Mr Zakaria Kioua v Lainston House Ltd: 1403090/2018
EMPLOYMENT TRIBUNALS
Case No 1403090/2018
Between
Mr Zakaria KiouaClaimantLainston House LtdRespondent
Before
Employment Judge DawsonMrs Bow for claimantMr Williams (instructed by solicitor) for respondentDate 7 August 2020
JUDGMENT
[1]The Claimant was, from June 2017, disabled because of depression and anxiety. JUDGMENT[2]The claimant’s claim of harassment related to religion or belief contrary to section 26 of the Equality Act 2010 succeeds. The remaining claims of harassment, direct discrimination, failure to make reasonable adjustments, victimisation and constructive dismissal fail and are dismissed. In respect of the successful claim of harassment, the Respondent is ordered to pay to the claimant the sum of £2000 in respect of injury to feelings, together with interest at the statutory rate of 8% from 8 May 2018, in the sum of £294. The total sum the Respondent is ordered to pay the Claimant is £2,294.
REASONS
[1]Evidence The Tribunal heard from the claimant, from his wife and representative Mrs C Bow, and for the Respondent from Patricia Lee, Housekeeping Manager, Samantha Davis, Human Resources, James Webb, Operations Manager, Miranda Russell, Deputy Head Housekeeper, and Gaius Wyncoll, then General Manager. The Tribunal read the documents in the bundle referred to and heard the transcript of the interview between Mr Webb and Mr Kioua on 18 April 2018[2]Issues 2.1. The claimant claims direct discrimination and harassment on the grounds of race and religion, victimisation, failure to make reasonable adjustments in respect of disability and constructive unfair dismissal. There are issues in respect of the time limits for the claims brought. 2.2. Judgment was given on 30 April 2019 that the claimant was disabled by reason of anxiety and depression. 2.3. The claim was amended to include constructive dismissal on 22 November 2019, following the claimant ’s resignation in September 2019. 2.4. The issues were clarified on Monday 16 March to re-word the claim in respect of reasonable adjustments for disability. 2.5. The issues before the Tribunal to decide are now as set out below. The numbering reflects that in the Orders, for consistency of reference. “9 Section 26 Harassment on grounds of Religion (from the Order of Judge Dawson 30 September 2019) 9.1. Did the Respondent engage in unwanted conduct as follows: 9.1.1. At the meeting on 8 May 2018, being the grievance meeting in 9.1.1.1. Comparing the Claimant ’s religion to a nut allergy. 9.1.1.2. Attempting to explain away what happened in respect of the raffle prize by reference to the Claimant ’s religion. 9.1.1.3. Failing to investigate the Claimant ’s allegation of theft in relation to the swapping of the cognac for chocolates. 9.1.2. Following the grievance, fabricating an explanation that the decision to swap the cognac for the chocolates was a management decision. 9.1.3. In the response to the appeal against the grievance implying that the Claimant had been wrong to bring the grievance. 9.2. Was the conduct related to the Claimant ’s protected characteristic? 9.3. Did the conduct have the purpose of violating the Claimant ’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him? 9.4. If not, did the conduct have the effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him? 9.5. In considering whether the conduct had that effect, the Tribunal will take into account the Claimant ’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.[10]Section 26: Harassment on grounds of Religion and Race 10.1. Did the Respondent engage in unwanted conduct as follows: 10.1.1. In an appraisal on 15 March 2018 Ms Lee falsely recording that the Claimant would monitor laundry and help with the rooms. 10.1.2. Subjecting the Claimant to too many appraisals, at least 3 per year. 10.1.3. Ms Lee singling the claimant out in that he was the only person not permitted to leave work early on the date of the staff party. 10.1.4. Ms Lee leaving the staff rota visible for 3 weeks which showed that he was the only person not permitted to leave work early on the date of the staff party 10.1.5. The claimant was not permitted to use to use the staff restaurant after 5pm from 2 December 2017; the claimant was the only person so prevented. 10.1.6. Ridiculing the claimant on 10 June 2017 (as set out in detail in the Schedule of Complaints,36) 10.1.7. Being threatened on 1 March 2017 by Ms Lee that if oven gloves were sent again for dry cleaning in the future, the Claimant’s salary would be deducted. 10.1.8. When raising the question of workload on 10 January 2017, 16 March 2017 and 1 October 2017 the Claimant was met with a hostile response as set out in allegation 9 of the Schedule of Complaints (41) 10.2. Was the conduct related to the claimant ’s protected characteristic? 10.3. Did the conduct have the purpose of violating the claimant ’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him? 10.4. If not, did the conduct have the effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him? 10.5. In considering whether the conduct had that effect, the Tribunal will take into account the Claimant ’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.[11]Section 13: Direct discrimination on grounds of Religion 11.1. Did the Respondent subject the claimant to the following treatment falling within section 39 Equality Act, namely 11.1.1. At the meeting on 8 May 2018, being the grievance meeting in respect of the swapping of the raffle prize: 11.1.1.1. Comparing the claimant ’s religion to a nut allergy 11.1.1.2. Attempting to explain away what happened in respect of the raffle prize by reference to the claimant ’s religion 11.1.1.3. Failing to investigate the claimant ’s allegation of theft in relation to the swapping of the cognac for chocolates 11.1.2. Following the grievance, fabricating an explanation that the decision to swap the cognac for the chocolates was a management decision. 11.1.3. In the response to the appeal against the grievance implying that the claimant had been wrong to bring the grievance. 11.1.4. Swapping the bottle of Cognac for chocolates by Ms Lee on 9 January 2017 11.2. Did the respondent treat the claimant as alleged less favourably than it treated or would have treated the comparators? The claimant relies upon hypothetical comparators. 11.3. If so, can the claimant prove primary facts from which the Tribunal could properly and fairly conclude that the difference in treatment was because of the protected characteristic? 11.4. If so, what is the respondent’s explanation? Can it prove a non-discriminatory reason for any proven treatment?[12]Section 13: Direct discrimination on grounds of Race and Religion 12.1. Did the respondent subject the claimant to the following treatment falling within section 39 Equality Act, namely 12.1.1. In an appraisal on 15 March 2018 Ms Lee falsely recorded that the claimant would monitor laundry and help with the rooms. 12.1.2. Ms Lee subjected the claimant to too many appraisals, at least 3 per year 12.1.3. Ms Lee singling the claimant out in that he was the only person not permitted to leave work early on the date of the staff party. 12.1.4. Ms Lee leaving the staff rota visible for 3 weeks which showed that he was the only person not permitted to leave work early on the date of the staff party 12.1.5. The claimant was not permitted to use the staff restaurant after 5pm from 2 December 2017, the claimant was the only person so prevented. 12.1.6. Being ridiculed on 10 June 2017 (as set out in detail in the Schedule of Complaints, 36) 12.1.7. Being threatened on 1 March 2017 by Ms Lee that if oven gloves were sent again for dry cleaning in the future, the claimant ’s salary would be deducted 12.1.8. When raising the question of workload on 10 January 2017, 16 March 2017 and 1 October 2017 the claimant was met with a hostile response as set out in allegation 9 of the Schedule of Complaints (41) 12.2. Did the respondent treat the claimant as alleged less favourably than it treated or would have treated the comparators? 12.2.1. The claimant relies upon hypothetical comparators in respect of the matters set out in paragraphs12.1.1 and 12.1.6 12.2.2. The claimant relies upon actual comparators 12.2.2.1. in relation to12.1.2 to 12.1.5 and 12.1.8 being Zbigniew Michalik 12.2.2.2. in relation to allegation 12.1.7 the comparator named is “Oliver” 12.3. If so, can the claimant prove primary facts from which the Tribunal could properly and fairly conclude that the difference in treatment was because of the protected characteristic? 12.4. If so, what is the respondent’s explanation? Can it prove a non-discriminatory reason for any proven treatment?[13]Section 27: Victimisation 13.1. Did the Claimant carry out a protected act by 13.1.1. orally alleging discrimination against him in June 2017 13.1.2. alleging discrimination in his grievance 13.2. If there was a protected act, did the Respondent carry out any of the treatment set out in paragraph 9.1.1 to 9.1.3 and 10.1.1 to 10.1.6 13.3. If the Respondent did do the treatment alleged did it amount to a detriment and was it because of the protected act.[14]Reasonable adjustments: section 20 and section 21 14.1 “Did the Respondent apply the following provision, criteria and/or practice (‘the provision’) generally, namely requiring staff to be flexible and to carry a heavy workload.” 14.2. Did the application of any such provision put the claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled in that he was not able to cope with the workload 14.3. Did the Respondent take such steps as were reasonable to avoid the disadvantage? The burden of proof does not lie on the claimant; however, it is helpful to know the adjustments asserted as reasonably required and they are identified as follows: 14.3.1. Lessen the workload 14.4. Did the Respondent not know, or could the Respondent not be reasonably expected to know that the claimant had a disability or was likely to be placed at the disadvantage set out above?[15]Time/limitation issues 15.1. The claim form was presented on 23 August 2018. Accordingly, any act or omission which took place more than three months before that date (allowing for any extension under the early conciliation provisions) is potentially out of time, so that the tribunal may not have jurisdiction. 15.2. Can the claimant prove that there was conduct extending over a period which is to be treated as done at the end of the period? Is such conduct accordingly in time? 15.3. Was any complaint presented within such other period as the employment Tribunal considers just and equitable? 12. Constructive unfair dismissal (from Order of Judge Livesey of 22 November 2019)12.1 The claimant claims that the Respondent acted in fundamental breach of contract in respect of express and/or implied terms of the contract relating to pay reviews and/or mutual trust and confidence. The breaches were as follows:12.1.1 Denial of his right to use his holiday entitlement in April 201912.1.2 Failure to carry out a return to work interview on 21 August 2019 as scheduled12.1.3 A failure to carry out a salary review in April 2019.12.2 Did the claimant resign because of the breach? The respondent runs a positive case in that respect. It asserts that the claimant no longer wished to work for it and/or that he had found alternative employment.12.3 Did the claimant tarry before resigning and affirm the contract? The respondent also runs a positive case in that respect.12.4 In the event that there was a constructive dismissal, the respondent is not seeking to allege that it was otherwise fair within the meaning of s.98 (4) of the Act. (In respect of the claim of unfair constructive dismissal, there is no issue arising in relation to the time limits for the claim.)[16]Remedies 16.1. If the claimant succeeds, in whole or part, the Tribunal will be concerned with issues of remedy. 16.2. There may fall to be considered, a declaration in respect of any proven unlawful discrimination, recommendations and/or compensation for loss of earnings, injury to feelings, and/or the award of interest 3. Findings of Fact 3.1. These are the Tribunal’s findings of fact, including, where conflicts of evidence can be dealt with briefly, findings on contested matters. More complex analysis is to be found under the heading “Reasons”. 3.2. References are to page numbers in the bundle, with “sb” referring to the supplementary bundle. Witness statement references use “ws”. References such as 2/10 indicate oral evidence, with the first number indicating on which day of the hearing the evidence was given. 3.3. The allegations relied on are included in the text for ease of reference. Mr Kioua 3.4. Mr Kioua was born on 18 May 1983. He is of Algerian nationality. He is a Muslim. 