Mr M Massamba v IKB Travel and Tours Ltd: 2200624/2017

EMPLOYMENT TRIBUNALS

Case No 2200624/2017

Between

In person; final submissions only, Ms V Von Wachter (Counsel)Claimant

Ms P Hall (Consultant)Respondent

Before

Employment Judge D A Pearl

Members

Ms P Breslin

Mr J Noblemunn

In person for claimant

Date 15 March 2019

JUDGMENT

[1]The claim of direct race discrimination concerning the racist comment on 28 September 2016 succeeds.

[2]The Claimant’s dismissal on 6 October 2016 was an act of race victimisation.

[3]The failure to communicate an appeal outcome to him was an act of race victimisation.

REASONS

Remedy

[1]By ET1 received on 24 February 2017 the Claimant brought claims of race discrimination and automatic unfair dismissal. His one page of particulars contained seven ‘Chapters’. He was employed by the Respondent as a Business and Marketing Development Manager from 1 February 2016 to 6 October 2016 when he was summarily dismissed. - 1 -

[2]There has been some confusion concerning the issues. On 7 June 2017 it was clarified that the Claimant’s grievance alleging race discrimination dated 30 September 2016 was said to be a public interest disclosure; and his dismissal was said to be because he had made this grievance. The dismissal is put both as an automatic ‘whistleblowing’ unfair dismissal or (after leave to amend was granted on 25 September 2017) as race victimisation, the grievance being a protected act.

[3]In the initial preliminary hearing the remaining claims were said to be “in relation to the incidents identified in the seven chapters …” This was repeated by the second Employment Judge on 25 September 2017 and, again, by the third Judge on 18 July 2018. That Employment Judge had direct race discrimination in mind but we note that, earlier, Employment Judge Spencer on 25 September 2017 said that the discrimination claim arising in the seven chapters “will include a claim for victimisation contrary to section 27 … on the basis that the Respondent … treated the Claimant to his detriment in the respects set out in the seven chapters … because the Claimant made a complaint of race discrimination.”

[4]The remaining claims of whistleblowing relate to two allege disclosures, concerning auto-enrolment and also his terms and conditions of employment. These claims, as became evident early in the hearing, cannot succeed and we give short reasons later on.

[5]In resolving the issues we heard evidence from the Claimant; and from Mr Abir Burhan, Mr Yaser Al Khafaji, Mr Lucian Barboi and Mr Saad Al Khafaji. We issued a witness order for Mr Abdalla Ahmed but it could not be served by the Respondent who suspects that he is out of the jurisdiction. Additionally, the Claimant applied, after the close of his case, to call his Mother, largely as a character witness. We considered that this came too late and would not assist the tribunal in the overriding objective of reaching a timely and proper conclusion. We will also follow the witnesses in referring to the relevant actors by their first names. We studied a bundle of 439 pages and various further exhibits that were handed in during the hearing. Facts

[6]We would state at the outset that it is not our function to resolve each and every factual dispute that can be discerned in the evidence. Many of the facts here are agreed and documented. What follow are the findings that are necessary to decide the issues.

[7]The Respondent travel agency specialises in travel and tours to the Middle East and East Africa. It is a family-owned business. Abir Burhan is a Director and is referred to as Managing Director. He is the son of Imad Burhan, who is a Director and who founded the business. Saad Al Khafaji is the General Manager and also a Director. His son, Yaser, was employed as a PA to Abir and his Father, Saad, from July 2016 to September 2017. This was stop-gap employment and he has now begun his career as a civil engineer. - 2 -

[8]The Claimant joined in February 2016 and it is agreed that there was a sixmonth probationary period. It is also agreed that he passed into non-probationary employment on 1 August 2016, with a pay rise. There is very little by way of documented concern about his performance up until that date. Abir has raised two items of poor performance in April 2016. The first (pages 67 to 69) appears to be relatively minor in that the Claimant approached Gulf Air to advertise flights to Iran when that airline had ceased flights to that country. Further, Abir himself seemed to think that they flew to Iran at that time: see page 68.

[9]The second matter is omitting a subject line in a mass emailing. This had no bearing on the dismissal six months later. It does not appear to have been raised with him at the time, but if it was, it clearly had no adverse consequence for him at the conclusion of the probationary period.

[10]The next two matters of underperformance alleged by Abir are as follows. First, on 19 August 2016 the Claimant sent to him an invoice for payment and he failed to tell Abir that “the Respondent’s name had been denoted incorrectly in the invoice.” The tribunal finds it hard to understand how this could possibly be raised as a criticism of the Claimant. The supplier generated the invoice and in the description of services (for which $800 was owed by the Respondent) described the Respondent as IKB Travel and Tours. In the top right hand box, marked “To” the supplier had written: “IKP Travel London, UK.” This has no bearing on the Respondent’s liability to meet the invoice and it is a criticism of the Claimant that seems to be groundless.

[11]The second item is the drafting of a letter by him and not using headed notepaper. This is also a trivial error, if error it was. The text is not criticised by anyone and it was sent by the Claimant to Abir 12 September 2016 for his comments before it was sent off in final form to Camden Council. Abir replied: “please correctly format the letter in standard letter format.” He also asked who in the council would be receiving it. In a second email on 15 September he told the Claimant that “real companies always use letter headed paper” and that writing basic letters was fundamental. In a third email he said that the Claimant’s computer would contain a letterhead on the desktop. The Claimant says simply that he had not found it before that point and that he had no cause earlier to look for any letter headed paper. Since the draft was never sent in that form, and in the light of the emails between pages 102 and 104, any suggestion that the Claimant was underperforming, or that this was part of what was subsequently termed gross misconduct by the Respondent, cannot bear scrutiny.

[12]Abir’s witness statement says nothing about May and July meetings with the Claimant, the latter being for the purpose of considering what to do at the end of his probationary period. Saad, however, states that probation meetings (as he calls them) took place in May and July “to highlight the Claimant’s poor performance.” Indeed, he says that the Claimant was given “warnings about his work with us.” This is inherently unlikely. First, it is inconsistent with Abir’s evidence. Second, these warnings were never documented or subsequently referred to, other than after the dismissal. Third, Abir stated in his witness statement that on 30 September he believed the Claimant still to be “a valued member of the team and his duties were critical to business growth.” Fourth, Abir - 3 - told the tribunal that the Claimant only became difficult to work with in the last few weeks before 6 October. He referred also to the Claimant being elected Employee of the Month as well as to the pay rise. In short, the evidence that the Claimant was regarded by early September as an under-performing employee is unpersuasive.

[13]Saad was the Claimant’s line manager. When questioned about the Respondent’s allegation that the Claimant was performing poorly, his answers were far from satisfactory, or even clear. He told us that the probationary period was ended and a pay rise given because the Respondent “had to keep faith” with the Claimant, even though his performance was lacking. He thought there was no point putting anything into writing. Nor did he consider extending the probationary period. He also referred to the Claimant making “some errors here and there.” His evidence that the Claimant’s performance was poor is inconsistent with his positive decision to give the pay rise on the satisfactory completion of probation as well as his failure to put anything about performance into writing. We also doubt that he did have any significant concerns about performance. That part of his evidence has, in our view, crept into the statement that has been prepared for the purposes of this litigation long after the event.

[14]The next relevant date is 14 September when Abir asked the Claimant to name the top 10 sales agents. His mind apparently went blank but he was able to name five. Lucian was asked at this meeting to name 10 agents and did so, although he was not asked to rank their performance. The Claimant says he felt humiliated at the meeting. The Respondent cites this as an example of underperformance. As to what occurred, the Claimant’s account is based upon a ‘diary’ that he compiled for the CAB on about 8 to 10 October 2016, i.e. under four weeks afterwards. We have found the Claimant to be an accurate narrator of the detailed events that we describe and we accept his account here which is, we note, to be contrasted with the Respondent’s more generalised references to this meeting.

