Mr M Ali v Capita Customer Management Ltd: 1800990/2016
EMPLOYMENT TRIBUNALS
Case No 1800990/2016
Between
Mr M AliClaimantCapita Customer Management LtdRespondent
Before
Employment Judge Rogerson
Members
Mr R WebbMr J RhodesMr P Wilson (instructed by Counsel) for respondentDate 29 April 2021
JUDGMENT
[1]The Claimant’s complaint of direct sex discrimination succeeds.[2]The Claimant’s complaint of victimisation in relation to acts of victimisation by the Respondent on 14 July 2016, 27 July 2016, 28 July 2016 and 21 December 2016, succeeds. The Claimant’s complaint in relation to an alleged act of victimisation on 16 August 2016 fails, and is dismissed.[3]A remedy hearing is listed for 1 day on 4 April 2017 to determine remedy in relation to the successful complaints. The Claimant is to provide a schedule of loss to the Respondent and to the Tribunal by no later than 14 days prior to the remedy hearing. The Respondent is to provide a counter-schedule to the Claimant and Tribunal by no later than 7 days prior to the hearing.
REASONS
[1]By a claim form presented on 22 June 2016, the Claimant made complaints of direct and indirect sex discrimination and victimisation.[2]Dealing with the sex discrimination complaints first. The Claimant complains that as a male employee he was entitled to only two weeks paid leave following the birth of his child in April 2016, whereas a female Telefonica transferred employee, would be entitled to 14 weeks pay following the birth of her child. The Claimant accepted there was a material difference in circumstances/justified special treatment of a hypothetical female employee for the first two weeks of that leave because that female, the mother, was required to take ‘compulsory maternity leave’ which is related to her biological/physiological condition and recovery following childbirth. For that 2 week period the comparator was in a position unique to women who have given birth. However in that 2 week period, he was also paid his full pay for taking parental leave, so was not less favourably treated in relation to his pay/leave. His complaint is that in the following 12 weeks, when he wanted to take leave with pay, in order to care for his baby daughter, (because his wife was suffering with postnatal depression) he was deterred from taking the leave. This was because he was told that as the father he would only receive statutory pay not full pay for that leave. He argued that after the 2 weeks compulsory leave either parent (mother/father) could care for their baby, depending on the choices made by the parents and their particular circumstances. The assumption made that as a man (the father) caring for his baby, he was not entitled to the same pay as a woman (the mother) performing that role, took away the choice he and his wife wanted to make as parents for their baby. It was directly discriminatory on the grounds of sex, and was not a valid assumption to make in 2016.[3]The Respondent advanced 3 arguments against this. The first was that the comparison made by the Claimant was not a valid comparison because the Claimant had not given birth. The law entitles only female employees the right to maternity leave and the ancillary right to maternity pay for this reason because of the special considerations which stem from that biological fact and which can only apply to women who are pregnant or who have recently given birth. The second is that section 13(6) (b) of the Equality Act 2010 applies and the Claimant cannot take any account of the special treatment afforded to a women in connection with pregnancy/childbirth. In relation to pay, 14 weeks enhanced maternity pay was reasonably necessary to ensure that women are not disadvantaged by giving birth and taking maternity leave (Eversheds Legal Services Ltd-v- De Belin 2011IRLR448). It is confined to the minimum period of maternity leave provided for under the Pregnant Workers Directive 92/85/EEC and therefore no account should be taken of this benefit. The 3rd argument was that although the Claimant was ‘deterred’ from applying he did not apply and hence cannot say that he was in fact treated less favourably than his hypothetical comparator because he did not take the leave (Baldwin –v- Brighton &Hove City Council (2007)IRLR 232. Relevant Policies[4]The ‘entitlement’ to pay for maternity and parental leave was not a contractual term but was contained in separate Telefonica policies that transferred with the transferring employees. Female Telefonica transferring employees were entitled to maternity pay in accordance with the Telefonica maternity policy dated December 2011. The policy provides three options for maternity pay of up to 39 weeks. If an employee had 26 weeks service she was entitled to receive the most favourable of 3 options from: 1. “14 weeks company maternity pay followed by 25 weeks lower rate statutory maternity pay. 2. 6 weeks higher rate statutory maternity pay followed by eight weeks company maternity weeks and then 25 weeks lower rate statutory maternity pay. 3. 6 weeks higher rate statutory maternity pay followed by 33 weeks lower rate statutory maternity pay”. Clearly the most favourable option was 14 weeks basic pay followed by 25 weeks statutory maternity pay for the balance of the leave. 4.1. The Claimant as a father and male employee was entitled to paternity leave and pay under the Telefonica policy. That policy also applied to same sex couples providing you were the partner of the mother and would “share responsibilities for bringing up your new baby”. Page 47 of the policy deals with paternity leave and provides up to 2 weeks paid Ordinary Paternity Leave (OPL) and up to a further 26 weeks Additional Paternity Leave (APL), which ‘may or may not be paid’. “Ordinary Paternity Leave (OPL) is paid time out to enable you to spend time with your newly born baby (or newly adopted child). Ordinary paternity leave is up to two weeks leave. The earliest you can choose to start your paternity leave is immediately your baby is born or within eight weeks after the birth. The payment provisions for the leave are that you will be paid as usual during your ordinary paternity leave”. The Claimant was therefore entitled to, and was paid the benefit of his full pay for two weeks after the birth of his daughter to spend time with his “newly born baby”. A parent adopting a child would also get that leave and pay. 4.2. For parents of either sex adopting a child the statutory provisions applied and provided for Statutory Adoption Leave (‘SAL’) of up to 52 weeks and an entitlement to 39 weeks of Statutory Adoption Pay (SAP). SAL comprises of 26 weeks Ordinary Adoption Leave (OAL) which can start from the date of the child’s placement or from a fixed date up to 14 days before the expected date of placement, followed immediately by 26 weeks of Additional Adoption Leave (AAL). 4.3. SAL may be taken by either of the adopting parents where a couple adopts jointly. The parents can choose which partner (male or female) will take SAL to care for the child when neither parent has given birth. The parent who will be taking SAL is known as the ‘Primary Adopter’ and the other parent, the ‘Secondary Adopter’. SAP begins when OAL starts and will continue for 39 weeks. Employees who qualify will receive the higher rate SAP which is 90% of average weekly pay for the first 6 weeks of adoption then the lower rate SAP for the remaining 33 weeks. The remaining 13 weeks SAL is unpaid. This entitlement to pay mirrors the statutory maternity pay provisions but unlike maternity there is no 2 week compulsory maternity leave period reserved for the mother. In adoptions the leave can start when child has been placed with the adoptive parents.[5]The background facts to the sex discrimination complaint were not disputed and are as follows:- 5.1. The Claimant is a current employee of the Respondent working now as a Business Customer Adviser (BCA) in the BE Team based in Arlington Leeds. 5.2. In July 2013, his employment had transferred to the Respondent as part of a TUPE transfer from Telefonica and he had accrued 12 years service by the time of these complaints. 5.3. In August 2015, the Claimant was asked to move to the Business Retentions Team (BRT) from the BE team because of his good past performance and experience. This role gave the Claimant greater autonomy, authority and entitled him to participate in a better bonus scheme. 5.4. The Claimant’s daughter was born on 5 February 2016. She was born 2 weeks prematurely but the Claimant was able to take his 2 weeks paternity leave immediately following her birth (from 8-19 February 2016) for which he was paid. 5.5. During that paternity leave, he informed his manager, team leader Lora Tummons that his wife had been diagnosed with post natal depression. 5.6. Fortunately, the Claimant had booked annual leave which was to commence on the due date of his baby and he was able to take a further week’s paid leave to care for his wife and daughter. 5.7. On 7 March 2016, he returned to work. He was concerned about the health and well being of his wife and baby and wanted to take time off to care for his daughter. This was in circumstances where his wife was suffering with post natal depression and had been medically advised to return to work to assist her recovery. The Claimant asked Lora Tummons about this and she sought advice from the Senior Management Team. 5.8. In her email seeking guidance, dated 7 March 2016, Laura Tummons recognises the particular circumstances in which the request was made. She states “I have an adviser who is looking into taking his partners maternity and her going back to work”. Her line manager, the Operations Manager, Helen Marriot had not come across this situation before and referred Ms Tummons to Debbie Oddie from HR. 5.9. On 9 March 2016, a meeting took place between the Claimant, Debbie Oddie and Laura Tummons at which the Claimant was told he was eligible for shared parental leave (SPL) under the Capita policy but would only be entitled to statutory pay. 5.10. The Claimant discussed this with his female Telefonica transferred colleagues at work and they confirmed that they were entitled to full pay for 14 weeks maternity leave. He believed he should get the same entitlement in his particular circumstances under the Telefonica policy. 5.11. The Claimant raised his concerns with his union (CWU). His union representative, Steve Faber Hamilton then communicated with Debbie Oddie and set out the complaint of sex discrimination the Claimant was making: “Madasar informs me that following the birth of his first child by his wife in February 2016, she is suffering from post natal depression. As a result of this and in order to help his wife overcome her illness, she has made the decision that she wishes to return to her work to help return to some normality. This would result in her handing over all her remaining maternity leave and pay entitlement to her husband who is allowed to do so under the new shared parental leave legislation. However in doing so Madasar has been advised by the business (Capita) that he would only benefit in being paid the Statutory Shared Parental Leave amount which would put him at a huge financial detriment. Clearly because of this he is not happy. Madasar has stated that he is quite prepared to bring a direct and or indirect sex discrimination tribunal claim against Capita which could result in an award for injury to feelings and financial losses he has suffered as a result of such discriminatory treatment. Given that the government has decided upon levelling the playing field by introducing the Shared Parental Leave Regime allowing both mothers and fathers to take leave without any distinction, a father taking shared parental leave who is not able to benefit from the same maternity pay his employer offers to mothers absent during the same period would effectively be the subject of discriminatory behaviour. In order to prevent litigation, Madasar expects to receive confirmation within a reasonable timeframe that he will receive the same maternity entitlements that our female employees who have also TUPE’d across from Telefonica to Capita receive.” 