Mr P Sogbodjor v WKCIC T/a Capital City College Group: 2202583/2023
EMPLOYMENT TRIBUNALS
Case No 2202583/2023
Between
Mr P SogbodjorClaimantWKCIC T/a Capital City College GroupRespondent
Before
Employment Judge P KlimovMr A Leonhardt (instructed by counsel) for claimantMr A Johnston (instructed by counsel) for respondentDate 26 February 2024
JUDGMENT
The unanimous judgment of the Tribunal is as follows:[1]The claimant’s complaint of direct race discrimination with respect to the allegations:a. Ms Cooke raising serious allegations of misconduct against the Claimant on or around 23 February 2021;b. The Respondent suspending the Claimant on/around 24 February 2021;c. The Respondent refusing the Claimant’s appeal against suspension or around 15 March 2021;d. The Respondent’s refusal to allow the Claimant third party support at meeting(s) with Ms Cooke;e. The Respondent’s assertion that the Claimant should attend a purported ‘protected conversation’ with the Respondent to consider the termination of his employment.f. The refusal of a risk assessment for the Claimant’s office in or around June 2021;g. The refusal to provide an alternative office space for the Claimant;h. Ms Cooke’s allegations regarding the Claimant, which he considered unjustified and malicious, made by email dated 11 June 2021;i. The Claimant was included on a ‘blacklist’ of staff at City and Islington College against whom action was to be taken by HR.j. Attempts to pressure the Claimant to accept additional duties and workload.k. Ms Cooke’s demand for disciplinary action against the Claimant on 23 September 2021;l. Ms Cooke’s allegations regarding the Claimant, which he considered unjustified and malicious, made via email dated 8 December 2021; andm. The Respondent’s on-going failure, or refusal, to provide the Claimant with documentation from the internal processes relating to him. was not presented within the applicable time limit. It is not just and equitable to extend the time limit. This part of the claimant’s complaint of direct race discrimination is therefore dismissed.[2]The claimant’s complaint of victimisation with respect to the allegations:a. The Respondent’s assertion that the Claimant should attend a purported ‘protected conversation’ with the Respondent to consider the termination of his employment.b. The refusal of a risk assessment for the Claimant’s office in or around June 2021;c. The refusal to provide an alternative office space for the Claimant;d. Ms Cooke’s allegations regarding the Claimant, which he considered unjustified and malicious, made by email dated 11 June 2021;e. The Claimant was included on a ‘blacklist’ of staff at City and Islington College against whom action was to be taken by HR.f. Attempts to pressure the Claimant to accept additional duties and workload.g. Ms Cooke’s demand for disciplinary action against the Claimant on 23 September 2021;h. Ms Cooke’s allegations regarding the Claimant, which he considered unjustified and malicious, made via email dated 8 December 2021; andi. The Respondent’s on-going failure, or refusal, to provide the Claimant with documentation from the internal processes relating to him. was not presented within the applicable time limit. It is not just and equitable to extend the time limit. This part of the claimant’s complaint of victimisation is therefore dismissed.[3]The remaining parts of the claimant’s complaints of direct race discrimination and victimisation are not well-founded and are dismissed.[4]The claimant’s application for a costs order fails and is dismissed.
REASONS
[1]The unanimous judgment of the Tribunal (with reasons) was announced to the parties at the end of the hearing on 26 February 2026. The judgment was Tribunal on 11 March 2024 requesting written reasons. Unfortunately, due to an administrative oversight, the request had not been brought to my attention. The claimant’s solicitors wrote again on 23 October 2024, chasing their earlier request for written reasons. That second request was passed to me on 25 October 2024. I asked the Tribunal staff to write to the parties with an apology for the delay and to explain that the written reasons would now be prepared but it might take a few more weeks. That letter was sent to the parties on 30 October 2024.[2]I attended to this task as soon as I was able to. In the interest of getting these written reasons to the parties as soon as possible, I focused on setting out the Tribunal’s analysis and conclusions (as these were announced to the parties at the hearing) and not on detailed facts of this case (most of which were not in dispute) or the relevant legal principles (there was no disagreement between the parties on any material points of law). I, therefore, kept these two sections relatively brief, instead setting out our factual findings and the applied law in the analysis and conclusion section.
The claim
[3]The claimant presented his claim on 14 March 2023, having undergone ACAS early conciliation between 4 January and 15 February 2023.[4]The claim contained two complaints:(i) direct race discrimination (s.13 of the Equality Act 2010 (“EqA”) and(ii) victimisation (s.27 EqA).[5]On 20 April 2023, the respondent presented a response defending the claim.[6]On 19 June 2023, the case came for a preliminary hearing before an Employment Judge Goodman. The case was listed for a final hearing and the usual case management orders given. The following list of issues was settled: The Issues 44. The issues the Tribunal will decide are set out below. 1. Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 5 October 2022 may not have been brought in time.1.2 Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?1.2.2 If not, was there conduct extending over a period?1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time? Direct Race Discrimination (Equality Act 2010 section 13) 2. Did the Respondent treat the claimant in the following ways:a. Ms Cooke raising serious allegations of misconduct against the Claimant on or around 23 February 2021;b. The Respondent suspending the Claimant on/around 24 February 2021;c. The Respondent refusing the Claimant’s appeal against suspension or around 15 March 2021;d. The Respondent’s refusal to allow the Claimant third party support at meeting(s) with Ms Cooke;e. The Respondent’s assertion that the Claimant should attend a purported ‘protected conversation’ with the Respondent to consider the termination of his employment.f. The refusal of a risk assessment for the Claimant’s office in or around June 2021;g. The refusal to provide an alternative office space for the Claimant;h. Ms Cooke’s allegations regarding the Claimant, which he considered unjustified and malicious, made by email dated 11 June 2021;i. The Claimant was included on a ‘blacklist’ of staff at City and Islington College against whom action was to be taken by HR.j. Attempts to pressure the Claimant to accept additional duties and workload.k. Ms Cooke’s demand for disciplinary action against the Claimant on 23 September 2021;l. Ms Cooke’s allegations regarding the Claimant, which he considered unjustified and malicious, made via email dated 8 December 2021;m. The Respondent’s on-going failure, or refusal, to provide the Claimant with documentation from the internal processes relating to him.n. The Respondent provided a period of only four weeks following the First Review Meeting for the Claimant to demonstrate improvement in attendance whilst on long-term sickness absence, which he considers to have been unrealistic.o. The Respondent listed the Second Review Meeting immediately following the First Review meeting without any period of monitoring and prior to implementing OH recommendations;p. The Respondent’s arrangements to contact the Claimant bi-weekly from 27 February 2023 during his on-going sickness absence;q. the Respondent’s attempts to treat the absence review meeting on 20 February 2023 as the meeting with senior manager and HR recommended by OH;r. Listing1 a Stage 3 absence review meeting immediately following the Second Review Meeting without any period of monitoring and/or prior to implementing OH recommendations and asserting that the Claimant is at risk of dismissal?2.1 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether s/he was treated worse than someone else would have been treated.2.2 If so, was it because of he was black? 3. Victimisation (Equality Act 2010 section 27)3.1 Did the claimant do a protected act as follows:3.1.1 The grievance dated 17 May 2021?3.1.2 The addition of more matters to the grievance on 30 September 2022?3.2 Did the respondent do the following things: a. The Respondent’s assertion that the Claimant should attend a purported ‘protected conversation’ with the Respondent to consider the termination of his employment. b. The refusal of a risk assessment for the Claimant’s office in/around June 2021; c. The refusal to provide an alternative office space for the Claimant; d. Ms Cooke’s allegations regarding the Claimant made via email dated 11 June 2021, which he considered unjustified and malicious; e. The Claimant was included on a ‘blacklist’ of staff at City and Islington College against whom action was to be taken by HR. f. Attempts to pressure the Claimant to accept additional duties and workload. g. Ms Cooke’s demand for disciplinary action against the Claimant on 23 September 2021; h. Ms Cooke’s allegations regarding the Claimant made via email dated 8 December 2021, which he considered unjustified and malicious; i. The Respondent’s on-going failure, or refusal, to provide the Claimant with documentation from the internal processes relating to him. 1 At the start of the final hearing the claimant applied to amend “Listing” to “Threatening to list”. The respondent did not object. The amended was granted. j. The Respondent provided a period of only four weeks following the First Review Meeting for the Claimant to demonstrate improvement in attendance whilst on long-term sickness absence. The claimant says this is unrealistic. k. The Respondent listed the Second Review Meeting immediately following the First Review Meeting without any period of monitoring and/or prior to implementing OH recommendations; l. The Respondent’s arrangements to contact the Claimant bi-weekly from 27 February 2023 during his on-going sickness absence; m. The Respondent’s attempts to treat the absence review meeting on 20 February 2023 as the meeting with senior manager and HR recommended by OH; n. Listing2 a Stage 3 absence review meeting immediately following the Second Review Meeting without any period of monitoring and/or prior to implementing OH recommendations and asserting that the Claimant is at risk of dismissal.3.3 By doing so, did it subject the claimant to detriment?3.4 If so, was it because the claimant did a protected act? 4. Remedy for discrimination or victimisation4.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?4.2 What financial losses has the discrimination caused the claimant?4.3 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?4.4 Should interest be awarded? How much? Note: the draft list of issues referred to an uplift in award for breach of the ACAS Code on Discipline and Grievance, but it is not stated there or on the grounds of claim what breach is alleged.
The Issues
[7]Paragraph 8 of EJ Goodman’s case management orders stated: Claims and Issues “8. The claims and issues, as discussed at this preliminary hearing, are listed in the Case Summary below. If you think the list is wrong or incomplete, you must write to the Tribunal and the other side by 10 July 2023. If you do not, the list will be treated as final unless the Tribunal decides otherwise.” 2 At the start of the final hearing the claimant applied to amend “Listing” to “Threatening to list”. The respondent did not object. The amended was granted.[8]On 10 July 2023, the claimant’s solicitors wrote to the Tribunal asking the issue of whether the respondent was in breach of ACAS Code of practice on discipline and grievance and if so whether it is just and equitable to uplift any award to be added to the list of issues. That application was granted by EJ Goodman on 21 August 2023. Otherwise, neither party raised any further comments on the list of issues. At the start of the final hearing, I confirmed with the parties that the list of issues was agreed, subject to changing “listing” to “threatening” at 2r and 3.2n.[9]On 29 September 2023, the claimant’s solicitors wrote to the Tribunal as follows: “In respect of the Claimant’s claim that the Respondent directly discriminated against him on the grounds of his race (colour) by its attempts to pressure the Claimant to accept additional duties and workload in/around September 2021, as particularised at paragraphs 26 and 46(10) of the Grounds of Complaint, the Claimant relies on Elizabeth Millard as an actual comparator and/or a hypothetical comparator. The Claimant relies on a hypothetical comparator in respect of all other claims of direct discrimination on the grounds of his race (colour).”[10]There was further acrimonious correspondence between the parties with respect to disclosure, which led to the claimant applying for an order for specific disclosure and a costs order against the respondent. I shall deal with this matter separately at the end of the judgment.
