Employment Judge O’NeillIn person for claimantMr J Flaherty (instructed by Counsel) for respondentDate 1 January 2022
JUDGMENT
[1]The claim for - Breach of contract fails - Direct discrimination because of race – section 13 EQA 2010 fails - Indirect discrimination because of race – section 19 EQA 2010 fails - Harassment – race – section 26 EQA 2010 fails - Victimisation – section 27 EQA 2010 fails
REASONS
[2]The claimant describes himself as black African ethnicity. He applied for the post of Refugee and New Communities Integration Officer with the respondent council. He contends that he accepted the post which was offered to him unconditionally by the chair of the selection panel Mrs Helen Clipsom and/ or the contract crystallised when the conditions were met. He says the council is in breach of contract by withdrawing the offer/ post and directly discriminated against him because of race.[3]The respondent contends that no offer was made but the claimant was merely informed that he was the preferred candidate in an ongoing selection process. That process included the provision of satisfactory references and the respondents say that they withdrew the claimant from that process because of unsatisfactory references.[4]In addition, the claimants alleges that on the 5th of November 2021 Mrs Clipsom made remarks which constitute racial harassment. This is denied by the respondent.[5]The claimant also alleges that he suffered indirect discrimination because the respondent’s requirements to provide employment history and salary details disadvantaged black Africans in general and him in particular. This is denied.[6]The claimant also contends that he was victimised by the respondent it having emerged from the references that he had previously taken employment tribunal proceedings against a previous employer namely Stockport MBC and that was a factor in the respondent’s decision to exclude him from the recruitment process.This is denied. Claims[7]The claims are for - Breach of contract - Direct discrimination because of race – section 13 EQA 2010 - Indirect discrimination because of race – section 19 EQA 2010 - Harassment – race – section 26 EQA 2010 - Victimisation – section 27 EQA 2010 Applications
Findings
[8]The claimant made a number of applications during the course of the hearing which are summarised in appendix 1. Documents[9]There is an agreed bundle of documents of some 160 pages paginated and indexed. The claimant had been provided with an electronic bundle. This proved to be difficult for the claimant and on the direction of the tribunal a paper copy was delivered to him during the first morning by courier. Until the paper copy arrived, I shared each document referred to on the screen and in addition the claimant already had some of the documents in paper form.[10]At the hearing the claimant asked for a disclosure order relating to the telephone records for the period 3 to the 6 November inclusive which was refused. Counsel for the respondent assured the tribunal that all the relevant telephone records in the respondent’s possession were already in the bundle and those records covered that period. Evidence[11]The tribunal was supplied with a cast list and a chronology.
Findings
[12]We heard evidence from the claimant and from Mrs Clipsom. Mrs Clipsom was the Outreach and Private Rented Options Service Manager, she chaired the recruitment panel and was responsible for the decision to exclude the claimant from the recruitment process. Each provided a written statement which was taken as read and cross examined. Each adopted their statement without amendment or addition. Law Equality Act 2010 Sections 13,19,26,27.[14]Igen v Wong Igen Ltd v Wong; Chamberlin Solicitors v Emokpae; Brunel University v Webster [2005] IRLR 258, Hewage v Grampion Health Board [2012] IRLR 870, agreed with a warning given by Underhill J in Martin v Devonshires Solicitors [2011] ICR 352, The Claimant provided a skeleton with a number of authorities of which the above were the most useful . Issues[15]At the beginning of the hearing we identified the discrimination issues as follows: 1. Direct race discrimination (Equality Act 2010 section 13)1.1 The claimant describes himself as of black African ethnicity.1.2 Did the respondent withdraw an offer of employment and if so was it because off the claimant’s colour and or ethnicity.1.3 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than a hypothetical comparator. There must be no material difference between their circumstances and the claimant’s. 2. Indirect discrimination (Equality Act 2010 section 19)2.1 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCP:2.1.1 The provision of accurate salary details from previous employment as a mark of competence.2.1.2 The provision of employment history details and the adverse weight given to periods outside the relevant field of expertise2.2 Did the respondent apply the PCP to white people and or those without African ethnicity or would it have done so?2.3 Did the PCP put black Africans at a particular disadvantage when compared with others in that the claimant says black Africans are more likely to be employed in the ‘twilight economy’ and are more likely to have to take jobs outside their field of expertise.2.4 Did the PCPs put the claimant at that disadvantage? The respondent says not as the claimant’s previous employment had not in the twilight economy but had been with Kirklees CAB, Stockport MBC and a law firm and in any event were not applied to him in the way he claims.2.5 Was the PCP a proportionate means of achieving a legitimate aim? The respondent says that its aims are:2.5.1 The PCP of employment history was applied to all and previous roles are an indicator as to the suitability of the candidate for the role2.5.2 The PCP (salary) was applied to all and previous wages were not taken as an indicator as to the suitability of the candidate for the role but an indicator of market rate and appropriate starting salary in certain circumstances.2.6 The Tribunal will decide in particular:2.6.1 was the PCP an appropriate and reasonably necessary way to achieve those aims;2.6.2 could something less discriminatory have been done instead;2.6.3 how should the needs of the claimant and the respondent be balanced? 3. Harassment related to race (Equality Act 2010 section 26)3.1 Did Mrs Clipsom make the references to Africa on 6 November 2021 which the claimant alleges at paragraph 2 (iv) ET13.2 If so, was that unwanted conduct?3.3 Did it relate to race3.4 Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?3.5 If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. 4. Victimisation (Equality Act 2010 section 27)4.1 Did the claimant do a protected act as follows: 4.1.1 Make an employment tribunal claim against a previous employer namely Stockport metropolitan borough council?4.2 Did the respondent do the following things: 4.2.1 Withdraw the offer of employment4.3 By doing so, did it subject the claimant to detriment?4.4 If so, was it because the claimant did a protected act?4.5 Was it because the respondent believed the claimant had done, or might do, a protected act?
Findings
[16]Having considered all of the evidence both oral and documentary we make the following findings of fact on the balance of probabilities which are relevant to the issues to be determined. Where we heard or read evidence on matters on which we make no finding or do not make a finding to the same level of detail as the evidence presented to us that reflects the extent to which we consider that the particular matter assists us in determining the issues. Some of our findings are also set out in the conclusions below in an attempt to avoid unnecessary repetition and some of our conclusions are set out in the findings of fact adjacent to those findings. 18 – 20 October 2021[17]On the 20th of October 2021 Mrs Clipsom informed the claimant that he was the ‘ preferred candidate’ and confirmed same by e-mail that day which also set out the requirement for a medical and two satisfactory references ‘in order to progress your application’.[18]In the pleadings, in the discussion at the outset of the hearing and during his own evidence and cross examination it was the claimant’s position that he had received a voice message on the 18th of October 2021 informing him of the respondent’s offer of employment which he accepted by e-mail on the 19th of October 2021 and there had been no conditions attached to the original offer.[19]The bundle of documents contains the e-mail from Mrs Clipsom of the 20th of October 2021 but not any e-mail from the claimant accepting an offer on the 19th of October 2021. During the cross examination, in answer to questions from me the claimant admitted that he had sent no e-mail on the 19th of October 2021 or at all, accepting the respondents offer. The claimant had maintained in his statement dated the 30th of September 2021 which was adopted without amendment at the beginning of his evidence that such an e-mail had been sent which was patently untrue.[20]The claimant also maintained in that statement that Mrs Clipsom had left an unconditional offer on the claimant’s answering service and that he had evidence of those messages. In cross examination the claimant conceded that he had no evidence of such calls, he claims the messages were erased, he had no transcripts of them. He failed to explain when he intended to disclose such messages. He then agreed that the length of the incoming calls from Mrs Clipsom were too short to encompass a formal offer.