5.12. Ms Oddie in her witness statement states that in introducing SPL at a statutory rate for all staff, the Respondent was putting its staff on a level playing field by ensuring men and women who took leave were treated equally. 5.13. However under the Telefonica policy, men and women who took leave to care for their babies were not on a level playing field and were not treated equally in relation to pay. At paragraph 14 she states that “it was not considered necessary or reasonable for variances to rate of pay to be applied as suggested by the Claimant within the Telefonica contract and, if that had been done, it would have been necessary to apply across all staff on that contract whether they were former Telefonica or not, in order to uphold this aim of treating staff consistently and fairly especially where they are working together”. This she states is an example of how the Respondent has recognised and has sought to achieve the aim of “treating groups of staff working together, as fairly and consistently as far as practicable”. 5.14. The Claimant and his union were never provided with this explanation at the time. If they had been they might have argued that it was not a case where they were seeking consistency across the whole workforce but were seeking consistency of treatment in the way the Telefonica policy was being applied to the Claimant in his particular circumstances. 5.15. As a result of Ms Oddie’s response to the Union, the Claimant raised a grievance by email dated 5th April 2016 alleging sex discrimination. In his grievance he states: “I find it unfair that the company only pays statutory pay for shared parental leave and gives enhanced pay to the female member of staff when she is on maternity leave. I find this to be discrimination against me as I am a male and don’t get the same treatment as a female”. 5.16. It was accepted that the grievance is a ‘protected act’ by virtue of section 27(2) of the Equality Act 2010 for the purposes of the Claimant’s victimisation complaint. 5.17. What follows is an unnecessarily long and drawn out grievance process which results in a very short outcome letter which fails to address the complaint made of sex discrimination. By letter dated 23 May 2016, Ms Stubbs (Operation Manager) responds by reciting the grievance, setting out her investigation and summarising her findings. Her investigation comprised 2 meetings with the Claimant on 15 April 2016 and 10 May 2016, a review of the manager’s guide/working/leave/leave-family related/shared parental leave and ‘consulting with HR as this is the first known grievance in relation to this subject’. 5.18. Ms Stubbs finding was that “Capita do not have a legal obligation to pay the paternal father at an enhanced rate for parental leave’. Neither Ms Stubbs nor Ms Oddie (the HR adviser consulted by Ms Stubbs) could explain why the actual complaint made of alleged sex discrimination was not addressed in the outcome letter. We did not see the manager’s guide referred to. It was agreed that there had been no consideration of the Telefonica policies the Claimant had referred to, or to the Respondent’s Equal Opportunities Policy to explain to the Claimant why his complaint of unequal treatment on the grounds of sex was not upheld. 5.19. At this hearing Ms Oddie produced some statistical information about the numbers of employees who transferred from Telefonica in July 2013. There were 1,119 females and 1,189 males (a very small difference between the sexes of 70). It was clear there was no problem in this case in recruiting and retaining female employees. Of those employees we were told there had been no applications for parental or shared parental leave. Applicable Law. Direct Sex Discrimination 5.20. Part 5 (Work) Section 39(2) of the Equality Act 2010 provides that: (2) An employer(a) (A) must not discriminate against an employee of A’s(b) (B) (b) in the way A affords access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility, or service. (d) by subjecting B to any other detriment. Section 13 (Direct Discrimination) provides that: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. (6) If the protected characteristic is sex- (b) in a case where B is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth. Section 23 Comparison by reference to circumstances provides that: (1) On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case. 5.21 We were also referred to the guidance given by the Employment Appeal Tribunal in Eversheds Legal Services Ltd –v- De Belin 2011 IRLR448 where the limits of the predecessor provision to section 13(6)(b) of the Equality Act 2010, (section 2(2) of the Sex Discrimination Act 1975) was considered. In that case Mr De Belin and Ms Reinholz were assessed against various performance criteria in a redundancy process, one of which was ‘lock up’ which measured the length of time between undertaking a piece of work and receipt of payment from the client. Ms Reinholz was absent on maternity leave at the time of measurement and was awarded the notional maximum score, whereas Mr De Belin received his actual score. This was the crucial distinction between them and led to Mr De Belin’s selection for redundancy. The EAT upheld the Tribunal’s conclusion that the Claimant had been subjected to unlawful direct discrimination notwithstanding that the woman’s treatment had been afforded to her in connection with leave consequent on pregnancy and childbirth. 5.22 Paragraph 13 of the judgement of the President, Underhill J as he then was states: “We see no conceptual objection to a man bringing a sex discrimination claim by reference to the more favourable treatment of a colleague on account of her being pregnant or on maternity leave. Those are gender specific criteria and discrimination by reference to them is, other things being equal, sex discrimination”. 5.23 Paragraph 29 states: “the obligation in question cannot extend to favouring pregnant employees or those on maternity leave beyond what is reasonably necessary to compensate them for the disadvantages occasioned by their condition…..To the extent that a benefit extended to a woman who is pregnant or on maternity leave is disproportionate, we see no reason why a colleague who is correspondingly disadvantaged should not be entitled to claim for sex discrimination. 5.24 In closing submissions, Mr Wilson also relies on paragraph 33 and invites the Tribunal to draw a ‘distinct bright line’ in this case so that no account at all is taken of the full 14 weeks pay, paid to mothers by the Respondent: “No doubt an interpretation of s2(2) which protected employers from liability in respect of any advantageous treatment afforded to women who are pregnant or on maternity leave, however excessive or unfair to their colleagues such treatment might be, would provide a more distinct ‘bright line’. But the price would be too high. The well tried and familiar proportionality principle seems to us to strike the right balance. It is a flexible principle, which in an appropriate case will allow a wide margin of discretion to employers as to the appropriate special treatment to be accorded to pregnant employees and those on maternity leave, particularly where such advantages are not directly at the expense of their colleagues and do not cause them serious prejudice. Captious claims by male colleagues who resent proper protection given to pregnant women and mothers can expect short shrift. But the present case is not of that kind: the disproportionate advantage to Ms Reinholz meant a direct and unfair corresponding disadvantage to the claimant”. 5.25 There is no suggestion made and we did not find that the Claimant was pursuing a ‘captious claim’. This was a genuine complaint by a father wanting equal treatment for the purpose of taking time off to care for his baby. In the Eversheds case the ‘margin of discretion’ applied to the particular facts of that case. It applied in relation to how far Ms Reinholz should be ‘advantaged’ in a redundancy scoring exercise, due to the fact that exercise took place whilst Ms Reinholz was on maternity leave. The factual matrix was very different to the Claimant’s case where he contends there are no crucial distinctions between him and his hypothetical comparator after the 2 week compulsory leave period. 5.26 The Claimant’s contends that in the context of ‘pregnancy and childbirth’ any special treatment/distinction made by the Respondent between him and his comparator should be limited to that 2 week period after the birth, because this time was a health and safety measure associated specifically to childbirth. In his case for the 12 week period he relies upon for the purposes of the comparison there was no need to apply any ‘margin of discretion’. 5.27 The Respondent contends that the special treatment extends for the whole of the 14 week period and Mr Wilson refers us to the Pregnant Worker’s Directive 92/86/EEC and specifically Article 8 which deals with maternity leave and provides that: 1. “Member states shall take the necessary measures to ensure that workers within the meaning of Article 2 are entitled to a continuous period of maternity leave of at least 14 weeks allocated before and/or after confinement in accordance with national legislation and/or practice; 2. The maternity leave stipulated in paragraph 1 must include compulsory maternity leave of at leave two weeks allocated before and/or after confinement in accordance with national legislation and/or practice”. 5.28 In relation to pay, Mr Wilson refers to the preamble to the Directive which provides that: “whereas moreover provision concerning maternity leave would also serve no purpose unless accompanied by the maintenance of rights linked to the employment contract and/or entitlement to an adequate allowance”. This is the reason he says that employers are required to pay statutory maternity pay to support pregnant employees and employees who have recently given birth. He accepts in his submissions that the maternity leave and maternity pay are also provided in order to “facilitate the care of a child in its first year of life” and that need or consideration is not exclusive to women who have recently given birth. That does not explain why the ‘adequate allowance’ of full pay paid by the Respondent for a further 12 weeks was refused to the Claimant when he wanted to perform that same role. 5.29 The purpose of the Equal Treatment Directive 2006/54/EC is to ensure “the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation. In the preamble at paragraph 23 the directive it is made ‘without prejudice’ to the Pregnant Workers Directive. It is important to remember that the stated purpose of the Pregnant Workers Directive is “to implement measures to encourage improvements in the heath and safety at work of pregnant workers and workers who have recently given birth or who are breastfeeding”. In the definitions section ‘worker who has recently given birth’ shall mean a worker who has recently given birth within the meaning of national legislation and/or national practice. 