excused the behaviour of one of her officers for what we consider to have been a racist action. If, as we find, Sheila Stevens made assumptions about the claimant’s immigration; status right to work or genuineness of his passport because he was an African man, and we find that that is why she sent the papers to the immigration office, then it was Mrs Cannon's job, taking account of all the guidance that she had, to point this out to Mrs Stevens and take appropriate action. Instead, she sought to excuse it and blame Mr Olumade for not filling in a form correctly.[135]Similarly, we find that the attempts by Mr Draper to find an alternative explanation for Mrs Stevens actions, are indicative of his refusal to recognise that there may have been a discriminatory or prejudicial attitude towards the claimant from the outset of his relationship with them.[136]Mrs Cannon made a number of very generalised statements that Mr Olumade and Miss Akinleye had regularly accused her and her staff of racism; that they always made complaints and that they regularly raised race and racism in their interactions with the council. In addition, she alleged that Mr Olumade was routinely aggressive and offensive to her staff. She said he would always take offence if he was asked to come in to discuss and issue. When asked to give specifics of any particular incidents or any particular complaint, the only matters she referred to were a matter in respect of staff member JH who had spoken to Mr Olumade when he applied for his licence and who had recorded in her file note and reported to Mrs Cannon that Mr Olumade had stated that the council does not give licences to black taxi drivers.[137]She said he seemed to get agitated when I tried to leave and then suddenly said that he knew for a fact that this council did not give licences to black people she records I said I could assure him that this was not the case and that all applicants were treated equally regardless of their race or ethnicity. I said I would not comment any further on the matter as I had to return for another appointment. Overall I found his manner quite intimidating and although he was not shouting or being aggressive he made me feel very uncomfortable. I would have concerns regarding his ability to deal with members of the public on a regular basis.[138]When referred to the file note that JH had written and when asked whether or not she agreed that it was a negative statement to have made about Mr Olumade, she accepted that it was negative, but also stated that she considered that it was true. She accepted that she had never spoken to Mr Olumade about it and said that she did not need to, because she believed her member of staff and because what JH had written coincided with what she and everyone else knew about Mr Olumade.[139]The second matter she referred to was a conversation which she had had with Mrs Stevens after Mrs Stevens had left the authority. Mrs Stevens apparently alleged that Mr Olumade had made personal comment about Mrs Stevens on two occasions. Mrs Cannon accepted that this had not been raised with her during the course of her employment and that it had certainly not been raised, as far as she was aware, with Mr Olumade. Mr Olumade denies making the personal comments. We prefer his sworn evidence and find he did not make the comments.[140]Mr Olumade was then required to take the driving awareness test, but he failed on the first attempt.[141]On the 12 January 2010 after taking the test, Mr Olumade told licencing offers that he had looked at what other councils did and considered that the driving awareness test BDBC operated was unjust to ethnic minorities. He suggested that the test questions were biased against ethnic minorities.[142]On the 12 January 2010, JH made a file note that Mr Olumade had passed the private hire awareness test on his second attempt and that Mr Olumade had raised concerns about the test and asked for a syllabus. This is the note Mrs Cannon refers to which is set out above at 130. Mr Olumade was not satisfied with the information provided and JH had explained that any complaint about the test should be put in writing to the licencing manager.[143]The claimant relies upon his discussion and the comments made about him at that point as a protected act and the respondent admits that it was one.[144]The file note was not discussed at all with Mr Olumade, but Mrs Cannon said she was aware of it and that she believed what JH had said about Mr Olumade. She said since what he said was clearly wrong, she did not have to investigate it further, and that the reason she believed JH, was that everybody in the licencing team found Mr Olumade difficult. We find that she accepted without question what was recorded by JH.[145]We find that the reason JH recorded the comments that she did well because Mr Olumade who was a black man who was raising an issue about race. We find that this was less favourable treatment of him and was because of race. The only explanation for the file note being written at all is that he was raising concerns about race, and we find there was no basis for her to feel intimidated. We conclude that this was an act of victimisation. It was in the context of his licence and was a detriment to him, because it was note that remained on his file and fuelled hostility towards Mr Olumide.[146]Since in 2010 the claimant had not been a licenced taxi driver for number of years, it is wholly unclear why anybody in the licencing department would have had any dealings with Mr Olumade except in the context of him applying for a licence. No one else has commented that at any stage in that process there were any particular issues or concerns about him. We find the only issue raised was by Mrs Stevens sending his paperwork to the immigration authorities for no apparent reason.[147]Mrs Cannon was asked why she said everyone thought Mr Olumade was aggressive. She suggested that sometimes, when he was trying to put his point across he became aggressive. She suggested that her and her officers would go to him with complaints, they would be polite to him but he would be aggressive back. She was asked for any specific examples but was not able to give any particular occasion except the comments made by JE. We find that JH specifically stated that Mr Olumade was not aggressive but made her feel uncomfortable.[148]Mrs Cannon also said that he raised issues about race on many occasions, for example in the Reading incident, and stated that he had made reference to racist profiling. She had questioned whether he may be right and said she had looked up what racist profiling was. She was asked what she did about that and said that some issues were tit for tat and referred to Mr Olumade’s comment that we don't give drivers licences to black taxi drivers.[149]She said the council had to pick their battles because they did not have the resources and could not spend time on every complaint, so she would also always ask for things in writing. she accepted that an allegation that somebody was a victim of racism was a serious allegation and said if they had had something in writing she was sure that they would have investigated it.[150]She was asked whether she had ever investigated, and she referred to the instance of Mr Bulpitt throwing coffee over the claimant which led to his licence being revoked. We set out our findings in respect of this matter below and find that the matter was not investigated at all, until Mr Bulpitt had been convicted of assault, despite the claimant making clear complaints.[151]In the absence of examples of him being aggressive, we find that he was not aggressive to staff. We infer that it was the fact that he raised issues of racism and the fact that he was black that Mrs Cannon, Mrs Stevens and possibly JH found him difficult.[152]We infer that the attitude towards Mr Olumade was prejudiced, and was something to do with his race, nationality and his colour, and the fact that he raised issues and questions about racism. Since Mrs Cannon was adamant that everybody considered Mr Olumade to be difficult, we infer that there must have been some discussion about him amongst staff, and that there was prejudiced and racist attitude to him amongst Staff at BDBC licensing team from the point he applied for the hackney carriage license.[153]On the 12 May 2011 Mr Olumade received a letter from Mrs Stevens stating that he would need to provide a new CRB certificate as his current disclosure was over six months old. When they met, she stated that because his last communication was the 12 January 2010, when it was confirmed that he had passed his driver awareness test, and due to the amount of time that had passed he would need to resubmit his application form, with the driving licence, and provide a new CRB and provide his certificate of good conduct, his DSA pass certificate and his passport photograph. This he did and he was issued with a private hire drivers licence and his private hire operator licence on the 8 June 2011, for one year.[154]Mr Olumade was then able to start working with Hampshire County Council as a school transport operator.[155]Miss Akinleye also received her private hire licence at the same time.[156]In 2009 the BDBC communicated with taxi drivers by a newsletter and the first newsletter of 2009 contains information about complaints received about drivers at the taxi rank; about allegations of refusal of short journeys; rank overspill parking; consultation that was taking place over the carriage of wheelchairs; updates on enforcement and a statement that anonymous allegations would not be investigated. The newsletter explains that the council follows a structured enforcement policy and that it is their policy to investigate all complaints and credible observations professionally and thoroughly before any appropriate action was taken.[157]The spring edition of the 2012 taxi driver’s newsletter, informed of a proposal for legal duties to be placed on drivers of designated wheelchair accessible licenced vehicles, to provide physical assistance to passengers in wheelchairs. Consultation was ongoing. Guidance at that point was that wheelchairs must never face sideways and must be secured using the correct straps, and that once in position, the wheelchair brakes must be on.[158]The guidance provided that the power unit of a powered wheelchair must be switched off and that the wheelchair should never be left in freewheel mode. Local authorities were urged to maintain a list of designated vehicles which were wheelchair accessible. The newsletter notes that the membership of such a list would mean that the driver must undertake the duties detailed under section 165 of the Equality Act regarding carriage of passengers in wheelchairs.[159]In 2013 Mr Olumade applied to upgrade his private hire drivers’ licence to a Hackney carriage drivers licence and was required to take the Hackney carriage driver awareness test on the 16 April 2013. He failed the first time and resat on the 7 May 2013, but was told that he had failed for a second time. He queried his scores as he considered the test had been unfair. He scheduled a further test for the 29 May 2013.[160]One of the test questions was about the number of taxi ranks in Basingstoke and Dean, but the number 7, which was the number of ranks in Basingstoke and Dean was not available. Mr Olumade raised this, and it was suggested to him that the option of several means more than one. He had not raised an issue about the words several but had pointed out that there are 7 taxi ranks and that this was not an answer available to him. The form is in the bundle, and he was correct, even though it is right that the answer several was also right.[161]The second matter was in respect of knowledge of the quickest routes for drivers to take, which involved a verbal test. Mr Olumade considered he should have passed but had been failed.[162]Mr Olumade pursued the matter, asking for advice about the test, which he had rebooked. By the 17 June 2013 Mr Wake had been appointed to look into the test and when he did so he confirmed that he had reviewed the claimant’s answer and confirmed that the claimant had indeed attained a pass mark. Mr Olumade was told he had completed that element of his application and would now become a licenced taxi Hackney carriage driver. He said he had identified some inaccuracies with the model answers and apologised for the inconvenience to Mr Olumade.[163]The claimant completed the HCD process by passing the DSA wheelchair test assessment in August 2013 and was granted his HCD licence on the 8 August 2013.[164]Both claimants make allegations that they were made to repeat the driver awareness test and that they needed to repeat the knowledge test, and that this was discrimination.[165]We find that factually the claimants are correct that they did both have to sit the tests on more than one occasion, but both did eventually pass. we find that there were on the face of it valid reasons for the claimants not passing the tests and we have not made findings We reject these allegations.[166]Ms Akinleye purchased a new Hackney carriage vehicle, #812 in November 2013 and Mr Olumade started working from the taxi rank as a licenced Hackney carriage driver.[167]On the 4 February 2016 Mr Olumade refused a fare to carry a man and a child with a medium sized bike, telling the customer it was for safety reasons.[168]On 11 February 2016 Mr Olumade and Miss Akinleye went to church in Reading for Thursday service and then did some shopping. Whilst parked in front of the shops and putting their shopping into the car, they saw two men walk past, one of whom appeared to check the Hackney plate number. The man spoke to Mr Olumade and asked to see Mr Olumade’s licence. When Mr Olumade asked why, the man told Mr Olumade that he had to wear it whilst he was driving. The claimant said that the man, who he later identified as Mr N, took a picture of him and murmured black. The claimant replied that he, Mr N, had no jurisdiction over him, and he and Miss Akinleye then got in their car to drive back to Basingstoke. Mr Olumade then saw the two men filming his car, stopped, got out and filmed them as well. There was some further exchange between them, and Mr Olumade says that he wanted to know what they were writing down and what the papers were. Mr N then called the CCTV provider to ask them to move cameras so that they could film him and Mr Olumade. At this point Mr Olumade and Miss Akinleye drove off.[169]We find that Mr Olumade had been within his rights to drive his own car to do some shopping or anything else and then drive himself and his wife back home in it. There is no obvious reason for the two officers from Reading to approach him at all. They did not ask him if he was plying for trade or trading for example.[170]Whilst driving back, the claimant pulled out onto the main road near the hospital, and whilst pulled up at the traffic light noticed the driver of a car on his left gesticulating with her middle finger.[171]Later the same day, Mr PN, who was a licensing officer at Reading BC, contacted Licensing at BDBC with an enquiry about a black afro Caribbean male aged 40-50, who refused to identify himself, and had told them he did not have a badge but was test driving and not plying for hire. He said that he took exception to us photographing his plate and started taking pictures video of us. I used my arm to defend myself, before he grabbed the papers I was holding. I radioed our CCTV and have some footage as he drove off. Can you confirm who owns this vehicle and send me a photo. He had a black female with him who told me she was the one with the HCD badge. Not sure what action we will take at this time , but am concerned that you may have an unlicensed user of a licensed vehicle.[172]Since BDBC had only three Black African Hackney Carriage drivers, and since they had the number of the taxi and they would have known that this was either Mr Olumade, and that he was a licenced driver. No one contacted Mr Olumade or Miss Akinleye, who was the proprietor of the CAB to ask him about this at all.[173]On 11 February 2016, Sheila Stevens recorded on the second claimant’s file with that she has emailed a response with photographs and confirmation of licencing, along with a request for information of incident. She has then recorded a file note that Peter had called and confirmed that he was on routine enforcement when he saw 812 parked and because it was foreign, he approached the vehicle. He said he's not 100% sure that it was Mr Olumade from the picture but says the lady was the passenger. She records that Mr N said that when the officers started to take pictures Olumade got aggressive and it was when Peter started video that Olumade challenged him on why was filming and went to grab Peters arm which he put up to protect him. Olumade then got in his vehicle and drove off. Mr N confirmed that he didn't have any video footage of the incident, that Reading would not be reporting the matter to the police but that he could not understand why the driver would not say that he was a licenced driver when he was.[174]Mrs Stevens then records I asked if we could be kept informed of any action being taken and Peter said they may call him in for interview, but he would discuss this with his colleagues first. I did offer that we had two other complaints against the driver and would be interviewing him ourselves so would appreciate any information on this incident. It is not clear why she needed to be kept informed.[175]The other two incidents were an allegation of refusing a fare with a bike and an allegation of dangerous driving, made by member of the public. Neither had been raised with the Claimant.[176]Miss Akinleye alleges that she should have been informed of the incident as the proprietor of the taxi. She was not informed about this at all. Since we find that standard procedure within BDBC was to raise complaints and concerns with the driver, and since it was obvious that Miss Akinleye had been present we would have expected Mrs Stevens to inform both Mr Olumade and Miss Akinleye at an early stage.[177]On the 15 February 2016 the senior licencing and enforcement officer from Reading Borough Council wrote to Sheila Stevens attaching the notes from Mr French. He said that Reading were considering reporting him for various offences, however if you are able to take appropriate action we will leave him alone. He also said both officers were able to attend at any hearing and stated officers are of the view that his attitude is not conducive for a taxi driver/ school transport driver.[178]Mrs Cannon was asked by one of the panel members about the obligations that taxi drivers have when using their vehicles as a private vehicle. She confirmed to the tribunal that there is no obligation at all on a taxi driver to cover up the plate of their taxi and nor is there any obligation on them to carry their personal identification badge with them. She also confirmed that there was no requirement to answer the questions of a licencing officer from another authority.[179]It is not clear to us what various offences the Reading officers were referring to or indeed how they knew that the claimant had a contract to drive children to school. Since neither claimant had been asked about anything by anybody at this point and had not been asked to comment or provide their version of events, the comments of Reading Borough Council appear to us to be inappropriate and highly prejudicial. The entire exchange reads as licencing officers from two boroughs working together to make a case against Mr Olumade, for driving his taxi in Reading and refusing to identify himself when not required to do so and then becoming annoyed at the behaviour of two individuals who, from all accounts were being intrusive and inappropriate.[180]No one has suggested to us other than that any Hackney carriage licenced driver is perfectly entitled to drive their vehicle for private purposes and to do so without the need to carry a badge and without the need to identify themselves if asked. All members of the licencing authority should know this.[181]We are surprised that Reading officers saw fit to stop to the claimant at all, and accept what the claimant told us in evidence that as a black male he has often experienced being stopped and asked questions about what he is doing for no reason other than the fact that he is black. We accept the claimant's assertion that on this occasion, one of the officers made a comment under his breath about the claimant being black and we accept this because we have found Mr Olumade to have been honest in his recollection of events in respect of numerous matters contested throughout this hearing.[182]We also find that he raised the matter at the time when he was asked about it, and we also find that nobody at BDBC considered taking a statement from Miss Akinleye who was there as well, and that no proper explanation has ever been given for that to this tribunal.[183]Mr Olumade had not been told up to this point that any inquiry had been made about him and nor was he or Miss Akinleye told that information about them had been provided to Reading. At no time were either claimant told that Mrs Stevens had voluntarily disclosed the fact of two other complaints about which the second claimant would be interviewed. We all observed that the disclosure of this information was entirely inappropriate and a breach of the claimant’s privacy. A subsequent complaint by the claimants’ to the Information Commissioner confirmed this.[184]Sheila Stevens also notes on the file, the complaint relates to an incident involving a licencing officer from Reading with possible assault (be it minor) and obstruction to a licencing officer. Copy of notes to ELO saved in anite sss. ( Sic) no one has been able to explain to us what the word anite means, but we have seen it in a number of places on the case management files.[185]In her witness statement Mrs Stevens says that the licencing officer confirmed that Mr Olumade became aggressive, and he described having to use his arm to defend himself. This would have been a serious complaint.[186]We find that there was no actual complaint made but rather just a query about whether the driver was a licenced. Since he was, all Mrs Stevens needed to do, was confirm this, and that ought to have been the end of the matter.[187]Reading officers had not decided whether or not they would take any action at all. We find that Mrs Stevens exaggerated what she had been told, and that her witness statement is an exaggeration of her own view of the seriousness at the time and in terms of what the Reading officers said.[188]We have considered what her motivation might have been. We remind ourselves that it was the same Mrs Stevens who referred the claimant to immigration for no apparent reason. We remind ourselves of Mrs Cannon’s evidence that everybody found Mr Olumade to be difficult. We find that this includes Mrs Stevens.[189]Whilst we recognise that licencing authorities must ensure that drivers that they licence are not trading unlawfully and must also ensure that they behave appropriately, we all agree that the behaviour of the BDBC licencing officers at this point and the behaviour of the Reading licencing officers raises a concern that the claimant was treated as he was, not because he was doing anything wrong, but because he was a black African man in charge of a taxi. In the absence of oral evidence from either the Reading officers or Mrs Stevens, the only explanations we have are those of Mr Olumade under oath, those recorded in the paperwork and comments made by other members of staff such as Mrs Cannon about her recollections at the time.[190]On the 15 February 2016 the claimant was informed that he was being investigated by the BDBC in respect of three complaints. He asked for details of the complaints and the date of the interview.[191]He received an e-mail telling him that there were three complaints: one in respect of an incident of dangerous driving near the North Hampshire Hospital on the 11 February, an incident with Reading Borough Council on the 11 February and the refusal of a fare from a customer who had a small child on a bike on the 4 February 2016.[192]On the 15 February 2016 Mrs Stevens replied to Mr N and told him that BDBC would be bringing Mr Olumade in to talk to him about three complaints and asked whether he would be able to e-mail the sequence of events which led to Mr Olumade refusing to give his name or badge and said he reports he is being ‘harassed’ by Reading and has evidence he wants to bring with him to the meeting.[193]She then said, at this time it is an informal meeting and we anticipate a challenging meeting so it would be good if the officers involved are fully informed she asked for notes by close of play on Tuesday and asked that they be copied to Linda Cannon the licencing manager, and her colleague Tracy.[194]The claimants assert that the use of the word challenging and the further request for information indicates that Mrs Stevens had already formed an adverse and negative view of the claimant and was attributing to him racially stereotypical traits of aggression, for example. We note that Mrs Stevens specifically identifies that the claimant has alleged he is being harassed.[195]In her witness statement Mrs Stevens says that where the facts at hand involved one person's word against another, it was her experience that presenting an allegation or a complaint will be challenging. She said she believed that Mr Olumade had denied the allegations.[196]We do not find this convincing. Firstly, the claimant had only been informed of the allegations on the 15 February 2016 which was the same date that she had sent her e-mail. Secondly, she does not say in her statement that she always finds these interviews challenging. The words suggest to us that she was expecting this meeting with this individual to be challenging and we all agree that this is indicative of a negative attitude towards Mr Olumade and not an expression of a concern about investigation meetings in general. We do not accept her explanation is a true reason for her having written her response in these terms.[197]We have made findings about the attitude Mrs Stevens had towards the claimant and have concluded that she had discriminated against him because of race at an early stage in the licensing relationship and that she and others held prejudicial views and attitudes about Mr Olumade. We have found that she deliberately exaggerated what had been said to her and identified allegations of aggression and assault. We infer that her actions towards Mr Olumade were different to the way she would have treated others, because in this case we infer that her reason before pursuing the matter for identifying the allegations in the way that she did and for disclosing information to Reading was something to do with his race. We conclude that her actions towards him amount to direct discrimination on grounds of race. Her actions had the potential to impact upon his licence and they were to his detriment, under section 53 of the Equality Act is therefore engaged.[198]The statement received from Mr French, says that Mr N had asked on more than one occasion both occupants of the vehicle, one male and one female what they were doing in Reading, reported that both stated that they had a badge but neither of them could produce it. He says the male was extremely aggressive and became agitated by these questions and on more than one occasion he stated that we were harassing and intimidating him and that we have no jurisdiction over him. He then became obstructive and would not answer the questions. He said the female passenger was a bit more cooperative and tried at several points to persuade the male to cooperate. This only seemed to agitate the male still further and once again repeated his statement that we were harassing him, and we had no jurisdiction over him we had no right to harass and intimidate him.[199]The Reading officer then apparently said that when any licenced vehicle comes into Reading, we are entitled to ascertain what that vehicle is doing and whether the drivers of said vehicles are properly licenced.[200]We find that this was not correct, and the licensing authority officers should have known that it was not correct. We understand that licencing officers have no right to stop a vehicle which is driving in Reading, or indeed to ask any questions of a driver unless there is a reasonable basis for them doing so. Nowhere in any of the paperwork we have seen, has anybody suggested why the officers considered it was reasonable to speak to the claimants at all. The suggestion that he might be unlicensed was only made after the event. The simple fact of two black people putting shopping into a car which is a licenced taxi, not in a taxi rank, not with its light on, does not on the face of it, raise any cause of concern or interest for Reading licencing authority. No one has suggested that it does.[201]We find that this set of facts does not give any cause for concern to justify an inquiry into what they were doing there. We find that the Reading officers went beyond what was reasonable or acceptable on that day and we agree with Mr Olumade that their persistence in questioning him was capable of amounting to harassment. We do not find it surprising that he may have become agitated and irritated and observed that an individual going about their lawful business is entitled to do so without being subjected to questioning by members of the Reading or any other licencing authority.[202]Mr French, in his statement, says that Mr N put paperwork up to his face so that the claimant could not take a photo of him, it was then that Mr Olumade was alleged to have tried to move the paperwork out of the way of his head . We note that this is significantly different to the statement made by Mr N himself.[203]The claimant attended an interview with Mrs Cannon and Mrs Stevens on 17 February 2016.[204]He was asked about an issue which he had not been told about in advance in which he had refused to take a child with a bike. Mr Bulpitt had taken the fare.[205]The claimant was also asked about a road traffic offence of dangerous driving. The claimant asserts that the investigation of both these allegations were a discriminatory allegation and should not have been accepted by BDBC because it was made by a third party. He says that when he made allegations about Paul Bulpitt refusing to take a fare in June 2016, he was told by Mr wake that he could not make such an allegation because it was a third party matter. we understand this to refer to the fact that the allegation should have been made by the customer rather than the taxi driver.[206]We accept that the claimant was subject to investigation in respect of the allegation, and we also find as fact that he was told by Mr Wake subsequently that he could not make such an allegation this was a difference in treatment.[207]He was also asked about what had happened in Reading, but the interview was not concluded because Mrs Cannon said she was waiting for further witness statements from Reading.[208]At this meeting the claimant stated that the incident at Reading was racial harassment. Mr Olumade said that he had had issues in Reading before and particularly around the Oxford Road area, including being stopped by the police. He thought that this was an incidence of racial profiling. The claimant relies upon this discussion when he informed the respondent about racial profiling, and when he complained about the behaviour of Reading officers as a protected act (the third in the list and appendix) and the respondent admits that it was one.[209]Mr Olumade denied that he had refused to show his badge, denied he had said he was road testing the vehicle and denied he had said he was a mechanic. He also said that one of the officers had called him an ****** black or words to that effect.[210]The claimant said he used a Dash Cam because he had complained to the police about racist remarks from passengers in his vehicle, which he could not prove without using a Dash Cam with sound. There was then a discussion about whether or not it was legal for a taxi driver to use a dash Cam with sound and the responsibilities of the driver as a data controller. The BDBC officers stated that there must be no sound on CCTV installed in vehicles. Mr Olumade believed that there could be sound . Subsequently Mr Draper confirmed when this was raised at a meeting, that the law was silent on the issue of the use of sound with dash cams. Mr Olumade had been correct.[211]Mr Olumade confirmed at this meeting that he wished to make an official complaint against the Reading officers for the way they spoke to him and for harassment because of the colour of his skin. He asked for the names of the officers.[212]The issue about a member of the public who had complained was discussed, as was the complaint that he had refused to carry a child with a bike. The claimant explained that he considered it was a health and safety risk to have a bike which was not folded and denied that his refusal was because the journey was only a short distance.[213]At the end of the meeting the claimant was told that he should report any racist incidents directly to the police. The claimant said he would not be reporting to the police because there was a mafia at the rank and his car had already been damaged twice.[214]He was told that the officers would consider the information given by both parties and seek further clarifications from Reading and then respond back to the claimant.[215]Following the meeting Mrs Cannon carried out some research as to the meaning of racial profiling.[216]We find that nothing else was said or done in response to Mr Olumade raising concerns about racism, racial harassment and racial profiling, his statement about the taxi rank and his allegations of damage to his car during the course of that meeting.[217]We find that at this point, the only complaints made were by other taxi drivers about Mr Olumade. He had made no specific complaints about other taxi drivers.[218]On 19 February 2016 Mr Olumade was assaulted at the taxi rank by a white taxi driver Paul Bulpitt throwing a cup of hot liquid in his face[219]On 22 February 2016 Mr Olumade sent an e-mail to the licencing team at BDBC headed Racially Motivated Violence And Harassment At Taxi Rank. He referred to racially motivated violence and harassment at the taxi rank by Paul Bulpitt and Stewart and others and asked them to do something urgently and asked Andy for advice on a way forward.[220]In an attached statement he provides detail of the attack by Paul Bulpitt and Stewart on the 19 February 2016 stating that a cup of hot liquid was thrown in his face, following Mr Bulpitt having been making racist remarks, such as the council giving the rank to foreigners and how foreigners had prevented British people from getting jobs.[221]He asked the council to take action. We return to this below.[222]On 8 March 2016 Sheila Stevens was sent statements from Reading Borough Council written by Mr N . Mr N did not allege that the claimant had said that he was a mechanic but suggested he had been test driving the vehicle. He said the claimant became aggressive and that his behaviour had made him concerned that he was not legally entitled to drive the Hackney carriage. He confirms that the woman, who we know was Miss Akinleye, confirmed that she was a Hackney carriage driver but did not have her badge with her. He confirmed that he took a photograph of the rear vehicle plates and licence. He alleged that there had then been a further altercation in which Mr Olumade had tried to remove some paperwork from him and alleged that he continued to be aggressive and agitated. He then says that the claimant returned to his vehicle and drove away, after Mr N had contacted the town centre CCTV.[223]Mrs Cannon and Mrs Stevens had made great efforts to obtain witness statements from the two white men in Reading, but had taken no steps whatsoever to obtain any evidence from the one other person present, Miss Akinleye, who was black. We have asked ourselves why Mrs Cannon and Mrs Stevens did not involve Miss Akinleye, when she was there.[224]The reason Mrs Cannon gave us for not asking her for a statement, was that the complaint was not about her, and they did not wish to involve her. Since she was a witness and since the respondents have asserted time and again in their evidence that they would look for evidence, this was a very odd stance to take and do not believe it is true.[225]We infer that Mrs Cannon made a conscious decision to ignore evidence which was likely to confirm and corroborate the view of Mr Olumade. We infer from all our findings both before and after this event, that part of the reason for failing to ask Miss Akinleye was because she is Mr Olumade’s wife and because she is black and he is black.[226]We find this to be a bizarre explanation and do not accept that it is a likely or true explanation. There were significant discrepancies in the information provided by Reading officers and Miss Akinleye, who had been present, was an obvious person to ask to comment.[227]We find that Miss Akinleye was treated differently to the way that two white male officers from Reading were treated and indeed treated differently to the way that the claimant Mr Olumade was treated. Whilst they were complaining about Mr Olumade, and she was a witness, and they were in different situations, in respect of the ability to comment on an alleged incident, they were in the same situation.[228]In the absence of a satisfactory explanation from Mrs Cannon and having rejected the explanation which she gave, and on the basis of our findings about Mrs Cannon’s attitude towards both claimants we conclude that the real reason was something to do with the claimants’ race and something to do with the claimant sex and find that she was discriminated against contrary to section 13 both in respect of race and in respect of her sex.[229]On the 9 March 2016 Mrs Cannon wrote to Mr Olumade with an outcome following the investigation and her meeting with him.[230]In her letter she states that having seen the full statements from the licencing officers from Reading and heard what Mr Olumade said, she was minded to believe the statements of the Reading officers, that he refused to provide his badge and that he did state that he was a mechanic test driving the vehicle. She stated that the officers were within their rights to request information from any person driving a licenced vehicle in their borough that has been licenced elsewhere. She said she considered it was reasonable for them to approach him to request evidence of his authority. We find that this was her view and not the view expressed by the Reading officers. She said it would have been in his interests to offer them the drivers badge when asked; that that would have satisfied the officers inquiry she then says I trust that this will be the case in the future.[231]In respect of the refusal to carry a child with a bike, Miss Cannon noted that the passenger was taken with the bike by another driver who I assume considered any risks to be acceptable.[232]She reasserts that the claimant had been advised of a recent court case determining that CCTV or Dash Cams with sound were not permitted. She says I trust you have made the necessary changes to your incar CCTV to ensure compliance. She ended the letter by saying that a licencing authority must be satisfied that all licenced drivers remain fit and proper to hold such a licence and that all relevant complaints and allegations are investigated. She said complaint history and relevant evidence is kept on file and may be referred to it at a later date should further complaints or allegations be made.[233]Nowhere in the letter does it say either that the allegations have been found to have been proven against the claimant or to have been dismissed against the claimant. Nor does it confirm that no further action will be taken in respect of any of the allegations. There is no explanation as to how Mrs Cannon reached her view on the evidence, why she preferred the explanation of the Reading officers to that of Mr Olumade, despite a number of contradictions within the evidence she had.[234]We find that the claimant had done nothing wrong, either in refusing to take the child with the bicycle or in refusing to provide his badge or an explanation to the licencing officers from Reading. Whilst this has grudgingly been accepted in evidence before us in 2023 by respondent witnesses, it was not made clear to Mr Olumade at the time. We find that the tone of the letter suggests that Mr Olumade is at fault and that the allegations may well be referred to again in the future should further complaints be made.[235]We were all struck by the lengths that Miss Cannon and Mrs Stevens went to investigate allegations made against Mr Olumade .[236]The allegations following the Reading incident, the investigation of it and the letter that was sent subsequently which is set out below, raise questions for us both about what licencing officers actually understood about their duties but also raised questions about their motivation in pursuing Mr Olumade in the circumstances of the matters raised.[237]This incident is an example of how two officers went about investigating a complaint or potential complaint. They made significant attempts to gain information from Reading with which to challenge Mr Olumade but no attempts to get any evidence from Miss Akinleye who may have had a different view.[238]During the course of this hearing, we have been told by a number of witnesses for the respondent that all complaints are investigated, and that people are treated equally. The claimants each assert that this was simply not true and that whilst allegations made against them were investigated very thoroughly indeed, when they themselves made allegations against white taxi drivers, the investigation was either short and peremptory or non-existent.[239]Both claimants compare their treatment when they are subject to allegations made either by members of public or by other taxi drivers or indeed by other individuals, with the treatment of white taxi drivers when the claimants made complaints about them.[240]During the hearing, we have asked the respondent witnesses to explain the reasons for the practise of retaining past complaints and evidence on file for the purposes of future referral. The respondent witnesses who gave evidence about the record keeping at the council in respect of complaints made against licenced drivers, confirmed that all allegations and complaints were kept on file, for all drivers and would be and were reviewed in their entirety, should there ever be cause to consider whether an individual was a fit and proper person to hold a[241]Although we find that all drivers were subject to the same policy, we find that the practice means that a person against whom numerous unfounded or unproven complaints are made, is at greater risk of being considered to be unfit and improper and therefore at risk of losing their licence, than a person against whom no unfounded complaints are made, simply because of the volume of complaints.[242]Whilst Mrs Cannon did not explain her reasoning in the letter to Mr Olumade, some further evidence about what BDBC thought about this incident is provided by the correspondence between the local government ombudsman; Reading Borough Council and subsequently with BDBC itself in 2017, following a complaint from Mr Olumade about the disclosure of his personal information to Reading Borough Council by BDBC.[243]On the 19 June 2017, in response to a contact from the Local Government Ombudsman on the 15 June 2017, arising from an allegation and complaint made by Mr Olumade the licencing department sent an e-mail attaching copies of the statements from the Reading officers and the interview notes from our meeting with Mr Olumade. It states we concluded that as we were not present at the altercation between the officers and Mr Olumade and there were very different versions of the incident that we had insufficient evidence to question Mr Olumade's suitability to hold a Hackney carriage drivers’ licence with BDBC. In respect of the ombudsman complaint, I do not believe we need to get involved and certainly cannot comment on the Reading officers or Mr Olumade 's conduct at the time as we were not there. It is clear that Mr Olumade has complained about Reading and not BDBC, so I do not think it appropriate for us to comment on these matters which are outside our control.[244]This e-mail confirms that the reason for pursuing the allegations was to consider whether Mr Olumade was a fit and proper person to hold a licence.[245]The analysis in the e-mail acknowledges the different versions of events, which the letter sent Mr Olumade did not do.[246]The name of the person who wrote this e-mail and the name of the person who it was sent to have been redacted by the respondents. In the subsequent e-mail sent to Miss Everest on the 20 June, the name of the sender of the e-mail has and the sign off has been redacted. The Claimants are entitled to know who wrote such emails. We have considered what reason the Respondent might have for the redaction of the documents. Redaction of Documents[247]During the course of case management of this claim the claimants have raised a number of concerns that documents they have been provided with have been unnecessarily redacted. The redactions they particularly complain about are the redaction of the names of those who have complained about them and the names of individuals who have written certain letters.[248]This matter was resolved on the first day of hearing and the application made by the respondent and the outcome are set out at the start of this judgment.[249]In respect of the e-mail written and sent about the local government ombudsman inquiry and complaint, there is no comment in the document produced by the respondent as to whether or not an unredacted version exists. The tribunal was not provided with an unredacted version of this document.[250]We have not been given any explanation for the redaction and the tribunal would have been assisted by knowing whether the e-mail was sent by any of the people involved in the Reading incident. We find that it was most likely to have been sent by either Mrs Cannon or Mrs Stevens, since they were the individuals who were most familiar with the incident and the decision making.[251]If it was Mrs Cannon who wrote the e-mail, it appears that she was more candid when seeking to defend the actions of the council, than she was when telling a taxi driver the outcome of an investigation against them. If it was someone else, then presumably they would have gained their information from Mrs Cannon and the same logic must apply.[252]We find that the redaction of documents by the respondents in this case, in advance of disclosure of documents to the claimants, without any order from the tribunal granting permission to do so, was excessive and unnecessary.[253]The respondents have been professionally represented throughout and the claimants have been litigants in person throughout. The claimants’ race discrimination complaints depend in part, on them being able to demonstrate a practice or a continuing act over a long period of time by licencing officers. They are entitled to see relevant documents in an unredacted form, and they are entitled to rely on those unredacted documents to draw out discrepancies and differences.[254]They have undoubtedly been hampered in their preparation by the excessive and unnecessary redaction made by the respondents. Whilst part of the redactions may have been due to an abundance of caution, in the absence of any obvious legitimate reason for the redaction, we infer that it was a deliberate attempt to conceal the identities of individuals from the claimant’s and the tribunal because of what that information might tell us and the inferences we might draw from it.[255]We conclude taking into account the chronology of events that in 2017 council officers were re framing the actions that they took the previous year.[256]On 20 June 2017 a reply was sent from the BDBC shared legal services department confirming that Mr Olumade is a licenced driver with Basingstoke and Deane Borough Council and that, having spoken to the licencing manager at Basingstoke it appears this complaint should be dealt with by Reading Borough Council as it relates to the way Mr Olumade was allegedly treated by their licencing officers. Documents relating to the interview that had been conducted with Mr Olumade by BDBC were attached and the letter then says the council took no action as the evidence was unclear. Conclusions on Reading allegations[257]The claimants’ allegations of race discrimination focus in part on how they were treated when others made complaints about them, compared to how complaints they made about others were dealt with, and how those they complained about were treated.[258]The claimants allege that they were always subjected to more significant and indepth investigation than white taxi drivers and that allegations against them were always taken seriously and always recorded and pursued whereas allegations that they made against others were not. The claimants rely upon hypothetical comparators in respect of direct discrimination but also bring claims of indirect discrimination harassment and victimisation.[259]In respect of the allegations, they make about the reading incident we conclude that Sheila Stevens did provide information to Reading Borough Council about both claimants and about a potential investigation and made the comment about expecting a challenging meeting. There is no explanation for why she did this in the context of the matter that was raised. We find that this was different and less favourable treatment of the claimants from any other investigation into any white driver about which we have heard evidence, albeit in different circumstances. From all the findings of fact we have made about her and from the circumstances of the case we could make a finding that this was because of race. We conclude that it was because of race.[260]Further in respect of the letter written by Mrs Cannon following the meeting, we find that there was a reluctance on the part of Mrs cannon to accept that the claimant had done nothing wrong. from the facts we have found about her attitude towards both claimants and from the facts we have found in respect of the reduction of documents and the response subsequently to the information commissioners request, and facts we have found subsequently about how Mrs Cannon dealt with other complaints and about how she dealt with the claimant in other situation, and looking at this matter as part of a whole series of events, we found that the claimant was treated differently to the way that another taxi driver of a different race could expect to be treated.[261]In any event we find as fact that Mrs Cannon was motivated as was Mrs Stevens by a prejudice against the claimants and a stereotypical view of Mr Olumade in particular. We find it was a prejudice based on or because of the race of the claimants and find that the letter she wrote did amount to a warning letter all be it not a formal warning letter. We conclude that the second claimant was discriminated against contrary to section 13 and section 53 because of race. February 16 and Assault by Paul Bulpitt.[262]Going back to events in February 2016. On the 18 February 2016, the day after the meeting with Mrs Cannon, whilst the claimant was at the taxi rank, he heard Mr Bulpitt come to the side of his taxi and say to the claimant the council bottled it he must have played the race card. We infer that he was making reference to the meeting the day before and infer that he had been told that the complaint he had made would not be upheld.[263]On the 19 February 2016 whilst Mt Olumade was walking back to his taxi, Mr Bulpitt attacked the claimant by throwing a cup of hot liquid into his face. The claimant was temporarily blinded and called the police and subsequently went to hospital.[264]Mr Bulpitt was a licenced taxi driver. The claimant sent an e-mail to the licencing team headed racially motivated violence and harassment at taxi rank. In his e-mail he said racially motived violence and harassment at taxi rank by Paul Bulpitt and Stewart/Stewart and others. Please do something urgently. going to work has become highly intimidating and horrendous vicious attack with weapon has been used on me regards Adeshine Olumade[265]The claimant received an e-mail from TE on the 22 February 2016 stating that he should put his complaint in writing or via e-mail with details of times, dates, people involved what is alleged to have happened and any other evidence he is able to provide.[266]Mr Olumade replied by email later that same day, attaching a statement setting out what he said had happened on the 19 February 2016.[267]That report sets out in full that on the 19 February as the claimant was pulling into the rank Mr Bulpitt left his taxi to go to the kebab kiosk and when he returned a few moments later he was yelling about how the council had given the rank to foreigners and foreigners had prevented British people from getting jobs. The claimant said he ignored these comments. He said that he was parked behind Paul Bulpitt and that whilst other taxis were moving Mr Bulpitt’s was not moving and so Mr Olumade went to see if there was adequate space for his taxi to move. As he returned to his taxi Mr Bulpitt appeared from nowhere yelling insulting words and threw hot liquid in his face.[268]He then said as follows I was blinded temporarily, left shaken as I had never been subjected to such unwarranted violence and palpable hatred. Saying I was shaken is really a gross understatement. There were other drivers there. When I asked aloud that everyone should kindly confirm that they had actually witnessed what just happened, they all kept quiet except the driver who was immediately behind me (Moshen Arfa) who said he witnessed all that had transpired. After being able to locate a witness I headed for my car only for Paul Bulpitt to come to me still threatening and promising more violence on me. He kept reminding me that this is UK and we immigrants had better go back to where we came from As I was about to get into my car, I was pushed in the chest several times by another driver Stewart/Stuart who came with Paul Bulpitt to me saying, this was a sample of things to come. Both he and Paul Bulpitt said if the council could not remove me from the rank, they will do a better job than the council.[269]Mr Olumade asked Mr Arfa to take pictures and when , and the drivers saw what was happening, they gathered around Paul Bulpitt and Mr Olumade over heard them saying this is what you will say .[270]Mr Olumade’s report continues I moved my taxi away from the rank and whilst waiting for the emergency services, Paul Bulpitt kept shouting at me that if I was a man I should come back and fight him. After some minutes the police arrived. They interviewed me and got a witness side of the story from Moshen Arfa [who]was the only driver who agreed to say what he saw. I was advised to get my eyes treated at the hospital by the police. I had to drive with a reserved pair of glasses.[271]He finished the report by stating that verbal insults and abuse had escalated to physical violence which was frightening and left him wondering whether he should go back to work or not. He suggested that the council should intervene immediately and not wait for a driver to be physically damaged or even killed before you start an inquest to find out what has happened. He suggested putting CCTV under the trees the turning circle as that might serve as a deterrent from the attempt intimidation and abuse going on at the rank.[272]The claimant sent the footage of the assault from his dash cam to the police on the 22 February 2016.[273]A file note made by Mr Wake refers to a letter sent on the 25 February 2016. It says update re complaints made by and against Mr Olumade and to recommend he avoids contact with the driver he has submitted a complaint against.[274]On 8 March 2016 Mr. Wake also sent the e-mail that the council had received to the police. No copy of any e-mail sent to Mr Olumade has been provided to the[275]On the 17 March 2016 Mr Wake wrote to Mr Arfa, who was the only taxi driver who was prepared to confirm that he had witnessed the attack on the claimant and was also a black African taxi driver, in respect of a number of allegations which had been made against him by other taxi drivers. In the letter Mr Wake acknowledges that some of the complaints are the word of others against the word of Mr Arfa and says he does not propose to pursue the matters. He starts his letter by saying I am mindful of the current position. I have chased the lead police officer to establish the progress of matters reported to the police.[276]Mr Olumade made a further complaint on the 24 March 2016 of harassment, taunting and racial comments by Paul Bulpitt. He said he had a video and also attached a Word document.[277]In the report submitted to the authority on the 24 March 2016 headed Harassment Taunting Racial Comments by Paul Bulpitt on HD400 he noted that he had been advised by BDBC that they could do nothing until after the conclusion of the police investigation. He noted that he had been advised to avoid communication and altercation with Paul Bulpitt or Stuart Hart. He noted that the police had given the same advice. He noted that he had been unable to get out of his taxi for fear of attack and that they (the claimants) had increased security around their taxi. We understand this to be a reference to additional cameras fixed on their taxi.[278]He said for the past fortnight Mr Bulpitt had been harassing him using subtle forms such as staring at him and passing remarks that other drivers should watch out for those who cannot speak English. He also said that Paul Bulpitt was harassing him and intimidating him by driving very close to his taxi when he approached the rank. The claimants relied upon this e-mail to the licencing team as a protected act and the respondents accept that it was one.[279]He also reported an incident when he was assisting a customer close the door and he heard Paul Bulpitt shouting make sure you are not ripped off to the passenger in the taxi. He then reported he saw Paul Bulpitt holding up a cup of tea and coming towards him. He said Paul Bulpitt said over charger go home and leave the country and nearly bumped into him with a drink in his hand. The claimant confirmed that he had video evidence but no audio. He reported that matters were becoming unbearable with Paul Bulpitt and his gang at the work and asked the council to do something before something nasty happened to his wife his family his property or himself. He stated that he had the right to go to work without fear of persecution, racial harassment, violent injury or death.[280]We find as fact that the events above occurred as Mr Olumade had set out in his letters at the time and as confirmed by his evidence to the employment[281]The response from SB in the licencing team, stated regret for the incidents and told the claimant to report matters to the police for their investigation as well. She stated that she understood that Mr Wake was looking into the reports and that she would forward the e-mail for his attention. SB forwarded the report to Mr Wake on the 24 March 2016 and stated that she had replied to Mr Olumade and asked him to report the matter to the police as well.[282]We find that there was no response at all by BDBC to the report of racist violence and racist comments and threats and apparent collusion with that violence by other drivers. In particular, there is no evidence of any investigation by BDBC officers into Paul Bulpitt for his alleged comments, and we find that there was none at that time. Children in Pushchairs/ buggy/ Wheelchair concerns in 2016[283]As well as the carriage of wheelchairs, the correct way to carry children and pushchairs became an issue for the claimants and the authority, and the source of a number of allegations and cross allegations,[284]On 4 April 2016 the second respondent, Miss Akinleye asked for guidance about how children in pushchairs should be carried by taxi drivers. She stated that given the fraught and intimidating atmosphere at the Basingstoke train station rank without your evidential guidance and support I do not have the confidence to ask a child to be taken out of a pushchair for the fear of arousing the wrath of other drivers.[285]She received a response from TE the assistant licencing officer on the 4 April 2016. The advice stated that children should never be left in a push chair or buggy whilst in a taxi, but they should always be seated with the appropriate restraints and only wheelchair users should remain in wheelchairs.[286]Miss Akinleye states that her e-mail raised her concerns about her own safety and she told the tribunal that she did not receive any response from the local authority in respect of that part of her concerns.[287]Miss Akinleye says (issue A5) that other drivers continued to break the rules. She accepted that she was never told to stop taking pushchairs, but rather she inquired about the rules and was told what the position was. She accepted that she was not aware of any situation when white drivers were told that they could do what they liked and could not give any concrete examples of white drivers being told that they could continue to carry children in pushchairs.[288]However, her complaint is that whilst she and Mr Olumade were abiding by the rules , other drivers were not, and this meant that there was difficulty, because she might refuse a fare if the adult passenger refused to take the child out of the pushchair, where another driver would accept it, even though it was a breach of the rules. She considered that this was unfair to her.[289]We find that the differences in application of the rules had the potential to cause tensions and to lead to loss of fares if passengers knew that some drivers would be willing to break the rules. We find that the effect of the rules was a matter that concerned licencing. If a licenced taxi driver was not abiding by the rules then there was the potential for them to be investigated and potentially sanctioned by the licencing authority. We have no evidence that any driver was ever questioned about their practise or that any action was ever taken to enforce the rules in this respect.[290]Miss Akinleye asserts that complaints were made by black drivers about white drivers carrying pushchairs with children, and she says that she herself made a complaint later in 2018 after the newsletter had been produced. She said her complaints were made in 2018 and 2020 and that she got a reply to the 2020 complaint. She explained that that e-mail complaint was a list of a variety of complaints and her response from Mr Wake was that it may take the council a while to respond. She says that in fact she never received any further response.[291]We were referred to the complaint in which the claimant has named a number of taxi drivers who she says had passengers using wheelchairs transported sideways and unrestrained, as well as 11 examples naming taxi drivers who had transported children still in their buggies or pushchairs.[292]This was an e-mail sent in response to a request from Mr Wake for further details of the initial allegation, in respect of wheelchair users being placed incorrectly in the taxi. He had asked for details including the names of the taxi drivers and in response the claimant had provided evidence of that allegation and given evidence of the second allegation in respect of children left unsafely in buggies.[293]We find that these allegations were never in fact ever investigated, and we have no evidence that any response was provided to the second claimant. We find none was.[294]These were allegations of white taxi drivers carrying passengers incorrectly and we compare the way the BDBC officers dealt with these complaints to the way complaints made about the claimants not doing things correctly or in accordance with the rules, were dealt with at other points in the chronology. We find that these complaints were treated differently and that therefore the white taxi drivers about whom complaints were being raised were treated differently because there was no apparent investigation and certainly no response to miss akinleye about her allegations.[295]The allegation is in respect to the detriment of being deprived affairs because the claimant followed the rules and others did not. it is also that the failure of the respondent to take steps to enforce the rules against the white drivers and the situation where the claimants refused the fares caused hostility to the claimant from taxi drivers and customers.[296]Our findings of fact in respect of this matter are relevant two findings and conclusions on different treatment and the reason for the different treatment in respect of a number of other allegations about how complaints were dealt with.[297]The failure of Mr wake to take steps to investigate the claimants’ allegations is a different approach and different treatment we accept that it had an impact on the claimants, but it was the actions of the white taxi drivers in failing to follow the rules that caused the detriment. The drivers were not acting as agents of the council (we have set out our conclusions on agency at a later stage in this judgment).[298]We have asked whether the failure to act on a complaint about others is a matter which impacts on the licence or which of itself is detrimental to the claimant so that the council could be said to be subjecting her to a detriment. We conclude that it could be.[299]However, we have made no findings of fact about Mr wake who was the decision maker at this point from which we could conclude that the reason or the cause of him not taking action was either because of the claimant’s race or was related to the claimant’s race. We therefore dismiss this allegation.