Conclusions
[21]Mrs. Clipsom is an experienced manager who has undergone training in the council’s recruitment and HR policies and practices and demonstrated in her evidence a thorough knowledge of them. She denies having made any offer to the claimant on the 18th or 19th of October 2021. The council’s guidance to managers instructs them not to make offers at this stage of the process and the tribunal accepts her evidence that she did not do so. We prefer her evidence to that of the Claimant. In any event during his submissions the claimant said that he no longer relied on a contract having been made on the 18th of October 2021.[22]The tribunal also find that the inconsistent statements made by the claimant in respect of the alleged messages and emails on the 18th and 19th of October casts doubt on his credibility as a reliable witness.[23]On the 20th of October 2021 Mrs Clipsom sent an e-mail to the claimant in the following terms ‘ further to your interview for the above post I am pleased to inform you that you are the preferred candidate… in order to progress your application further we need to receive medical clearance ….to received two satisfactory references’. The claimant agrees that this was the first time anything was put in writing.[24]In the emails which followed the 20th of October 2021 the claimant expresses no surprise that these things have been requested and raises no protests about it.We accept Mrs Clipsom’s evidence that no offer was made and that the email of 20 October 2021 had been merely a step in the process towards an offer. 1 November to 5 November[25]On the 1st of November 2021, having had no response to her requests for references, Mrs Clipsom asked the claimant to chase up his referees. In later emails it is clear that she is seeking to assist the claimant in tracking down the correct e-mail addresses for his referees. From this the tribunal infer at this stage she was doing all she could to support the claimant and reveals no reluctance on her part to appoint him.[26]In the period to the 5th of November 2021, it appears that Mrs Clipsom is becoming increasingly frustrated over the claimant’s failure to supply correct email addresses which is causing a delay in obtaining the references. From this the tribunal infer that she is anxious to complete the recruitment process and it reveals no reluctance on her part to appoint him. However, by the 5th of November she’s losing patience and informed the claimant that she would withdraw him from the recruitment process if the references were not forthcoming. After some difficulty, references were supplied by Kirklees CAB and Stockport MBC on 9 November.[27]On the 5th of November 2021 Mrs Clipsom wrote to the claimant in terms which suggests that she was beginning to lose confidence in the claimant’s ability a willingness to provide the references ‘ I really must insist you provide me with the correct e-mail contact details for two referees…. If I do not receive this by the end of business day on Wednesday the 10th of November 2021 I will have to withdraw you from the recruitment process’. 6 November 2021 Harassment Conversation[28]In the ET1 the claimant says he was harassed by Mrs Clipsom in a telephone call of the 6th of November 2020. In the ET1 he alleges she said ‘ this is not Africa, the procedure in this country you provide all former employee details’. Such a remark is denied by Mrs Clipsom. The claimant then changed his mind and contended that this conversation took place on 5 November 2021.The telephone records, which we accept as a complete record, show no conversation at all on the 5th of November 2021 or the 6th of November 2021. In his witness statement the claimant deals with this conversation at paragraph 36 and 37. Nowhere in his witness statement does he mention the reference to Africa and he gives an account which is materially different from that set out in the ET1. In his witness statement he only says ‘she kept ranting about the procedure in this country is you provide a proper functional e-mail’. The claimant gives the date of this alleged conversation as the 5th of November 2021 (a different date from that in the ET1) and he makes no mention of any offending reference to Africa.[29]Mrs Clipsom denies those remarks and says there were no telephone conversations on either the 5th or the 6th of November 2021, although there was an e-mail exchange in which she asked again about correct e-mail addresses and the claimant notified her of his COVID. The telephone records support her evidence that there were no such calls on the 5th or 6th of November 2021.[30]The tribunal find the claimant be unreliable in his evidence relating to this conversation which is at the heart of his harassment claim. Given that this allegation is the core of the harassment claim the tribunal finds it incredible that the witness statement contains no reference to the Africa remark and there is an inconsistency between the dates and in the conversation as described in the witness statement and the ET1.[31]Under cross examination the claimant was unable to give an account of what had been said by Mrs Clipsom and was unable to recall the words used or provide a consistent date. In his cross examination of Mrs Clipsom and his own cross examination and evidence in chief he refers only to 5 or 6 November, but in his submissions the claimant sought to rely on another date for the alleged conversation namely the 3rd of November 2021, this date was never put to the respondent witness.[32]The tribunal prefers the evidence of Mrs Clipsom and find that this conversation did not take place at all. The tribunal has reached the conclusion that the claimant has invented this telephone conversation and his harassment allegation is fabricated. Stockport Litigation[33]Mrs Clipsom says that the first she knew of the Stockport litigation was on the 9th of November when she received the references from Stockport. At an early stage in the recruitment proceedings the claimant had made a request to change his interview date on the basis that it clashed with an employment tribunal listing. His request was granted and Mrs Clipsom assumed without making any further inquiry that this referred to a case in which he was representing in a professional capacity at Kirklees CAB. The tribunal accept that this was her view and that she thought no more about the matter until she received the Stockport reference on the 9th of November 2021.[34]The tribunal also accepts her evidence that she first became aware of the Stockport case on the 9th of November 2021. The claimant says that he made Mrs Clipsom aware of the Stockport case at an earlier stage when they were discussing the problems with the Stockport reference. We generally prefer Mrs Clipsom as a more reliable witness. Taking into consideration the e-mail chain between the 9th and the 11th of November the tribunal finds that if there was a discussion between the claimant and Mrs Clipsom it was more logically set in this period when they each made comments about the legal case.[35]The reference to the Stockport case emerged in an e-mail from a solicitor from Stockport MBC which was sent to Mrs Clipsom by the claimant on the 9th of November 2021 as part of a longer e-mail chain. The e-mail chain contains one from the solicitor to the claimant saying ‘ please do not contact ‘D’ directly as you are involved in extant litigation when the tribunal is not finished and therefore it would not be appropriate for you to contact him directly’.[36]Whilst it appears never to have been expressly admitted, the respondents have never challenged the claimant that this is a protected act within the meaning of the Equality Act, the tribunal infer that Mrs Clipsom understood from the Stockport email that the claimant had made an employment tribunal discrimination claim of some kind.[37]Mrs Clipsom refers to this litigation in her e-mail to HR of the 17th of November 2021 and it comes up again in an e-mail exchange with HR on or about 18 November 2021. The References 9 – 24 November[38]On receiving the references Mrs Clipsom went through them in conjunction with the application form as was her normal practise, and found a number of discrepancies between the information provided by the claimant on the application form and that provided by his referees. Therefore, she asked for more information from the claimant and from the referees.[39]Her concerns are outlined in the e-mail 17th of November 2020 sent to HR, in brief the key concerns were as follows39.1 failure to include the correct salary details in the current Kirklees post39.2 failure to provide a complete history of employment and explain the gaps39.3 failure to mention the Stockport position at all39.4 assessing 10 years experience as an immigration case worker whereas he could only demonstrate four years39.5 failure to format e-mail addresses correctly39.6 describing the role at the law firm as a full time position on a higher salary although he subsequently admitted it to be a part time job on a lower salary39.7 claiming to have a higher level of standing under the OISC system39.8 claiming to have 10 years experience of advice work whereas he could only demonstrate two years welfare benefits and four years immigration and no employment advice work.
