Mr D Ireland v University College London: 2203825/2019

EMPLOYMENT TRIBUNALS

Case No 2203825/2019

Between

Mr D IrelandClaimant

University College LondonRespondent

Before

Employment Judge Quill

In person for claimant

Date 25 March 2021

JUDGMENT

The Claimant’s applications for strike out of the response under Rules 37(1)(a) and 37(1)(b) respectively are each dismissed. The Respondent’s applications for strike out of the claim under Rules 37(1)(a) and 37(1)(b) respectively are each dismissed. JUDGMENT The unanimous judgment of the Tribunal is that:

[1]The Respondent did not discriminate against the Claimant because of race.

REASONS

Preliminary

[1]By a claim form presented on 6 October 2019 the Claimant brought a claim of race discrimination against the Respondent. The dates for ACAS Early Conciliation were 18 August 2019 to 10 September 2019.

[2]The Claimant applied for a post with the Respondent. A conditional offer was made and subsequently withdrawn. The Claimant says the withdrawal was because of his race. The Respondent admits making an offer to the Claimant which was withdrawn. It asserts that the withdrawal was justified and that – in any event – the decision was not influenced by race.

[3]The issues between the parties were identified at a Telephone Preliminary Hearing on 6 May 2020 as follows: 1 of 17 Time limits / limitation issues 3.1. Were all of the claimant’s complaints presented within the time limits set out in sections 123 of the Equality Act 2010 (“EQA”)? EQA, section 13: direct discrimination because of race (which the Claimant describes, for purposes of this claim, as “white”) 3.2. Did the respondent subject the claimant to the following treatment: 3.2.1. On 24 June 2019, withdrawing a conditional offer. 3.3. Was that treatment “less favourable treatment”, i.e. did the respondent treat the claimant as alleged less favourably than it treated or would have treated others (“comparators”) in not materially different circumstances? The claimant relies on hypothetical comparators. 3.4. If so, was this because of the claimant’s race. Remedy 3.5. If the claimant succeeds, in whole or part, the Tribunal will be concerned with issues of remedy and in particular, if the claimant is awarded compensation and/or damages, will decide how much should be awarded.

Remedy

[4]At the start of the hearing the Claimant said that he had made a number of applications which the Tribunal had yet to deal with. The Respondent said that all applications had already been decided, save the Claimant’s application for a witness order.

[5]EJ Brown asked the Claimant to list his outstanding applications. The Claimant had made an application for reconsideration of a decision made earlier in the case. EJ Brown explained that the reconsideration application would need to be dealt with by the Judge who had made that decision.

[6]The Claimant said that he had applied for specific disclosure of 3 categories of document. Ms M Tutin for the Respondent explained the Respondent’s position on each: 6.1. Documents relating to the decision made by HR documents, showing the reasons for rejecting the Claimant’s travel expenses. The Respondent said that all documents relevant to the decision to reject the Claimant’s travel expenses had already been disclosed. 6.2. Documents recording the race of the other 2 candidates for the job; documents recording the race of the Claimant’s prospective immediate line manager who was not chosen to be on the selection panel. The Respondent said that its witness would give evidence about this and the Claimant could cross examine her. 6.3. Documents relating to the appointment of the 3rd panel member. The Respondent said that all these documents had already been disclosed.

[7]The Tribunal ordered the Respondent to disclose any records it held of the 2 other candidates’ race/ethnicity and the race/ethnicity of the Claimant’s prospective manager who did not sit on the interview panel. These documents were relevant. 2 of 17 It would be quicker and easier to address the issue of these people’s race by disclosing relevant records than cross examination on the subject.

[8]The Respondent then disclosed these records, before the Claimant gave his evidence.

[9]The Tribunal did not make any order regarding the other documents the Claimant sought. The Respondent had said that all such documents had already been disclosed. The Tribunal would not make an order where it was futile to do so. If it later appeared that the Respondent had failed to disclose relevant documents that would be a serious matter.

[10]The Claimant asked the Tribunal to call a member of the Respondent’s HR department, of the Tribunal’s own motion, rather than on his application, so that the Claimant could cross examine them. He said that the Respondent had made assertions in its Response for which there was no evidence. The Claimant wanted to cross examine a Respondent HR witness, to prove that the assertions were incorrect. The Tribunal said that, if there was no evidence to support some of the Respondent’s contentions, then the Claimant could make submissions about that. It was not necessary for a fair hearing for a witness to be called, and cross examined, to prove that lack of evidence. It would not be in accordance with the overriding objective to order a witness to attend to prove an absence of evidence – this would increase the length of the hearing and costs, and would not alter the state of the evidence.

[11]The Tribunal heard evidence from the Claimant and from Loleta Fahad, the Respondent’s Research Operations Manager at the relevant time.

[12]There was a Bundle of Documents and a Claimant’s Additional Bundle of Documents. Both parties made submissions.

[13]During submissions, the Respondent asked the Tribunal to take into account that the Claimant had allegedly accused the Respondent and/or its representatives of misleading the Tribunal and/or fabricating evidence, without substantiating such serious allegations and had used unpleasant and sometimes abusive language in correspondence regularly. The Respondent’s written submissions provided page references for relevant correspondence. The parties had not drawn this correspondence to the Tribunal’s attention during evidence and the Claimant had not been cross examined on it. The Tribunal indicated that, in making its decision on liability, it would not take into account documents it had not already seen, or heard any evidence about. This would not be a fair way to proceed.

The Facts

[14]Loleta Fahad, the Respondent’s Research Operations Manager, commenced a recruitment exercise for two Research Operations Administrators in May 2019.

[15]Shortly afterwards, a Project Administrator post also became vacant and, instead of advertising that role separately, Ms Fahad decided to recruit a third Research Operations Administrator. 3 of 17

[16]The Research Operations Administrators roles were advertised on a 6 month fixedterm basis. The Claimant told the Tribunal that the relevant job advert “used BME positive action.” He said he was not alleging that the Respondent had acted wrongly in doing so.

[17]The Claimant applied for the Research Operations Administrator posts. He named three referees on his application form, Laura Groves - University of Oxford (ﬁve months employment in 2018, most recent employer), Pompimon Adams - Mahidol University Thailand (seven months employment in 2016-17) and Emma Montgomery - Plymouth University (four months employment in 2016).

[18]After the closing date for applications, the Respondent’s HR department sent Ms Fahad anonymised versions of the candidates' applications. Ellora Khan, who would be the line manager of at least one of the anticipated appointments and who had familiarity with the vacancy, assisted Ms Fahad to shortlist individuals for interview.

Relevant Law

[19]The anonymised applications displayed the candidates' employment history, qualifications and their supporting statement. The candidates' ethnicities were not provided on the anonymised applications.

[20]Ms Fahad told the Tribunal that she considered that the application which she now knows to be the Claimant’s, p 311 – 317, was strong, in that it showed that he had had a variety of fixed term research administration experience, from a range of universities. His experience of working with a wide range of funders, and the fact that he had worked abroad, suggested that he could work well with different people. The tasks and responsibilities he had undertaken in these previous roles largely matched what was required of a Research Operations Administrator. The Claimant did not challenge Ms Fahad’s on her evidence that she thought that his application was strong.

[21]The Respondent's Recruitment and Selection Policy in place at the time stated that "all interviews must be conducted by a panel', p155. The panel must "consist of a minimum of three people including the immediate line manager of the vacant post, a colleague who is familiar with the area of work and a third person, preferably from outside the department to balance the panel's perspective", p156. The Policy also stated that the panel must reflect an ethnicity balance wherever possible, p156. It stated that "single sex panels must be avoided', p 156, and that panel members must have "received training in fair recruitment', p156. The Policy also advised “Consider if the appointment is to a department providing services to the rest of the university, inviting an end user of these services to join the panel.” P156

[22]The Respondent’s Fair Recruitment Specialist Initiative Document, issued by the Office of the President and Provost, says, “… diverse recruitment panels are regarded as a significant element in fair and effective recruitment. It adds a variety of perspectives to decision-making, helps mitigate against 'cloning' and the perpetuation of current profiles, reduces the possibility of stereotyping, can improve candidate performance by reducing 'stereotype threat' and is a visible demonstration of UCL's commitment to diversity and inclusion.” p470. 4 of 17

[23]Ms Fahad told the Tribunal that she was due to sit on the interview panel as the Hiring Manager who was familiar with the area of work. She said that Ellora Khan, as an immediate line manager for the Research Operations Administrator role, also joined the interview panel. Both Ms Fahad and Ellora Khan identify as BAME.

