Mr J Edward v Tavistock and Portman NHS Foundation Trust: 2205825/2018

EMPLOYMENT TRIBUNALS

Case No 2205825/2018

Between

Mr J EdwardClaimant

Tavistock and Portman NHS Foundation TrustRespondent

Before

Employment Judge Ms S Sharma

In person for claimant

Date 13 May 2021

JUDGMENT

[1]The Respondent’s application to strike out the Claimant’s claims under Rule 37 Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“ET Rules”) is denied .

[2]The alternative application of the Respondent to require the Claimant to pay a deposit under Rule 39 ET Rules is also denied. The Claimant’s claims will be heard at hearing at London Central Victory House,30-34 Kingsway, London, WC2B 6EX from 18th to 26th June 2019. Case Number:2205825/2018 2 of 5 __________________________________ EMPLOYMENT JUDGE SHARMA

REASONS

Discussion

[1]The Claimant has brought claims against the Respondent by issue of his claim form received by this Tribunal on 23 August 2018. Some of these have been withdrawn and/or struck out. The two remaining claims before this Tribunal for resolution are the Claimant’s claims for unlawful age and race discrimination and harassment, pursuant to sections 5,9,13 and 26 of the Equality Act 2010 (“EA”).

[2]At this Open Preliminary Hearing, I first dealt with the Claimant’s two applications. Claimant’s Application to Postpone this Open Preliminary Hearing

[3]On 6 Feb 19, 08.16, the Claimant requested a postponement to this hearing. This was rejected by my colleague, Employment Judge Glennie, where he stated that the Claimant could put forward arguments for a postponement at today’s hearing. I gave the opportunity for both the Claimant and Mr Young to address me on this application. The Claimant, having taken the oath, stated that he has not had the opportunity to make written representations, as are referred to in this Tribunal’s letter dated 4 February 2019.

Issues

[4]I believed it was not in the interest of justice or in line with the overriding objective to postpone this hearing, particularly because this preliminary hearing was fixed and made known to the Claimant at the preliminary hearing of 19 December 2019, (albeit that this was referred to as a provisional preliminary hearing) as recorded in Employment Judge Grewal’s Order of 27 December 2018.

[5]Further, on 4 December 2018, My Young submitted that the Respondent had wrote to the Claimant putting him on notice of the Respondent’s applications to strike out or in the alternative, to make a deposit order. At today’s hearing, the Claimant confirmed that he knew about the applications but he thought that written directions would be given to him. Claimant’s Application to Amend his Claim to Include Victimisation

[6]The Claimant, by e-mail to this Tribunal, dated 28 January 2019,22.29, also sought permission to amend his claim to include a victimisation claim. This application has been rejected on the basis that this amendment had already been considered by my colleague, Employment Judge Grewal at the preliminary hearing dated 19 December 2018. At paragraph 9 of the Notes of Discussion, she set out in detail her reason for refusing to grant the Claimant leave to amend his claim. This matter was therefore dealt with then and I do not propose to address this again. Mr Young submitted that a claim needs to be properly particularised; relying on a section number or referring to “victimisation” is not sufficient for such a claim to be properly particularised. Respondent’s Applications to Strike out the Claims: Rules 37 and 39

[7]The Respondent has brought an application for a strike out or in the alternative, a deposit order under Rules 37 and 39,respectively, of the Employment Tribunals Case Number:2205825/2018 4 of 5 (Constitution and Rules of Procedure) Regulations 2013 (“ET Rules”) on the basis that the Claimant’s claims have no or in the alternative little prospect of success.

Evidence

[8]The Respondent brought these applications because it is the Respondent’s case that there is a lack of evidence of unlawful age or race discrimination. It was the |Respondent’s position that the Claimant should thus not be permitted to proceed with his claims merely by the fact that he is of an age or of a race (Madrasas v Nomura International Plc). Further, it was the |Respondent’s position that a difference in age profile in the Claimant’s team and an alleged comment relating to immigration will not shift the burden of proof to the Respondent.

[9]The Respondent saw this as an exceptional case where it would be appropriate for the Tribunal to exercise its discretion to strike out the discrimination claims at this preliminary stage. Application to Strike Out under Rule 37

Findings

[10]In relation to Rule 37 (1) (a), ET Rules, the Respondent stated that the claim should be struck out because it has no reasonable prospect of success.

[11]Mr Young submitted that in relation to the claim of direct age discrimination and harassment, there are no pleadings on age discrimination. Thus, this claim has no reasonable prospect of success.

[12]In relation to direct race discrimination and harassment, paragraph 26 of the Claimant’s amended claim refers to what the Claimant describes as a racially motivated comment by Kerri Johnson Walker (“KJW”). Mr Young submitted that this is the only allegation of race discrimination and this is not much to base a race claim on. Indeed, Mr. Young submitted that this is not a racist comment but reflects a main stream political opinion. Mr Young submitted that this comment is not capable of amounting to facts from which the Tribunal can conclude that other people’s actions were motivated by race.

[13]Mr Young submitted that the Claimant’s later complaints, namely of downgrading him, no alternate employment, rejection of appeal was done by other parties other than KJW.

[14]In relation to Louise Lyon and para 53 of the Claimant’s amended claim,, Mr Young submitted that there was an allegation of discrimination because of a difference in treatment but the Tribunal cannot conclude discrimination as this shows a difference in status. This is not enough to reverse burden of proof. Referring to para 54 of the Lord Justice Mummery’s judgment in Madressey, it was held that a difference in status or treatment is not enough to make burden of proof shift.

[15]Para 53 of the amended particulars does not show any adverse treatment. Nothing in addition to show a difference in treatment. In relation to SM, HF, KJ, there is no allegation of discrimination against them. Any allegation of discrimination other than KJW is bound to fail. Case Number:2205825/2018 5 of 5

[16]In relation to some of the claims being out of time, Mr Young submitted that the ET1 was received by this Tribunal on 23 Aug 18, The Claimant was dismissed on 8 May. The Claimant knew of the 3-month deadline as the e-mail from Ms Haselton dated 31 July 2018,16.17 informed him that the deadline for a claim is 7 August 2018.

[17]Further, in relation to whether it was just and equitable to extend time, Mr. Young submitted that it was not just and equitable to extend time under s123 (2)(a), Equality Act 2010. The Claimant had not given any reason for the delay. Mr Young submitted that the claims are weak and thus time should not be extended.

[18]The Respondent’s application for a strike out was denied for the following reasons: -(a) The Court of Appeal in Robertson v Bexley Community Centre trading as Leisure link

(2003) IRLR 434

held that: - “The exercise of the tribunal’s discretion is the exception rather than the rule.” That was noted. However, it is not possible to determine that there is no reasonable prospect of success of these claims without all the evidence being presented before a Tribunal at a full merits hearing and the Tribunal be given an opportunity to consider the evidence.

(b) In so far as any claims are out of time, then in this case it is just and equitable to extend time. Applying s 33 Limitation Act 1980 and the checklist (modified by the EAT in British Coal v Keeble (1997 IRLR 336, EAT): (i) In relation to the prejudice each party will suffer because of the decision, I do not believe that one party will suffer more prejudice than the other by extending time on a just and equitable basis. (ii) In relation to a consideration of all circumstances of the case, this was considered, and specifically the affect on the Claimant in not being given an opportunity to present his case.

(c) The other factors were considered including the length and reason for the delay and the promptness of the Claimant’s actions. In relation to the steps taken by the Claimant to take legal advice, I received no information on this. Application for a Deposit Order

[19]If the Tribunal is not minded to strike out the claims, then the Respondent requests, in the alternative, that this Tribunal make an order, under Rule 39 ET Rules, for the Claimant to pay a deposit order in order to be able to continue with these proceedings on the basis that it is the Respondent’s case that the claims have little reasonable prospect of success. Mr Young submitted that I should consider making even a nominal deposit order as an indication that I believe the claims to have little reasonable prospect of success.

[20]This application is was denied for the following reasons: -(a) On oath, Mr Edwards gave evidence of his means, namely, he had £2 in his current account and £6 in saving account. Taking this into account, it is not in the interest of justice to make such an order.

(b) Again, it is not possible to determine that there is little prospect of success without the full facts and evidence being reviewed. Case No: 2205825/2018 10.2 Judgment - rule 61 EMPLOYMENT TRIBUNALS Claimant: Mr John Edward Respondent: Tavistock and Portman NHS Foundation Trust Heard at: London Central On: 4-6, 9-12 March 2020 Before: Employment Judge Goodman Mr M.L. Simon Mr. D. Clay Representation Claimant: in person Respondent: Mr W. Young, counsel

[21]While being managed by her the claimant could make appointments to see her. When Lee Chesham returned he told the claimant he should have 1:1 meetings with him from now on. The claimant now says that he was no longer able to access Ms Shipman’s diary. Having heard evidence, we accept that the claimant was like all other staff able to view her diary to see when she was free, while only particular individuals, which had never included him, could view the content of those meetings. We do not accept the claimant’s assertion that the normal operation of an Outlook diary had been altered by Ms Shipman or the IT department to prevent him even looking at it. There was no evidence to show this had occurred; the claimant did not say he had tried to book a meeting but been unable to access the diary. In our finding this is a false construction on Lee Chesham’s remark that he was resuming regular line management.

[22]Despite his encouraging start, on 21 October 2016, following pressure on the team to produce an overdue report, Lee Chesham emailed his superior, Marion Shipman saying: “John, bless him, has pretty much only been working on these reports for three whole weeks this month but as you will note they are of a poor standard and I have spent a good few hours formatting and adjusting some of the content. It’s not what I expect someone as a band 5 to produce and we’ll need to reiterate that at our meeting next week. Also, checking things like ‘0’ scores with Frances or team leaders – this is what the data officer is expected to do. It’s sad to say that I feel the QT is carrying John as I’ve mentioned to you previously. He’s a nice guy and needs support but I just haven’t had time to mollycoddle and check everything. In comparison to Kerri, for example, they are worlds apart. John’s report – the graphs are of different sizes, fonts change, some numbers are bold, some not, the whole thing is relatively inconsistent and doesn’t read like a report should. They were certainly in no fit state for a commissioner’s eyes”.

[23]Ms Shipman replied that she agreed, and: Case No: 2205825/2018 10.2 Judgment - rule 61 “suggest we have a conversation with HR in the first instance to agree the way forward. This is the second quarter we had carried the work and was okay the first time we cannot continue like this”. Mr Chesham contacted the HR Department, referring to an earlier discussion about the claimant, and asking for support. The meeting was proposed for the following week. It is not known whether it took place.

[24]This is the email that the claimant first saw in April 2019, during disclosure in these proceedings, which he says has been faked after the event. He says he had good relations Lee Chesham, who would not have written these things. Lee Chesham did not propose a performance improvement was merited, it was imposed on a reluctant Mr Chesham by Ms Shipman.