Conclusions
[40]The claimant sent a holding letter on the 24th of November 2021 which included the following paragraphs. ‘I must admit though, I struggle to understand the cause and rationale prompting the questions and the correlation to the core of essential - desirable roles expected of the post holder to be. Helping me differentiate a lawful request from a 'stereotyping and racial profiling' exercise, I would appreciate if I could be directed/ provided to Bradford Council's published policy on 'Pre-Employment Background checks’ if there is any as a Freedom of information request to ensure I'm not providing no more information than what a legitimate aim for this purpose requires’. ‘GDPR and ICO working principles, (ii) si 9 & 148 /PSED Equality Act. It's good practice, any other background checks o t h e r than those prescribed by law should have been forewarned at the application or conditional offer stages to avoid any unfounded fears of being 'singledout. Kindly let me know if I can have this information by the 27-1 1-2021, if not I will still respond t o your questions under protest o n statutory defense conferred from primary legislations above’.[41]On 24 November 2021 Mrs Clipsom emailed HR with reference to the Claimant’s email set out above. ‘He's clearly - in my opinion - tap-dancing at this point, as he's been caught out. All his guff about GDPR and background checks is just that- - guff. I wouldn't now trust him to accurately record or report anything, or be able to give strictly factual information’.[42]She told the Tribunal that she regrets using the word ‘guff’ in the email and wishes she had used a more polite term but she was expressing her view in private to a colleague and that view has not changed. By this stage she has lost trust and confidence in the claimant and was not impressed by this letter which contains legalistic references difficult to read and understand.[43]The Tribunal has taken this letter and the use of the term guff into account in considering whether it evidences a prima facie antipathy towards the Claimant based on ethnicity or colour and we find that it does not but reflects her views about trust. The Claimants answer to the Respondents concerns[44]On the 3rd of December 2021 the claimant provided his answers to the questions the respondents had posed but his answers failed to satisfy Mrs Clipsom in the light of the information she had obtained from the referees.[45]She had identified that the claimant had overstated his Kirklees salary by about £3000. In his written answers to her the claimant maintained that he was paid the higher rate of pay and his P60 would evidence that. At the hearing the claimant explained that in fact he had never received the stated higher rate of salary from Kirklees but he expected to do so and felt entitled to the higher rate. Mrs Clipsom reached the reasonable conclusion that the claimant had provided inaccurate salary details in the application. In his answers on the 3rd of December he had had an opportunity to correct it but had not done so. Instead he asserted that the P60 would show the higher rate. The P60 has never been provided and Mrs Clipsom concluded that the P60 would not show the higher rate and again we accept her evidence and find that to be a reasonable conclusion particularly as it is now admitted that no such sum was ever paid..[46]Her concerns about the Stockport position were that the claimant had simply failed to mention this period of employment at all but instead in relation to an overlapping time period stated he was working full time for a law firm in Manchester. In his answers on the 3rd of December the claimant asserted that this information was on his application form but we have seen the application form and it does not include any mention of the Stockport position which only came up at the reference stage. It further transpired that the work at the law firm which appeared to overlap with the period of employment at Stockport was in fact only part time and at a lower salary than that stated on the application form.[47]By this time this is Clipsom had reached the conclusion that the claimant had been deliberately misleading in his application form details and we accept her evidence that the issue became a question of the claimant’s integrity. At the hearing she told us that she believed he had lied on the application form.[48]We accept evidence that she was satisfied as to the claimant’s competence on the basis of his performance at the interview and the confirmation by Kirklees that he had experience in a relevant position with them.[49]We accept her evidence that salary details are not gathered as a measure of competence but it is conventional for these to be obtained by the council and the information is used to place an applicant on the wage scale in some exceptional circumstances, (such as when an employee from another authority is transferring in) although the usual starting salary is applied at the bottom grade in most circumstances.[50]We accept her evidence that respondent requires all employment history to be produced and gaps explained and if provided is used to establish past experience likely to render a claimant suitable for the post in the recruitment exercise.[51]We accept her evidence that she formed the view that the claimant had intended to conceal his position as a traffic warden in Stockport as he, wrongly, believed that such a post (outside his field of specialism) would count against him. The claimant’s indirect discrimination claim is founded in part on a PCP as a consequence of which periods of employment outside a person’s field of expertise is counted against them. We also accept her evidence that in terms of judging competence the claimant’s history at Kirklees was sufficient relevant experience and the period of time he spent as a traffic warden at Stockport did not count against him and would not have counted against him had he put it on the original application form. She posed the question if he had concealed this what else might he conceal.[52]We accept her evidence that the reasons she discontinued the recruitment process and withdrew the claimants preferred candidate status were those given in her letter of the 4th of January 2022 underlying which was her reasonable concern about his integrity.[53]In the guidance notes supplied to candidates for the purposes of completing the application form it says clearly ’ you need to record all your employment history and if there are any breaks you need to explain any in your employment history’. The sentence however falls under a section heading Recent Recruitment History at the third sentence of which it says ‘you need to give details of past employment relevant to the job you are applying for’. The claimant explained at the hearing that he had misunderstood the guidance and omitted the Stockport traffic warden post because he felt it wasn’t relevant and he was only required to list relevant past history. In his written explanations given on the 3rd of December 2021 the claimant does not provide that explanation to Mrs Clipsom and does not put her on notice that he had made an innocent but genuine mistake.[54]The tribunal finds that the guidance is capable of being misinterpreted by a candidate in the way the Claimant suggests. However in the absence of an explanation given by the claimant to that effect in December 2021 we find that Mrs Clipsom had reached the reasonable conclusion on the information before her that the claimant had attempted to conceal this part of his employment history.[55]After seeking the advice of the respondents’ legal advisors Mrs Clipsom made a decision shortly before Christmas bringing the recruitment process to a halt and excluding the claimant from it. On the 4th of January 2022 she wrote to the claimant with her decision. She did not revert to the candidate who was the runner up to the claimant because she did not think that person met the requirements. Instead, she reran the whole recruitment process.