[15]There is no need to descend to any detail, but for reasons set out more fully in the diary entries, these being connected to holidays, pay level, pension and workload, the Claimant became unhappy after the 28 July probationary meeting and considered looking for another job.

[16]The next relevant date is 21 September and, again, the clearest evidence comes from the Claimant and his diary entries. Abir does not refer to this date at all. The Claimant’s evidence illustrates that relations were at this point strained with Abir but otherwise the conversation of the 21st appears to have no other relevance to the case.

[17]We next come to the SMTP issue. On 27 September an employee of SMTP, who provide services to the Respondent, wrote to Abir: “I haven’t heard back from you on my email below for some time now and would like to follow up on it.” The email in question is at page 117 and is undated, but it was addressed to Abir and there could be no criticism of the Claimant for not dealing with it. It related to a requirement of SMTP that the Respondent remove certain names from its mailing list. We are prepared to accept that it is a standard email that the SMTP - 4 - system generates, but our finding is that it went to Abir and had not been acted on. Abir sought in evidence to blame the Claimant for not acting on ‘pop-ups’ that appeared on the Respondent’s screen. The Claimant denied ever seeing such pop-ups. However, Abir also told us that it was an important matter for the Respondent to act on if it did not want its email account shut down. It therefore appears clear that he must have slipped up in not responding earlier to SMTP himself.

[18]This is not the dispute that concerns the parties. On the following day Abir responded to the SMTP email by telling the Claimant “Michael call them speak to them then email them.” The Claimant did call them, explained that the email list was being updated and asked if he should email SMTP Support; and also asked for a confirmation email of that conversation. The reply he was given over the telephone was that once the updating had occurred “they will send us back an email and I do not have to email them as they have made a note on the account.”

[19]At 6:40 pm he emailed Abir. “I called them and they took note on our account that we are updating our mailing list. I have removed hard bounces and complaints from the list.”

Conclusions

[20]Abir replied at 8:37 pm. “Email confirming you spoke to them. I did say call AND email them.” The Claimant replied 30 minutes later (from home): “I called them and they will pass it on to Abuse team. Once the list is updated they will confirm with email.” Abir replied about 10 minutes later with stringent criticism. He said he had asked the Claimant twice and given clear instructions which the Claimant had been unable to follow. This was unacceptable. He had gone against management instruction and this was not the progress that they had told him the week before they expected. He was to consider the email as a warning. The Claimant says he was astonished and shocked to read this and we accept this evidence. Abir responded in terms that, in the tribunal’s industrial experience was unduly hostile, harsh and bound to antagonise the employee. The Claimant had done what he was asked to do and he had held back from writing an email to the service provider only because an email from them had been promised. No reasonable manager would issue any sort of warning in the circumstances.

[21]On 28 September the Claimant states that Abdalla called him “a black monkey” in the office. Two days later he formally complained about this in an email addressed to his line manager, Saad, who was in Iraq, and copied to Imad, who was with him. He said that Ilani, an Accounts Assistant, was present, as were Lucian, Yaser and Mohammed. The Respondent’s case is that the Claimant has fabricated this allegation, knowing that his employment was precarious because of his poor performance. We are required to decide whether the Claimant’s allegation is made out.

[22]We note, first, that the Claimant’s account has always been consistent and that he set out what happened in his email of 30 September. He recounted the following.(a) Yaser laughed at the comment.

(b) Abdalla said “that’s good right.”

(d) the Claimant told Abdalla it was offensive. - 5 -

[23]He then sets out that the next day, in the morning, he told Yaser that he had been caused deep offence and was upset. “I asked Yaser if he could inform Abir of the details of the incident …” Yaser replied: “Oh Abdalla is an old man and you joke with him at times.” The Claimant then explained that “even if a joke with someone there are boundaries on things you say and don’t say. It’s a serious matter and that he should inform Abir …” The response was that it did not have to be reported and Yaser said this was “as it’s no big deal and if it was me I would not pass it on to Abir.” The Claimant said it was a big deal and had caused him distress. Ilani then joined in and said it was offensive and not nice, adding “would you like it if someone was rude to your race?”

[24]The next incident described in the grievance email has four elements.(a) On 29 September the Claimant telephoned Abir, hoping to tell him about these events, but there was no answer. (The Respondent accepts that there was a missed call.)

(b) He then sent a text message: “Can you let me know when your free please? I tried calling you just now!”

(d) After work the Claimant was heading home with Yaser and Ilani. Abir was on the other side of the road and Yaser went to speak to him. Abir did not acknowledge the Claimant.

[25]Pausing at this point, this is a detailed account and our first conclusion is that in other respects we are satisfied that the Claimant has a good and accurate grasp of factual detail. We have found his credibility and accuracy of recollection to be good. Second, the Respondent’s allegation that he has lied about all of this necessarily amounts to his having constructed and fabricated an account of great sophistication and some complexity. He could not have known, for example, that Abir would not pick up the telephone when he called, or answer the text message that was sent to him. Further, he has within two days set out a detailed account that involves others at various points and the Claimant could not possibly have known that his email of complaint would not be acted on or that other witnesses would not immediately be asked whether his account was true. If this was all a fabrication, the risk of it immediately unravelling was very high. However, the Claimant’s evidence has struck us as measured and straightforward and the more likely explanation is that he described in the email precisely what had taken place.

[26]The third factor that confirms this view is the weak attempt to set out anything to the contrary. Ilani has not been called and nor has Mohammed. It is asserted that witnesses were later interviewed, and we will return to this, but no note has been made of any of their supposed denials or their accounts. Abdalla’s account, whatever it was, was not written down. There is, however, a witness statement from the absent Abdalla that we have admitted.

[27]Paragraph 6 says that when he was told of the allegation “I was mortified. I cannot understand why Michael would say such a thing. Initially I thought it was a windup.” This is a surprisingly scant response to the allegations that the Claimant had raised. It is devoid of any useful detail and does not deal with the conversational exchanges that the Claimant reported. It also refers to Abir approaching Abdalla about the allegation some time in the first week of October and this undermines the Respondent’s case in one respect, as we note below. - 6 - This statement is in our view an evasive and damaging statement for the Respondent.

[28]Other features of the evidence confirm our conclusion that the Claimant has given accurate evidence. Ilani is said to have told the Respondent (after 17 October) that he did not want to get involved. As Ms Von Wachter has pointed out, this is a curious response if the Claimant has made up the story and falsely placed Ilani right at the centre of the exchanges with Abdalla and Yaser. It suggests that he does not deny saying what the Claimant reported him to have said. On the balance of probabilities we consider that he would be more forthcoming if the Claimant had maliciously roped him into his allegations when, in reality, no offensive comment had been made and when, necessarily, the comments attributed to him were wholly untrue.

[29]Next, Yaser’s witness statement shortly denies the Claimant allegations, although with little detail. His stance, as was explained in evidence, is that no racist comment was made and he never reacted in the way alleged by the Claimant. There is a stark conflict between them. On one point Yaser seemed to be uncertain and it assumes some importance. He was asked about whether his Father could be contacted while he was in Baghdad. (Saad told us that he stayed at a hotel in the airport.) Yaser said “we were not in contact. He was unreachable in terms of telephone calls and emails.” He then added that he was out of contact “for the most part”. He expressed a guess that his Father had called his Mother while he was away. He then added “we spoke once or twice when he was away.”

[30]Lucian says in his statement that he heard no offensive comment but may have been wearing headphones at the time. His oral evidence is that he did not recall the racist comment or any conversation about it. He did not remember any conversations about the Claimant’s dismissal. He said that he could not remember when he was asked for his account by Saad. “Maybe Saad asked me when he came back and the thing exploded.” He then explained that this was the time when the tribunal claim was lodged. We have considerable doubts as to whether Saad ever did interview him about the Claimant’s allegations soon after Saad returned from Baghdad.