5.30 As to the national legislation it is also important to consider this claim in the context of parental roles and choices as they are in 2016. Either parent can perform the role of caring for their baby in its first year depending on the circumstances and choices made by the parents. Inevitably more mothers will take primary responsibility from birth and immediately afterwards but that does not necessarily follow. There may be circumstances where different choices are made to suit the parents and their particular circumstances, like the choice the Claimant wanted to make because of his wife’s postnatal depression. 5.31 The government introduced the right for parents whose babies were expected after 5 April 2015 to take shared parental leave (SPL) under the Shared Parental Leave Regulations 2014. Unlike its predecessor ‘APL’, ‘SPL’ and pay allows parents to share the leave with only a 2 week period of leave post birth, kept exclusively for the mother’s maternity leave, the compulsory maternity leave period. The mother must take the 2 weeks after the birth by virtue of section 72(1) Employment Rights Act 1996 and regulation 8 of the Maternity and Parental Leave Regulations 1999(compulsory maternity leave). This period is to protect the mother’s heath and safety arising from the biological condition of pregnancy and mothers cannot waive their compulsory maternity leave period for the purposes of SPL. After this 2 week period there is no restriction and no ‘exclusivity’ of leave for the mother only. This was a deliberate change in policy by the Government to encourage more flexibility and for fathers to take a greater role and be able to move away from outdated and stereotypical assumptions about which parent should care for the baby in the first year. 5.32 Similar rights apply to employees who adopt (for children who are placed for adoption on or after 5 April 2015) and to parents of a child born through a surrogacy arrangement if they have a parental order (or have applied or intent to apply for such an order) and are eligible for adoption leave. For these parents there is no period of 2 weeks compulsory maternity leave so the leave can start immediately upon adoption/surrogacy. This confirms that the only distinction made is for the 2 weeks leave immediately after the birth in order to assist mothers to recover from the biological/physiological condition of childbirth. 5.33 As to pay, the Department for Business Innovation and Skills published an Employers Technical Guide to Shared Parental Leave and Pay (‘BIS guidance’). The guidance at paragraph 77 refers to ‘contractual rights to shared parental leave and pay’ which states “an employer is free to top up the statutory shared parental pay by paying some or all of the shared parental pay at a higher rate determined by the employment contract, which may or may not be the same as the employer offers mothers on maternity leave”. It is therefore a matter for the employer to decide how any differences in pay between men and women are treated and whether those differences should be maintained. 5.34 ACAS published “Shared Parental Leave: a Good Practice Guide for Employers and Employees (ACAS guide). That guide indentifies as a key consideration (page 32) that “in addition to the SPL regulations, employers should ensure that they do not discriminate (inadvertently or otherwise) against employees in any way”. Conclusions on Sex Discrimination Complaint. 5.35 Dealing with the first argument made by Mr Wilson on behalf of the Respondent. He contends that Mr Ali cannot compare himself to a female transferred Telefonica employee entitled to the benefit of 14 weeks maternity pay, because unlike that hypothetical comparator, Mr Ali has not given birth. He cannot do so because he is a man. Only women can take maternity leave because only women can give birth. 5.36 Mr Ali is not comparing himself to a woman who has given birth and accepts that for the 2 weeks immediately after the birth he cannot and does not do so, because that time is specifically associated with recovery after childbirth, a condition unique to women. He does not suffer any less favourable treatment in that period because he also gets full pay. In the subsequent 12 week period he is denied the benefit of full pay, which would have been given to a hypothetical female transferred Telefonica employee, caring for her child. 5.37 We agreed with Mr Ali that he could compare his treatment with that hypothetical comparator (female Telefonica transferred employee who had a baby in February 2016, taking leave to care for her child after the 2 week compulsory leave period ) even though he had not given birth. 5.38 Mr Ali could claim sex discrimination by reference to the more favourable treatment that would have been given to that female colleague. It was accepted that he was denied that benefit and was deterred from taking the leave and was less favourably treated as a man. The reason why Mr Ali was treated less favourably was his sex. 5.39 The next question was whether any account should be taken of the special treatment of 12 weeks full pay afforded to a woman after the 2 weeks compulsory maternity leave. In adoption situations there is no 2 week period and either parent of either sex can take the role of ‘primary adopter’ and care for and bond with a child immediately, even though neither parent had given birth to that child. For the Claimant in the 2 week compulsory maternity leave period after the birth of his daughter he was already bonding and caring for his daughter as well as supporting his wife. For the remaining 12 weeks the question was whether the hypothetical female employee was entitled to full pay, as special treatment in connection with pregnancy or childbirth or whether no account of that special treatment should be taken. 5.40 Mr Wilson accepts that the “maternity leave and maternity pay” are also provided in order to facilitate the care of a child and that need or consideration is not exclusive to women who have recently given birth. He submits 14 weeks pay is the right period of time for that special treatment to be kept exclusively for the mother. 5.41 It was not clear why any exclusivity should apply beyond the 2 weeks after the birth. In 2016, men are being encouraged to play a greater role in caring for their babies. Whether that happens in practice is a matter of choice for the parents depending on their personal circumstances but the choice made should be free of generalised assumptions that the mother is always best placed to undertake that role and should get the full pay because of that assumed exclusivity. 5.42 In these particular circumstances the Claimant as the father was best placed to perform that role given his wife’s post natal depression. The Respondent knew those were the circumstances in which he was seeking to take the leave in 2016. He was asking for the leave to perform the same role his female comparator would have performed with full pay. The medical advice was for his wife (the mother) to return to work for her well being and for the Claimant (the father) to perform the role of caring for the child. He could and wanted to take that role on 2 weeks after the birth but was deterred because of the pay. The caring role he wanted to perform was not a role exclusive to the mother. It was not special treatment in connection with pregnancy and child-birth it was about special treatment for caring for a newborn baby. This was not about denying full pay to a women, it was about equality of treatment in relation to pay for the Claimant to access the same benefits for performing the same role. 5.43 The Respondent never reviewed the Telefonica policy when Mr Ali was complaining of unequal treatment to consider whether it was applied to him in a discriminatory way. By considering any complaint on a case by case basis they could have ensured that Mr Ali was treated consistently and fairly and in a non discriminatory manner. 5.44 The 3rd argument Mr Wilson makes is that the Claimant was deterred from applying and did not apply and hence cannot say that he was in fact treated less favourably than his hypothetical comparator would have been treated (Baldwin –v- Brighton &Hove City Council (2007)IRLR 232. In Baldwin the alleged less favourable treatment was considered in an agency context and was not supported by the findings of fact. Section 39(2)(b) of the Equality Act identifies the discriminatory treatment the Claimant relies upon which is access to the benefit of full pay under the applicable policies. The fact that he did not apply for the leave but was deterred from so doing will be relevant to remedy but does not prevent liability for that discriminatory treatment. 5.45 The Claimant also makes a complaint of indirect discrimination relying on the Telefonica maternity policy. We agree with Mr Wilson’s submission that by definition the PCP relied upon (Telefonica maternity policy) is not gender neutral. It is gender specific which is a complaint of direct discrimination not indirect discrimination. Victimisation Complaint[6]Turning then to the victimisation complaint the relevant legal provision is section 27 of the Equality Act 2010 which provides that “A person A victimises another person B, if A subjects B to a detriment because B does a protected act. The two accepted protected acts were firstly raising his grievance on 5 April 2016 and secondly bringing these Tribunal proceedings on 22 June 2016.6.1 The Claimant relies on five alleged detriments. There are 3 alleged acts of victimisation by Laura Tummons that on 14 July 2016 he was given an ultimatum that if he did not return to work on the expiry of his sick note he would not be able to return to his BRT role, that on the 27 July he was removed from that role, and that on the 28 July 2016 he was told this was due to his performance which was a false reason. He also alleges 1 detriment/act of victimisation by Vicky Stubbs on 16 August 2016 in that he was coerced into signing a document about not discussing his tribunal case. A further alleged detriment was added at this hearing (based on an application made prior to this hearing) relating to an incident in December 2016, when he alleges Sarah Shillito (his line manager) victimised him by threatening to take disciplinary action against him in relation to his Dependents Leave Absences. He describes this alleged detriment as the Respondent “using sneaky underhand methods to secure his signature on documents to facilitate his exit from the business”.6.2 In deciding the complaint of victimisation the EHRC Employment Code at paragraphs 9.8 and 9.9 contain a useful summary of treatment that may amount to a detriment: generally, a detriment is anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage’. The Claimant must show he was subjected to the detriment because he did a protected act. Victimisation claims are subject to the burden of proof provisions at section 136 of the Equality Act 2010. Specifically Sub-section (2) which provides that “if there are facts from which the court could decide, in the absence of any other explanation that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.6.3 The findings of fact we made were based on the evidence we saw and heard are as follows:6.4 The Claimant was absent from work for work related stress from 22 April 2016 until 25 July 2016 when his sick note expired. The reason for the absence was ‘stress related’ problems which he said arise from the grievance he had raised alleging sex discrimination. He specifically discusses the grievance and his treatment at work during his welfare meetings with his line manager, Laura Tummons.6.5 At the meeting on 8 June 2016, Ms Tummons raised the possibility of the Claimant returning to his BE role from the BRT role upon his return work, if his absence was any longer than his current sick note. He was also informed that Helen Marriott was the new Operations Manager for BRT.6.6 As a consequence of this the Claimant sent an email dated 10 