[24]The Claimant cross examined Ms Fahad about why Gill Eaton, who is white, and was to be the Claimant’s line manager, was not chosen for the interview panel. Ms Fahad said that there had already been 2 recruitment rounds for these posts, which had failed to appoint to the posts. The 3 potential posts were going to be managed by Gill Eaton and Ellora Khan. Mses Eaton and Khan therefore shared the relevant workload. In the last recruitment round, Ms Eaton had been on the recruitment panel. She had a heavy workload and it was not fair for her to have to take time out of her diary again so soon, to be on another recruitment panel. In any event, Ms Fahad said that it was only decided after the interviews which candidate would be allocated to which manager. After the interviews, the managers looked at the Claimant’s skills and experience and decided that the department Ms Eaton was managing would be a good fit for him.

[25]The Tribunal considered that Ms Fahad’s evidence on this was very credible. She explained the history of the recruitment processes and why it was not appropriate for Ms Eaton, who had other managerial tasks, to be required to sit on this interview panel. The Tribunal accepted her evidence.

[26]Having identified 2 panel members from within the relevant department, Ms Fahad was required to find a further panel member from outside the department. As the Policy stated that "single sex panels must be avoided', p 15, and Mses Khan and Fahad identify as female, Ms Fahad said that the priority was securing a third panel member who identified as male. Panel members also needed lo have "received training in fair recruitment', p156.

[27]The Tribunal noted that the Respondent’s Policy was explicit that it was a mandatory requirement that a panel should not be single sex, and that it was also a requirement that panel members must be trained. It accepted Ms Fahad’s evidence that her priority was to comply with these mandatory policy requirements.

[28]Ms Fahad told the Tribunal that she initially considered Nick Mulliss, Head of Faculty lT for the lnstitute of Education, and who is white, as the third panel member. She said, however, that Mr Mulliss was on annual leave over the interview period. The Claimant cross examined Ms Fahad about Mr Mulliss’ ethnicity and his lack of availability. The Claimant had not sought a record of Mr Mullis’ ethnicity. Ms Fahad said, “Everyone knows Nick Mulliss is white”. She told the Tribunal that, when she had started typing an email to Mr Mulliss on Outlook, the programme automatically showed his “out of office” message, which stated that he was on leave at the relevant time.

[29]The Tribunal accepted Ms Fahad’s evidence on this, and that Mr Mullis’ ethnicity is white. There was no reason to disbelieve what she said in this regard.

[30]Ms Fahad then contacted two colleagues, Chris Routh (Short Course Coordinator) and Richard Palmer (Programme Services Coordinator), by email, to see if they 5 of 17 were available, p 487 – 490. Ms Fahad had sat on interview panels with both in the past and considered that they were reliable colleagues, who would give genuine feedback.

[31]Both Messrs Routh and Palmer were unavailable on the date the interviews were initially scheduled, Thursday 6 June 2019. Ms Fahad moved the interviews to Friday 7 June 2019, when Mr Palmer was available. Mr Palmer is BAME. Mr Routh is white.

[32]The Claimant cross examined Ms Fahad about her moving the interviews to Friday 7 June, but not establishing whether Mr Routh was available that day. The Claimant put to her that she had gone straight to Mr Palmer as a panel member for 7 June. Ms Fahad responded that she had set aside that week for interviews when she had advertised the roles. She said that, when Mr Palmer had replied to her email, he had offered Friday 7 June as an alternative. She said that Mr Routh was already interviewing all day on Thursday 6 June; and he was a line manager with other work to do.

[33]In Mr Routh’s email of 28 May 2019, replying to Ms Fahad’s enquiry about interviewing on 6 June, Mr Routh said, “I’ve checked my availability that day and I am sorry to say that I cannot be on an interview panel with you because I’m on an interview panel for a post in this office! I’m sorry I cannot help you this time.” P487.

[34]When Mr Palmer replied also on 28 May 2019, p489, he said, “I've got interim Exam Boards next Thursday and so won't be able to help out this time - sorry! I'm free all day next Friday, if that's any use.”

[35]The Tribunal observed that Mr Palmer’s email made an offer to assist on 7 June. Mr Routh’s response had an air of finality regarding his inability to assist. The Tribunal therefore believed Ms Fahad’s evidence that she accepted Mr Palmer’s offer to interview on 7 June. That was the sensible and logical response to the emails from Messrs Routh and Palmer.

[36]The Claimant contended that Ms Fahad could have approached a service recipient - in this case, a researcher - of which the Respondent would have hundreds, and many of whom would be white males. The Claimant told the Tribunal that, in his view, Ms Fahad had made a token effort to include a white colleague on the panel.

[37]Ms Fahad told the Tribunal that it would not have been appropriate to ask a researcher to be on the panel. Panel members needed to understand the work the team did, and how it was prioritised and executed. She said that she had wanted panel members with a line manager background She said that she was happy with the panel members; she considered that they were fair and understood the work of the team.

[38]The Claimant cross examined Ms Fahad about the fact that all panel members were BAME. Ms Fahad told the Tribunal that she was not concerned that the interview panel would consist of three BAME individuals, as she was confident that all were committed to recruiting the best candidates, irrespective of their own race and the race of any candidates they would be interviewing. 6 of 17

[39]The Tribunal was satisfied that, when Ms Fahad was trying to appoint a 3rd panel member, she tried 3 managers, 2 of whom were white and one of whom was BAME. The only reason that the BAME 3rd panel member was eventually selected was that he had made himself available to attend an interview panel in the relevant week.

[40]Initially, there were 4 candidates due to be interviewed for the role of Research Operations Administrator. One dropped out, so only 3 were interviewed.

[41]On 30 May 2019, as required by the Respondent’s interview travel expenses policy, the Claimant requested pre-approval of a train fare from his home in Yeovil to the interview. This request was declined on 5 June 2019 via email from the Respondent’s HR coordinator, p357. The Claimant did not immediately challenge this.

[42]The interviews for the Research Operations Administrator posts were conducted on Friday 7 June 2019. The interview panel scored the candidates against the criteria for the role, using an interview grid, p75.

[43]The Claimant was Candidate A. Candidate B was an internal candidate and Candidate C was external.

[44]Ms Fahad told the Tribunal that Candidate B appeared eager to learn more about research administration, and performed well in the interview, scoring 17 out of 27. Candidate C struggled during the interview, scoring 11 out of 27, p75.

[45]Ms Fahad gave evidence that the Claimant performed best out of the 3 candidates at interview. He gave clear examples when answering questions and presented in a very professional manner. He scored 18 out of 27, p75.

[46]The panel decided that both the Claimant and Candidate B would be made conditional job offers, but that Candidate C would be rejected, based on their interview performance, pp 73 and 76.

[47]Ms Fahad told the Tribunal that, during the interview, she perceived both the Claimant and Candidate B to be white, and she perceived Candidate C to be BAME.

[48]The ethnicity records disclosed by the Respondent recorded that Candidate C was BAME, but that Candidate B had withheld their ethnicity. The Claimant contended that the Respondent could have produced some other evidence of Candidate B’s ethnicity like their Identity Badge. Ms Tutin, for the Respondent, said that an ID badge would not be proof of someone’s ethnicity.

[49]The Tribunal observed that the Claimant did not challenge the fact that Ms Fahad viewed herself as BAME, Ms Khan as BAME and Ms Eaton as white. There was no reason for the Tribunal to disbelieve what Ms Fahad said about candidate B’s ethnicity. 7 of 17

[50]On 11 June 2019 Ms Fahad telephoned both successful candidates to tell them, informally, that they had been offered the post, subject to the receipt of satisfactory references.

[51]The Claimant told her that he wished to start as soon as possible and, on the same day, Ms Fahad wrote to Grace Jackson-Cole, Recruitment and Payments Coordinator, saying, "Dominic … confirmed that he is available to start as early as next week! Can you please take this forward and request references, etc.? As Dominic is available and keen to start as soon as possible, I would be grateful if his reference requests could be sent out as soon as possible.”, p73.