[31]The Claimant’s 30 September grievance email was sent to Saad in Baghdad and also copied to Imad Burhan who was out there with him. A notable omission in this case is any evidence of any sort concerning whether Imad opened the email. Saad has nothing to say on the topic. There is no document that assists. Imad was not called. He was never asked at the time to give a statement. It is our conclusion that it is more likely than not that he opened the email. We know that the emails were received in Baghdad and there is no reason to believe that he could not have opened it soon thereafter. Imad is Abir’s Father.

[32]The only evidence we have is Abir stating in his witness statement that Saad and Imad both only became aware of the Claimant’s email after his dismissal on 6 October. It is far from clear how Abir knows this and he does not say. Nor does he say whether or not he and his Father spoke by telephone or communicated by text or email before 6 October. There is no denial of the implied allegation that they did so. Paragraph 41 is also framed in terms of Imad not being - 7 - the correct addressee for the Claimant’s grievance. Read together, paragraphs 41 to 43 do not inspire much confidence that Abir is giving the full story.

[33]On Monday 3 October the Claimant did not feel well enough to go to work and shortly before 6 am he sent an email to Saad explaining this and he copied it to Yaser. Sending it to his line manager, even though he was in Iraq, is consistent with his sending the grievance to him some days earlier. Abir responded by telling the Claimant on the afternoon of 4 October that he should also let him know as well as Saad and Yaser. Some hours earlier, at 5:26 am on 4 October the Claimant told Saad that he was still not well and “I should hopefully be back at work before Thursday 6th October.” It has transpired during the case that all parties read this as meaning that he would return by 6 October. He therefore did not attend the office on 5 October but Abir took him to task for this at 8 pm that evening when he emailed him and alleged that he had not let anyone know that he would be off. This was not acceptable, he said, and the Claimant must inform the Respondent he would not be attending and he also asked that he get a sick note from the doctor for the three days off that week. This email therefore raised two issues: first, whether the Claimant had informed his employer that he would not be in and second, the request for a sick note. The Claimant first sent the link to an NHS site and he was seeking to show that he was not obliged to get a doctor’s sick note for that length of absence. Then, within the hour, he forwarded to Abir the email he had sent to Saad the day before. Abir then said that they could not work with ‘hopefully ‘and alleged “you are being very difficult with your replies.”

[34]It emerged in evidence that Yaser accepts that he did not inform Abir of the Claimant’s email concerning sickness on 4 October. He also accepts that, although he was copied in to Abir’s emails (in fact he was the main addressee) he did not respond to Abir to put him right.

[35]Abir told us in evidence that when he woke up on the morning of 6 October he had no intention of dismissing the Claimant. In the light of not only what occurred that day but also the various inferences that we are prepared to draw from the earlier evidence, we reject this evidence. His suggestion that he decided to dismiss the Claimant as a result of what they discussed over the telephone morning is one we consider to be far-fetched. In any event, there is on page 426 a statement that Abir at some stage made, although we do not know when. This states that in the final two weeks of his employment, before 6 October, the Claimant “had become very aggressive and uncooperative work hence leading to his termination.” It seems plain to the tribunal that he had decided to dismiss that day. This fits in with the Claimant’s account, which again we consider has to be an accurate one. He states that Abir telephoned him and said he wanted him to come up for a meeting and this is, on all the available evidence, the meeting where he intended to dismiss the Claimant. The Claimant was suspicious and asked if two other employees could come up. Abir said he and Yaser would choose who else would be present. The Claimant protested and said he wanted Ilani and one other Abir said they could not come as they were busy. The Claimant maintained his position and suggested that the conversation be recorded in lieu of his being accompanied. This was agreed. - 8 -

[36]The Claimant also records Abir coming down in advance of the scheduled meeting and asking him why he wanted people present and the Claimant said that he was not comfortable. Again, we find as a fact that at this point Abir knew full well that he was going to dismiss the Claimant. We also refer to paragraph 40 below.

[37]The dismissal meeting itself has been recorded and we listened to some of the tape. At the outset Abir said there was no need to record the meeting but he left it there. He then gave the letter of dismissal to the Claimant that he himself had typed. This is at page 161 and should be read for its full terms. In summary, it stated that the Claimant had not grown into the role, that the job was not right for him and he was being terminated with immediate effect. It was headed ‘Termination of employment for gross misconduct.’ It alleged that he had been given many chances but that he still did not know who the top five sales agents were and that this was shocking. It further alleged that he regularly made mistakes and that he was poor at communication and timekeeping. Many more issues and errors could be listed, he said. The Claimant was then asked if he agreed with the letter and then, somewhat curiously, was asked if he could do anything to improve.

[38]In the next exchanges he was asked “do you want to keep your job?” To which the Claimant said that that made no sense. The Claimant denied there had been warnings. Further on, Abir said that he was asking “would you like to remain in your current job?” The Claimant said: “you just terminated me so why would you ask me if I want stay in the job?” After another question from Abir he said he was going to go home. The matter came up again and the Claimant asked, understandably, what he was expected to talk about. Abir responded that it was so that he could improve in his next role, i.e. with another employer. Later on he also referred to the Claimant being very confrontational with him over the last week or two. Some of these exchanges strike the tribunal as being bizarre, particularly the repeated suggestion that asking the Claimant if he wished to remain in the company was somehow linked to helping him understand what he had done wrong. Abir said it was to help him improve in his next job. These are, to say the least, unusual points to be made by an employer dismissing an employee.

[39]In evidence Abir said he wanted the Claimant to apologise and ask for his job back. This is highly unrealistic. Abir knows nothing, he said, about correct procedures, Acas guidance or unfair dismissal. He had set out no proper written warning to the Claimant, there was no advance notice of what was being discussed, the Claimant had no opportunity to contest the allegations or, beyond that, to improve and, in any event, all fairness was dispensed with. It comes as no surprise that the Claimant wanted nothing more to do with the meeting.

[40]The Claimant has again, on points of detail, established his case with accuracy. He recalls Lucian being called upstairs to see Abir before the meeting and then discovering, after the meeting, that his access to the Internet and email had been disconnected. He assumes that that was why Lucian was called up and the net effect of our discussion about this with Lucian was that he agreed broadly that it may have taken place. We find that it did. - 9 -

[41]Abir’s oral evidence was unconvincing and in part contradictory. He told us early on in his cross examination that the reason he asked the Claimant to see him was not to be terminated, but have his performance reviewed. That is plainly not the case. As we have found, Lucian had been asked to disconnect the accounts; and Abir had written a letter of dismissal. Abir then went on to say that he thought the Claimant was quite pleased that he was being dismissed and that Abir now sees the Claimant had contrived the whole of his case. He believes that he has made up his allegation of racial abuse, for his own benefit.

[42]Saad also gave evidence that is difficult to accept. We have no hesitation in rejecting his assertion that the email to Gulf Air concerning flights to Iran was a “large issue.” We have dealt above with some of his contradictory answers relating to the probationary period and its ending. The Respondent’s evidence is that Abir told Saad that he had dismissed the Claimant after the event sometime after 6 pm on 6 October. Saad says that only then did he go back to his unopened emails to see if there was anything from the Claimant and he found the 30 September grievance email with his allegations. We were not satisfied with the accuracy of other parts of his evidence and we have considerable reservations that this is true. In any event, it does not explain what happened to the email in identical terms that Imad received. The Respondent’s case is that the Claimant’s dismissal had nothing to do with his allegations of race discrimination. Saad told us that once he had seen the grievance email he wondered whether it was related to the dismissal. He said that it concerned him and then immediately added that he did not see it as a problem that was linked to dismissal. Whether these could have been his thought processes at the time is, in our view, open to great doubt.

[43]He said that when he came back to the UK he interviewed witnesses about the Claimant’s allegations. We have already noted that this contrasts with Abdalla saying in his witness statement that in the first week of October Abir spoke to him about those allegations. As we have noted, there is no written evidence to confirm anything that anybody is supposed to have told Saad or Abir. After some to-ing and fro-ing in cross examination, Saad accepted that he came to the view after he had spoken to people shortly after his return that the Claimant had lied and given a false story. He accepted that this could be paraphrased as the Claimant engineering a cynical ploy so as to make a claim in the event that he was dismissed. This was also the view of his son, Yaser.