[56]The letter of 4 January 2022 reads as follows ‘You were later able to provide a referee with your present employer, however the information contained within this reference differed from the information which y o u provided on your application form, and the referee has not confirmed your statements when further e n q u i r i e s were made. You stated on the application form that your salary i n your present role is £23,000. The reference from your present employer stated t h a t your current salary is £19,723. When t h i s was queried with yourself, you stated “ On joining the Law centre as a former 01 SC Level 2 operating at level 1 at the time, contract had fixed contractual and performance related bonus pays, the current actual pay is £3000 above fixed contractual I started on.” When t h i s was queried with the referee, asking specifically whether what you were actually paid by the organisation might include other components that would bring it up to £23,000,the response from the referee was that the figure of £19,723 was correct, and the only other remuneration was an 8% pension contribution. The amount itself is inconsequential. Salaries are not used by Bradford Council as an indicator of performance or otherwise to determine suitability for a role. Salary levels for the same role can vary widely between the private, public and voluntary sectors. It is the relevance of the previous role to the role applied for, in special knowledge, skills required, level of responsibility etc that is important, and used to decide whether a candidate has the necessary experience. The concern here is not the amount that you are paid, but that you have put an amount down as your salary that is considerably higher than the figure your employer says they pay you You did provide a second referee. You were unable to provide correct contact details for this referee but the Council was able by its own means to establish contact. A reference was provided, however this was for a job which you had not listed on your application form. This employment overlapped by several months with a previous employment which you had listed on your form, and had described as full time. When t h i s was queried with you, the dates o f employment you provided differed from the dates p r o v i d e d by the referee, although still overlapping with the other role, and you said that the job listed on your form was in fact part time. I am therefore writing t o advise you that as we have not received satisfactory references, we are unable t o proceed further, a n d your preferred candidate status has been w i t h d r a w n . ‘ Credibility[57]The tribunal find Mrs Clipsom to be a reliable witness and where there is a conflict we prefer her evidence. She answered questions in cross examination in a clear and straight forward manner and was at pains to check her understanding of the questions put in order to address them fully. She was an experienced manager who was knowledgeable and reliable in respect of the respondents procedure and the steps of the recruitment exercise.[58]In contrast the claimant was a more difficult witness who on a number of occasions did not give a straight answer to the questions put and was evasive . In respect of a number of key issues he changed core evidence at a very late stage and in some aspects was inconsistent in the evidence given. In respect of the harassment claim the tribunal has concluded that the allegation was fabricated. Conclusions Contract claim[59]In his submission the claimant changed the whole basis of his contract claim and confirmed that he was no longer relying on an unconditional offer of contract made on 18 and accepted on 19th of October 2021. He now concedes that he sent no e-mail of acceptance on the 19th of October 2021, he has no recording or transcript of the voicemail messages and the telephone records show that such messages what too short to contain an offer which he now accepts. For avoidance of doubt had these concessions not been made the tribunal preferred the evidence of the respondent and find no offer was made.[60]In his submission the claimant put his contract claim differently. He said he relied on the e-mail of the 20th of October 2021 as being a conditional offer and the contract crystalised when those conditions (medical clearance and two references) were met.[61]The tribunal prefers the evidence of Mrs Clipsom to the effect that no offer was made in the e-mail of the 20th of October 2021 or at all. The e-mail of the 20th of February says ‘I am pleased to inform you that you are the preferred candidate’, it goes on to say ‘in order to progress your application we need to receive medical clearance…… receive two satisfactory references’. and this was the next step in an ongoing recruitment process but short of an offer. The tribunal does not accept the claimants submission that the e-mail of the 20th of October 2021 was a conditional offer in respect of which the conditions have been met. The tribunal finds it unlikely, on the balance of probability, that Mrs Clipsom, a very experienced manager who has evidenced a reliable knowledge of the council systems, would have made any kind of offer at that stage given the clear instructions to the respondents managers not to do so. In any event an ordinary reading of the e-mail supports Mrs Clipsom’s evidence that no offer had been made, the claimant had been designated the preferred candidate but that was merely part of the process and the recruitment was a process which was ongoing. Having confirmed his preferred candidate status further steps were required. The tribunal concludes that the e-mail of the 20th of October 2021 falls short of being a conditional offer[62]Further and in the alternative if a conditional offer has been made we do not accept the claimants admission that the conditions had been met and the contract crystallised when Mrs Clipsom was in receipt of the references.[63]The tribunal also finds that Mrs Clipsom was entitled to conclude the references were not satisfactory, in that although she had been satisfied as to competence the references threw up a number of discrepancies between the information supplied by the claimant and that provided by the referees. These discrepancies led her, not unreasonably, to doubt the claimant’s integrity and lose trust and confidence in him. The claimant has argued that Mrs Clipsom was not entitled to go beyond the narrow lines of inquiry set out in the pre employment checks document and the references as supplied. The tribunal does not accept that proposition which is dealt with more fully below.[64]In the circumstances we find that the contract did not crystallise on receipt of the references or at all and the claimant has failed to show that a contract had been concluded.[65]In all the circumstances the breach of contract claim fails. Harassment[66]The claim for harassment fails. The tribunal finds that the claimant has fabricated the allegation. The tribunal prefers the evidence of the respondent’s witness that no such remark was made on the 5th or 6th of November 2021 or at all. Victimisation[67]It is not disputed that the claimant has done a protected act in that he has brought a relevant employment tribunal claim again Stockport MBC. The claimant can establish detriment in that a decision was made to remove him from the recruitment process. The tribunal can detect no behaviour from Mrs Clipsom after (9November 2021) the date she acquired the knowledge of the Stockport case to suggest she weighed that matter in the balance or that influenced her in making the decision at all. In the circumstances we find that the claimant has failed to show a prima facia case ie facts from which could find discrimination but for an explanation.[68]In any event we are satisfied with the explanations given by Mrs Clipsom for her decision which the tribunal accepts as truthful and well founded and not related to any extent to the knowledge of an employment tribunal claim against Stockport.[69]The Victimisation claim fails. Indirect Discrimination[70]The claimant identified two PCPs at the outset of the hearing namely70.1.1 The provision of accurate salary details from previous employment as a mark of competence.70.1.2 The provision of employment history details and the adverse weight given to periods outside the field of expertise[71]The claimant’s claim is founded on the submission that these PCPs were applied for those purposes namely as a mark of competence and in the case of employment history that adverse weight was given to periods outside the field of expertise.[72]In respect of salary the claimants contention is that people of black African origin are likely to be in employment which is less well paid than other candidates and therefore if salary is used as a measure of competence it will disadvantage black Africans. We have had no evidence as to the disadvantage of black Africans but that presumption has gone unchallenged.[73]The tribunal accepts the evidence of the respondent that past salary was not taken as a measure of competence and the PCP was not applied as the claimant submits.[74]We accept Mrs Clipsom’s evidence that the claimant’s competence was measured by the interview tests and questions and confirmation by Kirklees of like experience of sufficient length. It would have made no difference to her had the claimant put down the correct salary of £19,723 and neither he nor anyone else would have gained an advantage from putting down £23,000 on the application form. The claimant had not been employed in the twilight economy and his salary records were readily available. In the circumstances the claimant was not disadvantaged at all by the requirement to put accurate to provide accurate salary details.[75]The claimant can establish detriment in that a decision was made to remove him from the recruitment process. The decision was not made in any part because of his level of salary, it was made because the claimant has given a false figure for his salary together with other factors as set out in the letter of 4 January 2022.[76]We are satisfied with the explanations given by Mrs Clipsom for her decision which the tribunal accepts as truthful and well founded and not related to race or ethnicity.[77]The second PCP relied on is the requirement to provide a full employment history. It is the claimant’s case that black African candidates are more likely to have patterns of broken employment during which unskilled work has to be undertaken to make ends meet and such periods outside an area of specialism are weighed too heavily against such candidates in determining competence and or suitability. We have had no evidence as to the disadvantage of black Africans but that presumption has gone unchallenged.