Employment Judge ElliottIn person for claimantMr S Joshi (instructed by counsel) for respondentDate 30 August 2024
JUDGMENT
The Judgment of the Tribunal is that claim 4104206/2022 is out of time and the tribunal has no jurisdiction to hear it.
REASONS
[1]This decision was given orally on 24 May 2023. The respondent requested written reasons. The claimant also wished to have written reasons.[2]By a claim form presented on 25 April 2022 the claimant brought claims of constructive unfair dismissal, race discrimination, victimisation, disability discrimination, unlawful deductions from wages and race related harassment.[3]On 28 July 2022 the claimant presented a second claim in the Employment Tribunal in Glasgow under case number 4104206/2022. It was transferred to London Central on 25 August 2022. Case Number: 2202088/2022 4104206/2022 2 This remote hearing[4]The hearing was a remote public hearing, conducted using the cloud video platform (CVP) under Rule 46. The parties agreed to the hearing being conducted in this way.[5]In accordance with Rule 46, the tribunal ensured that members of the public could attended and observe the hearing. This was done via a notice published on Courtserve.net. All the attendees at the hearing were all known to the parties. The Anonymity Order and Restricted Reporting Order made in these proceedings were explained to them.[6]The parties were able to hear what the tribunal heard and see the witnesses as seen by the tribunal. From a technical perspective, there were no difficulties of any substance.[7]The participants were told that it was an offence to record the proceedings.[8]The tribunal was satisfied that each of the witnesses, who were in different locations, had access to the relevant written materials. I was also satisfied that the witnesses were not being coached or assisted in giving their evidence.[9]At the start of the hearing I informed to the claimant that he could take a break whenever he wished, to assist him with managing his condition and that he could ask for anything he had not understood, to be explained to him. Relevant background[10]A first preliminary hearing took place in this case on 12 July 2022 before Employment Judge Professor Neal at which the broad heads of claim were identified. These were claims for:a. Constructive unfair dismissal based on the claimant’s resignation on 6 April 2022. The claimant was ordered to set out particulars of the alleged breach or breaches of contract relied upon.b. Direct race discrimination. The claimant described himself as Black African and identified his comparators as senior white managers and named 6 individuals, Mr P Moakes, Mr D Keith, Mr M Arscott, Mr P Brady, Mr K Woodward and Mr G Binding. The claimant was ordered to set out the particulars of the acts of race discrimination relied upon.c. Disability discrimination. The claimant relies upon the condition of depression. At a hearing on 5 January 2023 Employment Judge Davidson decided that the claimant was not disabled in 2012 but he was disabled in 2021/2022. Orders were made for the claimant to set out particulars of the acts of disability discrimination he relied upon. From my reading of the ET1, I could see that the claimant Case Number: 2202088/2022 4104206/2022 3 relied upon a failure to make reasonable adjustments for his condition. Any other type of claim for disability discrimination was not identified.d. Unlawful deductions from wages. There is a claim for an alleged shortfall in wages of £1,100.e. Victimisation for having done a protected act. Judge Neal’s Order shows that there was a discussion at that hearing as to what was a protected act and the claimant was ordered to set out each protected act and the alleged acts of victimisation said to have taken place because he had done the protected act.f. Race related harassment – the claimant was ordered to set out the particulars of this claim.[11]The claimant also wished to amend his claim to include new allegations of harassment as to new allegations of race related harassment and an allegation of sexual harassment.[12]Judge Neal declined to deal with the application to amend and ordered that the claimant serve full particulars of his new allegations of harassment and a fully completed draft ET1 setting out the details of the new allegations with an explanation of why they were being presented more than 10 years after the date of the alleged events.[13]A preliminary hearing was listed to take place on 22 September 2022 to consider:a. Whether the claimant was a disabled person at the material time of his allegations, within the meaning of section 6 Equality Act 2010.b. The application to amend.[14]On 28 July 2022 the claimant issued is claim in the Glasgow Employment Tribunal in which he raises the allegation about the alleged sexual assault at the Christmas party on 9 December 2011.[15]The preliminary hearing on 22 September 2022 took place before Employment Judge Snelson as a Case Management Hearing. The claimant was ordered to provide details of the dates between which he said he was subjected to disability discrimination, to provide a disability impact statement and any further medical documents upon which he wished to rely. The respondent was ordered to prepare a bundle.[16]A public preliminary hearing was listed to take place on 5 January 2023, to determine disability status.[17]The status of the second claim issued in the Glasgow Employment Tribunal was also to be considered at the hearing on 5 January 2023.[18]The third preliminary hearing took place on 5 January 2023 before Employment Judge Davidson who decided that the claimant was not a disabled person in 2012 but he was a disabled person in 2021/2022. Case Number: 2202088/2022 4104206/2022 4 Judge Davidson identified the issues for today which included dealing with the matter of the second claim.[19]The claimant’s application to amend in case number 2202088/2022 remains outstanding. There was insufficient time to deal with it today. The issues for this hearing[20]At the hearing on 5 January 2023 Judge Davidson listed this hearing to consider:a. Whether to strike out the second claim no. 4104206/2022 as being out of time or in the alternative whether it should be struck out as having on time grounds, no reasonable prospect of successb. In the further alternative whether the tribunal should order a deposit as a condition of the claimant being permitted to continue to advance those allegations or arguments, as having little reasonable prospect of success.c. To consider the List of Issues for the full merits hearing and make orders for that hearing. There was insufficient time to deal with this today. Documents and witnesses The bundle for this hearing ran to 881 pages. .[22]There was a 15 page witness statement from the claimant and a 4 page witness statement from his colleague Ms P who has a separate claim against the respondent. I explained to the claimant that the question of whether the events in question happened in 2011/2012 was not for determination today. Ms P’s evidence dealt with that.[23]There were three witness statements from the respondent. Mr Guy Rampe, Mr Valentin Ardeleanu and Mr Rej Rahman. The statements of Mr Ardeleanu and Mr Rahman dealt with the events of 9 December 2011.[24]In terms of the issues for determination at this hearing, I took the view that the evidence of Ms P, Mr Ardeleanu and Mr Rahman were not likely to assist the tribunal. Their evidence would be relevant if the issue of what happened at the Christmas party on 9 December 2011 fell to be determined and their evidence would need to be considered by a 3 person tribunal and not a Judge sitting alone. I therefore told those witnesses that the tribunal would not need to hear from them and they were welcome to remain in the public hearing if they wished.[25]Evidence was heard from the claimant and from Mr Rampe for the respondent. As the issues for today were narrow, I confirmed that just because the respondent did not cross-examine on all the matters contained in the claimant’s witness statement, did not mean that those matters could not later be challenged. Case Number: 2202088/2022 4104206/2022 5[26]I had a written submission from the respondent to which counsel spoke and oral submissions only from the claimant.
Findings
[27]The claimant worked for the respondent as a security manager. He had continuous service going back to 20 March 2007. He was initially employed by a company known as Wilson James. He TUPE’d to the respondent on 4 May 2010. His case set out in his ET1 issued on 25 April 2022, was that this is when the racial discrimination and bullying started.[28]In his claim form in his first claim, the claimant relies on events going back to 2011. The application to amend the first claim[29]On 15 June 2022 the claimant made an application to amend his claim (bundle pages 49-50) to rely on an alleged assault by a male work colleague at a work Christmas party on 9 December 2011. In the letter of 15 June the claimant said that he did not include this in his original ET1 because he was “embarrassed and ashamed”. The primary time limit for the incident that allegedly took place on 9 December 2011 was 8 March 2012.[30]The respondent said that it opposed the application to amend and would deal with it at the preliminary hearing on 12 July 2022. The second claim in the Glasgow ET[31]In a letter to the tribunal dated 12 August 2022 the claimant set out what had been ordered at the hearing on 12 July 2022. He said that in the light of what he had been ordered to do at that hearing, in terms of setting out full particulars of the harassment referred to in his letter of 15 June 2022, he submitted a new ET1 and submitted this to the Glasgow Employment Tribunal.[32]I understood why the claimant had sought to issue a new ET1 following the hearing on 12 July 2022 rather than just providing further particulars. He was ordered at paragraph 6 of the Case Management Order of 12 July 2022 to send to the respondent a fully completed draft Claim Form ET1 setting out the details of his new allegations with an explanation of why the allegations were being presented more than 10 years after the date of the alleged events.[33]I could see that the claimant was likely to have been confused by this. The order was for a “draft” Claim Form setting out the allegations, rather than an Order that he issue a new claim. There is no criticism of the claimant whatsoever for taking the action that he did. I am clear that he Case Number: 2202088/2022 4104206/2022 6 was taking steps to comply with the Order of 12 July 2022 in providing the necessary particulars.[34]One of the issues for consideration at this hearing was whether to strike out the claim issued in Glasgow as being out of time or in the alternative whether it should be struck out as having no reasonable prospect of success or that there be a deposit order.[35]The date of the presentation of the claim in the Glasgow ET was 28 July 2022. Early Conciliation took place from 13 July 2022 to 15 July 2022 (Certificate at page 217 and ET1 at page 219). The claimant did not complete box 2.4 in the second claim which he did with his first claim, showing that his place of work was in London W1. The registered office of the respondent is in Dumfries which explained why that claim went to the tribunal in Glasgow. Findings on the time point[36]On 10 November 2021 the claimant raised a detailed grievance about his treatment at work. It was a four page document with attachments. The claimant accepted in evidence that he did not raise within this grievance the alleged sexual assault on 9 December 2011 and I find that he did not raise it within that grievance.[37]The claimant sent a 4-page resignation letter on 6 April 2022 (pages 677-680) setting out the reasons for his resignation. He did not mention within that letter anything to do with any allegation of sexual assault. This was at a time when he was bringing his employment to an end, so I find that he would have had no concerns about how he might thereafter be treated within his employment.[38]With his ET1 in case number 2202088/2022 the claimant attached his Grounds of Complaint which was detailed and ran to 86 paragraphs – bundle pages 68-80. He said that he brought claims for disability discrimination, race discrimination, bullying, harassment, victimisation, constructive dismissal and unlawful deductions from wages. He made no mention of sexual harassment. The claimant dealt with events going back to June 2011, but did not mention this alleged incident from the Christmas party on 9 December 2011.[39]I find as a fact on the unchallenged evidence of Mr Rampe, that the alleged perpetrator of the sexual assault, Mr X, left the respondent’s employment 7 years ago.[40]In his witness statement for this hearing, the claimant said that he could not challenge his superiors because he feared for his job and position (statement paragraph 27). I have found above that when he wrote his resignation letter on 6 April 2022, giving the reasons for his resignation, he no longer had any reason to fear the treatment he might encounter at work. Case Number: 2202088/2022 4104206/2022 7
Relevant law
[41]Section 123 of the Equality Act 2010 provides that: (1) …… proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.[42]This is a broader test than the reasonably practicable test found in the Employment Rights Act 1996. It is for the claimant to satisfy the tribunal that it is just and equitable to extend time and the tribunal has a wide discretion. There is no presumption that the tribunal should exercise that discretion in favour of the claimant - see Robertson v Bexley Community Centre 2003 IRLR 434.[43]In Chief Constable of Lincolnshire Police v Caston 2010 IRLR 327 the Court of Appeal said (paragraph 26) “Plainly, the burden of persuading the ET to exercise its discretion to extend time is on the claimant (she, after all, is seeking the exercise of the discretion in her favour)”.[44]This was confirmed in Miller v Ministry of Justice EAT/0003/15 at paragraph 10(ii): “Time limits are to be observed strictly in ETs. There is no presumption that time will be extended unless it cannot be justified; quite the reverse. The exercise of that discretion is the exception rather than the rule,” (Laing J).[45]In Abertawe Bro Morgannwg University Local Health Board v Morgan 2018 IRLR 1050, CA Leggatt LJ summarised at paragraph 18 the approach to be taken by the ET on the issue of a just and equitable extension: “First, it is plain from the language used ('such other period as the employment tribunal thinks just and equitable') that Parliament has chosen to give the employment tribunal the widest possible discretion. Unlike s 33 of the Limitation Act 1980, s 123(1) of the Equality Act does not specify any list of factors to which the tribunal is instructed to have regard, and it would be wrong in these circumstances to put a gloss on the words of the provision or to interpret it as if it contains such a list. Thus, although it has been suggested that it may be useful for a tribunal in exercising its discretion to consider the list of factors specified in s 33(3) of the Limitation Act 1980 (see British Coal Corporation v Keeble [1997] IRLR 336), the Court of Appeal has made Case Number: 2202088/2022 4104206/2022 8 it clear that the tribunal is not required to go through such a list, the only requirement being that it does not leave a significant factor out of account…”[46]At paragraph 19 Leggatt LJ went on to say in relation extending time: “factors which are almost certainly relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh)”[47]In Miller (cited above) two types of prejudice were identified (EAT decision paragraph 12). These were “the obvious prejudice of having to meet a claim which would otherwise have been defeated by a limitation defence, and the forensic prejudice which a Respondent may suffer if the limitation period is extended by many months or years, which is caused by such things as fading memories, loss of documents, and losing touch with witnesses”.[48]In Adedeji v University Hospitals Birmingham NHS Foundation 2021 ICR D5 the Court of Appeal repeated the caution against tribunals relying on the checklist of factors found in section 33 Limitation Act 1980. The Court of Appeal (Underhill LJ) said that the best approach for a tribunal in considering the exercise of the discretion under section 123(1)(b) was to assess all the factors in the particular case which it considered relevant to whether it was just and equitable to extend time, including in particular the length of and the reasons for the delay.