[25]On 2 December 2016, Frances Endres emailed Ms Shipman saying: “I asked John for a report letting us know which patient records did not have a completed assessment form two months ago now. As he finally got something this week, but he has requested the wrong report for Informatics”. She said this was despite asking him for it “every Tuesday for the last eight weeks”. She asked Lee Chesham to attend the Tuesday meeting in the claimant’s place, and for requests to Informatics for data to be rerouted through Lee Chesham in future. In turn, Ms Shipman asked Lee Chesham to “find out what happened here, including what happened at the meeting John attended on Tuesday. There is clearly a complete lack of confidence in what John is doing. Can you please discuss with Sarah in HR the process around performance management”.

[26]Lee Chesham was leaving soon, and reluctant to start a formal process, preferring to leave it for his successor, but Ms Shipman wanted to start as soon as possible. Sarah Mountain, of HR, made arrangements. She emphasised the need for consistency in handover to his successor, to make it fair to the individual employee. Mr Chesham involved the UNIDSON trade union representative when staring the process.

[27]On 9 December 2016 Lee Chesham met the claimant to give him the informal (stage I) performance improvement plan, by which his capability was to monitored against five objectives, selected from the job description, from 12 December 2016 to 1 March 2017.

[28]Kerri Johnson-Walker, who had joined the team in September data quality officer for his, replaced Lee Chesham as team manager with effect from 28 December, though earlier in practice as Mr Chesham used up his annual leave before termination. It was her first management role. She had never undertaken performance improvement management before.

[29]It is alleged that shortly after taking over she picked the claimant up for being 5 minutes late for work. The respondent did not require staff to clock in or otherwise record arrival times. Both started work at 8 or 8.30. It was a conversational remark, not reproof or accusation.

[30]Kerri Johnson-Walker met the claimant on 12, and again on 20 January 2017, to review his progress against objectives. The first objective was “timely completion of Camden commissioning quarterly reports”. The claimant had submitted the Q3 report two days before the deadline for submission. Thus, Case No: 2205825/2018 10.2 Judgment - rule 61 technically it was on time, but Miss Johnson-Walker deemed he had not met the subjective, because: “the Camden reports that you submitted to me contained a lot of simple calculation mistakes and has some missing/inaccurate data in almost every report, which meant that I had to check everything before sending it to contracting, which was timely. Because of the extra checking that was required, reports were then sent today after they were due, meaning we didn’t meet our SOP for reporting.” The mistakes were such that she queried whether the claimant had difficulty with his eyesight. She advised him on techniques for checking his work. She added: “I will not be able to pass on the objective to satisfy your improvement plan, however there is still time before the end of March make correction to allow you to pass this.” (The tribunal notes however that the next quarterly report was not due until mid-April; when he did, it was of adequate standard). On second objective, accurate analysis, there was no evidence, because the Camden reports were not of a qualitative type. For the third objective, good stylistic quality, the grammar was sound, though she recommended checking what format was required for particular report. The fourth objective, ad hoc reports, could not be assessed because there had not been any in the period. The fifth objective was: “proactivity around data issues”, meaning flagging up problems. He had done some work on a particular problem.

[31]There was no further review meeting during the assessment period, which ended 1 March, and as far as we can tell, the outcome was not discussed with the claimant at all. Ms Johnson-Walker evidently asked HR what to do next, because on 3 May Sarah Mountain arranged a meeting about the claimant, apologising for not getting back to her earlier. At this point, Ms Johnson Walker, complaining about this delay, said: “given the response time, I feel as though we may have completely missed the boat with this. Although he did fail his improvement for the time period he has now submitted the report for the Q4 and they will back up to standard. And I have no evidence to using these meetings as this would show an and “improvement”. However, although he has improved in this area is work is very slow, and I have stripped him back to a lot of duties, which is the reason he was able to do these reports. I would like to speak to with Marion before meeting with you and John because I feel if we say to him that he did not pass, you will now say that he has improved as this quarter’s report back up to scratch (which they were)”. Sarah Mountain of HR replied: “if he is performing at the required level in terms of all his duties then we can still proceed with stage 2. His reports have improved, which can be noted and it can still be an achievement, however he would need to be delivering in all areas to be considered to be performing at the level required for the post. His other tasks needed to be reintroduced to his workload.

[32]In other words, the claimant had now produced the Q4 Camden report which was of adequate quality, but his manager was still concerned that his performance was not as it should be. The claimant’s concern is that the reference to “missing the boat” means they (Ms Endres, Ms Shipman, Ms Johnson-Walker) had decided to be rid of him, and through Ms Mountain were Case No: 2205825/2018 10.2 Judgment - rule 61 fixing the process to achieve that result.

[33]Sarah Mountain met the claimant in Kerry Johnson Walker on 26 May 2017 to discuss with him the old and the new capability policy from then on. The claimant agreed to use the new one. They then selected objectives for a stage 2, formal, performance improvement plan, for the period 16 June to 28 July 2017. Objective 1 was to create a good working relationship with the CYAF admin leads, the criterion for success being “good communication of CYAF specific KPIs and CQUINS”. He would attend the weekly leads meeting, and his manager would get feedback on his attendance and the quality of information given at weekly meetings. The tribunal understands the aim of liaison with data quality was that the teams would understand what the DQT wanted from them so there would be fewer misunderstandings in collecting data and reporting back to teams on performance against targets and how to improve.. Objective 2 was to run reports on a monthly basis on a service level to admin leads, with the datasets being copied to the team manager for monitoring. Objective three was to complete the Q1 Camden report, due July 2017, on time and with few mathematical and layout errors. Objective 4 was to complete the audit reports in the workplan and follow-up actions. There should be no rolling action plans on quarterly reports. Objective 5 was to provide information and reports to the Trust’s clinical governance committee and attend their meetings to communicate performance around CYAF targets. Objective 6 was for ad hoc requests to be clarified, carried out and completed “in a timely manner”. To demonstrate good performance, he had to meet all of these objectives

[34]During the review period, there were no formal meetings with the line manager to discuss his progress. Ms Johnson-Walker says that said they would meet from day-to-day on particular tasks, as they sat back to back.

[35]When it came to the review on 16 August he was deemed not to have achieved these objectives.

[36]On 1 September Ms Johnson Walker completed a management statement of case for a capability review meeting on 7 September. That meeting would be stage 3 of the capability process at which t would be judged whether his capability was adequate. The informal stage simply said to have been unsatisfactory because he did not meet all the objectives. On performance against objectives at stage 2 she went into much more detail.

[37]To assess objective 1, the relationship with CYAF admin leads, Ms Johnson- Walker sought feedback from Frances Endres, who chaired the admin leads meeting. Her request for feedback just said: “as part of John’s improvement plan, I am meant to ask you for some feedback on his attendance and also the helpfulness of what he has delivered to you.”

[38]Miss Endres replied:” I find John very kind, but he is easily confused and doesn’t seem to understand or be able to follow basic requests. The example that you have just sent also regarding the Physical Health forms is a prime example. We spoke about this at length today in the admin meeting and I asked John to check the report as it was saying that some forms were incomplete and Case No: 2205825/2018 10.2 Judgment - rule 61 due when, in fact, they had been completed. Another example from today was he told the group that there were many outstanding forms needed completing. I asked him to send us a report and he told (sic) he had done. When I dived a bit deeper, he was referring to the report he had done months ago and sent the team managers. I asked him to run the report and send it to me and I would distribute it. He said he would run it and then, oddly, said he would include all the N/A forms. We asked him to not include the N/A forms and only send us forms due this year. He said he would include just forms due in August. I reiterated that I wanted all forms due for open patients who have had at least one appointment who have a form due from 1 April to today. Please do not include any N/A forms as they have been marked that way on purpose”. She added: “Individually, these incidents seem small however, as it is with every request that we make, I feel slightly better making the request myself and I know it is being done correctly. “His attendance is patchy. We see him about 50% of the time and are never sure if he is coming or not. His input is not always clear or helpful. So today he told us that: ‘the problem is end of month appointments and Informatics says 20’. Clearly this was quite unclear so we asked many questions and were told that we need to do better about upcoming appointments. There was quite a lot of upset about this as I do feel like we are pretty good at this when I we asked which teams there was no answer which is not very helpful. “Sorry to be so grumpy but I feel like a band 5 quality team administrator should be able to handle all of what I have raised in this email without help from myself”.

[39]On the accuracy of this, it is unfair to say that the claimant only attended 50% of the time. The meetings did not keep a register, so it was a matter of impression only. We know that in September 2016 the claimant notified in advance that he would not attend because it would be on holiday. We also know that the claimant did not attend meetings at all, at her own request, from January to June 2017. As far as we know, he attended three of the meetings in the review period, and not all took place. This may have happened because Miss Endres was not aware that the period for which feedback was required was only the last ten weeks, not the whole period of employment. On the other hand, when it comes to the quality of his input to meetings, the claimant agrees that his contribution to the meeting: “Informatics is 20”, was not helpful. The specific examples of lack of understanding she gave were contemporary and specific. The respondent’s evidence about his attendance in 2016 was that he did not contribute to the meetings, although he was present in order to assist the teams in understanding what was needed from them in the way of data. This feedback suggests it had not improved – he did not understand what was wanted.

[40]On objective two, she had feedback from Dawn De Freitas, though she was not named in the statement of case. Ms de Freitas said: “I have experienced quite a negative experience when I have requested Case No: 2205825/2018 10.2 Judgment - rule 61 reports from John, he doesn’t seem to listen to instructions given and the requests made, he recently sent out a report to the whole of the admin plus clinicians, which should never have happened, as you can imagine this alarmed most of the clinicians here as the current practice is that reports come from admin, we follow these up with the clinicians ourselves, and again we were being asked to report on things we have never had to do before. I guess in a nutshell he just doesn’t seem to understand what is being asked and gives you the wrong information, we get there eventually but it can be hard work trying to get him to get it right and just sometimes understanding what is asked of him”. Kerry Johnson- Walker gave evidence of this particular episode. The claimant had sent out a dataset for a much longer time period than was relevant and asked the clinical teams to complete the blanks. It was sent to clinicians as well as to the administrative leads in each team. It should only have gone to the admin leads. When Ms Johnson-Walker tried to explain it to the claimant, so as to send out a request with more limited time parameters, he still sent it to clinicians as well, and she had to intervene herself to stop this. We noted from the evidence and the documents that the episode caused particular trouble because the claimant was asking for school attendance, (and this could either have been a note of what school the child attended, or a record of whether the child was attending school regularly) and when an administrator telephoned to complete the data, a patient complained, believing school would be informed that the child was receiving treatment. This was not the fault of the claimant; he seems to have been blamed for the administrator making the call, when it should have been picked up from a form on a clinic appointment. That said, although the claimant could not have anticipated the complaint, the feedback illustrated the perception that the claimant’s involvement caused more work than it contributed.

[41]Objective 3 was completing the Camden commissioning report on time with few errors. Ms Johnson Walker said this objective was not met because the report was completed in a timely manner, and (but?) accurate only because she had had to “resolve data issues myself corresponding with Alex Mills in Informatics, because the claimant’s own emails to him about this have been so vague.” It took her 2 ½ hours.

