Mr S Younis v Northern Gas Networks Operations Ltd: 1807402/2020

EMPLOYMENT TRIBUNALS

Case No 1807402/2020

Between

Mr S YounisClaimant

Northern Gas Networks Operations LimitedRespondent

Before

Employment Judge Shepherd

Members

Mr T Downes

Mr K Smith

In person for claimant

Mr Singer for respondent

Date 26 April 2022

JUDGMENT

The unanimous judgment of the Tribunal is that: The claims of direct race discrimination, harassment related to race and victimisation are not well-founded and are dismissed.

REASONS

[1]The claimant represented himself and the respondent was represented by Mr Singer

[2]The Tribunal heard evidence from: Sirfaraz Younis, the claimant; Christopher Nevison, Business Operations Lead; Sarah Jane Carroll, Head of Governance and Assurance; Stephen Taylor, Site Manager; Russel Kaye, Business Operations Lead; Dionne Willetts, HR Business Partner.

[3]The Tribunal had sight of a written statement from Heather Brown, Customer Care Officer provided by the claimant. Mr Singer indicated that the respondent accepted this statement and Heather Brown was not called to give oral evidence. It was made clear that written evidence where the witness cannot be challenged or their demeanour assessed is accorded less weight than oral evidence.

[4]The Tribunal had sight of a bundle of documents which, together with documents added during the course of the hearing, was numbered up to page 739. The Tribunal considered those documents to which it was referred by parties.

The issues

[5]A list of issues was contained in the record of a Preliminary Hearing before Employment Judge Bright on 8 March 2021. This was as follows (retaining the original numbering: 1. The claimant is employed by the respondent, a gas distribution company, as a Customer Care Officer. He commenced employment with the respondent on 3 July 2017 and his employment is continuing. Early conciliation started on 8 October 2020. The claim form was presented on 22 December 2020. 2. The claim is about:2.1 Less favourable treatment of the claimant (who is of Pakistani origin) in relation to requests to work at a particular location. He says the respondent moved him from his home location of Bradford to Leeds in January 2019 and then further away to Pontefract in July 2019, against his wishes. He says it complied with the requests of two non-Pakistani employees, Heather Brown, and NB, to work in specific locations.

2.2 Less favourable treatment of the claimant by the respondent in the manner of its handling of his complaints of racism (further information to be provided).

2.3 Harassment. He says the respondent is liable for the use of the term ‘Fucking Paki’ by an employee of an associated company, ST, on 8 July 2020.

2.4 Harassment during a Level 3 disciplinary, when the claimant says Russ Kaye changed the wording of his statement, showing unconscious bias (in particular by the use of the term ‘corner shop’) and making it clear that he no longer trusted the claimant.

2.5 Victimisation by staff saying that the claimant had ‘taken it too far’ in reporting ST’s comment, following his grievance about the harassment.

2.6 Victimisation by JW in the week commencing 13 July 2020, with reference to his grievance about the harassment, saying ‘ST didn’t mean it that way’. 3. The claimant was seeking to present a complaint in respect of an alleged breach of the public sector equality duty by the respondent. I explained to him that section 156 of the Equality Act 2010 specifically prevented a cause of action in private law arising from a breach of the public sector equality duty. We discussed whether he might be seeking to present a claim of indirect race discrimination, but he did not identify any specific provision, criterion or practice of the respondent’s about which he was complaining. 4. The respondent’s defence is that it did not discriminate against the claimant, nor subject him to harassment nor victimisation. It says it dealt appropriately with his grievance about the comment by ST and subsequently his grievance about the moves to Leeds and Pontefract and disciplinary action taken against him in respect of the loss of company property. 5. The issues the Tribunal will decide are set out below.

The issues

[1]Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 9 July 2020 may not have been brought in time.

1.2 Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

1.2.2 If not, was there conduct extending over a period?

1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?

1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?

[2]Direct race discrimination (Equality Act 2010 section 13)2.1 The claimant is of Pakistani origin.