3.5. Mr Kioua suffered anxiety and depression from June 2017, a recurrence of an earlier condition. He is a disabled person as identified in the Judgement of Judge Dawson. 3.6. He has qualified as vet elsewhere and was studying for a UK qualification while working for the respondent. 3.7. His spoken English is good without confident command of idiom; comprehension can be less good. The contract 3.8. Mr Kioua’s employment with the respondent began on 11 May 2015 (88), initially as a kitchen porter. On 23 June 2016, his contract changed to describe him as a Linen Porter (91). 3.9. The Respondent operates hotels. Mr Kioua worked at Lainston House, as did the other staff mentioned here. 3.10. Housekeeping teams were drawn from many nationalities. Ms Lee mentioned Romanian, Portuguese, Spanish, Czech, Italian, Polish. She mentioned none from continents beyond Europe. 3.11. Mr Kioua signed his job description on 27 May 2016 (92 – 94), the same day as he signed the amendment to the contract. It sets out the duties of the role as follows, “Working as part of the Housekeeping Team, the Linen Porter will be responsible for stock control of linen in the Hotel and supporting the Housekeeping Team with daily duties” (92). 3.12. Specific tasks referred to include to – “Assist the rest of the team by remaining flexible and covering hours to meet the business needs…. Help clean the hotel when necessary including public areas and bedrooms…” (92) 3.13. On the page that Mr Kioua signed, the last bullet point is, “The above description is not to be regarded as exhaustive. Other tasks and responsibilities of a broadly comparable nature may be added on a temporary or permanent basis, as appropriate.” 3.14. There is provision for changes to the role, for which there will be consultation. 3.15. Mr Kioua denies seeing the first page, which sets out the requirements to help clean the hotel and to remain flexible. That is the basis for his complaint that he was being asked to undertake two jobs at once and that he could have regarded himself as dismissed in spring 2018 for breach of contract (151). It seems unlikely that he would have been asked or agreed to sign a document that did not include the front page. We are satisfied that Mr Kioua was given the complete job description and that his duties as Linen Porter included helping to clean rooms when necessary. 3.16. He accepts that the three-page document is clear – “If they had given it to me, it would have finished the issue about having to do one or two jobs”. (oral evidence 2/10) 3.17. A revised contract was issued in April 2018 (97) and Mr Kioua signed to accept the terms on 14 April 2018. 3.18. In the new contract, it is expressly stated that the respondent does not pay holiday pay outstanding save on termination of employment (98 and 2 supp bundle). Holiday may not be carried forward to the next holiday year unless a period of statutory maternity, paternity or adoption leave has prevented the employee from taking it in the relevant year. The Employment Handbook says, “Untaken holiday entitlement may not be carried forward into the next holiday year, no payment will be made for unused holidays and they will be forfeited.” 3.19. By April 2019, Mr Kioua had a holiday entitlement of 32 days per annum. Policies 3.20. The respondent provides for free staff meals on breaks during their shifts: “You may be entitled to one 30-minute unpaid lunch or dinner break where your meal and drinks will be provided free of charge in accordance with your contractual hours” (61 and 67). 3.21. For sickness, the respondent requires medical certification. 3.22. The respondent has an Equality and Diversity Policy set out in the Handbooks, with Sexual, Racial and Disability Harassment Policies (64, 2016 and 78, 2018). The text includes as examples of unacceptable behaviour anything based on an employee’s protected characteristics and which is unreasonable, unwelcome and offensive. Specifically, it mentions insults or ridicule relating to a protected characteristic and offensive or intimidating comments. 3.23. Misconduct should be challenged, with provision for reporting to more senior managers: “It must be made clear to the person who is harassing you that their behaviour is unwelcome.” (64) 3.24. There is also an anti-bullying policy. “Bullying means offensive, intimidating, malicious or insulting behaviour, or an abuse or misuse of power intended to undermine, humiliate, denigrate or injure a colleague. It does not include legitimate or constructive criticism of your performance or behaviour, an occasionally raised voice or an argument.” (64) 3.25. There had been a system of appraisal, but it was abandoned, and quarterly job chats replaced appraisals. It is not established that the job chats were carried out strictly quarterly. The records produced of when there were job chats are obviously inaccurate. 3.26. The job chat forms produced have little significant content, whether for Mr Kioua or other staff members or from the point of view of the respondent. They are generally positive in their content. Mr Kioua did not raise any issues in them, and the respondent, while having recurrent difficulties over his interpretation of the contract did not highlight or resolve those in the discussions. Mr Kioua’s faith 3.27. Mr Kioua had disclosed his faith at interview but saw it as a private matter. His religious faith was nonetheless known. In June 2017, Samantha Davis sent a note to Patricia Lee to let her know that Mr Kioua was fasting over Ramadan (120). Ms Lee agrees that she was aware of Mr Kioua’s faith before that (WS para 13). He was known to be from Algeria, a Muslim country (oral evidence 2/10), something he had talked to Miranda Russell about and he had talked to James Webb about Ramadan in 2016. He was known not to drink alcohol, and why. 3.28. Patricia Lee was Mr Kioua’s manager from the summer of 2016, with Miranda Russell as Deputy Housekeeping Manager. His main colleague in Laundry until March 2017 was Zibi. Thereafter, he was the only Linen Porter although other staff undertook laundry duties. 3.29. From June 2016, much of the laundry work was sent out under new arrangements (Russell ws para 5, 251). That reduced the workload in the laundry, and laundry staff were expected to clean rooms as well when necessary. Mr Kioua initially expressed himself to be keen to learn to do the room cleaning but later did not see this as part of his job description. It clearly was. His role required flexibility and to support the housekeeping team as necessary. 3.30. In October 2016 there was a meeting with Mr Wyncoll, Human Resources (“HR”) and Mr Kioua. His duties were outlined. 3.31. He has relied since then on an agreement having been reached that he would not have to clean rooms when on his own in the laundry. 3.32. On this Mr Wyncoll says, “I never agreed with him that he could not be required to clean rooms if Zibi was not there. (ws para 2). 3.33. He expanded on that in oral evidence, “I am confident flexibility was discussed…. We had a full laundry with everything done on site. Instead we built a garagesize building, a linen cupboard in effect, with washing machine and tumble drier, we used to outsource sheets and tablecloths then towels too, so the workload was becoming less in the laundry and therefore flexibility was needed, that Mr Kioua agreed to, and he was very willing and keen to learn to do rooms and I was pleased with his response.” 3.34. We are satisfied that the management would not introduce restrictions on job roles or duties that might limit their ability to get rooms ready in a timely way for guests. On that, we do not accept what Mr Kioua says. There was no agreement that he would not be asked to clean rooms, even when working alone in Laundry. 3.35. The Quarterly Chat notes in October 2016 that, “Mr Kioua has now been trained to clean rooms and public areas.” (107) 3.36. It goes on, “On some occasions Mr Kioua gets frustrated and feels he cannot do everything on a day to day basis. I have assured him the work will be given out equally between the team”. 3.37. Ms Lee also notes that his performance is affected by his moods, and he is encouraged to communicate, to ask for help when needed and not to let his moods affect his work. 3.38. His comments are, “I do not have Any Issues and I will try to Do my best” “It has been a bit hectic in the summer as a New laundry was being built, but now everything seems to be Perfect and back to Normal”. 3.39. From then, Mr Kioua would be given rooms to clean on a frequent and regular basis. 3.40. Miranda Russell was entitled to ask Mr Kioua to clean rooms if his help was needed. She tells us Mr Kioua objected, but would probably then do the rooms and would do them very well. Zibi would also be asked, and would say he was “busy, busy, busy” but he too did the rooms. Because Mr Kioua did not see this as part of his job description, he saw himself as being asked to do two jobs. He was not being asked to do two jobs. Raffle Prize Swapping the bottle of cognac is pleaded as direct discrimination on the grounds of religion. 3.41. There was a staff party on 7 January 2017. Mr Kioua was not present. His ticket was drawn and he had won a bottle of alcohol, that he understands to have been Cognac. He was not given Cognac; he was given a box of chocolates. Ben Leach and Mr Wyncoll were distributing the prizes. Ben Leach describes saying that Mr Kioua did not drink alcohol and that Mr Wyncoll on the spur of the moment suggested the substitution. Ms Lee had gone up to collect Mr Kioua’s prize for him, said “Yes” to the substitution and took the gift for Mr Kioua in his absence. 3.42. By way of background, Mr Kioua had been given a bottle of champagne on the anniversary of being in post, in 2016. He gave it to Ms Lee. She knew that he had no objection to being given alcohol. She agreed the substitution and accepted the chocolates on his behalf. She did not point out that he would accept alcohol even though he did not drink it. 3.43. Mr Kioua was upset at the substitution. “As a human, I should have been asked, if it is my property, I should have been asked. They know I do not have problems receiving alcohol. Like the first year anniversary, Taittinger.” (ref) 3.44. Mr Kioua challenged Ms Lee on the substitution on the next working day, having been told of his win. She was dismissive. 3.45. There was not a complaint of discrimination. Cleaning rooms That, when raising the question of workload on 10 January 2017, 16 March 2017 and 1 October 2017,the claimant was met with a hostile response as set out in allegation 9 of the Schedule of Complaints is pleaded as harassment and direct discrimination on the grounds of race and religion 3.46. On 10 January 2017, Miranda Russell asked Mr Kioua to clean rooms. He protested on the basis we have found to be unfounded that he had an agreement with Gaius Wyncoll that when he was solely responsible for laundry, he did not have to do rooms. She says, “He had refused to do the rooms before, even though I had been told he could be asked to when needed, then he would be ok for a while. It happened maybe every few weeks.” (ws para 6) 3.47. Mr Kioua does not say that Ms Russell asked him to do the room cleaning in January because of his faith or nationality. He denied that, in oral evidence. His complaint is that she was hostile to him over this and the later incidents he describes. 3.48. She acknowledges being abrupt. She was faced with a member of staff refusing to follow an instruction that she has been told is reasonable and within the terms of his contract. She told us that it worried her, she was getting a little bit apprehensive coming to work, because she did not know what reaction she would get from him. She did not find Mr Kioua easy to manage. 3.49. She does not feel she was hostile. She is clear she did not shout at him. Mr Kioua says she was hostile. We accept that she showed her frustration in her manner. The conduct of Ms Russell is sufficiently explained by the circumstances. She was dealing with an employee who was resistant to following reasonable instructions to do work that needed to be done. 3.50. Ms Russell had not had such resistance from Mr Kioua’s colleague, Zibi. In March 2017, Zibi stopped working primarily in the laundry, moving to cleaning rooms instead. That left Mr Kioua in sole charge of the laundry, albeit that others were able to do some of the associated work. He felt responsible for it and for the administration including risk assessments. 