Conclusions
[49]The claim in relation to the act of sexual harassment which is alleged to have taken place on 9 December 2011. The primary time limit expired on 8 March 2012. It is therefore 10 years, 1 month and 17 days out of time. In round terms the claim is just over 10 years out of time. The length of the delay is very substantial.[50]The claimant says that one of the reasons he did not present this claim within time was because the incident pushed him into a severe depression.[51]Judge Davidson decided at the preliminary hearing on 5 January 2023 that the claimant was not a disabled person in 2012 but he was a disabled person in 2021/2022. Although the claimant disagreed with this finding and submitted to the tribunal today that he was disabled in 2012, the findings of Judge Davidson stand and I cannot interfere with this.[52]This leads me to conclude that following the events in question in December 2011, the claimant was not prevented by disability from presenting a claim for sexual harassment. Case Number: 2202088/2022 4104206/2022 9[53]The claimant also relies upon the embarrassment and shame of raising the matter and I sympathise with him on this point. Unfortunately allegations of sexual assault and sexual harassment are inherently embarrassing. If they are to be addressed by the courts or tribunals, then the claims have to be raised.[54]The claimant submitted that the respondent knew about his complaint of sexual assault and did nothing about it. The issue for this hearing was not whether the respondent knew about the complaint or should have done something about it, but whether the second claim was out of time and whether time should be extended.[55]The issue of continuing act was not raised by either party. I noted that in the ET1 in the second claim, there was a large gap between the events of 2011/2012 to November 2021 when the claimant dealt with the effects of his health condition (paragraphs 18-21). The claimant then dealt with issues of race discrimination which are the subject of the first claim and his assertion that the handling of the complaint of sexual harassment was an act of race discrimination. This deals with matters at the latest in 2015 (paragraph 29).[56]I find that there is no allegation of sexual assault or sexual harassment that is within time in the second claim nor is any claim of race discrimination related to it, within time.[57]The question of whether it is just and equitable to extend time is a matter of discretion for the tribunal. The tribunal must be persuaded that it is just and equitable to extend time and the burden is on the claimant to show this. In weighing up these matters, the tribunal has to take account the balance of prejudice to the parties. The exercise of the discretion is the exception, not the rule.[58]There is always a prejudice to one party if the application is granted or refused. If it is refused, the claimant has the prejudice of not being able to pursue the claim. If it is granted the respondent has the prejudice of having to defend the claim. It is necessary to look further than this.[59]I have found above that the claimant was well enough in November 2021 to raise a detailed grievance. I have taken into account that Judge Davidson found that he was not a disabled person until 2021. I find that prior to 2021 he was not prevented by disability from presenting a claim.[60]As I have found above, the claimant made no mention of the sexual assault when he sent his resignation letter on 6 April 2022. This was at a time, on my finding, that he needed no longer have any fear about how he would be treated at work if he raised the matter. On his own case, he had already raised the matter with Mr Rampe on 1 February 2012, although I make no finding of fact about this. Case Number: 2202088/2022 4104206/2022 10[61]The claimant issued proceedings on 25 April 2022 with an 86 paragraph Grounds of Complaint in which the sexual assault was not mentioned.[62]The first time the matter of the sexual assault was raised in these proceedings was in the application to amend dated 15 June 2022. The second claim was not issued until over a month later on 28 July 2022. The claimant was well enough to begin Early Conciliation for his first claim on 21 February 2022.[63]I accept that there is a prejudice to the claimant if time is not extended in that he will not be in a position to pursue that claim. I have to weigh against this the prejudice to the respondent.[64]There is a substantial forensic prejudice to the respondent in that the alleged perpetrator of the sexual assault left their employment 7 years ago and he is no longer available as a witness. They are not in a position to investigate the claim for the purposes of these proceedings, while matters are fresh.[65]One of the reasons for the 3 month time limit in Employment Tribunal proceedings is a recognition that witness memory fades over time. I agree with the respondent that this is in effect a ‘stale claim’ where their ability to prepare the evidence is hugely compromised. Although the claimant says that others who were present on 9 December 2011 are still within the respondent’s employment, the key witness is not available. I find that the respondent is severely prejudiced by the absence of the alleged perpetrator and that any other witness to the alleged incident will also have the difficulty of seeking to recall events that took place about 12 years earlier, by the time this case comes to trial. This on my finding is likely to adversely affect the cogency of the evidence.[66]For these reasons I find that it is not just and equitable to extend time. The second claim, number 4104206/2022, is out of time and as such the tribunal has no jurisdiction to hear it. __________________________ Employment Judge Elliott Date: 24 May 2023 Judgment sent to the parties and entered in the Register on: 25/05/2023 ________________________________ for the Tribunal Case Number: 2202088/2022 1 Reserved Judgment EMPLOYMENT TRIBUNALS BETWEEN Claimant and Respondent CD Vigilant Security (Scotland) Ltd t/a Croma Vigilant
The Legal Framework
[1]Alleged Breach(s) (sic) of Croma and Client Confidentiality Agreements/Policies/GDPR Legislation. Namely, incorrect and intentional theft of data belonging to Croma employees and Client representatives.[2]Alleged Solicitation of Occupiers/Previous Occupiers within your Management Capacity of Security Manager, namely contacting clients of a personal nature to obtain opportunities for a family member.[3]Alleged Performance Management Failures. Namely, false representation of Rosters/Incorrect Management of Annual Leave Authorisation and Cover Planned.[4]Alleged as laid out above, by your actions you have brought the Company into disrepute to which may harm client/contractual trust. Notice was given of a reconvened investigation meeting to take place on 3 February 2022. The letter also advised the Claimant that he was not permitted to attend the workplace or to speak with any colleagues without prior permission from the company. Case Number: 2202088/2022 23 103 Neither of the witnesses who gave evidence before us on behalf of the Respondent even attempted to substantiate any alleged or suspected wrongdoing on the part of the Claimant. Their understanding was that the ‘disciplinary investigation’ had arisen out of allegations raised by Mr Brady. Mr Arscott admitted that, at the behest of Mr Brady, he had conducted a detailed investigation into the Claimant’s email and mobile phone use and passed on the information so gathered. It is evident from this material that his investigation took place after the presentation of the grievance of 11 November 2021. 104 The ‘disciplinary investigation’ went no further. The Claimant was signed off sick again on 1 February 2022. He did not return to work thereafter. Resignation 105 Item 62 The Claimant relies on his alleged constructive dismissal as an act of direct race discrimination, alternatively race-related harassment. 106 As we have noted, while he was away on sick leave, the Claimant’s grievance and grievance appeal were concluded. 107 A new area of contention also arose during this period: the Claimant complained of an unauthorised deduction from his pay in February 2022. That, as already noted, was an issue which the parties resolved privately before closing submissions, and we will say no more about it. 108 By a letter to Mr Rampe dated 6 April 2022, the Claimant resigned with immediate effect. In summary, he repeated many of the complaints set out in his grievance (and in his claim before us) and made the general case that he was the victim of continuous bullying and racism dating back to 2011. That treatment had had a catastrophic effect upon his mental health. He had pursued a grievance, which had not resolved the matter because it had been flawed as a matter of process and had reached unjust findings on his complaints. He had then been punished for raising the grievance and the treatment which he had received on 31 January 2022 had affected his already frail mental health to the extent of causing him to feel suicidal. He had no option but to resign. 109 On 11 April 2022, Mr Rampe wrote to the Claimant asking him to reconsider his resignation and allowing him seven days to do so. The Claimant replied on 19 April 2022, confirming his resignation, stating that he considered that the Respondent had fundamentally breached his contract of employment and that he could no longer tolerate the way in which black employees were treated and the company’s lack of care towards his mental health. Miscellaneous matters 110 Item 42 As we understood him, the Claimant did not maintain any complaint against the Respondent for unauthorised sharing of his medical data and there is no reference to this complaint at all in his closing submissions. In the course of cross-examination of the Claimant, Mr Collyer appeared to acknowledge that his firm Case Number: 2202088/2022 24 (which provides HR and business support services) , rather than the Respondent, had committed some form of data breach, and apologised for that error. 111 In case we have misinterpreted the Claimant’s position, and he does seek to maintain his complaint as originally formulated, we record that it appears to be undisputed that, for the purposes of obtaining advice from Mr Collyer’s firm, the Respondent does, and did, pass to that firm medical information (such as fit notes) relating to its employees and that, in line with this practice, it did, on or about December 2021, share certain medical data of the Claimant. 112 Item 46 Here the Claimant complains of being excluded from access to his work email account on 6 December 2021. He was not directly challenged on the facts but it was suggested on behalf of the Respondent that this may have been the result of passwords being changed by the network provider. The Respondent adduced no evidence to explain the exclusion. 113 Item 47 This is a complaint that Mr Paul Williamson, Executive Director, ignored the Claimant’s complaint about Mr Brady handling his grievance. We are not in a position to make any finding beyond registering the obvious point that, whether through the intervention of Mr Williamson or otherwise, the Claimant’s wish that the grievance should not be allocated to Mr Brady was met. Contextual and background findings 114 We were presented with a lot of ‘background’ evidence. We have had regard to all of it, but it would not be proportionate to deal with it fully here. In support of the race discrimination and race-related harassment claims, the Claimant placed particular emphasis on the following facts, most of which are established on his unchallenged evidence. 115 At a staff Christmas party in December 2011, ‘Mr X’ became very drunk and sexually harassed and assaulted the Claimant and Mrs Parkes. There may well have been other victims as well. The Claimant and Mrs Parkes both felt that the Respondent’s response to their complaints was so insensitive and inadequate as to exacerbate, rather than assuage, their upset and distress. 116 In or about 2015, Mr Brady produced a black penis sex toy in the office and said to the Claimant, ‘Look, it’s a black cock’. 117 At or around the same time, Mr Brady showed the Claimant a photograph of a chimpanzee and said that he had met his (the Claimant’s) brother when he had gone to the zoo. 118 During the over-long, covertly-recorded meeting of 9 September 2020, Mr Arscott, in a characteristically incoherent ramble, told the Claimant, ‘… unfortunately for you, [CD], as we’ve always used the chief coconut, you are the big head puncher here, people are gonna come and look at you … point the fingers, and whether you are right or wrong people are gonna say [CD], [CD], [CD].’ There was no complaint from the Claimant at the time. Case Number: 2202088/2022 25 119 We were shown the Respondent’s ‘Bullying and Harassment Policy’. The current version dates from 6 October 2021. It offers definitions of bullying and harassment and proclaims the importance of ‘standards of everyday behaviour that contribute to a working environment in which mutual respect and individual dignity are maintained.’ The document does not appear to address discrimination or victimisation at all. 120 We were told that, in recent years, the Respondent has conducted annual ‘e-learning’ training courses on equality, diversity and inclusion issues. We were shown no evidence concerning the content of the courses, the quality of the teaching, the engagement of the staff members involved or the monitoring of the effects of the training. Facts relating to the Respondent’s knowledge of the Claimant’s disability 121 The Claimant was signed off sick with depression for a period of some weeks in 2012. As noted above, EJ Davidson found that the Claimant’s condition at that time did not amount to a disability. Following his return to work he had an excellent attendance record with minimal sickness absence until he was signed off on 23 November 2021. 122 On 10 September 2020 the Claimant reminded Mr Rampe of his breakdown in 2012 and said that he was experiencing similar feelings. And on 8 November 2021 he broke down in front of Mr Brady and mentioned a prior episode of tearfulness in the presence of Mr Rampe. The Claimant did not rely on any other evidence as suggestive of an underlying mental health condition prior to 23 November 2021, much less any evidence pointing to the existence of such an underlying condition having been apparent to the Respondent at any point up to that date. In an email to Mr Brady of 25 November 2021 he said that the company ‘must be aware of the state I’m in.’ The GP’s ‘fit note’ of 4 January 2022 cited ‘mixed anxiety and depression disorder’ but, as already mentioned, also declared the Claimant fit to return to work on a phased basis from one week later. Non-claims etc 123 Items 38 and 43 These cannot stand as claims. They are purely narrative, reciting the fact of the grievance presented on 11 November 2021 and the fact of the Claimant having directed a complaint to Mr Brady on 3 December 2021. 124 Item 57 The complaint of unauthorised deductions from wages, although presented as a claim for direct race discrimination or race-related harassment as well as a straightforward money claim, was, as we have stated, fully settled in the course of the hearing. In the circumstances, we are not in a position to make any findings as to whether there was an unauthorised deduction from wages or, if it was, whether it also involved direct discrimination or harassment. Case Number: 2202088/2022 26 Secondary Findings and Conclusions Rationale for primary findings 125 In arriving at our primary findings we have had careful regard to all the evidence put before us. We have considered the coherence, internal consistency and general plausibility of the witness evidence. We have also attached particular importance to contemporary documents. In setting out our primary findings above, we have on occasions drawn attention to features of the evidence which we regard as persuasive. Such comments should not be read as constituting the only grounds on which we have resolved factual issues. 126 We have also been struck by some oddities in the case. It is, for example, surprising that the Claimant pursues tenuous allegations of race-based treatment going back to 2011 but makes no claim based on what is said to have been overtly race-based detrimental treatment and harassment by Mr Brady in or around 2015. Likewise, it is puzzling that if he really did interpret the ‘coconut’ remark of Mr Arscott on 9 September 2020 as a racial slur, he should have passed up the opportunity to base a claim on it. These quirks have caused us to view parts of his case as less than convincing. 127 It can be seen that, on a number of occasions we have been unable to accept the Claimant’s account of events. We acquit him of setting out with a cynical strategy of misleading the Tribunal but we find that his utter conviction in the validity of every complaint he makes has tended to impair his objectivity and his powers of recall are less than perfect. He also has a tendency to put his interpretation on events and statements and there is a risk of his evidence becoming distorted as a consequence. So, for example, Mr Michael did not say that the guards were thick and not fit for purpose, as he asserted. His message began with the word ‘If’. Nor did anyone call the Claimant (or anyone else) a ‘shaved monkey’. These are not the only instances of assertions on his side which were liable to mislead. 128 Another trait of the Claimant’s is what appears to us to be an acute sensitivity to criticism. This mindset immediately treats any critical comment as unfair and sometimes wrongly perceives wholly unobjectionable communications as personal criticism. The group email complaint (item 35) is a case in point. We find this defensiveness reproduced in equal measure in Mr Arscott. The unfortunate result is that witnesses of this ilk are often quite unable to see or understand the opposing point of view and the weight of their evidence is diminished accordingly. 129 Worse, in the case of Mr Arscott, was a preparedness, when at fault, or at risk of being seen as at fault, to manipulate, and even manufacture, facts and events in order to show himself in the best possible light and cast the blame on to someone else. His behaviour in relation to the report to Mrs Wright of 4 March 2021 was particularly troubling to us. That he felt willing to stoop so low, to the disadvantage of the Claimant, caused us to view him and his evidence with profound suspicion. (For the avoidance of any doubt, we have found in the Claimant’s conduct no comparable underhand behaviour apart from his routine covert recording of conversations.) Case Number: 2202088/2022 27 Direct race discrimination Detrimental treatment? 130 The first question is whether any detrimental treatment is established. We find that most complaints fall at this first hurdle. What follows should be read against our primary findings set out above. Allegedly abusive and/or offensive remarks 2011-2016 131 Item1 The abuse of the Claimant by Mr Dineen, (although on our findings, not overtly racial) clearly amounted to a detriment. 132 Items 2 and 3 As to item 2, clearly Mr Cowle’s conduct caused a detriment to the Claimant. As to item 3, Mr Moakes certainly took a ‘light touch’ approach to the Claimant’s complaint, suggestive of a worryingly casual approach to the need to protect staff members from discrimination and harassment. But we find that his actions were not detrimental to the Claimant. He wanted the matter dealt with confidentially and informally. He was not disadvantaged by the line which Mr Moakes took. (Of course, had we accepted the Claimant’s case in full, and found that Mr Moakes had simply dismissed the episode as an example of ‘office banter’ we would have reached a quite different conclusion on the question of detriment.) 133 Item 4 There is no evidence of any complaint having been raised with the Respondent. In the circumstances, there is no basis for a finding of detrimental treatment in the form of a failure by the Respondent to take appropriate action. 134 Item 5 On our primary findings, Mr Moakes’s action did not amount to any form of racial insult or taunt. If he was insensitive in the way in which he placed the mug on the table, that does not meet the threshold of an actionable detriment. 135 Item 6 As to the disparaging comment of Mr Gizzi, our finding in relation to item 1 is repeated: detriment is established. 136 Item 7 The comment complained of was made by Mr Micheal, an employee of one of the Respondent’s clients. Clearly, he felt that the security guards were inattentive and slipshod. But there is no objective basis for reading into his words any stronger or more offensive implication. In our judgment it was no detriment to the Claimant that Mr Rampe did not take the matter up or challenge the remark. 137 Item 8 We are satisfied that Mr Rampe’s thoughtless question about the Claimant’s English was seen by him as offensive and clears the low bar for establishing a detriment. 138 Item 10 On our primary findings, there was no detrimental act or omission on the part of Mr Rampe. The Claimant did not present him with an allegation about Mr Moakes warranting investigation. 139 Item 11 The ‘shaved monkey’ conversation was certainly peculiar but, on our primary findings, it entailed no detrimental treatment of the Claimant. Case Number: 2202088/2022 28 140 Item 12 Mr Moakes’s remark about the two officers may have been distasteful to the Claimant. But, on our primary findings, there was no racial element in what he said. Nor does the evidence point to any racial implication. In the circumstances, there was no detriment to the Claimant in hearing the comment. 141 Item 13 We find that the Claimant was offended by Mr X’s remark about ‘bloody foreigners’ and, again, a detriment is shown. 142 Item 15 Our observations in relation to item 12 apply equally here. Indeed, the Claimant’s case on detriment is weaker because Mr Michael’s remark was about officers at another site, rather than colleagues who worked alongside the Claimant. 143 Item 16 Hearing a second-hand report of someone referring to an unnamed people in the Control Room as brainless did not amount to a detriment to the Claimant. 144 Item 17 On the facts, this allegation falls away. The Claimant does not establish that Mr Arscott made the disgraceful remark attributed to him. Secret monitoring of the Claimant’s computer 145 Item 9 Plainly, the Claimant suffered a detriment resulting from Mr Moakes secretly monitoring his computer in 2013. Promotion and career progression 146 Item 14 The Claimant suffered an obvious detriment when his promotion application in 2016 was ignored. 147 Item18 On our primary findings, it was no detriment to the Claimant to require him to go through the ordinary recruitment process in pursuit of his application for the Security Manager vacancy. Alleged acts and/or omissions of Mr Arscott as the Claimant’s manager (2018-2021) 148 Item 19 This general complaint of oppressive management by Mr Arscott fails on our primary finding that it is not established in fact. 149 Item 20 We are clear that it was no detriment to the Claimant to receive emails from Mr Arscott sent outside normal working hours. But we are just persuaded that the low threshold of a detriment is surmounted by the unreasonably aggressive complaint that the Claimant had not responded within about an hour of starting his morning shift. His reference to his email having been sent 14 hours before was obviously unfair in circumstances where, on his own case, there was no expectation of employees responding to emails outside working hours. 150 Item 21 Here the Claimant fails for want of any detrimental treatment being shown. There was no ‘ambush’ on 31 January 2020 and, as the Claimant well knew, Mr Arscott did not seek to accuse him of dishonesty on that occasion (or any other). Case Number: 2202088/2022 29 Nor did the ‘not happy’ email of 6 Oct 2021 occasion actionable detriment to the Claimant. It was simply an unremarkable instance of Mr Arscott’s brisk and interventionist management style. 