Employment Judge LewisRepresenting himself for claimantDate 8 July 2022
JUDGMENT
ON LIABILITY The unanimous decision of the tribunal is that the claims for race and sex discrimination are not upheld.
REASONS
Conclusions
[1]The claimant claims that the reason he was not selected for the position of People Lead with the respondent was direct race and/or sex discrimination, being discrimination against him as a white person and / or as a man.[2]It was decided at the preliminary hearing that no list of issues was necessary - 1 -
Procedure
[3]The tribunal heard from the claimant and his three witnesses, Christopher Mainstone, Matthew Butler and Nathan Fairhurst. For the respondent, we heard from Michael Jones, Andrew Clover, Kathryn Willis, Elizabeth Brauer and Victoria Hopper. There was an agreed trial bundle of 410 pages, a supplementary bundle of 8 pages from the claimant, plus a few additional documents which we labelled C1, R1 and R2.[4]Some witnesses and Mr Hammer worked from hard copy bundles, whereas other witnesses and the tribunal had electronic bundles. Unfortunately the numbering was not aligned, which slowed us down because it required searching every time a page reference was made. The page numbers referred to in the witness statements are hard copy numbers. Fact findings[5]The respondent is the digital capital markets division of the AIMS group, a provider of financial services. It was founded in early 2017 by the CEO, Andrew Clover. It started to grow more rapidly in 2020, although it was still small, and by mid 2021 it was decided that it needed to recruit a full-time person to deal with HR matters at every level. At that point, there were only 12 employees and no internal HR post.[6]Mike Jones (Managing Director) and Victoria Hopper, an external HR Consultant, were asked to carry out the administration side of the process. Miss Hopper had only just started working with the respondent.
Procedure
[7]Mr Jones and Miss Hopper discussed the nature of the role and whether it needed a strategic senior level candidate or whether it was a more hands-on operational role. It was decided that the respondent needed someone who could take on the full range of HR responsibilities including, eg handling grievances. A person at senior HR level may not be prepared to do that. On this basis, the Mr Jones and Miss Hopper finalised the job description, modifying the company’s first draft. The budgeted salary was around £80,000.
Law
[9]The position was advertised on the respondent’s Linked-In account as ‘People Lead (HR)’.[10]The respondent’s interview process has several stages. Candidates were sifted on their CVs and those identified as suitable were invited to a ‘prescreening interview’ – this is an interview, where the company screens out applicants who it does not wish to go on to a further interview. In these Reasons, we will refer to this interview by its technical name, ‘pre-screening interview’, although some of the witnesses called it the first interview. - 2 -[11]That was followed by a full interview to assess competence. Again we will refer to this interview by its technical name under the process, ie ‘first interview’ (although some witnesses, confusingly, called it the second interview).[12]Finally there was a group interview to assess ‘team / culture fit’.[13]The respondent did not have formal selection criteria.[14]The respondent received many applications, and the claimant was amongst the few selected for a pre-screening interview. It was clear from his application that he was a man.[15]The pre-screening interview with the claimant took place on 13 July 2021 over video link. It was carried out by Mr Jones and Miss Hopper. Miss Hopper joined the call shortly after it started and had to leave a little early. She took notes.[16]Mr Jones had contacted the claimant on 13 July and asked if he could carry out the pre-screening interview on the spot. The claimant was on holiday with some friends and they had just checked out of their hostel. However, he agreed to carry out the interview, which he conducted from the hostel lobby. His friends (Mr Mainstone, Mr Butler and Professor Fairhurst listened in (unseen) to most or all of the interview.[17]Mr Jones asked the claimant to talk through his CV and experience. Mr Jones told the claimant about the history of the company and that people were at the heart of the business. He said, ‘the company is nothing without our people’. Mr Jones said that the company was looking to hire another 5 – 10 employees before the end of the year, and he said that it was fundamental for the People Lead to be hands-on.[18]Mr Jones told the claimant that the respondent had an objective of building and creating diversity. He mentioned the ethnicity and sex of various existing employees. According to the claimant and his friends, Mr Jones referred to the company’s wish, desire or intention (they do not agree on the verb) to hire ‘fewer white men’. The claimant in his witness statement said at paragraph 14 that Mr Jones ‘openly stated it was the intention of the company to hire “fewer white men”’. This is the phrase he put into the ET1. At paragraph 18 of his witness statement, the claimant said ‘…had convinced me that his statement that the Respondent wished to hire fewer white men”. Mr Butler said, ‘wished to hire ‘fewer white men’’. Mr Mainstone said, ‘There was a desire to “hire fewer white men”’. Professor Fairhurst said, ‘Using the phrase we want to hire “fewer white men’” he proceeded to list a series of positions within the company and the ethnic minority employees that filled them’.[19]Mr Jones cannot remember exactly what he said, but denies he put it like that and says his words have been misconstrued. Miss Hopper, who missed the end of the interview, but was present when Mr Jones mentioned the - 3 - objective of building and creating diversity, says she did not hear him say anything about not wanting to hire white men or that the company wanted to hire fewer white men. Miss Hopper also says she did not hear Mr Jones go through the ethnicity and sex of various existing employees. We will come back to our fact-finding on what Mr Jones said.[20]During the interview, Mr Jones asked the claimant what he would be expecting as salary. The claimant suggested £100,000. Mr Jones visibly showed his surprise. Mr Mainstone remembers that Mr Jones was ‘slightly taken aback’. Mr Jones said that was higher than they had been thinking, but he would not rule it out for the right person. The claimant said he would be happy to negotiate around a wider remuneration package.[21]The claimant and his friends discussed the interview afterwards, and particularly the alleged discriminatory remark about ‘fewer white men’, and have discussed those matters many times since. Moreover, Mr Butler, who is a solicitor who engages in discrimination claims as part of his practice, has informally advised the claimant on his case.[22]Mr Jones and Miss Hopper generally thought the claimant was a serious candidate who should progress to the first interview, although they had a couple of reservations. Mr Jones emailed Miss Hopper on 13 July 2021 to say ‘Chris’s expectations were high. We could probably accommodate him if we wanted to, but want to touch base with you before taking any further steps’. Miss Hopper replied, ‘I thought his would be … I’ve updated the spreadsheet with my feedback…I feel like we need to continue with the pre-screens and speak to someone whose package details are in the current ballpark and then decide what level we need at this stage, if you are in agreement?’[23]Miss Hopper noted on the interview spreadsheet ‘…Strategic experience – need to question operational, hands-on?’ Mr Jones noted on the interview spreadsheet ‘Very interesting CV. Excellent industry experience … Very broad range of HR experience, agree with VH – need to test appetite to be individual contributor.’ Although it is hard to be sure, these comments appear to have been noted on the basis of the written application and prior to the prescreening interview.[24]Following the pre-screening interview, Mr Jones noted on the spreadsheet that Miss Hopper was not able to attend the whole interview but she felt the claimant came across very well. ‘Main question at this stage would be package – is expectation going to be too high? Expectations will be in the 120k mark’.[25]The first interview was carried out on 3 August 2021 with Mr Clover, Mr Jones and Miss Hopper. The respondent makes the point that Miss Hopper was being paid for her time, so it would hardly have put the claimant through as a charade.[26]The claimant initially alleged in his tribunal proceedings that the first interview was ‘going through the motions’. After he saw the respondent’s - 4 - disclosure in preparing for this case, he believed that that interview was not going through the motions, and that the discrimination must therefore have happened later on in the process.[27]Miss Hopper wrote on her handwritten notes, before she discussed the interview with Mr Clover and Mr Jones, ‘Put through to team scenario’ This was her personal view before she discussed the matter with Mr Clover and Mr Jones.