[300]Issue A7 is a complaint that the respondent referred to the second claimant in documents as Olumade’s wife rather than by name. She asserts that there are a number of instances of this happening and that since she is an independent licenced taxi driver she should be referred to by her name or her licence number and not simply as Mr Olumade’s wife.[301]It was suggested to her that this was simply the result of busy people writing things down quickly, but she pointed out that it was quicker to write her name than it was to write Olumade’s wife. She accepted that she had not complained to the council at the time. She alleges that this is different treatment because she is a woman and because she is black. No one gave evidence for the respondent to explain this.[302]There is no evidence before the tribunal of anyone else ever being referred to by their marital status or by their relationship to another individual. In all the documents we have seen, taxi drivers are referred to by their name or identified according to the number of their vehicle. It is only the claimant who we have ever seen referred to by her relationship with another person.[303]We are aware that there was another taxi driver husband and wife team, Mr and Mrs Tawton, were always referred to by name as not by the relationship they had with each other. Mr Olumade was not referred to as Miss Akinleye’s Husband.[304]On the 20 April 2016 Mr Olumade wrote again to the local authority about harassment by Paul Bulpitt on the previous day. He stated that he, Mr Olumade, had refused to take a fair to an Oakridge pub for £5 because the fare was about £8. He noticed that Stewart had taken the passenger and he then heard Paul Bulpitt shouting that he, Mr Olumade, was an over charger. He reported a number of other matters and stated that he had already reported the harassment. He implored BDBC licencing department to advise all drivers about the implications of spreading malicious and unfounded rumours, which could be a form of harassment.[305]On the 5 May 2016 the claimant made a further allegation of dangerous driving against Mr Paul Bulpitt, giving a date; describing an incident and stating that Mr Bulpitt had effectively tried to reverse into his car. The claimant also sent an email regarding harassment by Paul Bulpitt and made reference to the health and Safety at Work act and the Harassment act 1997. He said that the local authority should endeavour to eliminate the risk of harassment, assault or the exposure to reasonably foreseeable violence. He continued as it is the working environment is not conducive to work as we are under threat from Paul Bulpitt. though an assault case is with the police, we have reported various offences with the council nothing has been done to address the situation.[306]We find that at this point as far as the claimant knew, the council had done nothing to address the situation.[307]The claimant relies upon this e-mail as a protected act and the respondent accepts that it was one. The e-mail was sent to the licencing team.[308]Mr Wake replied on the 5 May stating that he was continuing to liaise with police officers and was expecting an update regarding the case the following week and that evidence was being considered by the Crown Prosecution with a view to deciding if Mr Bulpitt would be charged with any offence.[309]On the 15 June and in a further e-mail on the 29 June 2016 the claimant wrote again to Mr Wake asking for an update on matters that he had reported on the 22 February 2016; 24 March ;6 April ;20 April;5 May and 28 June 2016.[310]Mr Wake wrote on the 21 June 2016 stating that he had interviewed Mr Bulpitt with a representative. He said they had to await the outcome of police charges before they could determine any appropriate enforcement action from a licencing perspective.[311]He then stated that during the interview it had been explained to him that there was a perception within the Hackney carriage trade that Mr Olumade refused short journeys; that he quoted customers expensive prices for relatively short journeys. He said although no specific times and dates were provided to us of such occurrences, it is claimed that you quote £50 pounds to Hook and £75 pounds to Farnborough. He said it was also reported that Mr Olumade was not using his meter for fares within the district. He said the subject of our complaint interview and his representative reports these matters cause frustration within the Hackney carriage trade as they believe these alleged practises impact negatively upon them.[312]Mr Wake then stated as I say and I wish to make clear at this stage no specific examples times etc have been provided to us but I consider it fair to communicate this with you as part of our complaint investigation and to seek your feedback to these matters raised. I would therefore be grateful if you would please provide me with your feedback to these allegations.[313]It was not suggested by Paul Bulpitt at this point that Mr Olumade had somehow provoked the attack. He did suggest this later in the chronology following the revocation of his licence and in the course of his appeal against that revocation to the magistrates.[314]The claimant asked to know who had made the allegations and was told that it was Mr Bulpitt and his representative Mr Peter Dainty.[315]Mr Wake stated that no specific times or dates of alleged incidents had been provided so the reports constitute hearsay information. He said no evidence was presented to corroborate the matters and but that it was alleged that Mr Olumade used practises which caused annoyance with some drivers. He said the purpose of his e-mail was to advise you on the matters raised and the perception by Mr Bulpitt Mr Dainty and allegedly other drivers.[316]Mr Olumade replied asking whether he was being asked to confirm or refute allegations of hearsay and referred Mr Wake to the BDBC licencing authority taxi and private hire winter 2012 newsletter which referred to a thorough investigation procedure which would take action based on reliable evidence provided.[317]He stated that it appeared that some credence had been given to the allegations. Mr Olumade refers to this as an act of discrimination because Mr wake asked him to defend allegations based on the feelings or perception of his contemporaries.[318]Since allegations had been raised, we agree that it may have been reasonable for Mr Wake to take steps to deal with them, but we contrast his treatment of the complaints from white taxi drivers about Mr Olumade on this occasion, with his treatment of the complaints Mr Olumade had made about Mr Bulpitt and others, on 20 April 2016. When Mr Olumade complained about things which appear very similar on the face of it, Mr Wake told the claimant to report matters to the police and took no action, when the complaints were about Mr Olumade, he investigated the matters, asking Mr Olumade for an explanation.[319]We find that in this instance, Mr Wake treated similar complaints From taxi drivers of different races differently.[320]We find that the way that this licencing authority dealt with vague allegations was to ask for further details including dates and names of individuals involved. We have seen this in the correspondence with Mr Olumade. We agree with Mr Olumade that these were not allegations which appeared to have any reliable evidence.[321]In addition, the timing of the allegations and the context within which they were made ought to have raised concerns with Mr Wake about the genuineness of the allegations, and whether Mr Bulpitt was seeking to excuse his actions by deflecting blame onto Mr Olumade.[322]Mr Olumade also said that Mr Bulpitt had said in his hearing that Mr Wake had said that the 60 years of working as Hackney drivers that himself and Mr Dainty had between them held more weight than the 2 1/2 years that the claimant had and further that they would ensure they got rid of me. We accept Mr Olumade’s evidence and find that Paul Bulpitt had made a comment about something that Mr Wake had said to him.[323]He also reminded Mr Wake that he had told the claimant that he should not have any contact with Mr Bulpitt and that Mr Bulpitt had been written to in the same terms. Mr Olumade pointed out that he had done as recommended to the extent of reducing his working hours.[324]He said he did not refuse journeys of any kind, short or long. He made use of the meter when the passenger boards his taxi and that he does not quote expensive prices for relatively short journeys outside the district. He then said whilst complaints I have made about Mr Bulpitt’s harassment for which I have documented evidence is not dealt with I am not happy that I am being called upon to defend myself against unsubstantiated allegations. This brings a lot of questions to mind and really does make me wonder.[325]On the 28 June 2016 the claimant wrote to the licencing team stating that Paul Bulpitt had refused to carry a passenger on the 3 June 2016 to a youth hostel in May Place. He stated that he himself had taken the passenger and that when he returned to the rank Paul Bulpitt was still waiting. He said he had video evidence in respect of this.[326]We find that the complaint raised by Mr Olumade was very much the same type of complaint except with a specific date, that Mr Bulpitt and Mr Dainty had apparently made against Mr Olumade. If the council was operating a fair investigation process, we would have expected some evidence to be presented to us that Mr Wake had referred the matter to Mr Bulpitt and asked him for an explanation.[327]What did happen is that Mr Wake wrote back to the claimant on the 18 July 2016 describing this allegation as one submitted on behalf of the third party or a passenger. Mr Wake asked for the details of the passenger so that they could be contacted about the matter. He said he had not followed it up at that point.[328]The claimant wrote again to the respondent on the 4 September 2016 making reference to this exchange. He said that he would supply video evidence and asserts that he did so the following day. We accept his evidence on this point.[329]We have no evidence that Mr Wake ever did follow this matter up with Mr Bulpitt and we certainly have no evidence that the matter was added to his case file as an unresolved complaint. We have no evidence that this happened and we find that it did not. This is evidence of a difference in treatment by Mr Wake of Mr Olumade, a black taxi driver and white taxi drivers, when complaints were made by them respectively about the other.[330]We find that he did not add it to Paul Bulpitt’s file. We find that Mr Wake was treating complaints made by the claimant about Mr Bulpitt differently to the way that he was treating complaints made by Mr Bulpitt about the claimant. This was a detriment to the claimant, and also something done in connection with the terms on which the claimant held his license. This is because the BDBC evidence is that all complaints logged on file, have the potential to be referred to, if a question raised about whether or not a driver should have their license revoked, on grounds that they are not a fit and proper person.[331]The claimant wrote again on the 28 June 2016 to the licencing team about the allegations made by Paul Bulpitt and Peter Dainty. He said they were gossip about taxi issues and referred to slander. He said that the allegations were an attempt to pervert the course of justice he said he was considering taking legal action against the perpetrators and might call Mr Wake as a witness.[332]We accept the claimants’ evidence contained in his contemporaneous correspondence that he had overheard a number of taxi drivers telling Mr Bulpitt what he should say. We all agree that the most likely explanation is that there had been some collusion between white taxi drivers and attempts were being made at this point to damage Mr Olumade by making unsubstantiated allegations and by spreading gossip and rumours about him. We also find that there had been statements made to Mr Olumade which were racist and based on the claimant’s race and ethnicity. We find that, given the timing of them, Mr Olumade’s concerns that Mr Bulpitt was seeking to justify his actions by blaming the claimant, were probably right.[333]From the evidence we have heard, we find that it ought to have been obvious to the BDBC officers that a group of white taxi drivers who supported Paul Bulpitt were effectively ganging up on Mr Olumade. Mr Olumade had raised complaints and concerns about harassment and race discrimination on the taxi rank. The only action taken by the council at that point was an interview of Mr Bulpitt, which resulted in Mr Olumade being asked to provide justification in respect of unsubstantiated complaints made against him, we find in retaliation for Mr Olumade’s complaints about an alleged racist attack.[334]We find that there was a difference in the way that the claimant was treated compared to the way that Mr Bulpitt was treated by Mr Wake.[335]At this point Mr Bulpitt was still being investigated by the police in respect of his assault on the claimant and was still working as a taxi driver. No steps had been taken at all to consider revocation of his license or suspension of his license. Whilst this was frustrating for the claimant, we find that the BDBC considered that they could not take any adverse steps that might prejudice the police investigation the criminal trial.[336]However, we find that the council could and should have investigated complaints made by Mr Olumade of further and different alleged incidents. The failure to investigate allegations made by Mr Olumade, whilst investigating those made by Paul Bulpitt and others about Mr Olumade, is not explained in any rational way by BDBC. Mr Wake took decision about what to investigate and used different explanations and reasons in each case.[337]This is a situation where it is not simply one instance of a difference in treatment but is a number of instances of different approaches taken by Mr Wake to very similar complaints being made. It is also different treatment made in the context of a serious complaint having been made about racist behaviour by Mr Bulpitt. Mr wake ought to be able to explain why he made decisions to raise some matters with Mr Olumade but did not raise similar matters with Mr Bulpitt. From all the fact that we have found about this, we could conclude in the absence of an explanation from Mr Wake that the difference in treatment was either because of race or was detriment because the claimant had done a protected act.[338]We remind ourselves that direct discrimination does not have to be conscious. In this case we have no explanation for the different treatment of the claimants’ complaints and the complaints made by Mr Bulpitt, and we conclude that it was because of race, all be it unconsciously. Complaints about the second Claimant in 2016[339]On the 28 June 2016 the council received a complaint against Hackney carriage plate 12. The complaint was that the individual, assumed to be another driver, had questioned the driver of carriage plate 12 about not taking a passenger who was paying by card and alleged that he (the other driver) says he ( Mr Olumade) takes card payments only when it suits him and doesn't have card payment stickers on his vehicles. The complainant said that the other driver said he was reporting him to the council for harassment and he was recording him.[340]On 29 June 2016 Mr Olumade phoned the council and left a message for Mr Wake. He wanted to complain about institutional racism in the licencing department. The note of the call written for Mr Wake states that the writer thought the call was about the railway station taxi rank and malicious rumours of racial abuse. It said, I think he also implied that there is racism at the council but customer was difficult to understand as on mobile and line not good and he has a strong accent. he says this is an ongoing issue. Mr Olumade asked for a call back. He relies upon this as a protected act and the respondent admits that it was one.[341]On the same day the claimant sent an e-mail to the licencing department asking for an update about racially motivated violence and racial comments. He relies on this as a protected act and the respondent admits that it was one.[342]On the 29 June 2016 the complaint about Hackney carriage 12 and failure to take card payments was forwarded to Mr Wake by Sheila Stevens, who stated that H12 was Mr Olumade. The claimant makes an allegation of discrimination in respect of an entry made on a job sheet on 7 July 2016, that he had refused a customer who wanted to pay with a credit card. That allegation appears to have been made by Thomas Cliff. We assume that it is the same incident.[343]Mr Olumade and Miss Akinleye have both explained that they do and did accept credit card payments and that in fact a large number of fares do in fact pay by credit card. We accept their evidence, as do the respondents, that there was no obligation upon a taxi driver to accept a credit card payment and we also accept their evidence that there are parts of Basingstoke and Dean where the Internet connection is extremely poor and that therefore credit card payment can be difficult in those destinations. We accept Mr Olumade’s evidence that he has lost fares on occasions due to poor connectivity and accept that it was fair for him to do a risk assessment of a fare before accepting a job. Since we find there was no legal obligation to accept a credit card fare, we agree with Mr Olumade that the matter should not have been dealt with as a complaint and should not have been recorded as such on his file. We also find that this looks like a third-party allegation, of the type Mr Wake asked the claimant to provide further information about. There is no evidence that Mr Wake asked the complainant for further details in this case, and we find he did not do so. This is a further example of different treatment.[344]On 30 June 2016 Mr Dainty accused Mr Olumade of harassing him at the taxi rank. We accept the claimant's assertion that Mr Wake proceeded to investigate this allegation and we also accept the claimant’s evidence that when the claimant had previously made allegations that he was being harassed at the taxi rank, he was told he should report the matters to the police. Mr Olumade was reporting matters of serious race harassment, Mr Dainty’s allegation is entirely unclear. We find this is an example of different treatment by Mr Wake, and treatment which led to a complaint being logged against him, which was a detriment to the claimant. The claimant alleges that this was an act hope discrimination because Mr Wake, did not refer the complainant to the police, as he had earlier done when the second clamant complained about similar matters.[345]There was a difference in treatment and a difference in race, and we have made findings of fact about the statements made by the BDBC about how they would deal with various complaints, as well as findings about the context within which the complaints were being made, and the number of occasions on which there had been different treatment of complaints all to the detriment of Mr Olumade. Whilst a single incident may not raise a concern the number of occasions on which Mr Olumade had not had his complaints dealt with, raises a concern. we have made findings of fact from which we could conclude in the absence of an explanation that this was an act of discrimination, and we have no explanation from Mr Wake for his different approach to very similar types of complaint, from taxi drivers of different racial background. We conclude that this was an act of subconscious direct race discrimination.[346]On 25 July 2016 a third-party allegation was recorded on Miss Akinleye’s file. This is Issue A6. We have been referred to a document that the claimant says she received as part of her subject access request made in 2018.[347]The complaint was made by a customer about a driver refusing to collect an elderly lady in a wheelchair from the hospital and take her back to her care home on 19 July 2016. She wanted a black cab and the hospital had called the rank, but none of the taxis could take her. The allegation was that an individual taxi had not been able to load the wheelchair. The complaint referred to the cab as #2 referring to the number one in the rank having taken off to take someone to hospital. Miss Akinleye says that it was nothing to do with her, and points out that neither she nor the number of her taxi was mentioned.[348]The person who took down the complaint noted the driver number was 12. We accept that this is different from the driver’s licence plate.[349]The tribunal has seen the file note made at the time which states asked for name or plate number of #2 vehicle as H12 is Olumade’s wife’s vehicle. wait for driver name but NFA at this point. The matter was never raised with Miss[350]From the preceding note there is no suggestion at all that the driver was H12 or Mrs Akinleye. As the only reference in the initial report is to driver 2, we find it most likely that it refers to the second driver at the rank, rather than the number of the taxi.[351]In handwriting, on the file note, is written third party allegation no evidence of which driver this relates to, anited under H12 but unless anything further evidence is received nothing wrong has been proved or investigated re this call. We find that the handwriting must have been added after the document was printed out, because it could not have been written on by hand when the document was stored electronically.[352]Miss Akinleye says that the request in respect of taxi #H12 appears to have been added by the person who was recording the complaint rather than having been identified by the person making the complaint. We agree.[353]BDBC officers told us they had to record every complaint but did not have a process for dealing with complaints where the driver was not identified. They had to make a choice about where to file it, exercising a discretion.[354]There was no obvious reason to put this on any file, since the driver had not been identified and we have no explanation for putting it onto Miss Akinleye’s file. It may have been an assumption or a lack of concern about whether this was something she had done or not, but we have no evidence either way. Mrs Stevens did know that putting any allegation on someone’s file meant that it could potentially be used against them at a later stage however, and therefore knew that this was potentially detrimental for them.[355]The respondent suggests that there was no complaint recorded against the claimant and that nothing in fact ever happened in respect of it, and therefore it is not capable of being a detriment. We disagree.[356]First, we refer to our finding that the Respondent would look at all the allegations on file when considering whether a person was fit and propter to hold a license. The more negative allegations, the more likely that there would be questions raised which might lead to revocation or a hearing to consider revocation.[357]Miss Akinleye complains that both she and her husband were concerned that unsubstantiated complaints were being made against them and that the council were doing nothing about it. We find that she is right, that this is an example where a complaint which is nothing to do with her, is deliberately retained by the council on her file for no good reason. She says that the only reason is so that it might be used in the future if there was an opportunity to criticise the claimant.[358]The handwritten note is not dated. The Respondent has not been able to explain when the note was made or by whom. The word anited was used previously by Mrs Stevens, and is an odd word to use. The file note says it was allocated to SSS. We find that on balance it was Mrs Stevens’ handwritten note and that she made this decision.[359]The note must have been made at some point later. We find that it was written at the point the documents were provided to the claimants, as a result of the 2018 subject access request.[360]We have no evidence that the Mrs Stevens or any other officer of BDBC ever put unsubstantiated; unattributed allegations onto any white taxi drivers file and we find that they did not. We find that this was less favourable treatment of Miss Akinleye, and a detriment to her.[361]Taking into account our findings of fact about Mrs Stevens attitude to Mr Olumade, at the start of their relationship and over a period of time, and the attitudes of staff to Mr Olumade and Miss Akinleye, we have found facts from which we could conclude in the absence of an explanation that the treatment could be on grounds of race. The respondent has not discharged the burden thus placed upon them because they have provided no explanation. We therefore conclude that this was an act of direct race discrimination.[362]On the 30 June 2016 Mr Wake wrote to Mr Olumade stating that the council was in the process of investigating numerous complaints that they had received in relation to activities at the station rank largely between drivers. He referred to allegations and counter allegations regarding and involving various drivers and said that they would provide updates in due course. He stated that the letters had been posted to Hackney carriage drivers with the purpose of encouraging drivers to go about their business professionally and without interfering with others. He stated unrest the rank is not positive for the trade and I hope drivers will act on the advice contained within our letter and focus on the job.[363]We find that this assessment of the issues at the taxi rank suggested that there was some fault on all sides. We find that this was unfair. We find that what had happened was that Mr Olumade had been attacked by white taxi driver and when he complained unfounded allegations had been made against him in response.[364]There was no response to any of the serious and particular matters raised by Mr Olumade.[365]On the 30 June 2016 a letter was sent by Mr Colin Rowland, Head of Street Scene, Parks and Regulatory Services, stating that the council had received a number of allegations and counter allegations from drivers relating to instances of behaviour including harassment, bullying, intimidation, unfair charging practises, refusing to take fares and racist behaviour. The letter noted that the council would not tolerate that behaviour in any form and would take appropriate action against any drivers found to be acting in that way. The letter said we do not require a police conviction to consider such enforcement actions referring to inappropriate behaviour which may lead to suspension or revocation of hackney carriage drivers’ licences.[366]The letter then went on to say that the council can only act when evidence is provided to substantiate such allegations. We cannot act on 3rd party hearsay comments or prove allegations without evidence. …………..the council will rely on its own and police evidence to determine whether any action should be taken against those who are accused of acting inappropriately. We also strongly suggest that if you consider action taken by other drivers to be inappropriate that you immediately report such concerns to the council or the local police. You are reminded that the service you are licenced to undertake is to transport the public and you operate in a public domain. Any issues with unacceptable conduct that is witnessed by the public will have a detrimental effect on their willingness to use Hackney carriage services or the station rank , … . .[367]The letter goes on to say I wish to remind you that it is an offence to leave your vehicles unattended at the rank. Drivers should not have cause to leave their taxis except to assist their passengers. We shall be monitoring the ranks to establish any offences.[368]The letter was sent to all Hackney carriage drivers.[369]We find that this letter was a genuine attempt to try to deal with issues of unrest at the taxi rank. We note in particular the comment that the BDBC do not have to wait for a criminal conviction before considering taking action against a taxi driver. This is in contrast to the response subsequently given to Mr Olumade about the reasons for not having taken action to revoke the licence of Mr Bulpitt more swiftly, either before he was convicted or following this conviction.[370]What the letter does not do is address Mr Olumade’s specific concerns that he and his wife were the subject of specific acts of racial harassment and race discrimination, including threats of violence and an actual assault by other white taxi drivers. By sending the letter to all drivers there was no acknowledgment of the aggression and antagonism that one group of white taxi drivers was showing towards a black taxi driver.[371]On the 5 July 2016 Mrs Cannon attended a meeting of BDBC licencing committee, where carriage of wheelchairs was discussed, including large battery operated wheelchairs.[372]At that meeting, it was noted that whilst all taxis had to take pushing on wheelchairs, there were difficulties with the heavier ones because they impacted on the ramps and some vehicles did not have sufficient weight bearing limits to allow for them to be carried. Mrs Cannon stated that it was difficult to assess when a taxi could and should carry a heavier battery operated wheelchair, because different wheelchairs and different passengers weigh different amounts and the different vehicles have different weight bearing limits. She said that drivers were expected to do a risk assessment at the time. She expressed a hope that a driver would not use that as an excuse to refuse a fare, but said that if there was an issue of that type, the Council officers would probably go back to the manufacturer to check the safe loading bearings. Since Mrs Cannon was representing the council, we understand this to be a statement of the expected practise of council officers.[373]On the 7 July 2016 a file note was recorded on Mr Olumade’s file that he had refused a job from somebody who wanted to pay by credit card and when the complainant questioned him, he had said he would report him for harassment. Mr Olumade says that this was an act of direct discrimination because there was no obligation or requirement for taxi drivers to accept credit card payments and therefore there was no licencing breach. He says that therefore the matter should not have been recorded on his file.[374]We find that the claimant is correct that there was no licencing breach but we also find as fact that it was the practise of the respondent to record all allegations made, on the file of the person about whom they were made. Out any further evidence of who recorded this matter we can make no findings that this particular incident was an act of direct discrimination or of victimisation although we do observe that it is evidence of how we would expect the council to record other allegations that were not strictly matters for licencing, if made by Mr Olumade about other white drivers.[375]On 8 July 2016 Mr Olumade wrote to the council asking for some guidance about the taxi conditions of carriage policy in respect of bikes and pushchairs.[376]On the 2 September 2016 the council issued a press release to parents and other taxi users which said to ensure the safety of all passengers in taxis in the borough, push chairs are not allowed to be used to carry young children inside the vehicle. The press release continued to explain the safety implications.[377]Following the press release, some taxi drivers including Mr Steve Tawton, posted messages on social media expressing a contrary view, that carrying pushchairs and prams in an upright position in a taxi (presumably with the child still in it) was acceptable. He suggested the recommendation would make it impossible for families with children under three to travel in a taxi. He said for the 27 years I've been driving black cabs we always carried pushchairs and prams in an upright position we've now been told this is against our terms and conditions and could result in losing a licence. Concerns about families with young children with no other means of getting home were expressed.[378]Mr Tawton stated it's all come about let's say this PC terms by a new set of drivers we got refusing and cherry-picking fares.[379]Whilst we have heard no evidence from Mr Tawton, we know that he was one of the white taxi drivers who was involved in a number of complaints about the claimant and those made by the claimant, and we infer that this was a reference to Mr Olumade. In the posts, a number of drivers including, Mr Tawton and Mr Gilluley were also very rude about BDBC and BDBC officers.[380]We all agree that Mr Tawton had misrepresented the release, which was not a prohibition on taking a child and pushchair at all, but rather a prohibition on taking a child who remained in a push chair during a journey, as a safety measure.[381]Mr Wake accepted that a query had again been raised by Mr. Olumade about the carriage of children in buggies and pushchairs and about wheelchair carriage. This was specifically about the way that children should be carried in taxis and whether the licencing authority would be taking enforcement actions against violators of the baby in the pushchair/ pram/ buggy issue amongst other matters. He asked for guidance and sent in videos of alleged violations.[382]Mr Wilson wrote back to Mr Olumade saying that the issue had been addressed in 2016, and that any violation was potentially a matter for the police, who had enforcement powers. He also said that allegations of someone smoking in a cab could be dealt with by Environmental Health, and that allegations of racial harassment should be made to the police. Mr Wake was forwarded the complaint and reply by Mr. Wilson on the 5 September 2017.[383]Mr. Wake confirmed that other than giving general guidance to the trade about this, matter no actual action was taken about any driver who the claimant had alleged had breached the guidance or rules.[384]During the summer of 2016 Mr Bulpitt was investigated and charged with various offences and a criminal trial took place.[385]By late summer 2016 Mr Olumade had made a number of allegations of ill treatment by other taxi drivers and taxi drivers had made various complaints about him.[386]At that point BDBC were faced with a serious problem amongst hackney carriage taxi drivers, with complaints and counter complaints being made on a regular basis. Many of the complaints were either made about Mr Olumade and Miss Akinleye, or by Mr Olumade and Miss Akinleye about those drivers who had complained about them.[387]We find that whilst this presented difficulties for Mr Wake and other licencing officers, there was at the root of the complaints and counter complaints an issue about racism. Mr Olumade made a number of complaints that his race and the race of his wife, Miss Akinleye were the cause of the animosity and antagonism that they were experiencing from other drivers.[388]We find that Mr Olumade was right about this, and that at least some of the allegations made about him were racially motivated. We infer from the facts we have found and from the circumstantial evidence, that some or all of the complaints made against Mr Olumade were also motivated by the fact that criminal action was being taken against Mr Bulpitt, and he was the reason for the action, and was giving evidence in the criminal trial, as was Mr Arfa.[389]We find that there was no investigation at any time about the whether Mr Olumade and Miss Akinleye were right about race being a motivating factor. The only discussion which took place was at a subsequent meeting with the diversity officer and the police, and no action to address complaints of discrimination by white drivers was taken by BDBC as a result of that meeting or anything else.[390]On 23 August 2016 Mr Wake wrote to Mr Olumade in response to a number of queries raised by him in respect of the power that licencing officers had in respect of enforcement work and the powers under the taxi and private hire related legislation.[391]On the 24 August 2016 Mr Wake wrote to Peter Dainty in respect of his complaint made on the 30 June 2016 about Mr Olumade. He said he had been presented with two different accounts of a conversation and that he was therefore not going to pursue the matter other than to record details on Mr Olumade’s case management records. We find that this was a possible detriment since the allegations were not proven under there for should arguably have been dismissed.[392]On the 26 August 2016 Mr Olumade reported an incident of harassment and passenger intimidation by somebody called Thomas Cliff, whilst he was at work taking payment from a passenger. He said Thomas Cliff came to his taxi and shut the door on his passenger. Mr Olumade said his actions startled the passenger and said he thought it was still reasonable to process the card whilst at the rank. He says the reason Thomas Cliff was doing this was his part of intimidation through undermining my integrity and making me feel uncomfortable . Mr Cliff was another taxi driver. According to the letter from BDBC he should not have been away from his taxi, and this could have been an offence, if proven.[393]We find that this was what happened.[394]The e-mail came to the attention of Mrs Cannon on the 5 September 2016 and she responded to Mr Wake stating, just looking through the emails. my question is, why would he be taking payment at the rank which is presumably the start of the journey and not when he dropped the pax (sic) off at destination.[395]Mrs Cannon knew and accepted under cross examination that it was lawful to take payment at the start of the journey and we observed that in instances where there is poor connectivity this seems to be an entirely appropriate approach.[396]The reaction of Mrs Cannon does not acknowledge the complaint about Mr Cliff but instead and suggests that she suspects Mr Olumade of some form of wrongdoing. We have not been referred to any similar suspicions or adverse comments made by her in respect of white taxi drivers who complained about anyone else.[397]The fact that Mrs Cannon questioned the actions of Mr Olumade rather than the actions of Mr Cliff is, this might be evidence of how Mrs Cannon would deal with any driver raising a complaint about another driver. We have no evidence that Mrs Cannon did routinely or ever express concerns about the behaviour of the person raising the complaint in any other instance, and we infer that she only expressed concerns about the complainant because it was Mr Olumade one of only three black taxi drivers raising the complaint. We find it was less favourable treatment of Mr Olumade. Mrs Cannon was very willing to criticise and find fault with Mr Olumade but was not willing to criticise or find fault with white taxi drivers in the same way.[398]Mr Olumade alleges that this was an act of direct discrimination by Mrs cannon and taking into account findings of fact we have made about Mrs Cairns attitude towards the claimant and taking into account the unwarranted nature of the criticism and taking into account the lack of any criticism of Mr Cliff, we have made findings from which we could conclude that this was an act of discrimination by Mrs cannon in the absence of an explanation. we have no explanation from her which we accept, and we conclude that it was an act of direct race discrimination. We conclude that it was one.[399]Mr Wake had made a handwritten note on Mr Olumade’s file, that he had given feedback to both drivers by e-mail on the 18 July 2016 following their written recollections of the incident. It then notes NFA. The file is electronic, and it is unclear when this note was therefore written, but it cannot have been at the same time. We infer it was written at a later stage and probably when the documents were disclosed as part of the subject access request.[400]Mr Olumade states that he did not receive an e-mail about feedback and that he did not provide a written recollection of the incident. We have not seen the email sent on 18 July 2018 and accept Mr Olumade’s evidence that he did not receive it, or himself provide a written report.[401]On 2 September 2016 the claimant received an e-mail from Rachel Petr of the police in which she stated that she was sorry to hear the claimant was continuing to have problems at the rank and that she would pass the comments on to the council she said I know they have been working with our neighbourhood teams to try and improve things. She then noted that the court hearing was that day and that she hoped it was going well.[402]On the 2 September 2016 Mr Bulpitt, pleaded guilty to assault and was convicted. He was subjected to a restraining order. At that point he remained as a taxi driver, able to continue working on the taxi rank despite the fact that there was a restraining order preventing him from any contact with either Mr Olumade or Mr Arfa.[403]On the 5 September 2016 , the claimant wrote to Mr Wake and the licencing team with a copy to Mrs Cannon giving an update on the aggravated racial assault by Mr Bulpitt on the 19 February 2016. He reminded the council that Mr Bulpitt was found guilty of assault (not aggravated assault) on the 2 September 2016 and ordered to pay fines; costs and compensation in addition to restraining orders being placed upon him. Mr Olumade asked for an update on the issue as soon as possible.[404]Mrs Cannon replied to the claimant on 6 September 2016 stating that the council were aware of the court case and would consider its outcome in regard the legislation and council policy as soon as they received a summary from the court or the police investigating officer. Mr Olumade wrote back thanking her, stating that as the victim of the vicious attack it was reassuring to know that she was working on it.[405]On the 9 September 2016 Mr Olumade’s taxi H12 was subject to an inspection whilst on the taxi rank. Mr Wake carried out of the check and considered that Mr Olumade’ s vehicle had squeaky or noisy breaks.[406]Mr Olumade asserts that his car was the only one inspected that day and that the inspection took longer than usual. The claimants say they were not given notice of it, and that the inspection took over 30 minutes and that Mrs Cannon was standing nearby watching the proceedings.[407]Mr Olumade says that this amounted to discrimination against him. He alleges detriment, but also the variation of terms on which he holds a qualification for the purposes of 53(2)b EQA 2010. He also alleges harassment. We remind ourselves that both claimants put all allegations in the alternative as acts of[408]The claimants complain that over the course of the period that they have been licenced, they were subject to more inspections of their vehicles than other drivers and that this is one example. They complain that Mr Wake tried to conduct the test on his own and that he did not inspect the cars of white taxi[409]The following week, Mr Wake states that he checked the case management system to establish when the claimants’ next vehicle compliance was due. He saw that it was due in mid-November and that the previous one had been conducted by a company called L&M which is one of three council approved taxi testing stations.[410]He then contacted the garage to ask if the taxi was booked in for the next compliance test and asked them to check the brakes for safety purposes.[411]Mr Wake then sent an email to L&M as follows: the above vehicle is due its certificate of compliance check by 18 November 2016. Previous tests on this vehicle have taken place at L&M this is the vehicle which I previously liaised with you after I witnessed it being driven with what I suspect to be loud squeaking brakes which I discussed with the driver. The driver informed me this was due to stones and that he had had this checked by Mercedes. If the vehicle test is booked with L&M could you please pay particular attention to the brakes as I would hope the matter has been resolved by now but if not and for safety purposes I'd like to know the brake system has been robustly assessed by qualified tester. Thanks in advance Andrew.[412]A response was received, although the name and address of the individual sending it and the date on which it was sent have again been redacted by the respondent and no unredacted document have been received in response to the order made at the start of this hearing. There was no explanation for the redaction.[413]The e-mail states the vehicle is with us now for a compliance test I have personally checked the vehicle with the MOT tester and found the brakes to be in good order.[414]Mr Wake refers to the inspection in his witness statement. He said he was not seeking to find fault with Mr Olumade’s vehicle but simply undertaking his role as a licencing officer to ensure the safety of the driver and the public. He makes no comment at all as to the reason for inspecting Mr Olumade’s vehicle, nor does he say whether or not he inspected anyone else’s vehicle that day. Mrs Cannon makes no reference to the incident in her statement.[415]Mr Wake has not explained why he felt it necessary to contact the garage without telling the claimant. We have no evidence that Mr Wake had ever made private and undisclosed contact with a garage in respect of anyone else’s vehicle at any time. Mr Wake had of course carried out numerous inspections of vehicles on other occasions.[416]We accept that ensuring the safety of vehicle is a necessary part of the licencing officers and enforcement officer's job, but not for that to be done selectively.[417]We find that the claimant’s taxi was the only one inspected that day, and accept that it was a long inspection and that Mr Olumade was singled out for inspection. We find that Mr Wake did consider that there was an issue with the brakes being squeaky.[418]We find that the treatment of Mr Olumade by Mr Wake was different to others and unwanted.[419]We conclude that he treated the claimant differently from any other white driver, or any hypothetical other driver, whose car had squeaky brakes, by making enquiries about the garage he used and understand the claimant's concern that he assumed that the claimant would be using the South African garage.[420]Mr Wake’s reference to the garage raises the question of whether the inspection itself was carried out for a wholly innocent motive, or whether Mr Wake and Mrs Cannon were looking for problems with Mr Olumade’s vehicle. We have no explanation for Mr Olumade’s vehicle being subject to a spot inspection whilst others were not, nor do we have any explanation for the length of the inspection.[421]We find Mr Wake concealed his enquiries from Mr Olumade and infer from his e-mail that he was checking up on the claimant because he did not believe the claimant.[422]We have made findings of fact about the treatment of Mr Olumade and the attitude of the BDBC officers towards him, by Mrs Cannon, Mrs Stevens and by Mr Wake. Mr Wake was well aware of numerous concerns and allegations that Mr Olumade had raised about other taxi drivers and was also aware that he had recently raised issues about racism within the council itself. All officers were also aware of the conviction of Mr PB at this stage.[423]We have no evidence of how he would have treated another person if he had concerns about their car, but also have no evidence that he ever contacted a garage of any other driver without telling them. We find that both by inspecting only the claimants’ vehicle and by the subsequent actions, Mr Wake treated the Claimant differently to the way he would have treated a hypothetical other driver.[424]We find that his conduct was unwanted and created a hostile and offensive environment for Mr Olumade.[425]We have considered whether we have found facts could support a conclusion that Mr Wake behaved in this way because Mr Olumade is a black African, or for a reason related to race, or because of the claimant’s protected acts.[426]Mr Wake had taken virtually no action to support the claimant and had we find treated the claimant differently in his approach to investigations of complaints on a number of occasions in the previous months. He knew that the claimant had made complaints of race discrimination.[427]We have made findings of fact from which we could conclude in the absence of an explanation, that these were unlawful acts of direct race discrimination or harassment and/or victimisation by Mr Wake.[428]The respondent therefore bears the burden of proving that there is a nondiscriminatory explanation for the treatment, both of choosing to single out Mr Olumade’s vehicle for inspection, and in making contact with the garage.[429]We conclude in the absence of a valid explanation that the act of Mr Wake, with Mrs Cannon, of singling the claimant out for inspection and then referring to his garage, was in part, both because of the claimant’s race, but also because of his protected acts and in particular the allegations of racism.[430]An unlawful act cannot be both direct discrimination and Harassment, and in this case, we conclude that the unlawful acts were either an act of harassment or an act of victimisation. We find it was an act related to race and created a hostile environment for the Claimant. We conclude that it was reasonable to treat it as an act of harassment. The Anonymous threat letter – September 2016[431]On 16 September 2016 the claimant wrote again to Mr Wake, the licencing team and Mrs Cannon with a copy to Colin Rowland and councillors as well as Maria Miller, his MP and Rachel Petr at the Hampshire police. He forwarded an e-mail to Basingstoke and Dean council licencing department which he had sent on the 5 May 2016 about his safety at the taxi rank and attached with his e-mail an image of a threat letter that he had received posted by hand through his letterbox post on Thursday, 15 September 2016 which stated as follows your behaviour and attitude towards customers and fellow drivers at work has made it impossible for you to carry on working Basingstoke 's taxi ranks you are strongly advised to take your taxi and work on either alphas or all districts circuit or simply give up the job which you're clearly not fit for or capable of doing properly. you need to go voluntarily before you're forced into doing so because one way or another it will happen! Even before you were found guilty of lying and were laughed out of court you were universally disliked and now you've just made it even worse for yourself go now! no one cares where or how just go while you've still got the option to do so on your own terms.[432]The claimant believed his life was being threatened and he had concerns that because it was sent to his family home, which included young children, that they were unsafe. He reminds the council that Mr Bulpitt pleaded guilty on the 2 September 2016 and was the subject of two restraining orders.[433]He reminded the council that various harassment, racial insults and intimidations had been reported to the licencing team and that nothing had been done. He asked the licencing team about the progress of the recently reported cases and notes that he was told by Mr Wake that he, Mr Wake, had not had time to watch the videos of the incidents that the claimant had sent in. He noted that Mr Bulpitt was still working as a taxi driver and that the police had informed the licencing department about the court's verdict.[434]We find that the letter from Mr Olumade was a call for help and that the contents and criticisms within it were true.[435]He referred to the BDBC’s power to suspend or revoke or refuse to renew a licence of a taxi driver who has been convicted of an offence involving dishonesty; indecency or violence or for any other reasonable cause.[436]He again suggests the council should install CCTV as a matter of urgency at the Hackney Carriage station turning circle.[437]The claimant relies upon this e-mail with its attachments and his previous e-mail of the 5 May as a protected act, and the respondent admits that both communications were protected acts.[438]On 16 September 2016 Mrs Cannon replied. She told him that most of his matters should be referred to the police, including the letter, envelope and CCTV footage. She said the council were aware of the conviction and were in contact with the court to seek official confirmation and were currently considering the matter. She said she and Mr Wake had both reviewed the videos provided and were unable to identify any breaches of licencing law.[439]She said that Mr Olumade, along with all the drivers would receive a letter setting out the council's position with regards allegations and counter allegations made between drivers at the railway station rank. She said any complaints or allegations received that are not a matter for licencing we will reply and direct those making a complaint to seek redress with the appropriate authority such as the police.[440]We accept that the council were right that the claimant should refer the anonymous threat to the police but do not accept that they could not take any actions themselves. This had been set out in the letter from Colin Rowland earlier in the summer.[441]However, we accept that the anonymous letter was a difficult issue for the BDBC to address. The letter may have come from another taxi driver, but it may have been from a member of the public. We accept that the BDBC have no role if such a letter were sent by a member of the public, and accept that they do not have a general obligation to support taxi drivers or protect from each other .[442]It is part of their role, to consider whether anything that had happened raised questions about the fitness or propriety of any driver to hold a licence, and regulate the way that drivers go about their business. If any taxi driver had sent this note, we would expect that it would raise a question about fitness and propriety, and would have expected some acknowledgement or comment from someone at this time. Here, the letter was anonymous, and the council had no basis to take any action against anyone.[443]However, the council did know that this had happened within the context of Mr Bulpitt, who had been convicted of a criminal offence against Mr Olumade, still working as a taxi driver, and there being significant antagonism between the claimant and a group of white taxi drivers. We find that the licencing team as a group, and Mrs Cannon, as the senior person, knew of the antagonism that a group of white taxi drivers were showing towards the claimant and Mr Arfa, and that this was or could well be linked to their race, or a difference in race.[444]It must have occurred to Mrs Cannon, as it does to us, that there was a possibility that the letter threatening Mr Olumade had been written by another taxi driver. We find that Mrs Cannon knew that the claimant was expressing concern that he was at risk of further violence. She knew that Mr Bulpitt had been convicted of violence towards the claimant on the taxi rank and that other white drivers who had witnessed the matter had refused to give any evidence of the matter.[445]The claimants do not make any allegation about how this letter was handled, but refer to it as background information, which they say underlines the seriousness of their situation. We rely on our findings about this matter when considering how hypothetical drivers of different race to the claimants might have been treated by BDBC. Assessment of the BDBC response to the claimants claims of different treatment of their allegations and those of white taxi drivers.[446]On 16 September 2016 the claimant received a letter from the respondent stating that the licencing team had been inundated with a large number of complaints; allegations and counter allegations. It says most of them were unsubstantiated and that the authority will only, in the future, respond to complaints or allegations that are the responsibility of the licencing service; have serious public safety implications and are adequately evidenced or substantiated. All other matters were to be referred to the police.[447]The letter also stated that although it was not required that drivers provide suitable seats to carry babies or young children, there is nothing to prevent them providing safe seating to accommodate the safe carriage of young children.[448]On the 16 September the claimant made a formal complaint that he was not being responded to regarding taxi driver issues and stating that this was due to racial bias as he was making a complaint against a white taxi driver. He said a previous issue went to court and since then he had made further complaints which had not been responded to by the council.[449]Mrs Cannon registered this complaint, and the system records that a reply was given on 29 September 2019. In the box which says justified it records no. The complaint is recorded as having been closed.[450]Mr Olumade received a response saying the matter had been passed to the relevant business unit to deal with, and that he should receive a reply within 10 working days.[451]On 28 September 2016 Miss Cannon replied to Mr Olumade . She referred to her previous e-mail and quoted it. She then said, despite this prompt reply you chose to log a formal complaint. Whilst I recognise that the matters you have raised are important it is not reasonable to expect an immediate response. She says for data protection reasons she is unable to provide him with any further information concerning the action the council takes in response to the driver who was convicted of common assault. She then says that the licencing team has received numerous emails from you relating to alleged issues at the rank. She tells him that he is wrong about duties under the Health and Safety at Work act, and that the legislation regarding fear of violence, harassment and assault are criminal matters and should be referred to the police. She says if the police proved that a driver has committed any of these offences, the licencing team will of course review their suitability to hold a licence but says, it is not our role to investigate these offences.[452]She says the council is reviewing CCTV coverage involved and that the council are reviewing the vegetation near the rank.[453]At no point in her response does she acknowledge that the claimant is raising a concern that he is being treated differently by BDBC officers by them not responding, because he is making complaints about racist behaviour from white taxi drivers. We do find that in this letter Mrs cannon does explain why she has acted as she has done. What she does not do is acknowledge any responsibility or possible responsibility of the licencing authority to the claimant, or duty That might be owed to him under the Equality Act or otherwise . There is no evidence before us that she took any advice from anybody else and we find that she dismissed his allegation of discrimination without any further inquiry.[454]We find that Mr Olumade had raised complaints with the licencing authority about aggressive and threatening behaviour from other drivers, of whom Mr Bulpitt was one, which were evidenced and which, if proven against a named individual, would be matters which a licencing authority would take into account when considering whether or not an individual was a proper person to be a taxi driver licenced by them. This is set out in the letter from Mr Rowland of the 30 June 2016.[455]We have reminded ourselves that the evidence we have heard from the respondent witnesses is that the application of the fit and proper person test post licensing, involves some investigation as to whether or not alleged behaviour or events have taken place, and an exercise of discretion about what action if any to take in respect of an existing license. We find that this would usually include consideration of whether or not the licencing officer would be happy for a member of their family, a child of theirs or an elderly person to be carried by that taxi driver, as well as the matters in para 36 of Mr Drapers statement, as set out below.[456]When asked, the respondents witnesses Miss Cannon; Mr Draper and Mr Wake all agreed that threats of violence and racism were matters which could and would be taken into account when considering whether a driver was a fit and proper person and whether or not any action should be taken in respect of a[457]We all agree that any reasonable licencing authority considering the fit and proper person test would not only consider a relative who was a white person but also a relative or family member who is a black person, or a Nigerian man for example.[458]We find that some of the comments which we find were made by some of the taxi drivers licenced by BDBC at that time, raised a question about whether a black or African taxi user would have been safe, when using a taxi driven by certain of the white taxi drivers.[459]We recognise that the racist and aggressive comments were directed at Mr Olumade, and have no evidence of any taxi driver being racist to any taxi user, or treating any use taxi user less favourably, but if the test was being applied equally, the racist treatment of Mr Olumade ought to have led to the question being asked, both in respect of Mr Bulpitt, but also in respect of other drivers who had supported Mr Bulpitt .[460]We remind ourselves that not only have we not heard evidence from white taxi drivers themselves about any of the events with which we are concerned, but nor, with the exception of the documents disclosed during the course of this hearing, about Mr Langley, have we been referred to documentation which demonstrates any interview with any of them to find out what the named individuals said in response to allegations. The only evidence we have of any action taken against taxi drivers is the assertion that a number of drivers were given written warnings at a later stage in the chronology about another matter. We find that a warning was given to Mr Langley.[461]Mrs Cannon made no reference whatsoever in her witness statement to the Paul Bulpitt incident. She does not explain how she dealt with the claimant’s letter raising his concerns and nor does she explain why the council took no action against Mr Bulpitt until after he was convicted, or what the reason for the delay post-conviction was. She does make reference to a complaint that Mr Olumade made about Mr Bulpitt in February 2017 that Mr PB had been smoking in his cab. She does not say that she took any action about this matter which has also been identified as a potential offence,[462]She does say as follows Mr Olumade was occasionally extremely polite but more often, unjustifiably aggressive to myself and all of my officers both face to face and on the telephone. When dealing with his applications for licences, this was usually when he could be polite. As soon as any allegations were made about him by the general public, other road users or other licensed drivers he became hostile, argumentative, aggressive, loud and in denial. Officers found his allegations of racism and racial profiling upsetting, hurtful and also incredibly stressful and tiring as well as unfounded. His continuous allegations and complaints took up a disproportionate amount of officer time and often related to matters that were not within the remit of the Licensing Team to investigate.[463]We find as fact there were no specific examples of rudeness or hostility or aggression from Mr Olumade, but that Mr Olumade did object to accusations made against him, and probably did object forcefully.[464]We find that there were occasions when Mr Olumade may not have helped himself and may have come across as confrontational, but we have no evidence at all that he ever made any offensive comments about another person and we remind ourselves that he is a black African man and we accept his evidence that he has experienced casual racism on a regular basis, in his day to day life.[465]We accept that allegations of race discrimination are difficult to deal with, and that officials may find them hurtful, particularly if they are accused of discriminatory actions themselves. However, we find complaints made by the claimants were not being made maliciously but were raised because of real concerns that Mr Olumade had about his treatment. He was entitled to be treated with respect and was entitled to have his concerns looked into.[466]We find that the evidence given by Mrs Cannon, as set out above, demonstrates that she at least, and probably her staff, resented Mr Olumade and experienced him as aggressive and hostile and intimidating, because he was raising issues which they found uncomfortable to deal with.[467]We reject the evidence of Mrs Cannon that the claimant behaved as she suggests and We find that he did not behave with hostility or aggression and find instead that he was courteous and polite when dealing with council officers, albeit that he could be on occasion, forceful and assertive.[468]We find that Mrs Cannon and other members of staff at BDBC saw the Mr Olumade, and Miss Akinleye by association with him, as the problem on the rank, and a problem more generally. Her failure to acknowledge his complaints about racism, points to her being uncomfortable at least, but on balance of probability, offended or annoyed by the fact that he was making allegations of race discrimination at all, whether against the council; against other white taxi drivers or against her staff.[469]An example is set out in the letter of 25 October 2016 from Mrs Cannon to the claimant to inform him that Mr Bulpitt’s Hackney carriage drivers’ licence had been revoked by the licencing subcommittee. She said that Mr Bulpitt intended to appeal, and that the law allowed Mr Bulpitt to continue to work as a licenced Hackney carriage driver whilst the matter was being appealed.[470]She then says that at the hearing a range of counter allegations were made about Mr Olumade, in respect of alleged provocation. She says as a result I would therefore request that you do not make any contact with Mr Bulpitt for any reason at all or indeed take any action that could be considered provocation by you or your colleagues /friends.[471]She continues the activities at the rank of being more closely monitored and if there is any activity by any driver that causes the licencing authority to call into question any drivers suitability to hold Hackney carriage drivers licence, we will not hesitate to take appropriate action.