3.51. Ms Russell continued to ask him to do cleaning of rooms in addition. Because of the outsourcing of the bulk of the laundry work, the laundry itself was now small, with limited facilities. The workload was very different from before the outsourcing, so the job of laundry porter or assistant was not considered to be onerous. It was seen as reasonable for one person to do it and to support the cleaning as well. 3.52. Mr Kioua protested. He complains of facing critical or angry comments when he protested. 3.53. Mr Webb was aware of Mr Kioua’s objections to doing rooms, he was kept informed by Ms Lee and Ms Russell. He did not see the requests made as unreasonable. They were consistent with the job description. 3.54. The complaints made by Mr Kioua to Ms Russell continued to be that he was being asked to do two jobs at the same time. Clocking system and workload 3.55. The clocking system uses fingerprint identification. On clocking early or late, options are offered including routine explanations such as “forgot to clock” or “transport difficulty”, “arrived early” or “staying late”. If extra work was being done, the options were “start time change” or “end time change”. Those additional hours of work could attract pay if authorised by the manager, and in looking at working hours, they would be considered against the requirements of the rules on minimum wage and maximum hours. 3.56. If “staying late” was recorded, as against “end time change”, that did not count as additional working time. 3.57. Mr Kioua was staying late, often. That shows on his clocking records. He was not clocking out late on the basis that he had stayed to work. He clocked himself out as having stayed late, rather than recording late working, “end time change”. 3.58. Neither Ms Lee nor Ms Russell themselves worked late. They both left midafternoon. Both they and Mr Webb are clear that when they left, they did so on the basis that those working later had manageable tasks; that they would not leave the premises leaving someone struggling. Mr Wyncoll was confident that his managers would not leave those finishing later with an undue workload. Most housekeeping tasks must be done by early to mid-afternoon, since guests need the rooms. 3.59. The accounts department scrutinise hours, to ensure that the regulations regarding the national minimum wage are not being breached and as a matter of good management. Accounts did not flag up to Ms Lee that Mr Kioua was working excessive hours (oral evidence 5/24). 3.60. Nothing therefore flagged up in the records that Mr Kioua had a workload that he could not cope with save by staying late, nor did his managers see him failing to manage the workload. The records showed him as working his normal working week. 3.61. He has not protested that he worked late, or that he did so on an unpaid basis. 3.62. On this Ms Lee was asked, “Did you see that he was staying late?” “If I saw that, I would say to him why did you not check out. He might say I went to canteen, or I was hanging around, not necessarily work, or maybe he said sometimes my wife is working late. So, I do not know what he was doing work wise, there was no workload for him to do, but so far as I was concerned if he was on the premises, that was his choice.” 3.63. Mr Kioua had a practice of taking his evening meal in the restaurant after the end of his shift which goes in part to explain his late departures. It was part of the social life that he enjoyed with colleagues. Oven Gloves Being threatened on 1 March 2017 that if oven gloves were sent again for dry cleaning in the future, the claimant ’s salary would be deducted is pleaded as harassment and direct discrimination on grounds of race and religion 3.64. In March 2017, Patricia Lee heard from the chef that oven gloves had been sent for dry cleaning, when they should have been cleaned in-house, thereby incurring unnecessary expense. She agrees that she asked Mr Kioua if he had sent them out (179). She later learned that the mistake had been made by someone else, when Mr Kioua was not on duty. 3.65. Mr Kioua says Ms Lee threatened to dock his salary next time and that she was angry and shouted. She denies doing so, nor was it something she had the power to do. 3.66. The chef’s note on this relates that they had agreed Ms Lee would speak to Mr Kioua about this because of the unnecessary cost incurred. 3.67. There are other references to the threat to his salary being made. James Webb remembers a similar complaint from Mr Kioua, in June 2017, when he laughed to reassure Mr Kioua, saying that nobody could touch his salary. 3.68. We find, on balance, that there was such a threat, even though it was unfounded. It is a not unusual threat made by managers under pressure. 3.69. Mr Kioua did not pursue a complaint about it. He agreed in oral evidence that he did not relate that incident to his race or religion at the time. Incident June 2017 Ridiculing the Claimant (as set out in detail in the Schedule of Complaints p36, para 11 – bathrobes wrongly sent for laundry, laughter at plans to study for vet qualification and driving licence) is pleaded as harassment and direct 3.70. In June 2017, Mr Kioua was called to Patricia Lee’s office. Katarzyna Amarowicz (Katie) was also present. He was asked about bathrobes that had been sent out to the linen company unnecessarily. Again, there was a threat of a salary deduction. Ms Lee was critical. He was embarrassed and humiliated. 3.71. That was followed by a discussion about which Mr Kioua makes a strenuous complaint. He agrees it was common knowledge that he was studying to obtain his UK veterinary qualification, and that he enjoyed cooking. He had just been in Algeria for his brother’s wedding. The conversation moved from different cultural practices – such as who pays for the wedding – to questions about what he was doing in the UK, which he found intrusive. He now describes sniggering between the two women, eye rolling, laughter and an unpleasant tone of voice. He describes feeling distress, embarrassment. He called his wife and told her about it. 3.72. His wife, Ms Bow, without his knowledge, rang Mr Webb. She was concerned about his distress. She says, when he called her, “initially, he could not speak. The sound from him was groaning and shortness of breath. I asked “What’s happened” repeatedly before he responded. He began to speak, whispering through crying, “They are going to take my salary”. “She accused me “They were laughing”. “I got called into room” (ws para 2). 3.73. Oral evidence from Ms Bow: “When he was on the phone, when he eventually started talking, he said, “She is going to take my money” and he said that over and over again. And he kept saying they are laughing at me, and he was crying.” 3.74. It was agreed that Mr Kioua was not to know of that conversation, at Mrs Bow’s request (175). 3.75. Mr Webb spoke to Ms Lee. He describes her as shocked and disappointed at that reaction. She had not seen anything untoward in the conversation. She spoke to Mr Kioua to apologise – without disclosing the telephone call – “I did not mean to pry into your life, I am sorry I talked about your private life in front of Katie….” (Kioua ws para 30, Lee, ws para 22). 3.76. Mr Kioua did not relate any of this to his race, nationality or religion at this time and concedes that there was no reference made to his religion. 3.77. This took place when he was fasting (ws 40). 3.78. Mr Webb kept in touch with Mr Kioua after that, to check that he was all right and says, “Each and every time he would thank me for asking and tell me everything is fine and make an effort to shake my hand and say “Thank you my friend”, “Everything is fine my friend” (240 and 247). 3.79. Ms Lee and Ms Russell note that from this period, their relationship with Mr Kioua changed – he became more withdrawn and subdued. Mr Kioua’s health 3.80. On 25 July 2017, Mr Kioua consulted his GP asking to be prescribed antidepressants, having been on them in 2014 (296). Counselling was recommended with a review in a month. 3.81. On 12 September, Mr Kioua was prescribed Citalopram. The GP notes that he works in Laundry, never been without work, likes his job. Room cleaning 3.82. Mr Kioua continued to be on the rota to clean rooms, but under protest. He complains again of being shouted at by Ms Russell in October 2017. She again says she was frustrated by his attitude to a reasonable and legitimate request. She says he rang to say to her that he would not do the rooms – not could not, but would not. He would however then come and do them and do them well. Quarterly Chat 3.83. On 20 October 2017, there was a quarterly chat between Ms Lee and Mr Kioua. His recorded comment is, “I do not have any concerns, I think so far is Ok. I do think that I can manage my job pretty well considering I have been doing it for a long time now.” (123) 3.84. Ms Lee’s comment is, “I have told him to talk more… so know how he feels and why” Meals in the Staff Restaurant The claimant was not permitted to use the staff restaurant after 5pm from 2 December 2017; that the claimant was the only person so prevented is pleaded as harassment and direct discrimination on grounds of race and religion and victimisation 3.85. Meals were provided to staff free of charge during their working hours. 3.86. The practice had developed of staff sometimes taking their free meals after the end of their shifts, often together. Food sometimes ran out while staff still working needed meals. Senior management wanted the practice to be challenged, reserving staff meals for those on duty and to reduce food costs. Heads of Department were told in December 2017 to tackle it. 3.87. Mr Kioua was identified as one of those departing from the policy by the chef, Mr Birch. 3.88. The rule applied to entitle those during a shift to a free meal, but those who finished at 5 were not authorised to wait until the evening meal was served at 5.30. Amongst housekeeping staff, most left earlier than that, although there would be one or two on shifts ending at 5 or later. Both mangers left earlier. 3.89. In December 2017, Ms Lee told Mr Kioua not to eat the meals provided in the staff canteen after the end of his shift. She had prioritised speaking to him, given Mr Birch’s comment. 3.90. For Mr Kioua, there was a longstanding problem with a lack of vegetarian options in the restaurant – there would be such options on Mondays and Tuesdays, but those were days he did not work, and there might be only soup or salads available that he could eat. 3.91. The day after Ms Lee spoke to Mr Kioua, one of the chefs had prepared a vegetarian dish specifically for Mr Kioua. He had stayed to eat it and was reminded again of the instruction not to eat after his shift ended. 3.92. The policy of enforcing the rule was reiterated in January (143). Arrangements for live-in staff were different – not all had the means to cater for themselves. 3.93. Zibi continued to eat in the canteen until March. Ms Lee agrees it may have been some weeks before she told Zibi perhaps longer. 3.94. Mr Kioua mentioned to his GP in January that he had been excluded from the canteen (291c). He saw himself as personally targeted, and found that others were unaware of the enforcement of the rule. 3.95. The practice continued to be widespread. (132 272). On 20 March 2018, Mr Birch emailed Ms Lee asking her to take up with Mr Kioua that he was not to stay after his shift to eat food provided for staff on their shifts, “This is a regular thing not just from him but several staff meaning that we keep running out of staff food on a regular basis.” (147) 3.96. Mr Kioua felt himself to be singled out and that others saw him as having been singled out. Staff party Leaving the staff rota visible for 3 weeks which showed that he was the only person not permitted to leave work early on the date of the staff party and Singling the Claimant out in that he was the only person not permitted to leave work early on the date of the staff party are pleaded as harassment and direct 3.97. In December 2017, the rota was posted for the holiday period, including the day of the staff party. There were late shifts to be done throughout the holiday period. 3.98. Mr Kioua was the only member of staff scheduled to work late on the day of the staff party. He had said that he was not going to the staff party. 3.99. The rota was posted three weeks in advance but he only noticed on the day of the party that others were scheduled to leave earlier than him. 3.100. Mr Kioua had not intended to go to the staff party but saw unfairness in being the only one to be scheduled to work late and that being so publicly displayed. He thought that others were getting time off in addition to the contractual time off when they were released early. 3.101. The contract shows that hours are annualised. The clocking arrangements meant that those leaving early would have to make up those hours later – they would not be classed as leaving at the end of their shift. 