[28]After discussing the interview together, the three interviewers had doubts. They felt the claimant talked a lot, and they wondered if he would be a good listener. Mr Jones and Miss Hopper felt that the claimant was speaking in a scripted and premeditated way, and Mr Jones felt the conversation did not flow. They were still concerned about his seniority and expectations for the role.[29]Mr Clover noted on the spreadsheet, ‘Like him, is there an arrogance we need to tease out.’ Mr Jones noted ‘Is the role too hands on for him. Is he too senior for us / expectations too high.’ Miss Hopper noted ‘Is he approachable, need a bit of work to dig deeper. Is he a good listener? Has a lot of opinions, likes to talk a lot.’[30]The claimant secretly recorded the first interview. The transcript of the recording shows that he did indeed talk at length and that he expressed a number of firm opinions, eg on dispensing with probation periods and performance appraisals.[31]On 5 August 2021, Mr Jones, Mr Clover and Miss Hopper amended the job description to clarify it was a more operational role and less senior role.[32]At this point, there were two other candidates, both women, who had on 3 August 2021 also been through the first interview. It was also decided not to go ahead with them (one of them because ‘the people piece’ was missing)..[33]On 13 August 2021, the claimant emailed Mr Jones to ask if he was intending to conduct any further interviews. Mr Jones answered by return that they were reviewing and getting feedback from stakeholders that week and would be in touch very shortly. On 20 August 2021, Mr Jones emailed the claimant to say that they did not wish to proceed any further with him. He said they had decided after some deliberation to change the remit for the role and downgrade the level of seniority they were aiming for. They did not believe they were ready for someone of his calibre right now.[34]The claimant replied on 21 August asking in what way the job was becoming less senior. Mr Jones was on holiday. He replied on 18 September 2021. He said that the company was not at a point where it needed ‘a senior strategic people person’. It needed someone full time to handle nuts and bolts people issues. ‘So the role is definitely less senior – not envisaged as part of the leadership team, for example, and our salary budget is in the £80k range’. - 5 -[35]On 19 November 2021, the claimant wrote to Mr Jones alleging sex discrimination against Mr Jones and/or Mr Clover. He set out his account of events, including his allegation that ‘ you stated that it was yours and the company’s intention to hire “fewer white men”’. He said he had felt through the second interview that Mr Jones and his colleagues were ‘going through the motions’. He had now discovered that a woman had since been appointed. The claimant then set out a series of questions under the heading ‘sex discrimination questionnaire’. The email does not mention race discrimination.[37]Mr Clover provided a substantive answer in an email dated 25 November 2021. He said, ‘The comment you are referring to has been misconstrued. Mike was referring to us being a diverse employer and pointing out that we don’t just hire one type of person, for example just white men, not to say we don’t want to hire white men’. Mr Clover said that the gender or ethnicity of a candidate never had been and never would be a factor in their decision making. If they had decided (unlawfully) not to employ someone of the claimant’s background, he would not have been invited to the first interview, and certainly not to the next one. They would not have invested all the time, energy and money in proceeding through the process with him. Nor would they have continued to interview and hire people of the claimant’s gender and ethnicity. The suggestion that they could only mean they were engaged in some sort of sophisticated charade which was simply not true or tenable.[38]Mr Clover said that the company was mindful of its duty of confidentiality and compliance with GDPR, so could not disclose personally identifiable information of any other candidates.[39]During these proceedings, the respondent provided detailed statistics of employees and recruits by reference to sex as analysed elsewhere in these Reasons. We were also shown candidate spreadsheets with interview notes.[40]The respondent’s employee handbook states ‘we will treat seriously all complaints of discrimination made by employees, clients, suppliers, contractors or other third parties and will take action where appropriate’. Although the tenor of the section envisages complaints made by employees, it does say more generically, ‘If you are accused of unlawful discrimination, we will investigate the matter fully’ and disciplinary action will be taken if the investigation concludes that ‘your actions amount to unlawful discrimination’. No formal investigation took place as a result of the claimant’s letter, and Mr Clover simply spoke to Mr Jones. Ms Brauer’s appointment[41]Oliver Harding-Fleet, who had worked with Elizabeth Brauer in the past, contacted her on 5 August 2021 via Linked-In about the role at the respondent. Ms Brauer held another job and was not actively looking, but she was interested to explore the opportunity. She spoke informally to Mr Jones to - 6 - state her interest and then Mr Jones held a pre-screening interview with her on 17 August 2021.[42]On 20 August 2021, Mr Jones, Mr Clover and Miss Hopper held the first interview with Ms Brauer.[43]On 7 September 2021, there was a final ‘team / culture interview’. The respondent holds these when a recruitment decision has been all but made to check no one has any red flags since they are a small team,. The team / culture interview was attended by Miss Hopper, Ms Willis, Mr Harding-Fleet and two others. They were ‘positive all round’ and a decision was made to make the offer.[44]The comments on the candidates’ spreadsheet regarding Ms Brauer are good at every stage with no obvious reservations.[45]Ms Brauer was offered the position of People Lead by letter dated 10 September 2021. Her contract of employment also has ‘People Lead’ as the job title. The salary was £78,000.[46]There was discussion in the tribunal about whether Ms Brauer is in fact part of the leadership team. She regarded herself as part of the leadership team in the sense that she was head of her department (there being no one else in her department), ie a functional lead, and as such, (to use her words) she ‘reported in’ to meetings along with other departmental leads. She was not in an executive position and did not attend Board meetings. She was not part of the senior leadership team. Statistics[47]As at 22 June 2022, the company employed 22 men and 10 women. This comprised a rapid expansion in the number of employees during 2022. At the time the claimant was interviewed, the company employed only 13 employees (9 men, 4 women).[48]The claimant broke down the new hires from the respondent’s documents as follows. Since the company started, the respondent has hired 22 men and 10 women. Up to 2 July 2021 when the People Lead job was advertised, the respondent had hired 9 men 3 women; from then until the respondent would have become aware of the claimant’s tribunal claim on 21 March 2022, it hired 6 women and 4 men; and thereafter, it hired 9 men and 1 woman. The claimant suggests that at the time the People Lead job was advertised, the respondent had started a process of hiring fewer men, but that was reversed once it became aware of his discrimination claim. This was put to Mr Clover, who found the allegation absurd. He said that with all the various business matters going on, the respondent did not have time to orchestrate its recruitment statistics specifically for the purpose of defending these proceedings. - 7 -[49]The statistics show that two men were appointed on 14 March 2022 (prior to the date the respondent became aware of the tribunal claim). Appointments following the claimant’s written allegation of sex discrimination on 19 November 2021 but before the respondent became aware of the tribunal claim, comprised four men and two women.[50]The tribunal does not have accurate statistics regarding the ethnicity of these hires as the respondent has not been monitoring. We were shown a set of photographs. We do not consider it a reliable way to ascertain the ethnicity of individuals to guess this from a set of photographs. The podcast[51]The claimant makes much of the podcast with Kathryn Willis in August / September 2021. Ms Willis is Group Head of Compliance and an Executive Director of the respondent. The claimant’s theory now is that she influenced the decision not to appoint him.[52]Having looked at the relevant section of the podcast, we can see that the point being made by Ms Willis is that if a company is diverse, it should think about the image it portrays of itself in the media and in job ads. The respondent had in the past always used two white men to do screening calls on recruitment which was not a true reflection of the business.