2.2 Did the respondent do the following things:2.2.1 Reject his request to remain in the Bradford patch following a redundancy consultation process and transfer him from Bradford to Leeds in January 2019;

2.2.2 Transfer him from Leeds to Pontefract (further from Bradford) in July 2019, against his wishes;

2.2.3 Mis handle his complaints of racism (further information to be provided). There was further discussion with regard to this issue. The claimant had earlier confirmed that he did not think Steve Taylor treated him differently because of his race. The respondent set this out in its amended grounds of response. The claimant now says that, following receipt of the statement from Steve Taylor he wished to include an allegation that his complaints were mishandled. He specifically referred to Steve Taylor having failed to report the incident on 8 July 2019. Mr Singer indicated that he would take instructions as to whether this requires an application to amend and whether it would be opposed. After he had taken instructions, Mr Singer confirmed that the respondent was content to accept the amendment that the claimant made an allegation that Steve Taylor had not reported the complaint or had not reported it quickly enough The claimant also indicated that he wished to raise matters of institutional racism and the respondent being in breach of its duty as a public service provider. He was informed that was not within the jurisdiction of this Tribunal which was dealing with the specific allegations of direct race discrimination, harassment and victimisation made in respect of the treatment of him.

2.3 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether s/he was treated worse than someone else would have been treated. The claimant says he was treated worse than Heather Brown and or NB, whose requests to work at specific locations were agreed, in respect of allegations 2.2.1 and 2.2.2.

2.4 If so, was it because of race?

[3]Harassment related to race (Equality Act 2010 section 26)3.1 Did the following things occur:3.1.1 An employee of MC&C Utilities Limited (a company closely associated with the respondent), ST, used the term ‘Fucking Paki’ when referring to a customer during a conversation with the claimant and Mr S Taylor (Site Manager) on 8 July 2020;

3.1.2 Mr Russ Kaye showed unconscious bias during the level 3 disciplinary, changing the wording of his statement, referring to a ‘corner shop’ and making it clear that he no longer trusted the claimant.

3.2 If so, was that unwanted conduct?

3.3 Did it relate to race?

3.4 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.

3.6 Was the respondent liable for the harassment, if such it was?

[4]Victimisation (Equality Act 2010 section 27)4.1 Did the claimant do a protected act by informing CR in the week commencing 13 July 2020 about the comment made by MCC’s employee ST?

4.2 Did the following things occur: 4.2.1. Staff made comments during the period 22 July 2020 to 7 August 2020 that ‘Saf had taken it too far’. 4.2,2 JW made a comment in the week commencing 13 July 2020 that ‘S didn’t mean it that way’.

4.3 By doing so, did they subject the claimant to detriment?

4.4 If so, was it because the claimant did a protected act?

4.5 Was the respondent liable for the victimisation, if such it was?

[5]Remedy for discrimination or victimisation5.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?

5.2 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?

5.3 Should interest be awarded? How much?

Findings of fact

[6]Having considered all the evidence, both oral and documentary, the Tribunal makes the following findings of fact on the balance of probabilities. These written findings are not intended to cover every point of evidence given. These findings are a summary of the principal findings that the Tribunal made from which it drew its conclusions.

[7]Where the Tribunal heard evidence on matters for which it makes no finding, or does not make a finding to the same level of detail as the evidence presented, that reflects the extent to which the Tribunal considers that the particular matter assists in determining the issues. Some of the Tribunal’s findings are also set out in its conclusions, to avoid unnecessary repetition and some of the conclusions are set out within the findings of fact. The Tribunal has anonymised the identity of those mentioned who were not parties, did not appear before the Tribunal or provide a witness statement.

[8]The claimant has been employed by the respondent as a Customer Care Officer (CCO) from 3 July 2017.

[9]The respondent is a gas distribution company. It engages a number of external contractors, referred to as Direct Service Providers (DSP) to undertake work on its behalf. One of those DSPs is Mc&C Utilities Ltd (MCC).

[10]A redundancy process took place and, on 14 January 2019, the claimant was informed that he was no longer at risk of redundancy. The Bradford site only required one CCO rather than two.

[11]The Business Operations Lead in Bradford decided that the claimant would be the one to transfer to Leeds. Both of the CCOs in Bradford were Asian.The claimant was of Pakistani origin and the other CCO was of Indian origin. The claimant confirmed that he had not indicated to the Business Operations Lead that he was of Pakistani origin.

[12]In July 2019 the claimant was transferred from Leeds to Pontefract. This was following the move of a CCO from Pontefract and a CCO returning from maternity leave to Leeds. The respondent required two CCOs at each site. 13.The claimant was offered a transfer to the Pennines patch which would have been closer to his home address but he said that wished to remain in Pontefract.

[14]On 25 November 2019 the claimant sent an email to Human Resources and Russel Kaye

[15]He referred to having been off with work-related stress since 16 September 2019 and that he had not received the appropriate level of support or contact from the respondent. He stated: “To date I have not been given any valid reasons as to why my original request to remain in Bradford was turned down and following this I have been moved from Leeds to Wakefield. I believe I have still tried to do the best job and have remained committed to Northern Gas but it is all just got too much as I do not feel anyone has listened to me or given any consideration to my employee needs.”