3.102. He felt unfairly treated in being the one to work late. He did not at the time relate this to his race, nationality or religion. 3.103. Mr Kioua was also rota’d to work late on Christmas Eve, until 9pm. He had been given Christmas Day off but had not explained that he would be travelling on Christmas Eve and could not work late. Ms Lee changed the rota to enable him to catch his train (176, 182) although that change was initially refused (226). Quarterly Chat 10 February 2018 In an appraisal on 15 March 2018, Ms Lee falsely recording that the claimant would monitor laundry and help with the rooms is pleaded as harassment, direct discrimination on grounds of race and religion and victimisation. 3.104. On 10 February 2018, Mr Kioua had a further Quarterly Chat (146). He said, “For the time being I’m happy with my job in laundry.” and “I am very open for anyone to come and discuss any issues or concerns and I’m willing to do the same as well.” 3.105. Mr Kioua signed this form in the usual place and after the manager’s comments. It is the only job chat form we have seen that has the employee’s signature added a second time at the bottom. 3.106. In the manager’s comments, after, “As Mr Kioua mentioned he needs to speak to me when he feels there are any issues.” is the following, “Zac has now agreed. to monitor our laundry and help with rooms” The last bit is a little squeezed in over Patricia Lee’s signature. 3.107. Mr Kioua says that he had been pressed to sign the form at the bottom as well as in the usual place, and that the text from “Zac has now agreed… “was not there when he signed the form. Ms Lee denies changing the form after he had signed it. This is discussed more fully below. Room cleaning March 2018 3.108. The problem that Mr Kioua identified with being asked to do two jobs arose again immediately. 3.109. Samantha Davis (HR) gave an account in June 2018 of earlier events (253). In March 2018, she had encouraged Ms Russell to give rooms to both Kasia, usually in public areas, and to Mr Kioua. Both had objected. They were to be treated equally, in spite of Ms Russell’s objection that “she wouldn’t give Mr Kioua rooms because she knew that he wouldn’t be happy and would probably complain/ refuse to do it” even though it was in his job description. Mr Wyncoll was present and they agreed Mr Kioua must be asked to do rooms if the business need was there. 3.110. Mr Kioua complained to Ms Davis that he had been allocated rooms and that he would not clean them, on 15 March 2018. She showed him the job chat completed by Patricia Lee indicating that he had agreed, “I asked him about this because it was my understanding that he should be cleaning rooms when required. We discussed his recent job chat and Mr Kioua said that he had not said he’d clean rooms. I showed Mr Kioua the job chat form. He said that he had not seen the comments from Trish on there before (that he would clean rooms) and that it hadn’t been written on the form at the time he signed it.” (253) 3.111. Mr Kioua agreed to clean the rooms pending a meeting, which took place on 21 March 2018, with himself, Ms Lee and Ms Davis. He was offered the chance to have cleaning as his primary responsibility but said that, “because he was trained on laundry, and many of the team weren’t, he felt responsible for it and wouldn’t be happy to work on rooms whilst also feeling that he might be held responsible for dealing with a backlog of work in the laundry.” (253) 3.112. He suggested instead that everyone was trained in laundry and everyone took a turn in covering that role. That was accepted and training was planned for early April (148). 3.113. That seemed to present a happy solution to the issue that Mr Kioua had about being asked to do two jobs. 18 April 2018 3.114. Mr Kioua had parcels, items bought online, delivered to the hotel because there was no-one at home to receive them. He was told not to. It was his understanding that others did the same (156). 3.115. On 18 April, more parcels were delivered for him. Reception asked Ms Russell to take the matter up with Mr Kioua – it was an inconvenience and interrupted their work for the guests. 3.116. Ms Russell told him not to have parcels delivered to the hotel. She describes him as visibly distressed, shaking, ill – the first time she had seen him like that. She was shocked and worred (ws para 24). 3.117. He felt unfairly treated, “and talking to me in such a bad way, I said ok I’ve just had enough…. I’ve been seeing people getting their parcels delivered here… I’ve just had enough, I just felt I can’t, I can’t really carry on working at this place, I told her that, she said, I hope it’s nothing to do with me, I said, well I don’t know it’s in general, it’s like a build-up of things, you know…..” (156) 3.118. Mr Kioua spoke to both Samantha Davis and James Webb that day. 3.119. Ms Davis’ note of what he said to her includes the following, (150) Nervous and confused, “doesn’t want to work here anymore”. Can’t do both jobs (meaning cleaning and laundry) His contract was for laundry work. There had been no formal process to change his contract He was told not to have parcels delivered to the hotel. Others did. He was told in December he was “not being allowed to eat staff food whilst off duty” – but others were doing it and Zibi was not told till March 3rd. The absence of a vegetarian option during lunch breaks The failure to give him the cognac that he won in the raffle Being blamed for sending out the oven gloves, with a threat from Ms Lee to deduct from his salary; no apology given, though it was someone else. Feeling he was being bullied, not well enough to finish his shift, going home and was going to see his doctor. 3.120. Although he complained about doing rooms and laundry, he is also noted as saying that he had agreed with Gaius (Wyncoll), Sam (Evans) and Tricia (Lee) the job share and that he would give it a go, “It all seems ok at the moment” (150). 3.121. This was his first account of his complaints. 3.122. He does not to Samantha Davis speak of being treated differently by reason of race or religion. 3.123. Mr Kioua then spoke to Mr Webb, a discussion which he recorded covertly and which the Tribunal heard. He spoke repeatedly about being treated differently and unfairly, but did not identify race, religion or any other ground. The issues raised include Rooms and laundry – making him cover two jobs Failing to formally change his contract to cover that Complaining about him having parcels delivered, given that that was common practice Him not being allowed to eat in canteen, while others continued daily (152/6) The food situation, there being nothing for him to eat as a vegetarian at lunchtime (152/3) The failure to give him the raffle prize cognac The oven gloves complaint, with the threat to deduct from salary Having too many appraisals (quarterly chats) 3.124. He said he felt intimidated, excluded. He had seen a solicitor. He said he had grounds for unfair dismissal because of the change of contract. 3.125. He did however confirm that he had agreed to give the shared laundry arrangement a go, and that all seemed ok with that at the moment (155). 3.126. Mr Kioua did not at any stage in this meeting or with Ms Davis relate the long history he gave of unfair treatment to his health, his faith or his race. “You did not in this meeting say you were being racially harassed or discriminated against?” “I did not say that until the grievance with Mr Gaius” (oral evidence) 3.127. He agreed that he had not raised these grievances during the quarterly job chats, “I couldn’t say anything on my appraisal on how I had been treated or I am not accepting this, I could only say I am all right, doing fine.” (oral evidence) 3.128. Neither to Ms Evans nor to Mr Webb did he mention concerns about the discussion with Ms Lee in June 2017. Sick Leave 3.129. Mr Kioua was encouraged by both Samantha Davis and Mr Webb to see how he felt after a break but he went home. 3.130. He was off sick thereafter, so from 19 April 2018 until his resignation on 3 September 2019. 3.131. Mr Kioua had seen or spoken to his GP several times since citalopram was prescribed in September 2017. His depression had continued to be troubling. The GP noted on 12 December that his exams for his veterinary qualification were due in April 2018, and that he was hoping to have the job he likes after passing. The citalopram was continued. The sense of exclusion from the canteen is noted at the consultation on 23 January, and stress at work was mentioned at the next appointment on 27 March 2018. 3.132. The medical consultations had not been mentioned at work before Mr Kioua went off on sick leave. 3.133. The GP noted at the consultation on 24 April 2018, that Mr Kioua again reported stress at work and being bullied. Issues included excluding him from the free canteen meal, preventing him from using the work address for parcels like anyone else, changing his rota without consultation, picking on mistakes, threatening to deduct money off his salary, blaming him for mistakes that are not his. As he saw it, he was entitled to a meal per duty, the duty finished just before meal time, everyone else was allowed to eat in the canteen but him. He worked at two jobs. His problems at work had led him to miss some of his exams for his veterinary training (291b). 3.134. A medical statement was issued for a month, saying he was not fit for work, with the diagnosis “stress at work”. 3.135. BY way of background, some months previously, Mr Kioua’s rota had been changed without consultation; he had been granted two fixed days off, contrary the usual practice, and when it was thought he no longer needed it for his studies, that had been changed. His fixed days off were restored to him when he protested. 3.136. By April 2018, the meals policy was being more widely enforced, although it remained an issue, eventually even affecting live-in staff, who were provided with the facility to self-cater. Grievance 3.137. On 1 May 2018, Mr Kioua lodged a grievance against Patricia Lee and Miranda Russell (173 – 178). 3.138. This is the first time that he raises the question of discrimination on the grounds of his nationality, as an immigrant to the UK, or religious discrimination. 3.139. The complaints he made in brief summary were these: Being blamed for sending oven gloves out wrongly in March 2017 and threatened with a deduction from salary Intimidation/humiliation because of his personal circumstances as a migrant to the UK – being blamed for sending bath robes out wrongly and being subject to intrusive questioning and ridicule in June 2017 Being singled out/excluded/treated differently to other members of staff, not being allowed to eat with colleagues or use the staff restaurant, referring to racism, and being the only one not given a half day off work on the day of the staff party in January 2018 Being treated differently due to his religious beliefs, in not being given the bottle of Cognac that he had won Experiencing unfair treatment in changing his shifts, ignoring his holiday commitments, by being put on an unusually late shift on Christmas Eve 2017, jeopardising his holiday travel arrangements and issuing threats if he did not comply Excessive overloading of work duties, by harassment and pressuring him to carry out the work of 2 people/ 2 separate jobs, abandoning the October 2016 agreement that when working alone in the laundry, only laundry work would be required, threatening him when he protested, being treated differently from Zibi who refused to do rooms, and was not given as many to do as he was, being ignored when he complained that he could not cope mentally and physically doing 2 jobs, being harassed and threatened by Miranda Russell when he protested again in October 2017 at being given rooms, conduct repeated in January and March 2018 Subjecting him to excessive numbers of appraisals and falsifying them, specifically, adding a false statement to the February 2028 Quarterly Chat to reflect an agreement to do room cleaning 3.140. In addition to the issues itemised, he mentioned the food situation and the complaints made to him about parcels being delivered. 3.141. He raises race/nationality and religious discrimination here for the first time and reports being unable to cope physically or mentally with doing two jobs. Grievance Investigation and hearing At the meeting on 8 May 2018, being the grievance meeting in Comparing the claimant ’s religion to a nut allergy Attempting to explain away what happened in respect of the raffle prize by reference to the claimant ’s religion Failing to investigate the claimant ’s allegation of theft in relation to the swapping of the cognac for chocolates are pleaded as harassment on grounds of religion, direct discrimination on grounds of religion and victimisation 3.142. Gaius Wyncoll was the manager handling the grievance. 