151 Item 22 We find no detriment in Mr Arscott’s question about the Claimant’s home life, given the context and in particular fact that (as was common ground before us) the two would on occasions share information about domestic events and concerns. The offensive question which the Claimant attributes to Mr Arscott is not established in fact. 152 Item 23 The detriment which the Claimant alleges is not made out in fact. We reject the complaint that Mr Arscott shouted at him and blamed him for the bicycle thefts. If and in so far as he criticised the Claimant for unclear communication with Mrs Wright, that was, or would have been, unfair. But that is not the detriment relied upon. 153 Item 24 It was not a detriment for Mr Arscott to write to the Claimant out of working hours (see above). Nor was it a detriment to ask him what ‘corrective measures’ he had in mind. There had been a security failure. The Claimant was the Security Manager. 154 Item 25 Our primary findings do not reflect well on Mr Arscott as a manager, but we find no actionable detriment in him encouraging the Claimant to take disciplinary measures against a guard whose performance he saw as unacceptable. 155 Item 26 It was not a detriment to the Claimant to hear one of his colleagues likened to a sheep in the headlights. 156 Item 27 It was not a detriment to the Claimant to hear Mr Arscott’s dismissive comment about Mrs Parkes having to stand for two hours. 157 Item 28 Here we find detrimental treatment clearly established. It was certainly a detriment to the Claimant to moot a PIP because his work was, on any view, not such as to call for any formal performance improvement measure. The mere mention of it was wholly unjustified and bound to undermine his confidence. 158 Item 29 On our primary findings, this item discloses no arguable detriment to the Claimant. It was open to Mr Arscott to encourage him to consider his disciplinary options in connection with the cycle theft episode. 159 Item 32 Mr Arscott’s bad-tempered exchange with Mrs Parkes did not occasion any detriment to the Claimant. 160 Item 33 In the context of a heated discussion we find no detriment in Mr Arscott telling the Claimant, ‘Get off your fucking high horse and listen to me.’ 161 Item 34 Here again, detriment is clearly shown. Mr Arscott’s treatment of the Claimant in relation to the intruder episode was not merely unfair but disgraceful. Case Number: 2202088/2022 30 162 Item 35 There was obviously no arguable detriment in Mr Arscott sending the testy group email of 1 November 2021. It did not identify the Claimant (or anyone else) as personally at fault for delaying the submission of rosters. 163 Item 36 We find that Mr Arscott subjected the Claimant to a detriment by unreasonably and without evidence accepting Mrs Wright’s complaint that his communications on the data issue had been unclear and, without warrant, giving him a warning to ‘be careful’. Alleged acts and/or omissions of Mr Rampe in September 2020 164 Item 30 On our primary findings, the Claimant establishes no detriment here. He made no formal complaint to Mr Rampe on 10 September 2020 and the conversation ended with the mutual understanding that no further action would be taken. 165 Item 31 Mr Rampe’s comment that the conduct of a Team Leader should be reviewed entailed no detriment to the Claimant. Alleged acts or omissions of Mr Brady in November/December 2021 166 Item 37 On our primary findings, no detrimental treatment by Mr Brady is established. He properly responded to the Claimant’s allegations of race discrimination by inviting him to set them out in writing in accordance with the Respondent’s procedures. 167 Item 41 We do find detrimental treatment in the request for return of the work mobile phone. The equipment amounted to a small fringe benefit, of which the Claimant was deprived. Conduct and outcome of the grievance process and related events 168 Item 39 The Respondent did not subject the Claimant to a detriment by ‘attempting’ to hold the grievance hearing on 25 November 2021. The hearing was fixed for that date and Mr Brady rightly prepared for it to proceed on that day. 169 Item 40 On the other hand, we are persuaded that Mr Brady’s aggressive email threatening to close the grievance the following day if nothing was heard in the meantime did constitute detrimental treatment. The context is significant: the Claimant was signed off sick with a mantal health condition. 170 Item 44 No detriment is established here because the Respondent rightly reacted to the Claimant’s challenge to Mr Brady’s involvement in the grievance process by removing him as the nominated decision-maker. 171 Item 45 It was not a detriment to the Claimant that his request for the grievance to be considered by an external decision-maker was not granted. There was no suggestion that the Respondent’s procedures made any provision for external decision-making or that the course which he proposed had ever been followed before. Case Number: 2202088/2022 31 172 Item 47 On our primary findings, no detriment is shown. It is not established that Mr Williamson took no action on the Claimant’s concern about Mr Brady being entrusted with the grievance. In any event, action was taken and the concern resolved. 173 Item 48 This complaint identifies no detriment: as in the case of item 44, the Respondent corrected the error of selecting an interested (first-instance) decision-maker (here, Mr Rampe). 174 Item 52 This complaint repeats item 45 or item 48 (or both). No detriment is shown. 175 Item 58 Although the point is debatable, we are prepared to treat the Ms Boyd’s decision on the grievance, to the extent that it rejected the complaints, as detrimental to the Claimant. 176 Item 59 It was plainly detrimental to the Claimant to assign his appeal to Mr Rampe, about whom the grievance (in part) complained. 177 Item 60 The Claimant rightly made no complaint in his closing submissions about delay in relation to the completion of the grievance appeal his closing submissions. The time taken was reasonable and the delay (such as it was) did not amount to a detriment to the Claimant. 178 Item 61 On the grievance appeal, our approach is the same as in relation to the first-instance decision (item 58): we treat the unfavourable outcome as having caused a detriment to the Claimant. 179 Item 63 The complaint of a generally ‘flawed’ grievance process is, we find, a valid complaint of detrimental treatment. We have found a significant defect in the procedure followed (item 59). Moreover, in our judgment the appointment of Ms Boyd as first-instance decision-maker was inappropriate and unfair given the seniority of the people about whom the Claimant complained. Although she and Mr Rampe both took their functions seriously and carried out creditable work in addressing the grievance, the Claimant is entitled to regard the outcomes as detrimental to him (items 58 and 61) not solely because they were largely unfavourable but also because of the identities and statuses of those who delivered them. The Claimant also rightly identifies a further defect at the appeal stage in the failure of Mr Rampe to log and preserve the notes of his investigation Sickness absence and the events of 11 January 2022 180 Items 49, 50, 51 and 53 No detriment is identified. No return to work had been agreed. When he attended for work without warning and without arrangements having been agreed, the Claimant was properly sent home. We have found that this was not done in an offensive or humiliating way. These things having been said, although we do not consider that he was unfairly treated, we see force in the observations of Ms Boyd and Mr Rampe that the Respondent’s processes would Case Number: 2202088/2022 32 benefit from being revised to ensure clarity in future about return to work arrangements. Suspension and allegations of wrongdoing 181 Items 54, 55 and 56 Plainly, the Respondent’s treatment of the Claimant on 31 January 2022 in calling him into a ‘disciplinary investigation meeting’ without warning, suspending him and sending him a list of unparticularised allegations of gross misconduct constituted detrimental treatment. Miscellaneous matters 182 Item 42 As noted above, the Claimant did not appear to pursue this complaint. In any event, on our primary findings, no detriment is shown in the Respondent’s routine sharing of medical information relating to the Claimant with their HR consultants. 183 Item 46 We find a detriment in the Claimant’s unexplained exclusion from access to his email account in December 2021. 184 Item 47 In light our primary findings, no detriment is shown here. If Mr Williamson did not take action it was because, by some independent agency, the Claimant’s concern about Mr Rampe being asked to consider the grievance (at first instance) had already been addressed. N short, he was not disadvantaged. 185 Item 57 As we have noted, the claim for unauthorised deductions from wages was compromised during the hearing. We were presented with no evidence or argument upon which to base any finding as to whether the Claimant was subjected to any detriment in relation to his pay. Detrimental treatment ‘because of’ race? 186 Most of the claims have fallen away as a result of our primary findings of fact and/or our conclusions on the question of detriment. We will now review the complaints which have survived our initial analysis. The headings under which we consider them have been modified where appropriate to take account of our analysis so far. Abusive/offensive comments by white peers (2011-2015) 187 In this group are items 1, 2, 6, 8 and 13. We start with items 1 and 6. We have found that on both occasions no reference was made to the Claimant’s race or colour. The surrounding evidence is not sufficient, in our judgment, to warrant any inference of a discriminatory motivation behind the remarks. 188 Items 2 and 13 involve evidently race-based conduct. The ‘because of’ link is established 189 That leaves item 8. Here the detrimental treatment which we have found plainly was ‘because of’ (ie materially influenced by) the Claimant’s race. It is Case Number: 2202088/2022 33 possible that Mr Rampe would have addressed an equally insensitive question to an imaginary comparator of the Claimant’s (say a white Caucasian born and brought up in Eastern Europe) but we have no evidence to make good that theory. In our judgment his overtly race-based treatment of the Claimant is more than sufficient to shift the burden to the Respondent to disprove discrimination. That burden is not discharged. Mr Moakes monitoring the Claimant’s work laptop (2013) 190 We find in item 9 nothing pointing to any racial motivation. Mr Moakes’s reprehensible misconduct (for which he was ultimately dismissed) was not confined to the Claimant and there is no evidence to suggest that it was, or appeared to be, aimed at any particular racial group or cohort. Ignoring the Claimant promotion application (2016) 191 This detrimental treatment (item 14) is wholly unexplained. The suggestion that the Claimant may have been perceived to lack relevant qualifications is groundless. As we have established, he obtained a relevant qualification in 2015. Moreover, he had gained ample experience over his years in the organisation and it was not, and could not be, suggested that he was not worthy of consideration for the Security Manager post by 2016. We have considered additional relevant circumstances. The gross racial imbalance within the managerial cohort lends support to the Claimant’s perception of a culture in which it is an accepted norm that visible ethnic minority staff populate the lower orders of the organisation and management is confined to white men. In our view, the Claimant has done enough to transfer the burden of proof to the Respondent. That being so, our finding is inevitable. For want of any evidence to disprove discrimination, we find that the Claimant’s race was, at the very least, a material factor in the failure to engage with and process his promotion application. Detrimental acts of Mr Arscott (September 2019 to November 2021) 192 We have found detrimental treatment on the part of Mr Arscott in items 20, 28, 34 and 36. The first was an aggressive and unreasonable email. It did not reflect well on Mr Arscott and was, we think, characteristic of his managerial style. But we find no evidence that he reserved for the Claimant a more hostile or abrasive manner than that which he employed with all his other ‘reports’. The second was raising the question of a PIP with the Claimant in the aftermath of the cycle theft episode. We have found that this was a subject mooted by Mr Arscott at the behest of Mrs Wright. He was anxious to please her and we fear that he took the cowardly line of least resistance. In doing so he ignored his responsibility to act fairly and reasonably towards the Claimant. There may have been lessons to learn arising out of the theft, but there was manifestly no possible ground for a formal measure such as a PIP and it was inevitable that even raising the subject was likely to undermine him and damage his morale and confidence. In particular, Mrs Wright’s complaint that the Claimant was at fault for sending mixed messages was not justified and Mr Arscott did not act fairly in treating it as valid without even inquiring into the matter and reading the relevant emails. The third matter (item 34) was, we think, even more reprehensible. The pleaded complaint, established to our satisfaction, was that Mr Case Number: 2202088/2022 34 Arscott overreached himself in pressu rising the Claimant to fail the probation guard. (It is one thing to remind a subordinate manager of his powers, quite another to interfere with his managerial discretion.) That was a relatively minor detriment, consistent with Mr Arscott’s managerial style. Much more serious was his device of rewriting the report over the intruder episode and then (behind the Claimant’s back) seeking to place the blame on him for the way in which it had been handled. To our minds, that conduct was shameful and contemptible. The detriment under item 36 arose in a similar way. Instead of addressing the facts clearly explained to him by the Claimant, Mr Arscott took the unreasonable line of Mrs Wright that his communication had been unclear. There was no basis for that and his warning to the Claimant to ‘be careful’ was quite unfair. 193 So much for our review of Mr Arscott’s behaviour. What, if anything, points to it having any racial component? In our judgment, there is precious little, if anything, tending to that interpretation of events. It seems to us that the main problems with Mr Arscott’s management of the Claimant consisted of his aggressive and insensitive style (particularly damaging given that the Claimant is plainly a highly sensitive person), his willingness to subordinate his duty to act fairly to his anxiety to please the client and his determination to protect himself from being exposed as personally at fault. These traits are not to be admired, but they do not point to a racial motivation. Rather, they tend to explain conduct as resulting from other preferences or priorities. We have reviewed all of the background and contextual evidence. The ‘coconut’ comment has certainly given us pause. The expression is commonly used as a form of insult accusing a person of colour of betraying his or her non-white identity (brown on the outside, white on the inside). The context in which Mr Arscott used it lends some support, we think, to his evidence before us that he was not familiar with the commonly-accepted meaning of the expression. There is nothing in the surrounding dialogue consistent with him intending to throw in the direction of the Claimant a sudden, unprovoked, gratuitous and grossly offensive racial slur. That said, his claim that he used the word to convey the idea of a target for hostile fire (the coconut in the fairground coconut shy) must also be treated with caution, particularly given the provenance of that evidence. In short, we are left with a puzzle. But we note that this was, in any event, an isolated incident. It gave rise to no complaint at the time. It is not included as one of the Claimant’s numerous legal claims in these proceedings. In the end, we do not feel able to attach much weight to it. Having considered all the evidence with care, we find no sound basis for supposing that Mr Arscott would have treated a hypothetical white comparator of the Claimant’s differently. On the contrary, we are satisfied to a high standard that that comparator would have been treated exactly as the Claimant was. This case is a good example of the truism that unreasonable behaviour is not be equated with discriminatory behaviour. Detrimental acts of Mr Brady (after 11 November 2021) 194 These (items 40, 41 and 54-56) consist of the unreasonably aggressive email of 25 November 2021, the requirement to return the mobile phone and the events of 31 January 2022 including the Claimant’s suspension. For want of any evidence to the contrary, we feel bound to characterise Mr Brady as the actor, or main actor, in each case. In our view, there is nothing of substance to suggest that the Claimant’s race was a material factor in the detrimental treatment which he experienced. Case Number: 2202088/2022 35 Rather, as we will explain, we find compelling force in the parallel complaints that these acts were motivated by the fact that the Claimant had presented a grievance making allegations of serious and long-standing racial discrimination. The fact that Mr Brady had, some years earlier, engaged in offensive race-based conduct in the workplace (relied on by the Claimant as relevant ‘background’) does not, in our judgment, operate to transfer the burden to the Respondent in relation to these claims. The time interval and the quite different character of the detriments under consideration argue against the inference on which the discrimination and harassment claims depend. And the timing of the detriments argues powerfully for the proposition that they were driven by the protected act and not by prejudice based on the Claimant’s race. Denial of access to the email account (December 2021) 195 Here again (item 46) there is nothing pointing to race as a factor behind the sudden withdrawal of the Claimant’s access to his email account. By contrast, as we will explain, the inference that this event was precipitated by his presentation of his grievance on 11 November 2021 is powerful and persuasive. Conduct and outcome of the grievance process 196 We have reminded ourselves of our findings on items 58, 59, 61 and 63. Although the grievance exercise was flawed for the reasons we have given, we find no ground for the complaint that the resulting detriments were motivated by considerations of race. The defects seem to us to reflect a managerial approach which accords little importance to sound employee relations practice generally – a deficiency which the organisation may come to regret. But there is simply nothing before us tending to support a theory that the Claimant’s experience is explained in any way by his race. On the contrary, we are confident that, in the case of an imaginary white Security Manager pursuing a similar grievance in like circumstances, the same procedural errors would have been made. As to the actual decision-making of Ms Boyd and Mr Rampe, we find, again, no evidence whatsoever suggestive of an unlawful racial motivation on the part of either. Indeed, as we have noted, to a significant extent, our findings correspond with theirs. Constructive dismissal 197 We refer to our findings below on the unfair dismissal claim. The Claimant was constructively dismissed and accordingly, for the purposes of the 2010 Act, s39(2)(c), a dismissal is established. 198 Was the Claimant dismissed ‘because of’ race? The ‘reason’ for a constructive dismissal is the reason for the treatment which precipitates the resignation. As we explain below, our conclusion is that the Claimant felt driven to resign on 6 April 2022 because(a) he was convinced that the litany of acts or omissions complained of in his grievance were instances of race discrimination against him;(b) those complaints were largely rejected in the grievance process; and(c) the completion of the grievance process left him still under suspension and facing what he regarded as groundless and contrived disciplinary allegations. We have no doubt that he regarded his race as a central reason for his constructive Case Number: 2202088/2022 36 dismissal. Our objective assessment, however, is otherwise. There were certainly race-based incidents at several points in the long story. But our focus must be upon the dismissal and what precipitated the resignation through which it was effected. As we will explain, we are satisfied to a high standard that the treatment which caused the Claimant to resign amounted to a series of acts of victimisation. We find that the discriminatory treatment which we have identified had occurred sporadically between about 2011 and 2016 and was part of the background but did not form a material part of his decision to resign in April 2022. Time 199 Our analysis so far has eliminated all complaints of direct race discrimination apart from items 2 (Mr Cowle’s ‘slave’ comment), 8, (Mr Rampe’s insensitive question in 2012), 13 (Mr X’s ‘bloody foreigners’ remark) and item 14 (the Respondent’s failure to acknowledge and engage with the Claimant’s application for the Security Manager vacancy in 2016). 200 The first question is whether these events can be seen as together constituting ‘conduct extending over a period’ for the purposes of the 2010 Act, 123(3). In our view, the clear answer is no. The intervals are very substantial. The actors are different. And there is little or nothing qualitatively to link the conduct complained of in the four cases. 201 It follows that the claims are between 10.5 and 5.5 years out of time. Would it be ‘just and equitable’ to apply time limits of such an order in place of the primary three-month period (s123(1))? The answer is obvious. It would not. The Claimant has been on inquiry as to his rights throughout. He has been keeping notes and records of what he regards as relevant workplace incidents throughout. He has had access throughout to trade union support. He is an intelligent and resourceful person. There is, in our view, no good reason to exercise our discretion to bring these exceedingly stale claims within the Tribunal’s jurisdiction and doing so would run counter to the core purpose of the 2010 Act (and the Employment Tribunal system generally), which is to provide swift, practical, accessible and economical justice in employment disputes. 202 For the avoidance of doubt, we decline to consider applying to any other claim a longer limitation period (under s123(1)) than the ‘default’ three months. It would be obviously idle to bring within time claims already found to be without merit. And had we found merit in any of the other claims brought years out of time, we would have dismissed those too on jurisdictional grounds. Race discrimination – summary 203 For the reasons stated, we have concluded that: (a) most claims fail for want of any detrimental treatment being shown; (b) all but four of those left fail because the detriments did not involve any race discrimination; and (c) those four fail because they were brought out of time and the Tribunal has no jurisdiction to consider them. Case Number: 2202088/2022 37 Race-related harassment 204 The claims under this head mirror those for direct race discrimination and we have considered them as alternatives (a claimant running such parallel claims may succeed on one or the other, but not on both: see the 2010 Act s212(1)). Arguable acts of harassment? 