[78]We do not accept the client’s submission that the required full employment history was applied by the respondent in order to test suitability or competence. We accept the evidence of Mrs Clipsom that his competence was not in doubt and his employment history with Kirklees alone was sufficient to meet any criterion as to competence or suitability. Mrs Clipsom accepts that many people may have a history in which they have done jobs below the level of their speciality. The claimant argues that his role with Stockport as a traffic warden was something that would be and was weighed against him. We accept the respondent’s evidence that it was not weighed against him at all and that Mrs Clipsom thought it was a perfectly respectable job and it was not weighed against him would not have been weighed against him had he listed it on his application form. We prefer the evidence of Mrs Clipsom and find that the claimant was not disadvantaged as he contends because the employment history PCP was simply not applied as he suggests.[79]The claimant can establish detriment in that a decision was made to remove him from the recruitment process. We prefer the respondent’s evidence that the decision was not made, in any part, because his employment history as a traffic warden was outside his field of expertise. It was made because the claimant had omitted to mention on the application form his history as a traffic warden in Stockport,(together with other factors as set out in the letter of the 4th of January 2022) and Mrs Clipsom believed he had concealed it. The tribunal accepts that explanation as truthful and well founded and not related to ethnicity or race.[80]The indirect discrimination claim fails. Direct Discrimination[81]The claimant is a black African. He has established that he has suffered a detriment in that having been the best candidate at interview and having been judged as competent and designated the preferred candidate, Mrs Clipsom decided not to continue with the recruitment process and not to offer him the post. This calls for an explanation.[82]We accept the explanations given by Mrs Clipsom for her decision set out in her letter of the 4th of January 2022 and the underlying matter of the claimants integrity. As set out above we find that Mrs Clipsom’s conclusions were well founded and reasonable. The team in which the job falls is diverse and the previous postholder had a BME background and when the position came to be re advertised a black African was appointed.[83]The claimant submits that Mrs Clipsom had acted in bad faith and went beyond her powers under the respondent’s written procedures by undertaking additional investigations following the receipt of the references. He argues by reference to the Council’s guidance documents that Mrs Clipsom was only entitled to consider the pre employment checks, the interview and associated tests, the medical information and the two references as they were submitted and she was not permitted to go beyond that. In going beyond and making further inquiries the claimant argues that she was on a frolic of her own and must have been driven by conscious or unconscious racial bias. The claimant says he should have been offered the post once competence had been established and the references returned.[84]Mrs Clipsom’s position is that the additional inquiries she made after receipt of the references was a normal part of her duties wherever a query over the references was found and it would have been remiss of her not to follow up any discrepancies.[85]The tribunal does not accept the claimants proposition that Mrs Clipsom was in some way constrained by the respondent’s guidance to managers and that she had thus exceeded her authority. This tribunal agrees with Mrs Clipsom that it would be remiss of a recruiting officer not to investigate such discrepancies.[86]Having investigated the discrepancies and sought clarification from the claimant and the referees Mrs Clipsom remained dissatisfied and the investigation had cast serious doubt on the Claimant’s integrity, the tribunal find her dissatisfaction to be reasonable in the circumstances.[87]The Tribunal have considered whether her degree of dissatisfaction was sufficient to warrant the removal of the claimant from the process or whether she seized on the discrepancies as a reason to be rid of the claimant, consciously or unconsciously because of his race and whether she would have reacted in the same way had the candidate not been black African. Mrs Clipsom appeared before us and impressed us as an experienced professional manager working in an area with a significant number of BME staff appointed by her. She has undergone training in recruitment and equalities. She was happy to afford the claimant preferred candidate status and continues to accept him as a competent candidate who would have been appointed had the references been satisfactory. As a witness we found her straight forward and reliable. The claimant did not press Mrs Clipsom in cross examination on this question and we have heard nothing to suggest that she would have treated a person without the claimant’s characteristics differently.[88]In the circumstances we are satisfied by the explanation given by the respondent as to the reasons for removing the claimant from the recruitment process and that Mrs Clipsom would have treated any candidate in the same way if she had such doubts over that person’s integrity and the claimant’s colour or ethnicity had no bearing on her decision, consciously or unconsciously.[89]The claim of direct discrimination fails. Summary[90]The claim for - Breach of contract fails - Direct discrimination because of race – section 13 EQA 2010 fails - Indirect discrimination because of race – section 19 EQA 2010 fails - Harassment – race – section 26 EQA 2010 fails - Victimisation – section 27 EQA 2010 fails Employment Judge O’Neill 1 November 2022 Appendix 1 Applications during Hearing
Conclusions
[1]Paper Bundle: The claimant having been supplied with an electronic bundle expressed some difficulty because he was not in a position to print it out. The tribunal adjourned to read at the beginning of the case. I directed the respondent to send a paper bundle by carrier to the claimant during the adjournment. We began the cross examination of the claimant without the paper bundle and I shared on the screen each document referred to. The paper bundle was delivered before lunch[2]Order for Disclosure/ Inspection of telephone records Day 1 3.15pm At the hearing the claimant asked for a disclosure order relating to the telephone records for the period 3 to the 6 November 2021 inclusive. The claimant indicated that he had already made such a request of the tribunal but it had been refused. On examination of the file this was incorrect, he had recently requested telephone records before the hearing but in relation to the 19th of October 2021 which had been refused. Counsel for the respondent assured the tribunal that all the relevant telephone records in the respondent’s possession were already in the bundle and on inspection those records covered the period 3 to 6 November. Tribunal retired. Application refused.[3]Witness Order – 11.45am Day2 At the end of his own cross examination the claimant applied for a witness order requiring HR manager Ms PK to appear before the tribunal. The tribunal retired to consider after hearing from the claimant and Counsel. Application refused - Exceptionally late application - Claimant failed to explain why Ms K was required ie what evidence could she give that Mrs C could not cover[4]Application to amend Victimisation Claim – Day 2 15.45pm Application made at 15.45 on day 2 almost at the end of Mrs Cs CX. Amendment - To add that his freedom of information request made 24 November 2021 was a protected act and had a bearing on Mrs Cs decision. Adjourned to consider Refused Excessively late application – evidence almost over – unjust – R had no chance to prepare /CX of either witness had not dealt with it / statement of Mrs C[5]Application to Amend Claim to include second act of less favourable treatment – made in submissions Application considered at the close of case and refused. Act relied on – the sending of email of 20 October 2021 and the imposition of those conditions. Far too late to make such an application – unjust – R had no opportunity to prepare statements / cx/ address in submissions For the avoidance of doubt the Tribunal considered the email of 20 October 2021 and do not find it to be less favourable treatment.[6]Application to Amend Harassment Claim / give evidence – during submission During his submission the claimant purported to change the date of the harassment conversation from 5th / 6th of November 2021 to 3 November 2021. This claim has been determined on the basis of the pleadings and the witness statements and oral evidence that the alleged harassment event happened on either the 5th or the 6th of November 2021. The date of the 3rd of November was raised for the first time by the claimant in submissions and this date was not mentioned in evidence / was not put to Mrs C.