[52]Ms Fahad told the Tribunal that she wanted the Claimant to start as soon as possible. The Tribunal considered that her email to Ms Jackson-Cole on 11 June 2019 reflected that wish.

[53]Ms Fahad told the Tribunal that, if Candidate C had performed better at interview, it was highly likely that they would have been offered a post as well, because of the intensity of the workload within the team at the time.

[54]On 12 June 2019 the Respondent sent the Claimant a formal offer of employment. The offer letter stated that "this offer will be subject to the receipt of satisfactory references and completion of UCL pre-employment checks", p79. A follow up offer was sent, at an increased salary, on 18 June 2019, subject to receipt of satisfactory references as before, p81.

[55]On 19 June 2019, Grace Jackson-Cole emailed the Claimant’s 3 referees, asking for a reference, p88. She said, “The above-named is being considered for the position of Research Operations Administrator and has indicated that you would be willing to provide a reference. Please find the job description attached. I would be grateful if you would confirm: Title and service dates at your organisation: Employment relationship to you as a referee: Sickness/absence record over the last 24 months: Whether there any current formal disciplinary warnings: Reason(s) for leaving your employ (where applicable): Comments regarding suitability for the post: May I take this opportunity of thanking you in advance for any help you are able to give; your prompt reply would be much appreciated.”

[56]Ms Fahad told the Tribunal that the process of contacting referees and managing the references was an HR function, and Ms Fahad was not involved in communicating with the referees.

[57]Responses were received in respect of the Claimant from Referees 1 and 2.

[58]No response was received from Referee 3. Ms Fahad told the Tribunal that there was no “out-of-office” reply from that referee, either. 8 of 17

[59]Ms Jackson-Cole sent a follow-up email to referee 3 on Monday 24 June 2019, at 14.36, saying, “Apologies for chasing you, I am sure that you are busy.” P91.

[60]The Claimant told the Tribunal that referee 3 was, in fact, on maternity leave and that she must have had her “out- of-office” response activated at the time.

[61]The Tribunal noted that, when Ms Jackson-Cole emailed Ms Fahad at 15.02 on 24 June, enclosing the referee 1 and 2’s references, she said that referee 3’s reference was “pending”. She did not mention that she had received any out-ofoffice response. If an out-of-office response had been sent that day, she would have received it almost immediately, and before she emailed Ms Fahad.

[62]There was no out-of-office response, in the documents in the Bundle, to either of the emails Ms Jackson-Cole sent to referee 3.

[63]The Tribunal accepted Ms Fahad’s evidence that no out-of-office was received from Referee 3. There was none on the bundle. Ms Jackson-Cole, who was collecting the references, sent emails which appeared to indicate that she was still expecting a response from referee 3, rather than she had received an out-of-office response indicating that referee 3 was on maternity leave and therefore would not be in a position to provide a reference.

[64]Ms Jackson-Cole emailed Ms Fahad and Sam Reid, Human Resources Business Partner on 24 June 2019 at 15.02, attaching the two references for the Claimant and asking how they wished to proceed in light of the responses, p95.

[65]Ms Reid is Ms Fahad’s senior HR contact for the Research Operations department.

[66]Referee 2 had emailed briefly, on 19 June 2019, saying, “I decline to provide a reference for this candidate. Please accept my apologies for any inconvenience.” p88. Referee 2 did not give a reason for failing to give a reference.

[67]Referee 1 had replied, on 24 June at 14.46, " Apologies delay (sic), I am actually relocating from Plymouth to York at the end of this week, so it’s been pretty manic. Dominic was only with this team for a short while, he didn’t finish his probation period and it would have been unlikely that he would have successfully completed this probation.... Dominic was not in post long enough for me to be able to give a full assessment of suitability, there were a number of areas of weakness". P89.

[68]Ms Fahad replied to Ms Jackson-Cole on 24 June at 15.10 saying, “In light of the emails received so far, I am not prepared to proceed with the appointment and would like to withdraw the offer. Referee 3 is the last place of employment, but even if they came back with a very strong reference, Referee 2 and Referee 1 employed Dominic prior to this and we have one refusal and the other is not favourable." P94.

[69]Ms Reid replied at 15.14 the same day saying, “I would consider these unsatisfactory references.” P 94. 9 of 17

[70]Candidate B had already passed external referencing in 2016, when they first obtained a job at UCL. As a result, they needed one internal reference.

[71]Candidate B’s reference from their line manager stated, p103: “Comments regarding suitability for the post: [Candidate B] has been working at grade 6 level for the last 3 years and has been helping with research finance over the last year. [Candidate B] enjoys the research finance side and this secondment will give [them] opportunity (sic) to work fully in research finance administration.”

[72]There were no negative comments about Candidate B in their referee's response.

[73]The Claimant pointed out to the Tribunal that Ms Fahad’s email of 24 June 2019 at 15.10, p94, was sent within only 8 minutes of Ms Jackson-Cole sending her the referee responses update email, p95. He said that Ms Fahad decided to ‘withdraw the offer’ as a negative snap judgement, rather than a carefully considered review of options. He said that she did not seek input from the panel, or advice from HR, or inform the Claimant that references from his two most recent employers had not been received. He said that she had not sought clariﬁcation from the Claimant and did not appear to have conscientiously considered her options with an open mind. The Claimant said that all this bore the hallmarks of unconscious bias.

[74]The Claimant told the Tribunal that in such situations, it is common practice in other UK universities to have policies advising that assumptions should not be made by recruiting staff and that further enquiries with the referee and/or the candidate should take place, in order to obtain objective facts and mitigate bias risk.

[75]He drew the Tribunal’s attention to policies from other Russell Group universities, including a policy used by both the Universities of Cambridge and Warwick, p243, and University of Warwick p390, states: “If a reference is received that questions the suitability of the individual to be appointed, guidance should be sought from the relevant H R Business Manager/Adviser before any action is taken (e.g. a decision is made to withdraw an offer). Important points to consider: - Many organisations outside of higher education have a policy of providing only factual conﬁrmation of an individual's employment (e. g. dates of employment, job title). Applicants should not be disadvantaged by such a standard corporate reference being provided; this will normally be no reﬂection upon them. - If a reference contains negative factual information, the recruiter should consider whether or not this information is relevant (e.g. whether the previous employment is similar to the vacancy in question), and if so whether it is sufficient to render the individual unsuitable for the employment in question. It should be remembered that the fact that someone had a problem in his or her previous employment does not necessarily mean that he or she will be unsuitable for a new or different post. - If a reference contains negative or adverse comments about a prospective recruit that are based on opinion rather than fact, the recruiter should not automatically assume that this information is accurate. The information may 10 of 17 have been given as a result of bias or personal dislike, or may be based on a misunderstanding or something outside the individual 's control. - Where the references obtained do not provide sufficient or satisfactory information, the recruiter should consider seeking further information, for example, by telephoning the referee to ask for clariﬁcation or requesting additional references from alternative sources (with the applicants consent). - The recruiter should also give the applicant the opportunity to provide an explanation for any discrepancies between the information that he or she provided and the information disclosed in the reference. ”

[76]UCL does not have such a policy in relation to references.

[77]Ms Fahad was cross examined about her apparently rapid decision to withdraw the Claimant’s conditional offer.

[78]Ms Fahad’s evidence was that she believes that it is not appropriate to confirm an appointment without satisfactory references being received. She said that the responsibility for identifying suitable referees and providing their contact details lies with the job applicant.

[79]Ms Fahad told the Tribunal that the reference from referee 1 was clearly not a satisfactory reference. lt did not support what the Claimant had written on his application form or said in his interview, nor did it confirm his suitability for the role of Research Operations Administrator. Ms Fahad said that she considered the references from Referees 1 and 2 to be unsatisfactory and, even though Referee 3 was the Claimant's most recent employer, her view was that it did not matter what they might say. Ms Fahad said that she had sufficient doubt about the Claimant’s suitability for the role based on the reference received from Referee 1 and the refusal to provide a reference from Referee 2 to make a decision to withdraw the Claimant’s offer.