The evidence
[11]The Tribunal heard from the claimant and his trade union representative, Ms Nicola Eyidah, and from three witnesses for the respondent:(i) Philippa Cooke (“PC”), the claimant’s manager at the relevant times,(ii) David Smith (“DC”), Assistant Director for Student Services, and(iii) Trovene Hartley (“TH”), HR Director. The respondent also presented a witness statement by Ahsev Merdjan (“AM”), Head of Hub (Head of Student Services – Holloway campus) and the claimant’s manager from 5 October 2023 but did not call her to give evidence under oath. All other witnesses gave evidence under oath and were crossexamined on their evidence.[12]The Tribunal was referred to various documents in a 1055-page bundle of documents the parties introduced in evidence. The Tribunal only read the documents referred to in witness statements, in cross-examinations and final submissions.[13]The parties presented an agreed chronology and cast list.[14]Both parties presented detailed closing submissions supplemented by oral arguments. The Tribunal is grateful to both Counsel for their detailed submissions and other assistance to the Tribunal.
The Facts
[15]The following facts were agreed by the parties and presented in the agreed chronology: 2007 Start of employment Late 2020 Restructure of Student Services January/February Claimant runs online FIFA competition which offered Amazon vouchers as prizes 8 February 2021 First Black Lives Matter online meeting 22 February 2021 Second Black Lives Matter online meeting 24 February 2021 Claimant is suspended Early March 2021 Appeal against suspension refused 16 March 2021 Disciplinary investigation meeting with claimant conducted by Anthony Robinson 29 March 2021 Claimant returned to work 31 March 2021 Investigation confirmed no case to answer 14 May 2021 Claimant informed of office move 17 May 2021 Claimant raises grievance, including allegation of race discrimination against Philippa Cooke (1st Protected Act) 21 May 2021 Meeting between Claimant and Joanna Shankland (and others) in which protected conversation suggested Before 8 June 2021 Claimant’s belongings and sports equipment moved to new office 8 June 2021 Claimant required to move offices and risk assessment request refused 11 June 2021 Philippa Cooke emails managers suggesting Claimant’s objection to move was to avoid working his hours (p469) 30 June 2021 Grievance hearing conducted by Mike Magras 23 July 2021 Grievance response sent 29 July 2021 Claimant indicates appeal, and requests documents and evidence used in grievance and disciplinary investigations 25 August 2021 Trovene Hartley emails the Claimant suggesting he is in the process of negotiating settlement involving exit 7 September 2021 Claimant submits SAR to obtain documents for grievance 10 September 2021 Philippa Cooke indicated that she was not prepared to undertake mediation as she perceived that the Claimant was using it to stop engaging with her reasonable requests 15 September 2021 Colleen Marshall emails list of “specific cases that cause significant distress to the student experience, their colleagues and managers”, including the Claimant 23 September 2021 Scheduled grievance meeting postponed after Claimant requests documents (p560) 23 September 2021 Philippa Cooke emails Colleen Marshall and David Smith stating “disciplinary action needs to take place, as any interactions with [the Claimant] is viewed as discriminating against him” 27 September 2021 Scheduled meeting for grievance appeal (postponed) October 2021 Claimant begins sickness absence for stress 8 December 2021 Philippa Cooke emails other managers alleging the Claimant spends time on “external football responsibilities” (p612) 29 March 2022 Kishan Narayan confirms grievance documentation not available and suggests fresh grievance (p658) 9 May 2022 Claimant begins first sickness absence for stress 13 May 2022 Student Engagement Officer expresses concern about being given sports roles (p670) 13 May 2022 SAR responded to and documents provided (p673) 16 May 2022 Claimant returns to work 6 June 2022 Ahsev Merdjan met with Claimant in order to begin a stress risk assessment 27 July 2022 Claimant’s colleague, Yasmin Whittaker-Khan, submits grievance against Philippa Cooke, alleging race discrimination (p701) 9 September 2022 Grievance appeal meeting scheduled for 16 September 2022 (p708) 15 September 2022 Parties agree to defer appeal meeting (p711-713) 30 September 2022 Claimant indicates he wished to consider further issues since original grievance (2nd Protected Act) (p710) 10 October 2022 Claimant begins long-term sickness absence for stress 14 October 2022 Appeal hearing of grievance 21 November 2022 Reconvened grievance hearing (p809) 1 December 2022 Grievance appeal outcome sent (p806) 4 January 2023 Claimant notifies ACAS 20 January 2023 Stage 1 absence review meeting, Level 1 Warning given 7 February 2023 Claimant attends Occupational Health assessment and report prepared (p915) 15 February 2023 ACAS send EC Certificate 20 February 2023 Stage 2 absence review meeting (p939) 24 February 2023 Outcome from Stage 2 absence review meeting sent & third review meeting scheduled for 11 April 20232 March 2023 Scheduled meeting with management following complaint, did not take place as HR manager ill 14 March 2023 ET1 Presented 23 March 2023 Claimant meets with management to discuss steps to facilitate return (p941) 17 April 2023 Stage 2 absence review meeting (p960)[16]The following people were involved in the relevant events: Peter Sogbodjor (Claimant) Sportsmaker / Student Engagement Officer (Holloway and Angel campuses) Yasmin Whittaker-Khan Youth Worker (Angel campus) Nicola Eyidah Claimant’s Trade Union representative Philippa Cooke Head of Hub (Angel Campus) and Claimant’s line manager from 1 December 2020 until 26 March 2021 Leigh Fletcher Head of Hub (Holloway Campus) and Claimant’s line manager from 26 March 2021 until 5 October 2021 Ahsev Merdjan Head of Hub (Holloway Campus) and Claimant’s line manager from 5 October 2021 David Smith Assistant Director for Student Services (Collegewide), line manager to both Heads of Hub Joanne Shankland Assistant Principal (Finsbury Park) and Director of Student Services (College-wide), line manager to David Smith Colleen Marshall Vice-Principal (Curriculum & Students), (Collegewide) Anthony Robinson Head of Learner Experience and Industry Placements, disciplinary investigation officer Mike Magras Head of Inclusive Learning (Westminster Kingsway), grievance officer Seval Fadil Assistant Principal (Holloway), grievance appeal officer Trovene Hartley Head of Human Resources Malcolm Plummer Head of Human Resources Business Partnering Kishan Narayan Associate Human Resources Business Partner[17]Considering how this case was decided I do not need to recount a detailed history of this matter. Most of the facts were not in dispute. Where relevant, our factual findings are explained in the analysis and conclusions section.[18]By way of a short summary, the respondent is a group of further education colleges providing education and training for students, business clients and stakeholders. The claimant is of mixed race origin, African and British. He began employment with the respondent in 2007 as a Youth Worker at City & Islington 6th Form College. From around mid-2018, he was employed as ‘College Sports Maker’ at City and Islington College across all its sites (Angel, Holloway and Finsbury Park). His role as College Sports Maker sat within the Student Engagement team. His primary duties were to develop and promote sports and physical activities to students.[19]There were three other members of the Student Engagement team, at each of the College’s three sites. Their roles involved the planning and delivery of non-sporting enrichment and engagement activities for students.[20]In late 2020 PC became the claimant’s line manager. At the same time the respondent sought to re-organise work in the Student Engagement team, by removing some of the claimant’s sport duties and assigning to him responsibilities to non-sport student engagement activities. That change also involved the respondent trying to impose a new job description on the claimant. The claimant resisted the change.[21]During the pandemic lockdown in-person sport activities were suspended. The claimant tried to run online sports activities for students during this period, including yoga, dance and workout sessions. One of such activities organised by the claimant was an online FIFA (PlayStation 4 football game) competition to take place during February 2021. The claimant gained agreement from the College management to have small monetary prizes in the form of Amazon vouchers given to the winners.[22]The claimant also assisted his colleague, Yasmin Whittaker-Khan (“YWK”), a Youth Worker at Angel with whom he shared an office space prior to the lockdown, to organise events related to a Black Lives Matter project, in collaboration with Insaan Culture Club, in which YWK was a director. The events involved inviting external speakers to give talks to the College students using MS Teams platform, and later Instagram. These events were known to PC. She indicated her support for them.[23]On 24 February 2021, the claimant was suspended together with YWK pending the investigation into the allegations of conflict of interests, use of College name and email address for a private company, and use of College property and funds for private company use. The allegations were made by PC because of the claimant’s involvement in assisting YWK in organisation of the Black Lives Matter project events, and PC’s suspicion that the claimant used the College’s funds to purchase Amazon vouchers for the winners online FIFA (PlayStation 4 football game) competition without prior authorisation.[24]The claimant with assistance of his union representative tried to appeal the suspension, but it was denied. Following the claimant’s suspension, he refused to meet PC or Leigh Fletcher (who assumed the role of the claimant’s line manager from March 2021 until October 2021) without his union representative being present.[25]The investigation meeting took place on 16 March 2021. The outcome of the investigation was that the claimant was asked to return to work. He returned to work on 29 March 2021.[26]The final disciplinary report was produced by Anthony Robinson (“AR”) on 31 March 2021, which concluded that there was no case to answer. Meanwhile, other staff members began to use the claimant’s office.[27]On 17 May 2021, the claimant submitted a grievance, containing several complaints about his suspension, return to work, changes to his work duties and the use of his office by other staff.[28]On 21 May 2021, Joanne Shankland (“JS”) met with the claimant and his union representative. At that meeting JS suggested that the claimant might be invited to a protected conversation.[29]On 14 May 2021, the claimant was informed by PC that he was to be moved from his office at Angel. He was reminded on 28 May 2021 that he needed to move his belongings by 7 June 2021. On 8 June 2021, when the claimant returned from half term leave, his belongings were moved to a new office. The claimant made a complaint about that, including requesting a risk assessment of his new office, which was refused.[30]On 30 June 2021, the claimant’s grievance was heard by Mike Magras (“MM”). The grievance was not upheld, except for accepting that a risk assessment of the new office should have been carried out.[31]On 29 July 2021, the claimant appealed the outcome. The appeal was scheduled for 27 September 2021 but was postponed at the claimant’s request to gather further documentation (requested by the claimant by way of data subject access request (“DSAR”)). It was agreed that the appeal would be postponed until after the DSAR documentation had been provided to the claimant, which was done only on 13 May 2022.[32]Meanwhile, the claimant was asked to undertake duties outside sporting activities, which he resisted. PC considered whether a disciplinary process should be instituted against the claimant for refusing management instructions and consulted HR about that.[33]In March 2022, the respondent offered to re-investigate the claimant’s original grievance by an external investigator, which option the claimant declined.[34]On 5 October 2021, AM was appointed as the claimant’s new line manager.[35]In early May 2022, the claimant began sick leave with work-related stress. He returned to work on 16 May 2022. The claimant continued to resist taking on responsibilities outside sporting activities, which led to further deterioration in relationship with his management.[36]The appeal hearing was scheduled for 16 September 2022. It was postponed at the claimant’s request. The new date was set for 14 October 2022. The appeal was heard on that date by Seval Fadil, a temporary Assistant Principal (the Chair), with Valerie Costello and Veronica Boi in attendance from HR. The claimant attended with his union representative. There was insufficient time to complete the hearing, and a return date of 31 October was set, subsequently moved to 21 November 2022. The claimant attended that hearing with his union representative.[37]On 1 December 2022, the respondent sent to the claimant the appeal outcome letter. The appeal was not upheld.[38]On 10 October 2022, the claimant commenced sick leave with anxiety and work-related stress. He did not return to work before commencing these proceedings.[39]In early January 2023, the claimant was invited by AM to a First Sickness Review meeting on 18 January 2023, pursuant to the College’s Supporting Attendance policy. The meeting was postponed at the claimant’s request until 20 January 2023. The claimant did not attend the meeting. It went ahead in the claimant’s absence. The outcome of the meeting was a formal warning under stage 1 of the respondent’s Supporting Attendance policy. The claimant was requested to undertake an occupation health assessment.[40]On 23 January 2023, the claimant appealed the outcome. The appeal was not upheld.[41]On 7 February 2023, the claimant had an occupational health (“OH”) assessment. The report recommended, inter alia, a meeting with senior management and HR to resolve the on-going work-related issues.[42]On 10 February 2023, AM told the claimant that he would be holding weekly welfare calls with the claimant. On the same day, the claimant was invited to the Second Review meeting on 20 February 2023. The claimant attended with his union representative. The outcome of the meeting was the decision that the claimant’s attendance remained unsatisfactory and if it had not been improved it may be decided to progress to level 3 of the Supporting Attendance procedure. A review date was set for 11 April 2023. The claimant was warned of a possible termination of his employment. The claimant appealed the outcome of the second stage.[43]On 14 March 2023, the claimant issued the claim.