[472]Mr Bulpitt had been subject to a restraining order because of his behaviour. There was no suggestion before this, that Mr Bulpitt threw a hot drink Mr Olumade’s face because of anything Mr Olumade had done. Mrs Cannon does not acknowledge this. We refer back to her comments about Mr Olumade when an issue arose about him taking payment at the start of a journey, by card, and infer that she wrote her letters as she did in part because of her prejudicial attitude and animosity towards Mr Olumade.[473]Mr Olumade wrote again to the council asking whether or not a date has been set for Mr Bulpitt’s appeal to the Magistrates Court. on the 7th of March 2017 he was told that a date had been set but was not informed of the date. Mr. Wake confirmed that any licencing breaches committed by Mr Bulpitt in the meantime would be dealt with in accordance with the enforcement policy.[474]We find therefore that the fact that Mr Bulpitt continued to work as a Hackney carriage taxi driver between October 2016 and the magistrate's appeal hearing which did not uphold his appeal, was not the result of any action or failure to act by the local authority but was because of the appeal.[475]Mr Olumade and Miss Akinleye allege that the failure to act and the type of action and the way action was taken against white taxi by the licensing was different treatment to the way they were treated when complaints were made against them, and was less favourable treatment on grounds of race, and or harassment related to race, or was indirect discrimination.[476]We all agree that the actions taken by the council in respect of Mr Bulpitt’s licence, which in effect amount to a stern letter to all taxi drivers saying we won't put up with this sort of thing, was inadequate and unwanted by Mr[477]We find that the situations of the claimants and Mr Bulpitt were different, because Mr Bulpitt was being prosecuted by the police, and we heard evidence that the authority decided not to take action until the criminal case was determined. This may be a complete, non discriminatory explanation for not taking action against Mr Bulpitt until the end of the criminal case, but does not explain the delay, once he was convicted, or the lack of action in respect of other drivers complained about by Mr Olumade.[478]Mr Olumade had been investigated and called to meetings with formal allegations made over the Reading issue for example. The situations were not the same, and we do not have any actual comparator to evidence how a driver of different race would have been treated.[479]These are however findings of fact from which we can draw inferences about how a hypothetical comparator would have been treated.[480]We refer to findings we have made throughout this judgment about how Mr Olumade and Miss Akinleye were treated when complaints and allegations were made against them, and how they were perceived by Mrs Stevens and Mrs Cannon and other staff.[481]Mr Olumade was subject to intense scrutiny and thorough investigation by Mrs Cannon and Mr Wake, when it was suggested that there may have been an incident involving aggression or intimidation between him and Reading officers. He was called into a meeting, and we make findings of a lengthy and detailed behind the scenes investigation.[482]We find that the licensing authority had the power to conduct an investigation into any matter which they considered might be a licensing matter. The reason for interviewing a licence holder was to consider whether there was any question raised as to whether he had breached any rules, or whether he remained a fit and proper person. If the Authority decided that the person was no longer fit and proper, or if there was some other reasons impacting on his license, then the license could be suspended or revoked. the outcome of any investigation would also impact on the decision of about whether or not to renew a license. We find that the BDBC officers interviewed Mr Olumade because they were thinking about the fit and proper person test. The decision to investigate and to pursue the investigation in the particular was, was the exercise of a discretion.[483]BDBC did not have any standardised process for exercising discretion, and we find that it was a matter for individual officers what they decided to pursue. No one has suggested that there was, at this point at least, and need to justify any decision to look into any particular matter to a more senior officer, and we find that there was no standard or agreed procedure to follow.[484]In the case of the Reading matter, one of the reasons for investigating and pursuing the matter, was that it was suggested, albeit we find wrongly, that Mr Olumade had been aggressive. He had not been asked to comment, and he denied subsequently that he was. We find that Mr Olumade was not, on balance of probabilities aggressive, but was irritated at being stopped when going about his lawful business.[485]In contrast, Mr Bulpitt was convicted of assault, but was allowed to continue working as a cab driver even after the conviction, until his license was revoked by the licensing committee.[486]No other driver, including the ones alleged to have pushed and threatened Mr Olumade, faced any enquiry that we are aware of, and we have no evidence that the local authority carried out any investigation whatsoever in respect of an anonymous and threatening letter subsequently sent to Mr Olumade.[487]In February 2017 of the claimant raised complaints about Paul Bulpitt smoking and rank blocking. He wrote to Mrs Cannon. He sent in videos which Mrs Cannon reviewed. In particular the claimant refers to Mr Bulpitt rank blocking on the 16 January 2017 and suggests that when the queue moved forward, he did not move his taxi. He also points out that Mr Bulpitt was filmed smoking getting into his cab and driving off whilst still smoking which Mrs Cannon had indicated was not permissible. Her response to the claimant was that she could not identify any evidence of offences or breach of bylaws. Mr Olumade then wrote back providing a detailed description of a video which she claimed to have already watched.[488]She then replied saying I have now reviewed the DVD and confirm I am now clear on the location of the vehicles on the rank and says we will take the appropriate action.[489]We have no evidence that any action was in fact ever taken against Mr Bulpitt although we do observe that his licence was subsequently revoked for other reasons. We find that this is an example of Mrs Cannon responding to the claimant in a different manner to the way that other complaints are responded to.[490]We find that this is an example of the claimant having to persist when pointing out wrongdoing by Paul Bulpitt, and an example of Mrs Cannon not taking action even when he submitted the evidence, and even when there was, we find clear evidence of potential breaches of the licensing rules. Again there was a reluctance by Mrs cannon to act on the allegations being made by Mr Olumade, which contrasts with the willingness that she and other officers showed for pursuing complaints against Mr Olumade himself.[491]Mr Olumade refers to a further incident in February 2017, alleging that he was harassed by the respondent when investigating a road traffic incident. it is not in dispute that an incident took place on the 25 February 2017. It is recorded in some detail on the claimant’s file.[492]Sometime in March 2017, a complaint was received from a woman who said she had been hit by a black cab driver at about 11:00pm when she walked across the road to the kebab van. The matter was reported to the police, and the woman involved raised it with the respondent. The complainant confirmed that Mr Olumade had not been driving at speed that he had stopped to see that she was OK and that she had been abusive to him. Mr Olumade confirmed that he was involved. He said she had walked in front of his taxi and he didn't see her.[493]On 1 March 2017 the complainant called the BDBC as requested to offer she had reported to the incident to the police. We find she had been asked to do this, and to then tell Mrs Stevens that she had done it. We find that the woman involved had originally said she did not wish to make an official complaint.[494]On 28 March 2017, the complainant again contacted BDBC saying the police had been round to see her, but there was no CCTV and that they couldn't do much because she had been in the road; it wasn't a zebra crossing and it was not clear who was at fault. The police also said that it wasn't obvious whether she had been injured at the scene and it wasn't a crime and that they would just speak to Mr Olumade. She said she only called them on our advice and doesn't know what to do next. This was a reference to BDBC.[495]By the end of March 2017 it was clear to Mrs Stevens that the police were not going to take any action. We find that there was a suspicion that the woman had been at fault. Mr Olumade said she had walked in front of him.[496]We find that in the absence of a formal complaint, and on the basis of the information they had, and not having asked Mr Olumade about this at this time, and based on how the BDBC dealt with complaints, there was no basis for taking any further action.[497]Instead of leaving the matter there, we find Mrs Stevens encouraged the woman to contact the police again and to ask to speak to customer services and possibly lodge a complaint about the police investigation not being satisfactory. We find that she then did decide to investigate the claimant for the same issue. The claimant says that this was beyond their scope and was not a licencing issue. The respondent says that it was.[498]We find that whist it was appropriate for the BDBC to investigate the matter when it came to their attention, initially, what was not appropriate was to continue to pursue the matter and to encourage the complainant to do the same, once it was clear that the police were not going to take action, because there was no evidence of wrongdoing by Mr Olumade.[499]Mrs Stevens treated the claimant differently to the way she and her colleagues within BDBC dealt with and treated complaints made by Mr Olumade about others. Whilst Mr Olumade was , on occasions encouraged to report matters to the police, no one suggested to him, on any occasion, that he should let the BDBC officers know what was happening, or that he should pursue matters, or that the BDBC would also, at the same time, pursue matters.[500]We have considered whether or not this was specific to Mrs Stevens. Mrs Stevens makes no mention of this event within her witness statement. We therefore have no explanation from her of her reasons for making the comments or taking the actions that she took.[501]We find that she was exercising a discretion over how to deal with a potential complaint, but also find that she was managed by Mrs Cannon. Mrs Cannon refers to the incident in her witness evidence as follows We were not investigating a road traffic incident as suggested by Mr Olumade. As licensing officers, we were investigating a complaint about Mr Olumade’s bad driving and allegedly hitting a pedestrian. That is part of our public safety role. If drivers go round hitting pedestrians in their vehicle, we would have to question their suitability in line with the legislation. The detail of that incident is at pages 275 – 279 and 315-336 (this was an interview recorded by Mr Olumade on his phone). Due to lack of video evidence, we were not able to take this further and no action was taken against Mr Olumade in spite of the victim’s evidence. It was one word against another.[502]As already stated, we accept that an allegation that a driver has hit a pedestrian is a matter which ought to concern the licencing authority. We accept that no further action was taken. It is not the fact that the matter was investigated but the way the matter was investigated. This was a potential licensing issue since bad and dangerous driving could lead to action being taken in respect of the[503]Although we accept that it is a subtle difference, we find that there was a greater willingness and enthusiasm to investigate the allegation made against Mr Olumade then there was to investigate allegations made by Mr Olumade about other white drivers.[504]We infer from our previous findings that the difference in approach by Mrs Stevens, was partly because of the potential seriousness of the incident, but was mainly due to her dislike of him, and that her dislike was related to his race. We also find that her view of Mr Olumade was one also held by her line manager, Mrs Cannon.[505]We conclude that the initial reason for the treatment was that it was a potentially serious matter, but that the continuation of actions of Mrs Stevens could lead us to conclude that the actions were on grounds of race or related to race. We have no explanation from Mrs Stevens or Mrs Cannon for the continuation of the investigation and the encouragement of further complaints to the police.[506]We conclude that this was an act of direct discrimination because of race. Allegation of An Unlawful Immigration Check In May 2017.[507]On 6 June 2017 Mr Olumade’s licence was due for renewal. He therefore attended at the BDBC offices to complete, paperwork and was subject to an immigration check. He says that his British passport was submitted and photocopied at the point of his private hire driver application and DBS verification. We find that this was done by JE and Sheila Stevens.[508]The claimant alleges that this was an unlawful immigration check and an act of race discrimination.[509]The respondent has referred us to guidance produced in January 2018 by the Home Office for licencing authorities to prevent illegal working in the taxi and private hire sector in England and Wales. This guidance refers to the Immigration Act 2016 which took effect from December 2016 and prohibits licencing authorities in the UK from issuing a licence to anybody disqualified by reason of their immigration status. Licencing officers were required to discharge the new duty by conducting immigration checks.[510]The guidance states that the new provisions mean that the driver and operator licences must not be issued to people who are illegally present in the UK; who are not permitted to work or who are permitted to work but are subject to condition that prohibits them from holding such a licence. Licensing officers discharge their duty by requiring an applicant for a licence to submit one of a number of prescribed documents such as a passport.[511]The guidance then states for those who have limited permission to be in the UK the licencing authority must repeat the check at each subsequent application to renew or extend the licence until such time as the applicant demonstrates that they are entitled to remain indefinitely in the UK[512]The claimant had a British passport which had already been checked by the authority when he had initially applied for and been granted his taxi drivers licence. The authority knew from the information he had provided that he had a full right to live and work in the UK by reason of his British nationality.[513]The guidance also specifically states that licencing authorities do not have to check the immigration status of those people who already hold a licence issued before the 1st of December 2016.[514]In November 2018 following the matter being raised by the claimants in their employment tribunal claim, SB provided information stating that the immigration check was part of the council's responsibility and that all private hire and Hackney carriage drivers have had or will have their right to work checked.[515]In June 2019 Mr wake provided a draft response to Jackie Tatum in the course of dealing with the Claimants’ SARS request, referring to the Home Office guidance for licencing authorities to prevent illegal working in the taxi and private hire sector. This is the document we have referred to above.[516]He says that Mr Olumade was written to on the 23 May 2017 stating that a decision was made by the licencing manager to carry out the immigration cheques now required for all new and existing private hire drivers on either the renewal of a private hire driver licence application or at the same time as the DBS check whichever occurred first.[517]Whilst we do not agree that the policy necessarily required the officers to carry out the immigration check, we accept the evidence of the BDBC officers that at this point in time they carried out the check on Mr Olumade’s right to work by checking his passport because they believed they were required to do so as a result of a change in the law. we accept the assertions made subsequently that all private hire and Hackney carriage drivers had already had or would have their right to work checked at the appropriate time.[518]We therefore find that the claimant was not treated any differently to any other driver and further that this was not related to race, and nor was it a detriment. Mobbing at the Taxi Rank July 2017[519]On 5 July 2017, Mr Olumade a complaint to the authority that he had been the subject of harassment and mobbing at the taxi rank. He provided a number of videos to the respondent and Mr Wake confirmed that he had seen them at the time.[520]He complains of race discrimination contrary to section 53 Equality Act 2010, that having made complaints to the BDBC there was no response to him. His allegation are that the terms on which he held his license were varied; that he was subject to a detriment, and was harassed. His claims are brought against the BDBC, not the white taxi drivers. BDBC can only be liable for the actions of taxi drivers if the drivers were acting as the agents of the council.[521]We have therefore considered whether the BDBC subjected Mr Olumade to a detriment on ground of race, or less favourable treatment on grounds of race, or harassment related to race.[522]The claimants arranged for three videos which all parties agree had been viewed at the time in 2017 to be viewed by the employment tribunal.[523]The films were taken at night. One of them is the film taken by Mr Olumade from inside his taxi, and another was taken by one of the other taxi drivers, which the claimants stated they had obtained from social media. Someone had therefore posted this video, of the claimant being harassed.[524]We all agree that the videos show shocking and frightening behaviour by at least two white taxi drivers towards Mr Olumade.[525]The first video taken by Mr Olumade shows him driving up to the taxi rank. There are vacant spaces on the taxi rank, but three drivers are parked in the overflow taxi parking so that when Mr Olumade arrived, he was not able to park. The drivers in the overflow parking do not move their cars onto the taxi rank, remaining taking up the available space and instead begin to shout at Mr Olumade to move his car and to go away because he is blocking the road. They are preventing him from joining the taxi rank, or overflow, stopping him from working. Mr Olumade asks them to move. There is then a stream of abusive and aggressive shouting from one of the other drivers directed at Mr Olumade. This is set out is following paragraphs.[526]Mr Olumade then moved his taxi onto the taxi rank, and we find that this was the only place he could move, given that he was clearly blocking the road ad being blocked for going anywhere else. When the car in front of him moved up the taxi rank, and only then, one of the cars from the overflow parking drove up and pulled in front of Mr Olumade, whilst another white taxi driver stood in front of him shouting at him and saying, no it's not your turn to go, you can't go up, whilst a further taxi came and parked alongside him effectively blocking him in so that he could not move.[527]We find that this was deliberate action by more than one driver to prevent Mr Olumade joining the rank in turn. It was objectively hostile and aggressive behaviour and was we find intended to cause upset and distress. The treatment of Mr Olumade is not provoked, and the taxi drivers taking the action are capable of identification from the video.[528]The claimant called the police from his car, clearly in distress. Whilst he on the phone, he is heard saying fairly and calmly to the police, that he thinks that the boot of his car has been opened. When the police arrived, and the white taxi drivers moved off and moved their cars. Mr Olumade drives his car off the rank so that he can speak to the police.[529]At one point in the video, before the police arrived, one of the white taxi drivers is heard to make a threat of violence against Mr Olumade saying words to the effect we can go down a back alley where there are no cameras and discuss this and see how many walking sticks you need afterwards. This is clear both on the film that Mr Olumade took, but also on the film taken by the white taxi driver. We find that this is a threat of violence made to Mr Olumade, and that the driver who says this could have been identified by the BDBC, had they wanted to do so.[530]We also viewed the film taken by the white taxi driver.[531]In a conversation between several drivers, one driver says to another that they should try and open the claimant’s boot, and we assume that this is what the claimant experienced. Another driver suggests that they should try and find something to put under the claimant's wheels, and a number of loud and aggressive comments are made to the effect that the claimant should leave the taxi rank; nobody wanted him there; nobody liked him and then in a quieter voice one white taxi driver is heard to say Fucking African Cunt. We asked the claimant to specifically replay that part of the video and listened to it with particular care. All three panel members agree that this is what we heard being said and recorded on the video.[532]We find that any officer taking the time and care to listen to this video would, we find have heard the same words being said. We find that there was obvious evidence of violence and threats of violence being made to Mr Olumade, aggressive behaviour by more than one taxi driver, and attempts to stop him from joining the rank, all of which we find where unacceptable behaviour of the type which might bring into question a person's fit and proper status whether a person was fit and proper to hold a licence.[533]We observe that the comments are very similar to the remarks made in the anonymous note which the claimant had been sent in 2016.[534]Mr Wake accepts that these videos were provided to him and he accepts that he viewed them and he accepts that they show a threat of violence towards the claimant. Both under cross examination and when Mr Wake was asked about this part of the video by the employment Judge, he stated that he had heard, the aggressive behaviour of the white taxi drivers, and a comment made by one of them that the claimant was a Fucking something Cunt at the time that he first viewed the video. He said he had not been able to hear the middle word. We do not accept his evidence and find that he did not listen carefully, as we did, to what was being said.[535]On the 8 September 2017 Mr Adrian Quaintmere complained about Mr Olumade. He alleged that Mr Olumarde had been staring at him whilst he was sat in his taxi and had then turned his dash Cam to film him. Mr Quaintmere attached a video of the incident and said he was happy to come in and discuss the matter.[536]On the 8 September 2017 Mr Olumade had again complained about Mr Quaintmere; Mr Richard Dyer, Mr. L Dispinseri; Mr Stuart Hall and Mr Robert Langley in respect of the incident at the rank. His complaint titled mobbing intimidation harassments and threat to life on the 5th July 2017. He included with it a lengthy description of what had happened , and described the five men egging each other on, taking films of him; venting their anger at him; blocking his car, opening the boot of his taxi, standing in front of his taxi, and Mr Langley making a threat of violence towards the claimant. This was not the first time he had raised the issues. Mr Olumade says that he did not get a response to this his letter, and that this failure to respond by BDBC was an act of[537]At some point in early September 2017, Tina Tawton complained to Mr Wake about Mr Olumade’s driving when going into the station. She also complained that whilst sitting at traffic lights, Mr Olumade pulled up next to her in a taxi and pulled stupid faces at her. Mr Wake replied to her on 21 September stating that he would add it to other driver and driver complaints and look into it. He said I will raise this allegation with the driver and see what he has to say.[538]Mr Wake did not make a similar response to Mr Olumade in respect of his complaint made on the 9 September 2017. We find that Mr Olumade was treated differently and less favourably in this respect.[539]As set out below, the police became involved in the complaint made by Mr Olumade and following some community liaison, Mr Langley was required to issue a written apology. His apology was not to Mr Olumade, but to the BDBC officers and was one line, expressing regret for taking their time.[540]We have been referred to the record of a complaint dated 9 September 2017, which was in the bundle in a redacted format. The redaction was of the name of the individual being complained about, and a redaction of the name of an individual noted on CCTV, to move out of the rank and to block AO taxi moving up rank. This is a reference to the claimant. A box headed action taken is also redacted. A handwritten date 7.9.17 is included. There is also a redaction below handwritten comments, which say footage before shows AO return to rank, there being lots of space on rank but with frying pan busy with cars and other drivers and vehicles, some filming AO, discussion AO waited some time before moving on to rank. The rest of the comments are redacted.[541]We have described the video footage of what happened on the rank that night and we find it shows him being spoken to in an extremely abusive way, including a threat of physical violence being made against him by another taxi driver. We find the video also records a specific racist comment being made about Mr Olumade.[542]We remind ourselves that Mr Wake accepted in his evidence to the ET that he had seen this video footage at the time and that he had heard a comment being made that about an f**ing something cunt.[543]Following the order from the employment tribunal for the provision of unredacted documents, the respondents only provided the service request job sheet in an unredacted format.[544]The only person who was the subject of the complaint was Richard Dyer and the name of the person obstructing and blocking Mr Olumade was RD or Richard Dyer.[545]We also see that there is nothing at all recorded under the heading Action Taken and there is no handwritten date.[546]The video evidence and what it showed was key to the complaints Mr Olumade made, and since Mr Wake accepts he saw the whole video and recalls that part of the video, we would expect that to have been recorded on the file. We have been given no explanation as to why it is not recorded, or why what was recorded, in a handwritten note, was redacted.[547]We find that Mr Wake reviewed the video but did not record what he had seen. We find that the handwritten comments were written at a later stage. The handwritten comments do not accurately describe the video and leave out description of the aggressive behaviour, threats and foul language.[548]Whilst we have been critical of Mr Wake and critical of his treatment of the Claimants, we do not think that he would have deliberately mis recorded the evidence he had seen.[549]We conclude on balance that the full description was included by Mr Wake, but has since been redacted by someone in the council. We have considered why.[550]One possible reason for making such a redaction is to prevent another reader from seeing that Mr Olumade had provided evidence which showed a white taxi driver subjecting him to violent abuse and making a racist comment. This would, we find have required some action by the respondent.[551]We conclude that the redaction of the handwritten description of the video is likely to be a deliberate redaction of the parts of the evidence provided by Mr Olumade at the time, which supported his assertion that he had been subject to adverse treatment and threats of violence by white taxi drivers who were motivated by his race.[552]We ask ourselves what the point was of redacting an empty space under Action Taken was and infer that the only explanation was that the person who did the redaction wanted to give an impression to the employment tribunal and the claimant that some action had been taken when in fact nothing had been done. That, we find is why there was nothing recorded.[553]We are not able to identify who decided to redact these documents or when, but we know that the claimants made subject access requests in 2018, and that following provision of the documents the claimants have requested unredacted documents on a number of occasions prior to coming to this employment tribunal, but none were provided until the order of this Tribunal at the start of this hearing.[554]We infer that these redactions were carried out at some point after the records were made, following the subject access request. We find that they were made in an attempt to conceal from the claimant’s and the employment tribunal the fact that no immediate action had been taken in respect of a very serious complaint made by Mr Olumade on the same day that allegations made by other white taxi drivers about him, were being investigated and in respect of which he was subsequently subjected to a formal meeting with Mr Draper and Mr Wake.[555]We infer that the redactions were carried out on the instructions of the respondent officers, and we find that the only people who would have any interest in redacting this particular document would be Mr Wake or Mr Draper. The respondent was asked to explain these reductions, and in particular the reduction or blank space under the paragraph action taken but no evidence or explanations have been provided by any of the respondent witnesses either in their witness statements or in answer to questions.[556]Whilst this is just one document about one matter in a very lengthy chronology and a very detailed set of facts, we find that it is an indication that somebody employed by the respondent and dealing with subject access requests from the claimant, wanted to conceal information. We find that it is the concealment of evidence which is capable of supporting the concerns the claimant was raising at the very least. In the absence of any explanation from the respondent, and having made findings of fact from which we could find discrimination, we infer the reason for it, was that the claimant were raising concerns about race discrimination and that the respondent knew all suspected that the allegations had some validity.[557]On the 27 September 2017 a meeting took place between the council and the police. Mr Payne, the regulatory services manager and Mr. Wilson the interim licencing manager, attended for the respondents with the council's inclusion and diversity officer and a community safety services coordinator.[558]One of the reasons this meeting had been called was that there were serious and substantiated concerns being raised by two black African drivers about the behaviour towards them of a distinct group of taxi drivers who were white.[559]The police and the council were aware of the allegations and the action taken by the police. Mr Bulpitt did have his licence revoked, but Mr Langley and other white drivers who had been involved in the mobbing incident at the taxi rank, did not.[560]There are two copies of the note of the meeting, in the bundle one redacted, one unredacted. Again, there is no explanation for redaction of this document and it was we find, wholly unjustified.[561]Mr Payne introduced issues involving BDBC licenced Hackney carriage drivers at the railway station rank. He is recorded as saying there are two drivers commonly involved in complaints who are originally from African countries. Other drivers who have been interviewed by council officers have been represented by members of the Basingstoke taxi association. Mr Arfa was represented by an independent driver.[562]The police representative stated at least two complaints had resulted in an assault conviction and another resulted in a community resolution. We find that this was a reference to the complaints made by Mr Olumade against Mr Paul Bulpitt and Mr Robert Langley.[563]The diversity and inclusion officer suggested that equality and diversity training could be included as a licencing requirement. We have no evidence that this suggestion was ever taken any further.[564]There was a discussion about advice previously given to taxi drivers by the police and the council, that drivers could film incidents if they felt at risk. Everybody agreed at that meeting that this had been taken to an extreme by drivers and that filming was now being used excessively and was causing provocation.[565]We find that the discussion at this meeting was a true reflection of the advice given to the Taxi drivers. We find that there had been some general advice given to some taxi drivers, that use of video or film might be useful as evidence if they wished to make complaints.[566]This was not, we find an example of the council instructing anybody to do anything and we dismiss the discrimination complaints made by the claimants in this respect.[567]The inclusion and diversity officer asked about the percentage of licenced drivers from different BME groups and whether the Basingstoke taxi association membership included all drivers.[568]The response was that BDBC licensing were unaware of the membership of the federation but find that they did know that there were only three black African licensed Hackney carriage drivers. We find that all other licensed hackney carriage drivers, were white. They may have been of different nationalities or races, but we have not been provided with any information in that respect.[569]We accept the BDBC officers may have been unaware of the members of the federation at the time of the meeting, but find that subsequently they were told by both Mr Olumade and Mr Arfa that they, the three black taxi drivers, were not members of the BTA.[570]We find as Mr Wake stated in evidence, that members of the licencing team did meet the BTA to discuss issues from time to time. A far as we are aware no one from that team took into account the fact that the two black African drivers who remained licenced (Mr Arfa had his license revoked subsequently) were not members and that this might be a matter for them to take into account when liaising with taxi drivers more generally.[571]During the course of the hearing and following a specific order from the employment judge the respondent provided a file note headed RL interview 19/12/2017 in respect of Mr Langley, to the employment tribunal,[572]This interview was about the incident which had taken place at the taxi rank in July 2017. The File note was a series of questions with answers recorded.[573]One of the questions on the list was, would you have moved up rank if it had been another driver? another question was do you accept responsibility for antagonising this situation which progressed into your threatening behaviour towards the complainant.[574]A transcript of what had been said by Mr Langley to the claimant was set out from the video footage and was recorded as follows move your fucking arse back all right get your Arse back I don't give a fuck who's coming get your arse back alright otherwise you and me gonna have words not here I'll take you up the back and we'll see no cameras and will see fucking how many walking sticks you'll have after that shall we? it's your choice it's your choice mate you do what you fucking want I'm telling you to move the fuck back move the fuck back.[575]Following the meeting, the licencing authority issued Mr Langley with a written warning.[576]That letter written by Mr Wake, dated 22 December 2017, states as follows: I write regarding the complaint received against you, relating to your conduct towards another licenced taxi driver on 5 July 2017, as we discussed during our interview on 19 December 2017. We viewed footage of the alleged incident and established your taxi was positioned at the front of the frying pan queue alongside Mr Dispensary's taxi. The footage recorded your conduct towards the complainant driver where you used foul and threatening language towards him. This matter was reported and investigated by the police which resulted in a community resolution requiring you to issue a letter of apology to the driver .[577]We have not seen any such apology and find that no apology was made to Mr Olumade. The letter then continues, Under the Hackney carriage bylaws drivers are required to behave in a civil and orderly manner, which in this instant you did not. You explained you were annoyed at the time of the incident and considered the driver had unfairly moved up the rank. You confirmed you apologised at the time, and you apologised at our interview for this incident. The nature of your rant, what was said and how it was said at the taxi rank is not acceptable conduct by licenced Hackney carriage driver. This letter is issued as a formal warning notice. A copy should be kept on file and could be used as evidence if justified complaints are made against you in future.[578]There is no explanation from the respondent why this was only dealt with in December 2017, 5 months after the original complaint had been made , but we find that it took place within days of the meeting described below, between Mr Olumade, Mr Wake and Mr Draper at which the claimant was investigated about the Ashwood Academy incident and allegations made by Tina Tawton and others about his own behaviour. Mr Olumade complains that he was not given any information about the complaints he had made but was instead pursued by Mr Draper over minor and irrelevant matters.[579]We find that the way Mr Langley was treated, serves as a demonstration of how BDBC dealt with a serious incident in December 2017, where a white taxi driver was verbally abusing and threatening a black taxi driver with assault. We refer back to this, as evidence of how a hypothetical black driver would have been treated in other instances, when considering how Mr Olumade was in fact treated.[580]We have also considered whether or not the subsequent issuing of a final written warning to Mr Olumade following an exchange between him and Mr Draper was potentially different and less favourable treatment, to the treatment of Mr Langley, who was awarded a written warning only.[581]Mr Olumade alleges that after these events, and after he had filed complaints to the ET, he was subject to a final written warning for making a remark to Mr Draper, that was nowhere near as serious as the threat of violence and aggression made against him by Mr Langley. He asserts that this difference in treatment was orchestrated by Mr Draper and actioned by Mr Payne, and was because of his race. We refer back to this and consider whether this is evidence of different treatment later in our findings and conclusions.[582]The claimant alleges that he was subject to bullying and harassment by white taxi drivers because he raised the complaint against Mr Bulpitt that he had been subject to a racist assault. He alleges that the local authority knew this, but failed to take any steps to deal with the matter. He says that instead, BDBC officers sided with white taxi drivers and effectively enabled them to continue harassing him by allowing them to make groundless complaints about him whilst failing to deal with their behaviour towards Mr. Olumade.[583]Given the nature of the claimant’s complaints about the mobbing incident, we would have expected some form of investigation and similar formal meetings to have been held with each of the drivers involved, or at least final written warnings given to each of them. Not only was there violence threatened but there was evidence that this was threatened violence with a racist overtone.[584]The action BDBC took was to issue Mr Langley with a warning. There was no consideration of whether or not his licence should be revoked or suspended. Mr Wake said this was because, on looking at his file there was no evidence that he had done this before, and it was not therefore considered that he was a serial offender and that therefore this was a case where a first warning would be sufficient.[585]We find that this rationale ignored the severity of incident and the fit and proper person test. The threat of violence was clear; evidenced and entirely unprovoked. There is evidence to suggest that it was racist and Mr Wake himself was aware that it may well be in retaliation for action taken against another white taxi driver. We find that Mr Wake made a deliberate choice not to impose any more severe sanction upon Mr Langley, not because he did not consider the matters to have been severe but because the incident involved Mr Olumade. We conclude that Mr Wake, was prepared to treat an act of violence and aggression committed by a white taxi driver against a black taxi driver with leniency, and was unwilling to pursue the matter as a potential issue of fitness.[586]We compare this with the way Mr Olumade was treated.[587]The respondents knew that the issues on the rank were between a group of white taxi drivers and Mr Olumade, one of only two black taxi drivers.[588]We all agree that at this point in time and despite some white taxi drivers displaying aggressive and threatening behaviour , BDBC officers were reluctant to take action in respect of the licences of any of white taxi drivers but were willing to take action against two black taxi drivers in respect of their licences.[589]Whilst we find that there were differences between allegations made against Mr Olumade and some allegations made against Mr Langley and others , the evidence from Mr Draper was that they investigated all complaints against licence holders corroborated or not. it is a matter of discretion for the officers as to how they investigate complaints and the level of formality of each investigation. Mr Draper says that it was the view of the authority that the behaviour of those involved in the mobbing incident fell below the standard that they would expect of a taxi driver. This was also the issue in respect of Mr[590]We would expect there to be a similarity of treatment but find that there was not. We have used our findings of fact as a basis for considering how hypothetical white person might have been treated over the Ashwood Academy incident or over other matters.[591]We find that the investigation meeting with Mr Langley, and the warning given to him, took place at about the same time that the Mr Olumade had been investigated and asked to attend at a meeting with Mr Wake and Mr Draper, about the Ashwood Academy incident and some other matters.[592]We find that in September 2017 further allegations were made by white taxi drivers against the claimant and in particular Mr Quaintmere stated that he should be able to go to work without fear alleging that the claimant was filming him. Miss Mrs Tawton and Mr Dainty also made allegations that they were concerned about their health at work. The claimant says he was investigated in respect of these matters.[593]The claimant made allegations about Gary Michael for touting but received no response from the council.[594]We find that the claimant is right about the allegations made against him and the responses made in respect of Mr Michael. We find that this is further evidence of a persistent difference in treatment over allegations made by the claimant about white taxi drivers and allegations made about the claimant, a black taxi driver, by white taxi drivers. In each case the difference in treatment was detrimental to the claimant.[595]Between the claimant raising complaints about white taxi drivers and white taxi drivers raising complaints about the claimant in September 2017, Mr Draper started working for the council and carried out a review of complaints with Mr Wake.[596]In addition, the claimant made a corporate complaint about the lack of any response to any of the complaints he had made about the five white taxi drivers.[597]We find that when Mr Draper joined, in November 2017, there was a high volume of work and a backlog of complaints about and between taxi drivers and in respect of other licencing matters that needed to be dealt with. One of his first actions was to review the complaints backlog. He says this meant that some emails were not immediately acknowledged.[598]He had identified that Mr Olumade had outstanding complaints against him, and told us that it was decided to group a number of complaints together and invite Mr Olumade to a meeting to discuss them at one go, with Mr wake and Mr Draper.[599]This is the only meeting we have heard evidence about where Mr Draper and Mr Wake both attended to interview the person who was the subject of the complaint.[600]Mr Draper says that at the same time, Mr Wake interviewed and took enforcement action against other drivers complained about by Mr Olumade.[601]We have asked what action was taken against the drivers that Mr Olumade complained about. No feedback was given to Mr Olumade at that point as to any action that was being or would be taken against those individuals he had complained about.[602]Mr Draper told the tribunal that the intention was to give Mr Olumade feedback on enforcement action that they had taken in respect of his complaints, when they interviewed him in December 2017. He said that the meeting in December 2017 was set up both to discuss with Mr Olumade the allegations made against him, but also to give him feedback about allegations he had made about other people.[603]In November 2017 Mr Draper would not have known what the outcome of the investigations into Mr Olumade’s complaints would have been, because no one had interviewed anyone or decided to interview anyone. We have set out above the investigations carried out by Mr Wake and the meeting he had with Mr Langley regarding his part in this incident.[604]Mr Langley was not spoken to until December 19th of December and the warning letter was sent to him on the 22 December 2022. We have no evidence of any action taken against any of the other drivers Mr Olumade complained about.[605]We set out our findings about the letter invitation letter sent to Mr Olumade on 15 December 2017 below. On the basis of the letter, and the chronology, and the meeting itself, we find that the aim of the meeting was not two- fold as Mr Draper suggests, or that there was any intention to give Mr Olumade feedback on his complaints.[606]On the 29 November 2017 Mr Olumade received a letter from Mr Draper in reference to four complaints that he had made to the council in October that year. Mr Olumade had written in because he had not received any response.[607]Mr Draper apologised for not having met targets or kept him adequately updated and then states I've reviewed each of the complaints and the subsequent investigations. This review has identified areas that require further investigation before involved enforcement action can be taken. this will be a priority task for the team. As soon as we finalise this work you will be invited in for a face to face discussion to update you on the outcomes and how we intend to proceed in the future. He attached four letters, in response to each of the complaints made by the claimant about Gary Michael, Mr Dispinseri for plying, and against Mr Greenwood.[608]In each letter he responded to specific questions which the claimant had asked, one of which was, can the licensing department confirm that the delay was not an attempt to protect the white taxi drivers in respect of which he simply stated the licensing team does not discriminate against or favour any driver .[609]The claimant specifically asked whether the licensing department could confirm whether there was an investigation in connection with the matters he raised and the response was all complaints received by the licensing team are investigated fully your complaints are being investigated by a licensing officer. The letter went on to confirm that the investigation was ongoing and that the licensing team had yet to determine the outcome and actions.[610]Mr Draper has not made any reference within his evidence in chief to what those investigations were or what action, if any was subsequently taken against the taxi drivers who Mr Olumade had raised his complaints about.[611]The claimant referred us to screenshots of the complaint management system operated by the respondent in respect of his complaint against Mr Gary Michael for touting and noted that the complaint was registered as closed, with a reply given on the 29 November 2017. In response to the box with the question justified it states no. A similar screenshot of the case note in respect of Mr Dispensary also states justified - no closing letter 29th of the 11th 2017. There is no indication on the file of any investigation or any further action in fact having been taken and we find there was none.[612]In respect of the alleged mobbing incident, the tribunal was referred to a handwritten note dated the 12 December 2017 LD. The complaint refers to a DVD and e-mail of the 6 July 2017. The note states watched videos and note that Mr Olumade directs the camera at LD several times unnecessarily. From the note it appears that this was an interview or a note of an interview with Mr. L Dispensari. This must have been before the interview with Mr Wake.[613]As noted above, it was only during the course of this hearing, as a result of that oral evidence , that further documentation was disclosed to us, including notes of the meeting with Mr Langley and a warning letter which was sent to Mr Langley.[614]We have not been referred to any other letters sent to any other individual, and there is no evidence before us that they were sent letters or invited to attend at a meeting with Mr Wake and a more senior officer to discuss their behaviour.[615]With the exception of Mr Langley, we find that no formal action was taken against anybody. They were, as the claimant rightly says, let off with a slap on the wrist. The council meeting of 31st October 2017.[616]On the 31 October 2017 there was a meeting of the respondents licencing committee. There was a discussion about taxi drivers, and concerns about the safety of individuals using taxis. This was in the context of a national discussion about a Rochdale grooming gang which was alleged to have involved taxi drivers of Asian origin. One raised an issue about the safety of teenage daughters getting into a cab at night, and she stated we have taxi drivers that are not always English and their expectations are different sometimes to perhaps ours…. A second councillor stated that she was sure that had not meant to sound racist, but that it did sound racist and asked that it might be retracted.[617]The claimants have referred to this and assert that it is evidence of a racist attitude within the licensing committee towards black taxi drivers. We find that whilst the comment suggests a potential prejudice it does not without more, give evidence of a racist attitude within the licensing committee. At most it seems to us to be a clumsy expression of concern by a councillor about the need to ensure that all taxi drivers shared values, to ensure the safety of taxi users. We also observe that there was a clear challenge to the statement which was then retracted. The Ashwood Academy Incident[618]The Claimants had a contract with Hampshire County Council to drive a child to Ashwood school.[619]On one occasion it was alleged that some damage had been done to a staff members car whilst parked in the car park, and a notice was put up in school to ask if anyone had any information. The child that Mr Olumade drove to the school apparently suggested to someone that the damage was caused by Mr[620]Mr Olumade maintained then and maintains now, that he is not sure that he was responsible for damage, but did agree to pay for it and there was some discussion between him and the school about how this would be arranged.[621]He wanted the teacher to have the work done at his garage, but the teacher had already arranged to have the work done and subsequently arranged for Mr Olumade to be sent an invoice. Mr Olumade was told that he had to pay £500 in cash to the teacher, but thought the amount was high and queried it, did not want to pay cash and also said he should have 30 days to make the payment. He then agreed that he would pay the amount and agreed to attend at the school to make payment.[622]He declined to pay cash, preferring to pay by cheque or another means and required some form of invoice and signed declaration from the teacher that he had paid the amount, so that he could make any claim on his own insurance, and that this would be the end of the matter.[623]It does not seem to us that any of Mr Olumade requirements were unreasonable in the circumstances.[624]Both claimants visited the school by invitation and by prior arrangement, in order to try and resolve the matter towards the end of November 2017. They wanted to speak to the teacher, but instead had to speak with the head teacher and had a discussion about whether the claimant would pay the money and if so how. We find that the claimant went with the intention of paying the money and was simply requiring a signed receipt or statement to confirm his payment, and that would have been the end of the matter.[625]After some discussion there was a breakdown in communication, and the head teacher asked the claimant to leave the premises and then, when he considered the claimant was not leaving, called the police who escorted him from the premises.[626]Mr Olumade stated that what had been a minor incident of minor damage to a car in a car park, which he offered to pay for even though he was not convinced that he was responsible for it, and for which he was prepared to pay by cheque on condition that he was given a receipt or an agreement that this was the end of the matter, escalated because the school teacher wanted him to pay in cash.[627]Whatever the rights and wrongs of the incident, Mr Olumade says that he was willing to settle the dispute by making a payment for the damage to the car and that the reason that they attended at the school was to do so. We accept that this was his intention and certainly his transcript of a recording taken at the time bears this out.[628]The head teacher considered that Mr Olumade became agitated and whether this was because Mr Olumade was trying to resolve the matter, or for other reasons we do not know.[629]It was following that incident and on 1 December 2017, see page 473, that the claimant was contacted by Hampshire County Council and told that the head teacher had accused the claimant of being verbally abusive, that he considered there was a breakdown of a working relationship and that the head teacher did not want Mr Olumade on site in future. HCC asked him to confirm that another driver would be put on the route from Monday.[630]Mr Olumade replied, stating that he disputed that he had been verbally abusive but had nonetheless made the changes and we accept that following this, Miss Akinleye did the driving for the school. The contract was subsequently cancelled by Hampshire.[631]The claimant says that this should have been the end of the matter. The police were not involved, Hampshire County council had dealt with it and there was no reason for anybody else to be involved at all.[632]Following the incident, albeit at some later date, we understand the money was paid.[633]A complaint was received by the BDBC about this incident, on 8 December 2017 from a staff member at the Ashwood School, and passed to Mr Wake by JE. JE had spoken to the person complaining about Mr Olumade and gained further details, including the contact for the head teacher. In terms of the chronology, we find that this was some months after the claimant had complained about Mr Langley and before any action was taken against Mr Langley.[634]Mr Wake says that he visited the school and talked to the teacher who owned the damaged vehicle. He also spoke to a woman at Hampshire County Council. He did not speak to Mr Olumade.[635]Mr Wake said in his witness statement that part of the complaint was that Mr Olumade had behaved aggressively with office staff.[636]Whatever may have been said subsequently, the original complaint does not say that Mr Olumade had behaved aggressively, rather that he was irate, and that the complaint was made because the owner of the car wanted to try to recover some money from Mr Olumade.[637]Whilst the complaint we have seen has been annotated, the original complaint included the following: The driver turned up on site and was very irate and was told I could not see him as I had lost my voice. I have contacted the police but was told there was nothing they could do as it was a civil matter. The Headteacher contacted Hampshire transport to inform them of the incident on my behalf. I have major concerns about a professional driver who leaves the sire of an accident with a student in the car and failed to report the incident until he is told the school knew who it was. We have very vulnerable student being driven to school by this driver and what kind of example is he to these students. I would be grateful if you can follow this up and let me have any information you have on the taxi drivers insurance as I would like to try to claim back some of the money for the damage he caused to my car if possible but am not really expecting to be able to do so.[638]She states that the taxi driver had offered to pay for the damage but was not happy when he heard how much the repair would cost. The quote was approximately £500 and he wanted somebody he knew to do the work. CB was not happy about this as she had already agreed for the work to be done at the garage she usually used.[639]The claimant was then sent an invoice and told he could pay the teacher directly or pay the garage. Mr Olumade was reported to have said that he had 30 days to pay and was very irate. CB suggests that he demanded to see her, the car owner, and the logbook. We find that she was not present at the meeting between the claimant and the head teacher.[640]It was only following this, that she contacted the police, and was told it was a civil matter and nothing to do with them. The headteacher only then contacted Hampshire transport to inform them of the incident.[641]From the initial exchanges between Mr Wake and the teacher whose car was involved, the matter appears to be a simple one of her seeking payment for the work she had done on her car. We find that this is not a matter that the licensing authority would usually expect to be involved in. The authority might be involved if there was damage to the taxi, by way of inspection for example, but this was alleged damage of a private vehicle on school land. It has not been explained why Mr Wake investigated without contacting Mr Olumade, or why he thought this was a matter to spend his time on, whilst other matters were not. December 2017 - invitation to a meeting[642]On the 15 December Mr Wake wrote to Mr Olumade in a letter headed Local Government (Miscellaneous Provisions) Act 1976; Town Police Clauses Act 1847 re Hackney carriage private hire drivers licence HD 400 .[643]The letter set out three complaints:a. an allegation that he had harassed another taxi driver by filming him unnecessarily at the Basingstoke taxi rank.b. an allegation that on 15 September 2017 the claimant had followed a female taxi driver whilst driving a private vehicle and pulled faces at her.c. An allegation that on 14 November 2017 the claimant had caused damage to a vehicle owned by an employee of the Ashwood Academy .[644]In respect of the third complaint the letter stated that he (Mr. Olumade) had agreed to pay for the damage caused, but later refused, causing vehicle owner significant repair costs. It said that the Academy had reported that Mr Olumade became irate and that the head teacher requested the police to be called as he would not leave the premises when requested.[645]In the letter Mr Wake states that the complainants who made allegations about 8 and 15 September felt that it been Mr Olumade’s intention to provoke them.[646]The letter states that the claimant is entitled to seek legal advice and bring a representative with him. It is a formal letter and the reference to the Local Government Act and The Town Police Clauses Act 1847, is, we all agree a reference to the council's power to revoke or place conditions upon a licence.[647]No other driver about whom Mr Olumade and Miss Akinleye made complaints received similar letters, that we have seen.[648]We find that Mr Wake continued to carry out investigations following this letter . On the one hand this is a legitimate part of an investigation, on the other hand this was investigation carried out after it had already been decided to call Mr Olumade into a meeting and prior to him ever having been asked for his comments, and before there was really any clear allegation against him.[649]The letter makes no reference to an intention to provide feedback about allegations made by Mr Olumade. As stated above, we find that this because it was not the intention of Mr Draper to do that at this meeting.[650]The allegations made on 9 September 2017 followed the letter that the claimant had written on 8 September 2017 to the licensing team headed an appeal to bring the tap sanity to taxi ranks and save lives, about which findings are set out earlier in this judgment.[651]Mr Olumade asked Mr Wake for details of the complaints against him, and Mr Wake referred to a complaint of 14 November 2017 and said the details were set out in a letter which Mr Olumade had responded to. The only document in the bundle of that date is a picture of a car (Renault clio) with a dent in a door, and some cards with quotes for repairs of £200 - £250.[652]Mr Wake wrote to LK and JM, officers of Hampshire County Council, on the 18 December 2017 stating that they had received a complaint against Mr Olumade relating to damage he caused in his taxi on the 14 November 2017. He states that he understood that they were aware of the incident and had been liaising over it and asked for an update. He states he will be interviewing Mr Olumade on the following Friday and would appreciate an update prior to that.[653]In response, he received an email from Hampshire County Council stating that they were aware of the situation, that the damage to somebody's vehicle was outside their scope but that the contract said he should have informed them immediately and he had failed to do so as a result of which he had been banned from driving and issued with a formal warning although the contract was still in place .[654]On the 18 December 2017 Mr Wake had written to the head teacher and the secretary of the Ashwood Academy stating that he would be interviewing Mr Olumade on the 22 December and asking them both to provide a summary of their dealings with the driver as this was something he proposed to question him about. He said he believed the incident was reported to the police and Hampshire County Council.[655]Mr Olumade was contacted by BDBC once they had been in touch with Hampshire County Council and the school asking for further details.[656]In a separate e-mail he writes back to CB stating, I am sorry you have been caused this trouble by a licenced taxi driver. We pursue all justified complaints. I will feed back to you after I have interviewed the driver.[657]This e-mail suggests Mr Wake had already decided that trouble had been caused by Mr Olumade and that the complaint may be justified, without having ever spoken to Mr Olumade or having heard Mr Olumade's version of events.[658]Correspondence between Mr Wake and Hampshire County Council then followed, in which Mr Wake requests further information.[659]On the 19 December Mr Wake wrote to an officer at Hampshire CC, asking if she would provide a statement concerning HCC's involvement with the investigation. He refers to the claimant’s fitness and propriety to be a Hackney carriage driver. He is told that Hampshire have banned him from driving on that particular contract because he failed to report the accident.[660]Mr Wake then replied stating that he would be interviewing Mr Olumade on Friday about that and other matters and if he required anything further could he let her know.[661]We find that once aware of the incident, Mr Wake spent a great deal of time and effort writing letters to the woman whose car had been damaged, and asking for further information; telling individuals that they were planning to investigate Mr Olumade and that there were other matters of concern and suggesting, through his correspondence, that he had formed a negative opinion about Mr Olumade , and that there was something about Mr Olumade which meant that he was not a fit and proper person to hold a licence.[662]It is not clear when or why Mr Wake decided to classify this as a matter about the claimant being violent and or aggressive. The Meeting of 22 December 2017[663]On 22 December 2017 Mr Olumade attended a meeting with Mr Draper and Mr wake and was accompanied by Miss Akinleye and with Mr Arfa.[664]This was the first time Mr Draper would meet Mr Olumade. We find that Mr Draper was aware that in the recent months, Mr Olumade had been subject to a serious assault, by threats of violence being made to him, and had made a number of complaints about his treatment, when he and Mr Wake decided to invite the claimants to a formal meeting.[665]Miss Akinleye accompanied him to the meeting, and he was represented by his colleague Mr Arfa. This meeting took place on the 22 December 2017.[666]Both claimants make a number of allegations about this way the meeting was conducted and the way they were treated by Mr Draper.[667]Mr Draper has referred to this meeting as one with dual purpose. First it was intended to discuss several complaints with the claimants, and second Mr Draper told us that it was intended to give Mr Olumade feedback in respect of the complaints he had made about 5 white taxi drivers. We have found that was not the intention, and it was a meeting only to discuss the allegations against Mr[668]Mr Olumade recorded the meeting with agreement and has provided a copy of the transcript of the meeting.