[80]Ms Fahad agreed that she would and should interview candidates, according to a Non bias commitment in the Respondent’s Policy which said, “ I will treat them all fairly and objectively. I will not stereotype or make assumptions about them. I will treat them as an individual.”

[81]She agreed that panel discussions would mitigate any risks of bias in the interview process.

[82]However, she did not agree that the interview panel would also be involved in discussing references which were received. She said that it was the team with whom the candidates would work who would make a decision on references.

[83]Ms Fahad denied that she had made a peremptory decision within a few minutes of Ms Jackson-Cole’s email enclosing the references. She told the Tribunal that she had been telephoning Ms Jackson-Cole to see what was happening with the references, particularly because the Claimant was available to start as soon as possible and the team wanted the Claimant in post. She said that she had also spoken to Mses Khan and Eaton, to let them know that the references were not 11 of 17 what the team were expecting. She denied that she had made decision by herself. She said that Ms Khan sat in the office 2 desks away and she kept her informed of process and what was happening.

[84]Ms Fahad agreed, in cross-examination, that she had not spoken to the original panel before making her decision, but said that she had discussed the decision with the line managers, Ms Khan and Ms Eaton.

[85]Ms Fahad was cross examined about making assumptions and bias. She said that “the alternative to making assumptions is gathering facts”. She said, “I look for references which confirm what the candidate has said in their application and interview. If a reference does not confirm the strengths and qualities of candidate then it is not satisfactory. I have never had an instance like this before where I have not had at least one strong reference for an individual.”

[86]The Tribunal accepted Ms Fahad’s evidence that she had been following up the references with Ms Jackson-Cole by telephone, before Ms Jackson-Cole’s email on 24 June. Given that there had been two failed recruitment processes and the Claimant had performed best in interview and was available to start quickly, it was entirely credible that Ms Fahad was chasing his references, with a view to the Claimant commencing in post as soon as possible.

[87]The Tribunal also accepted that Ms Fahad discussed the Claimant’s references with Ms Khan and Ms Eaton. They had clearly all been discussing the Claimant commencing in post, as they had already decided to allocate the Claimant to Ms Eaton’s team, after the interview. It was likely, given that they worked in close proximity to each other, that Ms Fahad did consult with them as she described. It was also highly likely that Ms Fahad consulted Ms Eaton about the Claimant’s references, given that he had been allocated to Ms Eaton’s team.

[88]From the email chain between Ms Reid, Ms Fahad and Ms Jackson-Cole, Ms Reid also agreed with the decision to withdraw the offer. She advised Ms Jackson-Cole as to the wording to use when telling the Claimant that the offer had been withdrawn, p92a.

[89]Ms Jackson-Cole emailed the Claimant on 24 June 2019 saying that: "l regret to inform you that due to receipt of unsatisfactory references, we will not be proceeding with the appointment, and are withdrawing our offer of employment'. P99.

[90]On the same day, the Claimant emailed Ms Fahad asking, "What has happened here, particularly due to Grace's use of the plural "receipt of unsatisfactory references", p99.

[91]Ms Fahad consulted with Ms Reid as to how to respond, p97 - 98. On 26 June she replied to the Claimant saying, p101, 'Of the three referees put forward in your application form; one declined to provide a reference, another indicated that you left during your probationary period, and the third we did not receive. On this basis, the requirement of satisfactory references has not been met. The appointment was subject to this condition being met, so on that basis, we are withdrawing the offer'. 12 of 17

[92]The Claimant questioned the decision further and said he wished to raise a formal complaint. He received responses from Chloe Milano, Head of HR for the lnstitute of Education and from Peter Warwick, Director of Employee Relations. Ms Fahad was not involved with those communications.

[93]Candidate C, the unsuccessful BAME candidate, was not offered a role when the Claimant’s offer was withdrawn. A further recruitment round to fill the vacant role did not take place.

[94]The Claimant later contacted his referee 2, asking if she had been asked to provide a reference. Referee 2 replied, on 16 July 2019, saying “No, I have not been contacted. Please ask them to contact HR for work reference.” p322. Referee 2 appears to have misled the Claimant in her reply, as she had been contacted and had been declined to provide a reference. She had not directed Ms Jackson-Cole to Referee’s HR department for the relevant reference. Travel expenses

[95]The Respondent’s 2016 Race Equality Charter Mark application form says, “In 2013 we introduced anonymised recruitment for all Professional Services posts. The online system now automatically removes candidates’ names and addresses from the application form so it is much more difficult to infer a candidates ethnicity. We consider anonymisation an important tool in fair recruitment and it gives us more confidence that bias may be less of a feature in shortlisting.” p9, Additional Bundle.

[96]Before the interviews, Ms Jackson-Cole emailed Ms Fahad on 3 June 2019 to notify her that a candidate had asked whether their train fare of £64.20 could be reimbursed, p356. She did not say which candidate this related to.

[97]Ms Fahad had not been asked to authorise interview travel expenses before, and spoke with HR regarding UCL'S policy on travel expenses. She was advised that interview expenses are at the discretion of the department, who have the right to decline any expenses deemed to be unreasonable.

[98]Ms Fahad responded to Ms Jackson-Cole saying, “Although in principal I’m happy to cover interview travel expenses, that’s quite a lot of money. I assume the person is travelling from their permanent residence, but do you know where they’re located?” p355.

[99]Ms Jackson-Cole notified Ms Fahad that the candidate was travelling from Yeovil, page 355. Ms Fahad responded, “For a number of reasons I’m not prepared to cover the travel costs. I don’t know the personal circumstances but I find it strange that somebody based in Yeovil wishes to travel to London to interview for a Grade 6 job”, p355.

[100]Ms Fahad told the Tribunal that she had ultimately decided that it was not reasonable for the department to pay the expenses of a return train ticket from 13 of 17 Yeovil because the fare was high, and candidates rarely claim expenses in any event, p 357.

[101]It was not in dispute that Ms Fahad was unaware throughout this exchange, that it was the Claimant who had asked for his travel expenses to be covered.

[102]The Claimant contended that Ms Fahad would have known, from the fact he was travelling Yeovil, that he was likely to be white. He relied on the Respondent’s 2016 Race Equality Charter Mark application form in saying that it has been acknowledged that his address could reveal his ethnicity.

[103]Ms Fahad said in evidence that, in hindsight, she should simply have agreed to pay for the expenses. In cross examination , however, she said that she would have made the same decision in relation to a candidate who lived in Leicester.

[104]The Claimant later challenged the decision and his expenses were paid on 31 October 2019.

[105]The Tribunal accepted Ms Fahad’s explanation that she had declined to pay the expenses because candidates rarely sought expenses and this expense was high. She clearly did not know that it was the Claimant who was seeking his expenses. As Ms Fahad stated at the time, the expense request appeared strange, in that an employee earning £30,000 a year would not be likely to be able to pay £64.20 daily commuting costs. These were objectively reasonable grounds for questioning the expenses claim.

[106]In June 2020, in a message from the Dean regarding Black Lives Matter, the Respondent said that its research had shown racial bias against colleagues in recruitment practices, additional bundle, p7. The Claimant told the Tribunal that he had requested these findings under a Freedom of Information request, but had been told by the Respondent that it does not have any such information, p5, Additional Bundle]. Relevant Law Direct Race Discrimination

[107]By s39(2)(d) Equality Act 2010, an employer must not discriminate against an employee by subjecting him to a detriment.

[108]Direct discrimination is defined in s13(1) EqA 2010: “(1) A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

[109]Race is a protected characteristic, s4 EqA 2010.

[110]In case of direct discrimination, on the comparison made between the employee and others, “there must be no material difference relating to each case,” s23 Eq A 2010. 14 of 17

[111]The ET must establish whether or not the alleged discriminator’s reason for the impugned action was the relevant protected characteristic. In Chief Constable of West Yorkshire Police v Khan

[2001] IRLR 830

, Lord Nicholls said that the phrase “by reason that” requires the ET to determine why the alleged discriminator acted as he did? What, consciously or unconsciously, was his reason?.” Para [29]. Lord Scott said that the real reason, the core reason, for the treatment must be identified, para [77].