205 We have reminded ourselves that the test under the 2010 Act, s26 sets a higher standard than s13. Some detriments will not also qualify as being capable of amounting to unlawful harassment, given the demanding language of s26(1)(b). In our judgment, the complaints under items 8, 14, 34, 58, 59, 61 and 63, although identifying arguable detriments, do not establish arguable acts of harassment. Item 8 (Mr Rampe’s ill-judged question about English) was insensitive and clumsy. But it was not intended to hurt or offend and it was a ‘one-off’. In context (although clearly ‘related to’ race – see below) its effect did not meet the standard of gravity set by s26(1)(b). The failure to acknowledge and process the promotion application in 2016 (item 14) was certainly a disappointment for the Claimant but again, in our view, did not (certainly as a ‘one-off’) stand as an omission capable of constituting harassment. Item 34 was not able to amount to harassment because Mr Arscott’s duplicitous behaviour in relation to the intruder incident was not motivated by a proscribed purpose (the purpose was to protect Mr Arscott’s interests, not to create any particular kind of environment for the Claimant) and did not have a proscribed effect on the Claimant (since he did not see the report at the time). The complaints about the grievance (items 58, 59, 61 and 63) again do not meet the requirements of s26(1)(b). He did not like the outcomes and makes valid criticisms of the process. These are properly seen as detriments but we cannot accept them as instances of harassment: the requisite proscribed purpose or effect is not shown. As for constructive dismissal (item 62), we see no ground for treating that as an act of harassment in itself. The acts which precipitated the resignation and entitled the Claimant to treat himself as constructively dismissed (in particular the acts of, or directed by, Mr Brady) certainly meet the standard set by s26(1)(b), but that does not, we think, turn the resignation itself (the act of accepting the breach as discharging the contract) into an act of harassment. Unwanted conduct related to race? 206 We bear in mind that the ‘related to’ formulation under s26(1)(a) may be satisfied by a looser connection with the relevant protected characteristic than the ‘because of’ link under s13. But the distinction here seems to us to make no difference. Our reasons for finding no discrimination under s13 apply (with necessary modifications) to our analysis under s26. The acts capable of amounting in principle to harassment were, we find, not in any sense related to the Claimant’s race or to race in general. It follows that, since we have found that items 8 and 14 do not meet the standard set by s26(1)(b), the harassment claims which remain are limited to items 2 and 13. Case Number: 2202088/2022 38 Time 207 In any event, we are satisfied that all complaints of harassment inevitably fail on time grounds, for the reasons stated above in relation to direct race discrimination. And again, there can be no question of extending time in relation to any other claims since we have found all to be without merit. Race-related harassment – summary 208 Our conclusions are that: (a) most claims fail for want of acts capable of amounting to harassment being shown; (b) ff those which survive, all but two fail because they are not shown to rest on conduct ‘related to’ race; and (c) presented out of time and the Tribunal has no jurisdiction to consider it. Discrimination arising from disability The Respondent’s knowledge of the disability 209 It was helpfully agreed between the parties during the hearing that the grounds of resistance and list of issues should be amended to include a defence under the 2010 Act, s15(2), mirroring the corresponding defence to the reasonable adjustments claim (schedule 8, para 20). 210 We remind ourselves of our primary findings relevant to the issue of knowledge. The Respondent is fixed with collective knowledge of the Claimant’s brief period of sickness absence in September and October 2012 attributed to ‘depression’ (found by EJ Davidson not to have amounted to a disability), after which he had had an excellent sickness absence record and no episode of poor mental health until 23 November 2021. He was certified fit to return on a phased basis by 11 January 2022 and it was common ground that he was fit to return on 31 January 2022. Upon his suspension he was signed off sick from 1 February 2022 and remained on sick leave for two months while the grievance process was concluded, following which, a week later, he resigned. 211 Given the language of the 2010 Act, s15(2), we are satisfied that the Respondent has discharged the burden of proving that the Claimant is not entitled to protection against discrimination arising from disability. The Respondent did not know of his disability at any time during his employment. There is no basis for saying that he had any disability before 23 November 2021. And there is no basis for saying that the Respondent had any reason to regard him as disabled during the short-term period of sick leave which followed. The evidence was that he had made a good recovery by early January and was well-placed to return to his full-time pattern in short order. The new period of sick leave starting on 1 February 2022 had every appearance of resulting from the distress and shock brought about by the events of the day before. There was nothing pointing to a long-term mental health disability then or during the 10 weeks between then and the Claimant’s resignation. His sick record since 2007 strongly suggested that the absences from 23 November 2021 were short-term reactions to workplace stress and trauma. If the Respondent’s treatment of him has caused him a psychiatric injury, it may have to answer for that Case Number: 2202088/2022 39 in another forum, but in our view it cannot be held liable in this Tribunal under s15 because it is fully entitled to the knowledge-based defence which s15(2) affords it. 212 Although the claim fails here, we think it right briefly to complete the analysis. Unfavourable treatment? 213 The Claimant relies on five complaints of unfavourable treatment, which correspond with items numbered 39, 40, 41, 57 and 63 for the purposes of the race discrimination claims. (Again, we will adopt the same numbering.) 214 For reasons given above in relation to the detriment claim, we find no unfavourable treatment in item 39. Nothing was done about which a reasonable complaint could be made. Item 40 stands as a good complaint of unfavourable treatment in light of the unreasonable terms of Mr Brady’s email of 25 November 2021. Likewise item 41 (request for the return of the mobile phone). Item 57 must be deleted as the Tribunal is in no position to make any finding on whether the Claimant was subjected to any unfavourable treatment in respect of his pay. Item 63 also stands: defects in the grievance process can properly be seen as amounting to unfavourable treatment of the Claimant. Because of something arising in consequence of the Claimant’s disability? 215 The unreasonable and aggressive email (item 40) was sent because of something arising in consequence of the Claimant’s disability, namely his absence. The same goes for item 41. The defects in the grievance process (item 63) cannot be seen as any sort of consequence of the disability. Proportionate means of achieving a legitimate aim? 216 Writing an unreasonable and aggressive email was not a proportionate means of doing anything. The Respondent argued that the request for the return of the mobile phone was a proportionate measure in pursuit of a legitimate aim, but their case was not made good on evidence. In particular, it is not shown that the practice asserted by the Respondent is followed in the generality of cases. And even if the practice exists and is ordinarily followed, we have not been shown evidence-based grounds for regarding it as a proportionate measure. Discrimination arising from disability – summary 217 We conclude that: (a) all claims under s15 fail because the Respondent discharges the burden of making out the knowledge-based defence under s15(2); (b) but for that, we would have found that the claims under items 40 and 41 only were well-founded; and (c) no time point arises. Case Number: 2202088/2022 40 Failure to make reasonable adjustments The Respondent’s knowledge of disability and substantial disadvantage 218 We have reminded ourselves of the terms of the 2010 Act, sch 8, para 20(1), cited above. In Wilcox v Birmingham CAB Services Ltd UKEAT/0293/10/DM, in a judgment handed down in the EAT on 23 June 2011 Underhill P (as he then was) interpreted the predecessor provision in these terms (para 37): … to spell it out, an employer is under no duty … unless he knows (actually or constructively) both (1) that the employee is disabled and (2) that he or she is disadvantaged by the disability in the way set out in [the section]. … element (2) will not come into play if the employer does not know element (1). 219 We do not need to repeat our findings above in relation to the Respondent’s defence to the s15 claim. Our finding that it did not know of the Claimant’s disability at any material time is fatal to the claim for failure to make reasonable adjustments. 220 But again, we will briefly complete the analysis. Provisions, criteria and practices (‘PCPs’) 221 The first PCP (‘PCP1’) is said to be the Respondent’s practice on scheduling, chairing and handling grievances. We find that the Respondent had such a practice and that it was applied to the Claimant as to other members of the Respondent’s workforce. 222 The second PCP (‘PCP2’) is said to be the Respondent’s practice of denying employees access to their work email accounts and requiring them to return company mobile phones when absent (including when on sick leave). We find that the Respondent had some such policy or practice but we are far from clear as to how it was usually applied. It was applied to the Claimant. 223 The third PCP (‘PCP3’) is said to be the Respondent’s practice on employees returning to work after sickness-related absence. We find that the Respondent had such a practice and that it generally involved holding a return-to-work meeting. We further find that the practice was applied to the Claimant. Substantial disadvantage? 224 The Claimant’s case becomes obscure at this point. It is not clear to us how the practice of scheduling, chairing and handling grievances (PCP1) is said to have caused a substantial disadvantage to the Claimant in comparison with persons who are not disabled. In any event, we find no such disadvantage. As we have noted, the Claimant was disadvantaged by procedural flaws in the grievance process but it is not shown that those flaws were features of, or consequences of, the PCP. To put it another way, it is not shown that the relevant practice included appointing inappropriate decision-makers at the first-instance and appeal stages or failing to retain notes at the appeal stage or, even if it did, that these particular features put the Claimant at a substantial disadvantage in comparison with persons who were not disabled Case Number: 2202088/2022 41 225 Turning to PCP2, we note our findings (above and, in relation to the victimisation claim, below) that the Claimant was subjected to detrimental treatment in being required to return his work mobile phone and losing access to his work email account. But he does not demonstrate to our satisfaction that the (poorly-defined) practice put him at a substantial disadvantage in comparison with persons who were not disabled. On the face of it, the short-term loss of these minor benefits was a minor disadvantage to him and not a materially more substantial disadvantage than a non-disabled person would have experienced. 226 PCP3 does not work. The Respondent did have a PCP of holding return to work meetings. That practice plainly did not put the Claimant at a substantial disadvantage in relation to non-disabled employees. The burden of his complaint is that a return to work meeting was not held in his case on 11 January 2022. As we have explained, we are not persuaded that that is a good complaint of detrimental treatment for the purposes of the race discrimination claim (the GP had merely said that he was fit to return on a phased basis from that date), and we can understand why the Respondent favoured completing the grievance process before arranging his return. But in any event, the complaint does not work in the context of reasonable adjustments. It is not said (let alone shown) that the PCP was to decline to hold return to work meetings when grievances were underway. Still less is it said that such a PCP produced a substantial disadvantage for the Claimant. Without those building blocks, the argument that the Respondent acted unlawfully in failing to adjust the PCP by holding a return to work meeting on 11 January 2022 (or on any date before 31 January 2022) becomes unsustainable. Reasonable steps? 227 The Claimant having failed to establish any substantial disadvantage consequential upon any of the three PCPs, it follows that no duty to make any reasonable adjustment arose. In the circumstances, it would not be proportionate to subject the proposed ‘steps’ to scrutiny here but we would observe that most are in any event misconceived as failing to fit within the statutory scheme which envisages steps which it is reasonable for the employer to have to take in order to prevent the relevant PCP in each case from causing the relevant substantial disadvantage. In one instance, a proposed adjustment also falls foul of the principle in the Tarbuck case which we have cited above (List of Issues, para 5.12, item 3). Failure to make reasonable adjustments – summary 228 The complaints of failure to make reasonable adjustments fail because: (a) the Respondent makes out the knowledge-based defence under the 2010 Act, sch 8, para 20(1); and (b) the complaints would have been dismissed on the ground that the Claimant had failed to establish any duty on the part of the Respondent to make any adjustment contended for. Case Number: 2202088/2022 42 Victimisation Protected acts 229 The Claimant relied on three protected acts. The first was on 8 November 2021 when he complained at a meeting with Mr Brady about being intimidated by Mr Arscott and said that he believed the treatment was race-based and that he was planning to bring a formal grievance. The second was the grievance itself (already mentioned) issued on 11 November 2021. The third was an email to Mr Brady on 3 December 2021 in which he raised several complaints including the allegation that the request for him to return his work mobile phone amounted to race discrimination. 230 We find that the acts asserted are established in fact and that, in all three cases, the Claimant’s communications amounted to protected acts for the purposes of the 2010 Act, s27(2)(d). Detriments? 231 Of the detriments relied on for the purposes of the race discrimination claims, 23 are repeated as allegations of victimisation. For reasons already given, most fall away on the ground that no detriment is shown. The nine which remain correspond with items numbered 40, 46, 54-56, 58, 59, 61 and 63 for the purposes of the race discrimination claims. Necessarily, these stand as detriments in relation to victimisation also. As explained above, will adopt the same numbering in the analysis which follows. Detriment(s) done because the Claimant had done the protected act? 232 The surviving complaints divide into two groups: those arising out of the conduct and outcome of the grievance and the rest. We will address them in turn. 233 The complaints in the first group (items 40, 58, 59, 61 and 63) face the familiar difficulty afflicting victimisation claims based on the employer’s management of a grievance. The complaint arises necessarily in the context of the protected act, and, but for the protected act, the treatment complained of would not have occurred, but that is not to say that the protected act is the cause or reason (or even a material cause or reason) for the relevant detriment and common sense often argues that it is not. Here, the grievance process was the direct consequence of the main protected act, namely the grievance of 11 November 2021. But we see no basis for thinking that, had the Claimant raised a grievance which did not attract the protection of the 2010 Act, s27 (say one that covered the same ground save for making allegations of general unfairness rather than discrimination), he would have been any more favourably treated as a matter of process or outcome. In short, we see nothing to warrant an analysis elevating the ‘but for’ cause into the operating cause (or an operating cause) of the detrimental treatment. 234 The remaining detriments (items 46 and 54-56) we see quite differently. Here the evidence establishes a startling chain of events beginning within days of the grievance being issued with the Claimant being required to return his mobile phone (we imagine that item 41 was accidentally omitted from the list of victimisation Case Number: 2202088/2022 43 detriments) and finding his email access disconnected (item 46), followed in short order by what the Claimant quite understandably describes as the ‘ambush’ on 31 January 2022 (items 54-56) when, entirely without warning, he was suspended and required to attend a disciplinary investigation meeting to discuss wholly unparticularised charges of very serious wrongdoing. Grotesque unfairness of that sort calls for an explanation. We have received none. No evidence has been put before us to show that there was ever any basis for holding a disciplinary investigation. No allegation of wrongdoing was put to the Claimant in cross-examination.2 As to what it was that caused Mr Brady, or anyone in authority, so suddenly to become convinced that a loyal employee of almost 15 years’ unblemished service needed to be suspended on the spot and investigated on suspicion of gross misconduct, no witness before us was able to say. We were told that Mr Brady had left the company, but we are quite unable to accept that neither Mr Arscott nor Mr Rampe nor anyone else in the higher management had any information to give on the matter, or that no document could be found casting light on decision-making relating to the Claimant over the weeks after the grievance was issued. 235 As noted in our judgment above, the complaint of unfair constructive dismissal (item 62 for the purposes of the 2010 Act claims) succeeds. As will be further explained below, we have found that the constructive dismissal was brought about by a combination of acts and events including, to a significant extent, those comprehended by items 41, 46 and 54-56. It follows that if the treatment amounted to victimisation, so did the dismissal. 236 In the circumstances, we find that the removal of access to email and in particular the suspension and so-called investigation were extraordinary, groundless devices for which no explanation whatsoever has been given. The timing, starting within a few weeks of the grievance, strongly suggests that the grievance was the catalyst. On any view, there is information from which an inference could be drawn that the relevant detriments were done because of the protected act of 11 November 2021 (it is not necessary to include the other two). Accordingly, the burden has shifted to the Respondent to show that it did not victimise the Claimant by the treatment relied upon. It has wholly failed to discharge the burden. Victimisation - summary 237 To the extent stated, the claims for victimisation based on items 41, 46 and 54-56, and the consequential constructive dismissal (item 62) succeed. 238 No issue of jurisdiction arises. Unfair dismissal 239 We have reminded ourselves of our primary findings of fact and our secondary findings and conclusions in respect of the direct discrimination, harassment and victimisation claims. We will not repeat those here. 2 Although the hearing was listed for ‘liability-only’, it was agreed that the evidence should address some strictly remedies issues, including contributory conduct, causation of loss, Chaggar, Polkey etc. Case Number: 2202088/2022 44 Constructive dismissal? 240 The Claimant contends that, by its treatment of him throughout his period of service, the Respondent repudiated his contract of employment and that he accepted the repudiation by his resignation on 6 April 2022. Although we have found that many of his complaints lack substance, we are quite satisfied, on the strength of our primary findings, that the necessary repudiation is established. Indeed, it seems to us that we need look no further back than 31 January 2022. Regardless of the prior events, we are satisfied that the Respondent’s conduct on that day in subjecting him without warning to a groundless suspension and purporting to initiate a groundless disciplinary investigation more than comfortably met the Malik test (see above). We are also satisfied that the Claimant’s resignation was, in substantial part, driven by the events of 31 January 2022. We should add that it was rightly not argued that the interval between 31 January 2022 and the resignation had the consequence that he lost his right to treat himself as constructively dismissed (whether through waiver or affirmation). That would have been an exceedingly difficult argument to maintain. The Claimant was perfectly entitled to see out the grievance process before taking his final decision. 241 Our reasoning so far dictates the finding that the Claimant was constructively dismissed. Somewhat surprisingly, Mr Collyer ran the optimistic argument that even if there was a constructive dismissal, it was fair, the postulated ground being ‘some other substantial reason’ (see the 1996 Act, s98(1)(b)), namely the breakdown in the relationship between the parties. With respect, that submission is hopeless. The ‘reason’ for a constructive dismissal is the reason for the treatment which precipitates the resignation. It is hopeless to argue that the reason for the Respondent’s mistreatment of the Claimant which we have found established on the evidence was that the relationship between the parties was damaged. 242 It follows that the complaint of unfair dismissal succeeds. Chaggar, Polkey causation of loss etc 243 We invited the parties to address in their closing submissions any Chaggar/Polkey issues as well as causation of loss and (if applicable) contributory conduct, hoping that, if any claim succeeded on liability, our findings on these points (strictly remedies issues) would improve their chances of resolving privately what remained for decision. But having considered the submissions with care we have decided that all remedies questions must be stood over to a dedicated remedies hearing. Our reason is that we could not be sure that the Claimant had fully grasped and engaged with the difficult concepts involved and there was a risk of him, as the unrepresented party, suffering serious disadvantage as a consequence. 244 Accordingly, we have listed a preliminary hearing for case management on 2 October at 10.00 a.m. by CVP before the judge sitting alone for the purposes of discussing and agreeing the remedies issues and setting a timetable for a remedies hearing (probably with a provisional time allocation of three days) to be held before the full Tribunal. The parties should attend on 2 October ready with dates to avoid in the ‘window’ from December 2024 to June 2025. Case Number: 2202088/2022 45 Outcome and Postscript 245 For the reasons given, the claims succeed to the extent sated in our judgment above, paras (1) and (2) but otherwise fail. 246 This has been costly and painful litigation for all concerned. The best hope must be that valuable lessons may be learned from it. In particular, those who lead the Respondent would do well to reflect soberly on the distance between the shining ‘military standards’ it proclaims and the unedifying (not to say, at times, squalid) reality which it has fallen to us to examine. 247 The parties might also benefit from making an early and concerted effort to bring what is left of this unhappy conflict to an end through constructive and realistic negotiation. They are reminded that any communication aimed at settling a legal dispute is ‘privileged’ and the Tribunal must not be told anything about it. 248 Failing private resolution, the parties are expected to prepare carefully to assist the judge on 2 October to manage the litigation forward to the best advantage of all concerned. Employment Judge Snelson _________________________ Date: 30 August 2024 Judgment entered in the Register and copies sent to the parties on 2 September 2024 ............................................. for Office of the Tribunals Case Number: 2202088/2022 SCHEDULE 1 AGREED LIST OF ISSUES AGREED LIST OF ISSUES POC X numbered from 1 to 86 (as numbered by the Respondent and sent on 13 July 2022) FBP X further and better particulars numbered 1 to 35, dated 12 August 2022 1 Disability status1.1 The Claimant relies on the disability of low mood and depression.1.2 the Claimant was:1.2.1 not disabled in 2012; but1.2.2 disabled in 2021/2022 at all material times. 2 Race 2.1 The Claimant is a black male of African origin. 3 Direct race discrimination under s13 EqA 20103.1 The Claimant relies on the actual comparators of Mr P Moakes, Mr D Keith, Mr M Arscott, Mr P Brady, Mr K Woodward and Mr G Binding and/or a hypothetical comparator.3.2 The Claimant avers that the Respondent subjected him to the following treatment: 6 of 33 137 Case Number: 2202088/2022 7 of 33 138 No Date Act Reference in Particulars of Claim and/or Further and Better Particulars.