[669]The meeting lasted nearly two hours and no break was taken. We find it was not a friendly and supportive meeting but was a meeting at which Mr Olumade was subjected to rigorous questioning. We find that the style and manner of Mr Draper's questioning suggested that he did not believe Mr Olumade from the start and he was seeking to catch him out.[670]At no point in the meeting did Mr Draper or Mr Wake seek to find out how Mr Olumade and Miss Akinleye were coping at the rank and whether or not there has been any further problems. Neither Mr Wake of Mr Draper expressed any sympathy or understanding in respect of the threat of violence, the actual assault or the subsequent threatening letter that had been sent in 2016. Instead both Mr Draper and Mr Wake focused on closely questioning Mr Olumade .[671]We find that this was a hostile and intimidating meeting for Mr Olumade and for Miss Akinleye who was in attendance.[672]One issue arose from Mr Draper suggesting to Mr Olumade he would commit perjury if he lied on a section 9 witness statement. Miss Akinleye said this indicated a negative attitude towards the claimant, that he may well lie, and was an unnecessary comment. This was in the context of a discussion about whether or not Mr. Olumade had said that he thought the school was blackmailing him. He said he had not made the comment, but he had said that he felt harassed.[673]We all agree that the comment was made by Mr Draper and that he said, we will go back to the teacher and get their statement and then come back to you and if you lie then that will be perjury.[674]Mr Draper suggests that he was explaining the nature of a section 9 statement, but we find that Mr Draper made the comment because he thought that there was a need to warn Mr Olumade particularly about lying. It an unnecessary comment to make and we find that the manner and nature of his comments and questions suggest that he considered Mr Olumade might be going to commit perjury.[675]Mr Draper asserted forcefully that the head teacher had stated that the word blackmail had been used. The claimant complains that this was indicative of Mr Draper being prepared to believe the head teacher, rather than him. We agree. Mr Draper does not display an unbiased approach at all, but instead seemed to be interrogating Mr Olumade.[676]Mr Harding in his submissions has suggested that the claimant does not come out well in the transcript. We do not agree. Mr Olumade certainly challenges Mr Draper and is confrontational at points, but we all agree that the approach of Mr Draper to Mr Olumade was deliberately provocative and antagonistic. It in unsurprising that Mr Olumade responded as he did in attempts to defend himself.[677]One allegation was that the claimant had pulled a face at Tina Tawton. We found it extraordinary that Mr Draper, a new senior officer, with a heavy workload, would be involved in investigating an allegation that Mr Olumade had made a face at somebody whilst driving along. This is one person's word against another and could have been disposed of by a simple question of Mr Olumade at the time. He would no doubt have denied the matter and that should have been the end of it.[678]Mr Draper said in his witness statement that the police would not have investigated the complaints made by Mr Q or Ms T but that if the allegations were substantiated they could be relevant to the question whether Mr Olumade is a fit and proper person to hold a licence. He also said if we take no steps to investigate complaints confidence in the licencing system and the council's reputation is damaged.[679]Mr Draper did pursue the matter to hearing and then during the course of the hearing said to Mr Olumade, oh please don't pull a face at me Mr Olumade. This gave the impression to both the claimants that Mr Draper had already decided that the claimant had done what had been alleged and that his comment was made to support his preconceived opinion. Mr Olumade denied that he made any face at Mr Draper. We prefer his evidence and find that he did not make a face at Mr Draper.[680]During the meeting, Mr Draper referred to the possibility of carrying out an interview under PACE, and Mr Olumade asked him which section he was referring to. Mr Draper's response oh so you've been here before? was not, we find as he suggested, a light-hearted joke. We find that the comment was made because Mr Draper thought that the claimant had been involved in criminal proceedings previously. There was nothing amusing about his comment and we find it was a comment which evidenced Mr Draper’s real view of the claimant, and suggests he thought Mr Olumade was dishonest and potentially criminal.[681]At the meeting, the claimant asked why the incident was a licencing issue and was told that it was a question of whether or not Mr. Olumade was a fit and proper person, that being a requirement for a licence. Mr Draper explained that if a driver was displaying threatening or abusive behaviour, that that might be the sort of behaviour that would indicate somebody was not a fit and proper person. The respondent says that the reason why the meeting was held in this way was because there had been allegations of threatening or abusive behaviour.[682]We accept that displays of threatening or abusive behaviour by a licenced taxi driver, wherever and why ever they occur, might well be a licensing issue, and we accept that this might be a valid reason for asking a driver to attend at this type of meeting.[683]We find that this was the type of behaviour that Mr Olumade had complained had been directed at him by several white drivers at the taxi rank, earlier that year. However, none of those drivers were investigated in the same way that Mr Olumade was, none were invited to formal meetings or interviewed in the way Mr Olumade was interviewed.[684]We find that the complaints against Mr Olumade were not that he had been threatening or abusive, but that he had harassed a driver by filming them, made faces at Tina Tawton and caused damage to a vehicle at Ashwood school.[685]If Mr Draper was concerned about a suggestion that Mr Olumade had been threatening and abusive, and if that was the allegation, that should have been set out in the letter.[686]We find that the use of the words threatening and abusive were used by Mr Draper because he considered that that might have been how the claimant had behaved. The claimant asserts and we find that he made this statement because he was making assumptions about how the claimant had behaved, and was attributing to Mr Olumade stereotypical types of behaviour.[687]The claimant also complains that the nature of the questioning was oppressive and unhelpful in that Mr Draper asked the same thing over and over again. In contrast he complains that when he or miss Akinleye asked for clarification that they did not receive it. We agree that Mr Draper failed to listen and respond to the questions asked by the claimants or indeed to be clear about the purpose of the meeting itself.[688]Having read the notes we find that the meeting was confrontational and oppressive to the Mr. Olumade and Miss Akinleye. Mr Draper’s comment about the claimant pulling a face for example, was unhelpful and unnecessary, and the comments about PACE and perjury were offensive.[689]We find that at that meeting Mr Draper was unwilling to believe anything that Mr Olumade said, whilst he was very willing to believe the accounts from the headteacher and the teacher.[690]Mr Olumade makes a number of discrimination allegations against Mr Draper and Mr Wake that the decision to investigate him over the Ashford school incident and the other matters, the decision to subject him to a formal meeting, the way he was treated at that meeting and the steps taken after that meeting were acts of race discrimination.[691]Mr Olumade complains about being threatened with perjury, when Mr Draper insinuated that the claimant was not honest and made the comment about PACE.[692]He alleges and we agree that no such interview was ever held with Mr Langley and no such threats were made to him. They were treated differently in this respect.[693]Miss Akinleye makes allegations at Issue A10/11 about the meeting. Miss Akinleye attended at the meeting, she said as Mr Olumade’s interpreter. There was no objection to her being at the meeting and we accept that it is possible for a companion at a meeting to be offended by things that are said within the meeting.[694]She alleges that she heard Mr Draper threaten Mr Olumade with perjury and list stereotypical traits attributed to the black race as being a test of being fit and proper person. She says she found this highly intimidating.[695]She asserts that Mr Draper and Mr Wake were oppressive and dismissive of the questions asked of them and that they implied that the report given by the head teacher was more believable than the accounts given by either Mr Olumade or by Miss Akinleye, who had also been present at the Ashwood Academy. She alleges harassment by Mr Draper and Mr Wake.[696]The allegations made by each claimant are of harassment of a person who holds the qualification, (3a); discrimination by varying the terms on which the qualification is held, subjecting a person who the qualification is conferred upon to a detriment, and indirect discrimination contrary to section 53 Equality Act Conclusions on the Investigation and meeting of the 22 December 2017[697]The complaints made about Mr Olumade and the complaints he made about the white drivers were similar, but not the same. They were sufficiently similar however, that we would expect a similarity of treatment of those accused of wrongdoing.[698]We find that treatment of them was wholly different. None of the drivers Mr Olumade accused of aggression towards him were sent a letter of the type sent to Mr Olumade and none were subjected to the sort of interview that Mr Olumade was subjected to.[699]The BDBC officers have a wide discretion over what and how to investigate. They are entitled to investigate and consider any matter which potentially raises a question about whether or not a person is a fit and proper person to hold a BDBC licence and as long as they do so without discrimination, they act within their powers by doing so.[700]Section 53 of the Equality Act becomes relevant if the decisions made to investigate a particular taxi driver or the manner in which investigations are carried out, are on grounds of or related to race or on grounds or because of a protected act, or alternatively are the application of an indirectly discriminatory policy criteria or practise.[701]We remind ourselves that the complaint made by the teacher at Ashwood Academy was essentially a request that Mr Olumade reimburse her for the cost of repairing the damage to her car. We remind ourselves that we have found that Mr Olumade was prepared to pay for the damage to the car and had offered to do so but did not want to pay cash and objected to the amount he was being asked to pay.[702]On that basis we are unclear why this was a matter for licencing at all. If there had been an allegation made by the teacher of aggressive behaviour in the exercise of his taxi driving duties, we accept that there might have been a matter about which the licencing of authority had a legitimate interest. That was not the complaint this was essentially a matter about a debt.[703]From the documents we have seen, we infer that the decision by Mr Wake to visit the school following with the complaint being received on the 8th of December, and his decision to speak to somebody at the Hampshire County Council both before he had ever spoken to Mr Olumade was an attempt to build a case or a complaint against Mr Olumade.[704]Whilst this was a matter involving a third party it was also a matter which had little to do with the licencing authority and suggests and enthusiasm or interest in investigating Mr Olumade which was wholly different from any appetite or enthusiasm for investigating white taxi drivers about whom Mr Olumade had raised complaints and concerns.[705]We accept that there is a difference between complaints made by third parties, and those made between taxi drivers.[706]The first concerns the public interaction with the taxi service and the second concerns, behaviour that may be anti-competitive or aimed preventing a person from pursuing their trade for example.[707]However, none of the respondent witnesses have suggested to us that they dealt with the different types of complaints differently because third party complaints were taken more seriously and complaints between taxi drivers.[708]We remind ourselves of the evidence we have heard from Mr Draper and others about how the BBC does deal with complaints and why they deal with them.[709]First, we find that the policy or practise which was in place at the point that Mr Draper became employed was that all allegations against any taxi driver would be recorded and placed on the file of the person complained about.[710]Second, we find that taxi drivers were advised that complaints of harassment or assault should be reported to the police.[711]Third , we find that although Mr Draper said complaints should be investigated in order to ensure confidence in the licence system and the council's reputation, we also find that the council had previously stated that any complaint which lacked particulars, such as dates or times or individuals involved would not necessarily be pursued, but where particulars such as dates and names or further contemporary evidence was provided, a matter would be investigated.[712]Fourth, we find that the standard approach would be to notify the person about whom the complaint had been made in order to ask for their comments at an early stage.[713]A decision about whether or not a matter should then be pursued further, and in particular, whether it was a matter which raised a question of fitness and propriety, would be determined at officer level.[714]The first question is whether or not decision to investigate the Ashford school issue and the other issues and the way it was investigated were in line with the usual way, but the BD BC investigated matters.[715]We find but Mr Wake did not follow the usual processes or procedures.[716]First, if Tina Tawton considered she had been harassed then the respondents policy and advice as given to the claimant was that this was a matter for the police.[717]Second, the allegation of excessive filming was not it appears supported by any further details and was the type of allegation which the council had said they would not therefore pursue further.[718]Third, Mr Olumade was not informed at an early stage in respect of any of these matters and was therefore in effect denied the opportunity of having the matters dismissed at an early stage, and informally.[719]We question whether there was, objectively speaking, any basis for investigating what had happened at Ashwood Academy at all. Mr Wake decided that there was and in doing so he exercised a discretion. We find that by going to the school and asking questions about Mr Olumade, he acted differently to the way that he had acted in any other complaint or allegation we have heard evidence about with the exception of the investigations into the Reading incident. Those investigations were carried out by Mrs Stevens and Mrs Cannon.[720]We find that his investigation was unwanted by the claimant.[721]A fair investigation could not reasonably be considered to be a detriment but an unfair investigation or an investigation which is pursued for reasons related to race or because a person has complained about race discrimination would as a matter of logic also be a detriment.[722]We have asked whether the decision to investigate and whether the decision to call the claimant to the subsequent meeting and the treatment of the claimant in that subsequent meeting were different and less favourable treatment alternatively unwanted treatment by the claimant or alternatively a detriment to the claimant.[723]Whilst there is no actual comparator in respect of the manner of the investigation, findings we have made about the decision to call a formal meeting and the treatment of someone in such a meeting and the findings of how others were treated in similar situations, is evidence of how a hypothetical white taxi driver would have been treated, in the same or not materially different circumstances.[724]We find that the Ashwood Academy incident was essentially a matter between the claimant and the school and Hampshire County Council.[725]Mr Olumade was the only taxi driver Mr Draper interviewed himself. At that interview Mr Olumade was threatened with and PACE Mr Draper spoke to Mr Olumade as if he a had already determined that he was guilty of something and we find that it was hostile and aggressive. We have no evidence that he ever treated any white taxi driver this way,[726]We refer back to our findings about how Mr Langley and other white taxi drivers were investigated, and the types of meeting held with them that we have been told about, in the context of allegations of aggressive and threatening behaviour to Mr Olumade.[727]We have reminded ourselves that a claimant in a discrimination case faces a particular difficulty because they do not necessarily have access to all the information which might assist them in demonstrating how others have been treated in similar circumstances. We also remind ourselves that claimants face particular difficulties in race claims because they cannot look into the mind of the alleged discriminator.[728]We have reminded ourselves of the dicta of the Court of appeal, set out in the paragraphs on relevant legal principles, from Anya in particular that those who are prejudiced do not advertise their prejudice and that often finding race discrimination will be dependent upon inferences that it is appropriate to draw from findings of primary fact.[729]We have commented throughout this judgement that the respondents have provided limited documentary evidence to support their contention that they did interview the drivers accused in respect to the mobbing incident and we have also referred to the redaction of those documents, and late and forced disclosure of the unredacted documents.[730]On the basis of our findings of fact we infer that a hypothetical white taxi driver who had damaged a person’s car and agreed to pay for that damage would not have been treated in the way that Mr Olumade was. He would not have been subjected to a formal meeting and if he attended at a meeting, would not have been treated I the same way by Mr Draper. We find his treatment was less favourable treatment.[731]We also find that Miss Akinleye as representative observed and was affected by that less favourable of her husband.[732]We find that the treatment of Mr Olumade in subjecting him to this type of formal investigation and the manner of the investigation and the meeting itself amounts to a detriment.[733]In addition, we find that the behaviour of Mr Draper within this meeting was unwanted treatment and whether its purpose was to create an offensive hostile or otherwise unlawful environment for the claimants. We all agree that it had that effect.[734]We have been told that one of the conditions on which a person holds a Hackney carriage licence is that they are and continue to be a fit and proper person to hold that licence. We understand this to be a criteria within the meaning of the definition of indirect discrimination which applies to all taxi[735]The complaint made by the claimants is that this criterion was not applied equally but was used in a discriminatory way against Mr Olumade in attempts to remove his licence from him. Indirect discrimination arises where the same policy is applied equally to everyone, but has an adverse impact on the claimant and other who share their protected characteristic. That is not the complaint here.[736]This is an allegation of direct discrimination or harassment and could be a complaint of victimisation, but it not an allegation of indirect discrimination. We dismiss the claims of indirect discrimination brought in respect of this group of[737]Having determined that there was less favourable treatment and having determined that the treatment was unwanted and a detriment we must determine whether or not either claimant was subject to direct discrimination or harassment. we remind ourselves that a claim that is harassment cannot also be found to be direct discrimination and vice versa.[738]Were any of the acts or omissions complained of, on grounds of race for the purposes of direct discrimination or related to race for the purposes of harassment?[739]Mr Olumade had raised the question of institutional racism and racial profiling and would go on to raise concerns about racist stereotyping and the attribution of racist stereotypes to him as a black African man.[740]No one within the licencing department or within the wider council has ever had a discussion with Mr Olumade about this issue. By 2017 no one at the respondent had ever acknowledged the concerns he was raising about racism at the rank or racism within the council other than to say that he should report criminal offences to the police.[741]A licencing authority is bound by section 53 EQA 2010 and the other relevant parts of the Act to ensure that it does not discriminate, either in the issuing of licencing or in the terms on which it issues licences or by subjecting individuals to a detriment. We find it extraordinary that there was not therefore some recognition at some point by somebody that the claimants’ complaints about racist behaviour by other white taxi drivers, which was both frightening and persistent, should be acknowledged and investigated.[742]Instead, the claimant was met with corporate denial. Not only was there a failure to acknowledge any problem at all, but there was also a failure by anyone, in particular Mr Draper, the new senior person in the team to acknowledge that the claimant was raising matters which required some serious investigation. The most the authority did, and then we find did reluctantly, was to issue a warning to one taxi driver. We have not seen any other evidence of any other warning, although Mr Draper says they were issued. Without evidence of those warnings, other than the assertion by Mr Draper, we find that no such warnings were issued.[743]When Mr Draper started work at BDBC, he was faced with a situation of very poor relationships between two groups of taxi drivers. We have made findings of fact about some of the root causes of that situation.[744]Mr Draper had to decide how to deal with the behaviour of taxi drivers at the rank and he could have decided to take a firm line with all taxi drivers, interviewing and subjecting all drivers about whom complaints were made to a formal interview with a view to considering fitness and propriety to hold a taxi[745]We find that Mr Draper made a conscious choice to formally pursue Mr Olumade in respect of complaints made against him and that a similar choice was made not to formally pursue the people about whom Mr Olumade had raised complaints. The investigation into Mr Olumade was different to any investigation or action in respect of any white taxi driver about whom complaints had been made by Mr Olumade himself or by Miss Akinleye.[746]We find that Mr Draper, new to the authority picked a side. We find that his behaviour throughout the chronology, both before and after these events, indicated a sympathy and understanding with the taxi federation and the white taxi drivers who were members of it and a willingness to listen to and investigate their concerns, coupled with a willingness to believe that Mr Olumade was the source of the problems.[747]The view that Mr Olumade was difficult, aggressive and the cause of problems, was, we find, a view held by a number of officers within the BDBC licencing department at the point Mr Draper was appointed. We make that finding on the basis of evidence given by Mrs Cannon in particular about her own attitude towards Mr Olumade but also the attitude she reported of other members of staff within the department over a long period of time.[748]We find that Mr Draper adopted and supported that view and find that his decisions and interactions with Mr Olumade and Miss Akinleye from the point that he joined the department until the end of the relevant chronology in this case, were affected and influenced by that prejudicial and negative view of the[749]We find that the view of Mr Olumade, and his wife by association, were prejudicial and racist. It is characterised by assumptions that he had behaved rudely when he had simply asked questions and by the subsequent disclosure of information indicating that his papers had been sent to the Home Office because of an unjustified concern that there may be some issue with his immigration status because he was an African man.[750]We find the willingness of BDBC officers to minimise or ignore and dismiss what had happened to Mr Olumade as a matter for someone else, extraordinary.[751]We find the investigation and the treatment of Mr Olumade and Miss Akinleye at that meeting was unwanted conduct and that, whether deliberately or not, it had the effect of creating an intimidating and hostile and offensive environment for both of them.[752]We also find that the investigation and the meeting were matters which amounted to a detriment within the meaning of section 53(2)c EA 2010 for the purposes of discrimination.[753]We find that the facts we have set above are facts from which we could conclude in the absence of an explanation , that the reason why Mr Draper acted as he did at this meeting and the reason why Mr Wake acted as he did in the process of investigating were because of race or related to race.[754]The lack of acknowledgement or investigation of the claimants’ complaints of racism, are further facts from which we could conclude that the unwanted treatment was because of the making of those complaints of the purposes of[755]We find that the burden of proving the reason for the treatment was nothing to do with race, or nothing to do what allegations made by the claimants of racism, passes to the respondent.[756]We do not accept the explanation from Mr Wake or Mr Draper for any of the treatment they subjected the claimants to either in the manner of the investigation but in particular in the way that Mr Draper treated the claimants in the meeting. We could therefore conclude that the treatment was because of race.[757]We could also conclude that the treatment was because the claimants had raised concerns about race discrimination within the department and had made complaints of race discrimination about others.[758]In respect of these allegations, we conclude that the actions taken by Mr Wake and Mr Draper in pursuing the particular issues in a formal way prior to the meeting, and the discussions with the School and others, were different less favourable treatment on ground of race. They are not wholly explained and we conclude that they were acts of direct discrimination.[759]We conclude that he way that the claimant was treated at that meeting by Mr Draper amount to unlawful harassment related to race. In reaching this conclusion we have taken into account the claimants own perception the circumstances of the case and whether or not it is appropriate to treat the matters as harassment.[760]If we are wrong, we would have concluded that the allegations of direct discrimination were proved.[761]We therefore dismiss the claims in respect of direct discrimination and victimisation, as the claims cannot be all three types of discrimination.[762]Miss Akinleye also complains of harassment. We consider that the treatment of her husband at the meeting was unwanted by her, that she was acting as a representative, and of course she was also a licence holder with the BDBC.[763]We conclude that although the treatment is not directed at her, it was unwanted by her and put her in a hostile environment and we also find that the treatment of Mr Olumade was related to race. Taking into account her own perception and the circumstances we find that although this is an unusual situation, it is appropriate to conclude that this was harassments of Miss Akinleye related to race and we conclude that she was discriminated against by reason of harassment at the meeting by Mr Draper. Events following the meeting of 22 December 2017.[764]During the course of January 2018 Mr wake remained in contact with both Hampshire County Council and the Ashwood Academy, asking Miss C and others to provide section 9 witness statements.[765]On the 31 January 2018 Mr Olumade reminded officers at the BDBC that himself and other African drivers were not members of the taxi federation he asked the communications should be sent to them personally as well as the federation.[766]On the 6 February 2018 Miss Akinleye’s taxi H12 was subjected to an extensive inspection. Miss Akinleye says this was the result of a complaint by a white taxi driver who stated that the vehicle was causing frustration. The inspection was carried out by Mrs Stevens and SB. Miss Akinleye makes her allegation of race discrimination at A12[767]Mrs Stevens had responded to a complaint that another taxi driver had made in respect of potential damage to H12. She asked for any further information about the damage, having stated that they inspected the car due to damage to the offside rear bumper. In response the complainant said that the damage was on H12 left passenger side lower rear tailgate. The complainant said they had complained previously and asked to be kept updated. SB contacted Mr Wake saying she thought there was a need to inspect the vehicle and asking for advice.[768]SB then telephoned the claimant and spoke to Miss Akinleye saying that she had a report of some damage. She explained she thought it was the left tailgate. The claimant said she didn't know what she was talking about and said she didn't have any damage to the car. Instead of taking the claimants word for it, the claimant was asked to bring it in for an inspection and a time was arranged.[769]We have been shown a video of the two officers inspecting the car. It is clear that having identified that there was no damage to the rear tailgate that the officer then continues to have a very thorough look at the rest of the car.[770]Once it was identified that there was no damage to the part of the car reported, there was no basis for inspecting the rest of the car in such detail. What might have been appropriate was to ask why the taxi driver who complained, continued to report damage to a car when there clearly was none. This did not happen.[771]The Claimant says that by inspecting her car on this occasion she was subject to detriment country to section 53 (2)c and that she was subject to harassments as a person who holds a licence contrary to section 53 (3) a.[772]We find that inspecting cars to ensure that they are roadworthy is part of the licencing authorities’ power but also find that there is a discretion when they exercise their power to inspect a vehicle.[773]Since the claimant had said there was no damage to her car and there was no photographic evidence of any damage, and the only evidence was a complaint from another driver, we find that there was no obvious reason to inspect the vehicle unless either the claimant was not being believed, or there was a perceived need to be seen to investigating the complaint made by the other driver.[774]We have read the e-mail exchange which preceded this inspection, and we find that there was an initial reluctance to pursue this matter, and that the reason it was pursued, was the persistence of the complaining taxi driver.[775]We find that Miss Stevens and SB felt it necessary to carry out the inspection because of the pressure put upon them. This is not explained by the respondent at all.[776]We find that when the claimant had been insistent that white taxi drivers he had complained about should be investigated or that action should be taken, there was a similar reluctance to act.[777]Whilst there is some evidence of different treatment and whilst we have made some finding from which we could infer discrimination such as our findings of Mrs Stevens’ negative attitudes towards the claimant, and our findings that on other occasions her treatment of the claimant was on grounds of or related to his race, we find that the burden of proof does not pass to the respondent. If we are wrong, we find that the real reason for the action of the officers, was not on grounds of race, nor was it related to race, but was because of the persistence of the complaint by a white taxi driver.[778]We accept that this was unwanted conduct, and we accept that whilst it was not the purpose off the inspection, the effect of it was to create an intimidating or hostile environment for the claimant. We find that it was not however unwanted conduct related to race, but unwanted conduct arising from pressure being put on the authority by another driver.[779]We have also considered indirect discrimination. The respondent had a policy or practise of inspecting cars for damage and also had a policy or practise in respect of dealing with complaints. The policy or practise itself applied equally to all drivers and we find that whilst being subject to an inspection could be perceived as a detriment, the policy did not put people of any particular race at any particular disadvantage. The allegation that the council subjected the claimants to more inspections than other white others, and did so for reasons related to race, is an allegation of direct discrimination.[780]We find it highly probable that this was an attempt by another taxi driver to cause problems for the claimant or deliberately provoke her, and we understand why the claimant would consider both that she was being subject to discriminatory allegations made by other drivers and why she might consider at this point that this was an act of race discrimination or race related harassment. We find that tit was not. February 2018 Request for feedback[781]On 12 February 2018 Mr Olumade contacted licensing asking for feedback in respect of the interview he had attended on the 22 December 2017.[782]Following the meeting there had been further correspondence between Mr Wake and the Ashwood Academy asking for witness statements but no response to Mr Olumade.[783]Also on the 12 February Mr Olumade wrote to Colin Rowland complaining about the response he had received from Mr Draper on the 30 January 2018 in respect of complaints he, Mr Olumade had made. Specifically, he had asked whether or not the licensing department had fully investigated the matter he complained of, and whether any of the drivers had been reprimanded for their actions. He was told in response that three drivers had received advice and warnings as to their future behaviour and that Mr Olumade had been verbally advised of this on the 22 December 2017.[784]The claimant then raised a concern that Mr Draper had attempted to discuss the outcome of his complaints during the course of a meeting, which was essentially to discuss complaints about him, and also complained about the manner in which Mr Draper and Mr Wake had conducted the interview.[785]In that letter the claimant says, please allow independent investigation into institutional racism within licensing department. A taxi licensing department should be fair, consistent and just, but where a department is saddled with ensuring safety of the public is pursuing racist agenda or incapable enough to be fair and just serious scrutiny of the department is essential for the socio economic fabric of the society.[786]The claimant made clear that this was an escalation to second stage of the council complaints procedure. The claimant relies upon this as a protected act and the respondent admits that it was one.[787]On 2 March 2018 Mr Payne forwarded the claimant a reply by Colin Rowland to the stage two complaint.[788]Prior to this, and following his contact with them, further information had been provided to Mr Wake by the officer from Hampshire County Council, including a copy of an interview which had been carried out with Mr Olumade and the letter giving him his formal warning.[789]On the 1 March 2018 Mr Wake wrote to both Mr Olumade and Miss Akinleye inviting both of them to attend a PACE investigative interview following on from the interview on the 22 December 2017.[790]In the letter to Mr Olumade, Mr Wake stated in order that we may properly investigate this matter which is relevant to being satisfied with your fitness and propriety for licensing purposes and to give you an opportunity to respond to the complaint you are invited to attend a voluntary formal interview at the council offices.[791]The letter stated that Miss Akinleye could not attend the meeting with Mr Olumade because she was the subject of a complaint.[792]Miss Akinleye, who had attended at the interview as Mr Olumade’s representative and interpreter received a letter in the same terms. The letter to her stated that she was being invited to an interview in order that the council could properly investigate the matter relevant to being satisfied with her fitness and propriety for licensing purposes. Miss Akinleye was not the subject of any allegation or any complaint. Mr Wake knew that. There was no reason to send this letter to Miss Akinleye. We accept that it suggests that her own license was being threatened because of her association with Mr Olumade, and find that the letter did cause her distress. The respondent says that this was a straightforward error and that the claimant ought to have understood this.[793]On 2 March 2018 the letter from Colin Rowland acknowledges a number of significant and serious complaints against the council and the licensing team. The letter apologises for some delays in dealing with some of the claimants’ complaints, states that the officers have been interviewed and then reiterates what Mr Draper and Mr Wake had done, to investigate of the various complaints. We are not told that there was any other investigation.[794]In respect of Mr Olumade’s complaint about the interview, the letter states there is no evidence that the interview was in any way racially biased or an abuse of process. As a result of the information you provided, no further action has been taken on two of the complaints. The third complaint has been investigated further and detailed evidence has been formally gathered.[795]The letter goes on in a later paragraph to say having reviewed the evidence and actions undertaken by the council I cannot find any basis for your treatment or the investigation being racially biased. If you have further evidence, then we would welcome an opportunity to consider it.[796]This is the first time that the claimant was told that no further action would be taken in respect of two of the allegations made against him, one of which was that he had made a face at Tina Tawton. The claimant alleges at allegation O49 that Mr Rowland approved and upheld allegation 1 and 2 of the 22 December 2017, and refers to this as an act of discrimination. In fact Mr Rowland was writing to state that two of the allegations had not been upheld and that no further action would be taken.[797]Whilst it would have been helpful for Mr Wake or Mr Draper to have made this clear when they wrote to the Claimants, Allegation O49 is factually wrong, and is dismissed.[798]Returning to the complaint made by Mr Olumade. We accept that the BDBC licensing office was a busy area of work and we also recognise that the complaints from drivers about other drivers could at times have seemed overwhelming and petty, but the allegations made by the claimant about assault and a threat of violence from other taxi drivers who were white were acknowledged as being of a serious nature. There were also number of apparently unfounded allegations and complaints being made against Mr Olumade and Miss Akinleye by other white taxi drivers. This includes the inspection of Miss Akinleye’s vehicle and the Tina Tawton complaint amongst others.[799]There was no invitation to Mr Olumade or Miss Akinleye to meet with a more senior officer at the council to discuss why he considered that his treatment was racist or why he thought there was an issue of institutional racism within the council. We find that there was no serious investigation at all, prior to the letter being written back to Mr Olumade. It is possible that Mr Draper or Mr Wake were spoken to, but we have no clear evidence form anyone that this is what happened.[800]We conclude that whilst the allegations were looked into, the consideration focused solely on whether there was any overt obvious evidence of discriminatory conduct. there was no consideration off how others might have been treated.[801]In March 2018 the claimants were informed that the Ashwood school had cancelled the contract for Mr Olumade to drive the child to school.[802]Mr Olumade wrote back to Hampshire County Council, thanking the council but expressing concerns about the headteacher, and he [the head teacher] gave an entirely different account to Basingstoke and Deane borough council, all because we were not willing to hand over £500 in cash for the repairs of the car allegedly damaged by myself. He thanked the council for their support through what had been a trying time and said he looked forward to doing business with them again.[803]We find that this was a polite and appropriate letter and was indicative of the way that Mr Olumade dealt with the authorities.[804]On the 20 March 2018, one of the BDBC elected councillors contacted Mr Draper, explaining that Mr Olumade had been to see him and another councillor regarding the issues he was facing. The councillor stated that the issues seemed to be complex and overlapping on many fronts, all at once. They asked, Could you help us please understand the issues from your perspective, as the officer involved, so that we can have a full picture.[805]We find that the matters Mr Olumade was raising were the same issues he is raising in the tribunal , and that he had given the councillors a lengthy and detailed analysis of his concerns, giving details of complaints and how they had been dealt with, and giving details of why Mr Olumade had made complaints. The documents set out in great detail the reasons why Mr Olumade considered he had been subject of race discrimination. We have no evidence about what happened to this inquiry or what response was sent by Mr Draper, but Mr Draper did not discuss the matter with the claimants.[806]We find that at some point between December 2017 and March 2018 a decision was made that both Claimants would be interviewed under PACE, with a view to considering whether or not either of them was and remained a fit and proper person to hold a taxi licence because of the Ashwood Academy incident.[807]We have heard evidence of how others were treated when complaints were made about incidents that involved more than one individual. For example Mr Olumade’s complaints about how he was treated at the rank, both when he had hot liquid thrown at him by Mr Bulpitt, and when he was threatened with violence. There was no suggestion that any one was written to in such terms or invited to a formal PACE interview, unless they were the subject of a complaint. We find that even in serious cases, the type of letter was not written as a matter of course, but only where there might be further proceedings.[808]On 21 March 2018 in response to a request from Miss Akinleye, statements in respect of the Ashwood school incident were provided to the claimants.[809]On 23 March 2018 both claimants were interviewed under caution, in respect of the Ashwood school incident.[810]Mr. Olumade also complains that the fact of the interview was an act of discrimination, and an act of victimisation, for him having made previous complaints about the licensing department. He also alleges that the use of the PACE investigation on the 23 March was because of previous complaints had made against the licencing department that it was to satisfy the drivers who were different race to him because of the stance they had taken on transporting children in buggies and to victimise him for having used CCTV in taxis which had been used for the prosecution and cautioning of other white taxi drivers. he alleges that whilst they were criticised for the use of CCTV and dash cams other white taxi drivers also had dash cams in their taxis and were not criticised as far as he is aware.[811]He also relies on 53 (2)b, and (c) and , 5b and c.[812]Miss Akinleye alleges at A13 that she was subjected and interviewed as a subject of a complaint, which was nothing to do with her. She says that she was victimised because of her association with Mr Olumade and complains that subjecting her to a PACE interview, without having committed any alleged offence, was discrimination. She relies on 53 (2)b, that there was a variation of a qualification, on 2(c) that she was subject to detriment, on 5b and c, that she was victimised, by having the terms of her license varied, or by being subject to a detriment.[813]We find that the interview under PACE was unwanted, but as neither claimants’ licence was in fact varied or changed, the claims under 2b and 5b of section 53 are therefore dismissed. This leaves and allegation of detriment under section 53.[814]We have considered whether interviewing Mr Olumade or Miss Akinleye under PACE was a detriment for either of them, and if so, what was the reason for the interviews.[815]We find that the interview under PACE was a detriment for both of them.[816]We find that the first claimant was subjected to detriment, we find that both by the letter and by the subsequent interview.[817]We conclude it was because of her association with Mr Olumade. We do not understand why she would have understood that it was a mistake, and nobody has ever suggested that to her in writing. No one corrected the wording of the letter for example at the hearing that took place subsequently.[818]We find that since Miss Akinleye was not the subject of any complaint, this was a mistake, but find that the failure to notice or correct it was symptomatic of the lack of care taken over the matters, as far as Miss Akinleye was concerned.[819]Mr Draper said in his statement that the reason the claimant was asked to attend a PACE interview was to provide evidence of the incident at Ashwood Academy. He said it was a voluntary interview and that the purpose was explained to Miss Akinleye and that she could have left at any time.[820]It was suggested in oral evidence that the letter was sent to Miss Akinleye as an error and that this should have been realised. We do not understand why she would have understood it to be an error, as no one said anything about it at the interview. Mr Draper did not explain why she was there or explain or apologise for the error.[821]Having reviewed the transcript of that interview we find that Mr Draper did tell the claimant that the purpose of the interview was to seek the truth and that the purpose was purely to establish her version of events on the day.[822]He did not tell her that it was a voluntary interview and did not tell her that she could leave at any time. Nor did he clarify at any point that she was not the subject of complaint and nor did he clarify that her licence was not at any risk. What he did do was read the caution to her recorded the interview and then asked a number of questions about what had happened when they visited the school on 1 December 2017.[823]The Respondent also say that the claimants were not treated differently to anyone else, because anybody who was interviewed by the council would have given a Section 9 statement. Whilst we accept that the council did interview other people in connection with the Ashwood Academy incident and whilst we have seen section 9 interviews in respect of other matters where it was intended to take things to the licencing committee, we reject that suggestion that anybody interviewed by the council would be interviewed in the same way. There is no section 9 statement before us from Mr Langley for example, or from Mr Olumade in respect of his complaint about Mr Langley. Mr Draper knew this.[824]We conclude that the decision whether or not to interview somebody under PACE was an exercise of the discretion of the BBC officers.[825]Miss Akinleye rejected the respondent’s suggestion that she was interviewed as a witness like everyone else, pointing out that she was interviewed as a subject of a complaint. We agree.[826]We find that no one else was ever subjected to this treatment, unless they were in fact the subject of a complaint. We infer that the claimant was written to in the way she was, because she had been present with Mr Olumade, and because she had been referred to by those complaining and investigating. We infer that on some level, the assumption was that the issue or complaint was about both of them.[827]We find that there are facts about the difference in treatment and about the way the respondents, and Mr Draper and Mr Wake in particular treated the claimants throughout the chronology, that could lead us to conclude that , there had been discrimination , in the absence of a non-discriminatory explanation.[828]We find that the matters were pursued as they were, because of prejudicial attitudes and an irritation with Mr Olumade for having made complaints of race[829]We find that the matters were pursued under PACE because of prejudicial attitudes and an irritation with Mr Olumade for having made complaints of race[830]In the absence of an explanation we accept as a full and non-discriminatory one, we conclude that the meeting, its tone, the comments made and the subsequent decision to proceed further were because of the claimant’s race, and the fact of the complaints made by Mr Olumade.[831]In the interim, on the 19 February 2018 Mr Olumade made a subject access request to the[832]BDBC Information Governance Officer for a copy of personal information held by the council's licensing team.[833]Miss Akinleye complains that no outcome was ever provided to either the claimant in respect of this matter, and that this was also race discrimination. She says that she was really concerned because she thought that her licence might be revoked and that caused her stress. We accept her evidence.[834]On the 8 April 2018 Miss Akinleye wrote to Mr Draper stating that she had not received any notification of the outcome of the meeting and would like to know what the outcome was.[835]On the 23 April 2018 Mr Draper wrote to both claimants stating that they were still awaiting a finalised transcription of the PACE interviews. He apologised for the delay.[836]On the 26 April 2018 Mr Olumade wrote again to the IGO stating that he would like to revisit the way his request for information had been handled. He set out the information which he had requested and referred to a response received on the 29 March 2018, and said that he suspected there had been a failure to disclose all the relevant information he had requested. He included a list of the additional information he had expected to receive.[837]On the 23 April Mr Draper wrote to both claimants stating that they (Mr Draper) had received a transcript of the interview which they were in the process of checking and would be providing a finalised version within the next 10 working days.[838]The respondent accepts that there was a delay in providing a copy of a transcript of the meeting and suggested that the reason for this delay was because both claimants made significant subject access requests.[839]We find that Miss Akinleye was not asking for a transcript, she was asking for an outcome of the investigation.[840]We find that no outcome response was ever provided to either claimant about this matter. Various excuses have been given, including the fact that the claimant had made a detailed subject access request, the management of which had led to an oversight.[841]We do not accept this explanation as it is not credible. Mr Draper and Mr Wake had taken great pains to investigate a matter and knew that it would have been a matter of significant concern to both claimants. They knew that both claimants wanted to know what the outcome was, because of the potential impact for their livelihood but also because of their concerns about race discrimination. we find that both Mr Draper and Mr Wake knew that they were expected to provide them with an outcome and tell them whether they were going to take the matter further, or whether it was dismissed.[842]If Mr Draper and Mr Wake had formed the view that, having carried out all their investigations, there was no question to answer in respect of fitness and propriety, then they simply needed to write to the claimants and say so.[843]If they considered that there was an issue in respect of fitness and propriety which required some form of further action or penalty, then again, they needed to write to the claimant and say so. It is inconceivable that either of them simply forgot about a matter which had occupied so much of their time over the last four months.[844]We also conclude from all the evidence we have heard and the findings that we have made that had Mr Draper or Mr Wake considered that further action was necessary, they would not have hesitated to write to the claimants.[845]We conclude that since no further action was taken against either claimant, that a decision was made that any concern about the fitness or propriety of either claimant was dismissed. Since the provision of an outcome would be expected in the normal course of events, and since we have seen other examples of outcome letters being provided, we conclude that the claimants were treated differently to the way that any other driver would have been treated in the same or similar circumstances.[846]At this stage in the chronology both the claimants had raised concerns in several formal ways about and about decisions made by the BDBC Licensing department, Mr Draper and Mr Wake, both making allegations of institutional racism and individual discrimination. They were asking for sight of their documents by a SAR, and had put together a detailed set of documents itemising all the allegations they were making, with evidence, which had been sent to councillors.[847]Mr Draper does not refer to the complaint to councillors at all in his witness statement.[848]We have asked ourselves whether or not there are facts from which we could conclude in the absence of an explanation that the failures to provide the outcome, and treatment of the claimants in this particular instance was an act either of race discrimination or an act of victimisation.[849]The respondents do not suggest but there were other instances where outcomes were not provided. We take into account the facts that we have found about the behaviour of Mr Wake Mr Draper Mrs Cannon and Mrs Stevens and the way that the claimants’ complaints have been handled compared to the way the complaints of other white taxi drivers were handled. we have taken into account the response of council officers including Mr Draper and Mr Wake and Miss Cannon to the serious threats of violence made against Mr Olumade in particular. These are facts from which we could conclude that race was a cause of the treatment. In this case the burden of proving a non discriminatory explanation for the treatment passes to the respondent.[850]We have rejected the explanation offered by the respondent.[851]We conclude the failure to provide a response was not an error or a mistake or an oversight but was a deliberate failure to communicate a positive outcome to Mr Olumade, because he was complaining about race discrimination and institutional racism and because he is a black African man. This was an act of[852]Miss Akinleye had not made complaints of discrimination or done protected acts at this point. We infer from our findings that the reason she was not communicated with was for the same reason that her husband was not communicated with. the failure to communicate with miss akinleye was not an act of victimisation but it was because of her association with Mr Olumodo. Right[853]We find it was an act of detriment and from the findings we have made about the lack of care in respect of Miss Akinleye and the difference in treatment between her and others we could conclude that this was on grounds of race in the absence of an explanation. None has been provided, and we conclude that this was an act of detriment and direct discrimination contrary to 53 (2)c Equality Act 2010. The IGO responses and Mr Draper – May 2018 Renewal of the claimants’ License’s and referral to Home office[854]On the 29 May 2018 Mr Olumade’s Hackney carriage private hire drivers licence HD 400 was renewed. The licence was valid until the 7 June 2021. We find that Mr Olumade was under scrutiny because his licence was due for renewal, and Mr Draper and Mr Wake were looking for reasons not to renew it.[855]We find that neither Mr Draper or Mr Wake, or anyone else, were prepared to ensure that the claimant was told that there would be no further action taken in respect of these allegations or to ensure that Mis Akinleye was told that no further action would be taken and that in any event the letter had been sent to her in error.[856]This was one of the matters the claimant raised in their letter of complaint to their MP Maria Miller when they wrote to her subsequently.[857]The claimant’s letter to his MP was referred to the local authority.[858]In response the Chief Executive wrote back to Maria Miller stating that this matter was still being investigated. The letter is dated 2020, 2 years after the interview and longer after the events being interviewed about.[859]Whilst we find that nothing was in fact done to investigate the claimant’s allegations and concerns about race discrimination and find there was no response to a request for an outcome in respect of the 22 December 2017 meeting, the response written by the local authority to Maria Miller the claimants’ MP reassures her that all steps are being taken. This was not true.[860]We have no evidence before us that the Ashwood school incident or any of the other matters about which the claimants were interviewed in December 2017 were still being investigated in 2020 and had not been concluded and we find that they were not still being investigated at that point. We have no explanation before us of the source of the information provided to the Chief Executive that formed the basis for the letter to the MP.[861]Whilst it was the practise of the local authority to leave matters which had been resolved on file in case of future complaints, this is fundamentally different from suggesting that the matters were live.[862]We find that any examination of the two files would have indicated that the claimants had asked for an outcome and that none had been provided. Further any consideration of the file would clearly have demonstrated that the matters were not still being investigated and we conclude would further have indicated that no further action had been taken because there was insufficient evidence of any wrongdoing or behaviour on the part of Mr Olumade or Miss Akinleye which might have led to any further action being taken.[863]In the absence of any valid explanation, we have considered whether we have found facts which might shift the burden of proof in respect of this matter.[864]On the basis of our findings, we conclude that somebody provided the Chief Executive with incorrect information and that either this was deliberate or it was the result of a failure to take proper care. In any event it was a failure to deal with a serious complaint being made by the claimants and raised by an MP.[865]There is no suggestion by the respondent that they routinely gave false information or routinely failed to properly check files and we find that they did not. This was particular and specific to the claimants. It was a detriment, and it was, we find, different treatment to the way a hypothetical white taxi driver in similar circumstances would have been treated. The chronology of events and the factual matters that we have found in respect of the treatment of the claimant in other situations and the assumptions and prejudices against the claimants’ race that we have found existed within the department and the attitude of Mr Draper towards the Mr Olumade in particular, both when investigating his complaints and in the first meeting he had with him, and when Mr Draper became aware of the claimants’ complaints to the employment tribunal, are all facts from which we could infer discrimination.[866]The burden of proof in this case therefore passes to the Respondent to demonstrate a reason for the treatment that is nothing to do with race or the protected acts carried out by the claimants. We have no explanation from the respondent for the failure to inform the clients of an outcome, or the incorrect information given to the MP.[867]We therefore conclude that the treatment was on grounds of race and or victimisation for having done protected acts. We conclude that at this time, both the claimants’ race and the fact of the protected acts were matters which influenced the actions of the BDBC officers at this point in the chronology.[868]In response to Mr Olumade’s complaints about the BDBC , the local government ombudsman criticised the local authority and the information commissioners upheld part of the claimant 's complaint that his data had been mishandled. The First Data Protection application - 2018[869]Mr Olumade made a data protection act /subject access request to BDBC on the 19 February 2018. He received some documents from the respondent on the 29 March 2018 but noted documents were missing and made a further request on the 26 April 2018, to revisit his request.[870]He told us and we accept that the documents that he was provided with showed that he had not being privy to a number of documents and communications such as emails with drivers and internal memorandums.[871]Following an outcome from the ICO in July 2018 that the BDBC had not complied with the requirements of the Data Protection Act and an instruction that all outstanding information should be provided to Mr Olumade within 14 days, the claimant received another set of documents on the 6 August 2018. Mr Draper told the claimant at that point that the council had now released all documents in their possession.[872]The documents provided to the claimant had been redacted. Allegation about Mr Draper becoming involved in the SAR and his response to Mr Olumade.[873]On the 27 April 2018 Jackie Tatum, the information governance officer, had contacted Mr Draper about a subject access request received from Miss Akinleye. She asked Mr Draper for assistance in identifying any information in the categories that Miss Akinleye was requesting and asked him to provide her with a copy of relevant information by the 25 May 2018 so that she could reply to the claimant by the 2 June 2018.[874]On the 3 May 2018 she wrote to Mr Payne, Mr Roland and Mr Draper among others about a similar request received from Mr Olumade. She asked them to provide her with any relevant information they held by Friday 11 May.[875]There is no suggestion in either letter that anyone other than Jackie Tatum herself or a member of her team will be providing the response to the claimants, and both requests are for provision of information to her.[876]On the 2 May 2018 Mr Draper wrote to Mr Olumade thanking him for his letter of the 26 April 2018 and saying let me assure you that there has been absolutely no attempt to withhold data or information from you. You have exchanged a considerable amount of correspondence with the authority over the last few years. He goes on to say we have located data as it's being provided to you. Some data will have been deleted as part of normal housekeeping procedures. The council does not make recordings of telephone conversations. Handwritten notes are not routinely kept but may be transposed into electronic files or emails. he says I will in due course provide you with a point-by-point response to the items you have raised. That letter is the subject of allegation O56/83.[877]On 1 June 2018 Miss Akinleye was provided with a copy of her personal information as a result of her subject access request.[878]On the 16 June and the 21 June 2018 respectively Mr Olumade and Miss Akinleye contacted ACAS with a view to early conciliation.[879]Mr Arfa, who was also a black African taxi driver, was referred to a licencing committee hearing in May 2018, as a result of which his licence was revoked on the 20 June 2018.[880]We have been referred to the details of the claims made against Mr Arfa. Whilst a number of the allegations made against him appear to be trivial matters, we are not able to determine whether or not Mr Arfa had his licence revoked for valid reasons or for reasons which were connected with his race, because he does not have a claim before us.[881]What is not in dispute, is that Mr Arfa was a black African taxi driver who had given evidence in support of the claimant when the claimant was assaulted by Paul Bulpitt, and who had tried to support both claimants. None of the allegations against him concerned violence or threats of violence, although we recognised that some of the allegations were potentially serious ones.[882]On the 22 June 2018 Mr Draper sent a further response to Mr Olumade about his subject access requests.[883]The claimant’s both allege that this is an example of Mr Draper involving inappropriately himself in any matter which concerned Mr Olumade and Miss Akinleye. They say the reason he did that, was because of their race and/or because they had done protected acts and that by doing so, he harassed them.[884]Mr Draper asserts that he was simply trying to assist Jackie Tatum.[885]We accept that at a later stage in the chronology there is some evidence that Miss Tatum did indeed ask Mr Draper to provide a response to the claimants in respect of a request made by them, on her behalf, because she was going to be on holiday. We find that there had been no such request at this point. We find that nobody asked Mr Draper to respond to Mr Olumade. We find that the letter implies a criticism of Mr Olumade, as well as a specific assertion about why some information may not be available to Mr Olumade. Such comments are properly, we think, the job of the information governance officer and not the licencing team leader.