[112]If the Tribunal is satisfied that the protected characteristic/act is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it had a significant influence, per Lord Nicholls in Nagarajan v London Regional Transport

[1999] IRLR 572

, 576. “Significant” means more than trivial, Igen v Wong, Villalba v Merrill Lynch & Co Inc

[2006] IRLR 437

, EAT.

[113]The shifting burden of proof applies to claims under the Equality Act 2010, s136 EqA 2010.

[114]In approaching the evidence in a case, in making its findings regarding treatment and the reason for it, the ET should observe the guidance given by the Court of Appeal in Igen v Wong

[2005] ICR 931

at para 76 and Annex to the judgment.

[115]In Madarassy v Nomura International plc. Court of Appeal,

2007 EWCA Civ 33

[2007] ICR 867

, Mummery LJ approved the approach of Elias J in Network Rail Infrastructure Ltd v Griffiths-Henry

[2006] IRLR 865

, and confirmed that the burden of proof does not simply shift where M proves a difference in race and a difference in treatment. This would only indicate a possibility of discrimination, which is not sufficient, para [56 – 58] Mummery LJ.

[116]The Tribunal took into account all its findings of fact, and the relevant law, when reaching its decision.

[117]On the facts, Ms Fahad withdrew the Claimant’s conditional offer in the circumstances that, of all the references requested, one had failed to reply, one had declined to provide any reference and one had provided an unfavourable reference.

[118]The Tribunal concluded that Ms Fahad would not have treated a BAME comparator differently to the way in which she treated the Claimant. It decided that, in those circumstances, she would also have withdrawn an offer made to a BAME candidate.

[119]It decided this for the following reasons:

[120]Candidate B, who the Tribunal found was also white, but who received a positive reference, was appointed to the same post. Candidate C, who was BAME, and who performed worse than the Claimant at interview, was not offered a post 15 of 17 by the panel (which included Ms Fahad). Candidate C was not offered a post, even when the Claimant’s offer was withdrawn, and even though the department was keen to appoint to the posts. This strongly indicated that the Respondent’s, and Ms Fahad’s, decision making was based on performance - and not on race.

[121]The contemporaneous email exchange between Ms Fahad, Ms Jackson-Cole and Ms Reid recorded that Ms Fahad decided to withdraw the offer because of the references received for the Claimant.

[122]On the facts, the Respondent did not receive any positive references for the Claimant. 122.1. Referee 2 had declined to provide a reference at all; she had not suggested that her HR department might provide one. 122.2. Referee 1’s reference was not good. It specifically said that the Claimant did not finish his probation period and he had a number of areas of weakness, p89. 122.3. There had been no response from referee 3, despite a chasing email. There was no out-of-office reply from referee 3’s email system to the reference request. This was a clearly unsatisfactory set of references and/or responses.

[123]The panel, which included Ms Fahad, had given the Claimant the highest score of all candidates interviewed and had offered the role to him. Ms Fahad was keen to appoint the Claimant and encouraged Ms Jackson-Cole to obtain his references quickly, so that he could start in the role. Her enthusiasm about the Claimant commencing in the role only changed when the reference responses were received. This strongly indicated that it was the unsatisfactory references, and nothing else, which led to the decision to withdraw the offer of employment.

[124]The Tribunal accepted Ms Fahad’s evidence that she discussed the decision to withdraw the offer with Ms Eaton and Ms Khan. There was documentary evidence that Ms Reid agreed that the references were unsatisfactory. The decision was not taken by Ms Fahad alone, without consultation, as the Claimant has alleged.

[125]The Respondent does not have guidance indicating that further enquiries should be made in the event of unsatisfactory references. Ms Fahad therefore acted in accordance with the Respondent’s policies, even if other institutions have different procedures. There was no evidence, therefore, that Ms Fahad would have treated a non white candidate differently.

[126]The Tribunal rejected the Claimant’s contention that Ms Fahad had made assumptions and had displayed bias when she decided that the references were unsatisfactory and did not undertake further investigations into them. The Tribunal noted Ms Fahad’s assertion that “the alternative to making assumptions is gathering facts”. It accepted her evidence that, “I look for references which confirm what the candidate has said in their application and interview. If a reference does not confirm the strengths and qualities of candidate then it is not satisfactory. I have never had an instance like this before where I have not had at least one strong reference for an individual.” Ms Fahad had gathered facts by collecting the 16 of 17 references. The references were unsatisfactory. This was not an assumption, it was a fact.

[127]The Tribunal rejected the Claimant’s contention that Ms Fahad made insufficient efforts to select a white person as the third member of the panel. The Tribunal decided that the entirely BAME composition of the panel did not indicate bias, unconscious or otherwise, by Ms Fahad. The Tribunal accepted Ms Fahad’s evidence that Ms Eaton had a heavy workload and it was not fair for her to have to take time out of her diary again so soon, to be on another recruitment panel. It found that, when Ms Fahad was trying to appoint a 3rd panel member, she tried 3 managers, 2 of whom were white and one of whom was BAME. The only reason that the BAME 3rd panel member was eventually selected was that he had made himself available to attend an interview panel in the relevant week. This was nothing to do with race. Ms Fahad also gave a cogent, non discriminatory, reason as to why it would have been inappropriate to ask a researcher to be on the panel. Panel members needed to understand the work the team did, and how it was prioritised and executed.

[128]In any event, the entirely BAME panel, of which Ms Fahad was a member, scored the Claimant top of the candidates, including a BAME candidate.

[129]The Tribunal rejected the Claimant’s contention that Ms Fahad sought to discourage the Claimant from attending the interview on the basis that she knew he lived in an area with an apparently very low population of BAME individuals. The Tribunal accepted Ms Fahad’s explanation that she had declined to pay the expenses because candidates rarely sought expenses and this expense was high. She clearly did not know that it was the Claimant who was seeking his expenses. As Ms Fahad stated at the time, the expense request appeared strange, in that an employee earning around £30,000 gross a year would not be likely to be able to pay £64.20 daily commuting costs. These were objectively reasonable, non discriminatory, grounds for questioning the expenses claim.

[130]On all the evidence, the Tribunal accepted Ms Fahad’s evidence that she decided to withdraw the Claimant’s offer because of the lack of satisfactory references. This was nothing to do with race.

[131]The Claimant’s claim fails. _______ _25 March 2021__

Preliminary

[1]By a Judgment promulgated on 25 March 2021 the Tribunal dismissed the Claimant’s of race discrimination claim against the Respondent.

[2]By a Judgment promulgated on 27 June 2021 the Tribunal ordered the Claimant to pay the Respondent’s costs of the proceedings in the sum of £14,000.

[3]On 10 July 2021 the Claimant made a written “Wasted costs application” against the Respondent’s representatives in respect of “preparation of Rule 71 costs Judgment reconsideration application.” The application was in the following terms; “Wasted Costs I have regularly warned the respondent’s representative that I will not allow it to rewrite in its client’s favour what occurred during the withdrawal of my offer. However, it was clearly intent on avoiding the reputation damage of backing down to a litigant in person, and proceeded to subject me to 16 months of unscrupulous and unethical conduct as detailed below. I therefore claim ten hours preparation time @ £41ph for preparation of my Rule 71 costs Judgment reconsideration application dated 10 July 2021, totalling £410, in response to James Major of Clyde & Co’s highly improper and unethical attempt to 1 of 11 effectively defraud me via the costs Judgment. I rely on the chronology of the persistently unreasonable, unethical & fraudulent conduct set out below:

[1]November 2019 - The respondent’s submitted grounds of resistance included false statements including: ● Point 7.3 “Referee 3 did not respond to the Respondent's attempts to contact them”. This was my most recent referee at University of Oxford, and the Respondent made this false assertion in the full knowledge that my conditional offer was withdrawn on Wednesday 24 June 2019, only three working days after references were requested on Friday 19 June 2019, as confirmed by the findings of the liability Judgment. Three working days is clearly insufficient to deem a failure to reply, as made clear in 3.9 of my witness statement. ● Point 8 “In accordance with its recruitment & selection policy, the Respondent withdrew the job offer from the Claimant”. The respondent made this false assertion in the full knowledge that its recruitment & selection policy required Ms Fahad to obtain my most recent reference, as set out at 3.8 of my witness statement, but she did not want to await its arrival or consider its content, as confirmed by Point 68 of the liability Judgment. ● Point 7 “The references received were unsatisfactory”. The respondent made this false assertion in the full knowledge that it received only one reference, as confirmed by Point 122 of the liability Judgment, and that the sole reference received was vague and subjective. 16.65 of the EHRC Statutory Employer Code required Ms Fahad to contact me about this reference in order to demonstrate that she was not acting in a discriminatory manner. Point 3.6 of my witness statement informed the liability hearing that the respondent had not complied with this EHRC requirement.