[53]Ms Willis was not involved in any way in the decision whether or not to recruit the claimant. Her only involvement in the process of appointment of a People Lead at all was in the final interview of Ms Brauer. This was the ‘culture interview’ which the respondent carries out when it has essentially decided to appoint a candidate, just to broaden the number of people who have met the candidate to check there are no red flags. The ’fewer white men’ comment[54]Having listened to all the evidence, we go back to our fact-finding concerning what Mr Jones said at the pre-screening interview about ‘fewer white men’. Clearly something was said about this. There was a general discussion about diversity in recruitment, given that the position was Head of HR. We find that Mr Jones indicated the company hoped to achieve a diverse workforce that did not exclusively comprise, for example, white men. Having listened to Mr Jones as a witness, we suspect he did not express this very well. The claimant and his witnesses remember the phrase ‘fewer white men’. The context of that phrase and quite how it was put is difficult to pin down. The claimant and his friends had been jointly discussing what was said for a very long time and are likely to have unconsciously influenced each other’s recollections. We also note a difference between them – and indeed an inconsistency with the claimant himself – as to whether Mr Jones allegedly said the company ‘hoped’ or the company ‘intended’ to recruit ‘fewer white men’, which creates a different nuance. Given that the claimant put it the two different ways himself in his witness statement, and that his friends all recollected wording closer to ‘hoped’, we find that was nearer to what Mr - 8 - Jones said. On the balance of probabilities, considering also what was set out in the 25 November 2021 email, we find that Mr Jones said something to the effect that the company hoped to achieve a position where there were fewer white men as a proportion of the workforce.
Law
[55]Under s13(1) of the Equality Act 2010, ‘A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.’[56]Both ‘race’ (including being white) and ‘sex’ (including being a man) are protected characteristics.[57]Under s23(1) ‘On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case.’[58]Under Equality Act 2010, s136, if there are facts from which the tribunal could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the tribunal must hold that the contravention occurred unless A can show that A did not contravene the provision.[59]The tribunal must follow the guidelines set out by the Court of Appeal in Igen Ltd v Wong [2005] EWCA Civ 142; [2005] IRLR 258 regarding the burden of proof (in the context of cases under the then Sex Discrimination Act 1975)[60]The Court of Appeal in Madarassy v Nomura International plc [2007] IRLR 246), a case brought under the Sex Discrimination Act 1975, states: ‘The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that on the balance of probabilities, the respondent had committed an unlawful act of discrimination. “Could conclude” in s63A(2) must mean that “a reasonable tribunal could properly conclude” from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Conclusions Sex discrimination - 9 -
Conclusions
[61]We first considered whether there are facts which from which the tribunal could decide, in the absence of any other explanation, that the respondent’s decision not to recruit the claimant was direct sex discrimination.[62]The claimant was qualified for the job. The successful candidate was a woman. This would be insufficient on its own to shift the burden of proof. The claimant placed particular emphasis on Mr Jones’ comment at the prescreening interview about ‘fewer white men’; the podcast with Ms Willis in August/September 2021; and the statistical pattern. We considered these separately and together.[63]We do not find it concerning or odd that an employer should discuss with a candidate for a post as Head of HR the issue of diversity in its workforce. Nor do we find it in itself indicative of an intention to discriminate that an employer should aspire to increase diversity in its workforce where there is underrepresentation. An aim to have an organisation less dominated by white men in areas where traditionally that is the dominant profile, does not mean that there is an intention to achieve that objective by discriminating in recruitment against white men and in favour of women or minority ethnic candidates. That is recognised to be unlawful (with limited occupational requirement exceptions). It is usually understood to denote an aspiration to remove the barriers which have hitherto prevented a more diverse workforce, whether by direct race or sex discrimination against non-white or female candidates or by unjustifiable indirectly discriminatory criteria and practices. We would expect candidates for a Head of HR post to understand these principles and distinctions.[64]As we have said, we doubt that Mr Jones expressed himself fluently on the subject. However, it is accepted that the context of the remarks was a discussion on the topic of diversity in the workforce.[65]Moreover, we are struck by the fact that Mr Jones made his comments to the claimant’s face. If it was Mr Jones’ intention not to recruit the claimant as a white man, or even just to prefer any other candidates who were not white men – or if he was aware that was the company’s intention – why would he have told the claimant words to the effect that the company hoped to employ fewer white men? We find it incredible that Mr Jones would have openly said what he did, if he had in mind that the claimant might not be recruited because he was a white man.[66]We further note that Mr Jones put the claimant through to the full interview stage.[67]We do not find anything indicative of an intention to discriminate against white men in Ms Willis’s podcast interview. She was discussing the broader issues around barriers to equal opportunities specifically in FinTec. She made the uncontroversial point that if a company’s recruitment procedures have a monolithic face, it may be less likely to attract diverse applicants. She is clearly engaged in diversity issues and has a level of passion about them, but - 10 - she made no suggestion of any positive discrimination. We cannot see that it shifts the burden of proof, either alone, or together with Mr Jones’ comment, that Ms Willis expressed these views in the podcast.[68]We add that, Ms Willis was not involved in the decision not to appoint the claimant.[69]We viewed the statistics with caution because the overall numbers were so low. We noted that, at the time of the claimant’s application, women comprised broadly one third of the total workforce, and that was still the position on 22 June 2022, when the number of employees had gone up from 13 to 32. The claimant argues that the respondent had started a process of hiring more women and fewer men at the time of this application, and that that process was deliberately reversed after the respondent became aware of his tribunal claim. On analysing the statistics, we do not find this convincing. First of all, the numbers are very small, as we have already stated. Further, following the claimant’s sex discrimination questionnaire, which we would have thought was a ‘warning sign’ of possible legal action, two more women were still recruited. In any event, we do not find it credible that a company of this nature would make multiple recruitment decisions regarding the sex (or race) of future employees purely to help defeat an employment tribunal discrimination case.[70]For all these reasons, taken separately and together, we find that the burden of proof does not shift and the claim for sex discrimination therefore fails.[71]We would add that the respondent also decided not to appoint the two female candidates who were interviewed on 3 August 2021.[72]Had we found that the burden of proof did shift, we would have found that the respondent proved to us that the failure to appoint the claimant was in no sense whatsoever due to sex.[73]The respondent did not rule out the claimant at the first opportunity. His sex was apparent on his written application. He was given a pre-screening interview and following that, he was put through to a full first interview.[74]Indeed, having originally thought that the first interview was a ‘charade’ (because of Mr Jones’ comment at the pre-screening interview), the claimant – on seeing the contemporaneous notes - told the tribunal he believed it was a genuine interview but that something must have happened afterwards.[75]Mr Jones and Mr Clover liked the claimant, but they also had reservations. They were concerned that he was too senior, may not like the hands-on aspect of the job, and his salary expectations were too high. It was as a result of concerns of this nature that they subsequently amended the job description to clarify it was a more operational and less senior role. - 11 -[76]There is evidence that the respondent was concerned about these issues before the claimant had even applied. The original draft job description had been already modified once to clarify it was a fully operational role. The budgeted salary was around £80,000. Mr Mainstone – the claimant’s witness - observed that Mr Jones was ‘slightly taken aback’ when the claimant suggested £100,000.