June to Laura Tummons stating: “I have had time to reflect over the welfare meeting that took place on 8 June. The point you made that I may be removed from my current position in BRT is unfair due to the fact it is work that has caused me the stress”.6.7 Laura Tummons sought advice from Debbie Oddie and was asked a series of questions by Debbie Oddie to explain her rationale for considering moving the Claimant back to BE from BRT. We did not see the email from Debbie Oddie to the Claimant setting out those questions but saw the response from Laura Tummons to Debbie Oddie dated 16 June.6.8 We found it odd that Debbie Oddie was involved at this stage in examining Ms Tummons decision making process. Ms Oddie said this was because she was aware that Mr Ali had ‘concerns about his treatment in the workplace’ and as a HR operator she wanted to satisfy herself and ensure that he was being “treated consistently and fairly”.6.9 In the information supplied, Ms Tummons made it clear to Ms Oddie that the reason was the Claimant’s sickness absence and had nothing to do with his performance. That reason was confirmed in the email Ms Tummons sent to the Claimant on 20 June 2016, which states: “from the details below and also what we discussed at the meeting on 8 June I understand you enjoy your current seconded role in BRT and you do achieve targets when you are in work, however due to you not being at work this is having a big impact on the monthly and quarterly targets of the whole team….. We have had the same discussions with all advisers that are on long term sick as we cannot sustain the level of absence and still achieve all targets……when you are absent from work, your targets do not get removed and remain within the targets that we need to achieve. This means that the rest of the team have added pressure as they are having to achieve their own targets and cover extra sales for the advisers that are absent from the business”.6.10 The Claimant did not return to work on the expiry of his fit note on 24 June 2016, and submitted a further fit note on 24 June covering him for the period 24 June 2016 to 24 July 2016. The fit note again records the reason as ‘stress related problem’.6.11 On 28 June 2016, the Respondent made a referral to Occupational Health in relation to the Claimant’s continued absence from work. That report was received by the Respondent on 13 July 2016. In the report it was anticipated that the Claimant would return to work within two to three weeks of the expiry of his sick note after 25 July 2016 (by mid August 2016). That report was considered at the welfare meeting on 14 July 2016.6.12 The Claimant’s account was that at that meeting on 14 July 2016, Laura Tummons gave him an ultimatum that if he did not return to work on 25 July 2016, when his sick note expired, he would not retain his role in BRT he would be demoted to a Customer Adviser Role in BE or they could release him from his job altogether pending an ‘options’ meeting. Although the Claimant and Occupational Heath anticipated a few more weeks of absence, he felt pressurised into returning earlier to keep his BRT role which caused further stress and upset6.13 Laura Tummons does not recall discussing this at the meeting stating that “if we had it would have been reflected in the notes. I would not have put any pressure on him to return when he was not ready to do so. I did not threaten this as now appears to have been alleged. It was not in my authority to decide whether he moved or not anyway”.6.14 The meeting notes record a discussion about the Claimant’s future which were consistent with the Claimant’s account: “discussed again with Madi that options meeting may be next step. Should he not return to work after this sick note expires (24/7/16) Madi is fully aware of this process due to length of time being off. Next step option meetings if does not return”. It was agreed by Ms Tummons that the options meeting could have resulted in the Claimant’s dismissal or a move to another department including a return to the BE team which was a role with less bonus prospects.6.15 The Claimant is given the very clear message that if he returns to work it will be to BRT role and he is even told where the team were moving to: “we are moving seating areas so should you come back on 25 July we will be located elsewhere”.6.16 He recalls that at the end of the meeting Laura Tummons walked him out of the building and told him she had managed to keep his role in BRT as long as he came back on 25 July 2016 and she gave him a hug. Ms Tummons could not recall making the comment.6.17 We preferred the Claimant’s evidence which was clear detailed and consistent with the contemporaneous documents. Ms Tummons was inconsistent unclear and could not recall the conversation. Laura Tummons knew about both protected acts (grievance and the claim).She gave the Claimant an ultimatum that if he did not return to work on the 25 July 2016, he would not return to the BRT role. That was the reason why he returned earlier than he expected. He was subjected to a detriment by Laura Tummons6.18 It was the Respondent’s case that no such ultimatum was given and there was no explanation advanced for that treatment. Applying the burden of proof provisions there were facts from which we could decide that the Claimant has been victimised and in the absence of any explanation for this treatment we find the Claimant was victimised by Laura Tummons on the 14 July 2016.6.19 As a result of that ultimatum the Claimant did return to work on the expiry of his sick note. His first day back to work was 25 July 2016. He was welcomed back by the BRT team and was asked to check his emails. Laura Tummons carried out a return to work meeting with the Claimant on 26 July 2016 and did not inform him that he would not be returning to BRT. 6.21 The Respondent accepts that for the first three days they let him believe he was returning to his BRT role because they were looking for a position for him elsewhere in the business but didn’t tell him that was what they were doing. We found it difficult to understand why they did not tell him as soon as he came back if that decision had already been made prior to his return to work. Instead he was deliberately misled by the Respondent. Additionally we had contradictory evidence from Sarah Hall about the reason why it was decided he could not to return to BRT, when that decision was made and by whom. She said that decision was made jointly with Laura Tummons when the other two CSA’s on long term sick returned to work on 15 and 16 June 2016. As of the 16 June 2016, the team was full and the Claimant was therefore going to be removed from BRT. She was unequivocal in her evidence. The decision had nothing whatsoever to do with his performance it was all about timing. Whoever had returned to work once the full quota of staff were present was the person that would be removed from the BRT team. 6.22 On 27 July 2016, Laura Tummons informed the Claimant that a decision had been made to move him off the BRT role back to the customer service adviser role in the BE team. At the time, she didn’t provide the Claimant with any reason for the decision. The Claimant was understandably extremely upset and was allowed to go home early. 6.23 When he returned to work on 28 July 2016 the Claimant asked Laura Tummons to explain why she had had now gone back on the assurance made on 14 July that he would keep his BRT role if he returned on the 25 July 2016. In response Laura Tummons provided the Claimant with an email setting out her reasons for returning him to the CSA role in the BE team. 6.24 Ms Tummons was cross-examined about the email by Mrs Khan and asked to explain the reference she makes in her own email about the Claimant returning to work in July 2016. The relevant part of the email is: Move back to BE “In regards to our meeting today 28 July 2016 about you moving back to BE team you expressed concern that you enjoyed your role in BRT and didn’t want to go back to your substantive role in SMB. We have discussed in previous welfare meetings that this could be an option and whilst I’d hoped that if you returned in July I would be able to secure your position on the team this has not been the case” 6.25 That reference to returning in July 2016 was consistent with a return in July 2016 on the expiry of his fit note in July 2016, otherwise the return date would have been sometime in August 2016. It also contradicted Ms Hall’s evidence that the decision was all about ‘timing’ and was made by mid June when the team was full. Ms Tummons could not see any inconsistency between what she was saying in that email and her evidence to the Tribunal. A further inconsistency that arises from this email is the reason given for moving the Claimant. Ms Tummons reference to the Claimant’s performance was inconsistent with Ms Tummons earlier communications with the Claimant and Ms Halls very clear evidence that it had nothing whatsoever to do with performance. However, in the email Ms Tummons states: “I’ve reviewed your contribution to the team’s overall performance over your last full three months in work and whilst you did achieve good performance in some areas, this was not consistent in every sales metric – your digital sales. Performance was not on target consistently and this is an area where we are under significant pressure to achieve. This is demonstrated below. It is therefore with regret that you are one of two advisers who will return to their substantive role from Monday 1 August”. (The other adviser that was returning to his substantive role did have performance issues). 6.26 It was not clear from the statistics Ms Tummons referred to, why the Claimant’s performance was of concern in July, when those statistics were available in her in June and July 2016, but had not caused her any concern. In fact she tells the Claimant his performance at work was not an issue, he just needed to get back to work by the 25 July 2016. 6.27 Again reminding ourselves of the burden of proof provisions the Claimant has proved facts from which we could conclude in the absence of an explanation from the Respondent, a prima facie case of victimisation. The reasons for removing the Claimant from his BRT role were different (performance or timing) and the Respondent witness evidence contradictory. The Claimant was deliberately misled into believing he was returning to the BRT role and then provided with a false reason for his removal. Without any adequate explanation from the Respondent for that treatment we find that the Claimant was victimised by Laura Tummons on the 25, 27 and 28 July 2016 because he had done a protected act. This treatment left the Claimant in a position where he couldn’t trust what his managers were saying to him. 6.28 The next act of victimisation the Claimant complains about is in relation to the alleged actions of Vicky Stubbs on 16 August 2016. He complains that he was coerced into signing a document in relation to his ongoing Tribunal to state that he could not discuss it with anyone in the company and this he said placed him in a difficult position due to his colleagues already being fully aware of the issues he had raised because the case was in the public forum. Vicky Stubbs explained that on 16 August it was reported to her by another adviser that the Claimant had been on the shop floor discussing his Employment Tribunal claim. A colleague had reported this because they felt uncomfortable about what he was saying. It was alleged that the Claimant was seeking information and indicating to his colleagues that he was going to receive a settlement from the company. She had a private word in a private room with the Claimant to advise him that this was not appropriate and that any discussions in relation to his case were to be kept confidential. She denies coercing him into signing a document in relation to this. She asked Ms Sarah Shillito to make a note of the meeting, and asked the Claimant to sign a copy of that record so that the contents were agreed. That note is produced at page 230 in the bundle. It is a short note headed “meeting notes” and simply records the discussion. The Claimant is told that the case is confidential and he is asked not to discuss it with anyone “to protect himself and any decisions”. That note made by Miss Shillito at this meeting was signed by the Claimant, Miss Stubbs and Miss Shillito. 