[2]November 2019 - The respondent committed an abuse of process by seeking a strike out hearing based on knowingly false assertions, per point 1 above. The respondent then twice requested that the disclosure order be set aside, because it knew that documentary evidence existed which proved that the assertions in the above bullet points were false.

[3]February 2020 - On the disclosure deadline date of 14 February the respondent failed to disclose key emails sent between Ms Fahad and HR on 24 June 2019, the day of offer withdrawal, which showed exactly what happened on that day. The respondent disclosed them over a month later following a direct request from myself. I gained awareness of these emails from receiving redacted versions in an SAR. Had I not performed the SAR, the respondent would never have disclosed these emails, in clear breach of its disclosure obligations.

[4]February 2020 - The respondent entered a redacted version of the sole reference it received in the bundle, which was from my least recent employer Plymouth University. The name of the referee and employer, and the dates of employment, were concealed. In their place the respondent used a false “Referee 1” label in the full knowledge that my referee 1 and most recent employer on my application form as contained in the bundle was actually University of Oxford. This sought to mislead the Tribunal into believing that a reference from my most recent employer had been obtained and considered in compliance with its recruitment & selection policy, when it knew Ms Fahad had breached the policy by stating that she did not care what my most recent referee would say when the reference arrived. In May 2020 EJ Quill ordered the respondent to enter an unredacted version of this reference in the bundle, but 2 of 11 the respondent failed to do so prior to the preliminary hearing held in June 2020, and I had to insist the respondent do so to several months later when it was clear it intended to avoid doing so for the liability hearing.

[5]February 2020 - The respondent’s employee relations director disclosed an incomplete email exchange between myself and him occurring in July-August 2019 which gave the impression that I had not set out the issues to him clearly prior to commencing tribunal proceedings. EJ Quill’s email of 22 May 2020 reminded the respondent that relevant emails must be disclosed. As the respondent had already disclosed all prior emails in this exchange, the full email exchange was relevant.

[6]March 2020 - In compliance with the overriding objectives’ requirement to avoid delay and minimise costs, and the following March 2020 Covid-19 Presidential Guidance: (6) the tribunal to issue written orders and directions to gather information about some of the issues which a judge might, in normal circumstances, consider are best discussed with parties at an in-person hearing (10) an Employment Judge could order that parties cooperate with each other in producing a statement of agreed facts and a list specifying facts in dispute that require to be determined. (11) during the pandemic, it would be appropriate for written submissions to be used, with each party having the opportunity to comment on the submissions made by the other side. I sent the respondent a questionnaire on 30 March which, had it been able to credibly answer my questions, would have wholly undermined my case and earned it a strike out at the June 2020 preliminary hearing. The respondent refused to cooperate as it knew that doing so would expose fatal flaws & dishonesty in the ET3 which would have won me a strike out instead. The respondent subsequently avoided calling any witnesses at the preliminary hearing to answer these questions, thus causing the proceedings to continue to a full hearing.

[7]April 2020 - I sent the respondent’s representative a preparation time costs warning informing it that its position and attempt to rewrite what occurred during the withdrawal of my offer was clearly unmeritorious. This was disregarded.

[8]June 2020 - Prior to the preliminary hearing the respondent breached two CMO’s by ● failing to send my witness statement to the Tribunal ● changing the bundle page numbering after the bundle finalisation deadline which damaged the bundle page number referencing in my witness statement

[9]June 2020 - In a strike out application the respondent asserted that there could not be a fair trial because I had sent angry emails about the respondent’s HR staff to its representative. EJ Quill rejected this, declined to reduce the listing from 3 days to 1-2 days, and stated that the HR witnesses should attend the liability hearing. Nevertheless, the respondent failed to produce witness statements for them on the November 2020 deadline, in the full knowledge that it had falsified HR assertions in its grounds of resistance, per point 1 above.

[10]June 2020 - At the preliminary hearing the respondent misled EJ Quill into deciding that: ● The basis of my case was an inference that the interview panel was selected to be biased against me. EJ Quill entered this in the deposit order, and then acknowledged it was untrue in a reconsideration email ● My most recent referee at University of Oxford had failed to reply, when the respondent had withdrawn my offer only three days after references were 3 of 11 requested as the recruiting manager Ms Fahad was not interested in what my most recent referee would say, which breached the respondent’s recruitment & selection policy

[11]November 2020 - the respondent breached the disclosure order by stating that research information it held on failures of its procedures to prevent racial bias in colleague recruitment did not exist. An Information Commissioner Decision Notice subsequently proved this to be a false assertion and also stated that the respondent’s lack of transparency had breached the FOIA.

[12]November 2020 to January 2021 - The respondent refused to comply with several document disclosure requests by citing irrelevance, even though the documents related to ● baseless assertions in the sole witness statement produced by the respondent ● matters that EJ Quill had stated in his deposit order could be resolved at the liability hearing The respondent was subsequently ordered to disclose some of these document at the liability hearing.

[13]February 2021 - the respondent stated that it would be “severely prejudiced” if its HR witnesses were ordered to attend the liability hearing, even though it had described them as its “likely witnesses” in its May 2020 strike out application and EJ Quill had stated that they should attend.

[14]March 2021 - At the commencement of the liability hearing the respondent’s counsel misled the Tribunal by asserting that all disclosure had been finalised. This was evidently untrue as the respondent was subsequently ordered by EJ Brown to disclose several documents, and two other documents remained concealed which form the basis of points 1 and 2 of my liability Judgment reconsideration application. These two documents could have proved dishonesty in the respondent’s sole witness statement. I consider their dishonest concealment to have perverted the course of justice.

[15]March 2021 - The respondent’s sole witness dishonestly asserted that her reason for withdrawing my offer was that “I have never had an instance like this before where I have not had at least one strong reference for an individual”, per Points 85 and 126 of the liability Judgment, in full contradiction of her own witness statement and the cogent email evidence which showed that she did not care what my most recent referee might say upon responding, causing her to withdraw my offer only three working days after my referees were contacted, in breach of the respondent’s recruitment procedure. I consider this to have been an act of perjury, which led to the Tribunal becoming muddled and making contradictory findings of fact, as covered in Point 8 of my liability Judgment reconsideration application.