[42]Objective 5, information reports of clinical governance meetings, the report was good accurate and on time, though Miss Johnson Walker believed that he was unfamiliar with the various targets for the CYAF. A clinician however had objected to the “directive language” in the report, as the group had found it “very demotivating”. It was also said that it had taken the claimant two weeks to complete it, whereas it used to take Kerry Johnson-Walker one day. She added “many of (the claimant’s) jobs seem to take a vast amount of time, leaving him very little time to deal with any ad hoc requests”.

[43]He had not attended clinical governance meetings because “after I had received feedback around JE’s confusion in the admin lead meeting, I was not confident enough to allow him to present the report in clinical governance”.

[44]The claimant has objected that if the report was so unsatisfactory that it did not meet targets (the “directive language”)., she should not have sent it to the clinical governance meeting. After hearing evidence on the point, we accept the respondent’s evidence on the length of time the claimant took to do Case No: 2205825/2018 10.2 Judgment - rule 61 reports, but take the view that it was not fair to pick him up on an error (if it was) that she had not herself thought important. There was also the obvious unfairness that he could not fulfil the objective of attending these meetings if he was told not to. The reasoning given by the respondent’s witnesses was that if the claimant floundered in the relative informality of the weekly admin lead team meeting, he would be at significant disadvantage in the formality of the clinical governance meeting attended by clinicians. As we accept the evidence of his performance in the admin lead meeting, it is understandable that he was not sent to the clinical governance meeting. He was not failed for that.

[45]Objectives 2 and 4 are not mentioned, so it should be assumed he had demonstrated competence in these.

[46]In summary it was said he was not performing to the current level required, he had not shown improvement since 12 December 2016, his underperformance meant increased workload for the rest of the team, and his work had to be checked before being sent out, despite the additional support and assistance from his manager.

[47]The claimant was sent this report and called to the stage 3 capability meeting on 7 September. Louise Lyon chaired it. She decided to postpone the when the claimant attended unprepared and unrepresented. A further meeting at the end of September had to be postponed because he was on holiday. Grievance

[48]On 26 September the claimant submitted his own detailed statement in response to the management case. It is an 18 page document dealing with the detail of the criticism, disputing what was said, asserting that he had performed adequately, and criticising his managers for their own mistakes. Within it, he stated: “within the past six months, Kerri Johnson-Walker made a serious and shocking racial remarks in the presence of many other members of staff. She said too many foreigners are coming to this country”. And “on several occasions KJ W said she used to bully others at school. In one occasion another member of staff asked why would you want to bully others? KJ W said, “it is better to be a bully and to be bullied. Further on, he said of Frances Endres’s feedback, and specifically the comment about “informatics says 20”, that “it was an occasion of slip of the tongue but what has been stated here by way of feedback is untrue and smacks of language intolerance and racial acrimony”.

[49]On reading this, Karen Merchant, who was the HR member supporting the stage 3 meeting for Louise Lyon, identified that these were serious accusations and should be treated as a grievance, to be answered before the stage 3 meeting went ahead.

[50]On being notified of this, the claimant provided a further 6 page document called “grievance”, alleging harassment and bullying, discrimination on the grounds of race, language, nationality, colour and age, and “victimisation to a certain extent”. He laid out the details of unfairness in his work, and asserted that he had been put onto the informal PIP in December 2016 because he was from a minority ethnic community. Case No: 2205825/2018 10.2 Judgment - rule 61

[51]He also complained that at the time of the complaint from clinicians about data being widely circulated and too much being requested, Miss Johnson- Walker had disclosed to two clinicians, Dr Searle and Dr Williams, that, “our data officer John Edward was not fulfilling his job description as part of the improvement plan”, and that she was taking the correct steps with HR under the competency policy and procedure. He said this undermined him going to the clinical governance meetings. As a result of this he was highly likely to lose his job and any career prospects completely.

[52]He blamed Marion Shipman for not intervening when it was said that he had been late completing the quarter 3 Camden report.

[53]These two documents are the protected acts for the victimisation claim.

[54]Marion Shipman and Kerri Johnson-Walker were sent the grievance documents and invited to respond. They did by 12 December. In hers, Ms Johnson-Walker included statements about her obtained from colleagues in the team, and also from Sarah Mountain in HR, who said that during the stage 2 meeting (May 2017), the claimant kept referring to Ms Johnson-Walker, who was in the meeting, as “she”, which she considered disrespectful, and although Miss Johnson-Walker had said that she didn’t take offence, because it was “culturally how he would speak”, and he did not mean it in a derogatory way, Sarah Mountain thought it was a good example of how tolerant she was. Grievance Outcome

[55]There was then a grievance hearing, conducted by Keyur Joshi on 9 January 2018. It was a long meeting. He wrote up his report that same night, and his outcome letter was sent to the claimant on 12 January 2018.

[56]He upheld the grievance about Kerry Johnson-Walker disclosing to the clinicians that the claimant was subject to performance improvement. He required her to apologise to the claimant for this. He also found that she had made remarks about being a bully (her explanation is that she went to a tough school and this was how to get by). He identified that many of claimant’s other complaints were in fact about the capability process; that was not grounds of itself to raise a grievance, and the items in his grievance that were a response to the capability issues (for example, Francis Endres’ feedback) should be considered at the capability clearing, with the support of his union representative.

[57]On the “too many foreigners” remark he ruled there was insufficient

evidence.

[58]At this point we resolve this ourselves as a point of fact. The claimant asserts the remark, but we do not accept that it was uttered at all, or if it was, that it indicates dislike of or bias toward settled immigrants like the claimant. Neither then nor now is he able to say when it was made, or provide any context, save that it was something he overheard when at his desk. It is understandable that he may not have noticed the conversation leading up to it, but if it shocked him, he might be expected to remember what happened next in the conversation. In all the months they worked together, he recalls nothing else of the kind. If it was uttered at all, it is capable of an innocent explanation as a respectable point of view, though it may also have shown Case No: 2205825/2018 10.2 Judgment - rule 61 prejudice. Ms Johnson-Walker does not recall the words, nor does anyone else. The claimant adds that two others in the team have been promoted (Faye Eneri, who was promoted to his job) or awarded extra pay (Omer Kemal). He does not in terms say they heard the remark but refused to confirm that because of the inducement. The respondent says both got their additional pay and promotion by way of open competition, which the claimant does not dispute, Without other evidence we do not accept the suggestion, not even an assertion, that they were paid not to say what they had heard. Finally, the claimant has sometimes been an unreliable witness. We have in mind in particular his insistence that on 7 November 2017 Frances Endres repeatedly asked him for a password “to make the claimant commit serious mistakes by exposing patient information to an unintended recipient” (grounds of claim:8). Here the evidence is all in emails we can read, not words he recollects, and in our view the emails clearly demonstrate that he can make assertions for which there is no foundation. He sent Ms Endres a file. It was password protected. She asked him for the password so she could read it. He sent her a password. She replied: “hmm, it doesn’t work”. He then realised he had sent her the right password, but the wrong file. He sent her the right file. There the brief string ends. It is ludicrous to represent that in this exchange she “repeatedly” asked for a password, let alone that she did it to make him commit serious mistakes. He sent her a file and the password. She did not try to trick hm, she only wanted to open the file he had sent her, and nothing suggests that at that point either of them realised he had sent her the wrong file.

[59]We concluded it is not established that this “foreigners” remark was said.

[60]Another part of the grievance was that setting improved grammar as an objective was unjustified, as he did not make such errors. Mr Joshi pointed out that his previous line manager (of whom he did not complain) had set the objectives, and it had not formed part of his improvement plan thereafter. That was not upheld.

[61]Nor did he hold unfairness in Marion Shipman not disciplining Kerry Johnson- Walker for mistakes in one report, or subjecting her to a performance improvement plan. No one had raised an issue about her performance that would require this.

[62]He noted finally that the claimant had asked to be transferred to the finance department, but that was not in his power.

[63]In September 2017 the claimant had again been told not to attend the admin leads meetings, because of Ms. Endres’s feedback on his contribution. In December 2017 she left for another post within the trust and Kerri Johnson- Walker told him to resume his attendance. The claimant said he was not going to until the capability procedure had come to an end. His reason for saying this are not known to us. Ms Johnson- Walker involved HR and the claimant then reluctantly agreed. Having heard the evidence, we do not understand why this instruction is presented as detriment or unfavourable treatment. Attending these meetings was part of his job. Stage 3 Capability Meeting

[64]The claimant notified the respondent on 29 January 2018 that he did not Case No: 2205825/2018 10.2 Judgment - rule 61 propose to appeal the grievance outcome, so the respondent fixed the stage 3 capability hearing before Louise Lyon for 6 March 2018.

[65]Before the meeting she read the management statement of case, and the claimant’s two documents opposing it. She was aware there had been a grievance hearing, but did not have the outcome letter.

[66]The claimant has alleged she investigated his case, and so was not a suitably independent to decide whether he was capable of doing the job. In our finding, what she did was not investigation. She simply made herself familiar with the written material and clarified it at the hearing.

[67]Kerry Johnson-Walker attended to present the management case, and the claimant spoke at length.

[68]Ms Lyon concluded there were clear concerns about his performance, based on evidence of contemporary emails and reports. The claimant’s case was: “contradictory – he did not acknowledge that there were any problems with his his performance and he seems to focus only on what he was doing well. He suggested that if he was delivering against the performance improvement plan alone than there was not any serious concerns about his performance. It was far from clear to me that he was delivering the PIP however”. He had also suggested there was a conspiracy or other concerted effort by unconnected individuals to deliberately give him incorrect information and trick him into doing things which put him in the wrong, so that he could be managed out. She did not accept that. His inaccuracies were “regular and numerous”. He was not able to identify errors and highlight where corrections were needed, and he was not taking the lead in ensuring adherence to standards for the clinical teams. He should have been proactive in going out to them. They seemed to lack confidence in him. He was not on a “stable upward trajectory”. If he continued, there was “potential reputational damage to the DQT”. He was not working to his band five job description. However, he was willing, and able to work on tasks under close direction, instruction and supervision. She decided to “down band” him to band 4, and explore the options redeploying him at that level.

[69]On 12 March she wrote to the claimant explaining these conclusions in summary. His relationship with the direct line manager and CYAF team had broken down. There was no effective contribution to the CYAF admin leads team meeting. His errors had caused a significant burden for administrative and clinical staff, and undermined confidence in the work of the quality team. He had improved, but his line manager continued to check all his completed reports and emails. The time taken was excessive, and meant that other tasks could not be delegated to him. He did not work autonomously, as expected of a band 5. He was not working with CYAF admin leads to improve data quality. She concluded: “based on your skills set identified at the hearing you may be more suited to a role which requires greater supervision and support”. In this respect: “if either a redeployment opportunity cannot be found within four weeks of the date of this letter or if you are redeployed and it is determined within a Case No: 2205825/2018 10.2 Judgment - rule 61 for further four weeks that the post is not suitable and you cannot perform the duties then I will have no other option but to dismiss you on the grounds of capability”. Redeployment

[70]Sarah Mountain looked for other jobs. She looked at the Trust’s intranet and found two band 4 posts. One was a process support worker based at a special school, working with children. Another was a Service Administrator in the Gender Identity Clinic. She emailed the HR department to see if any other vacancies were known, and she also emailed finance about a vacancy, seven emails in all, without result.