The Law
[44]Both parties were represented by solicitors and counsel. The Tribunal received detailed submissions on points of law, which were not controversial and not in dispute. The relevant statutory provisions (ss. 13, 23, 27, 39, 123, 136 of the Equality Act 2010 (“EqA”)). Key authorities, interpreting and giving guidance to employment tribunals in applying these provisions, are wellknown to the parties. They were extensively quoted in the parties’ closing submissions. There is no need to repeat them here.[45]In reaching its decision the Tribunal directed itself to these statutory provisions and the relevant case law (including the authorities referred to by the parties in their closing submissions), as well as the relevant sections of the Equality and Human Rights Commission’s Code of Practice on Employment 2011.[46]Where appropriate, the relevant legal principles are further articulated in our analysis and conclusions. Analysis and Conclusions[47]Having examined the evidence and having considered the parties submissions, the Tribunal announced the following judgment:
The Law
[1]The Tribunal has come to its decisions unanimously on all the issues in the claim.[2]I shall deal with the issues before the Tribunal in the order they appear on the agreed list of issues, which can be found in the Record of the Preliminary Hearing of 19 June 2023 (pp. 66-69 of the bundle).[3]The claimant brings complaints of direct race discrimination (s.13 of the EqA) and victimisation (s.27 of the EqA). There are 18 allegations of less favourable treatment because of race and 14 allegations of being subjected to a detriment because of a protected act, which are the same as the last 14 allegations of less favourable treatment because of race.[4]The claimant relies on two protected acts: his grievance of 17 May 2021 and his email of 30 September 2022 formulating his grounds of appeal. The respondent does not dispute that the grievance was a protected act. It does not admit that the 30 September 2022 email amounts to a protected act, but nothing turns on this.[5]It is common ground that the incidents, to which the complaints relate, and which occurred before 5 October 2022 are prima facie out of time.[6]Therefore, pursuant to s.123(1)(a) of the EqA may not be brought before this Tribunal, unless(i) either they form part of conduct extending over a period with the end of that period being on or after 5 October 2022, or(ii) they brought within such other period as the Tribunal thinks just and equitable (normally referred to as a “just and equitable extension”)[7]It is not in dispute that the race discrimination allegations 2(a) to 2(I) and the corresponding victimisation allegations 3.2(a) – (h) are prima facie out of time. I shall refer to them in the judgment as “out of time allegations”.[8]The issue whether the allegation 2(m)/3.2(i), namely: “The Respondent’s on-going failure, or refusal, to provide the Claimant with documentation from the internal processes relating to him” is in time, or outwith the primary 3-month limitation period, is disputed. For brevity, I shall refer to it as “allegation 2m”.[9]Finally, it is common ground that the race discrimination allegations 2(n)- (r) and the corresponding victimisation allegations 3.2(j) - (n) are in time. I shall refer to them in the judgment as “in-time allegations”.[10]Therefore, the first question I shall deal with is whether the two complaints in the claim with respect to the allegation 2(m) were brought in time.[11]S.123 (3) & (4) of the EqA says: “(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. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”[12]It is important to note how the allegation 2m is formulated. The alleged less favourable treatment/detriment is said to be the respondent’s ongoing failure or refusal to provide documentation.[13]Whilst “refusal” undoubtedly is an act, “on-going failure” is not an act, it is an omission, i.e. a failure to act.[14]However, the claimant’s evidence to this Tribunal (see paragraphs 62 – 70 of his witness statement) and the corresponding contemporaneous documents show that the respondent has never refused to provide documentation to the claimant.[15]It might have taken the respondent an awfully long time to provide the documents, and not all the documents that the claimant had asked for were provided, but that is not the same as to say that the respondent has refused to provide documentation, as opposed to it has failed to do so.[16]Therefore, this allegation when properly considered can only be one of an on-going failure, and not of a refusal, that is of a “discriminatory omission”. To the extent, it is advance in the alternative as a refusal to provide documentation, we find that it fails on the facts. The respondent did not refuse to provide documentation to the claimant.[17]I pause here to say that we are aware that there is costs order application before this Tribunal, in which the claimant alleges that the manner in which these proceedings have been conducted by or on behalf of the respondent has been unreasonable, including (and I quote from the application) “in refusing to provide confirmation that proper searches would be undertaken.[18]This, however, is not the same as a refusal to provide documentation. In any event, the alleged refusal “to provide confirmation” post-dates the issuance of the claim, and therefore cannot be taken into account when considering the continuing act point.[19]Returning to the ongoing failure allegation – we need to decide when the limitation period has started to run for the purposes of this allegation, that is when the ongoing failure shall be treated as having occurred.[20]Pursuant to s.123(3) EqA, it is on the date when the person in question decided not to act, (for the present purposes, that means - decided not to provide documentation). Subsection (4) tells us that that date is to be determined, in the absence of evidence to the contrary, by looking at the date when that person does an act inconsistent with doing “something”. Where “something” is what it is alleged he/she has failed to do. In the present case “something” would be providing documentation. If, however, that person does not do such an inconsistent act, then the limitation period starts to run on expiry of the period in which he or she might reasonably have been expected to do that something (i.e. to provide documentation).[21]The claimant complains that the respondent has failed to provide him with “with documentation from the internal processes relating to him” and that failure was on-going.[22]On 13 May 2022, the respondent sent to the claimant documentation relating to him, thus answering his DSAR. The claimant says that what was sent was incomplete, and therefore the respondent has still failed to provide documentation, and that failure continued thereafter.[23]Until disclosure in these proceedings there were no further documentation sent to the claimant pursuant to his original request or his DSAR.[24]Therefore, we find, the respondent’s sending documentation on 13 May 2022, pursuant to the claimant’s DSAR, which is said to be incomplete and thus a failure to provide the requested documentation (i.e. to do that “something”), was the respondent doing an act inconsistent with doing “something” for the purposes of s.123(4)(a) EqA.[25]It follows, that the 3-month limitation period has started to run from that date, i.e. 13 May 2022. Therefore, the allegation 2m is also prima facie out of time.[26]Even if we were wrong on this analysis, considering that:(i) the claimant’s original request for documentation was made on 29 July 2021,(ii) his DSAR was submitted 7 September 2021, and(iii) the statutory time limits on responding to DSARs (one months, and in complex cases no more than 3 months), if we were to determine the start date of the limitation period by applying s.123(4)(b) -i.e the expiry of the period in which the respondent might reasonably have been expected to provide documentation - that date would be even earlier. We find that it would have been no later than 7 December 2021.[27]We do not accept Mr Leonhardt’s submissions that because, after receiving the DSAR response and documents, the claimant made further complaints of the on-going failure to provide all relevant documentation, and because such further complaints (made at the grievance appeal hearing and indeed during his sickness absence process) were within the primary limitation period, this should be taken as a continuing act by the respondent, or treated as re-setting the clock on the running of the limitation period.[28]It remained the same alleged discriminatory omission. The same ongoing failure. Just because the claimant complained about it again and again, this does not make it a new or a different failure to do something.[29]Nor can such further complaints by the claimant be taken as re-setting the limitation clock. If that were right, that would allow any complainant to extend the limitation period indefinitely by simply re-stating his/her original complaint every three months. There is nothing in the primary legislation or the case law this Tribunal is aware of to support that view.[30]For these reasons, we find that the allegation 2(m) – ongoing failure to provide documentation - is also out of time under s.123(1)(a) EqA. Continuing Act[31]This, however, is not the end of the story. We now need to consider whether the out of time allegations and in-time allegations form part of conduct extending over a period.[32]Mr Leonhardt in his written submission referred us to the relevant legal authority on this question - Commissioner of Police for the Metropolis v Hendricks [2002] EWCA Civ 1686. There are many subsequent cases on this issue, providing further guidance to the tribunals, but the underlying principles, established in Hendricks remain good law.[33]In short, the law says that we must not take a too literal approach, or look for some underlying discriminatory policy, rule, scheme, regime or practice. Instead, the focus should be on the substance of the complaint in question.[34]We must look whether the incidents complained of are linked together, thus creating an on-going situation or continuing state of affairs.[35]Mr Leonhardt submits that all complaints “relate to a persistent set of assumptions made by the claimant’s managers that were significantly influenced by negative racial stereotypes, and those negative assumptions being the continuing state of affairs”.[36]With respect to the victimisation complaint, Mr Leonhardt slightly changed that state of affairs into being based on “the negative view by the claimant’s managers that the claimant was being obstructive or a troublemaker”. However, the substance remains the same, that is - it is the alleged negative assumptions/view that links together the incidents complained of.[37]On reflection, we accept that a shared negative view influenced (consciously or unconsciously) by discriminatory motivation (for example, racial bias or stereotypes) could be said to create an on-going situation or continuing state of affairs. However, the difficulty for the claimant with this argument is that it necessarily requires a common negative view/assumptions about him, which is shared by all the putative discriminators who committed alleged discriminatory acts or omissions.[38]In other words, even if there was such a shared negative view about the claimant amongst the respondent’s managers, that is not enough. They needed to have acted or omitted to act, influenced (consciously or unconsciously) by such negative view.[39]And not only that, each of such managers, who the claimant says discriminated against him and/or victimised him, must have formed that negative view of the claimant because of his race or because of the claimant’s protected act.[40]We, of course, accept that the formation of a negative view could come from conscious or unconscious bias, or racial stereotypes, or annoyance and displeasure about the claimant’s grievances.[41]Furthermore, the claimant’s race and/or protected acts need not be the reason for forming that view. If such conscious or unconscious biases or stereotypes influenced the formation of the negative view in more than a trivial manner, that should be sufficient.[42]Equally, the negative view tainted by discrimination need not to be the reason for the acts or omissions the claimant complains about. If such actions or omissions were at least partly motivated by the negative view, tainted by discrimination, that is enough.[43]However, and critically, all the in-time allegations are in relation to acts by his the then line manager, Mrs Ahsev Merdjan. This means that for the claimant to make good his “shared negative discriminatory view case”, he should present evidence that Mrs Merdjan too shared the negative view/assumptions about the claimant, which in her mind was too influenced by his race and/or protected acts.[44]However, in his evidence to the Tribunal, the claimant specifically said that he did not claim that Mrs Merdjan held discriminatory views about him, but instead she was acting under pressure from other managers, who held such discriminatory views. In other words, the claimant’s case is that Mrs Merdjan was manipulated by other managers, but herself was innocent of any discriminatory motivations.[45]However, that theory (which only came out in the claimant’s evidence, and not in his pleaded case) was not supported by any cogent evidence.[46]Who are those managers? What have they said or done to exert the alleged pressure on Mrs Merdjan or otherwise to manipulate her actions vis-à-vis the claimant? And why in doing so, it is said that they were motivated by the claimant’s race or his protected acts? None of these questions were properly answers by the evidence presented for the claimant.