[77]The appointment of Ms Brauer was consistent with this. Her salary was £78,000. On the seniority aspect, the claimant made the point that Ms Brauer was appointed as ‘People Lead’ and that she regarded herself as part of the leadership team, whereas Mr Jones’ explanatory email on 18 September 2021 said the role was ‘not envisaged as part of the leadership team’. We find that the point Mr Jones was essentially trying to make in his email was that the post did not need ‘a senior strategic person’, it was more ‘nuts and bolts’, commensurate with a salary of around £80,000. Ms Brauer’s description to the tribunal of her role was consistent with this – more of a functional role who, in her words ‘reported in’ to meetings with other departmental leads.[78]We do not find it indicative of sex discrimination in the circumstances that the respondent, mid recruitment process, decided to amend the job description to better reflect the level of the role. In our experience, this is something that can happen during a process if it becomes apparent that an advertisement is attracting the wrong level of applicant.[79]Miss Hopper’s initial reaction to the first interview was that the claimant could be put through to the next interview stage. However, after discussing the matter with Mr Jones and Mr Clover, she expressed some reservations which she had. The interviewers’ reservations were noted at the time on the interview spreadsheet, which is before there was any suggestion of a sex discrimination claim. They were concerned about whether the claimant was approachable, whether he was a good listener, whether there was some arrogance. Miss Hopper noted that the claimant had ‘lots of opinions and ‘likes to talk a lot’. We find it plausible that the interviewers genuinely had these concerns because, unknown to them, the claimant had recorded this first interview, and the transcript shows that the claimant did indeed talk at length and express a number of firm opinions on unstraightforward matters such as dispensing with probation periods and performance appraisals.[80]It is clear from the job descriptions that the respondent genuinely did want someone who had a personal touch. They talk about the importance of being empathetic and a great listener.[81]After the 3 August 2021 first interviews, the respondent decided not to appoint the two female candidates (one of them because the ‘people’ aspect was missing). The respondent was uncertain about the claimant for the reasons already stated. The real concern was personal characteristics rather than professional capability. - 12 -[82]By contrast, we accept the respondent’s evidence that there were no reservations about Ms Brauer. This is supported by the notes made at the time on the spreadsheet, again before any complaint by the claimant.[83]It is also not inconsistent with the fact that Mr Harding-Fleet, who had worked with Ms Brauer before, liked her enough to recommend her (although he properly stayed out of the process so as not to bias it).[84]On 5 August 2021, Mr Harding-Fleet had contacted Ms Brauer to ask if she was interested in the job. The respondent did not inform the claimant that he was unsuccessful until 20 August 2021, after Ms Brauer had been through the pre-screening and first interview. The claimant argues that the vague email to him on 13 August 2021 was therefore misleading, in implying that the decision process was still open.[85]That might be so. In our experience, employers often hold back on communicating rejection decisions until they are sure they have found a candidate they are happy with.[86]There is no overt evidence to suggest that Mr Harding-Fleet would not have contacted Ms Brauer if she was a man, or that Ms Brauer would not have been invited for interview. There is no indication that sex was anything to do with it. The respondent’s explanation is far more likely. The interviewers had some reservations about the claimant; another possibility was suggested to them by one of their managers (not Ms Willis) who had worked with her in the past; they went through the full interview process with this other candidate and they preferred her.[87]The claimant suggested that Mr Jones and Mr Clover would have put him through to the final team / culture interview, but that they spoke to the management team and Ms Willis persuaded them not to. This is pure speculation. There is no evidence of any such discussion. The respondent denies it. In fact, Ms Willis had no involvement at all in the decision not to appoint the claimant. Her only involvement was as one of the managers in the final team / culture meeting which approved Ms Brauer.[88]For these reasons, the respondent has satisfied us that the reason the claimant was not put through to the next stage and the reason he was not appointed was in no sense whatsoever because he was a man. At the end of the day, this was a small though expanding company. It needed a person who would fit into the team and would get on well with everyone. The interviewers had reservations about aspects of the claimant’s manner and personality (which were nothing to do with sex or race), and whether his aspirations for pay and status fit the nuts and bolts aspect of the job. It selected a person on considerably lower pay than the claimant had floated, and who did not cause them any concerns.[89]For completeness, we add that the fact that Mr Clover did not carry out a formal investigation in response to the claimant’s letter alleging sex discrimination is not a matter from which we draw any inference in relation to - 13 - stage 1 or 2 of the burden of proof. Mr Clover spoke to Mr Jones. He accepted what he said. He knew that the claimant had been put through to the first interview by Mr Jones, and he had himself interviewed the claimant together with Mr Jones and Miss Hopper at that next stage. He had his own views of the claimant and knew what the views of the others were. Race discrimination[90]Our comments are very similar as regards the race discrimination claim. For the same reasons, we find that the burden of proof did not shift and that, if it had shifted, the respondent proved that the rejection of the claimant was in no sense whatsoever because of race. In fact, there are additional factors which make the race discrimination claim even weaker.[91]The claimant accepts there is less evidence of race discrimination than sex discrimination, and he did not discuss race discrimination much during the hearing.[92]The comment regarding ‘fewer white men’ obviously covers race discrimination as well as sex discrimination. On the other hand, the candidate who was ultimately selected was a white person.[93]We do not have statistics regarding existing employees and appointments by reference to their ethnicity. At best, we were shown a series of photographs of existing employees which told us very little. We can therefore draw no conclusions from any statistical patterns.[94]We do not draw any inference from the fact that we were not provided with accurate statistics on ethnicity. The respondent is a small company and it had not been monitoring this. It showed willing to provide information by supplying the photographs. While the offer of photographs did show a lack of understanding as to why that was unsuitable, this is not a matter which suggests to us that the respondent was more likely to discriminate against white workers.[1]The claimant brought claims for direct race and sex discrimination in the failure to select him for the position of People Lead. By a reserved judgment sent to the parties on 11 August 2022, the claims were not upheld.[2]By letter dated 6 September 2022, the respondent applied for costs under Sch 1 rules 76 and 77 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. The respondent applies for its total costs of £42,850 + VAT plus its further costs of £5000 + VAT in making the costs - 1 - application + the cost of purchasing official copy entries relating to the value of the claimant’s property. The tribunal is asked to order a detailed assessment of the respondent’s costs or alternatively to order a sum it thinks fit up to £20,000.[3]The claimant provided no evidence of his financial means and did not wish the tribunal to take these into account.[4]The respondent argues that the claimant has: 4.1. Behaved unreasonably and vexatiously throughout the case. 4.2. Brought a sex discrimination claim that was extremely weak. 4.3. Brought a race discrimination clam with no reasonable prospects of success. 4.4. Brought an unreasonable and vexatious application for a default judgment with no prospect of success.[5]The alleged unreasonable or vexatious behaviour (in addition to bringing weak claims and the application for the default judgment) was: 5.1. Continuing to argue that he should be treated as the common litigant in person, despite his employment tribunal knowledge and experience. 