[71]Working from the job description for the service administrator role, the assessment of the capability panel as set out in Ms Lyons’ letter, and the additional information from the grievance outcome letter that the claimant had told Mr Joshi that he would like to be transferred to the finance team, she conducted a paper exercise, and decided that this was not a suitable job for the claimant.

[72]We understand from the evidence that she did not discuss either role with the claimant. He was not told to look on the intranet for posts himself (although Ms Mountain says he should have done), and she did not speak to the Assistant Service Manager at the clinic who he would be working for. She does not know if the role was in fact filled.

[73]She then called the claimant to a redeployment meeting on 8 May 2018. She told the claimant that there were no suitable vacancies at band 4. The claimant did not question this. He says that was because he was “out of my mind” at losing his job. The claimant was told he was now dismissed and would be paid in lieu of notice. Next day he was sent a letter confirming the dismissal.

[74]Ms Mountain wrote a file note saying: “due to the challenges of being a small trust with few band 4 posts (64), 2 vacancies at this level”. Of the vacancies she said: “neither of these roles would be suitable based on the person specification and skills which JE had. Those were patient facing and did not involve data processes or analysis”.

[75]Sarah Mountain prepared two witness statements about why she made the decision. In the first one, prepared before the claim was amended to include a victimisation allegation, she said the Service Administrator role was patient facing, and his experience was limited to back-office work. She also recalled the conversation at the stage 3 capability hearing confirming that he did not work well on his own, with little supervision. She explained in the hearing that the clinic was at a satellite centre, so other administrative staff would not be available to provide supervision. She added in her statement: “I also considered that the relationship of trust and confidence within the CYAF department had broken down to the point that it would not be possible to put Mr Edward back in …even if he had been suitable for the role”.

[76]In the second statement, she expanded on the claimant not being redeployed to that job even if he had been suitable. He had been the Data Quality Officer responsible for the CYAF service. That team had raised concerns about his Case No: 2205825/2018 10.2 Judgment - rule 61 performance which led to his capability process. Their lack of trust and confidence in him predated his grievances, and added: “Mr Edward’s response to the management statement of case the capability hearing – his grievances – tend to illustrate a lack of trust and breakdown of relationships on both sides”. Appeal

[77]The claimant appealed the decision, in 17 pages with 34 appendices. It was a review of the papers, with a hearing on 17 July 2019 where the claimant made verbal points. Helen Farrow, a non-executive director of the Trust, heard the appeal. Craig de Sousa, of HR, made handwritten notes, and then drafted the outcome letter for Ms Farrow to approve. It was found that the claimant had not established any unfairness of process, and that dismissal for lack of capability was justified. The claimant complains that the argument he raised at the hearing about Ms Lyon not being neutral was ignored, but the decision does not have to review every argument. He has not demonstrated that they did not read his material on the fairness of the capability hearing. Various 2016 Incidents involving Marion Shipman

[78]We have to make findings on allegations tending to show unfairness and bias on the part of Marion Shipman in shifting blame onto the claimant – 9.1, 10, 11, 11.1, 12 and 13 of the grounds of claim.

[79]We do not find that she blamed the claimant for altering the Q2 Camden report in November 2016. It is clear there was overlap and confusion. The contracting team extended the deadline. Lee Chesham explained it was delayed in another team. On whether he was faulted for not understanding regrouping of the teams and how this affected presentation of data already collected, we could not understand any more than the respondent why the claimant had thought he must recheck all the underlying data. On the new SEFs, it was plain from the emails that the new form was drafted not by the claimant but by the contracting team. The claimant was not blamed for clinical teams’ confusion about the form, but for delays getting them back. The claimant was not kept out of the loop in investigating which form had to be completed - he was copied into the email - and we not accept that he could not contribute after reading it by telling them which form he had sent. If he was not being involved it would not have been sent to him.

[80]Finally, it is said Ms Shipman gave more support to Ms Johnson-Walker in autumn 2016 than she did the claimant. We accept that Ms Johnson-Walker was a new starter, in AFS, in September 2016. Lee Chesham was still working from home one day a week. It was understandable that Ms Shipman should spend time then making her familiar with the targets and using her to help out with CYAF, then far busier than AFS. The Claimant’s Training Sessions

[81]Two allegations concern the claimant’s delivery of training to others (20, 21 of grounds of claim). We do not find Neema Sidhartha made a complaint about a session being late. As for cancellation of training on 7 September 2017, we accept the explanation that this was done it would follow the capability Case No: 2205825/2018 10.2 Judgment - rule 61 hearing (in fact postponed soon after it started) and Ms Johnson Walker anticipated the claimant would not want to go on with it. It seems she forgot to tell him. Other matters involving Ms Johnson Walker

[82]The claimant says in May 2017 he had to prepare an outcome monitoring report and Ms Shipman read him some data. He typed in ‘988’ which is 10 times too high - the usual figure is around 80 - especially when the next percentage was 8%. He did not correct this. He asserts she set him up to make the mistake. Mr Johnson-Walker denies she read him the wrong figure, of if she did, or if he mistyped it, he should have from the order of magnitude and because the percentage made no sense that it was wrong. We accept that a Data Quality Officer is expected to have an opinion on the validity of data, and to ‘sense check’ that the figure is in the expected range. Nor do we find she was trying to trick him. She wanted the report to be accurate.

[83]It is also said that Ms Johnson Walker asked the claimant to take data from a report that contained errors (SSRS). We have seen the erroneous and corrected reports. They are not so extensive that taken in isolation she should have been disciplined. The claimant picked them up. Any errors that fed into his report were not held against him. The previous month she had not told the claimant of a glitch affecting the accuracy of PHF reports. Any resulting error however was not held to be the claimant’s fault. In a later glitch affecting MHSDS reports, Ms Johnson-Walker told the claimant it was not a glitch; despite that he was able to fix it. It seemed to us Ms Johnson-Walker was occasionally careless. Whether she deliberately misled him so as get him to fail objectives was hard to see.

[84]On 19 October some reports the team had to distribute to meet an urgent deadline were held up awaiting data from another team. Ms Johnson-Walker announced the data was now ready. Omer Kemal then completed his section. The claimant did not, and when Ms Johnson-Walker found after he left that he had not done it, she did it herself. Our finding is that Ms Johnson-Walker did tell the team, and the claimant either did not hear or did not take in what she was saying. We noted that this had occurred before (he more than once complained in tribunal that instructions should have been put in writing), and as a panel we noted during the hearing that sometimes he did not follow instruction, and whether that was through poor hearing, poor recall, anxiety, preoccupation, or not understanding, was not always clear.

[85]In a further episode the claimant said he was provided with quarterly data, not year to date. We concluded there had been a misunderstanding as to the purpose of a report he was sent to use as a model.

[86]In December 2017 it was said the claimant did not copy Ms. Johnson-Walker into emails and she needed to check them. In our finding, all team members had to copy her in on emails they sent to others so she could handle any queries from other teams, and the claimant had stopped doing this. The claimant had also asked to send her data to be attached to emails to check before he sent it to anyone else. She checked the data before it went out. She did not check the text of all emails before he sent them out. Others seem to have understood she was checking all his emails, but the claimant and Ms Johnson-Walker agree that it was data she checked, not the text of the email Case No: 2205825/2018 10.2 Judgment - rule 61 itself.

Relevant Law

[87]The Equality Act 2010 in section 13 prohibits direct discrimination because of a protected characteristic. The discrimination is where an employer treats or would treat the claimant less favourably than someone with whom he does not share the protected characteristic. When comparing treatment “there must be no material difference between the circumstances relating to each case” – section 23.

[88]When making the comparison, the tribunal must look for the reason why the claimant received less favourable treatment. The conjunction of protected characteristic and unfavourable treatment is not enough- there must be something else.

[89]Employers seldom these days state that a discriminatory reason is the reason for their actions, they may not even be aware of it themselves. The Act provides a reverse burden of proof in section 136: “if there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred” unless (A) shows that (A) did not contravene the provision”. As described in Igen v Wong

2005 ICR 931

, this is a two stage test, and as confirmed in Madarassey v Nomura international,

2007 EWCA Civ 33

, the fact of unfavourable treatment and a difference in protected characteristic are not enough to shift the burden – there must be something else. Where there is no actual comparator, it may be in order simply to look for the reason why the claimant received the treatment he did – Shamoon v Chief Constable of RUC

2003 ICR 337

[90]Age is a protected characteristic. So is race, which is defined to include national origin.

[91]The same provisions on burden of proof, and finding a reason why apply in harassment and victimisation.

[92]Harassment is defined in section 26(1) as where: “(A) harasses another (B) if— (a)A engages in unwanted conduct related to a relevant protected characteristic, and (b)the conduct has the purpose or effect of— (i)violating B's dignity, or (ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

[93]When deciding whether conduct has that effect “each of the following must be taken into account— (a)the perception of B; (b)the other circumstances of the case; (c)whether it is reasonable for the conduct to have that effect - section 26(4).

[94]Victimisation is defined in section 27. It is where an employee is treated unfavourably because of a protected act, which in this case, is agreed to be the complaints in September and October 2017 that he was singled out for Case No: 2205825/2018 10.2 Judgment - rule 61 unfair capability management because he was from a minority ethnic group, in other words he was complaining of a breach of the Equality Act.

[95]Because the claimant had been employed less than 2 years, he cannot bring a claim for unfair dismissal. If there are features of the capability process that we may consider unfair to the claimant, we must remember that in Equality Act claims the tribunal can only consider whether his age or national origin, or that he had complained of discrimination, were the reason or reasons why he was treated this way.

[96]The Tribunal is required to make a careful evaluation of the respondent’s reason or reasons for dismissing the claimant - or subjecting him to other detriment. This is a finding of fact, and of what inferences can be drawn from facts, as a reason is a set of facts and beliefs known to the respondent - Abernethy v Mott, Hay and Anderson

1974 ICR 323

CA, and Kuzel v Roche Products Ltd

(2008) IRLR 530

, CA. The real reason may not be the label attached to it by the employer, nor the reason advanced by ether party. It is for the Tribunal to make a finding – Blackbay Ventures Ltd v Gahir

(2014) ICR 747

[97]Tribunals must be careful to avoid “but for” causation: see for example the discussion in Chief Constable of Manchester v Bailey

(2017) EWCA Civ 425

(a victimisation claim) and always look for the reason why the employer acted as it did.