[47]The issue was to some limited extent explored in cross-examination of the respondent’s three witnesses. Based on their answers we are satisfied that none of them put any pressure or otherwise influenced Mrs Merdjar’s actions the claimant complains about.[48]Ms Cooke was not involved in the sickness absence process at all. Mr Smith came into the process later, after Mrs Merdjan had left the respondent’s employment, and only after the claimant had submitted this claim. We found no cogent evidence to suggest that they manipulated the sickness process run Mrs Merdjan by putting pressure on her or otherwise.[49]Ms Hartley was overseeing the process from the HR perspective. She was the one who responded to the claimant’s appeal against the stage 1 outcome. We, however, accept her evidence that that she did not put any pressure on Mrs Merdjan. We also do not find that she shared into the alleged negative view/assumptions about the claimant because of his race or protected acts. There is no proper evidential basis from which we could possibly draw such an inference.[50]In any event, on the well-known authority of Reynolds v CLFIS (UK) Ltd [2015] EWCA Civ 439 in a situation like this, a person innocent of discrimination (Mrs Merdjan – in this case) cannot be imputed with discriminatory motivation, which is said to be operating on the minds of other people, and who influenced the innocent person’s behaviour towards the victim.[51]In such scenarios the so-called separate act approach must be followed. Meaning, that it is the supply of information or opinion tainted by discriminatory motivation (or, as the alleged by the claimant the putting pressure on the innocent actor by putative discriminators because of their discriminatory motivation), shall be regarded as acts of discrimination against the victim, and not the consequent actions by the innocent person.[52]As stated earlier, we heard no evidence of who those other senior managers were, what they did or said to influence Mrs Merdjan’s conduct toward the claimant, and why it is said that they too shared into the alleged negative view/assumptions about the claimant tainted by discriminatory motivation.[53]As I said, when in the discussion with the parties during the closing submissions, the Tribunal cannot ascribe discriminatory motivation to an unnamed person, who may or may not exit, or find discrimination or victimisation in an unknown action, which might or might not have happened. Generic labels such as “senior managers”, or “putting pressure” are not sufficient for the Tribunal to impute discriminatory reason for the treatment complained, where on the claimant’s own evidential case the person who meted out that treatment on the claimant was innocent of any discriminatory motivation.[54]For these reasons, we find that there is no link between the out of time allegations and in-time allegations and those did not form part of conduct extending over a period.[55]For completeness, I shall briefly return to this issue later in the judgment, when dealing with the remaining in time allegations. Just and Equitable extension[56]The next question for this Tribunal is whether the claimant allegations falling outside the primary limitation period were brought within a period which we think is just and equitable. Or to put it differently and more customarily – whether it is just and equitable to extend time with respect to the out of time allegations.[57]The law on this subject is substantial and well-known to the Tribunal and the parties. There is no need for me to dwell on it too long.[58]The most recent authority on this is the EAT judgment in Jones v. The Secretary of State for Health and Social Care, 2024 EAT 2, in which case HHJ Tayler again revisited the relevant authorities and gave further guidance to employment tribunals, in particular at [30] he said (and both Counsel may wish to take a note of that for future reference): “It remains a common practice for those who assert that the primary time limit should not be extended to rely on the comments of Auld LJ at paragraph 25 of Bexley Community Centre (t/a Leisure Link) v Robertson [2003] EWCA Civ 576, [2003] IRLR 434, that time limits in the Employment Tribunal are “exercised strictly” in employment cases and that a decision to extend time is the “exception rather than the rule” as if they were principles of law. Where these comments are referred to out of context, this practice should cease. Paragraph 25 must be seen in the context of paragraphs 23 and 24: He then set out the well-known passage from these two paragraphs in Robertson in full, concluding that read in the context it means that the Employment Tribunal has a wide discretion to extend time on just and equitable grounds and that appellate courts should be slow to interfere, and no more.[59]Later, at [35] he said: “35. Without meaning any disrespect to Auld LJ, there might be much to be said for Employment Tribunals focusing rather less on the comments in Robertson that time limits in the Employment Tribunal are “exercised strictly” and an extension of time is the “exception rather than the rule”; and rather more on some of the other Court of Appeal authorities, such as the concise summary by Leggatt LJ in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640, [2018] ICR 1194 at paragraph 17-19: He then quoted those paragraphs, which are worth re-stating] “17 The board’s other grounds of appeal all seek to challenge the decisions of the employment tribunal that it was just and equitable to extend the time for bringing(a) the claim based on a failure to make adjustments and(b) the claim alleging harassment by Ms Keighan. Before turning to those grounds, the following points may be noted about the power of a tribunal to allow proceedings to be brought within such period as it thinks just and equitable pursuant to section 123 of the Equality Act 2010. 18 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 section 33 of the Limitation Act 1980, section 123(1) of the Equality Act 2010 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 section 33(3) of the Limitation Act 1980 (see British Coal Corpn v Keeble [1997] IRLR 336), the Court of Appeal has made 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: see Southwark London Borough Council v Afolabi [2003] ICR 800, para 33. The position is analogous to that where a court or tribunal is exercising the similarly worded discretion to extend the time for bringing proceedings under section 7(5) of the Human Rights Act 1998: see Dunn v Parole Board [2009] 1 WLR 728, paras 30–32, 43, 48 and Rabone v Pennine Care NHS Trust (INQUEST intervening) [2012] 2 AC 72, para 75. 19 That said, factors which are almost always 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).” (emphasis are mine)[60]Finally, HHJ Tayler emphasised that the reason for the delay or the absence of a good reason is not the determinative factor, again quoting from the judgment by LJ Leggatt in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640, [2018] ICR 1194 at [25] “There is no justification for reading into the statutory language any requirement that the tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation of the delay from the claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal ought to have regard”.[61]In deciding whether it is just and equitable to extend time we paid full regard to these principles.[62]The start of the limitation period with respect to the first incident the claimant complains about is 23 February 2021, and with respect to the last “out of time” allegation – failure to provide documentation – was (as we found) 13 May 2022. For the purposes of calculating in-time and out of time allegations, the “cut off” date is 5 October 2022. On any view the delay is very substantial.[63]The claimant’s explanation for the delay is that he was going through the internal process and was waiting for its outcome. We find there are several problems with that explanation.[64]The outcome of the grievance was sent to the claimant on 23 July 2021. He registered his notice of appeal on 29 July 2021. The appeal was not heard until October/November 2022. The outcome decision was provided on 1 December 2022. The claimant started the ACAS Early conciliation procedure on 4 January 2023, which ended on 15 February 2023. He submitted his claim on 14 March 2023.[65]Throughout the entire internal process (right from the start, that is from the first act complained of in these proceedings) the claimant had support and guidance from his trade union.[66]It is trite law that the existence of an impending internal appeal is not “of itself and without more” sufficient to exercise the just and equitable extension in favour of the claimant (see Robinson v Post Office [2000] ILRL 804, EAT at [29], as later confirmed by the Court of Appeal in Apelogun-Gabriels v Lambeth London Borough Council and anor 2002 ICR 713, CA,). However, we accept that it is a factor that we should take into account in our overall assessment of the question whether it is just and equitable to extend time.[67]The claimant’s grievance contained an allegation of discrimination, which upon receipt of the outcome he knew was not upheld. Therefore, it appears that as far as the allegation of discrimination by that stage the claimant had the necessary information and belief to formulate his race discrimination complaint with respect to the prior events.[68]In any event, the claimant appears to accept (para 22 of Mr Leonheardt’s closing submissions) that by May 2022 he had received enough information to have “the basis of a number of claims”. Yet, he waited a further 10 months before bringing them to the Tribunal.[69]The claimant’s evidence (see paragraphs 125 and 126 of his witness statement) is that he did not think immediately issuing a Tribunal claim was appropriate, and that it seemed to him “more appropriate to appeal … and exhaust the internal process before potentially taking further action if no resolution was offered”. He also says that he “viewed a Tribunal claim as a last resort”.[70]This evidence demonstrates a conscious decision not to issue a Tribunal claim, and instead to wait and see whether the matter can be dealt with internally. In other words, it appears that the claimant was alive to the possibility to initiate tribunal proceedings against the respondent, at the very least by the time he received the outcome of his grievance, however, he chose not to do that.[71]The claimant does not say in his evidence that in choosing to go down the internal route he did not know or appreciate that he was at risk that his potential future Tribunal claim could be time-barred.[72]On the contrary, in paragraph 126 he explains that this issue had been discussed with his union, and the advice given (or, at least, as he understood it) was that each new incident would “re-set” the clock on the 3-month time period. This evidence further demonstrates that the claimant was fully aware of the 3-month time limit.[73]Trade union representatives are generally taken as skilled advisers, and when they take on a representative or advisory role, are expected to give competent advice. The so-called Dedman principle (i.e. that a claimant who puts his or her case into the hands of a skilled adviser (such as a solicitor) cannot plead ignorance if the adviser gets it wrong) equally applies in cases of trade union representatives advising complainants (see, for example, Times Newspapers Ltd v O’Regan 1977 IRLR 101, EAT).[74]Therefore, we do not accept that waiting for documentation and/or choosing to exhaust internal process first, as the reason for the delay in issuing the claim are factors that work in favour of the claimant in the balancing exercise of just and equitable extension.[75]On the contrary, these are the factors pointing in the opposite direction. That is because on his own case, by May 2022 the claimant had the necessary knowledge, belief and documentation to issue a discrimination claim, and his decision not to do that was a conscious decision made in full knowledge of the 3-month time limit.[76]To the extent in taking that decision the claimant was wrongly advised by his trade union about re-setting the time limitation clock, it would be a matter between him and his trade union. In any event, the claimant did not advance his case on just and equitable extension on the basis of wrongful advice by his trade union.[77]The claimant also says (para 128 of his witness statement) that on receiving the grievance appeal outcome he felt distraught and extremely troubled, and a few weeks later was prescribed anti-depressant medication by his GP.[78]To the extent this evidence is meant to justify the delay for medical reasons, in appears to be doing the opposite. It does not show why the claimant could not present a claim earlier by reason of ill health, that is before receiving the appeal outcome on 1 December 2022. It also shows that despite suffering from depression the claimant was able to engage with the ACAS early conciliation, give instructions to his legal team and issue his claim in March 2023, while still suffering from that health condition.[79]Mr Leonhardt submits that not extending time under just and equitable jurisdiction on the facts of this case would create a perverse incentive for employers to string along internal grievance, thus essentially running down the limitation clock, and secondly would reduce the incentive for employees to engage with internal grievance process in favour of bringing claims in employment tribunals.