[16]The claimant raised no issues with regard to his race at that stage. The claimant informed the Tribunal that he did not think that it was by reason of his race until after the 8 July 2020 incident. The email referred to being denied the opportunity to work in Bradford and his personal circumstances.

[17]On 8 July 2020 the claimant attended a site in Pontefract. ST, an employee of MCC and Steve Taylor were discussing where to store some pipes. They were discussing storing them in a car park for a hairdresser and a convenience store. Steve Taylor said that he had spoken to the hairdresser and, due to the lockdown, they were quiet and were fine for the pipe to be stored in the car park. The claimant said that ST then responded saying it’s OK when you ask but “when we ask, they always cause an issue, and when Steve Taylor asked who had caused an issue ST responded by saying “that fucking paki”. There is some dispute as to what was actually said, Steve Taylor said it was something on the lines of need to check with the owner of “the paki” shop. 16. Steve Taylor said that ST immediately apologised and looked visibly embarrassed. Steve Taylor accepted that he should have stepped in and said that it was unacceptable language but, he misjudged the situation as it happened quite quickly and the claimant appeared to accept the apology and said something along the lines of don’t worry and that he had heard it all before. 17. Three or four days later the claimant approached Steve Taylor and said that he was unhappy about the comment.

[18]Steve Taylor reported the incident to the Operations Manager. The claimant also contacted the Operations Manager. The claimant indicated that he did not wish to raise a grievance but he asked for the incident to be noted on his HR file in case anything happened in the future.

[19]It was reported to Russel Kaye, Business Operations Lead by Steve Taylor and the claimant. Russel Kaye said the claimant explained to him that ST had not meant to say it and he did not want him to be sacked by MCC. Russel Kaye said that the words used had been discussed with the claimant and that ST had said something along the lines of checking with the guy in the “Paki shop”

[20]Russel Kaye contacted the owner of MCC and requested that action be taken. He asked for a written apology and for MCC’s employees to receive equality and diversity training.

[21]On 21 July 2020 MCC provided a letter of apology from ST in which ST stated that he was ashamed that he had made a colleague feel the way he had did. He said that he could not apologise to Russel Kaye and the claimant enough. He said he had the utmost respect for the claimant who was a great guy and he did not hold any ill feelings towards him or anyone of a different race. “I hope this letter allows you to see that I am really sorry, and to assure you that I have learned from this terrible mistake and that you won’t have any further issues with me going forward”

[22]A further letter of apology was also provided from the owner of MCC.

[23]It was indicated that they had held a briefing with all of their employees to reinforce the message that this type of behaviour was unacceptable and to make sure nothing like it happened in the future.

[24]A copy of the briefing given to the MCC employees was provided. This included information about race discrimination, direct discrimination, indirect discrimination, harassment and victimisation. A register was provided dated 20 July 2020 and it had all 64 names of MCC employees ticked.

[25]The claimant had been told by Russel Kaye that he had spoken to the MCC owner and they would be writing a letter of apology and having a “stand down” with the team around racism and diversity.

[26]Russel Kaye said that he had mistakenly assumed that the letters of apology had been sent to the claimant but they had not. He went on paternity leave for six weeks until 28 August 2020 which meant it was some time before the claimant saw the letters of apology and the briefing note.

[27]The claimant was off sick from 11 August 2020.

[28]On 18 August 2020 a report was provided to the respondent by an Occupational Health Specialist Practitioner in which there was reference to the claimant being absent from 11 August 2020 and currently experiencing symptoms consistent with stress and depression: “Sirfaraz reported that his current situation is due to an accumulation of events. He reported that he has worked for NGN as a Customer Care Officer for 3 years, originally based at Bradford for appox. 18 months, he was then transferred to Leeds and in July – August he was transferred to Pontefract. He generally enjoys his role however he reported that he has found the various transfers since commencing at NGN stressful, he reported that he experienced racist remarks from colleagues whilst working at Bradford which he chose not to report at the time. He stated that approximately six weeks ago he experienced racism as a result of a comment made to him by a Direct Service Provider employee. He stated that he has reported this incident at the time directly to the service provider and also NGN management.”