Introduction
[1]The claimant brought claims for breach of contract, direct discrimination because of race, Indirect discrimination because of race, harassment – race, and victimisation. The claims were heard by this Tribunal on 17-19 October 2022 and all failed. The Respondents now seek costs in the sum of £4640, having sent the claimant a costs warning letter before the hearing. Law[2]Rule 76 Employment Tribunals (Constitution and Rules of Proceedure) 2013 provides among other things (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success[3]Costs remain the exception in the Employment Tribunal as set out in Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78, at 'The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects if had'. Material before the Tribunal[4]The costs application was decided on the papers and the Tribunal had before it - The Reserved Decision - The application for costs 12 December 2022 - The email 4 October 2022 respondent to claimant - The costs warning letter 6 October - Letter to parties from Tribunal 13 March 2023 and 30 January 2023 - Respondent’s written representations 27 March 2023 - The claimants written representations 17 March 2023 - The claimants written representations 28 March 2023 - The claimants request for a postponement 4 April 2023 Application to Postpone[5]The claimant applied on 4 April 2023 to postpone this costs consideration by 10 working days which would have deferred consideration to next Tuesday ie an additional 10 working days from today. The tribunal considered this application carefully but decided to go ahead with the cost determination today and refuse the application to postpone.[6]The claimant has never appeared to object to the matter being dealt with on the papers. On 30 January 2023 he was first ordered to give reasons by the 14th of February 2023 as to why cost should not be paid. He made no representations. On 13th of March 2023 he was given a further opportunity to produce reasons and arguments of affordability by the 27th of March 2023. We took into account the representations he had submitted on the 17th of March and on the 28th of March 2023.[7]In the circumstances we are satisfied that this was a case suitable for being decided on the papers and the claimant had ample time to make all necessary representations and his application is refused. Findings[8]The claimant brought claims for Breach of contract, Direct discrimination because of race, Indirect discrimination because of race, Harassment – race, and Victimisation. The claims were heard by this Tribunal on 17-19 October 2022 and all failed.[9]The claimant represented himself and although a litigant in person was not without experience as a representative given his working history in the Advice sector. The respondent was represented by an in-house solicitor and by Counsel at the hearing. They are legal representatives within the meaning of the Rule 74.[10]The amount claimed by way of costs related only to the period after the costs warning letter and comprised Counsel’s fee for the Hearing of £2600 plus VAT and the Council’s Solicitor costs of £2040 for attending at the Hearing, instructing Counsel and preparing for trial. This totalled £4640 which the Tribunal finds to be reasonable.[11]The claimant describes himself as of black African ethnicity. He applied for the post of Refugee and New Communities Integration Officer with the respondent council and asserted that an unconditional offer had been made to him which he had accepted but the offer was withdrawn and he was not appointed.[12]The Tribunal found that no unconditional offer had been made but after the interview and test stages the claimant was informed that he was the preferred candidate in an ongoing selection process. That process included the provision of satisfactory references and the respondents did not appoint because of the references which threw up inconsistencies between the factual basis of the references and the information supplied by the claimant.[13]The claimant was bitterly disappointed not to have been appointed as he had done so well at the interview stage when he had emerged as the preferred candidate. However, there were significant inconsistencies between the information he had given in his application and that supplied by the referees and the claimant admits to having given incorrect information about his salary and job history.[14]Having sent the claimant a cost warning letter on 6 October 2022 applied to the Tribunal for costs on 12 December 2022 in the following terms ‘I refer to the above case which was heard in the Leeds Employment Tribunal from 17 to 19 October 2022 inclusive. I write further to receiving the Reserved Judgment of Employment Judge O’Neill which was sent to the parties on 15 November 2022. I attach a copy of said judgment for ease of reference. Having considered the judgment and noting that all elements of the Claimant’s claim have failed, I am writing on behalf of the Respondent to make an application for a costs order under Rule 76 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. I make this application on the grounds that(a) the Claimant acted vexatiously, abusively, disruptively or otherwise unreasonably in the bringing of the proceedings, and/or(b) that the Claim had no reasonable prospect of success. In particular, I have noted that the Tribunal has found (at paragraphs 58 and 66 of the judgment) that the Claimant has fabricated the claim of harassment and also was evasive and inconsistent in his evidence, changing core evidence at a very late stage in proceedings. In support of my application, I also attach a copy of a “without prejudice save as to costs email” which I sent to the Claimant on 6 October 2022. In that email, I alerted the Claimant to the fact that the Respondent may make a costs application if he proceeded with his claim and it was ultimately unsuccessful. I confirm that I am copying this email to the Claimant and shall advise him that any objection to this application should be sent to the Tribunal as soon as possible. Please let me know if you require any further information from me at this stage’.[15]The costs warning letter of 6 October 2022 was framed in the following terms ‘I write further to my email below to inform you that the Respondent believes, especially having now had sight of your witness statement, that your case is entirely without merit. The Respondent will be instructing its barrister on Monday next week and will at that point incur the brief fee for the hearing. The Respondent writes to put forward the following offer:- If you contact ACAS and/or the Employment Tribunal and formally withdraw your claim in full before 10am on Monday, 10 October 2022, then the Respondent is prepared to agree that it will not pursue you for its costs incurred in defending your claim to date. If you decide to continue with your claim, then the Respondent reserves the right to draw this email to the attention of the Employment Tribunal Judge should you:-(a) fail to attend the Employment Tribunal on Monday, 17 October 2022; or(b) you attend the final hearing, but your claim is ultimately unsuccessful. In either of those circumstances, the Respondent reserves the right to rely upon this email to support its application for a costs order to be made against you pursuant to Rule 76 of the Employment Tribunals Rules of Procedure 2013. The costs application would be made on the grounds that you acted unreasonably in continuing with the proceedings and/ or that your claim had no reasonable prospect of success.’ A costs order from an Employment Tribunal may include fees (including legal fees), charges, disbursements or expenses that have been incurred by or on behalf of our client, including expenses that any witnesses incur in connection with attendance at the tribunal. I strongly recommend you to seek independent legal advice as to the merits of your claim and its weaknesses, if you have not already done so.’[16]Before sending the costs warning letter the Respondents had emailed the claimant in the following terms ‘In paragraph 18 of your witness statement, you refer to accepting a job offer from the Council by email on 19 October 2021. As you will be aware, the hearing bundle does not include a copy of this email and Mrs Clipsom has confirmed to me that she never received such an email from you. Please can you provide me with a copy of this email by return so that it can be added to the hearing bundle. I also note that you state in paragraph 18 “I still have evidence of all these calls”. Please can you confirm and share with me what this evidence is? I look forward to hearing from you. No such email was ever produced and did not exist.[17]The claimant made the following representations on 17 March 2023 in summary terms that - Costs should be the exception - More particulars of the application are required before the claimant can respond - Yerrakalva guidance – para 41 - Costs do not follow the event - Appealed to EAT[18]The claimant has provided the following representations on 28 March 2023 ‘I can confirm receiving the respondents' fanciful and ' misguided costs order' against me, that is nothing but a complete waste of this Tribunals time as having no reasonable prospects of success not in accordance with Rule 76(1) spirit. Seeking ET redresses only furthers purposive and objective ERA & HRA conventional rights 1996 &1998 respectively. None of her misguided grounds would arguably be construed as 'unreasonable' in either bringing or conduct of proceedings. Other ET claims relied upon epitomises the misguided nature of her claims, two claims are still live subject to rule 3(10), none ever failed initially under s37 respondent is conflated 'Civil Restraining Orders' for 'costs orders' under the ET Procedure where costs are 'exceptions rather than the rule'.[19]At the substantive hearing the Tribunal found the claimant had19.1 fabricated the harassment claim,19.2 not sent an email of acceptance of offer on 19 October 2021 notwithstanding his assertion in his statement and at the start of the Hearing had insisted that he had done so although during the Hearing he agreed that he had not.19.3 Failed to produce a copy of the key email of 19 October 2021 while insisting it existed when it later transpired that no such record existed or had been sent.19.4 Failed to produce the recordings or transcript of the voicemail messages which he insisted existed and during the Hearing accepted they did not exist.19.5 The claimant admitted to having been untruthful in the salary details he had supplied to the respondent19.6 In his submission he changed the whole basis of his contract claim and confirmed that he was no longer relying on an unconditional offer of contract made on 18 October 2021 and accepted by him on 19th of October 2021. He had conceded that he had sent no e-mail of acceptance on the 19th of October 2021, he had no recording or transcript of the voicemail messages from 18 October 2021 and the telephone records show that the telephone messages were too short to be a conversation in which the employment offer had been made.[20]The claimant failed to review his position on receipt of the costs warning letter of 6 October 2022 notwithstanding the fact that he knew or should have known that no email or telephone transcript existed of 18 and 19 October 2021 and that he had sent no email and there had been no telephone conversation with Ms Clipsom. He was alerted by email on 4 October 2022 of the respondent’s position but did nothing to correct his own position but continued to found his contract claim and the background to the discrimination claims on his untruthful assertion of an offer made on 18 October 2021 and accepted by him by email the following day. Conclusions 20. We find that the claims in contract and harassment had no reasonable prospect of success and that the Claimant acted unreasonably in that he20.1 fabricated the harassment claim20.2 constructed the contract claim on a basis which he knew to be untrue ie the telephone offer on 18 October2021 and the email of acceptance on 19 October 202120.3 pretended to the respondent in the preparation stages to have evidence which did not exist ie transcripts and recordings of key telephone conversations and copy email of 18 and 19 October 2021.[21]The Tribunal has not been given details of the claimant’s financial circumstances but recall from the substantive hearing that he produced a schedule of loss in which he stated he had been made redundant and we infer that he has had a period of unemployment.[22]We have also taken into account that the claimant was bitterly disappointed not to have been appointed as he had done so well at the interview stage when he had emerged as the preferred candidate. Although there were significant inconsistencies between the information he had given in his application and that supplied by the referees and although the claimant admits to having given incorrect information about his salary and job history, a person in his position might well consider that such treatment calls for an explanation and for that reason we have decided against ordering the total amount sought.[23]In the circumstances we order costs limited to £2000.