[80]With respect to the former, we do not accept this as a general proposition. It can only be true if one were to proceed from the premise that employees engaging in an internal grievance process are generally ignorant of the fact that it does not stop the limitation clock running. There is no solid evidential basis for us to accept this premise.[81]On contrary, employees, especially those supported by their trade union or other skilled advisers, would in most cases be aware that the opposite is true. For those who are unrepresented, a simple Google search would give the correct answer. We also note that on the ACAS website it is clearly stated that: “Going through grievance, disciplinary or appeal procedures does not change your time limit. If those procedures take a long time, you still need to notify Acas before your time limit runs out.”[82]Therefore, in so far, as the “stringing along” argument goes, we do not accept that there is any evidential basis to sustain it.[83]As far as the argument of the reduced employee’s incentive to engage in an internal process is concerned, it appears to be based on the opposite premise, that is that an employee is well-aware that the internal process will not stop the limitation clock running and that awareness causes him or her to go down the tribunal route without trying to resolve the problem through an internal grievance procedure. Again, this is a mere supposition, not supported by any evidence.[84]In any event, the more fundamental problem with both arguments advance by Mr Leonhardt is that the question for this Tribunal is not whether as a matter of public policy time limits should be extended to allow for internal processes to run their course (similar how it operates for the purposes of the ACAS early conciliation process).[85]This is a question for Parliament, and not this Tribunal. As the law stands now, the answer is no. It would be wholly inappropriate for the Tribunal to use its just and equitable jurisdiction as a “workaround” to achieve the ends Mr Leonhardt advocates.[86]The question for this Tribunal is not one of public policy, but whether in the circumstances of this particular case, the fact that the internal grievance process took a very long time to run its course should tip the balance in favour of extending time, considering all other relevant factors in the equation. That, essentially, takes us back to the same primary considerations, that is those concerning the lack or insufficiency of documentation, and the claimant’s choosing to go through internal process instead of issuing a tribunal claim.[87]To be clear, we do not discount them as relevant factors. All I am saying here is that it would be improper for us to assign to them more weight by reason of some wider public policy considerations argued by Mr Leonhardt at paragraph 24 of his final submissions.[88]Mr Leonhardt also submits (at paragraph 25 of his closings) that not allowing the just and equitable extension would be allowing the respondent to benefit from its unlawful behaviour in not complying with the claimant’s DSAR within the prescribed period, thus defeating the claimant’s claim.[89]This appears to be an attempt to argue the centuries old ex-turpi principle, that is that “no court must lend its aid to a man who founds his cause of action upon an immoral or an illegal act”.[90]There are several problems with this argument. Firstly, the respondent is not founding any action against the claimant in these proceedings. It defends the claim brought against it by the claimant.[91]As far as just and equitable extension is concern, again, the burden on the claimant to convince the Tribunal that it is just and equitable to extend time, not on the respondent to convince the Tribunal that it is not.[92]Secondly, the Tribunal’s just and equitable jurisdiction to extend time cannot be used as a punitive measure against the respondent. The question is not whether the respondent’s actions (in not complying with DSAR’s time limits) deserve condemnation, but whether considering the respondent’s delay in responding to the claimant’s DSAR it is just and equitable to extend time.[93]Thirdly, and crucially, this argument boils down to the same argument that the claimant was waiting for documentation and that was what, on his case, caused him to delay issuing the claim. I have already dealt with this argument and in some detail earlier in the judgment.[94]Now, turning to consider the relative prejudice to the parties. Of course, if the extension is not granted, a large part of the claimant’s claim would lie outside the jurisdiction of this Tribunal and cannot be adjudicated on the merits.[95]This, however, will still leave the claimant with a part of his claim that is in time - the in-time allegations. In adjudicating the in-time allegations, the Tribunal can and should still consider the out of time allegations, as relevant background. We consider, this a relevant factor too in the overall balancing exercise.[96]That is especially so, considering how the claimant puts his case – that is one of a continuing campaign against him by various managers, who are said to be sharing common negative assumptions/views about him, which assumptions/view had been formulated by racial prejudice or bias and/or because of his protected acts.[97]In other words, if the claimant could make good his case on that basis, him “losing” earlier out of time allegations as causes of action, would not defeat his entire claim on liability, albeit we accept, it might have some bearing when it comes to assessing any injury to feelings award.[98]On the other hand, granting the extension would mean that the respondent would have to defend a part of the claim and potentially be found liable for those incidents, which would otherwise be time-barred.[99]The obvious respective prejudice of losing the opportunity to prosecute a claim (or part of it) and of having to meet a claim (or part of it), which otherwise would be defeated by the lapse of the limitation period, would usually cancel each other out. However, in this case, for the reasons explained above, we find that the prejudice to the respondent would be greater.[100]Further, we should not lose sight of the fact that the default position is that if the claim (or part of it) is prima facie out of time, all things being equal, must not be adjudicated upon by the Tribunal. The burden is on the claimant to convince the Tribunal that it is just and equitable to extend time. Simply saying that if time were not extended, I would lose my valuable right to have my complaints adjudicated by an independent Tribunal and wrongs committed against me righted (and hence, it must be just and equitable to extend time), is not enough. If that were enough, the primary limitation period, prescribed by an act of Parliament, would become otiose.[101]The second type of prejudice is the so-called forensic prejudice, i.e. a prejudice to the respondent if the extension is granted by reason of such things as fading memories, loss of documents, or availability of witnesses.[102]We accept Mr Johnston’s submission that in this case, forensic prejudice to the respondent is indeed very substantial. The incidents, relied upon for the purposes of the out of time allegations, took place between February 2021 and May 2022, some 20 to 36 months ago. The out of time allegations involve various actors, many of whom have left the respondent’s employment many months ago (see p.143 of the bundle).[103]There are some important gaps in contemporaneous documents, especially with respect to the earlier incidents.[104]The claimant substantive case is that his evidence to the Tribunal was sufficient to shift the burden of proof on the respondent (pursuant to s.136 of the EqA), and the respondent’s evidence was insufficient to demonstrate that the claimant’s race and/or protected acts were in no sense whatsoever consciously or unconsciously influenced the respondent’s managers’ behaviour.[105]In advancing that case, the claimant relies primarily on what he says is the lack of cogent non-discriminatory explanations by the respondent with respect to various actions and omissions, and the paucity of documentary evidence to support any such explanations.[106]He highlights a turn of phrases used in some email communications by the respondent’s managers and some unexplained gaps in email chains. He invites the Tribunal to consider those facts against the background of general negative stereotypical views about black people that may still be present in the society, and from that draw adverse inferences against the respondent.[107]Whilst we fully accept that it is a permissible and proper argument for the claimant to advance, when it comes to assessing his claim on the merits, it also highlights the issue of forensic prejudice to the respondent. Had the claimant brought his claim earlier, we think the respondent would have been in a stronger position to meet it by filling those gaps and putting those emails in context, either by way of additional oral evidence from its manager who are no longer available, or by searching and securing the relevant documents, or both.[108]In the respondent’s solicitors’ letter of 8 November 2023 (p.121 of the bundle) they explain that “[t] he Respondent’s email process is such that six months after termination of employment, all emails are deleted for employees who have left, unless there is a notification not to. The Respondent confirms that 11 of the 18 employees the Claimant’s representative has listed, have left the Respondent more than six months ago and as such, their emails are no longer available”.[109]Mr Leonhardt argues that the respondent’s forensic prejudice should not be given too much weight because:(i) it did not seek a witness order in relation to those individuals,(ii) the respondent’s problem on merits is not because of potential witnesses who could have been called, but were not, but because of the evidence given by the respondent’s witnesses who were called and gave evidence;(iii) he argues, those witnesses had no difficulty in remembering historic events when it suited the respondent’s case,(iv) the loss of documents is the respondent’s fault, and(v) the claimant was too forensically prejudiced to the largely equal extent by the passage of time through having lost access to documents.[110]Taking these arguments in turn. Firstly, whilst accepting that it was open for the respondent to seek witness orders in relation to its ex-employees, such orders are not routinely granted by the Tribunal. It would have required the respondent to explain what evidence the witness would be giving, why it would be necessary for the Tribunal to hear from that witness for the fair determination of the claim, why no other person would be able to give such evidence, and why the order was necessary.[111]Moreover, having a reluctant witness attending the hearing, not knowing what he or she will be saying on the matter, and whom you would not be able to cross-examine is rarely a good idea. Finally, the issue of proportionality must also be considered.[112]Therefore, we do not find that the respondent not seeking witness orders can be taken as an indication that there is no real forensic prejudice to the respondent in allowing the just and equitable extension.[113]With respect to the second and third arguments, that is of the quality of the evidence given by the respondent’s witnesses. Whilst Mr Leonhardt’s assessment of the credibility and quality of the evidence of Ms Cooke and Mr Smith (elaborated on at para 33 and 34 of his closing submission) generally resonates with the Tribunal, it does not mean that there is no forensic prejudice to the respondent occasioned by the claimant’s delay in bringing the claim.[114]Their evidence might well have been more cogent and persuasive if the events in question were fresher in their memory, and if their evidence were further supported by evidence of other people involved in the out of time allegations and by other contemporaneous documents.[115]As Mr Leonhardt said in the discussion that the problem for the respondent on the merits comes from the evidence of its witnesses that did turn up, and not from those who did not. This, of itself, implies an acknowledgement that if those other witnesses were available to the respondent, its substantive case could have been stronger.[116]With respect to the loss of documents being the respondent’s fault. The problem with this argument is that as things stand now (before determining the claimant’s costs order application) we have no basis to conclude that the respondent indeed lost relevant documents as a result of negligence (or, as Mr Leonhardt puts in para 27(b), “worse”).[117]In any event, even if that could be shown, that does not follow that there is no forensic prejudice to the respondent. The fact remains that there are some important gaps in the documentary evidence with respect to the earlier incidents, which gaps might not have been there, if the claimant had initiated his claim earlier, thus prompting the respondent to preserve those documents.[118]Finally, on the issue of equal prejudice to the claimant. We found that, while the claimant might or might not have benefited if a more comprehensive set of contemporaneous documents were available, it was him who delayed issuing the proceedings. Therefore, to the extent he suffered any forensic prejudice by missing documents that was through his own delay. This cannot be sensibly said to be a valid reason to negate or off-balance any forensic prejudice to the respondent.