[29]On 17 September 2020 the claimant attended a welfare meeting by telephone with Russel Kaye and Dionne Willetts. During that meeting he said that he had asked some of his DSP colleagues about their “standdown” surrounding diversity and inclusion. He said that the colleagues looked at him blankly leading him to believe that it not been done. The meeting notes show that the claimant referred to the DSP world as a hiring/firing situation meaning they may be reluctant to report things in their own organisation: “However, he recognises NGN work very differently and this behaviour is not accepted. Training that J (MCC employee) organised will hopefully will start to change how people talk and what they say. 30. it was also noted that the claimant said that he had been given the impression from others that he had ‘taken it too far’ by reporting it this was said from MCC. The notes also show that the claimant said that everyone from NGN had been fine and very supportive of the matter but working with DSP had made him feel like he has to change his way of working which makes him feel horrible. Russel Kaye said that he would pick this up with the MCC owners.

[31]The claimant referred to comments made in Bradford about a colleague going on holiday somewhere and it was said “swing across the trees like a monkey” and that these comments were not addressed or challenged by others that were in the same room. The claimant refused to provide the names of who made the remarks to the respondent.

[32]The notes show Dionne Willetts referred to a diversity and inclusion education programme that the respondent was running, engaging with an external provider to offer a whole host of elements. This was being led by HR and they would welcome the claimant’s involvement.

[33]MCC issued ST with a final written warning.

[34]On 5 October 2020 the claimant sent an email to Dionne Willets and Russel Kaye. The claimant referred to having completed his first week back after returning from time off related to work stress. He stated: “After the incident where I was present and a member from our Contractors used the work ‘Fukn Paki’ in my presence and a Site Manager also present who did not challenge what was being said, I feel that it took a lot of courage to raise incident with management, and though they understood that this was inappropriate, I feel they have failed to see the seriousness of the impact this has had on me and the connotations attached to t he use of this word. I feel I have been pressurised by being continuously asked ‘What would you like us to do about this Saf?’ After I raised my concerns and worries with senior staff I would have expected that they then follow Northern Gas policies and procedures around Equality and Diversity and take the appropriate action, so that I felt supported and safeguarded. Though I agreed not to go down the grievance route to save myself further stress, I was promised that the Contractors would have a standdown to talk about Diversity and Inclusion, and also that I would get a written apology from the Contracting company. Till today I have no form of apology, but instead after the incident had happened while visiting sites, I had colleagues saying ‘Saf’s taken it too far’. I also had the Manager from the Contracting company, who is a former manager for Northern Gas tell me that perhaps the colleagues using the word ‘Paki’ didn’t mean it like that. This has been the general theme of what has been said to me ‘perhaps he didn’t mean it like that’, instead of being told it’s absolutely out of order or any form of shock that this word is being used at work and it will definitely not happen again This is all made me feel further demoralised, uncomfortable and isolated being at work, and I feel like what was said is being minimised. I foist all this to occupational health so that things could be put in place. I have tried my utmost best to have open clear communication with, Northern Gas, HR, and Occupational health, but feel like I am being dismissed. I do not believe my feelings and experience has been validated or anyone has communicated with me effectively. I am now expected to be at work this week around the same people who have made me feel uncomfortable due to my race, without anything being done or discussed with me to make me feel safe again, or at least comfortable moving forwards. It has all affected me mentally, emotionally and financially, as well as my working relationships but yet I still feel I have been left to deal with this and the added pressure of trying to find a solution. Overall I have not felt reassured, supported, or communicated within the manner I would have expected, and instead it is felt like a struggle and challenge because I did not agree with the use of the word ‘Paki’ being used in my presence, about a customer between two colleagues. I cannot see myself returning to work, without having a meeting to discuss all of the above and feeling 100% supported and understood by Northern Gas. I have felt uncomfortable and out of place all week, in an environment where I feel unsupported and unwelcome, and having responsibility of working out what has been done and how to approach my return to work. I would please request a response to my email to ensure my concerns have been received, as during previous concerns I did not get a response to emails or any outcomes of meetings.”

[35]On 7 October 2020 the claimant had a meeting with Russel Kaye and Dionne Willetts in order to go through the claimant’s email of 5 October 2020 and address the points raised. It was stated that they would appoint an investigating officer and treat it as a grievance.

[36]Sarah Carroll, Head of Governance and Assurance was appointed to investigate the claimant’s grievance.

[37]Sarah Carroll held a grievance investigation meeting with the claimant on 14 October 2020. During that meeting the claimant referred to other incidents and general racist attitude in the Bradford depot. The notes show Sarah Carroll stating: “SC stated that based on what he had said, she believed that SY didn’t want action taken against individual staff relating to specific incidents but believe that NGN could take action on more of a holistic basis to set standards for NGN and DSP staff and provide training and guidance on what is acceptable and not. She asked this was a correct summation and SY agreed.”