6.29 The Claimant’s account was that he was dragged into a meeting without notice and Ms Stubbs “began interrogating me, accusing me of discussing the Employment Tribunal case at work with other staff. He explained that half the department already knew his situation as all his old team members in BRT did. He explained that he didn’t like that Capita would take it this far and the rest of the department was asking why he was no longer on the BRT team. He explained that he had not gone around just telling people”. 6.30 The Claimant agrees he was discussing his case with his colleagues and we accepted that the meeting note was an accurate note of the discussion that took place. He was not coerced into signing the record. There was nothing wrong in Ms Stubbs, having had a concern reported to her, asking the Claimant to refrain from discussing his Employment Tribunal case at work. The meeting was not set in any kind of disciplinary context. It was an informal discussion where a ‘meeting note’ was kept of that discussion. We did not accept that the Claimant was subjected to a detriment in relation to that discussion. It was therefore not necessary for us to find whether the reason for that treatment was because of a protected act. 6.31 The final act of victimisation and detriment that the Claimant relies upon involves the manager that took over from Laura Tummons in August 2016 Sarah Shillito (the note-taker in the August meeting). The Claimant’s complaint about Miss Shillito is that on 21 December 2016, he was approached by her and told that he needed to attend a meeting with her immediately regarding unpaid dependant’s leave. He asked Miss Shillito whether he needed to have a union representative present. She told him that he didn’t need to because this was an informal meeting and there would not be any note taker. During the meeting Miss Shillito pointed out the days that the Claimant had taken time off for dependant’s leave and told him that in future any further time off for this purpose would no longer be treated as dependent’s leave but would be treated as sick leave and as a result he would be taken to a disciplinary meeting. 6.32 He was extremely surprised by this because he understood that dependant’s leave was completely separate to sick leave and that the two were not to be treated in the same way. Having left the meeting he returned to his desk to take some calls and five minutes later whilst he was on a call he was approached by Miss Shillito who placed a piece of paper in front of him and asked him to sign it. He indicated that he was on a call, she left it with him. After he finished the call he read the document, approached Miss Shillito to enquire why he was required to sign the document when she had clearly stated it was an informal meeting and no notes would be taken. She informed him that it was merely for her records. The Claimant was unwilling to sign the document. He showed it to his union representative who then pursued it with HR. He was unhappy at the way the Respondent’s were choosing to have these meetings using ‘sneaky ways’ to try to get him to sign documents to manage him out of the business because he was being threatened with disciplinary meetings in the future. 6.33 Miss Shillito was a relatively inexperienced manager who was on secondment for 12 months in this role. She said she had not been instructed to manage the Claimant differently to the way that she managed other people falling under her line management. She provided a number of documents of other meetings she had to support this. She accepts that she had misunderstood the dependant’s leave policy and treated it as if it was sick leave and was applying triggers for disciplinary action when this was not the correct procedure. She says she was instructed by her manager Helen Marriott to “take it to the next stage and the next stage was disciplinary action”. We had no explanation from Helen Marriott why she would have told a more junior manager seeking advice to ‘take it to the next stage’ when that was not the procedure that should be followed. We did not know why it was necessary to have the meeting recorded in the formal way it was, when none of the examples produced for other employees were carried out in that way. 6.34 All the other examples used a pro-forma document which Miss Shillito completed on her computer with the employee present. She would fill in the text, check it with the employee, would record what the employee said, what she said to the employee and the form would be printed off. Although there is a box for the line manager’s signature and the employee’s signature none of those were completed on any occasion for the Claimant and for others. 6.35 What is unusual is that on 21 December 2016 Miss Shillito decided to hold a different type of meeting with the Claimant and did things differently for the Claimant. She did not use the proforma or the ‘meeting note record’ she used when she was the note taker in August 2016 with Ms Stubbs. This time she uses a Capita 02 document headed “meeting” which states “this form should be used to capture all one to one discussions with a member of staff regarding their conduct, attendance, performance or any other issues which need documenting. The form must be signed by both a member of staff and their line manager”. The explanation Miss Shillito gave for using this form was that Helen Marriott had told her to take it to the next stage and the next stage was a disciplinary Stage 1 meeting. 6.36 If the purpose of the meeting was ‘informal’ as indicated to the Claimant, why not use the ‘meeting notes’ or pro-forma as she had done previously. To do it in the way that she did created suspicion. It supported the Claimant’s perception of a ‘sneaky’ non transparent process designed to manage him out of the business. It was accepted that this was not the appropriate or right procedure to use to manage the Claimant’s dependents leave absences. 6.37 The Claimant was subjected to a detriment by Ms Shilito on 21st December 2016. The explanation of inexperience and ‘consistency of treatment’ with others was not accepted based on the evidence we saw. Ms Shillito knew about the tribunal claim and was being directed by her manager to take it to the next stage, in a way she was not doing for the other employees she managed. In the absence of an adequate explanation from her to explain her detrimental treatment of the Claimant we found the complaint is made out. 6.38 In relation to those successful complaints a remedy hearing has been listed for 4 April 2017. If possible the Claimant should seek some assistance from his union in relation to that remedy hearing and in preparing a schedule of loss in relation to the successful complaints.
Background
[7]The EAT provided further clarification about the scope of the rehearing in January 2019, leaving it to the Tribunal’s discretion. After considering the parties’ representations the Tribunal agreed with the Respondent that the rehearing should allow the parties the opportunity to provide all the relevant evidence. Witness statements were exchanged in June 2019. A bundle of documents was prepared by the Respondent based upon the original hearing bundle to which further documents were added by the Respondent on the first day of the hearing.[8]The Tribunal reminded itself that the focus of the remitted issue was to decide and explain the motivation (conscious or subconscious) of Ms. Shillito in relation to the way in which she conducted the meeting on 21 December 2016 and her use of the document headed “Capita 02”. Was she significantly influenced by the Claimant’s protected acts? Given the relevance and significance of this contemporaneous document the Tribunal expected the Respondent’s witnesses to provide clear and detailed evidence about the discussions that had taken place on 21 December 2016, the timing of those discussions, the content, why the Capita O2 form was used for the Claimant, how it was prepared, whether it was used for anyone else and if not why not?[9]The parties agreed the central facts in this case were largely undisputed. Mr. Panesar helpfully set out those facts in his skeleton argument. We heard evidence from the Claimant, Ms. Shillito and then Ms. Marriott. Where there are any disputes of fact we will set out our findings on those disputed matters and how we resolved them. Mr. Wilson helpfully identified that the real difference between the parties is how the agreed facts should be interpreted and applied to decide if liability for victimisation is established. The Applicable Law[10]The burden of proof provisions in section 136 Equality Act 2010 provide that: “(1) This section applies to any proceedings relating to the contravention of this Act. (2) If there are facts from which the court could decide in the absence of any other explanation, that a person(A) contravened the provision concerned, the court must hold that the contravention occurred”. A ‘contravention’ of Section 27 Equality Act 2010 (victimisation) is when: “A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because: (a) B does a protected act.”[11]It is not in dispute that the Claimant had done protected acts in this case. The Claimant raised a grievance on 5 April 2016 alleging sex discrimination and lodged a complaint to the Employment Tribunal on 22 June 2016 complaining of sex discrimination.[12]It is not in dispute that the respondent generally, and in relation to this particular complaint of victimisation, Ms. Shillito and Ms. Marriott had knowledge of the protected acts. At the time of alleged detriment on 21 December 2016, the hearing of the Claimant’s ET claim was due to commence on 9 January 2017 and the Respondent was aware of that fact.[13]As to the meaning of ‘detriment’, Mr. Panesar directed the Tribunal to the guidance given in paragraph 9.8 of the Equality and Human Rights Code of Practice (“the Code of Practice”) which states that “a detriment is anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage”.[14]Paragraph 9.9 of the Code of Practice provides that “a detriment might also include a threat made to the complainant which they take seriously and it is reasonable for them to take it seriously. There is no need to demonstrate physical or economic consequences. However, an unjustified sense of grievance would not be enough to establish detriment”.[15]Paragraph 9.10 states that “detrimental treatment amounts to victimisation if a protected act is one of the reasons for the treatment but it need not be the only reason”.[16]To establish causation the reasoning in Nagarajan-v- London Regional Transport (1999) IRLR 572 HL applies and makes clear that there is no need for ‘conscious’ motivation. The alleged discriminator may ‘subconsciously’ be significantly influenced by the protected act in his/her treatment of the complainant. Mr. Wilson has also helpfully referred to paragraph 37 of the judgment of Peter Gibson LJ in the Court of Appeal in Igen-v Wong 2005 IRLR 58 CA which clarified that: “A “significant” influence is an influence which is more than trivial”.