5.2. Recording the second interview without permission and then putting the respondent to the trouble of transcribing it. 5.3. Not setting out his stall in ‘without prejudice save as to costs’ (‘WPSATC’) correspondence. 5.4. Engaging in poor arguments, eg arguing that the greater burden to engage in WPSATC correspondence lies with a respondent. 5.5. Submitting a grossly exaggerated schedule of loss when he was already in a higher paid role than had he been successful with the respondent. 5.6. Using his informal lawyer as a witness. 5.7. Aggressive, argumentative, haughty and at times insulting conduct. The two examples given were(i) telling Mr Hammer in an email that his argument was ‘nonsense’;(ii) in his submissions, saying R’s CEO had ‘contempt not just for my claim, but the whole tribunal process’.[6]The respondent referred to the fact that it had made various costs warnings or references to the weakness of the claimant’s allegations on various occasions. Procedure[7]We were provided with the following documents: the respondent and the claimant each provided their own costs bundle [R1 and C1 respectively]; the claimant provided a supplementary costs bundle [C2]. The respondent provided an Authorities bundle [R2]. Each party provided a written skeleton. There was also a written costs application and reply by the claimant (both contained in R1). Finally, there was the claimant’s schedule of loss.[8]Each side was given the opportunity to speak at the costs hearing. Mr Hammer did not seek to cross-examine the claimant. - 2 - Law[9]The power to award costs is set out in the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013. Under rule 76(1) a tribunal may make a costs 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.[10]The tribunal decides first whether these ‘gateway’ conditions are met, eg did the claimant act vexatiously? Did the claim have no reasonable prospect of success? The tribunal then decides whether to exercise its discretion to award costs. If so, the tribunal goes on to decide how much to award.[11]Rule 77 says that a party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. No such order may be made unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application.[12]Under rule 84, in deciding whether to make a costs order, and if so in what amount, the tribunal may have regard to the paying party's ability to pay.[13]The tribunal's power to order costs is more sparingly exercised and is more circumscribed by the tribunal's rules than that of the ordinary courts. There the general rule is that costs follow the event and the unsuccessful litigant normally has to foot the legal bill for the litigation. In the tribunal, costs orders are the exception rather than the rule. (Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78, CA.)[14]In exercising its discretion to award costs, the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct. However, its discretion is not limited to those costs that are caused by or attributable to the unreasonable conduct. The unreasonable conduct is a precondition of the existence of the power to order costs and is also a relevant factor to be taken into account in deciding whether to make an order for costs and the form of the order, but that is not the same as requiring a party to prove that specific unreasonable conduct caused particular costs to be incurred. (McPherson v BNP Paribas [2004] EWCA Civ 569.)[15]The judgment in McPherson was never intended to rewrite rule 40, or to add a gloss to it, either by disregarding questions of causation or by requiring the tribunal to dissect a case in detail and compartmentalise the relevant conduct under separate headings, such as “nature” “gravity” and “effect.” The relevant thrust of that judgment was to reject as erroneous a submission to the court that, in deciding whether to make a costs order, the tribunal had to determine whether or not there was a precise causal link between the unreasonable conduct in - 3 - question and the specific costs being claimed. In rejecting that submission the court had not intended to imply that causation is irrelevant. (Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78, CA.)[16]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 was 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 it had. (Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78, CA.)[17]In AQ Ltd v Holden [2012] IRLR 648, the EAT said this about unrepresented litigants by reference to the previous rules: ‘The threshold tests in rule 40(3) are the same whether a litigant is or is not professionally represented. The application of those tests, however, must take into account whether a litigant is professionally represented. A tribunal cannot and should not judge a litigant in person by the standards of a professional representative. Lay people are entitled to represent themselves in tribunals and, since legal aid is not available and they will not usually recover costs if they are successful, it is inevitable that many lay people will represent themselves. Justice requires that tribunals do not apply professional standards to such people, who may be involved in legal proceedings for the only time in their life. They are likely to lack the objectivity and knowledge of law and practice brought by a professional legal adviser. Further, even if the threshold tests for an order for costs are met, the tribunal has discretion whether to make an order. This discretion will be exercised having regard to all the circumstances. It is not irrelevant that a lay person may have brought proceedings with little or no access to specialist help and advice. This is not to say that lay people are immune from orders for costs: far from it, as case law makes clear. Some litigants in person are found to have behaved vexatiously or unreasonably even when proper allowance is made for their inexperience and lack of objectivity.’[18]Both parties referred extensively to case-law in their written skeletons. They do not disagree over the law. We have taken this content into account although we do not reproduce it all here. Facts and conclusions[19]There are a number of interrelated points, and although issues were discussed separately, we have also looked at the whole picture.[20]One preliminary matter concerns communications made through ACAS. When making its application to be allowed to serve a late ET3, the respondent disclosed an email from ACAS to Ms Brauer dated 27 January 2022. The claimant took that to be a waiver by the respondent of all the ‘without prejudice’ discussions which had taken place through ACAS. He therefore referred to the fact that during Early Conciliation he had on 30 November 2021 offered through - 4 - ACAS to settle his claim for £30,000. The respondent did not wish to negotiate. The claimant subsequently reiterated his offer. On 9 February 2022, the respondent told ACAS that it did not wish to engage or conciliate.[21]The respondent’s position is that it did not waive privilege because the ACAS letter was exclusively to the respondent. However, it did not wish to take up time arguing whether or not there was a waiver and it was content that the tribunal was told about the £30,000 offer which was not accepted.[22]Indeed, the respondent seeks to make a point about the £30,000 offer by the claimant. Mr Hammer places emphasis on the time-line. Filling out the details, the notable dates are as follows. On 20 August 2021, Mr Jones informed the claimant his application was unsuccessful. The claimant sought further explanation. On 18 September 2021, having been on holiday, Mr Jones said the role was less senior and salary in the £80,000 range. On 4 October 2021, the claimant started a 6-month job paid pro rata at the rate of £80,000 / year. On 19 November 2021, the claimant wrote to Mr Jones alleging sex discrimination and attaching a questionnaire. Mr Clover provided a substantive answer on 25 November 2021. The claimant notified ACAS under the Early Conciliation procedure on 19 November 2021. On 30 November 2021, the claimant offered through ACAS to accept £30,000 in settlement of his claim. On 14 December 2021, ACAS issued its Early Conciliation certificate. On 12 January 2022, the claimant presented his ET1. On 27 January 2022, ACAS emailed Ms Brauer regarding the employment tribunal claim. On 9 February 2022, the respondent told ACAS that it did not wish to conciliate. No ET3 had been lodged by the due date of 22 February 2022. On 21 March 2022, the claimant applied for a default judgment, providing a schedule of loss in the sum of £125,729. As we set out below, this schedule of loss was carefully calculated and not unreasonable. At that point, the claimant was employed on a 6-month contract. The application for a default judgment was refused on 30 March 2022. On 7 April 2022, the claimant started a new permanent role paying broadly £143,000 / year. At the date of submitting his schedule of loss, the claimant did not know that he was about to be offered this new job.[23]Mr Hammer’s point appears to be that, given that the claimant had secured well-paid future employment, the claimant should not have brought a flimsy discrimination claim and also that he overvalued the claim.