[98]It is not necessary to show that the employer acted through conscious motivation – just that, in a victimisation claim, a protected act, or in a race or age discrimination claim, the difference in age or race, was the reason for the detriment or dismissal – Nagarajan v London Regional Transport (1999) ITLR 574.

Discussion

[99]We begin with the claims of discrimination and the respondent’s conclusion that the claimant was not capable of working at band 5 level which resulted in his dismissal. Performance management means finding objectives related to the job to be met by carrying out tasks that demonstrate competence in measurable ways. It can be simple to understand in principle, but very hard to apply in practice, and employers can sometimes set objectives an employee passes but still be left with a conviction that he is not up to it, and even with training, never will be. There were a number of faults in the application of this procedure. The claimant is rightly aggrieved that he set a target of getting a report in on time, only to be told he still failed because it was so full of errors. It was right to conclude this was unsatisfactory, but the objective had been wrongly drafted. Ms Endres’s feedback was probably wrong about his attendance, though right that he was not good at explaining to the teams what the data quality officers wanted from them. Attending clinical governance meetings was set as an objective and then he was forbidden to go. As far as we could tell, the claimant unfairly got the flak for the patient complaint about information on school attendance. It was wrong that he was not told in March 2017 whether he had passed the informal stage or not, so he went from January to May not knowing whether he was performing adequately or not. Not being proactive was mentioned in the capability decision letter, when it was an objective at stage one that he had passed. At second stage Ms Case No: 2205825/2018 10.2 Judgment - rule 61 Johnson- Walker stepped in so he was deemed not to pass when he prepared it on time. Some of the objectives were so broad as to be difficult to measure without subjective evaluation. This could have been inexperienced staff preparing it, or it could, as the claimant argues, been because the outcome was fixed in advance. We were also aware that at times there may have been prejudice against him so that when things went worn got was assumed he was at fault even when investigation showed it was not him, to he was not the only one – as in the new form queried by clinicians.

[100]We find it significant that Lee Chesham, who the claimant did not hold to be prejudiced, thought the claimant was struggling to deliver the work required, and was discussing performance management in the second quarter of the claimant’s employment. He may have been pushed to start the procedure, but we concluded this was not because he thought there should not be a PIP, he did, it was just that he did not want to start the task just when he was leaving, preferring to leave it to his successor. The importance of this is recognised by the claimant, and it is why he insists this email is fabricated. We do not so find. It is difficult to fake a sent email. Its tone is natural and sympathetic. Ms Shipman gave evidence it was genuine.

[101]There were also examples before of us the claimant making mistakes. He had set parameters too wide in the clinic forms he was reporting on to the admin teams, and there was no reason to send it to clinicians when it was normally for administrators, let alone repeat it when directed not to. Ms Johnson-Walker was so puzzled by the numerical errors she wondered if his eyesight was poor, which supports a finding that there were errors, and she was not making it up for some other reason. The 988 and 8% was an example which demonstrates their concern that he was not noticing some very obvious errors, wherever they came from.

[102]The fact that the respondent was concerned they had “missed the boat” in removing the claimant for poor performance when he had improved and produced an adequate Q4 report might indicate an improper purpose. Against that, Ms Johnson-Walker was an inexperienced manager, and data collection and reporting had been ‘in chaos’. Both could account for imperfections in the capability procedure.

[103]In the overall decision, he was given credit for good work at a band 4 level.

[104]What of facts that might indicate that national origin was a factor? We cannot hold that Ms Shipman’s remark about Sri Lanka on first meeting the claimant is significant. It is a natural gesture of friendliness to try to establish some connection with another. It might also have shown she was conscious he was foreign, to remark on it at all, but without some other episode or remark, we cannot hold that to say this was an indication of prejudice or bias. “Where are you from” (and the claimant does not say she asked this) can indicate bias if the person asked has a brown skin, and is British, but not if it is evident from speech that they grew up abroad in a non-English speaking family.

[105]We have found the “foreigners” remark did not come from Ms Johnson- Walker, or was taken out of context. In other respects it is significant that this is the only indicator of possible bias when they worked in close proximity for 19 months. Case No: 2205825/2018 10.2 Judgment - rule 61

[106]We cannot say that Ms. Endres must have been racially biased if she held a strong opinion about the claimant’s usefulness in meetings. She was on the panel that interviewed him for the job, making it less likely that she was prejudiced against Asians, or foreigners from non-English speaking countries, per se. Her error about his attendance record is explained by her having forgotten she had asked for someone else to attend, making him absent for many months.

[107]The claimant relies on an email exchange in which he and Alex Mills in the Informatics team (who is white) debated which report was wanted. The managers took the view that both were at fault in misusing terminology, but ththe claimant was at fault for not being clear what he wanted. The explanation that Informatics collect data, but the Data Quality team (the claimant) should not know what to ask them for, is plausible.

[108]We do not accept that including grammar in the objectives for the first PIP indicates bias against foreigners. The claimant’s grammar is not always perfect (notable in use of plurals) but so is the grammar of many monoglot English-born employees, and including it as an objective does not show racist bias.

[109]Looked at in the whole, we concluded that the reason why the claimant was subjected to performance management, and found to be wanting, was because his performance was less than was expected in a band 5 role. That he was Asian, or a foreigner, or a foreign born Asian, was not the reason.

[110]As for age discrimination, the claimant based this claim on the fact that he was seen to be slow, arguing that this was a proxy for bias against older people. None of his colleagues knew his age. He looks younger than his years. Some had estimated his age as lower than it was, as did the lay members of the tribunal before checking the claim form for the date of birth. Some of his colleagues did recognise him as older than them. Both his line managers had complained at different times about different tasks that it took him much longer to do a piece of work than others. We concluded they said he worked slowly because he did, not because he was older than them. Harassment

[111]Paragraphs 5 to 69 of the grounds of claim are pleaded as discrimination and harassment. As a matter of law they cannot be both. We have picked out for discussion those that seem to us more likely to be harassment, that is, having the potential to cause a humiliating, intimidating, and so on, environment for him.

[112]Of course an employee may find performance management a humiliating experience. In our finding this was not its purpose, as his 2016 managers (Marion Shipman and Lee Chesham) did believe his performance was inadequate. Nor do we hold that it was in the circumstances reasonable to have that effect. It was carried out under the Trust’s own process.

[113]Some of the specific criticism of him by others was not known to him until after he had left – for example the email of 21 October 2016 which he maintains was faked, and other emails about particular episodes which he did not see until disclosure. Some of it was seen by him - notably the feedback Case No: 2205825/2018 10.2 Judgment - rule 61 from Frances Endres in the management statement of case, and Dawn de Freitas, though he did not know it was her, but even if we had held that this had the purpose or effect of humiliating (etc) him – and we do not so hold – it cannot be related to race. All that can be said is that he was of an Asian background and Ms Endres was white, or that she was foreign but spoke English as her native tongue and he was foreign and spoke it as a second language, but as the criticism did not relate to culture or speech or his understanding of language (save that he did not contribute much to meetings, but that was an observation relevant to the enquiry made) we could not relate it to race.

[114]The unnecessary humiliating remark was Mr Johnson-Walker revealing to the two doctors in summer 2017 that he was subject to performance management. She seems to have done this because the team as well as the claimant was being criticised and she wanted to show they were managing what they saw as the problem; she was inexperienced and did not stop to think that this would make his relations with the doctors difficult, or she did think, but did not care as she thought he deserved it. She was rightly told to apologise as an outcome to the grievance. However, we cannot hold that this was related to race. There is nothing other than the difference in ethnicity. The comment itself had nothing to do with that. Victimisation

[115]Of the actions numbered 2.1-2.5, and 5.0 and 5.1, we do not hold that the claimant’s complaints of discrimination made in September and October 2017 were the reason for the treatment complained of.

[116]2.1 concerns the claimant being told first to attend admin leads meetings and three months later to attend them. He had to stop because of Ms Endres’s poor feedback on 18 August, which would have made it difficult for him. The fact that Ms Endres was leaving so he could start going to these meetings again in December makes sense, and is not to do with the grievance. If in fact he was asked to stop attending because he had complained she was racist (and this was not raised by him in evidence) it is not clear how this was a detriment. He had not been attending from January to June 2017, he only attended a few in the summer of 2017, and he was no longer being assessed for performance at these meetings.

[117]2.2 is very general, and of any comments about involving HR we could not see any that were not justified by events.

[118]2.3 and 2.4 are about checking emails. As discussed, he had not copied emails as instructed, and in December was being asked to do so. The capability hearing understood Ms Johnson-Walker to have said she had to check his emails when in fact she was checking the data which was then emailed – and on occasion who he sent emails too (as when he had included clinicians when he should not have). If the panel had found she was having to check all his data, rather than his emails, the result would have been the same. It was a misunderstanding of what she said, and we did not think it arose from the fact that he had lodge da grievance. Ms Johnson- Walker’s assessment of the claimant’s ability was clear well before the grievances. They were not the reason why she spoke as she did t the panel.

[119]2.5 is about the episode in October 2017on which we have already found that the team was told verbally the data was now avaialbale and the claimant missed it. We do not find as a fact that Ms Johnson-Walker did not tell him, let alone that that she did this because of the grievance. The omission made extra work for her at a time when the team was under pressure of a deadline. Case No: 2205825/2018 10.2 Judgment - rule 61

[120]2.6 is a general assertion that he was subject to stress because he had made grievances. This broad allegation was not particularised and it is not clear what episodes were meant. The claimant was under a lot of stress because of the impending grievance and capability hearings, but we could not identify how otherwise he put under pressure because he of the grievances.

[121]Next is 5, where it is said the claimant was told that those of his grievances that related to the capability procedure should be left to that procedure, but the capability panel and appeal panel ignored the allegations of discrimination made, and in particular, the allegation that Ms Shipman had procured the start of a capability procedure as an act of discrimination. We do not hold that the capability process went against the claimant because he had complained of discrimination. Ms Lyon was aware of the content of the grievance, even if she did not know the outcome. She knew of his allegations as part of his resistance to the management case. She focused on what was said to be lacking in his performance as a matter of fact. There was evidence that Lee Chesham, not Ms Shipman, complained of the claimant’s performance. Ms Shipman in any event had worked with the claimant when Lee Chesham was away and so had first hand knowledge of his performance.

[122]The last allegation, that he was dismissed because of the grievance, was accepted as such by the respondent, though opaquely pleaded by the claimant. What he complains about is clearer in paragraph 58 of the grounds of claim, which deals with redeployment. This is the step that converted downgrading for lack of capability to a dismissal. The claimant also made it clear from the start of the hearing that he considered the grievance had adversely affected the redeployment exercise, in particular pointing out that according to paragraph 14 of the grounds of response, the grievance about discrimination was a reason not to place him in the service administrator role

[123]In the hearing it was submitted by the respondent that this pleading was a slip of the tongue. Nevertheless, the document was pleaded by solicitors specialising in employment work, and must have been based on instructions. There was no application to amend it. We cannot wholly discount it, and must examine carefully the evidence of why the redeployment decisions were made.