Findings of fact
[17]It has been found (and upheld on appeal) that by December 2016 the Respondent had subjected the Claimant to the following detriments because of his protected acts of raising a grievance and bringing ET proceedings:a. On 14 July 2016 giving the Claimant an ultimatum that, if he did not return to work on the expiry sicknote he would not be able to return to his BRT (business retention) role.b. On 27 July 2016, removing the Claimant from his business retention role.c. On 28 July 2016, giving the Claimant a false reason for his removal from that role.[18]These acts of victimisation were committed by Ms. L. Tummons, who was the Claimant’s Team Leader before Ms. Shillito took over that role. Both managers were reliant on their line manager Ms. Marriott for guidance and support in relation to management action.[19]Ms. Marriott was the common link between the detrimental treatment in July 2016 and the alleged treatment in December 2016. It is alleged that she was substantially involved in the decisions made about the Claimant. The Claimant relies on the previous history of ‘animus’ found to have been motivated by his protected acts to draw adverse inferences to support his complaint about his treatment on 21 December 2016.[20]Ms. Marriott has been employed by the Respondent as Operations Manager for over 11 years. She is an experienced senior manager. She managed Ms. Tummons from June 2016 to August 2016 and then managed Ms. Shillito. She was responsible for providing guidance, instruction and advice to her managers to help them perform their role. She was involved in advising both managers about management action in relation to the Claimant.[21]As an experienced senior manager Ms. Marriott was familiar with the Respondent’s policies and procedures. In December 2016, Ms. Marriott relocated to the Leeds site, where the Claimant and Ms. Shillito worked which made it easier to provide ‘hands on’ management advice and support.[22]This was Ms. Shillito’s first management role. She was an inexperienced manager. She had received no Equality and Diversity training and was unfamiliar with the Equality Act 2010. She was unaware that the Respondent provided “Guidance for managers on Dependent’s Leave” (page 46). She relied upon Ms. Marriot to direct her to any relevant guidance before she took the next steps in managing non-medical absences for the Claimant and others in her team.[23]She understood that the policy permitted employees to take unpaid time off for dependent’s leave. She could identify absences which were “Unpaid Time Off for Dependents” on the records she completed during return to work meetings. She had misunderstood the dependent’s leave policy and treated dependent’s leave as if it was sick leave and was applying triggers that would apply to sick leave leading to disciplinary action when this was not the correct procedure.[24]The Respondent has a Dependent Leave policy published on the intranet. It also publishes specific guidance for its managers on how they should apply the policy to colleagues. The guidance is available on the Intranet, is easily accessible to all managers and is drafted in clear terms. The guidance (page 46) provides as follows (all highlighted text is our emphasis): Employees are entitled to take a reasonable amount of time off to deal with unexpected emergencies surrounding a dependent. There is no specific time of which is reasonable and in most cases, employees will take 1 to 2 days to deal with any problems or emergencies. The number of occasions which would be deemed to be unreasonable will depend on the circumstances outlined in the return to work and in all cases always seek guidance from your group HR representative. The manager would need to consider If this occurrence is the second occurrence of time off for the same reason clarify why an alternative was not put in place before and if alternatives had been explored (i.e. reduction in hours/parental leave/alternative arrangements etc. and this absence has continued consider applying the disciplinary procedure as it is a timekeeping issue. If it is deemed that the amount of time off is excessive then you will need to instigate a formal procedure with a view to establishing any underlying problem and discussing the impact of their absence on the business. The manager in question should always consult their group HR representative if the time off becomes excessive.[25]Ms. Shillito was not directed to the guidance by Ms. Marriott. Ms. Marriot was aware of the policy and she knew that managers were required to consult with HR before taking the next stage of the formal procedure of treating the nonmedical absence as a disciplinary issue. She ‘could not remember’ her discussion with Ms. Shillito on 21 December 2016. While she accepted that she knew about that guidance, she had no explanation for not directing Ms. Shillito to that guidance or for referring her to HR.[26]Ms. Marriott could also not remember having any discussions with Ms. Tummons about the Claimant’s grievance. Contemporaneous emails infer Ms. Tummons informed HR that she had discussed the grievance with Ms. Marriot. Despite that evidence Ms. Marriot was reluctant to accept that she had knowledge about the Claimant’s grievance/its content, until she was taken to the emails. Ms. Marriot (and other managers more widely in the business) were being consulted about the issue raised by the Claimant in his grievance alleging sex discrimination in relation to parental leave. We found Ms. Marriott was not a straightforward witness, evasive in her answers on matters which were not in dispute.[27]She was more willing to accept that she had a close working relationship with Ms. Tummons who was someone who came to her ‘for a point of direction generally”. It was reasonable to infer that inexperienced new managers like Ms. Tummons and Ms. Shillito would, given the potential consequences, rely on more experienced senior managers for ‘points of direction’ before taking ‘management’ action,[28]Ms. Shillito had direct knowledge of the Claimant’s grievance and his ET claim. In August 2016, Vicky Stubbs (Operations Manager) met with the Claimant to request that he refrain from discussing his ET claim at work. Ms. Shillito was the note taker at that meeting and made contemporaneous hand-written notes of the meeting which were shown to the Claimant at the time they were taken and signed by Ms. Stubbs and the Claimant to confirm their accuracy. Ms. Shilleto knew how to use this method to record an important informal discussion to provide a record of that discussion.[29]Another record can be provided of a return to work meeting using a ‘Closed Sickness and Absence Report’ (‘SAM’). This is a proforma form completed by the line manager on his/her computer while the return to work discussion takes place. The system allows the manager to access previous records and for the form to be printed off and signed by the manager and team member as a record of the discussion, if it is required. In practice the record was signed because the return to work discussion was treated as an informal discussion between the team member and his manager and not part of any formal absence management procedure.[30]It was agreed that as at the 21 December 2016 the Claimant had been absent on three occasions due to unforeseen emergencies surrounding a dependent. All dependents leave is unpaid leave which an employee can work back if that is possible for the business and the employee. If a ‘work back’ is not possible the absence is left on the record.[31]The background to each of the Claimant’s absences was not in dispute and after each absence a manager conducted the return to work meeting and the reasons for the absence was recorded on the SAM. Although the Claimant was not provided a copy of the SAM record, he had no reason to believe that the explanations he had provided after each absence were not accepted by his managers who were aware that he was dealing with very difficult family circumstances (his wife suffering from postnatal depression and a newborn child under the age of one).[32]On 30 August 2016 (page 76) the Claimant’s daughter had a fever, was not taking feed and was ill to the extent that she had to be taken to hospital in the first instance and then subsequently taken back to hospital by ambulance as her illness continued. The Claimant took two days leave to deal with those circumstances.[33]On 3 October 2016 (page 77) the Claimant and his wife heard that his father-inlaw had developed cancer in his glands. The Claimant took a day’s leave because his wife required support in those circumstances.[34]On 7 December 2016 (page 78) the Claimant’s father was rushed to hospital and the Claimant took one days leave to support him in those circumstances. 21 December 2016[35]Before Ms. Shillito met with the Claimant to conduct the return to work meeting on 21 December, she met with Ms. Marriott for guidance about the next step to take to manage his non-medical absences identified as “Unpaid Time Off for Dependents”. Given the importance of this discussion the Tribunal expected detailed evidence of the discussions that took place. Ms. Shillito (paragraph 7 WS) states that; “I had recently got a new manager, Helen Marriott, and in reviewing my team performance with her including absence, she had told me that I needed to make clear to my team (having hit the triggers) when this escalation could happen. She’d told me that I needed to “document” the conversation. I recorded this conversation in a form that I understood was relevant for this purpose (page 79) – this is what we use for documenting discussions which could progress to disciplinary warnings but are not yet at that stage. It’s known as a documented conversation”[36]At the hearing in January 2017, closer in time to the discussion Ms. Shillito had recalled more details about the discussion. “Helen Marriott had told her to take it to the next stage and the next stage was a disciplinary Stage 1 meeting” and that was how she came to use the Capita O2 form. There was no evidence of any other member of her team (having hit triggers) being ‘escalated’ to the next stage in the same way as the Claimant. She could not provide any other example of the Capita O2 document used for anyone else in her team to support her explanation of ‘consistency’ of treatment.[37]The previous finding of fact made by the ET was that “What is unusual is that on 21 December 2016 Miss Shillito decided to hold a different type of meeting with the Claimant and did things differently for the Claimant. She did not use the proforma or the ‘meeting note record’ she used when she was the note taker in August 2016 with Ms. Stubbs. This time she used a Capita 02 document headed “meeting” which states “this form should be used to capture all one to one discussions with a member of staff regarding their conduct, attendance, performance or any other issues which need documenting. The form must be signed by both a member of staff and their line manager”.[38]The Capita O2 document is used as a precursor to a formal disciplinary process. In closing submissions Mr. Wilson suggested that by using this form the Claimant was treated more advantageously than others in the team because he was provided with a ‘record’ of the return to work discussion. If the purpose was to provide a record of the discussion, the SAM report was the simplest and most transparent way to do this in a way the Claimant was more familiar than to use the Capita O2 form which served a different purpose.[39]It was put to Ms. Shillito that her recollection in January 2017, closer in time to the event was more likely to be accurate. She did not agree her previous account was more reliable, but could not explain why she omitted the details of her discussion with Ms. Marriott. She agreed the reference to ‘escalation’ and Stage 1 is a reference to a ‘verbal recorded warning’ which is disciplinary action. The disciplinary procedure (page 46) describes “Stage 1: Misconduct/ Unsatisfactory performance -Verbal recorded warning”. Mr. Panesar also put to her, the alternative position advanced by the Respondent that it was about ‘fact-finding’ and was not a precursor to a disciplinary process, was implausible because the facts about the (3) absences were not in dispute. Ms. Shillito accepted that she had no reason to disbelieve what the Claimant had said about each of those absences. She was not suggesting he was untruthful or that he was taking an excessive or unreasonable amount of time off to deal with the emergency/unexpected situation. She accepted the Claimant was taking unpaid dependents leave to support/care for his dependents (his child his wife or a parent) as permitted by the policy. She agreed a ‘fact find’ served no purpose.