[24]There is a separate point about whether the claims had reasonable prospects of success, but we cannot see what there is about this timeline which makes the claimant’s conduct unreasonable or vexatious. We have dealt separately with the calculation of the schedule of loss. Since both sides want us to consider the £30,000 offer, we would observe that it is not unusual for a claimant to offer to settle for a figure which is much lower than their schedule of loss. As for the fact that the claimant obtained new well-paid jobs, this does not mean he was not entitled to bring reasonable (if they were) discrimination claims. As well as the right to a finding of discrimination, there are also awards for injury to feelings which are separate from awards for loss of earnings. Litigant in person - 5 -[25]The claimant asks us to take into account that he is a litigant in person. The respondent says this is misleading because, although not a lawyer, the claimant is an experienced HR professional who talks in his CV of his experience managing employment tribunal cases and partnering / coaching senior department managers and executives in employment law. The claimant says, and we accept, this meant administrative management of cases, not raising and discussing legal arguments, which would be left to internal and external legal advisers. The claimant’s coaching work around employment law was on matters such as statutory holidays, and the necessity of conducting fair disciplinary and grievance hearings.[26]We consider that although the claimant will have had some knowledge of legal procedures and arguments, and be familiar with the idea that matters are not clear-cut, he did not have the level of legal knowledge of a professional legal adviser. It is one thing to be aware of the scope of the Equality Act and definitions of discrimination; it is another thing to understand complex issues such as the burden of proof and the subtleties of the type of evidence from which inferences might be drawn. Indeed, the claimant’s argument about how the burden of proof and comparators would work in his race discrimination claim (see below) illustrates to us that lack of understanding, as did certain other mistakes he made. As Oni says, a litigant in person may be intelligent and articulate (as the claimant obviously is), but nevertheless he is a lay representative and not a lawyer. Legal experience and knowledge is a very specific thing. Moreover, as AQ Ltd says, lay people are likely to lack the objectivity brought by a professional adviser. It is very difficult to assess the merits of your own case.[27]Unless we specifically say so below, we have not made any specific allowance for the fact that the claimant was a litigant in person. Where we do take it into account, we will take into account that he has a level of knowledge and is clearly an intelligent person, but also that he is not an objective professional legal adviser.[28]The respondent argues that it is a ground for unreasonableness in itself that the claimant continues to argue that he was a common litigant in person. However, the claimant accepted he knew more than ‘the butcher, the baker or the candlestick maker’ as Mr Hammer put it. We have set out our views. There was a point to be made. The claimant was not unreasonable to raise this. Application for default judgment[29]The deadline for the ET3 Response was 22 February 2022. After chasing the tribunal a couple of times as to whether it had been submitted, the claimant wrote to the tribunal on 21 March 2022 applying for a default judgment in the sum of £125,729 set out on an attached schedule of loss. The application was dealt with at the preliminary hearing which had already been fixed for 30 March 2022.[30]The claimant copied his email requesting the default judgment to Mr Jones and to Mr Clover. On 22 March 2022, the respondent’s solicitors wrote to the - 6 - tribunal saying the respondent had only become aware of the claim from being copied in to this email. The letter said that the registered office was ‘c/o TC Group, Level 1’ Devonshire House etc. It said that TC Group were the respondent’s accountants and that if correspondence was incorrectly addressed, it would be returned to sender.[31]In fact, the address noted by the claimant on his ET1 form was incorrect in that it omitted the words ‘c/o TC Group, Level 1’.[32]On 29 March 2022, the respondent’s solicitors emailed the claimant to say he had the wrong address and inviting him to withdraw the application for a default judgment. If not, the respondent would refer to the correspondence on the issue of costs. The claimant responded on the same date, referring to the different way the respondent noted its address in different places and contending that it was also a trading address. He said that if the respondent was correct that wrongly addressed post would be returned to sender, the question was whether the tribunal had received its letter back. The claimant told the tribunal that if it found the ET1 (the claimant wrongly called it ET2) had been returned undelivered, he would withdraw his application for a default judgment.[33]In the event, the tribunal was unable to trace that the ET1 had been returned.[34]On 30 March 2022, the respondent’s solicitor disclosed an email from ACAS to Ms Brauer on 27 January 2022 referring to an employment tribunal claim.[35]EJ Burns dealt with the respondent’s application for an extension of time at the preliminary hearing on 30 March 2022. He noted that ACAS had contacted Ms Bauer but she had not responded to the email. He noted that the tribunal had been unable to find the ET1 had been returned, but said that was not conclusive. He said the ACAS email did not remove doubts about whether the ET1 had been correctly served. On the balance of probabilities, the incorrectly addressed ET1 had not been delivered to the respondent and a late Response would be allowed.[36]The respondent argues that it was unreasonable for the claimant to have pursued his application for a default judgment once it was drawn to his attention that the address was wrong and indeed that he was the person who had made the mistake on the address (albeit unintentionally). We do not agree. There was sufficient doubt over the matter for the respondent to be required to give an explanation and for a Judge to make a decision. The address on the ET1 was sufficiently close to the correct address and resembled the way the address was put elsewhere. It was the correct building. The tribunal had not found any returned ET1. ACAS’s email of 27 January 2022 had not been responded to. EJ Burns weighed this and other evidence and made his decision.[37]Employers cannot be allowed just to assert they have not received an ET1 without some level of supporting evidence. This was not a situation of an entirely wrong address. On these kind of facts, there is nothing unusual about a default application, and there is nothing unusual about a claimant saying the respondent must explain why it has not submitted an ET3 on time. - 7 -[38]We see no basis whatsoever for saying that the claimant was unreasonable or vexatious in his conduct over this matter. We add that the claimant had not rushed to make his application. He had waited a month to see if there had been a reply, chasing the tribunal in the interim. He copied in Mr Jones and Mr Clover on his default application.[39]The respondent invited the claimant to withdraw his application for a default judgment as it had poor prospects of success, and that if he did not, the respondent would refer to this correspondence on the issue of costs. We do not think that this warning means the claimant was unreasonable to continue. There were sufficient arguments to be made in both directions regarding whether the ET1 had in fact been received and ignored, or not received. It was a matter legitimately for a Judge to look at and decide. The secret recording and the transcript[40]The claimant secretly recorded his first interview with the respondent. Mr Hammer referred to this as the second interview, but for consistency with our original judgment, we are using the formal nomenclature under the respondent’s policy. Prior to this first interview was the pre-screening interview.[41]The respondent says it was unreasonable to have put the respondent to the trouble of transcribing the secret recording and that this should also be seen in the context that making the recording in the first place was unreasonable.[42]We do not generally favour secret recordings of conversations between employer and employee, or employer and job applicant. It shows a lack of trust and a lack of candour. It strikes us as not a good way to start a possible employment relationship. Having said all that, technological advances mean it is not uncommon for secret recordings to be made. We can understand that if a job applicant has serious concerns about whether they were being discriminated against because of comments made by the employer in an initial interview, they may think they need to secretly record any follow-up interview by way of evidence. There is no suggestion that the claimant manipulated the conversation for the benefit of the tape. Having chosen to record the interview, the claimant was correct under the rules of disclosure to disclose it.