[124]Relevant law is set out in paragraphs 95-97 above. To that we add Nagarajan v Agnew

(1994) IRLR 61

, EAT, holding that where there are mixed motives, “there will be unlawful discrimination if the unlawful motive was of sufficient weight in the decision making process”. Owen and Briggs v James

(1982) IRLR 502

CA, and O’Donoghue v Redcar and Cleveland Borough Council

(2001) EWCA Civ 701

show that where there was more than one reason for a decision, the tribunal must asses the importance of each from the point of view of causation, and whether an unlawful reason has sufficient weight to be treated as a cause of the detriment.

[125]The facts are set out in paragraphs 70-75. There were two jobs available at band 4. One was unlikely to be suitable – the claimant has not disputed it. Our concern is with the service administrator post, where the job description was disclosed by the respondent part way through the tribunal hearing and where the claimant maintained he was suitable.

[126]The first reason given is that the job was unsuitable because the claimant was said to lack capability in his band 5 role because he required close Case No: 2205825/2018 10.2 Judgment - rule 61 supervision, and it would not be possible to provide this in a stand alone clinic where he was the only administrator on the premises. At first sight this is attractive, but overlooks that this is a band 4 post where less independence and judgment is required, and Ms Lyon had judged him capable of working at that level. The job description shows he would in effect act as a receptionist, dealing tactfully with patient queries, managing appointments, travel expenses claims, typing reports, and seeing clinicians had the right papers for each appointment. He reported to an assistant service manager. The claimant was known to be calm, literate and methodical. He was a graduate. There had been no complaint about his conduct. Any new starter would need some induction into clinic procedures.

[127]The letter from Ms Lyon (paragraph 69) was explicit that if a post was available there would be a four week period, after which he might still be dismissed if he was not suitable. If his ability to work unsupervised was in doubt, a four week period to test this was already envisaged therefore.

[128]This brings into focus Ms Mountain explaining that even if he had been able to do the work, it was still unsuitable because it sat within the CYAF directorate. It explains why she did not consider placing him in the post for four weeks.

[129]The claimant himself had asked not to work in the Data Quality team. He did not ask not to work in the CYAF. In December 2017 he had been asked by Ms Johnson-Walker to return to the CYAF admin leads meeting, so it cannot have been that CYAF would not work with him at that point. If he had been in the band 4 post in the clinic, he would not have had daily contact with other administrative staff in CYAF, at band 4 he was too junior to attend the admin lead meetings, and as far as we know his immediate line manager was not involved in the grievance. If there was any doubt whether he would want to work in CYAF, Ms. Mountain could have asked him. The first the claimant knew about it was in the dismissal meeting. He does not seem (judging by her file note) to have been told there was any lack of trust and confidence, and the job description was not discussed with him. In any case, by the time of the meeting, 8 weeks had already elapsed and there was no time left for the trial contemplated by Ms Lyon.

[130]Ms Mountain mentioned the grievance in the context of her view of trust and confidence between the claimant and CYAF, when she said his “response to the management statement of case the capability hearing – his grievances – tend to illustrate a lack of trust and breakdown of relationships on both sides”. It is true the grievances show the claimant had no trust in Ms Shipman, Ms Johnson-Walker or Ms Endres. She has not said that their trust and confidence in his ability to operate in any role, more particularly a service administrator role, had broken down before the grievance was lodged. Their comment had been about his ability as a Data Quality Officer. Neither Ms Endres nor Ms. Shipman would be involved in direct management of the claimant in clinic. Ms Mountain does not mention any discussion with the CYAF managers on the claimant being placed in the service administrator role. It seems to have been her decision, not theirs.

[131]She had herself given a statement about the claimant as part of the grievance procedure, stating he had been rude to Ms Johnson- Walker, to Case No: 2205825/2018 10.2 Judgment - rule 61 highlight what she thought to be Ms Johnson-Walker’s tolerance. The allegations of discrimination had not been upheld. We are familiar with the difficulty this can cause in workplaces; many staff find it hard to be neutral about serious and unsuccessful allegations having been made against colleagues. She has not stated that she resented the grievance allegations against the managers, but evidently she had a view about their merit, as she had volunteered a statement. We do not go as far as to say that she consciously decided to punish the claimant for the allegation in his grievance, but it did operate on her view of the claimant’s relationships with others, and in way that did not involve constructive examination of why she formed the view that relationships would be unworkable if he took the service administrator role.

[132]Summarising, she formed a view, without discussion with CYAF members, or with the claimant, that trust and confidence had broken down to the extent that the claimant could not work anywhere within it. She mentions the grievance in this context. The grievance itself is not evidence that the relationship had broken down from the point of view of the managers, or, for the claimant himself, with the wider CYAF beyond the named managers. If trust in his competence as a data quality officer had broken down, it was not clear that pre-grievance that would extend to the more limited band 4 clinic role. Resentments arising from the grievance being made might well change this; they are more likely to have been taken into account by her, because there was no evidence that prior to the grievance there was more than lack of confidence in his ability to work independently at band 5. She also had a view about the merits of the grievance, before it was decided. She judged the claimant unsuitable for the role without a four week trial, and justified the lack of any trial period by the trust and confidence assertion.

[133]From these facts we infer that the grievance played a significant part in her decision that trust and confidence had broken down, such that even if capable of the job it would not be suitable. If the claimant had confined his representations to the accuracy of the capability procedure as it was applied to him, without also alleging special treatment because he was from a minority ethnic group, a major accusation which might have serious consequences for others if upheld, and even if not upheld, involving much work disruption within HR and the wider team, it seemed to us unlikely Ms. Mountain would have decided trust and confidence between the claimant and the wider CYAF team had broken down to the extent that he could not be placed in a band 4 job remote from other administrative staff. There is otherwise no explanation why she reached the decision without consultation with claimant or CYAF, when she had 8 weeks available to do it.

[134]Thus we conclude that the failure to redeploy the claimant to the band 4 service administrator role was victimisation. Effect of Victimisation on the Dismissal

[135]We have to assess the chances that he would have been judged suitable after 4 weeks in the job. If not, he would still have been dismissed.

[136]The claimant had no past experience of customer-facing roles that we know of. The claimant is generally polite, calm and measured, except where he believed some managers had decided to fix a process to get rid of him. Case No: 2205825/2018 10.2 Judgment - rule 61 Some people find it hard to deal patiently with people whose behaviour is difficult because they are anxious or stressed, as patients and their families may be. There is a risk the claimant would have found this hard. It is also possible he would have found hard the interruptions to his workflow of having to take telephone calls. He preferred written processes he could refer to, rather than oral instructions, but it is likely travel expenses rules and the like would be written down, and oral instructions unlikely when he was mostly on his own. Given that he had been slow generally, including in producing accurate typed reports, he may not have mastered the essentials of the new role within 4 weeks. Gathering these factors, we concluded there was a 40% risk he would not been found suitable at the end of a four week trial. Employment Judge Date6th April 2020

Discussion

[1]This hearing was listed to decide whether the panel should recuse itself from the remedy hearing currently listed for 21 April 2021. Both sides have asked the panel to decide the point on the written material, and neither attended.

[2]This hearing was listed as a public hearing, but no members of the public attended to observe and after five minutes we adjourned to private discussion.

[3]We heard the evidence in the claims for discrimination harassment and victimisation over seven days in March 2020. The decision was sent to the parties on 7 April 2020. Remedy was listed for hearing on 12 June 2020, but this had to be postponed because of pandemic restrictions; there have been some practical difficulties in finding a date, but it is now listed for 21 April.

[4]We understand that the claimant has appealed those parts of our decision which did not go in his favour, but his appeal was rejected by an EAT judge on the sift. We also understand that the respondent has appealed the finding that he was victimised in relation to redeployment. The panel is not seen either notice of appeal.

[5]Having been sent the decision on 7 April 2020, the claimant applied on 20 September 2020 for the panel to recuse itself because of bias. His letter is set out in nine pages, well-structured, criticising particular points of the findings and Case No: 2205825/18 10.2 Judgment - rule 61 conclusions. He has also supplied us with 131 pages of documents, including the decision, the application letter, the amended particulars of claim, and extracts from the hearing bundle on the particular points on which his application relies.

[6]The respondent wrote to the tribunal on 3 March 2021 that they did not accept that the panel showed bias, and reminding us of the legal test.

[7]The legal test of whether there is real or apparent bias on the part of a court or tribunal was set out in Porter v Magill

(2002) 2 AC 357

. It is: “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.

[8]Bias, both actual and apparent, is important, because not only must justice be done, but it must be seen to be done. The test is that of an objective observer who knows something of discrimination law and tribunal procedure. Would such an observer have concluded that there was a real possibility that the tribunal was biased against the claimant? The claimants application focuses on three areas.

[10]The first is about our assessment of evidence given by Frances Endres. She had criticised the claimant for not attending meetings. In the capability process at a later stage, she gave an opinion of him which we concluded was misleading. We concluded that the reason why it looked as if the claimant had not attended many of her meetings was not because he was unreliable, but because she had told him not to attend. The claimant argues in his application that she acknowledged in tribunal she had told him, but our finding was about why she said at the time he was unreliable. The claimant objects that the respondent did not in fact rely on her assessment of attendance, and our finding as to the reason why her opinion was misleading was reached in the absence of submission by either party on this point, and that this demonstrates that we were seeking to exculpate her from allegations of race bias as a reason for her input to the process that led to the termination of his employment.

[11]We did not follow altogether the point the claimant seeks to make. We found that Ms Endres was unreliable in her assessment. If the claimant is right, and the respondent did not rely on what she said about his attendance record, it is hard to see how any bias because of his protected characteristic that she exhibited was a reason why they terminated his employment, though he may be saying we looked at irrelevant matters and this shows we were searching for exculpatory material. Moreover, our finding that she had forgotten is not in her favour. To our mind, her conduct demonstrated that she was not a fair manager, or a reliable witness on his behaviour. We considered her conduct in paragraph 111. This is a paragraph to which the claimant takes objection. It is the part of the decision which examines various pieces of evidence to see whether they do or do not indicate that race was the reason for any of respondent’s actions. The claimant’s objection to our finding that she had “forgotten” why he did not attend meetings is, presumably, that she knew full well why he did not attend meetings and was deliberately misleading her colleagues. She did later concede she had forgotten, but our finding was that when she gave feedback (the relevant time) she had forgotten. Sometimes employers mismanage processes and make wrong decisions. The tribunal has to decide whether it can draw an inference from evidence that the reason for any mismanaged process is race. Paragraph 111 explains why we thought race was unlikely to be the reason for Ms Endres’s unreliable report. We Case No: 2205825/18 10.2 Judgment - rule 61 could not understand how this showed bias. The claimant argues that because “forgetting” was not advocated by either side as an explanation, we should not have considered it. The tribunal understands that discrimination cases are particularly fact sensitive, as reason for actions may not be obvious, even to the actors, and that we have to consider all the evidence and reach our own conclusions having heard it. We could not understand how a fairminded and informed observer would conclude that there was a real possibility of bias because we asked ourselves why when asked for an opinion on his performance she had been misleading about his attendance at meetings.