[16]Upon succeeding at the liability hearing, the respondent’s counsel sought an immediate costs hearing in breach of a case management summary agreement, and in the full knowledge that the liability hearing success had been achieved via the persistently oppressive and manipulative dishonesty outlined in points 1-15 above. The respondent should submit any objections as soon as possible.” 4. On 20 July 2021 the Respondent objected, in writing, to the wasted costs application. 4 of 11 5. The Claimant made a second wasted costs application on 24 July 2021. It was in the following terms: “As a consequence of the Tribunal’s costs Judgment sent to the parties on 27 June 2021 in which the respondent seeks to misrepresent the deposit order findings in order to defraud me of my £1000 deposit, it is reasonable to consider that appeal UKEATPA/622/20/VP re the deposit order no longer serves any useful purpose as it cannot prevent the respondent’s fraudulent use of the deposit order at the costs hearing. This must instead be cured via superseding applications to the Tribunal and EAT, and if necessary via judicial misconduct proceedings. I therefore claim wasted preparation time of four hours for submission of appeal UKEATPA/622/20/VP on 24 July 2020 and two hours for submission of my 23 February 2021 Notice of Dissatisfaction to the EAT, against the respondent or its representative, totalling £246. I rely on the below chronology of the respondent’s improper conduct with regard to the two 2020 preliminary hearings and its fraudulent use of the deposit order to obtain the costs Judgment: 7 October 2019 - I submitted the ET1, which utilised 2,496 of the 2,500 available characters in the “Details of your Claim” textbox. The third paragraph of my text cited “several ways” in which the respondent had sought to mislead me on the status of my references, and set out brief details of one of these regarding the recruiting manager’s mental processes whereby she knew that a reference was available from my most recent employer but she did not want it, based on my reasonable belief at the time that she received an out of office autoreply from this referee but did not act on it. 28 November 2019 - Section 6.3 of the respondent’s grounds of resistance stated that the aforementioned auto-reply was not received. Section 15 of the grounds of resistance stated that the ET1 was not specific & indicated that further and better particulars were therefore necessary, while Section 2 of the accompanying strike out application sought to exploit this lack of further and better particulars by fabricating a misrepresentation of the basis of my claim by asserting “The Claimant's case is entirely predicated on a suspected conspiracy on the Respondent's part based on the composition of the panel that interviewed him”. 3 December 2019 - I voluntarily provided further and better particulars to the Tribunal and respondent, in which: i) Sections 1 and 2 of my document entitled “how the Respondent managed the obtaining of the Claimant’s employment references” made clear that the respondent had sought to prevent me knowing what it had received from my referees prior to submitting its ET3, and Section 4 made clear that regardless of whether an out of office autoreply from my referee had been received, the recruiting manager’s mental processes at the point of withdrawing my offer were that she did not want a reference from my most recent employer. ii) Section 24 of my document entitled “Prima Facie Case” made clear that I did not assert that the panel was selected to be biased against me, per the 5 of 11 respondent’s aforementioned misrepresentation. Section 25 clearly set out my assertion. 20 December 2019 - The respondent objected to my further and better particulars by improperly stating “the Respondent intends to strongly resist it given that additional information set out in his attached documents changes and adds to the factual basis of the Claimant's ET1. Further, the Claimant could have included this information in his original ET1: such alleged acts were within his knowledge at the time of submitting the claim, and the Claimant has not put forward any reasons as to why this was excluded from his ET1.” The respondent thus stated on 28 November 2019 that the ET1 was “not specific” and then on 20 December 2019 sought to obstruct it from being specific. The respondent therefore improperly sought to prevent me from: i) correcting its intentional misrepresentation of the basis of my case made in its strike out application ii) clarifying the moot point in the ET1 on the out of office autoreply, having previously refused to clarify what it had received from my referees prior to submitting the ET3 1 May 2020 - Per “Item 2 - Amendment” of the attached 1 May 2020 Record of a Preliminary Hearing, EJ Quill asked me whether there were any changes to the claim or allegations. I stated that the claim of racial discrimination was unchanged, and that the allegation that the recruiting manager improperly withdrew my offer in the knowledge that a reference was available from my most recent employer remained the same and was clarified by my further and better particulars. Per Point 2.4 of the Record of a Preliminary Hearing, EJ Quill declined to include this information in the 23 June preliminary hearing, thus obstructing clarification of the basis of my claim. Point 2.4 went on to state that this information could be entered in my witness statement for the final hearing, which I reasonably complied with six months later. 23 June 2020 - At the preliminary hearing EJ Quill proceeded to rely on: i) The respondent’s misrepresentation of the basis of my claim re the interview panel having been selected to be biased against me (as cited at Point 51 of his deposit order), despite this issue having been corrected by my further and better particulars ii) The moot point on the out of office autoreply (as cited at Point 49 of his deposit order), despite this issue having been clarified by my further and better particulars 27 November 2020 - In reasonable compliance with EJ Quill’s 1 May 2020 instructions, 3.8 to 3.11 of my liability hearing witness statement clearly set out events with regard to my most recent referee without relying on the moot point of the out of office autoreply, and 4.8 to 4.11 of my witness statement made it clear that my case was not based on the interview panel being selected to be biased against me 27 November 2020 - The respondent’s sole liability hearing witness statement improperly sought to focus on the issue of the moot autoreply, despite having been made fully aware that this was a moot point in both my further & better 6 of 11 particulars and in deposit order reconsideration emails in July 2020. At its Point 30 the recruiting manager Loleta Fahad thus asserted “ I understand that Grace emailed Referee 3 on 19 June 2019, and having not received a response, nor any out of office reply providing an alternative contact, she sent a follow-up email on Monday 24 June 2019”. Cogent email evidence showed that these were not the recruiting manager’s mental processes at the time of withdrawing my offer, which were instead that she knew that this reference from my most recent employer was pending but she did not want to await its arrival (in breach of the respondent’s recruitment procedure). 25 March 2021 - In breach of its own 1 May 2020 instructions to me, the Tribunal ignored the clear details on the recruiting manager’s mental processes set out at 3.8 to 3.11 of my witness statement and opted to revert to the moot point of the autoreply in the ET1, per Points 63 and 122.3 of the liability Judgment. 25 March 2021 (as confirmed by the costs Judgment sent on 27 June 2021) - The respondent fraudulently sought to obtain my deposit of £1000 by asserting that i) The basis of my claim was per the findings of the deposit order whereby the interview panel had been selected to be biased against me, as reiterated at Point 10 of the Costs Judgment. This is despite the liability Judgment making no such finding. ii) By again focusing on the moot point of the out of office autoreply, as reiterated at Point 38 of the costs Judgment.” 6. The Claimant applied or reconsideration of the Liability and Costs Judgments. His reconsideration applications were rejected by EJ Brown under r72(1) ET Rules of Procedure 2013 on the grounds that there was no reasonable prospect of the original decisions being varied or revoked. 7. On 9 Augst 2021 EJ Brown wrote to the parties in the following terms, “EJ Brown apologises to the Claimant for the delay in responding to his reconsideration / recusal application dated 7 April 2021. She became aware of its existence from his costs reconsideration application. His 7 April 2021 application was located and passed to EJ Brown on 28 July 2021. The Claimant's application for reconsideration of the Liability Judgment in this case is refused - there is no reasonable prospect of the original decision being varied or revoked. The Tribunal gave full reasons for its decision at the time and the Claimant's application is an attempt to re argue the case. Insofar as the recusal application is addressed to EJ Brown and the Tribunal who heard the case, the recusal application was submitted after the liability and costs decisions had already been made by the Tribunal on the days of the hearing. The Tribunal's function was complete.” 8. The Claimant continued to send correspondence to the Tribunal. For example, on 10 and 11 August 2021 the Claimant asked that the Respondent agree his interpretation of the events which had been dealt with in the Tribunal liability judgment. He described his interpretation of these events as “impermissible contradictory perjury-concealing findings of fact in the liability judgment”. 9. On 11 August the Respondent declined to do so and said that it would not correspond further, as the Claimant’s proceedings had been determined by the 7 of 11 Tribunal and were at an end. The Respondent said that the Claimant was left with his numerous appeals to the EAT. 10. The Claimant continued to send correspondence to the Tribunal. He appeared to ask that a different Tribunal reconsider the liability and costs judgments. 11. On 9 September 2021 EJ Brown wrote to the parties in the following terms, “ An application for reconsideration is directed to the judge and/or tribunal which made the relevant decision. Save for the Claimant's wasted costs application, all his applications have now been considered and responded to. No further response will be provided. On the Claimant's wasted costs application, do the parties ask that this is decided on the papers or at a hearing?” 12. On 9 September the Respondent indicated that it was content for the wasted costs application to be dealt with on the papers. 13. On 13 September 2021 the Claimant wrote to the Tribunal saying that he had made reconsideration applications, one of which “provide clear evidence that liability reconsideration is necessary in the interests of justice because the respondent perverted the course of justice via perjury and concealment of adverse documents to obtain the liability judgment and consequent costs judgment.” 14. He said that EJ Brown was evading his reconsideration applications and said that a different employment judge should be appointed to the reconsideration process. 15. He said that EJ Brown intended to decide his 3 wasted costs applications, but her letter of 9 August “evaded my 25 March recusal application” by stating that the tribunal's function is complete. 16. The Claimant had sent a series of abusive emails to the Tribunal on 25 March 2021, but had not set out any proper grounds for recusal in them.