[38]The notes were agreed by the claimant subject to some amendments but not with regard to these parts.

[39]The claimant raised issues about his transfer to Leeds when there had been a redundancy situation in January 2019 and then his transfer to Pontefract in July 2019 and said that the transfers had been racially motivated.

[40]The grievance outcome was provided to the claimant 30 October 2020. The claimant’s grievances were not upheld. It was stated : “In relation to the inappropriate comments made by ST of MCC, the incident has been acknowledged by both the DSP employee and by MCC themselves and is not disputed. When this was reported to NGN, this was immediately raised with the DSP who took action to speak with the individual concerned and also undertook a Race and Equality Briefing with all 64 DSP staff to try to prevent future occurrences of this nature. These actions are considered appropriate in the circumstances and the individual no longer works for MCC. SY has claimed that other MCC staff have made comments that he had taken this issue too far. In the absence of specific details on the employees concerned, this cannot be investigated further, but it is known that this issue has also been raised in general terms with MCC management.”

[41]The actions taken by the respondent had been appropriate in the circumstances. The claimant’s allegations of racist comments made by employees in the Bradford depot could not be fully investigated as the claimant would not provide names of the perpetrators and did not wish for action to be taken. Instead, the claimant had requested that training was provided and recommendations were made in relation to Diversity, Equality and Discrimination.

[42]The planned EDI (Equality, Diversity and Inclusion) training package to be delivered by an external provider and it was recommended that it should be provided to the respondent’s employees and also employees of contractor companies. It was also recommended that line managers be provided with additional guidance on how to handle issues of discrimination.

[43]It was also concluded that the transfer of the claimant from Bradford to Leeds and from Leeds to Pontefract had not been racially motivated. The transfer from Bradford to Leeds occurred following formal consultation process and there was evidence of a valid rationale for the decision which resulted in the claimant transferring to Leeds. “For the transfer from Leeds to East Riding, this occurred following the loss of an existing East Riding COO leaving a vacancy and the return from maternity leave of a Leeds COO, leaving an imbalance of resources between the two patches. There is limited evidence available to determine the reasons for the decision taken as to which COO to transfer and as MM no longer works for NGN, the Investigating Officer cannot ascertain any further information in this regard. However, there is no evidence of another employee being treated more favourably than SY as SY had claimed. It is evident that SY has raised these concerns previously and a meeting was held at the time between SY, HR and RK. It was advised that RK had sought to find a resolution and agreed a potential transfer to the Pennines patch to reduce the level of travel for SY but SY had indicated he wished to remain working in East Riding.”

[44]It was stated that the claimant had confirmed to the Investigating Officer that he wished to remain working in East Riding and no further recommendation was made.

[45]It was stated that it was recommended that the planned Equality, Diversity and Inclusion package should be expanded to cover general ethical requirements. A working group was to be established and the claimant should be invited to join that working group. The training package should be rolled out to cover all NGN staff and DSP colleagues.

[46]On 18 November 2020 the claimant appealed against the grievance outcome. The appeal was heard by a Director who held a hearing with the claimant on 2 December 2020 with the claimant and carried out further investigations.

[47]On 2 December 2020 the respondent wrote to the claimant indicating that his appeal was refused. There were recommendations made with regard to communication and training.

[48]On 22 December 2020 the claimant presented a claim to the Employment Tribunal having gone through the ACAS Early Conciliation process. The date of receipt of Early Conciliation notice was 8 October 2020 and the date of the certificate was 22 November 2020. He brought claims of race discrimination.

[49]The claimant was provided with a final written warning in relation to an unrelated disciplinary issue.

[50]The claimant remains in the respondent’s employment. The law. . Direct discrimination

[51]Section 13 of the Equality Act 2010 states:(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.

(2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim.

(3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B.

[52]Section 109 of the Equality Act 2010 states: Liability of employers and principals(1) Anything done by a person (A) in the course of A’s employment must be treated as done by the employer.

(2) Anything done by an agent for a principal with the authority of the principal shall be treated as also done by the principal.

(3) it does not matter whether that thing is done with the employer’s or the principal’s knowledge or approval.

(4) In proceedings against A’s employer (B) in respect of anything alleged to have been done by A in the course of A’s employment it is a defence for B to show that B took all reasonable steps to prevent A – (a) from doing that thing, or (b) from doing anything of that description. Victimisation

[53]Section 27 of the Equality Act provides as follows:-(1) A person (A) victimises another person (B) if A subjects B to a detriment because-- (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act-- (a) Bringing proceedings under this Act; (b) Giving evidence or information in connection with proceedings under this Act; (c) Doing any other thing for the purposes of or in connection with this Act; (d) Making an allegation (whether or not express) that A or another person has contravened this Act.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

(4) This section applies only where the person subjected to a detriment is an individual.