[12]The second objection to the decision said to show bias is a comment in paragraph 58 that the claimant’s recollection or construction of events was not always reliable, describing an episode when he was asked for a password. All this was in the emails, so we had the contemporary evidence before us. We found the claimant’s construction that the other person was seeking to trick him into revealing confidential matter was ludicrous, and on reviewing it at this hearing we cannot read it otherwise. We also believe that an impartial observer would reach the same conclusion, or could readily see how we came to it. It does not indicate a real possibility of bias.

[13]The final objection is about our finding on the claimant’s assertion that setting grammar as an objective on his performance review showed race was a factor. We stand by the reasoning in paragraph 113. It is legitimate for employers to complain of poor grammar, and doing so does not without more indicate race bias. Of course it could be, especially in a job that did not require written or spoken work, but in this case, we concluded otherwise. We understand the claimant’s objection that on review his grammar was found satisfactory, but we could also understand why it had been chosen in the first place. In fact sensitive cases it is necessary for tribunals to consider many facts to assess whether a protected characteristic was the reason for detrimental treatment and this finding was one of many. We did not understand that an impartial observer, who would consider all the many facts in context in this dismissal, would conclude that this finding showed a real possibility of bias.

[14]We conclude that it is not necessary for the panel to recuse itself. We very much regret that the claimant considers it highly likely he will not get a fair hearing when we come to assess remedy for victimization, and assure him we will make our assessment having regard to our duty to judge cases without fear or favour, affection or ill-will. _____________________________ Employment Judge Goodman Date: 17/03/2021 JUDGMENT and REASONS SENT to the PARTIES ON . Case No: 2205825/18 10.2 Judgment - rule 61 17th March 2021. FOR THE TRIBUNAL OFFICE Case No: 2205825/18 10.2 Judgment - rule 61 EMPLOYMENT TRIBUNALS Claimant: Mr J. Edward Respondent: Tavistock and Portman NHS Foundation Trust London Central Remote Hearing (CVP) On: 21 April 2021 Before: Employment Judge Goodman Mr D. Clay Mr M. Simon Representation Claimant: in person Respondent: Mr W. Young, counsel

[1]In a judgment sent to the parties on 6 April 2020, the tribunal found that the respondent had victimised the claimant in failing to offer him a band 4 post, following his demotion from band 5 for reasons we found not to be discriminatory. Our decision was that there was a 40% chance that he would not have been suited to the role, and have had to leave after 4 weeks.

[2]After the judgment had been sent, the claimant applied for the panel to recuse itself as biased against him, having wrongly, in his view, rejected other claims. The panel met on 9 March 2021 to consider written Case No: 2205825/18 10.2 Judgment - rule 61 representations, and our decision that there were no grounds for recusal was sent to the parties on 17 March.

[3]This remedy hearing, initially set for June 2020, was delayed by Covid restrictions and difficult availability, but was listed for today at a case management hearing in January 2021. Issues

[4]The claimant updated his schedule of loss in February 2021 and the respondent served a counter schedule. These stand as pleadings for the remedy hearing.

[5]The claimant had only found paid work at the beginning of this year. The main issues in assessing remedy were to determine when the claimant is likely to retire, his prospects of finding work, with or without a defined benefit pension, and at what pay level, and whether he had sought adequately to mitigate his loss.

[6]When employed by the respondent he was a member of the NHS defined contribution pension scheme, and so there is claim for loss of pension benefit as well as loss of earnings.

[7]We must also assess injury to feelings for victimisation. Evidence

[8]We heard live evidence from John Edward, the claimant, and Craig de Sousa, the respondent’s Executive Director, Human Resources and Governance.

[9]The claimant had prepared a bundle of 1,651 pages, with a 31 page index, and the respondent a further bundle of 381 pages. Neither includes the terms of the NHS pension scheme, and for that we rely on the summary in the appendices of the Employment Tribunals Principles for Compensating Pension Loss, fourth edition, third revision March 2021, as well as Mr de Sousa’s evidence. Findings

[10]The claimant came to the UK from Sri Lanka in 1989, aged 34, to study accountancy, and engaged in part-time work. Fourteen years later, in 2003 he obtained indefinite to leave to remain, which gave him the right to work in the UK without restriction. He then worked for a firm of solicitors, and took a third class degree in law with the Open University. He could not afford the Legal Practice Course, so abandoned plans to practise law.

[11]In 2010 he started work for East London NHS Trust. He joined the NHS pension scheme on 9 December 2010. In May 2016 he started work for Case No: 2205825/18 10.2 Judgment - rule 61 the respondent as a data quality officer. That was at band 5. As set out in the liability judgment, the respondent Trust eventually found he was not capable of working at that level, but able to work at band 4. He was not however offered a band 4 job, which we found to be victimisation, and so from 8 May 2018 has been on the labour market. His band 5 salary on leaving was £27,280 per annum.

[12]At dismissal the claimant was a month short of 63. This year he will be 66, and will attain his state retirement pension age on 8 June 2021. He will not however have paid national insurance for the 35 years required to receive a full state retirement pension, so it will be reduced, and without other income he may have to apply for pension credit or some other means tested benefit. If he continues to work after state retirement age (i.e. after 21 June), he pays income tax, but is no longer required to pay a national insurance contribution, so increasing his take home pay..

[13]The claimant is a member of the version of the NHS pension scheme called NHSPS 2008. He can take a pension from age 65, which will be 1/60 of his salary for each year of pensionable service. With only 8 years in the NHS pension scheme, his pension is unlikely to be enough to live on. If he is able to find another job in the NHS before May 2023 (five years from leaving), he can rejoin the scheme and add years.

[14]If the claimant finds permanent work with another employer, even a public service employer, he is unlikely to join another defined benefit scheme. Most such schemes are now closed to new entrants, and defined contribution only. This is not as valuable. The employer pays a percentage of earnings only into the pension scheme and the eventual pension relates only to the amount of contributions paid in by employer and employee.

[15]The claimant has declared an intention to work until aged 75, another 9 years. His evidence is that while it is rare for NHS staff to work after 65 or 67, there is no compulsory retirement age for NHS staff, and because of his limited contribution history, he cannot afford to retire when others do. He has exhausted his savings while unemployed after dismissal, so he needs to rebuild those too. His wife, now 59, works full time (formerly three days a week); we do not know her income, and she has a small private pension, we do not know how much. He stated both were in good health, though he takes tablets for diabetes. She will achieve state retirement age in 8 years’ time, when she is 67. They have no children to support, or to support them.

[16]Drawing this together, we set a likely retirement age of 72. The claimant needs to work longer than most people before he can afford to retire, unless he is to be dependent on means-tested state benefit. That projected age, 72, allows for longer or shorter working life if his health is uncertain or he begins to get tired of working. We do not anticipate the date would have been much different had he not been dismissed by the respondent: as long as his health allowed, he would have wanted to build up his pension Case No: 2205825/18 10.2 Judgment - rule 61 entitlement, having started so late.

[17]The claimant began his search for work after the respondent’s capability process began, expecting he could end up without a job. He looked, without success, for band 5 posts. He was shortlisted for one out of his six applications, but unsuccessful at interview.

[18]After dismissal he stopped applying, assuming that if dismissed for capability, he had no chance of success, though he hoped for success in the appeal outcome. When he got the letter dismissing him because there was no band 4 job for him, he asked the sender for clarification about getting a reference. Ms. Umran Murad in HR told him the Trust would be able to provide a factual reference, meaning: “confirmation of employment dates/sickness data (if required)/job role and any disciplinary actions – current investigations et cetera which may be requested.” The claimant asked her what she meant by disciplinary investigations, as he did not know what the current investigation was. Ms. Murad replied only that: “I feel I have provided you with all the necessary factual information and unable to progress further with this conversation” leaving him with the unfortunate impression that if the Trust were asked for a reference it would be stated that he was subject to disciplinary action, which of course he had not been. In consequence, he did not apply for any more NHS posts, knowing that an NHS employer must take up a reference from the last employer if that was in the NHS. It is not clear why she did not just say he was not under any disciplinary investigation.

[19]The claimant then made applications for very wide range of administrative jobs with private employers, and later registered with more than 70 recruiting agencies, in the expectation that if required he could provide a reference from someone other than respondent. Despite the volume of general material in the hearing bundle, nowhere has the claimant included the CV he was uploading to these websites, so we do not know what he said about leaving the last job. In the first year or so he tended to apply just for specific posts advertised. Latterly, he has applied to a great range of agencies.

[20]He was interviewed for several posts with private employers, and attributes his lack of success to their specialised technical demands. We can also see that in November 2019 he was interviewed for a post with Public Health England as a QA audit officer on a salary range £25,630-£30,884, for an initial three months with a possible extension to May 2020, but he did not get the job. He was placed through an agency. A reference was not taken up when the decision to appoint another was made. This suggests Case No: 2205825/18 10.2 Judgment - rule 61 that the reference was not a bar to being considered, or the reason he did not get the post.

Findings of Fact

[21]In October 2020, when remedy was due to be heard (though in the event postponed), Mr de Sousa asked the respondent’s solicitors to write to the claimant pointing out that there was a job being advertised at Health Education England as a data administrator, which appeared to be suitable. The claimant applied, stating on the application form that he had been dismissed from his previous employment on grounds of capability. He was told that he had not been successful in reaching a shortlist. The respondent argues that it would have been more accurate to state that he had been downgraded from 5 to 4 following the capability procedure, but unfortunately the Trust had no band 4 posts at the time, which would not have the same discouraging effect.

[22]Soon after, he applied for a similar role at the same employer, but was not shortlisted. In the next few weeks he applied for several other roles, without success.

[23]Mr de Sousa’s evidence is that there are 44 NHS Trusts in the London area, most of them much larger than the respondent Trust, between them employing 8 ,000 to 14,000 staff, some of whom are administrative and clerical, and that in any one month between 900-1,000 clerical and administrative vacancies are advertised; though not all band 4, many are. This continued up until the March 2020 lockdown. Recruiting has since increased because of high NHS demand in all areas for staff.

[24]The respondent points out that a negative reference of itself will not have caused lack of success in applications that have been made, because NHS employers do not take up references until after shortlisting and successful interview. They argue therefore that he claimant had no good reason not ot apply for NHS jobs before October 2020.

[25]The claimant asks us to note that some, though by no means all, agencies require jobseekers to provide their date of birth or a copy of their passport, with the result that potential employers are aware of his age, and may be discouraged.