[886]We have no evidence of how other subject access requests were dealt with by Mr Draper. It is not suggested the Mr Draper routinely responded to queries which other member of the authority were dealing with.[887]We note that Mr Draper had time to write a letter in May 2018 to Mr Olumade about this but cannot find the time to write a letter to Mr Olumade and Miss Akinleye at any point, giving them the outcome of the protracted investigation into the Ashwood school incident.[888]We agree with the claimant that Mr Drapers decision to write this letter, to these claimants, about this issue, at a time when he suggests the licencing was very busy with other matters, requires further explanation.[889]We find that Mr Draper choose to write this letter. We find that he did so because it was the claimants asking about documents and disclosures, and that his treatment of them was different and unique. We have considered how Mr Draper would have responded to request for information about a hypothetical white person, making a subject access request. Would Mr Draper have written back to the Information commissioner? Was it anything to do with race or the fact that they had done protected acts? Was this victimisation? Was it harassment?[890]We have had in mind the guidance in the case of Shamoon, when considering this issue. The response from Mr Draper, is on one view, a relatively insignificant matter, which could be viewed as Mr Draper trying to be helpful, by explaining why things may take a while.[891]Mr Olumade did not see it that way, and points to other responses from Mr Draper around the same time, arising from documents he was provided with as part of his subject access request, and about which he also makes claims of race discrimination. ,[892]First , Mr Olumade was concerned about the way his data had been handled by Reading Borough Council and wrote to them to raise a complaint.[893]Second, as a result of documents disclosed to him on the 31 March 2018, he complained to BDBC governance officer about the way that his personal information had been dealt with by Sheila Stevens in 2009. He was concerned about an e-mail sent to the Home Office, and the fact that his passport, with an entry visa on it, which he had provided for one purpose had been copied by BDBC without his knowledge.[894]He queried why, as a British citizen applying for a taxi drivers licence, his information had been shared with the Home Office and wanted to know whether or not other British citizens had been subject to the same information sharing with the Home Office.[895]On the 22 June 2018 Mr Olumade received a response from BDBC about disclosure of information to Reading Council.[896]The letter stated that whilst Reading BC had been within their rights to request information, that the request should have been formally made through a data protection request and that the nature of the information provided about the vehicle, Mr Olumade and information regarding outstanding complaints against Mr Olumade, was excessive and should not have been provided.[897]Mr Olumade also received a second letter on 22 June 2018 from Mr Draper. This was in respect of the documents sent to the Home Office in 2009.[898]Mr Draper asserted that the application form filled in by the claimant was no longer available, but he attached a blank copy. He said that it was clear from the e-mail sent by Miss Stevens, that the claimant had given an answer which was not accurate, and that as a result of the declaration made by Mr Olumade, further inquiries were undertaken to determine the veracity of the application. The respondent had therefore provided the Home Office with scanned copies of Mr Olumade’s identification documents. He states he is satisfied that the department had handled Mr Olumade’s data appropriately and in accordance with our stated conditions.[899]We heard a significant amount of evidence about this matter, but heard no evidence from Mrs Stevens, who had been responsible for the referral. Mr Draper had not been working at the authority at the time and therefore his information must have come from her or from the file. He accepted that he had not been able to investigate the matter fully and that his response to Mr Olumade was based on supposition.[900]From the evidence of the council officers, including Miss Cannon, we find that the usual process at that time, if there was either information missing from the form or if there were any discrepancies, would be to contact an applicant to get clarification from them.[901]No one had contacted Mr Olumade to ask him about any discrepancy, but the information had simply been sent to the Home Office, with questions from Miss Stevens about whether there were any concerns .[902]Our conclusions on this matter are set out in the earlier paragraphs of this judgement. The conclusions in respect of the actions of Mrs Stevens and Mrs cannon at the time are not repeated here. The reason for setting out Mr Draper's response is that he made his comments at a particular And later point in the chronology.[903]We heard evidence from the respondent that the licencing authority had worked closely with the immigration department and there may have been concerns on occasion, about the immigration status of applicants for a Hackney carriage licence, although the respondents have not given any evidence of any such concerns ever arising.[904]In this case, and in the absence of any legitimate reason to refer the claimant’s documentation to the Home Office, we find that the most likely explanation is that Mr Olumade is a black African man who had not been born and brought up in England.[905]We find that this was such an obvious question to explore, that Mr Draper must have been aware of it. We infer that Mr Draper did realise that this was a potential issue, and that there was a real possibility that the actions of Mrs Stevens may have been because of the claimant’s race or nationality.[906]Mr Draper must have realised that the claimant's concern about racism might have some valid basis, but rather than acknowledging that there was a possible problem on the face of the documents, he chose to give a response aimed at denying the truth of what Mr Olumade was alleging and which he knew was based on supposition.[907]The chronology of these events shows that both claimants having sought information from their files we're considering taking legal proceedings both approached ACAS. we infer that it is highly probable that Mister Draper and Mr wake suspected or knew that the claimants might be thinking about taking some form of legal action in respect of race discrimination.[908]We also find it highly probable that Mr Draper at least was concerned that some of the documentation that had been disclosed coupled with the criticisms that were made of the council's actions in respect of the reading incident in particular, might be the basis for a complaint of race discrimination either internally or externally. The Claimants’ first claim to the Tribunal[909]Mr Olumade filed his first claim to the employment tribunal on the 30 June 2018. Miss Akinleye filed her first claim to the employment tribunal on the 30th of July 2018.[910]They had both approached ACAS on 16 June 2018 and their certificate was issued on the 21 June 2018. They state that the BDBC is a qualifications body for the purposes of the Equality Act 2010.[911]Both claimants set out in great detail the issues they had with the licensing authority which they relied on as acts of race discrimination.[912]In the particulars attached to his claim, Mr Olumade sets out in 99 paragraphs a range of allegations dating back many years. He refers to a number of staff members by name, including Mr Draper.[913]On 6 August 2018 Mr Draper sent a letter to Mr Olumade in respect of his subject access request. This stated which information had already been disclosed and which information was attached. Mr Draper also stated that some information may have been redacted where it related to other complaints or individuals unrelated to you such as the emails between licencing officer Cahill and police licencing officer SL. Other redacted information includes names of individuals and their contact details.[914]Other information was inappropriately redacted from information provided to Mr Olumade about which we have made findings of fact elsewhere in our judgement.[915]The ET1 came to the attention of Mr Draper. Both Miss Akinleye and Mr Olumade had made specific reference to the Equality Act 2010, and we find that Mr Draper who was a senior and experienced licensing officer, must have known, or suspected, that it applied to their claim. Mr Draper was aware of all the previous allegations that the claimant had made and knew that the claimant was concerned about race discrimination within the council. Mr Draper took no legal advice and made no reference to the legal department.[916]Instead, on the 30 August 2018 Mr Draper filed a response to both claimants’ claim forms. He sent a response back to the ET, in his own handwriting stating that the claimant was not an employee of the council and never had been. This was true, but we find he must have known that the provisions of the 2010 Act which Mr Olumade and Miss Akinleye were referring to, did apply to the relationship between the drivers and the council, as a licensing authority. He wrote that they were licenced hackney carriage drivers and that the application is an abuse of process and inappropriate.[917]Mrs Misselbrook, the principal lawyer at the council, told us that the Council legal department does not deal with Employment tribunal claims, but that they would be referred to HR and then sent to an external law firm. We find that Mr Draper knew that it was a legal claim and knew that he was not the correct person to deal with it. He made no attempt to identify how the BDBC would deal with such a claim, but instead made an independent decision to respond to the claim himself.[918]Both his actions and his response were extraordinary for a senior manager. The chronology of event and the timing of the response, and the extraordinary fact of it, along with the recent complaints made by both complaints about race discrimination, are facts which shift the burden of proof, and require some explanation from Mr Draper . We have no evidence that Mr Draper would have acted in this way in respect of a legal claim made in any other circumstances, or in respect of a claim made by any other taxi driver, and we find he would not have done.[919]By sending the claim back as he did, he subjected the claimants to a detriment, by delaying the processing of the claim. From the facts we have found, we could conclude that this was an act of victimisation, in the absence of a valid explanation.[920]We have no explanation from Mr Draper for his actions. We conclude this was a deliberate attempt to put an end to the claim, and a deliberate attempt to conceal the fact of the claim, and that the reason he behaved in such a manner was because it was the claimants and because this was a claim against the BDBC officers of race discrimination, because it was made by the claimants and because it was in part about him. We conclude that this was an act of victimisation. This is not an allegation made by the claimants, but our findings and conclusions in respect of it, are ones that we have relied upon when drawing inferences and conclusions in respect of other matters concerning Mr Draper.[921]We do not know whether or when any instructions were taken by BDBC about any of the allegations made by either claimant. We do know that Sharpe Pritchard were instructed in November 2018, prior to the case management hearing and that an application was made to strike out the claims, on grounds that there was no reasonable prospect of success. Complaints made at end of 2018 .[922]On the 1st of October 2018 Miss Akinleye received a letter telling her that her drivers licence would expire on the 17 November 2018. In the letter a statement was made that her disclosure and barring service enhanced disclosure is due for renewal every three years and said, our records show your last DBS disclosure certificate was dated 15 July 2014[923]This information was incorrect. The claimant had signed up for the DBS checking service and her DPS certificate would have been sent automatically to the Council.[924]The respondent asserted that this letter was sent in error and on the evidence we have heard we accept that it was a genuine administrative mistake. we understand why such an error at this point in the chronology would upset and raise the suspicions of Miss Akinleye but we are satisfied that it was nothing to do with her race or her sex and we accept the evidence of the respondents and dismiss her claim in this respect.[925]On 12 November 2018 an allegation was made that Miss Akinleye had refused a fare because an individual had proposed to pay by credit card. We have been referred to a transcript in the bundle of a conversation dated 1 October 2018 in which Mr Richard Dyer and Mr. Lewis Dispensary comment to the claimant that she takes cards all the time and then say why are you looking at me that's intimidation the police and council have both told us if you stare at us, we should report you.[926]The name of the complainant has been redacted but reference is made to the 12 November 2018.[927]A complaint about Mr Olumade was made by an e-mail dated the 5 December 2018, that he had refused to take a lone female passenger to an address in Bramley and when asked if he took card payment he replied no. The complainant said whilst researching information regarding this matter I came across his website where at the time it stated all major credit cards were accepted this has since been removed from the page.[928]Neither allegation was raised with either claimant, but both were recorded on their respective files. The Appeal to The Employment Appeal tribunal – 2019 events[929]Following the claimants filing of their ET ones to the employment tribunal and the respondents response to it there was a period of calm at the taxi rank.[930]At a Preliminary hearing on 19 and 20 August 2019, the claims which predated 22 December 2017 were struck out as being out of time. The Claimants appealed and their appeal was subsequently upheld by the EAT. This took some time, and the case was stayed on application of the claimants, for an initial three month period on 25 September 2019. This was subsequently extended so that the appeal could proceed. The decision from the EAT was outstanding at the point of the referral to the Sub Committee, which is set out below.[931]In August and September 2019, the claimants initial claims had been subject to case management and a number of allegations in respect of matters predating 2017 had been struck out as being out of time. the claimant sought a reconsideration and written reasons and appealed to the Employment Appeal Tribunal . On 2 March 2020 they were informed that the Employment Appeal Tribunal considered that their appeal disclosed no reasonable prospects of success and that it was dismissed.[932]The claimants appealed against the dismissal of their appeal and the matter came before the Employment Appeal Tribunal at a rule 3(10 )hearing in person on the 11 November 2020. The application under rule 3(10) was allowed and the matter proceeded to a full appeal hearing before the Employment Appeal[933]The matter came before the honourable Mrs justice Stacey on the 20 July 2021, who allowed the appeal on some grounds in particular determining that the claimant’s would be allowed to argue that the allegations were part of a continuing act, and that the matters alleged before 2017 were not out of time.[934]We accept Miss Akinleye’s evidence that during 2019 the claimants experienced a welcome period of quiet. For a period, there were no complaints and neither claimant was interviewed by the respondents. She describes it as having a new lease of life.[935]She says that this changed when the respondent heard that the appeal to the Employment Appeal Tribunal had initially been rejected by the EAT. This was early March 2020. Complaints made in 2020[936]On the 21 February 2020 an allegation was made about a driver carrying out school runs for Hampshire County Council without authorization. we find that this was put on the claimant's record but that it was not raised with him. the claimant says this was false and malicious.[937]We find that there was no evidence of the claimant doing this and that the matter was not raised with Mr Olumade and it should not have been placed on his file we find that this is an instance of less favourable treatment of him. this matter remains unexplained.[938]Miss Akinleye complains that she was harassed in March and April 2020 because of allegations made that her roof light was not illuminating properly. The matters were raised with her and she did confirm after some exchanges with the authority that her light was working. We find that had she provided information at an earlier stage the matter would not have been pursued but we also find that the authority had no basis for investigating the matter because they had no evidence other than the say so of another white taxi driver that there was any issue at all.[939]We find that both these allegations were in all likelihood false and malicious allegations made by white taxi drivers.[940]We do not find in either case however that there were any particular circumstances to suggest that either matter was because of or related to race or related to complaints made in part this is because of the officers involved. We dismiss the allegations in respect of these matters.[941]By an e-mail dated the 7 April 2020 Mr. Olumade provided Mr Wake with information in respect of some allegations made against him by Mr Peter Dainty amongst others. In his response Mr Olumade complained that Mr Dainty had contravened taxi laws by leaving his taxi unattended and that he had been unnecessarily aggressive, threatening to report the claimant. He asked what actions would be taken against Mr Peter Dainty and in response Mr Wake stated that if the claimant wishes to make a complaint against Mr Peter Dainty.[942]We find that the claimant was making a complaint about Peter Dainty in his response by way of a cross allegation. This is very similar to the cross allegations made by Peter Dainty about the claimant, when Mr Wake interviewed Mr Bulpitt following his assault of the claimant. Nothing was put in writing at that point by Mr Dainty, but Mr Wake wrote to the claimant to raise the matter any way. The allegation Mr Olumade made is clear, and whilst the request for further information is a reasonable one, it should not be necessary for the claimant to have to make a further complaint in order for the matter to be logged and actioned. This was not a necessity when Mr Dainty and Mr Bulpitt had made allegations about them at an earlier point in time.[943]The claimant was treated differently, and although there had been a passage of time, Mr Wake does not explain why he does not simply inform Mr Dainty of the allegations made by the claimant, and ask for a response. We conclude that it is because he does not want to deal with the complaints from the claimant. 2020 Allegation that the claimants refused to carry people in wheelchairs and were rude to the Customers.[944]In 2020, the law relating to the carriage of wheelchairs required those hackney carriage taxis which were able to carry Wheelchairs, to do so. This depended in part on the design and style of the Hackney Carriage Taxi. Whether a wheelchair could be carried safely or not was one factor, but the size and weight of the wheelchair was also a factor. Taxi drivers had to ensure that they had suitable ramps to use to load the wheelchair, and to make sure that they knew how to load the wheelchair, as well as knowing what was safe to carry within their taxi.[945]In 2020, the obligation was not to carry any wheelchair, but to ensure that the taxi was able to carry wheelchairs up to a certain size and weight. This would vary depending on the size and make of Taxi.[946]The obligation to carry wheelchair users is an important one, and a refusal to take a wheelchair for good reasons could be a matter which related to fitness and propriety of the driver, as well as raising questions under equality law. We all agree that complaints that a person was routinely and for no good reason, refusing to take a wheelchair user would be a matter the licensing authority would be expected to investigate.[947]We have reminded ourselves of the evidence Mrs Cannon gave to the employment about the carriage of wheelchairs in 2016 as set out in paragraph 339 of the judgement and in particular her comments regarding on the process of assessing whether or not any particular taxi was capable of carrying any particular wheelchair. We find that the need to approach the manufacturers too ascertain the details at an early stage was relevant in this case but that Mr Wake did not even consider approaching the manufacture of the claimants taxi until very late in the process.[948]A complaint was made by another taxi driver that each of the claimants had refused to carry a particular wheelchair user on specific occasions and Mr Wake took up the matter.[949]The claimants were written to by the respondent on the 24 July 2020 and told that the respondent was investigating in complaint where it was alleged that the driver of Hackney carriage 67 had acted rudely and refused a wheelchair customer journey request. This was in respect of Miss Akinleye. Her response of the 31 July 2020 stated that she was the driver of the Hackney carriage, and she refuted the allegation.[950]On the 17 August 2020 she asked for an update. She stated that the failure to inform her of the outcome was causing her anxiety.[951]The respondent says that it had received two complaints, one in respect of Mr Olumade refusing a wheelchair customer journey on the 15 July 2020 and one in respect of Miss Akinleye refusing wheelchair customers and being rude on the 20 July 2020.[952]Mr Draper suggests in his witness statement that the straightforward rejection of the alleged complaints and the failure to respond for a request for further clarification was a lack of cooperation by the claimants.[953]The allegations were formally investigated and then referred to the licensing committee, for a determination of whether or not anything done by either of the claimants raised a question about whether they were fit and proper persons to hold licenses. The decision of the licensing officers was that there needed to be a consideration about whether or not action should be taken, up to an including revocation of the taxi licences.[954]In his investigations, Mr Wake established that the wheelchair user was a regular user of taxi services. We find their wheelchair was larger than the size covered by the regulations and legislation at the time of the complaint. In evidence Mr Wake agreed that this was right and he accepted that the legal obligation placed upon the taxi driver did not require carriage of this wheelchair and that the taxi driver was therefore entitled to refuse to carry a wheelchair of the larger size. He said that despite this, he would expect taxi drivers to try to find a way to carry all wheelchairs, because he would be concerned about vulnerable people being left without transport.[955]In neither case was the service user left without transport because another driver was able to take them in their cab.[956]We were shown video evidence both from the claimant and from other taxi driver some of which Mr Wake had seen at the time, some of which was shown to the subsequent licensing subcommittee meeting. The Video evidence shows both claimants, on three separate occasions, attempting to assist a member of the public in a wheelchair and their carer, to load the wheelchair into the taxi, and not being able to do so.[957]The first video clip that we were shown showed Miss Akinleye fitting a ramp to her taxi and trying very hard to get the wheelchair user into her taxi. Whilst she was able to load the wheelchair, she was not able to secure it safely and we find that she did ask the carer whether or not the foot plates could be removed and was told that they could not be. Nothing in the video clip that we have seen suggests that Miss Akinleye was rude or aggressive but rather shows that she tried very hard to accommodate the passenger. It also shows that whilst she was trying, she experienced interference from another driver and she was subjected to criticism and loud and unhelpful suggestions about what she should do in respect of the seats in her taxi from another driver.[958]We find that the video clip showed that Miss Akinleye was unable to take the passenger safely and declined to do so. The wheelchair user was taken by another taxi driver who had a larger cab and was able to facilitate the journey. Mr Wake agrees that because of the size of the wheelchair being outside the regulatory provisions that Miss Akinleye was within her rights to refuse carriage of the wheelchair.[959]A second and third clip show Mr Olumade dealing with a passenger in a wheelchair who we understand to be the same person. One of the clips we have seen was filmed by another taxi driver whose commentary was rude and uncomplimentary to Mr Olumade, making statements such as he's never used his ramp before oh he's getting his ramp out, it's too small isn't it. We find that Mr Olumade fitted the ramp which he carried in his taxi, which was the regulation and appropriate size for the standard wheelchair which they were required to carry, and made every attempt to load the wheelchair with the wheelchair user into his cab. He was unable to do so. The passenger in the wheelchair and her carer are then taken by another taxi.[960]A second clip shows Mr Olumade declining to take the same passenger.[961]Mr Wake obtained statements from other taxi drivers and from the carer of the wheelchair under section 9 of the Police and Criminal Evidence Act.[962]The carer’s statement says that the wheelchair is a large wheelchair, and that she cannot use the London style taxi due to the size of her daughter’s wheelchair, and that it is one which will not be carried on London transport and that because of the size of it, a larger ramp will be required.[963]Mr Wake told the tribunal that although he read the statement and although he knew what the legislation said, he felt that both claimants might have nonetheless carried the wheelchair, and that as another driver was able to carry the wheelchair, he thought the matter merited further investigation. He thought it was necessary to explore further why Mr Olumade and Miss Akinleye had not taken the wheelchair passenger when others had done so.[964]We find that based on what was being said by the wheelchair customers’ carer about the incident, coupled with the video evidence, that Mr Wake should have realised that neither claimant had acted rudely, and that there was no breach of licencing provisions and that the authority had no reason to take any action at all against either claimant for refusing to take the wheelchair customer.[965]None the less, Mr Wake wrote to both the claimants on the 24 July 2020, and referred to the Local Government (Miscellaneous Provisions) Act of 1976, the Town Police Clauses Act of 1847 and the Equality Act 2010. He stated that he was investigating a complaint of acting rudely and refusing the customer using a wheelchair. The letters asked the claimants to provide a detailed written account of your recollection of this matter within seven working days. He did not explain that he knew that as it was a large wheelchair, there was no legal obligation to take the customer, but that he had concerns about why they were not able to take the wheelchair, when other drivers were, and does not refer to any video evidence he has seen.[966]He said if the claimants had CCTV footage, they may submit it to support their written account. Miss Akinleye was asked to give details of an alleged incident on the 20 July 2020 and Mr Olumade was asked to give evidence in respect of an alleged refusal to take a customer in a wheelchair on the 15 July 2020[967]Both claimants replied on 31 July 2020 in the same terms, asking for further details of who made the complaint; any evidence to corroborate it; anybody involved in the alleged complaint; a copy of the original complaint and also the relevant sections of the legislation referred to. At the end of the letter both claimants state for the avoidance of doubt I categorically refute acting rudely and refusing a wheelchair customer.[968]Mr Draper replied on the same day stating that the details requested were not relevant to the investigation and BDBC didn’t usually disclose who made complaints, we find that the failure to provide the relevant information about the passenger and the size of the wheelchair, and why it was said to be an issue, was deliberate and obstructive, and made it harder for the claimants to identify what event was being raised with them.[969]Both complaints were recorded on file. In respect of the allegation made on the 15 July the allegation was simply that the driver of H12 refused to carry passenger in a wheelchair due to improper reasons. The e-mail sent in from the driver who did take the wheelchair user, says that the customer told him that H12 which was Mr Olumade had refused to take the customer because he couldn't anchor the wheelchair down. He said that he himself had been able to do it. He complained that this was not the first time that he, Mr Olumade, had refused fares.[970]In respect of the issue of the 20 July 2020, Mr Wake wrote to the carer, stating that an allegation had been made that a gentleman using a wheelchair was refused transportation by council licenced Hackney carriage driver. They were asked to contact the council. A file note of 24 July 2020 records the allegation as the lady driver of the cab H67 had trouble getting the wheelchair into the vehicle and became aggressive to other drivers who offered assistance; after a time she ended up removing the wheelchair and told them they would have to go to another vehicle but she was rude about it.[971]Since Mr Wake had both file notes it is not understood why he could not provide the claimants with further details of the complaint. If his concern was that they should have made more effort to carry then wheelchair, despite not having a legal obligation to do so, why not say this to the claimants? Why did Mr Draper or Mr Wake not identify the sections of the relevant legislation that they were referring to? This might have been helpful to the claimants in identifying what it was that was being investigated and why.[972]We accept that if the refusal of the wheelchair was for good reason, it would have been helpful for Mr Olumade and Miss Akinleye to explain why they had refused the wheelchair passenger. Whilst the responses they did provide were not particularly helpful, the letter they had received did not make clear precisely what was being alleged, and the response from Mr Draper was also unhelpful.[973]At this point in the chronology the claimants had filed claims to the ET alleging that the council had subjected them to race discrimination, and we find that both claimants had a concern that this may be a further instance of unfair treatment, and that they were being picked on by other drivers, and that the BDBC officers were supporting the taxi drivers against them. We find this was the reason for their questions and their response.[974]On 17 August 2020 both claimants wrote again to Mr Wake asking for an outcome in respect of the allegations and investigation of them in respect of wheelchair users. Mr Wake referred to the response from Mr Draper and again asked whether there was any CCTV evidence they wished to provide.[975]Both claimants wrote again on the 20 August 2020 asking how much longer the investigation would take and again asking for further details of who had made the complaint; what the witnesses were and asking for a copy of the original complaint. Miss Akinleye suggested that there were a number of other taxi drivers present who could confirm what happened on the date and confirm that she had not acted rudely. She referred to four taxi drivers and gave the name of two of the drivers.[976]Mr Olumade also suggested that Mr Wake should interview a named driver, who he believed had witnessed events. Replies to both were received on the 21 August 2020, but not providing answers to the questions or any of the information requested.[977]On the 22 August 2020 Mr Wake sent letters with draft witness statements attached for signing, to the drivers who had complained and the carer. Some were in respect of an incident on the 27 July 2020 and some were respect of an incident on the 20 July 2020. It is not clear whether any of them were the people identified by the claimants, as the names have been redacted, but we have no evidence that Mr Wake did interview any of the people named by either claimant, and we infer that he did not. Mr Olumade’s October 2020 Complaint about carriage of children in pushchairs[978]At this point in the chronology, on the 8 October 2020 Mr Olumade made specific allegations against named individuals, alleging that they were transporting children unsafely in buggies. In response to a request from Mr Wake, he specifically named Steve Tawton; Peter Dainty and Simon Raven and stated that in at least one instance, he had video evidence available. One instance he referred to was in July 2017 other instances were alleged to have been over the summer of 2020.[979]Mr Wake accepted that Mr. Olumade had complained that other taxis drivers were not insisting that children were taken out of the push chairs or buggies when in the taxi, as required.[980]Mr Olumade had sent in video evidence to support his claims, some of which dated back some time and wanted to know if the licencing authority would be taking enforcement actions against those drivers.[981]We find that other than giving general guidance to the trade about this matter, no actual action was taken by Mr Wake to investigate the specific complaints.[982]The Claimants chased for a response. On 7 December 2020 Mr Wake wrote back to Miss Akinleye thanking her for complaints about the handling of wheelchair passengers and children's buggies. He stated that they would be contacting all the drivers identified to make them aware of complaints and to request further information. He also said many of the incidents happened several months ago and in other cases years ago and that this would reduce their ability to get details of passengers and other witnesses to corroborate the complaints.[983]He then requested any other evidence beyond that already supplied, such as details of passengers, descriptions or any additional relevant information. He also said that due to COVID and the recent legislative changes the licencing team had a significantly higher workload than usual and the investigation of an additional 19 complaints would take some time to undertake. He thought it was unlikely that they would be able to finalise a formal response until the new year. That would have been 2021.[984]Mr Wake accepted that he had received video evidence in respect of each of the allegations on the 14 December 2020 and said he had looked into them. We find that Mr Wake did not provide any further response. We find that they had raised a legitimate complaint. We have no explanation for the failure to provide any further response to Mr Olumade or Miss Akinleye about it.[985]We accept that the COVID pandemic placed significant stresses on local authorities and we accept that Mr Wake was busy with many complaints, this was a serious matter.[986]A failure to carry children safely may well be a road traffic matter which could be referred to the police, but we find it was also a matter which concerned the BDBC as a licencing authority.[987]Mr Wake effectively agreed that there is a bylaw regarding carriage of children in pushchairs which the council cannot enforce, but he said it was a matter for the drivers to carry out a risk assessment. This is not dissimilar to the obligation placed on drivers to carry out risk assessments to ascertain whether or not they could carry a wheelchair which was larger than those required to be carried as a matter of legislation.[988]Both claimants remained concerned in 2020 that they were suffering a loss of business because they were complying with the rules and refusing to take pushchairs or buggies unless the child was removed from them, whilst other drivers were continuing to agree to take the pushchair or the buggy with the child remaining seated within it.[989]We accept that a busy licencing authority will need to take decisions about which laws to focus on and which part of the legislative provisions they need to enforce. We also accept that there will need to be a degree of flexibility in the approach of the licencing authority takes to complaints about certain matters, and that it is a matter for the authorities discretion. However, the safe carriage of passengers and particularly children by a taxi driver appears to us to be a matter which the authority ought to have been concerned about.[990]There is no suggestion that the complaints or issues raised by either claimant were not legitimate or supported by evidence, and we find that the failure to investigate the matters raised by the claimants is in stark contrast to the willingness of Mr Wake and Mr Draper to investigate any allegations made against the claimant within the same time frame. The Referral of Claimants to the Licensing Committee Meeting[991]On 12 October 2020, 4 days after Mr Olumade’s compliant about the carriage of pushchairs, both claimants received a letter from Mr Wake stating that the allegations that they were rude and refused a journey requested by a customer using a wheelchair had concluded. The letter says a decision has been made to convene a licencing subcommittee hearing to consider the complaint; evidence gathered; your feedback to the complaints and any relevant evidence you wish to provide, then to determine what if any, further action is warranted having regard to the intention of the above acts and the councils taxi and private hire policy. The letter referred to the power to convene additional meetings of the licencing subcommittee.[992]The letter does not say that the reason for referring this matter to the licencing subcommittee is because there is a need to avoid bias or an appearance of bias, although this is the explanation given by Mr Wake subsequently for referring the matter to the subcommittee, rather than making any decision about the matter at officer level.[993]Miss Misselbrook , a solicitor from the shared legal services team wrote to the claimants telling them the meeting would take place on the 27 November 2020.[994]In fact, the meeting did not take place that day, but was reconvened on 18 December 2020.[995]The claimants were provided with the licencing officers confidential report with the invitation of how to join the zoom meeting.[996]The report to the subcommittee made reference to the fit and proper person test.[997]The report states that the driver had made a number of complaints about the licencing team, including complaints that the council was institutionally racist, and therefore to remove any appearance of bias, it was decided the complaints would be referred to the licencing subcommittee.[998]We have asked but have not been told, who made the decision to refer the matter to the Licensing sub-committee. Both claimants allege that the decision to take the matter further, and to consider the claimants fitness to practice, was an act of race discrimination.[999]The report refers to the requirement to carry wheelchairs under section 165 of the Equality Act 2010, and set out the complaints that had been made and the possible action, if any, that the subcommittee might take. The section concerning revocation and suspension of a driver's licence was set out in full. 1000. Between the claimant writing on 17 August 2020 and the respondents reply to her on 12 October 2020, a number of further witness statements were received by the council. These are in the bundle and are dated the 24 August 2020 and the 23 August 2020. The witnesses were other taxi drivers and both state in their statements that they had been contacted by Mr Wake and asked whether or not they recollected the incident. One of them says that he had not heard any conversation between the claimant and the wheelchair user and her carer but that he had subsequently carried them in his taxi. The third statement is from the carer of the wheelchair who had not as far as we understand it been the initial complainant in this matter. 1001. What is clear is that after contacting the claimant Ms Akinleye , Mr Wake had carried out further investigations seeking witness statements from others who may have seen the incident. 1002. None of those witness statements were disclosed to the claimant until shortly before the hearing itself. 1003. We have not been referred to any other instances where the council have sought witness statements from other drivers or indeed from members of the public other than in respect of the claimants. 1004. The steps taken in this are reminiscent of the steps taken in respect of the Ashwood Academy incident. In each case council officers from the licencing department have taken steps to seek out evidence which supports the complaint against the claimant. We are not aware that they have done this in cases where the claimants have complained about white taxi drivers. 1005. Both claimants objected to the inclusion of anonymous witness statements, stating that if the witnesses would not be present at the hearing then the statements should not be admitted. 1006. Miss Akinleye stated that she wouldn't be able to ask them questions and said they were fundamentally in dispute. She stated that she had not been given the opportunity to submit any evidence. Mr Olumade wrote in the same terms. Both were concerned about the process and Mr Olumade in particular set out a great deal of information about the way that such a meeting should be conducted. There was an exchange of correspondence but unredacted witness statements were not provided to the claimants. In the event neither claimant attended at the licencing committee meeting, and the matter was considered in the absence of the claimants. 1007. Prior to the meeting Mr Wake had contacted Allied Vehicles, an organisation which supplied taxis. He asked whether or not an Allied Vehicle supplied taxi would be suitable to carry a particular wheelchair. He referred to the make of the claimants’ vehicle and also to the specifications of the wheelchair . In response he was told that the overall height might be a problem because of the side door aperture height. He was told it would be possible if the head rest was removed for example. 1008. The Licensing subcommittee meeting was reconvened, and a supplemental report was sent to the claimants and the committee members on 11 December 2020. This included the exchange between Mr Wake and Allied Vehicles in respect of the dimensions of the vehicle. There were pictures of the wheelchair and information about transporting the mobility device without occupants, and various information about the use of restraints for a wheelchair. 1009. Both claimants were also able to submit further information including, an analysis of video evidence. Also included were letters dated the 14 December 2020 which set out a detailed response to the allegations and comments on the evidence. 1010. Mr Wake also provided a summary of the video evidence that had been provided by Miss Akinleye and Mr Olumade. 1011. The subcommittee met and determined the matter and both claimants were written to by Louise Misslebrook on the 22 December 2020. 1012. The outcome states that the subcommittee were disappointed that the claimants did not attend the hearing, as they were unable to ask further questions to determine the complaints. The subcommittee decided to issue an enforcement advisory notice, which required both claimants to undertake the Blue Lamp Trust disability awareness course and the wheelchair loading assessment, in order to improve their knowledge of wheelchair loading and disability awareness. The course and assessment had to be completed by the 31 January 2021 1013. The committee determined that Mr Olumade had not refused the passenger subject to the complaint, but agreed that the driver did not undertake an appropriate risk assessment as he didn't get out of his vehicle to adequately assess the customers mobility. We find that this was because he had already dealt with the re risk assessment in respect of the same passenger and same wheelchair previously. 1014. In respect of the complaint of the 27 July, the committee concluded there was a definite competency issue regarding the driver’s ability to safely load the disabled passenger into his vehicle. The subcommittee did not see any evidence of aggression when attempting to load to the passenger and did not feel that a formal refusal of a customer’s journey request took place. 1015. There is no question from any one at any time as to why there was an allegation of aggression made against the claimant, and why it was pursued to the licensing committee, when it was obvious from the video that there was no aggression by Mr Olumade. 1016. The subcommittee were critical of both claimants, over what they considered to be a lack of cooperation with the investigation process. 1017. In respect of the complaint made against Miss Akinleye of the 20 July, the subcommittee concluded that there was limited merit to the complaint and that Miss Akinleye did not refuse a journey request and there was no evidence that she had acted rudely. There was evidence that she had made every attempt to try and load the wheelchair. They found she was correct to refuse to transport the wheelchair sideways in accordance with the guidelines. Again , there was no question asked by any one , as to why an allegation that she had acted rudely had been made at all, or why it had been pursued. 1018. Not was there any enquiry, as to why Mr Wake had not made enquiries about the wheelchair capabilities at an earlier stage, or why, once he received a response, the matter was still pursued. 1019. The result of this, is that the subcommittee found none of the allegations made to be proved. That meant that there was no licensing issue for them to determine, and that should have been the end of the matter. 1020. The subcommittee did form a view that there was a lack of knowledge of the capability of the driver's vehicle and that there was a competency issue regarding the driver’s ability to safely load the disabled passenger. It is unclear why they reached this view. 1021. The investigation and the steps up to and including the referral to the licencing subcommittee, were something done in connection with the license, because at the heart of it, was a question whether or not either Miss Akinleye or Mr Olumade should have their licences revoked because they were not fit and proper persons to hold a licence. If any of the acts or omissions amount to detriment, the decisions and the actions taken are within both section 53(2(c) [prohibition on subjecting to detriment] and section 53 (3)a [ Prohibition of harassment ] or 53 (5) c [prohibition on victimisation of a person who holds a license by subjecting them to detriment. 1022. Both Mr Olumade and Miss Akinleye make allegations of race discrimination in respect of the initial decision to investigate them at all; the failure to provide them with sufficient details off the allegations; the alleged failure not to provide them with an outcome of the investigation; the decision to deal with this by way of a fitness to practise hearing; the preparation of the information and evidence and the way it was presented to the subcommittee; an alleged failures to provide both claimants with an opportunity to present evidence to the subcommittee; the decision to investigate the complaints against them at all and the decision of the subcommittee. 1023. It is alleged that the failure to provide an outcome to the allegation about the July 2020 was a detriment on grounds that the claimant had previously made complaints of discrimination harassment and victimisation to the employment 1024. Both claimants also alleged that the respondent had asked white taxi drivers to look for evidence and engage in monitoring recording and complaining against black Hackney carriage drivers. The claimant refers to a meeting between the BDBC and the police on the 27th of September 2017 which we have referred to earlier in our judgement. 1025. Both claimants compare their treatment with that of the treatment of white taxi drivers such as Mr Eric Morgan a taxi driver who Miss Akinleye and Mr Olumade alleged had parked his private vehicle on a taxi rank, then returned to the rank and taken pictures of the claimant. It is alleged that no investigation took place, but instead a verbal warning was provided. 1026. They also alleged that he had parked his private vehicle on the rank. this was an offence, and Mr Morgan was given a verbal warning. 1027. Mr Olumade did make a further complaint about Mr Morgan, that on 11 February 2021 Mr Eric Morgan had touted a potential passenger away from his taxi and towards the taxi of Mr Flanagan. Mr Olumade gave the date and the time of the incident and stated that the passenger with a child in a buggy was approaching his taxi, which was at the first position in the rank, but the passenger went past him to speak to Mr Morgan who had beckoned to her, signalling that she should take the taxi in position 2. Mr Olumade said immediately after doing this he, Mr Morgan, went back to his own taxi. he alleged that this was not the first time that this had happened. 1028. Mr Wake replied to the claimant asking whether he had any additional evidence and Mr Olumade replied that he had sent additional evidenced through drop off at the Basingstoke address. Mr Wake acknowledged this e-mail. We are not told what happened in respect of this complaint. 1029. In respect of a number of complaints made to the employment tribunal, both claimants refer to a perception of African Hackney carriage drivers as reoffending criminals with different expectations and values from English Hackney carriage drivers. Both say that these perceptions were a motivating force for the actions taken by Mr Wake and Mr Draper in respect of the wheelchair incidents. We understand this to refer both to the allegations themselves but also to the allegation that Mr Olumade was aggressive and Miss Akinleye was rude. 1030. Both claimants allege that the way they were notified of the fitness to practise hearing and the fact that they say they were denied the opportunity to present evidence was discrimination committed by Miss Misselbrook and Mr Wake. They both assert the at the reason for the referral to fit and proper person hearing, was to satisfy feelings of white Hackney carriage drivers. 1031. Both refer to a comment made by Mr Draper, then the regulatory service manager, at a licencing committee meeting on the 2 November 2020, as supporting these allegations. 1032. Dealing first with the comments made by Mr Draper at that meeting, we find that in the course of explaining how the council officers would decide whether to pursue a taxi driver using the fit and proper person test, Mr Draper referred to a system of points. A driver who had 12 points, could be referred. He did then say, if drivers feel Fred Bloggs has been a pain in the last two years and there are lots of small things even though he or she may have missed out on the 12 points in 12 months it doesn't take away any power under fit and proper person. 1033. Both claimants believe that Mr Draper had them in mind when giving this explanation to the committee, and both complain that a decision to refer somebody to the committee for a decision about whether they are a fit and proper person to hold a taxi licence should not depend on the feelings of other taxi drivers. 1034. We find that Mr Draper was explaining his understanding of the process that a licencing officer would go through to decide whether or not to refer a taxi driver under the fit and proper person test. We find that his description was a fair reflection of the process followed and we find that the concern of the claimants’ that therefore the feelings of taxi drivers would be relevant, was a valid concern. 1035. In that respect the claimants had a legitimate concern that the organisation which Mr Draper and Mr Wake talked to about matters that arose between taxi drivers, was an organisation which none of the black taxi drivers belonged to. It was an organisation which a number of those individuals who complained about the claimants and who the claimants had complained about where active members of. We find that by 2020 both Mr Draper and Mr wake were well aware of the fact that neither of the claimants were members of that association. 1036. We find that meetings took place between the taxi association and Mr Draper and Mr Wake. We find there was a lack of candour from the respondent officers when questioned at tribunal, about the frequency of the meetings with the taxi federation and what was discussed at the meetings. We find that the meetings took place reasonably regularly, at least several times a year. We find that there were no formal agendas; minutes or notices of the meetings and therefore the claimants, who were not members of the federation, had no opportunity to contribute or have similar influence with any of the BDBC officers. 1037. We conclude that it was not unreasonable for the claimant to think that Mr Draper was talking about them at the meeting, or to infer that the actions taken against them at the time, was something to do with the feelings of white drivers. Mr Draper was giving an explanation, but we all think that he was probably did have the claimants in mind at the time, and we find that he was well aware of a feeling amongst white drivers that Mr Olumade had been a pain for several years. Mr Draper would also have known that part of the reason for that feeling, was that Mr Olumade had made a complaint to the police, and given evidence to the criminal trial, as had Mr Arfa, leading to Paul Bulpitt having his license revoked. 1038. Going back to the claimants’ complaints of discrimination, was the reason for the investigation and subsequent action anything to do with the race, or any protected acts done by the claimants? Why were the claimants both investigated and why were they referred to the subcommittee? Why were they subjected to the extra conditions on their licences? 1039. We remind ourselves that at the time these events occurred, both claimants had had made claims to the employment tribunal against the licencing authority for race discrimination in July 2018, following disclosure of documents under a freedom of information request. Part of the claims had been struck out, and the claimant’s appeal was ongoing in the EAT. 1040. Miss Akinleye made allegations about matters occurring throughout 2016 and up until 2017 and in respect of the requirement for the claimants to attend at a PACE interview in March 2018, and the failure to provide a response or an outcome to that meeting. 1041. Mr Olumade also made claims about matters throughout 2016, naming Mr Wake and Miss Cannon, and about the mobbing incident in 2017; the Ashwood Academy incident and his different treatment by Mr Draper when investigating complaints. He also complained about the 22 December 2017 meeting, and the upholding of an allegation by Mr Colin Roland against the claimant on the 2 March 2018. He addressed the use of a PACE interview on the 2 March 2018, and asserted that the reason this was used, was because he had made previous formal complaints against the licencing department. 1042. Both claimants made a further claim to the employment tribunal on the 17 September 2020. In that claim they set out concerns about loss of revenue and harassment as a result of the BDBC not taking any action on other drivers for transporting children in prams and in respect of the unsafe transportation of passengers using wheelchairs. The allegation was that wheelchairs were being carried unsecured and sideways. 1043. Mr Olumade set out a number of occasions when they had refused to take individuals in prams because of a lack of safety but other taxi drivers had been prepared to take them, with the child remaining in the pram. 1044. The claimants also alleged that they had been subjected to an investigation despite the respondent having no reasonable belief that an offence had been committed. This referred to the refusal of a customer using a wheelchair which had been communicated on the 24 July 2020. 1045. Ms Akinleye had also made a complaint to the BDBC on 8 and 9 October 2020 about the dangerous transportation of passengers in wheelchairs by other drivers. She gave details of 8 incidents between 27 July 2020 and 6 October 2020. Both claims were filed before the letters were sent to the claimants about the sub committee meeting. 1046. We find that Mr Wake and Mr Draper were both aware of the claims made against the BDBC and the progress of them, and that they would have known that the claimants had approached ACAS again with a view to filing further claims. We infer that those claims were matters which were in both their minds when deciding what to do about the complaints made by and against the 1047. Mr Wake says that the reason for the decision to refer the allegations about the claimant’s carriage of wheelchairs to the licencing sub-committee, was because it was inappropriate for licencing officers to make decisions in respect of these matters, because they might be accused of race discrimination, or be seen to be biased, as allegations had been made by both claimants in litigation. 1048. We accept that this was the reason for referring the matter to the subcommittee. We also find that this is inextricably connected to the fact of claims having been made. However, the reason for referring the matter to the subcommittee rather than making any decision about the matter at officer level, was we find not because the claimants had made claims to the employment tribunal, not was because of an understandable and appropriate concern that any further decisions should not be made by officers who were intimately concerned with those claims. we accept that there was a genuine objective of avoiding any appearance of bias or actual bias. This was different treatment of the claimants but it was not victimisation but a valid non-discriminatory and appropriate step. 1049. This does not however explain why there was an investigation; the length of the investigation, or the decision made that here was some case to answer and why there was a need for anybody to determine the allegations. 1050. We have therefore asked whether the investigation and the subsequent delay and subsequent decision that there was a case to answer, was either a detriment, or a variation of terms on which the claimant held the qualification, or victimisation, in that the terms on which the qualification was held was varied or in that either claimant was subjected to detriment? 1051. We have considered the information that Mr Wake had about the complaint and the source of that information and what he did with it and we have compared this with his actions in respect of other complaints, particularly those made by the claimants about other drivers. 1052. Mr Wake gave evidence that any complaint he receives must be investigated and steps were taken to obtain further information and evidence. 1053. In previous years it had been noted by the authority that complaints made without evidence could not be pursued. As part of their subject access request the claimants were provided with notes from their file one of which recorded a previous licencing officer advising a white taxi driver that they should not go knocking on doors to try to obtain evidence as this may be seen as unfair and disproportionate. 1054. Mr Wake was provided with evidence in the form of video clips and dates on which two alleged incidents took place. We find that the reason for Mr Wake contacting the claimants and others, was that complaints had been made by other drivers. 1055. We find that it was appropriate to make initial enquiries once the matters were raised with him, and to ask the claimants whether they remembered the event or the passenger. 1056. We find that the claimants’ response in each case was unhelpful and that the respondents reply back to them was unhelpful. There was a lack of cooperation on both sides. 1057. However, following his initial investigation, there was no obvious basis for Mr Wake to pursue the matter any further, once he realised that the Wheelchair was larger than the type a licenced taxi driver was required to take and once he had seen that both claimants had made every effort to carry the wheelchair user safely, and once he had the statement from each of them that they had not been rude and had not refused to carry the wheelchair user. 1058. We find that he must have realised that the claimants had not done anything which could legitimately call their licences, or their fitness into question, but he still continued to pursue the matter. 1059. We find that Mr Wake treated the claimants differently to the way other white taxi drivers would have been treated in similar circumstances. Investigations into allegations of wrongdoing by white taxi drivers, for example in respect of the incorrect carriage of pushchairs and children, had not been pursued. We also rely on our findings that allegations against the claimants were more likely to be investigated and pursued further than allegations against white drivers made by the claimants. 1060. We find that we have made findings of fact about the way both claimants were treated by Mr Wake and Mr Draper, from which we could conclude the treatment was on grounds of race, or were because of protected acts having been done, and that in the absence of a valid explanation we could infer either that there had been direct discrimination or that this was an act of victimisation. 1061. The explanation from Mr Wake is that he wanted to know why the claimants were unable to take the wheelchairs when other taxi drivers had been able to do so. If that was the real reason, why did he not simply ask them this question when he wrote to them or at some other time? He did not ask that question at any time, and has not explained this at all. We do not accept that this was a real reason for him pursuing the matter even when it was clear that the claimants had not acted outside their licence. 1062. We conclude that the reason or principle reason he continued to pursue these actions was because the claimants had done protected acts. This is 1063. The next stage of the process is the delay and the refusal by Mr Draper to provide the information requested by the claimants. Mr Draper has not explained his refusal and we find he had no good reason not to provide information to the claimants. We have made findings earlier in our judgement about Mr Draper's attitude towards the claimants and to their claim to the employment tribunal and we have no hesitation in concluding that Mr Draper treated the claimants unfavourably and subjected them to detriment by failing to provide them with all the information they requested. 1064. We have no evidence of how Mr Draper treated others in similar circumstances and we cannot therefore conclude that the claimants were treated differently to the way others or a hypothetical other would have been treated in the same or similar circumstances. 1065. We do find that this was unfavourable treatment for the purposes of victimisation and that the claimants had done protected acts and that Mr Draper was aware of them. We could conclude from the facts we have found about Mr Draper and from the information which he gave subsequently to the licencing committee that his actions in respected of both claimants was because they had done protected acts. 1066. Mr Draper has provided no explanation for failing to provide the information the claimants required, and we conclude that the reason or principle reason for not cooperating with the claimants was because they had done protected acts and complained about racism within BDBC and made complaints to the employment tribunal and that this was an act of unlawful victimisation. 1067. We do not know who made the decision that the allegations would be escalated to a subcommittee or similar hearing. Mr Draper says in his witness statement at paragraph 96 that there was no evidence that the claimants had not refused to carry the wheelchair passengers and so there was a decision taken to hold a licencing subcommittee meeting to hear the case. We do not understand how the fact that there is no evidence that they had not done something means that there should be a formal hearing. In all other cases an investigation continues where there is some evidence that something has happened. 1068. We infer from the facts we have found that it either Mr Wake or Mr Draper or both of them made the decision that there should be a formal hearing. 1069. We find that a review of the information provided and review of all the facts ought to have led to Mr Draper and Mr Wake to realise as the subcommittee subsequently realised, that the complaints being made were without substance. 1070. The decision to continue on with them and to put them in the context of a fit and proper person hearing seems unnecessary and vindictive. From our findings of fact about the way Mr Draper and Mr Wake in combination have dealt with the claimants we conclude that, in the absence of an explanation the decision to pursue this was an act of victimisation. We have no explanation as to why this matter was pursued to this extent and we conclude that the reason or principal reason for pursuing it, was that the claimants had made claims to the employment tribunal alleging race discrimination and that this was an act of unlawful victimisation. 