Claim
Claim
[1]8/03/2011 The Claimant was called a Patrick Dineen.[2]06/06/2011 The Respondent failed to take any action when the by Bill Cowle. Bill Cowle said the Claimant was a slave to all the white people present in the control room. POC 3; FBP 14(b); FBP 28[3]In or around June 2011 The Claimant reported a racist comment made by Bill Cowle on 6 June 2011 to Paul Moakes but was told by Mr Moakes that the comments were POC 6[4]14/07/2011 The Respondent failed to do anything when the Claimant was shown the Hitler salute by Marc Degani. The Claimant reported this incident to Paul Williamson. POC 3; FBP 14(g); FBP 23 POC 3; FBP 14(a); FBP 28 Case Number: 2202088/2022 8 of 33 139[5]08/08/2011 Paul Moakes placed a white mug with the inscription am a in front of the Claimant. POC 3; FBP 14(j); FBP 23[6]29/03/2012 referring to the Claimant. POC 3; FBP 14(d); FBP 28[7]27/06/2012 Robert Michael sent an email describing security ick and not fit Respondent failed to take any action when reported by the Claimant. POC 4; FBP 28[8]02/07/2012 The Claimant was asked where he had learned his English from by Guy Rampe. POC 3; FBP 14(h); FBP 28[9]16/07/2013 The Claimant had his computer secretly monitored by Paul Moakes. POC 3; FBP 14(i); FBP 28[10]17/02/2014 Guy Rampe made the Claimant feel that if he wanted to remain in his employment, he was required to ignore the racist comments and deal with it. POC 7; FBP 28[11]26/08/2014 The Respondent failed to do anything when the Claimant POC 3; FBP 14(c); FBP 28 Case Number: 2202088/2022 9 of 33 140[12]01/12/2014 The Claimant witnessed Paul Moakes saying, POC 4; FBP 13(c)[13]In or around March 2015 The Claimant witnessed or was informed that Mr X referred to ethnic minority POC 4; FBP 28[14]April 2016 for a promotion in 2016 was ignored and he was overlooked for suitable managerial positions. POC 10[15]19/10/2016 Robert Michael sent an email describing security failed to take any action when reported by the Claimant. POC 2; FBP 28[16]29/11/2016 Brian Fowle called the Claimant Amofah, a fellow security guard. POC 3; FBP 14(e)[17]16/06/2017 The Claimant heard Martin Arscott say to Brian Fowle died in the Grenfell tower POC 4; FBP 28. Case Number: 2202088/2022 10 of 33 141 were foreigners, so he did[18]May 2018 The Claimant was interviewed and treated in materially the same way as an external candidate, not an internal candidate, for the vacant Security Manager position in May 2018. POC 14 and 15.[19]December 2018 Martin Arscott was undermining the Claimant in his role as Security Manager. POC 17[20]Between 2018 and 2019 Martin Arscott sent threatening emails to the Claimant, criticising the Claimant for not responding to emails sent out of hours. POC 21[21]Between 2018 and 2021 Martin Arscott unjustifiably and constantly scrutinised For example, the Claimant was ambushed and interrogated on 26 August 2020 in relation to shifts that were not covered by staff. On 6 October 2021, Martin Arscott notified the Claimant that he was not happy with POC 23; 24. Case Number: 2202088/2022 11 of 33 142 how the QR codes worked.[22]26/08/2020 Martin Arscott asked the Claimant if he needed any financial aid or funds to feed my family. POC 23; FBP 28[23]01/09/2020 Martin Arscott shouted at the Claimant and blamed the Claimant for an incident of bike theft which occurred premises whilst the Claimant was at home. POC 25; 26[24]01/09/2020 Martin Arscott sent the Claimant an out-of-hours message requesting relation to an incident of bike theft at the premises. POC 27[25]02/09/2020 Martin Arscott pressured the against Edward Amofah and made adverse comments against Iyabo Parkes, other black and ethnic minority employees of the Respondent. POC 32[26]09/09/20 The Claimant heard Martin Arscott referring to Ambrose Ewiah, a black male officer, POC 5; FBP 13(a); FBP 28 Case Number: 2202088/2022 12 of 33 143 herd adverse comments against other ethnic minority employees.[27]09/09/2020 The Claimant overheard comments made by Martin fuck about Iyabo Parkes POC 5; FBP 28[28]09/09/2020 Martin Arscott threatened to put the Claimant on a performance improvement programme in relation to a bike theft incident. POC 35[29]09/09/2020 Martin Arscott pressured the Claimant to discipline other ethnic minority employees, including Mohamed Aitazzouzene and Richard Sackey, over a bike theft incident. POC 35[30]10/09/2020 Guy Rampe failed to take any action in relation to the omplaints of bullying and threatening behaviour against Martin Arscott. POC 38[31]14/09/2020 Guy Rampe told the Claimant to review the performance and position of Rej Rahman, fellow ethnic POC 33; FBP 20 Case Number: 2202088/2022 13 of 33 144 minority security guard, to cover for a security breach by Martin Arscott.[32]26/10/2020 The Claimant witnessed Martin Arscott shout at Iyabo Parkes, a black female security officer, and told that POC 5; FBP 13(g); FBP 28[33]10/12/2020 Martin Arscott shouted at the Claimant for his decision to allow a security officer to go home due to illness (suspected Covid 19). He your fucking high horse and POC 38; FBP 23[34]01/03/2021 Martin Arscott pressured the Claimant to fail Amir en a white male intruder had entered the premises. FBP 20[35]01/11/2021 Martin Arscott criticised the Claimant in an email sent to all managers and supervisors, highlighting the Claimant POC 42[36]08/11/2021 The Claimant was shouted at by Martin Arscott for raising a concern that a report Mr Arscott had made to a client was untrue. POC 43 Case Number: 2202088/2022 14 of 33 145[37]November 2021 Paul Brady failed to treat the racism on 08/11/2021 seriously. FBP 23[38]11/11/2021 The Claimant issued a grievance to the Respondent harassment and bullying, racial abuse and threatening POC 45[39]25/11/2021 The Respondent attempted grievance hearing in his absence whilst he was away on sick leave. POC 48[40]25/11/2021 Paul Brady emailed the Claimant that he was waiting for him to attend the grievance hearing and he threatened that the Claimant must confirm his non-attendance by 26/11/2021 at 12:00 otherwise the case will be closed. POC 48[41]02/12/2021 Paul Brady requested that the Claimant was to return the company mobile phone whilst he was away on sick POC 50 Case Number: 2202088/2022 15 of 33 146 leave.[42]02/12/2021 records were shared with an external HR company w consent. POC 50[43]03/12/2021 The Claimant complained to Paul Brady that his emails and his contact were further aggravating his illness and that the request for his mobile phone was racial discrimination. POC 51[44]03/12/2021 The Respondent instructed Paul Brady to chair the Cl meeting. This was to the detriment as complaints were being made against Mr Brady. POC 54[45]03/12/2021 The Claimant was denied an independent grievance officer to chair his grievance hearing. POC 54[46]06/12/2021 The Claimant realised that he was denied access to his work email account. POC 53[47]29/12/2021 The Claimant was ignored by Paul Williamson, the POC 56 Case Number: 2202088/2022 16 of 33 147 Director of the Respondent, when he complained about Paul B .[48]05/01/2022 The Respondent assigned Guy Rampe to conduct the grievance hearing. This was as he was also complicit in the complaints. POC 58[49]11/01/2022 The Respondent failed to have a return-to-work meeting to discuss the n to work. POC 59[50]11/01/2022 The Respondent failed to implement a phased return to work for the Claimant. POC 59[51]11/01/2022 The Respondent failed to discuss possible reasonable adjustments. POC 59[52]11/01/2022 The Respondent failed to assign an independent grievance hearing investigator to the[53]11/01/2022 On his return to work, the Claimant was told to go home and was escorted out of the building by security. The Claimant was humiliated POC 60 Case Number: 2202088/2022 17 of 33 148 in front of his colleagues.[54]31/01/2022 At his return-to-work meeting, the Claimant was ambushed by Paul Stringer who attempted to conduct an investigation hearing into informed the Claimant that he was suspended with immediate effect. POC 70 31/01/2022 The Claimant was suspended. POC 70[56]31/01/2022 The Respondent raised bogus allegations against the Claimant. POC 71[57]February to April 2022 The Respondent made unlawful deductions from the POC 74 07/02/2022 The was only partially upheld. POC 75[59]24/02/2022 Th appeal was chaired by Guy Rampe who was not impartial. POC 77[60]March 2022 The Respondent delayed in addressing the Cla grievance appeal. POC 79; 80.[61]29/03/2022 vance appeal was not successful. POC 81[62]06/04/2022 The Claimant was POC 84 Case Number: 2202088/2022 3.3 Was the Claimant treated less favourably than any actual and/or hypothetical comparators? 3.4 If so, was that less favourable treatment because of race, or some other reason? 4 Discrimination arising from disability under s15 EqA 2010 4.1 Did the Respondent treat the Claimant unfavourably in relation to the following matters? The Claimant avers that: 18 of 33 149 constructively dismissed.[63]Between 11/11/2021 and 29/03/2022 The handling of the 11 November 2021 was generally flawed, unfair and improper. No Date Act Reference in Particulars of Claim and/or Further and Better Particulars.
Claim
[1]25/11/2021 The Respondent threatened to hold the Clai grievance hearing in his absence whilst he was away on sick leave.[2]25/11/2021 Paul Brady emailed the Claimant that he was waiting for him to attend the grievance hearing and he threatened that the POC 48 POC 48 Case Number: 2202088/2022 4.2 If so, what was the reason for the unfavourable treatment? 4.3 Did the reason for the unfavourable treatment arise in consequence of the 4.4 Was the unfavourable treatment a proportionate means of achieving a legitimate aim? The Respondent relies on the following legitimate aims: 4.4.1 in regard to allegations 1 and 2 at paragraph 4.1 abov requirement to progress and deal with employee grievances in a timely manner; 19 of 33 150 Claimant must confirm his non-attendance by 26/11/2021 at 12:00 otherwise the case will be closed.[3]02/12/2021 Paul Brady requested that the Claimant was to return the company mobile phone whilst he was away on sick leave. POC 50[4]Between 11/11/2021 and 29/03/2022 The handling of the Cla 11 November 2021 was generally flawed, unfair and improper.[5]February - April 2022 The Respondent made unlawful deductions from POC 74 Case Number: 2202088/2022 4.4.2 requirement to ensure company facilities and equipment are returned during periods of extended sick leave so as to ensure that any client calls made during extended sick leave refers to sickness-related absence for more than a day or two; 4.4.3 in regard to allegation 4 at paragraph 4.1 above, the Respondent does not rely on a legitimate aim; and 4.4.4 to pay employees only their strict contractual entitlement. 4.5 Did the R know or ought to have known the C had a disability 5 Failure to make reasonable adjustments under s20 and s21 EqA 2010 PCP 15.1 grievances constitute the Claimant?5.2 If so, did the PCP put him at a substantial disadvantage compared with those matter?5.3 Did the Respondent know or ought the Respondent reasonably to have known that the application of the PCP would put the Claimant at the identified substantial disadvantage?5.4 Did the Respondent fail to take such steps as were reasonable to avoid that disadvantage? In particular: 20 of 33 151 No. Date Act Reference in Case Number: 2202088/2022 PCP 2 21 of 33 152 Particulars of Claim and/or Further and Better Particulars.
Claim
The Legal Framework
[1]25/11/2021 Avoiding scheduling a grievance meeting on a date in which the Claimant is unavailable due to sickness- related absence. POC 48[2]25/11/2021 Failing to postpone the grievance meeting whilst the Claimant was absent on sick leave; POC 48[3]25/11/2021 Failing to provide the Claimant with alternative dates for the grievance hearing. POC 48[4]03/12/202105/01/2022 Failing to instruct an independent grievance investigator to chair the grievance hearing. POC 54 - 58[5]06/12/2021 Failing to allow the Claimant access to his work email account. POC 53[6]FebruaryApril 2022 full salary entitlement while he was suspended and instead placing him on statutory sick pay allowance. POC 74 Case Number: 2202088/2022 5.5 on employees not having access to their work email and being required to return company mobile phones when absent (including on sick leave) constitute a PCP which applied to the Claimant? The Respondent accepts that this is a policy or practice that applied to the Claimant. 5.6 If so, did the PCP put him at a substantial disadvantage compared with those who did not matter? 5.7 Did the Respondent know or ought the Respondent reasonably to have known that the application of the PCP would put the Claimant at the identified substantial disadvantage? 5.8 Did the Respondent fail to take such steps as were reasonable to avoid that disadvantage? In particular:5.8.1 failing to permit the Claimant to retain access to his work email; and5.8.2 failing to permit the Claimant to retain access to his company mobile phone whilst away on sick leave. PCP 3 5.9 sickness-related absence constitute a PCP which applied to the Claimant? The Respondent says it has a policy/ practice that employees returning to work after sickness-related absence are invited to a return-to-work meeting. 5.10 If so, did the PCP put him at a substantial disadvantage compared with those who did not suffer from the C matter? 22 of 33 153 Case Number: 2202088/2022 5.11 Did the Respondent know or ought the Respondent reasonably to have known that the application of the PCP would put the Claimant at the identified substantial disadvantage? 5.12 Did the Respondent fail to take such steps as were reasonable to avoid that disadvantage? In particular: 23 of 33 154 No. Date Act Reference in Particulars of Claim and/or Further and Better Particulars.[1]11/01/2022 Failing to have a return-to- work meeting to discuss the return to work.[2]11/01/2022 Failing to implement a phased return to work for the Claimant. POC 59[3]11/01/2022 Failing to discuss possible reasonable adjustments. POC 59[4]11/01/2022 on his return to work, informing the Claimant that he had to go home and escorting him out of the building by security. The Claimant was humiliated in front of his colleagues. POC 60[5]31/01/2022 at his return-to-work meeting, the Claimant was ambushed by Paul Stringer who POC 70 POC 59 Case Number: 2202088/2022[6]Harassment (Race) under s26 EqA 20106.1 The Claimant relies on the conduct listed above in the table at paragraph 3.2.6.2 If such conduct is proven, did the Respondent engage in unwanted conduct related to race?6.3 If the alleged events occurred, did the conduct (taking into account the s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect) have the purpose or effect of6.3.16.3.2 creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant.[7]Victimisation under s27 EqA 20107.1 Did the Claimant do the following: 24 of 33 155 conducted an investigation hearing into the conduct and informed the Claimant that he was suspended with immediate effect. 6. 31/01/2022 Suspending the Claimant immediately after his return- to-work meeting. POC 70 Alleged Date Act Reference in Case Number: 2202088/20227.2 If so, and in so acting, did the Claimant do a protected act pursuant to s.27(2) EqA 2010? The Respondent accepts that APA 2 at paragraph 7.1 above was a protected act. The Respondent says that if the Tribunal finds that if APA 1 and APA 3 occurred as alleged above at paragraph 7.1, then APA 1 and APA 3 would amount to protected acts.7.3 Did the Respondent act, or fail to act, as follows? In particular: 25 of 33 156 Protected Particulars of Claim and/or Further and Better Particulars. 1 08/11/2021 The Claimant informed Paul Brady of Martin Arscot threatening behaviour and expressly questioned why no action was being taken and whether it was because of the 2 11/11/2021 The Claimant issued a grievance to the Respondent persistent harassment and bullying, racial abuse and threatening . POC 45 3 03/12/2021 The Claimant complained to Paul Brady that his emails and his contact were further aggravating his illness and that the request for his mobile phone was racial discrimination. POC 51 POC 44 Case Number: 2202088/2022 Date Act Reference in Particulars of Claim and/or Further and Better Particulars. APA 1 November 2021 Paul Brady failed to treat the on 08/11/2021 seriously and failed to do anything about it. APA 2 and 3 25/11/2021 The Respondent threatened to hold the Claimant hearing in his absence whilst he was away on sick leave. POC 48 APA 2 and 3 25/11/2021 Paul Brady emailed the Claimant that he was waiting for him to attend the grievance hearing and he threatened that the Claimant must confirm his non- attendance by 26/11/2021 at 12:00 otherwise the case will be closed. POC 48 APA 2 and 3 02/12/2021 Paul Brady requested that the Claimant was to return the company mobile phone whilst he was away on sick leave. POC 50 APA 2 and 3 02/12/2021 The Claimdical records were shared with an external HR company without POC 50 APA 2 and 3 03/12/2021 The Respondent instructed POC 54 In relation to which APA? FBP 23 26 of 33 157 Case Number: 2202088/2022 27 of 33 158 Paul Brady to chair the This was to the Cl detriment as some of the Claiman being made against Mr Brady. APA 2 and 3 06/12/2021 The Claimant realised that he was no longer allowed to access his work email account. POC 53 APA 2 and 3 05/01/2022 The Respondent assigned Guy Rampe to conduct the grievance hearing. This was to the C was also complicit in the complaints. POC 58 APA 2 and 3 11/01/2022 The Respondent failed to have a return-to-work meeting to discuss the Claima return to work. POC 59 APA 2 and 3 11/01/2022 The Respondent failed to implement a phased return to work for the Claimant. POC 59 APA 2 and 3 11/01/2022 The Respondent failed to discuss possible reasonable adjustments. POC 59 APA 2 and 3 11/01/2022 On his return to work, the Claimant was told to go home and was escorted out of the building by security. The POC 60 Case Number: 2202088/2022 28 of 33 159 Claimant was humiliated in front of his colleagues. APA 2 and 3 26/01/2022 The Claimant was invited to a return-to-work meeting on 31/01/2022. POC 68 APA 2 and 3 31/01/2022 At his return-to-work meeting, the Claimant was ambushed by Paul Stringer who conducted an investigation conduct and informed the Claimant that he was suspended with immediate effect. POC 70 APA 2 and 3 31/01/2022 The Claimant was suspended. POC 70 APA 2 and 3 31/01/2022 The Respondent raised bogus allegations against the Claimant. APA 2 and 3 February to April 2022 The Respondent made unlawful deductions from the POC 74 APA 2 and 3 FebruaryApril 2022 The Respondent failed to pay the Claimant his full pay while suspended and placed him on statutory sick pay allowance. POC 74 APA 2 and 3 07/02/2022 only partially upheld. POC 75 APA 2 and 3 24/02/2022 appeal was chaired by Guy Rampe who was not impartial. POC 77 POC 71 Case Number: 2202088/20227.4 If so, and sions because of a protected act by the Claimant?[8]Unlawful deduction from wages under s.13 ERA 19968.1 What amount of pay was the Claimant contractually entitled to under his contract of employment between February and April 2022 as regards sickness absence? The Claimant contends that:8.1.1 in Febru slip was £1100 less than his contractual pay entitlement without any explanation provided by the Respondent;8.1.2 between February 2022 and 6 April 2022, the Claimant was placed on statutory sick pay (SSP) allowance. The Claimant says that he was entitled to at least 50 further hours of full contractual sick pay (guaranteed following a TUPE transfer in 2010) and this was not paid. In the alternative, the Claimant contends that in any event, the Claimant was entitled to full pay under his contract of employment whilst suspended (see Simmonds v Croydon London Borough Council 2300719/2022 (EJ Fowell, 22 May 2023). 29 of 33 160 APA 2 and 3 March 2022 The Respondent delayed in grievance appeal. POC 79; 80. APA 2 and 3 29/03/2022 e appeal was not successful. POC 81 APA 2 and 3 Between 11/11/2021 and 29/03/2022 grievance dated 11 November 2021 was generally flawed, unfair and improper. Case Number: 2202088/20228.2 In the circumstances, did the Claimant receive less pay from the Respondent than he was contractually entitled to between February and April 2022?[9]Constructive unfair dismissal under the ERA 19969.1 The Claimant resigned on 6 April 2022.9.2 Was the Claimant constructively dismissed by the Respondent on 6 April 2022? In particular:9.2.1 Was there an actual or anticipatory breach of contract by the Respondent? The Claimant relies on the cumulative conduct of the Respondent alleged in paragraphs 4, 5, 6, 7 and 8 above.9.2.2 If so, was the breach, or anticipatory breach, of contract sufficiently important and serious so as to constitute a repudiatory breach giving rise to an entitlement to terminate the contract of employment?9.2.3 If so, did the Claimant resign in response to the breach, or anticipatory breach, of contract or did the Claimant resign for some other unconnected reason?9.2.4 If so, did the Claimant affirm the breach, or anticipatory breach, of contract by delay or for any other reason?9.3 If so, what was the reason (or if more than one the principal reason) for the at reason a potentially fair reason under s.98(1) ERA 1996?9.4 If there was a potentially fair reason for dismissal, was the dismissal fair or unfair under s.98(4) ERA 1996? Namely, in the circumstances, did the Respondent act reasonably in treating the reason as a sufficient reason for 30 of 33 161 Case Number: 2202088/2022 dismissing the Claimant, taking into account its size and administrative resources and having regard to equity and the substantial merits of the case?[10]Time limits 10.1 In relation to any allegation of an unlawful act under the EqA 2010, was the complaint presented outside the limitation period? If so:10.1.1 Do any of the acts constitute a continuing act and if so when did the last act cease? The Claimant commenced Early Conciliation with ACAS on 21 February 2022. The relevant date for d be 22 November 2021.10.1.2 If any act occurred outside the limitation period, is it just and equitable to extend that period?[11]Remedies11.1 If the Claimant has suffered unlawful discrimination:11.1.1 What pecuniary losses has he suffered which was caused by that discriminatory conduct?11.1.2 Has he failed to take reasonable steps to mitigate his loss?11.1.3 Is the Claimant entitled to an award for injury to feelings and, if so, at what level?11.1.4 Is the Claimant entitled to an award for personal injury? 