[119]Having gone through all these factors one by one, we must step back and look at the entire picture in the round. The question is whether considering all these factors we think it is just and equitable to extend time, so to allow the out of time allegations to proceed to be determined on the merits.[120]Having carefully weighed all these factors, we have come to the conclusion that it would not be just and equitable to extend the primary 3- month limitation period.[121]It follows, that the claimant’s part of the claim comprising race discrimination allegations 2(a)-(m) and the corresponding victimisation allegations 3.2(a)-(i) are out of time and this Tribunal does not have jurisdiction to consider them on the merits. Remaining in-time allegations[122]This leaves us to deal with the remaining in-time allegations (race discrimination allegations 2(n)-(r) and the corresponding victimisation allegations 3.2(j)-(n)).[123]All these relate to the handling of the claimant’s sickness absence.[124]The main and overarching problem for the claimant in relation to all these remaining in-time allegations is that in his evidence he specifically disavowed his claim that Mrs Merdjan was motivated by his race or subjected him to less favourable treatment and/or detriment because of his race and/or protected act.[125]His evidence was that whilst Mrs Merdjan herself had no discriminatory motivation in acting in the way he complains about, she was put under pressure by the respondent’s senior managers to act in that way, and it was them who held discriminatory views against the claimant, which in turn made them to put pressure on Mrs Merdjan.[126]I have already explored in some detail this issue when dealing earlier with the continuing act point. There is no need for me to repeat all that again here. Suffice it to say that the same considerations apply when looking at this matter as a question of substantive merits.[127]It would be perverse for this Tribunal to find for the claimant on the basis of making an inference that some unnamed managers, motivated by racial prejudices against the claimant and/or his protected acts, did or said something, which amounted to “putting pressure” on Mrs Merdjan, which in turn resulted in Mrs Merdjan acting in a way the claimant complains about.[128]Not only that would be the Tribunal plunging into impermissible speculative guesswork, but also finding for the claimant on the basis of the claim he is not advancing. That is because the unlawful discrimination could only be found with respect to the “putting pressure” actions, and not actions by Mrs Merdjan the claimant complains about.[129]However, for completeness, we have examined all the in-time allegations on their merits. 2n (3.2j) The Respondent provided a period of only four weeks following the First Review Meeting for the Claimant to demonstrate improvement in attendance whilst on long-term sickness absence, which he considers to have been unrealistic.[130]We find nothing remarkable about the four-week period to show improvement in attendance. By that stage the claimant had been off work continuously for over 2 months and for 73 days in the previous 12-month period.[131]It was not unreasonable for the respondent to consider this level of sickness absence as being too high, and to decide that if a further month goes by without an improvement in attendance the case should be progressed to the next stage of the sickness absence process. This was fully in line with its Supporting Attendance policy.[132]Furthermore, the intimation in the letter of the four-week period the claimant complains about is taken out of context. The respondent’s letter must be read as a whole. It provides for various support mechanisms to help the claimant to return to work – it offers completing a stress risk assessment on return to work, a referral to occupational health, it contains an offer of the employee assistance programme.[133]We also note that whilst the claimant appealed the outcome of the stage 1 sickness absence review (p.905), at that time he took no issue with the 4- week period to show improvement in attendance. In his witness statement (para 109) he mentions that fact too. However, even then he does not say that he considered that to be a detriment or less favourable treatment.[134]Therefore, applying the test in Chief Constable of the West Yorkshire Police v. Khan [2001] ICR 1065 we find that it was not a detriment or less favourable treatment (and the claimant did not regard it as such at that time). We also find that even if he had considered it as a detriment, it would have been unreasonable for him to do so. 2(o) 3.2(k) The Respondent listed the Second Review Meeting immediately following the First Review Meeting without any period of monitoring and prior to implementing OH recommendations.[135]What I have just said in relation to the previous allegation, equally applies to this one. We find nothing sinister about putting a possible future meeting in the diary.[136]The letter explains: If you reach absence levels of 12 days, or 6 instances, in a 12-month rolling period, this will result in a stage 2 sickness absence formal review meeting. The has been booked for 20th February 2023; you will be sent an invite for this meeting.[137]The respondent’s Supporting Attendance policy states: The Review points When an employee hits a review point, they will normally be invited them to an attendance review meeting (Level 1, 2 or 3, as appropriate). […] Level 2 – Dealing with ongoing or repeated levels of unacceptable attendance. This meeting will be held where a further review point is met during the term of the Level 1 notification of unacceptable absence review period. The meeting should review what was done at the Level 1 meeting, and consider further what can be done to support the employee and help improve and maintain their attendance. A further Notification of Unacceptable Attendance is usually issued with a review date.[138]Therefore, by fixing a date for the next review meeting Mrs Merdjan was simply following that process.[139]As with the 4-week to show improvement requirement, the claimant made no complaint about the listing of the second review meeting at that time. In his witness statement he does not say that he considered that to be less favourable treatment or a detriment.[140]We find it was not (and the claimant did not regard it as such at that time), and even if he had held that view, it would have been unreasonable for him to do so. 2 (p) 3.2 (l) The Respondent’s arrangements to contact the Claimant bi-weekly from 27 February 2023 during his on-going sickness absence;[141]We note that the allegation says bi-weekly, where the claimant’s evidence is that the communications were set on a weekly basis. That is also what the stage 1 letter says: “I would like to arrange weekly open communication while you are on sick leave. Please confirm whether you would like this weekly communication to be via email or telephone call. Please provide a personal email address and/or telephone number which you can be contacted on.”[142]The respondent’s policy says under manager’s responsibilities (p213): “To agree a consistent and appropriate method and frequency of contact with absent employees on your team to keep in touch, and explore ways to support them back into work. The level and nature of the contact will differ dependent on the reasons for absence.”[143]It appears the claimant takes issue with the frequency of the proposed communications, viewing them as an unnecessary and unwelcome intrusion, driven by the respondent’s suspicions of him and/or as a means of putting more pressure on the claimant, and all that in the circumstances when he was off work due to work-related stress.[144]However, the letter simply says that Mrs Merdjan “would like to arrange weekly open communication”. It does not say that she mandates such communication to be of that frequency. If the claimant felt that weekly communications were too frequent in the circumstances, he could have said so at the time. He did not. Not in his appeal of the stage 1 outcome, nor in any subsequent communications. In fact, it appears he never responded to Mrs Merdjan on this matter, and she had to remind him of it in the 2nd stage outcome letter (p.939).[145]In his witness statement, the claimant does not say that he regarded such weekly communications as less favourable treatment or a detriment. It appears that his main issue was that the stage 1 meeting took place in his absence, that what the thrust of his appeal was about. However, he makes no complaint about that in these proceedings.[146]We find that the proposed arrangement to contact the claimant on a weekly basis was not less favourable treatment or a detriment. The claimant did not regard it as such at the time, and even if he had held that view, it would have been unreasonable for him to do so. 2q 3.2m) The Respondent’s attempts to treat the absence review meeting on 20 February 2023 as the meeting with senior manager and HR recommended by OH[147]The claimant gives evidence in support of this allegation at paragraph 114 of his witness statement. There he says that “it was said, by [Mrs Merdjan] [he] thinks” that that review meeting itself would suffice as the meeting with a senior manager and HR, recommended by OH, which he and his union representative thought was entirely unsuitable. His evidence is that on 24 February he complained about that to his trade union representative.[148]On 24 February 2023, the claimant’s Trade Union representative, Mr Adam Hartman, wrote to Ms Merdjan about that. He said that he, Mr Hartman, thought that Mrs Merdjan had “suggested or implied” that the level 2 meeting would suffice. However, Mr Hartman’s view was that because Mrs Merdjan had insufficient authority to resolve the claimant’s issues a separate meeting with a more senior manager was required (p.922). Mrs Mardjan replied 2 hours later (p.940) confirming that she had asked HR to arrange such a meeting. The claimant accepts that the meeting had been arranged and eventually took place on 16 March 2023.[149]It is difficult to understand what the claimant complains about here. OH report recommended a meeting with a senior manager and HR as well as his trade union representative, (quoting from the report) “so they can try to resolve his work-related issues so he can return to work”.[150]Mrs Merdjan, who at the time was his direct line manager, and Ms Samatha Liverpool from HR, both attended the stage 2 meeting. Both the claimant and his union representative were at the meeting too. The respondent’s attendance support policy provides that at a stage 2 meeting “should review what was done at the Level 1 meeting, and consider further what can be done to support the employee and help improve and maintain their attendance”.[151]Even if Mrs Merdjan suggested or implied that that meeting could be used to try to resolve the claimant’s work-related issues, so that he could return to work, this would not be inconsistent with the policy or indeed with the OH recommendation.[152]It appears the claimant and his union representative felt that it was inappropriate because Mrs Merdjan had insufficient seniority to resolve the claimant’s issues. Mrs Merdjan asked HR to arrange a separate meeting and that was done.[153]Therefore, even on the claimant’s evidential case there were “attempts to treat” that meeting as a substitution for the meeting recommended by OH.[154]In any event, if the claimant considers that Mrs Merdjan suggesting or implying that the stage 2 meeting could be used as a meeting recommended by OH, as less favourable treatment or a detriment, we consider that it was unreasonable for him to hold that view. 2r (3.2n) Listing a Stage 3 absence review meeting immediately following the Second Review Meeting without any period of monitoring and/or prior to implementing OH recommendations and asserting that the Claimant is at risk of dismissal?[155]At the start of the hearing the claimant asked to amend this allegation to read: “Threatening to list a Stage 3 absence review meeting …. The amendment was not opposed by the respondent and granted by the Tribunal.[156]It is not clear what the claimant means by the word “threatening”. Mrs Merdjan gives evidence about a possible stage 3 meeting in her witness statement at paragraphs 33 and 34. Although she was not at the hearing and was not cross-examined on her statement, and therefore the Tribunal should bear that in mind when weighing her evidence, what she says there is hardly controversial. Furthermore, what she says in her witness statement is supported by the contemporaneous documents (p.939-940)[157]Essentially, she told the claimant that if his attendance did not improve the matter would move to the next stage. She also told him that his employment would be at risk if his attendance did not improve by the next review, which was set for 11 April 2023. That was all in line with the respondent’s Supporting Attendance policy.[158]Neither in his emails following the Stage 2 meeting, nor in his witness statement, does the claimant say that he was “threatened” by Stage 3 review meeting. He does not say that some threatening language was used either at the meeting or in any communications after it.[159]The stage 2 outcome letter simply says: “At the end of the meeting, I explained that your sickness absences would continue to be monitored, I have set a review date for 11, April 2023. At the end of the review period, if your attendance has not improved it may be decided to progress to Stage 3 of CCCG Supportive Sickness Absence policy. This may change depending on any medical or other developments presented during the review meeting.” (my underlining)[160]On any view this kind of language cannot be sensibly described as threatening. It simply states that if the claimant’s attendance remains unsatisfactory a decision may be taken to progress the matter to Stage 3.