[43]The respondent’s application originally stated that the claimant ‘put the respondent’s legal team to the burden of transcribing lengthy audio recordings. This was unreasonable behaviour and should attract a costs order, at least for the amount incurred in that respect’. The respondent also alleged that the claimant had asked the respondent to transcribe the podcast interview. Mr Hammer accepted at the costs hearing before us that this was his mistake and the claimant had transcribed the podcast.[44]Regarding the first interview transcript, on 19 May 2022, Mr Hammer asked the claimant whether he would confirm by return that he would prepare a first draft. The claimant replied the same day, saying that he would do so and ‘I will endeavour to have this completed sooner than later’. - 8 -[45]It was a lengthy recording and the claimant was working full-time. He was carefully working his way through the recording. On 9 June 2022, out of the blue, the respondent emailed the claimant as follows: ‘Please see attached our draft transcript of the recording. Please note we are still currently reviewing this transcript and will provide a final copy in due course’. The respondent’s solicitors had not chased the claimant for his draft at any stage. They had not asked how far he had got.[46]A couple of times following this, the respondent asked the claimant for his comments / amendments on the transcript, and he did not get back to them. He had started to compare his part transcript with the respondent’s transcript but it had proved to be a time-consuming and difficult exercise and he had given up on it.[47]Looked at overall, we cannot see anything unreasonable or vexatious in the claimant’s conduct over this. The respondent’s solicitors chose to jump ahead and prepare the transcript, having first asked him to do so.[48]We add that it would not necessarily have been unreasonable for the respondent’s solicitors, with their professional resources, to have been asked to prepare the transcript from the outset. There was no suggestion that the claimant was asking for an irrelevant document to be needlessly transcribed. Indeed, the transcript was relevant evidence which the respondent ultimately used to its advantage. But anyway, this is not what happened. What happened was that the claimant agreed to transcribe the recording as soon as he could, and the respondent’s solicitors decided not to wait, without alerting him in advance. Not setting out his stall in ‘Without Prejudice Save as to Costs’ correspondence[49]Neither party at any stage wrote any ‘Without prejudice save as to costs’ letters to the other. In our experience, it is invariably the party who is seeking costs who tells the tribunal about some WPSATC letter which it has written, and complains that the other party has ignored it and/or failed to heed the warnings in such letter regarding the weakness of its case. This is not what has happened here. The respondent never sent the claimant a WPSATC letter. It has made a separate argument about the ignoring of open warnings to the claimant about him being vexatious and unreasonable. But it is not saying it made any open offer or any offer in any WPSATC letter which the claimant unreasonably refused.[50]The respondent’s argument is simply that the claimant failed to ‘set out his stall in WPSATC and say why any of his claim was likely to win’. The respondent goes on to say that ‘parties are supposed to enter dialogue, either open or WPSATC so that the details of the arguments that will be deployed at trial are considered and can be argued in that forum, rather than at the trial. The claimant did neither, despite being aware of the concept from his management of Employment Tribunal claims’. - 9 -[51]We find this a strange argument. The first thing to say is that the respondent did not write a WPSATC letter either. Second, we are aware of no general obligation for any party to ‘set out their stall’ in WPSATC letters. Parties set out their legal position in their pleadings and can be asked for particulars and further information if needed. More detailed evidence is provided at a later stage when they exchange witness statements. There is no general requirement to argue the case in writing or indeed orally outside the tribunal forum.[52]In conclusion, we can see nothing unreasonable in the claimant’s failure to write any WPSATC letters. Engaging in poor arguments, eg arguing that the greater burden to engage in WPSATC correspondence lies with a respondent[53]Whether the claimant engaged in poor arguments is essentially covered by the separate heads of bringing allegedly very weak claims for sex and race discrimination and a default judgment. We deal with the issue of the WPSATC correspondence in the previous section, but the respondent’s argument was hardly self-evident and the claimant was entitled to defend himself against it. Indeed, we feel it is the respondent who was engaging in a poor argument on this point. Submitting a grossly exaggerated schedule of loss[54]We do not agree that the claimant submitted a grossly exaggerated schedule of loss. On the contrary. In general, the schedule of loss is carefully calculated and indeed it is modest in several respects. A schedule of loss does not usually contain a costs estimate, but the claimant may not have been aware of this. As at 4 October 2021, the claimant had a new job on a 6-month contract paying £80,000 /year pro rata. His job application had been rejected by the respondent on 20 August 2021. The calculation is made on the basis that the claimant would have been earning £100,000 which is what he had asked for and what he believed he would have been paid had he been appointed and not discriminated against. This is a reasonable figure to put in the schedule of loss. The claimant noted in the schedule of loss that he had received paid employment from 4 October 2021. At this point, he had not been offered a new job. He sought future loss of 4 months while he obtained further employment, which is a modest period. We accept the share options claim of £25,000 was a guess. The estimates of £9100 for injury to feelings and £5000 aggravated damages are modest. The Schedule is clearly set out and the respondent, being professionally advised, could easily estimate the likely award under each heading. Had a default judgement been issued, the tribunal would have wanted to be satisfied on each item. The claimant later obtained a very well paid permanent job, sooner than he had anticipated. However, that would have emerged at any negotiations or in the claimant’s witness statement, which was ordered to cover financial losses. No Order was made at the preliminary hearing on 30 March 2022 that the claimant serve an updated schedule of loss at any - 10 - point or that he keep the respondent informed regarding the latest position on his employment.[55]In our experience, it is common for claimants to submit a schedule of loss which values their case more highly than is likely ultimately to be awarded, and it is not unusual for unrealistic and exaggerated sums to be set out. In this case, the claimant’s schedule is far from unreasonable, and certainly not a matter in respect of which we would order costs. Using his informal lawyer as a witness[56]The respondent says it was unreasonable for the claimant to use a witness (Mr Butler) who had acted as his informal lawyer. The respondent says the claimant did not need this witness as he had two others.[57]We cannot see that it was unreasonable for the claimant to have used Mr Butler as a witness. Mr Butler happened to be present only because he was on holiday with the claimant when the interview took place. All three of the claimant’s friends heard some part of the pre-screening interview and discussed it with him afterwards. Mr Butler was there. As he was a lawyer, he gave the claimant some informal legal advice. But he was a witness of fact. His witness statement was made in a personal capacity. He did not hide that he was a lawyer. The tribunal was in a position to take that into account, if it thought relevant, in assessing the evidence. Aggressive, argumentative, haughty and at times insulting conduct[58]Most litigants are argumentative, because it is a litigious process, and they are arguing a case which they are emotionally invested in. This occasionally descends into a level of hostility. We do not see anything egregious in the claimant’s manner which we would describe as vexatious or even unreasonable. He was professional in how he handled matters before us and in the correspondence we were shown. Mr Hammer was unable to show us very much at all to support his argument.[59]We were shown an email responding to one from Mr Hammer stating that he (Mr Hammer) did not think certain documents were relevant to include in the trial bundle and that the respondent would need to amend witness statements to cover one of such documents which the respondent would include even though not relevant. The claimant responded ‘Your email is nonsense. If you do not see the relevance of the documents I have disclosed, why would any of the existing witness statements need to be amended?’[60]The word ‘nonsense’ in this context is rude, but we have seen a lot worse. The claimant would have been better to say ‘contradictory’, but we do not think there is anything very terrible about the email. We were not shown repeated use of such language. There is no course of conduct involved in this. - 11 -[61]As for the statement in the claimant’s submissions that the CEO has ‘contempt not just for my claim but the whole tribunal process’, the claimant added ‘inclusive of disclosure’. This was referring back to failure to disclose or late disclosure of certain key documents. The claimant had a reason for making this statement. Partly because of his frustration about disclosure. And partly because, despite the respondent’s own policy, Mr Clover had not carried out a formal investigation into the claimant’s allegation of discrimination. We do not think the claimant’s observation is outside the sort of comments which are made in litigation, and we would not describe it as unreasonable or vexatious. Extremely weak sex discrimination