31 of 33 162 Case Number: 2202088/202211.1.5 Is the Claimant entitled to a declaration that:(a) sanctions were too harsh;(b) the Claimant was subject to unlawful discrimination; and(c) the Respondent failed to make reasonable adjustments?11.2 If the Claimant was unfairly dismissed:11.2.1 Is the Claimant entitled to a basic award and if so, how much?11.2.2 Is the Claimant entitled to a compensatory award and, if so, what level of award would be just and equitable for the Claimant to receive?11.2.3 Has the Claimant failed to take reasonable steps to mitigate his loss?11.2.4 Is the Claimant entitled to a declaration that he was subject to unfair dismissal?11.3 If there was unlawful deduction from wages, how much was unlawfully deducted from the Claimant?11.4 Is the Claimant entitled to aggravated damages?11.5 Is the Claimant entitled to interest at the appropriate rate?11.6 Is the Claimant entitled to an ACAS uplift on any compensatory award? 32 of 33 163 Case Number: 2202088/2022 1 Reserved Judgment EMPLOYMENT TRIBUNALS BETWEEN Claimant and Respondent Mr R Assan Vigilant Security (Scotland) Ltd t/a Croma Vigilant CORRECTED JUDGMENT OF THE EMPLOYMENT TRIBUNAL1 SITTING AT: London Central ON: 29 May-10 June 2024; 6-7 August 2024 (in chambers) BEFORE: Employment Judge A M Snelson MEMBERS: Mr P Alleyne Mr R Baber On hearing the Claimant in person and Mr P Collyer, consultant, on behalf of the Respondent, the Tribunal determines that: (1) The complaints of victimisation are well-founded to the extent stated in the accompanying reasons. (2) The complaint of unfair (constructive) dismissal is well-founded. (3) The claims under the Equality Act 2010 other than those referred to in para (1) above (namely those for direct race discrimination, race-related harassment, discrimination arising from disability and failure to make reasonable adjustments) fail on their merits and/or on the ground that they were presented out of time and the Tribunal has no jurisdiction to consider them. (4) The complaint of unauthorised deductions from wages, having been settled during the hearing, is dismissed on withdrawal. (5) A private preliminary hearing for case management shall be held by CVP before the Judge sitting alone on 2 October 2024 at 10.00 a.m. with two hours allocated for the purposes of agreeing the remedies issues for determination, giving all necessary directions and setting a date for the remedies hearing. 1 The only correction, made following final disposal of the remedy claims on 29 April 2025, names the Claimant in the title above, the earlier anonymisation order having lapsed. Case Number: 2202088/2022 2[1]Alleged Breach(s) (sic) of Croma and Client Confidentiality Agreements/Policies/GDPR Legislation. Namely, incorrect and intentional theft of data belonging to Croma employees and Client representatives.[2]Alleged Solicitation of Occupiers/Previous Occupiers within your Management Capacity of Security Manager, namely contacting clients of a personal nature to obtain opportunities for a family member.[3]Alleged Performance Management Failures. Namely, false representation of Rosters/Incorrect Management of Annual Leave Authorisation and Cover Planned.[4]Alleged as laid out above, by your actions you have brought the Company into disrepute to which may harm client/contractual trust. Notice was given of a reconvened investigation meeting to take place on 3 February 2022. The letter also advised the Claimant that he was not permitted to attend the workplace or to speak with any colleagues without prior permission from the company. Case Number: 2202088/2022 23 103 Neither of the witnesses who gave evidence before us on behalf of the Respondent even attempted to substantiate any alleged or suspected wrongdoing on the part of the Claimant. Their understanding was that the ‘disciplinary investigation’ had arisen out of allegations raised by Mr Brady. Mr Arscott admitted that, at the behest of Mr Brady, he had conducted a detailed investigation into the Claimant’s email and mobile phone use and passed on the information so gathered. It is evident from this material that his investigation took place after the presentation of the grievance of 11 November 2021. 104 The ‘disciplinary investigation’ went no further. The Claimant was signed off sick again on 1 February 2022. He did not return to work thereafter. Resignation 105 Item 62 The Claimant relies on his alleged constructive dismissal as an act of direct race discrimination, alternatively race-related harassment. 106 As we have noted, while he was away on sick leave, the Claimant’s grievance and grievance appeal were concluded. 107 A new area of contention also arose during this period: the Claimant complained of an unauthorised deduction from his pay in February 2022. That, as already noted, was an issue which the parties resolved privately before closing submissions, and we will say no more about it. 108 By a letter to Mr Rampe dated 6 April 2022, the Claimant resigned with immediate effect. In summary, he repeated many of the complaints set out in his grievance (and in his claim before us) and made the general case that he was the victim of continuous bullying and racism dating back to 2011. That treatment had had a catastrophic effect upon his mental health. He had pursued a grievance, which had not resolved the matter because it had been flawed as a matter of process and had reached unjust findings on his complaints. He had then been punished for raising the grievance and the treatment which he had received on 31 January 2022 had affected his already frail mental health to the extent of causing him to feel suicidal. He had no option but to resign. 109 On 11 April 2022, Mr Rampe wrote to the Claimant asking him to reconsider his resignation and allowing him seven days to do so. The Claimant replied on 19 April 2022, confirming his resignation, stating that he considered that the Respondent had fundamentally breached his contract of employment and that he could no longer tolerate the way in which black employees were treated and the company’s lack of care towards his mental health. Miscellaneous matters 110 Item 42 As we understood him, the Claimant did not maintain any complaint against the Respondent for unauthorised sharing of his medical data and there is no reference to this complaint at all in his closing submissions. In the course of cross-examination of the Claimant, Mr Collyer appeared to acknowledge that his firm Case Number: 2202088/2022 24 (which provides HR and business support services) , rather than the Respondent, had committed some form of data breach, and apologised for that error. 111 In case we have misinterpreted the Claimant’s position, and he does seek to maintain his complaint as originally formulated, we record that it appears to be undisputed that, for the purposes of obtaining advice from Mr Collyer’s firm, the Respondent does, and did, pass to that firm medical information (such as fit notes) relating to its employees and that, in line with this practice, it did, on or about December 2021, share certain medical data of the Claimant. 112 Item 46 Here the Claimant complains of being excluded from access to his work email account on 6 December 2021. He was not directly challenged on the facts but it was suggested on behalf of the Respondent that this may have been the result of passwords being changed by the network provider. The Respondent adduced no evidence to explain the exclusion. 113 Item 47 This is a complaint that Mr Paul Williamson, Executive Director, ignored the Claimant’s complaint about Mr Brady handling his grievance. We are not in a position to make any finding beyond registering the obvious point that, whether through the intervention of Mr Williamson or otherwise, the Claimant’s wish that the grievance should not be allocated to Mr Brady was met. Contextual and background findings 114 We were presented with a lot of ‘background’ evidence. We have had regard to all of it, but it would not be proportionate to deal with it fully here. In support of the race discrimination and race-related harassment claims, the Claimant placed particular emphasis on the following facts, most of which are established on his unchallenged evidence. 115 At a staff Christmas party in December 2011, ‘Mr X’ became very drunk and sexually harassed and assaulted the Claimant and Mrs Parkes. There may well have been other victims as well. The Claimant and Mrs Parkes both felt that the Respondent’s response to their complaints was so insensitive and inadequate as to exacerbate, rather than assuage, their upset and distress. 116 In or about 2015, Mr Brady produced a black penis sex toy in the office and said to the Claimant, ‘Look, it’s a black cock’. 117 At or around the same time, Mr Brady showed the Claimant a photograph of a chimpanzee and said that he had met his (the Claimant’s) brother when he had gone to the zoo. 118 During the over-long, covertly-recorded meeting of 9 September 2020, Mr Arscott, in a characteristically incoherent ramble, told the Claimant, ‘… unfortunately for you, [CD], as we’ve always used the chief coconut, you are the big head puncher here, people are gonna come and look at you … point the fingers, and whether you are right or wrong people are gonna say [CD], [CD], [CD].’ There was no complaint from the Claimant at the time. Case Number: 2202088/2022 25 119 We were shown the Respondent’s ‘Bullying and Harassment Policy’. The current version dates from 6 October 2021. It offers definitions of bullying and harassment and proclaims the importance of ‘standards of everyday behaviour that contribute to a working environment in which mutual respect and individual dignity are maintained.’ The document does not appear to address discrimination or victimisation at all. 120 We were told that, in recent years, the Respondent has conducted annual ‘e-learning’ training courses on equality, diversity and inclusion issues. We were shown no evidence concerning the content of the courses, the quality of the teaching, the engagement of the staff members involved or the monitoring of the effects of the training. Facts relating to the Respondent’s knowledge of the Claimant’s disability 121 The Claimant was signed off sick with depression for a period of some weeks in 2012. As noted above, EJ Davidson found that the Claimant’s condition at that time did not amount to a disability. Following his return to work he had an excellent attendance record with minimal sickness absence until he was signed off on 23 November 2021. 122 On 10 September 2020 the Claimant reminded Mr Rampe of his breakdown in 2012 and said that he was experiencing similar feelings. And on 8 November 2021 he broke down in front of Mr Brady and mentioned a prior episode of tearfulness in the presence of Mr Rampe. The Claimant did not rely on any other evidence as suggestive of an underlying mental health condition prior to 23 November 2021, much less any evidence pointing to the existence of such an underlying condition having been apparent to the Respondent at any point up to that date. In an email to Mr Brady of 25 November 2021 he said that the company ‘must be aware of the state I’m in.’ The GP’s ‘fit note’ of 4 January 2022 cited ‘mixed anxiety and depression disorder’ but, as already mentioned, also declared the Claimant fit to return to work on a phased basis from one week later. Non-claims etc 123 Items 38 and 43 These cannot stand as claims. They are purely narrative, reciting the fact of the grievance presented on 11 November 2021 and the fact of the Claimant having directed a complaint to Mr Brady on 3 December 2021. 124 Item 57 The complaint of unauthorised deductions from wages, although presented as a claim for direct race discrimination or race-related harassment as well as a straightforward money claim, was, as we have stated, fully settled in the course of the hearing. In the circumstances, we are not in a position to make any findings as to whether there was an unauthorised deduction from wages or, if it was, whether it also involved direct discrimination or harassment. Case Number: 2202088/2022 26 Secondary Findings and Conclusions Rationale for primary findings 125 In arriving at our primary findings we have had careful regard to all the evidence put before us. We have considered the coherence, internal consistency and general plausibility of the witness evidence. We have also attached particular importance to contemporary documents. In setting out our primary findings above, we have on occasions drawn attention to features of the evidence which we regard as persuasive. Such comments should not be read as constituting the only grounds on which we have resolved factual issues. 126 We have also been struck by some oddities in the case. It is, for example, surprising that the Claimant pursues tenuous allegations of race-based treatment going back to 2011 but makes no claim based on what is said to have been overtly race-based detrimental treatment and harassment by Mr Brady in or around 2015. Likewise, it is puzzling that if he really did interpret the ‘coconut’ remark of Mr Arscott on 9 September 2020 as a racial slur, he should have passed up the opportunity to base a claim on it. These quirks have caused us to view parts of his case as less than convincing. 127 It can be seen that, on a number of occasions we have been unable to accept the Claimant’s account of events. We acquit him of setting out with a cynical strategy of misleading the Tribunal but we find that his utter conviction in the validity of every complaint he makes has tended to impair his objectivity and his powers of recall are less than perfect. He also has a tendency to put his interpretation on events and statements and there is a risk of his evidence becoming distorted as a consequence. So, for example, Mr Michael did not say that the guards were thick and not fit for purpose, as he asserted. His message began with the word ‘If’. Nor did anyone call the Claimant (or anyone else) a ‘shaved monkey’. These are not the only instances of assertions on his side which were liable to mislead. 128 Another trait of the Claimant’s is what appears to us to be an acute sensitivity to criticism. This mindset immediately treats any critical comment as unfair and sometimes wrongly perceives wholly unobjectionable communications as personal criticism. The group email complaint (item 35) is a case in point. We find this defensiveness reproduced in equal measure in Mr Arscott. The unfortunate result is that witnesses of this ilk are often quite unable to see or understand the opposing point of view and the weight of their evidence is diminished accordingly. 129 Worse, in the case of Mr Arscott, was a preparedness, when at fault, or at risk of being seen as at fault, to manipulate, and even manufacture, facts and events in order to show himself in the best possible light and cast the blame on to someone else. His behaviour in relation to the report to Mrs Wright of 4 March 2021 was particularly troubling to us. That he felt willing to stoop so low, to the disadvantage of the Claimant, caused us to view him and his evidence with profound suspicion. (For the avoidance of any doubt, we have found in the Claimant’s conduct no comparable underhand behaviour apart from his routine covert recording of conversations.) Case Number: 2202088/2022 27 Direct race discrimination Detrimental treatment? 130 The first question is whether any detrimental treatment is established. We find that most complaints fall at this first hurdle. What follows should be read against our primary findings set out above. Allegedly abusive and/or offensive remarks 2011-2016 131 Item1 The abuse of the Claimant by Mr Dineen, (although on our findings, not overtly racial) clearly amounted to a detriment. 132 Items 2 and 3 As to item 2, clearly Mr Cowle’s conduct caused a detriment to the Claimant. As to item 3, Mr Moakes certainly took a ‘light touch’ approach to the Claimant’s complaint, suggestive of a worryingly casual approach to the need to protect staff members from discrimination and harassment. But we find that his actions were not detrimental to the Claimant. He wanted the matter dealt with confidentially and informally. He was not disadvantaged by the line which Mr Moakes took. (Of course, had we accepted the Claimant’s case in full, and found that Mr Moakes had simply dismissed the episode as an example of ‘office banter’ we would have reached a quite different conclusion on the question of detriment.) 133 Item 4 There is no evidence of any complaint having been raised with the Respondent. In the circumstances, there is no basis for a finding of detrimental treatment in the form of a failure by the Respondent to take appropriate action. 134 Item 5 On our primary findings, Mr Moakes’s action did not amount to any form of racial insult or taunt. If he was insensitive in the way in which he placed the mug on the table, that does not meet the threshold of an actionable detriment. 135 Item 6 As to the disparaging comment of Mr Gizzi, our finding in relation to item 1 is repeated: detriment is established. 136 Item 7 The comment complained of was made by Mr Micheal, an employee of one of the Respondent’s clients. Clearly, he felt that the security guards were inattentive and slipshod. But there is no objective basis for reading into his words any stronger or more offensive implication. In our judgment it was no detriment to the Claimant that Mr Rampe did not take the matter up or challenge the remark. 137 Item 8 We are satisfied that Mr Rampe’s thoughtless question about the Claimant’s English was seen by him as offensive and clears the low bar for establishing a detriment. 138 Item 10 On our primary findings, there was no detrimental act or omission on the part of Mr Rampe. The Claimant did not present him with an allegation about Mr Moakes warranting investigation. 139 Item 11 The ‘shaved monkey’ conversation was certainly peculiar but, on our primary findings, it entailed no detrimental treatment of the Claimant. Case Number: 2202088/2022 28 140 Item 12 Mr Moakes’s remark about the two officers may have been distasteful to the Claimant. But, on our primary findings, there was no racial element in what he said. Nor does the evidence point to any racial implication. In the circumstances, there was no detriment to the Claimant in hearing the comment. 141 Item 13 We find that the Claimant was offended by Mr X’s remark about ‘bloody foreigners’ and, again, a detriment is shown. 142 Item 15 Our observations in relation to item 12 apply equally here. Indeed, the Claimant’s case on detriment is weaker because Mr Michael’s remark was about officers at another site, rather than colleagues who worked alongside the Claimant. 143 Item 16 Hearing a second-hand report of someone referring to an unnamed people in the Control Room as brainless did not amount to a detriment to the Claimant. 144 Item 17 On the facts, this allegation falls away. The Claimant does not establish that Mr Arscott made the disgraceful remark attributed to him. Secret monitoring of the Claimant’s computer 145 Item 9 Plainly, the Claimant suffered a detriment resulting from Mr Moakes secretly monitoring his computer in 2013. Promotion and career progression 146 Item 14 The Claimant suffered an obvious detriment when his promotion application in 2016 was ignored. 147 Item18 On our primary findings, it was no detriment to the Claimant to require him to go through the ordinary recruitment process in pursuit of his application for the Security Manager vacancy. Alleged acts and/or omissions of Mr Arscott as the Claimant’s manager (2018-2021) 148 Item 19 This general complaint of oppressive management by Mr Arscott fails on our primary finding that it is not established in fact. 149 Item 20 We are clear that it was no detriment to the Claimant to receive emails from Mr Arscott sent outside normal working hours. But we are just persuaded that the low threshold of a detriment is surmounted by the unreasonably aggressive complaint that the Claimant had not responded within about an hour of starting his morning shift. His reference to his email having been sent 14 hours before was obviously unfair in circumstances where, on his own case, there was no expectation of employees responding to emails outside working hours. 150 Item 21 Here the Claimant fails for want of any detrimental treatment being shown. There was no ‘ambush’ on 31 January 2020 and, as the Claimant well knew, Mr Arscott did not seek to accuse him of dishonesty on that occasion (or any other). Case Number: 2202088/2022 29 Nor did the ‘not happy’ email of 6 Oct 2021 occasion actionable detriment to the Claimant. It was simply an unremarkable instance of Mr Arscott’s brisk and interventionist management style. 151 Item 22 We find no detriment in Mr Arscott’s question about the Claimant’s home life, given the context and in particular fact that (as was common ground before us) the two would on occasions share information about domestic events and concerns. The offensive question which the Claimant attributes to Mr Arscott is not established in fact. 152 Item 23 The detriment which the Claimant alleges is not made out in fact. We reject the complaint that Mr Arscott shouted at him and blamed him for the bicycle thefts. If and in so far as he criticised the Claimant for unclear communication with Mrs Wright, that was, or would have been, unfair. But that is not the detriment relied upon. 153 Item 24 It was not a detriment for Mr Arscott to write to the Claimant out of working hours (see above). Nor was it a detriment to ask him what ‘corrective measures’ he had in mind. There had been a security failure. The Claimant was the Security Manager. 154 Item 25 Our primary findings do not reflect well on Mr Arscott as a manager, but we find no actionable detriment in him encouraging the Claimant to take disciplinary measures against a guard whose performance he saw as unacceptable. 155 Item 26 It was not a detriment to the Claimant to hear one of his colleagues likened to a sheep in the headlights. 156 Item 27 It was not a detriment to the Claimant to hear Mr Arscott’s dismissive comment about Mrs Parkes having to stand for two hours. 157 Item 28 Here we find detrimental treatment clearly established. It was certainly a detriment to the Claimant to moot a PIP because his work was, on any view, not such as to call for any formal performance improvement measure. The mere mention of it was wholly unjustified and bound to undermine his confidence. 158 Item 29 On our primary findings, this item discloses no arguable detriment to the Claimant. It was open to Mr Arscott to encourage him to consider his disciplinary options in connection with the cycle theft episode. 159 Item 32 Mr Arscott’s bad-tempered exchange with Mrs Parkes did not occasion any detriment to the Claimant. 160 Item 33 In the context of a heated discussion we find no detriment in Mr Arscott telling the Claimant, ‘Get off your fucking high horse and listen to me.’ 161 Item 34 Here again, detriment is clearly shown. Mr Arscott’s treatment of the Claimant in relation to the intruder episode was not merely unfair but disgraceful. Case Number: 2202088/2022 30 162 Item 35 There was obviously no arguable detriment in Mr Arscott sending the testy group email of 1 November 2021. It did not identify the Claimant (or anyone else) as personally at fault for delaying the submission of rosters. 