[161]Therefore, this allegation fails on the facts. It would also be unreasonable for the claimant to regard the intimation that if his attendance did not improve the matter could progress to Stage 3 as less favourable treatment or a detriment.[162]Now, having gone through each of these allegations individually, we must step back to look at them in the round, to see whether it is more to that than a sum of its parts.[163]Looking at the sickness absence management matter as a whole, and also taking into account the prior background (that is the out of time allegations and the evidence we heard about them) we see nothing in the in-time allegations taken together that could give us any proper basis to conclude that the claimant’s race or protected acts had any bearing whatsoever on these matters.[164]To put it differently, even if the claimant had not disavowed his claim that Mrs Merdjan had a discriminatory motivation in acting in the way he complains about, and disregarding the respondent’s explanations provided for the actions in question, we find that the claimant has failed to discharge the initial burden of proof to establish a prima facia case of discrimination or victimisation with respect to any and all of the in-time allegations. There is simply nothing on the claimant’s evidential case beyond pure speculations of some background manipulations by some bad actors, who are said to be motivated by his race and/or protected act.[165]Even if the claimant’s sickness absence treatment could have been shown as being unreasonable (and our primary finding is that it was not), this would not be sufficient to make good his discrimination and victimisation complaints about these matters.[166]In Igen v Wong 2005 ICR 931, CA the Court of Appeal cautioned tribunals ‘against too readily inferring unlawful discrimination on a prohibited ground merely from unreasonable conduct where there is no evidence of other discriminatory behaviour on such ground’ (para 51).[167]In Madarassy v Nomura International PLC [2007] ICR 867 Mummery LJ stated at [58] that: ‘The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination’.[168]With respect to the in-time allegations, we find there is simply no such “something more”, based on which we could conclude that the respondent committed acts of race discrimination or victimisations against the claimant.[169]The claimant did not show that there was any difference in treatment in similar circumstances of a non-black employee or gave us any factual basis to infer that a hypothetical non-black employee in the materially no different circumstances would have been treated better.[170]Mr Leonhardt in his closings, when dealing with the in-time allegations (paras 101-109) largely re-stated undisputed facts. As far as his invitation at para 108 to infer that the respondent amending its process to have another stage 2 meeting instead of a stage 3 meeting “in response to the claimant issuing this claim on 14 March 2023”, that is simply irrelevant. It is not part of this claim, and there is no need for us to make any factual findings or draw inference on the matters outside the scope of this claim.[171]Mr Leonhardt then at p.109 says that the respondent’s actions are not actions of an employer genuinely seeking the return of an employee on long-term sick leave for work-related stress, but rather “the continuation of the Claimant being treated as unwelcome by his employer”. We do not accept, that the evidence before us supports making such conclusion.[172]Mr Leonhardt then says that the claimant’s race and his submission of a grievance were each significant influence on the respondent’s treatment of him. He, however, does not explain on what evidential basis (in so far as it applies to the in-time allegations) we could come to that view. We reject that submission.[173]For all these reasons, we find that the claimant’s complaints of direct race discrimination and victimisation with respect to the in-time allegations are not well-founded and stand to be dismissed.[174]Before concluding our judgment, as I have said earlier when dealing with the continuing act issue, there is one matter I need to return to and that is this.[175]Even if we were wrong in our primary conclusion that there was no conduct extending over a period between the out-of-time and in-time allegations, given that the in-time allegations were not acts of discrimination or victimisations, as we have found, they cannot be used to bring within the limitation period the out-of-time allegations (see South Western Ambulance Service NHS Foundation Trust v King 2020 IRLR 168, EAT and Lyfar-Cisse v Brighton and Sussex University Hospitals NHS Trust and ors EAT 0100/19.). In both cases the EAT said that conduct that the tribunal has found not to be discriminatory cannot be relied on as ‘conduct extending over a period’ for the purposes of S.123(3)(a) EqA.[176]To summarise, we find(i) That the claimant’s complaints of direct race discrimination and victimisation in the part comprising allegations 2(a) – (m) and 3.2 (a) – (i) were not brought before the end of the period in s.123(1)(a) or 123(1)(b) of the EqA and therefore the Tribunal does not have jurisdiction to consider them.(ii) The remaining parts of the claimant’s complaints of direct race discrimination and victimisation are not well-founded and are dismissed.[177]This concludes our judgment. However, before inviting the parties to make their submissions on the claimant’s costs application, the Tribunal wishes to make a couple of short observations. These do not form part of our substantive judgment.[178]We have dismissed the claimant’s claim. Therefore, the respondent has won the case. However, we do not wish the respondent to mistakenly take this as the Tribunal’s conclusion that it was right and justified in the way it treated the claimant. We make no such findings, and nothing in our judgment should be read as implying that.[179]On the contrary, we have every sympathy for the claimant. He found himself in a very difficult and highly stressful situation, when out of the blue he was suspended on apparently very serious allegations with no proper explanations given to him at the time, and, as it appears, with no one on the respondent’s side pausing for a moment to consider potential consequences of this action on the claimant. From there it went from bad to worse for him.[180]It is particular regrettable when one can’t help but to think that an open and frank conversation with the claimant and Ms Whittaker-Khan before their suspension, which would have taken no more than 5 to 10 minutes, could have averted unleashing this unnecessary and wholly preventable dispute, which took 3 years to reach this stage, no doubt costing the parties a great deal of money, not to mention enormous emotional stress and impact on their health and wellbeing.[181]We are conscious that it appears that there is another pending dispute between the parties in relation to the claimant’s departure from the respondent, and all the matters, which we have found for the purposes of the present claim to be out of time, and therefore outwith our jurisdiction, might still come back to be re-examined by another Tribunal at a later date.[182]Therefore, we limit our observations to saying that “jumping to conclusions” and “playing hardball” are rarely the best option when it comes to resolving work-related issues or seeking to create a mutually beneficial and congenial work environment.[183]We are also surprised by the respondent’s apparent view that all these battles of wills and attrition it fought with the claimant were necessary in the name of giving its students a better educational experience or expanding career opportunities for the claimant and other student engagement officers.[184]Finally, irrespective of the legal outcome of this claim, we hope that airing all these matters in this public forum was helpful to both sides, both in terms of being finally listened to and as a valuable lesson for future.[185]I shall leave it at that. We shall now proceed to hear the costs order application, unless the parties wish to take a short break. Costs order application 48. After a short break, Mr Leonhardt made oral submissions on the claimant’s costs order application of 31 October 2023. Mr Johnston presented the respondent’s arguments in opposition, followed by a short reply by Mr Leonhardt. 49. After a short adjournment the Tribunal delivered its unanimous judgment dismissing the application for the following reasons. The Facts 50. On 16 October 2023, the claimant’s solicitors wrote to the respondent’s solicitors, criticising the respondent’s disclosure. They requested that the respondent “[undertook] further, proper and reasonable, searches for relevant documents, including in the manner particularised below and provide[d] by no later than 5pm on Wednesday 25 October 2023a. an updated disclosure list, showing additions as tracked changes; and,b. copies of further documents located as part of those new, genuine, searches; and,c. the clarification of the scope and outcome of the searches undertaken, including the key word terms utilised in searching email accounts/servers, requested below.” 51. The claimant’s solicitors referred the respondent’s solicitors to Rule 31.6 of the Civil Procedure Rules and to their professional duties in respect of disclosure, as summarised by the Court of Appeal in Hedrich v Standard Bank London Ltd [2008] EWCA Civ 905. 52. The claimant’s solicitors listed 16 items of what they considered to be missing or inadequately disclosed categories of documents. They also identified 24 types of documents related to the claimant’s suspension they sought disclosure of. With respect to each type they sought “Copies of all Documents, in particular internal correspondence, notes and minutes”, where the ”Documents” were defined as: “all documents, notes, memoranda, minutes, emails, letters, handwritten or typed notes and all other communications which go to the issues in the case…” 53. The claimant’s solicitors also sought that the respondent undertakes “searches for all relevant emails sent or received by, or relevant electronic documents created or modified by, the following individuals during the material period from February 2021 to March 2023, inclusive: 1. Philipa Cooke; 2. David Smith; 3. Kisha Narayan; 4. Joanne Shankland; 5. Anthony Robinson; 6. Mr Malcolm Plummer; 7. Veronica Boi; 8. Leigh Fletcher; 9. Mike Magras; 10. Ollia Alexis; 11. Trovene Hartley; 12. Colleen Marshal; 13. Angela Burton; 14. Amanda Cowley; 15. Valerie Costello; 16. Seval Fadil; 17. Ahsev Merdjan; and, 18. Samantha Liverpool”. 54. The claimant’s solicitors said that in the absence of an adequate response they would be seeking an order for specific disclosure from the Tribunal and a costs order. 55. On 25 October 2023, the respondent’s solicitors replied to that letter, stating that they were still in the process on taking instructions and suggesting varying the Tribunal’s directions for compiling the hearing bundle. 56. On 26 October 2023, the claimant’s solicitors replied, reiterating their position but extending time to 27 October 2023 for the respondent to confirm that it will undertake the necessary searches, and by when. The respondent’s solicitors replied, saying that the given deadline was unrealistic because the respondent’s HR director was on annual leave. They again suggested extending time for finalising the hearing bundle and reminded the claimant’s solicitors that their earlier request to extend time for disclosure had been accommodated by the respondent. The claimant’s solicitors replied by return restating their position that the respondent had “failed utterly to comply with its disclosure obligations” and asking for a substantive response by the deadline of 27 October 2023. The respondent’s solicitor dealing with this matter was on annual leave on 27 October 2023. 57. On 31 October 2023, having not received a substantive response, the claimant’s solicitors applied to the Tribunal for: “1. an urgent Order that the Respondent undertake reasonable searches to comply with its disclosure obligations and provide both documents and clarification of the parameters and search terms utilised by 17 November 2023; and, 2. an Order that the Respondent make a payment to the Claimant in respect of his costs incurred in seeking to address unreasonable failings by the Respondent relating to its disclosure obligations.” 58. On 8 November 2023, the respondent’s solicitors submitted their representations, opposing the applications. They argued that adequate searched had been undertaken and all relevant documents found had been disclosed and “any ‘gaps’ can be dealt with in witness statements”. They also argued that the respondent’s requests to provide “details of search terms and parameters utilised in searches for emails and/or electronic or wordprocessed documents is both unnecessarily onerous and disproportionate”. 59. In relation to the costs order application, the respondent’s solicitors argued that “the Claimant’s representative appears to be mistaking the requirements of an employment tribunal with that of a civil court. Costs do not ‘follow the event’ in employment tribunals as they do in civil courts and costs have traditionally been viewed as ‘the exception rather than the rule’”. 