(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.

[54]In a victimisation claim there is no need for a comparator. The Act requires the Tribunal to determine whether the claimant had been subject to a detriment because of doing a protected act. As Lord Nicholls said in Chief Constable of the West Yorkshire Police v Khan

[2001] IRLR 830

:- “The primary objective of the victimisation provisions ... is to ensure that persons are not penalised or prejudiced because they have taken steps to exercise their statutory right or are intending to do so”.

[55]The Tribunal has to consider(1) the protected act being relied on;

(2) the detriment suffered;

(3) the reason for the detriment;

(4) any d, efence; and

(5) the burden of proof. To benefit from protection under the section the claimant must have done or intended to or be suspected of doing or intending to do one of the four kinds of protected acts set out in the section. The allegation relied on by the claimant must be made in good faith. It is not necessary for the claimant to show that he or she has a particular protected characteristic but the claimant must show that he or she has done a protected act. The question to be asked by the tribunal is whether the claimant has been subjected to a detriment. There is no definition of detriment except to a very limited extent in Section 212 of the Act which says, “Detriment does not ... include conduct which amounts to harassment”. The judgment in Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] IRLR 285

is applicable.

[56]The protected act must be the reason for the treatment which the claimant complains of, and the detriment must be because of the protected act. There must be a causative link between the protected act and the victimisation and accordingly the claimant must show that the respondent knew or suspected that the protected act had been carried out by the claimant, see South London Healthcare NHS Trust v Al-Rubeyi EAT0269/09. Once the Tribunal has been able to identify the existence of the protected act and the detriment the Tribunal has to examine the reason for the treatment of the claimant. This requires an examination of the respondent’s state of mind. Guidance can be obtained from the cases of Nagarajan v London Regional Transport

[1999] IRLR 572

and Chief Constable of West Yorkshire Police v Khan

[2001] IRLR 830

, and St Helen’s Metropolitan Borough Council v Derbyshire

[2007] IRLR 540

. In this latter case the House of Lords said there must be a link in the mind of the respondent between the doing of the acts and the less favourable treatment. It is not necessary to examine the motive of the respondent see R (on the application of E) v Governing Body of JFS and Others

[2010] IRLR 136

. In Martin v Devonshires Solicitors EAT0086/10 the EAT said that: “The question in any claim of victimisation is what was the “reason” that the respondent did the act complained of: if it was, wholly or in substantial part, that the claimant had done a protected act, he is liable for victimisation; and, if not, not. In our view there will in principle be cases where an employer had dismissed an employee (or subjected him to some other detriment) in response to a protected act (say, a complaint of discrimination) but he can, as a matter of common sense and common justice, say that the reason for dismissal was not the act but some feature of it which could properly be treated as separable.”

[57]In establishing the causative link between the protected act and the less favourable treatment the Tribunal must understand the motivation behind the act of the employer which is said to amount to the victimisation. It is not necessary for the claimant to show that the respondent was wholly motivated to act as he did because of the protected acts, Nagarajan v Agnew

[1994] IRLR 61

. In Owen and Briggs v James

[1982] IRLR 502

Knox J said:- “Where an employment tribunal finds that there are mixed motives for the doing of an act, one or some but not all of which constitute unlawful discrimination, it is highly desirable for there to be an assessment of the importance from the causative point of view of the unlawful motive or motives. If the employment tribunal finds that the unlawful motive or motives were of sufficient weight in the decision making process to be treated as a cause, not the sole cause but as a cause, of the act thus motivated, there will be unlawful discrimination.”

[58]In O’ Donoghue v Redcar and Cleveland Borough Council

[2001] IRLR 615

the Court of Appeal said that if there was more than one motive it is sufficient that there is a motive that there is a discriminatory reason, as long as this has sufficient weight. Burden of Proof

[59]Section 136 of the Equality Act 2010 states: “(1) This Section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But sub-Section (2) does not apply if (A) shows that (A) did not contravene the provision. (4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or Rule. (5) This Section does not apply to proceedings for an offence under this Act. (6) A reference to the court includes a reference to – (a) An Employment Tribunal.”