163 Item 36 We find that Mr Arscott subjected the Claimant to a detriment by unreasonably and without evidence accepting Mrs Wright’s complaint that his communications on the data issue had been unclear and, without warrant, giving him a warning to ‘be careful’. Alleged acts and/or omissions of Mr Rampe in September 2020 164 Item 30 On our primary findings, the Claimant establishes no detriment here. He made no formal complaint to Mr Rampe on 10 September 2020 and the conversation ended with the mutual understanding that no further action would be taken. 165 Item 31 Mr Rampe’s comment that the conduct of a Team Leader should be reviewed entailed no detriment to the Claimant. Alleged acts or omissions of Mr Brady in November/December 2021 166 Item 37 On our primary findings, no detrimental treatment by Mr Brady is established. He properly responded to the Claimant’s allegations of race discrimination by inviting him to set them out in writing in accordance with the Respondent’s procedures. 167 Item 41 We do find detrimental treatment in the request for return of the work mobile phone. The equipment amounted to a small fringe benefit, of which the Claimant was deprived. Conduct and outcome of the grievance process and related events 168 Item 39 The Respondent did not subject the Claimant to a detriment by ‘attempting’ to hold the grievance hearing on 25 November 2021. The hearing was fixed for that date and Mr Brady rightly prepared for it to proceed on that day. 169 Item 40 On the other hand, we are persuaded that Mr Brady’s aggressive email threatening to close the grievance the following day if nothing was heard in the meantime did constitute detrimental treatment. The context is significant: the Claimant was signed off sick with a mantal health condition. 170 Item 44 No detriment is established here because the Respondent rightly reacted to the Claimant’s challenge to Mr Brady’s involvement in the grievance process by removing him as the nominated decision-maker. 171 Item 45 It was not a detriment to the Claimant that his request for the grievance to be considered by an external decision-maker was not granted. There was no suggestion that the Respondent’s procedures made any provision for external decision-making or that the course which he proposed had ever been followed before. Case Number: 2202088/2022 31 172 Item 47 On our primary findings, no detriment is shown. It is not established that Mr Williamson took no action on the Claimant’s concern about Mr Brady being entrusted with the grievance. In any event, action was taken and the concern resolved. 173 Item 48 This complaint identifies no detriment: as in the case of item 44, the Respondent corrected the error of selecting an interested (first-instance) decision-maker (here, Mr Rampe). 174 Item 52 This complaint repeats item 45 or item 48 (or both). No detriment is shown. 175 Item 58 Although the point is debatable, we are prepared to treat the Ms Boyd’s decision on the grievance, to the extent that it rejected the complaints, as detrimental to the Claimant. 176 Item 59 It was plainly detrimental to the Claimant to assign his appeal to Mr Rampe, about whom the grievance (in part) complained. 177 Item 60 The Claimant rightly made no complaint in his closing submissions about delay in relation to the completion of the grievance appeal his closing submissions. The time taken was reasonable and the delay (such as it was) did not amount to a detriment to the Claimant. 178 Item 61 On the grievance appeal, our approach is the same as in relation to the first-instance decision (item 58): we treat the unfavourable outcome as having caused a detriment to the Claimant. 179 Item 63 The complaint of a generally ‘flawed’ grievance process is, we find, a valid complaint of detrimental treatment. We have found a significant defect in the procedure followed (item 59). Moreover, in our judgment the appointment of Ms Boyd as first-instance decision-maker was inappropriate and unfair given the seniority of the people about whom the Claimant complained. Although she and Mr Rampe both took their functions seriously and carried out creditable work in addressing the grievance, the Claimant is entitled to regard the outcomes as detrimental to him (items 58 and 61) not solely because they were largely unfavourable but also because of the identities and statuses of those who delivered them. The Claimant also rightly identifies a further defect at the appeal stage in the failure of Mr Rampe to log and preserve the notes of his investigation Sickness absence and the events of 11 January 2022 180 Items 49, 50, 51 and 53 No detriment is identified. No return to work had been agreed. When he attended for work without warning and without arrangements having been agreed, the Claimant was properly sent home. We have found that this was not done in an offensive or humiliating way. These things having been said, although we do not consider that he was unfairly treated, we see force in the observations of Ms Boyd and Mr Rampe that the Respondent’s processes would Case Number: 2202088/2022 32 benefit from being revised to ensure clarity in future about return to work arrangements. Suspension and allegations of wrongdoing 181 Items 54, 55 and 56 Plainly, the Respondent’s treatment of the Claimant on 31 January 2022 in calling him into a ‘disciplinary investigation meeting’ without warning, suspending him and sending him a list of unparticularised allegations of gross misconduct constituted detrimental treatment. Miscellaneous matters 182 Item 42 As noted above, the Claimant did not appear to pursue this complaint. In any event, on our primary findings, no detriment is shown in the Respondent’s routine sharing of medical information relating to the Claimant with their HR consultants. 183 Item 46 We find a detriment in the Claimant’s unexplained exclusion from access to his email account in December 2021. 184 Item 47 In light our primary findings, no detriment is shown here. If Mr Williamson did not take action it was because, by some independent agency, the Claimant’s concern about Mr Rampe being asked to consider the grievance (at first instance) had already been addressed. N short, he was not disadvantaged. 185 Item 57 As we have noted, the claim for unauthorised deductions from wages was compromised during the hearing. We were presented with no evidence or argument upon which to base any finding as to whether the Claimant was subjected to any detriment in relation to his pay. Detrimental treatment ‘because of’ race? 186 Most of the claims have fallen away as a result of our primary findings of fact and/or our conclusions on the question of detriment. We will now review the complaints which have survived our initial analysis. The headings under which we consider them have been modified where appropriate to take account of our analysis so far. Abusive/offensive comments by white peers (2011-2015) 187 In this group are items 1, 2, 6, 8 and 13. We start with items 1 and 6. We have found that on both occasions no reference was made to the Claimant’s race or colour. The surrounding evidence is not sufficient, in our judgment, to warrant any inference of a discriminatory motivation behind the remarks. 188 Items 2 and 13 involve evidently race-based conduct. The ‘because of’ link is established 189 That leaves item 8. Here the detrimental treatment which we have found plainly was ‘because of’ (ie materially influenced by) the Claimant’s race. It is Case Number: 2202088/2022 33 possible that Mr Rampe would have addressed an equally insensitive question to an imaginary comparator of the Claimant’s (say a white Caucasian born and brought up in Eastern Europe) but we have no evidence to make good that theory. In our judgment his overtly race-based treatment of the Claimant is more than sufficient to shift the burden to the Respondent to disprove discrimination. That burden is not discharged. Mr Moakes monitoring the Claimant’s work laptop (2013) 190 We find in item 9 nothing pointing to any racial motivation. Mr Moakes’s reprehensible misconduct (for which he was ultimately dismissed) was not confined to the Claimant and there is no evidence to suggest that it was, or appeared to be, aimed at any particular racial group or cohort. Ignoring the Claimant promotion application (2016) 191 This detrimental treatment (item 14) is wholly unexplained. The suggestion that the Claimant may have been perceived to lack relevant qualifications is groundless. As we have established, he obtained a relevant qualification in 2015. Moreover, he had gained ample experience over his years in the organisation and it was not, and could not be, suggested that he was not worthy of consideration for the Security Manager post by 2016. We have considered additional relevant circumstances. The gross racial imbalance within the managerial cohort lends support to the Claimant’s perception of a culture in which it is an accepted norm that visible ethnic minority staff populate the lower orders of the organisation and management is confined to white men. In our view, the Claimant has done enough to transfer the burden of proof to the Respondent. That being so, our finding is inevitable. For want of any evidence to disprove discrimination, we find that the Claimant’s race was, at the very least, a material factor in the failure to engage with and process his promotion application. Detrimental acts of Mr Arscott (September 2019 to November 2021) 192 We have found detrimental treatment on the part of Mr Arscott in items 20, 28, 34 and 36. The first was an aggressive and unreasonable email. It did not reflect well on Mr Arscott and was, we think, characteristic of his managerial style. But we find no evidence that he reserved for the Claimant a more hostile or abrasive manner than that which he employed with all his other ‘reports’. The second was raising the question of a PIP with the Claimant in the aftermath of the cycle theft episode. We have found that this was a subject mooted by Mr Arscott at the behest of Mrs Wright. He was anxious to please her and we fear that he took the cowardly line of least resistance. In doing so he ignored his responsibility to act fairly and reasonably towards the Claimant. There may have been lessons to learn arising out of the theft, but there was manifestly no possible ground for a formal measure such as a PIP and it was inevitable that even raising the subject was likely to undermine him and damage his morale and confidence. In particular, Mrs Wright’s complaint that the Claimant was at fault for sending mixed messages was not justified and Mr Arscott did not act fairly in treating it as valid without even inquiring into the matter and reading the relevant emails. The third matter (item 34) was, we think, even more reprehensible. The pleaded complaint, established to our satisfaction, was that Mr Case Number: 2202088/2022 34 Arscott overreached himself in pressu rising the Claimant to fail the probation guard. (It is one thing to remind a subordinate manager of his powers, quite another to interfere with his managerial discretion.) That was a relatively minor detriment, consistent with Mr Arscott’s managerial style. Much more serious was his device of rewriting the report over the intruder episode and then (behind the Claimant’s back) seeking to place the blame on him for the way in which it had been handled. To our minds, that conduct was shameful and contemptible. The detriment under item 36 arose in a similar way. Instead of addressing the facts clearly explained to him by the Claimant, Mr Arscott took the unreasonable line of Mrs Wright that his communication had been unclear. There was no basis for that and his warning to the Claimant to ‘be careful’ was quite unfair. 193 So much for our review of Mr Arscott’s behaviour. What, if anything, points to it having any racial component? In our judgment, there is precious little, if anything, tending to that interpretation of events. It seems to us that the main problems with Mr Arscott’s management of the Claimant consisted of his aggressive and insensitive style (particularly damaging given that the Claimant is plainly a highly sensitive person), his willingness to subordinate his duty to act fairly to his anxiety to please the client and his determination to protect himself from being exposed as personally at fault. These traits are not to be admired, but they do not point to a racial motivation. Rather, they tend to explain conduct as resulting from other preferences or priorities. We have reviewed all of the background and contextual evidence. The ‘coconut’ comment has certainly given us pause. The expression is commonly used as a form of insult accusing a person of colour of betraying his or her non-white identity (brown on the outside, white on the inside). The context in which Mr Arscott used it lends some support, we think, to his evidence before us that he was not familiar with the commonly-accepted meaning of the expression. There is nothing in the surrounding dialogue consistent with him intending to throw in the direction of the Claimant a sudden, unprovoked, gratuitous and grossly offensive racial slur. That said, his claim that he used the word to convey the idea of a target for hostile fire (the coconut in the fairground coconut shy) must also be treated with caution, particularly given the provenance of that evidence. In short, we are left with a puzzle. But we note that this was, in any event, an isolated incident. It gave rise to no complaint at the time. It is not included as one of the Claimant’s numerous legal claims in these proceedings. In the end, we do not feel able to attach much weight to it. Having considered all the evidence with care, we find no sound basis for supposing that Mr Arscott would have treated a hypothetical white comparator of the Claimant’s differently. On the contrary, we are satisfied to a high standard that that comparator would have been treated exactly as the Claimant was. This case is a good example of the truism that unreasonable behaviour is not be equated with discriminatory behaviour. Detrimental acts of Mr Brady (after 11 November 2021) 194 These (items 40, 41 and 54-56) consist of the unreasonably aggressive email of 25 November 2021, the requirement to return the mobile phone and the events of 31 January 2022 including the Claimant’s suspension. For want of any evidence to the contrary, we feel bound to characterise Mr Brady as the actor, or main actor, in each case. In our view, there is nothing of substance to suggest that the Claimant’s race was a material factor in the detrimental treatment which he experienced. Case Number: 2202088/2022 35 Rather, as we will explain, we find compelling force in the parallel complaints that these acts were motivated by the fact that the Claimant had presented a grievance making allegations of serious and long-standing racial discrimination. The fact that Mr Brady had, some years earlier, engaged in offensive race-based conduct in the workplace (relied on by the Claimant as relevant ‘background’) does not, in our judgment, operate to transfer the burden to the Respondent in relation to these claims. The time interval and the quite different character of the detriments under consideration argue against the inference on which the discrimination and harassment claims depend. And the timing of the detriments argues powerfully for the proposition that they were driven by the protected act and not by prejudice based on the Claimant’s race. Denial of access to the email account (December 2021) 195 Here again (item 46) there is nothing pointing to race as a factor behind the sudden withdrawal of the Claimant’s access to his email account. By contrast, as we will explain, the inference that this event was precipitated by his presentation of his grievance on 11 November 2021 is powerful and persuasive. Conduct and outcome of the grievance process 196 We have reminded ourselves of our findings on items 58, 59, 61 and 63. Although the grievance exercise was flawed for the reasons we have given, we find no ground for the complaint that the resulting detriments were motivated by considerations of race. The defects seem to us to reflect a managerial approach which accords little importance to sound employee relations practice generally – a deficiency which the organisation may come to regret. But there is simply nothing before us tending to support a theory that the Claimant’s experience is explained in any way by his race. On the contrary, we are confident that, in the case of an imaginary white Security Manager pursuing a similar grievance in like circumstances, the same procedural errors would have been made. As to the actual decision-making of Ms Boyd and Mr Rampe, we find, again, no evidence whatsoever suggestive of an unlawful racial motivation on the part of either. Indeed, as we have noted, to a significant extent, our findings correspond with theirs. Constructive dismissal 197 We refer to our findings below on the unfair dismissal claim. The Claimant was constructively dismissed and accordingly, for the purposes of the 2010 Act, s39(2)(c), a dismissal is established. 198 Was the Claimant dismissed ‘because of’ race? The ‘reason’ for a constructive dismissal is the reason for the treatment which precipitates the resignation. As we explain below, our conclusion is that the Claimant felt driven to resign on 6 April 2022 because(a) he was convinced that the litany of acts or omissions complained of in his grievance were instances of race discrimination against him;(b) those complaints were largely rejected in the grievance process; and(c) the completion of the grievance process left him still under suspension and facing what he regarded as groundless and contrived disciplinary allegations. We have no doubt that he regarded his race as a central reason for his constructive Case Number: 2202088/2022 36 dismissal. Our objective assessment, however, is otherwise. There were certainly race-based incidents at several points in the long story. But our focus must be upon the dismissal and what precipitated the resignation through which it was effected. As we will explain, we are satisfied to a high standard that the treatment which caused the Claimant to resign amounted to a series of acts of victimisation. We find that the discriminatory treatment which we have identified had occurred sporadically between about 2011 and 2016 and was part of the background but did not form a material part of his decision to resign in April 2022. Time 199 Our analysis so far has eliminated all complaints of direct race discrimination apart from items 2 (Mr Cowle’s ‘slave’ comment), 8, (Mr Rampe’s insensitive question in 2012), 13 (Mr X’s ‘bloody foreigners’ remark) and item 14 (the Respondent’s failure to acknowledge and engage with the Claimant’s application for the Security Manager vacancy in 2016). 200 The first question is whether these events can be seen as together constituting ‘conduct extending over a period’ for the purposes of the 2010 Act, 123(3). In our view, the clear answer is no. The intervals are very substantial. The actors are different. And there is little or nothing qualitatively to link the conduct complained of in the four cases. 201 It follows that the claims are between 10.5 and 5.5 years out of time. Would it be ‘just and equitable’ to apply time limits of such an order in place of the primary three-month period (s123(1))? The answer is obvious. It would not. The Claimant has been on inquiry as to his rights throughout. He has been keeping notes and records of what he regards as relevant workplace incidents throughout. He has had access throughout to trade union support. He is an intelligent and resourceful person. There is, in our view, no good reason to exercise our discretion to bring these exceedingly stale claims within the Tribunal’s jurisdiction and doing so would run counter to the core purpose of the 2010 Act (and the Employment Tribunal system generally), which is to provide swift, practical, accessible and economical justice in employment disputes. 202 For the avoidance of doubt, we decline to consider applying to any other claim a longer limitation period (under s123(1)) than the ‘default’ three months. It would be obviously idle to bring within time claims already found to be without merit. And had we found merit in any of the other claims brought years out of time, we would have dismissed those too on jurisdictional grounds. Race discrimination – summary 203 For the reasons stated, we have concluded that: (a) most claims fail for want of any detrimental treatment being shown; (b) all but four of those left fail because the detriments did not involve any race discrimination; and (c) those four fail because they were brought out of time and the Tribunal has no jurisdiction to consider them. Case Number: 2202088/2022 37 Race-related harassment 204 The claims under this head mirror those for direct race discrimination and we have considered them as alternatives (a claimant running such parallel claims may succeed on one or the other, but not on both: see the 2010 Act s212(1)). Arguable acts of harassment? 205 We have reminded ourselves that the test under the 2010 Act, s26 sets a higher standard than s13. Some detriments will not also qualify as being capable of amounting to unlawful harassment, given the demanding language of s26(1)(b). In our judgment, the complaints under items 8, 14, 34, 58, 59, 61 and 63, although identifying arguable detriments, do not establish arguable acts of harassment. Item 8 (Mr Rampe’s ill-judged question about English) was insensitive and clumsy. But it was not intended to hurt or offend and it was a ‘one-off’. In context (although clearly ‘related to’ race – see below) its effect did not meet the standard of gravity set by s26(1)(b). The failure to acknowledge and process the promotion application in 2016 (item 14) was certainly a disappointment for the Claimant but again, in our view, did not (certainly as a ‘one-off’) stand as an omission capable of constituting harassment. Item 34 was not able to amount to harassment because Mr Arscott’s duplicitous behaviour in relation to the intruder incident was not motivated by a proscribed purpose (the purpose was to protect Mr Arscott’s interests, not to create any particular kind of environment for the Claimant) and did not have a proscribed effect on the Claimant (since he did not see the report at the time). The complaints about the grievance (items 58, 59, 61 and 63) again do not meet the requirements of s26(1)(b). He did not like the outcomes and makes valid criticisms of the process. These are properly seen as detriments but we cannot accept them as instances of harassment: the requisite proscribed purpose or effect is not shown. As for constructive dismissal (item 62), we see no ground for treating that as an act of harassment in itself. The acts which precipitated the resignation and entitled the Claimant to treat himself as constructively dismissed (in particular the acts of, or directed by, Mr Brady) certainly meet the standard set by s26(1)(b), but that does not, we think, turn the resignation itself (the act of accepting the breach as discharging the contract) into an act of harassment. Unwanted conduct related to race? 206 We bear in mind that the ‘related to’ formulation under s26(1)(a) may be satisfied by a looser connection with the relevant protected characteristic than the ‘because of’ link under s13. But the distinction here seems to us to make no difference. Our reasons for finding no discrimination under s13 apply (with necessary modifications) to our analysis under s26. The acts capable of amounting in principle to harassment were, we find, not in any sense related to the Claimant’s race or to race in general. It follows that, since we have found that items 8 and 14 do not meet the standard set by s26(1)(b), the harassment claims which remain are limited to items 2 and 13. Case Number: 2202088/2022 38 Time 207 In any event, we are satisfied that all complaints of harassment inevitably fail on time grounds, for the reasons stated above in relation to direct race discrimination. And again, there can be no question of extending time in relation to any other claims since we have found all to be without merit. Race-related harassment – summary 208 Our conclusions are that: (a) most claims fail for want of acts capable of amounting to harassment being shown; (b) ff those which survive, all but two fail because they are not shown to rest on conduct ‘related to’ race; and (c) presented out of time and the Tribunal has no jurisdiction to consider it. Discrimination arising from disability The Respondent’s knowledge of the disability 209 It was helpfully agreed between the parties during the hearing that the grounds of resistance and list of issues should be amended to include a defence under the 2010 Act, s15(2), mirroring the corresponding defence to the reasonable adjustments claim (schedule 8, para 20). 