[44]This makes the decision that Saad should hear the Claimant’s appeal unsustainable. There is no question on the evidence that we have received that Saad was merely going through the motions and had already decided that the Claimant was a fraud and a liar. In a letter sent between the original grounds of appeal and the appeal itself, the Claimant told Saad that his belief was that the real reason for dismissal was that “you did not want to deal with racial abuse and discrimination, and instead of taking up this issue with Abdulla you decided to dismiss me, under a false catalogue of alleged wrongdoings.” (Page 176.) This was repeated by the Claimant during the appeal hearing.

[45]The Respondent accepts that it never communicated the appeal outcome or any outcome to the Claimant. We note at the beginning of the Claimant’s notes of the appeal Mr Saad saying that he would get back to him as soon as possible after - 10 - that day, a point also to be found in the Respondent’s version. On 21 December he said in an email that he hoped the outcome would be available by the end of that week. There are further conflicts in Saad’s evidence. For example, his witness statement does not say that he spoke to staff shortly after his return from Iraq, but it does say that he discussed the matter with Abir after the appeal and it was then that Abir told him that he had spoken to Abdalla and the other members of staff. There is no reconciliation of the two positions. A further discrepancy is the witness statement saying that no outcome on the appeal was given to the Claimant, in the first instance, because Saad was too busy, whereas in evidence he said he may have thought that there was no need to send him an outcome. By this point, as he told us, he thought the Claimant was a liar.

[46]We need to make a finding on the central question as to whether or not Abir knew of the Claimant’s grievance when he dismissed him. The Respondent’s case is based on two pillars. First, that the agreement email was not sent to Abir and, second, that Saad did not open or see the email until after the dismissal. We consider that on the balance of probabilities both of these propositions are not made out but, on the contrary, it is more likely than not that the news about the Claimant’s grievance email, or its terms, were known by the point of dismissal. We have no hesitation in drawing at inference from the primary facts and we will set out reasoning in the conclusions below. Submissions

[47]We are grateful to both representatives for their cogent submissions.

The Law

[48]Section 13(1) of the Equality Act 2010 provides that 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. Section 23(1) provides that: “On a comparison of case for the purposes of section 13 … or 19 there must be no material difference between the circumstances relating to each case.” Section 27 of the 2010 Act in its material part provides that A victimises 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. Section136(2) provides that: if there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. It is then provided that this subsection does not apply if A shows that A did not contravene the provision. This provision is mirrored in the antecedent legislation and there is no discernible difference in statutory intent. As to burden of proof, the older law in Igen Ltd v Wong

[2005] IRLR 258

still applies and the guidance is as follows (all references to sex discrimination apply equally to all the protected characteristics, including race): - 11 - “ (1) Pursuant to section 63A of the Sex Discrimination Act 1975, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of section 41 or 42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as ‘such facts’. (2) If the claimant does not prove such facts he or she will fail. (3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that ‘he or she would not have fitted in’. (4) In deciding whether the Applicant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. (5) It is important to note the word ‘could’ in section 63A(2). At this stage the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a Tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them. (6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts. (7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2) of the SDA. (8) Likewise, the Tribunal must decide whether any provision of any relevant code of practice is relevant and, if so, take it into account in determining such facts pursuant to section 56A(10) SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice. (9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent. (10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act. (11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since ‘no discrimination whatsoever’ is compatible with the Burden of Proof Directive. (12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question. (13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the Tribunal will need to examine - 12 - carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.” There was further analysis of the burden of proof provisions made by Elias J in Laing v Manchester City Council

[2006] IRLR 748

, as well a re-consideration of burden of proof issues by the Court of Appeal in Madarassy. This case has confirmed the Laing analysis. In particular, we refer to paragraphs 56 to 58 and 68 to 79. Paragraph 57, in relation to the first stage analysis, directs us to consider all the evidence. “’Could conclude’ … must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it.” Mummery LJ returned to the theme in dealing with the competing arguments that have emerged concerning the words “in the absence of an adequate explanation.” All the evidence has to be considered in deciding whether there is a sufficient prima facie case to require an explanation. Conclusions The central dispute of fact

[49]We refer to paragraph 46 above. The tribunal is asked by the Claimant to infer that Abir knew of his protected act, the 30 September email to Saad. It is said that it defies credibility that the news could not have been communicated to Abir, probably via his own Father, Imad. We will deal with this in stages.

[50]First, the Respondent’s evidence was, to say the least, unpersuasive and it failed all the conventional canons by which credibility, or accuracy, is judged. Where some detail might have been expected in statements, it was sometimes absent. Relevant things were said in oral evidence that contradicted the statements. There were also evident contradictions in within the accounts of Abir and Saad when they gave oral evidence.

[51]Second, it might be thought that the Claimant’s credibility is irrelevant to the question, but his accuracy comes into play because the Respondent’s case goes beyond denying knowledge of the protected act. It is firmly said that the racist comment was never made. That seemingly raises the defence of bad faith, although Ms Hall has not referred to s27(3) in terms. What we are addressing here is the allegation that the Claimant has fabricated a story about such a comment, because he knew he was either going to be dismissed, or that dismissal was likely, and he set up a false allegation for use after the event, in order to obtain compensation.

[52]We regard this as a fanciful theory. If this is really what happened, the Claimant would, we assume, if acting rationally, have ensured that he sent the grievance to Abir, as opposed to Saad (his line manager, in Iraq on business.) It is clear that he did twice try to contact him: he could not have known that Abir would be unavailable or not respond. Moreover, the fabrication of a false allegation would have been very risky. He did not know that the email would not (as is now contended) be immediately seen by the two recipients abroad. He did not know there would not have been some investigation straight away. Trying to speak to Abir suggests that he did want the matter looked into. As we conclude, below, the - 13 - evidence is clear that the racist comment was said. But, this still does not answer the question as to whether Abir knew of the protected act.

[53]There are a number of routes by which he could have obtained knowledge.(a) Yaser could have told him. The Claimant says that he saw them speaking the next day in the street. He believes that Abir was avoiding him. In some cases, the suspicions or intuitions of an employee have to be put on one side. Here, however, the Claimant has been accurate in his detailed evidence and his intuitions have been amply confirmed in the case of the pre-dismissal telephone call from Abir, in which he asked to have witnesses at the proposed meeting. If the racist incident happened, as we conclude it did, then the chances of Yaser not telling Abir seem to us to be small; and the Claimant’s evidence suggests that he did just that.

(b) Imad opened the email and told his son about the allegation. This seems to us to be the most likely inference to be derived from the evidence, including the absence of any statement or information from Imad.

(c) Saad either opened the email or was told its contents by Imad, who had opened it. He would then speak to Yaser and, in all probability, Abir but, in any event, the likely outcome is that Abir would know of the grievance.

[54]Our reasoning is more expansive that Ms Von Wachter’s (and she heard no evidence) but it comes to the same conclusion. It is unthinkable, she submits, that in this family business Abir was ignorant of the grievance. We agree and draw the inference that he did know of it.

[55]The irrationality of the decision to dismiss is a factor we have also taken into account. Abir had some notion about gross misconduct, as notice pay was not paid, but to apply the concept of very serious, fundamental breach to these alleged minor acts is highly unusual and suggests another motive. His evidence about not intending to dismiss the Claimant, then deciding to do so after the Claimant asked for witnesses at what he thought might be a dismissal meeting, then dismissing him because of his attitude, is all verging on the absurd. Asking him if he wanted to carry on working after he had handed him a letter of dismissal is no different. We infer that there was a different motive.