[60]Guidance has been given to Tribunals in a number of cases. In Igen v Wong [2005 ] IRLR 258 and approved again in Madarassy v Normura International plc

[2007] EWCA 33

[61]To summarise, the claimant must prove, on the balance of probabilities, facts from which a Tribunal could conclude, in the absence of an adequate explanation that the respondent had discriminated against her. If the claimant does this, then the respondent must prove that it did not commit the act. This is known as the shifting burden of proof. Once the claimant has established a prima facie case (which will require the Tribunal to hear evidence from the claimant and the respondent, to see what proper inferences may be drawn), the burden of proof shifts to the respondent to disprove the allegations. This will require consideration of the subjective reasons that caused the employer to act as he did. The respondent will have to show a non-discriminatory reason for the difference in treatment. In the case of Madarassy the Court of Appeal made it clear that the bare facts of a difference in status and a difference in treatment indicate only a possibility of discrimination: “They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination”.

[62]In the case of Strathclyde Regional Council v Zafar

[1998] IRLR 36

the House of Lords held that mere unreasonable treatment by the employer “casts no light whatsoever” to the question of whether he has treated the employee “unfavourably”.

[63]In Law Society and others v Bahl

[2003] IRLR 640

the EAT agreed that mere unreasonableness is not enough. Elias J commented that “all unlawful discriminatory treatment is unreasonable, but not all unreasonable treatment is discriminatory, and it is not shown to be so merely because the victim is either a woman or of a minority race or colour … Simply to say that the conduct was unreasonable tells nothing about the grounds for acting in that way … The significance of the fact that the treatment is unreasonable is that a tribunal will more readily in practice reject the explanation given for it than it would if the treatment were reasonable.”

[64]A Tribunal must also take into consideration all potentially relevant nondiscriminatory factors that might realistically explain the conduct of the alleged discriminator. Time limits

[65]Section 123 of the Equality Act 2010 states: (1)...Proceedings on a complaint within section 120 may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or

(b) such other period as the employment tribunal thinks just and equitable. ... (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) a failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or and in its amended grounds of response (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[67]The Tribunal had the benefit of detailed written and oral submissions provided by the claimant and Mr Singer on behalf of the respondent. These were helpful. They are not set out in detail but both parties can be assured that the Tribunal has considered all the points made and all the authorities relied upon, even where no specific reference is made to them.

Conclusions

[68]The Tribunal has given careful consideration to all the evidence, both oral and documentary and has reached the following conclusions:

[69]The claimant was not made redundant but he was moved from Bradford to the Leeds patch in January 2019 and following that he was then transferred to the Pontefract or East Riding patch in July 2019.

[70]The comparators identified by the claimant were both removed from the patch in which they worked as was the claimant. NB was on maternity leave at the time and was transferred out of the Pennines patch to the Leeds patch. She did not make a request to move to the Leeds patch and had been moved out of the area in which she lived.

[71]Heather Brown was able to move to her preferred patch as there was no competition, the other CCO in the East Ridings having opted for a redundancy package. The Bradford patch had two CCOs and a choice was made that the claimant was to move.

[72]There was no credible evidence that these transfers were by reason of the claimant’s race. The claimant put forward reasons in relation to his relationship with the Bradford Operations Lead and said that she wanted him to go to Leeds as she wanted someone to run around and do everything for her. He was not prepared to act as her personal dogsbody.

[73]With regard to the move from the Leeds patch to the Pontefract patch, the decision maker MM had left the respondent’s employment. The claimant had not informed him of his Pakistani national origin and there was nothing from which the Tribunal could conclude that the transfers were by reason of the claimant’s race or national origins.

[74]These allegations were substantially out of time and, although the claimant raised a grievance in November 2019, he made no complaint of race discrimination at that time. He confirmed that he only thought of it as being discriminatory after the incident in July 2020. The racist remark by ST, an employee of another company, was totally unrelated to considerations of redundancy and moving CCOs. The moves from one patch to another were totally separate.

[75]There was no evidence that the decision to retain another CCO in Bradford was on grounds of race. The decision was made by a former Business Operations Lead. The decision with regard to redundancy was made by TB, Head of Social strategy.

[76]The question of which CCO would be retained in each patch or transferred was then left to the relevant Business Operations Lead. The BOL responsible for Bradford made the decision to retain the other CCO. She was no longer employed by the respondent. The documentary evidence clearly showed that the decision was based on her opinion of the other CCO’s experience and style. It states that he had the most experience of the patch and they wanted to keep his expertise in the region. There was absolutely no evidence that the decision was anything to do with the claimant’s race

[77]The Tribunal is not satisfied that these acts were conduct extending over a period. They were separate allegations and there was no evidence that would make it just and equitable to extend the time. The claimant gave no evidence as to why his claim was issued substantially out of time, around 17 months in respect of the move from Bradford to Leeds which occurred in January 2019, and around a year out of time in respect of the move from Leeds to Pontefract.