Conclusions
[1]The Claimant applied on 25 April 2023 for a reconsideration of the Judgment as to costs made on the papers on 5 April 2023. The Claimant was ordered to pay £2000. The application to reconsider the costs application has been made in time. There is no application before us to reconsider the Substantive Judgment.[2]The reasons that costs were ordered were summarised in paragraph 20 of the Costs Judgment as follows. ‘We find that the claims in contract and harassment had no reasonable prospect of success and that the Claimant acted unreasonably in that he conversations and copy email of 18 and 19 October 2021’.[3]The grounds of the reconsideration application are in summarya. New evidence not before the Tribunal in that the email of 18 October 2021 from Mrs Clipsom to the Claimant has been located and a copy produced by the claimant.b. It was unjust not to afford the claimant an adjournmentc. Fettered discretion in awarding costs – the exceptiond. Misapplication of ‘No reasonable prospect of success’e. Ability to Pay Law[4]Rule 71 Employment Tribunals (Constitution and Rule of Procedure) Regulations 2013 provides that a Tribunal may reconsider any decision when it is in the interest of justice to do so.[5]Rule 76 Employment Tribunals (Constitution and Rule of Procedure) Regulations 2013 - Costs regime (set out in full in Costs Judgment).[6]Rule 77 Employment Tribunals (Constitution and Rule of Procedure) Regulations 2013 - Costs Procedure provides that a paying party shall be afforded a reasonable opportunity to make representations in writing.[7]Rule 84 Employment Tribunals (Constitution and Rule of Procedure) Regulations 2013 allows the Tribuanl to take the claimant’s means into consideration.[8]The Respondent has referred to Temblett v Avon County Council EAT 212/80 - credibility Wileman v Minilec Engineering Limited 1988 ICR 318, EATa. The evidence sought to be introduced could not with reasonable diligence have been obtained for use before the Tribunal;b. The evidence is so relevant that it would probably have had an important influence on the result of the case, although it is not decisive in itself; andc. The evidence is apparently credible, though it need not be incontrovertible.[9]The Claimant has referred to a number of cases in his application of which we found the following most helpful Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78 Evidence[10]The tribunal had before it a Bundle of documents paginated and indexed.[11]The claimant and Ms Clipsom both produced statements which were taken as read and each was cross-examined and answered questions of the Tribunal. Findings[12]The costs order relates to a substantive Judgment of 1 November 2022 in which all the Claimant’s claims failed.a. Breach of contract – fails;b. Direct discrimination because of race (S13 EQA 2010) – fails;c. Indirect discrimination because of race (S19 EQA 2010) – fails;d. Harassment on the basis of race (S26 EQA 2010) – fails;e. Victimisation (S27 EQA 2010) – fails.[13]The Costs Judgment records that ‘The costs application was decided on the papers and the Tribunal had before it - The Reserved Decision - The application for costs 12 December 2022 - The email 4 October 2022 respondent to claimant - The costs warning letter 6 October - Letter to parties from Tribunal 13 March 2023 and 30 January 2023 - Respondent’s written representations 27 March 2023 - The claimants written representations 17 March 2023 - The claimants written representations 28 March 2023 - The claimants request for a postponement 4 April 2023’ Postponement[14]The Costs Judgment considers the question of a postponement as follows ‘The claimant applied on 4 April 2023 to postpone this costs consideration by 10 working days which would have deferred consideration to next Tuesday ie an additional 10 working days from today. The tribunal considered this application carefully but decided to go ahead with the cost determination today and refuse the application to postpone. The claimant has never appeared to object to the matter being dealt with on the papers. On 30 January 2023 he was first ordered to give reasons by the 14th of February 2023 as to why cost should not be paid. He made no representations. On 13th of March 2023, he was given a further opportunity to produce reasons and arguments of affordability by the 27th of March 2023. We took into account the representations he had submitted on the 17th of March and on the 28th of March 2023. In the circumstances we are satisfied that this was a case suitable for being decided on the papers and the claimant had ample time to make all necessary representations and his application is refused’.[15]We remain of the view that the claimant had ample opportunity to make searches and representations and a postponement would not have made any difference.[16]The claimant has not explained what additional material would have been provided had his application that the matter be deferred for 10 days been granted. At today’s hearing, although in answer to my question he was not able to say when he located the email of 18 October 2023, in answer to Ms Mellor the claimant confirmed it was before 5 April 2023. The email of 18 October 2021 had been located by the claimant before the Costs Hearing and he could have submitted it to the Tribunal to consider at the Hearing but he did not. He did not require a postponement to look for the email and submit it. Misapplication of Law - Yerraklava[17]The Tribunal had regard to the guidance in Yerraklava and the principle that costs are the exception not the rule and referred to it in the Judgment. Ability to Pay[18]In his representations in support of his reconsideration application he has given few financial particulars to support a claim that he did not have the ability to pay. He says and we accept that he is unemployed and on universal credit of £600. We have taken this into account. Previous Findings[19]The Tribunal made findings as follows in the Costs Judgment based on the findings in the Substantive hearing ‘We find that the claims in contract and harassment had no reasonable prospect of success and that the Claimant acted unreasonably in that he conversations and copy email of 18 and 19 October 2021.[20]We have been given no reason to change our finding as set out in the substantive Judgment that the harassment claim was fabricated.[21]We have been given no reason to change our finding as set out in the Substantive Judgment that the claimant had pretended to the respondent that he had material ie transcripts and recordings of key telephone conversations and copy email of 19 October 2021 which did not exist. New evidence. The email of 18 October 2021.[22]The new evidence produced by the claimant is an email of 18 October 2021 from Mrs Clipsom to himself. It says ‘’Tried ringing but I think your phone is turned off. I’m pleased to offer you the job. Can I give you a ring in the morning to confirm you want to take it and discuss start date etc’’.[23]The Tribunal made findings as follows in the Costs Judgment that the claimant had ‘constructed the contract claim on a basis which he knew to be untrue ie the telephone offer on 18 October 2021 and the email of acceptance on 19 October 2021’[24]It now transpires that an email from Mrs Clipsom to the claimant of 18 October 2021 does exist and it has now been produced by the claimant. At the Substantive hearing the claimant did not rely on such an email but said that the unconditional offer came in a voicemail which he had accepted by email dated 19 October 2021. He conceded that there was no such voicemail or email. As the Tribunal were aware that remained his position when the costs order was made.[25]That remains the position today in that there is no voicemail of 18 October or email from the claimant of 19 October.[26]The claimant failed to produce the email of 18 October 2021 for inclusion in the Bundle at the substantive hearing. He had been sent an index and ordered to send additional documents to the Respondent. He did not do so. He received an electronic Bundle about the beginning of September 2022 but took no steps to alert the Respondent of the missing email. His statement produced for the substantive hearing at paragraphs 17 to 19 or at all make no reference to an email of 18 October 2021.[27]He gives no explanation for his failure to produce the document in his application for a reconsideration or his response to the costs application of the respondent. At today’s hearing he gave no explanation for his failure to produce the document earlier. The claimant suggested that he had had difficulty in accessing the electronic Bundle but we do not accept that was the case. He made no complaint about it and did not request a paper Bundle before the substantive hearing in October 2022. At today’s hearing the claimant prepared and used an electronic Bundle. At the Hearing in October 2022 it became evident that the claimant was having difficulty managing with the electronic Bundle at the same time as using the computer screen for the CVP Hearing and I asked the Respondents to courier over a paper bundle which they did.