[56]We are entitled to follow the words of the statute. The overall evidence discloses ample material (and findings) from which a properly directed tribunal could find or infer victimisation; and the Respondent has failed by evidence to prove that the protected act (the 30 September grievance) was not the reason for dismissal. However, we would record that we are not solely reliant on the ‘reverse burden of proof.’ We can draw inferences of fact from what are sometimes termed primary facts. From those primary facts we here infer that Abir came to know of the protected act. In the light of his denials and the other factors we have referred to, we conclude that his knowledge of this grievance, with its allegation of race discrimination, was the prompt or reason why he was dismissed. If the Claimant had not reported the racist remark there is no reason to think that he would have been dismissed in such an irrational way; or that the Respondent’s evidence would have been so convoluted and unconvincing. It follows that the claim that the dismissal was an act of race victimisation succeeds. - 14 - The racist remark

[57]As will be apparent, the suggestion that the Claimant has invented the remark so as to forestall an anticipated dismissal, or profit from it, is one we regard as groundless. The Claimant’s account is straightforward and the Respondent has not convincingly dealt with it in evidence. In so far as Yaser’s evidence contradicts the Claimant’s account, we reject it. We refer to our factual findings set out at paragraphs 21 to 30 above. We are satisfied that Abdalla called him a black monkey, as he has alleged; that the Claimant wanted Abir to know what had happened, that he asked Yaser to tell Abir, that he complained within a reasonably short time thereafter in a detailed email and that he has testified truthfully.

[58]The only live issue is the factual one as to whether the remark was made. There is no dispute that it constitutes direct race discrimination and it must follow that this claim under section 13 succeeds. ‘Whistle-blowing’

[59]It is unnecessary to decide whether the grievance could be a protected, qualifying disclosure, as there is a complete factual overlap between this claim and the victimisation claim. We do not adjudicate whether the disclosure was reasonably believed to be in the public interest.

[60]The other claims under this head cannot succeed and Ms Von Wachter recognises this in her closing remarks. Any question or request about autoenrolment could not have been a relevant disclosure because there could have been no breach of legal obligation at that time or any reasonable belief of a future breach. Again, we do not say whether it was potentially believed, reasonably, to be in the public interest. The second alleged disclosure relates to written terms and conditions and there is no possibility that this could pass the public interest test. More important, in both cases any suggestion that the alleged disclosures influenced Abir must fail. There is a complete absence of any evidence that suggests this was this the case, indeed it seems most improbable. The Appeal

[61]We regard the remaining ‘chapters’ in the ET1 particulars as setting out the narrative, with the exception of No 7. This alleges that Saad never communicated any outcome on the appeal. This appears to be a claim of victimisation, ie the nature of the grievance (and the appeal) which raised race discrimination was the reason (or a contributory reason) for never deciding the appeal and informing the Claimant of that decision. We refer to paragraphs 44 and 45 above. The burden of proof again passes under stage 1 of Igen and the Respondent fails to discharge it. Moreover, Saad was clearly of the view that the Claimant had lied and, in the circumstances, that must have been a view he held with some conviction. He had lied about an allegation of racism. We infer that this was a significant factor that explains why Saad did not communicate the appeal outcome to him. The victimisation claim accordingly succeeds. - 15 -

Remedy

[62]A one day remedy hearing is required and the tribunal will be writing soon to the parties with a notice of hearing. Once received, directions should be agreed speedily and, if this is not possible, we would ask the parties forthwith to seek a telephone hearing for directions with the Employment Judge.

[1]This was the Remedy hearing, the Judgment with Reasons having been is that the Claimant succeeded in a claim of race discrimination in relation to a racist comment that was made to him by a co-employee on 28 September 2016. Further, the dismissal of 6 October 2016 was an act of race victimisation, as was the subsequent failure by the Respondent to communicate an appeal outcome to him. The Claimant was employed as Business Marketing Development Manager for the Respondent from 1 February 2016 to 6 October 2016.

[2]On the first day of this Remedy hearing the Claimant gave evidence, there was a witness statement from him and he was cross examined. However, it became apparent to all concerned that there was a need to see his GP notes and the matter was adjourned to 26 February 2019. On this occasion he was further cross examined and gave evidence pursuant to a revised witness statement and the parties were able to make submissions on all matters except one. This exception related to the law concerning the possibility of an ACAS uplift and further email submissions were, by agreement, tendered during our Chambers day on 27 February.

[3]In preliminary discussion with the parties on 26 February it became apparent to the Tribunal (as the representatives agreed) that it would be possible that day, after receiving submissions, to give an adjudication in relation to the appropriate awards for personal injury; injury to feelings; past losses; future losses and retraining costs. This we did at the conclusion of that day’s hearing and we will return to the figures in our conclusions.

[4]By way of summary, we note three features of this case. First, back in 2009 the Claimant experienced racism while working in a shop. As we will recount, he experienced depression and was on medication until early 2011. A second feature to note is that the Claimant’s case is that after his dismissal in 2016 he felt unable to return to work in an office environment. He has since then been in employment for much of the period but that has been predominantly in manual work. A third point to note is that the first replacement employment after dismissal was with Dixons Carphone Warehouse and it was not successful. It was this experience that persuaded the Claimant, on his evidence, to work in an entirely different environment.

[5]Turning to the more detailed evidence, the Claimant sets out in his witness statement what occurred in 2009 at an employment which was either his first or one of his first after graduating. There is no question that he experienced a serious racist incident at work, and he says that the work colleague involved was arrested by the police although never charged. The Claimant waited about ten months before going for medical treatment and in consequence he received counselling and also took a one-month course of anti-depressants. Consistent - 2 - with what he then did some seven years later, he decided to avoid working in a retail environment after the discrimination. He found employment as a kitchen porter and also in a post room as well as some office work. A significant document, page 405 dated 11 February 2011, indicates that depressive systems had subsided by that date. The medical notes for this same day also indicate that his mood by this point was stable and we are able therefore to conclude that the depressive episode ran from June 2009 to February 2011.

[6]We accept the Claimant’s evidence that at his first post-dismissal work with Dixons he was getting flash backs to the incidents we have described in our Judgment. We accept that he was suffering panic attacks and we suspect he is correct in saying that he went back to an office too soon. He accepts that he was unable to carry out his duties in that employment. He was dismissed.

[7]Over the next few months the Claimant held off going to the doctor. The medical notes show that shortly after the dismissal he saw the GP on 17 October 2016 and was referred for counselling. It is recorded that he felt stressed and feeling out of control. He was referred to the primary care mental health team. The Dixons job was from 13 December 2016 to 17 February 2017 and from February to the end of July 2017 the Claimant was unemployed, this being the longest period of unemployment in the overall period, October 2016 to January 2019. It is clear that he was experiencing depression, low mood, anxiety and insomnia. There is evidence of this in the GP notes at page 26 (for 6 June 2017, page 27 and also elsewhere). Nevertheless, either in June or July 2017 the Claimant after a period of training decided to take employment as a labourer. It seems to us that this would have coincided with some of the treatment or counselling that he was receiving.

[8]As we have noted, this decision to go into a different field so as to avoid an environment in which he had experienced race discrimination is consistent with what happened some years earlier when he decided to leave the retail environment for the same reason. The Claimant in his witness statement then sets out ten separate employments that he undertook between mid 2017 and the end of the December 2018. In the period of approximately eighteen months there were only about eleven weeks unemployment.

[9]For about a month in August and September 2017 the Claimant worked at Paramount. He states that he found it difficult to fit in with his peers and he was the only black person in the team. He was picked on. He had numerous panic attacks. His evidence as to what happened at Paramount is corroborated by an email dated 15 September 2017 at page 333. It was there that workers played a traditional building prank on him. The suggestion has emerged during the hearing that this alone has exacerbated his mental illness, but the Claimant in evidence seems to accept that it was a silly joke. The important point that we would make is that he gave firm evidence that, as stated in the email to which we have referred, he was let go by Paramount for reasons of cost alone. He has never alleged that this was a dismissal that was discriminatory and he accepts the reasons he was given at that time. He found replacement employment within two weeks. - 3 -

[10]In our view it is to the Claimant’s credit that he continued working during 2017 and 2018 even though he was unwell. We accept his evidence that none of these jobs on building sites and similar were particularly congenial to him. The main period of unemployment is about three months from November 2017 to January 2018, but thereafter he worked fairly consistently. There was a two month break in the Autumn of 2018. He was working through an agency and it seems that these were short term employments with some breaks in between them. He also gives a list of dates that he missed working because either he was feeling unwell, or had a panic attack or for other reasons. There are seventeen days listed.