[17]In his letter of 13 September 2021 he said that it was not in the interests of justice “for an EJ to reverse their position in order to evade a recusal test and then continue making case decisions.” He said that EJ Brown had “thus effectively recused herself from deciding these wasted costs applications” and said, “I request that they instead be decided by the judge appointed to the reconsideration process.”

[18]The Claimant attached a wasted costs application he had made on 22 March 2021, before the liability and costs hearing.

Relevant Law

[19]By Rules 80 & 82 ET Rules of Procedure 2013 “ 80 When a wasted costs order may be made (1) A Tribunal may make a wasted costs order against a representative in favour of any party ('the receiving party') where that party has incurred costs— 8 of 11 (a) as a result of any improper, unreasonable or negligent act or omission on the part of the representative; or (b) which, in the light of any such act or omission occurring after they were incurred, the Tribunal considers it unreasonable to expect the receiving party to pay. Costs so incurred are described as 'wasted costs'. … 82 Procedure A wasted costs order may be made by the Tribunal on its own initiative or on the application of any party. A party may apply for a wasted costs order at any stage up to 28 days after the date on which the judgment finally determining the proceedings as against that party was sent to the parties. No such order shall be made unless the representative has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application or proposal. The Tribunal shall inform the representative's client in writing of any proceedings under this rule and of any order made against the representative.”

[20]Regarding the procedure to be adopted by tribunals when hearing applications for wasted costs, Underhill J said in Godfrey Morgan Solicitors Ltd v Cobalt Systems Ltd and another

[2012] ICR 305

, at para 35(3), that this will depend on the circumstances of the particular case: “ Procedure . As the Court of Appeal emphasised in Ridehalgh (p 238 b– d and g), the right procedure for determining claims for wasted costs will depend on the circumstances of the particular case. Proportionality is an important consideration. The only essential is that the representative has a reasonable opportunity to make representations as to whether an order should be made. This does not necessarily mean a formal two-stage procedure: see Wilsons Solicitors v Johnson 9 February 2011, para 29. It may well, however, in a particular case mean that an application for wasted costs cannot be dealt with in the same hearing as that in which the application is made. Tribunals will often understandably wish to deal with such applications there and then, in the interests of economy. I sympathise with that approach: unnecessary hearings on satellite issues are to be avoided wherever possible, and in a straightforward case there will be a lot to be said for striking while the iron is hot. But sometimes that will simply not be fair, and the representative will be entitled to more time to make representations (though not necessarily at a further hearing). …. As the Court of Appeal said in Ridehalgh

[1994] Ch 205

, 238 g, although the procedure must be as simple and summary as possible, that can only be so far as fairness permits.” Discussion and Decision

[21]I decided that it was fair and proportionate for the Claimant’s applications for wasted costs orders, dated 10 July and 24 July 2021, to be dealt with on the papers by me, EJ Brown. The Respondent’s solicitors, who were the target of the wasted costs applications, had agreed to them being dealt with on the papers. 9 of 11

[22]Those wasted costs applications arose out of the costs judgment. I was the judge who had conducted the liability and costs hearing and had, along with the other panel members, made the unanimous liability and costs judgments. I was familiar with the contents of both judgments, as well as the evidence and submissions at the hearing. I was familiar with the procedure adopted at the hearing.

[23]It was proportionate and would save costs and time for the parties and the Tribunal for the applications to be dealt with on the papers by the judge who had conducted the liability and costs hearing.

[24]The Claimant had referred in his correspondence to a “recusal” application he made on 25 March 2021.

[25]The Claimant had, in fact, sent a series of abusive emails to the Tribunal on 25 March 2021, after the liability judgment was given orally at the hearing. He had not set out any proper grounds for recusal in his abusive emails.

[26]The Claimant says that I had evaded his 25 March recusal application by stating that the Tribunal's function was complete. He says it is not in the interests of justice “for an EJ to reverse their position in order to evade a recusal test and then continue making case decisions.” He said that EJ Brown had “thus effectively recused herself from deciding these wasted costs applications”.

[27]I disagreed that I would be “reversing” any previous decision on recusal by deciding not to recuse myself from deciding the wasted costs applications.

[28]I had previously told the the Claimant that the Tribunal’s function was complete on 25 March 2021 because he purported to have made both a reconsideration application and also a recusal application. Reconsideration applications are decided by the judge or Tribunal which made the original decisions. There is no other process. If the Claimant wishes another judge to review the Tribunal’s liability and costs judgments, he has the choice to appeal.

[29]The Claimant’s purported application for recusal on 25 March 2021 was therefore inconsistent with his application for reconsideration of judgments which had already been completed by the Tribunal on 25 March 2021. The liability judgment was given orally on 25 March 2021. The costs decision was made by the Tribunal in Chambers on 25 March 2021, and sent out in writing to the parties, albeit that it was not promulgated for some time because of pressure of work. Given that the “recusal” application dated 25 March 2021 was made in respect of decisions which had already been completed, it was ineffectual.

[30]I considered that there were no grounds for me to recuse myself from making this further judgment on the Claimant’s wasted costs applications. From his abusive emails, the Claimant was apparently angered by the Tribunal’s rejection of his claim. That is not a proper basis for recusal.

[31]I rejected the Claimant’s applications for wasted costs against the Respondent’s solicitors. They rely on an interpretation of the facts of the claim which the Tribunal 10 of 11 rejected in its liability judgment. The applications also rely on a disputed chronology of the correspondence between the parties during the proceedings. The parties’ contentions in their correspondence and at hearings have already been considered and have resulted in liability and costs judgments, against the Claimant, which have not been overturned on appeal. The Tribunal has not accepted the Claimant’s characterisation of the facts of the case, or of the conduct of the Respondents, or of their solicitors.

[32]There is nothing in the Tribunal’s judgments which supports the Claimant’s applications for wasted costs. It was quite clear to me that the Claimant’s applications for wasted costs were a collateral challenge to the Tribunal’s liability and costs judgments.

[33]The Claimant’s correct course, if he wishes to challenge those judgments, is to pursue any appeals. If he is successful in those, on any grounds relevant to a wasted costs application, he might then pursue such an application. There are no grounds for making a wasted costs order at present.

[34]The Claiamnt’s wasted costs application dated 22 March 2021 will be dealt with separately, as it predated the liability and costs hearing and related to matters which had been dealt with by different judges at previous hearings. A decision will be made as to which judge will determine that application. ____ _2 November 2021__

[35]The Respondent’s 16 March 2021 full response on this issue said, “The Respondent has complied with its disclosure obligations, and the Claimant’s Freedom of Information Requests are entirely separate from these proceedings. 12 of 13 The Commissioner rightly states in the Decision Notice that “any order to disclose information by the tribunal would not be reliant on confirmation of the information’s existence under the FOIA”. The issue to be decided in this case is whether the decision-maker withdrew the Claimant’s job offer because of his race, and the Respondent wrote to the Claimant in December 2020 stating that it did not see the relevance of any “research information on racial bias” to which the Claimant refers. Similarly, in the sift outcome to the Claimant’s appeals, His Honour Judge Martyn Barklem wrote that, “I do not understand the basis on which the Claimant says that materials on “unconscious bias training” can be relevant to an allegation of direct discrimination on the part of an actually biased recruitment manager”. The same applies to the documents to which the Claimant refers here.”

[36]I considered that that paragraph provided cogent reasons for the Respondent’s objection to disclosing research information on “the failure of its processed to mitigate racial bias against colleagues within its recruitment practices”, even if such information existed. FOI requests are indeed separate from Employment Tribunal proceedings. HHJ Barklem had already indicated that materials on unconscious bias training were unlikely to be relevant to an allegation of direct discrimination. It was reasonable for the Respondent to contend that generalised findings about the outcomes of recruitment processes were not relevant to a direct discrimination claim. The Claimant had not brought an indirect discrimination claim, to which such materials would be much more obviously relevant. F - Recusal Application

[37]The Tribunal did not postpone the Final Hearing. It agreed with the Respondent’s contention that it was inappropriate to do so. The Claimant’s application for recusal of any Judge who refused his case management applications was clearly premature and unreasonable. There could be no basis for seeking recusal until the relevant Judge had made the relevant decision and given reasons for doing so. The Respondent’s solicitor acted entirely properly in pointing this out. ____ _27 January 2022__