[28]It is submitted by the Respondent that the email could have been obtained by the Claimant and presented to the Tribunal with very little effort both before the substantive hearing of the matter and certainly before the decision on costs was made. There is no reason given by the Claimant as to why he could not produce the email with reasonable diligence before now. The Tribunal accepts that this was an oversight on his part and he had no intention nor any reason to conceal it. However the duty to produce this document did not lie with the respondents alone and the claimant had equal responsibility to ensure that all relevant documents are before the Tribunal.[29]The Tribunal finds that the claimant could have produced this email before the substantive hearing had he conducted a diligent search. Due diligence – Dishonesty – Ms Clipsom[30]The respondent failed to produce this document for inclusion in the Bundle. The respondent and their witness Mrs Clipsom now accept that the email of 18 October 2021 now produced is a genuine copy and that Mrs Clipsom sent an email in these terms on 18 October 2021. At the original hearing she had no recollection of such an email and had been unable to locate it when the Bundle was prepared or at the time of the Substantive hearing.[31]Now, having had sight of it and checked her email system, she has identified the email as having been sent by her on 18 October 2021 at 17.19. The credibility of the new evidence is accepted.[32]Ms Clipsom told us that at the time the Bundle was prepared the Council archived its documents differently from today when the archives are held on ‘the Cloud’. At the time the Bundle was prepared she was using an old computer and that the ‘Outlook Search’ function had been turned off. Documents more than 6 weeks old were held in a separate archiving system which was stored elsewhere and had to be searched through a different search function than she had.She says that she conducted a search in July 2022 and this produced the documents in the Bundle. However it did not produce the email of 18 October 2021. She tells us that there were a lot of complaints about the old archiving system.[33]She told us that when the claimant produced the copy of the email she initially suspected that it was a false document as she had no memory whatsoever of having sent it and was convinced that she had not done so. However she conducted a new search using the new search system and found the document and accepts that she was mistaken and it had been sent by her.[34]It was put to her that emails before 5pm on 18 October 2021 had been produced and emails sent on 20 October 2021 had been found but the particular email sent at about 5.20pm and which appeared to make the claimant an unconditional offer of a job had not been produced. Further that was the only email to have gone missing which the claimant suggested was highly suspicious and indicated that Ms Clipsom had been dishonest and had tried to conceal the document.[35]The Tribunal weighed this up with great care but having heard Ms Clipsom give evidence and observed her under cross examination accept her evidence that this was an oversight on her part brought about by the new computer system and that she had no intention of concealing the document.[36]Having no memory of the email, Ms Clipsom had nothing to put her on notice that such an email existed and had been omitted from the Bundle. The claimant had failed to refer to it at any stage as set out above at paragraph 26. We note that it would have been impossible for Ms Clipsom to conceal the email from the claimant as he had a copy of it. It had been sent to him. She accepts that so confident was she in her mistaken belief that she would not have sent and did not send such an email that she may not have searched as diligently as she should have done when faced with the obstacles of the old system.[37]We do not find that this was a dishonest act on the part of Mrs Clipsom such as to undermine her overall credibility.[38]In making the costs order the Tribunal found that the claimant had constructed the contract claim on a basis which he knew to be untrue ie the unconditional offer on 18 October 2021 and the email of acceptance on 19 October 2021. It remains the case that no email of acceptance has been produced and no telephone transcripts. At the Hearing the claimant conceded that there was no email of 19 October 2021 and it was partly on that basis that the Tribunal made its decision as to costs. Before the end of the hearing the claimant had abandoned his claim based on that contractual construction.[39]However although that conclusion may have been justified on the basis of the claimant’s own evidence at the substantive hearing, it cannot stand now and the claimant cannot be said to have constructed his contract claim based on an unconditional offer knowing it to be untrue when the email of 18 October 2021 has the appearance of an unconditional offer.
Conclusions
[40]Yerraklava. In considering the question of costs the Tribunal gave consideration to the guidance in Yerraklava and the principle that costs should be the exception rather and not the rule and applied that guidance appropriately. If the Claimant believes that we misdirected ourselves as to the law then the course to have taken should have been an appeal.[41]The Rules. Likewise, the Tribunal gave consideration to Rule 76 and in particular Rule 76 (1) a) and b) and applied the rule as to unreasonable conduct and reasonable prospects of success. If the Claimant believes that we misdirected ourselves as to the law then the course to have taken should have been an appeal.[42]Adjournment. The Tribunal remains of the view that the claimant had ample opportunity to make searches and representations and a postponement would not have made any difference. The claimant has not provided any evidence of what additional material would have been provided had his application that the matter be deferred for 10 days been granted. He says he had found the email of 18 October 2021 before the Costs hearing on 5 April 2023. He did not send a copy to the Tribunal or refer to it.[43]Ability to pay was a factor which the Tribunal considered in that we inferred that the claimant had had a period of unemployment. The claimant has now told us that he continues to be unemployed and is living on universal benefit. The Tribunal concludes that if the claimant is on universal credit he will be in the poorest decile of the population and would struggle to make a payment of £2000 and a lower amount should be awarded.[44]New evidence – the email of 18 October 2021. This is accepted as credible by the respondent. Both the claimant and the respondent had an equal duty to produce the documents for the Bundle and that had either of them searched diligently for it the email would have been in the Bundle. However, having regard to the likely impact on our conclusions as to costs had the email been before us at the costs hearing, then we consider it would be unjust not to take that likely impact into account.[45]In the Costs Judgment we concluded that ‘the claims in contract and harassment had no reasonable prospect of success and that the Claimant acted unreasonably in that he conversations and copy email of 18 and 19 October 2021’.[46]The email of 18 October 2021 has had no impact on our finding that the harassment claim was fabricated which remains our view. That conclusion was based principally on the claimant’s own evidence. Nothing in the evidence today had led us to doubt the overall honesty and credibility of Ms Clipsom.[47]The email of 18 October 2021 does impact on our finding that the claimant constructed his contract claim on a basis which he knew to be untrue. That conclusion cannot stand now and the claimant cannot be said to have constructed his contract claim based on an unconditional offer knowing it to be untrue when the email of 18 October 2021 has the appearance of an unconditional offer.[48]The third ground at 45 c is so inextricably bound up with the alleged unconditional offer that we would not have awarded costs on those grounds alone knowing the contents of the email of 18 October 2021, even though it remains the case that the claimant pretended to the respondent in the preparation stages to have evidence which did not exist ie transcripts and recordings of key telephone conversations and copy email of 19 October 2021.[49]In the circumstances we vary our order and reduce the sum to be paid to £200. 15 August 2023