[11]Turning to the medical evidence, the GP notes evidence the Claimant having attended counselling sessions from June to September 2017. There is a note of 8 November 2017 that reads: “He finds enclosed office environment and relationships difficult and he does not foresee that he would be comfortable again in that environment. He feels much less anxiety in the work he is now doing”.

[12]On 17 January 2018 the Claimant was referred to the primary care mental health team and there is at this point the first prescription of an anti-depressant, Mirtazapine. Consistent with other entries in the notes, on 29 January 2018 the Claimant was reporting to the GP feeling depressed with poor sleep and low mood. The background was the tribunal litigation. On 1 February 2018 one of the standard questionnaires was administered and the GP appears to have diagnosed a generalised anxiety disorder. It is also noted that the Claimant was feeling nervous, anxious or on edge nearly every day and was worrying. He was becoming easily annoyed or irritable and was restless. He had trouble relaxing. He was fearful. The medication at this stage is described as psychotropic. There is also in the GP notes a clear indication that the Claimant told his doctor that in November 2017 one of the Respondent’s witnesses had threatened him at a tribunal hearing. On 15 February 2018 there is further reference to the Claimant being anxious since that event which affected him day to day. There is also reference to CBT as further treatment.

[13]On 12 March 2018 there is a longer than usual recording of the Claimant’s symptoms that he described to the GP. “Michael spoke about feeling low in mood, and suffering from anxiety since November, when he was dismissed from work. He feels he has anxiety particularly related to the work place. Fears being fired. Described feeling mild physical symptoms of anxiety with heart racing and feeling flushed, and then avoidance behaviours, wanting to escape. Michael could not identify his cognitions at times of anxiety. He describes feeling his mood changes at small things and then feels low again. His goal is to return to where he was prior to his difficulties at the work place. Finds office work difficult because he is concerned about crying in front of others, he says construction work is easier because people take on more individual roles. Michael said he has stopped seeing friends outside of work, has three to four close friends since college ...” - 4 -

[14]His mother attended this appointment as she did again a week later on 19 March. The Claimant, perhaps understandably, expressed a concern that he had received no formal diagnosis. He also said that he thought he would be unable to do an office job in future. Mirtazapine was continued and it does not appear from the long entry dated 22 May 2018 that the Claimant’s condition had improved. Alternative therapies and medication were discussed then. The doctor described the symptoms as being generalised anxiety and also mild depression and they were being exacerbated by the pending tribunal hearing. It is clear from the entry of 3 August 2018 that the Claimant did go for alternative therapy although he found it to be of little benefit. He was saying then that he felt his mood had improved and the anxiety had reduced. Although further therapy including CBT was recommended, his outlook appeared to be more optimistic. We also note that by mid-2018 the prescription for Mirtazapine had increased from 30mg to 45mg.

[15]The Claimant’s witness evidence that from early 2013 to October 2016 he had no issues whatsoever with mental health and experienced no symptoms is borne out by the medical evidence. The Claimant’s assessment of this symptomfree period is, if anything, conservative, because the notes indicate that he might have been substantially free of symptoms in early 2011. In any event, his evidence has been supported by the production of the notes and we record that we adjourned this case precisely for that purpose. The causes of the documented anxiety, panic attacks and depression are referred to in the notes themselves. When taken with the Claimant’s own evidence, they amply support the conclusion that this has all been consequent upon the episodes of discrimination that we recorded in our Judgment. Any suggestion that there is a residual cause going back to 2009 is unsustainable.

[16]When asked questions by the Tribunal, the Claimant told us that his employment with the Respondent, which was a permanent job, was one that he had no intention of leaving. He was adamant that it was not stop gap employment. Further, he had not, before dismissal, thought of qualifying as a lawyer. It is in the process of litigation that he has come to the realisation that law may suit him and his is currently on the part-time conversion course for the Bar which began in January 2019. He still requires mental health support and assistance, but he has a clear ambition of helping others, possibly through the law, and if that happens in a self-employed capacity, the Claimant has no difficulty with that.

[17]We accept the Claimant’s evidence that before he was dismissed by the Respondent he had been looking around in a general sense at the possibility of moving to other employment. However, he was convincing when he told us this was nothing to do with any dissatisfaction with his wage rate. He records that a major prompt was seeing the Respondent hiring somebody for a similar position. In any event, comments the Claimant, his probation finished in July and he was still in employment in October. We accept that he was not contemplating moving to another job at the time when he was dismissed.

[18]In terms of the quantum for wage loss and also expenses, we will turn to these matters in our conclusions. - 5 - Submissions

[19]We are grateful to both representatives for their written and oral submissions. We will return to some of these in our conclusions below.

Conclusions

[20]The general common law principals are well known. In compensating for statutory torts, the aim is to put the Claimant into the position they would have been in had the Respondent not acted unlawfully: MOD v Cannock

[1994] ICR 918

. Ms Rooney places reliance on Thaine v London School of Economics

[2010] ICR 1422

, Olayemi v Athena

[2016] ICR 1074

and BAE Systems v Konczak

[2018] ICR 1

[21]It is clear from the most recent Court of Appeal authority cited that the analysis of Keith J in Thaine is approved and is good law. The case was concerned with loss sustained by an employee that was caused by a combination of factors, some of which amounted to unlawful discrimination and others which were not the legal responsibility of the employer. At paragraph 17 he stated as follows: “The test for causation when more than one event causes the harm is to ask whether the conduct for which the defendant is liable materially contributed to the harm. In this case, the Tribunal found that it did and therefore the LSE was liable to the Claimant. But the extent of its liability is another matter entirely. It is liable only to the extent of that contribution. It may be difficult to quantify the extent of the contribution, but that is the task which the Tribunal is required to undertake”.

[22]He also approved previous dicta from case law to the effect that even though a precise apportionment of impairment and disability may be impossible, a Respondent should not be judged liable to pay in full, when it is known that only part of the damage was their fault. This has all been approved as the correct approach.

[23]We, therefore, have to decide whether, as a matter of fact, psychiatric damage damaged by the Claimant is divisible. Ms Hall in her written submission takes two points that are relevant to this issue. First, the previous mental difficulties suffered by the Claimant in 2009 to 2011 are said to be a “predisposition”. In ordinary circumstances, submits Ms Hall, the Claimant would have reacted differently to the racist comment made by Abdallah. Second, she submits that the panic attack of January 2018 should not be attributed to the Respondent. Although the arguments under these heads are not fully developed, we can infer, when taken with some of the questions she put to the Claimant, that she is making a submission here that the earlier mental problem or breakdown is a relevant cause of the Claimant’s illness after October 2016. Although Ms Hall does not say so in terms, this would be an argument for apportionment on the basis that the psychiatric damage is divisible. - 6 -

[24]Ms Rooney makes contrary submissions. She first points out that it is settled in law that there are circumstances where the tortfeasor must take the Claimant as they find him or her. If authority is required, she cites the Olayemi case in the EAT, a decision of HHJ Richardson. In paragraph 19 he referred to the essential principals. “The Claimant must prove that the Respondent’s wrong doing was a material cause of her psychiatric condition. If she does so the Respondent must take her as he finds her; it is no defence for him to say that she would not have suffered as she did but for a susceptibility or vulnerability to that kind of psychiatric condition. The Employment Tribunal will award compensation for the psychiatric condition, although it may discount the compensation to take account of any risk that she may in any event have suffered from the psychiatric condition to which she was vulnerable. That would depend on the chance that she would have suffered some other cause – presumably harassment or similar – to trigger her condition and also on the seriousness of that cause”.