3.143. Mr Kioua was interviewed on 8 May 2018. He made a covert recording of the meeting and the references below are to the transcript of the recording. 3.144. Zibi was supposed to be with him but failed to attend. Mr Kioua agreed to proceed without a companion present. 3.145. He amplified the issues raised in his grievance, commenting for example that he found questions from both Ms Lee and Ms Russell, “Are you OK?” “Have you any worries?” intrusive, prying, even extreme in their persistent questions (197). He should not have been asked what he was doing in the UK – it was both prying and singling him out, treating him differently from a person from the UK (198). 3.146. Because he had been singled out for eating in the canteen after the end of his shift without any general communication to staff, he saw it as racism, based on his background, religion, colour of skin – saying many people had suggested that as an explanation, including his doctor (200). 3.147. In the discussion about the Cognac, Mr Wyncoll explored the issue by making the following comparison, “But for example someone has got a nut allergy or a nut intolerance and they were given a box of chocolates that contains nuts do you not feel it would be appropriate that we then change that prize, you know, on the night?” (203) 3.148. Mr Kioua was not persuaded, “It’s not the same. It’s different. They don’t want that prize to be going to me and they’ve used my religion to get what they want…. And to humiliated me at some point and to ignore me…. if you do it behind my back and take my prize …. This is what I find unacceptable. I felt really ignored and humiliated and not cared about.” (203). 3.149. Mr Wyncoll’s account is, “The decision made there purely based around the fact that he doesn’t drink, it was mentioned, shall we give him the chocolates instead, that would be a nice thing to do. My comparison, I know members of the team, it is about tailoring a gift or an experience, around, so if somebody has a nut allergy, I wouldn’t give them a hamper of Christmas nuts, it is was considered a thoughtful gesture to change that. (6/21) 3.150. He holds to the point even though it is pointed out that the immediate context is treating Mr Kioua differently because of religion. “To me it had no bearing whatsoever on his religion.” 3.151. Mr Wyncoll had some quick, unrecorded preliminary discussions about the grievance, noted his initial response and carried out further investigations, including speaking to Patricia Lee, Ben Leach, Zbigniew Michalik (Zibi), Miranda Russell and Katie Amarowicz. He reviewed documents (222) 3.152. Mr Wyncoll dismissed the grievance, on 19/05/18. He wrote a detailed response, which echoed many of his initial thoughts. 3.153. He wrote in the grievance outcome, “I believe that there was no ill-intention behind the different treatment you received due to your religious beliefs.” 3.154. He now says, “I think that is my punctuation. I believe there was no ill intention. I am trying to rephrase this, because in my opinion there was no different treatment, it was not related to religious beliefs.” “That is not the intention behind what I am saying there. I genuinely believe and I know there is no doubt in my mind that there is no connection with religious beliefs.” 3.155. These, in summary, were his findings. 3.156. He found that Ms Lee had made reasonable enquiry about the oven gloves to find out what had happened. She had not accused Mr Kioua of making the mistake. 3.157. Similarly, she had been making reasonable enquiry about the bathrobes error. 3.158. She had not threatened any deduction of salary. 3.159. The intrusive questioning complained of he placed as taking place at the time of the bathrobes complaint and from Katie’s account, arose from the discussion of the rota change, after Mr Kioua had finished his veterinary work experience. It had been thought – without consultation - that he no longer needed those particular days off. It was that, he concluded, which had sparked the discussion about Mr Kioua’s personal plans and arrangements including his studies, his future plans, for the purchase of a car and driving lessons, a discussion that Mr Kioua complained of as intrusive. Mr Wyncoll promised to give guidance to the team to avoid personal questioning, but also guided Mr Kioua to complain if he found a conversation intrusive (224). 3.160. Enforcement of the meals while on duty rule had begun in the Autumn of 2017, when live-in staff accommodation had been or was being improved and food budgets were under scrutiny. Mr Wyncoll had himself asked Heads of Department to speak to any member of the team who had been eating when off duty. The practice was not widespread, so there had been no need for a general note. Mr Kioua had named Zibi as the source of the criticism that his treatment was racist, but Zibi himself had denied that, saying he understood it was about costs (225). 3.161. Someone had to be on duty on the night of the staff party, although others were allowed to leave early because there were no residents present that night. Mr Wyncoll could see the reason behind Mr Kioua’s sense of unfairness but he said there was “no intention to exclude you or for you to be singled out”. The rota had been reasonable and when offered the chance to go home a bit early, Mr Kioua had refused. 3.162. In relation to the Cognac, Mr Wyncoll had no recollection of the incident, but concluded that the substitution was in good faith and without any ill-intention. He noted the objection that it was not appropriate for someone else to substitute a prize without the winner’s consent and would apply that in future raffles. 3.163. The Christmas Eve late shift had, he found, arisen because Mr Kioua had not alerted his manager to his travel plans, and the shift had eventually been changed to accommodate him. Nor did he find any threat made to him, other than that if on the rota, he was required to work. 3.164. In relation to cleaning rooms, Mr Wyncoll was clear that in October 2016, when there had been individual consultations about the reduction in the workload in the laundry, it had been made clear that flexibility would be required. It was reasonable for Ms Russell to request that Mr Kioua cleaned rooms in January 2017 (227). Zibi had confirmed that it was not unreasonable to carry out duties across rooms and laundry. 3.165. Mr Kioua had reported that Ms Russell said that if he complained about her instruction to senior management, he would “shoot himself in the foot. Mr Wyncoll did not find that to be appropriate language but he understood the intention behind it; highlighting to more senior management the refusal of a reasonable instruction was not going to be helpful. 3.166. There was financial stringency at the start of 2018, the laundry outsourcing had not made sufficient savings, so Mr Kioua had been right that when there was a resignation in the housekeeping team, authority had not been given to replace that person (227). Flexibility was required. Mr Kioua’s suggestion of the whole team rotating to cover the laundry work had been a very good one. Mr Wyncoll understood from his investigation that Mr Kioua was happy with the change. He added that if a change in working practices significantly increased the hours he was working over a sustained period, that would be identified and reviewed with his welfare in mind. 3.167. There remained disagreement between Mr Kioua and Ms Lee over the disputed sentence in the 2018 quarterly chat document, but Mr Wyncoll considered there had been ample discussion of the requirement for flexibility and for Mr Kioua to clean rooms as needed. He intended to remind department heads that appraisals should be copied to the employee concerned – given that Mr Kioua had identified the disputed sentence only two months later, on seeing it when meeting Miss Davis. 3.168. Mr Wyncoll agreed that some other staff had not had as many appraisals as Mr Kioua and in particular Zibi had never had a formal and written appraisal. That was attributed to a language barrier. Other colleagues in the team had been treated in a similar way to Mr Kioua, and the number of appraisals was reasonable in the light of the changes that had taken place and the concerns that he himself had been expressing. 3.169. It was reiterated that personal parcels should not be delivered to the hotel on any regular basis, and the matter had been raised with Mr Kioua because he had seemed to be having a lot of deliveries, interfering with the work of reception. 3.170. In dismissing the grievance, Mr Wyncoll added that both managers had genuinely worked to support Mr Kioua with his welfare in mind. In particular, he did not find evidence of any intention to intimidate or humiliate Mr Kioua because of his personal circumstances as a migrant to the UK. 3.171. He suggested a further meeting at the start of Mr Kioua’s shift on 23 May to clarify and discuss the report – “I would very much like to ensure that we can move forward positively from this meeting.” (229) Appeal 3.172. On 22 May 2018, Mr Kioua appealed the outcome of the Grievance. His grounds included, Failure to conduct a full and impartial investigation Failure to interview personnel/witnesses Inaccuracies and omissions in witness evidence Failure to establish the facts Failure to provide the minutes of the meeting he had with Mr Wyncoll Minimising the seriousness of the complaints made 3.173. Some of his detailed criticisms go beyond what he had said previously; In relation to the incident on 10 June 2017, “!, Zakaria Kioua, was summoned to perform a menial task for the express purpose of bullying and intimidation by being questioned and laughed at because I am not from the UK and of migrant status on a visa. (234) (This is a reference to his being initially called to the room to move a chair). In relation to eating in the canteen, “Zibi was informed of this rule only when it became apparent to Patricia Lee that Zakaria Kioua was gathering evidence of his exclusion.” In relation to the Cognac, he says that the grievance outcome confirms that the prize was taken from him due to his religious beliefs, and “ Patricia Lees took this prize on behalf of Zakaria Kioua at the raffle…. Patricia Lees then exchange to a cheap box of chocolates she obtained/purchased independently.” (235) He strongly challenged the nut allergy comparison made by Mr Wyncoll himself, “I stated to you that a religion or belief is not an illness.” His statement that he could not cope mentally and physically doing two jobs had been ignored; he was still expected to do more than other members of staff and that had not been addressed (235). “What I cannot do is physically be in two places at once, which is what was being ordered, and no matter what tasks I undertook, I was then blamed for any backlog in the laundry when I was ordered to work elsewhere.” “You have ignored the fact that I informed Patricia Lee that the continued overloading was affecting my health. You have ignored the overloading and my health concerns entirely. 3.174. He ended by condemning company procedures in failing to provide a fair appraisal system, to ensure employees received copies of appraisals and to prevent falsifying appraisals. The Grievance Appeal 3.175. The Grievance Appeal was held on 8 June 2018. It was held in Mr Kioua’s absence because of his illness, with his consent (239). 3.176. Julian Tomlin, Group Director of Operations was charged with conducting the appeal. Mr Tomlin dismissed the appeal on 29 June 2018 (260). In the response to the appeal against the grievance implying that the claimant had been wrong to bring the grievance is pleaded as harassment and direct discrimination on grounds of religion 3.177. The reference here is to the finding that the allegation against Ms Lee of theft (ws 88) was unfounded. Mr Tomlin wrote, “It is accepted that a decision was made to change the gift and this was done in good faith … in deference to your religious beliefs. It was not intended to cause you offence… but the decision to accept or reject the original should have been made by yourself.” (260) 3.178. Mr Tomlin offered Mr Kioua a replacement bottle of Cognac of similar standard. 3.179. Mr Kioua’s health had not improved. In July he suffered chest pain over a period of some ten days, diagnosed as stress related (283). On 28 July 2018, Mrs Bow asked the company to address all communications to her, because of his illness though he later changed that in concern over her health. 3.180. There was an informal discussion between Mr Kioua and Mr Pecorelli, Managing Director on 8 August 2018 which indicates that Mr Kioua in no way accepted the appeal findings. Another replacement bottle of Cognac was offered and rejected. The claim 3.181. The Employment Tribunal claim was submitted on 23 August 2018. 