[26]The claimant was able to find work at the end of December 2020 as a data analyst, employed by an umbrella company to work in the public sector at a daily rate of £350, under IR 35 (meaning he pays tax as an employed earner, and the statutory deductions are made for national insurance and tax). The daily rate includes an allowance for holiday pay, said the claimant. This contract was due to end in March, but has recently been extended to September 2021. The payslip for his first two weeks shows a gross payment of £1,698.72, deductions of £409.23 for the umbrella company and holiday pay, and £598.88 for tax and national insurance, leaving a net payment for 2 weeks of £1,099.64, or £549.82 per week. Allowing 5.6 weeks holiday this equates to £28,590.64 net per annum. Case No: 2205825/18 10.2 Judgment - rule 61

[27]At the time of the hearing, he understood that he would shortly be eligible to join an auto-enrolled pension scheme, for which 8% will be deducted from his daily rate, and split between 3% employer and 5% employee contribution. This will be a defined contribution scheme.

[28]The respondent has also argued that if they had placed the claimant in the band 4 job in May 2018 he would not have stayed. He had very much disputed the downgrading decision, and would have left anyway. The claimant maintains that he would not have left his post without another job to go to, given his age and the need to keep working. The tribunal holds it more likely than not that the claimant would have stayed on, and not left the respondent’s employment unless he had a job offer from another NHS employer with better prospects. We know that in fact he was unsuccessful in getting any band 5 post at the time, so the chances are he would have stayed, subject to the point about being suited to the clinic role for which we have already allowed a 40% chance of leaving. Loss of Earnings Award

[29]There is a loss of earnings from 8 June 2018 when the notice period expired, to the end of December 2020. The respondent argues that the claimant did not mitigate his loss, in particular that he made no applications for the band 4 NHS work for which he was best suited. The tribunal accepts the discouraging effect of the exchange with HR at the time of dismissal, and notes that nevertheless he continued to apply for non-NHS work. However, he should have been encouraged by getting an interview (through an agency) in November 2019 with an NHS employer to revise his previous pessimistic view and started to apply, especially as work with an NHS employer will have served to mitigate his pension loss. Doing the best we can, we propose to reduce the loss of earnings by 50% from November 2019 to December 2020, to reflect the prospect that he would have been able to find NHS work had he applied for any the many band 4 posts being advertised.

[30]At the time of dismissal we understand from the schedules of loss that the rate appropriate to band 4 was £1,687 per month net, including London weighting, which is £27,899 gross per annum. The claimant would have been at the top of grade 4, so there will have been no grade increases. We have not been given information by either side that we can see of pay increases since then.

[31]The claimant received varying amounts of universal credit for some months between May 2020 and January 2021, in total, £2,677.

[32]As for the claimant’s prospects from now on, the fact that come September he will have been in work for nine months is likely to mean he is better placed to find more work now than he was with a record of unemployment. Further, he can expect his current employer to provide a reference and so Case No: 2205825/18 10.2 Judgment - rule 61 could put aside his fear of any discouragement in the respondent’s reference. On the evidence, there are plenty of band 4 NHS posts regularly available, many of them for generic administrative posts, very few requiring special knowledge - we saw only one, requiring experience of an endoscopy clinic; we discount the claimant’s dispute on another involving working for clinicians, as the post holder was not required to be a clinician. We do not anticipate any difficulty finding work on account of the claimant’s age. Many, possibly most, agencies and employers do not ask for evidence of age. In our finding the low number of older people employed in the NHS reflects the fact that most older NHS employees have accrued enough pension to retire comfortably. It does not indicate that the NHS prefers to hire younger people. The claimant’s circumstances are unusual.

[33]Nevertheless, to build in some compensation for the risk that he may not be able to find such work to start as soon as his current contract term expires, we award a further 6 weeks from 30 September 2021.

[34]Calculation:(1) Loss of earnings not subject to 40% reduction 4 weeks at £1,687 per month (4x12/52 x 1687) = £ 1,557

(2) Loss of earnings subject to 40% reduction: (a) From 8.6.18 to 30.11.19 76 weeks at £1,687 x 12/52 = £29,753 (b) From 1.12.19 to 31.12.20 56 weeks at £1,687 x12/52 £21,891, Less state benefit 2,677 =19,214, reduced by 50% = £9,607 Total 2(a) plus 2(b) £ 39,360, reduced by 40% =£ 23,616 Total Past loss (1) + (2) £ 25,173

(3) Future loss (no interest) 6 weeks at £1,687 x12/52 = 2,336. Reduced by 40% = £ 1,402 Pension Loss

[35]For reasons already given we expect the claimant to be able to obtain work in the NHS by 14 November 2021. He will then be able to rejoin the pension scheme after a gap of 3.42 years.

[36]Working from the gross salary of £27,899, with each year of pensionable service attracting pension of 1/60 gross salary, the loss of pension per annum after retirement is £ 1,591 per annum. Case No: 2205825/18 10.2 Judgment - rule 61

[37]We reduce part of this by 50% for the same reasons as before. The proportion of pension loss attributable to the period from 1.12.19 to 14.11.21 is 1.96 years, 57% of the total. Applying 50% reduction to £906.87, and no reduction to £684.13, the annual pension for calculation of the award is £1,138.

[38]For multiplier, we have used the Ogden tables in appendix 2 to the Pension Guidelines, which build in the higher life expectation of members of occupational pensions schemes, to arrive at a multiplicand of 17.28. This is for a man now 65, expecting to retire at 72, at the current 0.25% discount rate.

[39]We decided not to apply a reduction factor for the vicissitudes of life other than mortality. This is because we have already assessed 72 as a more realistic retirement age given health and ageing, but recognising the claimant’s ambition and need to work to 75 if he can it would not be just to reduce this again.

[40]This makes the loss of occupational pension arising from victimisation £19,665. Reduced by 40% that is £11,798.

[41]Because of the claimant’s late entry into the UK labour market, the loss of his job has prevented him from building up his retirement pension (for which 35 years of national insurance contributions or credits are required). The claimant obtained a statement of accrued state pension for May 2018 of £79.27 per week. A similar statement for April 2021 shows state pension of £93.72. He will have resumed making contributions in January 2021, and we do not know if he was credited with NI contributions during the months of 2020 when he received state benefit. There is also the annual increase in state pension. On the face of the figures available, by losing these years he has suffered a reduction of £751 per annum in the state pension he can draw from June 2021 – we take that as the start of this loss, because if he elects not to take it now, he is paid proportionately more whenever he does start to draw it. To take account of the failure to mitigate after November 2019, and we have reduced it by 25% (because for half the period there is a 50% reduction) that makes the annual loss of pension £563.25 per annum.

[42]For the multiplier we used table 1 of the 8th edition of the Ogden tables, because the claimant reaches his state retirement age next month. Having regard to the greater longevity of members of occupational schemes as a section of the general population, noted consistently by actuaries as 2 years, and discussed in the Pension Principles, we selected the multiplier for someone with a retirement age of 64 (rather than the claimant’s actual 66). At a discount rate of 0.25%, the multiplier for this loss is 21.81. That makes a state pension loss of £12,284.48.

[43]Reduced by 40%, that is £7,371. Case No: 2205825/18 10.2 Judgment - rule 61 Injury to Feelings

[44]The claimant contends that injury to feelings of victimisation should be in the order of £25,000. He also seeks aggravated damages, stigma damages, and loss of congenial employment, but in our view there are no reasons to make any of these awards. Any stigma, actual or perceived, from the fact of dismissal is already accounted for in the loss of earnings award, and being downgraded from 5 to 4 is not a decision for which compensation is to be awarded. As for congenial employment, the employment was no doubt satisfactory, but such awards are for those where there is a job satisfaction that is not reflected in pay – for example, saving life, or an occupation with particular camaraderie, or exercising a special skill – which is not apparent here.

[45]Having heard the evidence at the liability hearing and now, the real injury to the claimant was the finding that he was not capable of a band 5 job. Having found that this was not discriminatory, that injury to feelings cannot be compensated. There should however be some recognition of the shock of losing his job, however much he may have feared this could be the outcome, and the stress of having to find another one. For the harm done by losing the opportunity to work at band 4, which we assess should be towards the lower Vento band. We consider an award of £10,000 appropriate. That too is discounted by 40%, as he might have found himself in this position without the victimization, making £6,000. ACAS Code on Discipline and Grievance

[46]Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 provides that if a “claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies”, and the employer or the employee failed to follow any provision of the Code, a tribunal can order an award to be increased or decreased by up to 25% to the extent that this would be just and equitable in all the circumstances. The claimant argues that by limiting his appeal against the decision to downgrade to specific factors he was deprived of redress. We do not accept there was breach of the Code on Grievance (this was not disciplinary action). The claimant was able to pursue an appeal. We do not consider this an appropriate case for an increase in award. Interest on Awards

[47]The Industrial Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 provide that tribunals making awards in discrimination cases should consider awarding interest. By regulation 6(1), interest on loss of earnings is calculated from the mid-point of loss to the calculation day, and interest on awards for injury to feelings from the date of the act of discrimination. These need not be followed, according to regulation 6(3) if ‘serious injustice’ would result. The applicable rate is 8%. Case No: 2205825/18 10.2 Judgment - rule 61

[48]From 8 May 2018 to 13 May 2021 is 3 years 5 days. The interest on the injury to feelings award is £6,000 x 8/100 x 1,100/365 = £1,447.

[49]The loss of earnings period runs from 8 May 2018 to 31 December 2020. The mid-point between these dates is 15 months and 11 days after 8 May 2018, which is 19 August 2019. The period from then to now is 20 months and 24 days. We did not serious injustice to either side in not splitting up the awards because they were reduced by different amounts in different periods. The interest on the awards for past loss of earnings of £25,173 - see paragraph 33(2) – therefore is £ 25,173 x 8/100 x 632/365 = £ 3,487.

[50]Summary of Awards Injury to Feelings £ 6,000 Interest thereon £1,447 Past Loss of Earnings £25,173 Interest thereon £ 3,487 Future loss of earnings £1,402 Loss of Occupational Pension £11,798 Loss of State pension £ 7,371 Total £56,678 Grossing Up for Tax

[51]The injury to feelings award arises from the termination of employment and will be treated by HMCTS as liable to tax on receipt.

[52]The whole award attracts the statutory exemption of £30,000 for a termination payment.

[53]That leaves £ 26,678 which will be treated as income liable to tax in the year ending 5 April 2022. He expects to earn £39,054 if he continues to earn at his present rate of pay over 46 weeks of the year. The total taxable income therefore will be £65,732.

[54]Of that, the first £12,500 is the tax free personal allowance. The next £37,000 is taxed at 20%. Of his income other than the tribunal award, £16,554 will be taxed at 20%.

[55]That leaves £20,446 of the 20% basic rate band to be applied to the tribunal award. The claimant must receive £ £25,557 to leave him £ 20,446 in this band. The remaining £6,232 of the taxable part of the award will be taxed at 40%. He must receive £10,387 to leave him with £6,232 in this band. Case No: 2205825/18 10.2 Judgment - rule 61

[56]After grossing up, the award required to compensate the loss comprises £30,000 plus £25,557, plus £10,387, in all £65,944. __