[40]We found that Ms. Shillito’s recollection of events at this hearing was less reliable than the evidence she gave in 2017. Although she accepted a ‘fact find’ served no purpose, both witnesses advanced that reason to explain their actions. We found that before the meeting took place with the Claimant on 21 December 2016, Ms. Shillito was given an instruction by Ms. Marriott to take it to the next stage and the next stage was a disciplinary Stage 1 meeting” and that was how she came to use the Capita O2 form. That finding of fact was consistent with the other findings of fact we made.[41]Ms. Shillito was asked about the Claimant’s perception and understanding of the position when he was given the Capita O2 document to sign at his desk on 21 December 2016. She knew the Claimant was already on a Stage 2 Warning and that the threat of any further disciplinary action put him at greater risk of dismissal. Ms. Shillito accepted that by using that document in the way she did, the Claimant would be taken by surprise, would have been alarmed and stressed, in circumstances when it was ‘not right to raise such a threat’. She agreed that this left the Claimant in a vulnerable position knowing that if for any unforeseen reason any of his dependents needed his support in the next 12 months, and he took any unpaid leave he could face the threat of disciplinary action. She agreed that the Claimant was so alarmed that he refused to sign the document and insisted on speaking to his union representative to raise a complaint about it. All that evidence was consistent with the Claimant’s understanding that the Capita O2 form was being used as precursor to a disciplinary process not a ‘fact find’.[42]Ms. Marriott accepted she might have said “if it continues take it to the next stage”. In her witness statement she also says she meant the next stage was ‘fact find’ and not a precursor to a disciplinary. However, in cross examination she not only conceded that there was no justification for a ‘fact find’ but it was ‘wrong’ to advance the case on that basis. In her answer she continued by suggesting that was the reason why an apology was offered at that time. In answer to a follow up question from the Tribunal, when she was asked to explain why her witness statement denied any wrongdoing and sought to justify the decision made she agreed that was how her statement read. It calls into question her credibility as a witness and whether the apology made was genuine.[43]We found that Ms. Shillito and Ms. Marriott have not used the opportunity this rehearing gave them to provide an accurate account of events. Instead they have attempted to reconstruct events to fit in with the ‘false’ picture presented. We find further support for our view when we considered Ms. Shillito’s evidence about how the ‘Capita O2” document (page 79) was prepared. Again, detailed evidence was omitted and only came to light during cross examination. Ms. Shillito admitted that she typed up the Capita O2 document before the return to work meeting with the Claimant was conducted on the 21 December 2016. She checked it with Ms. Marriott and had not used the form for anyone else in her team. Just pausing there, to consider what that sequence of events means. The Capita O2 document had been prepared to record a discussion that had not yet taken place with the Claimant, for the sole purpose of ‘escalating’ matters to Stage1 of the disciplinary process for the Claimant.[44]Ms. Marriott’s witness statement states that she was unaware that the Capita O2 document was going to be used, and as far as she was concerned the SAM record would have ‘sufficed’ as the record of the conversation. If that was true why did she not offer that guidance to Ms. Shillito. During cross examination she was evasive (when she was asked if she had seen the typed Capita O2 document when she had her discussion with Ms. Shillito she said: “not going to answer yes or no”) After pressing, she did accept it was not appropriate to use it because “it was not a recorded conversation as the conversation had not yet happened. It was not ideal and it was not normal”. She accepted the correct procedure for documenting important conversations with team members had not been followed. If the Capita O2 document was going to be used to document a conversation it should have been typed after the conversation had taken place. It would not be appropriate for a manager to type it up before the discussion had taken place.[45]She was also evasive in her answers about her discussion on 21 December 2016. She gave the impression that she had a general conversation with Ms. Shillito about a team member, not about the Claimant. We find it unlikely that on the day of the Claimant’s return to work meeting, Ms. Marriott would advise a more junior inexperienced manager to ‘escalate’ it to the disciplinary process without any specific details about the team member concerned. Ms. Shillito sought specific advice about the Claimant because she was going to meet with him that day. Ms. Marriott not only instructed Ms. Shillito to take it ‘Stage 1’ she also sanctioned Ms. Shillito’s use of the Capita O2 document, knowing that it was being used inappropriately.[46]Another credibility issue arose when Ms. Shillito contradicted herself and the evidence she gave earlier in cross examination (see paragraph 41). For the first time she suggested she gave the Claimant a first copy of the Capita O2 document at the return to work meeting and then a second copy at his desk after the meeting when she asked him to sign it. This new evidence was used to suggest the Claimant had already seen the document before he was asked to sign it. She accepted the Claimant refused to sign it at his desk. That new evidence was not included in the witness statement and it was not put to the Claimant in cross examination. The Claimant’s unchallenged evidence (which we accepted) was that the first time he saw the Capita O2 document was when Ms. Shillito came to his desk after the return to work meeting. She gave him the document and asked him to sign it. He refused and immediately complained about it to his Union.[47]The Claimant’s evidence was clear and straightforward. He believed the way in which the form was presented to him at his desk to sign was a ‘sneaky’. His managers were not being open and transparent with him and were unjustifiably threatening him with a disciplinary process. He viewed this as another example of management singling him out for disadvantageous treatment. At the time he did not know that the Capita O2 document had been prepared in advance of his meeting and that its use had been sanctioned by Ms. Marriott.[48]We found the Capita O2 document was used preemptively to ensure the Claimant was escalated to Stage 1 of the disciplinary process putting him at greater risk of dismissal because he was already at Stage 2. No one else in the team had that same preemptive step taken to escalate their absences to the next stage.[49]The Claimant says that he was viewed as a trouble maker for raising a grievance and bringing an ET claim alleging sex discrimination. Mr. Panesar has quite fairly put to the Respondent’s witnesses the evidence the Claimant relies upon to draw adverse inferences: a history of animus (the previous acts of victimisation because of his protected acts) and the skepticism expressed by managers about the timing of the Claimant’s sickness absence coinciding with his grievance. He referred to paragraphs 8 and 9 of the ET3 response form which state as follows: Paragraph 8; “Whilst the grievance was outstanding the Claimant became absent from work on 26 April 2016 due to reported work-related stress. It is understood that this period of absence which is ongoing has arisen during the same period of time when the Claimant had indicated that he would wish to take shared parental leave. He remains absent from work and his latest medical certificate is due to expire on 26 July 2016”. Paragraph 9: “during an absence review meeting on 16 May 2016 the Claimant confirmed that he was spending time with his wife and supporting her with and looking after the baby on a day-to-day basis during his absence”.[50]Ms. Shillito and Ms. Marriott said they could not comment on the Respondent’s ET3 because they were not involved with preparing it. Mr. Wilson invites the Tribunal to find that their ‘frank’ answers go to their credit showing that they are credible witnesses. We do not find their ‘frankness’ in answering this question persuades us that they are credible witnesses overall. While they could not explain those paragraphs of the ET3 they were the only witnesses available to comment on and rebut the inferences the Tribunal was invited to make. Both managers were directly/indirectly involved in managing the Claimant. It could reasonably be inferred that the pleaded case was prepared on the instructions of ‘managers’ involved in managing the Claimant absences/who would have access to the SAM records. We were left with no explanation for the ‘scepticism’ expressed in the pleadings about the timing of his sickness absences in April and May 2016 and the Claimant’s grievance.[51]Ms. Marriott denies that she was motivated in any way in her treatment of the Claimant by his protected acts. She states “in any event even if I knew of the grievance its subject and/or the ET claim links to the Claimant specifically (which I did not have recollection of at the relevant time) this would have been completely irrelevant to me in terms of decisions made to manage him and others on a dayto-day basis. My advice to Ms. Shillito was exactly as it would have been for any other colleague”. The difficulty with that is that Ms. Marriott had been more substantially involved in the escalation and inappropriate use of the Capita O2 than she had admitted to. Ms. Marriott could not explain this or provide any other example where she had been involved in the same way for any other colleague.[52]Ms. Shillito relies on her inexperience and misunderstanding of the policy to assert that the Claimant was not being treated differently than other because she was having similar ‘conversations’ with others in her team. She cannot explain why only the Claimant was ‘escalated’ to the next stage of the disciplinary procedure by the inappropriate use of the Capita O2 document. If there was widespread misapplication/misunderstanding of the dependents leave policy and non-medical absences (or as Mr. Wilson refers to it “the mechanical operation of monitoring non-medical absence and the application of triggers”) we would have expected to see other examples. No other example was provided.[53]Ms. Shillito’s witness statement was also misleading and incorrect in relation to a positive assertion she makes about her ‘motivation’ in her treatment of the claimant. At paragraph 10 of her witness statement she states “At an earlier point, I’d met the Claimant before he raised a grievance following another period of non- medical absence. At that time, he’d had a high level of nonmedical absence and I could have taken it further but didn’t as it was clear that there were reasonable grounds for needing to take the leave due to his wife being ill and his baby having just been born. This reflects however that before the grievance was brought (the protected act) I had similar conversations with him”. (highlighted text our emphasis). That paragraph was put to the Claimant in cross examination to support an inference that because a ‘similar conversation’ had occurred about dependents leave absences before the protected act, Ms. Shillito was not influenced by the protected act. The Claimant could not recall this meeting. He was surprised by the suggested timing of the meeting (because Ms. Shillito was not his manager in April 2016) and he did not agree with the suggestion that Ms. Shillito’s recollection was likely to be more ‘reliable’.[54]The asserted facts were incorrect and Ms. Shillito recollection was not reliable. She corrected her statement when she gave her evidence, deleting the first and last sentence of paragraph 10, to withdraw the assertion made. She had already conceded that the Claimant was taking unpaid dependents leave to support/care for his dependents as permitted by the policy and it was not excessive or unreasonable. It was surprising that so little care was taken to check the accuracy of the asserted facts. While mistakes can be made, this mistake was part of a bigger picture demonstrating a general lack of credibility of the Respondent’s witness evidence on the key issues. Key facts were omitted from witness statements, incorrect facts were asserted as true facts, inconsistent and contradictory evidence was given during the hearing to bolster the case presented.