[25]This last point is also echoed in the short decision of Irwin LJ in Konczak. He commented that he supported “… the proposition that it will often be appropriate to look closely, particularly in a case where psychiatric injury proves indivisible, to establish whether the preexisting state may not nevertheless demonstrate a high degree of vulnerability, and the probability of, future injury: if not today, then tomorrow”.

[26]As to the earlier incident in 2009/2010, it has been established with clarity in evidence that the Claimant was symptom-free by 2013, although he may very well have been substantially free of symptoms two years earlier. Whichever date is correct, he had made a complete recovery by the commencement of employment with the Respondent and there is nothing anywhere in the evidence to suggest that the earlier experience caused any of the psychiatric damage. It was suggested in cross examination that he had not “got over” the earlier incident, but we reject this as being an unreasonable characterisation of the evidence, overall.

[27]The true position, as we find, is that the Claimant was a vulnerable individual. The earlier incident was an upsetting one and undoubtedly affected him psychiatrically and also led him to avoid the environment where the incident had occurred, namely in a shop. Whether his vulnerability was enhanced because of the incident is beside the point. If he was to experience race discrimination again, even though this would be unknown to the Respondent, his reaction was likely to be similar to that he had experienced in 2010.

[28]In addition, there are no other causes of his psychiatric damage so far as these facts are concerned after October 2016. There is no evidence of anything in his personal life that would contribute to the illness and there are no nontortious causes of distress or illness of which he complains. There is nothing in the medical evidence to suggest such an external cause. What occurred here is that the Claimant first heard a deeply offensive racist comment and that upset him. He then brought it to his employee’s attention and as a result he was dismissed. When he appealed against the dismissal he was given no outcome. For the reasons that we have set out at some length, the dismissal and the decision on appeal were items of victimisation. There is, therefore, in this case a - 7 - short passage of factual circumstance which, from the original racist comment through to the appeal process, could be viewed as hanging together and to amount to a clear episode of discrimination/victimisation. The Claimant’s evidence that it greatly impacted upon him is not only credible, but is supported by all of the medical notes. It is also consistent with his previous history. In addition, we have found the Claimant at the Remedy hearing also to be an accurate narrator of events and we do not consider that he has exaggerated any of his evidence. In these circumstances the question of divisibility or apportioning his loss to the acts of the Respondent and also other causes does not arise. This is a true case of a vulnerable individual being subject to a concerted course of discriminatory conduct and the Respondent must, indeed, take this Claimant as they now find him.

[29]The next point that we therefore need to consider is the submission from Ms Hall that either(a) there was an intervening event which ‘breaks the chain of causation’; or

(b) there is a likelihood that such an event would have happened had the discrimination/victimisation not occurred. The first of these propositions relies upon the panic attack, as it is described, of January 2017 at Dixons. (Although Ms Hall refers to 2018, we consider that this is a clerical error.) This is consistent with her oral submission to us that the Claimant should have applied himself better to that well paid employment so that the Respondent is relieved from any liability to pay by way of compensation any sum representing financial loss after December 2016. Our factual finding here is that the Claimant was uncomfortable in this employment because of the after-effects of the discrimination and that he is likely to be correct in saying that he went back in to the working environment too early. There is nothing in the evidence overall that would lead us to conclude that the subsequent mental difficulties he experienced were not caused and occasioned by the Respondent’s discriminatory conduct.

[30]In case we are wrong about the date, we have also looked at the chronology for January 2018 to see if there is anything there that could support Ms Hall’s submission. In our view there is no support for her. The Claimant at this point states that (by January 2018) he was unemployed and was experiencing depression, low mood, anxiety, insomnia, panic attacks and suicidal thoughts. He specifically said he had flashbacks to the discriminatory conduct experienced with the Respondent, along with his dismissal from Dixon Carphone Warehouse, in respect of which he makes no claim of discrimination at all. We would conclude that there is nothing here that can break the causative chain or constitute a chronological cut-off in terms of compensation.

[31]Given that we have no rational basis for an apportionment this is, therefore, a case where the injury is ‘truly indivisible’ and, to cite Underhill LJ in the most recent case, at paragraph 72, “… principle requires that the Claimant is compensated for the whole of the injury”. That said, the caveat is important and this is that if the Claimant has a vulnerable personality, a discount might be required.

[32]This therefore leads us to the question of whether or not some form of damage or injury would have been suffered by the Claimant had the torts not occurred. The submission to this effect by Ms Hall has not been made in any - 8 - detail and, in our judgment, this is because there is no evidence in the case that could point a Tribunal towards the conclusion that the Claimant would have had some form of relapse or anxiety or setback such as to cause him to become ill. His strongest point is that for at least three years before starting employment with the Respondent there was no difficulty of this sort. A secondary observation is that there appears to be nothing in the facts of his employment with the Respondent that would suggest that such a trauma or crisis was coming down the line. There is no medical evidence of any sort that suggests that he was (in the normal course of work) unusually vulnerable to any form of breakdown and he had long been off medication. Even if his employment was not entirely secure with the Respondent, the likelihood is that he would have found in time a new position to move to. There is nothing to suggest that either in that process or otherwise he would have experienced the relatively serious mental problems that did occur. Accordingly, we find no basis to reduce compensation on the broad argument that there would have been some point in the relevant chronology when the Claimant’s health would have either collapsed or deteriorated.

[33]We therefore turn to injury to feelings. As Mummery LJ said in Vento

[2002] EWCA Civ 1871

: “Although they are incapable of objective proof or measurement in monetary terms, hurt feelings are none the less real in human terms. The courts and tribunals have to do the best they can on the available material to make a sensible assessment, accepting that it is impossible to justify or explain a particular sum with the same kind of solid evidential foundation and persuasive practical reasoning available in the calculation of financial loss or compensation for bodily injury … Striking the right balance between awarding too much and too little is obviously not easy.” As to the 3 bands, the top band should normally reserved for the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. The middle band should be used for serious cases, which do not merit an award in the highest band. We also note the important citation from H M Prison Service v Johnson

[1997] ICR 275

as follows: "(i) Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor's conduct should not be allowed to inflate the award. (ii) Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could, to use the phrase of Sir Thomas Bingham MR, be seen as the way to 'untaxed riches'. (iii) Awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think that this should be done by reference to any particular type of personal injury award, rather to the whole range of such awards. (iv) In exercising their discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they have in mind. This may be done by reference to purchasing power or by reference to earnings. - 9 - (v) Finally, the tribunal should bear in mind Sir Thomas Bingham's reference to the need for public repect for the level of awards made."

[34]As there will be an award also for personal injury, we have to bear in mind throughout that we must be astute, so far as we can, to avoid double recovery. This entails making a deduction from the total that would otherwise be appropriate if we were to treat each of these two heads separately. Starting therefore with injury to feelings, we are satisfied that this case falls in the mid band of the applicable figures applying at the time the proceedings were initiated and this band in the Vento guidelines is between £8,400 - £25,200. Our judgment is that this is a case which is close to the top of that band.

[35]We conclude that this was a serious and in certain respects blatant course of conduct by the Respondent that involved two acts of race victimisation consequent upon the Claimant complaining about the initial act of race discrimination committed by a co-employee for whom the Respondent is vicariously liable. There are a number of features that demonstrate this to be the case. First, the dismissal was because the Claimant had done the protected act. Second, it involved his being confronted without notice with a false allegation of poor performance. Third, his appeal was in effect ignored because the Respondent’s relevant manager considered the Claimant to be a liar and not worthy of any response to his appeal. The consequence of the victimisation was serious in that the Claimant lost a stable job at which he had performed satisfactorily. It was because he had done a protected act, but that protected act was to complain about an act of discrimination that undoubtedly took place. This is the background against which we judge his injury to feelings.