3.182. On 2 September 2018, Mr Kioua went to Algeria. His mother was then diagnosed with breast cancer (298) 3.183. Once his entitlement to statutory sick pay was exhausted, in October 2018, Mr Kioua’s next medical certificate was returned to him (324). That came from the financial controller, without guidance about future certification of absences. 3.184. In November 2018, the Respondent obtained a medical report from Mr Kioua’s GP. It confirmed symptoms of depression and anxiety, the symptoms first presented on 25 July 2017. The report was not written by the GP who had been seeing Mr Kioua, who had left the practice, and says little beyond referring to work-related stress issues and listing symptoms including difficulty sleeping, emotional lability, depression, feelings of hopelessness, low self-esteem, difficulty in concentrating, agitation and restlessness (287). There was no guidance as to when he might return to work. The GP identified no underlying medical impairment that might have a long-term adverse effect. The report concludes that, “The majority of people with depression and anxiety would be able to recover from this and render regular and efficient service in the future provided the triggers for this were resolved.” 3.185. It said that an Occupational Health assessment might assist in respect of reasonable adjustments. 3.186. The Respondent commissioned an Occupational Health report in December 2018 and learned at that point of Mr Kioua’s absence in Algeria (sb 6). 3.187. He continued under medical advice and medication while in Algeria. 3.188. In January 2019, Ms Davis wrote to say that Mr Kioua was in breach of the Sickness Absence policy, attaching the relevant extract from the handbook. The last medical certificate supported absence from work until 9 November 2018 (supp bundle p12). There is no reference to the medical certificate that had been returned to him. 3.189. Mr Kioua provided certification from the Algerian doctor, but it was not worded to address fitness for work (288). Given his absence abroad, Ms Davis asked for an “updated letter on a monthly basis” until his return to the care of his GP in the UK (12). Mr Kioua complied with that, sending regular emails. 3.190. No guidance was given to Mr Kioua at any time about his holiday entitlements while off sick. 3.191. In April 2019, Mr Kioua did not receive the usual salary review letter. Ms Davis says it did not occur to her to send it – he was off sick, not in receipt of pay and in Algeria. 3.192. Ms Davis tried to insist on the Occupation Health report being prepared by the beginning of February at the latest (331) but it was not until April that Mr Kioua made himself available, having returned for a preliminary hearing. (sb 8) 3.193. That report, completed by a specialist practitioner in Occupational Health, finds Mr Kioua to be suffering anxiety and depression (296). Acute symptoms arose in around June 2017 and continued. There is a suggestion that better treatment would be possible, mentioning talking therapies taking a Cognitive Behavioural approach (296) 3.194. The report concludes, “In my opinion, Mr Kioua is likely to be fit for work. However, Mr Kioua is unfit to work for his current employer due to the breakdown of relationship and trust.” That applied for the foreseeable future (299). Holiday Pay 3.195. Mr Kioua raised on 23 April 2019 the question of pay for annual leave for the previous year, “Just a quick note about my holiday pay for last year, as I still have not received any payment yet, would you arrange for it to be paid as per my contract/the employee handbook says please?” (328) 3.196. Ms Davis replied on 25 April 2019, “On pay for annual leave, I will need to get back to you on this and it may be something we need to sit down and discussion on your return to work. I need to review your period of absence and the number of days covered/not covered by the medical certification required/requested in line with the company policy.” (sb 16). 3.197. The contract and Handbook extracts produced are silent about arrangements for holiday during periods of sick leave. 3.198. Ms Davis did not advise him about taking holiday or about carrying it forward. 3.199. Ms Lee said that he could have booked holiday while off sick, but she did not know what the arrangements were for those on long term sick. She usually gets prompts if people have not taken their holiday, “We get an email, and we tell them, Guys, you need to take your holiday.” “No, I did not get a prompt while he was off sick.” 3.200. It did not occur to her to ask on his behalf. 3.201. Mr Kioua returned to Algeria on 2 May 2019. In July 2019, he advised Ms Davis of his intention to return on 26 August. 3.202. In response, on 19 July 2019, the Ms Davis offered a review of his long-term absence. “Our ultimate objective is to support and facilitate your return to work with us … We are willing to explore a range of options, including workplace mediation between you and key members of management at Lainston House with whom you say trust has broken down, or a move for you to employment in a different department or at one of our other hotels. However, we first need to understand your position, in order to ascertain whether there is any realistic prospect of you returning to work.” (sb 21). 3.203. Mr Kioua identifies five references in that email suggesting that he would not return or emphasising the risk that he might not be able to return, “It felt negative” (ws para 17) 3.204. The proposed meeting was first scheduled for 21 August but rescheduled for 9 September on 16 August. It was changed to suit the availability of the new General Manager, Sunil Kanjanghat, and that of the location, with Mr Kioua’s consent, “Thank you for your email and that’s fine about the appointment on 9th September.” (sb 17/18), 3.205. On 29 August, Ms Davis sent Mr Kioua copies of the Handbook, the Occupational Health report, a list of vacancies in the respondent’s wider business and the meeting invitation for 9 September. 3.206. She wrote, “The purpose of the meeting is to discuss your continued and long absence from work, and if/how we might realistically facilitate your return to work in the near future, taking into account the contents of the Occupational Health Report.” 3.207. She suggested he review that report, and listed the following as issues for the meeting, His willingness to return in his current role, and the time frame, and whether any adjustments to the role or a phased return might help Whether, if not, anything could be done to address his reasons for being reluctant to return and whether a move to a different department or a different hotel might offer options Whether they might have to consider terminating his employment, for example because of a lack of any realistic prospect of the employer successfully facilitating his return (sb 28). 3.208. He says he saw this as pushing him to leave (ws 36 para ) He had been looking in (I said July because Mr B said July and ) CHECK August for vacancies and he found three roles for immediate start and accepted a new post starting on 9 September 3.209. His GP provided a backdated certificate covering the period from 10 October 2018 to 14 August 2019, which Mr Kioua provided on 3 September 2019, with a request for holiday pay (24 supp bundle). 3.210. On 3 September 2019, Mr Kioua resigned with immediate effect. No reasons were given (sb 31). 3.211. In the letter responding to the resignation, Ms Davis wrote to refuse any holiday pay. She said the contract did not authorise holiday to be carried forward, his absence since 2 April 2019 was unauthorised because of the lack of medical certification and his absence from the UK. She added that he had failed to give proper notice. 3.212. Mr Kioua started new employment on 9 September 2019 (ws2 para 37). 3.213. His claim in respect of unfair constructive dismissal was lodged as an amendment to the previous claim on 20 September 2019. He claims fundamental breach of contract including of the implied term of mutual trust and confidence and relies on the denial of the right to use holiday entitlement in April 2019, the denial of salary review in April 2019 and the failure to conduct the return to work interview in August 2019. 4. Law Frustration 4.1. Frustration occurs by operation of law, regardless of the intention of the parties. The question to be determined is whether it was impossible to fulfil the original contract of employment. 4.2. In Marshall v Harland & Wolff Ltd [1972] I.C.R.101, the test was formulated: “Was the employee’s incapacity, looked at before the purported dismissal, of such a nature, or did it appear likely to continue for such a period, that further performance of his obligations in the future would either be impossible or would be a thing radically different from that undertaken by him and accepted by the employer under the agreed terms of his employment”. 4.3. Derived from that and Egg Stores (Stamford Hill) Ltd v Leibovici [1977] ICR 260 at 265, [1976] IRLR 376 at 378, EAT, the following factors fall to be considered: the terms of the contract, including any provisions as to sick pay; how long the employment was likely to last in the absence of sickness, a temporary or specific hiring being more likely to be frustrated; the nature of the employment, in particular whether the employee was in a key post which had to be filled permanently if his absence was prolonged, or whether it could be held open for a considerable time; the nature of the illness or injury, how long it has continued and the prospects for recovery; the period of past employment, a longstanding relationship being less easily destroyed; the risk to the employer of acquiring obligations in respect of redundancy payments or compensation for unfair dismissal to a replacement employee; whether wages have continued to be paid; the acts and statements of the employer in relation to the employment, including the dismissal of, or failure to dismiss, the employee; whether in all the circumstances a reasonable employer could be expected to wait any longer. Constructive Dismissal 4.4. A termination of the contract by the employee will constitute a dismissal within section 95(1)(c) of the Employment Rights Act 1996 (“ERA 1996”) if he or she is entitled to so terminate it because of the employer's conduct. That is a constructive dismissal. 4.5. For the employee to be able to claim constructive dismissal, the employee must establish that the following four conditions are met: i) There must be a breach of contract by the employer. ii) That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving. iii) The employee must leave in response to the breach and not for some other, unconnected reason. iv) The employee must not delay too long in terminating the contract in response to the employer's breach, otherwise he or she may be deemed to have waived the breach and agreed to the variation of the contract or affirmed it. 4.6. A repudiatory breach of contract is a significant breach, going to the root of the contract (Western Excavating (ECC) Ltd v Sharp [1978] ICR 221). That is to be decided objectively by considering its impact on the contractual relationship of the parties (Millbrook Furnishing Industries Ltd v McIntosh (1981) IRLR 309) 4.7. It also follows that there will be no breach simply because the employee subjectively feels that such a breach has occurred no matter how genuinely this view is held. If, on an objective approach, there has been no breach, then the employee's claim will fail (see Omilaju v Waltham Forest London Borough Council [2005] EWCA Civ 1493, [2005] IRLR 35). 4.8. Employment contracts contain an implied term of mutual trust and confidence. The parties to the contract will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust which should exist between employer and employee (Malik v BBCI SA (in liq) [1998] AC 20). 4.9. It is not simply about unreasonableness or unfairness. The question is whether the conduct complained of was likely to destroy or seriously damage the relationship of trust and confidence. 