[78]It was only in his submissions to the Tribunal that the claimant indicated that he became aware of the three-month time limit when he received advice from a solicitor around the time he approached ACAS.

[79]These two moves were not a continuing act there was a six-month gap between them and the decisions were made by different managers 80.. The allegations of harassment were not related and were an entirely separate act.

[81]The managers who made the decisions in respect of these moves have left the respondent’s employment and the delay has been prejudicial to the respondent in that it has encountered difficulty in establishing precise evidence. The balance of prejudice is in the respondent’s favour as there have been difficulties obtaining evidence in response to these claims, whereas the claimant can still proceed with the principal claims he brings. The Tribunal is not satisfied that it would be just and equitable to extend time.

[82]As the notification to ACAS was on 8 October 2020 and the claim was presented on 22 December 2020, any allegations in respect of matters that occurred on or before 8 July 2020 are out of time. The claim in respect of the comments made by the MCC employee on 8 July 2020 is therefore one day out of time. The claimant provided no evidence with regard to this and the Tribunal is not satisfied that it would be just and equitable to extend time in this regard.

[83]The Tribunal heard a lot of evidence about the comments made by the MCC employee on 8 July 2020 and what exact words were used. It was accepted by the respondent that, whether there had been reference to a “Fucking Paki” or words with regard to a Paki shop, the words used were extremely offensive and unacceptable and the Tribunal accepts that they would amount to harassment.

[84]At the time Stephen Taylor decided not to intervene as the situation had been defused. ST apologised and the claimant laughed and said that he had heard it all before.

[85]Mr Singer submitted that there was no detriment as challenging ST at the time, who was already contrite and embarrassed and had apologised, may have made matters worse for the claimant who had himself laughed it off and, in any event, the matter was escalated quickly enough despite the claimant’s own reservations

[86]Stephen Taylor acknowledged that he should have stepped in straight away and that he should have reported the issue immediately. However, he did report the incident 3 days later despite the claimant having made it clear that he didn’t want any further action taken at that time.

[87]The respondent did not employ ST and it was not responsible for his actions. They contacted MCC who provided an apology and evidence of training on race discrimination having been carried out for all its employees. The claimant later raised issues with regard to whether this training had actually taken place. However, the Tribunal accepts that the respondent was informed that this training had taken place and there was no reason for the respondent to make further enquiries.

[88]In those circumstances, the Tribunal is satisfied that that the respondent had done all that could reasonably have done following a discriminatory act by someone for whom it was not responsible. The respondent did not employ ST and they were not responsible for him.

[89]The Tribunal had sight of the Framework Agreement between the respondent and MCC in which it is stated at paragraph 30: “No partnership The Parties are independent entities and nothing contained in this Framework Agreement shall be construed to imply that there is any relationship of partnership between the Parties. Neither Party shall have any right or authority to act on behalf or bind the other Party in contract or otherwise.”

[90]MCC has its own HR function and is responsible for disciplinary and sickness procedure.

[91]MCC carries out subcontract work for the respondent. The schedule of the agreement between the respondent and MCC sets out that HR and discipline are within the responsibility of MCC.

[92]There were allegations in respect of Russel Kaye showing unconscious bias during the disciplinary investigation by describing the shop in question as a corner shop. The shop was actually a corner shop and, being familiar with the area, Russel Kaye knew that it was on the corner. Using the phrase corner shop was a way of avoiding the use of the word ‘paki’.

[93]Taking into account the perception of the claimant and the other circumstances of the case, the Tribunal finds that it was not reasonable for this conduct to have the effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. The Tribunal is satisfied that the remark by Russel Kaye was not said to the claimant in person and that it was an attempt to reduce any hurt to the claimant.

[94]With regard to the claim of victimisation, the respondent conceded that the claimant had made a protected act to the Operations Manager in the week commencing 13 July 2020. It was also conceded that unnamed staff and JW at MCC made the comments alleged. However, there was no evidence that any of the alleged victimisation was on grounds of the protected act. There was no evidence that the MCC staff were aware of or motivated by the comment made to the Operations Manager.

[95]The Tribunal is not satisfied that there was victimisation because of the protected act and the Tribunal has found that the respondent is not liable for the acts of MCC employees.

[96]In the circumstances, the unanimous judgment of the Tribunal is that the claims of direct race discrimination, harassment related to race and victimisation are not well-founded and are dismissed