[36]As an objective matter of evidence his feelings were very considerably injured. The entirety of his evidence at the Remedy hearing demonstrates that and he also experienced panic attacks and flashbacks to the initiating discrimination act for a considerable period of time. His confidence was so affected that he was unable to work in an office environment, a decision he took that is not only reasonable but also consistent with what had happened some years previously. The medical evidence could not be clearer that the Claimant was so affected as to merit a separate award for personal injury, but that evidence also supports a realistic sum for an award for injury to feelings. We do not break down the acts into three separate elements, but take them all together and the figure that we consider to be appropriate for injury to feelings, in its own right is £22,250.

[37]Turning to personal injury, our task was made a little easier because there is a convergence in the submissions of the parties. Ms Rooney suggests that the correct figure would be £20,000 and although Ms Hall has not approached the matter in the same direct way, various submissions that she made to us indicated that she had that figure in mind also as a starting point. Having regard to the Judicial College guidelines for assessment of general damages in personal injury cases, we are satisfied that the case falls within moderately severe category which is the third of four categories in ascending seriousness. There was work related stress resulting in a long-standing disability. It affected the Claimant’s ability to cope with life and work. It affected his relationships with family and - 10 - friends as he has described. We consider that he will make a recovery but that it will take some time and involve some further CBT. Given the history, it is necessarily the case that there will be some future vulnerability. However, having concluded that the matter falls beyond the second, moderate, category, we will be cautious in placing this particular case too far up the scale in the third class labelled moderately severe. That bracket runs from £16,720 to £48,080. We assess the correct figure on it to be £20,000 and that coincidentally concurs with the submissions of the parties but it one that we make independently of those submissions. These two figures for injury to feelings and personal injury total £42,250 and in our view, there is an element of double recovery. We are obliged to reflect this by making some adjustment and therefore we do so by reducing that figure to £37,500.

[38]The Claimant claims aggravated damages. In Commissioner of Police for Metropolis v Shaw

UKEAT/0125/11

[2012] IRLR 291

a summary in the judgment derived from Rookes v Barnard can be usefully cited: “(1) Aggravated damages are compensatory in nature and not punitive. (2) The features that may attract an award of aggravated damages can be classified under three heads -(a) the manner in which the defendant has committed the tort;

(b) the motive for it; and

(c) the defendant’s conduct subsequent to the tort but in relation to it. (3) The features enumerated at (2) above affect the award of compensation because they aggravate the distress caused by the actual wrongful act.” An employer who has shown a high degree of insensitivity, who has failed to apologise or who used his superior power and status to cause further distress, will have behaved in a manner which might not actually be discrimination, but which, if proved to have made the injury identifiably greater, will be suitable for an award of aggravated damages.

[39]Ms Rooney very realistically only bases this additional award on the events of November 2017 at the Employment Tribunal when Mr Burhan, in effect, threatened the Claimant by telling him to watch his back. This has been the subject of a full determination by Employment Judge Grewal. This was a scandalous way for a party to approach a litigant in a discrimination case. It comfortably falls within the category of malicious or intimidatory conduct and it merits an additional award of £4,000.

[40]The next head of claim is for lost wages and we reiterate that there is no basis upon which the period of loss can be brought to an end before 4 January 2019. The Respondent has submitted that for reasons we have already covered, events occurred during that period that break the chain of causation and in effect should produce a cut-off point, but we have rejected all of these submissions. In other words, it is our firm conclusion that all of the financial loss up to 4 January 2019 is wholly attributable to the discriminatory acts.

[41]However, we decline to extend the period of loss beyond that date. The Claimant has asked us to do so, but it was in January 2019 that he undertook a complete change of direction by beginning his studies for the Bar on a part time basis while still looking for and undertaking work. He claims not only retraining costs but also loss of income during this period, but we regard the decision to read for the Bar as a career change of such significance that the Respondent - 11 - ought not to be made liable to compensate the Claimant, either for the costs or for the notional lost income. The short point is that such loss is in our judgment too remote from the acts of discrimination. Ms Rooney says that they are linked to those acts, and that is certainly true. However, that the Claimant might not have read for the Bar but for the acts of discrimination and victimisation does not satisfy the correct test. There will be many reasons in his thinking and his life experiences that will have led him to take this course and we consider that it is unrealistic to say that these are steps that were caused by the discriminatory acts. In other words, had none of these tortious acts occurred, we think it is perfectly feasible and possible that the Claimant would have chosen to start a new career and that could have been a legal career. We therefore impose a cut off point of 4 January 2019 on all financial loss.

[42]For the reasons that emerged during the course of submissions in this case, the correct net figure (which we do not understand the Claimant to dispute), is £20,135. Ms Hall abandoned the mitigation arguments.

[43]A claim has been made for loss of statutory rights and in principle such a claim can be made. We decline to make any award for a combination of reasons. First, the Claimant had not acquired the statutory rights that require two years of employment. Second, there will be no loss of statutory rights if the Claimant does become self-employed as a barrister.

[44]There is a relatively high claim of over £5,000 for expenses and this includes a notional amount for the income lost when the Claimant made no less than fifty-eight visits to advice agencies of one sort or the other during the course of the litigation. In may well be that this fact alone is reflective of his general level of anxiety, but there are two difficulties with this claim. First, only reasonable expenses can be awarded and in our view this number of trips is excessive and unreasonable. Second, the claim has been formulated in the schedule by the Claimant on the basis that every time he went he lost £75 in earnings. During the course of his evidence on the first day of this hearing the Claimant readily accepted that this was not always the case. In all of the circumstances having regard to the various items under this head we consider that a reasonable sum cannot exceed £1,500.

[45]There is no dispute that the Respondent was in breach of the ACAS code when it summarily dismissed the Claimant without any procedure and also in failing to give him the conclusion on the appeal. Both of these breaches are in procedural terms serious, but the seriousness is magnified when we note that they both are connected with and motivated by discrimination. It goes without saying that this was an unreasonable failure by the employer and it seems to us impossible to say that it will be just and equitable in all of the relevant circumstances not to increase the award. Ms Hall maintains that this small family firm was ignorant of correct procedures, but there is limited force in this submission given that the predominant motive was to remove the Claimant from the business forthwith and without any justification for doing so. It might be thought that 25% is the obvious just and equitable increase to make in the circumstances. - 12 -

[46]We understand the Tribunal to be obliged to have regard to the overall effect and consequence of increasing an award in a case of discrimination. There has been some confusion during the course of submissions as to what element of the award could be increased and both parties were inclined, before researching the matter, to take the view that only the part of the award referable to the dismissal (or notionally the appeal) could be increased which would be the figure for loss of earnings of £20,135. This is incorrect and in an exchange of emails that we invited before adjudicating upon the matter in Chambers, Ms Rooney has drawn attention to the wording of s.207A which says that any award can be increased. Further, we have had regard to De Souza v Da Vinci, a decision in the Court of Appeal. Leaving aside the transposition of two numbers towards the end of the judgment, which may be a straightforward clerical mistake, it seems clear that Underhill LJ was directing the remitted Tribunal to consider whether there should be an uplift under the section to an award that had already been made for psychiatric injury and also injury to feelings. Therefore, the whole of the award falls to be increased in this case, although we would decline to increase the aggravated damages. We calculate the sum of £59,135 to be capable of enhancement. We do not apply it to the aggravated damages sum, that sum being a discrete sum we award in its own right, and bearing in mind all the other heads of compensation. In our view having regard to the overall figures involved in this case, the just and equitable increase would be 20% and when we apply that to the sum of £59,135 the additional element is £11,827.

[47]Accordingly, the award before interest is £74,962 made up as follows: £22,250 for injury to feelings; £15,250 for personal injury (these two elements totaling £37,500, paragraph 37 above); £20,135 for net wage loss; £1,500 expenses; £11,827 as s 207A uplift; £4,000 for aggravated damages.

[48]Interest is 8% for injury to feelings, from 28 September 2016 to the calculation date, 27 February 2019. This is 882 days and produces £4,301.26

[49]For all other calculations interest is calculated from the mid-point (441 days). These sums total £52,712. Interest is £5,095.01 Accordingly, total interest is £9,396.27.