4.10. it is not necessary in each case to show a subjective intention on the part of the employee to destroy or damage the relationship, a point reaffirmed by the EAT in Leeds Dental Team Ltd v Rose [2014] IRLR 8, EAT. As Judge Burke put it: ''The test does not require a Tribunal to make a factual finding as to what the actual intention of the employer was; the employer's subjective intention is irrelevant. If the employer acts in such a way, considered objectively, that his conduct is likely to destroy or seriously damage the relationship of trust and confidence, then he is taken to have the objective intention spoken of…'' 4.11. The general principles of contract law applicable to a repudiation of contract are that if one party commits a repudiatory breach of the contract, the other party can choose either to affirm the contract and insist on its further performance or he can accept the repudiation, in which case the contract is at an end. The innocent party must at some stage elect between these two possible courses: if he once affirms the contract, his right to accept the repudiation is at an end, but the election to affirm is not required within any specific period. 4.12. Delaying too long or, by conduct, indicating acceptance of the change, can point to affirmation. It is not simply a matter of time, in isolation. In WE Cox Toner (International) Ltd v Crook, [1981] IRLR 443, it is established that mere delay by itself (unaccompanied by any express or implied affirmation of the contract) does not constitute affirmation of the contract; but if it is prolonged it may be evidence of an implied affirmation. Simply continued working and the receipt of wages points towards affirmation. Nevertheless, if the innocent party further performs the contract to a limited extent but at the same time makes it clear that he is reserving his rights to accept the repudiation or is only continuing so as to allow the guilty party to remedy the breach, such further performance does not prejudice his right subsequently to accept the repudiation. 4.13. In IBM UK Holdings Ltd v Dalgleish [2017] EWCA Civ 1212, [2018] IRLR 4 it was held that in general the circumstances will have to be 'extreme' for a refusal of a pay increase per se to breach the term of trust and confidence; although there will be cases of arbitrary or capricious refusals of pay rises (instancing Transco plc v O'Brien [2002] IRLR 444, [2002] ICR 721, CA) Direct Discrimination 4.14. Direct discrimination is provided for under the Equality Act 2010 (“EA 2010”) by section 13(1): “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.’ 4.15. By section 39(2) of the EA 2010, ‘An employer (A) must not discriminate against an employee of A’s (B) (a) as to B’s terms of employment; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;(c) by subjecting B to any other detriment.’ 4.16. Detriment does not require a physical or economic consequence; it is sufficient that a reasonable person might take the view that they have been disadvantaged: “Detriment exists if a reasonable worker would, or might, take the view that the treatment accorded to her had in all the circumstances been to her detriment. It is not necessary to demonstrate some physical or economic consequence.” (Shamoon v Chief Constable of RUC [2003] IRLR 285 HL) 4.17. As the Equality Act Statutory Code of Practice on Employment (the “Code of Practice”), explains, at paragraph 3.5: ‘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.’ The comparator 4.18. Essential to the consideration of less favourable treatment is the question of comparison. 4.19. By section 23 of the EA 2010, “On a comparison of cases for the purposes of sections 13, 14 and 19, there must be no material difference between the circumstances relating to each case.” 4.20. This is dealt with by the Code of Practice at paragraphs 3.22 onwards. 4.21. The other approach is to say but for the relevant protected characteristic, would the claimant have been treated in this way? That may be helpful in identifying a hypothetical comparator (Code of Practice, 3.27). Failure to make reasonable adjustments 4.22. The EA 2010, by section 39(5), imposes a duty on employers to make reasonable adjustments. 4.23. The duty is set out at section 20 of the EA 2010. 4.24. The duty comprises three requirements. Here the first is relevant and that applies where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. 4.25. A failure to comply with those requirements is a failure to make reasonable adjustments. By section 21(1) and (2), “A discriminates against a disabled person if A fails to comply with that duty in relation to that person”. 4.26. The duty does not arise where A did not know and could not reasonably be expected to know that B has a disability and is likely to be placed at the disadvantage referred to – that is the effect of schedule 8, paragraph 20, as amended, to the EA 2010. However, the employer must do all they can reasonably be expected to do to find out whether a worker has a disability and is, or is likely to be, placed at a substantial disadvantage. So, knowing of a condition such as dyslexia, the employer has a duty to do what it reasonably can to establish the effects of that and so avoid the risk of a substantial disadvantage arising. 4.27. Guidance is given in the ACAS Code of Practice in Employment (2011), at paragraph 6.19, What is reasonable to do will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially. 4.28. The following example is then given, “A worker who deals with customers by phone at a call centre has depression which sometimes causes her to cry at work. She has difficulty dealing with customer enquiries when the symptoms of her depression are severe. It is likely to be reasonable for the employer to discuss with the worker whether her crying is connected to a disability and whether a reasonable adjustment could be made to her working arrangements.” 4.29. In Wilcox v Birmingham CAB Services Ltd [2011] Eq:R.S810, the EAT took the view that unless the employer had actual or constructive knowledge of the disability, the question of substantial disadvantage did not arise. An employer will be taken to have the requisite knowledge provided that they are aware of the impairment and its consequences. There is no need for them to be aware of the specific diagnosis (Jennings v Barts and the London NHS Trust [2013] Eq:R 326 EAT). If an agent or employee knows in that capacity of a worker’s disability, the employer will not usually be able to claim that they do not know, see para 6.21 of the Code. 4.30. Where a disabled person keeps a disability confidential, no duty arises for the employer “unless the employer could reasonably be expected to know about it anyway.” (Code para 6.20) 4.31. And, “If a disabled person expects an employer to make a reasonable adjudgment, they will need to provide the employer … with sufficient information to carry out that adjustment.” 4.32. No like for like comparator is required – the comparison may be between those who could do the job and the disabled person. As explained in Royal Bank of Scotland v Ashton ([2011] ICR 632), the tribunal must identify the non-disabled comparator or comparators. That may be a straightforward exercise, “In many cases, the facts will speak for themselves and the identity of the non-disabled comparators will be clearly discernible from the provision, criterion or practice found to be in play.” (Fareham College Corporation v Walters ([2009] IRLR 991) 4.33. There is no onus on the disabled worker to suggest what adjustments ought to be made. It is good practice for employers to ask. If the disabled person does make suggestions, the employer should consider whether such adjustments would help overcome the substantial disadvantage and whether they are reasonable. (Code of Practice para 6.24) 4.34. It is a good starting point for an employer to conduct a proper assessment, in consultation with the disabled person concerned, of what reasonable adjustments may be required. … It is advisable to agree any proposed adjustments with the disabled worker in question before they are made. (Code of Practice para 6.32.) 4.35. In considering whether there has been a failure to make reasonable adjustments, the tribunal must identify the step or steps it is reasonable to take to avoid the disadvantage. 4.36. The process for the Tribunal therefore is to identify: (a) the employer’s provision, criterion or practice which causes the claimant ’s disadvantage (b) the identity of the persons who are not disabled with whom comparison is made (c) the nature and extent of the substantial disadvantage suffered by the employee(d) what step or steps it is reasonable for the employer to have to take to avoid the disadvantage (General Dynamics Information Technology Ltd v Carranza [2015] IRLR 43). 4.37. The Tribunal must identify all of those to judge whether the proposed adjustment is reasonable. It must identify the nature and extent of the substantial disadvantage suffered by the claimant, including, if applicable, any cumulative disadvantage, say, from both provisions applied and physical features. In the absence of that, it is not possible to identify the adjustments that are reasonable to prevent the disadvantage. There is no need to find that the adjustment would have prevented the adverse effects. The Tribunal is entitled to find that the adjustment proposed was a reasonable option with a not unreasonable chance of success (The Environment Agency v Rowan [2008] IRLR 20). 4.38. Assessing the reasonableness of any particular step, relevant factors will be how effective it will be in preventing the substantial disadvantage, how practicable it is, how much it will cost and how disruptive it may be, the size and resources of the employer and the nature of the business. It may also be relevant that external resources are available to help provide adjustments (Code para 6.28). 4.39. Failure to make a reasonable adjustment cannot be justified, but only reasonable steps fall within the duty. Whether or not adjustments were reasonable in the circumstances is to be determined by the employment tribunal objectively, (HM Land Registry v Wakefield [2009] All E R 205 (EAT). 4.40. There must be at least a prospect, a possibility, that the proposed adjustments would succeed but not more (Cumbrian Probation Board v Collingwood [2008] UKEAT/0079/08, paragraph 50; Leeds Teaching Hospital NHS Trust v Foster [2011] EQLR 1075, paragraph 17; North Lancs Teaching Primary Care Trust v Howorth UKEAT/0294/13.) Harassment 4.41. By section 26(1) of the EA 2010, “A person (A) harasses another (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.” 4.42. In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must, by section 26(4), be taken into account – “(a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.” 4.43. Harassment is discussed in Chapter 7 of the Code of Practice. Paragraph 7.8 explains that, “The word ‘unwanted’ means essentially the same as ‘unwelcome’ or ‘uninvited’. ‘Unwanted’ does not mean express objection must be made to the conduct before it is deemed to be unwanted. A serious one-off incident can also amount to harassment.” 4.44. Paragraph 7.9 explains that “related to” has a broad meaning, in that the conduct does not have to be “because of” the protected characteristic. 4.45. Section 26(4) is more fully discussed at paragraph 7.18 of the Code. The perception of the worker is a subjective question and depends on how the worker regards the treatment. 4.46. In paragraph 15 of Richmond Pharmacology v Dhaliwal 2009 [IRLR] 336, the nature of harassment is explored in similar terms: “The proscribed consequences are, of their nature, concerned with the feelings of the putative victim; that is, the victim must have felt, or perceived, her dignity to have been violated or an adverse environment to have been created. That can, if you like, be described as introducing a “subjective” element; but overall the criterion is objective because what the tribunal is required to consider is whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so. ….It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence….:” 4.47. Section 27(1) of the EA 2010 provides that: “A person (A) victimises another person (B) if A subjects B to a detriment because – B does a protected act . . .” 4.48. A protected act includes bringing proceedings under the Act: s 27(2). There is no concept of less favourable treatment as such in this formulation of the wrong. However, if a tribunal finds that the reason for particular conduct adverse to an employee is victimisation, there is implicit in that conclusion a finding that but for having taken the protected act, the employee would have been treated more favourably. Burden of proof 4.49. By section 136(2) and (3) of the EA 2010, the test in respect of the burden of proof is set out: “(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.’ 4.50. The switching of the burden of proof is simply set out in the Code at para 15.34: “If a claimant has proved facts from which a tribunal could conclude that there has been an unlawful act, then the burden of proof shifts to the respondent. To successfully defend a claim, the respondent will have to prove, on balance of probability, that they did not act unlawfully. If the respondent’s explanation is inadequate or unsatisfactory, the tribunal must find that the act was unlawful.” 