1071. The claimants make various allegations against Miss Misselbrook. We find that whilst she was aware the claimants had carried out protected acts, her role was a legal and administrative one. She was responsible for ensuring that process was followed and we find that she did her job as required, ensuring that the meeting was adjourned and re listed so that the claimants were able to submit further evidence and so that the claimants were able to be provided with the relevant evidence from others in advance of that hearing. We find that she treated the claimants in the same way as she would have treated anyone else and we find that nothing she did amounted to a detriment. We dismiss all discrimination claims against her. 1072. In respect of the provision of information for the hearing itself, we consider that the claimants were treated as others would have been treated, were they being referred to a sub committee. We do not consider that the steps taken in providing them with information about the allegations and providing them with information up to and including the information for the hearing itself, amounted to detriments or different treatment and we dismiss the allegations of discrimination in respect of those parts of the claim. 1073. In respect of the allegation that the committee made a decision which amounted to a variation of the terms on which the claimants held their licences contrary to 53 5B, we find that the committee did vary the terms on which the claimants held their licences by requiring them to carry out the blue lamp awareness and other refresher courses, despite the fact that they had dismissed the substantive allegations against the claimants. 1074. Since the subcommittee did not uphold the allegations made against either claimant, and had only suggested that Mr Olumade had failed to carry out a risk assessment on one occasion, it is unclear to us what power they had to impose any condition on either claimant at this point. 1075. it was suggested to us by the respondents in evidence that there was no sanction and that the courses were voluntary only. We disagree. The claimants were written to and informed that they both had to attend each of two courses. there was no suggestion that this was voluntary. 1076. This was a detriment and it was a variation of the licence but we have made no findings of fact from which we could conclude that the subcommittee made that decision because of the claimant's race, and we therefore dismiss any claim of direct discrimination. 1077. Further whilst the subcommittee knew that the claimants had made claims to the employment tribunal and whilst we accept the imposition of an additional requirement is unfavourable treatment, we have made no findings of fact about the committee members reasoning, from which we could infer, in the absence of an explanation, that the reason for the imposition of those conditions was that the claimants had made complaints to the employment tribunal or otherwise. Despite our queries about whether the committee had the power to impose any penalty, we find it more likely that the committee imposed the conditions from a genuine concern that the claimants might benefit from the additional refresher courses. We therefore dismiss the claims of discrimination against the Sub committee. Complaint about Councillor Robinson 1078. Following the hearing on the 18 December 2020, which neither claimant attended, Miss Akinleye contacted Miss Misselbrook to find out what the outcome of the licencing subcommittee hearing had been. She copied her email to the chair of the licencing subcommittee and members of that committee. One member of the committee was councillor Nicholas Robinson . 1079. Both claimants were then sent a decision notice of the licencing subcommittee on the 22nd of December 2020. Both claimants considered that the subcommittee had unreasonably chastised them for not attending at the hearing. 1080. Later the same day Councillor Robinson replied to the claimant's e-mail stating if you had taken the time to attend the hearing which was so important to you, you would have known the outcome on Friday. The claimant considered that this was a snide remark which showed the contempt that the respondents had towards her. Miss Akinleye makes a complaint of discrimination against the respondent by reason of the remarks of councillor Nicholas Robinson of varying the terms of her licence and subjecting the claimant to a detriment and of Harassment. 1081. We find that the remark made by councillor Robinson was unnecessary and ill judged. It was not however obviously related to sex. 1082. We have heard no evidence as to the reason for making it and we have heard no evidence as to whether or not a similar remark might have been made to another person who had failed to attend a meeting at which a decision about them was being made. 1083. The comment itself is not a variation of the terms on which the claimant holds the qualification although we accept it could be considered to be a detriment and we accept that it was unwanted by the claimant. 1084. We have no evidence to suggest that it had the purpose of creating a hostile intimidating, degrading, humiliating or otherwise offensive environment or the purpose of violating the claimants’ dignity but we accept the claimants’ evidence that she felt that the effect of the comment was to create a hostile degrading and humiliating environment for her. The claimant says that this was on grounds of or related to her sex. 1085. We have no explanation as to why the comment was made from councillor Nicholas Robinson, but the comment itself contains an explanation, in that it is a comment made because the claimant did not attend the hearing. We find that on balance of probabilities, the reason the comment was made was that councillor Nicholas Robinson was irritated with the claimants for not attending the hearing. He was irritated with both claimants and there is no basis on which we could conclude that the comment is a comment related to the first claimant’s sex. 1086. We dismiss this claim. Changes to the tariff March 2022 onwards - Mr Gilluley and Agency 1087. One of the allegations made by the claimants in their second claim to the employment tribunal filed on the 23rd of April 2020, was about the way they had been informed about a taxi metre update. They allege that they were not provided with information about changes to tariffs or indeed to taxi metres but that the information was unlawfully disseminated through the taxi federation. 1088. The claimants refer to this as an example of the respondent using white taxi drivers as their agents. 1089. Miss Akinleye, as the proprietor of her taxi was entitled to be told the information by the licencing authority with whom she had a formal contract for relationship. She was not required to communicate with the chair of a federation to which she chose not to be a member. 1090. In February 2020 the BDBC scheduled a taxi meter update. We find that BDBC did ask Mr Gilluley, was the who was chair of the Basingstoke Taxi drivers association, to disseminate information provided to him about a taxi meter update. 1091. Mr Draper said and we accept that there was no longer a notice board at the rank, so he was asked to cascade the information to the taxi drivers by word of mouth and social media. 1092. At any other taxi rank or in a situation where the claimants were active members of the taxi federation this would have been entirely reasonable behaviour. 1093. At this point in the chronology the respondents were well aware that there was animosity between a number of members of the federation, and in particular the federation chair, who were white and the two claimants, who are black. To pretend that it was acceptable to ask one of the individuals to disseminate information to the claimants and to state that this was an entirely innocent motive and claim not to know that this would be a possible problem for Miss Akinleye, was, we find disingenuous. 1094. The question is whether or not the treatment of the claimants by the local authority in this and other respects amounts to victimisation, harassment or discrimination. 1095. What may have appeared to be a shortcut in order to disseminate information did, we find as fact, cause the claimant distress. 1096. Miss Akinleye alleges that she was victimised for taking the BDBC to the employment tribunal and discriminated against on grounds of race when she was not informed of this update by members of the licencing team. She says that because she was not informed of the update, she had to cancel a scheduled trip so that she could make her vehicle available. she complains that instead of the authority informing her directly a third party was asked to tell her about the update. 1097. The claimant alleges that when Mr Gilluley approached Miss Akinleye on 6 February 2020, on behalf of BDBC, he stood at her taxi window and jeered at her when she did not engage in conversation with him as she did not roll her window down or respond to him. We accept her evidence that this is what happened. 1098. We find that he was acting on behalf of the licencing authority, in that he was doing something which he had been specifically asked to do by them and was carrying out a function which was properly that of the licencing authority. We find that he was therefore acting as the agent of the authority. 1099. However, the allegation made by Mr Olumade and Miss Akinleye is that his act of speaking to them about the meter update, was an act of discrimination either by harassment or otherwise. 1100. We find that in this case the licencing officers, being busy simply asked one individual to pass on information to all the other taxi drivers. 1101. We have no evidence to suggest that the decision to ask Mr Gilluley to disseminate the information was anything to do with the claimant’s race or indeed that in speaking to the claimants, Mr Gilluley was doing so for any reason connected with their race. We find that the actions in this case, whilst upsetting for both claimants because of the relationship with white taxi drivers at the rank, was the result of an attempt by officers of the licencing authority to disseminate information more quickly. It was nothing to do with the claimant’s race. We therefore reject the allegations that anything done by Mr Gilluley as an agent of BDBC was an act of race discrimination. 1102. Second, we find that the claimants were not provided with the information in respect of meter changing, because they were not, as asserted by the respondent, emailed about the information. 1103. We have heard evidence, that the person who sent out the e-mail notification decided to extract information from the database for this particular exercise and in doing so missed each claimant off, because their e-mail address were not on that database. 1104. We find as fact that Miss Akinleye is quite right to point to two e-mail communications sent out to licenced taxi drivers and proprietors in the same year only months earlier, which she did receive. Mr Wake gave evidence of his conversation with Emma Coles or EC who had sent the emails and stated that she had been trying to speed matters up. We all agree that that appears to be a fair and reasonable explanation, which if true is a full answer. However, it seems to us that this was an unnecessary step given that there was an existing list which could have been used and it is an extraordinary coincidence that it was the claimants who were not communicated with. 1105. A letter to the claimants suggested that there were five taxi drivers who were not communicated with and three of them were white. The copy of the letter sent to the claimant was redacted, other than her name and we therefore asked for an unredacted copy of that document. It was provided to us within a very short period of time and again we express our frustration that despite the order made at the start of this hearing, the unredacted document, which must have being available to the respondents at the point that they drafted their pleaded case, had never been provided to the claimant until specifically ordered by this tribunal in the third week of the full week hearing. We asked for but have not been provided with an explanation for this failure. 1106. Although we are critical of the respondents in this instance we find that the reason the claimants did not receive the letter was the result of a genuine administrative error which was nothing to do with the claimants race or the fact that they had brought claims to the employment tribunal or otherwise made complaints of race ET claim 3 - 17 September 2020 1107. In the third claim to the employment tribunal the claimants raised a number of concerns about the investigation and decision to call them to a formal meeting in respect of the wheelchair matter. 1108. They also raised a complaint about the way that other taxi drivers had been treated. they alleged that when they complained that, Eric Morgan a white taxi driver, had photographed them and harassed them or when they complained that he had parked his private vehicle on the taxi rank and left it unattended or when they raised complaints about other drivers leaving their vehicles to come and stare at Mr Olumade with the intention of provoking him, that little appropriate action was taken by the BDBC. 1109. These allegations were made in the context of a complaint that they were being treated differently and more harshly by being pursued over the wheelchair issue than other drivers were treated and they also referred to a number of their complaints about how other taxi drivers were transporting children in buggies and pushchairs. 1110. We have set out our findings insofar as they are relevant in respect of these matters above. we have understood that much of the information referred to in the claims have been referred to by way of comparison, as evidence which it is alleged demonstrates unfavourable or less favourable treatment of the 1111. The claimants’ 5th claim to the employment tribunal raised complaints about the decision to hold the hearing on the 8th of December 2020 and the imposition of the condition on their licences which we have addressed above. 1112. On the 20 July 2021 the EAT overturned the decision to strike out parts of the claimant claim and remitted the matter to a different employment tribunal. 1113. There then followed a series of case management orders and on the 4th of April 2022 a further preliminary hearing took place before Employment Judge Cadney. As a result of that hearing a number of decisions were made including the following. The claimants were permitted to amend their claims in a number of respects; the allegations that the claimant was perceived to be making against other taxi drivers were identified as most likely being allegations of different treatment rather than allegations that the drivers were acting as the agents of the authority; a deposit order in respect of the allegations made by the claimants was refused, the respondents were given leave to amend their ET3. 1114. The claimants were urged to try to reduce the scope and breadth of the allegations they were making and it was suggested by employment judge Cadney that they focus on the Reading BC incident, the Ashwood Academy incident and allegations about the Pace Interview on 23 March 2018. 1115. These are the three matters that we have considered to be of key importance when determining all the issues in this case. 1116. The claimants filed their 6th claim to the employment tribunal on the 17 September 2022 naming Mr Draper Mr Wake and Mr Griffiths as respondents. Mr Draper's visit to the taxi rank 14 April 2022 1117. In her particulars of claim of17 September 2022, Miss Akinleye states that on the 12 April 2022 whilst at the taxi rank, Mr Carlton Griffiths approached her and demanded to carry out an inspection of her taxi meter. She rejected the attempted inspection and referred him to speak with BDBC. 1118. She told the tribunal that Mr Griffiths (4th respondent) had circulated false and malicious information about the claimant operating without a taxi meter to other white taxi drivers. 1119. In his witness statement Mr Griffiths admits that he asked Miss Akinleye about her meter on the 12 April 2022. He says he could not see one in her car and said there was a wire hanging down where a meter normally would be. He says when he asked her about it, she said what did it have to do with her. He says that he emailed the council saying that he did not think she had a meter. He said he understood that her vehicle was inspected and that a meter was found albeit not in the normal position. 1120. We find that Mr Griffiths did act as the clamant alleges. It was not Mr Griffiths role to inspect another taxi drivers meter and we find on balance of probabilities that he did tell other taxi drivers that the claimant was driving without a meter. We find that there was no basis for him having the suspicion and no grounds for his comments to other drivers and no grounds for his subsequent complaint to the council. 1121. At about the same time a consultation was carried out over the taxi fare tariff. both claimants allege that there was a failure by the council to consult with them about changes to the tariff. They say, and we find they were not informed or invited to either a meeting on the 28 March or 4 May. 1122. Both complain that the first respondent engages with white taxi drivers but not with them. On 14 April 2022 Miss Akinleye objected to the taxi fare set tariff stating, that there had been a lack of consultation with African taxi drivers by BDBC. 1123. On the 14 April 2022 Mr Draper attended at the taxi rank. In his witness statement he states that he was on the rank speaking to drivers about a whole range of issues including the tariff increase. He did not speak to Miss Akinleye about the tariff increase; the installation of a new electrical vehicle charging point or any other matter. Instead, he carried out an inspection of her vehicle. 1124. In his witness statement he says he carried out the inspection as he was responding to a complaint that her vehicle was being operated without a meter. He said this followed a comment from a member of the public to one of the Hackney carriage drivers that there was no meter in her vehicle. In his oral evidence he told the tribunal that he had received a question the previous day from one of the taxi drivers asking whether it was acceptable to operate without a meter. He said it came by text message, he did not respond and it was not about any particular driver. He said that he did not log it as a complaint because it was not a complaint it was simply a query. 1125. We find that in fact Mr Draper had received an e-mail message from Mr Griffiths who made a specific accusation about Miss Akinleye. We have seen no evidence of any member of the public making a complaint to anyone about Miss Akinleye not having a meter, and we find that this is because there had been no such complaint made. We find that Mr Draper has deliberately lied to the employment tribunal about this matter. 1126. He said that he often attended at the taxi rank because there was a charge point where he could recharge his electric vehicle and he would take the opportunity to walk around and do some inspection work. He accepted that there was no electric vehicle charging bay at the taxi rank in April 2022. He said that it was his chance to go and speak to drivers on an informal basis. 1127. We agree with the claimant that for the interim head to decide to undertake any investigation rather than delegating it to one of his staff was an extraordinary decision. We find that in fact it was unusual for Mr Draper to attend at the taxi rank for a casual chat and that the reason he went to the taxi rank on the 14 April 2022 was because he had received a complaint from Mr Griffiths that the claimant was operating without a meter. We accept that such an allegation is serious and that it was not unreasonable for it to be investigated, but there was no reason why Mr Draper could not be honest with the claimant, that a complaint had been made and that he was therefore him obliged to look into it. 1128. Mr Draper has said under oath that all he had was a query and a query not about any particular driver. If there was a complaint, all the evidence we have heard is that it should have been logged by Mr Draper. It was not. If, as Mr Draper suggests at one point of his evidence, it was an anonymous query, then we find that the evidence of the respondents is that it would not have been investigated. Mr Draper should have simply ignored it as gossip. 1129. The claimant believes that the allegation had been made by Carlton Griffiths, and on balance of probabilities, taking into account his own evidence and recollection, we find that it was him who had made the allegation. 1130. Mr Draper did decide to attend at the rank. If his intention was to see whether any of the taxi drivers were operating without a licence, we would have expected him to approach each of the drivers in turn and check their taxis. 1131. This is not what happened. Instead, Mr Draper talked to a number of white taxi drivers and then carried out an inspection on Miss Akinleye’s cab, focusing on her taxi meter in particular. 1132. We have been shown a video from the claimant’s dash Cam which shows both the outside and the inside of her taxi. 1133. The video shows Mr Draper walking along the taxi rank and speaking with a couple of drivers who were standing outside their taxis. He does not look into the cab of their taxis and nor does he ask them to open the taxi and nor does he get into their cabs. 1134. Mr Draper says in his witness evidence that he received further information about the specific vehicle on the 14 April 2022 when he was talking to drivers on the rank and drivers independently raised that the vehicle in question was Miss Akinleyes. He does not say what he asked the other drivers and nor does he say what evidence anybody had that it might be Miss Akinleye’s car. 1135. Mr Draper does not seem to have considered at any point that white drivers may have held a grudge against Miss Akinleye or that this may be a malicious rumour or an attempt to cause trouble for Miss Akinleye. 1136. The video then shows him approaching Miss Akinleye whilst other taxi drivers continue to stand and watch proceedings. It is not in dispute that when Mr Draper approached Miss Akinleye, he asked her to show him her Taxi Meter and she did so. 1137. It is also not in dispute that he then got into the taxi cab and proceeded to inspect the meter from the inside, and asked Miss Akinleye to demonstrate that the meter was working. He told the tribunal that he can see the meter through the screen and he got into the car because it was more reliable to sit down. He said he wanted to test the meter. 1138. He says that he sat on the floor on the passenger side and asked her to start the meter and he then observed it for one minute and then asked her to shift to tariff two, which she did and repeated the process Miss Akinleye asked why he was in her car and who had complained and he told that he could not say and repeated that he was there to check the meter. 1139. He did not think that getting into the vehicle was unreasonable. He said he wanted to have a conversation with Miss Akinleye. 1140. Since the allegation was whether she had a meter, and since she had shown him that she did have one, there was no obvious reason for him to detain her any longer or to get into her cab. 1141. Whilst he was inspecting the cab, another driver told Miss Akinleye that there was a fare waiting. It should have been her fare, but as Mr Draper was with her, she agreed that he could take it. Mr Draper said he was unaware that this had happened but accepted when shown the video, that this was right. 1142. We find that once he had ascertained that the complaint or query was unfounded he did not stop inspecting the claimants’ vehicle but remained in the cab and then tried to enter into conversation with Miss Akinleye. She did not wish to speak to him and asked him to leave her cab. She said she felt that he was harassing her and he then started disagreeing with her. He did not leave the cab. Miss Akinleye asked him to leave several times, becoming more and more upset and distressed. 1143. Miss Akinleye told the tribunal that Mr Draper had publicly humiliated her by singling her out and subjecting her to an unlawful roadside inspection of her taxi. 1144. We find that he continued to take up the claimant’s time and find that he did expose her to humiliation in front of other taxi drivers. We also accept the claimant’s evidence that his comments when he did leave at which point Miss Akinleye was very upset, I will leave you to sort yourself out made her feel sick. 1145. Miss Akinleye put to Mr Draper that the reason why he did this was because she was black and female and that he harassed her. He said he did this because of a complaint and that this was a swift resolution. He also says in his statement that he did not intend to ambush Miss Akinleye and that the whole process was dealt with informally and that the complaint was received verbally on the rank. 1146. From the video evidence we find that Mr Draper talked to white drivers and then approached Miss Akinleye’s car in full view of everyone else. From the video evidence, and his own evidence we find that Mr Draper had discussed the complaint with some of the white taxi drivers, and that they were aware that he was going to speak to Miss Akinleye. His subsequent actions have all the appearance of someone putting on a show for an audience of taxi drivers. We find that Mr Draper was demonstrating to the white drivers that he was willing to take their complaints against the black taxi driver seriously. We find that it is no coincidence that this was only days after a case management hearing had confirmed that the complaints made by the claimants to the employment tribunal would not be struck out and would be proceeding. We find Mr Draper would have known this. 1147. We find that his failure to leave the taxi cab when told to do so by Miss Akinleye was inexcusable. She was entitled to ask him to leave and as soon as she did so he should have left without any further discussion. His refusal to do so and his determination to continue to argue with her even when she was clearly distressed, demonstrated to us his complete lack of concern for Miss Akinleye. 1148. Mr Draper was willing to investigate an unsubstantiated allegation made against Miss Akinleye, in sharp contrast to the reluctance of BDBC and its officers to investigate a number of matters raised by Miss Akinleye or Mr Olumade across a long chronology, even where they gave specific details names of alleged perpetrators and provided evidence in the form of video footage. 1149. We find that his motivation in attending the rank on that particular day was to inspect Miss Akinleye’s vehicle, and only hers. His evidence about the information he had received; who he received it from and indeed what the evidence was, has been inconsistent and untruthful, and we do not believe him. we find that he has been dishonest in his evidence both about the source of the complaint and about his reasons for attending at the rank. We find he treated the claimant differently to others, and subjected her to determine and unwanted conduct and he did so on the basis of gossip. 1150. We have no evidence that he would have behaved or did behave in this way to any other taxi driver, and we find he would not have done. 1151. We have made findings of fact from which we could conclude in the absence of an explanation that Mr Draper was discriminating against the claimant. We reject his explanation for his decision to attend the rank his decision to inspect the claimants’ vehicle and the reason why he entered the vehicle and carried out the inspection as he did. 1152. We find that the excuse for attending was because Mr Griffiths had made a complaint which he understood to be about Miss Akinleye, but that he chose to attend because it was a complaint about Miss Akinleye, who is black and of African origin, and who had made complaints of race discrimination against the council and others. 1153. We conclude that the effective cause of his treatment of Miss Akinleye on that day was a detriment and that it was because of the claimants’ claims to the employment tribunal along with all the other complaints of discrimination they had made. 1154. We conclude that this was an act of victimisation. Mr Griffiths and Agency 1155. We find that Mr Griffiths had spread rumor and gossip that the claimant was operating without a meter on the rank. 1156. The claimants allege and we find as fact that Mr Griffiths did approach the claimants and that he did behave in a bizarre manner towards them both. 1157. We find that on return to work as a taxi driver after some years absence, he listened to gossip on the rank about the claimants and formed the view that the deterioration in relationships must have something to do with their presence. This may well have been something to do with their race or it may well have been something to do with the fact that they had raised many complaints, or it might have been the result of other people sounding off against the two claimants. 1158. However, we remind ourselves that the allegation against Mr Griffiths is that he was acting as an agent of the licencing authority. We have no evidence capable of supporting any finding of fact that Mr Griffiths acted at any time because of any direction, instruction or advice given to him by any licencing officer. 1159. We find that he was acting as he did because of his own views and because of the views of his fellow white taxi drivers. He was not acting as an agent of the authority and therefore we dismiss all allegations against him. Mr Draper's complaint to Mr Payne 1160. On the 14 April, later on the same day that Mr Draper had inspected Miss Akinleye’s car, Mr Draper says that he was at the head of the Hackney carriage rank speaking to drivers as they pulled up at the top of the rank. He said the drivers were pleased to see him and took the opportunity to ask questions or raise concerns they had. Mr Olumade joined the rank and when he came to the top of the rank Mr Draper approached him. He said Mr Olumade refused to acknowledge him and then asked who he was and asked for his ID badge. He says that Mr Olumade had met him on several occasions. He also says the claimant was aggressive and unwelcoming. Despite this Mr Draper did not move away but continued to try to talk to the claimant. 1161. He alleges that the claimant then made a number of comments asking why you talking to me go and talk to your own kind, the white drivers, go away I don't want to talk to you any longer. We find that the claimant did make a comment to Mr Draper, did ask him to go away, and did say something about him no only talking to white people. 1162. Mr Draper walked away and said in his evidence that he was taken aback by the hostility and racist response to him. He then says he was shocked at the racist language and attitude displayed. 1163. We observe that even on Mr Drapers case, Mr Olumade did not use racist language. What he did do, was suggest that Mr Draper was racist, who only talked to white drivers. 1164. Mr Draper reported the matter to Mr Chris Williams who was the regulatory services manager at the time. He says he reported it the following day. He says the complaint was investigated on the 19 April 2022 and Mr Olumade was issued with a final warning. He says the comments made by Mr Olumade were racist and aggressive towards a council officer, who was undertaking enforcement work at Basingstoke station taxi rank and warranted a final written warning. 1165. We remind ourselves that the licencing authority only have power to issue warnings in respect of licencing matters. 1166. We find that Mr Draper was talking to taxi drivers, he was not undertaking enforcement work. Mr Draper knew this. 1167. Mr Olumade was under no obligation to speak to Mr Draper at all, and said he did not want to talk to him. 1168. Whilst Mr Olumade may have been better advised to have said nothing, he was aware of the exchange that had taken place earlier in the day between Mr Draper and his wife and it was aware that his wife had been very upset by the exchange. 1169. Mr Olumade had made numerous complaints about the different treatment that he alleged he received compared to white taxi drivers and had filed claims to the employment tribunal about his treatment. 1170. What Mr Olumade said was certainly unfriendly and was arguably impolite. Whilst this remark had a made reference to race, it is a criticism or comment about Mr Draper himself. 1171. This is the only occasion throughout the whole chronology of events that we have heard about, when the respondent has determined that a racist remark was made by anyone and then taken action in respect of it. 1172. Mr Olumade was not spoken to at all about the incident. No one considered it necessary to ask him whether he had made the statements as alleged, or if there was any reason for the statement, or what he meant by the remarks. When allegations were made about white taxi drivers making racist remarks, or threatening violence, they were interviewed and given an opportunity to explain. 1173. Mr Draper says in his statement in the light of my professional standing and duty to serve the council and taxi drivers it is not in my interest to provide a misleading statement of the incident when a licencing officer directly witnesses an infringement they can take appropriate action contrast to a third party complaint where the complaint needs to be investigated it can be trusted that a senior manager of the authority would accurately report an incident. 1174. We do not agree. We find that Mr Draper has demonstrated on a number of occasions that he was more than willing to take a wholly negative view of anything that Mr Olumade did or said at any point and that he was very willing to ignore or refute any concerns or issues raised by Mr Olumade. 1175. Mr. Williams was an interim regulatory manager and whilst he no doubt had experience in many areas of council work, we find that he was not at that time, knowledgeable or experienced in the way that licenced taxi drivers were regulated or dealt with. We find that the advice and information about how to handle the complaint being made by Mr Draper would have come from Mr Draper himself. 1176. It is extraordinary that a licencing authority and its officers would consider it unnecessary to invite any response whatsoever from Mr Olumade prior to issuing a final written warning. Not only was this contrary to all council polices, but it is also contrary to all disciplinary procedures. Mr Draper was the victim, the accuser the advisor and we find that Both council officers must have known this. We find that the claimant was treated differently to how others would have been treated and had been treated in the same or not materially different circumstances. We find the burden of proving that this decision was nothing to do with race passes to the respondent. We reject Mr Draper explanation, and conclude that Mr Draper was motivated by the complaints made by Mr Olumade, effectively Mr. Williams simply did as he was told. 1177. Mr. Williams is named as the 5th respondent in the claimant's 2022 employment tribunal claim. The allegation is that he issued a final written warning and that he threatened to suspend or revoke the claimants’ licence in the event of a further incident. This is put as a claim of direct discrimination and of victimisation. 1178. Whilst we conclude that Mr Draper's motivation in pursuing this matter was something to do with the claimant having made complaints himself about race discrimination, we have made no findings of fact from which we could conclude that the actions of Mr Williams were different or less favourable treatment. He told us and we accept, that he thought Mr Langley should have been issued with a final written warning and that he would have issued him with one. 1179. We find that he issued the warning and issued it in the terms that he did because he considered it was the appropriate thing to do and because he was acting on the advice of Mr Draper. We dismiss the claims of discrimination made against Mr Williams. 1180. We find that even if this was a licensing matter, and we doubt that it was, the severity of the penalty, being a final warning , was out of all proportion to the incident itself. 1181. We find that Mr Olumade was treated entirely differently in this respect to the way that other taxi drivers who were white were treated when they made aggressive racist remarks to Mr Olumade. We remind ourselves of our findings that Mr Dispensary Mr Langley and Mr Dyer were issued with written warnings, because of their conduct towards Mr Olumade, and only after an interview and opportunity to discuss matters with the officer. 1182. Mr Draper confirmed when asked by the judge that Mr Langley who had made the threat of violence had been treated to the same as the other two drivers because the view was that they had acted as a mob or were behaving as a group. 1183. Mr Olumade complained about threats of personal violence being made against him in a racist manner. Mr Draper complained about an alleged racist remark made by the claimant. The claimant and the perpetrators of acts against him were treated differently, and we infer that a hypothetical white taxi driver, making a remark Mr Draper found offensive, would not have been treated in the same way. 1184. Mr Olumade and Miss Akinleye complained about the behaviour of Mr Draper and Mr wake on the 27 June 2022. 1185. The corporate complaint was referred to Tom Payne who was the interim executive director of resident services at that point. Mr Payne met Mr Draper to discuss both incidents which took place on the 14 April 2022. 1186. On the 25 July 2022 Tom Payne rejected the claimant’s complaints. 1187. He did not meet and discuss the matter at any time with either claimant. He did meet with Mr Draper and with Mr. Williams, and in particular asked Mr. Draper about what had happened on the 14 April 2022. 1188. Since Mr Olumade was disputing that he had made the comments set out in the final written warning and since he had video evidence we would have expected Mr Payne to invite Mr Olumade to submit evidence. We would also have expected Mr Payne to have spoken to Miss Akinleye. 1189. We find that his failure to do either was different treatment of the claimants and that his decision that Mr Draper's actions towards Miss Akinleye were not discriminatory and his decision to uphold the initial final written warning were both detriments for the respective claimants. 1190. Mr Payne does not appear to have considered the possibility that Mr Draper had pushed for a final written warning or inspected Miss Akinleye’s vehicle, because both claimants had a number of claims current in the employment tribunal in which he was identified as having some responsibility, 1191. Having heard all the evidence in this case over a number of days we come to a very different conclusion to the one reached by Mr Payne. We criticise him for the process followed and his failure to recognise that the claimants had been given no opportunity whatsoever to comment on the matters prior to being issued with a final written warning, and his failure to even consider the possibility of victimisation in light of the claimant’s employment tribunal claims. 1192. In his 6th claimed the employment tribunal of 17 September 2022, Mr Olumade complains that the complaint made by Mr Draper, the process followed by the BBC officers, the final warning itself and the refusal to overturn the matter were all acts of race discrimination. 1193. He alleges that Mr. Williams was instructed to issue a final written warning and that he did so without any reasonable belief that an offence had been committed under the licencing laws. He refers to the lack of an investigation and says that no offence had been committed. 1194. Whatever the rights and wrongs of Mr Olumade's comments on that day, we find that Mr Draper treated him differently to the way he would have treated a white taxi driver in similar circumstances. We reject his evidence about his motivation entirely. 1195. We find that he complained about Mr Olumade not because he was genuinely upset or because he thought he had genuinely been the subject of race discrimination, but because he wanted Mr Olumade to be punished. The reason he wanted Mr Olumade to be punished was in retribution for the claimants’ complaints about race discrimination. Since we find that he was the source of all the advice we also infer that it was likely that he suggested both the process and the sanction. The sanction of a final warning was the most severe sanction imposed on anyone about which we have heard evidence, other than Mr Bulpitt who had been convicted of a criminal offence or Mr Arfa who had his licence revoked. 1196. In her 6th claim to the employment tribunal Miss Akinleye complains that her treatment by Mr Draper when he visited the rank was an act of race and sex discrimination as set out above. Applicable legal principles 1197. The power of a local licencing or authority to grant and revoke licences to taxi drivers derives from two key pieces of legislation. These are the Town Police Clauses Act 1847 (TPCA 1847) and LGMPA 1976. 1198. The legislative provisions refer to taxis, which includes Hackney carriages; black cabs and cabs as well as private hire vehicles which include for example mini cabs executive cars and chauffeur services. 1199. The power of a licencing authority, is to grant; suspend or revoke a taxi licence, or to attach conditions to a licence; provided that the conditions do not exceed their powers as set out in the legislation. 1200. We accept that any steps taken by a licencing authority which exceed the power set out in legislation or regulations could be ultra vires. 1201. We accept that in a discrimination claim such as this one, we are required to consider whether or not the first respondent has breached any part of section 53 of the Equality Act 2010. That is the jurisdiction or power given to an employment tribunal. The employment tribunal does not have the power to take action; make a declaration or indeed grant a remedy in respect of any act of the licencing authority which might be ultra vires. 1202. If any party wishes to challenge an action of a licencing authority because they consider it to be ultra vires, the correct process is an application for judicial review. 1203. During the course of the evidence in this case the Employment Judge reminded the parties of the extent of the employment tribunal's power to determine matters on a number of occasions. The Employment Judge also reminded the parties that if an officer had apparently overstepped the boundaries of their power, in the way that they treated one party or another, that may well be evidence relevant to the question of whether an individual had been treated less favourably or unfavourably or whether they had been subject to unwanted conduct for the purposes of a harassment claim. 1204. The power to revoke or suspend a licence of a taxi driver is clearly a very serious step, since it involves removing the ability of an individual to earn their livelihood. It is therefore of central importance that decisions about whether to consider taking steps to revoke or suspend a licence, or whether to issue a warning about future conduct, that may result in suspension or revocation of a licence, are nondiscriminatory for any reason. The prohibition on discrimination on grounds of race and other protected characteristics, is set down in section 53 Equality Act 1205. It is also of course necessary for any discretion to be exercised fairly and without 1206. The tribunal reminded itself, as it reminded the parties that an individual may make a decision unfairly and may make a decision for which they may be found to be ultra vires, without discriminating on one of the protected grounds under the Equality Act against an individual. 1207. Section 53 of the Equality Act 2010 , makes provision in respect of qualifications bodies. The respondent admits that it was a qualification body for the purposes of this section when dealing with taxi licenses amongst other things. 1208. It provides , in so far as relevant to this case as follows. The sections relied upon by the claimants are highlighted in bold text:(1) A qualifications body (A) must not discriminate against a person (B)— (a) in the arrangements A makes for deciding upon whom to confer a relevant qualification; (b) as to the terms on which it is prepared to confer a relevant qualification on B; (c) by not conferring a relevant qualification on B.(2) A qualifications body (A) must not discriminate against a person (B) upon whom A has conferred a relevant qualification— (a) by withdrawing the qualification from B; (b) by varying the terms on which B holds the qualification; (c) by subjecting B to any other detriment.(3) A qualifications body must not, in relation to conferment by it of a relevant qualification, harass— (a) a person who holds the qualification, or (b) a person who applies for it.(4) A qualifications body (A) must not victimise a person (B)— (a) in the arrangements A makes for deciding upon whom to confer a relevant qualification; (b) as to the terms on which it is prepared to confer a relevant qualification on B; (c) by not conferring a relevant qualification on B.(5) A qualifications body (A) must not victimise a person (B) upon whom A has conferred a relevant qualification— (a) by withdrawing the qualification from B; (b) by varying the terms on which B holds the qualification; (c) by subjecting B to any other detriment. …………. 54 Interpretation (1) This section applies for the purposes of section 53. (2) A qualifications body is an authority or body which can confer a relevant qualification. (3) A relevant qualification is an authorisation, qualification, recognition, registration, enrolment, approval or certification which is needed for, or facilitates engagement in, a particular trade or profession. (4) An authority or body is not a qualifications body in so far as— (a) it can confer a qualification to which section 96 applies, (b) it is the responsible body of a school to which section 85 applies, (c) it is the governing body of an institution to which section 91 applies, (d) it exercises functions under the Education Acts, or (e) it exercises functions under the Education (Scotland) Act 1980. (5) A reference to conferring a relevant qualification includes a reference to renewing or extending the conferment of a relevant qualification.(6) A competence standard is an academic, medical or other standard applied for the purpose of determining whether or not a person has a particular level of competence or ability. 1209. We have considered whether and if so how these provisions apply to the many allegations of discrimination made by Mr Olumade and Miss Akinleye. 1210. We have not been referred to any case law which might provide us with guidance or examples of circumstances where the provision 53 had been applied in the context of taxi drivers, or others. 1211. In terms of harassment the provisions prohibit harassment of a person in respect of conferment by the licencing authority of a relevant qualification, ie a 1212. This provision does not appear to be an open-ended prohibition on the licencing authority harassing an individual – but is limited to harassment of a person who applies for a licence or who hold the qualification, in relation to a conferment by it of that relevant qualification. 1213. we have considered what the phrase conferment of a licence means. Does this simply refer to the process of deciding whether or not to grant a licence to an individual, or does it apply to any process where a persons licence may be questioned or at risk? 1214. Since the power of a licencing authority to have any dealings at all with a taxi driver are limited to those matters which are licensing maters only, it must be right that the prohibition of harassment in the conferment of licence will apply to doing any activities connected with licensing. 1215. We have therefore proceeded on the basis that any harassment of a taxi driver related to race by a, licencing authority or its officers, when acting in the course of the duty as a licensing officer, is prohibited by section 53 of the Equality Act 1216. If we are wrought that then we have considered whether any act of harassment would amount to detriment for the purposes for direct discrimination claim and we find that it could do, depending on the facts. 1217. We remind ourselves that in such case a claimant would have to demonstrate that they were treated less favourably, which is not required in a claim of harassment. Direct Discrimination 1218. S. 13 of the Equality Act 2010 provides that a person is subject to direct discrimination if : “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” Under section 13, a comparison must be made between the treatment of the Claimant and another person, actual or hypothetical. When making that comparison, section 23(1) states “On a comparison of cases for the purposes of sections 13, 14 or 19, there must be no material difference between the circumstances relating to each case.” 1219. When considering whether or not direct discrimination had taken place in this case, we considered and applied Equality Act’s provisions concerning the burden of proof, s. 136 (2) and (3): (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. 1220. In applying the test and before the reverse burden of proof is triggered, we must consider whether, the facts we have found could lead to a conclusion that the prohibited factor, in this case the Claimants’ race, may have or could have been the reason for any of the treatment we have found to have occurred. 1221. We approached the case by applying the test in Igen v Wong [2005] EWCA Civ 142, and took into account that in order to shift the burden of proof to the respondent, requiring a full explanation for any detriment or adverse treatment, the Claimant must prove more that a difference in treatment between himself and any comparator, actual or hypothetical, and a difference in protected characteristic. Before the burden of proof will shift, we must make some additional factual finding from which we may draw an inference that race or religious belief was causative of that treatment in some way. Unreasonable treatment alone may not be enough, unless it is connected to the protected characteristic. 1222. The provisions in relation to discrimination by subjecting a licenced person to a detriment, could be the basis of a claim for direct discrimination on the basis of section 13, and must, we think apply to any form of detrimental treatment including less favourable treatment of any taxi driver by licencing officer. 1223. This could include subjecting an individual to more or more thorough inspections than other drivers, without proper cause; dealing with complaints and allegations made by one person about another differently on grounds of race for example or failing to investigate a legitimate concern on grounds of race or for reasons related to race, or imposing harsher sanctions or any sanction on drivers because of their race or because they had made complaints for example. 1224. We remind ourselves that where the allegations are of direct discrimination , we are considering whether there has been less favorable treatment and that a claimant who simply shows that he or she was treated differently from how others in a comparable situation were, or would have been, treated will not, without more, succeed with a complaint of unlawful direct discrimination. 1225. The EqA outlaws less favourable, not different, treatment, and the two are not synonymous. (See Chief Constable of West Yorkshire Police v Khan 2001 ICR 1065, HL, per Lord Scott ) 1226. The distinction we must make between unreasonable actions of a licencing authority and discriminatory actions of local authority is central and crucial to a number of the allegations in these cases. 1227. This is because unreasonable behaviour alone cannot amount to discrimination, unless there is something more. Further, discrimination cannot be inferred from unreasonable conduct alone. Harassment 1228. The definition of harassment set out in S.26(1) states that a person (A) harasses another (B) if: A engages in unwanted conduct related to a relevant protected characteristic — S.26(1)(a), and 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 — S.26(1)(b). 1229. There are three essential elements of a harassment claim which we must consider and determine under S.26(1) EqA, when applying section 53 as follows: Was the conduct unwanted conduct?[2]Did any unwanted conduct have the proscribed purpose or effect, and[3]Did the conduct relate to a relevant protected characteristic. (see Richmond Pharmacology v Dhaliwal 2009 ICR 724, EAT per Mr Justice Underhill, then President EAT). 1230. Nevertheless, in some cases there will be an overlap between for example, the question of whether the conduct complained of was unwanted with the question of whether it created an adverse environment for the employee. An employment tribunal that does not deal with each element separately will not make an error of law for that reason alone — Ukeh v Ministry of Defence EAT 0225/14. 1231. When considering each part of the test, we had in mind that not only did the conduct have to have been ‘unwanted’, but it also had to have been ‘related to’ a protected characteristic, which was a broader test than the ‘because of’ or the ‘on the grounds of’ tests in other parts of the Act (Bakkali-v-Greater Manchester Buses [2018] UKEAT/0176/17). 1232. As to causation, we reminded ourselves of the test set out in the case of Pemberton-v-Inwood [2018] EWCA Civ 564. In order to decide whether any conduct falling within sub-paragraph (1) (a) has either of the prescribed effects under sub-paragraph (1) (b), a tribunal must consider both whether the victim perceived the conduct as having had the relevant effect (the subjective question) and (by reason of sub-section (4) (c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). A tribunal also had to take into account all of the other circumstances (s. 26 (4)(b)). The relevance of the subjective question was that, if the Claimant had not perceived his/her the conduct to have had the relevant effect, then the conduct should not be found to have had that effect. The relevance of the objective question was that, if it was not reasonable for the conduct to have been regarded as having had that effect, then it should not be found to have done so. 1233. We also reminded ourselves that the words in the statute imported treatment of a particularly bad nature; it was said in Grant-v-HM Land Registry [2011] IRLR 748, CA that “Tribunals must not cheapen the significance of these words. They are important to prevent less trivial acts causing minor upset being caught by the concept of harassment.” See, also, similar dicta from the EAT in Betsi Cadwaladr Health Board-v-Hughes UKEAT/0179/13/JOJ. Victimisation 1234. We remind ourselves that the primary object of the victimisation provisions … is to ensure that persons are not penalised or prejudiced because they have taken steps to exercise their statutory rights or are intending to do so'. Per Lord Nicholls in Chief Constable of the West Yorkshire Police v Khan [2001] UKHL 48, [2001] IRLR 830, [2001] ICR 1065, paragraph 16, 1235. The causation test, under EqA 2010 is whether B is subject to 'a detriment' because of the protected act. 1236. In a victimisation claim under the EqA 2010, the tribunal must determinea. the protected act being relied upon;b. the detriment suffered;c. the reason for the detriment;d. any defence;e. burden of proof. 1237. In this case, in establishing the reason why any of the acts we have found proven, were done, we have had to consider the “mental processes” or the motivation of the person alleged to have discriminated. ( see Lord Nicholls in Nagarajan v London Regional Transport [1999] UKHL 36, [2000] 1 AC 501). An Act will be because of a protected characteristic, or a protected act for a victimisation claim, if that had a significant influence on the outcome: see, again, Nagarajan, at p. 513B. Underhill LJ at 12. The Burden of Proof 1238. Both the discrimination and the victimisation claims are subject to the provisions of section 136 of the 2010 Act relating to the burden of proof, which read (so far as material): “(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. 1239. The effect of section 136 as explained in Igen Ltd v Wong [2005] EWCA Civ 142, [2005] ICR 931, and Madarassy v Nomura International plc [2007] EWCA Civ 33, [2007] ICR 867 is that a tribunal must first decide whether a claimant has established a prima facie case of unlawful discrimination (or victimisation) in the sense elucidated in Madarassy. if they have, the burden shifts to the respondent to prove a non-discriminatory explanation. 1240. The term Detriment is found in the definitions section (EqA 2010 s 212), but is not defined, but states 'detriment does not … include conduct which amounts to harassment'. 1241. In summary the question of 'detriment', must be looked at from the point of view of the alleged victim. This means that a detriment exists 'if a reasonable worker would take the view that the treatment was to his detriment' (see MOD v Jeremiah [1979] IRLR 436, [1980] ICR 13, CA although any alleged detriment must be capable of being objectively regarded as such and 'an unjustified sense of grievance cannot amount to 'detriment'. (see HL in St Helens Metropolitan Borough Council v Derbyshire [2007] UKHL 16, [2007] IRLR 540, [2007] ICR 841, applying Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2003] IRLR 285, [2003] ICR 337,) 1242. It is not necessary to establish any physical or economic consequence. Warburton v Chief Constable of Northamptonshire Police [2022] EAT 42, [2022] ICR 925. 1243. This means that the ET might be of a different view to the claimant, but if a reasonable worker ( Or for our purposes, a reasonable license holder, (although not all reasonable workers) might take the view that, in all the circumstances, it was to their detriment, the test is satisfied. The EAT indicated that it should not be particularly difficult to establish a detriment for these purposes. 1244. The motivation in the victimisation case does not have to be conscious motivation. 'See Nagarajan v London Regional Transport [1999] IRLR 572, [1999] ICR 877, HL: 1245. As to the existence of mixed motives, Knox J, referring to the earlier decision of the Court of Appeal in Owen & Briggs v James [1982] IRLR 502, [2001] ICR 1065, put the matter thus: ''[W]here an [employment] tribunal finds that there are mixed motives for the doing of an act, one or some but not all of which constitute unlawful discrimination, it is highly desirable for there to be an assessment of the importance from the causative point of view of the unlawful motive or motives. If the [employment] tribunal finds that the unlawful motive or motives were of sufficient weight in the decision-making process to be treated as a cause, not the sole cause but as a cause, of the act thus motivated, there will be unlawful discrimination' (p 67). 1246. We remind ourselves that it is however harder for a respondent to rely on the ‘bastard employer’ defence , that is that they were unreasonable to everyone, if the evidence shows that only one employee was subjected to the employer’s unreasonable behaviour. 1247. We have we have also borne in mind the obiter comments made by Mr Justice Langstaff in the case of In Kowalewska-Zietek v Lancashire Teaching Hospitals NHS Foundation Trust EAT 0269/15 that where there is an approach towards all, which creates an equality of misery, it is unlikely to be because of a protected characteristic peculiar to only one or a few of them. However, the ‘unreasonable not discriminatory’ defence may be less applicable in a case in which the evidence shows that only one employee has been made miserable. In that latter case, although it remains logically right that the individual may have been the unwilling victim of a mistake or oversight, there is much greater reason to consider carefully and with particular scrutiny whether this might simply be too easy an explanation. It may call, in an appropriate case, for evidence as to how others have actually been treated who, if the explanation were true, one might expect to have been treated equally badly. 1248. In Glasgow City Council v Zafar 1998 ICR 120, HL, Lord Browne-Wilkinson considered that ‘the conduct of a hypothetical reasonable employer is irrelevant. The alleged discriminator may or may not be a reasonable employer. If he is not a reasonable employer, he might well have treated another employee in just the same unsatisfactory way as he treated the complainant, in which case he would not have treated the complainant “less favourably”.’ His Lordship also approved the words of Lord Morison, who delivered the judgment of the Court of Session, that ‘it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee, that he would have acted reasonably if he had been dealing with another in the same circumstances’. 1249. The Court of Appeal in Bahl v Law Society and ors 2004 IRLR 799, CA, reiterated the House of Lords’ judgment in Zafar. It did, however, consider that discrimination may be inferred if there is no explanation for unreasonable treatment, stating: ‘this is not an inference from unreasonable treatment itself but from the absence of any explanation for it’ 1250. In Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases 2005 ICR 931, CA, the Court of Appeal cautioned against too readily inferring unlawful discrimination merely from unreasonable conduct. However, it held that it was not an error of law for a tribunal to draw an inference of discrimination from unexplained unreasonable conduct at the first stage of the two-stage burden of proof test. 1251. A decision maker who routinely makes unreasonable decisions in respect of all individuals regardless of race is unlikely to be found to be discriminating. on the other hand if a decision maker makes a series of unreasonable decisions in respect of persons of one race but does not make similar decisions in respect of persons of another race this might be a finding of fact which alone or with other matters may require an explanation for the treatment which is non discriminatory from a respondent. 1252. Unreasonable conduct towards one person but not to another maybe indicative itself of discrimination if it is indicative of a difference in treatment. The LG(MP)A 1253. Both claimants make reference to the Local Government (Miscellaneous Provisions) Act 1996. Part two of that Act deals with Hackney carriages and private hire vehicles. 1254. This part of the act deals with licencing of drivers or private hire vehicles and Hackney carriages; power to require applicants to submit information; qualifications and suspension or revocation of licences amongst other matters. 1255. Amongst other matters section 47(1) provides that a District Council may put such conditions as it considers reasonably necessary upon the granting of a licence. Any person aggrieved by such conditions can appeal to a Magistrates Court . 1256. We understand that this is the legislative provision which gives a licencing authority power to consider whether a person applying for a licence or a person who holds a licence to drive any taxi Hackney carriage or private hire vehicle is a fit and proper person. Drawing of Inferences in Discrimination claims 1257. In discrimination claims, the inferences that can be drawn from findings of primary fact are often of central importance. In this case, the circumstantial evidence relied upon by the claimants stretches over many years, and concerns many different situations and different alleged perpetrators. We therefore reminded ourselves and had in mind when making our findings of fact and when drawing inferences from them, the guidance of the Courts from cases that predate the introduction of the burden of proof provisions now in the equality act, as well as those that post date the provisions. 1258. In King v Great Britain-China Centre [1992] ICR 516 at pp 528–529 Neill LJ. summarised the relevant principles as follows, “From [the] several authorities it is possible, I think, to extract the following principles and guidance. (1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that ‘he or she would not have fitted in’. (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal……….( refer to Questionnaire ) (4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May LJ put it in North West Thames Regional Health Authority v Noone [1988] ICR 813 , 822, ‘almost common sense’. ( we remind ourselves that this is inow codified I the burden of proof provisions) (5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.” 1259. We have also referred to and relied upon the decision of Mummery J in Qureshi v Victoria University of Manchester , EAT, at pp 873–876] in which he added made additional and detailed observations to the ones set out above. 