Conclusions
[55]The findings of fact made about the alleged detriment are set out at paragraphs 41-49. Before any return to work discussion had taken place with the Claimant on 21 December 2016, Ms. Shillito had already decided to escalate the Claimant’s Dependents Leave absences to a disciplinary Stage 1 meeting. The inappropriate preemptive use of the Capita O2 form to escalate matters to that stage was sanctioned by Ms. Marriott. The Capita O2 form was not a ‘documented record of a discussion’. It was not ideal or normal or the correct way to use the form. Contrary to the case presented it was wrong to try to justify using it for a ‘fact find’ when the real purpose was a precursor to a disciplinary procedure. Contrary to the case presented, it was also wrong to try to justify using it to provide a record of a return to work discussion before any discussion has taken place, especially when there were alternative and better ways of contemporaneously recording the meeting that could have been used (SAM and handwritten meeting record).[56]Was the treatment disadvantageous or advantageous treatment? Our findings of fact at paragraph 41 record the Claimant’s perception and understanding at the time he was given the Capita O2 document to sign at his desk on 21 December 2016. Ms. Shillito knew the Claimant was already on a Stage 2 Warning and that the threat of any further disciplinary action put him at greater risk of dismissal. She knew that by using that document in the way she did, the Claimant would be taken by surprise, would have been alarmed and stressed, in circumstances when it was ‘not right to raise such a threat’. She agreed that this left the Claimant in a vulnerable position knowing that if for any unforeseen reason any of his dependents needed his support in the next 12 months, and he took any unpaid leave he could face the threat of disciplinary action. She agreed that the Claimant was so alarmed that he refused to sign the document and insisted on speaking to his union representative to raise a complaint about it. All that evidence was consistent with the Claimant’s understanding that the Capita O2 form was being used as precursor to a disciplinary process not a ‘fact find’.[57]Mr. Wilson invites the Tribunal to find that the Claimant was not subjected to a ‘detriment’ by the use of the Capita O2 form because he was more advantageously treated than other employees in similar circumstances because he received a record of his return to work meeting. Mr. Panesar submits that to indicate that an employee may be subject to disciplinary proceedings where(a) it is not appropriate to do so and/or(b) other employees in similar/comparable circumstances have not been treated in the same way plainly amounts to a detriment. The findings of fact about the use of the Capita O2 document do not support the submission made by Mr. Wilson suggesting the Claimant was treated more advantageously (see paragraph 38). The sole purpose of the form was to achieve the desired escalation to the next stage of the disciplinary process.[58]Adopting the EHRC definition that a “detriment is anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage”. We find that the Claimant was subjected to an unjustified threat of a disciplinary process on 21 December 2016 and reasonably considered his position had changed for the worse. He reasonably viewed the detriment as a threat. He took that threat seriously at the time by immediately complaining to his Union. It was reasonable in all the circumstances for the Claimant to take the threat seriously.[59]It Is accepted that Ms. Shillito and Ms. Marriott had knowledge of the protected acts when the Claimant was subjected to the detrimental treatment. Did the fact that the Claimant had raised a grievance and/or presented the claim have a significant influence on Ms. Shillito’s decision to subject the Claimant to the detriment on 21 December 2016? What was her conscious/subconscious motivation in subjecting the Claimant to the detriment on 21 December 2016 and what was Ms. Marriott’s role in that decision? Were the protected acts a significant influence or one of the reasons for the detrimental treatment?[60]Before examining the mental processes of the alleged perpetrator to decide what motivated them to act as they did and whether we believe their explanations for the detrimental treatment, we considered our assessment of their credibility. Ms. Shillito and Ms. Marriott were not credible or reliable witnesses for the reasons set out in our findings of fact. There was a complete lack of transparency about the Capita O2 form, how it was created and why the Claimant was treated differently on 21 December 2016. Key facts were omitted from the witness statements incorrect facts were asserted as true facts, the evidence was inconsistent and changed during the hearing. Ms. Marriott admitted it was ‘wrong’ to advance the case on the basis that the Capita O2 form was used for a fact find, yet that was how the case was advanced. The Respondent’s witnesses did not provide the best available evidence which was surprising given the Respondent position on the scope of the hearing. The Tribunal’s findings of fact support the Claimant’s suspicions that his managers were acting suspiciously and were ‘singling’ him out for detrimental treatment in a ‘non-transparent’ and inconsistent way. The Claimant invites the Tribunal to infer that the explanations and the denial that they were in any way motivated by his protected acts, should be disbelieved.[61]We agree with the Claimant that the denial and the explanations were not credible (see paragraphs 51-54). Ms. Shillito relies on her ‘inexperience and misunderstanding’ of the policy to infer the Claimant was not treated differently and that similar ‘conversations’ had taken place with others to suggest ‘consistency’ of treatment. There is no evidence to support ‘consistency’ of treatment. All the evidence supports ‘inconsistency’ of treatment because this inappropriate preemptive step was only taken for the Claimant. If there was a ‘mechanical operation’ of trigger points by managers or widespread misapplication/misunderstanding of the dependents leave policy, why were there no other examples of this type of escalation. If Ms. Marriott was giving the same advice to Ms. Shillito for others in the team who had also reached trigger points, it would be reasonable to expect to see other examples of the Capita O2 form being used. Ms. Marriott knew there was clear guidance in place for managers to use about the Dependent’s Leave policy, which clearly urged caution before escalation to a formal disciplinary process. With that knowledge, she did not direct Ms. Shillito to the guidance and did not refer her to HR as a different ‘point of direction’. Again, if the advice given was uniformly applied why was there no evidence of ‘consistency’ of treatment.[62]The Claimant invites the Tribunal to make adverse inferences that Ms. Shillito and Ms. Marriott (given her substantial involvement in the events of 21 December 2016) were subconsciously influenced in subjecting the Claimant to detrimental treatment by the protected acts because there was a history of animus (unlawful victimisation in July 2017) and skepticism expressed by managers about the Claimant’s previous sickness absence coinciding with the timing of his grievance (see paragraph 49 of the findings of fact).[63]Mr. Panesar quite fairly put those matters to the Respondent’s witnesses who denied they were influenced in any way by the protected acts. The common link between the 2 managers who 5 months apart subjected the Claimant to detrimental treatment, was the involvement of Ms. Marriott. She denied that she was motivated by the protected acts when she sanctioned the inappropriate use of the Capita O2 form and failed to direct her manager to the appropriate step to take (refer to the Guidance/ refer to HR) but could not explain why she did not take those steps. Her lack of credibility did not persuade us that her ‘denial’ of any previous animus/involvement was credible. Ms. Shillito was also aware of that history of animus. Both managers were given ‘points of direction’ in relation to the management action taken in relation to the Claimant. Ms. Shillito did not question the instruction she was given or why she was asked to do things differently for the Claimant. Her explanation, that she was treating the Claimant in the same way as others in the team, was not supported by our findings of fact. We concluded that it was reasonable to infer that subconsciously Ms. Marriott and Ms. Shillito were significantly influenced by the Claimant’s protected acts in subjecting the Claimant to the detriment of an unjustified threat of a disciplinary process on 21 December 2016.[64]We did not consider it necessary or appropriate to draw the same adverse inference of subconscious motivation in relation to the scepticism expressed by ‘managers’ in the ET3 response, about the Claimant’s sickness absence coinciding with the timing of his grievance in April 2016. It was not clear which managers were involved in drafting the response. The concessions made by Ms. Shillito and Ms. Marriott were that, the Claimant was taking unpaid dependents leave to support/care for his dependents as permitted by the policy and there was no factual dispute/concern about the timing of the Claimant’s Dependent’s Leave absences when the decision was made in December 2016.[65]Having not accepted the denial/explanations advanced by the Respondent’s witness to explain their detrimental treatment of the Claimant we concluded “there are facts from which the Tribunal can decide in the absence of any other explanation, that Ms. Shillito victimised the Claimant on 21 December 2016.The complaint of victimisation therefore succeeds.[66]A telephone preliminary case management will be listed on the first date available, 14 days after this judgment is sent out to the parties to make case management orders for the remedy hearing with a time estimate of 2 hours. It would be helpful if the parties could cooperate with each other to provide some agreed draft case management orders in advance of that hearing to deal with matters like the use of expert evidence at the remedy hearing.