4.51. For the burden of proof to shift, the claimant must show facts sufficient – without the explanation referred to – to enable the tribunal to find discrimination. The Barton guidelines as amended in the Igen case (Igen v Wong, 2005 IRLR 258 CA), remain the basis for applying the law notwithstanding the re-enactment of discrimination legislation in the 2010 Act. It is those guidelines that establish the two-stage test, “The first stage requires the complainant to prove facts from which the Employment Tribunal could, apart from the section, conclude in the absence of an adequate explanation that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant. The second stage, which only comes into effect if the complainant has proved those facts, requires the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld (Peter Gibson LJ, para 17, Igen) 4.52. The Tribunal is required to make an assumption at the first stage which may be contrary to reality. 4.53. In Hewage v Grampian Health Board [2012] UKSC 37, the application of the Barton/Igen guidelines to cases under the EA 2010 is approved at the highest level. At paragraph 33, Lord Hope, on the burden of proof provisions, says, “They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence…” 4.54. In Laing and Manchester City Council and others, 2006 IRLR 748, the correct approach in relation to the two-stage test is discussed, “No doubt in most cases it will be sensible for a tribunal formally to analyse a case by reference to the two stages. But it is not obligatory on them formally to go through each step in each case…. (para 73) The focus of the tribunal’s analysis must at all times be the question whether or not they can properly and fairly infer race (or other) discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a tribunal to say, in effect, ‘there is a nice question as to whether the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race’. 4.55. The nub of the question remains why the claimant was treated as he or she was: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.” (Madarassy v Nomura International plc) 2007 IRLR 246). 4.56. In that case, in a judgment later approved by the Supreme Court in Hewage, above, Mummery LJ pointed out that the employer should be able to adduce at stage one evidence to show “that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which comparisons are made are not truly like the complainant or the situation of the complainant.” 4.57. The “something more” that may lead a Tribunal to move beyond the difference in status and treatment need not be substantial – it may be derived from the factual context including inconsistent or dishonest explanations (see Base Childrenswear Ltd v Otshudi 2019 EWCA Civ 1648 CA; Veolia Environmental Services UK v Gumbs EAT 0487/12. 4.58. The presence of discrimination is almost always a matter of inference rather than direct proof – even after the change in the burden of proof, it is still for a claimant to establish matters from which the presence of discrimination could be inferred, before any burden passes to his or her employer. 4.59. In drawing inferences, an uncritical belief in credibility is insufficient’ as Sedley LJ pointed out in Anya v University of Oxford 2001 IRLR 377 CA (paragraph 25) it may be very difficult to say whether a witness is telling the truth or not. Where there is a conflict of evidence, reference to the objective facts and documents, to the likely motives of a witness and the overall probabilities can give a court very great assistance in ascertaining the truth. 4.60. In Talbot v Costain Oil, Gas and Process Ltd and ors 2017 ICR D11, EAT, His Honour Judge Shanks — having looked at the relevant authorities — summarised the following principles for employment tribunals to consider when deciding what inferences of discrimination may be drawn: it is very unusual to find direct evidence of discrimination normally an employment tribunal’s decision will depend on what inference it is proper to draw from all the relevant surrounding circumstances, which will often include conduct by the alleged discriminator before and after the unfavourable treatment in question it is essential that the tribunal makes findings about any ‘primary facts’ that are in issue so that it can take them into account as part of the relevant circumstances the tribunal’s assessment of the parties and their witnesses when they give evidence forms an important part of the process of inference assessing the evidence of the alleged discriminator when giving an explanation for any treatment involves an assessment not only of credibility but also of reliability, and involves testing the evidence by reference to objective facts and documents, possible motives and the overall probabilities where there are a number of allegations of discrimination involving one person, conclusions about that person are obviously going to be relevant in relation to all the allegations the tribunal must have regard to the totality of the relevant circumstances and give proper consideration to factors that point towards discrimination in deciding what inference to draw in relation to any particular unfavourable treatment if it is necessary to resort to the burden of proof in this context, S.136 EqA provides, in effect, that where it would be proper to draw an inference of discrimination in the absence of ‘any other explanation’, the burden lies on the alleged discriminator to prove there was no discrimination. 4.61. Unreasonable conduct or poor management does not of itself point to discrimination. There must be indications from the evidence that point to the unreasonable conduct relating to the prohibited ground (Laing v Manchester City Council and anor 2006 ICR 1519, EAT). 4.62. 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’. 4.63. Equally, it cannot be simply inferred that the fact that an employer has acted unreasonably towards one employee means it would have acted the same way towards others. A failure to explain unreasonable conduct by the employer can support an inference of discrimination. If an employer acts in a wholly unreasonable way, it may be inferred that the explanation offered is not the true or full explanation (Rice v McEvoy 2011 NICA 9 NICA). In all cases, the drawing of inferences involves careful consideration of the surrounding facts:. “Facts will frequently explain, at least in part, why someone has acted as they have” (Elias P in Laing (above). 4.64. However, ‘Merely because a tribunal concludes that an explanation for certain treatment is inadequate, unreasonable or unjustified does not by itself mean the treatment is discriminatory, since it is a sad fact that people often treat others unreasonably irrespective of race, sex or other protected characteristic.’ Simler P, Chief Constable of Kent Constabulary v Bowler EAT 0214/16 4.65. As stated by the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 ICR 337, HL, an unjustified sense of grievance does not point to less favourable treatment. 4.66. Where a case consists of several allegations, the Tribunal must consider each separately to determine whether less favourable treatment occurred by comparison with others, so as to shift the burden of proof, rather than taking a broad-brush approach in respect of all the allegations (Essex County Council v Jarrett EAT 0045/15). Appraisal and Grievances 4.67. In the ACAS Code of Practice on Employment, this guidance is given, “An appraisal is an opportunity for a worker and their line manager to discuss the worker’s performance and development. Appraisals usually review past behaviour and so provide an opportunity to reflect on recent performance. They also form an important part of a worker’s continuing training and development programme.” (para 17.78) “Employers should also be aware of the duty to make reasonable adjustments when discussing past performance. For example, they should consider whether performance would have been more effective had a reasonable adjustment been put in place, or introduced earlier. Appraisals may also provide an opportunity for workers to disclose a disability to their employer, and to discuss any adjustments that would be reasonable for the employer to make in future.” (17.80) “To avoid discrimination, when conducting appraisal, employers are recommended to make sure that performance is measured by transparent, objective and justifiable criteria using procedures that are consistently applied. 4.68. The following guidance is given on grievances: “Where a grievance involves allegations of discrimination or harassment, it must be taken seriously and investigated promptly and not dismissed as “over-sensitivity on the part of the worker” (17.94) “It is strongly recommended that employers properly investigate any complaints of discrimination. If a complaint is upheld against an individual co-worker or manager, the employer should consider taking disciplinary action against the perpetrator. Time Limits 4.69. Section 123 of the EA 2010 sets out the period within which proceedings are to be brought. 4.70. Proceedings on a complaint within section 120 may not be brought after the end of: (a) the period of 3 months starting with the date of the act to which the complaint relates or b) such other period as the employment tribunal thinks just and equitable. That means that a claim must be presented before the end of the three-month period beginning when the act complained of was done. 4.71. By section 123(3), “ For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. 4.72. By section 123(4) “In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. 4.73. In Hendricks v Metropolitan Police Commissioner [2002) EWCA Civ 1686, in particular paragraphs 51 and 52, continuing acts are explored, concluding simply, “The question is whether there is an act extending over a period as distinct from a succession of unconnected or isolated specific acts for which time would begin to run from the date when each specific act was committed.” 4.74. The question is whether the employer is responsible for “an ongoing situation or continuing state of affairs” in which the members of the defined group are treated less favourably. It is wrong to pay close attention to words such as 'policy', 'rule', 'practice', 'scheme' or 'regime', as these are but examples of when an act extends over a period. 4.75. Citing from Hendricks, Choudhary P in South Western Ambulance NHS Foundation Trust v King [2020] IRLR 168. warned '… that reliance cannot be placed on some floating or overarching discriminatory state of affairs without that state of affairs being anchored by specific acts of discrimination occurring over time. The claimant must still establish constituent acts of discrimination or instances of less favourable treatment that evidence that discriminatory state of affairs.' (at [36]) 4.76. The time limits set are extended by section 140B of the Equality Act to facilitate conciliation before the institution of proceedings. 4.77. Section 140B sets out that extension, as follows. “In this section— (a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and (b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section. (3) In working out when the time limit set by section 123(1)(a) or 129(3) or (4) expires the period beginning with the day after Day A and ending with Day B is not to be counted. (4) If the time limit set by section 123(1)(a) or 129(3) or (4) would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period. 4.78. The day on which the claimant complies with the requirement to provide information to ACAS is (“Day A”). The period between the day after Day A and ending with the day on which the claimant receives or is treated as having received the conciliation officer’s certificate (“Day B”) is not counted in computing time for the purposes of time limits. 4.79. Once early conciliation has ended, the claimant has at least one calendar month to present the claim. “One month” means on the 'corresponding date' so where day B is 30 June, the time limit will expire on 30 July (Tanveer v East London Bus & Coach Co Ltd [2016] 4.80. If a time limit would otherwise expire during the period, beginning with Day A and ending one month after Day B, the time limit expires one month after Day B. 4.81. If the time limit would otherwise expire after the period of one month after day B, then time is extended by a period equivalent to the early conciliation period – that is, the period from the day after Day A and ending with Day B. 5. Submissions 5.1. Ms Platt provided written submissions, amplified at the hearing. Ms Bow made some oral submissions. Both were helpful throughout the hearing. 6.