Claim
[62]The respondent says the claimant was unreasonable in bringing his sex discrimination claim because it was extremely weak and/or that the claim had no reasonable prospects of success.[63]As the claimant frequently points out, his claim was that he was told the respondent wanted ‘fewer’ white men, not that it wanted ‘no’ white men. That distinction would potentially affect the nature of the analysis of the statistics and inferences drawn from the sequence of events. Our finding was that Mr Jones said something to the effect that the company hoped to achieve a position where there were fewer white men as a proportion of the workforce.[64]This was not the strongest of cases, but we would not go as far as saying that it had no reasonable prospects of success. From the claimant’s point of view, he had been told that the respondent wanted fewer white men in the workforce. He was a white man. We suspect Mr Jones did not express himself very well. Despite the claimant’s experience and seniority, and interviews which he felt went reasonably well, he had not been offered the job. Instead, a woman had been offered the job. He was told that the respondent, after interviewing him, had decided to change the remit of the role and the level of desired seniority. This looked like moving the goalposts.[65]There were matters which had to be considered and discussed at a tribunal hearing. We had to make a fact-finding regarding exactly what Mr Jones had said. Mr Jones could not remember the exact words and Miss Hopper did not remember the comment at all. We then had to make a decision regarding what Mr Jones meant in the particular context. The fact is that a woman was ultimately appointed, a woman who had not initially applied, and that Mr Jones had made a comment referring to ‘fewer white men’. We had to consider why the company had changed course, downgrading the role after having interviewed the claimant. We had to consider the process by which Ms Brauer was appointed and what it signified. We had to consider whether the statistics were significant. These were not clear-cut and we do not feel that, as the respondent contended in its ET3, the statistics showed the claim was unreasonable and vexatious. There are many ways of interpreting statistics, and the claimant never suggested that the respondent was not employing any white men at all; he said the desire was to employ fewer white men. - 12 -[66]The fact that the claimant was interviewed twice was a point against him, but did not in itself mean his claim must fail. The respondent might still have preferred to appoint a woman and be looking for one to appoint. It did change its ostensible requirements mid process as we have said. At the end of the day, we looked at all the evidence and reached a view. We gave our reasons in our decision on liability for rejecting the sex discrimination claim. We feel confident in those reasons. But that was a decision after hearing and considering the evidence. The claimant was unsuccessful. That does not mean he was unreasonable bringing the claim or that the claim at any point had no reasonable prospects of success. Race discrimination claim with no reasonable prospects of success[67]The race discrimination claim is a different matter. Most strikingly, the successful candidate was also white, which at some stage before the hearing, the claimant knew. On the face of it, a claim that you have not been recruited because you are white is unlikely to succeed if the successful candidate is white. That does not automatically follow, of course, because there can be an explanation. For example, the successful candidate might be appointed for reasons which override the employer’s desire not to appoint a white person. Or things might have changed between the claimant’s rejection and the appointment of the successful candidate. One can also think of other possibilities. Including as described below.[68]In this case, the only evidence which could be directly suggestive of race discrimination was Mr Jones’ comment about having fewer ‘white men’ in the workforce.[69]The claimant was far more focussed on the sex discrimination aspect. The questionnaire which he sent only dealt with sex discrimination. He did not discuss race discrimination much during the hearing. He accepted there was less evidence of race discrimination.[70]Mr Hammer argues that, as there is no provision for combined discrimination in the Equality Act 2010, a claim based on discrimination against a ‘white man’ was bound to fail. We disagree. Such a claim can be brought separately as sex discrimination and as race discrimination. It is not necessary for the protected characteristic to be the exclusive reason for the less favourable treatment. It is only necessary for, for example, ‘race’ to be an effective cause of the decision not to appoint the claimant.[71]This legal debate was clearly one with which the claimant, as a litigant in person, was reasonably entirely unfamiliar. Also, it appears that EJ Burns at the preliminary hearing did not raise any concerns about how the claimant put the case and having a hypothetical comparator for the race discrimination claim even though a white woman had been appointed. As far as the claimant was concerned, the respondent thought that being a ‘white man’ was an undesirable category, so that he was less likely to be appointed than if he was outside that category by being a woman or black. The evidence for race discrimination is one - 13 - element weaker than it is for sex discrimination, because there is no actual black appointee as a comparator, but much of the rest of the evidence still applies, ie the evidence concerning the original remark, the claimant’s experience, the downgrading of the post after interviewing the claimant, the failure to appoint a white (man).[72]For reasons we have already explained, we did not think it unreasonable to have brought the sex discrimination claim and we did not think it had no reasonable prospects of success. Although the chances of proving that race was an effective cause of the claimant’s non-appointment were even weaker given that the appointee was white, given the nature of the argument we do not think it was unreasonable for the claimant to have brought and run the claim and we do not go as far as saying the race discrimination claim had no reasonable prospects of success.[73]Even if we were wrong about this, we would not exercise our discretion to award costs. We believe the claimant could afford a costs award. Certainly he did not ask us to take his means into account and we are aware of his current earnings. So that is not our reason. However, we can see why the claimant did include a race discrimination claim. The remark was about ‘fewer white men’. The claimant, as a litigant in person with the level of knowledge we described above, reasonably did not appreciate the legal arguments around combined discrimination and the nature of the comparison he would have to make. We also note that there was very little extra evidence or time involved in defending the race discrimination claim. The respondent had not been monitoring the ethnicity of its workforce, so there could be no sensible discussion of statistics. The matter scarcely arose as a separate issue in the questioning and evidence.[74]Finally, this is not a case where we find the claimant has been generally unreasonable. We reject the respondent’s arguments of unreasonableness, both looked at individually and taken together. Indeed, several of the arguments for costs were poor ones. The claimant clearly believed that he had been discriminated against because of sex and because of race. He brought his claims and conducted himself overall in a measured way. He was entitled to bring his claims and he was entitled to fight his corner. It is simply that, after closely analysing the evidence, it was our view that his analysis and conclusions were wrong. We do not consider it appropriate to make any costs order against him.