1260. We have born them in mind when making our decisions in this case. 1261. In particular we have reminded ourselves that a. we only have jurisdiction to consider and determine matters which are properly before b. That our role as a tribunal of fact is to determine what happened and why it happened. We must decide who we believe and make findings of primary fact on the basis of direct evidence and on the basis of circumstantial evidence. c. in race discrimination claims the claimant must discharge a burden of proof, often in the absence of direct evidence operational grounds for the alleged discriminatory actions . in particular it was noted that The applicant faces special difficulties in a case of alleged institutional discrimination which, if it exists, may be inadvertent and unintentional. d. We remind ourselves that our decision may depend on the inference is it it is appropriate to draw from findings of primary fact and it is therefore of great importance that the primary facts are set out with clarity by the e. We have also borne in mind that we should look at the totality of the facts that we have found rather than take a fragmented approach. we remind ourselves that a fragmented approach would have the effect of diminishing any eloquence that the cumulative effect of primary facts might have on the issue of racial grounds.f. The process of inference is a matter of applying common sense and judgment to the facts, and assessing the probabilities on the issue whether racial grounds were an effective cause of the acts complained of or were not. Claims [of race and sex discrimination] present special problems of proof for complainants since those who discriminate on grounds of race or gender do not in general advertise their prejudices. We remind ourselves of King v Great Britain-China Centre [1992] ICR 516 1262. The question of whether the treatment complained of is less favourable, is a question or fact for the tribunal. 1263. We reminded ourselves when considering whether the treatment the Claimant relied upon was as a matter of fact less favourable treatment that the legislative test is an objective one. 1264. The fact that a Claimant believes that he or she has been treated less favourably does not of itself establish that there has been less favourable treatment. We had in mind the judgments of the EAT in Burrett v West Birmingham Health Authority 1994 IRLR 7, EAT, regarding a complaint by nurse that she had been treated less favourably by being required to wear a uniform which she considered to be demeaning, and the judgement of the Court of Appeal in HM Land Registry v Grant (Equality and Human Rights Commission intervening) 2011 ICR 1390, CA, in which the Claimant’s complaint that he had been outed at work and that this was less favourable treatment was rejected, because the Claimant had already made his sexual orientation public at a previous workplace. 1265. We also bore in mind however that the Claimants’ perception about their treatment and its effect on them will often have a significant influence on the Tribunals conclusions. In Chief Constable of West Yorkshire Police v Khan 2001 ICR 1065, HL (a victimisation case), the House of Lords determined that the Claimant was treated less favourably when the employer refused, for allegedly discriminatory reasons, to provide him with a reference. It was almost certain that, had he been given a reference, it would have been very unfavourable and their Lordships took into account that that from an objective point of view, he was better off without one. Nonetheless, he was held to have been treated less favourably than a comparator. There is, according to Lord Hoffmann, ‘a distinction between the question of whether treatment is less favourable and the question of whether it has damaging consequences’. 1266. On the other hand, it is not enough simply to show that the complainant has been treated differently. As Lord Scott said, ‘there must also be a quality in the treatment that enables the complainant reasonably to complain about it. I do not think, however, that it is appropriate to pursue the treatment and its consequences down to an end result in order to try and demonstrate that the complainant is, in the end, better off, or at least no worse off, than he would have been if he had not been treated differently. I think it suffices if the complainant can reasonably say that he would have preferred not to have been treated differently.’ Here, the Claimant wanted a reference to be given, even though he knew that it would be likely to contain adverse remarks about him, and withholding it meant that he had suffered less favourable treatment. 1267. The question that we had to consider in this case was whether or not the treatment of the Claimants in respect of numerus incidents and allegations, was capable of amounting to less favourable treatment. We find as fact that a number of incidents of treatment were different treatment, and have also therefore considered whether they were less favourable. In asking and answering those that question we have reminded ourselves of these tests. 1268. Although Khan was a victimisation case under the RRA, and the definition of victimisation under the EqA is different and does not involve less favourable treatment, the principle set down in that case is cited by the EHRC Employment Code when it explains less favourable treatment in the context of direct discrimination: ‘The worker does not have to experience actual disadvantage (economic or otherwise) for the treatment to be less favourable. It is enough that the worker can reasonably say that they would have preferred not to be treated differently from the way the employer treated — or would have treated — another person’ — see para 3.5. 15.20. 1269. This explanation applies to our determination of allegations of direct discrimination contrary to section 53 EQA 2010. 1270. We have also reminded ourselves of the judgement in Royal Mail Group Ltd (respondent) v Jhuti (appellant) [2020] IRLR 129 that If a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason which the decisionmaker adopts, the reason for the dismissal is the hidden reason rather than the invented reason. Issues Raised as allegations involving agency. 1271. Both claimants make allegations against 4 sets of people or individuals, which raise the question of agency. a. Allegation A40 and allegation O83 are that the respondent colluded with the taxi federation by equipping them with complaint forms for passengers. The respondent and white taxi drivers under the guise of the taxi federation taxi association colluded together to try and encourage complaints against the claimant by handing out complaint forms. The allegation is made against the licencing team. allegations A 24 and 65 are allegations of harassment by white taxi drivers licenced by BDBC, that BDBC has asked white taxi drivers to look for evidence and engage in, monitor, record and complain against black Hackney carriage drivers. It is alleged that this agrees with the evidence contained in the notes of the meeting between BDBC and the police on 27 September 2017 where BDBC confirmed that it had asked drivers to record incidents. This advice was not given by BDBC to black taxi drivers. b. Both Claimants make allegations in respect of the decision of the licencing subcommittee following the hearing on 18 December 2020, alleging that they were acting as agents of the respondent. We remind ourselves that this was a hearing set up by the licencing authority so that the licencing subcommittee could determine a number of allegations made against Mr Olumade. both claimants make allegations. as follows A34;35;36;37 38;41;42;43; and from Mr Olumade, O77;78;79;81;80;82;84;8;86. c. The allegations are made against Miss Louise Misslebrook who gave evidence to us and who is a member of the respondents legal department, against councillors Nicholas Robinson; C Phillmore and Graham Falconer, none of whom gave evidence before us. d. A third group of allegations are made in respect of Michael Gilhuley, who the claimants say was acting as the agent of the council when he attempted to disseminate information provided to him by the BDBC, regarding a meter update these are allegations A 17,18 and O61. e. Specific allegations are made against Mr Griffiths, a licenced Hackney carriage driver named as the 4th respondent. Mr Griffiths provided a witness statement and gave evidence to the tribunal and was represented by the respondent solicitors and by the respondent counsel, Mr Harding. The allegations are that the first respondent empowered or instructed Mr Griffiths to discriminate against the claimant Miss Akinleye by permitting white taxi drivers including R4 to be in charge of the taxi rank etiquette and bylaws, by equipping white taxi drivers including R4, with complaint forms to be used against the claimant;(C) asking white taxi drivers to film and report incidents involving the claimant and (D)permitting white taxi drivers to leave their vehicles to undertake the above actions. f. specific allegations are made against Mr Griffiths by Mr Olumade that R4 intimidated the claimant on 13 occasions and that the first respondent empowered or instructed R4 to be in charge of the taxi rank etiquette or bylaws and in the same four ways, as asserted by Ms Akinleye. 1272. Section 53 of the Equality Act provides that it is the qualification body that is the liable person for the purposes of the legislation. there is therefore a question of whether any of the named respondents are capable of being liable under the legislation. 1273. Section 110 of the Equality Act sets out the liability of employments and agents as follows a person (A) contravenes this section if a. A is an employee or agent b. A does something which by virtue of section 109(1) or(2) is treated as having been done by A's employer or principal as the case may be; c. The doing of that thing by A amount to a contravention of this act by the employer or principal (as the case may be) 1274. Section 109, in the relevant parts, states that (1) anything done by a person a in the course of A's employment must be treated as also done by the employer. (2) anything done by an agent for a principal with the authority of the principal must be treated as also done by the principal. 1275. This means that the named respondents who are also employees of BDBC can, as a matter of law, be held jointly liable for their actions as respondents, depending on the facts found. 1276. The 5th respondent can only be liable if any of the acts which are said to be acts of discrimination carried out by him were done by him as an agent or principal with the authority of that principal, within the meaning of section 109 (2). 1277. Further the first respondent, BDBC, can only be held responsible for the actions of any of the taxi drivers, if the acts or omissions which are alleged to be acts or omissions of race discrimination, were done by them as an agent acting for a principal and with the authority of that principal. The claimant bears the burden of proving that any named driver was acting as an agent of the local authority at the relevant time. 1278. The employment tribunal must therefore first determine whether or not the alleged acts or omissions were done by the named individuals. Next we must determine whether any responsible driver acted with the authority of BDBC or a member of its staff, in circumstances where there was an agency agreement. We have asked, did the any of the named taxi drivers act with the authority, whether express or implied, of BDBC or one of its officers who had power to bind them to do the act or to fail to do an act? 1279. Authority for an act might be given in advance or it might be given subsequently by way of ratification. 1280. The respondent referred us to of Ministry of Defence v Kemeh, [2014] ICR 625 paragraph 39, in which Elias LJ stated even in the so-called general concept of agency advanced in the Yearwood case, it would be necessary to show that a person the agent is acting on behalf of another, the principal and with that principals authority. Once it is recognised that the legal concept does not necessarily involve an obligation to affect the legal relations with third parties I doubt whether the concepts are materially different, 100 1281. the respondent also referred to Unite the Union V Nailard [2019] ICR 28 Allegations of Ultra Vires 1282. Both claimants have raised a number of issues questioning whether or not the respondent was acting ultra virus because of the way they have exercised their powers to create licencing taxi guidelines. 1283. The employment judge explained to the parties a number of times during the course of the hearing that the tribunal does not have jurisdiction to determine whether or not a local authority is or was acting ultra vires. In this case, we must determine whether or not the local authority was discriminating against the claimants in any or all of the many ways alleged by the claimant. If it is shown that the respondents treated the claimants differently when enforcing rules, or used the rules to harass them for example, that may be evidence of discrimination, but that would be the case whether the policy itself was vires or ultra varies. We will not be determining whether the council had the authority to rely on the rules themselves, or to interpret them as they did. 1284. In answer to a number of allegations about the reliance and interpretation of the policies , in particular with respect to the policy on what is meant by a fit and proper person for the purposes of licencing, the respondent asserts that the guidance is in respect of policies that have existed for many years and which is very similar to policies and practises exercised by licencing authorities up and down the country. We accept that this is true. 1285. We have therefore focused on what the rules and regulations which the licencing officers applied actually said, and how they were applied to the claimants and to others of different race to them. Discussion and Conclusions 1286. Both parties provided submissions to the employment tribunal. The claimants provided written submissions at the outset of the hearing and relied on them and the respondent provided written submissions at the end of the hearing. the claimant also provided a response to the respondents submissions which we have referred to earlier in our findings. 1287. We have read them and taken them into account when making our findings of fact when considering the law and when drawing the conclusions are set out below. 1288. We have set up some of our conclusions in the body of the judgement for the sake of completeness and to assist in a logical assessment of the matters being determined. We do not repeat those conclusions here. Agency and the Liability of for the actions of the Taxi drivers themselves 1289. A number of allegations made by the claimants is that the licencing authority are liable for any racist actions of any taxi drivers, if any taxi driver was acting as an agent of the authority. The Claimants both allege that there were instances when this was the case. 1290. We have reminded ourselves of the legal tests we must apply when considering our findings of fact in respect of this part of the chronology in particular as well as parts of the chronology with which Mr Draper was subsequently concerned both in order to determine how the claimant was treated and how other taxi drivers who were white were treated, but also to see whether or not any of the actions of any members of the licencing authority were capable of being construed as giving white taxi drivers permission or authority to act as they did. 1291. Whilst there are many allegations that the officers of BDBC discriminated against both claimants, at the heart of this case, are a range of allegations that the BDBC discriminated against both claimant because they encouraged, permitted or authorised the actions of a small group of white taxi drivers, who were themselves subjecting the claimants to race discrimination. The claimants allege that some of the White taxi drivers were authorised or enabled by the BDBC to act as they did. 1292. Both claimants allege that over time, the failure of the council to take any or any serious action to deal with the alleged racist behaviour of the white drivers . 1293. Meant that there was an ongoing problem for the claimants at the taxi rank, which affected their ability to carry out the day to day activities. 1294. This is illustrated in particular in by the allegations made about the Reading incident and Paul Bulpitt. 1295. There are two allegations about the Reading incident. One is that the steps taken to pursue Mr Olumade and the way he was pursued over the Reading incident were race discrimination, and the second is that the BDBC took too long to revoke Mr Bulpitts license. 1296. We have set out in detail our findings of fact and the discussion about this matter in the body of the judgement. 1297. We find that the local authority took no obvious steps to support Mr Olumade, other than telling him to keep away from Mr Bulpitt, and did not at that point of take steps to revoke or suspend the licence of Mr Paul Bulpitt or to investigate who had sent the anonymous and threatening note or to investigate why other white taxi drivers had apparently supported and protected Mr Bulpitt when he had assaulted Mr Olumade. 1298. We find that this was in contrast to the treatment of Mr Olumade and Miss Akinleye by the authority over the preceding months and years, in different circumstances and where allegations had been made against either of them. 1299. We have considered how the authority might have responded to a hypothetical white driver making similar complaints to the ones Mr Olumade and made, in similar circumstances. 1300. We have identified within our narrative, evidence demonstrating how others of a different race were treated by the authority in a variety of scenarios. Whilst the factual backgrounds are not identical we have made findings of fact there were differences between the way Mr Olumade was treated and the way that white taxi drivers were number of instances. 1301. We have also made findings about how the BDBC officers say they would have dealt with investigations, and what sort of allegations and complaints they would investigate. We find that in a statistically relevant number of instances Mr Olumade was not treated in accordance with the approach set out by the BDBC either in letters or verbally at the time or indeed in their evidence to the 1302. We accept that in a number of instances there were differences or differences in approach and we also accept that there are in some circumstances differences which arise from the nature of the allegations themselves. We accept that there is a difference between an allegation that a white taxi driver has assaulted a black taxi driver at a rank and a complaint by a black taxi driver that a white taxi driver has been smoking in his cab and also a difference between those two complaints and a complaint that any taxi driver has hit a pedestrian whilst driving his cab. 1303. We have also reminded ourselves that race discrimination is often not conscious or deliberate but arises from assumptions sometimes made of somebody not fitting in. We have also borne in mind the dicta from the cases set out in the legal section that discriminators rarely admit discrimination even to themselves. 1304. We remind ourselves that findings of discrimination will often depend upon the inferences that we draw from our primary findings of fact. We have reminded ourselves of the burden of proof provisions and remind ourselves that when applying them we must be satisfied that we have made findings of fact from which we could conclude in the absence of an explanation that discrimination could have taken place. 1305. We also remind ourselves that discrimination or discriminatory acts can take place over a period of time by different perpetrators where there is for example a few or an attitude about a certain individual. A person may well become demonised or seen as a problem over a period of time and the view may be unfairly shared by a number of people working in a small office environment. 1306. In this case, in order to draw conclusions a about whether white drives were acting as agents of the council, we have considered the hostile environment at the taxi rank, and the reasons for it. 1307. First we have found that there was a hostility towards Mr Olumade amongst licensing officers. Particular officers had taken against Mr Olumade for reasons which we find were related to his race at a very early stage in his relationship with them. 1308. We also find that Mr Olumade as one of only three black taxi drivers operating out of the Basingstoke taxi rank was fiercely resented by some of the taxi drivers operating at that time and that part of the reason for some of them resenting and disliking him was the fact that he was a black man from Africa. 1309. We have found that the respondents officers were fully aware of the tensions on the rank because Mr Olumade and Miss Akinleye had raised the matters with them. 1310. We prefer the claimants’ evidence and find as fact that Mr Draper had a particular close professional relationship with Mr Dainty, who was at one point the chair of the taxi federation, and we also find that there were regular meetings with the Taxi Federation and members of the licencing team, certainly in Mr Draper's time and more recently. 1311. These meetings were not public and no written record of them appears to have been made or retained. If notes were taken then they have not been disclosed to the claimant’s or to the Tribunal. No reference whatsoever has been made to the meetings within anybody's witness statement. We find such meetings took place and we find that the respondents have been secretive and evasive about the meetings in their evidence. We find that none of the respondent witnesses asked about these meetings have told the tribunal the whole truth. 1312. From this we infer that those meetings were intended by the people who set them up and by the people who attended them, not to be more widely known of or discussed, and in particular they were something of which the claimants were wholly unaware. 1313. No licencing officer ever sought to have any private or secret meetings with either of the claimants and we conclude that some white taxi drivers were treated differently to the way that the claimants were treated by Mr Draper and by Mr Wake. In the absence of any information given openly about these meetings we conclude that there was something inappropriate or suspicious being discussed between Mr Draper and some of the white taxi drivers who belonged to the taxi federation. 1314. We find that Mr Draper in particular was more than willing to listen to gossip from white taxi drivers on the taxi rank, and that this continued even when he was promoted to head of regulatory services. The conclusion we draw from the events that led to the complaints made on the 14 April 2022, when Miss Akinleye’s taxi meter was inspected by Mr Draper, which culminated with Mr Olumade being issued with a final written warning, is that Mr Draper having listened to unsubstantiated gossip and a verbal complaint from Mr Griffiths, paid an unannounced visit to a taxi rank with the specific purpose of inspecting Miss Akinleyes , and further that the visit to the taxi rank was known and expected by white taxi drivers but not by Miss Akinleye or Mr Olumade . 1315. We infer this from all the facts that we have found and in particular from the video evidence which we have viewed and which shows Mr Draper speaking to another taxi driver in front of Miss Akinleye and then walking purposefully towards her carrying out an inspection and then walking away to chat to other white taxi drivers but apparently not carrying out any inspection of any other taxi. 1316. From Mr Draper’s evidence to the employment tribunal and the evidence we have seen of his discussion with the licencing committee, we conclude that Mr Draper did indeed consider that taxi drivers were his best source of evidence. However we conclude from all the facts that we have found that he had a preference for the evidence from a taxi federation which he knew Mr Olumade and Miss Akinleye were not members of, and from a group of white taxi drivers who he knew or ought to have known had made numerous unsubstantiated and unproven complaints against both claimants. 1317. From the facts that we have found we conclude that he actively colluded with a number of these taxi drivers including Mr Peter Dainty; Mr Griffiths ;Mr Taunton and others. We also conclude that Mr Draper came into a licencing authority in which there was a clear problem of serious unrest at the station taxi rank between a group of white taxi drivers and two or three black taxi drivers and he chose a side. From the outset we conclude from all of our findings that he formed a view that Miss Akinleye and Mr Olumade were at fault, and that all his actions from then on were biased and aimed at reinforcing his initial views, rather than seeking to exercise his licencing powers fairly, objectively and without racial bias. 1318. We conclude that it is highly probable that his view of the claimants was significantly influenced by Mrs Cannon and by a negative attitude formed by a number of staff within the licencing department towards Mr Olumade and Miss 1319. We conclude that this negative attitude particularly of Mr Olumade was formed at a very early stage when Mr Olumade applied for a licence. 1320. We conclude from the findings of fact we have made about Mrs Cannons evidence, and about Mrs Stevens evidence and actions in respect of her referral of him to the Home Office for an immigration check, that both women were prejudiced against Mr Olumade in particular from the outset. 1321. We conclude that Mrs Cannon held stereotypical and racist views about the claimant demonstrated by her suggestion that he came across as aggressive and was constantly making complaints about race discrimination, both of which we have found to be unfounded. 1322. We conclude that one reason or part of the reason or a significant cause of a negative attitude towards Mr Olumade and Miss Akinleye by association was the fact that they are both black and of African origin, and all other taxi drivers on the rank were white, and they were and the fact that Mr Olumade complained and raised an issue about racism at a very early stage. 1323. We conclude that the attitude of BDBC officers at an early stage were based on simple racial prejudice, and that the later antagonism and racist attitudes of white taxi drivers towards Mr Olumade in particular were ignored and denied by BDBC officers who had formed their own negative and prejudicial views of him. 1324. Retuning to the allegations made by the claimant about the failure to deal with Mr Bulpitt and the suggestions that white driers were acting as agents of the council. 1325. We conclude that over the chronology that we have dealt with the failure of the respondents to address racism at the Basingstoke and Dean taxi rank and the refusal to recognise and deal with serious complaints being made by the claimants allowed a hostile and aggressive environment to exist both amongst some licencing officers and also allowed a toxic and hostile atmosphere to exist and continue particularly at the taxi rank. 1326. We conclude that the facts we have found about the contrasting and different treatment of the claimants and the way that white taxi drivers were treated, is relevant evidence which enables us to draw inferences in respect of the motivation and causation in respect of acts of the council officers themselves. 1327. We do not however conclude that by their failures to act the respondent officers authorised agreed to or approved any of the racist actions of white taxi drivers. We have made no findings of fact that could lead to such a conclusion except in the one instance set out below regarding the update of the meter incident. 1328. In reaching this conclusion we have borne in mind that the relationship between a licence holder and a licencing officer is governed solely by the authorities powers to deal with licencing issues. Racist actions and racist attitudes held by taxi drivers which translate into violence and aggression may well raise a question about a person's fitness to hold a licence. A failure to deal with it when others are dealt with may indicate a difference in treatment. A persistent stream of unfounded allegations by one group of drivers against another may raise a question of discrimination depending on how the complaints are dealt with. 1329. Nothing however in any of those matters or the facts that we have found as set out above, suggest that racist actions or attitudes amongst particular taxi drivers were authorised sanctioned approved or encouraged by the BDBC officers so that there could be said to be a relationship of agency. 1330. We reject the allegations made that white taxi drivers were acting as the agent of the respondent when they did make complaints about Mr Olumade and miss 1331. Whilst we have commented in a number of places that we consider it is highly probable that the motivation of many of the white taxi drivers for complaining about the claimants was something to do with their race, if it was they were acting on their own behalf not as agents of the council and therefore this tribunal has no jurisdiction to determine liability for the complaints against BDBC or its officers. We therefore dismiss the claims of discrimination by instructing allowing or white taxi drivers to make complaints, to that extent. Allegations in respect of specific agency 1332. Firstly, in respect of the allegation that complaint forms were provided specifically to white drivers so that they could make allegations against Mr Olumade and Miss Akinleye. The claimants allege that because they say officers of the BDBC provided documentation to white taxi drivers that when taxi drivers made complaints they were acting as agents of the respondent. 1333. There is some evidence that paper forms were indeed provided to some taxi drivers and we find as fact that no such paper forms were ever provided to the 1334. However we find that there was only one instance where a complaint appeared to have been made using a paper form. We find that complaints were usually made in writing, by e-mail, by telephone, or indeed verbally, by the claimants and by white taxi drivers on various occasions throughout the chronology. Anyone who wanted to make a complaint about another taxi driver, whether they were a member of the public a taxi driver themselves or a third party appears to have been able to do so. 1335. Whether or not Mr Wake or Mrs Cannon they have provided paper forms to specific drivers at some early stage, we have no evidence before us and have made no findings that it was done with a specific stated objective of gathering evidence against the claimants. We have made no finding of any instruction being given to any white driver to either gather information about the claimants or to make complaints about them. 1336. We reject the allegation that any taxi drivers were acting as the agent of the local authority by being given claim forms either to give to passengers to make complaints about other taxi drivers or for taxi drivers themselves to make complaints. Allegations made against Louise Misselbrook and Councillors Nicholas Robinson; C Phillmore and Graham Falconer. 1337. Miss Louise Misselbrook is a member of the respondents legal department. We had a witness statement from her and she gave live evidence. 1338. Both claimants allege that when they were given notice of the intention of the licencing authority to refer them to the licencing subcommittee, so that the committee could consider whether or not they were fit and proper persons to hold Hackney carriage licences, a. That they were not given details of the offences or allegations that had been made on the 27 July 2020 until the hearing on the 12 November 2020; the claimants were not consulted but the contents of the bundle of documents put forward for the subcommittee hearing; that the respondent by Miss Misselbrook and Mr Wake failed to give them an opportunity to have any input into the bundle; that the hearing and penalties imposed should have been determined by the magistrates. b. That following the conclusion of the investigation into the allegation 20 July 2020, the outcome in effect attached a condition to the claimant's Hackney carriage licence; that assumptions made about the claimants knowledge of their vehicle and how wheelchairs would fit into them was racist and that the failure to provide them with a right to appeal was discriminatory. c. The claimant complains that to the respondent should not have used section 9 witness statements to gather evidence in relation to the matters under investigation. d. That the respondent failed to apply licencing laws. 1339. These allegations are brought against the respondent generally but specifically also against Louise Misselbrook and various councillors. 1340. The claimants can only bring claims against any of these individuals if they were acting as agents of the respondent and if they committed acts of discrimination. when making decisions as a licencing committee councillors will be acting as agents of the council. 1341. In this case we have found that the decisions made by the licencing committee and the comments made subsequently by Mr. Robinson were not acts of discrimination and therefore we have dismissed the claims of discrimination made against them. 1342. Louise Misselbrook was an employee of the respondent and therefore she can properly be said to have acted as an agent of the respondent when carrying out any of her functions. Alternatively the respondent is liable for any act of discrimination she commits in the course of her employment. 1343. We have not found any facts from which we could conclude that any of the actions which she took in respect of the licencing committee meeting, or any of the acts about which the claimants complain, were acts of discrimination. 1344. We therefore dismiss all allegations of discrimination alleged to have been committed by her. Mr Griffiths and allegations in respect of agency 1345. We find that he did approach the claimants and that he did behave in a bizarre manner towards both claimants. 1346. However, we remind ourselves that the allegation against Mr Griffiths is that he was acting as an agent of the licencing authority. we have no evidence capable of supporting any finding of fact that Mr Griffiths acted at any time because of any direction, instruction or advice given to him by any licencing officer. 1347. We conclude that he was acting as he did because of his own views and because of the views of his fellow white taxi drivers. He was not acting as an agent of the authority and therefore we dismiss all allegations against him. Mr Gilluley 1348. Issue a 17 concerns the way the claimant was informed of a meter update. This is a victimisation claim and the protected act is the ET claim. The claimant says that she was not informed of the meter update but accepts that what happened was that the licencing authority asked the chairman of the taxi federation to pass information onto the drivers. The chair of the association at the time was somebody called Mr Gilluley and the claimant accepts that he did speak to her. She also accepts that she received the same letter that other white taxi drivers received telling them about the update. Her concern clarified in her evidence was that because she was not a member of the taxi drivers federation, Mr Gilluley should not have been the person to inform her and that the council should have informed her. She also took issue with the way that Mr Gilluley spoke to her but this is not an issue currently before us. 1349. We find that the authority did ask the chair of the federation to disseminate the information to all the taxi drivers and that in doing so it was asking the chair of the federation to act as their agent in this respect only. 1350. The claimant says that it was their right to be informed of this information by the respondent and we find that information was subsequently provided by the respondent. 1351. We understand that the issue for the claimants was that they did not wish information to be provided to them by the chair of a federation which they were not members of and whose members they considered had often treated them in a racist way. Whilst we may have some sympathy with that and whilst the claimants may both be correct that they pay their licence fees to the authority so that the authority will give them the requisite information we find that the claimant was not treated any differently to anybody else and therefore no issue of direct discrimination arises. 1352. We also find that Mr Gilluley did not do anything related to race or related to any protected act that had been done, he simply provided information. we therefore dismiss these claims. 1353. We therefore dismiss the allegations of discrimination by reason of agency against him and therefore against the respondent authority. Allegations of different treatment 1354. The claimants both complain about the way they were treated in a number of incidents but there are four particular events or series of events which we find indicate differences in treatment these are the way the claimant was treated in the reading incident the way the claimant was treated over the Ashford school Academy incident the decision to take action against both claimants over a wheelchair issue and the way both claimants were treated by Mr Draper on the 14 April 2022 at an inspection at the rank and the subsequent decision to issue Mr Olumade with a final written warning. 1355. In our findings of fact we have compared the way the claimant was treated with the way white taxi drivers were treated and we have looked in detail at the way drivers were treated after the Paul bull pit incident and the way drivers were treated after the mobbing incident. we have also referred 2 various other incidents and made findings of fact about how they were dealt with. 1356. We conclude that across the chronology Mr Olumade in particular but also Miss Akinleye were treated less favourably than white taxi drivers were treated by Mrs Cannon, Mrs Stevens, Mr Draper and Mr wake in particular. 1357. We also find that both claimants were subjected to unwanted treatment which was related to race and that the behaviour of the authority officers created on occasions, a hostile and intimidating working environment for them. 1358. We have drawn inferences as set out within the body of our finding and in drawing those influences we have taken into account the treatment of both the claimants and their white comparators across the entire chronology. 1359. We stated above that we have relied upon these matter, including the complaint made by Mr Olumade in 2016 that the BDBC took too long to revoke Mr Bulpitt taxi licence after he'd been convicted of an assault against him, because Mr Bulpitt is not from an ethnic minority, as evidence of how hypothetical others would have been treated as well as in some cases being facts from which we could draw inferences of discrimination in the absence of a full non discriminatory explanation from the respondents. 1360. We conclude that both claimants have been discriminated against because of race, that they have been harassed for reasons related to race and that they have been victimised for having made complaints of race discrimination throughout the chronology, but in particular in respect of a. the decisions made to pursue the Reading incident; b. the decisions made to pursue a meeting in respect of the Ashwood Academy and in respect of the way the meeting was handled c. the failures to provide outcomes d. the handling of the claimants SARs applications e. the pursuit of both claimants over wheelchair issues whilst failing to take any steps to deal with white drivers alleged to be failing to carry children in pushchairs correctly, f. in respect of the continuation of the wheelchair allegations up to a licencing subcommittee hearing, andg. in respect of the subsequent inspection of the claimants a vehicle following complaints by Mr Griffiths andh. in respect of the decision to impose a final written warning on Mr 1361. In reaching these conclusions we have taken into account a marked reluctance to take action against Mr Bulpitt and other white drivers, which is in contrast to the willingness to investigate and pursue allegations against Mr Olumade in particular during that period of time. 1362. We have also made findings of fact about the respondent’s public statement about what they can do where there are allegations of violence and what they did do when such an allegation was made and a conviction secured. 1363. Mr Olumade puts this reluctance to act against white drivers as a complaint of discrimination contrary to section 53 . However in order to succeed in such a claim he would have to show that there was a variation of the terms on which he, Mr Olumade holds his qualification or to show that the qualifications body have discriminated against Mr Olumade by subjecting him to a detriment. 1364. We conclude that whilst the behaviour upset and worried of the claimants, it did not affect their licence, all be it that we accept the evidence from Mr Olumade that he did take the decision to reduce the amount of time he spent at the taxi rank and therefore it did impact upon his earning abilities 1365. We dismiss the claim under Section 53 2b, because there was no variation of the terms on which Mr Olumade held his licence. 1366. We have considered whether by not revoking the licence of someone who was accused of assaulting Mr Olumade the licencing authorities discriminated against subjected Mr Olumade on grounds of race by subjecting him to a detriment. 1367. We find that there was a reluctance to take action against Mr Bulpitt prior to his conviction, because a post-conviction revocation would be less susceptible to appeal. We accept that from the respondent’s point of view, it was reasonable not to pre-empt the outcome of the criminal case and that the antagonism between taxi drivers on the rank may well have been a factor in this decision. 1368. It was not however an act of detriment done to Mr Olumade saving the respect that he had to continue working at the taxi rank alongside somebody who had assaulted him. 1369. Whilst we have evidence that other council officers may have acted differently we cannot find facts in this case which suggest a difference in treatment off the claimant or that the claimant was subject himself to a detriment. Discussion of victimisation claims 1370. Both claimants have alleged victimisation as a result of having raised a number of serious complaints about racism under discrimination both internally and through the filing of formal claims to the employment tribunal. 1371. In respect of some allegations, we have set out our findings and conclusions in the body of the judgement, and in doing so we have taken into account the following matters as well as the matters set out in respect of each particular incident, reminding ourselves that when considering a claim of discrimination we must look at the whole picture rather than taking a fragmented approach. 1372. In his witness statement to the tribuna,l Mr Payne asserts that the conduct of both of the claimants has had a significant impact on staff and the service. He says the claimant's propensity to make extremely serious and derogatory allegations of racism led to a situation where members of staff became very weary and concerned about any interaction with them. This also led to high levels of sickness absence due to stress. In view of this specific measures have been put in place to protect staff . This includes ensuring that two officers are present during any meetings with these drivers and signing any non standard correspondence EG renewal letters from the licencing team rather than a named officer. The officer time and cost to respond to the number of complaints / allegations and subject access requests is also very significant and has impacted on the normal operation of the licencing team. 1373. We have heard no evidence other than this that any staff sickness was anything to do with either of the claimants, and we reject this. 1374. We have found that the claimants have made a number of serious allegations of race discrimination, but unlike Mr Payne, we have found that a number of those allegations were potentially well founded. We have also found that a number of members of staff of the authority subjected both claimants to various detriments at various points in time, including failures to investigate claims of race discrimination, less favourable treatment of the claimants both in terms of the way that matters were investigated but also in the way that the claimant’s application for a Hackney carriage licence was dealt with at the outset of the relationship. 1375. We have found that Mr Draper in particular treated both claimants, from the outset, as if they were a problem and that throughout the relationship until up until the date of the hearing, he treated both the claimants and any complaints that they raised with disdain. He actively sought to deflect any criticism made of the department by interfering with claims the s made to the employment tribunal, and by interfering with the claimants Freedom of Information requests. 1376. Looked at as a whole, the treatment of the claimant’s throughout the period of time that they have been licenced by BDBC, has been tainted by racist stereotyping and less favourable treatment than white taxi drivers, and a reluctance to deal with serious issues of conflict between white taxi drivers and black taxi drivers, including threats of violence and actual violence towards Mr. Olumade, and a tendency to suggest some fault on the part of Mr Olumade in particular. 1377. We have no evidence that Mr Payne has ever met Miss Akinleye, or indeed that the issues that staff have reported with Mr Olumade have anything to do with Miss Akinleye in most cases. We conclude that rather than considering the two black taxi drivers as individuals, a number of the staff in the licencing department of Basingstoke and Dean grouped together and blamed both of them for any failing or inconvenience that they saw in the other. 1378. We recognise that the complaints being raised by Mr Olumade and Miss Akinleye and the complaints raised by a number of white taxi drivers about the two black taxi drivers were time consuming and on occasions must have been irritating and annoying for BDBC officers. We have noted a number of allegations made against Mr Olumade for example, such as the suggestion that he followed Tina Tawton and made faces at her, which seemed petty and unworthy of officer attention. 1379. We have found that Mr Wake and Mr Draper did pursue complaints made against the two claimants but did not pursue with the same vigour or indeed the same series outcomes complaints that either claimant made about white taxi drivers. 1380. We have made findings about the interaction of the BDBC staff with Mr Olumade a from the outset of his application for a licence which suggest that his race was a factor in the treatment he received. 1381. We have heard and seen evidence from a number of officers suggesting that Mr Olumade was aggressive or intimidating but when we have drilled down the only examples of actual occasions when he was alleged to have been intimidating or aggressive were an initial conversation with a member of staff which was recorded in a file note; allegations made by two Reading inspectors in the circumstances which we have described and made findings about above and an incident which took place at the Ashwood Academy. 1382. We conclude that neither the Reading incident nor the Ashwood Academy incident resulted in any finding or determination that impacted on Mr Olumades licence and we find that there are no complaints made about Mr Olumade or Miss Akinleye that they themselves are aggressive or intimidating in any way other than in respect of their filming of a white taxi drivers. 1383. In contrast we have seen a number of videos taken by Mr Olumade which show very clear aggression and intimidation towards him. We have also seen the video of Mr Draper and his interaction with Miss Akinleye in which she remains polite until his refusal to leave her cab causes her upset and distress. 1384. We have seen the film in which Mr Draper and Mr Olumade had an exchange at the taxi rank which led to the final written warning. whilst Mr Olumade made a comment to Mr Draper, he was not aggressive or intimidating. 1385. We all agree that the evidence we have heard demonstrates that complaints were made by both the claimants and by white taxi drivers. A number of the complaints of race discrimination made were directed at Mr Draper and Mr wake. We accept that this would have been upsetting for them, but we also find that it is necessary for any local authority to take allegations of race discrimination seriously and to ensure that they are adequately and properly investigated. 1386. We find that in this case that simply never happened. Mr Olumade wrote numerous polite and detailed letters to the officers at the authority and when he received no response, to his MP. We find as fact that the officers at BDBC told the MP that the matter had been dealt with, when in fact there were matters that remained outstanding, such as the failure to provide the claimants with a response or outcome to the investigation and a failure to investigate whether or not the aggression and threats made to Mr Olumade where anything to do with his race. 1387. Over a long period of time officers at the council cast Mr Olumade, and Miss Akinleye by association, as a problem and instead of investigating his concerns that he was being targeted by other white taxi drivers because of his race, sided over and again with white taxi drivers, taking steps to build case after case against him with the aim of revoking his Hackney carriage licence. 1388. We have no doubt that the requests made under data protection and Freedom of Information were inconvenient for this council but we also observe that without those requests and the provision of the documentation which formed the majority of the bundle before this employment tribunal, the claimants would have lacked the necessary evidence to support the claims that they were making. 1389. We find that part of the reluctance of the council officers in providing the information and part of the reason for taking so much time over it was the concern that documentation would support the claimants and that therefore that there needed to be significant redaction to conceal matter, much of which we have found to be wholly unnecessary and inappropriate. 1390. Going back to the comments made by Mr Payne, we find that his attitude towards the claimant’s is the result of what he has been told by his officers. 1391. We conclude that the claimants have been treated differently than white taxi drivers because they have raised complaints of race discrimination in the past and because of concerns that they will do so again. Conclusions on indirect discrimination 1392. The claimants have put a number of their claims in the alternative as allegations of indirect discrimination. We understand that this is based on argument that the practises and policies of the respondent authority were used in a discriminatory way against them all that the practises were not applied equally to them and white 1393. We have reminded ourselves that indirect discrimination depends upon the claimants and others who do not share their protected characteristic being treated in the same way by the respondent in circumstances where the policy or practise itself has an adverse impact on them and others who do share their protected characteristics. 1394. In this case in each instance the allegations being made are more properly considered as allegations of direct discrimination harassment or victimisation because they are allegations that the claimants were treated differently less favourably or subject to detriment. 1395. We therefore dismiss all allegations in respect of indirect discrimination. Conclusions on particular allegations not set out elsewhere 1396. Miss Akinleye alleges that she was made to repeat the driver awareness test due to the respondents conduct of the examination. She told us in evidence that she had been failed on the verbal part of the test which was the geographical awareness questions. She asserted that she had good knowledge of the geography and that she could see no reason why she would have failed. she accepted that she had passed on the second occasion and that she had not raised any queries about this at the time. she said it was only subsequently that she thought there might be something wrong with it. 1397. Miss Akinleye alleges that between March and May 2013 she took the Hackney carriage knowledge test twice and again alleges that she should have passed on the first occasion. Again the only reason why she failed was because of the geographical knowledge test. She says that she was aware that Mr Olumade had also failed on the first occasion and that he had challenged the result and that subsequently it was discovered that the answers which he had given were in fact correct although they were not necessarily the answers provided to the tester. Miss Akinleye accepts that she did not raise any concerns at the time but asserts nonetheless that she considers that her race and her gender were a factor in both her first failure and her second failure. She points to the fact that she passed both on the second occasion and that on the second occasion both her and Mr Olumade had significant experience having been taxi drivers in the area for some years. 1398. Whilst both claimants are right that they were failed on their first attempt and that this was corrected on a second attempt, we have no evidence before us that the claimants were treated any differently than anyone else would have been treated, who gave the same answer that they gave. 1399. We have no evidence that the person who dealt with the tests deliberately failed them, but we do have evidence that when Mr Wake reviewed the test, he noted a discrepancy and corrected it. 1400. Whilst this was a detriment, we cannot conclude that there was and different treatment or that the unfavourable treatment or unwanted treatment was related to race, for harassment purposes or that as because of complaints that either claimant had made. 1401. This was, we think, the result of genuine mistake made about the standard answers. We dismiss these claims of discrimination. Jurisdiction and time points. 1402. The EAT determined that all claims brought prior to 2017 were within time. 1403. We consider that the chronology of events that we have been concerned with comprises many incidents which form a course of conduct, which is extended over a period. We conclude that in this case all claims would be within time but in any event insofar as any matter may be out of time, we conclude on the basis of all the facts that we have found that it would be just and equitable to extend time in respect of them. Case Number: 1402852/2018 and 1402853/2018 1402124/2020; 1402137/2020; 1404861/2020; 1404872/202; 1406142/2020; 1406153/2020; 140 6689/2020; 1406698/2020; 1403037/2022; 1403038/2022. EMPLOYMENT TRIBUNALS Claimant: Ms OA Akinleye ( first Claimant ) Mr A Olumade (Second Claimant) Respondent: Basingstoke and Deane Borough Council Mr R Draper Mr A Wake Mr C Griffiths Mr C Williams Heard at: Southampton On: 23,24,25 July 2025 Before: EJ Rayner Mr P Bompass Mr P Flannagan Representation Claimants: In person Respondent: Mr S Cheetham KC
Introduction
[1]The First claimant is awarded the following sums in respect of remedy for race discrimination: Type of award Amount Interest Total payable Injury to feeling £55,000.00£37,683.29£92,683.29 Loss of earnings to £13,736.00 NA £13,736.00 date of remedies hearing Aggravated £7000.00 Combined £7000.00 damages interest on past loss of earning and aggravated damages £7112.73£7112.73 Future loss of £2398.00£2398.00 earnings Total amount of £122,929.52 award now payable to the First Claimant[2]A Preparation time order of 25 hours is made in favour of the First claimant at the rate of £44 per hour. The total sum now payable by the respondent to the first claimant under the preparation time order is £1,100.00[3]The Second claimant is awarded the following sums in respect of remedy for race discrimination: Type of award Amount interest Total Injury to feeling £55,000.00£37,683.29£92683.29 Loss of earnings to £37,375.00 NA £37,375.00 date of remedies hearing Aggravated £7000.00 Interest on £7000.00 damages Combined loss of earnings and £15,221.23 aggravated damages is £15,221.23 Future loss of £3250.00£3250.00 earnings Total now payable £155,529.52 to the second claimant[4]A Preparation Time Order of 25 hours is made in favour of the second claimant at the rate of £44 per hour. The total sum now payable by the respondent to the second claimant under the preparation time order is £1,100.00.
Introduction
[1]The substantive hearing of this case took place in September 2023 over 4 weeks.[2]Judgement was delivered to the parties in April 2024, following an application for reconsideration of one matter by the respondent and an application for reconsideration of matters by the claimants, the reconsidered Judgement was provided to the parties in October 2024.[3]A remedies hearing was subsequently listed and took place over 3 days.[4]In advance of hearing the parties had agreed a remedies bundle of 1200 pages; a bundle of authorities; and a further bundle of 119 pages containing the claimants schedule of loss the respondents counter schedule and information in respect of the claimants application for preparation time order.[5]In addition, the tribunal received skeleton arguments from the claimants and on behalf of the respondent.[6]During the course of the hearing the claimants produced an additional document which was admitted without objection, which both claimants relied on as explaining the basis on which they had calculated their loss of earnings.[7]The tribunal heard evidence from Mr Olumade and Miss Akinleye on their own behalf and heard evidence from Mrs Derby on behalf of the respondents.[8]The respondents had not initially intended to call any evidence and applied at this hearing for leave to call Mrs Derby. Her evidence dealt with a discrete assertion by the claimants, that they had being unable to apply for a grant to purchase an electric vehicle and that this was as a result of discrimination. She also addressed some of the steps taken by the respondent following delivery of the judgement.[9]Although the claimants objected to the admission of the statement and the evidence, they accepted that they had been provided with a copy of the witness statement some 4 weeks ago and were able to deal with the matter at this hearing. The tribunal considered it to be in the interests of justice and proportionate to admit the witness and granted leave to the respondents. The witness evidence was relatively short; there was sufficient time within the timetable and given the level of award being being claimed by the claimants, it was proportionate for the Respondents to be able to call evidence on the discrete point. Injury to feeling[10]There is no dispute by the respondent that each claimant has suffered significant injury to feeling and no dispute that, given the findings of the tribunal in this case, and the evidence provided by both claimants to this tribunal, that the award should be at the top band of the Vento guidelines.[11]The current level for the top Vento band is £36,400- £60,700. The tribunal has discretion as to the point at which damages are awarded. The respondent suggests a level of £40,000.00 to each claimant is appropriate.[12]The claimants suggest a higher figure, but also assert that they should receive an award in respect of each act of discrimination found proven. The legal principles Relevant to the award of damages in Discrimination claims Injury to feeling awards
claims
[13]We remind ourselves that our focus must be on the effect of the unlawful discriminatory treatment on each claimant, not on the gravity of the discriminatory acts of the respondent (Komeng v Creative Support Ltd UKEAT 0275/18).[14]Awards should not be too low, as that would diminish the respect for the policy of the anti discrimination legislation. We remind ourselves that society has condemned discrimination, and awards must ensure that it is seen to be wrong. On the other hand they must not be excessive and must not be seen as the way to untaxed riches.[15]We reminded that over all, the purpose is the complainant is to be put into the financial position they would have been but for the unlawful conduct of the employer (Ministry of Defence v Cannock [1994] ICR 918, [1994] IRLR 509, EAT).[16]We bear in mind that the award we make should bear some broad similarity to the range of awards in personal injury cases and that we should take into account the value in everyday life of the sum that we have in mind.[17]We should also bear in mind the need for public respect for the level of awards made. In respect of this last matter, we consider that we are taking into account the reasonable minded member of the public who accepts that proven race discrimination is condemned by society. .[18]Injury to feeling will encompass subjective feelings of upset; frustration worry; anxiety; mental distress; fear; grief; anguish; humiliation; unhappiness; stress and depression. ( see for example Vento v The Chief constable of West Yorkshire Police [2023] IRLR 102.)[19]We also remind ourselves that separate awards for injury to feeling will not necessarily be made where discrimination has been caused by different protected characteristics. We acknowledge that for Ms Akinleye the discrimination we found to be unlawful arose in from broadly the same set of facts, although it is attributable both the race and sex in some instances.[20]There is no requirement that the loss suffered be 'reasonably foreseeable'; compensation can be awarded in respect of all harm that arises naturally and directly from the act of discrimination, at least in cases where the discrimination was deliberate and overt (Essa v Laing [2004] IRLR 313, [2004] ICR 747, CA and Abbey National plc and Hopkins v Chagger [2009] IRLR 86, [2009] ICR 624, EAT).[21]The claimants both suggest that they should be awarded a high level injury to feeling award in respect of each act of discrimination we have found proven.[22]We do not agree. We acknowledge that there were a number of different allegations of discrimination that we found proven against the respondent in each claimant’s case. However, the effect of our findings is that there was a continuing course of conduct over a number of years, and in our decision about the correct level of an injury to feeling award we have looked at the whole pattern of discrimination. We have taken into account that, were we to consider the proven acts by individuals , many of them would , by themselves , attract lower awards, or possibly mid range Vento awards. It is the fact of the sustained and continuing nature of the conduct over a number of years, which means that in this case, the award is properly made within the highest Vento band. (see for example Al Jumard v Clywd Leisure Ltd and ors [2008] IRLR 345, EAT).[23]We all agree that it is appropriate to award a global figure in this case for injury to feeling both in respect of race discrimination and in respect of sex discrimination. Mitigation of loss.[24]We have also taken into account that the amount of compensation may be reduced if the claimant has mitigated their loss, or has failed to take steps which would have led to a reduction in the loss suffered. In Citibank NA v Kirk [2022] EAT 103, [2022] IRLR 925 the EAT adopted in relation to compensation for discrimination the principles set out by Langstaff P in relation to compensation for unfair dismissal in Lindsey v Cooper Contracting Ltd UKEAT/0184/15 (22 October 2015, unreported):(1) The burden of proof in relation to mitigation is on the wrongdoer.(2) If evidence as to mitigation is not put before the employment tribunal by the wrongdoer, it has no obligation to find it.(3) What has to be proved is that the claimant acted unreasonably; they do not have to show that what they did was reasonable.(4) There is a difference between acting reasonably and not acting unreasonably.(5) What is reasonable or unreasonable is a matter of fact.(6) In determining reasonableness the views and wishes of the claimant should be taken into account as one of the circumstances, although it is the tribunal's assessment of reasonableness and not the claimant's that counts.(7) The tribunal is not to apply too demanding a standard of the victim; after all, they are the victim of a wrong. They are not to be put on trial as if the losses were their fault when the central cause is the act of the wrongdoer.(8) The test may be summarised by saying that it is for the wrongdoer to show that the claimant acted unreasonably in failing to mitigate.(9) In a case in which it may be perfectly reasonable for a claimant to have taken on a better paid job, that fact does not necessarily satisfy the test. It will be important evidence that may assist the tribunal to conclude that the employee has acted unreasonably, but it is not in itself sufficient. Exemplary Damages[25]We have considered the circumstances in which Exemplary damages may be awarded. These are damages that are aimed at punishing the wrongdoer rather than compensating the victim. The House of Lords in Rookes v Barnard and ors 1964 AC 1129, HL, confirmed that exemplary damages were justified in three categories of case as follows: 1. Conduct by servants of government that is oppressive, arbitrary or unconstitutional 2. Conduct of a respondent designed to be self-profiting (for example, not taking disciplinary action against an alleged discriminator because he or she is a profitable employee), and 3. Damages specifically authorised by statute (which is not the case as far as discrimination legislation is concerned).[26]We remind ourselves that aggravated damages are not interchangeable a with exemplary damages. They can be awarded be awarded in addition to exemplary damages.[27]In Commissioner of Police v Shaw [2012] ICR 464, the EAT summarised the three relevant factors as being: the manner in which the discrimination was committed, the motive of the discriminator and the discriminator’s subsequent conduct.[28]Awards for aggravated damages, which are not punitive, tend to be between £5,000 and £10,000, but the dividing line with injury to feelings is blurred and quite often a tribunal will include the “aggravation” when deciding upon the injury to feelings award.