60. On the same day, the claimant’s solicitors sent their reply. In the reply they emphasised the respondent’s continued failure to conduct reasonable searches, highlighting the fact that further tranches of documents had been disclosed, containing 166 pages, however, that further disclosures did not contain documents, which, they contended, were in existence and relevant to the issues in the claim. They also raised the issue of the respondent’s policy of deleting emails of employee who left the respondent’s employment after six months following their departure, as the respondent’s failure to preserve the relevant documents. 61. On 7 December 2023, the claimant’s solicitors wrote to the respondent’s solicitors, seeking eight further specific documents and additional information, including who of the 18 employees referred to in the claimant’s solicitors letter of 16 October, were no longer in the respondent’s employment. 62. On 14 December 2023, the respondent’s solicitors replied, providing some of the requested documents and giving departure dates of 11 out of 18 employees. 63. On 18 January 2024, the claimant’s solicitors wrote to the Tribunal chasing an update on their applications. 64. On 31 January 2024, EJ Gidney directed that it was not possible to accommodate a preliminary hearing before the final hearing to deal with the claimant’s applications and that: “In the circumstances the parties must prepare for hearing on the basis of the currently disclosed documents. The Claimant is free to make its disclosure and costs applications at the outset of the final hearing. If the trial Judge takes the view that the Claimant’s application has merit, particularly if Court time is lost as a result, it is likely that any failure by the Respondent to comply with its disclosure obligations will lead to the possibility of an Order for Wasted Costs being made. Furthermore, if the Tribunal concludes that the Respondent has failed in its disclosure obligations that will be a matter that it can take into account when assessing the overall merits of the Claimant’s claim.” 65. At the start of the final hearing, Mr Leonhardt confirmed that the claimant was no longer seeking a specific disclosure order, as that it would delay the hearing, and instead would be inviting the Tribunal to draw adverse inferences from the respondent’s inadequate disclosure and would pursue his costs order application at the end of the substantive hearing. The Law 66. Rule 76(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2017/1237 (“the ET Rules”) states: “1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or [...]” 67. Rule 78(1) of the ET Rules gives the Tribunal various options of assessing costs, including making an “order the paying party to pay the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party”. 68. The following key propositions relevant to the Tribunal’s exercising its power to make costs orders may be derived from the authorities: (i) Costs awards in the employment tribunal are still the exception rather than the rule. The tribunals should exercise the power to order costs more sparingly than the courts (Yerrakalva v Barnsley Metropolitan Borough Council and anor 2012 ICR 420, CA) (ii) There is a two-stage exercise in making a costs order. The first question is whether a paying party has acted unreasonably or has in some other way invoked the jurisdiction to make a costs order. The second question is whether discretion should be exercised to make an order. Only if the tribunal decides to exercise its discretion to make an award of costs, the question of the amount to be awarded comes to be considered (Haydar v Pennine Acute NHS Trust UKEAT/0141/17). (iii) While the threshold tests for making a costs order are the same whether or not a party is represented, in the application of the tests it is appropriate to take account of whether a litigant is professionally represented or not. Litigants in person should not be judged by the standards of a professional representative (AQ Ltd v Holden [2012] IRLR 648). (iv) For term “vexation” shall have the meaning given by Lord Bingham LCJ in AG v Barker [2000] 1 FLR 759: “[T]he hallmark of a vexatious proceeding is … that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceedings may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant, and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process.” (cited with approval by the Court of Appeal in Scott v Russell 2013 EWCA Civ 1432, CA) (v) “Unreasonable” has its ordinary English meaning and is not to be interpreted as if it means something similar to ‘vexatious’ (Dyer v Secretary of State for Employment EAT 183/83). (vi) In determining whether to make a costs order for unreasonable conduct, the tribunal should take into account the “nature, gravity and effect” of a party’s unreasonable conduct — (McPherson v BNP Paribas (London Branch) 2004 ICR 1398, CA), however the correct approach is not to consider “nature”, “gravity” and “effect” separately, but to look at the whole picture. (vii) While a precise causal link between unreasonable conduct and specific costs is not required, it is not the case that causation is irrelevant. However, the tribunal must look at the entire matter in all its circumstances – (Yerrakalva v Barnley MBC [2012] ICR 420). Mummery LJ gave the following guidance on the correct approach: “41. The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the Claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The main thrust of the passages cited above from my judgment in McPherson's case was to reject as erroneous the submission to the court that, in deciding whether to make a costs order, the employment Tribunal had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. In rejecting that submission I had no intention of giving birth to erroneous notions, such as that causation was irrelevant or that the circumstances had to be separated into sections and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances”. Submissions 69. The main criticism by the claimant of the respondent’s disclosure can be summarised as follows: (i) The initial disclosure in September 2023 was deficient, becasue the respondent omitted to include important documents that it knew (or at any rate ought to have known) were in existence, such as the claimant’s grievance. (ii) This promoted the claimant’s solicitor to write a lengthy letter asking the respondent’s solicitor for various categories of documents to be provided and to confirm what searches had been undertaken and what search parameters had been used in searching for relevant documents. The claimant would not have had to do that if the respondent had complied with its disclosure duties in the first place and disclosed all relevant documents with its original disclosure. (iii) It took various reminders and ultimately the application for a specific disclosure to this Tribunal for the respondent to disclosure further document, and that was all done in a piecemeal basis, with the latest tranche of documents provided only on 25 January 2024. That by itself shows unreasonable conduct by the respondent. (iv) The respondent’s failure to provide all relevant documents is on-going because some documents such as MS Teams Chats have not been disclosed. This is a further example of unreasonable conduct. (v) Deleting email accounts of employees who were involved in the events relevant the claim, in full knowledge that the proceedings were on foot and without taking steps to preserve their email accounts further shows unreasonable attitude by the respondent to its disclosure obligations. (vi) All this goes beyond a mere technical breach and has significant impact on the preparation of the case to this trial and potentially its outcome. 70. In response Mr Johnston drew the Tribunal’s attention to the fact that the disclosure obligations in the Tribunal should not be judged by the same standard as in civil litigation under the CPR. He said that although the disclosure could have been done better, all the relevant documents had eventually been disclosed and were before this Tribunal. He also argued that the claimant’s solicitors’ approach was not cooperative, the specific disclosure application premature, and the same result could have been achieved if the claimant’s solicitors took a less combative approach, which meant less costs would have been incurred. Analysis and Conclusions 71. Whilst we accept that the proceedings in employment tribunals call for lesser formality than in civil courts and the overriding objective in Rule 2 of the ET Rules includes the requirement “in so far as practicable- … avoiding unnecessary formality and seeking flexibility in the proceedings”, this does not mean that the parties are free to decide for themselves what level of effort and diligence they are willing to exert in complying with the Tribunal’s orders. 72. The disclosure order made by EJ Goodman on 19 June 2023 required the parties to send to “send each other a list and copies of all documents relevant to the issues listed in the Case Summary below”. It went on to explain that: “Documents includes recordings, emails, text messages, social media and other electronic information. You must send all relevant documents you have in your possession or control even if they do not support your case. A document is in your control if you could reasonably be expected to obtain a copy by asking somebody else for it.” (my underlining) 73. To properly comply with this order and disclose “all relevant documents” in the respondent’s possession or control, the respondent ought to have done reasonable searches to identify and locate such documents, including, where appropriate, by “asking somebody else for [such documents].” 74. It is evident from the respondent disclosing a substantial number of documents in several tranches up to 25 January 2024 (some 5 months after the original date for disclosure set in the EJ Goodman’s orders) and doing so only after the claimant’s solicitors’ application for an order for specific disclosure, that the respondent was in breach of the disclosure order. 75. The question, however, is whether that in breaching the disclosure order the respondent has acted unreasonably in the way it has conducted that part of the proceedings3. We find that it has. We say that because, considering: (i) the size and administrative resources of the respondent, (ii) the fact that it has been represented by a firm of solicitors throughout the proceedings, (iii) the sheer volume of documents that were disclosed in a piecemeal fashion and without any good explanation as to why they had not been included in the original disclosure, (iv) the apparent lack of any attempts to search for further relevant documents omitted from the original disclosure (such as the claimant’s grievance) until being prompted to do so by the claimant’s solicitors, even with giving full allowance to lesser formality in employment tribunal proceedings, we find that the respondent’s conduct of disclosure fell significantly below the standard of reasonableness that can be expected of a professionally represented organisation of the respondent’s size and resources. 3 The claimant did not seek a costs order on the alternative ground of the respondent being in breach of the Tribunal’s order (Rule 76(2)). 76. The next question for the Tribunal is whether in all the circumstances it is appropriate for us to exercise our discretion and make a costs order against the respondent. We find that despite our finding of unreasonable conduct this case falls on the side of the dividing line where it is not appropriate to make a costs order. We say that for the following reasons: (i) Albeit the respondent acted with less diligence and foresight that it ought to have applied in meeting its disclosure obligations, it has never refused the claimant’s requests to search for further documents and disclosed those when they were found. (ii) We consider that ultimately all relevant documents were made available for the Tribunal to properly examine and fairly determine the claim. We do not accept that the claimant was prejudiced in any material way by the respondent’s failure to disclose all relevant documents by the original deadline. The bulk of relevant documents had been disclosed by the original deadline. The claimant received the last batch of the respondent’s documents a month before the start of the hearing. Ultimately, nothing of significance in this case turned on those delayed documents. (iii) We do not accept that the respondent deliberately deleted or withheld from disclosure MS Teams Chats. We heard no cogent evidence from the claimant or anyone else to show that there were any such MS Teams Chats on issues relevant to his claim, which were not disclosed. It is a pure speculation that someone might have said something about the claimant in those MS Team Chats. (iv) The claimant’s solicitors’ application for specific disclosure, albeit having identified some specific documents, was largely a fishing expedition. Their demands concerning the scope of searches and search parameters were disproportionate in the context of this claim. 77. For these reasons, we find that the nature, gravity and effect of the respondent’s unreasonable conduct does not justify the Tribunal exercising its discretion and making a costs order against the respondent, which we decline to do. 78. Finally (and purely obiter), it appears to us that a costs award in these circumstances would be an undesirable development in employment tribunals proceedings, inviting satellite costs litigations on peripheral matters, which would run contrary of the main purpose of the system of employment tribunals, that is to provide a relatively quick, affordable and less formal way of resolving workplace disputes.