210 We remind ourselves of our primary findings relevant to the issue of knowledge. The Respondent is fixed with collective knowledge of the Claimant’s brief period of sickness absence in September and October 2012 attributed to ‘depression’ (found by EJ Davidson not to have amounted to a disability), after which he had had an excellent sickness absence record and no episode of poor mental health until 23 November 2021. He was certified fit to return on a phased basis by 11 January 2022 and it was common ground that he was fit to return on 31 January 2022. Upon his suspension he was signed off sick from 1 February 2022 and remained on sick leave for two months while the grievance process was concluded, following which, a week later, he resigned. 211 Given the language of the 2010 Act, s15(2), we are satisfied that the Respondent has discharged the burden of proving that the Claimant is not entitled to protection against discrimination arising from disability. The Respondent did not know of his disability at any time during his employment. There is no basis for saying that he had any disability before 23 November 2021. And there is no basis for saying that the Respondent had any reason to regard him as disabled during the short-term period of sick leave which followed. The evidence was that he had made a good recovery by early January and was well-placed to return to his full-time pattern in short order. The new period of sick leave starting on 1 February 2022 had every appearance of resulting from the distress and shock brought about by the events of the day before. There was nothing pointing to a long-term mental health disability then or during the 10 weeks between then and the Claimant’s resignation. His sick record since 2007 strongly suggested that the absences from 23 November 2021 were short-term reactions to workplace stress and trauma. If the Respondent’s treatment of him has caused him a psychiatric injury, it may have to answer for that Case Number: 2202088/2022 39 in another forum, but in our view it cannot be held liable in this Tribunal under s15 because it is fully entitled to the knowledge-based defence which s15(2) affords it. 212 Although the claim fails here, we think it right briefly to complete the analysis. Unfavourable treatment? 213 The Claimant relies on five complaints of unfavourable treatment, which correspond with items numbered 39, 40, 41, 57 and 63 for the purposes of the race discrimination claims. (Again, we will adopt the same numbering.) 214 For reasons given above in relation to the detriment claim, we find no unfavourable treatment in item 39. Nothing was done about which a reasonable complaint could be made. Item 40 stands as a good complaint of unfavourable treatment in light of the unreasonable terms of Mr Brady’s email of 25 November 2021. Likewise item 41 (request for the return of the mobile phone). Item 57 must be deleted as the Tribunal is in no position to make any finding on whether the Claimant was subjected to any unfavourable treatment in respect of his pay. Item 63 also stands: defects in the grievance process can properly be seen as amounting to unfavourable treatment of the Claimant. Because of something arising in consequence of the Claimant’s disability? 215 The unreasonable and aggressive email (item 40) was sent because of something arising in consequence of the Claimant’s disability, namely his absence. The same goes for item 41. The defects in the grievance process (item 63) cannot be seen as any sort of consequence of the disability. Proportionate means of achieving a legitimate aim? 216 Writing an unreasonable and aggressive email was not a proportionate means of doing anything. The Respondent argued that the request for the return of the mobile phone was a proportionate measure in pursuit of a legitimate aim, but their case was not made good on evidence. In particular, it is not shown that the practice asserted by the Respondent is followed in the generality of cases. And even if the practice exists and is ordinarily followed, we have not been shown evidence-based grounds for regarding it as a proportionate measure. Discrimination arising from disability – summary 217 We conclude that: (a) all claims under s15 fail because the Respondent discharges the burden of making out the knowledge-based defence under s15(2); (b) but for that, we would have found that the claims under items 40 and 41 only were well-founded; and (c) no time point arises. Case Number: 2202088/2022 40 Failure to make reasonable adjustments The Respondent’s knowledge of disability and substantial disadvantage 218 We have reminded ourselves of the terms of the 2010 Act, sch 8, para 20(1), cited above. In Wilcox v Birmingham CAB Services Ltd UKEAT/0293/10/DM, in a judgment handed down in the EAT on 23 June 2011 Underhill P (as he then was) interpreted the predecessor provision in these terms (para 37): … to spell it out, an employer is under no duty … unless he knows (actually or constructively) both (1) that the employee is disabled and (2) that he or she is disadvantaged by the disability in the way set out in [the section]. … element (2) will not come into play if the employer does not know element (1). 219 We do not need to repeat our findings above in relation to the Respondent’s defence to the s15 claim. Our finding that it did not know of the Claimant’s disability at any material time is fatal to the claim for failure to make reasonable adjustments. 220 But again, we will briefly complete the analysis. Provisions, criteria and practices (‘PCPs’) 221 The first PCP (‘PCP1’) is said to be the Respondent’s practice on scheduling, chairing and handling grievances. We find that the Respondent had such a practice and that it was applied to the Claimant as to other members of the Respondent’s workforce. 222 The second PCP (‘PCP2’) is said to be the Respondent’s practice of denying employees access to their work email accounts and requiring them to return company mobile phones when absent (including when on sick leave). We find that the Respondent had some such policy or practice but we are far from clear as to how it was usually applied. It was applied to the Claimant. 223 The third PCP (‘PCP3’) is said to be the Respondent’s practice on employees returning to work after sickness-related absence. We find that the Respondent had such a practice and that it generally involved holding a return-to-work meeting. We further find that the practice was applied to the Claimant. Substantial disadvantage? 224 The Claimant’s case becomes obscure at this point. It is not clear to us how the practice of scheduling, chairing and handling grievances (PCP1) is said to have caused a substantial disadvantage to the Claimant in comparison with persons who are not disabled. In any event, we find no such disadvantage. As we have noted, the Claimant was disadvantaged by procedural flaws in the grievance process but it is not shown that those flaws were features of, or consequences of, the PCP. To put it another way, it is not shown that the relevant practice included appointing inappropriate decision-makers at the first-instance and appeal stages or failing to retain notes at the appeal stage or, even if it did, that these particular features put the Claimant at a substantial disadvantage in comparison with persons who were not disabled Case Number: 2202088/2022 41 225 Turning to PCP2, we note our findings (above and, in relation to the victimisation claim, below) that the Claimant was subjected to detrimental treatment in being required to return his work mobile phone and losing access to his work email account. But he does not demonstrate to our satisfaction that the (poorly-defined) practice put him at a substantial disadvantage in comparison with persons who were not disabled. On the face of it, the short-term loss of these minor benefits was a minor disadvantage to him and not a materially more substantial disadvantage than a non-disabled person would have experienced. 226 PCP3 does not work. The Respondent did have a PCP of holding return to work meetings. That practice plainly did not put the Claimant at a substantial disadvantage in relation to non-disabled employees. The burden of his complaint is that a return to work meeting was not held in his case on 11 January 2022. As we have explained, we are not persuaded that that is a good complaint of detrimental treatment for the purposes of the race discrimination claim (the GP had merely said that he was fit to return on a phased basis from that date), and we can understand why the Respondent favoured completing the grievance process before arranging his return. But in any event, the complaint does not work in the context of reasonable adjustments. It is not said (let alone shown) that the PCP was to decline to hold return to work meetings when grievances were underway. Still less is it said that such a PCP produced a substantial disadvantage for the Claimant. Without those building blocks, the argument that the Respondent acted unlawfully in failing to adjust the PCP by holding a return to work meeting on 11 January 2022 (or on any date before 31 January 2022) becomes unsustainable. Reasonable steps? 227 The Claimant having failed to establish any substantial disadvantage consequential upon any of the three PCPs, it follows that no duty to make any reasonable adjustment arose. In the circumstances, it would not be proportionate to subject the proposed ‘steps’ to scrutiny here but we would observe that most are in any event misconceived as failing to fit within the statutory scheme which envisages steps which it is reasonable for the employer to have to take in order to prevent the relevant PCP in each case from causing the relevant substantial disadvantage. In one instance, a proposed adjustment also falls foul of the principle in the Tarbuck case which we have cited above (List of Issues, para 5.12, item 3). Failure to make reasonable adjustments – summary 228 The complaints of failure to make reasonable adjustments fail because: (a) the Respondent makes out the knowledge-based defence under the 2010 Act, sch 8, para 20(1); and (b) the complaints would have been dismissed on the ground that the Claimant had failed to establish any duty on the part of the Respondent to make any adjustment contended for. Case Number: 2202088/2022 42 Victimisation Protected acts 229 The Claimant relied on three protected acts. The first was on 8 November 2021 when he complained at a meeting with Mr Brady about being intimidated by Mr Arscott and said that he believed the treatment was race-based and that he was planning to bring a formal grievance. The second was the grievance itself (already mentioned) issued on 11 November 2021. The third was an email to Mr Brady on 3 December 2021 in which he raised several complaints including the allegation that the request for him to return his work mobile phone amounted to race discrimination. 230 We find that the acts asserted are established in fact and that, in all three cases, the Claimant’s communications amounted to protected acts for the purposes of the 2010 Act, s27(2)(d). Detriments? 231 Of the detriments relied on for the purposes of the race discrimination claims, 23 are repeated as allegations of victimisation. For reasons already given, most fall away on the ground that no detriment is shown. The nine which remain correspond with items numbered 40, 46, 54-56, 58, 59, 61 and 63 for the purposes of the race discrimination claims. Necessarily, these stand as detriments in relation to victimisation also. As explained above, will adopt the same numbering in the analysis which follows. Detriment(s) done because the Claimant had done the protected act? 232 The surviving complaints divide into two groups: those arising out of the conduct and outcome of the grievance and the rest. We will address them in turn. 233 The complaints in the first group (items 40, 58, 59, 61 and 63) face the familiar difficulty afflicting victimisation claims based on the employer’s management of a grievance. The complaint arises necessarily in the context of the protected act, and, but for the protected act, the treatment complained of would not have occurred, but that is not to say that the protected act is the cause or reason (or even a material cause or reason) for the relevant detriment and common sense often argues that it is not. Here, the grievance process was the direct consequence of the main protected act, namely the grievance of 11 November 2021. But we see no basis for thinking that, had the Claimant raised a grievance which did not attract the protection of the 2010 Act, s27 (say one that covered the same ground save for making allegations of general unfairness rather than discrimination), he would have been any more favourably treated as a matter of process or outcome. In short, we see nothing to warrant an analysis elevating the ‘but for’ cause into the operating cause (or an operating cause) of the detrimental treatment. 234 The remaining detriments (items 46 and 54-56) we see quite differently. Here the evidence establishes a startling chain of events beginning within days of the grievance being issued with the Claimant being required to return his mobile phone (we imagine that item 41 was accidentally omitted from the list of victimisation Case Number: 2202088/2022 43 detriments) and finding his email access disconnected (item 46), followed in short order by what the Claimant quite understandably describes as the ‘ambush’ on 31 January 2022 (items 54-56) when, entirely without warning, he was suspended and required to attend a disciplinary investigation meeting to discuss wholly unparticularised charges of very serious wrongdoing. Grotesque unfairness of that sort calls for an explanation. We have received none. No evidence has been put before us to show that there was ever any basis for holding a disciplinary investigation. No allegation of wrongdoing was put to the Claimant in cross-examination.3 As to what it was that caused Mr Brady, or anyone in authority, so suddenly to become convinced that a loyal employee of almost 15 years’ unblemished service needed to be suspended on the spot and investigated on suspicion of gross misconduct, no witness before us was able to say. We were told that Mr Brady had left the company, but we are quite unable to accept that neither Mr Arscott nor Mr Rampe nor anyone else in the higher management had any information to give on the matter, or that no document could be found casting light on decision-making relating to the Claimant over the weeks after the grievance was issued. 235 As noted in our judgment above, the complaint of unfair constructive dismissal (item 62 for the purposes of the 2010 Act claims) succeeds. As will be further explained below, we have found that the constructive dismissal was brought about by a combination of acts and events including, to a significant extent, those comprehended by items 41, 46 and 54-56. It follows that if the treatment amounted to victimisation, so did the dismissal. 236 In the circumstances, we find that the removal of access to email and in particular the suspension and so-called investigation were extraordinary, groundless devices for which no explanation whatsoever has been given. The timing, starting within a few weeks of the grievance, strongly suggests that the grievance was the catalyst. On any view, there is information from which an inference could be drawn that the relevant detriments were done because of the protected act of 11 November 2021 (it is not necessary to include the other two). Accordingly, the burden has shifted to the Respondent to show that it did not victimise the Claimant by the treatment relied upon. It has wholly failed to discharge the burden. Victimisation - summary 237 To the extent stated, the claims for victimisation based on items 41, 46 and 54-56, and the consequential constructive dismissal (item 62) succeed. 238 No issue of jurisdiction arises. Unfair dismissal 239 We have reminded ourselves of our primary findings of fact and our secondary findings and conclusions in respect of the direct discrimination, harassment and victimisation claims. We will not repeat those here. 3 Although the hearing was listed for ‘liability-only’, it was agreed that the evidence should address some strictly remedies issues, including contributory conduct, causation of loss, Chaggar, Polkey etc. Case Number: 2202088/2022 44 Constructive dismissal? 240 The Claimant contends that, by its treatment of him throughout his period of service, the Respondent repudiated his contract of employment and that he accepted the repudiation by his resignation on 6 April 2022. Although we have found that many of his complaints lack substance, we are quite satisfied, on the strength of our primary findings, that the necessary repudiation is established. Indeed, it seems to us that we need look no further back than 31 January 2022. Regardless of the prior events, we are satisfied that the Respondent’s conduct on that day in subjecting him without warning to a groundless suspension and purporting to initiate a groundless disciplinary investigation more than comfortably met the Malik test (see above). We are also satisfied that the Claimant’s resignation was, in substantial part, driven by the events of 31 January 2022. We should add that it was rightly not argued that the interval between 31 January 2022 and the resignation had the consequence that he lost his right to treat himself as constructively dismissed (whether through waiver or affirmation). That would have been an exceedingly difficult argument to maintain. The Claimant was perfectly entitled to see out the grievance process before taking his final decision. 241 Our reasoning so far dictates the finding that the Claimant was constructively dismissed. Somewhat surprisingly, Mr Collyer ran the optimistic argument that even if there was a constructive dismissal, it was fair, the postulated ground being ‘some other substantial reason’ (see the 1996 Act, s98(1)(b)), namely the breakdown in the relationship between the parties. With respect, that submission is hopeless. The ‘reason’ for a constructive dismissal is the reason for the treatment which precipitates the resignation. It is hopeless to argue that the reason for the Respondent’s mistreatment of the Claimant which we have found established on the evidence was that the relationship between the parties was damaged. 242 It follows that the complaint of unfair dismissal succeeds. Chaggar, Polkey causation of loss etc 243 We invited the parties to address in their closing submissions any Chaggar/Polkey issues as well as causation of loss and (if applicable) contributory conduct, hoping that, if any claim succeeded on liability, our findings on these points (strictly remedies issues) would improve their chances of resolving privately what remained for decision. But having considered the submissions with care we have decided that all remedies questions must be stood over to a dedicated remedies hearing. Our reason is that we could not be sure that the Claimant had fully grasped and engaged with the difficult concepts involved and there was a risk of him, as the unrepresented party, suffering serious disadvantage as a consequence. 244 Accordingly, we have listed a preliminary hearing for case management on 2 October at 10.00 a.m. by CVP before the judge sitting alone for the purposes of discussing and agreeing the remedies issues and setting a timetable for a remedies hearing (probably with a provisional time allocation of three days) to be held before the full Tribunal. The parties should attend on 2 October ready with dates to avoid in the ‘window’ from December 2024 to June 2025. Case Number: 2202088/2022 45 Outcome and Postscript 245 For the reasons given, the claims succeed to the extent sated in our judgment above, paras (1) and (2) but otherwise fail. 246 This has been costly and painful litigation for all concerned. The best hope must be that valuable lessons may be learned from it. In particular, those who lead the Respondent would do well to reflect soberly on the distance between the shining ‘military standards’ it proclaims and the unedifying (not to say, at times, squalid) reality which it has fallen to us to examine. 247 The parties might also benefit from making an early and concerted effort to bring what is left of this unhappy conflict to an end through constructive and realistic negotiation. They are reminded that any communication aimed at settling a legal dispute is ‘privileged’ and the Tribunal must not be told anything about it. 248 Failing private resolution, the parties are expected to prepare carefully to assist the judge on 2 October to manage the litigation forward to the best advantage of all concerned. Employment Judge Snelson _________________________ Date: 30 August 2024 Corrected on: 29 April 2025 Judgment entered in the Register and copies sent to the parties on 2 May 2025… ................................... for Office of the Tribunals Case Number: 2202088/2022 1 EMPLOYMENT TRIBUNALS BETWEEN Claimant and Respondent Mr R Assan Vigilant Security (Scotland) Ltd t/a Croma Vigilant