Findings of fact
[29]In determining the damages in respect of each claimant , we make the following findings of fact. In respect of Ms Akinleye[31]We accept her evidence as set out in her witness statement, in the documents referred to in the bundle, including her medical notes, and her oral testimony before the tribunal, that she suffered the following injury to feeling , which was cumulative over the years the claims represent:a. She was offended by being referred to as Olumades wife;b. that herself belief and confidence were eroded when she was falsely accused or refusing a wheelchair passenger;c. that she suffered stress and distress when her vehicle was singled out for inspection and scrutiny, following the conviction of a fellow taxi driver Mr Bulpitt;d. that she found the questioning of her husband by Mr Draper and Mr Wake in December 2017 to be vitriolic and oppressive, causing hurt, trauma and emotional distress;e. that being subjected to an interview under PACE following an issue with Hampshire County Council, left her feeling traumatised;f. that she suffered the additional stress of observing impacts upon her husband's health;g. that the circumstances led to her and her husband becoming dependent upon their children's income and the kindness of friends to assist with holidays;h. that the unfair investigation of the claimants left her feeling anxious and fearful for her family's welfare;i. that the assault; mobbing and subsequent inadequate investigations impacted her husband Mr Olumade, meaning that she was stressed to the extent that she could not sleep while he was working and often felt compelled to call him to check on his safety;j. We accept her evidence that this left her with anxiety which could be incapacitating and on occasions has meant that she was unable to work.k. We accept the claimant’s evidence of paragraph 19 that the failure by the respondent in its equality duties not only eroded the trust Miss Akinleye had, but also led to her working fewer hours for reasons of safety, which in itself had a knock on effect on their income.l. We find that the treatment of the claimant being summoned to a subcommittee, and the inspection of the claimant’s vehicle by Mr Draper in April 2022 left the claimant weary and fearful and that it left her unsettled and unable to work ;m. We accept her evidence in paragraph 23 of her witness statement that following the incident, whilst refuelling the vehicle her mind blanked out, she forgot her pin number and was held up at the pump until Mr Olumade was able to pay. We accept her evidence that the entire encounter left her feeling distraught and physically ill with severe headaches and trembling for hours.n. We find that the failure of the respondent to carry out any investigation into this incident left the claimant feeling betrayed and despised by BDBC.o. We find that the claimant did seek medical help in December 2022 , and that as a result she was referred for counselling and therapy which took many months.p. We find that at the point she was referred, she told her medical advisors that she was a self-employed taxi driver with the council and that feelings of harassment and lack of support had been ongoing for many years; she reported other taxi drivers and the council reporting her for things she had not done; she got to the stage where she was wearing a camera in order to have evidence of accusations so that she could refute them; she said there was an ongoing process at work with complaints about the way she had been treated and the knock on effect had been significant stress and anxiety; she said sometimes she thought other taxi drivers or passengers were saying negative things when they were not but that she had insight into this; that she got jumpy when driving if people talked her she was worried there might be making complaint; she said she'd withdrawn into herself, she used to take care of the garden, the allotment and now she doesn't do it. On examination she was reported to be tearful, with no signs of an underlying psychotic illness but anxious and slightly on edge. Her GP referred her to psychological therapies support service I talk on the 16 November 2022. See pages 163 to 165 remedies bundle.q. We accept the claimant’s evidence that as a result of her treatment and the treatment of her husband by BDBC that her and her family have suffered emotional trauma and reputational harm as well as suffering financial hardship.[32]For Miss Akinleye, we find that her distress was heightened by observing the way that her husband was treated both by other taxi drivers but also by the response of the respondent Council to complaints her husband made about his treatment. We have no doubt that Miss Akinleye’s health was adversely impacted by the way that she was treated by the local authority but also by the way her husband was treated by the local authority.[33]We find that Mr Olumadea. suffered severe stress when baseless allegations were made against him and when the respondent authority treated him differently when investigating allegations.b. We find that the treatment of the claimant following the attack by Mr Bulpitt, which included different treatment of the claimant in compliance testing as well as a failure to engage or deal with the complaints the claimant had raised, left the claimant feeling humiliated and unsafec. We accept his evidence that it was not just that this was a physical assault but that it shattered his confidence in a system that was meant to protect him and that he began to dread going to work, fearing further violence and the indifference of licencing officers.d. We accept and find that this was particularly difficult for Mr Olumade because of the fact that he had been able to provide video evidence of the events.e. We find that the treatment of the claimant by Mr Draper in the December 2017 meeting left Mr Olumade feeling powerless and small and that he felt his livelihood and integrity were questioned simply because of his race.f. The claimant has not been challenged, and we find as fact that from that point he started to suffer sleepless nights and constant anxiety about taxi licences and higher purchase repayments. The lack of any investigation by BDBC into complaints of racially motivated conduct compounded these feelings.g. We find that the respondent dismissing the claimant’s concerns about information that showed the BDBC had unlawfully shared the claimant’s data in immigration checks in previous years, and in particular the dismissal of those concerns by Mr Draper, further compounded the harm.[34]We find that the treatment of the claimants by the respondent have had an ongoing and significant impact upon both claimants. We accept the evidence in paragraph 24 Mr Olumade’s statement, that they will avoid taking fares going outside BDBC and that they no longer accept telephone bookings for fear that they will be set up or called out on false bookings.[35]Mr Olumade is asthmatic. We have seen medical evidence that he reported symptoms of shortness of breath on occasions in 2016 and 2017 and that in 2018 in may he was admitted to hospital as an emergency because of shortness of breath symptoms on the 17th of June 2019 his medical notes refer to asthma and the claimant was provided with and shown how to use an inhaler. Mr Olumade reported at that point that asthma was sometimes restricting exercise did not lead to symptoms at night and that he sometimes had symptoms one or two times a month.[36]We have no doubt that stress which he suffered as a result of the difficulties he faced at work and the racism to which he was subjected could and did impact upon him and could and did exacerbate his asthma on occasions.[37]We also accept the evidence of his wife, which we find unsurprising, that Mr Olumade became withdrawn, and changed as a person.[38]In the liability judgement we have set out in great detail our findings of fact of racism and racist treatment of both claimants by a succession of officers of the BDBC over a long period of time.[39]We have been referred to the apology issued to the claimants by the BDBC on 10 March 2025.[40]The apology, which is from the chief executive Russell O'Keefe, begins , I wish to apologise to you on behalf of the council and secondly I would like to reiterate the offer made you by our solicitors. It goes on having fully considered the decision the council would like to apologise sincerely for incidents and mistakes that led to your claims and for the distress that this has caused you.[41]The letter goes on as a result of the judgement the council has reviewed working practises with the licencing team, including all policies and procedures; is reviewing complaints handling across the council to ensure that all are addressed consistently and effectively; have carried out specialist training for staff working within regulatory services on inclusion and will be undertaking a full review of the council's wider delivery of equality's diversity and inclusion training and guidance to staff. Additionally we are exploring options to improve the CCTV coverage of the station area including the rank.[42]In relation to questions the claimant start about individual members of staff the letter states I cannot comment on these matters are confidential .[43]The letter also includes an offer to rebuild a relationship including, if the claimants agreed, a meeting with the leader of the council, councillor Paul Harvey, the director of resident services Fiona Derby, and himself. It says we are happy to have that meeting somewhere other than at the main civic offices if you would prefer we do recognise however that you may prefer to wait until after the conclusion of the legal proceedings. The rest of the letter is concerned with the offer made by the respondent to the claimants to settle their claim[44]In that apology the BDBC have characterised the judgment of the tribunal as setting out mistakes having been made. We do not agree with that characterisation of our judgment of the treatment that these two people were subjected to.[45]This was a sustained failure by the BDBC at a senior level and by two specific officers, Mr Draper and Mr Wake to deal with serious and well founded allegations of race discrimination and race harassment by other taxi drivers, coupled with sustained racist treatment of both claimants by council officers. Instead of taking the claimant’s complaints seriously, BDBC officers constantly dismissed them and sought instead to undermine and penalise the two claimants.[46]We have no doubt in concluding that the racist conduct on the part of particular officers of the BDBC and the collective failure of the BDBC corporately to deal with these issues, was the cause of significant injury to feeling, and should attract a high level of injury to feeling award.[47]In reaching this conclusion we have considered whether or not we should make a separate award for personal injury, and conclude, as submitted by the respondent counsel, (see findings below) that we do not have a separate claim before us in respect of personal injury.[48]We do however accept the claimant’s evidence that they each suffered serious stress and distress as result of the racist acts we have found proven, and that they consider, not without some justification, that the deterioration in health was directly because of their treatment. We cannot find that the stress was the cause of deterioration in health , but we do find that the impact of stress on them was real, and is a known factor exacerbating asthma for example, and that Ms Akinleye did require some medical intervention to assist her with managing her stress.[49]We consider that the fear that treatment is damaging health was real in this case, and is part and parcel of the injury to feeling award, and is one of the factors that we have taken into account when determining the level of the award.[50]In 2024 when we delivered judgment the Vento range at the top band was between £35,200.00 and £58,700.00 In 2025 at the point when we are delivering our remedies judgement the top Vento ranges between £36,400.00 and £60,700.00[51]We all agree that this discrimination falls within the top range of the Vento band and we all consider that as the bands themselves can be said to have a top, a middle and bottom, that this discrimination falls in the top part of the top band. We conclude that the correct amount , taking into account the uplift over two years is an award of £55,000.00 to each claimant.[52]We award interest on the award to both Miss Akinleye and Mr Olumade.[53]The standard rate upon which interest is awarded on an injury to feeling award is at the rate of 8% per day from the date of the active discrimination complained of until the date on which the tribunal calculates compensation see regulation 6 (1)A IT( IADC) regs 1996.[54]However, if a tribunal considers that serious injustice would be caused if interest would be calculated according to those approaches, we can calculate interest on such different periods as we consider appropriate. (see regulation 6 subsection 3 and also see Ministry of Defence v Cannock 1994 IRLR 509). In that case interest was awarded over a longer period)[55]In this case we are making a significant and substantial award in respect of injury to feeling because of the long term and continuous nature of the discrimination. The first acts of discrimination that we have found to be proven date from 2009.[56]Whilst those early acts of discrimination in 2009 were serious, their contribution to the injury to feeling award is, in reality, less significant than the later acts of discrimination.[57]To award interest at 8% from the start of the period would, we consider, amount to serious injustice. We conclude that both claimants will be appropriately compensated by being awarded interest from a date which is a midpoint between the earliest acts of discrimination and the last acts of discrimination, until the date of determination at this hearing. In part this is because the acts of discrimination which the claimants were aware of prior to the receipt of their subject access request were those which dated from around 2016.[58]We therefore award interest from the start of 2016 until the date of today's hearing at the rate of 8%. Loss of earnings[59]Both claimants apply for an award in respect of lost earnings. Both have provided a significant amount of information in various bundles, which includes a number of tables which they rely upon as explaining the losses they have suffered.[60]They have produced driver statements setting out taxi journeys made and have provided handwritten records of receipts from taxi journeys over several years.[61]We have been provided with companies information about two taxi firms with whom the respondents compare themselves, Oakview Cars Limited and Mee Day Taxis. The documentation submitted in support of the claimants schedules of loss run to 1263 pages across 2 lever arch folders. In addition to the documents produced as part of the schedule of loss themselves we had separate documentation in respect of the preparation time order application and a further folder of documents with the witness statements and schedules of loss themselves.[62]Both claimants gave evidence to the tribunal and provided a witness statement in advance. In those statements they made reference to various documentation stating that it sets out the losses they have each suffered, and the impact on their earning power, as a result of discrimination.[63]However neither claimant sets out in their witness statement the basis on which they are claiming loss of earnings, they make no specific reference by numbered pages or by class of documents or category, to any of the documentation that might be relevant, and do not explain how they have reached the figures included within their schedule of loss.[64]Ms Akinleye claims loss of earning up until 2024 of £234,222.42.[65]Mr Olumade claims loss of earnings up until 2024 of £319,174.35.[66]The claimants make a joint claim for projected future losses from 2025 until 2037 of £2,768,752.35.[67]We understood the documentation to be a projection of what each claimant considered they might have been able to earn, but for the discrimination.[68]We agree that this is an acceptable approach, but it is dependent upon the Claimants being able to show a valid basis for their assumptions about what their earnings would have been absent discrimination.[69]This in turn is dependant to some extent, on then being able to show how the discrimination we have found proven, impacted on their earning ability. For the claimants, one of the issues, is that they each made allegations of race discrimination about a number of other taxi drivers. Whilst the tribunal was able to make some findings of fact about the treatment of the claimant by those drivers, the tribunal determined that we had no jurisdiction to determine remedy in respect of the actions of other drivers, for the reasons set out in the judgement.[70]It is therefore necessary when assessing loss of earnings, to bear in mind that we can only consider losses which are attributable to the discrimination by the respondent corporately or by the individual named respondents who we have found to have committed acts of discrimination.[71]We agree with Mr Cheatham KC, representing the respondents, that within their evidence in chief neither claimant provides any real explanation of the arithmetic calculations that they carried out to reach the figures they rely upon.[72]Mr Olumade explained when giving evidence, and when ask dot explain by the Judge, that he had reached the figures in his spreadsheet by the use of a median projected increase in income each year. He said that the claimants had looked at years when there had been no discrimination, and taken the percentage figure of growth in those as a basis to project future growth.[73]We have therefore considered the evidence which the claimants have referred us to, which they say support a finding that such a level of growth as likely.[74]We have considered the table provided by the claimants which is based upon their reported profit for tax purposes from 2012 until 2024[75]We accept the respondent’s criticism of the figures, that there is only one tax return provided, and that is for the year 2016, but the respondent does not challenge these figures.[76]We find this fact that these are true figures of the reported profit for each appropriate year in respect of the claimants’ taxi driving business.[77]Our findings of fact in our liability judgement, are of specific acts of race discrimination impacting both claimants from about 2016-7. Whilst we found acts of discrimination by members of staff before that, the claimants were not aware of the details, although they may have had some suspicion until they received disclosure of data following a subject access request in 2018.[78]None of our findings of fact from the liability hearing and none of the evidence presented to us today supports a finding of fact that the discrimination which we have found proven impacted on the earnings of either claimant prior to 2017.[79]We have made findings of fact about the impact that discrimination had upon the claimants and in particular on their feelings about working on the taxi rank and their concerns about doing so.[80]Taking into account all findings of fact the liability hearing and bearing in mind the evidence given by the claimants to us today, we find that from 2017, until the hearing of this case, that both claimants did reduce the number of hours which they worked as taxi drivers and that the reduction in the hours worked was as a direct result of discrimination.[81]What we do not have before us is any evidence in a statement or in another breakdown from either claimant, about statement from either of the claimants about how many days or how many hours fewer they think they worked, because of the discrimination they suffered, than they would ordinarily have worked had there been no discrimination.[82]We are aware and do find that they did not attend at the rank as often as they would have wanted to, and that part of their reason for not attending at the taxi rank was the racist and aggressive behaviour of other taxi drivers. This of course, whilst abhorrent behaviour, is not behaviour which the tribunal had any jurisdiction to rule upon and therefore we can make no award for any reluctance to work arising from that in itself. What we can do, is consider making awards for the discriminatory acts of the local authority, being the failure of the local authority to deal with the claimants complaints about racist behaviour that he suffered at the hands of other drivers.[83]On the second day of hearing Miss Akinleye gave evidence and was given permission, without objection from the Respondent , to refer to and rely upon a document she and Mr Olumade had produced overnight.[84]In particular she accepted that in order to reach the figures that they were asking for, an uplift or increase of earnings of 19.2% had been applied year on year.[85]She suggested that this was a reasonable expectation and that but for the treatment they had received from the respondent this is what they would have expected.[86]We accept that this may have been a hope or expectation for a business, but it is not supported by the evidence we have before us. We have no evidence that , just because there had been growth at that rate when the couple started their taxi business, that there would have continued to be the same level of growth year on year, or that it would be reasonable to expect it.[87]We have no evidence to support the claimant’s assertion that it would have done.[88]We accept as an industrial jury, that constant racist behaviour of other taxi drivers, undermining the claimants, making complaints about them and harassing them at the rank, would impact the claimants, and may well reduce the amount of work they wanted to do, or their opportunities for other types of work. We also accept about the treatment of the claimants complaints by BDBC officers impacted on their confidence in doing certain types of work and consumed a great deal of their time.[89]If the behaviour of the respondent which we have found discriminatory had an impact on the claimant’s ability to earn, they must explain what that impact was, and hey It is not enough to say, as they do, we were earning this amount before the discrimination , we expected our business to grow, it did not do so, and therefore it must be the result of the discrimination you have found proven.[90]Even were we to accept the claimants submissions and evidence as to the level of growth they may have expected in their business , we have no evidence that can assist us in assessing the impact of any of the discriminatory treatment we have found proven. In effect the claimant’s assertion is that they expected their business to grow year on year by 19.2%; it did not grow by that amount; they suffered racism and therefore the racism must be the cause of them not growing their business. We do not accept this as a valid proposition. We simply do not have sufficient information to draw the conclusions which the respondent which the claimant urges upon us[91]However the information provided by the claimants does provide a basis 4 making findings of fact about differences in earnings year on year.[92]We have considered the reduction in profit year on year as recorded in the table of profits for both claimants from 2016 to 2024. This is at page four of the schedule of loss and preparation time short bundle.[93]We recognise that in this case calculation of loss of earnings is not an easily quantifiable figure and that there is an element of estimation within our calculation. We remind ourselves that in calculating the amount to be awarded for discrimination, the amount that we can award as compensation corresponds to the amount which could be awarded by the county court. (see paragraph 124 Equality Act 2010 and paragraph 119 Equalities Act 2010.)[94]This in turn means that the court has power to award any remedy that could be granted by the High Court for proceedings in tort on judicial review and has power to award compensation for injured feelings[95]We make the following findings of fact relevant to calculation of loss of earnings.[96]We find that from in the years 2013, 2014, 2015 and 2016 Mr Olumade earned an average of £11,681. We reached this figure by adding up the four amounts recorded as profit in those years and dividing by 4.[97]We find that in the years 20/17/18 and 19, and the years 2223 and 24 he earned an average of £4988.[98]We are discounting the years 2020 and 2021 because those were the years primarily affected by the COVID pandemic. We find that all taxi drivers were adversely affected and that the income in those years is an anomaly and not helpful in considering what might have happened in other years.[99]This means that over the six years following the start of the discriminatory course of conduct about which we have made findings, Mr Olumade earned, on average, £6,500 per annum less than in previous years.[100]Had the claimant’s income remained similar to his average income in preceding years, the claimant might have expected to have earned an additional £39,000.00 during that period of time.[101]We accept that it is his opinion that his income would have increased year on year, but we find , from the evidence he has presented including that of two other local taxi firm with which he compares his work, ABC Transport and Oak View, that this is not proved on balance of probabilities.[102]In particular we find that the income for both the claimants and both of the two taxi firms, reduced by significant amounts between 2023 and 2024. This could be due to a range of factors, but we find that the move towards electric vehicles and the aging demographic of drivers, as is set out in the Respondent’s report regarding the provision of grants for EV taxis, were both factors in the income levels earned.[103]We have considered therefore whether the claimants have proven any loss, how much that loss is, and how likely it is that any of the reduction in income relied on by the claimants arises from or is attributable to the discrimination that Mr Olumarde or Miss Akinleye suffered.[104]We have taken into account that during the relevant period of time both claimants spent a great deal of time working to prepare this case, and that inevitably had some impact on the availability of both claimants to be working. However, we also find that We also take into account the evidence we have heard that both claimant’s have, in the latter years carried out additional study and have obtained law degrees. This may explain the lower income, but both are choices made by the claimants. The claimants chose to represent themselves, and we have made an award in respect of preparation time below.[105]We do accept the evidence of both claimants that the racism that we have found was part of the reason why they did less work at the rank. In Mr Olumarde’s case, his ability to work, whether through avoidance of the taxi rank; inability to work or curtailment of the types of work he felt safe to carry out, arose from discrimination in part and has impacted his earnings. On the basis of our findings, we conclude that half of the loss of earnings we have found, was, on balance of probabilities, attributable to the discrimination we have found proven.[106]We have considered the figures we have and estimate that an average taxi journey of a short nature would be £10 to £12 ,which, on our figures would mean Mr Olumarde had lost about 2000 journeys, or about 6 fares a week. We find that whist this is an estimate, it is one which flows from the figures we have found.[107]We find that the annual loss for Mr Olumade is £3250.00. We conclude that these losses continued up until the hearing and award 11.5 years of lost earnings. Therefore, the loss over 11.5 years is £37,375.00[108]Therefore, we conclude that the correct award is of total lost profit of £19,500 over the 6 years.[109]Carrying out the same calculation for Ms Akinleye, we find that between 2013 and 2016 her average earning per annum was £9988; that following 2016 and excluding 2020 and 2021 for the effects of COVID the average earnings were £3799; meaning that across the six years there was an average loss of £2389 pa (the difference between the two) , or a total loss across 6 years of £14,334.[110]We consider it appropriate to award half that loss as lost earnings, flowing from avoidance of the rank, lost days due to stress, or reduced fares due to avoiding certain types of work because of reasons linked directly to the racist behaviour we have found proven.[111]An example relevant to both cases, is the avoidance of the rank for fear of being complained of or attacked and then having no recourse, fear of being picked on for inspections by officers, or BDBC officers refusing to investigate any issues they raised.[112]We therefore award Ms Akinleye the sum of £7,167.00 as lost earnings up until the end of 2019. This is an amount of £1194.50 per annum.[113]We award that loss continuing until the date of this hearing . That is a period of 11 ½ years. This amounts to £13,736.75.[114]We recognise that this is very far from the amounts that the claimants have each claimed. We have reminded ourselves that it is for the claimants to prove their losses.[115]We have taken into account the real difficulty that they both face in this case, because the losses of a self-employed taxi driver over many years are always going to involve an amount of speculation and guess work.[116]In this case, we do not accept the figures put forward by Mr Olumade can be valid starting point for calculation , because they do not have any basis in any facts we can find. We do not criticise the claimants , but do not accept the premise that they would have grown their business as they suggest absent discrimination the BDBC.[117]They would still have faced the discrimination by other drivers. Even if BDBC had acted as they should have done to deal with that racism, we have no evidence to assess the increase in the number of fares that may have allowed. Even without the unpleasant investigations into conduct, it seems likely that the contract with the school would have been lost, for example.[118]Whilst we do not doubt that both claimants would have worked hard to grow their business, we do not have the evidence and therefore cannot make finding of fact to be able to draw the conclusions they urge upon us.[119]We conclude as we do, because we conclude that the figures we do find, represent a reasonable attempt to calculate loss of earnings attributable to the discrimination . Interest on loss of earnings (Past and aggravated)[120]We have taken the mid point between 2016 and the date of todays hearing, based on 1565 days. We use this point for calculating interest, for same reasons as set out above. Future loss of earnings[121]In respect of future loss of earnings, we find that but there will be some a continuing loss, at a similar annual rate.[122]We find that the claimants did take steps and have continued to take steps to try to mitigate their losses. They are now and have been at points in the past in receipt of Universal Credit and that with that comes an obligation to continue to seek work. We find that the claimants have both undertaken additional study and we also find that they have spent a great deal of time focusing on this particular claim.[123]Nonetheless we accept their evidence that they have continued to suffer loss because of the effects of ongoing discrimination, and we consider that the respondent’s suggestion that they have not mitigated any losses is not sustainable on the evidence before us, and we reject it.[124]We therefore award lost earnings to Ms Akinleye for a further period of 2 years from the date of the liability hearing of , £2389.00 .[125]We award future loss of earnings to Mr Olumade for the same period, of £6500.00 Aggravated Damages[126]We find as fact that the respondent has taken no action whatsoever under its own internal employment policies in respect of either Mr Draper or Mr Wake despite the tribunal having made findings both individuals liable for acts of race discrimination. Mr Draper in particular was the senior officer during many of the events described by the claimants and in respect of which the tribunal made findings of discrimination .[127]Mrs Derby, who took up a post with the respondent sometime in October 2024 came to the tribunal to give evidence.[128]She told us and we accept that it had been decided by senior management that no action would be taken against either Mr Draper or Mr Wake under the council's own disciplinary policies. She accepts that both the disciplinary policy identifies race discrimination as an act of gross misconduct for which disciplinary action would usually be appropriate.[129]She also accepts and we find that the BDBC's own equality and diversity policy suggests that action will be taken to address acts of race discrimination, or any other form of discrimination.[130]She confirmed that the council has taken action in that they instituted 3 hours of mandatory training for all staff on conscious inclusion.[131]Further she told us that the respondent has reviewed the processes within the licencing department and that there is an intention to put in place further CCTV at the taxi rank in the near future.[132]The respondent has also issued an apology. We have been referred to it and agree with the claimants, as Miss Derby was obliged to also agree, that the apology does not mention race discrimination at all, but refers simply to mistakes made. This is not an apology for years of discriminatory conduct on grounds of race by officers of the council.[133]Further the statement made in the press by the council does not acknowledge the findings of serious race discrimination.[134]We accept the claimant’s evidence and the evidence in the bundle that the claimants were distressed to see comments made by members of the public in response to the article in The Gazette. The comments were negative about both claimants and the claimants considered, fairly in our view, that the manner in which the respondent had written about this issue may have encouraged the negative and unpleasant comments.[135]We remind ourselves of the guidance from Court of Appeal in Alexander v Home Office 1988 ICR 685, CA, that aggravated damages can be awarded in a discrimination case where the defendants have behaved ‘in a high-handed, malicious, insulting or oppressive manner in committing the act of discrimination’. That guidance has been expanded on by Mr Justice Underhill, then President of the EAT, in Commissioner of Police of the Metropolis v Shaw 2012 ICR 464, EAT, There he identified three broad categories of case where aggravated damages might be appropriate:a. where the manner in which the wrong was committed was particularly upsetting. This is what the Court of Appeal in Alexander meant when referring to acts done in a ‘high-handed, malicious, insulting or oppressive manner’b. where there was a discriminatory motive — i.e. the conduct was evidently based on prejudice or animosity, or was spiteful, vindictive or intended to wound. Where such motive is evident, the discrimination will be likely to cause more distress than the same acts would cause if done inadvertently; for example, through ignorance or insensitivity. However, this will only be the case if the claimant was aware of the motive in question — an unknown motive could not cause aggravation of the injury to feelings, andc. where subsequent conduct adds to the injury — for example, where the employer conducts tribunal proceedings in an unnecessarily offensive manner, or ‘rubs salt in the wound’ by plainly showing that it does not take the claimant’s complaint of discrimination seriously.[136]We have taken into account the facts of the judgment in Driscoll v News Group Newspapers ET Case No.3202077/07 And in British Telecommunications plc v Reid 2004 IRLR 327, CA. In the first case the employment tribunal found that a number of individuals at the top level of management at the News of the World had behaved in a bullying manner towards D over a long period of time, and there were acts of disability harassment. All of this amounted to high-handed and oppressive behaviour, justifying an aggravated damages award of £10,000, in addition to an award for injury to feelings of £25,000. the Court of Appeal confirmed that an employment tribunal had been entitled to treat the promotion of an employee, E, whom the claimant had accused of race discrimination, as high-handed conduct by the employer. The tribunal took into account the fact that E had gone unpunished and had remained in his job, and the Court found it ‘striking’ that E had been promoted, given the circumstances.[137]The facts of Commissioner of Police of the Metropolis v Shaw (above), in which Underhill P set out categories of different aggravated behaviour, provide an example of aggravating conduct in the manner in which the wrong was committed. The claimant in that case reported dishonest conduct by a colleague and, as a result, was suspended on unfounded disciplinary charges, which were collusively supported by a more senior officer. The employment tribunal found that the instigation of those disciplinary proceedings was an unlawful act, being a detriment to which the claimant was subjected for having made a protected disclosure. It awarded £17,000 for injury to feelings and £20,000 aggravated damages. The EAT allowed an appeal against that award but agreed that there were aggravating factors and so substituted a total award of £30,000 for injury to feelings including aggravated damages. One of the aggravating features it thought relevant was that the very officer about whom the claimant had made the protected disclosure escorted him from the building when the disciplinary proceedings were brought against him. It also had regard to the absence of any subsequent apology or of any action against the colleague or the senior officer who had supported him.[138]We have reviewed our judgment, and we remind ourselves however to focus on the way the discriminatory acts we have found were carried out, or on the way that proceedings have been conducted.[139]Both claimants have set out in their schedule of loss significant details of the impact of actions of the respondent on them. They have described hurt feelings being undermined and overlooked and incidents eroding faith in an unbiased process Mr Ali Mahdi refers to the use of the pace interviews in March 2018 for example and the difference in his treatment compared to that of other white drivers leading him to conclude that he had been unfairly targeted due to race. He says but the experiences left him with a diminished sense of dignity and a profound erosion of trust in institutions meant to uphold fairness he described the biassed actions of the council was inflicting significant emotional harm on him and his family.[140]We take account of what has been said within the schedule of loss and the award we have made in respect of injury to feelings is reflective of the seriousness with which we view the respondent counsels treatment of both claimants. Whilst we don't agree with the claimants that each individual act of discrimination should attract an individual and separate award for injury to feeling we do accept that the course of conduct over a long period of time has had a hugely detrimental impact on both the claimants.[141]However when considering aggravated damages, we are looking at a specific type of behaviour.[142]In this case we must consider whether the manner in which Mr Draper in particular conducted proceedings was high handed, rather than whether the acts of discrimination which we have found proven caused the claimants distress.[143]We have made findings about his actions when the ET claim first came to the attention of Mr Draper. Instead of passing this to the legal department or HR, as he knew he should have done, he responded in person to the ET, stating that the Claimants had no grounds on which to bring a claim. He failed to follow the BDBC’s own procedure, and his response caused delay and further distress to the claimants. We found as fact that he must have known that the claimants, as taxi drivers, did have the right to bring a claim of discrimination to the tribunal, and that he knew that he should not have personally responded to a claim to the ET.[144]Second , we found that there had been a bizarre redaction of a documents, in that there had been a redaction of a comments section in which nothing had been written.[145]Whilst we did not find as fact that this was Mr Draper, we did find that it was member of the Respondent staff, and that it was done to conceal from both the Claimants, but also the ET, the fact that nothing had been written. We remind ourselves that this was concerning a serious complaint made by Mr Olumade that he had been threatened with violence at the taxi rank, and that this was a racist attack, and that there was video evidence which Mr Wake accepted he had seen and heard. The lack of any action by BDBC to try to address such an action by someone in their employ, was extraordinary, and a stark contrast to the way that some complaints were investigated by BDBC when the subject of them was Mr Olumade or Miss Akinleye.[146]Further we have reminded ourselves of our findings of fact about Mr Drapers behaviour toward the claimant Ms Akinleye, in inspecting her vehicle, and in particular, that we made findings about the his behaviour to her , and his reasons for the behaviour. We have reminded ourselves of our findings regarding Mr Draper’s behaviour and actions following the Mr Olumade declining to speak to him, in pushing for action against Mr Olumade, , and suggesting that he, Mr Draper, had been the victim of race discrimination. We conclude that all of these are instances of high-handed behaviour.[147]Further, there are aggravating factors, in the respondents complete failure to take any action at all against the perpetrators. On their own evidence the decision not to take any disciplinary action against either Mr Wake or Mr Draper, and therefore not to deal with acts of race discrimination committed by Mr Draper by way of disciplinary investigation, let alone a sanction was made at highest level. He was the senior officer in licencing whilst many of these events took place, yet there has been no action or sanction against him at all. The council have declined to engage with the serious findings of the employment tribunal other than by imposing 3 hours of equality training on all officers. This refusal to acknowledge any wrongdoing or any validity in many of the grievances raised by the claimants over many years is shocking to the[148]We have no hesitation in accepting both the claimants evidence that, after so many years of trying to get recognition of their complaints that this lack of any recognition, and lack of any real action to address any of the matters found proven by the Tribunal , aggravated the hurt and upset experienced by both claimants.[149]In considering whether it is appropriate to make an award for aggravated damages we have also taken into account the apology that was provided.[150]We all agree that the apology is the minimum and given the seriousness of the findings we made is inappropriate,. It fails to make any reference at all to the fact that the tribunal made findings of significant and long term race discrimination against two of its licenced drivers, by a number of officers of the council, over a number of years. There is no apology or recognition by the BDBC that this was anything other than a mistake. We do not accept that that is a fair characterisation of the majority of the issues found proven, or of the judgement of this employment tribunal overall.[151]It is also notable that Mr Draper himself has not apologised to the claimants, following the judgment.[152]Public bodies, and licensing authorities have particular obligations not just to the public they serve, but also to the customers of the taxis they license. Those duties include ensuring that those who provide services are not carrying out their duties in a racist manner, and that they take action when some officers are found to have done so[153]Taking into account our findings about the high-handed nature of some of the acts of discrimination, coupled with the subsequent conduct of and lack of action by BDBC, who are corporately liable for that discrimination, we conclude that this is a case where an award for aggravated damages should be made.[154]We award each claimant the sum of £7,000 each for aggravated damages.[155]Other heads of claim Personal Injury and Health Injury[156]This is not a claim where there is a separate personal injury claim, so we cannot award compensation for “Physical Injury and Health Injury”. A personal injury claim could have been brought as part of a claim for discrimination but would need cogent supporting medical evidence.[157]We agree with Respondent Counsel, that the Claimants have not provided evidence which would support an award in respect of personal injury in any event.[158]The evidence provided within the bundle under the heading “Medical – OA” and “Medical – AO” at pages 160-179 of Claimants’ bundle, does not include medical reports addressing the cause of the Claimants’ medical conditions, for example. Mr Olumade refers in one paragraph of his witness statement to his medical issues, and whilst we accept that he has had health problems, we have no evidence from him which could enable us to determine what the cause of any ill health was, and in particular, whether any discrimination we have found caused or contributed to the illness, or made it worse for example.[159]We agree with the Respondent counsel that the Tribunal does not have jurisdiction to award compensation for “Unlawful Interference with Business”, “Unfair Competition”, “Loss of Chance” and Loss of Goodwill” [pp. 8-9 & 13-14 of Schedule of Loss bundle]. We therefore make no award in respect of those matters.[160]There is a claim for “Stigma Damage” arising from taking the First Respondent to the tribunal. While such a loss is recoverable in principle, in Abbey National plc v Chagger [2010] ICR 397, the Court of Appeal stated that it would be wrong for a tribunal to infer that an employee will suffer widespread stigma purely from his or her assertion to that effect or from suspicions that this might be so. In other words, there needs to be cogent evidence. The respondent assert that there is none before the[161]In huh witness statement to the tribunal in support of remedy miss Akinleye sets out a number of the incidents over the years which she says amounted to baseless allegations of rudeness; different treatment and vitriolic and oppressive behaviour by council officers. She refers to Mr draper's interference with false inspections of her vehicle leaving her two unsettled to work and leading to the loss of taxi fares.[162]Mr Olumade also refers to Mr draper's aggressive interrogation in 2017 the interference with Hampshire County Council contracts by Mr wake the threat of formal action without any evidence, and the loss of business opportunities.[163]These are all factors which we have taken into account when considering the award of injury to feeling and the level of the appropriate award.[164]With regards to stigma Mr Olumade says that he is stigmatised because he must disclose licence issues to neighbouring councils and that press coverage of the ET judgement has damaged his reputation. Whilst we find that there has been some unpleasant commentary on line, following reporting of the judgement, and respect of the outcome of this claim, we have not seen the details. In the schedule of loss the claim the stigma damages states that there is an inability to move to any other councils outside Basingstoke and Deane borough council in Hart district saying taking BDBC to ET have hindered our ability to move to neighbouring councils as a new Hackney carriage driver to start afresh.[165]We have no evidence from either claimant of attempts to gain licences from other councils which have been affected or prevented and no mention of this is made in the evidence in chief of either claimant.[166]Whilst we do not underestimate the hurt and suffering of both claimants experienced as a result of the matters that they complained about and the need to bring the claim to the employment tribunal, we all agree that the awards we have made in respect of injury to feeling and aggravated damages properly address the hurt and suffering.[167]We do not find that there is any additional stigma in respect of which it would be appropriate for us to award damages and we do not do so.[168]The claimants claim for the expenses incurred by attending investigations. In his schedule of loss Miss Akinleye claims a figure of £5329.00 in respect of attendance at BDBC investigations and hearings.[169]Mr Olumade claims a figure of £5541.00. for attendance at hearings.[170]Neither claimant have addressed this at all in their witness statements and we have not been referred to any breakdown or explanation of how this figure is calculated.[171]Whilst the tribunal has the power to award damages for anything which flows from acts of discrimination we remind ourselves that it is for the claimant to satisfy us that a figure claimed does in fact flow from discrimination, and not merely assert that it does. This requires some explanation of figures claimed and some explanation as to why attendance at an investigation was caused by an act of discrimination found by the employment tribunal.[172]In the absence of such evidence we have not been able to make any relevant findings of fact and do not therefore award any figure in respect of this head of loss. Preparation time order[173]We turn to the question of a preparation time order.[174]The claimants each claim for all their costs, from the point they decided to issue proceedings up to and including todays hearing . Both claimants have self-represented throughout, and therefore make a claim for a preparation time order. The respondent resists the application.[176]We remind ourselves that can make a preparation time order on the same basis as we can make a costs order, and further remind ourselves that the ET remains a cost free jurisdiction ,with each party bearing their own costs, unless one of the exceptions set out in the rules applies.[177]The grounds for making a Preparation Time Order (“PTO”) under Rule 74 of the 2024 Tribunal Rules are identical to the grounds for making a general costs order against a party. Therefore, before making any order, the tribunal has to be satisfied that one or more of the following grounds have been established:(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted,(b) any claim, response or reply had no reasonable prospect of success, or(c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins.[178]As to the amount of a preparation order (Rue 77):(1) The Tribunal must decide the number of hours in respect of which a preparation time order should be made, on the basis of— (a) information provided by the receiving party on the preparation time spent, and (b) the Tribunal’s own assessment of what it considers to be a reasonable and proportionate amount of time to spend on such preparatory work, with reference to such matters as the complexity of the proceedings, the number of witnesses and documentation required.(2) The hourly rate is £44 and increases on 6 April each year by £1.(3) The amount of a preparation time order must be calculated by multiplying the number of hours assessed under paragraph (1) by the rate under paragraph (2) which is applicable to the year beginning 6 April in which the preparation time was spent.[179]“Preparation time” means: ‘time spent by the receiving party (including by any of the receiving party’s employees or advisers) in working on the case, except for time spent at the final hearing” (Rule 72).[180]It remains the case that costs orders are exceptional in the employment tribunal; We accept the respondents submissions that in 2023-24, they were awarded in just 192 cases, which was therefore significantly fewer than 1% of cases . This reflects the guidance from the Court of Appeal that such orders remain exceptional and that they are compensatory, not punitive (Gee v Shell UK Ltd [2003] IRLR 82). This does not mean awards should not be made at all.[181]The first stage is therefore to identify whether or not we have made any findings of fact of unreasonable conduct by the respondent, or their representatives, either in bringing the proceedings ( In this case by defending the proceedings ) or in the way that the proceedings have been conducted.[182]We have also considered whether this is case where it could be said that there were no reasonable prospects of the response succeeding.[183]Dealing with the second point first. We all agree that whilst there were no doubt opportunities for the respondent to take a different approach to this case, the claims made by the claimants were not altogether clear and required a significant amount of case management. This is not a criticism of the claimants, but it is a recognition that what may seem very clear to the claimants at the outset was not clear either to the respondents or to the employment tribunal judges who dealt with this at an earlier stage.[184]Once the issues had been identified following, a number of case management hearings, it is certainly arguable that the respondent must have had a much better idea of the relative merits of the case.[185]However despite the findings that we have made, having had the benefit of a lengthy hearing with cross examination of a significant number of witnesses and close analysis of a lengthy bundle of documents, it is not possible to say that any of the allegations the claimants made had no reasonable prospects of succeeding.[186]Had the respondents carried out proper investigation of many of the claimants later complaints, it seems to us that they must have considered the possibility that the claimants would succeed in respect of at least some of their claims, but this is not the same as saying that, at the outset, the claims had no reasonable prospect of succeeding. This was case where the claimants relied on hypothetical comparators and where the tribunal reached many of its conclusions by the drawing of inferences and the application of a shifting burden of proof.[187]We have therefore considered whether or not a party or parties representative have acted vexatiously, abusively, disruptively or otherwise unreasonably in the bringing of the proceedings or the way the proceedings or part of it have been conducted.[188]We do not consider that any of the submissions made by the claimants point towards vexatious; abusive or disruptive behaviour by the respondent’s representatives.[189]The respondents were entirely justified in instructing solicitors to act for them and whilst the claimants are right that there may not have been attempts to settle the claim, there is nothing specific that they point to about the way the defence of the claim was managed which can support any such finding.[190]We have therefore considered whether the respondent either corporately or any of the named individuals acted unreasonably in the way that the proceedings or part of it have been conducted.[191]We refer back to the findings of fact we made and in particular the findings of fact we made about the behaviour of Mr Draper.[192]We find that he did act unreasonably in the way that he conducted these proceedings firstly by his response to the initial claim brought by the claimants. We have made a finding to this effect which is set out at in the employment tribunal judgement.[193]We refer to paragraphs 252 to 254 of our judgement in respect of the redaction of documents and further the findings set out at paragraphs 554 to 556 in respect of a specific document and the redaction of it.[194]We reject the submission of the respondent that the claimant would not have known that the claimants had rights under the Equality Act 2010 and this was not the finding that we made. Our finding has not been appealed.[195]We also consider that there was unreasonableness by the respondents in the redaction of a number of documents, and we have made specific comment in respect of one document. However, the redaction of documents was an issue in respect of numerous documents and, as we have observed, it caused the claimants further difficulty in identifying individuals who had complained about them. Unredacted documents were provided to the tribunal, but not until the hearing itself.[196]We bear in mind that we cannot award of preparation time order for time spent at the final hearing, but we can take into account that the claimants made a number of applications in advance of hearing for unredacted documents, and that the provision of the unredacted documents during the course of the final hearing required them to spend additional hours of preparation.[197]In any event, our finding was that the redaction of the documents in many instances was wholly unnecessary. We consider that this was supported by the limited rule 50 order made in respect of privacy of individuals in relation to those documents , which has not been appealed, following an application by the respondents.[198]We have also considered findings we have made about the truthfulness of some witnesses and the evidence given to the employment tribunal.[199]We found that Mr Draper deliberately lied to the employment tribunal, about his reasons for attending at the taxi rank. We made findings at paragraphs 1125 -1126 and paragraph 1311 in this respect and at 1311 found that none of the respondent witnesses who had been asked about the meetings had told the whole truth to the tribunal.[200]Mr Olumade and Miss akinleye set out in some detail the paragraphs that they rely upon as indicating unreasonable behaviour[201]We agree that the behaviour that we identified at paragraph 915 to 920 of our judgement in respect of the response to the employment tribunal was unreasonable behaviour . Our specific finding at 920 was that this was a deliberate attempt to put an end to the claim and a deliberate effect attempted to conceal the fact of the claim.[202]Further we agree with the claimant that our findings about Mr Draper's evidence at paragraphs 1151-1152 in respect of his inspection of Miss Akinleye’s vehicle, is that he was not telling the truth to the[203]In their submissions on the application for preparation time order the Claimant’s have referred to a number of findings made by the tribunal about the actions of Mrs Cannon. We made clear findings which were critical about the view that Mrs Cannon had of the claimants, and Mr Olumade in particular . We did not find her evidence convincing and as a result we drew conclusions and made findings about both her actions and those of Mrs Stevens. We have not made specific findings that Mrs Cannon deliberately lied to the employment tribunal, although we have been very critical of information not being openly given to the tribunal about her reasons for decisions she made concerning the claimant.[204]We have reminded ourselves that the effect of our assessment of her evidence was to make findings of fact from which we drew conclusions that there had been acts of discrimination against the claimants. That of itself does not render the way in which the respondent conducted the proceedings as unreasonable.[205]We also accept that the respondents did not consider that any of the videos provided by the claimant were relevant or necessary for the determination of the applications to be decided. They opposed the claimants application for those videos to be shown to the employment[206]Following applications by the claimants an order was made that the videos should be viewed by the tribunal and those videos were of importance in the tribunal's decision making process.[207]We find that any reasonable competent advisor or member of the Respondent staff, properly viewing of the videos, in particular the video the claimant provided of him being mobbed at the rank, must have realised that they were relevant to the issues being raised.[208]Whilst we recognise that there appears to have been some confusion about which recordings the claimant wished to make available to the employment tribunal and whilst we are aware that we are looking at this matter with hindsight, we do consider that in this case it was unreasonable for the respondent and those representing it, to oppose the claimants application for permission to play those recordings.[209]We agree with the claimants that the respondent’s solicitor, having viewed the video recordings, must have realised that at least one of them was highly relevant to the issues to be determined, as evidence supporting allegations of racist treatment and allegations of a complaint being made and evidence provided, but no action being taken.[210]We find that the objections led to a need for further work by the claimants. Some of this was to clarify the videos they wanted to rely upon, and ultimately they parties were ordered to agree a list of videos and did so. The Claimants had to do extra work, but were able to show the ET the videos.[211]We conclude that this was an incident of unreasonable behaviour. We cannot say whether this was the respondent or the representative acting on instructions , but we consider it was unreasonable.[212]We consider therefore that there is evidence of unreasonableness both by the respondent and the respondents representative to a much lesser extent, in the way that the proceedings or part of them have been conducted.[213]We therefore conclude that this is a case where a preparation order should be made[214]We do not agree with the claimants that this was a claim that had no reasonable prospect of success and we dismiss any application based on that assertion.[215]The second stage in considering a preparation time order, is for us to decide the number of hours in respect of which the order should be made.[216]In order to do this we must consider the information provided by the claimants of the preparation time spent and must make our own assessment of what we consider to be a reasonable and proportionate amount of time to spend on such preparatory work.[217]We must make reference to matters such as the complexity of the proceedings the number of witnesses and the documentation required.[218]We are assisted by the guidance given by Lord Justice Mummery in MacPherson V BNP Parabis London Branch 2004 ICR 1398, Court of Appeal, in which he confirmed that previous case law was not authority for the proposition that costs could only be awarded where they are attributable to specific instances of unreasonable conduct on the part of the offending party.[219]The link, if any, that must be established between unreasonable conduct and actual costs incurred, was considered by the EAT in the case of De Silva v NATFE and others 0126/ 09/ EAT.[220]The court in that case stated that once a finding of unreasonable conduct has been made, the question of costs is a matter within the discretion of the tribunal.[221]Subsequently in Salinas v Bear Stearns International Holdings Inc and another 2005 ICR 1117 the Employment Appeal Tribunal stated that there was no requirement to identify with any particularity a causal link between unreasonable conduct and the amount of costs awarded. 222. in Yaraklava V Barnsley metropolitan council and another 2012 ICR The Court of appeal stated that whilst it would be wrong to require a tribunal to determine whether or not there was a precise causal link between unreasonable conduct and the specific costs being claimed, that did not mean that causation was irrelevant when deciding the amount of costs.[223]Lord Justice Mummery emphasised that the tribunal has a broad discretion and should avoid adopting an over analytical approach. The vital point in exercising the discretion toward costs, is to look at the whole picture of what happened in the case and to ask whether there's been unreasonable conduct by the respondent in conducting the case and to identify the conduct and the effect that it had.[224]Applying that guidance to this case we conclude that some but not all of the conduct identified by the claimant was unreasonable conduct, that the conduct did have an impact upon the preparation of the claims and inevitably involved both claimants in additional preparation time.[225]Having reviewed matters we are satisfied that much of the conduct complained of by the claimants,, with the exception of Mr Drapers initial response to the claim, only impacted on specific aspects of the case and that the majority of the work the claimants did would have been required in any event.[226]We have looked at the claimants careful list of work done and accept that it is an honest assessment of the occasions on which they carried out work. but for the reasons set out above, we do not award the entire amounts sought by the claimants.[227]We note that there was work done in April and May 2023 in respect of audio and Visio video disclosures and that matters were dealt with at preliminary hearings and case management orders were issued. We consider that the claimants could reasonably have spent five hours preparing to deal with the issue of videos.[228]In respect of the unreasonable conduct of Mr Draper, the response ask for a strike out of the claimants application. This was on the basis that the tribunal had no jurisdiction. The claimants were put into the trouble of responding to this matter when, had it been dealt with properly, through the correct channels, the legal team would have known that the claimants had the right to bring such a claim and that the employment tribunal had jurisdiction to deal with it. The claimants were put to additional work and we accept that they had to respond to the application and deal with it at a preliminary hearing. We do not accept that this would have taken them 20 hours but do accept that a proportion of the time they spent would have been attributable to this matter and we allow 10 hours in respect of this matter and in respect of the matters that arose during the course of the hearing.[229]The claimants had to prepare their own witness evidence; this involved analysis of documentation; they had to prepare their own cross examination on these matters and we accept that these matters would have taken a significant amount of time. The preparation of the matters which we have found to involve unreasonable conduct may well have taken the claimants between them two to three days of work , and we consider that a reasonable amount, bearing in mind the information they have provided and our assessment of what is reasonable and proportionate, is 25 hours preparation time in total.[230]In total then we make a preparation time order in favour of the claimants of 50 hours work each[231]At the rate of £44 per hour, this is a total sum of £2,200.00. Interest Approved by: